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When free speech creates disorder or hate

By Steven | June 28, 2021

“De-platforming”. It’s the free-speech zealot’s issue-du-jour. I’m looking at you, Damien Grant.

It seems so exactly what cancel culture is. Don’t like the speech? Ban it.

Except it’s not really a ban, is it? There is nothing to stop those poor begagged individuals from putting out press releases and YouTube videos, railing on social media, and speaking out on television and radio about… how their speech has been shut down so outrageously.

Other pressure groups can only dream of such opportunity to put across their views, such a terrific… platform. What if the Free Speech Union itself were deplatformed? Can you imagine how gleeful they would be?

So I find it difficult to get too worked up about it. That’s not to say it’s not a serious issue, especially when it’s a public agency doing the de-platforming. It’s just that, as a speech restriction, it’s so partial (there’s nothing to stop them seeking out another venue, for example, and it does not affect all their other avenues of speech), and so often counter-productive (how many of us would even know Stefan Moleneux and Lauren Southern’s names if it wasn’t for their Auckland deplatforming?) and so rare, that, for me anyway, it doesn’t rank right up there in the list of top threats to free speech.

But Damien Grant sees the Molyneux/Southern case as a backdown by the courts, and a troubling precedent – one that reflects our “milquetoast” right to freedom of expression in the Bill of Rights Act. The US, with their much more powerful First Amendment, wouldn’t have a bar of it.

Damien describes himself as a “free speech absolutist” and wouldn’t stop anyone from holding a public meeting in a library. This is good news for those wanting to introduce a wider audience to the delights of child pornography or give instructions on how to make bombs with household ingredients or publicly release all of Damien’s private and business correspondence. But for the free speech moderates among us, the issues are trickier. (Incidentally, free speech doesn’t get quite the free ride in the US that most people assume. It is common, for example, for protesters in public places to be herded and ringfenced in the name of public order).

Fair enough, I think, for Damien to wonder if the Auckland Council authorities were truly concerned with public safety, as opposed to the likely content of Molyneux and Southern’s speeches. But on the evidence before the Court of Appeal, that was the reason; there was some support for it; and it wasn’t an unreasonable basis for the decision, even though, as the judges pointed out, others may have reached a different decision. That’s judicial code for: you should probably line up a better justification next time.

Damien is in a flap about the decision for several reasons, some of which make sense. He says anyone holding a meeting will now have to “consult the rabble of discontented on Facebook and Twitter”. Let’s grant poetic licence for that piece of nonsense. More to the point, he argues that the decision gives opponents of any particular speech a “heckler’s veto”. By threatening disruptive counter-protest, protesters can create a lawful pretext for officials to cancel the meeting. This is a genuine problem, at least in theory. But I note that it’s the job of the police to prevent disorder and if, at a particular event, this was imminent, that would involve intervening to stop those threatening the violence. Why are we assuming, at the point of giving permission for the meeting, that violence will break out and the police couldn’t handle it?

I’m saying that the heckler’s veto is overstated. That’s because it can usually be managed, and because it really doesn’t happen very often. And in this, I’m really agreeing with Damien. It’s not a usually very good reason for cancelling a meeting like that one.

Then Damien points to the recent Speak Up For Women cases.  SUFW booked a room for a public meeting in the Palmerston North library. The library later cancelled it, replacing it with a debate on similar issues, to be scheduled sometime in the future. Damien says this is because they regarded SUFW’s message as a safety and wellbeing issue, and felt they had a licence to shut down meetings of groups that might have threatened “social and cultural wellbeing”, which could be anything they disagreed with.

If he’s correct about that, then they got a rude awakening. The court said this was plainly not a lawful reason to cancel the booking. It readily found that no violence was threatened and if a debate about the issues would not raise any safety concerns then surely a meeting by one side couldn’t either. There was no reason to think there would be a disturbance, and free speech isn’t predicated on having an opposing voice present. I think Damien and I would both applaud that.

I’d just point out, as Damien didn’t, that this decision applied the Court of Appeal decision in the Molyneux/Southern case. That is, it followed the instructions in that case for how to deal with de-platforming issues. The Court of Appeal had set a fairly high bar, and the High Court ruled here that the Palmerston North City Council didn’t clear it. The rule is that you need a pretty rigorous justification, based on good evidence, to overcome the presumptive right to free speech at a public venue, especially where the speech is political.

That seems like a reasonable rule. It will usually require evidence of likely violence. But the really interesting case will come when someone is promoting truly hateful speech (and I do not put SUFW in that category; neither did the judge) and seeking a public platform for it, but where there is no realistic violence issue. Speech that perhaps has a political edge, but is full of racial or religious smears, harmful misinformation, and/or insidious but not explicit calls for action against a historically disadvantaged group.

Is it lawful and justified to put some restriction that speech by denying it a public platform? I think that’s a hard issue.










Topics: Free speech theory, NZ Bill of Rights Act | No Comments »

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