As a society, must we let obnoxious provocateurs have a public stage? How do we decide when others must bear the burden of their speech?  

Up until about a week ago, I and most of New Zealand hadn’t the faintest clue who Lauren Southern or Stefan Molyneux were. Having better things to do than mine the seamier veins of the internet, I still haven’t really engaged in any depth with this pair of Canadian alt-right provocateurs’ “message” (such as they have one beyond “let’s make a buck from owning the libs”).  

However, following Auckland Live’s decision to cancel their booking of the Auckland Council-owned Bruce Mason Centre for a speaking event – a decision that Mayor Phil Goff had a big hand in – it seems like everyone is required to have an opinion on them and their right to perform before a paying crowd. 

So, Mayor Goff thinks they “spout racist nonsense” and shouldn’t be allowed to use council property to do so. Winston Peters thinks Goff was wrong and that they should have been allowed to speak as originally planned. Simon Bridges thinks that Goff was “entitled” to do what he did, but the pair still should be allowed to visit NZ and speak someplace else. Various other MPs also took to twitter to give their views.

(For the sake of clarity, Southern and Molyneux haven’t been barred from entering New Zealand. After the venue cancellation was announced, the event’s promoter quickly pulled the plug on their Auckland visit.)

And now it seems the High Court will have to form its opinion of the issue, with news that the “Free Speech Coalition” plans to seek a judicial review of the decision to cancel the booking. That elevates the matter from being a mere point of passionate Twitter debate to something a little more meaningful.

Let’s start by acknowledging that the little I know of their views and how they express them makes me pretty sure that Pundit's readership would not be a particularly sympathetic audience for their message. They certainly wouldn’t be welcome at any dinner party I might hold.

But that’s not the test that the court will apply, nor should it apply, when deciding if some public expression ought to be allowed. And if you think an “only people Andrew would like to have dinner with may speak in public” test is an appropriate one, just note that I probably wouldn’t want to have dinner with you either. 

What test should instead be used for dividing allowable from not-allowable speech? That’s a hard question, and anyone who says there’s an easy and clear answer to it also isn’t someone I want to have dinner with. Here, as I see them, are the issues that will have to be worked through by the court.

First of all, the council can’t escape this particular problem by arguing that Southern and Molyneux’s rights haven’t really been affected. Mayor Goff’s claim “[it’s] my right, and councils’ right, to deny them a venue” to speak in simply isn’t correct if he means that he can pick and choose at will which speakers may use council-owned property for expressive purposes. 

At the risk of lapsing into legalese, the council’s actions when hiring out its venues to speakers are captured by both the NZ Bill of Rights Act 1990 and the Human Rights Act 1993. Those enactments prevent the council from making venue hiring decisions (including cancellations) that “unjustifiably limit” freedom of expression, or that discriminate on the basis of political opinion. Auckland Live – the council’s company that manages the venues – can’t then contract out of those legal obligations.

Consequently, Mayor Goff’s decision (put into practice by Auckland Live) most likely will be found to be unlawful unless there is some sort of “demonstrably justified” reason for preventing Southern and Molyneux from speaking at the council’s venue. Does any such reason exist?

Well, in its statement on the matter, Auckland Live pointed to “security concerns around the health and safety of presenters, staff and patrons” for the cancellation. And, yes, there were promises from Auckland Peace Action that Southern and Molyneux would be “confront[ed] in the streets”, including “blockade[d] entry to their speaking venue.” And, yes, Auckland Live has legislatively imposed health and safety obligations to its staff and those using its premises.

But protest actions at controversial events are hardly unprecedented. For example, in May of this year Auckland Peace Action (peacefully) protested outside of the Israel Day event held at the council owned Silo Park. Should the mere threat of a protest then have been grounds for Mayor Goff and the council’s Panuku Development organisation to pull the Jewish community’s right to use that space? What if Auckland Peace Action decides that having the Miss Auckland 2018 competition at the Bruce Mason Centre is so great an affront to women that it must be stopped?

For such are the dangers in allowing the threat of an angry mob to be a sufficient reason to take away a person’s right to speak. Granting such a “heckler’s veto” actually incentivises violent responses to things you disagree with – if you want to shut someone up, then simply make a big enough fuss about the fact that they get to speak. 

