The ACT Party's "plan to protect freedom of expression" is long on aspiration, short on detail, and would usher in an extremely unpleasant society should it ever be put into place.

This morning I had a chat to RNZ’s Morning Report about the ACT Party’s “plan to protect freedom of expression”. Because I don’t think I did all that great a job explaining my points there, I want to have a longer go at it. So, here we are.

ACT’s headline grabbing proposal is to “remove restrictions on freedom of expression which make ‘insulting’, ‘abusive’ and ‘offensive’ speech unlawful.” It identifies two bits of our law that it would eliminate:

  • Sections 61 and 131 of the Human Rights Act 1993, which make unlawful forms of expression that may provoke “racial disharmony” or have the effect of “inciting racial disharmony”;
  • Some unspecified bits of section 4 of the Summary Offences Act 1981, which make it (amongst other things) an offence to “in any public place, address any words to any person intending to threaten, alarm, insult, or offend that person.”

The reason for doing so, ACT says, is that “while it should be a crime to incite or threaten violence, nobody should ever be punished for their opinion.”

Great bumper sticker slogan, which I’m sure looks wonderful in pink on a yellow T-Shirt. However, it may not entirely surprise you to discover that the legal background to this area is a lot more complicated than ACT would lead you to believe, and that its policy proposal (if ever actually adopted) would lead to some pretty unpleasant social consequences.

Let’s begin with the provisions in the Human Rights Act that ACT sees as being so inimical to free speech ideals. For either provision to apply, two conditions must be met. There must be a form of public communication “which is threatening, abusive, or insulting”. That’s the bit of the law that ACT has focused on in its policy messaging, with David Seymour saying “nobody should ever be punished for insulting or offensive speech”.

However, to be unlawful the public communication also must be “likely to excite hostility against or bring into contempt any group of persons … on the ground of the colour, race, or ethnic or national origins of that group of persons.” And that element of the statutory test has been given a very narrow reading by our courts.

In a case decided just last year, the High Court said that it “applies only to relatively egregious examples of expression which inspire enmity, extreme ill-will or are likely to result in the group being despised.” (at [56]). So, it’s not enough for someone to make reference to a person’s race or ethnicity in a way that that person finds personally insulting or offensive. The reference to race or ethnicity must be in a form that is objectively likely to cause others exposed to the words to (in shorthand) “hate” members of the relevant racial or ethnic group.

In other words, the Human Rights Act does not make it unlawful for a person to hate someone else for their race or ethnicity, or even to express that hatred publicly. It also does not make it unlawful to express hatred of other races or ethnicities in ways that merely insult or offend any individual. Rather, it makes it unlawful to express your views in an offensive, abusive or insulting way that could then cause other people to hate individuals based on their race or ethnicity.

Now, why might our law seek to prevent this last sort of expression from occurring? 

One answer is because we’ve promised the rest of the world that we would do so. Having ratified the International Convention on the Elimination of All Forms of Racial Discrimination in the 1960s, we committed to “declar[ing] an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination”. But that only raises the question of why did the international community (including New Zealand) think this matter so important that it created an entire treaty regime to cover it?

The answer, it seems to me, lies in looking at what happens in societies which have normalised expression that inspires enmity, extreme ill-will or is likely to result in the group being despised. Whether it be Rwandathe BalkansMyanmar or (at the risk of Godwining my post) Nazi Germany, the repeated use of dehumanising language towards ethnic groups laid the groundwork for subsequent genocides against those groups. Seeking to stop a similar dynamic from ever occurring here in New Zealand seems to me to be a quite legitimate state interest to pursue. 

Now, I’m sure the response to this will be “but we’re not that sort of place—we don’t really need to use the law to suppress expression that may provoke hatred against racial or ethnic groups.” I would have thought that the Christchurch atrocity might be cause to pause on that claim. Also, exactly when is the right time to introduce such a law? Waiting until after such expression becomes normalised, and so becomes a “real problem” to address? That seems like a recipe in futility.

