COMMENT:

Free speech purists may make some extreme claims about hate speech legislation, claiming that it prevents people from thinking what they want to think about the world. The position often adopted by those on the libertarian side of the political spectrum, an example of which was the piece by Bruce Logan (NZ Herald, May 6), is that restrictions on freedom of speech are a slippery slope to tyranny.

But there is all the difference between what you can think and what you can say or do: speech and actions can impact others, which is why regulation is proper. The purists do tend to accept that there are some valid limits on freedom of speech, such as defamation and incitement to violence laws, but usually they say we do not need anything more. These, it should be noted, are instances of speech that has an impact on others.

The conceptual basis for those who put free speech as an almost unlimited right is the idea that, as everyone is equal in a democracy, the best approach is to allow speech without limitation so that the best ideas will win out. This is the "free market of ideas" approach, and it is reflected in the case law that arises under the US Constitution. But even here there are limitations. In addition to defamation and incitement to violence, obscenity and negligently causing harm to others are not protected.

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The question therefore becomes the extent of the limitation because of the need to protect the rights of others. Put another way, freedom of speech is not an absolute right. Rather, it is a limited right, given the need to respect the interests of others.

Kris Gledhill. Photo / Supplied
Kris Gledhill. Photo / Supplied

The First Amendment to the US Constitution was adopted in part because the drafters wanted to prevent the undue restrictions on freedom of speech that were common in Europe. So there is a solid starting point for this approach. But, as is often said, context is everything. The context of the 18th century was that those governments were not constrained by democracy or human rights standards.

What we have now is a democratic form of government that had been supplemented by the need to protect minorities whose interests might be undermined by selfish or powerful majorities. This is reflected in the international human rights framework. It is worth noting why we have this framework. It was adopted as a response to the fact that the free market of ideas had allowed the development of obscene ideas of racial superiority which were used to justify slavery and colonialism; and the eugenics ideas that originated in the UK, led to compulsory sterilisation laws in the US and Scandinavia before being adopted as Nazi policy.

The Universal Declaration of Human Rights 1948, in which New Zealand had a significant drafting role, was designed to replace failed ideas. Its Article 7 provides a right to "equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination". This then led to a treaty, the International Covenant on Civil and Political Rights 1966, which New Zealand ratified in 1978. Its Article 20(2) requires that "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law".

The international human rights regime in which we participate means that we, and other countries, have agreed that the qualification on free speech extends beyond promoting violence. It should cover also the promotion of discrimination, which invariably affects minority or underprivileged populations. It is allowing that discrimination to fester which provides the slippery slope towards tyranny in the form of abuse of and violence towards other humans, not hate speech laws. Naturally, we can discuss how far those laws need to go: but they are a decent concept.

Kris Gledhill is a professor of law at the AUT Law School.