New hate speech law needs our love

Friday, 9 July 2021

A March for Love in Christchurch eight days after the mosque massacres. Donna Miles says the time to stand up against the type of hate that allowed the atrocity to take place is now.

OPINION: Remember when the Christchurch terror attacks happened, and we were all shocked that such a senseless atrocity could happen in New Zealand?

Remember how we wept and felt guilty for not paying attention to the hate that had engulfed our Muslim community? Remember how we kept asking how we could make a difference?

I hope you do remember because the time to make a difference is now. The time to stand up against hate is here and waiting for our support.

Importantly, it is not just hate towards the Muslim community that we can do something about – we can also help other protected groups.

* Policing hate: What are the proposed changes and will they make a difference?

Prime Minister Jacinda Ardern calls National Party leader Judith Collins a 'Karen' during a debate about hate speech in the House, on Wednesday, June 30.

* Freedom, hate and reasonable limits

* Hole in our anti-discrimination laws must be plugged

The Ministry of Justice has put forward six proposals for public consultation which aim to protect more groups (rainbow communities, religious groups, disability groups etc) from the harm of incitement of hate and discrimination, something the Islamic Women’s Council of New Zealand (IWCNZ) has been asking for since 2004.

I will not go through the proposals because they are readily available online from the ministry's website. Instead, I would like to address some of the main concerns about the proposed changes.

Firstly, though, it is important to say how disappointing some of the media coverage and commentary around this issue has been. It is utterly wrong to suggest people could be criminalised for making “silly” or “insulting” comments.

Read Steven Price's legal opinion in the Media Law Journal to understand the high bar for criminalising speech, to the point that the real question becomes whether the law is, in fact, too ineffective.

The proposed law certainly catches less speech than the existing laws which, in their current form, have not led to any prosecutions.

Many miss the important point that the main focus of most hate speech laws is not on the ideas being expressed, but rather on the particular impact that expression is intended to produce on others.

This is why in the UK, hate speech laws are called “stirring up” offences, which better explains the intended purpose of such legislation. In Canada, it is referred to as “hate propaganda”.

Focusing on the impact of hate speech recognises the serious danger of creating an environment where hate against a protected group is entrenched and normalised. Normalisation of hate matters because it leads to everyday abuse, like hijab pulling, and hate crimes, like the Christchurch terror attacks.

Those who are naive enough to think that debate and “the marketplace of ideas” are the best way of tackling prejudice and discrimination have not truly experienced the marginalising effect of hate.

Donna Miles: “We all have a capacity to create hope and the sooner we learn how to use it, the better it is for us and our whānau.”

A former Chief Justice of Canada, the late Brian Dickson, noted: “… a particularly insidious aspect of hate speech is that it acts to cut off any path of reply by the group under attack. It does this not only by attempting to marginalise the group so that their reply will be ignored: it also forces the group to argue for their basic humanity or social standing, as a precondition to participating in the deliberative aspects of our democracy.”

Democratic societies often have to strike a balance between different human rights. For example, the right to privacy has to be balanced with the right to information.

Equally, the right to free speech has to be balanced with the rights to safety and non-discrimination. Our courts have a history of erring on the side of free speech. I trust them to get the balance right.

But how do we define hate? In 1964, the United States Supreme Court’s Justice Potter Stewart, in attempting to define obscenity, famously said “I know it when I see it”.

There is no legal definition of hate speech, but you know it when you see it in every successful prosecution. Take the first hate speech conviction on the grounds of sexual orientation which occurred in the UK in 2012. It involved widespread distribution of leaflets calling for the death of gay people. No ambiguity there.

Fundamentally, our attitude to this law depends on the type of society we would like to live in. The United States is the only Western country without any hate speech laws. Theirs is a divided society where very nasty people, like neo-Nazis and Ku Klux Klan members, regularly direct hateful and disparaging speech towards other groups.

Valuing free speech must also mean protecting it from abuse.

Māori lawyer Moana Jackson rightly points to the history of colonisation, where free speech was used to degrade indigenous rights and to maintain white superiority.

We should not underestimate the symbolic importance of the proposed changes. The new hate speech laws say something about our shared values and the importance our society attaches to upholding human dignity as a public good.

I really do not think the sky will fall because of the new laws, or New Zealand will become George Orwell's Animal Farm. I support the new proposals because they make our great country a more inclusive, safe and tolerant place for all.