A victory for free speech
Voltaire never said: ‘‘I disagree with everything you say, but will defend to the death your right to say it.’’ It was a literary fiction invented by a biographer, but the saying has such resonance that it is all many people know of him.
It is an ideal that, as a society, we are falling well short of – and that’s affecting the rights of those as diverse as the iconoclastic Canadian Stefan Molyneux and the less intimidating feminist group Speak Up for Women.
The cancellation by an Auckland Councilcontrolled entity of the venues for Stefan Molyneux and Lauren Southern’s 2018 speaking tour was, the council has solemnly declared, based solely on health and safety concerns. There was a threat of disruption made by, amongst others, Auckland Peace Action.
This argument proved successful when the cancellation was challenged by a ratepayer, backed by the Free Speech Coalition, now the Free Speech Union, an organisation that somewhat reluctantly counts me as amongst its members.
If you wish to hire a public venue you must first consult the rabble of discontented on Facebook and Twitter. If they plan to disrupt the event the local council can cancel your booking and the courts will back them up.
This would not stand in the United States, where the right to free speech is protected by the First Amendment. The Court of Appeal quoted an American judgment that thundered ‘‘maintenance of the peace should not be achieved at the expense of free speech’’.
Sadly, our different legal traditions and constitutional framework have left us with a milquetoast right to free expression in the Bill of Rights Act that is ‘‘… subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’’.
A threat of disruption by Auckland Peace Action and similar outfits, the courts have confirmed, is such a reasonable limit in this free and democratic society.
Despite what the council and its agents told the court, there is suspicion that the reason Molyneux and Southern were cancelled was that their political views were unacceptable. Mayor Phil Goff tweeted that council venues ‘‘shouldn’t be used to stir up ethnic or religious tensions’’.
Like Goff, I disagree with much of what Molyneux has to say. His worldview is clouded by an obsession with race and he has built a shabby ideology around that perspective. If I owned a venue, I wouldn’t rent it to those peddling such nonsense. But Goff doesn’t own any venues. He is a custodian of the public square and different standards necessarily apply.
The decision to cancel the booking, ostensibly made for health and safety reasons, coincidentally occurred on the same day that Goff sent out his tweet. The two were unrelated, I am sure.
The Free Speech Union is taking the Court of Appeal decision to the Supreme Court. I am not optimistic we will prevail. This isn’t the fault of the judiciary. They must apply the law as written and accept at face value affidavits given under oath by upstanding council employees.
These decisions have emboldened a number of councils. They have expanded the health and safety concerns to include the mental health and wellbeing of others in the community, council staff, and anyone who might find the confrontation of debate stressful.
At least, this appears to have been what has happened to the feminist group Speak Up For Women, whose main thought-crime is to dissent from the idea that transgender women should be treated as women when it comes to things like using the bathrooms and going to the Olympics.
They are in the middle of a nationwide tour bringing attention to a proposed law change to the Births, Deaths and Marriages Act that would allow a person to change the gender on their birth certificate by completing a statutory declaration. Speak Up for Women prefer the status quo.
However, the Christchurch, Palmerston North, Wellington and Auckland councils have either cancelled, shifted or refused access to their venues for this dangerous radical group of second-wave feminists.
A council officer in Christchurch, Chris Hay, advised in an email that the subject of the proposed gathering might be in conflict with the library’s code of conduct, ‘‘particularly our commitment to providing a safe and welcoming environment’’.
The claim being advanced, it seems to me, is that if a group is presenting ideas that threaten the mental health and wellbeing of others, then even in the absence of a threat of violence and disruption, there are valid health and safety concerns that justify cancellation.
The Court of Appeal decision referred to this as the heckler’s veto and our courts have explicitly upheld it, at least if there is a threat of violence or serious disruption.
I can understand why local authorities would want to preserve the right to, in extreme cases, act cautiously to avoid disruption and violence, even if I would disagree. When it comes to free speech I am an absolutist. I’d allow fascists, communists and even the Young Nationals to have the right to use council venues, but I accept this view is well outside the Overton Window in this country.
But if the courts have granted councils this right, surely it should be exercised judiciously, not because one group of feminists are willing to wave placards against another group of feminists or someone, somewhere, will be unhappy that the debate is occurring at all.
Whilst I find it entertaining to see the feminist movement dissolving into factions as bitter and rancorous as the squabbles in the insolvency profession, I am dismayed at watching the guardians of our shared and collective spaces acting with such base cowardice.
The Free Speech Union bankrolled a successful challenge to Palmerston North City Council’s decision, and a judgment came out on Friday. The council relied on a claim that some activists believed that ‘‘gender critical’’ feminist views are ‘‘hateful and transphobic’’, a claim the judge dismissed. But here is the difference between the Southern/Molyneux and Speak Up For Women cases; there was no risk of violence or serious disruption.
The judge wrote: ‘‘There was no suggestion there would be a protest of the sort that could cause disruption within the community in a way the council had a duty to avoid’’ . Auckland Council settled on terms acceptable to the applicants.
So, a narrow victory, but a perverse incentive for those seeking to disrupt future such events has been established. We are not, in this country, willing to endure disruption to protect anyone’s right to free expression, much less defend it unto death.
As we cannot stand by the most famous Voltaire misattribution, it is time we reflected on a statement he definitely did say: ‘‘It is dangerous to be right in matters where established men are wrong.’’
When it comes to free speech I am an absolutist. I’d allow fascists, communists and even the Young Nationals to have the right to use council venues.
Damien Grant is a business owner based in Auckland. He writes from a libertarian perspective and is a member of the Taxpayers’ Union, but not of any political party.