23 Feb 2020

Free speech vs hate speech: The government’s dilemma

From Insight, 8:10 am on 23 February 2020

Insight: New Zealand's hate speech laws could be changing. The potential shake-up has fired up free speech crusaders, who say the sacred right to freedom of expression is under threat. But minority communities say legislative change is needed to counter growing hate speech. For Insight, Katie Scotcher investigates.

Aych McArdle wants better protection for gender diverse people.

Aych McArdle wants better protection for gender diverse people. Photo: RNZ / Katie Scotcher

Aych McArdle huddles with two friends in a crowded hallway. There's little room to move. Those two friends - a married couple - are arguing. The tension between the couple is bubbling, and as they shout at each other in the hallway, one of them loses it. She swings a punch at her wife and the crowd of people, packed like sardines, quickly thins out. Aych throws their body between the two like a human shield. In between swings, one of them pulls Aych away, throws them to the ground and in her anger shouts, "You he-she-it thing, I don't even know what you are. What's going on with your gender?"

Aych is gender diverse and uses they/them pronouns. Aych believes, at that moment, the only thing their friend felt they could say to hurt them was hate speech. "I don't know if they thought it would make me invisible or dissolve me into nothingness," Aych says.   

It's not Aych's only experience of hate speech. Aych says they're often subjected to slurs and put downs online, and even walking down the street. But under New Zealand's current laws, Aych is unable to make a specific hate speech complaint to the police or Human Rights Commission.

The Human Rights Act states it is only an offence to use speech that will "excite hostility" or "bring into contempt" a person or group on the grounds of their colour, race or ethnicity. Gender identity, sexual orientation, religion or disability aren't protected grounds.

In the digital world, the Harmful Digital Communications Act is a relatively recent law and unlike the Human Rights Act, it does protect people on the grounds of colour, race and ethnicity, as well as religion, gender, sexual orientation and disability.

The shootings at two mosques in Christchurch last year brought this gap to the attention of Justice Minister Andrew Little, who subsequently ordered a review of the country's hate speech laws. He says he has received copious correspondence from people describing their experiences with hate speech in the wake of the attacks, which raised the question whether the current laws effectively protect minority communities.   

President of the Federation of Islamic Associations, Mustafa Farouk, was among those who expressed concern over the current laws. He believes hate speech is on the rise.

Mustafa Farouk says a law change would just be the beginning.

Mustafa Farouk says a law change would just be the beginning. Photo: RNZ / Andrew McRae

"We have politicians who … say whatever they want to say, they ride on hatred, they ride on racism … and bigotry and yet, they find themselves in power and people think that is right and they get away with it," he says.

"That's why I think it is important we have a level of control on free speech."  

He says it's going to take more than legislative changes to combat hate speech.

"I think the changes have to come both from law and education, and where we need to start is from our schools, from our kindergartens, our primary schools, high schools and universities.  

"We need to encourage the learnings and teachings of togetherness."  

The Ministry of Justice and the Human Rights Commission are still reviewing the law. The agencies have so far consulted more than 120 people from different communities across the country.

Andrew Little has been given a preliminary report with suggestions based on those meetings. He wouldn't say if the law will change to protect the minority groups that are currently excluded.

The two agencies are now speaking to academics about where the line on free speech is drawn. Little will be presented with another report at the end of that consultation.  

"The developments … in the opportunities people have for expressing their views over the last ten years means that we need to make sure that the law properly reflects the harm that is currently being done without compromising those basic human rights of freedom of speech."

National Party leader Simon Bridges has previously expressed support for the government's review of hate speech laws, but urged it to be cautious about crossing the line and restricting free speech.

Meanwhile, ACT Party leader David Seymour strongly opposes a law change and says he fears the government plans to restrict the right to freely express. Last year, his party revealed a suite of policies that include repealing existing hate speech laws, abolishing the Human Rights Commission and cutting funding to universities that limit free speech.

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The stacks of research on the far right and hate speech, kept neatly in faded manila folders, are so tall they tower over Professor Paul Spoonley at his Massey University office.

Professor Paul Spoonley says it's impossible to measure the full scale of hate speech.

