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Freedom of speech, if it’s me that’s speaking

The Climate Voter initiative wants to think that electoral law doesn’t apply to their campaign. They’re wrong.

There’s been enough commentary on why the six groups comprising the Climate Voter initiative are obviously wrong, so I won’t rehash the analysis here. In a nutshell, Climate Voter disagrees with the Electoral Commission’s opinion that, because their campaign is electoral advertising, they must comply with the relevant Electoral Act provisions. They seem to think being “non-partisan” makes them exempt, but as many have pointed out, that is both dubious and irrelevant.

I don’t have anything to add to those several commentators, except that this feeds into a more general obsession of mine: cases where people claim to support principles “above” political persuasion, like freedom of speech, but in reality only do so when it’s convenient for their cause. I called the anti-asset sales campaign out on this late last year. Their refrain was about electoral mandates. Conveniently, these parties (Labour and the Greens) had already shown their willingness to ignore popular opinion in the smacking referendum in 2009. Journalists had also pressed them on the inconsistency, so there was a wealth of backpedalling comments by them ready to be pounced on.

Matthew Bruenig has commented on this general topic in the American context with respect to free speech and market coercion of opinion. I’m tempted to include sovereignty arguments in the mix too. It’s not strictly a procedural argument like free speech and electoral mandate, but it shares some characteristics. It’s about power, in this case what power a country should “give up” or retain. It comes up often with TPP opponents in New Zealand, who conveniently forget about human rights treaties we sign up to and the loss of sovereignty there. People who make sovereignty arguments do so because they sound generic, but it only seems to matter when they disagree substantively with a policy.

I try not to accuse groups of inconsistencies before I can point to some specific demonstration of it. But I would bet anything that, if there was a pro-business group that ran a “non-partisan”, “issue-based” campaign, Climate Voter supporters would be outraged if they could sidestep third-party electoral advertising laws. On Pundit, Andrew Geddis compares this case to the Exclusive Brethren case that motivated these laws in the first place. Accordingly, I’m cynical about Climate Voter’s concerns about “wider issues” of freedom of speech and “civil society groups”. Of course, they could just say now that they’d be happy for a right-wing (say, free trade) campaign to do the same as them. To my knowledge, despite the point being made by several commentators, they haven’t done so.

Rather, their reaction to the reactions is to claim that “there’s no clear consensus… a real lack of clarity exists”, “it could have huge implications” (relevance unclear) and “it’s a complex issue” (it’s really not). This is odd. Only one of the six commentaries Greenpeace cites argued in their favour. Two who are sympathetic to climate change issues are unequivocal, including Professor Geddis, who “just can’t, for the life of me, see how what the Climate Voters coalition are doing falls anywhere but smack in the middle” of the definition of electoral advertising. Greenpeace and Generation Zero are correct that the decision affects other groups, but that’s not an argument. If there is any lack of legal clarity, they are shy on how it arises.

I should say, I’m glad that at least some commentary pointing out that Climate Voter is wrong is from left-wing commentators (other than law professors) who support their campaign. This makes me happy not because they’re left-wing, but because it shows there are people who really will uphold value-agnostic principles even when their own side is affected. I wish there were more people like this.

To be honest, the point of this post is just to record it in a collection of cases where stances on procedural matters are dependent on substantive opinions. I normally don’t bother blogging if what I want to say’s already been said, but you’ll forgive the exception here.

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3 Comments Post a comment
  1. I am glad you agree with the Electoral Commission, and not I. Their opinion, in my view, is in the same vein as has flowed from them in the last few years.
    The Climate Change Initiative is not a Political Party, and it has no intent to promote voting for any particular party. It seeks to inform voters about the climate change policies on of political parties. Further, they may discover that two or three parties have better positions on climate change than others do and ”validate” a range of parties. The legislation states that electoral advertising seeks to encourage voting for “a party”, singular.
    Thats my thinking anyway. My intuitiontlls me that any group who wishes to push a particular issue at election time, and validate or invalidate parties to their audience, are perfectly entitled to, without themselves being branded as bonefide parties. I hope the court agrees, and thinks outside of the hide-bound Electoral Commission. I have a hunch they will.

    .

    24 July 2014

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