With Labour having an absolute majority in Parliament and NZ First no longer able to veto their proposals, amendments to legislation to curtail free speech and strengthen the scope of what is labeled hate speech are highly likely. The Human Rights Commission is on side with this, surprisingly. Until recently I would probably have supported this without much thought, but now I am veering the other way. Over the last few years there have been numerous examples of deplatforming speakers and attempting censorship of particular, often unpopular views. Many of those deplatformed I strongly disagree with, but I very much doubt it is sensible to give their views as much credit or power as it seems to do by stopping them speaking.

Deplatforming

And it is due to an issue where I agree with those deplatformed that has led me to think so much about this and start to argue that almost unfettered free speech is desirable. I will come back to this particular issue later in this article. Deplatforming, also known as no-platforming, is a form of political activism or prior restraint by an individual, group, or organisation with the goal of shutting down controversial speakers or speech, or denying them access to a venue in which to express their opinion. Wikipedia.

So, where are we in legislation on free speech/hate speech at present? Section 61 of the Human Rights Act 1993 includes: "Racial disharmony
(1) It shall be unlawful for any person-

1. 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
2. to use in any public place as defined in section 2(1) of the Summary Offences Act 1981, 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; or
3. to use in any place words which are threatening, abusive, or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper, magazine, or periodical or broadcast by means of radio or television -
   being matter or words likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons".

There is no similar provision on publishing or speaking threatening, abusive or insulting material about any religious group, although other provisions of the Act include religious belief among the 13 categories of prohibited grounds on the basis of which discrimination is outlawed. Following the March 15 2019 mosques attacks in Christchurch, there were strong calls from members of the Muslim community for extension of section 61 to cover similar ground on the basis of religion. There are also advocates for strengthening of these provisions overall. I have more sympathy for the former than the latter.

So, what in more detail is meant by free speech and by hate speech? According to the NZ Free Speech Coalition, "freedom of speech is the freedom to profess any idea without fear of being prosecuted or unduly punished for it... Not only does freedom of speech include the freedom for individuals to speak their minds, but also it includes the right for others to hear them. You have a right to consume any information you wish (with very few exceptions) so that you can make the most informed decisions relevant to your life". They note however that free speech is not an absolute right. Categories of speech not included are: "a direct incitement of violence, defamation (libel and slander), blackmail, a solicitation to commit a crime, child pornography, perjury, true threats and manifestation of violence as a means of conveying a message".

These categories are excluded from free speech, according to the Coalition "because they either cause direct, intentional harm to individuals, unjustly damage an individual's reputation, interfere with the natural course of justice, or incite violence or illegal activity by others. Our legal system has developed a thorough way to define these categories fairly. It is through a series of established tests that the criteria for each of these are met". They contend that punishment of such speech occurs after it happens, whereas ex ante (before the event) censorship of speech would unjustifiably put limitations based on theoretical potential harm.

The term hate speech is not (I think) used in any legislation to date. The Free Speech Coalition state that: "hate speech is a purported new addition to the categories of speech not protected under the umbrella of freedom of speech. It includes any speech that demeans or debases a person or group of people based on gender, religion, sexual orientation, ethnicity, disability, or other characteristics".

They argue that: "hate speech, however, is inconsistent with the underlying principle of freedom of expression. It grossly narrows the scope of allowable speech within a democratic society due to the ambiguous nature of being 'demeaned' or 'debased' by an opinion. In other such categories limiting freedom of expression, we see that there are objective elements of harm. In the case of hate speech, the determining factor becomes wholly subjective. Everyone has different standards for what is appropriate to say". I find their argument compelling

Free Expression "Fundamental Human Right"

Increasingly important to debates on appropriate speech is the enormous world of electronic communication where policing is incredibly difficult and the large companies such as Facebook are under attack for allowing far too much freedom. Cyber bullying is an increasing problem especially for young people. Relevant to this is another piece of legislation, the Harmful Digital Communications Act 2015. Section 6.1 contains ten communication principles which include:

"A digital communication should not be threatening, intimidating, or menacing.
A digital communication should not be grossly offensive to a reasonable person in the position of the affected individual.
A digital communication should not be used to harass an individual.
A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability".

The Act includes a criminal offence to help tackle the most serious instances of bullying and harassment by people using digital technology. It is illegal to send messages and post material online that deliberately causes a victim serious emotional distress. In 2019/20, 90 people were charged with Harmful Digital Communications Act offences; two-thirds (66%) were convicted. I have no knowledge of these cases or if any received much publicity. As early as 2012, the Law Commission published a lengthy Ministerial Briefing Paper on Harmful Digital Communications which discussed in detail the issues for legislation and remedies. Paragraphs 17 to 22 below (18 is shortened):

"The distinguishing feature of electronic communication is that it has the capacity to spread beyond the original sender and recipient, and envelop the recipient in an environment that is pervasive, insidious and distressing.

