Legal Beagle by Graeme Edgeler

5

Political opinion and the proper scope of hate speech laws; a post in honour of John Campbell

I was alerted late last week to the fact that John Campbell had used one of my earlier pieces in questioning the Prime Minister about the Government’s hate speech proposals, in particular focussing the lack of clarity in the Government’s announcements. Thanks John!

One issue that Campbell raised, that I haven’t yet addressed here, is the proposal that protections from hate speech might be extended to groups defined by their political opinion. This is a particularly controversial aspect of the government’s proposed changes, with even people strongly supportive of hate speech reform concerned about overreach. While the Government agreed in principle that hate speech protections should be expanded to all the protected classes in the Human Rights Act, it has more recently appears to be in two minds. Most (perhaps even all) of the strong defences of widening the protections against hate speech I have read, say they are concerned that expanding protections to groups defined by their politics: they agree the criminal offence should expand from the race/nationality/ethnicity it currently covers to other grounds such a religion, sex/gender, and sexuality, but think expanding to all of the grounds may be going too far. Victoria University’s Dr. Edward Clark has suggested that the grounds contained in the Harmful Digital Communications Act might be a compromise.

I remain sceptical of the government’s hate speech proposals: I don’t believe the government has made the case for them, and I especially don’t believe it has explained nearly well enough the expression it wants its laws to cover, nor more importantly, the expression it wants to leave alone. I am very much open to the idea perhaps we shouldn’t change the law at all.

But if we do change the laws, the question of political opinion is one point on which I have most strongly formed an opinion. Any new hate speech protections should absolutely extend to every single one of the protected grounds in the Human Rights Act, including political opinion.

I suspect I may be the only person who has said this.

Opposition to the expansion of hate speech offences to political opinion often rests on the idea that expressions of political opinion should not be regulated by the criminal law. I agree. But expansion of hate speech offences to political opinion isn’t (or shouldn’t be!) about expressions of political opinion, it should be about – like the rest of any proper hate speech law – about expressions of hatred: hatred directed toward groups of people based on their status, and perhaps likely* to inspire hatred by others toward them as well.

(*the current proposal does not include a requirement that to be criminal, hate speech would actually have to be likely to incite hatred, which is one thing the Government has raised for discussion. The Royal Commission said it shouldn’t – because the bar of stirring up hatred is so high, intention should be enough – but I suspect this is one area the Government will reconsider.)

Any justifiable hate speech law will only capture the worst of what might colloquially be called hate speech. We’re not talking about speech that directly encourages violence (that is hopefully dealt with elsewhere), but it would cover speech which may create a culture in which violence can flourish. This is speech which might lead to people being emboldened to abuse others in public, and which accordingly may cause people to retreat from public life and public spaces.

Ultimately – with the Christchurch terror attacks in the background – we are talking about speech said to increase the likelihood of terrorism and genocide. The aim is only to catch the worst of the worst, the most vile, hatred-inspiring speech. If the government’s intention really is to only proscribe the very worst type of hate speech, then there should be no concern about protecting beneficiaries, or unmarried people, or holders of particular political opinions. You will, of course, still be able to inspire ridicule and contempt, which is proposed to be decriminalised. Maybe that’s still not enough, but that debate is about the scope of the offence, not the groups it protects.

There are three basic question to address when formulating a general hate speech offence like the Government is proposing:

  1. What expression should be covered? (the government says published material that is threatening, abusive or insulting)
  2. Whom must the expression be about? (the government says, at present, the classes of people protected from unlawful discrimination under the Human Rights Act)
  3. What intention and consequence the expression must be conveyed with? (the government proposal is with the intention of stirring up hatred, although with the likelihood of hatred being stirred up irrelevant)

    In assessing whether the law goes too far, we are mostly looking at point three. The use of insult in the answer to the first question concerns some people, but were you to remove the words "threatening, abusive or insulting" entirely, and replace them with “publishes or communicates any words or material” you wouldn’t greatly expand the scope of banned expression, because point three is so limiting. If extending point two to cover groups of people defined by their political opinion causes you concern, your problem is really with either point one or point three: you are concerned that we will capture too much speech, and that the standard has been set too low. If we were only catching the worst speech, extending the protection to groups defined by their political opinion should not be a problem.

