Knowledge, Truth and Discourse

The information landscape has become a rocky one. Trying to discern truth from half-truths from untruths, information from misinformation from disinformation has become a real challenge.

Two books examine and discuss the problem. One is by Ronald Collins and David Skover and is entitled The Death of Discourse[1]. It was first published in 1997 and a second edition was published in 2005. The second book is by Jonathan Rauch, published in 2022 and is entitled The Constitution of Knowledge – A Defense of Truth[2]. I recommend both books although they approach the topic in entirely different ways.

Death of Discourse looks at the modern use of the First Amendment to the US Constitution. It notes that much of our public talk resembles in character and form the distracting pleasures of Huxley’s Brave New World. We are deluged with the fact-free and amusing sound and click bite spectacles of television and other screens for our most important news and information. Our free speech system equates electronic self-amusement with enlightened civic education, the marketplace of items with the marketplace of ideas and passionate self-gratification with political realisation. In short, Collins and Skover consider that the eighteenth century Madisonian principles of discourse seem ill-suited, if not completely irrelevant, for our 21^st Century mass communication. It argues that discourse is dying yet everywhere (at least in liberal democracies) free speech thrives.

The Constitution of Knowledge in fact hearkens back to the Madisonian idea and agrees with the overall thesis of Collins and Skover that there is an epistemic crisis in that discerning truth from the morass of communicated information is difficult. Although the marketplace of ideas – a metaphor from the Enlightenment Age inhabited by Jefferson and Madison – should filter out those that are true and valid, conversations are mediated through institutions like journals and newspapers and social media platforms. Largely newspapers and journals rely on a network of rules and norms – truthfulness, fact-checking, the expertise of professionals like peer reviewers and editors. The whole structure sits on a shared understanding that there are right and wrong ways to make knowledge.

Rauch suggests that these shared foundational values are for knowledge what the US Constitution does for politics. These shared foundational values create a form of governing structure forcing social contestation onto peaceful and productive pathways. Collectively Rausch calls them the Constitution of Knowledge. And he points to recent events, particularly in the US which put pressure on the norms top which he refers. In science, journalism and usually in politics truthfulness is a civic norm and not a legal requirement. He cites President Donald Trump’s disdain for truth as an example of pressure on such norms emanating from the highest level.

I don’t intend to discuss Rauch’s book in great detail. I recommend the book to anyone who is interested in the nature and validation of knowledge as truth and who is interested in the discernment of reality from the mass of communicated chatter with which we are bombarded.

I shall, however, make a couple of points. Rauch, like Collins and Skover, takes the First Amendment to the US Constitution as his starting point. The Amendment reads

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I have highlighted the relevant language.

James Madison introduced 12 amendments to the First Congress in 1789. Ten of these would go on to become what we now consider to be the Bill of Rights. Based on the Virginia Declaration of Rights, the English Bill of Rights, the writings of the Enlightenment, and the rights defined in the Magna Carta, the Bill of Rights contains rights that many today consider to be fundamental to liberal democracies.

In New Zealand the freedom of expression is incorporated into section 14 of the New Zealand Bill of Rights Act 1990 and reads

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

It will be noted that “speech” has been expanded to expression, and section 14 protects information flows in that not only is the right to impart information and opinions protected but the seeking and receiving of information is also protected.

In the minds of many the idea that obnoxious, misguided, seditious, blasphemous and bigoted expressions deserve not only to be tolerated but, of all things, protected is, in the opinion of Rausch, the single most counterintuitive social principle in all of human history.

Every human instinct cries out against it, and every generation discovers fresh reasons to oppose it. It is saved from the scrapheap of self-evident absurdity only by the fact that it is the single most successful social principle in all of human history.

Rauch is of the view that those of us who favour it, and also our children, and also their children and their children will need to get up every morning and explain and defend our counterintuitive social principle from scratch.

The Constitution of Knowledge, those norms and standards that underpin truthfulness and reliability, relies upon the full-hearted embrace and full-throated defense of its principles by ordinary members of the reality based community.

Rauch places reality front and centre of his thesis. Reality, he says, is that which is reliable and intractable and cannot be wished away. However, we have no direct access to the objective world independent of our minds and senses, and subjective certainty is no guarantee of truth.

When we think of reality, therefore, we think of it epistemically – as that of which we have objective knowledge. Reality becomes a set of propositions which have been validated in some way and have been shown to be at least conditionally true – unless they are later debunked. Some propositions reflect reality as we perceive in daily life – the sky is blue – water is wet. Other propositions like a physicist’s quantum equations, may be incomprehensible to intuition.

The problem comes in the validation of a proposition as reality. The only way is to submit the proposition  to the reality based community. Otherwise a proposition may be validated by brute force, torture, oppression as history has taught us in the past. Or the proposition may be shared among a closed community who talk only to one another in which case it is submitted to something akin to a cult.

Rauch suggests that there are two core rules and any public conversation which obeys those rules will display the distinguishing characteristics of liberal science.

The rules are described as the Fallabilist Rule and the Empirical Rule.

The Fallabilist Rule holds that no one gets the final say. One may claim that a statement is established as knowledge only if it can be debunked, in principle, and only insofar as it withstands attempts to debunk it. Thus a speaker is entitled to claim that a statement is objectively true only insofar as it is checkable and has stood up to checking. This means that there may be an argument but the rule directs us as to how we behave. We must assume our own and everyone else’s fallibility and we must hunt out our own and others’ errors even if I am confident I am right. Put another way, if I put up an idea I must accept that it is liable to be challenged and I must accept that and be prepared to engage to validate my idea or accept that it may be modified.

The Empirical Rule holds that no one has personal authority. I may claim that a stament has been established as knowledge only insofar as the method used to check it gives the same result regardless of the identity of the checker and regardless of the source of the statement. A proposition must be capable of being something anyone can do and get the same result. In addition, no one proposing a hypothesis gets a free pass or special treatment because of who he or she may be or dependent upon whatever group to which he or she may belong. The fact that I might have a PhD in no way validates or provides any extra weight to my proposition. The proposition must stand on its own. Thus who I am does not count. The rule applies to everyone. If my method is valid only for me or my affinity group or people who believe as I do, the proposition cannot be checked and validated by everyone.

Applying the Rules

So let us put a proposition for examination to see if it complies with section 14 of the New Zealand Bill of Rights Act and Rauch’s two reality based rules.

On September 2nd 2020 the Prime Minister of New Zealand, Ms Jacinda Ardern said to the Parliament

“I want to send a clear message to the New Zealand public: we will share with you the most up-to-date information daily. You can trust us as a source of that information. You can trust the Director-General of Health. For that information, do feel free to visit at any time—to clarify any rumour you may hear—the covid19.govt.nz website. Otherwise dismiss anything else. We will continue to be your single source of truth. We will provide information frequently. We will share everything we can. Everything else you see – a grain of salt.”[3]

The New Zealand Bill of Rights Act.

The Prime Minister’s answer to the question is quite breath taking in its scope. Remembering that everyone has the freedom to impart or receive information, in essence she is saying as follows:

1. You don’t need any other information – only ours
2. Don’t listen to anyone else on the topic – dismiss anything other than our messaging – take it with a grain of salt
3. We are the single source of truth – an echo of Orwell’s Ministry of Truth
4. If anyone else expresses a point of view dismiss it (effectively silencing contrary points of view)

This has some pretty significant consequences for the nature of discourse. The Prime Minister is limiting discourse and the flow of information to a one-way stream – from the Government to the listeners. Everything else is rumour and should be dismissed. There can be no challenge to the Government’s position. The Government is the sole and single source of truth. In other words, disagree with the Government and you are not telling the truth.

The Fallabilist Rule

The Prime Minister’s answer to the question fails the fallibilist rule for challenging propositions. Remember, no one gets the final say. Yet the Prime Minister is saying that anything that the Government says is truth and uncontestable. It assumes that the Government’s statement of truth is infallible. It ignores the possibility of challenge and indeed suggests that if there is a challenge, it must be false or wrong or to be taken with a grain of salt. It denies the possibility of debate. It denies the possibility of checking because it assumes that there can be no other reality other than that expounded by the government. Such a position leads to atrophied thinking at best or outright error at worst.

The Empirical Rule

The answer to the question challenges the empirical rule on a number of fronts. First it urges listeners to trust the Government. Then it goes on to urge that the Government is the sole source of truth. Can the propositions advanced therefore be subjected to independent verification? In many respects the statement itself claims the weight of Government authority for the truth of the statement. The proposition, in that case, cannot stand on its own and cannot be independently verified. Indeed the challenge in the statement is implicit. Trust us – there is no need for independent verification. The suggestion that any challenge to the statement may be false, questionable or be taken with a grain of salt clearly is designed to discourage independent enquiry or embark on any sort of error checking. Perhaps the most outstanding breach of the empirical rule is that listeners should trust the Government without question. That is a breath taking example of the free pass based on status rather than critical examination.

Conclusion

The Fallabalist Rule and the Empirical Rule are starting points offered by Rauch in the quest for truth or reality within the framework of the Constitution of Knowledge. It is very much a book for our times. It not only examines methodologies for proper discourse and truth seeking but examines the effects upon reality and discourse of misinformation and disinformation (largely seen as tools of the political Right) and the impact of the cancel culture and the silencing of debate (largely seen as a tool of the political Left[4].) It also discusses the means by which proper analysis of topics of discourse may take place. Freedom of expression can be cacaphanous but working within the Constitution of Knowledge may assist in filtering out the noise and arriving at a sensible destination of reality and understanding.

Postscript

In accordance with the Rules of Discourse and the Knowledge Constitution discussed, the material in this article is subject to the Fallibilist Rule and the Empirical Rule.

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[1] http://skoveronline.net/dod/index.htm (Last accessed 2 August 2022)

[2] https://www.brookings.edu/book/the-constitution-of-knowledge/ (Last accessed 2 August 2022)

[3] Hansard Debates 2 September 2020  Oral Questions – Questions to Ministers – Question 1 https://www.parliament.nz/en/pb/hansard-debates/rhr/document/HansS_20200902_050580000/1-question-no-1-prime-minister (Last accessed 1 August 2022)

[4] Indeed, the quotation examined above contains resonances of cancel culture – “dismiss anything else”  “Everything else you see – a grain of salt”.

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Talking About “Misinformation”

The following was written some weeks ago before the Parliament Garden Ocupation began, Since then the term “misinformation” has been bandied about largely as a motivating basis for the protesters and occupiers.

But misinformation is not new, by any stretch. The advent of the printing press and the growth in the amount of printed material rocketed to 4,038 items printed in 1642 alone – just before the beginning of the English Civil War. Clare Jackson in her book “Devil-land: England under seige 1588 – 1688 states

“Moreover all information – whether audaciously printed or whispered rumour – could be denounced as erroneous, misleading or damaging. Royal courtiers and foreign ambassadors alike detected an unwelcome rise in “false news”, fearing that London’s Royal Exchange could rival the Rialto in Venice or the Piazza Navona in Rome as a notorious site for rumour-mongering”

Chris Keall in the NZ Herald (4 March) sets out ways to address “misinformation” while failing to define the term. In short, he subscribes to the suggestion by Don Christie that all that is needed is for existing laws to be enforced.

In the “bad old days” the information technology of the printing press was regulated quite severely especially during the reign of Charles II and James II with the enactment of the Licensing Act 1662. This set up a rigorous licensing regime that came to an end in 1696 when the Act was not renewed. An unintended consequence of that was the enactment of the Statute of Anne 1710 which formed the foundation for our modern law of copyright.

Plus ca change?

The term “misinformation” is a curious one. It is frequently used in commentary, especially in the context of the Covid pandemic. It has been used in a number of official publications (The Disinformation Pandemic; Sustaining Social Cohesion in Aotearoa New Zealand). In those publications it has not been defined. It seems to be assumed that its meaning is understood. Yet the way in which it is used seems to suggest that it is a veto word and that the subject matter to which it refers is to be discounted as misinformation without further explanation.

My training as a lawyer and as an academic has taught me to question assumptions. As a lawyer I have been concerned in establishing a proposition by supporting it with specialized information which lawyers call evidence. As a judge I was required to give reasons for decisions. As a PhD candidate I had to justify every assertion and assumption that I made. In all three examples intellectual rigour is required.

If a speaker or writer asserts that there is misinformation, the question that first springs to mind is “what is misinformation”. What does the critic mean when he or she asserts that the subject matter of the criticism is misinformation. What is the definition of misinformation. Or is it a term that has a number of meanings and the correct meaning depends on the context in which it is used.

Perhaps we should start by breaking the word down.

“To Inform” is a verb and means to give or impart knowledge of a fact or circumstances[1] – to tell someone about something.[2]

“To misinform” qualifies the word “inform” with the modifier “mis” and means to give someone false or misleading information (we will look at “information” in a moment) – to tell someone something that is not correct.[3]

“Information” like the verb “to inform” derives originally from Latin informare – to inform. It is the nominative (noun) version of the word and has a variety of meanings. The most common synthesis of these meanings is material that informs.

