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Overseas efforts to criminalise 'hate speech' haven't always ended well

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Karl du Fresne looks at what New Zealand can learn from other countries' moves to criminalise "hate speech".

In 2001, 78-year-old Liverpool pensioner George Staunton put up a United Kingdom Independence Party party poster bearing the words “Keep the pound, Leave the EU”, and wrote alongside it “Don’t Forget the 1945 War” and “Free Speech for England”. He was arrested and charged with racially aggravated criminal damage.

In the same year, Essex baker Daryl Barke was ordered to take down a poster promoting English bread with the slogan “none of that French rubbish”, because the police believed it would stir up racial hatred. And an 11-year-old boy from Ipswich was charged with racially aggravated assault after he allegedly called a classmate a “Paki bastard” in a playground fight.

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The charges against the Liverpool pensioner and the Ipswich schoolboy (who claimed he was responding to taunts that he looked like a Teletubby) were eventually dropped. But free-speech advocates point to the cases as examples of what can happen if “hate speech” is made a criminal matter and police overzealously exercise their powers of prosecution.

In New Zealand, only one criminal prosecution has ever been brought, in 1979, for language that was deemed likely to incite ill will or hostility against a racial or ethnic minority. But internationally, hate speech is the latest battleground in the culture wars.

Hate-speech laws vary widely from country to country. New Zealand is one of several countries where “hate speech”, although not used as a legal term, is encompassed by racial discrimination legislation.

Anti-racism activists stage a counterdemonstration. Photo/Getty Images

Germany, because of its Nazi history, has a particularly strict law known as Volksverhetzung (incitement to hatred), which carries a prison term of up to five years.

In the United States, hate speech is constitutionally protected under the First Amendment, which guarantees freedom of speech. Justice Samuel Alito of the US Supreme Court, in a judgment last year, wrote that the idea that the Government could restrict speech expressing offensive ideas “strikes at the heart of the First Amendment”.

In Britain, hate speech is a criminal offence punishable by imprisonment. Some British cases are incontestably hate crimes, such as the right-wing extremist who used social media to call for Jews and Muslims to be killed. An online photograph showed him posing in front of a Nazi flag with an assault rifle. He was sentenced to five years’ jail.

Scottish comedian Mark Meechan.

Funny hate?

Other cases seem far less clear-cut. A recent one involved Scottish comedian Mark Meechan, who made a video of himself training his girlfriend’s pug to do a Nazi salute in response to phrases such as “gas the Jews” and uploaded it to YouTube. He was charged with gross offensiveness by inciting racial hatred, found guilty and fined £800. The court decided that context and intent were irrelevant.

“My girlfriend is always ranting and raving about how cute and adorable her wee dog is,” Meechan said by way of explanation. “And so I thought I would turn him into the least cute thing I could think of, which is a Nazi.” The case was seen as raising questions about when satire becomes hate crime.

Satire certainly proved too much for some Welsh patriots when Rod Liddle, a columnist in the Sunday Times, mocked a controversy over the naming of a Welsh bridge, suggesting objectors “would prefer it to be called something indecipherable with no real vowels, such as Ysgythysgymlngwchgwch Bryggy”.

Welsh language commissioner Meri Huws responded by saying legislation was needed to outlaw “language hate” and the North Wales police commissioner unsuccessfully attempted to have Liddle prosecuted.

In a subsequent column in the Spectator, Liddle wrote: “If you have doubted that restrictions upon freedom of speech are tightening by the day, just examine this little furore.” He vowed to make jokes about Wales in every future column he wrote.

Christians are among those who have fallen foul of British hate-speech laws. In 2001, evangelist Harry Hammond was arrested and charged under the Public Order Act because he displayed a sign bearing the words “Jesus Gives Peace, Jesus is Alive, Stop Immorality, Stop Homosexuality, Stop Lesbianism, Jesus is Lord”. A magistrate convicted Hammond and fined him £300.

In 2010, police arrested another preacher, Dale McAlpine, for saying that homosexual conduct was a sin, but the Crown decided not to prosecute. The police later apologised to McAlpine and paid him several thousand pounds compensation.

Supporters of nationalist activist Tommy Robinson. Photo/Getty Images

Taking sides

A recent cause célèbre was the imprisonment of the English nationalist activist Tommy Robinson, jailed for 13 months after he streamed a Facebook Live video outside a Leeds court where nine Muslim men were on trial for the alleged sexual grooming and exploitation of young white women. Robinson was initially arrested for breaching the peace, but was convicted of contempt of court for breaching orders banning news coverage of the trial.

Although not strictly a case of hate speech, it caused an uproar because Robinson’s supporters saw it as a heavy-handed attempt to suppress information about the trial for fear of inciting anti-Muslim feeling. Even news of Robinson’s court appearance was initially suppressed before the judge relented.

Two months earlier, thousands marched in support of Robinson after he was permanently barred from Twitter for “hateful conduct”. He had posted a message saying: “Islam promotes killing people”.

On July 14, marches took place in Auckland, Wellington and Christchurch, calling for Tommy Robinson to be released from prison and for free speech to be defended in Britain.

However, following the ban on far-right activists Lauren Southern and Stefan Molyneux speaking at the Auckland Council-owned Bruce Mason Centre, Right Minds NZ, which organised the marches, broadened its agenda to protest against the decision by Mayor Phil Goff and to support free speech.

Even London’s famous Hyde Park Speakers’ Corner, traditionally a haven of free speech, isn’t exempt from restrictions on utterances that the authorities fear might be inflammatory. Austrian new-right organisation leader Martin Sellner was due to speak at Hyde Park in March, but was detained on arrival at Luton Airport and held in custody for two days before being deported with his American activist girlfriend.

A British Home Office spokesperson said: “Border Force has the power to refuse entry to an individual if it is considered that his or her presence in the UK is not conducive to the public good.”

Closer to home, in what was described as a racial vilification case, Melbourne newspaper columnist Andrew Bolt was found to have contravened the Racial Discrimination Act in 2009 for writing articles in which he questioned the motives of light- or white-skinned people who identified themselves as Aboriginal, implying they did so for personal gain. Bolt described the decision as a terrible day for free speech.

Supporters of Austrian activist Martin Sellner are confronted by members of a London anti-fascist group. Photo/Getty Images

The final word

Academics interviewed by the Listener were opposed to New Zealand adopting overseas models when it comes to legal sanctions against hate speech.

Auckland University of Technology history professor Paul Moon describes developments in some overseas jurisdictions, especially Britain, as frightening. “People are scared to say things that we would take for granted in this country.”

Massey University professor Paul Spoonley doesn’t think New Zealand should take its cue from what other countries are doing, and points out that one important respect in which we differ is in our tolerance of immigrants – often the target of racist abuse – where we ranked No 1 in the world in the 2018 Global Talent Competitiveness Index, which measures the ability of countries and cities to grow, attract and retain talent.

“I struggle to find another country that we should model ourselves on,” says Spoonley. “We need a New Zealand understanding of the issues and we need a New Zealand response to those issues.”

This article was first published in the July 28, 2018 issue of the New Zealand Listener.