THE TYRANNY AND THE PRESS

Otago Witness, Issue 3006, 25 October 1911, Page 88

THE TYRANNY AND THE PRESS

(By Jttryman,>

WARD GOVERNMENT INDICTED

AS AN ENEMY OF POPULAR LIBERTY,

in. The liberty of the press consists in laying no previous restraints upon publication, and not in freedom from censure or punishment for criminal matter when • published. Every freeman has an undouted right to lay what sentiments he pleases before the public; to forbid this is to_ destroy the freedom of ihe press; but if he publishes what is improper, mischievous, or illegal, he must take the~ oonsequences of his own temerity.—Blackstonels Ccmimentaries. Clause 2 of " The La,w of Libel Amendment Act, 1910," begins as follows: 2. (1) In any action or prosecution for a defamatory libel the publication of any of the following matters shall be deemed privileged in the absence of proof of malice :

" Privileged " means that the publication cannot be treated by the law courts as libellous.

The matters thus privileged are set out in subsequent paragraphs. They comprise " fair and accurate reports of the proceedings " of (a) Parliament, (b) the law courts, (c) any inquiry held under the authority of the Governor-in-Council, (d) any local authority. There is one other class of privileged matter to be mentioned presently, but I pause here to say that I do not know of any fault to find with clause 2, (a) to (d). Sir Joseph Ward, in moving the second reading of the bill (November 28, 1910) said that (a] and (b) were already law, and were here inserted for clearness. lie also stated that (d) was new. For these provisions, which assert and extend the liberties of the press in specified directions, the Government deserves thanks. It also deserves tha,nks for cer* tain other clauses designed to protect the newspapers against unreasonable claims tor damages, but the act falls short of the English law in that it does, not center "privilege" on reports of pubho meetings. "IF AUTHORISED BY A MINISTER." To return to clause 2. Paragraph (e) extends privilege, on the terms quoted above, to A fair and accurate report of the acts and proceedings of the Executive Government, or of any department or orncer thereof, so far as the publication oi such report is authorised or requested by any Minister of the Crown. ',.._,

If the above paragraph had stopped short at the word' " thereof," and had not gone on to grant a special power to Ministers, mKobjction could have been taken. Jbiven. as it stood, it seems to have attracted no attention in the House and very little outside. It was in the bill as introduced, and no attempt was made to amend it. Nevertheless, it is wrong in principle and 1 grossly unfair. Ido not say that it has made any perceptible difference to the management of the newspapers. Its sinister importance, so far as can be seen at present, lies not so much in. any direct results as in its unconstitutional character and its disregard of the British ideal ot fair play. It is an indication of the present Government's attitude towards the press. A GIFT OF THE GREEKS.

Before going further it is proper that we should ask whether a fair and' accurate report of the doings of the Government, published without malice, would not have been regarded as privileged even before this act was passed. lam maimed to think it would, and at all events I am pretty sure that no jury would convict in. regard to such a report. If lam right in this, it clearly follows that paragraph (e) instead of enlarging the rights of the press, really tends to restrict them. And in this connection it must be noted that clause 11 of the new act (as I have already shown) provides means whereby a prosecutor may get his case tried by a stipendiary magistrate instead of by a judge and jury. A stipendiary magistrate is an officer who can be either removed or regarded by the Government of the day, and he is therefore far more likely than a jury to attach importance to the presence or absence of a Ministerial permit. It, therefore, appears that paragraph (e)— especially when taken in conjunction with clause 11—does actually and directly place a new restriction upon the press. And such restriction is m the personal and political interests of the Ministers.