Information need not be verbally transmitted. It may be by way of written material or material that is gathered by the senses and which may then be interpreted into something that provides meaning to or knowledge about what has been experienced. Information may be data which is then analysed and interpreted into a form that has meaning to the person being informed.

Some might say that “misinformation” is a contradiction in terms. If information is to apprise one of something that informs – that is knowledge of a fact or circumstances – something that misinforms and gives false or misleading information cannot be information because information must necessarily be factually true.

There are some who would say that this is the sort of argument that is pettifogging and to a certain extent I would agree. Yet  it is probably typical of much of the intellectual laziness that characterizes discourse in these times.

I go back suggestion in the first paragraph of this post that “misinformation” is used as a veto word. A veto word effectively shuts down the debate. In a sense it prohibits the continued exchange of ideas. To say that one if “offended” is a form of veto word because it fails to address the argument and often does not explain why an argument suggests offence. Accusations of “racism” and “racist” are veto words in that they do not progress the argument and are often tantamount to “in personam” attacks.

So it is with “misinformation”. The way it is used, without proper definition or understanding is vague and imprecise. To characterize a position as “misinformation” generally means that there is disagreement with the position or that the position is contrary to a view held by a majority or that the evidence begs a different conclusion.

Yet it is considered that to characterize a position as misinformation is an answer to the argument whereas in proper discourse there should be some explanation of why it is that a position may be characterized as misinformation.

Frequently what is considered “misinformation” is an opinion or one person’s interpretation of the facts. It may be that the facts selected are selective and do not tell the whole story. Or the interpretation of the facts selected lacks context and nuance. Or that there is a line of authority that refutes the basis for the opinion held.

But to dispose of a position as “misinformation” without more is intellectually lazy and seems to suggest disagreement rather than a reasoned and logical answer to a position.

The problem is that “misinformation” has become so misused that there seems to be a move afoot to either stamp it out, eliminate it or stem its spread. Many of the Internet based platforms are accused of spreading misinformation. And this should be stopped. But how? How do you separate honest opinion from a wilful attempt to mislead. And is such a move rather insulting to listeners, viewers or consumers. Should they not be able to make up their own minds and exercise their own judgement?

Neil Young has decided to remove his music from Spotify because that platform hosts John Rogan whose podcasts contain “misinformation”. In a general sense the criticism of Rogan is that he has spread vaccine misinformation but sadly the detail of the misinformation is missing. I suppose I could listen to Rogan’s podcasts to work out where the misinformation lies – if any – or if what is characterized as misinformation is in fact a statement of opinion but frankly, I have better things to do with my time.

It would have been helpful for the argument to have been clearly stated but those who throw the word “misinformation” about are more concerned with expressing their disagreement than engaging with an issue in a meaningful way.

The current drive against “misinformation” seems to me to be another attack of the freedom of expression and upon the ability to express views that may be contrary to those of the majority. A justification for this is often cited as the need for “social cohesion” – another term for blind conformity – but in reality it is really yet another manifestation of well-meaning but misguided “liberals” who know better than everyone else what is good for them.

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[1] Collins English Dictionary

[2] Cambridge English Dictionary

[3] Cambridge English Dictionary

The Consent of the Governed

This post continues the theme developed in “Social Cohesion or Social Conformity” of the importance of the Rule of Law as the most important element of social cohesion and how the Rule of Law can be undermined by the loss of respect for and apparent powerlessness of our established institutions.

As I write this a protest camp is present outside Parliament. It has been there for 12 days and is likely to remain. It seems to be well supported in terms of those attending and in terms of the infrastructure that has developed. There are cooking facilities, recreational facilities and educational facilities for the young who are present.

It isn’t difficult to ascertain what the protest is about. It has been characterized as an anti-vax protest but the message that is coming through is that it is a protest against the effects of mandatory requirements for vaccines. Those who are in the catchment for those mandatory requirements are teachers and health workers so it is no surprise that a number from these professions are present.

Of course the protesters have been demonized. Although comfortable words are spoken about the right to protest, there is condemnation for this one because it has gone too far and in some respects it may well have done. But the anti-protest rhetoric, aligning the protesters with the “far right” has become clear from such “progressives” as Simon Wilson in this piece headlined ”Pandemic, protest, nurses and nutters” and an awesome piece of rolling inferential reasoning from Thomas Coughlan in a piece entitled “Parliament occupation inevitable, but end should also be” where he says

“Given the anti-mandate crowd are only anti-mandate because they’re anti-vaccine, and they’re only anti-vaccine because of conspiracy theories about its provenance and efficacy, there’s also an air of inevitability about the involvement of neo-Nazis and associated far-right conspiracy theorists and cranks with the protest.”

That sort of dismissive commentary overlooks the seriousness with which many of the protesters view the situation. This attitude of dismissiveness has continued from no less a source than the advocate for kindliness – the Prime Minister – and is reflected in many of the statements from other politicians.

Another aspect of the current situation is that it has demonstrated the total powerlessness of our institutions. Initially the Police seemed ready to take action but then pulled back. In essence this has given the protesters carte blanche to continue to develop the site and increase the semi-permanence of their presence. The theory of “policing by consent” – and it can only be a theory – isn’t going to gain any traction with the protesters.

The steps taken by Mr Speaker last weekend in turning on the sprinklers and playing awful music over loudspeakers was infantile to say the least and served only to diminish any respect for his office or for the institution of Parliament.

The public looks on and what do they see. Certainly no positive steps from our politicians who will not engage unless the protesters move on. This is reminiscent of the approach taken to hostage negotiations or a “lay down your arms before we talk about a ceasefire” approach. The Prime Minister dismisses the protest as anti-vax (when clearly it is not only that) and was conspicuous by her absence last weekend when Mr Speaker was playing his part.

Other politicians (apart from David Seymour) seem unwilling to engage and the reasons are opaque. Once again leadership seems to be lacking and our governing institutions suffer from powerlessness, toothlessness and an apparent unwillingness to do anything.

What is extraordinary is that the politicians and those in government are not our masters but our servants. We look to the Government especially to maintain the Rule of Law – another institution that seems to be in difficulty – since it seems that the Rule of Law is engaged on two fronts – the question of how the law deals with a protest that has aspects of unlawfulness and how the Courts may continue to function when the protesters by their actions make the administration of justice almost impossible. No less a person than the Chief Justice has commented on the fact that a jury trial in the High Court at Wellington had to be cancelled.

In addition to the issue of the powerlessness of our institutions or their apparent unwillingness to act is an aspect of constitutional theory expressed by Thomas Jefferson in the Declaration of Independence

Governments are instituted among Men, deriving their just powers from the consent of the governed.

As things stand I wonder if the consent of the governed is as willing as it once was. Do people consent to being governed by institutions that seem powerless or unwilling to maintain the Rule of Law?  Certainly the protesters, anarchic as they may appear, are in fact quite well organized. It seems that the consent consensus that they have is a little more resilient than that of the government. But I don’t think that the majority of New Zealanders would consent to that form of regime.

Or are we headed into something else. William Butler Yeats, the Irish mystic poet writing after the horrors of World War I and the Spanish Flu pandemic wrote in “Second Coming”

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere  

The ceremony of innocence is drowned;

The best lack all conviction, while the worst  

Are full of passionate intensity.

It seems that his words may aptly describe our present situation.

Social Cohesion or Social Conformity?

The recent paper “Sustaining Aotearoa New Zealand as a Cohesive Society”[1] addresses technology as an aspect of and threat to social cohesion. From a wider perspective it questions the assumptions about social cohesion as a supporter or an essential for a liberal democracy.

It puts forward matters that need to be considered in achieving social cohesion. It suggests that social cohesion is breaking down in the face of a fragmentation of values arising from disparate sources but the main one being “misinformation” or “disinformation” disseminated via social media platforms causing a questioning and distrust of the institutions that underpin society.

Social cohesion is seen as a vital element of a resilient liberal democracy. What amounts to a resilient liberal democracy, nor indeed a liberal democracy itself, is not defined but it is assumed that those terms mean a robust political and governmental system where the government governs with the consent of the people and that the system fulfils Lincoln’s Gettysburg definition of government as being of the people, by the people and for the people.

The consent of the governed was (and still is) an essential element of some of the Enlightenment thinking about the nature of government that was expressed by Jefferson in the Declaration of Independence – We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

It is probably within the concept of consent of the governed that social cohesion begins to grip as a supporter of a liberal democracy.

The paper discusses various approaches to defining social cohesion and settles on a wide definition.

The definition depends on

• Sufficient trust and respect between those who are governed and the institutions and individuals they empower to govern them;

• Sufficient trust and respect between all members of a society (which by inference reflects a diverse set of identities, worldviews, values, beliefs, and interests) to foster cooperation for the good of the society as a whole;

• Institutions and structures that promote trust and respect between all members of society; and allowing

• Belonging, inclusion, participation, recognition, and legitimacy to be universally possible.

Therefore the underlying themes of social cohesion are trust, inclusion and respect which result in recognition and thus the legitimacy of the governmental system

This definition is based upon two groups of criteria – the elements of socially cohesive behaviour and a high level of conditions necessary for a socially cohesive society.

The paper then develops matters that should be considered in halting the perceived erosion of social cohesion.

However in its analysis of the decline of social cohesion two elements become clear. The first is that implicit within social cohesion is an assumption that a single world view or set of values is the ideal. To challenge the established view is to undermine social cohesion and the ordered society. To offer an alternative or contrary view is seen not as dissent but as misinformation or disinformation.

In offering this approach to an argument is to employ a form of “veto statement” but worse still it suggests that there is only one correct view which may be described as a “truth”. Indeed the paper focusses upon the nature of information in what it calls the “post-truth” world.

If by disinformation is meant the dissemination of views that are unsupported by evidence or fact but that are presented as factual material rather than opinion based commentary, then the best counter lies in the market-place of ideas rather than any form of censorship. In this respect there should be greater educational focus upon the ability to analyse and think critically. Sadly this is undergoing considerable deterioration in the current education systemwhich seems to focus upon revisionism and anecdote – peoples’ “stories” – rather than objective realities.

There must be cause for concern if the means of dissemination (social media platforms) are seen as the problem because, absent content shifting algorithms, the problem lies within those who post content.[2]

If one were looking for threats to social cohesion, perhaps the problem really lies in the way in which growing centralisation both in national and local government are depriving citizens of the opportunity to discover their own solutions.

A further element that undermines the nature of objective truth is the current tendency to focus upon anecdotal evidence rather than a proper empirical study. We reap what we sow when our analysis of factual information is based upon anecdotes and perceptions of reality than from and empirical analysis of the evidence. We seem to be more concerned with how we “feel” about things rather that what we think of them – thinking being a rational process than involves a level of analysis.

Technology and Social Cohesion

If there is one clear theme that comes through from the paper it is the concern at the influence of technology and especially social media as a disruptive element – or threat – to social cohesion. This is described as “affective polaristion” which is the decline in objective assessment in the liberal democratic system based on citizens choosing between parties that reflect different ideologies, values and worldviews. Objective assessment is replaced by emotion – anger, fear, and hatred of others have emerged in the public square. Of course, this decline in objective assessment can be laid at the feet of the education system, to which reference has been made.

“Affective polarization” is fuelled by the polarising effects of media, technology, and “misinformation”. The paper suggests that a major challenge to social cohesion is the rapid emergence of the relatively ungoverned virtual world. On one hand, the internet has empowered some groups by enhancing communication and knowledge access. On the other, it has provided opportunities to cultivate and disseminate misinformation and disinformation, and to increase polarisation. Freedom of expression has always been accompanied with a certain level of chaos and background noise.

The arrival of powerful and effective ways of anonymously transmitting ad hominem attacks, the paper suggests, has undermined the traditional institutions on which all societies rely to sustain cooperation and respect. The emergence of the Internet of Things, virtual reality, and the metaverse, along with the development of new economies and networks enabled by cryptocurrencies, is rapidly altering the constraints which helped glue societies together.

To blame the Internet – the backbone – is incorrect. This seems to demonstrate a misunderstanding of what “the Internet” is. The Internet is a transport system for data. The Internet is not the problem. Permissive innovation – the ability to bolt platforms on to the Internet without going through a series of red tape or bureaucratic approvals – has enabled the development of the various platforms that allow users to communicate. Thus it is not the Internet but the platforms that are bolted on which form the agency for a certain type of human behaviour.

This fundamental misstatement of the nature of the Internet is something I would not have expected from a paper of this pedigree. I imagine that the rather glib response by the authors would be that they are using the vernacular understanding of the “Internet” but in a paper that condemns “misinformation” with a high level of vehemence I would have thought that more care would have been applied to accuracy of definition.

