THE TYRANNY AND THE PRESS.

Dominion, Volume 4, Issue 1239, 22 September 1911, Page 6

THE TYRANNY AND THE PRESS.

-4_— i WARD GOVERNMENT INDICTED.AS \N ENEMY:OF POPULAR ' LIBERT i". [By Jtotman.] ] i 111. ; MINISTERIAL CENSORSHIP . OF ,-■. - -. NEWS. : Libol Act, Clause 2-Some good pbinis-An unfair proviso-"if authorised by a Minister"-A limited censorship of political ■ news—Unconstitutional and contrary to common law -Milton-Star Chamber-A message to 'Napoleon—New Zealand judges as , censors—Secret cases. . The liberty of the, pre3s consists in liiyinc no previous restraints uDon pub- ■ lication, and not in freedom from cenBuro'or punishment for criminal mattor when published. Every iroeman has an undoubted right to lay what sentiments ho pleases before the public; to forbid thi3 is to destroy the freedom of the press; but if he publishes what is improper, mischievous,' or illegal, ne must take tho consequences of hisown temerity;-Blacl(stono'a Commentaries. Clause 2 of the Law 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 to deemed privileged in tho absenco of proof of malice: ''Privileged" means that the publication cannot be treated by the Law Courts as libellous.' '.'.., : - . . ■• Tho matters thus privileged are set out in subseciuent paragraohs. They comprise "fair anil accurate reiwrts of the procecd- ! ings" of (a) Parliament,' (b) tho Law Courts, (c) any inquiry held under the authority of the Governor-in-Council, (d) any local authority. 'Micro is ono other class of privileged matter to be mentioned presently, but I pauso hero to say that I do not know of any fault to find with Clause 2, (a) to Sir Joseph Ward, in moving the second Tcading of the Bill (November 28, 1910) said that (aX and (b) were already law, nnd were here inserted for clearness. Ho also stated that (d) was new. . ■ ■ For these provisions, which assert and extend the liberties of tho press in specified directions, tho Government deserves thanks. :It also deserves thanks for certain other clauses designed to protect the newspapers against unreasonable claims; for damages, but the Act falls short of tho English law in that it does not confer "privilege" on reports of public meetings. '■ , * "If Authorised by a Minister." To return to Clause 2. Paragraph (c) extends privilege, on tho terms' quoted above, to ], ', . ,A fair and accurate report of the . acts and proceedings of the Execu- ; tiye Government, or of any Depart- ■ m'ent or officer thereof, so far as the publication .of such report , 'is' authorised or requested by any Minister of the Crown. If tho above paragraph had stopped ehort at tho word "thereof," and had . not gone on to grant a; special power to Ministers, no objection could have been taken. Even as it stood; it seems to havo attracted no attentidn in the House and very little, outside. It .was iu tho Bill_ as introduced, and no attempt was made' to amend it. ' ; _ _ _; Nevertheless, it is wrong in principle and grossly unfair: I.do not say that jt has made!any .perceptible difference to . tho management of tho , newspapers. Its sinister importance, so far as can ' be seen at present, lies not so much in any direct Tesults as in its unconstitutional character and: its disregard of, the British "ideal of 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 fro','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 beforo this Act was passed. I am inclined to think it would, and at all events I am . pretty snro that no jury would convict in regard to such a Teport'. If 1 am right' in this, it clearly follows that Paragraph (e) instead of enlarging the Tights of the press. Teally tends* to restrict, them. And.in this connection it must be noted that Clause 11 of the new Act (as I havo already shown) provides niequs [whereby"a prosecutor may get his case tried by a stipendiaiy magistrate instead of by a judgo and jury. A stipendiary magistrate is: an. officer 'whocan bo either removed or rewarded by the Government of the day, and ho is therefore far more likely than a jury to attach importance to the presence or ab : senco 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' tho press. And such' restriction is in , the personal and political interests of tho Ministers. ,' ' What About Fair Play? But even if I am mistaken in supposing that fair, accurate, and unmalicions reports, of political events were, practically privileged before the new Act was pnssed, I can still -.show that Paragraph (o) is objectionable. The procetdings of Government are the actions of Ministers and Civil Servants. A full report of «ome particular proceeding. might show. either a Minister or, a Departmental officer, or both, in an unfavourable light. A narrative emanating from the Minister, though reasonably "fair and, accurate," might, by skilful omissions, by vagueness in ono part and clearness in another, .present the whole matter in such a way that tho Minister's reputation would be linhurt, and that of- the permanent, official would suffer. An equally fair, accurate, and skilful account of the circumstances might bo prepared by the official. The Minister's report would be privileged, and the official's- report would not.- Tho Minister' could libel tho official, but the official could not,libel the Minister. Tho official would also have to be much more tender than the Minister towards tho feelings of any private citizen whoso conduct might come into tho story. . If the people of New Zealand like to see that sort of provision.in tfluMr Statute Book, they cannot say they like to see fair play.