WHAT ABOUT FAIR PLAY? But even if I am mistaken in supposing that fair, accurate, and unmalicious reports of politcal events were practically privileged before the new act was passed, I can still show that paragraph (e) is objectionable. The proceedings of Government are the actions of Ministers and civil servants. A full report of some particular proceeding might show either a Minister or a departmental officer, or both, in an unfavourable light. A narrative emanating from the Minister, though rasonably " fair and accurate," might, by skilful omissions, by vagueness in one part and clearness in another, present the whole matter in such a way that the Minister's reputation would be unhurt, and that of the permanent official wouldjsuffer. An equally, fair, accurate, and skilful account of the circumstances might be prepared by the official. The Minister's report would bo privileged, and the official report would not. The Minister could libel the official, but the official could not libel the Minister. The official would also have to bo much more tender than the Minister towards the feelings of any private citizen whose conduct might come into the story If the people of New Zealand like to see that sort of provision in their Statute Book, they cannot say they like to see fair play. . Ministers often have controversies with lading members of the other political p:!.rry.° Paragraph (e) gives the Minister in any such controversy a new advantage over the Oppositionist. In reporting a speech by the Leader of the Opposition, a newspaper has to take, under this provision, a risk which it does not take in reporting a speech by a Minister One would have thought that gentlemen whose official position entitles them to travelling expenses, secretarial and departmental assistance, and easy access to all sorts of records, could have 'done Without this addition to the inequality of the conteat. It is as though a duellist, whose sword

is already longer than _ his. opponent's, should insist upon making it, by some means or other, longer stall.

THE NEW PRESS CENSORS. It should be carefully borne in mind that paragraph (e) does not directly, forbid the Publication of unauthorised political reports. It simply makes them, under certain circumstances, and as compared with the Ministerially-authorised WMfc «**••. To that extent it pute Ministers in the position of censors of the press It m, of course, a limited censorship It applies only to political news. Ministers have rot as yet, assumed any control over the publication of foreign intelligence, religious teaching or scientific information. If they supposed that their interests required suoh an extension of power, and that the- public would submit, they would certainly reac,i cut for it. The little bit of censorship which they have lately acquired is the thia edge of a wedge. It is for the people to say whether the wedge shall be driven in ° T BACK TO THE STAR CHAMBER. The intent and tendency of paragrapn (e) is to cause editors and reporters to seek audience of Sir Joseph Ward, Sir John Findlay, or the Hon. R. M'Kenzie, or one of their colleagues, and, humbly placing the sheets of "copy" before the Minister, beg him of his clemency to spare a few moments for the perusal and to write his " imprimatur" on every page To that particular kind of humiliation English men have not had to submt themselves since thev decided that constitutional liberty under William the Dutchman was better than shackles and the Stuarts. It was a free man's indignation against the censorship of the press that caused the cold and heavy prose of Milton to *rise into the splendid eloquence of " ArcoKugitica." It was fit, he thought, that he censor's word of perniission be Latinised to " imprimatur"—" for that our English, the language of men ever famous and foremost in the achievements of liberty, will not easily find servile letters enow to spell such a dictatory presumption Engliished." Milton traced the history of the censorship of the press from the Inquisition, through the Star Chamber, to the Long Parliament, and showed it in its real and hideous character—demoralising both to the writer and the official, and for any worthy purpose altogether futile. "If it come to suppressing," he declared, "there is not aught that is more likely to be suppressed than truth itself." .FREEDOM AND HER MARTYRS.

Another 50 years' experience of censorship proved that Milton was in the right, ami the Parliament of William 111 had the good sense to vote the repeal of the act. which ha-d carried forward the provisions of the Star Chamber's decree against unlicensed printing. That, vote, of 1695, was the constitutional beginning of the liberty of the British press. It almost coincided in time with the settlement of our modern form of constitutional freedom itself, and the two have always prospered or languished together. Every foe to the general liberty has specially attacked the liberty of the press, and in the sacred cause of free publication Englishmen have gone cheerfully to gaol, to the pillory, to mutilation, to. exile, and even to the gallows. Yet in all the struggles of the 200 years that havo passed since William 111 gave his assent to the repeal of the Licensing Act there has been no State Censorship of the English press. The Ministers of Queen Anne and the Georges, in all their attempts to curb the pamphleteers and journalists confined themselves to two methods—taxation through stamp duties, and punishment for supposed criminal matter after its publication. No man was under any ejemblnnoe of legal obligation to ask their leave before he might place before the eyes of his fellow citizens whatever thought or fact he wished. MONSTROUS JUDICIAL DOCTRINE.

