When does free speech become hate speech? The Elephant covers both sides of the story

Free speech advocate Nathan Seiuli and trans actor Awa Puna debate free speech versus hate speech on The Elephant.

The Elephant is a new online video series that tackles the conversations New Zealanders often avoid. It dives into big, uncomfortable questions, looking beyond the echo chambers in search of a fearless and honest debate. This week in episode 10, hosts Miriama Kamo and Mark Crysell ask ‘When does free speech become hate speech?’

New Zealand’s long-running fight over where free speech ends and hate speech begins has reignited, after the Law Commission recommended stronger legal protections to transgender, non-binary and intersex people.

The Ia Tangata report, which means “each and every person”, calls for gender identity and expression to be written into the Human Rights Act.

Political philosopher Professor Simon Keller told the Elephant web series that the free speech argument often misses the real issue – it’s not the quantity of speech, but its quality.

“The problem isn’t that people are being silenced,” he told Elephant hosts Miriama Kamo and Mark Crysell. “It’s that we’re talking to each other in worse and worse ways. People are very ready to be abusive and dismissive towards those who disagree with them.”

For those who support the commission’s push, the stakes are personal. Filmmaker Awa Puna was Shortland Street’s first trans actor. She says hate speech isn’t theoretical – it shapes everyday life.

“As soon as free speech becomes hate speech ... it becomes really dangerous for people and harmful for certain communities,” she says.

Puna recalls the abuse she faced growing up: Slurs shouted from passing cars, hostility at school and online harassment. “Someone rolls down their window and says, ‘get away from that thing – it’s not a woman’. When someone is facing that kind of hate all the time, it affects you.”

The fear intensified at Auckland’s Posie Parker protest. “I was spat on … my hair was pulled … it really hurt,” she says. She believes stronger protections would have changed her life. “When I think about my younger self, it won’t be the same for kids if those things are in place.”

Opponents argue New Zealand already has clear legal boundaries. Nathan Seiuli, former Free Speech Union member and the CEO of Pillar, says the current law, which bans incitement to violence, defamation and libel, draws the line where it should.

“Those things are objective standards of legally restricted speech. Everything else is fair play.”

He rejects expanding the law to protect groups. “Groups don’t have rights … individuals have rights. The law protects individuals. We don’t need to create caveats that protect a group.”

Seiuli warns that regulating misgendering or dead-naming (calling a transgender person by the name they used before they transitioned instead of the name they use now) could infringe on freedom of conscience and religion. “That would restrict people’s beliefs,” he says.

But Paul Thistoll of Rights Aotearoa says inaction carries a cost. He argues many comparable democracies – including the UK, Germany and France – already treat hate speech as a serious threat to social cohesion.

“Hate speech is corrosive to the dignity of both individuals and groups,” he says. “It says ‘you don’t belong here. Your place in this society is worth less than others’.”

Thistoll dismisses the idea that hate is too subjective to legislate against. “Courts already interpret hate as an aggravating factor in crime,” he says. “The law hasn’t been updated since 1993. It needs to be.”

The Government has not confirmed whether it will adopt the recommendations, but the debate is unlikely to go away regardless.

“We’re all human,” Puna says. “And hate speech can lead people down a really dark path.”

Watch, listen, and join the conversation – new episodes drop every Thursday across digital, social, and broadcast platforms. The Elephant is made with the support of NZ On Air.