Free Speech, Gag Orders And Accountability

I’m going to tackle this in more depth a little later. But the other day I was shown (Hat-tip Izen) the existence of something called super-injunctions, of which prior till now I’d been blissfully ignorant. It’s important enough to call you all round today for a discussion on it.

We’ve all been aware of gag orders in the past. Basically, the court imposes an injunction on reporting or disseminating material on something or other. There can be some quite legitimate reasons for a court to do so. National security, intelligence and military matters in which the public release of certain information poses a real risk to the lives of soldiers and others is a good example. Courts often impose gag orders surrounding criminal cases of a sexual nature, where there is a reasonable supposition that the accused, even if acquitted, will suffer permanent damage to his or her reputation, or the reputations of other innocent parties are similarly imperilled.

The press have always resisted such orders, and while generally complying, have always sought to let it be known there was something they were being compelled to comply with—a point to which I’ll be returning in a moment. In 1944, Australia’s wartime Chief Censor, Garrett Bonney, with the support of Information Minister Arthur Calwell (later leader of the parliamentary Labor Party) suppressed the reporting of widespread coal strikes, which were being largely driven by communist elements within the union movement and which threatened Australia’s war effort. Newspapers complied but defied suppression requirements by printing large blank spaces on the front page. Calwell initially responded with force, using the police to physically prevent distribution of newspapers. The Australian public responded with overwhelming support of the press, forming long queues to buy newspapers and subvert Calwell’s orders. My mother, a teenager at the time, recalls the censorship surrounding the Japanese bombing of Darwin in February 1942, which she did not read about until the end of the war.

1944: Sydneysiders defy government orders suppressing newspapers

In Britain in 1963, Special Branch and MI5 officers became aware that the Macmillan government’s Secretary of State for War, John Profumo, was engaging in a clandestine affair with callgirl Christine Keeler, whose simultaneous paramours included Yevgeni Ivanov, a naval attaché with the Soviet embassy in London. While the affair became common knowledge on Fleet Street, reporting of the issue at the time was almost non-existant, beyond a few coy juxtapositions of articles covering unrelated issues concerning the principal actors.

A so-called super-injunction is something else again. In Britain this year, courts have issued injunctions, not only suppressing certain facts or details of court cases, but of even reporting the fact that an injunction exists at all. The best-known example concerned the case of oil trading company Trafigura, and a toxic chemical spill off Côte d’Ivoire. The defendant obtained an injunction, not only suppressing an internal company report concerning the spill that had found its way onto the internet, but of even reporting the fact of the injunction. Outraged citizens went to their Members of Parliament, who quite correctly raised the issue in the Commons under parliamentary privilege. It is a centuries-old convention that parliamentary proceedings may be reported freely and without hinderence; thus the super-injunction was subverted. To head off an inevitable showdown between contempt of court and contempt of parliament, the court hurriedly varied its injunction to permit reportage of itself.

This has not stopped the totalitarian-minded, who have countered with the concept of a hyper-injunction. Those of you who at this point sense that I am struggling to contain my Libertarian outrage, you are quite correct, and bear with me. The mere term hyper-injunction triggers my own gag reflex—pun most definitely intended. For those of you who, like me, were unaware of the term, a hyper-injunction is a move on the part of a court seeking to circumvent parliamentary privilege over-riding a super-injunction, as happened in the Trafigura case. A hyper-injunction not only prevents reporting of the fact of the injunction itself, as in super-injunctions, but orders the injunction may not be made known to, or discussed with, journalists, lawyers, and—above all—Members of Parliament.

I am not making this up. We’re getting into secret trials territory here. This is real, exists today in the legal system of the United Kingdom, and unless enough of us get outraged, will probably infect the legal systems of your country and mine in the not-too-distant future. That a court of law in a Western democracy could arrogate to itself the power to prevent a citizen discussing anything with his elected representative in parliament is beyond appalling. Gob-smacked doesn’t even come close. Ladies and gentlemen, this issue strikes at the very heart of the concept of a liberal society. Wars have been fought, revolutions raised, over far less than this.