Ministers often have controversies with leading members of , the other : political party. Paragraph (e) gives the Minister in any such controversy a new advantage over the Oppositionist. In reporting a Bpecch 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 whpse official position entitles them to travelling expenses, secretarial and Departmental assistance, and easy access to all sorts of Tccords, could havo done without this addition to the inequality of the contest. It is as though a duellist, whose sword is already longer than his opponent's, should insist upon making it, by some jnenns or other, longer still. The New Press Censors. It should bo carefully borno in mind that Paragraph _(e) docs not directly forbid tho publication of unauthorised political reports. It simply mate them, tinder certain circumstances, ami as compared with the Ministerially-authorised reports, "risky." To that extent it pnts Ministers in tho, position of censors of I lift pi ess. It is, of course, a limited C'li-nr-hip. It applies only to political ik'h>. They havo not, as yet, assumed a:uy lonfiol over the publication of foreign iiiti-llj'-jcncc, religious teaching, or scientific information, if they supposed that their interests required such an oxtension of power, and that the public would submit, they would cprtainly reach out for it. The little hit of censorship which they have lately icquiral is tho thin end of a wedge. It i.i for the people to say whether the wedgenail bo driveu in or not. Back to the Star Chamber. The intent and tendency of paragraph (e) is to cause editors and reporters to rack audience of Sir Joseph Ward, Sir John I'indlny, or tho Hon.'B. M'Konwe, or ono of their colleagues, and, humbly placing tho sheets of "copy" before the Minister,' beg him of' his clemency to spare a few moments for the perusal and r ; to write Ws "Imjjrimatur" on every page.

To that particular kind of humiliation Englishmen havo not lind to .submit themselves since they decided that, constitutional liberty under William the Dutchman was bettor than shackles and (lie Stuarts.

; It wns a free man's indignation against the censorship of the press that caused tho co!il and heavy prosb of Milton to fiso into the splendid eloquence o.f "Areopagitira."'"lt'wns fit, ho thought, thai the censor's word of permission be Latinised to "Imprimatur"— "for that our Baalish, tho language of men ever famous and foremost'in tho achievements of liberty, will not easily find servile letters enow to spell such a dictatory presumption Englished." Milton traced the. history of tho censorship of tho press from the Inquisition, through tho Star Chamber, to the LoDg Parliament, and .showed it in its real and hideous character— demoralising both to tho writer and tho official, and for any worthy purpose altogether futile. "If it came to- suppressing," he declared "there is not aught that is more likely to bo suppressed than truth itself."

Freedom and Her Martyrs, Another fifty years' experience of. censorship proved that Milton was in the right, and the Parliament of William 111 had tho good sense to voto the repeal of tho Act, which had carried forward tho provisions of the Star Chamber's decree against unlicensed printing. That vote, of 1095, was the constitutional beginning of tho liberty of the British press. It almost coincided, in time, with .the settlement of our modern form of constitutional freedom itself, and the two havo 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 havo gone cheerfully to gaol, to tho pillory, to mutilation, to_ exile, and even to the gallows. Vet in all the struggles of the two hundred years that have passed sinco William 111 gave' his assent to the repeal of tho Licensing Act, there lias been no. State censorship" of tho English press. The Ministers of Queen Anne and the Georges, in nil 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 semblance of legal obligation to ask their leave before he might place before the eyes of his fellow-citizens whatever thought or fact ho wished. Monstrous Judicial Doctrine. I grant that the Ward' Government's attempt at establishing a censorship does not go the length of tho doctrine laid down by Chief Justice Kcroggs and his brethren in the reign of Charles 11. All tho judges, being met together at' the command of that King, gave it as their unanimous opinion that irrespective of tho 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 tho Crown. More fhan one constitutional historian has characterised this as a ''monstrous opinion." Maeaulay accounts for it by saying that the judges were "removable at the royal pleasure, and wore eager on all occasions to: exalt the royal prerogative." Tho Crown seems never to havo acted Upon the doctrine thus manufactured for it; and Chief Justice Camden in 'the next century wiped it out. I am inclined to think'that his judgment in Entick v. Carrington makes not only the .opinion of hcroggs.and his fellows, but also the Ward Government's rudimentary censorship contrary to the common law.. And here wo notico 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 re- ■ strict any. privilege existing at common law. ■ ' Query: Docs this make the censorship pr>rtion\ of paragraph (e) of no legal effect? England's Message, to Napoleon. At any rate, I feel'sure that, even if if is not contrary to tho common law, it is contrary to the English Constitution. In 1802 Napoleon Bonaparte, then First Consul of Fraace, and at peace with England, urgently requested the Government of (; Georgo Hi to stop the publication in England of matter mimical to himself, Tho British Government answered hitri thus: . • ■'■

His Majesty neither can nor will, in consequence of any representation or menace from a .foreign Power, make any concession which may be in-tho smallest degree dangerous to the liberty of tho press, as secured by the constitution of this country. Tins lib-

erty is justly dear to every British , subject: thp constitution admits of no previous restraints .unon publication <>f any description, blifc there exist judicatures wholly independent of.tho Executive, capable of taking cognisance of such publications as the law deems to be criminal, and which are bound to inflict the punishment, the delinquents' niay deserve.' :■'•■''" <( It seems to mo that the declaration that "the constitution admits of no previous restraints upon publication of any description" is wide enongh • to show, that Sir Joseph Ward's provision for witholding privilege from unlicensed political news items is contrary to . the English 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 significance of the worth, he would, as the represontativo of a constitutional Sovereign, havo reserved the Bill for the signifieatjon of his Majesty's pleasure. ■ Censorship in the Supreme Court. . And if any reader doubts, the tendency of a limited censorship to expand in practice, let him consider the recent histqrv of the special form of censorship which has been conferred by statute upon the Judges of the Supreme Court of New Zealand. Their Honours were given specific power to forbid tho 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 tho evidence, but even of the names of the parties-, and the mere fact that such proceedings were before the Court. One ,Judge even continued this prohibition when ho was deciding whether one of the parties should bo sent to gaol. (Mewhinney case, January 13, 1911). More than that, in the._ Macdonald case, for the recovery of misappropriated trust moneys, a caso in which the general welfare demanded tho fullest 'publicity, a case in which tho imprisonment of the defendant was in question, certain Judges forbade tho nowspapers to publish anything whatever.

If a t.yrauuous 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 libto what horrid bulk , may it not swell in the hands of politicians who havo openly taken if for their own selfish ends?