The BFD | Progressive Opposition Will Help Kill off Hate Speech Proposals

Bryce Edwards
democracyproject.nz

Dr Bryce Edwards is Political Analyst in Residence at Victoria University of Wellington. He is the director of the Democracy Project.

When significant voices on the political left start speaking out against Labour’s proposed hate speech laws it’s a sign that they’re in big trouble. With criticisms now coming from across the political spectrum, it’s much more likely that the Government will ditch the botched speech regulation reforms.

The latest leftwing activist to speak out against the proposals is unionist Matt McCarten. He is encouraging the public to make submissions against the proposals.

McCarten’s leftwing credentials are strong – not only has he been involved in progressive and socialist organising for decades, he was the Labour Party’s Chief of Staff at Parliament for two years from 2014. His opposition will carry a lot weight.

This week he made the following statement:

“Free speech is not a left-right political issue. It’s about democratic civil society where everyone has a right to have their say. Sometimes your opinion can make other people uncomfortable and even create conflict. But sharing your views can start a real conversation of ideas that often leads to positive societal change. If we risk free speech then we risk progress. We must not allow that.”

McCarten also gave a lengthy interview with another leftwing activist, Dane Giraud, of the Free Speech Union, on the problems he sees with the proposals, as well as wider criticisms of the contemporary left – see: Interview with legend of the NZ Union movement Matt McCarten.

McCarten’s views in this interview have also been discussed by leftwing blogger Steven Cowan – see: Matt McCarten: The liberal left has abandoned working class politics.

Cowan has also written about his own opposition to what he sees as a clampdown on political activity and expression – see: We need more democracy, not less. He argues the hate speech laws are just a continuation of the growth of a “liberal support for authoritarian identity or woke politics and for cancel culture”. In contrast, he points to historic socialist figures who have battled for free speech.

In this regard, it’s also worth reading Victoria University of Wellington academics Michael Johnston and James Kierstead who explain how free speech has been vital to not just democracy and progress, but for marginal groups liberating themselves – see: Hate speech law a threat to democracy. They say:

“The historical record, from the suffragettes to the civil rights movement to gay liberation, makes it clear: free speech has been a vital – perhaps the vital – tool in the struggle of marginalised peoples to defend their rights.”

They have written this week about their opposition to the proposals – see: Why the new ‘hate speech’ legislation should be scrapped. They argue that leftwing governments should be concerned with advancing leftwing policies and dealing with problems faced by those at the bottom, but Ardern’s Government is instead pursuing an illiberal programme on political expression. They say the Government is siding with a more illiberal movement around the world that is concerned with suppressing open debate.

The political commentator who has led the fight against the hate speech laws is Chris Trotter. Last week he reported on the only authoritative public survey that has been carried out on the hate speech proposals, which shows the public is clearly more opposed than supportive – see: Free speech vs hate speech – by numbers.

The survey commissioned by the Free Speech Union shows that 43 per cent are either strongly or somewhat opposed, 31 per cent are somewhat or strongly in favour, and 15 per cent are neutral. The survey shows that Labour and Green voters are much more inclined to support the proposals, and National and Act supports much less so. There are some other interesting demographic skews as well – in terms of gender, ethnicity, income, and geography.

Trotter has written at length about the problems with the hate speech proposals. His latest column on this is a plea to the Prime Minister not to go ahead with the ill-thought-out changes to the law – see: I understand why you want to do it, Jacinda – but don’t.

Trotter explains that the horrors of the Mosque attacks have made this a personal quest for Ardern, but argues it’s a mistaken response that won’t achieve its objective and will have many undemocratic and harmful consequences.

The Government-friendly blogsite The Standard has also published a strong critique of the new law, pointing out that the existence of free speech has allowed radical political organisation to occur, and “we need our existing freedom of expression protected more, not less” – see: Oppose this new hate speech bill. They point out that the Labour Party was able to be founded because of free speech, and “I doubt the Labour Party would have been able to exist today if this proposed control of speech had occurred then.”

Others on the left have also been outspoken. Martyn Bradbury, the editor of the Daily Blog, has written frequently about how the left should be opposing the Government’s reform ideas. In a recent blog post he says:

“we are the Left, we should be championing free speech, not repressing it! We can’t allow brittle millennial trigger culture to hand the State powers that history tells us will be used against us!”

– see: Kris Faafoi has gone into hiding over Hate Speech law & would Debbie Ngarewa-Packer get prosecuted?.

