Does the right to free speech extend to shouting at a woman to take off her burqa in a supermarket? If not, why not?

We (where "we" are nice liberal folks who share in the positive values of tolerance and respect for others) like to think New Zealand has become a more diverse society, in which people have become much more accepting of difference and display greater willingness to live with the life choices of others.

Multiculturalism. Same sex marriage. Legalisation of prostitution. And so on.

Unsurprisingly, this belief has found its way into the law in a number of ways. There's legislation, of course, as was the case with same sex marriage and prostitution reform laws. But there's also been changes in how the courts approach certain issues, driven by a sometimes open/sometimes unstated belief that the law needs to move with the new times in which we live.

For example, the Supreme Court, in a couple of cases called Brooker v Police and Morse v Police (I've posted on them in passing here and here), has indicated that the offences of "disorderly" and "offensive" behaviour now need to be applied in ways that are properly respectful of the rights of individuals to express their (often unpopular or inconvenient) views on social and political matters. Such expression should only be criminalised where it poses some threat to public order that exceeds the bounds of what a properly tolerant citizen who is mindful of the rights of others should have to bear.

That's not the same as saying that "free speech" now means "anything goes" in terms of how you can express your beliefs. There are still limits to just how "disorderly" or "offensive" you can be in the means that you choose to have your say. It's just that the Supreme Court ruled those limits ought to be looser today than they were in the past (when you could be convicted and fined for things like saying "fuck" during an anti-government speech in Aotea Square, or calling out "the Treaty is a Fraud" during a reception at the Beehive).

Just where those limits should lie today is then the tricky question. That's especially the case where the person seeking to express his or her views is saying something that we (where "we" are nice liberal folks who share in the positive values of tolerance and respect for others) find particularly distasteful.

Step forward Ms Yuet Rappard, in a story courtesy of the Otago Daily Times:

Farm worker Yuet Rappard appeared before justices of the peace in the Dunedin District Court yesterday and was found guilty of offensive behaviour and fined $500 for telling a student to remove her burqa on May 17.

Rappard, representing herself, did not dispute that she told a University of Otago student to take off her burqa at Gardens New World, but told the court she was expressing her freedom of speech.

''I said, 'Shame on you, you should take it off. When in Rome you should do as the Romans do'.''

Rappard, who moved to New Zealand from the Netherlands when she was a child, believed burqas should be banned and felt ''intimidated'' when she saw people wearing them.

There's a bit of a conflict of evidence as to exactly how Ms Raddard expressed her views. According to the supermarket worker who served the student in question:

... Rappard moved to within 10cm to 15cm of the student's face before shouting at her to take off the headscarf.

''I think she called her a dirty Muslim and I think she said, 'You're from New Zealand - take off the head scarf'.''

That same worker then reported seeing Rappard "shouting" at the student again outside of the Supermarket.

Rappard's account, however, denied using the words "dirty Muslim" and claimed not to have been "shouting" when expressing her views. Because I'm working off the ODT's coverage and haven't seen the justices of the peace decision, I don't know which version of the truth was preferred by them. Given the outcome, however, I suspect it was that of the supermarket worker, so I'll run with that.

Now, here's the question for us (where "us" are nice liberal folks who share in the positive values of tolerance and respect for others). Why should Ms Rappard's particular expression of views that we find quite distasteful attract a criminal conviction and fine?

Well, it can't be the views themselves, can it? Because if it is, can we distinguish Ms Rappard's actions from (say) a Maori kaumatua who tells a visiting tourist to take off a t-shirt that he believes has an image that misappropriates or demeans part of tikanga Maori?

Well, maybe we could do so, on the basis that the burqa has a particular religious importance and meaning for the student above and beyond that which a tourist would feel for a mere t-shirt. However, isn't it precisely that religious importance and significance that so upsets Ms Rappard? So the symbolic value of the burqa works both ways here - it both increases the impact of the expression on the student, but also increases the "value" of the expression to Ms Rappard. How can we privilege the right of the student to wear what she wants for religious reasons over Ms Rappard's right to express her views on that student's public attestation of her faith?

So if it isn't the views in and of themselves that warrant criminal sanction, maybe it's the way that they were expressed. No matter how strongly you feel on an issue, approaching a stranger while they are going about their daily business and personally insulting them ("dirty Muslim") by shouting into their face just ought not to be allowed.

