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Recently, Australia’s media (including myself) was subject to a gag order to stop them from influencing an open case. Considering the wealth of information available to us, I believe an uninfluenced mind is an impossibility.
Earlier this week, I—along with the editors of this website—received a federal takedown order for an article I wrote regarding an ongoing case that is subject to a media gag order. As per their request, the article was removed, which is a shame because it was a good one, if I do say so myself. It got me thinking about the nature of gag orders, and while I don’t particularly take umbrage with the takedown request, it does feel a bit like not seeing the forest for the trees.
There’s a paragraph in Last Night in Montreal by Emily St John Mandel — where three characters, Thomas, Eli and Geneviéve, are discussing Montreal and the French that’s alive there. Geneviéve is from there, Eli wants to go there, and Thomas is trying to dissuade him from doing so. Geneviéve says that Eli would love it because he has a love for what are referred to as “doomed” languages, with French Canada being “like a fortress in a rising tide of English”.
Imagine a country next to the sea,” she says, “and that the water’s rising. Imagine a fortress that used to stand near the beach, but now it’s half underwater, and the water won’t stop rising no matter how much they try to fight it back. Eventually, in the next century or so, it will more than likely rise over the top of the walls and overwhelm them, but for now, they’re plugging the cracks and pretending it doesn’t exist and passing laws against rising water. I’m saying that French is the fortress, and English is the sea.
Though Mandel is not French-Canadian—she’s from Comox, Vancouver Island—she has hit the nail on the head. The Quebec government are indeed passing laws “against rising water”; shopkeepers must use the French greeting first, before the English, and French lettering has to be bigger than English lettering on signs. While I appreciate the effort of keeping the language alive—and doing a good job—keeping the language “pure laine” as they call it, or “pure wool”, and untainted by English, is a doomed feat.
This is, essentially, how I feel about the current state of federal government-ordered media gags. We live in a century of ubiquitous international communication and constant information exchange, yet the law has not yet thought about how to catch up to this. Sharing or writing articles about certain topics—due to their potential effect on jury pools—are not inherently bad. Defendants have the right to the presumption of innocence before trial, a right enshrined in our legal system, and if media coverage or pop culture will unduly bias a jury against (or for) a defendant, then it’s reasonable for a judge to take action to limit that biasing. Despite confusing its director, the film Wolf Creek was banned from being shown in the Northern Territory during the Peter Falconio murder trial.
The only way to block access is by blocking foreign websites, which treads uncomfortably into totalitarian rule. Too close for a country priding itself on not only democracy but a thriving press.
Unfortunately, that doesn’t really work anymore. We don’t live in a time where people exclusively get their news from print newspapers and half-hour nightly news programs. These days we are constantly awash in media and news information from every corner of the globe, not just on our home computers and televisions, but in our pockets. Gagging the media in one state—or even one country—doesn’t accomplish the same thing it used to. It would be impossible to track down and prosecute everyone who shared an article on Facebook about a particular topic, and it would also be foolish to do so. Juries became biased in the old days, too, it was just through gossip. The gossip machine, like all other modern machines, has just received an extensive upgrade.
Media outlets can, in fact, get around these sorts of orders by just having a server that doesn’t reside in the country. Someone in Ballarat can read an article from The Washington Post and watch an online Al Jazeera broadcast about a topic that only journalists in Australia can’t touch. The only way to truly block citizens’ access to the relevant information online is by blocking foreign websites and channels, which treads uncomfortably into totalitarian or authoritarian rule. Too close, in fact, for a country priding itself on not only democracy but a thriving press.
It’s passing laws against rising water, except this time the Judicial System is the fortress, and Information Access is the sea. If they really want to restrict the biasing of jury pools from this sort of information, they need to either figure out a way to build a better fortress or accept that the gossip machine is just a bigger sea than it used to be.