I grant that the Ward Government's attempt at establishing a censorship does not go the length of the doctrine laid down by Chief Justice Scroggs and his brethren in the reign of Charles 11. All the judges, being met together at the command of that King, gave it as their unanimous opinion that, irrespective of the Licensing Act, which had then been allowed temporarily to lapse, it was criminal at common law to publish any political news whatsoever, even if it were true and innocent, without the permission of the Crown. More than one constitutional historian has characterised this as a '" monstrous opinion." Maoaulay accounts for it by saying that the judges were "removable at the royal pleasure, and were eager on all occasions to exalt the royal prerogative." The Crown teems never to have acted upon the doctrine thus /nanufactured for it, and Chief Justice Camden in the next century wiped it out. I am inclined to think that his judgment in Entick y. Carrington makes not only the opinion of Scroggs and his fellows, but also the Ward Government's rudimentary c< rsorship contrary to the common law. And here we notice that the privilege and censorship clause of our act has the following second sub-section: (2) Nothing in this section shall be so construed as to take away or restrict any privilege existing at common law.' Query: Does this make the censorship portion of paragraph (e) of no legal effect 7 ENGLAND'S MESSAGE TO NAPOLEON. At any rate, I feel sure that, if it is not contrary to the common Jaw, it is contrary to the English constitution. In 1802 Napoleon Bonaparte, then First Consul of France, and at peace with England, urgentlv requested the Government of George" 111 to stop the publication in England of matter inimical to himself. The British Government answered him thus:— .' His Majesty neither can nor will, m consequence of any representation or menace from a foreign Power, make any concession whioh may be in the smallest degree dangerous to the liberty of the press, as secured by the oonistitution of this country. This liberty is justly dear to every British subject; the constitution admits of no previous restraints upon publication of any description, but there exist judicatures wholly independent of the Executive, capable of taking cognisance of such publications as the law deems to be criminal, and which are bound Lo irfiict #io punishment the delinquents maj ieserve. It. seems to be that the deolanvuon that "the constitution admits of no previous restraints upon publication of any deserp

tion" is •wide enough to show that Sir Joseph Ward's provision for withholding privilege from unlicensed news items is contrary to the English political constitution. Of this provision, as of _ clause 11 of the act, it is proper to surmise that had the attention of his Excellency the Governor been drawn to the full sign.ifiaan.ee of the words, he would, as the representative of a constitutional Sovereign, have reserved the bill for the signification of his Majesty S pleasure.

CENSORSHIP IN THE SUPREME COURT.

And if any reader d'oubts the tendency of a limited censorship to expand in ™rac-. ticc, let him consider the recent history of the special form of censorship which has been conferred Iby statute upon the Judges of the Supreme Court of New Zealand. Their Honors were given specific power to forbid the publication of obscene or indecent evidence. In practice, certain of them in Wellington not long ago, dealing with a certain divorce suit, ordered the suppression, not only of the evidence, but even of the names of the parties, and the more fact that such proceedings were before the court. One Judge even continued this prohibition when he was deciding whether one of the parties should 1 be sent to gaol. (Mawhinney case, January 13, 1911.) More than that, in the Macdonald case, for the recovery of misappropriated trust moneys, a case in which the general welfare demanded the fullest publicity, a case in which the imprisonment of the defendant was in question, certain judges forbade the newspapers to publish anything whatever. If a tyrannous power —for censorship, however limited in scope, is of the very nature of tyranny —can grow to such an extreme when conferred upon those whose high calling is to maintain law and libertv, to what horrid bulk may it not swell in the hands of politicians who have openly taken it for their own selfish ends?