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Dr. Don Brash

Is Freedom of Speech Under Threat in New Zealand?

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I’m honoured to be the first speaker at this all-day conference on liberty.*

I should perhaps begin by saying that I will disappoint the strict libertarians.  I’m not a libertarian: in a society where we assume that most of us don’t want to allow those who get severely injured in a car accident, or in a bike accident, to die by the side of the road, I favour having it compulsory to wear seat belts and cycle helmets, even though those protected by those laws are primarily the ones who have to wear the seat belts or the cycle helmets.

But I nevertheless value freedom very highly, including (if I may be allowed a brief reference to a later speaker) the freedom to choose to end one’s own life.

I have been asked to focus in particular on freedom of speech.

In New Zealand, freedom of speech is enshrined as one of our fundamental rights in the Bill of Rights Act of 1990.  Section 14 of that law, headed “Freedom of expression”, notes that “everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.”

That sounds pretty unambiguous.  But that piece of law is qualified by another, namely Section 61 of the Human Rights Act of 1993, which states:

“It shall be unlawful for any person –

  • to publish or distribute written matter which is threatening, abusive, or insulting, or to broadcast by means of radio or television or other electronic communication words which are threatening, abusive, or insulting; or
  • to use in any public place…, or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive or insulting.”

By comparison with a great many other countries, New Zealand stacks up pretty well.

In most Muslim-majority countries, for example, there are laws which make it a criminal offence to speak ill of Islam, or to make an attempt to convert people from Islam.   Laws against blasphemy – speaking ill of Islam – can get you killed in Pakistan.   Even suggesting that Muslims are free to vote for a non-Muslim as Governor of Jakarta can get you jailed in Indonesia, as the former Governor of Jakarta discovered to his cost.

Just last month, a Turkish writer who had been invited to give three lectures in supposedly modern Malaysia was detained and forced by the religious affairs authority in that country to abandon his third lecture.  His crime: arguing that Islam should never use coercion either to win converts or to keep those who are already Muslim in order.

And in Turkey itself, a new school curriculum has recently scrapped all references to Darwin and evolution.[1]

Nor is it only Muslim-majority countries which seek to suppress free speech in the name of religion.  Since 2013, insulting the feelings of religious believers has been a criminal offence in Russia[2].

In many countries, anti-defamation laws are used to control political opponents.

Thailand, for example, prohibits even the slightest criticism of its king, who is believed to be semi-divine.  Anyone who “defames, insults or threatens the king, the queen, the heir-apparent or the regent” can be imprisoned for up to 15 years.  The government which seized power in 2014 has charged at least 77 people with lese-majeste, 22 with sedition and 120 for violating an order forbidding public discussion of a proposed referendum to give it more power.[3]

Serajeddin Miradamadi, a journalist in Iran, is serving a six-year prison sentence for what was deemed “propaganda against the state”.  In Morocco three years ago, a 17-year-old was sentenced to three months in jail for rap lyrics about police corruption that were deemed to “harm public morality”.[4]

In May, a Burmese woman was sentenced to six months in jail for sharing Facebook posts deemed insulting to Aung San Suu Kyi under a law that criminalises “defaming, disturbing [or] threatening … any person by using any Telecommunications Network”.  At least 65 people have been charged under that law since Ms Suu Kyi’s government took power.[5]

Even in ultra-modern Singapore, government officials have sued and bankrupted critics for statements that politicians in many other places would have disputed, laughed off or simply ignored.[6]

In the United States, the first amendment to the constitution appears to provide a strong guarantee of freedom of speech.

But in recent times we’ve seen increasingly aggressive attempts to shut down free speech, perhaps especially at US universities. 

In early 2014, Brandeis University, one of America’s leading universities, revoked its invitation to Ayaan Hirsi Ali to receive an honorary degree at its commencement ceremony.  Protestors had accused her – a strong advocate for the rights of women and children, especially in the Middle East – of being “Islamophobic”.

More recently, there was the celebrated case in March this year when Charles Murray was unable to speak at Middlebury College, with the female host of his lecture suffering injury as she tried to extract him from the melee of rowdy students.  And Charles Murray’s offence?  Though he is an anti-Trump Republican, and the author of such notable works as Human Accomplishment and Coming Apart, he is still blamed for what is seen as an unforgivable sin, namely suggesting in a book he co-wrote with Richard Herrnstein more than 20 years ago that some races might be slightly brighter, on average, than other races.

