Patch ban brings a shift in perception
If the Government’s moves to ban gang patches in public have shown up one striking change in the political environment in recent years, it is the drastically lowered status of the right of freedom of expression in the public mind and, especially, on the political left.
Once seen as the human right without which others had no value, freedom of expression has taken a drubbing at the hands of online progressives especially, portraying “free speech” as at best a niceto-have and at worst merely another prop of the powerful, a fiction designed to stop majorities from being held to account for their thoughts and actions.
Labour’s police spokesperson, Ginny Andersen, dismissively referred to gang patch bans as a requirement for law enforcement to act as “fashion police”. After all, with its efforts to advance expanded hate speech laws for much of its two terms in power, Labour has little to say about the supremacy of free speech.
Instead, it took the view that policing speech was more about saying the right or wrong things – “fashion police” indeed, but for words.
Instead, it is left to the conservative National Party and its coalition partners, and the gangs themselves, to care about the importance of symbols and speech.
When a blanket public gang patch ban was last implemented, as a local bylaw in Whanganui, it was undone by constitutional protections for freedom of expression in the Bill of Rights Act, with the courts holding that the prohibition was wider than Parliament had envisaged the council would make. The bylaw was seen by progressives, as well as many libertarians, as draconian and oppressive.
The current left, apparently, sees it as merely trivial.
Another group that still cares, since Whanganui, however, are the courts, which have become more active about second-guessing Parliament’s compliance with the Bill of Rights Act.
The courts first allowed themselves the jurisdiction to make declarations about whether Parliament’s legislation (rather than just decisions made under it) was inconsistent with the Bill of Rights Act in the case of prisoner voting bans. The previous Labour government formalised this process, by requiring Parliament to “respond” to the court’s findings.
Gangs have never been freedom of speech absolutists. When Alibaba and TradeMe have periodically offered gangbranded knock-offs, such as Mongrel Mob t-shirts, the police and gangs have not issued the public stern warnings about copyright infringement, but instead cautions about public beatings and the imminent personal danger wearing such copies could put a non-gang member in.
In assessing whether the right to freedom of expression is relevant, the courts will look at whether words, clothing or actions are expressing something, that is whether it has communicative value. There can be no doubt that gang patches are intended to communicate a swathe of ideas, including group belonging, loyalty, and the achievement of certain (intentionally vaguely described) initiation rituals. But they express something more jarring and visceral, of course, of which these other signals merely serve as individual, intertwined strands.
The clue comes from the sometimes sincere, often facetious, advice of ban opponents who say that patches let you know who to avoid.
Incidents such as the brutal assault of a New Plymouth man, whose favourite sweater saw him mistaken for a member of a rival gang, show that if gang regalia is seen as communicating anything at all, even by its wearers, it is overwhelmingly the threat of potential or real violence.
There is therefore a real question about whether this very well understood meaning is speech worth protecting, any more than verbal threats of harm is.
Many people might think this is exactly the kind of limitation on free expression that is justifiable in a free and democratic society.
Many might think that Parliament, as the democratically elected House of Representatives, might be better placed than judges drawn from a very limited professional and social pool to determine what is acceptable in a free and democratic society.
That is not the route the courts have taken, however, in interpreting that Act. So the courts can probably be relied on to declare a gang insignia ban a breach of freedom of expression if asked.
For this reason, Attorney-General Judith Collins will almost certainly pre-empt any litigation on the law by notifying Parliament that the laws appear to be inconsistent with the Bill of Rights Act, under the statutory responsibility of the role in section 7 of the Bill of Rights Act. Thus notified, ministers Paul Goldsmith and Mark Mitchell can stand tall and say that they are not too concerned about a bill of gang members’ rights, and the coalition will pass the law.
It will also mean that if Parliament must explain any inconsistency, the response can be along the lines, of well, duh. And then continue on to say that Parliament breached the right to freedom of expression for gangs not because it doesn’t matter, but because it does.