Let's say that's the problem here - by targetting the student and personally "attacking" her, Ms Rappard crossed over the line into deliberately victimising her in a bullying manner. (Looked at in this way, the current case has a lot of similarities to this other tricky line-drawing exercise from earlier in the year.)

OK - but this standard then has implications for (say) protestors at the next National Party conference. Surely anyone so incensed at National's performance in government who walks up to a delegate and shouts at her or him "Tory scum! You should be ashamed of what you are doing to New Zealand!" has acted in an "offensive" a way as Ms Rappard did. Or, again, can we privilege certain kinds of shouted insults (into the faces of ordinary political party members seeking to attend their organisation's meeting) over and above others (into the faces of students while they are doing their weekly shopping)?

Well, what about the effect that Ms Rappard's actions had on the student affected? Here's what she told the District Court about that issue:

The student, whose identity was suppressed, said being shouted at, first when she was at the checkout and then a few minutes later outside the supermarket, left her shaken.

''I was crying and shocked. I just felt lonely and scared,'' she told the court.

She had since had nightmares and the incident had affected her studies.

That's bad, and I am sorry the student felt that way. But here's the crux of the matter - whose fault is it that Ms Rappard's expression had this impact? Is it Ms Rappard's, because she has so contravened generally accepted values of civility that the hurt caused was both entirely predictable and beyond that which should be permitted? Or is it the student's, because she is failing to display the sort of resiliance and tough-mindedness needed to live in a society with multiple, conflicting views on how the world should be? 

In other words, who should be expected to be "tolerant" here? Ms Rappard, by refraining from expressing vehemently her views on the student's religious choices? Or the student, by just sucking up Ms Rappard's boorish behaviour and carrying on with her life?

So here's the question we (where "we" are nice liberal folks who share in the positive values of tolerance and respect for others) face. Can we find some way to draw a line that allows us to get all the good things we want out of a commitment to free speech, while still saying that Ms Rappard's particular behaviour ought to attract the sanction of the criminal law? Or, are we forced by our commitment to tolerance and respect for others to agree with Ms Rappard's assessment of the Court's verdict?

The guilty finding was an example of political correctness ''gone mad'', she said.

''Telling a woman to take a burqa off is in my mind not offensive,'' she said.

Discuss amongst yourselves (politely, whilst demonstrating an appropriate level of tolerance for the views of others ... such level to be arbtrarily determined by those individuals with access to the power of edit).

Comments (28)

by Graeme Edgeler on October 24, 2013
Graeme Edgeler

I have no problem with criminalising angry shouting directed at people 10cm away, who feel threatened as a result, so will assume that's what happened and leave the more difficult questions to be decided another day :-)

Or not. If it was from the other side of the street, I think I'd allow it. But am I saying that because I'm a white male who isn't as likely to feel as threatened by such speech? Who knows?

by Marcelo Rodriguez Ferrere on October 24, 2013
Marcelo Rodriguez Ferrere

Andrew, without the benefit of the decision, do you think it could possibly have considered the impact of Morse on the definition of offensive behaviour? I.e. do you think there was any capacity to cause disorder? It doesn't sound like it. 

That aside, surely this decision indicates the desirability of  a semi-subjective perspective? In tort, we're happy with the eggshell skull concept: if your tortious actions have a more significant effect than they would have had on the average person, it's your fault. I guess what I'm saying is:

That's bad, and I am sorry the student felt that way. But here's the crux of the matter - whose fault is it that Ms Rappard's expression had this impact? 

Ms Rappard. She is the root cause of that damaging impact (and let's call a spade a spade and condemn that sort of prejudice) and she should own up to the consequences of exercising her freedoms; and if by calling yelling "tory scum  I turned a National Party member into a quivering heap and caused him to have nightmares, then my actions should also be criminalised. What's the real concern with such a contextualised and subjective approach?

by BeShakey on October 24, 2013
BeShakey

I'd be interested to know if Ms Rappard expresses these strongly held views in other situations where she isn't the more powerful party. To take it to an extreme - if I (despite being one of the nice liberal folk who share in the positive values of tolerance and respect for others) oppose the burqa, but only choose to express that by yelling at young children, isn't that more problematic.

