If the ability to say things that may offend is legally hindered, then the contest of ideas necessary to keep a democracy healthy is hindered as well, write Dr Michael Johnston and Dr James Kierstead 

Democracy is easy to take for granted. Arguably the last time it faced a true existential threat was during World War II, and those still living who remember those dark times are now in their 80s and 90s. Since the fall of the Berlin Wall more than 30 years ago, democracy, in various forms, has been the world’s dominant political order.

Of course, authoritarian systems of government still exist. Recent events in China have shown that increasing prosperity doesn’t always result in a more open society, and Vladimir Putin’s long domination of Russian politics seems to have strangled the nascent democracy that began to emerge there after the fall of the Soviet Union.

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A generation has come of age since the Cold War ended. As the horrors of fascist and communist totalitarianism begin to recede from living memory, we are, perhaps, at risk of under-appreciating the benefits of democracy and of overestimating its durability. In these politically complacent times, it has become all too easy to focus on the flaws and failed promises of democracy and to forget how much it has done for us. It is this complacency – far more than a rising China or a resurgent Russia – that now poses the greatest threat to freedoms we in Aotearoa New Zealand have enjoyed for well more than a century.

One way in which we tend to take democracy for granted is by assuming it is defined by the institution of voting. It is true that choosing political representatives by ballot is a viable way of implementing democratic government, but if a democracy is to thrive, its foundational values must be understood and honoured by its citizens. There are many countries in which a semblance of voting occurs, but which are not really democratic (Russia is one example).

What, then, are the values that make democracy possible? We might first think of political equality. Prior to the western enlightenment, the idea that everyone ought to have equal rights – if articulated at all – would have seemed absurd. In feudal societies, tribal societies, and even in the ancient Greek democracies – which took slavery and the political disenfranchisement of women for granted – equality, while much vaunted, applied only to male citizens, not to women, foreigners or slaves.

This Government has, at the very least, failed to do its due diligence on the implications of the proposed new laws for our democracy.

In today’s democracies, most of which came of age during the 20th Century, equality remains a work-in-progress. Even countries that afford all adult citizens the vote do not necessarily afford them equal treatment under the law, and even when equal rights are legally protected, it is very difficult to ensure they are upheld in everyday life. Despite legal assurances of equal rights, sexism, racism and homophobia still exist. To paraphrase Martin Luther King Jr., while laws can “restrain the heartless”, they don’t of themselves “change the heart”.

All of this is to say that the principle that we ought to treat one another as equals is not a default setting in human societies, but a hard-won and imperfectly realised historical exception. Only if every generation works to instil a cultural commitment to this principle in the generation that follows will we continue to make progress towards fulfilling the democratic promise of liberty and equality for all.

There is another value that is even more fundamental to democracy than equality, and perhaps even more difficult to maintain. That is the free expression of ideas, or ‘free speech’. This, we believe, is the bedrock of democracy. In a democracy, ideas and policies must always be contestable – and actually contested – so we can muddle our collective way towards improvement. The contest of ideas that democracies enable is arguably the reason they have been so good at increasing standards of living and, albeit gradually, liberty and equality as well.

Nonetheless, because we continue to fall short of realising the democratic ideal of equality, it is unsurprising that some see free speech as the privilege of the powerful to say whatever they want, often to the detriment of the less powerful. But, while understandable, this characterisation is superficial and fundamentally incorrect. If we were to abrogate free speech, we would undermine democracy and make full equality even harder to attain. As Holocaust survivor Aryeh Neier put it, “Those who call for censorship in the name of the oppressed ought to recognise it is never the oppressed who determine the bounds of censorship.”

The historical record, from the suffragettes to the civil rights movement to gay liberation, makes it clear: free speech has been a vital – perhaps the vital – tool in the struggle of marginalised peoples to defend their rights. Being able to speak your mind without being fined or imprisoned should also be seen as a fundamental right of all citizens and is acknowledged as such in the Universal Declaration on Human Rights.

Unfortunately, our current Government and our current Prime Minister seem to have succumbed to a temptation to limit free speech in the name of keeping us safe. Jacinda Ardern no doubt means well in her intention to pass laws that will criminalise ‘hate speech’. Perhaps she sincerely believes such laws might have prevented the Christchurch atrocity. But she is taking the very system that elevated her to power for granted if she thinks such laws will have no unintended consequences.

A society that leaves it to politicians, the courts or – worse still – the police to determine which ideas may be expressed and which may not is no true democracy, whether or not it holds elections. If the ability to say things that may offend is legally hindered, then the contest of ideas necessary to keep a democracy healthy is hindered as well. Many good ideas may never be expressed, and many bad ones may go unrebutted.

Supporters of the Government’s intended ‘hate speech’ legislation might argue it is only the ill-intentioned – those who would deliberately offend, hurt or stir up hatred against vulnerable minorities – who need fear these laws. But if we hand to those in power the ability to control public discourse, they will inevitably use it to advance their own agendas. They might even do this with a clear conscience, having convinced themselves they are merely protecting the vulnerable.

There are many contestable and topical questions that affect vulnerable groups, such as whether trans women ought to be incarcerated in women’s prisons and whether separate political representation for Māori is compatible with universalist democratic principles. Three years ago, Massey University’s Vice-Chancellor Professor Jan Thomas justified banning Don Brash from speaking there on the grounds that his expressed views on the latter issue came “dangerously close to hate speech”.

Statements like Thomas’s make it clear why the Government’s proposed legislation might stifle public debate. Had this legislation been law at the time at which Brash expressed his views, would he – the leader of the National Party until 2006 – have been liable to jail time? We can ask similar questions about other debates; in fact, Newshub journalist Tova O’Brien recently asked Justice Minister Kris Faafoi a series of questions along these lines. For example, could millennials be imprisoned for saying rude things about boomers and their stranglehold on the housing market? Faafoi couldn’t say.

Many societies set some limits on free expression, usually to outlaw direct incitement to violence; in New Zealand, incitement to violence was criminalised by the 1961 Crimes Act. But going any further than such minimal restrictions is something any democratic government should baulk at. As O’Brien’s interview with Faafoi showed, this Government has, at the very least, failed to do its due diligence on the implications of the proposed new laws for our democracy. New Zealanders should vociferously oppose them.

Dr Michael Johnston and Dr James Kierstead are joint hosts of the Free Kiwis! podcast.

Dr Michael Johnston is a Senior Fellow at The New Zealand Initiative. He is also an Adjunct at Te Herenga Waka - Victoria University of Wellington.

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