I’m so angry about this right now that I’m going to preempt an article I’m currently writing about codifying rights. It is my opinion that the only way a Bill, or Charter of Rights can exist, such that a court, referring to it, may declare a law of parliament it deems in its breach, while still locating ultimate power in a popular mandate, is if we move to the system that has existed in some American states: an elected judiciary, accountable directly to the peoplea concept itself fraught with peril. If we are to permit our courts to have this level of power, then it is no good having judges whom we cannot sack, appointed directly or indirectly by politicians, who may be long gone by the time those judges exercise power to which we object. So too with this insane concept of super-injunctions and hyper-injunctions. It’s that simple.

I’ll tell you something else: I strongly suspect that, in this matter, we will find common cause with many of those with whom we may have locked horns on environmental and other subjects. This truly is an issue that transcends any left-right divide. It is Liberty versus Authority—pure and simple.

I’ll leave you with that thought. I’m going outside with my axes, for I feel the need to work off some steam. But I’ll also leave you with this amusing snippet from the world of free speech:

On May 10, WikiLeaks founder and whistle-blowing head honcho Julian Assange was awarded the Sydney Peace Foundation’s gold medal for his “exceptional courage in pursuit of human rights”.

A few days later a newly leaked internal contract revealed that Assange requires employees to sign a pledge not to disclose any of the organisation’s classified information. Failure to comply, says the contract, will lead to a pound stg. 12 million ($18.5m) fine.

I’ll check in again a little later.



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52 Responses to Free Speech, Gag Orders And Accountability

  1. Amanda says:

    Ozboy wrote: ‘Ladies and gentlemen, this issue strikes at the very heart of the concept of a liberal society’.

    It does, indeed, Oz, and that’s why America’s Founders (yes, it’s capitalized because we feel they deserve it) worked so hard to ensure the separation of powers, and the checks and balances of governmental power resulting therefrom.

    Parliament must not be abridged by the judiciary! Just as we would not tolerate Parliament attempting to boss around the judiciary. But then again, it is much clearer when you have a written constitution and the supreme court of your nation can say: the legislature has enacted a law, or the president has contravened, this particular article in this written constitution.

    An activist judiciary — and hyperactive tort lawyers, nearly all of them Leftists — have long been a problem in the United States. The important fact is that we see what we’re doing, we talk about it publicly, and we make a stink. Leftists are not Citizens Class A in the United States, while conservatives, libertarians, or still-learnings are Citizens Class B. Nope. That’s not how it works.

    Thanks for bringing this to our attention, Oz. Looking forward to reading what others have to say.

  2. Amanda says:

    My sentence involved leg. and pres. wasn’t grammatically/syntactically sound, but you know what I mean….

  3. Amanda says:

    That correction didn’t come out right, either. Oh bugger :^)

  4. Kitler says:

    Ozboy if I remember rightly the Japanese also landed forces in northern Australia where they quickly succumbed to starvation the various deadly indigenous lifeforms and the local forces on the ground containing quite a few aborigines where they quickly mopped them up.
    As for hyper injunctions you will see a show down between Parliament and the courts as Parliament jealously guards it’s rights, the legal system will find few supporters outside of the legal system and those inclined to totalitarianism. The sad fact is Cameron is such a waste of oxygen he may let this issue slide.
    I no longer get angry as there is little I can do we are looking at another world war heading our way. Our betters have screwed the pooch and the only way out of the current mess is mass destruction and millions of deaths to reset the clock.

  5. Dr. Dave says:

    Hmmm…we don’t seem to have this problem in the US. First Amendment, separation of powers, checks and balances and all that. I can’t think of any instance where a court can act in secret. We have a somewhat different problem. That is, what our media chooses to report. Rather big and important stories are utterly disregarded and left unreported by our ultra-left mainstream media. This isn’t necessarily new, but today with the alternative media these stories get out and the lack of media attention to them is itself receiving attention. Just today, for instance, it was reported in the Telegraph that Obama, after making a short visit to Arlington National Cemetery yesterday (Memorial Day) went on to play the 70th round of golf he has played since taking office. This little tidbit was utterly ignored by the entire American media (including FOX). Talk radio picked up on the story in the British press today and repeated it often.

