Whaleoil transcript part 1: Leighton Smith & Stephen Franks on freedom of speech

Leighton:

From the Free Speech Coalition is Stephen Franks, hi!

Stephen:

Gidday.

Leighton:

And as the saying goes, welcome to the podcast. I want to quote from what you published with regard to this campaign. “Never waste a good crisis” is attributed to Churchill, referring to the political activist’s opportunity to panic people during a crisis, into accepting changes, they would otherwise reject.

The enemies of free speech have it front of mind. Claiming compassion, they’ve seized the Christchurch attacks as a licence to attack free speech rights.

Without the slightest evidence, they’re linking the massacre in the public mind, with free speech rights, or free speech supporters. Like you guys at the Free Speech Coalition.

By the way I have um, I’ve decided to adopt “freedom of speech” as a phrase as opposed to “free speech.” For some reason that I can’t quite nail, it represents, what we are talking about rather than free speech, could be like free lollies or free sushi for the opening, or whatever it might be. So, freedom of speech…

Stephen:

I think you’re right. I think actually free speech also has connotations of sort of, kindergarten teaching, you know, free expression like free expression in art, it seems… it doesn’t carry with it the really important thing, which is that it’s the right and the freedom to argue and to put cases and to, um, find out. It’s the freedom of speech… the most important freedom in my view, is actually the freedom to learn and to find out, it’s not so much the freedom of the speaker to mouth off. It’s my freedom to go and ask someone, what it is that they’re saying, or to look up and find recorded what’s been said.

Leighton:

You raise a very good point. If I, for instance, wanted to know something about… about something, ah… and I didn’t… I didn’t know where to go to find the answer because I couldn’t, and I came to you and asked you ah, to explain something to me. And let’s say that was… it was marginal stuff and somebody else walks by and hears it, in this day and age it seems to me, particularly under any change of law, that that person could lodge an official complaint with the police and both of us could be in big trouble.

Stephen:

Yeah, because it doesn’t… well no… our current law is quite good. Um… it… it’s… it’s… I think it was carefully defined by people who were really alive to the risks to democracy and to freedom if they… if they allowed their anxiety about the evil, to overcome their rationality about how law… wide sweeping law gets misused. But, um, certainly in Britain, in Australia in Canada and France ah, the person walking by might… might well complain and the… the judgement is on the effect on them, not on your intent or the logic. Truth is no defence ah, it’s entirely about whether someone um, is offended.

Leighton:

About feeling.

Stephen:

Yeah. And there… there’s variations in it to the extent that some courts claim to say that it’s objective because it’s not the actual effect on a person it’s what… how that person, um, that kind of person would feel. So, it’s a notional person of that type, but that’s really just soft street, it doesn’t take you out of the problem.

Leighton:

But let me… let me just say something that… that we’re taking steps in the direction, by laying the groundwork as in, in businesses and offices these days. If, and I know places where this has been instituted, if somebody overhears a conversation between two other people or other people, and they’re offended by it, they can lodge an anonymous complaint with HR which must be investigated. Now isn’t that… isn’t that groundwork for… for what we are discussing?

Stephen:

Yeah, although if it’s in an office I… I draw a big distinction between use of the state’s coercive power, the power to imprison, um and… and codes that people might have in their private offices. I think it’s very oppressive, I think it’s…

Leighton:

Well, what about conditioning, conditioning of the (indistinct).

Stephen:

Yes, it is. Well, it certainly does. I mean you’ve got a whole lot of… a whole generation of kids who’ve been reared to think that giving them a frank appraisal of how they went… if it really upsets them is… they shouldn’t have to tolerate that – but that’s all conditioning. There’s a whole lot of conditioning against the traditional resilience of people are just expected to have if you lived in a society that is free.

Leighton:

Just briefly, how did we arrive at this point where you and I, and I think most New Zealanders, I’d like to think so, believe that we have freedom of speech and we should retain it. But how did we get here? What’s it based on?

Stephen:

We inherited it. It came as part of our… our British tradition and that was pretty unique in the world. Hyde Park Corner where speakers can get up and say anything including, you know, attacking the government and the… the monarchy and argue for republicanism or argue against the established religion or any religion, that was the wonder of the world. Europeans used to come to Britain and write accounts of what they’d seen at Hyde Park Corner as the most, outstanding and amazing feature, of their trip and it was the badge. Freedom of speech is the fundamental human right. It was the one that was most bitterly fought for and um, is the one that I think, if the enemies of it are right in a sense, if they can crack that one and send us back to a… an era which rulers and religious leaders and councils can suppress free speech they’ve really turned us on our head.

