Freedom of speech means what we want it to mean

In New Zealand, freedom of speech doesn't have to be, and currently isn't, exclusively concerned with preventing the state from punishing people for speech. Nevertheless, people sometimes claim that freedom of speech has to take on that narrow meaning.

(With Colin Gavaghan)

The decision by Auckland mayor Phil Goff to deny far right speakers Lauren Southern and Stefan Molyneux a speaking venue has reignited the debate about ‘free speech’ and its limits.

Perhaps fittingly, there’s been a lot said and written on the subject of “free speech” and about the justifiable grounds for its restriction. In this blog post, we want to focus on just one aspect of the debate: the meaning of “freedom of speech”. Although we’ll be talking about the law in general terms, for a closer look at the legalities of the Goff decision we’d point you here.

The longer a discussion on free speech goes, the more likely it is that someone will say something like this:

Freedom of speech means you can say what you want without fear of reprisal or oppression from the state

That example is from a piece about a repugnant Al Nisbet cartoon. People sometimes link to the following XCKD cartoon that expresses a similar view:

That idea of freedom of speech validates Phil Goff’s recent statement that :

Let me be very clear, the right to free speech does not mean the right to be provided with an Auckland Council platform for that speech.

The problem with all this is that “freedom of speech” doesn’t always, and doesn’t have to, just refer to limits on the state’s ability to oppress people because of things that they’ve said. More than that, we think that there are good reasons to question such a restrictive idea of freedom of speech.

 The meaning of freedom of speech

It’s certainly true that sometimes, when people talk about “freedom of speech”, they’re talking about the idea that state interference with speech should be very limited. That usage is especially common in the USA, because it’s pretty much the way freedom of speech works in their constitution. The first amendment bars Congress from making laws “abridging the freedom of speech” (which, by the way, means that the xkcd cartoon’s exclusive focus on arrest misses out aspects of freedom of speech in the USA, such as prohibiting compelled speech such as the pledge of allegiance). It’s generally accepted the first amendment only creates negative obligations on the state (more on that later). It’s an idea of freedom of speech that appeals to those who see the government as the biggest threat to our freedoms in general.

Of course, not everyone in the world is in the USA, and it’s not universally accepted that the US constitution is the best way of doing things. So it’s a bit concerning to us when we see people talking about “freedom of speech” in a way that is actually out of sync with how New Zealand law works.

First of all, we don’t actually have an express right to “freedom of speech” in the New Zealand Bill of Rights Act 1990. Fortunately, that’s not because we live in an Orwellian dystopia, it’s because freedom of speech is included in the broader concept of “freedom of expression” set out in section 14 of that statute:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

As you can see from the text of section 14, freedom of expression isn’t only about state retaliation for, or restrictions on, speech. It extends to the freedom to seek and receive information as well as the freedom to impart information and opinions.

That’s quite important. It shows that the right is a good deal wider than a right not to be arrested. If, for instance, the NZ Government started using sweeping internet filters to censor any political criticism of its policies, that would be a pretty good candidate for a violation of s.14, even though nobody would be being oppressed for what they are saying. It could also be used as the basis of an argument that the state has positive obligations to make information accessible, or even to provide platforms for discussion. That might extend to making public venues available.

Although it’s generally considered that the Bill of Rights Act only creates remedies against the state, there are lots of other contexts where NZ law recognises the importance of “free expression.” It can, for instance, often be a relevant consideration for reading statutes. It can be an important part of the background to private disputes, such as in determining the interpretation of a contract, or in defamation cases. The new-ish Harmful Digital Communications Act allows people to petition the District Court to get content that’s harmful, harassing, privacy violating etc. taken down, but in assessing that claim, the Court must act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act – including the right to free expression.

And there are other human rights instruments that have wider application. The Human Rights Act contains provisions against discrimination in the provision of services, or in employment. Prohibited grounds of discrimination include well-known criteria like sex and race, but they also include religious, ethical or political opinion.

