Shaneel Lal’s column provides a wonderful chance to talk about what free speech is and isn’t.
There is the high school libertarian version - you can say anything to anyone at any time, and anyone who disagrees is a cry baby. But that’s not a realistic model that any serious person believes in 2023.
In the world we live today, there are a web of rules that even hardcore free-speech advocates like me respect. What they have in common is that they can be fairly applied to all, in accordance with the rule of law.
The Crimes Act has several prohibitions on free speech. You can’t directly incite another person to commit a crime. You can say “the rich have had it too good too long.” You cannot say to an excited mob “go and burn down that big house to teach the rich a lesson.” Nor can you threaten a person with a crime. You cannot blackmail someone, nor can you be a criminal nuisance (the classic yelling “fire” in a crowded theatre).
Those restrictions bind us all, but there are others you can voluntarily enter. If you work for a high-tech firm, you have probably signed a non-disclosure agreement, promising you won’t tell anyone the firm’s secrets. If you are sworn into Parliament, you agree to a set of rules called the Standing Orders that govern what you can and can’t say in certain circumstances.
If you become a Cabinet Minister you’re bound by the Cabinet Manual which includes things like “exercising a professional approach and good judgement in their interactions with the public and officials, and in all their communications, personal and professional”.
So why did ACT and many others spend years successfully fighting against so-called “hate speech” laws, if we accept all the above restrictions? Why did Labour ultimately decide not to introduce more restrictions on speech, after being gung ho?
In a word, subjectivity. All the above restrictions are matters of fact, or private contract. You can tell if you’ve done wrong by reading the law, and it applies to all equally.
Hate speech laws abandoned by Labour would have made it a crime to “intentionally incite/stir up, maintain or normalise hatred… through threatening, abusive or insulting communications, including inciting violence.” How could a person accused defend themselves? How do you prove that you didn’t intend to stir up hatred using insulting language?
As the Royal Commission on the Christchurch mosque attacks said, “The difference between legally criminalised hate speech and the vigorous exercise of the right to express opinions is not easy to capture in legislative language.”
When challenged to define hate speech on television, then-Prime Minister Jacinda Ardern said “you know it when you see it.” Not really the kind of legal precision you’d want when defending yourself against jail time.
Usually the point of the law is you know what actions would break it and can defend yourself if accused. As historian Paul Moon has said, hate speech laws are so subjective the accused won’t know if they’re guilty until the point of conviction.
ACT opposed hate speech laws because they are subjective. They are inconsistent with the rule of law in a way that other restrictions are not. They would be applied more often against the politically unpopular, meaning law enforcement became opinion enforcement.
Lal says I, hypocritically, only object to free speech when my feelings are hurt, or I disagree. All the examples they cite are of legitimate restrictions on speech that I’ve always supported.
Rawiri Waititi should apologise for threatening to poison me (threats). I blocked Golriz Gharaman’s attempt to speak in Parliament after she repeatedly interrupted mine. If you want the privilege of speaking in Parliament, you must grant it to others (standing orders).
Tusiata Avia performed a poem where she suggested Captain Cook, and white men like him should be hunted down and stabbed with pig knives (incitement).
The Prime Minster should sack Marama Davidson for breaching the Cabinet Manual she signed up to – and for being an ineffective minister as I’ve said (Cabinet Manual).
Far from having my feelings hurt by Jacinda calling me an arrogant prick, I accepted her apology and proposed we auction the Hansard, raising $100,100 for the Prostate Cancer Foundation, supporting pricks everywhere!
As a matter of fact Ardern texted her apology after I raised a point of order. But my raising it also meant it would be written down in Hansard and later auctioned (standing orders again)!
I could go on but, suffice to say, free speech matters, it is the foundation of a free society, alongside the rule of law it depends on. If you believe in free speech, understanding its lawful limits is as important as defending it against unlawful erosion.