Alternatively, it may be argued that legal attempts to suppress such hate speech simply cannot work, and come at a cost in terms of dissuading some people from speaking as they otherwise may choose to. The former argument strikes me as being more of a statement of ideological commitment than a genuine assessment of the empirical evidence. If you believe speech restrictions shouldn’t exist, then you are going to believe they don’t work.

And the latter claim that the cost of such laws simply is too great ignores the other side of the equation. Because not having such legal limits on permissible speech acts also comes at a cost. Permitting someone to (say) stand on a street corner loudly telling passers-by with coloured skin “you don’t belong here—you are ruining our country and should f*ck off out of it right now” imposes what we may call a “psychological tax” on members of that group. 

There’s lots of voices telling those of us who do not face the everyday burdens associated with such speech acts just what that psychological tax entails. It is not simply a case of feeling “insulted”, “offended” or “annoyed”. It’s the constant grind of being told you are not a proper part of this society and that your presence here is not welcome.

We then have to ask why those wishing to engage in racial hate speech—currently defined, remember, as “relatively egregious examples of expression which inspire enmity, extreme ill-will or are likely to result in the group being despised”—ought to be allowed to impose such a psychological tax on other members of our society. The state has to protect one group or the other. And it simply is not clear to me what theory of the value of “free speech” requires that it must be the former.

Just as importantly, repealing the Human Rights Act provisions is only one part of ACT’s proposal. The other part is to remove the provisions in the Summary Offences Act that deal with “‘insulting’ … and ‘offensive’ speech”. Exactly which bits of this legislation will go is unclear, as the party hasn’t actually bothered to spell out its policy beyond broad slogans, but we’ll press on anyways.

Now, it is true that the Summary Offences Act has been used to punish individuals for engaging in racist speech in public. In 2015, a man was convicted of using offensive language for calling two men on a bus “Islam c**ts” and accusing them of “shooting innocent people” (he also told a woman who intervened in their support to “shut your mouth up b**ch”). In 2014, a woman was found guilty of using offensive language for telling a taxi driver to “F**k to India. You come here and get all the Kiwi jobs; eat your f*cking curry and f*ck off to India. This is a Kiwi job.”

However, it’s not just racist rants that attract such consequences. A man screaming abuse at his wife in a supermarket carpark has been similarly convicted. Swearing at the police as they try and break up a street fight attracted a conviction. And so on, and so on. Because the point of this provision is that it is concerned with protecting public order. It seeks to establish lines of acceptable conduct (including speech conduct) in public places that allow all of us to share in using them. Without such lines, we devolve to the lowest common denominator; whoever has the least social shame and most obnoxious attitude gets to decide how those spaces may be enjoyed.

Imagine, then, that ACT ever followed through on its proposal to remove such legal lines, in order to permit an “anything goes” approach (at least, up until violence is incited or threatened). Note also that this isn’t an area where “self-help” remedies apply. If you decide that someone’s offensive or abusive language is beyond the pale and take matters into your own hands to put an end to it, it’s you that will end up in the dock.

Well, we know one outcome of ACT’s policy. It will make New Zealand a place where people are legally free to give Nazi salutes on Parliament’s grounds and walk down the street calling strangers “the N-word”. David Seymour himself tells us this is so

And it also will be a world where you go for a picnic with your family on a pleasant summer afternoon in your local park. Two bogan wastrels, who have been drinking all day, pass by and see you enjoying your day out. They come over and tell you to “take your f*cking ugly c*nt kids and f*ck off out of our park”, before spreading themselves on the grass beside you and continuing to carry out a swear-word riddled rant.

Remember, under ACT’s policy, this mere “expression of opinion” cannot be grounds for state intervention. You may be insulted or offended, but you cannot call the police to have them intervene as no laws are being broken. You either grit your teeth and bear the abuse, or you pack up your things and leave the park. Because … freedom.