A problem is seen with the emergence of virtual and manipulated realities in so-called metaverses. The internet has enormously increased access to information, and in that sense can be seen as democratising. However, the information is of variable reliability, and exposure to “misinformation” and “disinformation” is greatly enhanced by millions of users being exposed to both unintentional misunderstanding (often through ignorance) and deliberate misrepresentation by bad actors (including agents of foreign states) Internet based platforms are also empowering in that it allows people to engage in activities of social affirmation online, although I would characterize the role of these platforms of agencies of a certain level of communication.

The gathering into online groups was anticipated by Michael Froomkin who put forward the proposition of Regulatory Arbitrage – that users would migrate to elements that favoured their point of view or perspective. This theory was more related to the types of rule sets that might apply to Internet users and was a matter of jurisdiction although with the rise in social media it seems to be more a matter of congregating with likeminded users.

This should not be seen as unusual. People have long sought out those whose views or beliefs are similar. Gatherings in clubs or other organisations has been a feature of human social existence for some centuries. The communicative properties of Internet based platforms enhances this desire and its fulfilment. The problem, therefore, is not one of technology but of human behaviour.

Concern is expressed at the way in which “disinformation” and “misinformation” are disseminated via Internet platforms. The phenomena of mis/disinformation is recognized as one that has been present for some time. It is not new. But social media, the internet, and algorithm-targeted messaging have taken intentional disinformation to a new level. Thus technology and social media platforms fulfil and agency function rather than a causative feature.

Throughout the paper disinformation and misinformation are used without being defined. The issue that I have is that dissent or the expression of a point of view that is contrary to that of the majority may be characterized or demonized as mis/disinformation. In this way dissent is sidelined or even worse deplatformed or “cancelled”.

Intentional disinformation is referred to and by that I gather that what is being propagated are lies or information that has no factual basis and that the originator disseminates with the intention of misleading. 

Once again this type of behaviour has been with us for some time but the scope of these lies spreads from fraudulent scams to challenges to objectively ascertainable facts.

There is a suggestion that the development of new technologies alters the constraints that glue societies together.  I think that there is once again a failure to recognize that new technologies and especially information and communication technologies may alter behaviours and attitudes – acting as agents for change in values. This is an example of the aphorism attributed to Marshall McLuhan “we shape our tools and thereafter our tools shape us”.

Furthermore the “problems” of Internet-based platforms as is so often the case focusses upon the content of communication rather than the means of communication – the medium is the message; another of McLuhan’s aphorisms. In some respects the horse bolted long ago and it is only now that we are beginning to understand that and come to terms with the new reality that besets us.

To condemn new communications technologies as the cause of the problem and to call for some form of restructuring or regulation is in some respects a mournful cry for a time that has been irretrievably lost and represents a form of conservatism that would anchor us in a societal position where any sort of change is decried. In some respects the calls for reversal of climate change are an attempt to preserve a way of living that may no longer be possible and ironically (because the Greens and those who favour positive steps to reverse climate change consider themselves Progressives) represents another manifestation of what could be called a “yearning conservatism”.

The two examples may be said to suggest a form of technological determinism and in some respects that is acknowledged. In the area of climate change although the effects of human activity have seen an increase in the pace of climate change, the reality of climate change has been with us since before records were kept and are reflected in the geological record as well as the more modern written records.

Climate change is and always has been inevitable and in the past the way that humans have dealt with it is not to reverse reality but adapt to the new circumstances. This may mean that we are no longer able to sustain certain activities to which we have become accustomed. It may mean the abandonment of the ocean view for a form of shelter in higher places. These are the realities for which we should be planning rather than arguing about whether there should be cycle lanes over the harbour bridge or banning fossil fuelled motor vehicles. Such would be a token gesture.

I advance climate change as an example of certain inevitabilities that underlie some aspects of technological change coupled to a degree with aspects of technological determinism. Eisenstein described the printing press as an agent of change and by so doing avoided the deterministic label. But in some respects she was correct. The press was an agency of a change in attitudes. It enabled changes in communications associated behaviours and by so doing enabled changes in a number of areas of human activity. There can be no doubt that the disseminatory powers of print enabled the swift transmission of Luther’s arguments that formed the basis of the Reformation.

Were Luther’s theses a form of sixteenth century misinformation? Is “misinformation” the Twenty-first Century characterization of “heresy”. To the Catholic Church Luther’s theses certainly were. And the new information technology enabled the spread of the ideas that underpinned the theses. The response in many cases was to break up the printing presses to stop the spread of this “heresy”. The Catholic Church professed concern for the souls of the believers but there was no doubt that its response to Luther was as much in the interests of maintaining its position of power.

Thus one wonders whether or not – despite the focus on the importance of “liberal democracy” – social cohesion is just another form of power play – a desire by those with a vested interest in established institutions to maintain those institutions in the interests of maintaining conformity with existing power structures and (im)balances. Thus liberal democracy – as a trope – occupies the position of the soul in a modern secular society – something intangible, lacking coherence and ephemeral that has its own particular value.

As if to support this argument the paper states (P. 3)

(G)overnments need to place the opportunities and challenges of the digital future more centrally and to consider them through the lens of sustaining or undermining social cohesion. Not doing so may threaten democracy itself, seeing it replaced by a more autocratic form of governance. Societies could fracture in ways that undermine their very essence and identity.

This suggests that the only alternative is autocracy yet in many respects we are living in an autocratic system in what could be called “The Covid Autocracy” or “The Covid Despotism”

To sum up this aspect of the discussion – technology in and of itself is not the problem and to propose to “regulate the technology” is not a solution. Nor does the answer lie in reining in the social media companies. The concerns seem to be that they are allowing the dissemination of contrarian content some of which can be dangerous. It seems to me that despite the difficulty of assessing the huge volumes of data that flow through their servers, some social media providers attempt to adopt a responsible attitude to truly harmful content. Much of the problem lies in the assessment of that content. For some “hate speech” is speech that they hate to hear. For others misinformation is a twisting or reinterpretation of existing facts. For others disinformation may be, and often is, downright lies. The responsibility lies with the individual to resolve the problem, and not for some patronising and paternalistic State to proclaim a single and all-embracing truth.

Social Cohesion and Conformity

Underlying the discussion of social cohesion is the theme of conformity. Citizens should conform to understood precepts of social order. Conformity is associated with an element of collectivism which seems to be gaining traction in the Twenty-first Century milieu. The problem with the underlying elements of social cohesion that are discussed in the paper is that individualism is subsumed and individual aspiration is sacrificed on the altar of social cohesion.

Belonging, participation, inclusion, recognition and legitimacy are all seen as elements of social cohesion. However, the focus upon social cohesion as an element supporting a liberal democracy seems to depend up on collectivist approach especially in regard to the communication of information and the spread of views, opinions and interpretations of facts that may be present within a community.

The word freedom has become somewhat devalued of late, sneered at and associated with contrarian or anti-vax sentiments. Yet it is an essential aspect of a liberal democracy. It is for that reason that I point to the importance of the freedoms guaranteed by the New Zealand Bill of Rights Act as well as the freedom to think as we please, the freedom to make our own decisions and to act on them. It is in this respect that I have concerns about social cohesion as it is developed in the paper.

The focus upon contrary points of view disseminated over social media strongly suggests a collectivist conformist approach that is inimical to concepts of individual liberty within a liberal democracy. It is that individualism that sustains innovation and diversity of points of view, that accepts differing manifestations of behaviour as long as there is compliance with the bottom line allowed by the law.

I suggest that the law sets the boundaries for social cohesion. Moral suasion or some ill-defined standard suggests some other way apart from law in which society modifies and monitors behaviour, and disapproves or condemns that which is outside what may be described as “norms accepted by the majority”.

This form of moral coercion masquerading as social cohesion has little to do with life in a free and liberal democracy, and indeed if this is the goal behind the paper – and I earnestly hope that it is not – then the conceptualisation of social cohesion as operating in this way is to be resisted.

Maintaining Social Cohesion

I suggested above that the law sets the boundaries for social cohesion. The paper ignores the fact that there is already in place a means of maintaining a level of social cohesion that is consistent with a liberal democracy and that is the Rule of Law.

The paper suggests that living in an organised society implies a contract of reciprocal behaviour, or a social contract, between citizens and the society’s institutions. We cannot operate outside those bounds and remain functioning and free members of that society. No one, it points out, has absolute free will.

There can be tension around what the bounds are, as we have seen in debates over constraints imposed during the Covid-19 pandemic, and as are more generally reflected in differing preferences across various ideologies and value sets.

In many respects this tension that develops is a good thing because it demonstrates that within the community there are a variety of different points of view about a proposed course of action. If social cohesion in the form of a collective point of view proposes that there should not be a variety of different points of view, then liberal democracy is in difficulty and social cohesion cannot be said to support it – rather it erodes a fundamental aspect of a liberal democracy which involves the right and the opportunity to disagree.

What the paper ignores, or perhaps sidesteps, is the importance of the Rule of Law as an element of the social contract. There seems to be little discussion about the effect of law in fixing the boundaries for acceptable social behaviour.

Without the Rule of Law what is being proposed is some form of “understood” code of behaviour based on the concept of a resilient society that has its foundation in social cohesiveness. I would have thought that a clearly communicated and understood Rule system would establish the metes and bounds of acceptable behaviour.

The New Zealand Bill of Rights Act 1990 clearly defines the rights of individuals vis-à-vis the State. If I were looking for a recipe for social cohesion NZBORA would be the prime ingredient, despite the various exceptions and riders that the legislation contains. What it does contain are clear statements about the freedom of expression, freedom of association, freedom of peaceful assembly, freedom of movement, freedom of thought, conscience, religion or belief, freedom from discrimination, the right not to be deprived of life, nor subjected to torture, nor subjected to medical experimentation and the right to refuse medical treatment. These, it seems to me, must be the essential ingredients of a liberal democracy.

Furthermore, there must be a clear understanding that everything is permitted unless it is prohibited, thus constraining the power of the State and allowing individual citizens a high level of liberty of conduct under the Rule of Law which focusses on the maintenance of internal stability. Otherwise the formula “everything is prohibited unless it is permitted” sows the seeds of an autocratic society based on a top down power structure.

The rather vague focus upon a collective social cohesion contains within it some serious difficulties and the lack of certainty about the scope of social cohesion absent a consideration of an underpinning in existing legal rule sets suggests a possible moral or suasive approach to behaviour that is unclear and uncertain – factors that are inimical to a living in a liberal democracy.

Conclusion

I suggest that the concerns that have been expressed in the paper are overrated. Disagreement and dissent are fundamental aspects of a liberal democracy. Without them essential elements of a liberal democracy cannot exist. To demonise an alternative view with terms like “misinformation” and “disinformation” without addressing the very nature or content of what is proposed is to engage in another form of veto statement or the cancel culture that is used to silence an opposing view. To justify these aspects of censorship as an aspect of social cohesion – although to be fair the report writers do allow for dissent as long as it resolves in an acceptable solution – is to do violence to the freedom of expression as a vital aspect of a liberal democracy.

Social cohesion in the end is another word for conformity – conformity that is not recognised as a bottom line for human behaviour thus justifying the interference of the law – but some form of moral conformity that does not allow for a contending view. And that is a form of totalitarianism and thought control that has no place in a liberal democracy.

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[1] Gluckman P, Bardsley A, Spoonley, P, Royal C, Simon-Kumar N and Chen A University of Auckland Centre for Informed Futures December 2021 https://informedfutures.org/social-cohesion/ (Last accessed 22 December 2021)

[2] See “The Fault, dear Brutus, lies not in social media, but in ourselves” https://theitcountreyjustice.wordpress.com/2021/08/27/the-fault-dear-brutus-is-not-in-social-media-but-in-ourselves/ (Last accessed 27 December 2021)

Dangerous Speech – Some Legislative Proposals

This post was first written in April 2019 and I withheld publication of it for some time. It was finally made available on the Social Science Research Network https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3496363 and has attracted some interest. I understand that the paper has been used as a teaching tool in some law schools, in the context of a discussion on Terminiello v City of Chicago 337 US 1 (1949)

This paper considers steps that can be taken to legislate against hate speech. There is a companion paper – “Challenging Speech” – which considers some of the issues raised in this paper in a different content.

The first issue is the term “hate speech” itself and, in light of the proposals advanced, this emotive and largely meaningless term should be replaced with that of “dangerous speech” which more adequately encapsulates the nature of the harm that the law should address.

The existing criminal provisions relating to what I call communications offences are outlined. Proposals are advanced for an addition to the Crimes Act to fill what appears to be a gap in the communications offences and which should be available to both individuals and groups. A brief discussion then follows about section 61 of the Human Rights Act and section 22 of the Harmful Digital Communications Act. It is suggested that major changes to these pieces of legislation is unnecessary.

Communications offences inevitably involve a tension with the freedom of expression under the New Zealand Bill of Rights Act and the discussion demonstrates that the proposal advanced are a justifiable limitation on freedom of expression, but also emphasises that a diverse society must inevitably contain a diversity of opinion which should be freely expressed.  

