David Harvey: Execution

Banning a Livestream?

Introduction

The implementation of the death penalty in the United States has attracted some publicity of late.

The botched execution of Christa Pike in Tennessee has highlighted issues of the inordinate delays in executions, the methodology of state sanctioned murder and how it can go so badly wrong.

Even more concerning is the aftermath. Ms Pike is confined to a hospital bed and yet she is handcuffed to it – some sort of symbolic representation by the State that she is still a prisoner perhaps. And there is discussion about what should happen to her should she recover from the ordeal of the execution process. Should she be exposed to the process yet again?

There used to be a view that if a condemned person survived an execution there would be no repetition. The breaking of the rope in a hanging and the survival of the condemned person was seen as a message from the Almighty that could not be ignored. But some of the ways of the law surrounding the death penalty in the United States and its complex depths are unfathomable.

There was a certain ritual that accompanied Christa Pike’s execution. The execution chamber with its cruciform table well provisioned with thick leather straps to secure the condemned is concealed from view for part of the process. But the chamber itself is separated from a viewing room and at the appropriate moment the curtains separating the two are pulled aside.

In the viewing room are witnesses to the execution and those witnesses are limited. Some are present in an official capacity to verify the process. Others are directly connected with the case. It is not a fully private process yet neither is it a public one.

Indeed public executions in most Western countries have not taken place for decades. The festivities that accompanied a hanging at Tyburn in the eighteenth century are long gone. And many countries – New Zealand among them – abolished the death penalty. The last capital execution in New Zealand took place on 18 February 1957, when Walter James Bolton was hanged at Mount Eden Prison in Auckland. He was convicted of murdering his wife by poison.

It was announced on Friday 9 October that Nidal Hassan, who murdered 13 people at a military establishment in Texas, would be executed by firing squad. Given that the offending took place at a military establishment and that at the time Hassan was subject to military discipline the place of execution is not so unusual. The methodology – firing squad - has not been employed since 1945 by the US.

A Public Execution - Livestreamed

But to make the matter more unusual was the announcement that the execution would be a public one – indeed a very public one in that it would be livestreamed presumably using an internet platform.

To interpolate at this point. I am no supporter of the death penalty and I oppose it. I cannot support the treatment of Christa Pike nor the intended treatment of Nidal Hassan. There are other remedies available at law by which society may condemn their crimes. But this is not an article about the rights and wrongs of the death penalty.

It is about a response to a proposal.

When it was announced that it was intended that execution of Mr. Hassan would be livestreamed the immediate response – especially on the part of the media – was to consider how it might be banned.

That demonstrates a rather peculiar inversion of an approach to the problem. The first question that should be addressed is whether or not the execution should be public. The inquiry should then be that if it was to be so, should it be livestreamed. And if the answer to that question was in the affirmative, what choices would individuals have. And the obvious answer to that is that the United States is not forcing you to watch.

If this extraordinary event is to take place – if the US is going to emulate Iran or ISIS in broadcasting an execution – there is no compulsion to view the process. There are countless other ways that one can use one’s time rather than watch someone being put to death in real time.

Ban It

Yet the almost instinctive response in New Zealand is “how do we ban this?”

Part of this response may be a form of PTSD arising from the 2019 Mosque Massacres in Christchurch. The then Censor David Shanks, on his own motion and once the livestream was taking place, made a decision that the content was objectionable thus making the possession and distribution of it an offence. In addition access to objectionable content was blocked in many cases by the Department of Internal Affairs.

Banning something seems to be a developing New Zealand response. We have seen it as the response to issues arising around young people and social media. Ban it! So should it be surprising that this is the knee-jerk response t the execution live-stream? Probably not. Concerning, nevertheless.

To ban it seems to be a simple solution.

But the “ban it” approach ignores some fundamental misunderstandings of the nature of censorship – at least as it is carried out pursuant to the Films, Videos and Publications Classification Act.

For content to be designated objectionable it has to go through a statutory process and satisfy certain statutory tests. The initiation of those enquiries may be on the motion of the Censor or, mor usually, by way of complaint from a member of the public.

But the problem is this. The content must be in existence.

Legal Realities

The following report from the Radio NZ Website explains the problem.

“One of the first countries to react was New Zealand, where censorship authorities highlighted difficulties in restricting access to such material.

