Edgeler on hate speech laws

There are calls for ‘hate speech’ laws in New Zealand, and also warnings against laws restricting speech that often includes extreme examples from another country.

We already have general laws that can be applied to what is considered to be hate speech, so do we need more specific laws? And if we do get hate speech laws that are used would more damage potentially be done than if we didn’t have them?

Lawyer Graeme Edgeler, who claims to be “among the most pro-free speech people I know”, discusses hate speech and related laws at Public Address: On the possibility of laws further regulating hate speech

His general views on freedom of speech and criminal consequences that can themselves be harmful.

My support for freedom of expression seems to come from a slightly different place than it does for most of people who are prominent in New Zealand in their advocate of free speech: I’m not sure I actually agree that free speech enables the marketplace of ideas, that good ideas will beat out bad ones by force of argument, but I generally oppose laws limiting speech anyway, because of a belief that the imposition of criminal consequences is often more harmful than the harms we might seek to prevent by passing criminal laws.

Not only is convicting someone harmful, but prosecuting someone is harmful. Arresting someone is harmful. Arguing that we need to pass a criminalising some conduct to “send a message” is good way to ensure I will reflexively oppose it. We should pass criminal laws because we consider that the conduct engaged in can be so bad, that when people engage in it we are willing to say to their children: you can’t have your parent around for a while, and your life should be made meaningfully worse in a way which increases your risk to society. Some conduct is that bad, but it’s a damn high test.

But we already have alternatives to criminal consequences.

Much of the general public understanding of the regulation of hate speech comes from high-ish profile examples from the United Kingdom, where criminal law has been the predominant tool. This is not the only option.

Defamation law limits speech, but does not impose criminal penalties. It is easy to imagine a law being enacted where hate speech was subject to civil damages, not fines or imprisonment. In fact, that is already the law in New Zealand.

There are at least two “hate speech” provisions in the Human Rights Act:

(1) a criminal offence around publishing threatening, abusive, or insulting material, with the intention of exciting hostility or ill-will against, or bringing into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins; and also

(2) a civil prohibition on publishing such words where they are likely to have that effect (this is an objective test, so the effect need not be intended, which is required for the criminal offence).

The criminal offence is punishable by conviction and a fine of up to $7000, or up to 3 months’ imprisonment. The civil prohibition is enforced by someone suing in the Human Rights Review Tribunal, for civil damages.

A recent example of the civil approach being used in a case:

This civil process was most recently used by Labour MP Louisa Wall, who sued Fairfax, the Marlborough Express and the Christchurch Press over the publication of two editorial cartoons by Al Nisbet found to be insulting to Māori and objectively offensive. The case, and an appeal from it, ultimately failed on the basis that the publication of the cartoons was not likely to excite hostility toward Māori. But they are useful to showing what laws we currently have, and that a criminal offence is not the only option.

It was claimed that the cartoon potentially harmed a group of people.

I can think of an example of another criminal option – criminal harassment law. In 2018 Dermot Nottingham was convicted on five counts of criminal harassment for causing significant harm to five people as well as families in online and real life campaigns against them. The sentence was increased on appeal – NOTTINGHAM v R [2019] NZCA 344 [30 July 2019].

But I have already said that I am not wholly opposed to all new regulation of hate speech, so the question I ought address is what sort of law might find my favour. It is helpful to consider what sorts of restrictions on freedom of expression there are, and which are justifiable.

When the state proposes to limit a right like freedom of expression, it ought to be able to point to a compelling government interest. Often, this is easy: the interest in prohibiting criminal activity is a compelling reason to make conspiracy to commit a crime illegal, especially where the crime is serious: getting together with others, and forming a common intention (through words alone) to murder someone, or to import methamphetamine, is illegal, even though the offending hasn’t even reached a stage of eg attempted murder.

Other times it is harder: our current defamation laws protect reputation even in the absence of other loss, and even in circumstances where publication has not in fact been shown to have diminished a person’s reputation.

Laws against threats are justified:

Back on the clearly justified side: people shouldn’t feel threatened, so laws against threats, and against stalking are justified.

This last example is helpful in a discussion around hate speech. A part of the problem of stalking is the sense of unease it creates, and the fear and worry it can induce in people. It can have real limit on a person’s ability to live their life. People who have been stalked, like people who have been in situations of domestic violence, can be affected in all facets of their life. Sometimes it could manifest in a fear of being out in public. Other times, it may require a person to limit their profile, for example, not engaging in political advocacy in a way in which they may like to, for fear of being recognised, and re-victimised.

Or threatening journalists to try to deter them from investigating issues of public interest.

Certain types of hate speech may have a similar effect. Much of this hate speech is already illegal, including death threats, and other threats of violence or of sexual assault. For some other harmful speech, it is less obviously so. Sometimes it can be prosecuted by general laws, but this can be inconsistent. It does not seem necessarily unreasonable that the law would act to ensure that people should are able to go about their lives.

In general that seems like a good test.

Examples are easy to imagine. A Muslim mother wishes to take her children to the beach on hot summer day. Her beliefs dictate that she should be modestly dressed in public, but she still wants to swim with her kids, so wears a burkini. At the beach, she’s verbally accosted by someone yelling “Go Back to Islam”, and other derogatory comments indicating she doesn’t belong in New Zealand. Now, maybe this is the type of speech we have to live with in a pluralistic society. But we shouldn’t pretend there is no harm. Her kids have heard it. Maybe they were worried for her safety, in the same way that some who hears a threat may fear for someone’s safety. Maybe they’re now scared to go to the beach, in case that bad man (or someone like him) is there.