The concept of harm is also pivotal to this report. In the context of this report we use the term 'harmful' to describe the full range of serious negative consequences which can result from offensive communication including physical fear, humiliation, mental and emotional distress... in both civil and criminal spheres the law has been moving towards recognition of, and protection from, emotional harm".

"Nevertheless, we recognise that there will be some difficult issues at the margin. Within the community at large and within younger demographics particularly, the threshold for when a communication causes the level of distress that can be described as 'harmful' and when it simply causes annoyance or irritation may sometimes be difficult to pinpoint".

"But we have reached the view that when the level of emotional distress can be described as significant, the law has a role to play. This report is primarily about the laws to which we are all accountable when we communicate. Its recommendations are not aimed at censorship. Nor are they about criminalising speech which offends people simply because it may be abusive, nasty, vulgar, untrue or inflammatory".

"Freedom of expression is a fundamental human right enshrined in the New Zealand Bill of Rights Act 1990. The Act specifies that freedom of expression 'may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'. Precisely where the law sets those limits is a reflection of our core values as a society, including what value we place on tolerance, civility and inclusivity".

These paragraphs raise most of the difficult issues which arise in trying to assess whether speech or writing should be outlawed. The Bill of Rights Act is strong on freedom of expression. But I would find it hard to choose anyone, including judicial officers (who are unlikely to be representative of the whole of society or to have the range of experience required) to interpret the reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

And I am cynical enough to believe that it would be impossible to identify our core values as a society, including what value we place on tolerance, civility and inclusivity in a way that would get general agreement. One person's hate speech is another person's freedom of expression. What is harmful to one is mild debate to another.

Of course, hate speech can be associated with or even lead to actual hate crimes and being on the alert to extreme hate speech, for example by the security services, to try to prevent terrorist attacks is essential. So, I feel some sympathy with the proponents of stronger hate speech legislation, such as Dylan Asafo, who asked following the mosques attacks, "what has been done to address the white supremacist, Islamophobic hate that drove the attacks and to stop these ideas from proliferating in the first place?"

He argues that: "what free speech proponents (often privileged white people) don't realise is that they actually have nothing to lose from effective hate speech regulation - just their ability to inflict harm without any consequences". He claims that, for marginalised groups, "the harms of hate speech are real and experienced every day, and not the theoretical exercise they tend to be for the 'other side'" (The Spinoff 28/8/20).

And no doubt Police have not been as active in protecting Muslim communities as they should have been. However, improving Police attitudes and behaviour and community education could be more important than amending legislation in fighting the white supremacists. But political correctness seems recently to have led to mild statements of opinion on controversial topics to be labelled as hate speech. The need to "feel safe" has been taken to extremes by groups who are offended by robust debate on important topics. Who gets to judge what is hate speech and on what criteria? The rounded phrases on this above are subject to vastly different interpretations.

False Liberalism

Currently, the groups objecting to a particular viewpoint are often successful in having individuals deplatformed, lectures and conferences cancelled or spaces to hold them withdrawn, often largely for fear of disruption and of how they will be labelled if they allow them to proceed. Andrew Little has been quoted as saying that there are no plans to make it illegal to be offended - but it sometimes feels exactly that which proponents of hate speech law extension want.

He has also said: "The reality is we know that there are forms of expression on social media and elsewhere that you can see at face value are totally unacceptable and not worthy of defence but then there are opinions and views that we might disagree with or might even find offensive but are legitimate contributions to debate. Any change to the law would need to be robustly debated" (RNZ 3/4/19).

Professor Paul Spoonley, with a long history of writing in this area, considers hate speech laws should be widened to protect minority communities currently excluded from the legislation. But he thinks the threshold of what constitutes hate speech and what does not must remain high. The issue which has swayed me on this, despite my sympathy for some Muslim opinion, is the attacks on feminism, women's rights and the language around women from the extremes of the transgender movement. While trans human rights are as important as those for any other group, this does not mean for everyone an acceptance that transwomen are women (or that transmen are men, though that receives much less attention).

For example, the policy results of including transwomen in the category of women over placement in changing rooms, prisons and sporting competitions are seen as highly questionable and risky by many women. Further, the medical implications of giving very young people hormone or other treatments for their claimed gender dysphoria are highly contested.

The hugely increased numbers of those seeking to change their gender seems to be partly the result of promotion and fashion. New Zealand is deep in the throes of the false liberalism of the strong trans agenda. Many feminists have been silenced, deplatformed and attacked for arguing against this agenda, with lesbian groups, who were among the founders of homosexual activism, often excluded from queer or rainbow events.

New Zealand is catching up the rest of the English-speaking world with this issue. Only recently has it received major coverage here. Considerable publicity was given to JK.Rowling's involvement in questioning the agenda. She, like most such feminists. has been given the label TERF (trans exclusionary radical feminist). Speak Up for Women, which has concerns over transgender politics, planned a Feminism 2020 event at Massey's Wellington campus. Massey had been strongly criticised for cancelling a talk by someone as mainstream as Don Brash in 2018.