“The Classification Office cannot classify a livestream event as it is taking place, and we, nor any other body, has the authority to block access to a livestream event,” a spokesperson for New Zealand’s Classification Office said in a statement.

“The threshold for banning content under New Zealand law is high and requires that we balance freedom of expression with the likelihood of harm,” New Zealand Chief Censor Caroline Flora said.

“Distressing as content may be, it is not always unlawful.”

That position is entirely correct.

Of course there may be calls to ban the livestream anyway. That has some problems. Do you ban content because you may disapprove of it even before you have seen the content.

And in addition are you assuming, in the absence of evidence, that the content is going to be contrary to law and would fulfil the tests of the FVPC Act.

Or ultimately do you say – well its wrong so ban it anyway. That proposition ignores the fact that one does not ban content on a whim or simply because it may not conform to one’s moral compass. Restricting access to content or banning it requires the fulfilment of legal tests.

But arguments about banning content before it has been released engages another complex issue – that of prior restraint.

Prior Restraint

Prior restraint is the practice of preventing the publication or dissemination of information, opinions or other content before it has been made public. This is usually achieved through a court order, censorship regime or administrative prohibition. It differs from imposing legal liability after publication, such as an action for defamation, a takedown application pursant to the Harmful Digital Communications Act or prosecution for publishing unlawful material.

An example or prior restraint may be found in the case of Justice Cull’s imposition of an injunction on publication of details and circumstances surrounding the Phillips children following the death of their father Tom Phillips and their recovery. A problematic issue surrounding this example of prior restraint is that the Judge did not articulate detailed reasons for her decision.

Prior restraint is particularly problematic. It strikes at the heart of freedom of expression. Rather than allowing information to enter the public domain and subsequently determining whether its publication was unlawful afterwards, it prevents the information from being communicated at all thus depriving a potential audience of making its own judgment.

Prior restraint suppresses expression before its legality has necessarily been established. It may prevent the public from receiving information of legitimate interest. It encourages self-censorship through fear of legal consequences – Nicky Hager’s unwillingness to alert his targets of his interest in them and his reluctance to engage in self-censorship provides an example. And prior restraint places considerable power in the hands of courts or state authorities to determine what the public may know.

The fundamental argument is that freedom of expression should be the rule and any restrictions upon it should be the exception. Prior restraint reverses that presumption by making publication dependent upon permission or the absence of prohibition.

Thus, prior restraint substitutes preventive censorship for subsequent legal accountability. It risks suppressing not merely unlawful expression but lawful, valuable and potentially important contributions to public debate.

This does not mean that prior restraint is impossible. It is highly likely that individuals or groups will bring an application before the Courts for an injunction to prevent access to the livestream content. Necessarily those applications will have to dispose of the existing FVPC Act regime and if there is an application pursuant to the Harmful Digital Communications Act, that harm has been suffered (rather than anticipated). Both pieces of legislation anticipate post-publication restrictions or remedies rather than prior restraint.

Conclusion

Much will depend upon the content. In the meantime we will have to endure the moralistic tone of commentators like Professor Al Gillespie who have described the proposition as “barbaric”. The use of emotive language, coupled with a value judgement , may well be good for sound bites but it is no substitute for rational argument of which Professor Gillespie is quite capable.

When the content is available I have no doubt that the Classification Office will study it carefully and make a decision. If they classify the content as objectionable it means that it can be blocked and its possession or distribution will amount to an offence. It does not mean that it will be totally unavailable. The Internet will see to that. But it does mean that if a person downloads it and watches it and they are caught (and there are ways an means of doing that) they will be held accountable in Court.

It may well be that the livestreamed execution will not happen. Doubt has already been cast upon that by Vice-President J D Vance who has said that if it is he will not be watching it.

For me this is all academic. I won’t watch the live stream. And after all that is really what the argument should be about and indeed about any internet or broadcast or online or even printed content. No one is forcing you to watch, listen or read.

And if something you don’t like strays across your consciousness, close the book, change the channel or streamer or hit the off switch.

Everyone has the power to be their own censor.

David Harvey is a former District Court Judge and Mastermind champion, as well as an award winning writer who blogs at the substack site A Halflings View - Where this article was sourced