So, in a decision that ironically involved the now-spokesperson for Auckland Peace Action, Valarie Morse, the Supreme Court had this to say about what is expected of those exposed to speech with which they disagree:

[64] … A reasonable person, in a context involving freedom of expression or another right guaranteed by the New Zealand Bill of Rights Act, must surely be a person who is sensitive to such values and displays tolerance for the rights of the person whose behaviour is in question. In other words, the hypothetical reasonable person (of the kind affected) is one who takes a balanced, rights-sensitive view, conscious of the requirements of s 5 of that Act and therefore is not unreasonably moved to wounded feelings or real anger, resentment, disgust or outrage, particularly when confronted by a protester. 

It is not right, therefore, to say that it is justifiable to prevent speech that provokes an outraged or even violent response. Rather, such responses have themselves to be justified, in that the speaker’s message goes beyond what an appropriately tolerant citizen of our democracy ought to have to put up with.

Which is where, I think, we get to the real issue at hand. Mayor Goff, and I’m guessing lots of people reading this, argue that there simply isn’t any requirement to have to tolerate Southern and Molyneux’s proclivity to “attack people on the basis of their faith and ethnicity and … set out deliberately to provoke them.” Such “racist hate speech” altogether falls outside of the sphere of acceptable public discourse.

It seems to me that the courts reaction to this claim will rely on two things. 

First, just how bad are the things that Southern and Molyneux go around saying? As I said at the outset, I haven’t spent much time looking into this for myself. But accounts are that they have a pretty racisty-vibe about them (as well as being transphobic and generally awful). And it is true that Southern has been excluded from the United Kingdom (but not criminally charged) for her anti-Muslim actions there. 

(But then again, the United Kingdom also indicated that Edward Snowdon would be refused entry should he ever try and travel there. So, can we use “not welcome in the UK” as a reliable test for whether or not a person’s views should be allowed to be heard in this country?)

Second, even if it turns out that Southern and Molyneux’s past statements and behaviour put them within at least spitting distance of being actual Nazis, should that fact be enough to say it is legitimate to silence them? Well, as we saw with the High Court’s ruling earlier this year on Al Nisbet’s terrible, terrible cartoons, our law sets a pretty high threshold for finding that some offensive speech rises to the level of prohibited “hate speech”.

But then, look who that threshold gets set by. It’s perhaps all too easy to proclaim the general need for tolerance and acceptance of “offence” by others when you’re in a privileged and protected social position. For, as Saziah Bashir wrote for Radio NZ’s website; “While some may be able to engage with the likes of Southern on a detached, academic discussion, her views and her actions are actually physically and emotionally harmful.” 

Should we as a society then impose such asymmetric costs; requiring some social groups to repeatedly carry an especial burden in order to produce the asserted benefits that a “robust and uninhibited” free speech culture is alleged to produce? But, if we are going to mark out some social groups as requiring greater protection from the effects of speech, how do we do so and who gets to decide just who they are? And how do we stop such protection from expanding to capture expression that we might think ought to be allowed? For example, is there a legal test that would protect Muslims from invidious attacks by the likes of Southern and Molyneux yet would not also risk banning the public display of “Piss Christ”?

Like I said, these are not easy questions to answer. I’m not one hundred percent certain what the answers should be in Southern and Molyneux’s case. And I think anyone who sees it as a simple one for the court to resolve probably hasn’t thought about it hard enough.

Comments (19)

by Dennis Frank on July 11, 2018
Dennis Frank

As someone who is reluctant to accept any limits to our right of free speech, I'll be interested to see the terms of the court's eventual decision - and I hope it gets appealed all the way to the Supreme Court by either side.

This trend to cast hate speech into law seems like just another leftist delusional ploy.  I doubt there's any legal definition of hate speech that is generally accepted by non-leftists.  Surely any such law would require broad political support?