    This suggested amendment has its genesis in the Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain. While there is no evidence that the Christchurch terrorist was radicalised in New Zealand (and ample evidence he wasn’t), the New Zealand Government wishes to play its part in reducing the risk of radicalisation in the future. The theory is, if New Zealand plays its part, and other countries do their bit as well, then maybe if not eliminating terrorism, it may nonetheless be reduced.

    Now, maybe the evidence it will work is weak. Maybe evidence suggests that criminalising more hate speech may in fact increase the radicalisation of people who feel at the margins, but the point is: the aim of the law is to (hopefully) reduce terrorism, by lessening an environment in which radicalisation may flourish.

    And if that is the aim, and the law is tightly drawn to focus on the worst speech which might lead to that, and is not focussed on common impoliteness, or political or religious debate or criticism (even harshly phrased, perhaps likely to lead to ridicule), and it recognises that it should even be permissible to inspire hatred of say a religion, or of a political opinion, if your expression does not also inspire hatred of people who share that religion, or opinion (that’s a difficult line to draw in practice, but it is one the proposal does, albeit only implicitly), then the law itself shouldn’t be the problem.

    If you have correctly calibrated the law being doing all of those things, then why would you want to protect the group of people defined by their status as refugees, or as unemployed, or having a particular political opinion? What type of speech is it that you – with so narrowly defined a law – want to permit that such a law would prohibit? What speech about a group of people defined by their race, or their religion or their sexuality, is it you want to prohibit, but you think would be absolutely fine if directed at members of the Green Party, or supporters of immigration and multiculturalism, or some other political opinion?

    It is instructive to contrast the terror attack in 2019 Christchurch terror attacks with the 2011 terror attack in Norway. There are a lot of similarities, with some suggestion that the Christchurch terrorist was inspired by the Norwegian terrorist. But there is an important distinction worth dwelling on.

    The Christchurch terrorist selected his victims based on their religion. They were targeted because they were Muslim.

    The bombing in Oslo was of a building house the office of the Prime Minister. The victims on the island of Utøya were attending a summer camp as members of the Worker’s Youth League (a political group affiliated with the Norwegian Labour Party).

    If we are truly intending to pass a law to diminish the likelihood of terrorism, is that really where we want to draw the line? Seeking to limit speech aimed at creating a culture which might inspire someone to attack a place of worship is justifiable, but speech aimed at creating a culture which might inspire someone to attack a group defined by their support for multiculturism is goes too far?

    Now, maybe banning even the worst of the worst hate speech is actually a bad idea, or even counter productive. But if you are sufficiently convinced it is a good idea that you support some version of the Government’s proposal (perhaps with “likely” added back or, or “insult” removed), why wouldn’t you want to expand the protection to all of the protected classes in the Human Rights Act?

    I have in part, an ulterior motive here. A major concern is that the proposal will not be narrowly targeted, and will have the effect of banning speech that we would not want banned. If there is to be a law change, I want to ensure as far as possible that the law:

    • Only bans the very worst, most hateful speech; and
    • is clear, so that we all know what is banned, and what is not; and finally
    • that those involved in enforcing the law: police, prosecutors and Courts to be strongly incentivised to not seek to push boundaries.

      I think back to the Harmful Digital Communications Act. There were many concerns with the criminal offence it contains. While the civil process provides for a set of priciples that create a helpful balancing exercise, which explicitly recognises the important of freedom of expression and other societal interests in play in the public dissemination of ideas, the criminal offence is drafted in a way which does not. On its face, it does not protect fair and accurate reports of news in the public interest. Of course, while the offence should be fixed, in reality, I am not all that concerned that an online news report of say an allegation of sexual assault will actually lead to a conviction under the HDCA for intending to cause the perpetrator harm. I do not think a court would ever convict, even if you looked at the elements of the offence and determined “Yes, credibly accusing someone of rape is likely to cause them serious emotional distress.”