Having said that, criminalising this seems wrong. Some people seem to think that free speech means there being no consquences for speech. But in this case the appropriate response is surely for the public (at large and at the supermarket) to ridicule and heap scorn upon Ms Rappard while offering support to the victim.

by Raymond A Francis on October 24, 2013
Raymond A Francis

I read of this case in the ODT ( I am now a subscriber, thanks to an offer that could not be refused, even though I live in a Northern Province)

I decided like Graeme that the force of the delivery and proximity would enough to sway my vote (Judicial JPs sit in pairs)

But it did catch my eye with the freedom of speech angle and I will be interested in others thoughts on this matter

What you didn't mention was the shop worker first reported the matter to her boss (who called the Police) and then comforted the student (nice) and the defendant was not even a born New Zealander which I found somewhat ironic

by Graeme Edgeler on October 24, 2013
Graeme Edgeler

I.e. do you think there was any capacity to cause disorder? It doesn't sound like it.

In the sense used by some judges in the Morse decision? Yes. Being yelled at right in your face in the way described is likely to dissuade you from using a public place.

by Andrew Geddis on October 24, 2013
Andrew Geddis

@Graeme,

So, the riled-up protestor at the Party conference gets caught, too?

@Marcello,

I think there's enough in Morse to say that "public order" was threatened here - there is reference in that judgment to "disrupting public order" as including making people feel unable to use the public space for its customary purpose. Otherwise, the fact that the target of such behaviour doesn't argue back or the like would put the matter beyond the reach of the provision.

With respect to the "different standards for different folks" question, that's just what the majority in Morse sought to avoid - they say that the test as to whether the behaviour went beyond the "reasonably tolerable" ought to be an objective one that applies without reference to the particular characteristics of the person affected. Otherwise your right to express yourself depends on the subjective nature of the person who sees/hears it, and how do you know how tough-minded the person witnessing your expression actually is in fact?

(Incidentally, this is a point on which Blanchard disagrees with Tipping/McGrath/Elias on).

@BeShakey,

I guess that's the key question - we all sympathise with the student (being nice liberal types). But do we want to criminalise Ms Rappard for being a boorish bigot?

@Raymond,

Yeah - I suspect that irony was not lost on the reporter, who chose to include the fact in the story.

by Graeme Edgeler on October 24, 2013
Graeme Edgeler

So, the riled-up protestor at the Party conference gets caught, too?

The riled-up protester who goes right up to a delegate and shouts in their face from 10cm away? Yeah, I'm fine that.

by Steven Price on October 24, 2013
Steven Price

I wonder whether we're missing a dimension here. This is something close to racial hate speech. (I know it's about religion, but the two are closely interrelated here, and one is often used as proxy for the other. Even if it's simply religious hate speech, that is still very close to the core of someone's identity, and to my mind, not readily characterised as a choice).

My point: there is something uniquely harmful about this sort of hate speech. You can make the case that this isn't like tolerating political views. It plays into a long and hurtful history of discrimination. It victimises by its nature. It is poisonous to civil society. It enrols without reason. It undermines the central values of liberal democracy. On that view, this behaviour looks like it's assaulting the individual and the society rather than innocently injecting a view into the marketplace of ideas. As you'll be aware, Andrew, this is the European way of looking at hate speech. As a result, restrictions on this particular type of speech are much more readily justified than on other types, even if they have a political component. (In the US, this sort of speech is basically regarded as political and untouchable.)

I think there's something in this. I didn't used to. Then I read "Words that wound".

So I think that we (nice liberal folks who share in the positive values of tolerance and respect for others) are justified in regarding this sort of speech as something that doesn't have to be tolerated, or tolerated as readily, and particularly where the political component of the speech is low, as here.

On the other hand, I agree with Graeme that it looks like there's enough aggression and intimidation here to get you over the public order hump without getting into the nice philosophical argument.

 

 

by Rich on October 24, 2013
Rich

I'm thinking that the tests for the four elements of offensive behaviour: "threaten, alarm, insult, or offend" are carved out diffferently by the right of free speech and that few circumstances justify a "threat", but speech that merely "offends" has to be considered against the right of free expression? (as in Police v Morse).

The behaviour of the defendant in this case was, based on the newspaper report, insulting, alarming and quite possibly threatening. 

