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Hating on hate speech laws

By Steven | June 29, 2021

What is it with the media and hate speech laws? They loathe them. And in their anxiousness to ridicule and discredit them, and excite contempt against them, they seem happy to distort the debate. Do hate speech laws need hate speech protection?

Newshub’s recent coverage

Look at Newshub’s coverage in the past 24 hours. They interviewed the PM, then posted two columns – by Tova O’Brien and Duncan Garner – excoriating her (and Minister of Justice Kris Faafoi) for failing to understand “the policy direction and intent of the law” (O’Brien), misleading  us about it, and “trying to shut down debate” (O’Brien). They said the proposed reform could “make it against the law to insult and/or offend people” (Garner).

O’Brien’s column is sub-headed: “Jacinda Ardern is wrong about her own hate speech law. Completely and utterly wrong”.

You’d hope that journalists who were attacking someone for inaccuracy would take a bit more care over their own facts. Or at least, if you’re going to call someone “completely and utterly wrong” then it would have to be a slam dunk.

It’s not, though fair to say the PM could have spoken a bit more clearly.

“Shutting down debate”?

Let’s start with the alleged “shutting down” of the debate. Really? I mean, really? The government has just released a policy proposal in a discussion paper that literally says, several times, “the government wants to hear from you”. Even if the PM’s responses were “glib” and “dismissive”, that is not shutting down a debate. Different people could have different views about whether her comments were glib or dismissive. Some might even think that glib and dismissive were pretty accurate descriptions of Newhub’s coverage.

The threshold for criminality

Is Duncan Garner right to say that the law could make it against the law to “insult and/or offend people”? No he’s not. The bar is much higher than that. To be criminal, someone’s speech would have to do ALL of six things:

This is a far cry from a law that protects people from just being offended.

That also means Tova O’Brien was wrong to say that “the proposed threshold is as low as ‘insulting’ someone”.

She was right to say that the law isn’t restricted to situations where someone incites violence. But that’s not what the PM said. The PM said it was about “inciting violence and abuse“. She said that twice. Depending on what “and” means here, the PM is (roughly) right. The law would cover inciting violence, and it would also cover inciting abuse. I think you shouldn’t call someone out for being “completely and utterly wrong” on the basis of an ambiguity.

Is incitement of something required at all?

But is the PM right to say that the law requires “inciting” something? She also told Newshub that it required stirring up “action and activity”. But the proposed law would cover speech that merely “normalises” hatred. If you squint hard enough, you could make a case that the PM’s still in the ballpark. If you say something that normalises hatred, you can be said to be inciting it, and encouraging people to take action on it. You might think that she was characterising (accurately, I think) the intent of the policy direction and the gist of the new offence. You could remember the words of Oliver Wendell Holmes that “every idea is an incitement”. But I think that the PM, in an attempt to convince people the bar was really high, went a bit far here. The proposed offence covers inciting or normalising hatred, and the draft and the discussion paper treat these as different things. I wouldn’t call the PM “completely and utterly wrong” though.

Could political opinion be hate speech?

What about the scope of the proposed law – who is protected by it? Does it include political opinion?  O’Brien said it does and the PM got it wrong. (“… a journalist writing an opinion piece titled, Jacinda Ardern is a dictator, could see the journalist liable. Hmmm.”)

Responsibly, O’Brien’s column sets out some of the facts so that readers can see that the PM is not as wrong as O’Brien claims she is. As she says, “The proposal seeks to protect more groups.” Notably, these are likely to include religious people and gay people – a gap identified by the Royal Commission on the Christchurch shooting. The reform paper points to the list of categories of discrimination in the Human Rights Act. It says that “some of all of them” may be used in the hate speech law. This list includes discrimination on the basis of political opinion.

The PM seemed then to categorically rule this out. That’s not consistent with the discussion paper, which seeks feedback on which groups should be in or out. If that decision has already been made, then as O’Brien points out, it’s odd to include it in a consultation document. But neither is it completely wrong. The proposal doesn’t say that political opinion will definitely be a ground of hate speech. In any event, even if it is, it’s pretty hard to imagine a situation where political speech is found to be hate speech, given what has to be proved to mount a prosecution (the five things above). It’s extremely hard to imagine a scenario where genuine political commentary is found to be hate speech. It’s impossible to imagine a scenario where a political journalist could be prosecuted for comparing Jacinda to a dictator.

Could criticism of boomers be hate speech?

Does it protect baby boomers from criticism by millennials (or as Duncan Garner put it in a question to the PM, “Let’s go and attack baby boomers because they’ve gone really well in life. I mean, that would be inciting violence wouldn’t it?”)

The answer of course is no.

Garner has just played the clip of Kris Faafoi being asked whether millennials could be prosecuted for criticising boomers. He responded: “it depends what you say” and “if your intent is to incite hatred against them, then potentially.”

This is a textbook-perfect response. Age is another category that is in the Human Rights Act. So it’s possible that it might be included in the law, depending on our feedback and the government’s decisions after that.