Introduction

The Context

In the early afternoon of 15 March 2019 a gunman armed with semi-automatic military style weapons attacked two mosques in Christchurch where people had gathered to pray. There were 50 deaths. The alleged gunman was apprehended within about 30 minutes of the attacks. It was found that he had live streamed his actions via Facebook. The stream was viewed by a large number of Facebook members and was shared across Internet platforms.

It also transpired that the alleged gunman had sent a copy of his manifesto entitled “The Great Replacement: Towards a New Society” to a number of recipients using Internet based platforms. Copies of both the live stream and the manifesto have been deemed objectionable by the Chief Censor.[1]

In addition it appears that the alleged gunman participated in discussions on Internet platforms such as 4Chan and 8Chan which are known for some of their discussion threads advocating White Supremacy and Islamophobic tropes

The Reaction

There can be no doubt that what was perpetrated in Christchurch amounted to a hate crime. What has followed has been an outpouring of concern primarily at the fact that the stream of the killings was distributed via Facebook and more widely via the Internet.

The response by Facebook has been less than satisfactory although it would appear that in developing their Livestream facility they then were unable to monitor and control the traffic across it – a digital social media equivalent of Frankenstein’s creature.

However, the killings have focused attention on the wider issue of hate speech and the adequacy of the law to deal with this problem.

Whither “Hate” Speech

The problem with the term “hate speech” is that it is difficult, if not impossible, to define.

Any speech that advocates, incites and intends physical harm to another person must attract legal sanction. It is part of the duty of government to protect its citizens from physical harm.

In such a situation, it matters not that the person against whom the speech is directed is a member of a group or not. All citizens, regardless of any specific identifying characteristics are entitled to be protected from physical harm or from those who would advocate or incite it.

Certain speech may cause harm that is not physical. Such harm may be reputational, economic or psychological. The law provides a civil remedy for such harms.

At the other end of the spectrum – ignoring speech that is anodyne – is the speech that prompts the response “I am offended” – what has been described as the veto statement.[2] From an individual perspective this amounts to a perfectly valid statement of opinion. It may not address the particular argument or engage in any meaningful debate. If anything it is a statement of disengagement akin to “I don’t like what I am hearing.”

Veto Statements

The difficulty arises when such a veto statement claims offence to a group identity. Such groups could include the offended woman, the offended homosexual, the offended person of colour or some other categorization based on the characteristics of a particular group. The difficulty with such veto statements – characterizing a comment as “racist” is another form of veto of the argument – is that they legitimize the purely subjective act of taking offence, generally with negative consequences for others.

Should speech be limited, purely because it causes offence? There are many arguments against this proposition. That which protects people’s rights to say things I find objectionable or offensive is precisely what protects my right to object.  Do we want to live in a society that is so lacking in robustness that we are habitually ready to take offence? Do we want our children to be educated or socialized in this way? Do we desire our children to be treated as adults, or our adults to be treated as children? Should our role model be the thin-skinned individual who cries “I am offended” or those such as Mandela, Baldwin or Gandhi who share the theme that although something may be grossly offensive, it is beneath my dignity to take offence? Those who abuse me demean themselves.

It may well be that yet another veto statement is applied to the mix. What right does a white, privileged, middle-class old male – a member of a secure group – have to say this. It is my opinion that the marginalization of the “I’m offended” veto statement is at least to open the door to proper debate and disagreement.

Furthermore, the subjective taking of offence based on group identity ignores the fact that we live in a diverse and cosmopolitan society. The “I’m offended” veto statement discourages diversity and, in particular, diversity of opinion. One of the strengths of our society is its diversity and multi-cultural nature. Within this societal structure are a large number of different opinions. For members of one group to shut down the opinions of another on the basis of mere offence is counter to the diverse society that we celebrate.

The term “hate speech” is itself a veto statement and often an opposing view is labelled as “hate speech”. The problem with this approach seems to be that the listener hates what has been said and therefore considers the proposition must be “hate speech”. This is arrant nonsense. The fact that we may find a proposition hateful to our moral or philosophical sense merely allows us to choose not to listen further. But it does not mean that because I find a point of view hateful that it should be shut down. As Justice Holmes said in US v Schwimmer[3] “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.”

Our commitment to freedom of expression lies not in allowing others the freedom to say things with which we agree, but in allowing them the right to say things with which we absolutely disagree.

Finally, in considering the nature of the veto statement “I’m offended” or categorizing a comment as “hate speech” where lies the harm. Is anybody hurt? The harm in fact comes in trying to shut down the debate with the use of the veto statement.

Aspects of “Harm”

However, recent thinking has had a tendency to extend the concept of harm suffered by individuals. It is accepted that the law should target physical harm, but should it protect an individual from any sort of harm. Catherine MacKinnon has formulated a view, based on the work of J.L. Austin, that many words or sentiments are essentially indistinguishable from deeds and therefore, sexist or misogynistic language should be regarded as a form of violence.[4] This form of assaultive speech can be extended to be available to any group based of distinguishing characteristics or identity.

The emphasis is upon the subjectivity of the person offended. What offence there may be is in the sphere of feelings. It may follow from this that if I do not feel I have been offended then I have not been offended. If we reverse the proposition only the individual may judge whether or not they have been offended. I would suggest that this element of subjectivity is not the interest of the law.

The problem is that such an extension of potentially harmful speech becomes equated with “hate speech” and virtually encompasses any form of critical dialogue. To conflate offence with actual harm means that any sort of dialogue may be impossible.

To commit an offence of violence is to perform an action with objective, observable detrimental physical consequences, the seriousness of which requires the intervention of the law. To give offence is to perform an action – the making of a statement – the seriousness of which is in part dependant upon another person’s interpretation of it.

An example may be given by looking at Holocaust denial. Those who deny the Holocaust may insult the Jewish people. That may compound the injury that was caused by the event itself. But the insult is not identical to the injury. To suggest otherwise is to invite censorship. The denial of the Holocaust is patently absurd. But it needs to be debated as it was when Deborah Lipstadt challenged the assertions of David Irving. In an action brought by Irving for defamation his claims of Holocaust denial were examined and ultimately ridiculed.[5]

Jeremy Waldron is an advocate for limits on speech. He argues that since the aim of “hate speech” is to compromise the dignity of those at whom it is targeted it should be subject to restrictions.[6] Waldron argues that public order means more than an absence of violence but includes the peaceful order of civil society and a dignitary order of ordinary people interacting with one another in ordinary ways based upon an arms-length respect.

So what does Waldron mean by dignity. He relies upon the case of Beauharnais v Illinois[7] where the US Supreme Court upheld the constitutionality of a law prohibiting any material that portrayed “depravity, criminality, unchastity or lack of virtue of a class of citizens, of any race, colour, creed or religion.” On this basis Waldron suggests that those who attack the basic social standing and reputation of a group should be deemed to have trespassed upon that group’s dignity and be subject to prosecution. “Hate speech”, he argues, should be aimed at preventing attacks on dignity and not merely offensive viewpoints. Using this approach I could say that Christianity is an evil religion but I could not say Christians are evil people.

The problem with Waldron’s “identity” approach is that is that the dignity of the collective is put before the dignity of its individual members. This raises the difficulty of what may be called “groupthink”. If I think of myself primarily as a member of a group I have defined my identity by my affiliation rather than by myself. This group affiliation suggests a certain fatalism, that possibilities are exhausted, perhaps from birth, and that one cannot be changed. This runs directly against Martin Luther King’s famous statement where he rejected identity based on race but preferred an individual assessment.

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”

The problem with the proposition that the state should protect its citizens against what Waldron calls “group defamation” is that it runs the risk of its citizens becoming infantalised, that in fact such an approach undermines their individual dignity by assuming that they cannot answer for themselves.

Rather than encouraging people to be thin-skinned, what is required in a world of increasingly intimate diversity is to learn how to be more thick-skinned and to recognize and celebrate the difference that lies in diversity. As Ronald Dworkin put it, no one has a right not to be offended and in fact we should not take offence too readily. In a free society I may be free to feel offended but should not use that offence to interfere with the freedoms of another.

Dangerous Speech

It will be by now apparent that my view is that “hate speech” is a term that should be avoided, although I accept that it is part of the lexicon, whether we like it or not. Perhaps it might be proper to focus upon the type of speech that society should consider to be unacceptable and that warrants the interference of law.

Any interference must be based on reasonableness and demonstrable justification, given that the right of freedom of expression under the Bill of Rights Act is the subject of interference. To warrant such interference I suggest that rather than use the term “hate speech” the threshold for the interference of the law could be termed “dangerous speech” – speech that presents a danger to an individual or group of individuals.

The intentional advocacy or inciting of physical harm may be classified as “dangerous speech” and justifies the intervention of the law. It is non-specific and available both to individuals and the groups identified in the Human Rights Act. In certain circumstances – where there is incitement to or advocacy of actual physical harm, the intervention of the criminal law is justified.

The law also deals with psychological harm of a special type – serious emotional distress. That is a test in the Harmful Digital Communications Act (HDCA). That legislation applies only to online speech. That may be a lesser form of “dangerous speech” but within the context of the provisions of section 22 HDCA such interference is justified. The elements of intention, actual serious emotional distress and the mixed subjective objective test provide safeguards that could be considered to be a proportionate interference with the freedom of expression and would harmonise the remedies presently available for online speech with that in the physical world.

There are a number of other provisions in the law that deal with forms of speech or communication harms. Some of these warrant discussion because they demonstrate the proper themes that the law should address.

Existing Communications Offences – a summary

The law has been ambivalent towards what could be called speech crimes. Earlier this year the crime of blasphemous libel was removed from the statute book. Sedition and offences similar to it were removed in 2008. Criminal libel was removed as long ago as 1993.

The Crimes Act 1961

At the same time the law has recognized that it must turn its face against those who would threaten to commit offences. Thus section 306 criminalises the actions of threatening to kill or do grievous bodily harm to any person or sends or causes to be received a letter or writing threatening to kill of cause grievous bodily harm. The offence requires knowledge of the contents of the communication.

A letter or writing threatening to destroy or damage any property or injure any animal where there is knowledge of the contents of the communication and it is done without lawful justification or excuse and without claim or right is criminalized by section 307.

It will be noted that the type of communication in section 306 may be oral or written but for a threat to damage property the threat must be in writing.

Section 307A is a complicated section.[8] It was added to the Act in 2003 and was part of a number of measures enacted to deal with terrorism after the September 11 2001 tragedy. It has received attention in one case since its enactment – that of Police v Joseph.[9]

Joseph was charged with a breach of s 307A(1)(b) of the Crimes Act 1961 in that he, without lawful justification or reasonable excuse and intending to cause a significant disruption to something that forms part of an infrastructure facility in New Zealand namely New Zealand Government buildings, did communicate information that he believed to be about an act namely causing explosions likely to cause major property damage.

Mr. Joseph, a secondary school student at the time, created a video clip that lasted a little over three minutes. He used his laptop and sent messages of threats to the New Zealand Government accompanied by some images that linked the language with terrorism, such as pictures of the aerial attack on the World Trade Centre and images of Osama Bin Laden. The message:^[10]

•        threatened a terror attack on the New Zealand Government and New Zealand Government buildings.

•        claimed that large amounts of explosives had been placed in hidden locations on all buildings.

•        warned that New Zealand Government websites would be taken down.

•        threatened the hacking of New Zealand’s media websites.

•        threatened to disclose all Government secrets that have not been released to Wikileaks nor the public.

•        warned that obstruction would lead to harm.

The clip demanded that the New Zealand Government repeal or refrain from passing an amendment to the Copyright Act 1994. It was posted on 6 September 2010 and a deadline was set for 11 September 2010. The clip was attributed to the hacktavist group known as Anonymous.

The clip was posted to YouTube. It was not available to the public by means of a search. It was unlisted and could only be located by a person who was aware of the link to the particular clip.

The clip came to the attention of the Government Communications Security Bureau (GCSB) on 7 September 2010 who passed the information on to the Police Cybercrime Unit to commence an investigation. An initial communication from the GCSB on the morning of 7 September postulated that the clip could be a “crackpot random threat” and confirmed that its communication was “completely outside the Anonymous MO”.[11]

The site was quickly disabled and Mr. Joseph was spoken to by the Police. He made full admissions of his involvement.

The real issue at the trial was one of intent. The intention had to be a specific one. The Judge found that the intention of the defendant was to have his message seen and observed on the Internet and, although his behaviour in uploading the clip to YouTube in an Internet café and using an alias could be seen as pointing to an awareness of unlawful conduct it did not, however, point to proof of the intention to cause disruption of the level anticipated by the statute. It transpired that the defendant was aware that the clip would probably be seen by the authorities and also that he expected that it would be “taken down”.

