“The Building circular – an iron cage, glazed – a glass lantern about the size of Ranelagh – The Prisoners in their Cells, occupying the Circumference – The Officers, the Centre. By Blinds, and other contrivances, the Inspectors concealed from the observation of the Prisoners: hence the sentiment of a sort of invisible omnipresence. The whole circuit reviewable with little, or, if necessary, without any, change of place.”
Jeremy Bentham, Panopticon: The Inspection House (1791)
“Intellectual freedom is a deep-rooted tradition without which our characteristic western culture could only doubtfully exist. From that tradition many of our intellectuals are visibly turning away. They have accepted the principle that a book should be published or suppressed, praised or damned, not on its merits but according to political expediency… At any given moment there is an orthodoxy, a body of ideas which it is assumed that all right-thinking people will accept without question. It is not exactly forbidden to say this, that or the other, but it is ‘not done’ to say it, just as in mid Victorian times it was ‘not done’ to mention trousers in the presence of a lady. Anyone who challenges the prevailing orthodoxy finds himself silenced with surprising effectiveness. A genuinely unfashionable opinion is almost never given a fair hearing, either in the popular press or in the highbrow periodicals.”
George Orwell, Preface to Animal Farm (1945)
We pride ourselves on our democracy and rail against totalitarians, who govern by silencing dissent. But we also clamour for the cancellation of “misinformation”, “disinformation” and its evil child, “malinformation” (together, the “axis of information evil”).
There is a department in the office of the Prime Minister and Cabinet which enacts a campaign against the axis of information evil because “New Zealanders have told us they are concerned about the effects of disinformation and misinformation.”
The website adds: “A set of reports will be commissioned to monitor and analyse Aotearoa’s online information ecosystem, and the impacts of disinformation. These reports will be made publicly available, to help all New Zealanders [not ‘Aotearoans’] to better understand the challenges of disinformation in Aotearoa and to inform the other two workstreams,” defining two members of the axis of evil as “false or modified information knowingly and deliberately shared to cause harm or achieve a broader aim”, and “false or misleading, though not created or shared with the direct intention of causing harm”.
What the website does not say is who decides what is false or misleading information, and it does not define “harm”.
Harm is subjective
The notion of harm is a part of proposed reforms in this area in the UK, where Lord Sumption has pointed out that the notion of harm is subjective and that “The range of material covered is almost infinite, the only limitation being that it must be liable to cause ‘harm’ to some people. Unfortunately, that is not much of a limitation. Harm is defined in the bill in circular language of stratospheric vagueness.”
On the other hand, Karl Popper opined that if we allow unlimited tolerance, intolerance will use its freedom to attack tolerance and destroy it. But Popper did not want us to silence or censor the intolerant; he argued for responding with reasonable arguments (Karl Popper, Chapter 7 of The Open Society and Its Enemies, wherein he explores the “paradox of intolerance”). Notice, Popper did not say that we should respond with ‘true’ arguments.
Censorship and surveillance
When considering a form of State censorship which co-opts corporate media, including social media, to silence dissent or debate, the use of surveillance is an important factor to consider. Online publication is widespread and it is sometimes hard to pin down to a single publisher because it is ubiquitous.
The fight of the anointed against the axis of information evil involves not just suppressing the publication and dissemination of disapproved information, but it also involves leaving in place approved information. To sift the wheat from the chaff the censor must be able to identify authorship and have access to content.
Effective censorship is achievable in the modern world by using a digitally powered version of the panopticon. Michel Foucault described the effect of the panopticon as being “to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power. So, arrange things so the surveillance is permanent in its effects, even if it is discontinuous in its action…In view of this, Bentham laid down the principle that power should be visible and unverifiable.” (Michel Foucault, Discipline and Punish, The Birth of the Prison, Vintage Books English trans 1977, italics added).
Smartphones and similar electronic devices are today’s version of the panopticon. We entrust them with sensitive information. We use them to carry out day-to-day tasks such as shopping, emailing, communicating with family members, socialising on social media apps, for entertainment, for inducing sleep, for tracking our health and for taking care of our finances and business affairs. They are always with us, in our homes, our cars and workplaces.
The smartphone has a camera, a GPS microchip, and a microphone. The device occupies the ‘centre’, we the periphery.
Mobile phones were not designed for privacy and security. Turning them into a surveillance tool is easy for those who know how, potentially exposing users to constant surveillance. Mobile phones and smart devices can be infected by spyware, viruses and other kinds of malware, either because the user was tricked into installing malicious software or because someone was able to hack into it using a security flaw in the device.