In mid-year, Berkeley’s KPFA Radio cancelled a planned interview with Richard Dawkins.  The interview had been planned to discuss Dawkins’ book The Selfish Gene, which had been named the most influential science book of all time by the Royal Society a week earlier.  The interview was cancelled because of Dawkins’ alleged attacks on Islam – which Dawkins strenuously denied.

Also in mid-year, the University of Illinois withdrew an invitation to Nobel Prize-winning molecular biologist James Watson – the man who co-discovered DNA – accusing him of racism.  Ten years ago, he had apparently implied that people from the continent of Africa might not have the same IQ as people from the rest of the world.  He said that his outlook on the continent of Africa was “gloomy”, because policies implemented there were a one-size-fits-all-strategy based on the theory that “their intelligence is the same as ours”.

Lucia Martinez Valdivia, an assistant professor at Reed College in Portland, Oregon, describes herself as “mixed-race and queer”, yet after a number of vigorous attempts by students to disrupt her classes, she confessed in a blog post that she was “scared to teach courses on race, gender or sexuality, or even texts that bring these issues up in any way…  I’m at a loss as to how to begin to address it, especially since many of these students don’t believe in historicity or objective facts (they denounce the latter as being a tool of the white cisheteropatriarchy”).[7]  [Apparently, “cis” is shorthand for “cisgendered”, or people who identify with their birth sex.]

And the intolerance has spread beyond the universities.  There was, for example, strong opposition from some members of the orchestra when conservative commentator Dennis Prager was invited to conduct the Santa Monica Symphony Orchestra in August.  Prager was on record as favouring the adoption of a child to a married man and a woman, in preference to a single person or to a same-sex couple; and as noting that, if there is no God, ethics are subjective.  Happily, the orchestra held fast, and Prager conducted the orchestra.

Even more happily, recently there has been a strong push-back against these attacks on free speech.  The University of Chicago has issued a firm statement, since adopted or endorsed by 31 other colleges and universities, including Princeton, Johns Hopkins and Purdue, which states that its role is not “to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive”.  

A letter sent to the incoming class went further: “we do not support so-called ‘trigger warnings’, we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual ‘safe spaces’”.[8]

Well, what of New Zealand?

Late last year there were two speeches which triggered complaints to the Human Rights Commission.

One was by Muslim cleric Shaykh Mohammad Anwar Sahib, at the time the secretary of the Federation of Islamic Associations of New Zealand.  In his speech, he said that “Jews are using everybody because their protocol is to rule the entire world.”  He went on to say that “Jews are the enemy of the Muslim community”, and made offensive remarks about women.  Then Ethnic Communities Minister Sam Lotu-Iiga responded quickly, reminding everybody that hate speech is prohibited in New Zealand under Section 61 of the Human Rights Act.

The second speech was by self-proclaimed Bishop Brian Tamaki.  Quoting the Book of Leviticus, he stated that the Bible made it clear that gays, sinners and murderers were responsible for the recent earthquakes.

Perhaps it was these speeches, perhaps it was recent developments at US universities, or perhaps it was the reaction to the suggestion that there should be a club for “Europeans” at Auckland University, but something provoked Professor Paul Moon, History professor at AUT, to launch his petition in defence of free speech.

It was a relatively short petition, but made some essential points:

“Freedom of speech underpins our way of life in New Zealand as a liberal democracy.  It enables religious observance, individual development, societal change, science, reason and progress in all spheres of life.  In particular, the free exchange of ideas is a cornerstone of academe…

“Individuals, not any institution or group, should make their own judgments about ideas and should express these judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas they oppose, without discrimination or intimidation.

“We must ensure that our higher learning establishments are places where intellectual rigour prevails over emotional blackmail and where academic freedom, built on free expression, is maintained and protected.  We must fight for each other’s right to express opinions, even if we do not agree with them.”

Voltaire’s famous line comes to mind: “I disapprove of what you say, but will defend to the death your right to say it.”

In short order, Professor Moon got 27 well-known New Zealanders to sign the petition – New Zealanders as diverse as Tariana Turia and Don Brash!

But despite that, there are insidious pressures to discourage the expression of certain opinions.

It is judged to be too insensitive, or too judgmental, to suggest that the children brought up by their two natural parents are likely to have a much better start in life than those brought up in single-parent families, or in families where the adult male changes at irregular intervals.

It is regarded as quite inappropriate to recommend that adoption be regarded as an alternative to either abortion or single parenthood.