 

 

by Fentex on October 24, 2013
Fentex

do you think there was any capacity to cause disorder? It doesn't sound like it.

If I had witnessed someone yelling in anothers face I may have intervened - and right there is the opportunity for offensive behaviour to escalate into considerable disorder.

I am annoyed that I see this reported as "Someone Fined For Telling A Burqha Wearing Woman To Take Off Her Burqha" when it seems someone was fined for offensively intruding into anothers personal space and yelling into their face, probably disregarding the content of their language.

by Ross on October 25, 2013
Ross

if by calling yelling "tory scum  I turned a National Party member into a quivering heap and caused him to have nightmares, then my actions should also be criminalised. 

If you could turn a National MP into a quivering heap, surely you'd be up for a medal, not a conviction. :) But seriously, aren't politicians meant to have thick skins?

by Ross on October 25, 2013
Ross

Steven's point is an interesting one. In France, it is the burqa wearer who's the criminal, and it seems that they can be subject to the sort of insults referred to by Andrew. I presume that in France, one can offend burqa wearers with impunity? If wearing a burqa was illegal in NZ, would Ms Rappard's actions be legal?

http://www.nzherald.co.nz/world/news/article.cfm?c_id=2&objectid=11131214

by Simon Connell on October 25, 2013
Simon Connell

If wearing a burqa was illegal in NZ, would Ms Rappard's actions be legal?

 

What about if Rappard was having a go at a smoker for smoking in a public place where smoking is unlawful? I can imagine that "telling off" a smoker in a particularly insulting/threatinging way could cross the threshold.

by Ross on October 25, 2013
Ross

I can imagine that "telling off" a smoker in a particularly insulting/threatinging way could cross the threshold.

Really? Presumably, it wouldn't constitute hate speech. And what if the person doing the telling off was directly affected by the smoke? An insult might well be reasonable, especially if a polite request of the smoker didn't produce any response.

by Rich on October 25, 2013
Rich

Generally, the fact that another person is acting unlawfully is not an excuse for any kind of criminal act towards that person, right?

The justifications in part 3 of the Crimes Act are specific, for instance arrest by a constable, arrest for a serious crime by a non-constable, self-defence and defence of property.

Absent one of those, there would be no justification for threatening or insulting a smoker.

 

by stuart munro on October 25, 2013
stuart munro

A lot of chimerical issues here. The Muslim burqa wearer is likely to have a sincere belief, which is part of what makes interference more hurtful.

The flying spaghetti monsterism T-shirt wearer may claim they are due equal protection of their views, but they are likely to suffer less if required to remove the offending garment.

It may be that the insincerity of politicians that raises the threshold for hurtful speech against them. Talkback radio hosts and certain bloggers are perhaps similarly tainted.

One of the ecumenical traditions is to respect the sincerity of different beliefs. Pretentions are not traditionally respected to the same degree.

by stationary motion on October 27, 2013
stationary motion

This news story really made me wonder about the sanity of the 'offender', assuming it played out as the supermarket checkout girl described. I think from a wider societal point of view, if Ms. Rappard is so incensed by the sight of woman shopping at a supermarket while wearing a type of headscarf that she needs to yell and insult her, does this mean that she's just wandering around yelling offensively at everything and everyone she doesn't like? (which would seem to be mainly Muslims, from background research I have done). I would assume that the ('unstated') belief of the victim had been that she would be able to conduct her shopping unharrassed, it isn't as if she is at a political march for the right to wear headscarves. I would offer Ms Rappard freedom of speech, which in this case might be a polite supplication to the head-scarf wearer, (that she conform to Ms Rappard's narrow world view, etc), but the testimony of the witness and the effect on the victim would suggest that any informational content in her speech was overwhelmed by the manner of her delivery. I think I would hold a similar view in the example of the tourist, if the conversation was carried out in the same way, though not in a protest, since there things get a bit 'heated', and the invididual is there as a representative of the Sovereign, so should expect a bit of flack.   

by Peggy Klimenko on October 28, 2013
Peggy Klimenko

What are we talking about here? Was the student in question wearing the burqa (full body covering, including the face, but with a gap for the eyes) or the hijab (scarf covering the hair)?

