As a libertarian my instincts are for the highest levels of freedom of speech. However as with all freedoms its limits lie where they infringe on the rights of others. Libertarians aren’t anarchists, you can’t “do what you want” when it initiates force or fraud against another. As your rights are to be free from violence against you or your property (and your property includes intellectual property and your reputation), then the appropriate limits on freedom of speech are those that violate the rights of another. There are laws on these violations already.
That includes threats of violence, it includes inciting others to inflict violence (including property damage) and includes recording a crime as an accessory to that crime (this covers child pornography and filming rape or someone being assaulted “for fun”). One claim is that the law doesn’t cover threats of violence against groups, but a group is a collection of individuals, and if this is true then a simple amendment of the Crimes Act can be made, with S.174 adding to “person” the words “or group of persons”. S.306-308 also contain provisions around threats that are relevant, so they idea that somehow there is some yawning gap in the law that allows people to threaten others with violence is simply false.
Is expressing hatred of someone a violation of that person’s rights, or more generally is expressing hatred for a group or class of people a violation of their rights? In and of itself no it isn’t. Hatred has come to be an emotion that the “kindness” state of Jacinda Ardern wants banned, but it is not an emotion without merit. In the right context, it is not only appropriate, but almost a moral imperative. Why would any decent person not hate Fred and Rosemary West, or “Dr” Mengele, or Saddam Hussein? If a defined class of people are waging violence against you or your loved ones, or even complete strangers why should you not hate them? Actual Nazis, the Khmer Rouge, ISIS, Al Qaeda, the Stasi, Japan’s wartime Imperial Army, a mafia family, a criminal gang.
You don’t have a right to be protected from someone hating you as an individual or a member of a group. Indeed, this is a position held by many people across the political spectrum. Religious zealots hate non-believers, communists hate the bourgeoisie, trans-activists hate those they call TERFs, socialists hate “neo-liberals”, environmentalists hate fossil fuel producers and buyers of large utes, crime victims hate criminals, etc etc. You see hatred of others is a normal reaction to a passionate set of beliefs or a passionate belief in injustice. The issue is when such hatred is expressed as a threat, whether it be a direct threat to imminent violence or an implicit threat of violence or other action to prevent someone going about their lives peacefully. The fear generated by those expressing such threats, and by those touting bigoted views is palpable and contrary to the values of a rational, moral and liberal society. The question is how to address such threats. Criminal law should protect people from threats of violence, but I’m very cautious about how far to take that.
So there is hate speech law now, but the Ardern Government wants to go further. The stated purpose is to help prevent a repeat of the Christchurch Mosque Attack, but this hypothesis is questionable at best. Let’s look at the direct purpose of the proposed changes from the discussion document:
The proposals target the types of communication that seek to spread and entrench feelings of intolerance, prejudice, and hatred against groups in our society. All people are equal, and our society is made up of people with many different aspects to their identities. The incitement of hatred against a group based on a shared characteristic, such as ethnicity, religion, or sexuality, is an attack on our values of inclusiveness and diversity. Such incitement is intolerable and has no place in our society.
The idea that inciting hatred against a group based on a shared characteristic that is inherent to those people is certainly an attack on the values of a free liberal society and should have no place in a free society. However, if a shared characteristic is simply sharing an opinion, there that is a whole different situation. You can’t help race, sex or sexuality, but you can help what you think, and what some people think does not entitle them to be immune from hatred.
So the proposal is not about threats of violence, but about communications that are intended (intent matters after all) to spread and entrench (i.e., sustain) “feelings of tolerance, prejudice and hatred”. Now it’s easy to work out what these might be, the problem is what some might think these are.
Is the column by Karl Du Fresne in the Spectator that talks of “Maorification” one that “entrenches” feelings of prejudice, or is it legitimate political commentary?
How about when Debbie Ngarewa-Packer describes in the NZ Herald NZers as either being tangata whenua, recovering racists and racists? Does that seek to spread feelings of intolerance against non-Maori?
