The Government and Opposition owe the country a more honest conversation about hate speech, which has real life harms, Marc Daalder writes
Hate speech leads to more than just hurt feelings.
It has the potential to deal lasting damage – not just to the person subjected to it, or even to the targeted group that person belongs to, but to the harmony and social cohesion of the entire country.
That perspective appears to have been lost in recent days as the Government’s announcement of new plans to tackle hate speech has sparked hot takes and political backlash.
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Much of this has been bad faith or ignorant commentary. There appears to be little recognition that hate speech is already illegal, so long as it is targeted at a racial or ethnic group. Although this provision has never been successfully used – and a provision in predecessor legislation was only used once – the law is clear that “inciting racial disharmony” could be met with a $7000 fine or three months in prison.
However, the Government has botched its communications strategy, with neither Justice Minister Kris Faafoi nor Prime Minister Jacinda Ardern proactively offering examples of what might be criminalised under the new provisions.
Ardern crucially got her own proposals wrong in a number of media interviews, saying they would only ban speech that incites violence. And the closest Faafoi could get to an example of something that would violate the new laws was a YouTube video calling for genocide against Māori that a man was arrested for in Tauranga. Although that video arguably violates the existing law (and the new proposal wouldn’t make it any more illegal), the man was not charged with hate speech.
So, what’s actually new about the Government’s proposals? There are three big changes, all forecast by a Newsroom report on the reforms from April.
Most importantly, the Government is actually narrowing the definition of what speech could fall foul of the law. The existing provisions in the Human Rights Act cover speech that, alongside meeting a number of other requirements, is “likely to excite hostility or ill-will against, or bring into contempt or ridicule” a group of people on the grounds of their race, ethnicity or national origin.
The new proposal would set the threshold for criminal hate speech higher. Instead of merely inciting “ill-will” or “contempt”, someone would have to “intentionally incite/stir up, maintain or normalise hatred” to violate the law. Hatred is a much higher bar than ridicule.
At the same time as the proposals narrow the definition of hate speech, they would broaden the number of groups protected from it. Now, speech that incites hatred against more of the protected grounds in the Human Rights Act – including sexual orientation, gender, religion and age, among others – would be prohibited.
The third change is to signal the seriousness of the crime by moving it to the Crimes Act (which all police officers receive training in) and raising the maximum penalties to a $50,000 fine or three years’ imprisonment.
Taken together, the proposals mean more people are protected against hate speech and the penalties for hate speech are higher, but the definition of hate speech is tightened to focus on a much more grievous band of expression that could cause harm that extends beyond the individual targeted.
Lawyer Graeme Edgeler fittingly described the changes as decriminalising some forms of hate speech that currently violate the law – everything that might fall under the “ill-will” and “hostility” categories, for example, but not the “hatred” one.
That underscores the disingenuousness of some of the opposition to these proposals. National and ACT have both said that only speech that incites violence should be criminalised. But there’s plenty of speech regulation already on the law books, beyond even the existing hate speech provisions, that doesn’t incite violence.
It’s already an offence to incite someone to commit a crime (even a non-violent one). As with most speech regulation in New Zealand, this is because that speech could cause real life harms -whether violent or not. One assumes National doesn’t support decriminalising these actions.
So what’s the real reason for this opposition? Is it about expanding protections to a wider range of groups, including trans people? That could be one part of it. Certainly there’s an element of dog whistle politics, harping about free speech while ignoring what the law already provides for.
“It’s the chilling effect on the ability of all of us as citizens to exercise our rights to exist in public that we should all have equally.”
– Eddie Clark, Victoria University of Wellington
But I think the real reason for the opposition to this proposal, but not the existing law, is that aforementioned recognition that the current provisions are never used. That’s the reason the Government is pushing through this change in the first place – despite its inability to coherently articulate this, it sees hate speech as a problem the law isn’t suited to solve.
National and ACT may or may not agree that hate speech is a problem in New Zealand, but they do worry that an approach that would see greater enforcement of speech restrictions (even if those restrictions are narrower than in existing law) risks over-reaching. Speech that doesn’t meet that high bar could be caught up in efforts to crack down on hate speech, they fear – even if that, very transparently, is not the aim of the proposals.
Both the Government and the Opposition could benefit from taking some care and saying what they really mean, so the rest of us aren’t left to read between the lines. We’re owed an honest debate about the proposals on offer here, given the seriousness of the issue.
After all, certainly the Government has some ideas of the types of speech it would like to see prohibited and it should be more forthcoming with those examples.
And certainly the Opposition isn’t proposing to legalise perjury, which is another form of prohibited speech that doesn’t incite violence.
Instead, as Victoria University of Wellington public law lecturer Eddie Clark told me, “Perjury deals systemic harm to the justice system.”
And there’s the rub. The types of speech we’re talking about here aren’t mean tweets or misgendering someone. They’re comments which cause systemic harm to whole swathes of people in New Zealand – and to the ability of those people to live their lives freely despite their immutable characteristics as members of a racial or religious minority or other marginalised group.
“If you are a Muslim woman who wears a hijab and you want to wear a burkini to go to the beach and there’s been a lot of anti-Muslim sentiment around, it might stop you going to the beach which you have every right to do. It’s the chilling effect on the ability of all of us as citizens to exercise our rights to exist in public that we should all have equally,” Clark said.
As much as those opposed to the reforms are right to be concerned about the chilling effect new laws could have on legitimate speech, they should also acknowledge the chilling effect that hate speech has on those targeted by it. This is about more than hurt feelings.