The offence prescribed in section 308 does involve communication as well as active behavior. It criminalises the breaking or damaging or the threatening to break or damage any dwelling with a specific intention – to intimidate or to annoy. Annoyance is a relatively low level reaction to the behavior. A specific behavior – the discharging of firearms that alarms or intends to alarm a person in a dwelling house – again with the intention to intimidate or annoy – is provided for in section 308(2).

The Summary Offences Act

The Summary Offences Act contains the offence of intimidation in section 21. Intimidation may be by words or behavior. The “communication” aspect of intimidation is provided in section 21(1) which states:

Every person commits an offence who, with intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated,—

•  threatens to injure that other person or any member of his or her family, or to damage any of that person’s property;

Thus, there must be a specific intention – to frighten or intimidate – together with a communicative element – the threat to injure the target or a member of his or her family, or damage property.

In some respects section 21 represents a conflation of elements of section 307 and 308 of the Crimes Act together with a lesser harm threatened – that of injury – than appears in section 306 of that Act.

However, there is an additional offence which cannot be overlooked in this discussion and it is that of offensive behavior or language provided in section 4 of the Summary Offences Act.

The language of the section is as follows:

•  Every person is liable to a fine not exceeding $1,000 who,—
•  in or within view of any public place, behaves in an offensive or disorderly manner; or
•  in any public place, addresses any words to any person intending to threaten, alarm, insult, or offend that person; or
•  in or within hearing of a public place,—

(i)  uses any threatening or insulting words and is reckless whether any person is alarmed or insulted by those words; or

(ii) addresses any indecent or obscene words to any person.

•  Every person is liable to a fine not exceeding $500 who, in or within hearing of any public place, uses any indecent or obscene words.
•  In determining for the purposes of a prosecution under this section whether any words were indecent or obscene, the court shall have regard to all the circumstances pertaining at the material time, including whether the defendant had reasonable grounds for believing that the person to whom the words were addressed, or any person by whom they might be overheard, would not be offended.
•  It is a defence in a prosecution under subsection (2) if the defendant proves that he had reasonable grounds for believing that his words would not be overheard.

In some respects the consequences of the speech suffered by the auditor (for the essence of the offence relies upon oral communication) resemble those provided in section 61 of the Human Rights Act.

Section 4 was considered by the Supreme Court in the case of Morse v Police.[12] Valerie Morse was convicted in the District Court of behaving in an offensive manner in a public place, after setting fire to the New Zealand flag at the Anzac Day dawn service in Wellington in 2007.

In the District Court, High Court and Court of Appeal offensive behavior was held to mean behaviour capable of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person of the kind actually subjected to it in the circumstances. A tendency to disrupt public order was not required to constitute behaviour that was offensive. Notwithstanding the freedom of expression guaranteed by NZBORA, the behavior was held to be offensive within the context of the ANZAC observance.

The Supreme Court held that offensive behavior must be behaviour which gives rise to a disturbance of public order. Although agreed that disturbance of public order is a necessary element of offensive behaviour under s 4(1)(a), the Judges differed as to the meaning of “offensive” behaviour. The majority considered that offensive behaviour must be capable of wounding feelings or arousing real anger, resentment, disgust or outrage, objectively assessed, provided that it is to an extent which impacts on public order and is more than those subjected to it should have to tolerate. Furthermore it will be seen that a mixed subjective\objective test is present in that the anger, resentment, disgust or outrage must be measured objectively – how would a reasonable person in this situation respond.

It is important to note that in addition to the orality or behavioural quality of the communication – Anderson J referred to it as behavioural expression[13] –  it must take place in or within view of a public place. It falls within that part of the Summary Offences Act that is concerned with public order and conduct in public places. Finally, offensive behavior is behavior that does more than merely create offence.

Observations on Communications Offences

In some respects these various offences occupy points on a spectrum. Interestingly, the offence of offensive behavior has the greatest implications for freedom of expression or expressive behavior, in that the test incorporates a subjective one in the part of the observer. But it also carries the lightest penalty, and as a summary offence can be seen to be the least serious on the spectrum. The section could be applied in the case of oral or behavioural expression against individuals or groups based on colour, race, national or ethnic origin, religion, gender, disability or sexual orientation as long as the tests in Morse are met.

At the other end of the spectrum is section 307 dealing with threats to kill or cause grievous bodily harm which carries with it a maximum sentence of 7 years imprisonment. This section is applicable to all persons irrespective of colour, race, national or ethnic origin, religion, gender, disability or sexual orientation as are sections 307, 308, section 21 of the Summary Offences Act and section 22 of the Harmful Digital Communications Act which could all occupy intermediate points on the spectrum based on the elements of the offence and the consequences that may attend upon a conviction.

There are some common themes to sections 306, 307, 308 of the Crimes Act and section 21 of the Summary Offences Act.

First, there is the element of fear that may be caused by the behavior. Even although the issue of intimidation is not specifically an element of the offences under sections 306 and 307, there is a fear that the threat may be carried out.

Secondly there is a specific consequence prescribed – grievous bodily harm or damage to or destruction of property.

Thirdly there is the element of communication or communicative behavior that has the effect of “sending a message”.

These themes assist in the formulation of a speech-based offence that is a justifiable limitation on free speech, that recognizes that there should be some objectively measurable and identifiable harm that flows from the speech, but that does not stifle robust debate in a free and democratic society.

A Possible Solution

There is a change that could be made to the law which would address what appears to be something of a gulf between the type of harm contemplated by section 306 and lesser, yet just as significant harms.

I propose that the following language could cover the advocacy or intentional incitement of actual physical injury against individuals or groups. Injury is a lesser physical harm than grievous bodily harm and fills a gap between serious emotional distress present in the HDCA and the harm contemplated by section 306.

The language of the proposal is technology neutral. It could cover the use of words or communication either orally, in writing, electronically or otherwise. Although I dislike the use of the words “for the avoidance of doubt” in legislation for they imply a deficiency of clarity of language in the first place, there could be a definition of words or communication to include the use of electronic media.

The language of the proposal is as follows:

It is an offence to use words or communication that advocates or intends to incite actual physical injury against an individual or group of individuals based upon, in the case of a group, identifiable particular characteristics of that group

This proposal would achieve a number of objectives. It would capture speech or communications that cause or threaten to cause harm of a lesser nature than grievous bodily harm stated in section 306.

The proposal is based upon ascertaining an identifiable harm caused by the speech or communicative act. This enables the nature of the speech to be crystallised in an objective manner rather than the unclear, imprecise and potentially inconsistent use of the umbrella term “hate speech.”

The proposal would cover speech, words or communication across all media. It would establish a common threshold for words or communication below which an offence would be committed.

The proposal would cover any form of communicative act which was the term used by Anderson J in Morse and which the word “expression” used in section 14 of NZBORA encompasses.

The tension between freedom of expression and the limitations that may be imposed by law is acknowledged. It would probably need to be stated, although it should not be necessary, that in applying the provisions of the section the Court would have to have regard to the provisions of the New Zealand Bill of Rights Act 1990.

Other Legislative Initiatives

The Human Rights Act

There has been consideration of expanding other legislative avenues to address the problem of “dangerous” speech. The first avenue lies in the Human Rights Act which prohibits the incitement of disharmony on the basis of race, ethnicity, colour or national origins. One of the recent criticisms of the legislation is that it does not apply to incitement for reasons of religion, gender, disability or sexual orientation.^[14]

Before considering whether such changes need to be made – a different consideration to whether they should be made – it is important to understand how the Human Rights Act works in practice. The Act prohibits a number of discriminatory practices in relation to various activities and services.^[15] It also prohibits indirect discrimination which is an effects based form of activity.^[16] Victimisation or less favourable treatment based on making certain disclosures is prohibited.^[17] Discrimination in advertising along with provisions dealing with sexual or racial harassment are the subject of provisions.^[18]

The existing provisions relating to racial disharmony as a form of discrimination and racial harassment are contained in section 61 and 63 of the Act.[19]

There are two tests under section 61. One is an examination of the content of the communication. Is it threatening, abusive or insulting? If that has been established the next test is to consider whether it is:

1. Likely to excite hostility against or
2. Bring into contempt

Any group of persons either in or coming to New Zealand on the ground of colour, race or ethnic or national origins.

These provisions could well apply to “dangerous speech”. Is it necessary, therefore, to extend the existing categories in section 61 to include religion, gender, disability or sexual orientation.

Religion

Clearly if one were to add religion, threatening, abusive or insulting language about adherents of the Islamic faith would fall within the first limb of the section 61(1) test. But is it necessary that religion be added? And should this be simply because a religious group was targeted?

The difficulty with including threatening, abusive or insulting language against groups based upon religion means that not only would Islamaphobic “hate speech” be caught, but so too would the anti-Christian, anti-West, anti “Crusader” rhetoric of radical Islamic jihadi groups be caught. Would the recent remarks by Winston Peters condemning the implementation of strict sharia law in Brunei that would allow the stoning of homosexuals and adulterers be considered speech that insults members of a religion?^[20]

A further difficulty with religious-based speech is that often there are doctrinal differences that can lead to strong differences of opinion that are strongly voiced. Often the consequences for doctrinal heresy will be identified as having certain consequences in the afterlife. Doctrinal disputes, often expressed in strong terms, have been characteristics of religious discourse for centuries. Indeed the history of the development of the freedom of expression and the freedom of the press was often in the context of religious debate and dissent.

It may well be that to add a category of religion or religious groups will have unintended consequences and have the effect of stifling or chilling debate about religious belief.

An example of the difficulty that may arise with restrictions on religious speech may be demonstrated by the statement “God is dead.” This relatively innocuous statement may be insulting or abusive to members of theist groups who would find a fundamental aspect of their belief system challenged. For some groups such a statement may be an invitation to violence against the speaker. Yet the same statement could be insulting or abusive to atheists as well simply for the reason that for God to be dead presupposes the existence of God which challenges a fundamental aspect of atheist belief.

This example illustrates the danger of placing religious discourse into the unlawful categories of discrimination.

If it were to be determined that religious groups would be added to those covered by section 61, stronger wording relating to the consequences of speech should be applicable to such groups. Instead of merely “exciting hostility against” or “bring into contempt” based upon religious differences perhaps the wording should be “advocating and encouraging physical violence against..” .

This would have the effect of being a much stronger test than exists at present under section 61 and recognizes the importance of religious speech and doctrinal dispute.

Gender, Disability or Sexual Orientation

The Human Rights Act already has provisions relating to services-based discrimination on these additional grounds. The question is whether or not there is any demonstrated need to extend the categories protected under section 61 to these groups.

Under the current section 61 test, any threatening, abusive or insulting language directed towards or based upon gender, disability or sexual orientation could qualify as “hate speech” if the speech was likely to excite hostility against or bring into contempt a group of persons. The difficulty lies not so much with threatening language, which is generally clear and easy to determine, but with language which may be abusive or insulting.

Given the sensitivities that many have and the ease with which many are “offended” it could well be that a softer and less robust approach may be taken to what constitutes abusive or insulting language.

For this reason the test surrounding the effect of such speech needs to be abundantly clear. If the categories protected by section 61 are to be extended there must be a clear causative nexus between the speech and the exciting of hostility or the bringing into contempt. Alternatively the test could be strengthened as suggested above to replace the test of exciting hostility or bringing into contempt with “advocating and encouraging physical violence against..”

It should be observed that section 61 covers groups that fall within the protected categories. Individuals within those groups have remedies available to them under the provisions of the Harmful Digital Communications Act 2015.

The Harmful Digital Communications Act 2015

The first observation that must be made is that the Harmful Digital Communications Act 2015 (HDCA) is an example of Internet Exceptionalism in that it deals only with speech communicated via electronic means. It does not cover speech that may take place in a physical public place, by a paper pamphlet or other form of non-electronic communication.

The justification for such exceptionalism was considered by the Law Commission in the Ministerial Briefing Paper.^[21] It was premised upon the fact that digital information is pervasive, its communication is not time limited and can take place at any time – thus extending the reach of the cyber-bully – and it is often shared among groups with consequent impact upon relationships. These are some of the properties of digital communications systems to which I have made reference elsewhere.^[22]

A second important feature of the HDCA is that the remedies set out in the legislation are not available to groups. They are available only to individuals. Individuals are defined as “natural persons” and applications for civil remedies can only be made by an “affected individual” who alleges that he or she has suffered or will suffer harm as a result of a digital communication.^[23] Under section 22 – the offence section – the victim of an offence is the individual who is the target of a posted digital communication.^[24]

The HDCA provides remedies for harmful digital communications. A harmful digital communication is one which

1. Is a digital communication communicated electronically and includes any text message, writing, photograph, picture, recording, or other matter^[25]
2. Causes harm – that is serious emotional distress

In addition there are ten communications principles^[26]. Section 6(2) of the Act requires the Court to take these principles into account in performing functions or exercising powers under the Act.

For the purposes of a discussion about “dangerous speech” principles 2, 3, 8 and 10 are relevant. Principle 10 extends the categories present in section 61 of the Human Rights Act to include those discussed above.

