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Karl du Fresne

A few thoughts on hate speech

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There are so many things wrong with the proposed “hate speech” laws that it’s hard to know where to start. But let’s begin with an obvious problem: those words “hate” and “hatred”.

Politicians and activists toss these words around as if they have some agreed, settled meaning, but they don’t. What to one person might be a valid and reasonable comment, or even a mere question relating to ethnicity, religion or gender identity, might be construed by an over-sensitive “victim” as hateful. Some activist representatives of ethnic communities, seemingly eager to take offence when none is intended, even object to well-meaning inquiries about their ethnic origins, perceiving them as hostile and unwelcoming rather than motivated by innocent curiosity and a desire to make a connection.

A similar problem arises with some of the other language used in the government’s tortuously wordy (deliberately so?) discussion paper. Terms such as “threatening”, “abusive”, “insulting”, “inciting” and “stirring up” are highly subjective and liable to be interpreted in different ways, depending on who’s doing the interpreting.

Law that depends on such imprecise language is potentially messy – a problem already highlighted by inconsistencies in the attempts by prime minister Jacinda Ardern and her justice minister, Kris Faafoi, to explain how the law would work.

It would ultimately fall to the courts to determine exactly what constitutes “hate speech”, and fortunately New Zealand judges have a pretty sound record, overall, in upholding the right to free speech (with one or two notable exceptions, such as Justice Pherose Jagose’s lamentable upholding of Phil Goff’s right to bar Lauren Southern and Stefan Molyneux from speaking in a publicly owned venue).

Until all this is clarified, however (and we know how long these issues take to work their way through the judicial process), a law that depends on such subjective terms is bound to have a chilling effect on the public conversation.

New Zealanders tend to be timid at the best of times about frankly expressing their views in public. The fear of being labelled a racist – a potent slur that’s constantly used to deter people from expressing moderate and legitimate opinions – is especially inhibiting. People tell me all the time that they don’t dare say what they think (for example, about Maori council wards) for fear of provoking an unpleasant backlash.

If people are frightened already, imagine the stifling effect on the public conversation if they were to worry about possible legal or even criminal consequences.  Yet the contest of ideas, which is the very heart and soul of liberal democracy, hinges on freedom of expression. Free and open debate is how we sort out the good from the bad. Our system of government can’t properly function without it.

There’s also the scary prospect that with the criminalisation of “hate speech”, it would fall to the police – initially, at least – to determine which opinions cross the legal threshold. We have ample evidence from Britain of the dangers that arise when the police are politicised and over-zealous officers take it upon themselves to decide what’s “safe”.

We had a foretaste in our own backyard earlier this year when Marlborough police knocked on the door of a Renwick man after he spray-painted the words “ALM equal rights for Kiwi whites” on the blade of a bulldozer parked outside his property (this at a time when the slogan “All Lives Matter”, a response to the Black Lives Matter protests, was being hysterically condemned as an expression of white supremacy).   

The bulldozer owner wasn’t inciting ill-will against anyone, still less hatred or violence. Nonetheless, a neighbour complained that the message was racist and the police came calling. The man subsequently “agreed to cover up the message”, according to a police statement. The spray painted message was said to have “caused concern for some members of the community”.

Case closed, then; all done and dusted. Very likely it was dealt with in a friendly, non-threatening manner, but that’s hardly the point. By leaning on the man to erase a lawful statement, the police had capitulated to ideological zealotry and crossed the crucial line that separates liberal democracies from authoritarian countries where agents of the state function as speech police.

The mere fact that a complaint was made illustrates what a febrile society we’ve become: quick to take offence and aggressively intolerant of opinions we don’t like. Expect a lot more of this if the government pushes through its odious “hate speech” laws. It can only have an energising effect on people like the Renwick neighbour, and it will give the police licence to knock on more doors.

(Speaking of how febrile New Zealand has become, the point was reinforced by Stuff’s report of the Renwick incident, which carried a warning that “This story contains an offensive image”. This referred to a photo showing the bulldozer blade bearing the words “equal rights”, the rest of the message having by then been obliterated after the police intervened. If Stuff thinks its readers so psychologically fragile that the words “equal rights” require a trigger warning, it’s probably futile to expect the news media to champion freedom of speech as they have done in the past.)