    For the most part the British and Canadian press are far more reliable outlets for reportage than our own media. Our media has an agenda. For decades they have controlled what the public knew. Today the “dead tree” newspapers are going out of business left and right. About 25 years ago AM radio was all but dead. It had been relegated to local news, elevator music and farm commodity reports. Then along comes Rush Limbaugh who virtually reinvents syndicated talk radio. Today the AM bands and internet streaming make conservative ideology available nearly around the clock, coast to coast. It drives the Left butthole crazy. FOX news came into being in the mid-90s and has grown to the point that their viewership eclipses all their cable competitors combined. The big three “over air” broadcasters (ABC, CBS, NBC) no longer define what the public hears. The internet a is deadly threat to our socialist Left. Increasingly more and more of the population turns to the internet for news and commentary. It cannot be controlled and it has become a source of constant consternation for left-wing statist control freaks.

    Every year there are literally dozens of thoroughly outrageous environmental cases decided by ultra-liberal, extremely partisan Federal courts of which the public remain blissfully unaware. It’s not because the courts even try to keep it a secret…it’s because of the complicity of our media not to tell.

    I’m going to argue in the near future that your Constitutional arrangements, while indeed affording you protection against secret trials, raise an analogous problem of judicial activism. It is why your infrequent Supreme Court appointments are so highly-charged and political. I feel your system and the Westminster system are two slightly different solutions to the same trade-off – Oz

  6. fenbeagle says:

    Having consulted my lawyer, I feel free to say…

    …..And another thing….

    ….How do you make a ‘torch’ anyway? And will a lawn rake do?…. I haven’t got a pitch fork.

    Some angry barking will do just fine – Oz

  7. Kitler says:

    fenbeagle you could bring your lawn mower in place of a scythe.

  8. Dr. Dave says:

    Jeepers, Ozboy!

    Again, I’m always astounded at your understanding of US politics. Judicial activism is rife in American courts. Mostly Federal courts. The sticky part about our Supreme Court is that appointments are for life. The President nominates, the Senate must confirm the appointment. The original intent was to make the Supreme Court apolitical. Well…that didn’t happen. Democrat Presidents nominate the most liberal candidate they think can get through the Senate hearings. Likewise, Republican Presidents tend to nominate the most conservative candidates. For the most part the Democrats are far more effective at seating a raving left-wing liberal.

    Justice David Souter was nominated by George H.W. Bush. Shortly after his appointment he turned out to be a damn liberal. Obama replaced him with an even more flaming liberal. Republicans on the Senate Judiciary Committee approach the process like it was a high school debate. The Democrats go at it like a knife fight.

    Except for the rare anomalies like Souter, the liberal appointed justices will always find along the liberal party line (law and precedent be damned) and the conservative appointed justices will find along the conservative (and usually constitutional) party line. The trend over the last few decades is for Presidents to nominate the youngest possible candidate irrespective of qualifications or the availability of better candidates. These are lifetime appointments that will last long after even a two term President. Liberal justices will only retire during the tenure of a liberal President and the converse is true for conservatives. Death is the wild card, yet very few ever die in office.

    Most cases decided by the Supreme Court are incredibly arcane and boring. In these cases the justices, both liberal and conservative, usually exercise sufficient judicial objectivity. The big, significant cases are the scary ones. Right now we have 4 good conservative justices who are constitutionalists and 4 whacked out socialists…and Justice Kennedy. Kennedy is impossible to predict. Quite a lot of power for one man, don’t you think?

  9. Kitler says:

    DrDave which is why a member of the supreme court should retire at 65 or on the federal circuit. Come to think of it the upper age limit of politicians should be the same.
    why are they special? Why should a 90 year old man or woman stuck in the past of 70 years ago be allowed to make our policy.

  10. Dr. Dave says:


    I have to add this one last point. Our Supreme Court was created by our Founders to interpret the constitution relative to challenges to legislation or previous findings by lower courts. This actually worked quite well up to the Wilson years. At that time much greater emphasis was placed on the doctrine of stare decsis, or legal precedent. Gradually courts didn’t decide cases so much in terms of a literal interpretation of the constitution but rather in terms of legal precedent.

    This allowed Progressives to gradually whittle away at the Constitution. Further, even Supreme Court Justices were loathe to buck precedent lest their own decisions be overturned by a subsequent court.