The reason for the difference is that the consequences of a harmful digital communication are more of an individual and personal nature. Harm or serious emotional distress must be caused. This may warrant an application for an order pursuant to section 19 of the Act – what may be described as a civil enforcement order. A precondition to an application for any of the orders pursuant to section 19 is that the matter must be considered by the Approved Agency – presently Netsafe.^[27] If Netsafe is unable to resolve the matter, then it is open to the affected individual to apply to the District Court.

The orders that are available are not punitive but remedial in nature. They include an order that the communication be taken down or access to it be disabled; that there be an opportunity for a reply or for an apology; that there be a form of restraining order so that the defendant is prohibited from re-posting the material or encouraging others to do so.

In addition orders may be made against online content hosts requiring them to take material down along with the disclosure of the details and particulars of a subscriber who may have posted a harmful digital communication. Internet Service Providers (described in the legislation as IPAPs) may be required to provide details of an anonymous subscriber to the Court.

It should be noted that the element of intending harm need not be present on the part of the person posting the electronic communication. In such a situation the material is measured against the communications principles along with evidence that the communication has caused serious emotional distress.

Section 22 – Causing harm by posting a digital communication

The issue of intentional causation of harm is covered by section 22 of the Act. A mixed subjective-objective test that is required for an assessment of content. The elements necessary for an offence under section 22 HDCA are as follows:

A person must post a digital communication with a specific intention – that it cause harm to a victim;

It must be proven that the posting of the communication would cause harm to an ordinary reasonable person in the position of the victim;

Finally, the communication must cause harm to the victim.

Harm is defined as serious emotional distress. In addition the Court may take a number of factors into account in determining whether a post may cause harm

1.  the extremity of the language used:
2.  the age and characteristics of the victim:
3.  whether the digital communication was anonymous:
4.  whether the digital communication was repeated:
5.  the extent of circulation of the digital communication:
6.  whether the digital communication is true or false:
7.  the context in which the digital communication appeared.

The requirement that harm be intended as well as caused has been the subject of some criticism. If there has been an intention to cause harm, is it necessary that there be proof that harm was caused? Similarly, surely it is enough that harm was caused even if it were not intended?

As to the first proposition it must be remembered that section 22 criminalises a form of expression. The Law Commission was particularly concerned that the bar should be set high, given the New Zealand Bill of Rights Act 1990 provisions in section 14 regarding freedom of expression. If expression is to be criminalized the consequences of that expression must warrant the involvement of the criminal law and must be accompanied by the requisite mens rea or intention.

As to the second proposition, the unintended causation of harm is covered by the civil enforcement provisions of the legislation. To eliminate the element of intention would make the offence one of strict liability – an outcome reserved primarily for regulatory or public interest types of offence.

The Harmful Digital Communications Act and “Dangerous Speech”

Could the HDCA in its current form be deployed to deal with “dangerous speech”. The first thing to be remembered is that the remedies in the legislation are available to individuals. Thus if there were a post directed towards members of a group, an individual member of that group could consider proceedings.

Would that person be “a victim” within the meaning of section 22? It is important to note that the indefinite article is used rather than the definite one. Conceivably if a post were made about members of a group the collective would be the target of the communication and thus every individual member of that collective could make a complaint and claim to be a target of the communication under section 22(4).

To substantiate the complaint it would be necessary to prove that the communication caused serious emotional distress^[28] which may arise from a cumulation of a number of factors.^[29] Whether the communication fulfilled the subjective\objective test in section 22(1)(b) would, it is suggested, be clear if the communication amounted to “hate speech”, taking into account the communications principles, along with the factors that should be taken into account in section 22(2)((a) – (g). The issue of intention to cause harm could be discerned either directly or by inference from the nature of the language used in the communication.

In addition it is suggested that the civil remedies would also be available to a member of a group to whom “dangerous speech” was directed. Even although a group may be targeted, an individual member of the group would qualify as an affected individual if serious emotional distress were suffered. A consideration of the communications principles and whether or not the communication was in breach of those principles would be a relatively straightforward matter of interpretation.

The Harmful Digital Communications Act in Action

Although the principal target of the legislation was directed towards cyber-bullying by young people, most of the prosecutions under the Act have been within the context of relationship failures or breakdowns and often have involved the transmission of intimate images or videos – a form of what the English refer to as “revenge porn”. There have been a relatively large number of prosecutions under section 22 – something that was not anticipated by the Law Commission in its Briefing Paper.^[30]

Information about the civil enforcement process is difficult to obtain. Although the Act is clear that decisions, including reasons, in proceedings must be published.^[31] There are no decisions available on any website to my knowledge.

From my experience there are two issues that arise regarding the civil enforcement process. The first is the way the cases come before the Court. When the legislation was enacted the then Minister of Justice, Judith Collins, considered that the Law Commission recommendation that there be a Communications Tribunal to deal with civil enforcement applications was not necessary and that the jurisdiction under the legislation would form part of the normal civil work of the District Court.

Because of pressures on the District Court, civil work does not receive the highest priority and Harmful Digital Communications applications take their place as part of the ordinary business of the Court. This means that the purpose of the Act in providing a quick and efficient means of redress for victims is not being fulfilled. ^[32]  One case involving communications via Facebook in January of 2017 has been the subject of several part-heard hearings and has yet to be concluded. Even if the Harmful Digital Communications Act is not to be deployed to deal with “dangerous speech”, it is suggested that consideration be given to the establishment of a Communications Tribunal as suggested by the Law Communication so that hearings of applications can be fast-tracked.

The second issue surrounding the civil enforcement regime involves that of jurisdiction over off-shore online content hosts such as Facebook, Twitter, Instagram and the like. Although Facebook and Google have been cited as parties and have been served in New Zealand, they do not acknowledge the jurisdiction of the Court but nevertheless indicate a willingness to co-operate with requests made by the Court without submitting to the jurisdiction of the Court.

In my view the provisions of Subpart 3 of Part 6 of the District Court Rules would be applicable. These provisions allow service outside New Zealand as a means of establishing the jurisdiction of the New Zealand Courts. The provisions of Rule 6.23 relating to service without leave are not applicable and, as the law stands, the leave of the Court would have to be sought to serve an offshore online content host. This is a complex process that requires a number of matters to be addressed about a case before leave may be granted. Once leave has been granted there may be a protest to the jurisdiction by the online content host before the issue of jurisdiction could be established.

One possible change to the law might be an amendment to Rule 6.23 allowing service of proceedings under the HDCA without the leave of the Court. There would still be the possibility that there would be a protest to the jurisdiction but if that could be answered it would mean that the Courts would be able to properly make orders against offshore online content hosts.

Are Legislative Changes Necessary?

It will be clear by now that the law relating to “dangerous speech” in New Zealand does not require major widespread change or reform. What changes may be needed are relatively minor and maintain the important balance contained in the existing law between protecting citizens or groups from speech that is truly harmful and ensuring that the democratic right to freedom of expression is preserved.

The Importance of Freedom of Expression

The New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights Act 1990 (NZBORA) provides at section 14

“Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.”

This right is not absolute. It is subject to section 5 which provides “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Section 4 reinforces the concept of Parliamentary supremacy. If a specific piece of legislation conflicts or is inconsistent with NZBORA, the specific piece of legislation prevails. Thus, specific pieces of legislation which impose restrictions or limitations upon freedom of expression – such as the Human Rights Act 1993 and the Harmful Digital Communications Act 2015 – prevail although if an enactment can be given a meaning that is consistent with the rights and freedoms contained in NZBORA, that meaning shall be preferred to any other meaning.^[33]

This then provides a test for considering limitations or restrictions on the rights under NZBORA. Limitations must be reasonable and must be demonstrably justified within the context of a free and democratic society.

Thus, when we consider legislation that may impinge upon or limit the freedom of expression the limitation must be

1. Reasonable
2. Demonstrably justified
3. Yet recognizing that we live in a free and democratic society.

The justified limitations test contains within it a very real tension. On the one hand there is a limitation on a freedom. On the other there is a recognition of freedom in that we live in a free and democratic society. I would suggest that although NZBORA does not use this language, the emphasis upon a free and democratic society, and the requirement of reasonableness and demonstrable justification imports an element of necessity. Is the limitation of the freedom necessary?

The problem with freedom of expression is that it is elusive. What sort of limitations on the freedom of expression may be justified?

Freedom of Expression in Practice

The reality with freedom of expression is that it is most tested when we hear things with which we disagree. It is not limited to the comfortable space of agreeable ideas.

Salman Rushdie said that without the freedom to offend the freedom of expression is nothing. Many critics of current debates seem to conflate the freedom to express those ideas with the validity of those ideas, and their judgement on the latter means that they deny the freedom to express them.

The case of Redmond-Bate v DPP[34]  [1999] EWHC Admin 733 was about two women who were arrested for preaching on the steps of a church. Sedley LJ made the following comments:[35]

“I am unable to see any lawful basis for the arrest or therefore the conviction. PC Tennant had done precisely the right thing with the three youths and sent them on their way. There was no suggestion of highway obstruction. Nobody had to stop and listen. If they did so, they were as free to express the view that the preachers should be locked up or silenced as the appellant and her companions were to preach. Mr. Kealy for the prosecutor submitted that if there are two alternative sources of trouble, a constable can properly take steps against either. This is right, but only if both are threatening violence or behaving in a manner that might provoke violence. Mr. Kealy was prepared to accept that blame could not attach for a breach of the peace to a speaker so long as what she said was inoffensive. This will not do. Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy.”

One way of shutting down debate and the freedom of expression is to deny a venue, as we have seen in the unwise decision of Massey University Vice Chancellor Jan Thomas to deny Mr Don Brash a chance to speak on campus. The Auckland City did the same with the recent visit by speakers Lauren Southern and Stefan Molyneux.

Lord Justice Sir Stephen Sedley (who wrote the judgement in Redmond-Bate v DPP above) writing privately, commented on platform denial in this way:

” A great deal of potentially offensive speech takes place in controlled or controllable forums – schools, universities, newspapers, broadcast media – which are able to make and enforce their own rules. For these reasons it may be legitimate to criticise a periodical such as Charlie Hebdo for giving unjustified offence – for incivility, in other words – without for a moment wanting to see it or any similarly pungent periodical penalised or banned. Correspondingly, the “no platform” policies adopted by many tertiary institutions and supported in general by the National Union of Students are intended to protect minorities in the student body from insult or isolation. But the price of this, the stifling of unpopular or abrasive voices, is a high one, and it is arguable that it is healthier for these voices to be heard and challenged. Challenge of course brings its own problems: is it legitimate to shout a speaker down? But these are exactly the margins of civility which institutions need to think about and manage. They are not a justification for taking sides by denying unpopular or abrasive speakers a platform.”[36]

So the upshot of all this is that we should be careful in overreacting in efforts to control, monitor, stifle or censor speech with which we disagree but which may not cross the high threshold of “dangerous speech”. And certainly be careful in trying to hobble the Internet platforms and the ISPs. Because of the global distributed nature of the Internet it would be wrong for anyone to impose their local values upon a world wide communications network. The only justifiable solution would be one that involved international consensus and a recognition of the importance of freedom of expression.

Conclusion

The function of government is to protect its citizens from harm and to hold those who cause harm accountable. By the same token a free exchange of ideas is essential in a healthy and diverse democracy. In such a way diversity of opinion is as essential as the diversity of those who make up the community.

I have posited a solution that recognizes and upholds freedom of expression and yet recognizes that there is a threshold below which untrammeled freedom of expression can cause harm. It is when expression falls below that threshold that the interference of the law is justified,

I have based my proposal upon a term based upon an identifiable and objective consequence – speech which is dangerous – rather than the term “hate speech”. Indeed there are some who suggest that mature democracies should move beyond “hate speech” laws.^[37] Ash suggests that it is impossible to reach a conclusive verdict upon the efficacy of “hate speech” laws and suggests that there is scant evidence that mature democracies with extensive hate speech laws manifest any less racism, sexism or other kinds of prejudice than those with few or no such laws.^[38] Indeed, it has been suggested that the application of “hate speech” laws has been unpredictable and disproportionate. A further problem with “hate speech” is that they tend to encourage people to take offence rather than learn to live with the fact that there is a diversity of opinions, or ignore it or deal with it by speaking back – preferably with reasoned argument rather than veto statements.

It is for this reason that I have approached the problem from the perspective of objective, identifiable harm rather than wrestling with the very fluid concept of “hate speech.” For that I may be criticized for ducking the issue. The legal solution proposed is a suggested way of confronting the issue rather than ducking it. It preserves freedom of expression as an essential element of a healthy and functioning democracy yet recognizes that there are occasions when individuals and members of groups may be subjected to physical danger arising from forms of expression.

What is essential is that the debate should be conducted in a measured, objective and unemotive manner. Any interference with freedom of expression must be approached with a considerable degree of care. An approach based upon an objectively identifiable danger rather than an emotive concept such as “hate” provides a solution.

