How an absolutist approach to free speech is obscuring hate speech

Thursday, 23 March 2023

A free speech protester at Massey University in 2018, when politician Don Brash was banned from speaking on campus by the university. The argument over the limits of free speech are getting another airing with the imminent visit to New Zealand of an anti-trans campaigner.

Golriz Ghahraman is a Green MP and the party’s spokesperson on justice and human rights.

This article is one of two offering differing perspectives on the debate over free speech vs hate speech. Read David Bromell’s argument that “Words are not weapons and disagreement is not hate”.

OPINION: We live today in an Aotearoa that knows, firsthand, not only the threat but the enduring hurt of extremist violence.

Four years ago, 51 lives were lost in the Christchurch Mosque terror attacks, many more were broken, and our entire nation reeled from shock.

In the years since, we have grappled with how to prevent this sort of atrocity. There have been no changes to our laws on hate speech – but the issue remains one of public interest.

Explainer: Four years on from the mosque attacks, what's been done to combat violent extremism online?

* FIANZ asks the Government for hate speech legislation funding, timeline

* 'Another conspiracy group': British anti-trans rights activist plans stop in Aotearoa as part of global tour

As we contemplate potential limits on violent rhetoric, we must remember what is at stake.

I want us to remember that the Royal Commission of Inquiry found that our hate speech laws are not fit for purpose.

Our institutions had no way to record or assess the growing climate of extremism, and as it turned out, risk of very real violence.

The Muslim community had been trying to report that risk for years. Our laws were outdated, out of line with other modern democracies, and lacking in tools to address threats.

Transgender rights protesters in Nelson during a 2021 protest against a local council decision to allow a council venue to be used for a meeting organised by Speak Up For Women, seen as an anti-trans group.

Freedom of speech is a protected right under the Bill of Rights Act, and we must always hold firm to the importance of robust debate on difficult issues, and cherish freedom of thought.

But within the very high threshold for limits on freedom of speech, many other democracies have drawn the line differently to Aotearoa when it comes to hate speech.

This is not about speech that causes mere offence. We are always talking about genuine harm. The standard must be set high and focused on the risk of actual harm to individuals, groups, and society as a whole.

This should be a conversation about how to enhance freedom for all, with a particular focus on our most vulnerable.

The very real risk of violence against women, race or religious minorities, and Rainbow communities, has direct links with online campaigns of fear and hate toward those groups.

And we know, sadly, that the trans community is marginalised in our society and the target of ongoing violence and prejudice. That data is clear.

Posie Parker (Kellie-Jay Keen-Minshull) at a Standing for Women protest in Glasgow, Scotland earlier this year. The anti-trans activist is expected to speak at events in New Zealand, sparking controversy over whether she should be allowed to promote her message here.

Apart from being constantly misrepresented as an issue of “offensive language”, the debate about hate speech is also often obscured by an absolutist approach to freedom of speech.

As with every right, we must ask: how does this fit in with other rights and interests? If someone is unable to live their life in peace and security because of relentless harassment, are we doing enough to protect their freedoms?

Free speech advocates need to consider this issue in good faith.

Let’s remember that almost all rights are balanced against other rights.

We already allow numerous limits to free speech that are considered to be justifiable in a democratic society – like criminal offences of threatening violence against an individual, and mundane limits like copyright and confidentiality. You can even take someone to court for harm to reputation through speech, it’s called defamation.

Green MP Golriz Ghahraman is her party’s spokesperson on justice and human rights.

As a human rights lawyer and lawmaker, the starting point for me is the framework that says all rights are universal and inseparable.

That means our rights are there to protect us all, without discrimination, and that every right – civil, political, economic, social, and cultural rights – must be fulfilled.

Inevitably, this means balancing rights against each other. We cannot allow freedom, peace, safety and democracy to be threatened by speech that incites and legitimises violence and harassment.

And finally, in light of this week’s events, we must acknowledge that trans and non-binary people have the same rights as anyone else to live their lives without threats and harassment.

We must acknowledge the demonstrable truth that extremist violence against Rainbow communities is on the rise globally. And so we should also face up to the risk of harm by those who seek to whip up hatred towards trans people.

If history has taught us anything, it is that we must take very seriously threatening and inciting speech. This is the first step down a road that leads to violence.

The same patterns of dehumanisation have played out against different groups throughout history, and it’s naïve to ignore this.

In the boundaries of how we address dangerous speech, one of the easier lines to draw would have been refusing a visa to Posie Parker. This decision has not been made.

There are moments in history when societies see extremism on the rise. If our own privilege can shield us against that harm, we get to decide whether we are happy to become bystanders.

I stand with our trans whānau with a call to protect them now, rather than to hold vigils only after the unthinkable happens.