Now, if ACT wants to go into the 2020 election campaigning for the rights of drunken bogan wastrels to abuse suburban families picnicking in public parks, then I guess that’s their political choice. But I’m pretty sure that’s not the “rights” they are concerned with, and I’m also pretty sure that’s not the particular dog whistle that they are blowing.

Comments (23)

by Lee Churchman on June 18, 2019
Lee Churchman

Now, I’m sure the response to this will be “but we’re not that sort of place—we don’t really need to use the law to suppress expression that may provoke hatred against racial or ethnic groups.” I would have thought that the Christchurch atrocity might be cause to pause on that claim.

Yet again, it's worth pointing out that the perpetrator was an Australian.

Waiting until after such expression becomes normalised, and so becomes a “real problem” to address?

Is there a realistic scenario in which this becomes widely accepted in New Zealand? I've heard it said more than once that, while we have many people with racist views, New Zealanders are on the whole just too lazy and apathetic to put those views into action. A case of a vice becoming a virtue.

A couple of things. I don't think it should be illegal for people to yell insulting remarks at politicians they don't like. Secondly, have the people who wrote these laws ever been on Xbox Live?

by Andrew Geddis on June 18, 2019
Andrew Geddis

@Lee,

Yet again, it's worth pointing out that the perpetrator was an Australian.

Who chose to come and live in NZ for a period of time before carrying out a massacre in this place. I do not find this a convincing side step.

I don't think it should be illegal for people to yell insulting remarks at politicians they don't like.

It (probably) isn't - you need to read the section 4 offence provisions in the context of the Supreme Court's public order discussion in Brooker v Police and Morse v R. To simplify ... there's a sliding scale depending on the relative "worth" of the expression at issue. Yelling at politicians comes near the top, so you'd have to be a pretty f*#king obnoxious c^@t saying some m%&herf*!king shocking stuff to trip over the line.

Secondly, have the people who wrote these laws ever been on Xbox Live?

Likely not. But, should the standard of discourse on Xbox Live be the one that we want to see in our physical spaces where we meet as meat?

by Liam Hehir on June 18, 2019
Liam Hehir

Do you think laws against the repeated use of dehumanising language towards ethnic groups have proven to be effective in preventing that activity from continuing?

by Lee Churchman on June 18, 2019
Lee Churchman

Who chose to come and live in NZ for a period of time before carrying out a massacre in this place. I do not find this a convincing side step.

I guess we just disagree. New Zealand has been relatively free of ethnic violence while Australia has not. The guy came here to train for the attack, so he'd already decided to do this. He just chose us because he thought we were a soft target. We don't have Islamic terrorists or race riots or Tommy Robinson or One Nation or the EDL.

you need to read the section 4 offence provisions in the context of the Supreme Court's public order discussion in Brooker v Police and Morse v R. To simplify ... there's a sliding scale depending on the relative "worth" of the expression at issue. Yelling at politicians comes near the top, so you'd have to be a pretty f*#king obnoxious c^@t saying some m%&herf*!king shocking stuff to trip over the line.

I better hit the books then, but that last bit sounds like me. ;-)

But, should the standard of discourse on Xbox Live be the one that we want to see in our physical spaces where we meet as meat?

Probably not. However, I'm off the view that responsivity to offence is in part socially sanctioned and conditioned. Hence, if its socially acceptable for people to be mortally offended over minor things, more people will experience greater offence. As a consequence, I think a world in which people had thicker skins and better avoidance skills would be a better world purely in terms of overall human welfare.

We seem to be going in the other direction, which is making people more miserable both because they experience offence to a greater magnitude and because people who want to hurt others make more use of offence due to its greater expected effect. 

by Kyle Matthews on June 18, 2019
Kyle Matthews

Do you think laws against the repeated use of dehumanising language towards ethnic groups have proven to be effective in preventing that activity from continuing?

