Legal Beagle by Graeme Edgeler

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Steelmanning hate speech reform

I am generally sceptical of laws regulating speech, especially those that impose criminal penalties, the consequences can be perverse, and can sometimes even make things worse for those whom they seek to protect. But I try not to allow my reflexive scepticism to be reflexive opposition, and it can sometimes be helpful therefore, to explore the argument for change.

If you are someone supportive of the idea that the marketplace of ideas is the best means to root out offensive ideas, that the best response to bad speech is good speech and more speech, there is even something here for you. Hate speech can create an environment in which speech from minorities – speech that ought to be welcomed by the marketplace of ideas – becomes less likely. The fear of abuse, of threats or harassment, but even just highly unpleasant response, can discourage speech. Could banning speech that engenders such hatred – speech that silences voices, speech that attacks the marketplace of ideas that opponents of hate speech regulation are trying to protect – actually reinforce that marketplace, by allowing those who may otherwise have been marginalised to join the conversation?

That is one of the reasons for, and benefits of, laws against defamation. Defamation interferes with the free exchange of ideas. Defaming opponents in the marketplace of ideas can be a means to silence them: "don’t listen to him, he’s a liar", or “she’s a fraud, and lying about her qualifications". Why wouldn’t we want to seek the same regulation of the hate speech that can silence others?

Hate speech properly understood is bad. That “properly understood” is doing a lot of work, but I hope I can get some agreement that there are some types of speech that diminish social cohesion in profoundly negative ways, and without any societal benefit.

An example we might like to consider is the preacher here. You can express even very firm religious doctrine against same-sex marriage without using the word ‘bullet’. This isn’t a case where the bad done by expression outweighs the good, it is that there is no good in the expression at all (*there might still be bad done by banning it, but we’ll address that later). As a principle, there is some expression the existence of which is an unalloyed bad.

We ban all sorts of speech, for all sorts of reasons. Some of those bans involve criminal laws: we ban death threats, and fraud, and conspiracies to import drugs; others are regulated through civil processes, such as claims in defamation and privacy, and obscure torts like interference with contractual relations.

Which isn’t to say that that speech should necessarily be regulated (much less criminalised), but as a general proposition, I hope this can be accepted: society would be better off if some particularly bad speech happened less or not at all.

For hate speech specifically, the concern is about speech that dehumanises others, that encourages others to view other groups as less human. At its highest, it is 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. If there are groups of people felt to be deserving of scorn, of contempt, and of hatred, by enough people, then some people (perhaps just a small minority) may act on that hatred: yelling epithets in the street, engaging in acts of vandalism to homes, businesses, places of worship or graves, or harassment and idle and not-so-idle threats.

This is detrimental to social cohesion. People who live in a place like New Zealand should not be made to feel that they do not belong, should not be made to fear that taking part in public life will lead to threats and should not have to fundamentally change their lives to avoid attempts at victimisation. And hate speech can make this happen. I gave an example last year:

A Muslim mother wishes to take her children to the beach on hot summer day. Her beliefs dictate that she should be modestly dressed in public, but she still wants to swim with her kids, so wears a burkini. At the beach, she’s verbally accosted by someone yelling “Go Back to Islam”, and other derogatory comments indicating she doesn’t belong in New Zealand. Now, maybe this is the type of speech we have to live with in a pluralistic society. But we shouldn’t pretend there is no harm. Her kids have heard it. Maybe they were worried for her safety, in the same way that some who hears a threat may fear for someone’s safety. Maybe they’re now scared to go to the beach, in case that bad man (or someone like him) is there.

Speech which causes someone to change their public life – not going to the beach because their kids are scared of being accosted; or deciding to drive to the supermarket instead of walking because someone on the direct route yells out the n-word or the (other) f-word every time they walk past – is harmful. And it is a harm that might be justifiably regulated.

The hate speech reforms, however, do not directly deal with this. Abusive speech is covered, but only to the extent that it encourages group hatred. These things can potentially be charged under general criminal laws, but amendments to make such things easier to prosecute under either harassment laws, or as intimidation isn’t part of this proposal.

Rather, the law is aimed at reducing the environment in which people can feel comfortable engaging in such behaviour. If people are encouraged to hate others, the theory is, these sorts of problems become more likely. If the environment of hate leads to environment of abuse, and threats, the marketplace of ideas falls down.