It is regarded as verging on treason to question whether human-induced climate change is really the most serious challenge facing humanity, despite the contrary views of people as different as Canadian Patrick Moore, one of the founders of Greenpeace, and Matt Ridley, a well-known British science writer.

It is regarded as far too judgmental to suggest that some cultures are superior to, or more advanced than, others, even cultures which deny women basic rights, which practice female genital mutilation, and which execute gays.

It is regarded as quite inappropriate to publicly question the wisdom of allowing as immigrants people who believe that adulterers should be stoned to death.  Or more generally to wonder aloud whether Muslims have values consistent with a modern liberal democracy.

And you dare not suggest that the Enlightenment civilization brought to New Zealand by the early British settlers was significantly more advanced than the Maori culture of the early nineteenth century, even though early nineteenth century Maori had no written language, had not yet invented the wheel, and were still practising cannibalism.

You may not even question the proposition that Maori are indigenous, even though Maori myths themselves talk about Maori arriving by canoe from a distant place within the last 1,000 years, vastly more recently than humans arrived in North America some 15,000 years ago, or in Australia more than 50,000 years ago.

It is regarded as racist to suggest that all New Zealanders should have equal political rights, despite that being the clear meaning of Article III of the Treaty of Waitangi and the only basis for a peaceful society in the long-term.

And the mainstream media censor any who would argue that case.  As some of you know, Casey Costello and I were the two spokespeople for the Hobson’s Pledge Trust, an organisation committed to advancing equal citizenship in New Zealand.  We got almost no media coverage, despite issuing umpteen press statements, and when we did get media coverage most of it was focused on me: I could be caricatured as an elderly white male racist.  Casey couldn’t be: she is a young woman of Ngapuhi and Anglo-Irish ancestry, so didn’t fit the need to describe Hobson’s Pledge as a male, white, organisation.

Several months ago, I wrote an article about the way in which affirmative action in favour of Malays had damaged most Malays, based on an article from the well-respected British weekly The Economist.  I noted the parallels with New Zealand.  I submitted the article in turn to the Sunday Star Times, the Herald on Sunday, the Otago Daily Times, and the Listener.  All declined to publish it.

In August, Susan Devoy, the Race Relations Commissioner, presented a report to the United Nations noting that she would be recommending a review of the “adequacy of current legislation in addressing and sanctioning hate speech and incitement to racial disharmony, including hateful and disharmonious speech targeted at the religion and beliefs of ethnic minority communities”.  We’re clearly not out of the woods yet!

Earlier in the year, well-known writer Karl du Fresne noted that Police Commissioner Mike Bush had talked to the Human Rights Commission about the possible need for a law prohibiting “hate speech”.  Mr du Fresne commented:

“A hate speech law would mark a radical and dangerous extension of existing police powers: from protecting people and property against clearly identifiable threats, such as assault and theft, to making value judgments about whether a citizen has crossed the blurry line between fair comment and something much darker.

“Such a law would be welcomed by activist minority groups which want the state to protect them from any comment they see as hurtful or oppressive.  But freedom of speech is far too precious in a democracy to be undermined by subjective judgments from police officers about what constitutes incitement to “hate” as opposed to a robust expression of legitimate opinion.”[9]

OK, but what would I do with the speech by the Muslim cleric?  Given the long and appallingly negative effects of anti-Semitism, for me it’s a line call. But on balance I think I would allow it, as long as I am allowed to argue publicly that people who hold such misogynist and anti-Jewish views should not be allowed to become permanent residents or citizens of New Zealand.

And the speech by Brian Tamaki?  Again I would allow such speech, as long as I am free to note that the guy is a nutter, and that the Book of Leviticus also bans the eating of meat containing blood and the wearing of any garments made of two types of fibre.  No rational person takes such strictures as relevant today.

Let me conclude by quoting from a speech made at the Fifth Australian Libertarian Society’s Friedman Conference in Sydney in April this year by Lorraine Finlay, a lecturer in law at Murdoch University:

“If freedom of speech is only the freedom to say nice things about uncontroversial topics then it isn’t a freedom worth anything.”[10]

[1] The Economist, 30 September 2017.
[2] Quoted in The Economist: Espresso of 16 September 2017.
[3] The Economist, 15 July, 2017.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] The Economist, 9 September, 2017.
[8] Ibid., 14 October, 2017.
[9] BreakingViewsNZ.blogspot.co.nz, 5 March, 2017.
[10] Reprinted in Policy, Winter 2017.

*This speech was delivered on 21 October 2017.