Clearly there is no point asking Kris Faafoi, who doesn’t have a clue as the least qualified Minister of Justice for 13 years. The man's an idiot. Furthermore, Jacinda Ardern thinks she shouldn’t be responsible for explaining what Cabinet’s decisions on new laws should mean in practice. The nodding dogs of the Labour left and the Greens are all filing in behind her, so it is better to just read the proposals. So in this post, I'll look at just one.
Proposal One: Change the language in the incitement provisions in the Human Rights Act 1993 so that they protect more groups that are targeted by hateful speech. Under this proposal, more groups would be protected by the law if hatred was incited against them due to a characteristic that they have.
This is about Sections 61 and 131 of the Human Rights Act. Section 61 prohibits publishing or distributing written matter, or using words in a public place that are “threatening, abusive, or insulting” on the grounds of colour, race, ethnic and national origins. Section 131 prohibits “with intent 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”.
The Government wants to expand the groups this law “protects” from “insults” or from “contempt or ridicule” far beyond race and nationality. Consider the categories it wants to include:
• Sex (so no jokes about men, or women)
• Gender (no jokes about men who self-identify as women and look absurd)
• Marital status
• Religious belief (so yes that IS Life of Brian. Don’t intend to ridicule religion)
• Ethical belief (so don’t be ridiculing people who think abortion is murder, or who think pornography is good or evil, or that smacking is good practice, or etc etc)
• Disability (including carrying an infection)
• Age (don’t ridicule stupid young or old people)
• Political opinion (don’t bring communists or libertarians into contempt or else)
• Employment status (don’t bring into contempt people who are receiving taxpayers money)
• Family status (which includes “being a relative of a particular person” so you can’t ridicule a husband/wife/partner of a psychopath?)
• Sexual orientation.
Some of these are less objectionable than others, but the idea that there should be a prohibition on bringing into contempt or ridicule people because of their opinions is entirely outrageous.
Intending to bring into contempt any group of people on the grounds of their religious belief will be banned. That’s frankly outrageous. Fundamentalists of any religion should not be immune from insults or being brought into contempt because their beliefs are worthy of contempt. This is blasphemy law through the back door. It goes further, you can’t ridicule entire groups because of their ethical belief (i.e., blood transfusions are evil, or vaccinating children is evil), nor can you ridicule people for their political beliefs.
This is frankly extraordinary.
Given the Christchurch shooting was entirely motivated by religious hatred, if the law were to be about change to cover this, it would be simple enough to only prohibit threatening language regardless of the basis because nobody should be threatened.
This proposal alone should cause anyone who believes in liberal democracy and freedom of expression to go cold and simply reject this nonsense.
To add insult to this, the discussion document assumes that there isn’t a legitimate point of view that outright opposes this proposal. It’s proposed questions are:
Do you agree that broadening the incitement provisions in this way will better protect these groups?
o Why or why not?
- In your opinion, which groups should be protected by this change?
- Do you think that there are any groups that experience hateful speech that would not be protected by this change?
The first question begs the question “protection from what”? From being ridiculed? Is the question ever asked why some groups should be protected from ridicule?
The second question is just “what groups” should this apply to.
The third question is “who else can we protect from being laughed at”? I can see some saying “fat people, thin people, redheads, blondes, short people, people wearing revealing clothing, people wearing hats, types of occupation, types of recreational activity”. I mean the list of groups is ENDLESS.
To hell with this Orwellian social-engineering philosophy to “protecting” people based on their opinions. There is a shred of value in asking why sex, disability and sexual orientation are not included in the current law, because those are characteristics that are essentially immutable, but almost every other element listed is a conscious characteristic. At the very least this proposal will have a chilling effect on humour, but at worst it will make it illegal for me to say communists are either morons or psychopaths, or that Salafist Muslims are stone-age cretins, or that the Green Party are a bunch of loony leftie authoritarian control freaks.
And that’s just Proposal One….
It alone should cause you to make a submission before 6 August (see here for details).
By the way, good on both David Seymour and Judith Collins for taking this on, and also on the left, for Martyn Bradbury, who I scarcely agree with on anything, but he's right on this one.
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