      Select Committee submission made on behalf of news media on the Harmful Digital Communications Bill strongly pushed against the idea that news media should be covered by it. They said that Broadcasting Standards, and Media Council guidelines were sufficient to protect the public from bad reporting.

      While news media have exemptions from some laws (for example, you cannot make a privacy act request for information they hold about you obtained through their newsgathering activities, and they can attend court hearings in criminal cases, even when the public is excluded), I did not support one in the HDCA. The types of things that should be banned by a law like the Harmful Digital Communications Act are things that no news organisation should get remotely close to ever publishing. And if they do publish something that would appropriately see a non-journalist like me face criminal charges, they should face them too.

      I want the courts to read down the overly broad criminal offence in the HDCA, and knowing that news media are there with the rest of us makes that much more likely. The inclusion of news media in the HDCA is protective against overly expansive rulings that unjustifiably reduce freedom of expression.

      And maybe the inclusion of groups defined by their political opinion, will ensure that those drafting and enforcing hate speech laws will be appropriately circumspect, only targeting with the law what can truly be justified. Because we will be incentivised to permit harsh criticism of political opinions without that being held to be stirring up hatred of holders of those views, and because we will want to allow ridicule of them, then these things will also be protected in other areas, like discussion of religion, and any expanded hate speech law will not become a de facto blasphemy law.

      But this really is secondary. If you could convince me that all of my other concerns about the hate speech reforms are wrong, and could prove that there is no risk of them being abused by Police, or misapplied by the Courts, and there would be no second order effects discouraging lawful speech, I would still want political opinion included, for the same reason that is already in the Human Rights Act.

      There are difficult questions in discrimination law. But there are easy questions in discrimination. Some things are just more important.

      Food is necessary for life, so supermarkets shouldn’t be permitted to refuse service to people with disabilities, or the unemployed. Housing is needed too, so landlords shouldn’t be permitted to refuse to rent to people because of their ethnicity.

      Employment is more delicately balanced. Everyone should be able to get work, without a protected status being held against them, so you wouldn’t want a cleaning company to be able to refuse to hire someone because they were Muslim, but do you want to ban a church-run Christian-based after school programme from doing the same (perhaps yes, but only in some roles, not others)? Perhaps you do think that so long as a person can do the job, even that sort of role shouldn’t have a religious requirement (even if say, the appointment of a Minister of religion does). But that is a harder question, with a less obvious answer.

      But where does protection for hate speech fall? If we’re truly capturing the worst of the worst speech: speech that when repeated often enough, by the wrong people, in the wrong way, makes genocide more likely, encourages terrorism, and makes random attacks and abuse more likely, then surely this is one of the easier questions?

      These are groups that are protected from discrimination in employment, in access to housing and education and the provision of goods and services, etc. Are there really groups that we want to protect from such discrimination, but would be okay with them being subjected to culture-of-terrorism-enhancing speech?

      I suggest not. If a group of people is unworthy of protection within a hate speech law designed to ensure social cohesion and the ability to take part without fear in daily and public life, then the problem isn’t the hate speech law, the problem is the list of protected groups in the Human Rights Act. If New Zealand is to expand its hate speech laws to protect other groups, it ought to protect all of the groups protected by section 21 of the Human Rights Act.

      If there is some group we decide we do not want protected from this, then we should be deleting it from the Human Rights Act. But I, for one, am fine with the list. We should protect the groups listed in s 21 from discrimination in their daily lives. And if we conclude hate speech laws will help, and will not risk doing more harm than good, we should not be passing a law to criminalise speech likely to increase the chance of another attack like that in Christchurch, while accepting that speech likely to increase the chance of an attack like that in Norway is the price we pay for living in a free society.

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