Marcus Roberts
Auckland, December 3, 2022
After a lull of a few months, the government is restarting the hate speech vs free speech battle.
Justice Minister Kiritapu Allan has announced that there will be an amendment to the Human Rights Act 1993 so that inciting hostility against religious belief will also be covered.
Under section 131 of that Act, it is an offence to publish or publicly utter words that incite racial disharmony.
But only one successful prosecution has been brought in the 29 years of the Act’s existence.
The section is wordy, confusing and its elements are not easy to parse.
Sanctity of Free Speech
A good argument can be made that the law should be rewritten to be more straightforward.
However, the government seems to be suggesting that it not be rewritten but expanded to include a new area of speech (directed at religious belief) which may be criminalised.
While we wait for the specific legislation, let us consider some principles that should underpin any new law in this area.
We need to keep in mind why freedom of speech is so important.
Freedom of speech is a right recognised domestically (in the Bill of Rights Act 1990) and internationally (in the International Covenant on Civil and Political Rights).
The starting point for any new legislation should be that. We have the freedom to say what we want unless there is a compelling and pressing reason for the state to curtail it by threatening criminal punishment.
Free speech has been a vital tool for the least powerful in society.
Frederick Douglass, one of the leaders of American abolitionism, argued, “the right of speech is a very precious one, especially to the oppressed.”
Conversely, throughout history, rulers have used censorship to strengthen their grip on power.
As Jacob Mchangama argues in his book Free Speech: A History from Socrates to Social Media, “Free speech may well be the most powerful engine of equality ever devised by humankind.”
Narrowing restrictions
Even if we are satisfied that there is a compelling reason to restrict our right to free speech, the restriction needs to be as narrow and as clear as possible. It’s not good enough to leave the contours of which speech counts as hate speech to the “you’ll-know-it-when-you-see-it” test. Tossing it to the courts to determine the boundaries as they go is also no answer.
Even if the courts do find in favour of a defendant (and thus, by their decision, help set the contours of the legislation), Liam Hehir has convincingly argued that the process is the punishment. Winning a legal battle can be as ruinous as losing one for an individual. Yet, win or lose, the state will never face financial, much less personal, ruin.
With so much at stake, let us hope that the government’s proposed hate speech amendments adhere to the first principles. If it doesn’t, the hate speech vs free speech battle risks collateral damage of much more than what you may (or may not) say.
Marcus Roberts is a Senior Researcher at the Auckland-based Maxim Institute, an independent think tank working to promote the dignity of every person in New Zealand by standing for freedom, justice, compassion, and hope.