French law a priori prohibits the wearing of the hijab, so a fortiori would prohibit the burqa. If I remember rightly, one of the arguments in support of the prohibition is that the burqa - and the hijab - aren't necessary for Muslim women. The Koran requires modesty of dress for both sexes, but isn't specific about the style of dress needed to achieve it.

Anyone who's been to Muslim countries such as Egypt, Turkey and Indonesia will know that many Muslim women go unveiled (including the hijab) in those societies - and in many others worldwide.

For the reasons adduced above, characterising what the defendant said as "hate speech" goes too far, in my view. These garments aren't central to the Muslim belief system; the burqa in particular predates the rise of Islam. While the hijab was being worn here by some women before the turn of the current century, the burqa was never seen. I'd date its rise here to the 9/11 attacks in the US; in my view, the reasons for wearing it are political. I've heard interviews with burqa-wearing women who have broad kiwi accents and were clearly born here. It isn't possible that the burqa was a part of their culture when they were growing up.

It sounds to me as if the defendant was guilty of bad manners; I'm not familiar with the relevant law, but I didn't think that bad manners would fetch a person up in court. I don't doubt you'd hear worse on a drunken night in Courtenay Place, but how many of those people end up before a judge?

by william blake on October 29, 2013
william blake

There is an assumption here that the hijab has a negative political or religious meaning and the spittle laden invective is just a little over the top but still comes from a reasoned position. If the student was wearing a plain hat and elicited this response the responder would likely be considered unhinged on the other hand if the student was wearing a ku klux klan hood, peoples sympathies may have been with the shouter.

 There are signs and meanings in costume that can be misinterpreted and provoke disproportionate and fearful responses and there seems to be confusion as to who is the oppressed and who is the oppressor in this situation.

I don't think hijab and burqua are signifiers of Muslim extremism but it may be useful for people who are going to behave aggressively or offensively to this misperceived threat  to identify themselves with some sort of uniform so we can shout at them first.

by Ross on October 29, 2013
Ross

Absent one of those, there would be no justification for threatening or insulting a smoker.

I'm not sure that an insult constitues an offence. But what if the non-smoker asked the smoker to desist, got no response, and then poured water over the smoke (not the smoker)? Would that be an offence?

by Hayden Wilson on October 29, 2013
Hayden Wilson

Isn't this a question of what is the justified limitation when two (or more) rights conflict (in this case religious expression and free speech) but equally applicable elsewhere?

To take the protest at a political party conference example, I'd be the last one to suggest criminalising the yelling of the protestors (having possibly done a bit of that myself) any more than I'd criminalise the attendance of the member at the conference. Take it out of that context, and yell from close range at the same person in the supermarket, say having recognised them from last week's conference, and I'm pretty comfortable with the law placing some limits on that behaviour.

To turn it the other way around, if Rappard had been yelling the same things outside a conference for the promotion of the wearing of the Burqa, I wouldn't want that to be criminalised, however much I disagree with her view.

That isn't to say that all is fair in protest either; both context and content are important to an assessment of which rights should get protected at the expense or limitation of others.  It seems to me that Rappard's problem was getting both wrong at the same time.

by Scott Chris on October 30, 2013
Scott Chris

Does the right to free speech extend to shouting at a woman to take off her burqa in a supermarket? If not, why not?

No, because the right to free speech only extends to a point at which the action of exercising that right impinges on another's right to go about their private daily business without being harassed. Why's that so complicated?

by Andrew Geddis on October 30, 2013
Andrew Geddis

No, because the right to free speech only extends to a point at which the action of exercising that right impinges on another's right to go about their private daily business without being harassed.

Does this mean the picketing activities of union workers who are taking strike action can legitimately be proscribed (on the basis that doing things like actively seeking to dissuade people from engaging in business with the employer, as well as shouting at "scabs" who continue to work, "impinges on another's right to go about their private daily business without being harassed"?)

I guess you can hang the difference on the term "harrassed", in that crossing a picket line involves less "harrassment" than does being yelled at in the Supermarket. But then we're back in tricky line drawing territory ... how much "harrassment" ought the claimant of a free speech right be allowed to engage in?

by Scott Chris on October 31, 2013
Scott Chris

I guess you can hang the difference on the term "harrassed", in that crossing a picket line involves less "harrassment" than does being yelled at in the Supermarket. 

