Below is an excellent piece on free speech and its well meant, yet ignorant enemies.
It's not the state's role to decide which ideas are right or wrong
Michael Johnston
Dominion Post
Following the Christchurch massacre, Justice Minister Andrew Little announced a review of our hate speech laws. Little wants the review to focus on "whether our laws properly balance the issues of freedom of speech and hate speech".
He seems to want a bob each way on this question. On the one hand, he has defended free speech – the right, within very broad limits, to say whatever we wish – as being a fundamental principle of free society. On the other, he has claimed "current law specific to hate speech offences [is] very narrow". In particular, he has asked whether it is right "that we have sanctions against incitement of disharmony on racial grounds but not, for example, on grounds of religious faith".
Justice Minister Andrew Little says he wants to focus on "whether our laws properly balance the issues of freedom of speech and hate speech". But Michael Johnston argues it is not a question of balance - free speech must be protected.
Justice Minister Andrew Little says he wants to focus on "whether our laws properly balance the issues of freedom of speech and hate speech". But Michael Johnston argues it is not a question of balance - free speech must be protected. There is an obvious point of difference between ethnicity and religion in respect of Little's question. Ethnicity is an element of personal identity; it is something one is, rather than something one believes.
Religions, on the other hand, like political doctrines, are ideologies. It would be especially dangerous to go down the road of protecting ideological beliefs from criticism on the grounds that those holding them might be offended.
Israel Folau recently lost his lucrative rugby career over comments that homosexuals are condemned to hell when they die. Predictably enough, his comments were labelled hate speech. But those comments were made on religious grounds and while, no doubt, most modern Christians are accepting of homosexuality, the Bible condemns it as a sin in both the old and new testaments.
It's easy to see from this example how hate speech legislation protecting both sexuality and religious beliefs could end in a quagmire of legal absurdity: Folau might have been prosecuted for hate speech against homosexuality, while simultaneously claiming those criticising him were themselves guilty of hate speech against his religion.
More broadly, is the question of what should be protected as free speech, and what should be condemned as hate speech, really one of balance, as Little has asserted? I argue it is not.
The principle of free speech is the bedrock on which free societies are built. It ensures we can, without threat of legal sanction, discuss controversial things in order to sort out good ideas from bad. It is precisely the expression of controversial, and potentially offensive, ideas – not safe or mainstream ones – that the principle of free speech is required to protect.
Viewed in this light, hate speech legislation is simply a euphemistic term for handing to the state the power to determine what is and is not acceptable political discourse. That is just not a power the state ought to have in a democratic society.
Even if it were possible to draft laws that would ensnare only people who, deliberately and in bad faith, say ugly and offensive things with intent to cause upset and distress, they would still be a bad idea. That is because they would put in place a legal principle antithetical to democracy. Once the precedent of the state controlling speech in the name of avoiding offence is established, it can, and – over time – inevitably will, be used to control political discourse more broadly.
Already the term "hate speech" has been invoked to silence what are mainstream, if controversial, views. Last year, Massey University Vice-Chancellor Jan Thomas banned Don Brash from speaking at the university, saying "the views expressed by members of Hobson's Pledge [a Brash-led organisation opposed to separate political representation for Māori] come dangerously close to hate speech".
It's not too much of a stretch to imagine – in 10 or 20 years' time – hate speech laws being extended so the likes of Brash could face arrest, not just "de-platforming", for expressing views many New Zealanders agree with. That might not be what Little intends, but having opened the Pandora's box of legal control over political discourse, all sorts of unintended consequences will ensue.
People of a similar political stripe to Thomas might be unperturbed by the prospect of Brash facing arrest for expressing his views, but they would do well to consider that their political allies won't always be in the ascendancy. In another political climate, it might be people like Green MP Julie-Anne Genter facing prosecution for comments about "old white men".
I am not claiming there's no such thing as hate speech. But the correct response to hate speech is not to enact legislation to prosecute perpetrators, it's to take personal responsibility for countering expressions of hate with expressions of acceptance and goodwill.
* Dr Michael Johnston is Associate Dean (Academic) in the School of Education at Victoria University of Wellington.
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