Spy apps may be used by suspicious employers, jealous spouses, political or business rivals and State spy and law enforcement agencies for monitoring users’ online activity, speech and physical movements.
For the censor, these devices and a person’s online presence enable societal control by creating doubts in the minds of people about who may be watching their communications, online activities and posts. At a more sinister level, they allow for the easy collation of a dossier on an individual.
As a prelude to censorship, the censor manufactures a contrived consensus through the use of propaganda. In his book Propaganda, The Formation of Men’s Attitudes (Vintage Books, English trans 1965), Jacques Ellul observed that propaganda has become a general phenomenon in the modern world. Differences in political regimes do not matter, although differences in social status may. The propagandist has two primary concerns: effectiveness and the pursuit of partisan self-interest.
According to established tenets of propaganda, people must be convinced that certain approved information is true and right, and other information is wrong and harmful. It follows that emanations from the axis of information evil must be dressed up as being ‘without evidence’ and must be ‘fact-checked’; they may then be weighed in the balance by a ‘One Source of Truth’, or censor.
As such a regime of monitoring and control ramps up, it becomes more and more like the activities of a police state. People are encouraged to demand censorship, for ‘safety’, or to feel ‘safe’; disclosures about the supposed iniquity of those to be silenced are revealed publicly in order to justify further censorship (as an example, see the “Fire and Fury” hit piece by Stuff.
Fearing the consequences
While presented as a documentary, it lacked balance, included a creepy interview with Rebecca Kitteridge, was hyperbolic, failed to interview individuals who were targeted for harsh criticism and made disparaging claims against a successful practising attorney, who is also a member of the Kennedy clan and is a possible candidate for the Presidency of the United States.
This is where those New Zealanders who were said to have complained to government come in: they play the role of victims of the axis of information evil, who must be rescued.
Some of them may be counted on to perform heroically for the greater good by surfing the net, looking for evidence upon which they may take offence, to the applause of fellow travellers. Many of their targets cannot be bothered defending themselves or they fear the consequences of exercising their right of free expression, so they fall quiet. This is the stuff, not of ‘Fire and Fury’, but of Orwell’s Preface to Animal Farm.
There is a high social value of freedom of expression in an open society: it is a core value for the effective functioning of a democratic system of government. Without free political expression there can be no democracy. Robert Bork has observed that the problem is that what some people want to hear, some other people do not want to hear (or wish to actively banish), which necessitates a judgment about social value, entailing comparisons of competing values and requiring predictions about the effects of the speech and any ban (Robert Bork, Neutral Principles and Some First Amendment Problems in A Time to Speak, ISI Books, Delaware, 2008, p 213).
We must continuously remind ourselves of the war-time scholarship of escapees of fascism, such as Popper and Hayek, of the post-war message of the UN Charter and of the fundamental principles embodied in charters and bills of rights as applied by courts throughout the common law world.
We must affirm that freedom and civil rights matter, especially in the face of great power. People are entitled to know, with precision, the line between cancellation and censorship on the one hand, and where freedom reigns supreme on the other. However, it is a tactic of totalitarians to fudge this line, thereby maintaining control and giving rise to a panopticon effect.
Instead of enclosing everyone in a virtual panopticon, we should follow the US Supreme Court’s wartime judgment in Chaplinksy v New Hampshire, 315 U.S. 568, 571-2 (1942):
“There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting words’ – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
The experience of the recent pandemic conveys a clear warning. States which coerced less and valued individual autonomy did better. Where arrogant power was wielded, where fear was manipulated and speech and protest suppressed, the results were worse.
Notwithstanding lockdowns, vaccination coercion and the demeaning cancellation of critics, the virus spread anyway, trailing after it, as a result of misconceived policies, social division, the severe harming of the young, the compromising of the wider public health, economic destruction and the fall of coercive leaders and governments. The lesson, again, is this: in the long run, the open society works, coercion and censorship does not.
Robert Bork observed that it is a measure of our current culture that the law and law-makers uphold online displays of hardcore pornography and graphic violence in movies but simultaneously seek to confine or suppress the questioning of government policy on wide-ranging and important questions
Winston Peters recently said that Norman Kirk once told his ministers “your job is not to protect your department from the people, it is to protect the people from your department”. The upshot of this, and I suggest that Kirk would likely have agreed, is that the law should regulate the panopticon state, and its corporate partners or conscripts, rather than seek to further chill citizens’ speech.
Warren Pyke is an Auckland barrister.
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