A bald act of expression

Andrew Geddis*

Opinion - I suspect the High Court decision that prison officials acted wrongly in taking Phillip John Smith's hairpiece from him is going to turn the talkback outrage meter right up to 11.

Prisoners have a right to wear a toupee? That guy can keep his rug on? It's PC gone mad, I tells ya! Mad!

But before giving way to that sweet, sweet feeling of fuming anger towards the modern world and its idiocies, a quick check on what's actually happened.

We'll start by remembering who Phillip John Smith is - most definitely he's a scumbag who molested a young boy, then four years later returned to murder the boy's father.

And in 2014 Smith abused his temporary prison release privileges to escape to Brazil, thereby making it considerably harder for other prisoners to transition back into society when authorities cracked down on the scheme.

So, you'll see no particular sympathy for Smith as a person from me. But for all that, he remains a human being possessed of certain rights that we recognise all persons as having.

Those rights don't magically disappear when a person goes behind bars - unless someone in the comments section really wants to argue that it is quite okay for prison officers to run torture rings in our jails where they re-enact Ramsay Bolton's greatest hits.

One of the rights prisoners continue to possess is freedom of expression. Now, that right is not absolute. It can be - and in practice is - limited in all sorts of ways in a prison environment, so long as those limits can be "demonstrably justified".

But because the right is guaranteed by parliament, prison officials must recognise and respect it unless and until they can demonstrably justify the need to limit it - which is what the High Court has said Auckland Prison failed to do regarding Smith.

First of all, the court found that wearing a hairpiece constitutes a form of freedom of expression, saying the definition of expression in the Bill of Rights Act was expansive and included expression "of any kind in any form".

The act said that expression could extend to physical acts - in this case, the wearing of a hairpiece, the court said.

"Not every physical act is protected," the court noted. "It is only physical acts with expressive content that can be protected."

It concluded: "Wearing a hairpiece was, for Mr Smith, an act with expressive content. In his initial affidavit he stated that he has... always been extremely sensitive about being seen bald."

The court quoted Mr Smith's evidence that having his hairpiece removed "and then having my appearance mocked by New Zealand media on national television and in major newspapers would without any doubt in my mind have been one of the lowest points in my life. I felt totally belittled, degraded and humiliated".

The judgment concluded "Mr Smith was trying to say - this is who I am and this is how I want to look... His action in wearing a hairpiece had expressive content."

While this conclusion certainly is a debatable one - even the judge in question recognised that it was at the margins of what the right was intended to protect - it isn't completely without precedent.

After all, the High Court already has accepted that running in the nude is a form of "expression". So if I can "express" myself to the world by taking a naked jog on a forest path, why do I not "express" myself by covering over what I regard as a humiliating physical feature so that I can relate more easily and freely with others?

Anyway, once the court found that Smith's wearing of a hairpiece falls under the Bill of Rights Act, the rest of the case pretty much flows.

That guarantee means that before prison officials can decide to take Smith's hairpiece from him, they must consider his expressive right and ensure that their decision is a justifiable limit upon it.

This was something the prison officials themselves admitted that they failed to do - they simply decided he shouldn't have the privilege of wearing a hairpiece anymore and took it off him.

So the officials failed to follow the correct lawful procedure when deciding to remove the hairpiece, and so the court declared their decision to be unlawful - meaning Smith can have his hairpiece back.

Or, can have it back for now, at least.

Because it remains quite open to the prison officials to now reconsider the matter, taking into account Smith's expressive rights as directed by the court.

It very well may be that there are good security and disciplinary reasons that override his expressive rights - as is the case with much expression in a prison context.

After all, one of the reasons why Smith was able to evade detection when he escaped was that his appearance with a hairpiece was quite different to without it. That in itself may justify taking away the hairpiece - although it seems exceedingly unlikely that Smith will be going anywhere in the community for quite some time.

But the point is that the prison officials can't just yank off Smith's hairpiece as a petty act of revenge for making them look bad by escaping, or purely to add to the misery of his imprisonment becuase he's a bad guy.

Rather, unless and until they can show they considered his rights and have established sufficient reasons to demonstrably justify taking away the hairpiece, they have to let him retain it.

That's not that outrageous a proposition, is it?

One last word. Given that the state of his hair obviously matters so much to Smith, I'll conclude with some free advice.

He really needs to take a lead on coping with baldness from Larry David. Your hair is mostly gone. Deal with it. Because strategies to try and deny the fact are pretty ridiculous; indeed, as David so rightly notes, "I'm surprised Hitler didn't round up the toupee people."

* Andrew Geddis is a regular writer for Pundit, and a professor at the Faculty of Law, University of Otago.

This piece was first published on Pundit and is reproduced with permission.