The freedom to hate
A ban on two Canadian far-right activists speaking at Auckland Council venues has ignited the debate over where we draw the line between hate speech and freedom of expression.
A ban on two Canadian far-right activists speaking at Auckland Council venues has ignited the debate over where we draw the line between hate speech and freedom of expression.
Arecent public forum in Wellington on “Hate and the Internet” opened with a caution to the audience. A man seated in the front row was introduced as a “safe-space ambassador” whose job, we were told, was to “call out” any speaker who breached the code of conduct for the event, which stipulated that those taking part were to respect people and “keep it safe”.
As it turned out, the occasion was polite and civilised, as you’d expect of a weekday lunchtime talkfest at the National Library. But the fact that the organisers deemed it necessary to appoint a “safe-space ambassador” seemed to indicate one of two things: either a feeling that some people need to be protected from opinions and ideas they might find confronting, or a recognition that the tone of public debate on sensitive issues has deteriorated to the point that a referee must stand ready to shut things down. Perhaps both.
It’s against this backdrop that debate about hate speech is steadily gathering momentum. It hasn’t got legislative legs yet, but that may be only a matter of time. Justice Minister Andrew Little is non-committal when asked whether he thinks we need more laws against hate speech, but he points out that the Human Rights Act, which is the logical place to make changes, is up for review next year.
Little acknowledges that he gets correspondence about the issue and says some MPs are talking about it – a fact confirmed by Labour’s Christchurch Central MP Duncan Webb, who told the Listener he had considered drafting a member’s bill dealing with hate speech, but had backed off pending next year’s review.
Nothing more sharply demonstrates the ideological divisions over hate speech than the firestorm triggered by Auckland Mayor Phil Goff’s recent banning of two Canadian “alt-right” commentators who were scheduled to speak at the Auckland Councilowned Bruce Mason Centre.
Goff said he didn’t want Lauren Southern and Stefan Molyneux stirring up religious or ethnic tensions. Supporters of his edict painted the Canadians as purveyors of hateful diatribes against minorities, including Muslims and transgender people, but free-speech advocates said the ban perfectly illustrated the risk posed to freedom of expression if tighter constraints are drawn around what people can say.
The dispute is now headed to court after a newly formed organisation, the Free Speech Coalition, hastily raised $50,000 to seek a judicial review of the legality of Goff’s decision. The campaign has the support of business, academic and political figures, including former National and Act Party leader Don Brash, former Labour Party minister Michael Bassett, business leader Ashley Church and University of Canterbury academic Melissa Derby.
EXTREME LANGUAGE
The issue of hate speech is fraught with complications. How should it be defined, particularly when one person’s hate speech is another’s legitimate expression of opinion? And crucially, who does the defining?
Perhaps even more vexing, how is the notion of hate speech to be reconciled with freedom of expression – a fundamental tenet of liberal democracy, and a right guaranteed to New Zealanders under the Bill of Rights Act?
Existing law makes no explicit reference to hate speech, but under Section 61 of the Human Rights Act, it’s unlawful to broadcast, publish or distribute material that is “threatening, abusive or insulting” and “likely to excite hostility against, or bring into contempt, any group of persons in New Zealand on the ground of colour, race, or ethnic or national origins”. It’s also unlawful to use such language in a public place, or even in private if the speaker knows it’s likely that the words will be published or broadcast.
Section 61 treats such behaviour as a civil matter rather than a criminal one, with complaints going to the Human Rights Commission. For more extreme acts of offensive speech,
Section 131 of the same Act makes it a criminal offence to publish or use words that are threatening, abusive or insulting with the intent of exciting ill-will or hostility against the people targeted, or that are likely to bring them into contempt or ridicule. Offenders risk three months in prison or a $7000 fine.
The crucial difference is that under s131, the offender must intend to “excite hostility or ill will” – a tougher legal test than under s61. Prosecution under s131 also needs the consent of the Attorney-General. But lawyers agree that the legal threshold is high under both sections of the Act. And the wording in both sections is open to varying interpretations, effectively leaving it to the courts to determine precisely what is meant by words such as “threatening” or “likely to excite ill will”.
