I read Lizzie Marvelly’s “Words can hurt like sticks and stones” in the Herald for Saturday 8 April with interest. The theme of her argument is that with rights – such as the freedom of speech – come responsibilities. There is no difficulty with that. However, some of the arguments advanced must give cause for pause. What seems to be the substance of the argument is that there is freedom of speech – up to a point.
A recent statement of concern by Professor Paul Moon and a number of other prominent New Zealanders seems to have prompted the article. It is perhaps a little bit disappointing that Ms Marvelly devalues her argument adopting a note of disdain when she refers to this group describing them as a “fusty group of signatories of Moon’s missive – many of whom are long past their student days and unlikely to have faced either online abuse or the dangerous rhetoric of groups like the neo-masculinists or the alt-right.”
Further she seems to be critical the provisions of s. 14 of the New Zealand Bill of Rights Act 1990, suggesting that the freedom of expression – to seek, receive AND impart information – could not have contemplated the democratisation of expression enabled by online platforms.
Of course the history of freedom of expression goes much further back than 1990. And it has been involved with technology. The invention and use of the printing press was as revolutionary for the imparting of ideas as social media is today. In enabled the spread of the radical (and very controversial and unpopular) ideas of Martin Luther that led to the Reformation. And it attracted official interest from the beginning. The expression of dissent, be it religious or political, was severely suppressed in the days of the Tudors, the early and later Stuarts and the Commonwealth in England. The savage treatment visited upon those who expressed unpopular views is well recorded.
The move to a recognition of the freedom of speech came from the experiences of repressive tyrannies both in England and in the American colonies. The First Amendment to the United States Constitution arose as a response to the repressive conduct of the colonial power and to guarantee robust and open debate. Thomas Jefferson referred to the marketplace of ideas which freedom of speech enabled and within which ideas of doubtful or dubious value would fail.
I agree with Ms Marvelly that there are risks associated with the expression of an opinion. The contrary view may be expressed. That is what happens in the market place of ideas. But the marketplace should not be shut down just because some of the ideas may be controversial. And that is the problem. In the same way that a person has the right to express a point of view, so a potential audience has a right not to listen. They need not even examine what is on offer in the marketplace. But the important thing is that the idea, however controversial – even repugnant – should be expressed and, in accordance with the Bill of Rights Act there is a right to receive those ideas. It is up to the audience to choose whether or not to accept or endorse them.
The real test of one’s commitment to freedom of expression is in being willing to allow the expression of those views with which we do not agree. As Justice Oliver Wendell Holmes said in United States v Schwimmer 279 US 644 (1929) “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” The last phrase is the title of an excellent book which Ms Marvelly may profit from reading.
But the New Zealand Herald became the market place of ideas on this particular topic. Not only did it publish Ms Marvelly’s qualified approach to freedom of expression. It also published (Herald on Sunday 9 April 2017) a more expansive view of the freedom of expression by Heather du Plessis-Allan entitled “Being Offensive is not a Crime” concerned with abrogation of free expression (she calls them shout-downs) and the theme of that article is that there is no right NOT to be offended. Indeed Salman Rushdie, whom Ms du Plessis-Allan quotes at the end of her article said “what is freedom of expression? Without the freedom to offend it ceases to exist.” And then of course there is the article that started it all – “Free Speech Under Threat in NZ Universities” – in the Herald for 4 April 2014.
The abrogation of the freedom of expression, even partially, even if voluntarily assumed, is a burden on liberty. So I guess when I shop in the marketplace of ideas I prefer the more robust approach of Professor Moon and Ms du Plessis-Allan.
But by the same token it is fortunate and we should be grateful that we live in a society where the ideas expressed by Ms Marvelly were and are available for consideration.