One of the things that follow from this is that your boss can’t just fire or discipline you for expressing opinions they don’t like. For example, the High Court has held that disciplinary measures taken against a bus driver for handing out communist leaflets outside his workplace constituted discrimination on the basis of political opinion. This had nothing to do with the Government, and nothing to do with being arrested. It was a right used by one private party against another, in an entirely non-criminal context.

This right isn’t absolute – more on that below – but it’s a real part of our law, and one that courts and tribunals sometimes uphold. Some US states seem to allow employers far greater freedom to hire and fire at will, and to give workers far fewer protections there. But the USA isn’t the whole world, and plenty of other jurisdictions do things differently – New Zealand included.

Freedom of speech in our society

So, we think that while the idea that freedom of speech only creates negative obligations on the state is one way we could implement freedom of speech in our society, it’s not the only way – and it’s not the way freedom of speech works in New Zealand right now. More importantly, we think the insistence that “freedom of speech” can only ever mean a particularly neoliberal implementation of the right can stifle discussion about how we actually implement free speech as a society.

The notion that rights should be restricted to “freedom from” rather than “freedom to”, and to rights against “big government” rather than corporations or other private actors, has traditionally been one associated with the political right. National Party leader Simon Bridges considered that Goff was “entitled” to ban the speakers from council venues, as if this was just an exercise of private property rights. It’s been a bit unsettling to see some (but not all) people that we might otherwise have classified as politically left, or progressive, adopt and espouse it!

So, what might an alternative vision of freedom of speech look like? For a start, it might impose a positive obligation on local councils to provide, and make available, venues for people to make and consume speech. Of course, there might be good reasons for restricting particular speakers. But, as a society, we could decide that, as a general proposition, the right to freedom of expression usually does include the right to be provided a platform for speech by your local council. We might also decide that the state must guarantee citizens internet access, so they can participate in expression.

It might also impose significant obligations on private actors as well as the state. So, for example, we might limit the ability of employers to dismiss employees for “bringing them into dispute” as a result of expressions outside the workplace. In the context of celebrities making big money from sponsorship or endorsement deals, sympathy might be a bit scarce when they say something that tarnishes their personal image; that is, in a sense, the product they’re being paid for.  (Though even with those, there are situations that surely have some connection to free expression.) But what about an ‘ordinary’ worker who loses her job for making an insulting gesture at Donald Trump? Whatever we think of her manner of expression, or her employer’s reaction, it seems like a stretch to say that this has nothing to do with free speech just because it doesn’t involve the government or people getting arrested.

And, when private entities provide venues for expression, whether physical or online, perhaps there are some positive free speech obligations that should go along with that too. Yes, it might be fine to kick someone out of a private Facebook Group because their behaviour is disruptive or not in keeping with its mission statement. But what about when it’s Facebook itself kicking someone off the platform altogether? Britain First’s account may be no loss (to put it mildly), but what if Facebook started banning any comments critical of a particular politician – or critical of Facebook itself? There would surely come a point where the silencing of some political ideas on the world’s biggest social media space would become a concern. To be clear, we’re not saying that Facebook would necessarily be breaking any laws were it to do this. We just think we don’t have to accept that this has nothing to do with freedom of speech.

None of this means that free speech is an absolute good. Even people who adopt a more expansive idea of freedom of speech tend to accept that it has limits. Speech can cause harm, and freedom of speech might conflict with other rights, so there needs to be some sort of balancing exercise. In some situations, it might be impossible to accommodate everyone’s freedom of speech at once – as when demonstrators want to shout all the way through a talk. As a society, we need to determine what “freedom of speech” means to us. And there are multiple versions of “freedom of speech” on offer. Perhaps a conception of freedom of speech exclusively concerned with imposing negative obligations on the state is the right one for is. But, the onus is on anyone who wants to make the case that that is so to demonstrate why their version is superior – the argument cannot be won by an act of definition, even if you do link to a very authoritative-looking cartoon.