Freedom, hate and fair limits
The intersection of free speech and hate speech is a thicket of thorns. Navigating a path that preserves a fundamental pillar of democracy while reducing the harm caused by hatred on the basis of race, religion or other characteristics is complex and challenging.
The Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques has attempted to walk that path with its recommendations on hate speech and hate crime, part of its brief to reduce the chances of further attacks.
The commission proposes that crimes such as physical assaults motivated by hatred should have their own category. The underlying offences are already criminal, but having a separate category with higher maximum penalties for hatemotivated crimes seems a sensible move, reflecting the repugnant aggravating factor and setting a deterrent. It would also help fill a glaring lack of hate-crime statistics that are not currently collected by police.
Much thornier are proposed laws around hate speech. It is amuch less precise term, and therefore much harder to capture in a criminal law context, particularly when it collides with the principles of free speech enshrined in our Bill of Rights.
There is no doubt that hate speech causes psychological harm to marginalised communities. It has also been linked to a progression to actual violence and terrorist acts against such communities. The royal commission heard from many members of the Muslim community about being the subject of racism, from abuse of women in hijab to discrimination in schools and workplaces.
More generally, hate speech has spread widely on social media, with aNetsafe survey this year finding 15 per cent of Kiwi adults reported having been personally targeted with online hate speech in the past 12 months.
There is a range of sanctions under existing laws, but the commission says they do not work well. Racial hate provisions under the Human Rights Act have been tested in court only three times, with mixed results.
The commissioners looked at the Christchurch gunman’s Facebook discussion with an Australian Right-wing group on Muslim immigration, and found it open to doubt whether he could have been successfully prosecuted under the existing laws.
The commission recommends a new criminal offence with amaximum penalty of three years in prison for ‘‘inciting racial or religious disharmony, based on an intent to stir up, maintain or normalise hatred, through threatening, abusive or insulting communications with protected characteristics that include religious affiliation’’.
It recognises the proposal will have detractors; those saying it goes too far, or not far enough. The commissioners say it is framed to capture extreme speech, not ‘‘microaggressions’’, and not for ‘‘criminalising the vigorous expression of opinion on controversial issues, such as gender identity or immigration’’.
It’s in the detail that the thicket becomes thorniest. On first reading, the words ‘‘threatening, abusive or insulting communications’’ could be open to wider interpretations.
Free speech in New Zealand has not been unfettered; defamation laws place restrictions and impose penalties for breaches, while other laws protect against false advertising.
The very nub of the argument is whether any new hate speech laws place ‘‘reasonable’’ limits on freedom of expression.
For its part, the Government says any proposals will involve consultation with the public and other political parties before changes are made. Justice Minister Andrew Little acknowledges the lines will be difficult to define, but the Government wants to have the debate. We should all join in to have our say.
The ... argument is whether any new hate speech laws place ‘‘reasonable’’ limits on freedom of expression.