    There is no way in hell that Roe v. Wade will ever be overturned in the US. It was the most ridiculous ruling ever made by the SCOTUS. Justice Blackmun fabricated a “right” to privacy out of whole cloth and somehow out of this denied the states their right to regulate abortion. All it took was four other shithead liberal justices to vote with him to establish a “right” that today 61% of the American public opposes. But even if we ever had 6 conservative justices on the SCOTUS I doubt they would ever overturn it as specious and faulty as the legal precedent may be.

    I’m writing the abortion thread as we speak. It might not be exactly what you are expecting – Oz

  11. Luton Ian says:

    Hi Oz,

    I was showing your line of three happy families cards in The Firm thread, to some friends a few evenings back.

    Several of them thought that that little line up might have been the original super injunction, in which case it would run right to the core of the establishment.

    As Mises said, “one statist eff-up deserves another” although I think the great man probably used more subtle language when describing the there was an old lady who swallowed a fly error cascade of precedent .

  12. Kitler says:

    Well perusing the spectator and JD’s latest which is relevant…

    Yes indeed. James’ point is that the law has been transformed into a tool of the wealthy and politically connected; justice into a trafficable commodity. The subtext (which I’m reading into it as it’s an upcoming thread over here) is that codified “rights” are used as a tool of activists to subvert the law of the land. As indeed they are.

    Jeez, I’d better get cracking then – Oz

  13. Kitler says:

    Ozboy we seem to be reverting to an 18th century state of affairs with the rich being treated differently from the rest of us. Of course that ended well with the demise of the first British empire in North America. I think it is going to have to end in blood and tears again. This time it will be world wide and if the rich think they will get the upper hand they won’t.

  14. fenbeagle says:

    …… if the rich think they will get the upper hand they won’t.

    That puts me on the winning side then. I’m with you….Where do you want this lawn mower? It’s a rotary flymo is that ok?….I have an extension lead.

  15. fenbeagle says:

    …I’m having doubts……When were the rich ever not treated differently from the rest of us?
    …Looked at from a military view point, the French had a lot to do with the British losing ‘control’ in North America…..Can’t we just fight them instead? It’s traditional.

  16. Luton Ian says:


    This popped up over at Mises, and covers what you posted about why Libya is getting bombed and lots more:

  17. Luton Ian says:

    Fen & later Kittler,

    Hi Fen,
    I’ve left a reply for David Esker over at your’s. feel free to chop it or keep it up. I’ll not be embarrassed either way.

    This will likely appeal to you:

    Would you like to host discussion over at Knotted Prop?

  18. Kitler says:

    Luton Ian well I’m sure who is proposing a thicker atmosphere but I doubt it as the physiology of birds (dinosaurs) lungs would indicate the need to survive in a low oxygen environment. This was what made them dominant over mammals with our less efficient lungs.

  19. fenbeagle says:

    Chop it up?…You have to be kidding! You look like you worked hard on that, well done. Lets see what that adds to the debate. The Dinosaur paradox interests me immensely.

  20. fenbeagle says:

    Does a lower oxygen content, also mean a thinner atmosphere?

  21. Kitler says:

    fenbeagle what is a Paradox? Is that some kind of dinosaurian protobeagle?
    Luton Ian I make a point of not discussing anything on my blog that will attract the AGW eco loonies I made the mistake of writing a joke article once and within minutes one very confused lonely sole showed up to prove me wrong.
    However I will put something up that should not attract attention.

  22. Kitler says:

    fenbeagle yes the atmosphere is thinner at about 1000 feet when you are flapping about,
    actually if I do remember it the atmosphere was about the same but oxygen impoverished in the early Triassic after Permo Triassic extinction. An animal with more efficient lungs could be more active and for longer and the dinosaurs came into being from one small lineage probably in what is now South America. However they really only came into their own when oxygen levels rose back to normal. Initially the crocodillians and proto mammals ruled the Earth for about 15 million years.

  23. fenbeagle says:

    ….The Paradog? They are now extinct, on account of a shortage of transport aircraft.