Leighton:

So, what we are saying is that it’s the cornerstone of all our freedoms?

Stephen:

Yes.

Leighton:

Pull it out and everything else comes down.

Stephen:

Well, everything else is much easier to unpick.

Leighton:

Indeed. Um, New Zealand already has strong laws against the incitement of violence, who is intended to define what counts as hate and how would… how many peaceful New Zealanders would find themselves possibly targeted? And then you’ve got the intimidation factor as well. Just by… by changing the law and making it um, making it much more restrictive.

Stephen:

Yeah, well… a lot of it is just using slogans when you’re… when you’re legalising… writing law… drafting law. And hate is a slogan, it’s… the difficulty is that nearly all of us um, instinctively would like to… to write law to express virtue. And that is the pattern… has been in most societies, so if you don’t like something you write a law and say you can’t do it.

The unique achievement of the free societies was to say, there’s a whole chunk of… stuff that you and I might argue about that may… even the majority, maybe even 90% of us think that it’s hateful, but in a free society it is the right and privilege of those who have those views to hold them, to express them to each other, and to attempt to persuade. The boundary was if you incite um, unlawful conduct, like against others, then we can get you.

But you must be inciting something that is unlawful and that was violence that was confined pretty much… sticks and stones will break my bones but words will never hurt me is what kids were taught as a way of understanding, where the law’s boundary was.

When you give um, privacy commissioners and human rights commissions and um, magistrates or judges in any country all over the world, you give them power to start expressing their own virtue, they’ll find a million things to be upset about. Like we’ve got in Britain, for example, a mother of three, a breast feeding other of three spending time in gaol because she refused to call a transgender man a woman, and he was offended. Ah, we’ve got a myriad, there’s 30 I think 30,000 complaints a year now to the British police of hate speech and they have to spend their time investigating.

Leighton:

Take that case that you just mentioned, the mother, how… how… I mean, I struggle to understand how the um… how the country that we once knew existed and stood for freedom, could get to a point where a mother who is… any mother, but a mother who simply chooses to… chooses her own pronouns, and not the ones designed by another individual can end up behind bars.

Stephen:

Yeah, well, it’s feel-good law. You write a law for slogan purposes and you have a parliament that has almost, no… I look at our parliament… I see almost no lawyers I respect. But then I look at my profession and I see very few who stand up for anything. The… the notion that lawyers are the defenders, of the individual against the state, of the person who can’t speak for themselves against those who can it’s vanished. That the law profession is now, um, proposing to regulate lawyers’ conduct outside of their work um, and making an obligation for other lawyers to lodge complaints if they are expressing views or conducting themselves socially, in a way that the society wants to have power to control, whether it’s unbecoming.

Leighton:

How did we arrive at that point?

Stephen:

Well, that’s a big question. I think it was when, the… the confident um, intellectuals, abandoned education to the incompetent. And we’ve all known for a long time that a PhD in education usually means a PhD in nothing of any rigor at all, just an ability to express all the right catch phrases. But it was widespread, you’ve got good teachers leaving schools because they don’t want to spend their time apologizing to kids, people with real competence finding it very hard in a climate, where you’re, at risk all the time of being accused all the time of some sort of thought crime. And you’ve got… it’s a non-male area, at primary and increasingly secondary, but I think it was really the loss of um, the academy, universities, it’s absolutely not even denied now that universities are places which are very uncomfortable for diverse opinion. You really do have to express the orthodoxy.

Leighton:

I’m tempted to… and I will ask you, when… when might there be some push back? And I mean… and I mean powerful push back. When might there be a correction in this and how would it come about?

Stephen:

I don’t know. I… I… I do what I can. I didn’t want to be arguing this over the weekend that’s just passed, on TV3, I’d much rather have been hunting with my friends in the roar, I feel I have to put time into this and my firm supports me in it, but I think that, among other things, that courage, public courage, um, in some of these areas is immediately leapt on with a big pile on.

We, we might be lucky in New Zealand in that a big chunk of our culture is ignoring the intelligentsia, I mean, you listen to Maori radio – it’s quite reassuring. They are, very non-pc, you can have more free speech on Maori radio than you could on radio NZ, because they just ignore the orthodoxy.

So, it might be that if we’re lucky, if we can get through the current generation, the Andrew Little generation of lawyers, that there might be a generation coming who will say “I can’t stand this” but I don’t see it in my generation. That’s the courage to stand up.

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