I did agree with Goff:  the council venue ought not to be made available to sectarian groups of either left or right.  But he may be wrong in his reading of whether the council can prevail over human rights law.

by Simon Connell on July 11, 2018
Simon Connell

Independent of whether a reasonable decision-maker could decide not to make the venue available, I wonder if there are some natural justice type issues around how the actual decision was made here. Some very different justifications have been given (Goff: not going to aid and abet racists / Auckland Live: safety issues) and it's not quite clear what was considered when (in particular what information Goff based his call on), whether there was an opportunity for the promoter to respond to the concerns, etc. The whole thing feels a bit like a captain's call hunting for a Bill of Rights Act-compatible rationale.

by john common on July 11, 2018
john common

One thing that's also unclear is - just how many people do you actually have at your dinner parties?

by Colin Fleming on July 11, 2018
Colin Fleming

...the council’s actions when hiring out its venues to speakers are captured by both the NZ Bill of Rights Act 1990 and the Human Rights Act 1993. Those enactments prevent the council from making venue hiring decisions (including cancellations) that “unjustifiably limit” freedom of expression, or that discriminate on the basis of political opinion.

This seems like the crux of the issue to me. Free speech basically means that the government can't punish you for saying anything. It doesn't mean that everyone is obliged to rent you a venue, or invite you to dinner parties, or listen to you. I'm not sure what the legal status of councils is in this respect. Can anyone clarify how the BoR or the HRA obliges the council to rent venues to everyone? I assume if they were fully private venues there would be no issue. No one can force me to rent my venue to someone, I can say no just because I think they're an asshole. If these two wanted to come here and spout whatever rubbish they wanted, if people are willing to come listen to them and someone is willing to give them a venue then they're good to go. If not, perhaps no-one is that interested - but there is certainly no human rights or free speech issue.

by Fentex on July 11, 2018
Fentex

Free speech basically means that the government can't punish you for saying anything.

I disagree. 

Prevention and prior restraint ( which the matter at hand is sort-of an example of ) does not involve punishment, but acheives suppression of speech.

And those effected by this, those who's free speech rights have been harmed are not just the speakers, but also any audience ( the purpose of  free speech includes hearing as well as espousing ideas ).

By deciding to refuse venues the intended audience ( presumably Auckland ratepayers ) is offended against, just as much as the speakers - and I doubt your logic works regarding patriarchal decisions of puiblic employees of what you may be allowed to hear, in the facillities you pay for.

by Phil Stewart on July 11, 2018
Phil Stewart

Accuse me of false equivalence if you like, but indulge me a moment: consider the ethics around abortion and conscientious objection. Health providers who are asked by a patient to refer them for an abortion (not provide the abortion) and who conscientiously object to the procedure, are entitled to refuse to provide this service as long as they refer the patient to a professional colleague who doesn't conscientiously object. Applying these principles to the free speech situation, surely Goff and the Council will have discharged their responsibilities if they had politely referred the promoter to alternative, non-council venues.

by Andrew Geddis on July 11, 2018
Andrew Geddis

@Colin,

In legalese ...

The NZBORA applies to those exercising a "public function, power or duty" ... there may be a question whether this catches a Council that is renting out its facilities on a commercial basis through a council controlled organisation (like Auckland Live), but most legal folk I've seen talking about this thinks it does. 

The Human Rights Act catches everybody "who supplies goods, facilities, or services to the public". If you do so, as Auckland Live does by renting its facilities out to the public, then you cannot refuse to rent a venue to someone based on their "political opinion". Note, though, that if you simply think they are "an asshole", that's quite OK!

@ Phil,

That compromise (which Parliament specifically created for the abortion issue) might satisfy, but I don't think it is a part of the general law at the moment. Maybe it should be?

@ john

I eat sad and lonely dinners on the couch before the TV, which I shout at because of all the idiots on it. 

by Lee Churchman on July 11, 2018
Lee Churchman

Well, the courts will find as they do. I find it more interesting to speculate on whether or not we should change the law.

by Penny Bright on July 11, 2018
Penny Bright

Does ‘hate speech’ first have to be spoken?

by Penny Bright on July 11, 2018
Penny Bright

Which section of which Act gives Auckland Mayor Phil Goff the LAWFUL authority to deny access to Auckland Council facilities?

THIS is the key issue, IMO.

Which is why on this issue, I support the Free Speech Coalition and this Judicial Review.

Anyone want to label me ‘right wing‘?

Fill your boots ....

by Colin Fleming on July 11, 2018
Colin Fleming

@Andrew,

But what if I think they're an asshole because of their political views? :-)

More seriously, thanks for the clarification. In particular the HRA thing makes sense, I guess that's what prevents bakeries from refusing to make cakes for gay weddings and so forth.

