COMMENT

When Renae Maihi went to court, I couldn't help but wonder where Don Brash, David Seymour and the free speech brigade were. Given that Brash and his "Free Speech Coalition" quickly rushed to court to defend Lauren Southern and what's-his-face Molyneux's right to free speech, I waited for them to run to the media to express absolute outrage at the defamation action against Maihi. I waited for them to launch a public fundraising effort to support her defence. I searched far and wide for their expressions of unwavering support.

I'm still searching.

Outspoken free speech advocates seemed strangely reserved last week when [Sir Robert] Jones and Maihi faced off in court. In my honestly held opinion, I can't say I'm surprised.

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Could it be that the free speech argument isn't the objective, lofty, egalitarian lark it's often billed as? It's funny how "free speech" sometimes seems to go only one way.

READ MORE:
Renae Maihi speaks out after Sir Robert Jones drops court case
Sir Robert Jones abandons defamation case against Renae Maihi mid-trial
Sir Bob Jones admits he didn't read petition he claims defamed him

While I didn't see anything from Brash, the esteemed advocate for free speech (and noted opponent of being forced to listen to Guyon Espiner exercise his right to free speech in te reo Māori on RNZ) last week, in a statement issued when news of Jones' case against Maihi broke, he offered this: "The 'racist' tag is freely used, with apparent impunity, by 'Māori rights' activists, often to shut down debate… Do we or do we not have freedom of speech and does freedom of speech extend to race issues?" before concluding, "Sir Robert has done us all a favour by putting this issue up for public debate."

It's difficult to imagine a mechanism that has a more chilling effect upon free speech than defamation proceedings. And as for freedom of speech, if, as "Free Speech Coalition" member Chris Trotter wrote in a blog recently, "At the core of the free speech argument is the proposition that every citizen is obliged to uphold the right of every other citizen… to express their opinions freely and without the fear of any retribution beyond their opponents' vigorous refutation," then shouldn't he, Brash and the entire so-called "coalition" have been at pains to defend Renae Maihi's "right… to express [her] opinions freely and without the fear of any retribution beyond [her] opponent's vigorous refutation"?

Sir Robert Jones on the first morning of his defamation proceedings against film-maker Renae Maihi in the High Court at Wellington. Photo / Mark Mitchell
Sir Robert Jones on the first morning of his defamation proceedings against film-maker Renae Maihi in the High Court at Wellington. Photo / Mark Mitchell

It appears that being called a "racist" offends people like Brash and Jones. Much has been made of expressions of offence, particularly when those on the left disagree with views expressed by those on the right. People reacting to controversial statements – particularly about Māori and women – are often called "snowflakes" who invoke "cancel culture" in order to "silence" those they disagree with. Or, alternatively, "radicals" who throw words like "racist" around with apparent "impunity".

Which all sounds comfortingly straightforward until you consider that expressions of outrage and offence are also covered by freedom of expression. Indeed, "impunity" can be defined as "exemption from punishment or freedom from the injurious consequences of an action". Surely, the right to use speech with "impunity" is exactly what free speech advocates campaign for. Exercising the right to free speech doesn't mean that you will be protected from the (sometimes passionate) disagreement of others. We can argue about the appropriateness of the response, but not against the right of reply itself. No matter how offended we may be.

"How much do we tolerate of ridiculous offence-taking?" Jones asked last week, whilst sitting in court because a young woman started a petition that he apparently never read but that nonetheless offended him so deeply that he launched proceedings against her.

It felt like theatre of the absurd. Jones voiced an opinion that offended Maihi, who in response voiced an opinion that offended Jones. And round and round we went.

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I have been called many things, including "racist" (among many, much worse epithets) and whilst I've offered my "vigorous refutation" on numerous occasions, I've never taken anyone to court. On occasion, I've been mightily offended by what people have said and written about me, but had I run off to court every time someone wrote something nasty about me or called for me to be stripped of various privileges I'd be both bankrupt and terribly suited to write opinion columns.

Whether Jones is racist or not (and I have some honestly held views about that) in a free society you are absolutely entitled to feel offended and outraged, and to express such feelings. You are also entitled to express stupid, offensive, controversial, morally-bereft, inane, badly written opinions. You are also, if you're wealthy enough, entitled to go to court to ask it to give someone who's hurt your feelings and written or said something not very nice about you a telling off. But just because we have these rights – to say stupid things, to express outrage, and to go to court – doesn't mean it's always wise, or indeed reputation-enhancing, to exercise them.

Funnily enough, in some ways, defamation legislation is one of the most significant threats to the freedom of expression. As legal commentator Graeme Edgeler recently wrote for the Herald, "In theory, there are other laws that could more greatly impact freedom of expression in New Zealand, but defamation laws far exceed them in practice." He went on to suggest that the courts should not be concerned with simple name-calling, because, "if your reputation can be harmed by someone calling you a name, your reputation may not have been as good as you thought it was", and that "the outdated, restrictive defamation laws applying in New Zealand" should be changed "the sooner the better".

And so I find myself waiting again, this time for our cherished free speech advocates to co-sign Edgeler's missive. Otherwise, I can't help but wonder whether some of those calling for "free speech" secretly just want to be able to say whatever they want without anyone being able to tell them that, in their honestly held opinion, they're a dickhead for saying it.