Bullying can cause people to fear going to school, or to work.

This might well already be illegal. In 2013, a man was convicted for offensive language for crossing the street to tell two men “you’ve got Aids” and “you’re a poofter”. But the same law has also been used to convict someone for saying a war commemoration should commemorate the dead on both sides of the conflict and not just our dead, and a related law was used to arrest Tiki Taane for performing N.W.A.s protest song “Fuck the Police”. As much as there may be victims of hateful speech, there is also a risk there will be victims of hate speech laws.

There is the danger taking offence at relatively minor speech can be used as a way of trying to shut down views opinions that are merely disagreed with.

But even if we reject expanding hate speech laws, we should not ignore the fact that speech which causes someone to change their public life – not going to the beach because their kids are scared of being accosted; or driving to the supermarket, instead of walking because someone on the direct route yells out the n-word or the (other) f-word every time they walk past – is harmful.

Of course, we can address a lot of this harm without specific hate speech laws. And that may be the preferable approach: for example, instead of a specific hate speech law, you could instead expand the offence of intimidation to more clearly cover off speech which has the effect of diminishing public utility. Or we could expand civil laws – although that too comes with risk (is the threat of bankruptcy, and the lower standard of proof justified?). And, of course, the risks of criminalising hate speech may still be too great, but some of the factors that might mean I am less likely to oppose a proposal around a law designed to address hate speech where that law targets:

  • individualised speech, and not generalised speech
  • directed speech, and not non-directed speech
  • aggressive speech
  • speech which provably inhibits a person’s ability to be in public spaces, or participate in public life

Generalised group targets are different to personalised targets (but attacks against individuals can impact on others in a similar grouping of people).

What would cause me to oppose a new hate speech law? The fear than such a law would be disproportionately used against poor and brown people, like most public order offences are. And that still might be enough. It is a very real concern that anyone proposing a law in this area need to address. I’m not sure I’ve really seen anyone attempt it yet.

That’s a valid fear. But I think we also need to be careful in how far we might go with any free speech laws that target other demographics, like white male racists who think they are superior and attack specific ethnicities and religions. They can potentially do a lot of harm, but harm could be done with laws that are too draconian.

We don’t have much to worry about, yet. Concerns will depend on what our politicians may try to do in addressing hate speech laws in the future – but as long as laws don’t restrict the expression of hate of bad laws then we should be able to at least grizzle about them.

 

 

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9 Comments

  1. adamsmith1922

     /  17th February 2020

    Timely post on an issue of major concern, especially as this government aided and abetted by the HRC gives many signs of going down the path of limiting freedom of expression

    Reply
    • Duker

       /  17th February 2020

      You havent read it have you …quite a few examples already where people were charged and convicted over their ‘speech’
      eg1) In 2013, a man was convicted for offensive language for crossing the street to tell two men “you’ve got Aids” and “you’re a poofter”.
      Who was the government in 2013?
      2)”has also been used to convict someone for saying a war commemoration should commemorate the dead on both sides of the conflict and not just our dead
      3)” a related law was used to arrest Tiki Taane for performing N.W.A.s protest song “Fuck the Police”.

      You seem to be ignorant of these previous cases, and ignorant of what was in the story

      Reply
      • adamsmith1922

         /  17th February 2020

        I read the post, my point was that the post was timely and that this is a matter of concern. I find past instances of concern as well. However, it remains the case that this government gives every appearance of wishing to impose new laws which will materially restrict freedom of expression.

        Reply
        • Duker

           /  17th February 2020

          Appearances and wishing?
          “this government gives every appearance of wishing ”
          Wheres the appearances and what are the wishes…you are making it up.
          Every government makes noises on every thing under the sun… and then do nothing.
          Why would they need to do more than wish when clearly existing laws can be used.

          Reply
          • Corky

             /  17th February 2020

            Yes, ‘appearance and wishing.’ They would go much further than present laws if they could find a way around not scaring the punters.

            Reply
  2. Corky

     /  17th February 2020

    ”So wears a burkini. At the beach, she’s verbally accosted by someone yelling “Go Back to Islam”, and other derogatory comments indicating she doesn’t belong in New Zealand. Now, maybe this is the type of speech we have to live with in a pluralistic society.”

    Yes,it is. But the Muslim woman would gain way more advantages in our society than in a stone-age Muslim country.

    People seem to be missing the point again. We don’t have free speech. Free speech means you say anything you want. However, defame or act on your spoken sentiments, then expect the law to interevene.

    Reply
    • Kitty Catkin

       /  17th February 2020

      Islam is the religion, not a country.

      The history of Islamic culture shows that it is ridiculous to compare it to the stone age, even if the term is used loosely. Look at their art and literature.

      Reply
  3. Alan Wilkinson

     /  17th February 2020

    A pretty good canvas of the issues by Edgeler. Unless there is a problem don’t try to fix it. There needs to be far more respect for freedoms that have stood the test of time and much less haste to placate activists with new laws and regulations.

    Reply
  1. Edgeler on hate speech laws — Your NZ – NZ Conservative Coalition

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