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Guns aren't a cornerstone of democracy, but free speech is

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It’s one thing to urgently ban military-style firearms after Christchurch, but completely another to rush to curtail our freedom of speech.

If last year’s Massey University cancellation of a speaking engagement by former Opposition Leader Don Brash showed anything, it should have been that the culture of free speech needs support in New Zealand. Instead, Justice Minister Andrew Little has called for a hastening of a review of existing statutes that make it an offence to say or publish words that incite discrimination.

It is one thing to urgently review gun laws in the wake of an atrocity that claimed 50 lives by gunfire, but it would be quite a different thing to allow one man’s criminal rampage to curtail in any way New Zealanders’ freedom of speech. Owning firearms is not a cornerstone of democracy; free speech certainly is.

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Little says the current legal provision “in relation to what we would call hate speech” is very narrow. If so, then New Zealand is lucky to have so far escaped the zeal with which some other countries have tried to proscribe the views that people are allowed to express. The law should err on the side of supporting free speech because there is a principle that matters more than the discomfort that free expression may cause some people on some occasions. Little told RNZ National in an interview that people expected statutes “to be very clear and unequivocal and I think that’s the point we want to get to”.

It may be the point some people want to get to. But many other people believe that political and public debate should be robust and that the public does not need protecting from ideas, opinions or, at times, even insults and prejudice.

As British writer and former MP Matthew Parris observed recently, the risk is one of “conjugating” the act of censorship according to a liberal left grammar: “I’m fearlessly outspoken, you should watch what you say, he should be no-platformed.”

Another problem with too prescriptive a law on hate speech is that context is an essential component to our appreciation of the meaning of words.

For example, if Little said at a Labour Party rally that “white men have had it too easy for too long”, he might be applauded. If a Black Power leader said the same words at a gang rally, it might be considered inciting discrimination or even violence. Context varies endlessly and, in an open democracy such as New Zealand’s, the legal bar for censorship should be set high.

In the UK, which has done as Little advocates in legislating a particularised definition of hate speech, the cause has frequently been brought into ridicule. Police told an Essex baker his poster promoting his bread as “none of that French rubbish” might incite racial hatred. A court found a 19-year-old who posted rapper Snap Dogg’s lyrics on her Instagram account guilty of sending a grossly offensive message by a public communication, fining her £500 and an £85 victim surcharge, and imposing an eight-week curfew and community sentence.

Since the March 15 atrocity in Christchurch, New Zealand First leader Winston Peters must be ruing his 2005 tirade against militant Muslims as “a serpent underbelly with multiple heads capable of striking at any time and in any direction”. This can accurately be characterised as “othering” Muslims – especially as he implicated moderate Muslims as sharing a “fundamentalist agenda” – and may be prohibited under Little’s proposed reform. So, is this hate speech, or a valid politically motivated opinion? Perhaps an equally important question is: would stopping people expressing such views or anxieties stop anyone having those views or anxieties? No, and quite possibly it would do the opposite. Suppression of free speech is more apt to intensify banned views than soften them. The term “hate speech” itself is usually a misnomer, handily adopted by liberals as a wide broom with which to sweep up any reference that makes distinctions between people on grounds of race, colour, gender or any of the other long list of boxes that can be ticked in this era of identity politics and ready offence. Brash wanted to talk about Parliament’s Māori seats. That is not hate.

The Government needs to demonstrate that there is a gap in the law, because, so far, it is hard to see one. Little himself has said that, “Our laws in effect protect people against the most egregiously offensive forms of expression.” Good. That is all they should do.

This editorial was first published in the April 20, 2019 issue of the New Zealand Listener.