I think the assumption that laws are effective in preventing harm clearly isn't a good assumption to make. Murder and rape in the crimes act haven't prevented those two things from occuring. And yet we continue to have those laws, prosecute them, and put people in jail for doing them.

by Kyle Matthews on June 18, 2019
Kyle Matthews

I guess we just disagree. New Zealand has been relatively free of ethnic violence while Australia has not.

Maori will be glad to know this.

by Andrew Geddis on June 18, 2019
Andrew Geddis

@Liam,

I certainly think its a valid societal choice to put such laws in place (and enforce them against “relatively egregious examples of expression which inspire enmity, extreme ill-will or are likely to result in the group being despised”) in the hope that they have that effect. I suspect whether they actually "work" or not is a contingent question that we can never really be sure of answering in advance in a given time and place. So, it then comes down to a cost-benefit analysis ... do we privilege the speech acts of those who would wish to engage in such expression, or the human dignity of those targetted by it? Even as someone who generally favours liberal approaches to regulation of dissenting speech, I would settle that balance in favour of the latter (like Jeremy Waldron does, if I may name drop).

@Lee,

I don't think it is right to say to people targetted by “relatively egregious examples of expression which inspire enmity, extreme ill-will or are likely to result in the group being despised” simply should grow thicker skins and keep away from nasty racists. Nor do I think that people should have to be prepared to face vitriolic abuse as the entry price for simply going about their business in public places. But maybe I'm just a snowflake like that ... .

by Liam Hehir on June 19, 2019
Liam Hehir

Well, an alternative approach would be to see the question of effectiveness as highly relevant in terms of political justification. Assuming that the freedom to express an opinion is an important liberty, we should be concerned that the limitation we put upon it will achieve their purpose. If the purpose is simply a sense of social denunciation then that’s an easy bar to clear. If it’s to marginalise and prevent that behaviour then, well, it becomes pretty dicey.

Tipping my own hat to Mike Godwin, for example, I’d note that they really didn’t do a lot for Weimar.

I don’t really favour ACT’s proposals at all. However, I have been thinking of the idea of a tort of wrongful interference with free expression. It would be actionable by individuals against public bodies that interfere with the liberty. It would certainly make things difficult for university administrators. 

by Andrew Geddis on June 19, 2019
Andrew Geddis

Assuming that the freedom to express an opinion is an important liberty, we should be concerned that the limitation we put upon it will achieve their purpose.

If we're going to question whether the basic model of social disapprobation ("racism is wrong, kids!") backed by legal sanction can ever work as a means of behaviour change, then sure ... we can do that. But let's do it for every limit on speech, right? Can Part 6 of the Crimes Act really work to preserve NZ's non-corrupt reputation (because look how many other countries have laws on the books against corruption, but they don't work there!). Can the insider trading rules in the Financial Markets Conduct Act really work to stop information insiders from disclosing inside information to others? Because look - they obviously don't

So, I guess if we're going to be consistent defenders of free speech, epistemic uncertainty requires that we strip all restraints on all speech acts from the statute books on the grounds that it cannot be shown they work. Which seems ... silly.  

However, I have been thinking of the idea of a tort of wrongful interference with free expression. It would be actionable by individuals against public bodies that interfere with the liberty.

Congratulations! You've just invented Baigent damages.

by Liam Hehir on June 19, 2019
Liam Hehir

That’s a judicially activist remedy that’s way too uncertain and contingent. I am thinking of a standalone, statutorily defined test with three or four elements and a set scale of damages. Something that’s relatively accessible and understandable to ordinary people rather than the mysterious penumbra of BORA.

by Gavan O'Farrell on June 19, 2019
Gavan O'Farrell

@Andrew, I think you were too quickly dismissive of Lee's point about thicker skins and avoidance skills.

Whatever is done to the statute book, it is surely better that we all be stronger and more skilful - generally and in our interactions.  I suggest that, when one feels offended, the law shouldn't be one's first resort.  That attitude to the law infantilises the populace.  

