I have written before about what I consider to be the decline of reasonable discourse. Certainly any hope for reasoned argument and a discussion about differences in opinion and point of view has gone out the window.
If anyone thought that the recent incident involving Kellie-Jay Keen-Minshull (aka Posie Parker) was unusual they are forgetful of earlier examples of shutting down disagreeable points of view. Massey University’s cancellation of Don Brash’s invitation to speak in 2018 provides one example although to be fair he later spoke at Massey in 2022.
Brash’s “cancellation” took place around the same time as the attempt by controversial Canadians Lauren Southern and Stefan Molyneux to speak publicly in Auckland at the Bruce Mason Theatre. They were denied that venue by Regional Facilities Auckland although the then Mayor Phil Goff did not hesitate to express his opposition to them using public facilities made available by the City Council. This refusal gave rise to litigation which went all the way to the Supreme Court – see Moncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138– where the approach by Regional Facilities was upheld.
From time to time controversial speakers visit our shores. Often their presence or their opportunity to express their views is challenged. In 2022 there were calls to cancel Jordan Peterson’s presentation in Auckland in 2022 by Auckland feminists and by transgender activist Shaneel Lal. Lal was one of the organisers of the what was described as a counter protest (it was in fact a protest) against Ms Keen-Minshull.
An attempt to seek a High Court decision to review the fact that Ms Keen-Minshull was permitted to enter the country was unsuccessful, notwithstanding sympathetic comments by the Judge hearing the application – see Auckland Pride v Minister of Immigration (Reasons Judgment 5 April 2023) [2023] NZHC 758. One of the concerns that was expressed by the applicants was that the extreme views expressed by Ms Keen-Minshull attracted conservative, far-right, white supremacist groups and that her presence might constitute a threat to public order.
That in fact came to pass. In one of what must be the most extreme examples of a cancellation or deplatforming of a person who was entitled to express a point of view, Ms Keen-Minshull was set upon and allegedly assaulted by one of the protesters present. This cancellation was subsequently celebrated by Shaneel Lal.
There were people present who genuinely wanted to hear what Ms Keen-Minshull was going to say and who had a right to receive the information imparted albeit that information may have been unacceptable. I am sure that Shaneel Lal as a law student, is acquainted with the provisions of section 14 of the New Zealand Bill of Rights Act 1990 which guarantees the freedom to seek, receive, and impart information and opinions of any kind in any form. He and the protesters not only cancelled Ms Keen-Minshull’s right to express and opinion but also cancelled the right of members of the audience to hear her opinion.
Another example of “official” cancellation may be seen in the withdrawal of a venue previously available to Julian Batchelor who faced threats of disruption from opponents of his position.
This trend of cancellation, deplatforming or “the heckler’s’veto” was considered by the Supreme Court. It noted that the “heckler’s veto describes the situation in which those wishing to exercise their free speech rights are prevented from doing so by actual or threatened protests, particularly threats of violence. (See Moncrieff-Spittle at para [93]. Although it could be suggested that there may be attendant health and safety issues arising from the exercise of free speech it may be that the cancellation of a venue hire agreement (as was the case in Moncrieff-Spittle) may be reasonable limit that could be justified in a free and democratic society. (Moncrieff-Spittle at para [101] and following.)
The Supreme Court was at pains to point out that every case had to be dealt with on its individual merits. The problem is whether or not every controversial speaker who comes to New Zealand will run the risk of threats of violence and disruption to such a degree that the authorities will not make venues available or the speaker is silenced by a level of violent and disruptive behaviour as was experienced by Ms. Keen-Minshull.
This does not bode well for the freedom of expression in New Zealand – where a vocal minority can shut down the expression of an opinion by one person and prevent the hearing of that expression of opinion by another.
However, this form of cancellation or deplatforming by threat is not the only way in which points of view may be silenced.
Recently Sean Plunket, an outspoken broadcaster who runs a show on the Platform was banned from Twitter. He was reinstated a few days later. I also know of a person who was banned from a discussion group (the organisation does not matter) although his posts were rational and polite. That person was asked to justify his position and have his continued participation in the group reassessed. He has since been reinstated.
It is acknowledged that platforms occupy a somewhat different position from Government organisations when it comes to freedom of expression, and in many cases rely on contractual terms to moderate content that may be permissible. But that said, a person who uses such a platform has an expectation of fair treatment. Rather than be deplatformed without a hearing, and then have to justify reinstatement (an interesting reversal of the traditional flow of proof burdens both civil and criminal where the accuser has the burden of proof). My view is that a warning should issue advising that deplatforming is likely if the conduct complained of is continued. That at least could be the starting point of a dialogue where the accused person would have an opportunity to put his or her point of view (in law the principle is audi alteram partem – hear the other side – before reaching a decision).
This leads me to a theme which I have expressed before in other posts. Many of those opposed to a particular position would rather not debate it for fear of giving the oxygen of publicity to the opposed point of view. Rather those opponents would like to see the point of view remain unpublished or shut down entirely.
This runs contrary to the “marketplace of ideas” position which suggests that contending positions should be discussed and considered. If an idea has validity or is acceptable it will survive the debate. If it is invalid or unacceptable it will be dismissed or at best relegated to the margins.
But what is important in this process is that an idea, opinion or point of view should be properly and objectively debated. That debate should not involve emotive language, the use of “veto” words like racist, conspiracy theorist or toxic. Rather, if an idea or opinion does contain elements of say, a conspiracy theory, identify the theory and explain why it is incorrect or wrong. Admittedly, many of those advancing a contrarian position (probably a better term than the emotive “conspiracy theory”) are monist in their approach. But while the person expressing the contrary opinion may not be convinced of the invalidity of the argument advanced, a member of the audience may be and in that way the marketplace of ideas succeeds.
The problem as I see it is that in the current climate rational and objective argument seems to be sidelined in favour of emotive outbursts, veto statements and cancellation behaviour.
My professional background has been in the environment of a highly structured approach to contending positions. In addition there are a number of fundamental rules underlying that approach. One side has an opportunity to put forward a proposition and produce evidence to support it. The other side has an opportunity to critique the evidence by way of cross-examination and put forward a contending point of view supported by evidence. The decision-maker may intervene in argument by questions or to test it in a Socratic manner. This process of argument, when done properly, has a high degree of elegance to it. Sadly it is too much to hope that it would be a characteristic of public debate.
There can be no doubt that the comments sections of the NZ Herald, Facebook, LinkedIn or Twitter itself are hardly venues for the level of debate that should take place in the marketplace of ideas. But in public fora a person should have the opportunity to put a point of view, stand ready to justify it and debate the rights and wrongs in an objective and rational manner. Heckling can often be amusing but is something of a distraction and in my view characterises the heckler as one who is not prepared to properly engage.
It is for good reason that the current trend of cancelling and deplatforming is called “the heckler’s veto”.
The IT Countrey Justice 