The Basis of Freedom
Freedom of expression is the basis of freedom. It has an inherent value. We each experience life in our own unique way, but what’s the point if we can’t tell anyone about it? From that inherent value comes a practical value. How could feminists, for instance, have asserted their rights without making statements that were unpopular at the time?
Freedom of Expression
Speech is important, but it’s only one method of expression. What you can write, email, Facebook, text, and publish is just as important as what you can say. That’s why the Bill of Rights Act quite rightly protects expression instead of speech, specifically: “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.”
Tyrants Know This
The first thing any dictator does, if they know what’s good for them, is stop their victims from expressing dissident thoughts. If the Prime Minister wants advice on how to show social media platforms who is boss, she needn’t go all the way to Paris. Beijing is only half the distance and they play for keeps there.
New Zealand already has a comprehensive hate crime regime. Under the Sentencing Act, it is an aggravating factor for a person to commit an offence because of their hostility towards a group with a common characteristic such as race, religion, or sexual orientation. If you tag the bus shelters at the top of Symonds Street in Auckland, you can be charged for intentional damage. If you cross the road and tag swastikas on the Jewish graves, you’ll quite rightly get a harsher sentence.
We give the state extraordinary powers. It is the only entity in New Zealand that can legally violate a person’s basic rights to security of property and the person. This is allowed, of course, so that criminals have a bigger bully to contend with. However, the trick of restraining the state’s power is difficult and, we will argue, impossible when hate speech laws get involved.
The Rule of Law
The rule of law is central to restraining the state. Every person is treated equally under laws that are written down. Burglary, for example, is entering a property you weren’t legally entitled to enter, to commit a crime. Whether you’ve committed a crime depends not on opinion but fact. The alternative to the rule of law is the rule of man, where the strong arbitrarily push around the weak.
There are some reasonable restrictions on freedom of expression. You cannot directly incite people to commit a crime when there’s a reasonable chance they’ll commit it as a result of your incitement. You cannot be a nuisance, e.g. yell “fire!” in a crowded theatre when there is no fire. If people die in a resulting stampede, you might be charged with criminal nuisance. You can’t threaten or blackmail people. All of these are already punishable under the crimes Act 1961.
What is fair criticism and what is hate speech? It can only depend on opinion. Usually opinions are met by other opinions, but under hate speech laws they are met by the extraordinary powers of the state. The law cannot help you once it permits state punishment of offensive opinions. Your only hope is that your opinion is in favour with the powers that be, so they won’t use their powers on you.
An Example Under Our Noses
As Free Press often lamented, Susan Devoy was a buffoon who should have stuck to squash. The new Human Rights Commissioner, Paul Hunt, is far more dangerous. A UK Labour Party political hack, Mr Hunt asks us to trust him when he says he ‘leaves his party political views at the door of the Commission.’ More worrying is his defence of Jeremy Corbyn’s anti-Semitic comments.
Free Expression for Our Side
In an excruciating process, under heavy fire from no less than Kim Hill, Hunt finally admitted that Corbyn’s comments about ‘hook-nosed Jews’ might have ‘diminished his view of Corbyn.’ The interview is well worth a listen. (The discussion about Corbyn is from 16:52 onwards.) Andrew Little should sack Hunt immediately.
We now have a Human Rights Commissioner who shows political bias and wants hate speech laws. In combination, they allow for the extraordinary powers of the state to be brought to bear on individuals with unpopular views (but apparently anti-Semitism is okay if you’re on the right side of politics). This is a critical situation for freedom of expression in New Zealand, and citizens must push back.
Existing Problems in the Law
Our current laws on free expression are mostly good but there are exceptions. ACT stood alone as a party in opposing the Harmful Digital Communications Act which says, among other things, that: “A digital communication should not be grossly offensive to a reasonable person.” Causing offence should never be a crime and this provision should be removed. Similarly, the Human Rights Act says you cannot publish statements that are insulting if they excite hostility or contempt towards an ethnic group. Noble sentiment, as always, but something as subjective as ‘insulting’ should never be a crime.
Freedom of expression needs to be strengthened, not weakened in the wake of the Christchurch terrorist attack. We need to expunge the law books of restrictions on freedom of expression and make it clear that it is a critical value for New Zealand. We should then clarify what restrictions can be placed on expression, namely threatening, incitement, nuisance, and defamation, all objectively testable common law principles. There’s more to come on this.
In the Meantime
One example of free expression in New Zealand is donating to a political party. New Zealand political parties quite rightly do not receive any taxpayer funding, so everything we do to promote ACT to voters is funded by voluntary donations. If you’d like to support ACT, please do so here.