Unless you want every breath or step we take and every word we utter to be the subject of a law (and I don't suggest this is what you want), it must be better for people to sort things out themselves, and between themselves.  To this end, thicker skins and better avoidance skills are good things (along with greater respect and empathy, of course).

And I thought the courts preferred to deal with cases only where other attempts at solutions have failed. 

The law should be the last resort.

by Andrew Geddis on June 19, 2019
Andrew Geddis

@Gavan,

I don't see how anything I have written disagrees with what you write. I've made it very clear that recourse to the law is not presently a "first resort" - indeed, our legal restrictions only kick in at a quite high threshold. You can read this analysis that confirms that claim. My point then was that I disagree with a suggestion (which may or may not be what Lee was saying ... I don't want to misinterpret him) that even these restrictions should be removed and people grow thicker hides. And that is all that I have said.

by Simon Connell on June 19, 2019
Simon Connell

@Lee

Yet again, it's worth pointing out that the perpetrator was an Australian.

...
New Zealand has been relatively free of ethnic violence while Australia has not.
...
I've heard it said more than once that, while we have many people with racist views, New Zealanders are on the whole just too lazy and apathetic to put those views into action.
I'll add my voice to those disagreeing with you on this one. The chief objection I have to the suggestion that it's worth pointing out that the perpetrator was Australian is that spending time on the Australian origins of the shooter gets in the way of listening to how people who are in New Zealand relate their experiences of racism and violence at the hands of New Zealanders.
by Gavan O'Farrell on June 19, 2019
Gavan O'Farrell

@Andrew.  Fair enough.  And my point is that people should grow thicker hides no matter what happens to the law.  On the other hand, while thicker hides are a great benefit, they are not a solution on their own.  Perhaps we agree about this?

I think it's important because some people out there seem to resent the whole concept of "toughen up", as though being fragile (with a fragility that is self-imposed) is somehow a good thing.  (In my experience, people who are genuinely fragile don't need to be convinced about growing some extra hide.)

Whoever legislates is legislating into a situation where this seems to be a common mindset, so it's important that they address it and make sure the law isn't misused as a first resort.  

 

by Lee Churchman on June 19, 2019
Lee Churchman

@Simon

I'll add my voice to those disagreeing with you on this one. 

That's fine. I guess my views are based on having lived in several different countries, all of which are far worse than New Zealand in this respect. I don't deny we have problems, it's just that we're doing so much better than we think, and really well compared to some other liberal democracies.

For example, when you live in a colonised country and most people who live there have never met an indigenous person. Or when you have to take time to explain to students during a lecture on Plato that homosexuality actually exists. A lot of NZ angst on this sometimes comes across as a bit "firstworldproblems".

@Andrew

I disagree with a suggestion (which may or may not be what Lee was saying ... I don't want to misinterpret him) that even these restrictions should be removed and people grow thicker hides.

I don't personally mind the current legal restrictions and I think that ACT's purposes are wholly rhetorical: taking advantage of the censorious social climate rather than NZ law. I didn't make it clear before, but I think your article is basically right. 

Even so, I think it's indisputable that the overall level of welfare rises if people grow thicker skins. Our parents always told us this, and they were right. A key part of my argument is that victimhood is in a large part a matter of social permissions. 

by Gregor W on June 19, 2019
Gregor W

Tipping my own hat to Mike Godwin, for example, I’d note that they really didn’t do a lot for Weimar.


@ Liam - Your point eludes me here so I'm hoping you can elabourate. Are you saying that some sorts of constaints on freedom of expression are important given that under s118 of the Weimar Constitution there were effectively no limits?

by Liam Hehir on June 19, 2019
Liam Hehir

That's not correct.

by Gregor W on June 19, 2019
Gregor W

Sorry Liam - which bits?