The courts also have to weigh extreme language against the Bill of Rights Act, which grants everyone “the freedom to seek, receive, and impart information and opinions of any kind in any form”.
These are complex issues that the judiciary has had surprisingly little chance to clarify. There has been only one recorded case of a criminal prosecution for what might now be termed hate speech, against far-right activist Colin King-Ansell in 1979. He was prosecuted under the former Race Relations Act, which had similar wording to the present statute, for distributing a pamphlet that was held to vilify Jews. He was sentenced to three months in prison but appealed and ended up paying a $400 fine.
Complaints made under the Human Rights Act usually relate to alleged discrimination (for example, in jobs and housing) rather than offensive speech, and are dealt with by the Human Rights Commission.
The commission has no power to make rulings, but offers mediation between the complainant and the person complained about. If complainants are dissatisfied with that process, they can go to the Human Rights Review Tribunal, a quasi-legal body that functions independently of the commission.
This was the course followed last year when Labour backbencher Louisa Wall, the MP for Manurewa, brought a complaint under s61 against newspaper publishing group Fairfax Media (now Stuff) over the publication of two Al Nisbet cartoons that Wall says portrayed Māori and Pasifika people as “welfare bludgers and poor parents who were preoccupied with smoking, drinking and gambling”.
When the tribunal upheld Fairfax’s right to publish the cartoons, Wall – who is Māori – appealed to the High Court in a landmark case, the first such complaint ever dealt with by the court under s61 (see sidebar, page 22).
In a judgment seen as significant in the evolution of the law relating to what might be termed hate speech, the court agreed that the cartoons were insulting – a point conceded by Fairfax. But it stopped short of finding that they were likely to bring Māori and Pasifika into contempt or excite hostility against them.
Now, Wall is looking at the possibility of drafting legislation that would impose a “duty of care” on media organisations not to publish or broadcast such material – a move guaranteed to alarm free-speech advocates.
CONFRONTING HATE
Is the current legal framework adequate to deal with hate speech, however it might be defined? As with many things, it depends who you ask.
The Listener spoke to several prominent academics who argue against new laws to regulate hateful speech. Professor Ursula Cheer, dean of law at the University of Canterbury and author of the authoritative Burrows and Cheer Media Law in New Zealand, believes there are already appropriate remedies in the Human Rights Act, and she thinks it’s right that the threshold for legal action should be high. Crucially, she believes the balance in law between freedom of expression and limitations on harmful speech is “about right”.
“Politicians are cautious about limiting free speech and I think they’re right to be,”
“If we don’t test ideas in the most robust way possible, how do we know how strong they are?”
says Cheer. “We live in a democracy and you must be very careful about crimes that could encompass more speech.
“You have to be careful about how you define it, and you have to be careful about how you prosecute it and how it’s interpreted, if it ever gets to court. The state can use these sorts of offences to control people.”
Auckland University of Technology history professor and free-speech advocate Paul Moon is emphatically against tougher restrictions on what we can say.
“Some people believe that the mere fact of them finding something offensive means it constitutes hate speech and there should be some regulation or prohibition, which is very dangerous because all it then takes is for them to claim they were offended for the speech to be regulated or put under threat,” says Moon.
Comments that some people deem to be hateful, he says, may be seen by others as quite necessary and truthful.
Moon opened up a new front in the debate last year when he initiated an open letter, signed by a broad cross section of high-profile New Zealanders, warning that freedom of speech was under threat in New Zealand universities. The 27 signatories came from both sides of the political divide and included Sir Geoffrey Palmer, Dame Tariana Turia, Don Brash and Sir Bob Jones.
The letter was triggered by a controversy at the University of Auckland in which a group calling itself the European Students Association claimed it had been forced to disband because of threats of violence against its members. The signatories argued that ideas should not be suppressed just because they were thought to be offensive or wrong-headed.
It was possibly no coincidence that the letter also followed a speech in which the
“A law change could confer protection on Muslims while Christianity would continue to be fair game for mockery and insult.”