Next, let’s deal with the canard that the proposed law changes are all about promoting “social cohesion”. If anything, they threaten to achieve the exact reverse. By designating certain selected groups as protected and therefore different from the mainstream, they will have the effect of magnifying social divisions.

If this is what the government means when it talks about fostering inclusion, it’s a very peculiar way to go about it. Labour has a choice between promoting a society where all New Zealanders feel they have interests in common and a shared stake in community wellbeing, or one that heightens a sense of “otherness” – in other words, a society where the polarising notion of identify politics prevails.

It has signalled clearly which way it wants to go. Everything this government is doing, from the co-governance proposals in the He Puapua report to the establishment of a new Ministry of Ethnic Communities, the creation of Maori wards and now the proposed “hate speech” laws, points to an emphasis on division rather than unity, and to the fostering of a sense that New Zealand society consists of multiple disparate groups – some privileged, others deliberately marginalised – whose interests are fundamentally at odds and can only be resolved by heavy-handed state correction. Is this the sort of society most New Zealanders want?

Now let’s go to the heart of the matter and look at the supposed necessity for tougher “hate speech” laws. The government has repeatedly cited recommendations in the report of the Royal Commission that investigated the Christchurch mosques atrocity. That’s Labour’s fig-leaf of justification. But we’ve seen no evidence that the Christchurch terrorist was encouraged by lax “hate speech” laws, or conversely that he would have been deterred by tougher ones. His realm was the dark web where the law is of no consequence. Would the massacres have been prevented if Labour’s hate speech laws were in place? Of course not. Brenton Tarrant was by definition an outlaw.

The proposed changes, then, are based on a patently false premise. And if the changes are made, will they deter other extremists in the future? Again, of course not. Right-wing extremists will continue to lurk in the shadows of the internet where laws don’t penetrate. Many derive satisfaction from being forced underground because it feeds into their self-image as outcasts and renegades dedicated to the rescue of Western civilisation.

The people who risk being silenced under tougher “hate speech” laws are not those who advocate violence and mayhem (which is a crime already), but those whose opinions and ideas are merely unfashionable or unpopular with the arbiters of ideological correctness. In other words, this proposed law change is not so much about preventing another atrocity as it is about controlling public debate and confining it within parameters that government ideologues regard as acceptable.

The discussion paper reminds us that New Zealand is a signatory to international conventions that prohibit the incitement of hatred, as if that somehow clinches the deal. But as Richard Prebble pithily pointed out in an opinion piece this week, “This government never saw a UN treaty it did not want to sign”. He might have added that the signatories to such declarations typically include despotic regimes that have no intention of honouring their commitments.

Perhaps more to the point, these treaties are the result of esoteric diplomatic talkfests, mostly conducted far away and without our knowledge or consent (a prime example being the United Nations Declaration on the Rights of Indigenous Peoples, signed behind our backs on John Key’s watch). Accordingly they should not be regarded as imposing any obligation on us.

What opinions, then, are likely to be proscribed under the proposed laws? That’s anyone’s guess. In Parliament, Ardern made a joke of Judith Collins’ suggestion that the term “Karen” – a label for a woman who is pushy and demanding – might be construed as hate speech. But how would she know? It’s clear from what Ardern has said that she’s not sure what the proposed laws will cover, and neither is Faafoi (who is not a lawyer by training but a journalist, and a not especially distinguished one at that). It’s hardly reassuring that the prime minister and her justice minister are promoting a radical law change but can’t agree on what effect it will have.

As an aside, I wonder whether the Greens co-leader James Shaw would face repercussions under the proposed laws for making a derisive reference to “Pakeha farmers”, as he reportedly did recently on a Maori radio station. If I were one of those farmers, I would almost certainly regard Shaw’s comment as insulting. It was also a prima facie breach of Section 61 of the Human Rights Act, which prohibits speech that’s “likely to excite hostility against, or bring into contempt, any group of persons in New Zealand on the ground of colour, race [my italics] or national or ethnic origins”.

An aggravating factor was that Shaw presented a distorted picture. He attacked “Pakeha farmers” on the West Coast for resisting the government’s arrogant plan to designate substantial tracts of private land as “significant natural areas” (SNAs) and therefore subject to government controls – but Shaw would have known that SNAs are just as vehemently opposed by Maori landowners in the Far North, which made his singling out of white farmers gratuitous and misleading as well as egregious. That he was speaking to a Maori audience made it worse, because he appeared to be whipping up resentment by one racial group against another. But Shaw can make such statements with impunity, knowing that laws against discriminatory speech cut only one way.