---

[1] Presumably on the grounds that they depict, promote or encourage crime or terrorism or that the publication is injurious to the public good. See the definition of objectionable in the Films Videos and Publications Classification Act 1993

[2] Timothy Garton Ash Free Speech: Ten Principles for a Connected World (Atlantic Books, London 2016) p. 211

[3] US v Schwimmer 279 US 644 (1929)

[4] Daphne Patai Heterophobia: sexual harassment and the future of feminism (Rowman and Littlefield, Lanham 1998).

[5] See Irving v Penguin Books Ltd [2000] EWHC  QB 115.

[6] Jeremy Waldron The Harm in Hate Speech (Harvard University Press, Cambridge 2012 p. 120.

[7] Beauharnais v Illinois 343 US 250 (1952).

[8] Section 307A reads as follows:

307A Threats of harm to people or property

(1)           Every one is liable to imprisonment for a term not exceeding 7 years if, without lawful justification or reasonable excuse, and intending to achieve the effect stated in subsection (2), he or she—

(a)           threatens to do an act likely to have 1 or more of the results described in subsection (3); or

(b)           communicates information—

(i)            that purports to be about an act likely to have 1 or more of the results described in subsection (3); and

(ii)           that he or she believes to be false.

(2)           The effect is causing a significant disruption of 1 or more of the following things:

(a)           the activities of the civilian population of New Zealand:

(b)           something that is or forms part of an infrastructure facility in New Zealand:

(c)           civil administration in New Zealand (whether administration undertaken by the Government of New Zealand or by institutions such as local authorities, District Health Boards, or boards of trustees of schools):

(d)           commercial activity in New Zealand (whether commercial activity in general or commercial activity of a particular kind).

(3)           The results are—

(a)           creating a risk to the health of 1 or more people:

(b)           causing major property damage:

(c)           causing major economic loss to 1 or more persons:

(d)           causing major damage to the national economy of New Zealand.

(4)           To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that a person has committed an offence against subsection (1).

[9] [2013] DCR 482. For a full discussion of this case see David Harvey Collisions in the Digital Paradigm: Law and rulemaking in the Internet Age (Hart Publishing, Oxford, 2017) at p. 268 and following.

^[10] Police v Joseph above at [2].

[11] Ibid at [7].

[12] [2011] NZSC 45.

[13] Ibid at para [123].

[14] See Human Rights Commission chief legal advisor Janet Bidois quoted in Michelle Duff “Hate crime law review fast-tracked following Christchurch mosque shootings” Stuff 30 March 2019. https://www.stuff.co.nz/national/christchurch-shooting/111661809/hate-crime-law-review-fasttracked-following-christchurch-mosque-shooting

[15] Human Rights Act 1993 sections 21 – 63.

[16] Ibid section 65.

[17] Ibid section 66

[18] Ibid sections 67 and 69.

[19] The provisions of section 61(1) state:

(1)           It shall be unlawful for any person—

(a)           to publish or distribute written matter which is threatening, abusive, or insulting, or to broadcast by means of radio or television or other electronic communication words which are threatening, abusive, or insulting; or

(b)           to use in any public place as defined in section 2(1) of the Summary Offences Act 1981, or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting; or

(c)           to use in any place words which are threatening, abusive, or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper, magazine, or periodical or broadcast by means of radio or television,—

being matter or words likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.

It should be noted that Internet based publication is encompassed by the use of the words “or other electronic communication”.

[20] Derek Cheng “Winston Peters criticizes Brunei for imposing strict Sharia law” NZ Herald 31 March 2019 https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12217917

[21] New Zealand Law Commission Ministerial Briefing Paper Harmful Digital Communications:The adequacy of the current sanctions and remedies. (New Zealand Law Commission, Wellington, August 2012) https://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/NZLC%20MB3.pdf (last accessed 26 April 2019)

[22] See David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet (Hart Publishing, Oxford, 2017) especially at Chapter 2

[23] Harmful Digital Communications Act 2015 section 11.

[24] Harmful Digital Communications Act 2015 section 22(4).

[25] It may also include a consensual or non-consensual intimate video recording

[26] Harmful Digital Communications Act 2015 section 6. These principles are as follows:

Principle 1  A digital communication should not disclose sensitive personal facts about an individual.

Principle 2  A digital communication should not be threatening, intimidating, or menacing.

Principle 3  A digital communication should not be grossly offensive to a reasonable person in the position of the affected individual.

Principle 4 A digital communication should not be indecent or obscene.

Principle 5  A digital communication should not be used to harass an individual.

Principle 6  A digital communication should not make a false allegation.

Principle 7  A digital communication should not contain a matter that is published in breach of confidence.

Principle 8  A digital communication should not incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual.

Principle 9  A digital communication should not incite or encourage an individual to commit suicide.

Principle 10 A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.

[27] http://netsafe.org.nz

[28] Harmful Digital Communications Act Section 22(1)(c)

[29] See Police v B [2017] NZHC 526.

[30] For some of the statistics on prosecutions under the Act see Nikki MacDonald “Revenge Porn: Is the Harmful Digital Communications Act Working?” 9 March 2019 https://www.stuff.co.nz/national/crime/110768981/revenge-porn-is-the-harmful-digital-communications-act-working

[31] Harmful Digital Communications Act Section 16(4)

[32] Harmful Digital Communications Act Section 3(b)

[33] See New Zealand Bill of Rights Act section 6. Note also that the Harmful Digital Communications Act provides at section 6 that in performing its functions or exercising powers under the Act the Approved Agency and the Courts must act consistently with the rights and freedoms provided in NZBORA.

[34] [1999] EWHC Admin 733.

[35] Ibid at  para [20].

[36] Stephen Sedley Law and the Whirligig of Time (Hart Publishing, Oxford, 2018) p. 176-177. The emphasis is mine.

[37] For example see Timothy Garton Ash Free Speech: Ten Principles for a Connected World (Atlantic, London 2016) especially at 219 and following.

[38] Ibid.

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No block selected.Open publish panel

• Document

The culture of idealised individualism

I subscribe to the New Zealand Herald. I like to read it while I am having breakfast. In these days of a Covid 19 lockdown I can read the paper a bit more thoroughly than I might normally before hitting the Auckland gridlock on the way to work.

But one columnist I do enjoy reading is Mr Simon Wilson. He writes clearly and argues well for his point of view, because his columns are, after all, just his opinion. I don’t often agree with him. I find he tends to be a bit preachy, a bit righteous, at times a bit of a high-horsed moralist. Certainly much of his thinking is to the left of centre. He seems to support the leftist Auckland Council and our slightly left of centre Government. And that is fine. This is a democracy and he is entitled to his opinion and he is entitled to express it as I am mine.

In the Herald of 2 April he focussed his sights upon the United States and it was a little difficult to work out whether he was just plain good old Kiwi anti-American or if he deplored the US political and social system. Having read the article several times I think it is the latter and in many respects I agree with him. For whatever reason – and there are many – US society has become polarised into different clusters or belief and opinion to the point that the consensus which was a characteristic of US politics and life a few decades ago has vanished.

However, one thing I must take issue with is his sneering dismissal of individualism. He says

“Then there’s the American culture of idealised individualism. You’re not taking my gun from me and you’re not going to tell me where I can go. Stay safe? Be kind? Don’t make me laugh.”

Before I express my answer let me provide a bit of context.

In 1964 – 65 I was lucky enough to be awarded an American Field Service Scholarship and completed my final year of high school in a little town in Minnesota called Redwood Falls. It was a very interesting experience.

In our English class we were required to write an essay on the subject of “The Challenge of Citizenship”. Those essays that merited it would be entered in the Veterans of Foreign Wars competition known as the Voice of Democracy. Because not only did the piece have to read well – it had to be spoken and presented.

So I wrote my essay and would you believe that it was submitted to the competition and went through the various District and Regional eliminations and I ended up winning the competition for the State of Minnesota which was pretty cool for a Kiwi kid. It also meant that I had a 5 day all expenses paid trip to Washington DC hosted by the VFW and got to go to some extraordinary places and meet some wonderful people.

The speech itself was read into the Congressional Record for Thursday 25 February 1965

I differ with Mr Wilson on his characterisation of individualism. Although he locates his arguement in the US, and grabs the low hanging fruit of firearms, true individualism is more than just that. I identified it as an important element – if not THE element – in the challenge of citizenship. It has to do with our exercise of the rights and privileges of a free society and true individualism runs up against the fuzzy collectivist thinking that characterises much of today’s commentary, including some of that put out by Mr Wilson.

When we get through the current Covid19 crisis with all its unfortuante but necessary interferences with our freedoms, it is to be hoped that the importance of individualism will again surface and achieve the paramountcy it deserves.

The essay/speech follows. I had to re-type it from a tattered copy of the Congressional Record which did not scan that well. It was an interesting experience because the underlying “voice” is the same. I didn’t have to refer to the master text that often. Some of the expression I would change today – the reference to Communists for example – but here it is as it was originally presented:

When St Paul was brought before the Roman Governor, he used those magic words Civis Romanus Sum – I am a Roman citizen and he had a right to appeal to Caesar, which he did.

Today, as in the time of St Paul, one’s citizenship is a thing to be proud of, but saying that one is a citizen of a country and saying that one practices good citizenship are two different things.

Citizenship is not flagwaving patriotism, but for us it is identifying ourselves as those who are entitled to the rights and privileges of free men, and sensing the qualities of our obligations and responses to a community.

Now let us discover what the challenge of one entitled to the rights and privileges of a free man actually involves.

Today we are threatened by forces that threaten to take away our freedom. We all have heard of these over the media of communication, so there is no need for me to reiterate the dangers that face us. Yet we are faced by an equally dangerous enemy within that threatens to take away our most important freedom – the freedom to think as we please, the freedom to make our own decisions and to act on them. All the time we are told what to do, what to buy, how we should do this and how we should do that, and gradually we are allowing other people to do our thinking for us. The time will come when no longer will we make our own decisions, but some “big brother” will tell us what to do and what to think. We will be told who is good and who is bad, whom we shall love and whom we shall hate.

Happily, today we are only on the brink of this horror, but it is, nonetheless, frighteningly close. What we need to do now, at this moment, is to wake up and think for ourselves. When  we do this we must not be affected by prejudice, be it racial, political or religious, and above all we must stick to our decisions once we have made them. If our ideas differ from those of the majority and if we truly and genuinely believe in them, then we must stick to them as did the American colonists more than 175 years ago.

Individualism is a keynote of our society and it must be maintained by sustaining freedom of thought, and it is up to the good citizen to preserve this freedom as well as all the others. By upholding these freedoms when it is perhaps easier to be passive, which are the rights of every citizen, the citizen practices good citizenship.

Yet how many people criticize the individualist for his different ideas; he is reviled, insulted, even called a Communist. This is the wrong attitude to adopt toward those who use this freedom of thought, and it is this which is challenging us today. We must accept this challenge – a challenge which, if we do not accept, will take away our freedoms. To practice good citizenship we must fight for and preserve our freedoms – the freedom to speak as we please; the freedom to worship as we please; the freedom to live without having to worry; and the greatest freedom of them all – freedom to think as we wish. Preserve them, for if we do not, then we do not accept the challenge of citizenship – for these, as we carefully exercise them, become not ours alone but equal rights of others, strengthened like links in a chain.

Rush to Judgement and Due Process

I am troubled by some of what has been happening in the Me Too business.

Here is a link to various comments from women who are worried about #metoo. One comment that resonated was that from Nathalie Rothschild whose first full paragraph states:

“I could discuss how it is normalising the kind of mob behaviour that is the most negative aspect of internet culture, and how it is eroding the presumption of innocence.”

It seems that we have learned little from the Salem Witch Hunt, Arthur Miller’s play “The Crucible” and the McCarthy era and all the other incidents where accusations are all that is needed to establish guilt.

Our wonderful Internet that has allowed us the joy of communication with one another has become an enhanced “court of public opinion” with little interest in proof burdens and standards but rather a rush to judgement and excoriation. And it seems that rather than take the path of complaint to the authorities the opportunity that the Internet offers to “name and shame” is too tempting to avoid and is, as I have said, untrammelled by the inconvenience of due process.

In so saying however I have no doubt that there have been abuses of power and position in a number of industries and fields of endeavour. What does concern me is that all that is needed is an allegation to destroy a career. If the claims about Kevin Spacey are true I can understand that his services may no longer be required by the movie industry. His damaged reputation would hardly enhance the commercial viability of a film in which he might make. But that does not mean that I consign my DVDs of “House of Cards” and his other excellent performances to the rubbish heap.

The problem that we have is that so far there have been allegations and assumptions of guilt. One may answer by suggesting that there is truth in numbers. That may well be so but there are tests for similar fact evidence or what we in the Shaky Isles refer to as propensity evidence. It may be that the Washington Post and other agencies have carried out their own investigations but I cannot say that I have ever seen a piece of journalism that is conducted with the rigour of what we understand as due process.