Not sure that that is a fair comparison, firstly because of the difference in social context and secondly that the nature of the relationship between the strikers and the strike breakers is quite different from that of the two women in the supermarket. 

by Peggy Klimenko on October 31, 2013
Peggy Klimenko

Having read the ODT piece again, it seems that the confusion over whether the student was wearing a burqa or a hijab was caused by the reporter who wrote the story not knowing the difference between these garments. And, given the reference to her taking off her headscarf, I conclude that she was wearing a hijab.

@Raymond Francis: the defendant was not even a born New Zealander which I found somewhat ironic.

I don't see how the defendant's country of birth is relevant. Is it your view that an immigrant - even one who came here as a child - can't have an opinion on such matters?

@ William Blake: There is an assumption here that the hijab has a negative political or religious meaning...

Of course it does: the view of French and some Muslim feminists is that both the hijab and the burqa are instruments for the control and oppression of women. Both garments predate the rise of Islam: neither is necessary to achieve the modesty of dress required by the Koran. Muslim women in many other parts of the world don't wear either garment.

In my view, the defendant behaved badly, but I don't see that she behaved criminally. If she had approached the student and politely urged her to take off her hijab - perhaps even using the same words but not shouting - I doubt that she'd have been prosecuted, because it would have been seen as the exercise of free speech. Yet the effect of her words on the student - and possibly even bystanders - would very likely have been the same.

Freedom of speech isn't always going to be a comfortable experience: people will often find others' opinions offensive. But it doesn't follow that the likelihood of causing offence should crimp the individual's freedom to say what they think.

I do wonder at this case coming to court at all. Surely a meeting between defendant and plaintiff, or some such strategy, would've been a better use of everyone's time.

by NiuZila on November 01, 2013
NiuZila

I don't totally agree that wearing a hijab or burqa is a political statement.  Perhaps for some women it is, but for many it's their way of life, their cultural and religious identity since birth.  I highly doubt every Muslim woman wakes up every morning saying, I'm going to wear a hijab to make a political statement, nor did they suddenly take up a political cause.  Irrespective of the origins of the clothing, for many women it is their way of life.  Which is also why I have a problem with the term "religious expression", as if it were something more than the norm.  For the average Pakeha, putting on a Maori pendant is a cultural "expression", for many Maori it would be the norm.  Even for many church-going Pakeha, wearing a crucifix is usually hidden under the clothing - so seeing a woman wearing a hajib is probably seen as "expressing" one's religious identity.

by Peggy Klimenko on November 05, 2013
Peggy Klimenko

I'm pretty sure that someone here has done research on immigrants wearing the hijab or the burqa, and found that many Muslim women who didn't previously wear these garments, adopt them as a statement of identity when they settle here. If that isn't political, I don't know what is.

It doesn't follow, of course, that every Muslim woman wears the hijab or the burqa for political reasons; many more recent migrants have come from areas where they're worn as  a part of daily life. But this doesn't alter the fact that both garments predate the rise of Islam. They've been co-opted by some Muslims for religious purposes, but their original purpose of controlling and hiding women away still exists as a subtext.

Our free and secular society allows women to wear these garments; it also allows the rest of us to object to their spread into sectors of our society. These things have a sneaky habit of becoming normative: just ask the citizens of Turkey. We need to be outspoken about it. There must be limits to tolerance.

 

by tussock on November 05, 2013
tussock

I suppose I've had this conversation elsewhere enough times that it seems very droll.

Free speech is not a licence to commit crimes. One may not freely threaten to kill people, threaten them, or harrass them. One may not stir a riot by speech, nor direct others to commit crimes. Classically, one may not shout "fire" in a crowded theatre just for shits and giggles.

Turns out that yelling intolerances at individuals of minority groups is also a crime now. One might argue as to the fairness of that being a crime (it is fair, and only horrible fascists do that sort of thing, just to stifle any cries in that direction), but free speech has no bearing on it at all.

 

We are, in fact, freely speaking here about the case, the law, and so on. So did the criminal in this case, we heard how she dispproved of the law and thought it should not be there, on account of her freedom of speech. But the cashier and the victim also have freedom of speech, and used it to tell on her for her crime.

Post new comment

You must be logged in to post a comment.