@Fentex,

the purpose of free speech includes hearing as well as espousing ideas

Whether or not that's the intended purpose (which sounds a little debatable to me), does the law say that? Genuine question, I don't know and would like to.

by Rich on July 12, 2018
Rich

For the sake of clarity, Southern and Molyneux haven’t been barred from entering New Zealand

Southern will have been required to apply for a visa, though, as refusal of entry to any other state prevents a person being eligible for a visa waiver. (I'm unsure how this is actually enforced though - unless she is on a blacklist, she'd be able to board the flight and enter the country through an automated process).

To what extend are the processes of immigration control subject to human rights legislation? Rapper Tyler the Creator was banned in 2014.

by Nick Gibbs on July 12, 2018
Nick Gibbs

"For, as Saziah Bashir wrote for Radio NZ’s website; “While some may be able to engage with the likes of Southern on a detached, academic discussion, her views and her actions are actually physically and emotionally harmful.

Wouldn't this have to met a very high threshold of proof to be considered grounds for proscribing someone's free speech. Too often it seems that only an allegation has to be leveled and that's enough to demand an event is cancelled.

by Ross on July 12, 2018
Ross

and anyone who says there’s an easy and clear answer to it also isn’t someone I want to have dinner with.

Well, you won't want to have dinner with me!

If a tree falls in a forest and there's no one around to hear it, does it make a sound? It does not. If someone says something offensive, is it really offensive if no one hears (or reads) it? It is not. The only people who would be offended by Lauren Southern or Stefan Molyneux are those who choose to be offended. A person cannot be offended without their say-so. I'd hazard a guess and say that Louisa Wall - who was so outraged by two Al Nisbet cartoons that she went to court to complain - continues to look at his cartoons. And so she should, if she gets a kick out of being offended. It is surely a win-win. She gets what she wants and those who like his cartoons get what they want. 

I really don't see what the fuss is all about.

 

by Dennis Frank on July 12, 2018
Dennis Frank

Yes, puzzling that any parliamentarian would be silly enough to think a court would find a cartoon in breach of human rights law, but that's Labour for you.  An inadvertent lame display of solidarity with those who machine-gunned the French cartoonists.  Some people intensely dislike the impressions others make in their minds, and feel the need to eliminate in response - thus the felt need to delete Southern & Molyneux.

Ross, the fuss is all about the council decision to make their venue unavailable to the couple, and whether that was lawful.  If the review by the High Court finds that, as Andrew suggests, the council broke the law, then more fuss may ensue around whether that means the human rights of the couple were breached.  Since they're foreigners, and not even here, I can't see how they were.  But civil rights advocates will claim they were regardless, because people nowadays are motivated more by perception than reality.

by william blake on July 13, 2018
william blake

So Southern and Molyneux got their gig at a council run auditorium and I as a citizen exercise my right to free speech and yell "fire!" In the packed auditorium. Many people are crushed in the ensuing panic. Free speech eh?

by Ross on July 15, 2018
Ross

I as a citizen exercise my right to free speech and yell "fire!" In the packed auditorium. Many people are crushed in the ensuing panic. Free speech eh?

How would anyone be crushed when it's likely to be attended by only one man and his dog? And of course, if there really was a fire, I'd sincerely hope that someone - anyone - would shout "Fire"! By the way, do you know anyone who has falsely shouted fire in a movie theatre? I don't.

https://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-us...

by Dennis Frank on July 17, 2018
Dennis Frank

Andrew, I've been pondering these questions:

Is it likely that the court will decide that clause 5 applies and the council decision is justified as a reasonable limit on the Bill of Rights?  Effectively, that would mean all those who have argued that the right of free speech is limited by social sanctions have their view supported by the court’s decision.

Could the council legal team ask the court to throw out the case on the basis that our laws do not apply to citizens of foreign countries?  If so, would the court automatically then refrain from judgment on the previous question?  What's your opinion?

by Dennis Frank on July 17, 2018
Dennis Frank

Hmm, I just re-read your essay, Andrew, and can see that you'll probably feel that you have expressed your view on my first question sufficiently.  How about this one, then:

Has hate speech been legally defined here, sufficiently for a court to identify prior published statements of political opinion as being or not being hate speech?

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