His Rightwing opinions on Maori issues are well known and objectionable, but it was absurd for Vice Chancellor Jan Thomas to ban him, whether on the stated grounds of security issues, or the real grounds of not wanting the University to be seen as allowing racist views to be heard. After that brouhaha, Speak Up for Women expected its event to go ahead but in response to a petition, the University barred the group. The meeting was eventually held at Parliament, thanks to Act Leader David Seymour (of all people!) making space available there.

I am still a member of the Green Party, but they are totally committed to the transgender political movement, to the extent that an article questioning it by lesbian feminist Jill Abigail in their magazine Te Awa was removed from their Website after opponents had objected to it. It is this elimination of debate that bothers me most. Several Labour MPs share the major position of the transgender movement, that transwomen are simply women, eroding the difference between biological sex and gender identification.

Accordingly, amendments to the Birth, Deaths and Marriages Act to allow trans people to change their birth certificates according to their current gender identification with none of the current medical requirements were slid in at Select Committee stage. This major change looked likely to be part of the amended Act with no submissions process. When Tracey Martin, who was the Minister in charge of the legislation, was alerted to the objections, the whole process was slowed. However, the new Parliament may well pass the legislation with these provisions.

Universities above all are surely places where robust debates on these controversial topics should be held. In the past they were less scared to do this than some are now. Late in 2019, a group of academics from Victoria University wrote to their Vice Chancellor with concerns about Massey's actions, following similar incidents overseas, labelling them cancel-culture.

It argued that "If we who are charged with equipping the intellectual leadership of the future, shield students from debate and discourse on the grounds that it may upset them, we leave them vulnerable to confirmation bias, peer-group conformity, unquestioning obedience to authority" (full letter here). It sought for Victoria to adopt principles accepted at the University of Chicago which emphasise the University's responsibility to promote a lively and fearless freedom of debate and deliberation. I don't know whether they received a reply.

Strange Bedfellows

NZ's Free Speech Coalition was initially formed to address Auckland Council's decision in 2018 to deny a venue to Lauren Southern and Stefan Molyneux, two far Right Canadians with views anathema to most of us. It now fights against other threats to free speech. Most, but by no means all, of its leaders are known as Rightwingers. It is a difficult situation for people like myself who consider ourselves to be Leftwingers that our main allies in questioning the moves to extend definitions of hate speech and deplatform some speakers are much further to the Right. Having strange bedfellows is indeed uncomfortable.

In 2017, though, a very much more mixed group had written an open letter, with Professor Paul Moon the instigator, warning that freedom of speech was under threat in the universities. "Kneejerk calls from Police and the Human Right Commission to introduce hate-speech laws after recent attacks on ethnic communities will have the unintended consequence of suppressing free speech. Education, open debate and understanding will change racist and intolerant views - not censorship. There is no inalienable right not to be offended.

It is dangerous and wrong to silence someone because you take offence or don't like what they say. Of course there are limits; that is why inciting hatred or violence is already a crime" (Stuff 4/4/17). The other signatories included not only Don Brash and Alan Gibbs but also Brian Edwards, Bryan Gould, Wally Hirsh, Manying Ip, Winnie Laban, Geoffrey Palmer, Tariana Turia, and Albert Wendt.

These debates pose difficult dilemmas for the media. With the proliferation of social media, the financial pressures on traditional media, and the impact of fake news, journalists have it harder than ever in making decisions on what to cover and how. When they gave big coverage to the NZ visit of Lauren Southern and Stefan Molyneux, it was controversial as to whether it was stupid to give them air time to propagate appalling views rather than ignoring them.

But again, should they not have the chance to speak their nonsense which others could condemn? And with the supposed leader of the free world constantly lying and talking nonsense, isn't it even hypocritical to stop anyone saying anything they like? Hopefully, with respect to Trump as much as anyone else. Freedom of speech allows us to shine the light on terrible ideas - good argument should surely triumph over bad.

How Relevant Are These Debates To CAFCA?

Well, all politics is of course but it is not something I have previously noticed discussed in Watchdog (though I may have missed it). Certainly, strong trenchant words and criticisms of individuals and groups are very common here, and rightly so. I haven't heard of any attempts to censor or deplatform writing or speeches from Murray Horton and others - maybe that's surprising! Perhaps if they were even more controversial there would be such attempts?

Or maybe it means that Watchdog isn't read as much as it should be by decision makers. Or maybe it is just that the political and economic concerns of CAFCA are rightly seen as favouring the interests of Aotearoa/New Zealand and all its people - especially the less advantaged groups - rather than attacking any particular population group. Mind you, questioning foreign ownership of key assets and land is sometimes labeled racist and could come under question as hate speech under some interpretations. Anyway, I would love to hear or read comments from readers. It does seem to me an area which cuts across - or should cut across - standard Left-Right definitions.

Send your comments or questions directly to Prue Hyman at hymanprue@xtra.co.nz. Ed.