Professor Paul Spoonley says it's impossible to measure the full scale of hate speech. Photo: RNZ / Katie Scotcher

Spoonley has been researching these areas for decades and says hate speech laws should be widened to protect minority communities currently excluded from the legislation. But he thinks the threshold of what constitutes hate speech and what doesn't must remain high.

Spoonley believes hate speech is on the rise here. But he says it's impossible to measure the scale of hate speech in New Zealand because no one is keeping track.  

"Most countries around the world … all have agencies which collect data on hate speech and make that publicly available so people, whether they're in the government or in communities, know the extent of the current evidence concerning hate speech in that country."

The police don't record the number of crimes motivated by hatred. They declined to be interviewed but said in a statement they are "working actively" to better record hate crimes. It's not clear how or when changes will be made.

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The Human Rights Commission receives complaints of unlawful discrimination and racial disharmony, but their statistics don't cover hate crime in general terms. The commission received more than 1600 complaints of "unfavorable treatment" because of race, color or nationality between 2013 and 2018. In that same time window, just under 600 complaints of racial disharmony or harassment, which are considered to be more serious, were made.   

However, there is some idea of the scale of hate speech being spread online in New Zealand. Netsafe last year released its second report into the matter, which showed the number of adults who have been targeted with hate speech online increased by 4 percent in the last 12 months. More than a third of people's experiences of online hate speech occurred in the two months after the Christchurch mosque attacks and Muslims, Hindus, people with disabilities and members of the rainbow community were targeted at higher rates.  

The role that universities play in protecting free speech and academic freedom has also come under increasing scrutiny. By law, universities are expected to be a critic and conscience of society, but there's growing unease, with many questioning where the line of academic freedom should be drawn to protect students from hate speech.  

That came to a head when Massey University's Vice Chancellor banned Don Brash from speaking at its Palmerston North campus in 2018. Dr Jan Thomas ordered the Politics Society event to be cancelled for security reasons, but emails later obtained under the Official Information Act showed Thomas didn't want the university seen to be endorsing racist behaviour.

Don Brash grins at protestors.

Don Brash grins at protestors. Photo: RNZ / Matthew Theunissen

The following year, Speak Up for Women, a group that has been criticised for transphobic messaging such as denying trans identities, planned its Feminism 2020 event at Massey's Wellington campus. The group's spokesperson, Ani O'Brien, assumed they wouldn't have any trouble holding an event on campus after the backlash Massey faced for banning the Brash talk. But after a petition was signed by more than 6000 people, the university again barred the group, an experience Ani describes as suffocating.

"I definitely felt at that point a bit hopeless. I kinda thought we were going to end up with a megaphone in a field or something, and we would've done that if we had to," she says.

Ani O'Brien was upset when Massey University cancelled an event she planned.

Ani O'Brien was upset when Massey University cancelled an event she planned. Photo: RNZ / Katie Scotcher

Ani believes universities are the right place to express points-of-view that not everyone agrees with.

"Their role is in legislation to be a critic and conscience of society and we can't go on like this, because not only will we be depriving a whole generation of students of getting a vast, challenging education, it also has a knock-on effect on society," she says.  

As a member of the rainbow community, Aych McArdle was concerned about the impact the group's view was having on the trans community. Aych says everyone is entitled to their own views, but questions whether sharing them in such a public way is the right thing to do.  

"That group's speech was causing great harm to a community that has no social, cultural or legal protections in Aotearoa. The people who were speaking and wanting to speak on broader and broader platforms were protected from non-discrimination laws," Aych says.  

"I saw a great imbalance of power in terms of those people saying what they want at the expense of an incredibly vulnerable and marginalised part of our community."

Aych says insults like "he-she-it thing" aren't rare. Yet in that hallway, after falling to the ground and being put down, Aych got back up, and again tried to prevent their friends from hurting each other. Ultimately, Aych believes the best of people.

Nevertheless, sometimes people need some guidance. "Hate speech comes up in lots of spaces," Aych says.

"It's not just extreme levels of violence ... it's in the words we speak that don't have good intentions towards people in our communities with less power, less agency."

It will be some time before the government reveals the outcome of its review of hate speech laws. Andrew Little had hoped to present any proposed changes by the end of last year, but says they will now be revealed ahead of this year's general election.

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