  24. Luton Ian says:

    If you are ok with me commenting at yours, I’ll happily continue, there’s lots more where that came from;

    Depending on the specific heat capacity of his thick atmosphere, there should be some interesting pillow lava effects on terrestrial lava flows and pyroclastics, due to chilling by the atmosphere.

    There are also potentially some very interesting implications for bedding structures in sediments. Hummocky cross bedding is supposed to be characteristic of hurricane type storm events re-working sediments. I know that having an atmosphere with 2/3 the density of water will give some interesting wave amplitude effects on the water surface, for the same energy input (remember the desk toys from the 70s with 2 immiscible liquids of similar density, which gave high amplitude waves when the toy was disturbed?), but as the energy input is the same, the ability of the higher amplitude wave to move sediment about at depth should be no greater, but, what effects will a storm event have? I’ve had hummocky cross bedding pointed out to me from the Carboniferous, but I’ve never looked for it in the Mesozoic.

    I’ve got to admit though, dinosaurs do look like they were built to walk into a strong wind, he has a point there.

  25. fenbeagle says:

    Carry on……. The visual aspect is the only thing I feel able to comment on myself. And yes, they do look to me like they wade forward against more resistance than we are used to.

  26. Kitler says:

    fenbeagle are saying dinosaurs wore waders?

  27. fenbeagle says:

    Well, not to formal occasions perhaps. A smart dinner jacket would be preferable then.

  28. Kitler says:

    fenbeagle which begs the question how did T-Rex put on the dinner jacket?

  29. Kitler says:

    Well we have gone from free speech to well accoutred Dinosaurs, which is a tad off topic.

  30. farmerbraun says:

    Well then, let me ask this; can anyone here imagine themselves in a situation where they would be very glad to avail themselves of a super-injunction if not a hyper-injunction?

  31. Kitler says:

    farmerbraun well if they are getting to finding the bodies.

  32. Kitler says:

    getting close to finding the bodies that is.

  33. fenbeagle says:

    No…..Not least because I think it wouldn’t be reliable.

  34. meltemian says:

    Hi Everyone,
    Sorry been otherwise occupied for the last couple of days.
    Can’t imagine how anyone would think super-injunctions would work anyway. The word always gets out via “anonymous sources” eventually and then you would look twice as stupid for trying to hide it.
    The bit that really gets my goat is how they are trying to prevent someone talking to his MP! Threatening legal action for daring to speak to someone who is there as your representative is striking at the heart of free speech.
    By the way you’d need a hell of a black tie to go with the dinosaur’s DJ!!!!

  35. Kitler says:

    fenbeagle over on my blog since it has occurred to me that without a massive research grant and about 10 years to prove my made up guess er I mean theory, I am going to blame it on global warming and I have a computer model and I’m not afraid to misuse it.

  36. fenbeagle says:

    You wouldn’t have got on to this subject if it wasn’t for me. Can I do the doggy graphs or something?

  37. Amanda says:

    Hi everybody. Hi Meltemian. That’s it, really.

  38. fenbeagle says:

    I could have sworn I just saw a fox?!

    She can certainly be foxy when she wants to – Oz

  39. Kitler says:

    fenbeagle actually the whole lung theory was what somebody else came up with a few years ago, I’m not sure if it ever stood up to scrutiny but the whole thicker atmosphere stuff is provable by analyzing trapped air bubbles in rocks.
    As for the Fox Tally ho….

  40. Amanda says:

    Hi again. Oz, thank you so much: better by far than hearing ‘have you tried lawn bowling…???’ Or: ‘Philately is a rich and rewarding hobby….’

    As for Fen and Crown, sorry — Krown, I can hardly keep up but they’re charming when chatting about dinosaurs. (Other times, too.)

    We’ll be heading for the highway as of 5 a.m. Twelve-hour drive to the Sanctuary in the Sky. School is OUT for two months!!!! See you in the mountains!

  41. Kitler says:

    Amanda have a safe trip it should be a lot shorter than from Texas.

  42. fenbeagle says:

    ‘Trapped wind’ seems to be the explanation for so many concerns. Good tip, I’ll investigate.

    Amanda, are you off on a jolly? Have a good time, if so. Do something to make it memorable. It’s not often we get the chance.

