Is free speech under threat?

Short answer: yes and no...

As part of the refocus of policies announced on 8 February, the Labour government will withdraw the Human Rights (Incitement on Ground of Religious Belief) Amendment Bill and refer the matter to the Law Commission for guidance. This leaves it to a future parliament to reconsider – or not.

The government failed to make its intentions clear regarding the incitement law – apparently because they were actually confused – making an easy target for the opposition. It made political sense, then, to take time for a rethink.

This was one of prime minister Hipkins’s desperate measures to neutralise controversial policies before the election, to seize the initiative - and headlines - from his opponents, and (one supposes) to concentrate instead on core social-democratic concerns like the minimum wage.

But this doesn’t necessarily mean that the parties won’t get grilled, or promote policies, on “hate speech” in the election campaign. So Labour’s not off this hook.

Ironically, NZ law doesn’t actually define or prohibit “hate speech” – or not in those exact words. So, what’s the fuss about?

It’s presently an offence to intentionally “excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.”

Although the word “ridicule” sounds like a low bar, only extreme cases ever get prosecuted, and that’s rare. Labour’s amendment wouldn’t have stopped you from critically assessing any religious belief out loud. The aim is to stop you from intentionally inciting disharmony or hostility against a social group.

The withdrawn amendment would have added “religious belief” to the list of grounds, addressing a recommendation of the Royal Commission on the 2019 mosque shootings. Faith communities, especially Muslims, feel frustrated by this delay, then. And groups representing LGBTQ ask when they’ll be protected.

Advocates for free speech, on the other hand, had little to fear from Labour’s amendment, despite their outcry. To be prosecuted under the present law (even if you add religious belief) you’ve got to use rhetoric of a kind that I think we’d all abhor.

When asked if free speech is under threat more generally today, though, I can find a yes and a no reply. And this is not fence-sitting! So, read on…

Free speech is under threat simply because it’s always under threat. You may have heard the saying that’s normally, but incorrectly, attributed to Thomas Jefferson: “Eternal vigilance is the price of liberty.” There are always people out there trying to police what we say and to control our tongues, and, worse, there are authoritarian governments that severely punish people for dissenting opinions.

It’s rational to be wary of threats to freedom of speech, because they are real, and we should be ready to prevent things from going too far.

At the same time, it’s neither a meaningful nor responsible use of freedom of speech to cite it as a licence to abuse, insult or threaten others.

Contrarily, then, free speech is not under threat because frankly the world has never seen such freedoms as afforded by the internet – and that’s precisely what offends many people. We see and hear things that we hate to see and hear – and the reaction is often to want it banned or to get someone cancelled and punished.

Now, we can argue (freely) among ourselves about what should or shouldn’t be said in public, but when should the law get involved? The fact that I feel offended by something doesn’t make a case that it ought to be banned. But, on the other hand, there must be limits.

For good reasons, the law restricts our freedom of speech in many ways. You can’t blackmail or threaten to kill someone. You can’t threaten or abuse a person online. You can’t copy someone else’s words and pretend they’re your own. For commercial reasons, insider trading is banned, which is a gag on the market. You can’t say nasty things about a person in public without risk of a defamation suit, especially if you insult a rich person.

Our freedom of speech is curtailed by law and by social disapproval, and yet we enjoy greater means of self-expression nowadays, thanks to social media. Admittedly, the internet also makes state surveillance much more effective.

The debate between “hate speech” and “free speech” isn’t a simple either/or. I haven’t heard free-speech advocates demand the repeal of the Defamation Act, for instance. And those who accuse others of “hate speech” are enjoying their liberty to openly accuse.

The hard political question is what kinds of speech (or ideas or images) should be prohibited by law, and for what reasons – and what the penalties should be. Prevention of harm to a community is a fair reason for prohibiting extreme rhetoric that encourages or threatens violence.

How do we find a balance, then, between our freedom of expression and our protection from harmful threats against who we are or what we conscientiously believe?

This question isn’t withdrawn from the election debate just because Labour’s amendment bill was withdrawn from the House. I hope that all the party leaders get grilled over it.

If commenting, please use moderate and respectful language. Address principles. Don’t attack people.