NZ’s free speech laws may turn out to be a blessing in disguise

In the first attempt to frame new “hate speech” laws last year, Ardern’s government wanted to prohibit speech that was intended to “incite/stir up, maintain or normalise hatred.” That would have replaced a similar clause in the 1993 Human Rights Act that currently bans speech designed “to excite hostility or ill-will against, or bring into contempt or ridicule” various groups.

The government also wanted to expand the groups covered by the legislation to communities defined by sex, sexual orientation, age, disability, employment status, family status, religious beliefs (or lack thereof), ethical beliefs (or lack thereof), or political opinions. In its current form, the law only mentions groups defined by “colour, race, or ethnic or national origins.”

Finally, the government wanted to stiffen penalties for “hate speech,” to up to three years’ imprisonment or a fine of up to $50,000.

The proposals soon collapsed under the weight of their own absurdity, though not before uniting commenters from across the political spectrum against them.

One problem was the awesome breadth of the provisions, which threatened to criminalise vast swathes of perfectly ordinary political speech. When the journalist Tova O’Brien asked the then Justice Minister Kris Faafoi whether millennials might be imprisoned for hating on boomers (which is, after all a group defined by age), the Minister couldn’t give a clear answer.

Another issue was the astonishingly stiff penalties provided for in the proposals. As David Seymour, leader of the libertarian-leaning ACT Party, pointed out at the time, the three years’ imprisonment Ardern’s government wanted to make possible for speech-crimes is more time than you can get for some types of physical assault.

Considering the car-crash quality of the proposals and Labour’s defence of them, nobody was surprised when, earlier this year, the government signalled that their “hate speech” reforms would be put indefinitely on ice.

That, though, dismayed some government allies like Race Relations Commissioner Meng Foon, who urged Labour “to get on with making Aotearoa a safer place.” And only three years after repealing an archaic law against “blasphemous libel,” Ardern’s Labour Party seemed intent on bringing it back in a different form. The result is the latest round of proposals from the new Justice Minister Kiri Allan.

After the thrashing the government took for their earlier efforts, the new proposals are suitably modest in scope. All Allan wants to do is to add a single category – religious groups – to the list of communities covered by the current provisions.

Who could possibly have a problem with that?

Well, rather a lot of people, as it turns out. Once again Ardern has pulled off the difficult trick of uniting New Zealanders from across the political spectrum in opposition to the proposals.

The first major sticking-point is that even just protecting religious groups against “hostile” speech would limit public discourse and the rights of individuals in an indefensible way. As David Seymour put it, it is important for citizens to be able to criticise religions “without fear of being prosecuted.”

Supporters of the proposals, like the journalist Marc Daalder, have insisted that the new law can’t and won’t be used against simple criticism of religious beliefs, and that the bar for prosecutions is very high. Seymour’s point, though, is that New Zealanders would have a reasonable fear that their criticisms could be taken to “excite hostility or ill-will” (or contempt or ridicule, for that matter), and that in itself would exert a chilling effect on speech.

There is, in any case, something puzzling about arguments like Daalder’s. On the one hand, we’re told that the current provisions leave “vulnerable communities unprotected” against “violent language,” something that would presumably change if the police were able to prosecute people for “hate speech” more readily. Whenever concerns are raised about the erosion of free speech, though, we’re assured by Daalder and others that the new provisions will almost never be used.

But surely the new proposals either would allow significant numbers of people to be prosecuted for speech, in which case “vulnerable communities” might be “protected” from words; or they wouldn’t, because the bar is set so high that prosecutions would be extremely rare. Which is it?

Nowadays, of course (and somewhat bewilderingly for a child of the 80s like me), it’s those to the right of centre who are more likely to defend free expression. And so it’s proven in this case, even if a few stalwarts of the old Kiwi left, like writer Chris Trotter, have also attacked the proposals on classical free speech grounds. But defenders of free expression haven’t been the only people to criticise Kiri Allan’s latest proposals.

Just like last year, Labour’s latest “hate speech” proposals have also been getting heat from the new, hyper-progressive left. Their major complaint is that the planned restrictions on speech don’t go far enough.

The Green Party wondered why the latest proposals leave out “gender, rainbow, and disability communities.” The Human Rights Commission (bizarrely enough, a consistent cheerleader for more limits on New Zealanders’ rights to speak freely) similarly asked why the new proposal “fails to protect some communities that are most vulnerable to harmful speech.”

In other words, if criminalising speech protects people, why only protect religious groups?

It’s actually a very good question, one that exposes the incoherence at the heart of the whole idea of “hate speech.” If you accept the idea that speech can be violence, and people need to be protected from words, there’s really no reason to only ban language some groups find offensive. You really need to cut the problem off at the root by banning any speech that might “harm” (that is, offend) anybody.

Obviously, that would leave us with some very broad restrictions on speech, of a sort that would hardly be compatible with a genuinely open and liberal society. But that’s where the logic of “hate speech” legislation inexorably leads – and that’s why this kind of legislation poses an inherent threat to liberal democracy as we know it.

Luckily, if the past couple of years have taught us anything, it’s that New Zealanders recognise this.

Most of us, it turns out, quite like living in an open society, and would rather not live in a country where people risk being thrown in jail for using the “wrong” words.

And it’s in that sense that Ardern’s strange, Quixotic push to further curtail New Zealanders’ free speech rights may just turn out to be a blessing in disguise.

https://www.theaustralian.com.au/nz/nzs-free-speech-laws-may-turn-out-to-be-a-blessing-in-disguise/news-story/a32634966eb2d6795191aaaa6be6f222

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