One last important point to consider. What glaring deficiency in the existing law would the proposed changes remedy? No one has yet put forward a convincing case that the Human Rights Act doesn’t already provide adequate sanctions against people who use deliberately inflammatory language or try to incite violence against minorities.

Of course that’s not all the proposed new law will cover. As well as seeking to outlaw “hate speech”, however that might be defined, the government wants religious belief, gender identity, sex, marital status, sexual orientation, disability, age and political opinion added to the list of existing provisions which protect people against attacks on the basis of their colour, race and national or ethnic origins. 

Of the proposed new categories, the easiest one to justify – especially post-March 15, 2019 – is the inclusion of religious belief, which is clearly aimed at protecting New Zealand’s Muslim community. But that could be achieved by a simple amendment to the existing law. It doesn’t require a comprehensive rewrite, nor an escalation of penalties.

Even then, people might well have reservations about granting protected status to religion as a gesture of inclusiveness aimed at Islam, simply for the reason that of all the religions in New Zealand, Islam is the one most prone to politicisation. While most Muslim New Zealanders probably want nothing more than to live quietly and peaceably in a society that respects their right to follow their religion without harassment, there are Muslim activists who use their religion to secure political influence and promote their own vision of what society should be. Would a tougher “hate speech” law shield them from legitimate criticism?

The point should also be made that New Zealanders’ natural sense of fairness would be offended if hate speech laws were used to protect Islam from the type of critical comment directed at other religions. The Christian Churches, and especially Catholicism, have endured mockery and derision for decades. They put up with it because that’s one of the prices we pay to live in a free society. But the furore in 2006, when several New Zealand newspapers were condemned (by Helen Clark, among others) for publishing the “Muhammad cartoons”, suggested that Islam is regarded as off-limits. Can we expect that special exemption to be enforced under new hate speech laws? I think you can count on it.

As for the other putative protected groups, the list reads like an identity politics charter. These groups want to be placed beyond the reach of normal political discussion because they insist on the right to feel “safe”. But in an open, democratic society, there is no right to feel safe from other people’s opinions. Considerations of “safety” have to be weighed against the right of people to express themselves freely, within the reasonable limits set out in existing law, on social and political issues of importance.

So where do we go from here? It was always on the cards that “hate speech” would be the defining issue of the Ardern government’s second term, and that could well turn out to be the case.

It came as no surprise that ACT immediately signalled its readiness to man the barricades in defence of free speech. What’s more significant is that National, which has been ambivalent and uncertain on issues that cried out for the party to take an unambiguous centre-right position, seems to have decided this is a cause it can commit to.

It could hardly do otherwise if it wants to retain (or should I say reclaim?) the respect it should command as the mainstream opposition party. Collins can’t risk leaving the field clear for David Seymour to position himself as the natural leader of the pushback against Labour’s move to control what New Zealanders can say.

Free speech, then, has the potential to become a crucial and even decisive battleground, especially as public alarm over the Covid-19 pandemic recedes – as it will, if the government ever gets its shambolic vaccination rollout sorted.

The picture that’s emerging is one of a government that’s not only pursuing a radical ideological agenda across a wide front, but getting too far ahead of its capacity to deliver, as demonstrated by the  confusion between Ardern and Faafoi. The technical term for this is the speed wobbles – the curse of left-wing governments with more ambition than ability.

What we don’t yet know is how strongly the electorate at large feels about so-called hate speech, but a Newshub straw poll earlier this week showed 87 percent of more than 9000 respondents were against the proposed law changes – not a scientific sample, but promising nonetheless.

Voters rewarded Ardern last year for her handling of the Christchurch mosque massacres and the Covid-19 pandemic, at least in its early stages. Thousands transferred their allegiance from a National Party that had lost it way. But that political capital is rapidly burning up as Labour oversteps its mandate with radical, top-down changes that the electorate hasn’t had time to digest and is rightly nervous about. 

It may be wishful thinking, but I suspect that faint tapping I keep hearing is the sound of nails being hammered into Labour’s coffin – and it seems to be getting louder.