COMMENT:

Controversy around recently-cancelled talks in New Zealand raised important questions about free speech. Ostensibly it was threats of violence that led to speakers being "de-platformed" but there is a strong whiff of political bias. Either way, accusations of "hate speech" have been raised, and some commentators have suggested that we need laws against the expression of hateful ideas.

This is an argument that has been implicitly put forward by the Human Rights Commission with a special emphasis on "religious hate speech directed at Muslim New Zealanders" and is predicated on the assumption that we need to protect people from harmful words, much like we outlaw harm caused by physical violence.

There is no good evidence that offensive language or challenges to ideas, however provocative or unreasonable, creates such severe harm as to require legislation. However, there is reason to argue that direct threats or speech that incites direct violence should be illegal — and it is already prohibited under our existing laws (along with reasonable restrictions on defamation, and breaking contracts by sharing information or plagiarising).

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Yet, even with such a seemingly objective test as inciting violence it is even difficult to determine what is and is not speech that incites violence. For example, the Human Rights Commission did not think that shouting "...bash the Jewish, cut their heads off..." in an Auckland protest was worthy of investigation, let alone prosecution.

Part of the reasoning of the commission was that no violence followed and so it did not incite anything. This is logical reasoning but somewhat undermines the preventive intent that would seem to underpin laws against speech and not the act.

Deciding what might constitute "disharmonious" or "hateful" speech is an even more complicated problem than incitement. It would seem ridiculous to imprison anyone who makes another person feel upset. Even if some speech could cause substantial harm to warrant suppression and we had some great research and tools that could determine what that speech was, it is not clear that laws are the answer.

Some commentators have made an argument for banning speech that claims racial superiority or inferiority (the definition of racism) by claiming that if only there were such laws in 1920s Germany, six million Jews and others might not have been systematically murdered.

As compelling as that argument sounds, it is not based in reality. There were hate speech laws in the Weimar Republic, including against "insulting religious communities". Hundreds of Nazi affiliates were prosecuted under these laws.

Police also cited possible disruption to order as a reason to shut down meetings where Hitler was to speak. The National Socialist German Workers' (Nazi) Party was banned from speaking in all German states before it rose to power. Hate speech laws did not work.

In fact, some have made a case that they actually helped the Nazis. Presenting as political martyrs arguably helped rally more public support, in much the same way that the current use of "health and safety" to ban speakers in New Zealand has propelled their publicity.

The gag of Hitler was accompanied with posters of him and the caption "One alone of 2000 million people of the world is forbidden to speak in Germany".

There is another, less practical and more fundamental, reason for opposing legislation against hate speech. Even if we could define what is and what is not hateful and even if there were real harms caused and even if the laws were effective, giving power to the state to effectively govern speech is a dangerous precedent. Just as the Nazis were persecuted by hate speech laws in the Weimar Republic, they went on to implement their own suppression on expression.

The Third Reich organised a massive propaganda campaign and excluded opposing views in media, forced boycotts on Jewish businesses, and burnt books they disapproved of. In the words of Holocaust survivor, Aryeh Neier, "Those who call for censorship in the name of the oppressed ought to recognise it is never the oppressed who determine the bounds of censorship".

The response to hate speech is not legislation, but better ideas expressed with more speech. Edmond Burke's famous quote "all that is necessary for evil to triumph is for good men to do nothing" is a much better summation of the correct response to hateful ideas.

And this is more than mere theory. Denmark was the only European country that actively supported the Jewish community, en masse, against the Nazi regime's attempts to exterminate them and it is the only European country where almost all the Jews were saved.

Thus, the rally against the Canadian speakers in Aotea Square is a promising sign that communities are not hiding away from challenging ideas. However, it was concerning that none of the speakers at that event articulated better ideas or addressed the controversy in any substantive manner. Name-calling and dismissing people is not an argument.

Our political leaders and our media have an important role to play in seeking and sharing comments that challenge the hateful ideas.

In this respect, Newshub's Dan Satherley article, with arguments from Otago Emeritus Professor James Flynn to properly combat the cherry-picked and distorted views of Stefan Molyneux, is an excellent start. The combative and ill-prepared "interview" Patrick Gower conducted with the pair is not a model to emulate, and reclaiming the "c" word is not an argument, either.

We must rise above slogans and epithets, challenge disagreeable ideas with reason and fact. Our leaders must step above megaphone politics and engage with difficult topics honestly and openly and maturely. That is what will ultimately combat hate. Just like it took a court case to finally show David Irving up to be an antisemitic charlatan rather than any sort of reasonable intellectual.

And we must provide safe spaces for these difficult ideas to be challenged. Those who threaten violence must be condemned in the strongest terms and they must not be allowed to control who can speak or who we can listen to any more than a government should have that power.

We must struggle with ideas — challenge them and be challenged — rather than be forced to submit to whoever is in charge or threatens violence.

• Dr David Cumin is an Auckland-based academic and member of the Free Speech Coalition. Paul Moon is a professor of history at the Auckland University of Technology.