Political Speech and Sedition
11 and 12 Yearbook of New Zealand Jurisprudence 36, 2009
17 Pages Posted: 28 Nov 2012 Last revised: 23 Feb 2015
Date Written: 2009
This article considers the law of sedition, tracing its history through the origins and evolution of such laws in England. It discusses the philosophy behind freedom of expression, identifying the four commonly held justifications for the principle. It contemplates the tradition of free speech in the United States and the relationship between First Amendment free speech, defamation, and sedition, as illustrated in the case New York Times v Sullivan. It argues that sedition (in the form of defamation against the government) strikes at the very heart of democracy and that political freedom ends when government can use its powers and its courts to silence its critics.
The article then turns to the laws of sedition and criminal libel in New Zealand and the history of reform. The law of sedition, inherited in New Zealand through British common law and first codified in the Criminal Code of 1893, was the subject of unsuccessful reform attempts in 1989. Sedition was potentially an instrument of political suppression, generally used during times of political or civil unrest or war. The article discusses 19th and early 20th century cases in which sedition was charged, from Parihaka and other Maori arrests to labour strikes and opposition to conscription. While sedition prosecutions were so rare in the second half of the 20th century that it appeared the crime had fallen into disuse, three final cases of sedition rose in quick succession in 2006 and 2007.
In considering reform, the Law Commission concluded that the State should be entitled to punish statements or conspiracies advocating imminent violence against the State, or the community, or individuals. However it found that seditious offences had been used both in New Zealand and overseas to prosecute and punish speech that might be inflammatory, vehement and unreasonable, but where there was no proved intention to urge immediate violence. It considered that there were other and more appropriate criminal offences which could be used to prosecute offending behaviour but which did not carry the risk of abuse or the tainted history of seditious offences. It also made clear that seditious offences were not an appropriate response to terrorism and that other methods of dealing with such conduct, which did not infringe the principle of freedom of expression, should be used.
Keywords: sedition, freedom of expression, freedom of speech, libel, criminal libel, reform, law reform, defamation
JEL Classification: K19
Suggested Citation: Suggested Citation