Free Speech versus hate speech: Part one

The?NZ Listener has published a very long article that attempts to determine where the line should be drawn between free speech and hate speech. I don’t agree with that approach as I see it as a battle between free speech and hate speech as a line has already been drawn between legal speech and illegal speech.

Most offensive, insulting and robust speech can be described as hate speech depending on your personal views. Hate speech is completely subjective so should remain free. The right to offend is an essential and fundamental part of free speech.

It actually is not logical to attempt to separate so-called hate speech from free speech. If I am accidentally pregnant I am just as pregnant as if I had deliberately attempted to get pregnant. In the same way, free speech is free speech regardless of whether my words are intended to upset others or not and whether or not people are upset by what I say.

Here is another way to look at it. If free speech is the woman below would you still consider her to be free with that ball and chain around her ankle? Subjective hate speech restrictions are a ball and chain on free speech.

If we remove the ball and chain then the woman who represents free speech is free to do whatever she wants. If she breaks the law by inciting violence, murder or the destruction of property then there will be serious consequences.

It would be wrong to put a ball and chain on her just in case she hurts someone’s feelings or just in case she might one day break the law because that is the opposite of freedom.

In fact, it is punishing and restricting people who have done nothing illegal and who may never do anything illegal.

Now let’s get back to the Listener article and the debate over hate speech and free speech. Quote.

[…] 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?

[…] 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?.

[…] 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 M?ori and Pasifika people as ?welfare bludgers and poor parents who were preoccupied with smoking, drinking and gambling?.

290513 The Marlborough Express Al Nisbet cartoon

When the tribunal upheld Fairfax?s right to publish the cartoons, Wall ? who is M?ori ? appealed to the High Court in a landmark case, the first such complaint ever dealt with by the court under s61.

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 M?ori 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.

[…] 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,? 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 then Race Relations Commissioner, Dame Susan Devoy, called for the Government to review hate-speech law, suggesting that free-speech arguments could too easily become a cover for threatening and harmful language.

Moon accuses the Human Rights Commission,[…] of wanting to tighten the rules governing what people can say ? a claim the commission rejects.

Massey University sociologist Paul Spoonley is another who questions the need for tougher hate-speech laws. This is very much Spoonley?s territory as he has written extensively about ethnic minorities, and earlier in his career he researched neo-Nazism in Britain and white supremacist groups in New Zealand.

Spoonley, who chaired the ?Hate and the Internet? forum, is concerned about the proliferation of extreme comment on the internet, but doesn?t believe the solution lies in stricter legislation.

In Spoonley?s view, the best response to hate speech is to get it out in the open where it can be confronted and countered. ?For me, having worked with extremist groups, there is no point in having legislation or policies that drive them underground.

?We need to know about them and their views. Whether it?s hate speech or something else, the response to views you don?t agree with, or which have negative effects on our community, is to present arguments and views that undermine those.? end quote.

To be continued…