There’s an argument against hate speech regulation, which takes pretty much the same line. Adopting laws against hate speech – even narrowly targeted, may in fact increase abuse. That marginalised groups may get the blame for laws against hate speech, that prosecution of hate speech offences may provide platforms for speech that might otherwise fall into obscurity, and create sympathy for those speakers, rather than contempt.

Unfortunately, this is where my attempts to steelman hate speech laws falls down a little. I can point to countries that have tightly targeted hate speech laws, whom we might learn from in drafting any amendments here, but I simply cannot tell you whether any of them have actually worked. The arguments above are all theory. Common sense theory in lots of places, and in many respects backed by evidence of the harms of hate speech, but evidence that hate speech regulation has had positive effects, actually reducing hate crimes and abuse is something I haven’t seen.

But then, we regulate all sorts of things we accept are bad, without necessarily being sure that the second order consequences of the ban will see a reduction in other bad things. We criminalise threats without being sure that violence decreases when threats are prosecuted, because threats are so bad, and have such negative consequences on the victims of threats, that the imposition of criminal consequences is felt justified. This goes for a lot of the crimes we have where words form the basis of the charge.

Maybe some hate speech is so bad, that criminalising it on its own, even without being sure of other benefits is justified. A properly targeted hate speech law, narrowly tailored to the worst most dehumanising hate speech, could be justifiable irrespective of the second order consequences.

The report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain, notes considerations favouring the creation of hate speech offences include:

the promotion of social cohesion;

the desirability of limiting speech that encourages hostility that may result in harms such as discrimination and abuse, fears of physical harm and actual violence;

It notes that these need to be weighed against consideration of:

the importance of freedom of expression; and

ensuring that the law can practically be enforced.

In a related paper, The Royal Commission also considered the adverse consequences of hate speech:

Adverse consequences and victims of hate speech

14 In deciding whether hate speech offences are a reasonable limit on the right to freedom of expression, the adverse consequences of hate speech are relevant.

15 We were provided with a draft Ministry of Justice document that sets out the evidence base it has established during its review of hate speech legislation. That document lists the impacts of hate speech as including:

a) Psychological harm of hate speech – It has been claimed that hate speech causes psychological harm to individuals, and that its presence in society reinforces the racist status quo. This is consistent with findings that suggest individuals subjected to non-physical discrimination suffer harm to their physical and mental health.

b) Impact of hate speech on human dignity and public goods such as inclusive society – Jeremy Waldron argues that hate speech should be regulated as part of our commitment to human dignity, inclusion and respect for members of marginalised communities. Denigration of a marginalised community through hate speech undermines a public good that can and should be protected – the basic assurance of inclusion in society for all members.

c) Impact of hate speech on behaviour of affected people – Some commentators have argued that hate speech causes those who are subject to hatred to retract from society and remain as silent and invisible as possible.

d) Impact of hate speech on New Zealanders generally – A Netsafe survey conducted in 2018 on the impact of online hate speech found that one in ten adults have been personally targeted by online hate speech. Of those targeted, about 60 percent reported a negative impact from the experience. Most reported being affected emotionally but also exhibiting changes in their behaviour. A third of those targeted reported not being affected. Descriptions of emotional impact included anger, sadness, fear and frustration. For some, online hate also affected their social interactions, sleep and/or work.

e) The link between hate speech on the internet and hate crimes – A study commissioned by InternetNZ concluded that the case for the link between hate speech on the internet and hate crimes has been well made, however more research is needed to understand the details.

Maybe that is enough?

The case against hate speech reform will follow in a later post, but I will note one point here.

The types of hate speech that most impact on individuals’ access to the marketplace of idea – the emailed death wishes, and implied threats, the street abuse and harassment that may cause people to alter their lives, to not take their kids to the beach, and to try to avoid becoming public figures speaking on issues of importance for fear of their lives become measurably worse through personal attacks  that personalised targeted hate speech with identifiable victims?

This proposal doesn’t deal with it at all.

The hate speech reforms are instead designed to stop the creation of an environment where these things can occur, but appear to assume that the laws that deal with these things directly are adequate. I have no idea why.

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