Ideas are meant to provoke action. That’s not a crime - Jonathan Ayling

Winston Peters claimed the attack on his home was incited by rhetoric from Green Party co-leader Chlöe Swarbrick. Photo / Mark Mitchell

THE FACTS

• Race Relations Commissioner Dr Melissa Derby clarified she does not support expanding section 131 of the Human Rights Act.
• Winston Peters’ home was vandalised, with Peters alleging it may have been incited by rhetoric from Green Party co-leader Chlöe Swarbrick.
• Swarbrick condemned the damage, emphasising her speech aimed to provoke debate, not unlawful actions.

Ideas are meant to provoke action. When that becomes a crime, democracy is already on trial.

In her Sunday appearance on Q+A, Race Relations Commissioner Dr Melissa Derby made a series of claims with respect to “hate speech” laws that were widely misunderstood. Or perhaps, rather, she appeared to misunderstand the questions posed by Jack Tame.

One way or the other, her comments, while later thoroughly clarified, will still no doubt be used in some circles to bang the drum for increased censorship and expanded “hate speech” laws.

Certainly, the saga undeniably highlights the unavoidable weakness of “hate speech” laws: vague, subjective terms that end up tying our public debate in knots.

Derby initially appeared to support expanding section 131 of the Human Rights Act, which prohibits bringing certain communities into “hostility or contempt”, to include religious and rainbow communities. This raised concerns for me, both as a critic of neo-blasphemy laws and as the person who first recommended her for the role to the Minister of Justice.

In conversations with her the next day, she clarified that she supports expanding the number of protected groups under s131 but not lowering the threshold on hate speech laws.

Race Relations Commissioner Dr Melissa Derby.

Instead, she had misunderstood Jack Tame’s reference to “incitement” as meaning incitement to violence; a much narrower and widely accepted standard. But even this phrase is vulnerable to a variety of interpretations.

The definition that provides the brightest lines, and therefore the strongest assurance for objective, consistent application, comes out of the Supreme Court of the United States.

The Brandenburg vs Ohio case (1969) outlines that the test of incitement to violence, which is not afforded protection under their First Amendment, is twofold: (1) advocacy is directed to incite or produce imminent lawless action; and, (2) it is likely that this intention would actually produce such action.

In other words, unless someone is directly encouraging immediate violence, and it’s likely to happen, their speech remains protected.

It is a simple point of consistency, on Derby’s part, to reassert that the free and largely untrammelled right to free expression does not extend to the moment where individuals are likely to translate speech or ideas into imminent lawless action.

Though, undoubtedly, conceding this point provides fodder to those who would seek to interpret “incitement” in a far more expansive way.

So where does an individual’s free expression of ideas turn into “incitement”?

This question arose in the hypothetical on Q+A. But it was not hypothetical when an individual smashed a window at the home of Winston Peters on Monday night, following protests over a series of days at his house in response to the Government’s decision to not yet recognise the state of Palestine.

Peters claims the attack was incited by rhetoric from Green Party co-leader Chlöe Swarbrick. Should she be liable for the unlawful actions?

The reality is, there is nothing more powerful in our lives and society than the ideas upon which we build. Inevitably, the free exchange of ideas and speech, especially on important issues (which is to say issues that will necessarily be controversial, disputed, and contested) are intended to see certain actions pursued.

In this case, Swarbrick’s speech is intended to induce opposition to the Government’s decision, to generate engagement with the issue, and to pressure the Government into a different position (or at least, more realistically, produce momentum for a different decision by different Government in the future).

Can Swarbrick’s speech, then, connected with these intended courses of action, be considered “incitement”? Should she in any way be held responsible for the unlawful actions of another individual?

No. To do so would be a dangerous precedent and an injustice.

Swarbrick’s condemnation of the damage to Peter’s house was swift and comprehensive. That in itself does not mean she did not incite the action. However, in this case, there is no connection between the legitimate and important presentation of the views she holds on a controversial issue, her support for protest action in line with those views, and the illegal actions of the individual.

Swarbrick’s right to present strong ideas that others find “hateful” must be protected, notwithstanding others’ wrong choice to take unlawful action (or the Green Party’s very erratic tendency to defend free speech).

Ideas are meant to provoke action. That is their purpose – and their power. A free society must place as few constraints as possible on the ideas we’re allowed to consider and express.

Once we blur the lines around “incitement”, we don’t just chill speech, we undermine the very mechanism by which democracy works: the contest of ideas, not force.

Correction: This article has been amended to correct the section of the Human Rights Act that Dr Melissa Derby was referring to in her Q+A interview. She was referring to s131 and not s61, which also mentions racial disharmony but in relation to publishing and broadcasting rather than incitement. Derby clarified she supports expanding the number of protected groups but not lowering the threshold in legislation.

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