Not being difficult - I just want to understand your earlier point referencing the Weimar (and what followed), within the context legislation relating to free expression (or lack of it).

by Liam Hehir on June 19, 2019
Liam Hehir

Of course. So there were various laws in interwar Germany that prohibited hateful speech against religious communities. And they were used. Including, if memory serves, against Goebbels himself. I just have a real scepticism of the ability of laws to shape and influence behaviour like that, which is why I am sceptical of a written constitution providing any kind of guarantee for liberal democracy too. Beating off those things is really a social responsibility.

by Gregor W on June 19, 2019
Gregor W

Ah right, gotcha.

So be careful what you wish for when it comes to writing law.

A good point too re constitutional safeguards, though I reckon a lot of that comes down to the society / time / place that constitutional arrangements are formed within (i.e. their ability and willingness to enforce and protect those arrangments through strong institutions, ) rather than any inherent weakness of constitutional documents, and a recognition that when constitution's are formed they are a reflection of the society that made them -  this seems an obvious point I know, but I suspect there is a higher liklihood of a constitution influencing behaviour in a society that has some long standing cultural standards that support that outcome, than (to use the Weimar example again) a constitutional arrangement that was borne from the destruction of Imperial ambition so in a lot of way can be regarded as a reaction.

That was a very long sentence...

by Liam Hehir on June 19, 2019
Liam Hehir

Well, actually, that's really the point I have tried to make over the past few years. The liberal democratic order will probably only persist if the people, generally, want it to persist. If they don't then bits of paper won't be the saving of it.

by Ross on June 19, 2019
Ross

Good grief, Andrew, who would’ve thought that picnicking in Dunedin could be so fraught! And I’ve told you a million times not to exaggerate. If Seymour’s proposal is enacted, you'll be relieved to know that behaving like a dick won’t be compulsory.

Well, we know one outcome of ACT’s policy. It will make New Zealand a place where people are legally free to give Nazi salutes on Parliament’s grounds and walk down the street calling strangers “the N-word”

You’ve missed Seymour’s point which is that he doesn’t believe “the state should be there trying to punish people” for such behaviour. And, as far as I know, the behaviour described above isn’t necessarily illegal.

In 2014, a woman was convicted of using offensive language...

Actually, she was discharged without conviction so she could look forward to a career as a police officer!

Swearing at the police as they try and break up a street fight attracted a conviction. 

That's not what the article says - it says that one of the accused was charged with obstruction, offensive language and resisting arrest. I suspect that charges are seldom laid when police are sworn at.

https://www.stuff.co.nz/life-style/life/70909391/

However, Tiki Taane was arrested in 2011 and charged with disorderly behaviour after allegedly swearing at police. He wasn’t convicted because his alleged swearing had artistic merit!

http://www.stuff.co.nz/entertainment/music/4872499/Tiki-Taane-arrested-in-Tauranga

the point of this provision is that it is concerned with protecting public order. It seeks to establish lines of acceptable conduct (including speech conduct) in public places that allow all of us to share in using them. Without such lines, we devolve to the lowest common denominator; whoever has the least social shame and most obnoxious attitude gets to decide how those spaces may be enjoyed.

I don’t believe that. Valerie Morse was convicted of behaving in an offensive manner after publicly burning a flag during a dawn service on Anzac Day. Her conviction was later quashed. If burning a flag is devolving to the lowest common denominator, you really haven’t lived!

by Andrew Geddis on June 19, 2019
Andrew Geddis

You’ve missed Seymour’s point which is that he doesn’t believe “the state should be there trying to punish people” for such behaviour. And, as far as I know, the behaviour described above isn’t necessarily illegal.

My claim was that under ACT's policy, NZ will be "a place where people are legally free" to engage in such behaviour (as well as the other examples I provide where the law has vested consequences on people for their speech acts). And if people already are legally able to engage in such behaviour, then ACT's policy is pretty much empty, isn't it?

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