  43. Kitler says:

    fenbeagle she is off to the ozone producing polluting Smokie Mountains, Danial Boone and Dolly Wood country it’s very beautiful the EPA wanted to do something about the ozone problem there but somebody pointed out it was the trees there, and it would have involved massive deforestation it was a close call apparently.

  44. Kitler says:

    Dolly Wood is Dolly Partons theme park she of the big chesticles.

  45. Luton Ian says:

    It’s the jugasaurus R*.

    I remember seeing a billboard add for a TV in the 80s, with the caption “Who wants a flatter, squarer Dolly Parton?”

    Almost as memorable (for a male) as the “Hello boys” wunderbar ads.

    *stolen from “The Inbetweeners” tv comedy series

  46. izen says:

    The level of secracy acceptable of neccasary in a society is highly disputable.
    I Have a long-running dissagreement with my brother about this. He maintains that Julian Assange is a prima-donna, an idiot and dissarms his own case for transparency by insisting of secracy within his own organisation. And that ‘obviously’ governemnts and business require some level of secracy to carry out diplomatic and financial negotiations.

    I take a rather more hard-line ideological position; Yes Julian Assange is a prima-donna, but no idiot, his ‘rubber hose’ or deniable encryption software and work in Africa on death squads make it clear he is smart… the secracy within wikileaks could be seen as an extention of this defensive secracy in the face of big government and business hostility. I would claim ALL government and business secracy is inherently wrong, if it needs to be secrect for a institution with political or financial power to do it, then they should NOT be doing it. TOTAL transparency is the only ethically viable course.

    Individuals may have a ‘right’ to privacy (but it is probably unacheivable in modern society) but institutions, private or public do not.

    Well put Izen. We’ll make a Libertarian out of you yet! The problem occurs, as I said at the top, with military and intelligence matters where lives are at stake. At some point we have no option but to trust our elected representatives that they are keeping the right secrets for the right reasons. There’s no point passing this buck over to some “independent” committee or tribunal, when those on it are not themselves accountable to the people. At least we can fire our politicians – Oz

  47. izen says:

    Some further comments on the secracy/privacy issue.
    I find it an ongoing source of ironic amusement to observe the lengths that governments go to to keep their own actions secret, but ensure they are able to prevent their citizens – or subjects – from exercising the same level of secrecy. The most obvious example of this is the ongoing dispute between various governments and the ‘Blackberry’ phone system. Because it has a good encryption system that sends the messages people make to a central server in Canada there is no easy access for governmetns to what those messages are. It is apparent that most governments have established a means of accessing these messages despite thsi – although the exact nature of theses agreements is of course … secret. But recently the Indian governmetn was in dispute with the ‘Blackberry’ corperation because – horror of horrors – the government was not able to gain access to any message a citizen sent. And like most modern governmets it regards it as unacceptable that the individual can communicate via a means that puts their message beyond the reach of government.

    The attitude most governments take is that the level of secrecy they regard as nessacery for their own actions and communications would be absolutely unacceptable for the individual to be able to exercise. I am guessing that the ‘Libertarian’ view would be the exact opposite.

  48. izen says:

    And another thing…. -grin-
    There has been a case (still ongoing) of a council in the North of England taking a legal case to the US to force Twitter to reveal the names of people who were involved in the exposure of dubious actions by some councilers. Whether it is right for a council to spend public money to defend the reputation of council members is one question, but the attempt by the council to find out the identy of an anonymous whistleblower who revealed the suspect actions is also dubious.
    Twitter at least follows a principle that if it is required to reveal the identy of users it will inform those users that their identy is liable to exposure.
    Many other institutions don’t follow this. Americans may be happy that the farce of super-injunctions is not possible in the land of the First amendment, but it is well established that the US government has required the exposure of details of the actions and messages sent by private individuals with the added requirement that those individuals are NOT infoprmed that they have been investigated.

    All of this tends to be justified on the basis it is defending society (but not the individual!) against terrorism or pedophilia. But seems to be most often used against political opponents and people who disrupt or reveal financial irregularities.

    [P.S. Sorry about the spelling, the spellchecker is not working on this systems browser/notepad so you are getting the full force of my lexdysia!]

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