It’s no secret that the government is planning to introduce new, strengthened laws against ‘hate speech.’ New Zealand already has several pieces of legislation that set the outward bounds of free expression, including the 1993 Human Rights Act, which outlaws any speech that intends ‘to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins.’
With their new proposal, the government wants to add further grounds to this, so that it would be illegal to incite hatred against any group of people on the basis of their sex, sexual orientation, age, disability, employment status, family status, religious beliefs (or lack thereof), ethical beliefs (or lack thereof), or political opinions. They would also stiffen penalties, to ‘up to three years’ imprisonment or a fine of up to $50 000.’
It should immediately clear that the language here is unworkably vague. When exactly does blunt, on-the-nose criticism become hatred? Which beliefs, precisely, would qualify as political – and thereby be protected from hate speech – and which wouldn’t? If (as we’re often told these days) everything is political, what beliefs wouldn’t be protected under the law? And if virtually all points of view would (in theory) be covered by the new laws, what hope would there be for the kind of robust, open discussions on which democracy depends?
The problem is compounded by how astonishingly broad the proposed laws would be. They would apply, as we’ve seen, not only to speech about ethnic groups, but also to groups defined by age, employment status, or religious, ethical, or political beliefs. Even for characteristics that are relatively easy to define (age, say) this would potentially criminalize a good proportion of New Zealanders’ everyday conversation on social and political themes. Tova O’Brien recently asked the Justice Minister, Kris Faafoi, whether millennials could be prosecuted under the new laws for bashing Boomers. Amazingly, the minister couldn’t rule it out.
This brings us to the breathtakingly harsh penalties the new laws would make possible. As ACT leader David Seymour has pointed out, three years’ imprisonment is a longer sentence than for some types of physical assault. But comparing ‘hate speech’ with assault misses the point. Imprisoning people for expressing their views is something that only happens in totalitarian dictatorships: East Germany, the Soviet Union, contemporary China. Does New Zealand really want to add itself to that list?
Supporters of the law will call this fear-mongering. These new laws will set a high bar for prosecution they say; the idea that people will be arrested for making jokes or for expressing opinions is ludicrous. But these things have actually happened in Scotland under its new hate speech laws, despite similar assurances that their laws would rarely be used. (In any case, it’s not immediately obvious why proponents of the new laws are so keen to introduce them at all if they think they’ll almost never be used; but we’ll have to leave that aside.)
It’s true, of course, that it would be impossible to prosecute everyone who engages in ‘hate speech’ under the new laws. That follows from the breathtaking breadth of the provisions, which, as we have seen, would seem to encompass vast swathes of ordinary speech. Since these laws can’t be applied consistently, the only alternative will be to apply them inconsistently, that is, unfairly. As the Scottish case makes clear, people who criticize ideas that are currently fashionable within the socio-economic elite will now risk not only ostracism but criminal charges. Those, on the other hand, who engage in clearly hateful language but from the ‘right’ side will be allowed to continue to do so. This, of course, is how laws restricting the freedom of expression – laws against blasphemy or heresy, for example – have always worked.
Could we not live with a bit of inconsistency if it protects vulnerable groups, like Muslims? The Prime Minister clearly thinks these laws will help prevent another Christchurch. The problem here is that it’s not entirely clear that limiting free expression (in the several different contexts that scientists have looked at) significantly reduces violence. Violence has, as it happens, declined markedly over the past few hundred years – just as legal restrictions on speech were being ignored or done away with and liberalism was spreading across the globe.
The government has claimed that their proposed laws would actually strengthen free speech rights, ‘including the rights of people who are the targets of hate speech to express themselves freely.’ The idea here is that some are intimidated into silence; and verbal abuse can certainly be intimidating. But so can the threat of three years in jail. Does the government seriously think that threatening to imprison people if they say something hateful (vaguely defined) is going to make for an overall improvement in the climate for free expression?
Journalist Marc Daalder has claimed that the proposed changes, far from broadening the application of our ‘hate speech’ laws, would actually narrow them. Instead of the 1993 Human Rights Act’s ban on speech that intends to ‘to excite hostility or ill-will against, or bring into contempt or ridicule,’ we would be proscribing language that was meant to ‘incite/stir up, maintain or normalise hatred.’ But most types of speech that can be accused of exciting ‘hostility’ or ‘ill-will’ can just as easily be accused of inciting hatred. And in any case, as we’ve seen, the new law would hugely expand (even ad absurdum) the range of characteristics that would be protected.
A number of critics of the proposed changes have argued that liberal democracies should baulk at criminalizing speech that falls short of direct incitement to violence. In response to this position, Victoria University Law lecturer Eddie Clark has pointed out that we already penalize certain types of speech that fall short of this mark – knowingly untruthful speech in court, for example, otherwise known as perjury. But of course there will be rare exceptions to liberal democracies’ tolerance for speech; the point is that these should remain rare exceptions and that pose no risk of criminalizing citizens for ordinary expression, as these new laws do.
Free speech is the foundation-stone of both liberalism and democracy. Without free speech, other freedoms lose their rationale. What good is the freedom of conscience, for instance, if people can’t express their views (or are forced to mouth views they disagree with)? And without free speech, democracy – a system based on the political equality of all citizens – would be a dead letter. What meaning does the principle of political equality have, if people aren’t equally free to express their views about issues of public policy? Free speech, and the contest of ideas it allows, has also played a crucial role in the advance of science and learning – one reason, perhaps, that development and democracy are strongly associated.
The debate over ‘hate speech’ laws in New Zealand isn’t happening in a vacuum. The last few years have seen the rise of an alarming new brand of illiberalism across the English-speaking world. Speakers with disfavoured opinions have been met with ‘de-platformings,’ violence, and even riots. Books have been withdrawn from stores, articles have been retracted from journals, and scholars have been hounded out of their jobs or fired, all for ideological reasons. We have already seen the first few examples of this phenomenon in New Zealand. By proposing to strengthen and broaden our ‘hate speech’ laws, the government has signalled that it sees no problem with this growing movement against the bedrock principle of the open society. Indeed, it has eagerly joined it, implicitly sanctioning terrible ideas – the notion that speech can literally constitute violence, for example – in the process.
As academics of a now thoroughly out-moded sort, we would, in ordinary circumstances, be somewhat reluctant to make statements of a party-political nature. This government obviously isn’t sitting on a large majority in Parliament for nothing; and it’s by no means impossible that it could still make headway on some important issues facing New Zealanders, including housing, inequality, and unemployment. Progress on these sorts of issues – the proper purview of left-wing governments – might well have won the government the respect of New Zealanders across the political spectrum, had its ministers chosen to focus their energy and abilities on them.
Instead they have opted to blunder into the sensitive and delicate area of limits on speech without even bothering to prepare answers to the most obvious questions on the topic, and apparently blithely unburdened by any understanding of the seriousness of the issue. New Zealanders should bear this in mind when they next find themselves at a ballot-box; in the meantime, we would urge them to make their voices known – by making an official submission, by posting on social media, or by writing to their MP (of whatever party) – before these disastrous proposals become enshrined in law.
Dr. James Kierstead is Senior Lecturer in Classica at Victoria. Dr. Michael Johnston is Associate Dean (Academic) in the School of Education at Victoria. They are co-hosts of the Free Kiwis! podcast, which is dedicated to free enquiry in a New Zealand context.