We must have hate speech laws that protect
The ACT Party recently issued a message in which it boasted about the principal role it played in halting proposed hate speech legislation, which it misrepresented as the state’s attempt to protect people from “unpleasant opinion”.
Reading this so soon after the fifth anniversary of the mosque shootings in Christchurch, I couldn’t help but think of our Muslim community and the hatred that killed 51 of them.
Unpleasant opinions may offend, but they don’t kill. Unpleasant opinions may provoke strong emotions, but they don’t normalise and entrench hatred toward people under attack.
The proposed hate speech law was never intended to criminalise people for expressing “unpleasant opinions” or making “silly” or “insulting” comments.
Of course, we must not ignore the serious arguments against such laws. The strongest counterargument warns that they are likely to be enforced in favour of the dominant power, while further disempowering marginalised individuals and groups.
The above argument was recently disproved in the UK, where the then Home Secretary, the zealously hostile Suella Braverman, tried to label proPalestinian marches “hate marches”.
Braverman was told by the police and law experts that a subjective interpretation of a controversial chant (“From the river to the sea, Palestine will be free”) was not enough for the courts to convict anyone under the UK’s current hate crime laws.
Not only did the marches continue, but Braverman was fired as home secretary for writing an opinion piece accusing the police of being, as the Guardian reported, “inherently biased towards left-leaning protests”. Attempts to abuse the law always exist, but a strong democracy should mostly safeguard against these abuses.
The second big argument against hate speech laws is that they backfire by strengthening the very speech they try to ban. Proponents refer to what happened in Nazi Germany where, they say, Hitler and his supporters capitalised on the restriction on speech as a means to gain greater sympathy for their cause.
I find this much-regurgitated argument dubious.
Yes, Hitler was arrested and banned from speaking in public until 1927 (look up Munich Putsch). But the real success of the Nazi Party came after this period, when, having perfected its fearmongering propaganda under Joseph Goebbels, the party began to capitalise on the 1929 economic disaster and spread its venom through public gatherings in pubs and meeting halls.
Hitler went on to speak prolifically during this period and we all know what happened to the Jewish people who became the target of his hatefilled speeches.
Today our Jewish community is, thankfully, protected under our current laws, covering speech that incites hostility based on colour, race, or ethnic or national origins.
In fact the only successful prosecution under our current version of a hate speech law (Section 131 of the Human Rights Act) came in the Court of Appeal decision in King-Ansell v Police.
The court in that case ruled that the “Jews in New Zealand”- even though “not drawn from what in biological terms is a common racial stock”- nevertheless formed an ethnic group because they have “a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past”.
The hate element in the above case was unmissable. Some 9000 pamphlets were printed with a photo of a dozen or more Nazis with helmets and swastika armbands and language which clearly targeted Jewish people, urging people to “Build A New Order! Our Fight Is Your Fight!”
The decision to charge was absolutely the right one as there was no ambiguity about the hateful element of the speech and its likelihood to excite hostility against, or bring into contempt, the targeted people.
The problem with the current law is that if the targeted group in the above case had been Muslims, the prosecution would not have been successful, because our current law does not cover religious groups.
It was the Royal Commission of Inquiry into the mosque shootings, not the Labour Party, that first recommended broadening the law to include religious groups. The proposed hate speech law was an opportunity to also protect other groups, such as members of the rainbow community and disability groups.
Those who complain that hate speech cannot be defined and that therefore a risk exists of punishing harmless speech, fail to recognise the high threshold employed by the courts, which have consistently erred on the side of free speech (see for example Wall v Fairfax New Zealand Ltd), or that hate speech, as seen in the King-Ansell example, is obvious when you see it.
It is worth mentioning that the ongoing financial cost of the mosque shootings today stands at a mindblowing $2 billion.
ACT should be telling its supporters an important truth: at a time of rising hate, we must have a hate speech law because New Zealand could not afford the incalculable human cost and financial burden of another hate crime like the mosque shootings.