Also writing on the Daily Blog, John Minto has labelled the proposed hate speech laws “feel good legislation” that “comes with its own awful side effects” – see: Challenging hate speech – yes but let’s adapt our existing legislation.

Minto argues that, although the Government thinks the reforms would protect minorities, it’s possible minorities would be the victims of clamp downs. For example, “I think it will be the Muslim community and progressive voices who are more likely to feel the harsh edge of this law”, and other activist groups such as pro-Palestine movements would easily be labelled hateful and threatened with prosecution.

This last point has also been made by media law scholar Steven Price, who pointed out on TVNZ’s Q+A on Sunday “Hate-speech laws are often used to prosecute the very minorities that they are designed to protect” such as “gay people who are attacking religions who are attacking them”. You can watch this here: Q+A with Jack Tame – Lawyers ‘tearing their hair out’ over proposed hate speech laws.

For an excellent review of the Q+A debate, see Graham Adams’ latest column: The thorny hate-speech debate sorts sheep from goats. He discusses Price’s negative evaluations of the possible law changes – especially his view that it would be difficult to establish what is and isn’t a crime under the Government proposals.

Adams also highlights the appearance on the Q+A panel of former Labour MP Sue Moroney, who grapples with the lack of clarity in the proposals, essentially recommending that people self-censor to avoid prosecution. He quotes Moroney:

“Well here’s a tip for middle New Zealand. If you think that what you’re about to do or say or tweet might actually be hate speech or might be captured by the law, don’t do it… and we’ll all be better off… If you’re making that judgement – ‘Could this be illegal?’ – don’t do it!”

Adams also points to a recently published video of police officer warning a street preacher:

“There is a difference between preaching and hate speech and you are very close to crossing the line”.

On this video, barrister and legal commentator Graeme Edgeler has tweeted to say:

“The police officer is recorded saying there’s a fine line between preaching and hate speech. He then explicitly acknowledges they had not crossed that line, and still thinks he has a role in policing what they are saying. That is concerning.”

Edgeler has written frequently about the Government’s new proposals. His concluding blog post is a must-read, as he argues strongly against the hate speech laws in their current form, and he is highly critical of how the Government has gone about the reform process – see: The New New Prohibition.

Edgeler draws parallels with other draconian attempts to outlaw harmful activities such as alcohol and drugs, which have been counterproductive. He says: “We may be facing a similar issue with hate speech.”

Amongst his many problems with the proposals, Edgeler highlights the lack of certainty over what would actually qualify as illegal hate speech in the new rules, which he says would have a chilling impact on public debate:

“An important component of the rule of law (perhaps the most important) is certainty. The law should be declared in advance so that people can comply with it. And the biggest problem for people who will try to moderate their behaviour in response to a new criminal law isn’t whether they can recognise a bunch of things that will be covered by it, it’s whether they can recognise what things won’t. Because if it is not clear, then important, protected speech will be chilled.”

Edgeler points to another lawyer’s strong arguments about the problems of enforcement – the idea that even if the legal system ends up absolving an individual of hate speech crimes, the mere fact of having to fight a prosecution will be extremely chilling – see Liam Hehir’s Hate speech and what legal elites sometimes miss about the law.

This roundup column has focused on some of the hate speech law dissenters, most of whom are firmly on the left of the political spectrum. But there are other progressives who have been very favourable to the new rules, and are worth checking out – see Donna Miles’ New hate speech law needs our love, Eddie Clark’s Why ‘inciting violence’ should not be the only threshold for defining hate speech in New Zealand, Joel Maxwell’s Hate speech proposals should have started with Te Tiriti, and Guled Mire’s When we’re afraid to speak, democracy is threatened.

Ultimately it seems likely that Ardern will pragmatically decide to ditch the proposals, given that they have turned out to be such a mess. This will be hard to do, since Ardern has made much of her promise and it’s a Labour Party manifesto commitment. Nonetheless, according to Graham Adams there are signs the Prime Minister is trying to find a way out – see: Is Ardern preparing her escape route from hate speech laws?.

Finally, the Minister of Justice responsible for the hate speech proposals gave a train wreck of an interview about the reforms and then went to ground – or as one commentator recently said is probably “tied up in a basement somewhere by the Prime Minister’s staff and not allowed to do interviews”. But his failure to front on this and other important issues is explained today by Jo Moir – see: What’s eating Kris Faafoi?.