On Hate Speech

To: Ministry of Justice

This is a submission on the Government’s so-called ‘hate speech’ laws, and proposal paper titled ‘Proposals against incitement of hatred and discrimination’.

I oppose the proposed changes for the reasons given in this submission and endorse the submission of the Free Speech Union, available at www.fsu.nz/submission

Given the errors Ministers and the Prime Minister have made in trying to sell their policy, how on earth is the average citizen supposed to understand what is lawful and unlawful?

Whenever governments attempt to regulate political speech and activity, the results often end up being problematic and potentially harmful to democracy and debate. Regardless of how good the intentions, such reforms often bring complications, confusion, and unintended ill-effects. That means any laws around "hate speech" need to be extremely clear and well thought out. These proposals are not.

In the past, actions have been illegal. Thought has been considered relevant only to the extent that there is demonstrable, objective evidence to speak to an individual’s intent. However, now sharing your thoughts with others (if they could be interpreted as ‘maintaining or normalising hatred’) could be illegal, absent any positive act. Including a provision of this kind in any piece of legislation would be to place a powerful weapon in the hands of those who would oppose free thought and open debate, on either side of any question.

The Prime Minister has claimed that it is not the job of the politicians to decide what a court would or would not decide. That is not good enough for a law which embodies a potential collision of rights, the right to live and participate freely and the right freedom of expression. The detail matters hugely, and democratically elected representatives must be able to clearly and conclusively outline the extent of the law.

The proposed increase in penalties associated with “hate speech” crime are totally disproportionate to the objective harm actually caused. They are in no way commensurate with our current legal system and are out-of-line in comparison to other crimes which incur similar penalties, like actual physical assault. It is ridiculous to say that insulting someone in a way that could be interpreted as ‘hatred’ should be sentenced as aggressively as physically hurting someone with intent.

“Hate speech” legislation has always existed outside of the Crimes Act because of the difficulties in defining hate. Both the Prime Minister and the Minister of Justice have been unable to clearly state where the line is. This is an irresponsible way to legislate, and once again reveals the fraught nature of these proposals. For a law to be legitimate, the people it regulates must be able to clearly see what it allows and what it prohibits.

I do not accept that the Minister of Justice has presented a convincing case for the need for these reforms to the hate speech legislation that is currently in place in New Zealand. As such, we do not believe these proposals should be improved, but rather they should be abandoned.

We have no right not to be offended in New Zealand. To express one’s perspective of truth or reality is to always put at risk someone’s perspective of truth or reality.

While arguably the intention of the proposed reforms, to enhance social cohesion and the protection of minority groups, is laudable, the reality of the interpretation and application of this law change will be drastically different. The removal of the parts of freedom of speech as represented in these changes threatens to be counter-productive, and leave those with opinions which may be prohibited under these laws with no reasonable, or peaceful, form of expression.

There is no conclusive evidence from any jurisdiction where similar measures have been implemented that radicalisation is reduced as a consequence. Indeed, the case could be made that restrictions on the open expression of ideas could end up intensifying radicalisation. It’s a not-so-unintended consequence of legislation criminalising so-called ‘hate-speech’.

Given the extensively disputed nature of gender ideology, and the strongly opposing views found in numerous communities in New Zealand related to trans, gender diverse, and intersex people, to provide these groups with more rights or protections than those that would be provided to any other New Zealander is unhelpful, divisive, and very possibly counterproductive.

Forms of speech limiting legislation, such as law that regulates defamation, or sanctions against threatening statements, rests on empirical, objectives tests. Hatred, or even more intent to incite hatred or discrimination, is virtually impossible to test objectively. This is seen by the fact that no jurisdiction has succeed in defining a usable standard for hate, and thus, hate speech. Incitement to discriminate carries the same inherent difficulties in defining what is covered and what is not. It grossly narrows the scope of allowable speech within a democratic society due to its ambiguous nature. Furthermore, there is no suggestion that truth is a defence for the proposed hate speech laws. Someone could be put in prison for stating fact if it is considered insulting to a protected group.

If the “hate speech” laws proposed by this government are enacted without major amendment they will fail to put an end to hateful utterances from the truly bigoted, but honest, decent people – the least likely to engage in hateful communication of any kind – will exercise even more circumspection when it comes to talking about sensitive issues.

The “hate speech” law in the United Kingdom, on which the proposed New Zealand legislation is based, has a special section which explicitly states that “…discussion, criticism, or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents…” is exempt from the law. Troublingly, there is no such provision considered by our lawmakers at present.

The rationale for the law appears to be that speech at the “more hateful” end of the spectrum can be successfully policed and subsequently limited (with a hefty prison sentence as a disincentive). In no way do the proposals address the underlying factors that might lead someone to engage in such speech in the first place.

Rather than introduce laws to censor speech, we would far prefer that leaders speak up against the vile comments they might prefer to criminalise. When good counter-narratives are presented, when fools are ridiculed, and when honest conversations on difficult topics are allowed to be had we don’t make martyrs of bigots and we don’t drive them underground.

Our current laws forbid the incitement of actual physical harm, and will punish those who wilfully defame their fellow citizens. Attempting to pass laws against the giving of offence, however, is a fool’s errand. Far from eliminating offensiveness, such laws will only encourage and intensify it. Harm cannot be prevented, but it can be healed. Building trust and amity between peoples is achieved by starting conversations – not by shutting them down.

It may seem simply humane to clamp down on hate speech, on insults, on speech that makes people feel marginalised, hurt and unsafe. But if, in doing so, we damage the key tool which has given us the chance to live as well and freely as we do – are we prepared for that? When the government of the day – no matter its stripe – is able to dictate what can and can’t be said, are we safer? Or are we in grave danger? We should make more effort to support those hurt by the words of our fellow New Zealanders. We should work harder at building resilience and self-worth in ourselves and in our children – limiting the effect hurtful words can have. But these proposals, and ultimately the law, is not the way to achieve this.