So Faafoi could have added: “Hate speech on the basis of age is one possible category that’s in the discussion paper, and we’re interested in people’s feedback on that. It’s not at the core of what we’re trying to do, which is to stop people from vilifying religious minorities. It would have to be a pretty stunning attack to be found to incite hatred, and to pass the other thresholds in the law. It’s a bit hard to see how an attack like that would “normalise hatred” since there doesn’t seem to be any particular age-hatred around to normalise. Our experience with 5o years of the racial hate speech law in the Human Rights Act, which is pretty similar to what we are proposing, is that prosecutions are very rare because the bar is so high.”

Final comment

Here is the thing about hate speech: it’s really hard. The harms that can be caused by hate speech are terrible, and they are not necessarily easy for people who aren’t targeted to understand. (If you don’t believe me, read a book called “Words that Wound” and then we’ll talk.)

But it’s almost impossible to define. Any attempt is likely to cover too much speech or too little, or have the appearance of covering too much but the effect of covering too little. How can you juggle all the things it’s supposed to deliver: alleviating the harms of hate speech, protecting important speech that might cause offence, using the law as a signal, using it as a whip, maintaining flexibility, creating clarity, being workable, gaining legitimacy, not creating counter-productive backlash? How do you clearly define the type of speech, the effect it must have, the mental element, and what exceptions there might be for humour or satire, news reporting, drama or for other speech in which there might be overwhelming public interest?

The solution to date, in the criminal law anyway, has been an offence that is effectively limited to racial hate speech, that is a bit confusing, that sets a high bar in order to protect free speech, and that has led to – I think – one successful prosecution in more than 40 years (of a pamphleteer who vilified Jews).

The government says its new law is clearer. That is sort of true. It now revolves around hatred, rather than a grab-bag of other concepts – hostility, ill-will, contempt, ridicule. That’s cleaner, at least. Is it really clearer? I don’t know. It’s not very clear to me. What is hatred exactly? What is normalisation? How do you show someone intended to incite or normalise hatred?

Another imponderable: how will this dovetail with the Bill of Rights?

The government is in a bit of a bind. It wants the new law to be more effective, but also wants to insist that the very high bar is much the same as before. I don’t think we can have it both ways. If the bar is the same as before, the law is very unlikely to be more effective.

I suspect that the real criticism of the law is that it’s being oversold. It’s not likely to be used much at all. That’s even though the proposal would expand hate speech to cover more groups, and – yes –  lower the bar somewhat, because the proposed law now covers “normalising” hate as well as producing it.

[UPDATE. I’ve thought about this a bit more. Is the bar really lowered? After all, “hatred”, whatever it means, seems harder to prove than hostility, ill-will, contempt or ridicule. What judicial interpretation there has been of the phrases in the current law sets a high bar, and much of the language of the old law has been retained. The PM says it’s only for “extreme speech” and that the old approach is expected to continue. But on balance, I think I’ll stick to my guns. Hatred is amorphous. More to the point, an intent to normalise hatred is new, and strikes me as a lower bar than stirring it up. The proposed offence would cover both. What’s more, there would no longer be any requirement to prove that the any resulting hatred is “likely”. The current law requires proof that creating hostility, ill-will, contempt, or ridicule is both intended and likely.]

Yet it’s likely to generate more heat than any number of more important government policies and genuinely effective government policies, some of which also deal with the Royal Commission’s recommendations and are listed on page 25 of the discussion paper.

I’ll be interested to see whether the media will be so consumed by its fears of excessive uses of the proposed law that it never asks questions from the other direction – about whether the law will in fact be too ineffective.

 

TOP FIVE RECENT MEDIA BEAT-UPS ABOUT LAWS THAT WILL DESTROY FREE SPEECH

  1. Hate speech.
  2. The Privacy Act.
  3. The privacy tort.
  4. The Harmful Digital Communications Act.
  5. The Dunne v CanWest decision that made TV3 include Peter Dunne in the election debate.

 

TOP FIVE MOST IMPACTFUL RECENT DEVELOPMENTS IN FREE SPEECH LAW

  1. The right to freedom of expression in the NZ Bill of Rights Act 1990.
  2. The new public interest defence in defamation.
  3. The new threshold for “serious harm” in defamation
  4. The tightening of name suppression laws.
  5. The repeal of criminal libel, blasphemy and sedition laws.

 

(Okay, this is a bit of an exaggeration. I’m trying to show that while the main media concerns focus on things that might restrict speech – I could add deplatforming and name suppression – whereas actually the arc of media law is long but bends towards more free speech. The reality is that most developments in media law, positive or negative, don’t have very much effect at all. To be fair, that includes the repeal of criminal libel, sedition and blasphemy).

 

PS. I have updated this post after a slightly more careful reading of page 33 of the discussion paper.

 

 

Topics: Hate speech | 4 Comments »

4 Responses to “Hating on hate speech laws”

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