It's noticeable that in the last few days, including on the interview he attended instead of deigning to attend the hearing along with the Samoan RU he'd dragged into the mire with him, and especially on his Twitter feed, he's been changing his tack. The line now seems to be more that it was merely hyperbole to get the point across because it was his choice of expression.
Bluntly; that bird won't fight.
And looking at the history of recent decisions on this line should make it clear why.
This line was first raised by the Springbok team and management in the "Justice4" case, when, in the last Lions test in 2009, they wore armbands with "Justice4" written on them to protest about what they saw as an unjust suspension of Bakkies Botha. They were charged with bringing the game into disrepute, and heavily fined; the Springboks only narrowly escaped a suspended expulsion from this RWC. The decision can be read HERE. The "right to free speech" argument was rejected at paragraph 70 of that decision.
In January 2010 - when, by the way, Eloita Fuimaono-Sapolu was playing in England with Gloucester - Brenden Venter of Saracens stated in a post-match interview that "the referee was influenced at Half-time and that’s all I can think." The decision - and that it was in front of His Honour Judge Jeff Blackett, who will be hearing Fuimaono-Sapolu's case, might give Fuimaono-Sapolu pause - can be read HERE.
The learned judge commented that:
Robust debate about all aspects of the Game is healthy and the press has an important part to play in that debate. Directors of Rugby, and other representative should give live interviews to the media and must be free to express general concerns about the Game. However, when doing so they must be careful about what they say so that they do not offend the RFU’s Core Values which highlight the importance of teamwork and respect. Where specific concerns arise which might include criticism of individuals, they should be dealt with in private through the recognised channels (that have been agreed by the Premiership Clubs).
Venter had to make a public apology, and had a suspended sentence of four weeks imposed.
Alas that he didn't appear to learn his lesson; not only was he up in front of a hearing and appeal in May, 2010, and was suspended for ten weeks (and, in passing, let me state my admiration for the exemplary way the RFU have their disciplinary judgements available on their website as a resource).
Dr. Venter then lost the run of himself in front of a microphone again after a HEC match against Leinster in October, 2010. After that outburst, he was charged by the ERC with misconduct. The decision can be read HERE. The "free speech" defence was raised; the ERC were of the view that:
The Committee agreed. They fined Dr. Venter €25,000, with €15,000 suspended.
Then, following the Amlin Challenge Cup final, Michael Cheika of Stade Francais lost it entirely with referee George Clancy (in passing, not the first time Cheika had been in trouble with a ref). The facts are in the decision, which can be read HERE.
The key part is the finding of the Committee:
Whilst it was true that Mr Cheika's conduct near or towards the referee on the three occasions the subject of the hearing, had been wholly inappropriate, derogatory and insulting he had not directly threatened or swore at the referee itself and that was a significant factor which distinguished it from a number of the cases which had been produced by Mr Duthie. In terms of its seriousness, however, the Disciplinary Committee were keen to ensure that a severe and firm message is sent out that respect towards match officials and others involved in the game of rugby is at the forefront of its mind and accordingly a significant financial penalty should be imposed.It should be very clear by now that, once you agree to take part in a tournament - player, coach, club or nation - you are bound by the rules of that tournament, including in how you express grievances. Once you agree to abide by the rules, you agree to limit what you say, and when; there's no crossed-fingers, no doubling back.
And it should be crystal clear that rugby takes any attacks on the honesty or integrity of referees very seriously indeed. And that any attack on a referee will be punished; and rightly so, because without referees, we don't have a game. Anyone who has ever played the game knows, from day one; the ref is sacrosanct.
Mr. Fuimaono-Sapolu's hearing has been adjourned to the 15th of October. He is a lawyer; he might like to consider the judgements before he commits himself any further. It might, all things considered, be a much wiser course than that he has followed to date.