So I am not rushing to judgement on any of the allegations, although I recognise that my subconscious value system that allows me to adopt that stance may have been shaped by the fact that I am an old, white, privileged male. But it may be that the Courtrooms of Twitter, the Blogosphere, Facebook and the news media have accomplished the objective of reputation destruction and naming and shaming, rendering due process and all the inconvenience accompanying that system unnecessary and redundant. Therein lies the tragedy.

Memory Illusions and Cybernannies

Over the last week I read a couple of very interesting books. One was Dr Julia Shaw’s The Memory Illusion. Dr. Shaw describes herself as a “memory hacker” and has a You Tube presence where she explains a number of the issues that arise in her book.

The other book was The Cyber Effect by Dr Mary Aiken who reminds us on a number of occasions in every chapter that she is a trained cyberpsychologist and cyberbehavioural specialist and who was a consultant for CSI-Cyber which, having watched a few episodes, I abandoned. Regrettably I don’t see that qualification as a recommendation, but that is a subjective view and I put it to one side.

Both books were fascinating. Julia Shaw’s book in my view should be required reading for lawyers and judges. We place a considerable amount of emphasis upon memory assisted by the way in which a witness presents him or herself -what we call demeanour. Demeanour has been well and truly discredited by Robert Fisher QC in an article entitled “The Demeanour Fallacy” [2014] NZ Law Review 575. The issue has also been covered by  Chris Gallavin in a piece entitled “Demeanour Evidence as the backbone of the adversarial process” Lawtalk Issue 834 14 March 2014 http://www.lawsociety.org.nz/lawtalk/issue-837/demeanour-evidence-as-the-backbone-of-the-adversarial-process

A careful reading of The Memory Illusion is rewarding although worrisome. The chapter on false memories, evidence and the way in which investigators may conclude that “where there is smoke there is fire” along with suggestive interviewing techniques is quite disturbing and horrifying at times.

But the book is more than that, although the chapter on false memories, particularly the discussions about memory retrieval techniques, was very interesting. The book examines the nature of memory and how memories develop and shift over time, often in a deceptive way. The book also emphasises how the power of suggestion can influence memory. What does this mean – that everyone is a liar to some degree? Of course not. A liar is a person who tells a falsehood knowing it to be false. Slippery memory, as Sir Edward Coke described it, means that what we are saying we believe to be true even although, objectively, it is not.

A skilful cross-examiner knows how to work on memory and highlight its fallibility. If the lawyer can get the witness in a criminal trial to acknowledge that he or she cannot be sure, the battle is pretty well won. But even the most skilful cross-examiner will benefit from a reading of The Memory Illusion. It will add a number of additional arrows to the forensic armoury. For me the book emphasises the risks of determining criminal liability on memory or recalled facts alone. A healthy amount of scepticism and a reluctance to take an account simply and uncritically at face value is a lesson I draw from the book.

The Cyber Effect is about how technology is changing human behaviour. Although Dr Aiken starts out by stating the advantages of the Internet and new communications technologies, I fear that within a few pages the problems start with the suggestion that cyberspace is an actual place. Although Dr Aiken answers unequivocally in the affirmative it clearly is not. I am not sure that it would be helpful to try and define cyberspace – it is many things to many people. The term was coined by William Gibson in his astonishingly insightful Neuromancer and in subsequent books Gibson imagines the network (I use the term generically) as a place. But it isn’t. The Internet is no more and no less than a transport system to which a number of platforms and applications have been bolted. Its purpose –  Communication. But it is communication plus interactivity and it is that upon which Aiken relies to support her argument. If that gives rise to a “place” then may I congratulate her imagination. The printing press – a form of mechanised writing that revolutionised intellectual activity in Early-modern Europe – didn’t create a new “place”. It enabled alternative means of communication. The Printing Press was the first Information Technology. And it was roundly criticised as well.

Although the book purports to explain how new technologies influence human behaviour it doesn’t really offer a convincing argument. I have often quoted the phrase attributed to McLuhan – we shape our tools and thereafter our tools shape us – and I was hoping for a rational expansion of that theory. It was not to be. Instead it was a collection of horror stories about how people and technology have had problems. And so we get stories of kids with technology, the problems of cyberbullying, the issues of on-line relationships, the misnamed Deep Web when she really means the Dark Web – all the familiar tales attributing all sorts of bizarre behaviours to technology – which is correct – and suggesting that this could become the norm.

What Dr Aiken fails to see is that by the time we recognise the problems with the technology it is too late. I assume that Dr Aiken is a Digital Immigrant, and she certainly espouses the cause that our established values are slipping away in the face of an unrelenting onslaught of cyber-bad stuff. But as I say, the changes have already taken place. By the end of the book she makes her position clear (although she misquotes the comments Robert Bolt attributed to Thomas More in A Man for All Seasons which the historical More would never have said). She is pro-social order in cyberspace, even if that means governance or regulation and she makes no apology for that.

Dr Aiken is free to hold her position and to advocate it and she argues her case well in her book. But it is all a bit unrelenting, all a bit tiresome these tales of Internet woe. It is clear that if Dr Aiken had her way the very qualities that distinguish the Digital Paradigm from what has gone before, including continuous disruptive and transformative change and permissionless innovation, will be hobbled and restricted in a Nanny Net.

For another review of The Cyber Effect see here

Lessons from “The Newsroom”

The excellent Aaron Sorkin created series “The Newsroom” is presently screening on Soho. In Series 2, Episode 3 (Willie Pete) the following exchange takes place between Will McAvoy (Jeff Bridges) and Charlie Skinner (Sam Waterson)

Will: There’s a third option,It involves having faith in my mission to civilize… The bitchiness has to stop, Charlie. We’re inhaling it like it’s a carbon emission blowing out the exhaust pipe of the crosstown bus we’re stuck behind… All it takes is one great man. A friend of the angels… There are things we can do, Charlie. Things that we can do everyday. Things that are free. We can be one inch nicer to each other. An inch more polite. We can be decent.”

Charlie: Maybe,but in the meantime we should just keep lying.

It was what Will said at the end of his dialogue that attracted me. The observation that we can be nicer, more polite, decent. The clear inference is that in many of our dealings with one another we are not.

This caused me to reflect. Aaron Sorkin’s shows tend to do that. In many ways “The Newsroom” and The West Wing” are idealised versions of TV journalism and US Presidential politics – not as they necessarily are, but what they could be. The reflection was not so much on journalism but upon the way that we behave towards one another and what new and mainstream media convey to us in terms of behaviour and what may or may not be the norm. (I am going to avoid the use of the words “appropriate” or “acceptable” because they come with a load of value-ridden excess baggage)

Let’s think for a moment about what Will said. Perhaps using a word like “nice” isn’t the best (A very good friend of mine used to object when it was used in the wrong way) but it conveys the message, especially when coupled with “polite” and “decent”. I don’t think that this is necessarily a matter of etiquette, but it is a question of what used to be described as good manners – something lacking in many respects these days. Good manners, treating people nicely, decently and politely all has to do with respect. Some might claim that many people are undeserving of respect, but I respectfully disagree. We are human beings together on the planet. We are social beings and irrespective of how good or bad individuals might be they all, as counsel (now a Judge) once said to me, people of worth. The fact of their existence means that in some way they may enrich the lives of others and bring something to the table. And for that every human being, every person is entitled to respect – respect for their being, for their individuality, for their identity and for their character. As I say, many people may do terrible things but we should respect them for their humanness and their existence.

I think that a lot of the problems that we see today flow from the fact that we are not taught to respect others, nor do we understand why we should. This starts from the derogatory exchange that one might have with another in a supermarket checkout to a horrible exhibition of bullying – and bullying – that most disrespectful of conduct – occurs not only in the school yard but through all strata of society.

Much of the exchange between Will and Charlie was in the context of the news media but it was more than that. It was against a backdrop of an audience at a candidates debate who booed a serviceman – a person who had put his life on the line for his country – who wanted the “gays in the military” issue addressed. But I won’t look at the news media context. I think that what Will had to say in that arena speaks for itself.

There are many areas where those who should know better respond in an ungracious way to others – who aggressively challenge, who interrupt, who denigrate, especially when they have the last word, who are abusive, unkind, disrespectful, uncaring of the distress that they might cause to others. The examples are legion – those who force their way into a lane on the motorway and who won’t wait in the queue and think that a flipped off wave justifies their behaviour. Those who insist on carrying on phone conversations while travelling on the motorway (not only disrespectful and unsafe but unlawful as well) and holding up traffic. Those who park across a driveway while collecting their kids from school and who, when politely asked to move, tell their interlocutor to F*** off. And that is just in the context of road use. The level of confrontation, of aggression that we experience in our day to day lives is quite extraordinary and concerning. Is it any wonder that our kids reflect what they see.

The only thing is that the problem with kids and their aggressive behaviour is recognised as bullying and we cry out that we must do something about it without realising that the problem lies within ourselves. We have met the enemy – as Pogo said – and he is us. We set the examples and then we complain about it when we see those behaviours reflected in our kids.

I wonder in the long run whether or not Will’s ideal of being a little nicer, more decent, kinder is just that – an ideal. And as I have been writing this – and it has been a piece that I have picked up and put down – I have struggled with dealing with a theme that requires a critical examination of behaviour in order to find a way forward for improvement. And then I came across a piece in the New York Times Magazine for 7 August 2013. It is by Joel Lovell and it is entitled “George Saunders’ Advice to Graduates”. 

Saunders has been described as a writers’ writer. In a profile published in the New York Times on 3 January 2013 the following was said

“Tobias Wolff, who taught Saunders when he was in the graduate writing program at Syracuse in the mid-’80s, said, “He’s been one of the luminous spots of our literature for the past 20 years,” and then added what may be the most elegant compliment I’ve ever heard paid to another person: “He’s such a generous spirit, you’d be embarrassed to behave in a small way around him.” And Mary Karr, who has been a colleague of Saunders’s at Syracuse since he joined the faculty in the mid-’90s (and who also, incidentally, is a practicing Catholic with a wonderful singing voice and a spectacularly inventive foul mouth), told me, “I think he’s the best short-story writer in English alive.”

Have a look at Saunders’ advice to graduates. It is not a hard read and the focus is on a very large regret. Saunders’ regret is associated with the issues that I am concerned about in this piece – lack of respect, niceness, politeness, decency, Saunders’ says that what he regrets most in life are failures of kindness. He puts it this way:

What I regret most in my life are failures of kindness. 

Those moments when another human being was there, in front of me, suffering, and I responded…sensibly.  Reservedly.  Mildly.

Or, to look at it from the other end of the telescope:  Who, in your life, do you remember most fondly, with the most undeniable feelings of warmth?

Those who were kindest to you, I bet.

It’s a little facile, maybe, and certainly hard to implement, but I’d say, as a goal in life, you could do worse than: Try to be kinder.

Now, the million-dollar question:  What’s our problem?  Why aren’t we kinder?

Here’s what I think:

Each of us is born with a series of built-in confusions that are probably somehow Darwinian.  These are: (1) we’re central to the universe (that is, our personal story is the main and most interesting story, the only story, really); (2) we’re separate from the universe (there’s US and then, out there, all that other junk – dogs and swing-sets, and the State of Nebraska and low-hanging clouds and, you know, other people), and (3) we’re permanent (death is real, o.k., sure – for you, but not for me).

Now, we don’t really believe these things – intellectually we know better – but we believe them viscerally, and live by them, and they cause us to prioritize our own needs over the needs of others, even though what we really want, in our hearts, is to be less selfish, more aware of what’s actually happening in the present moment, more open, and more loving.

So, the second million-dollar question:  How might we DO this?  How might we become more loving, more open, less selfish, more present, less delusional, etc., etc?

Well, yes, good question.

Unfortunately, I only have three minutes left.

So let me just say this.  There are ways.  You already know that because, in your life, there have been High Kindness periods and Low Kindness periods, and you know what inclined you toward the former and away from the latter.  Education is good; immersing ourselves in a work of art: good; prayer is good; meditation’s good; a frank talk with a dear friend;  establishing ourselves in some kind of spiritual tradition – recognizing that there have been countless really smart people before us who have asked these same questions and left behind answers for us.

Because kindness, it turns out, is hard – it starts out all rainbows and puppy dogs, and expands to include…well,everything.

One thing in our favor:  some of this “becoming kinder” happens naturally, with age.  It might be a simple matter of attrition:  as we get older, we come to see how useless it is to be selfish – how illogical, really.  We come to love other people and are thereby counter-instructed in our own centrality.  We get our butts kicked by real life, and people come to our defense, and help us, and we learn that we’re not separate, and don’t want to be.  We see people near and dear to us dropping away, and are gradually convinced that maybe we too will drop away (someday, a long time from now).  Most people, as they age, become less selfish and more loving.  I think this is true.  The great Syracuse poet, Hayden Carruth, said, in a poem written near the end of his life, that he was “mostly Love, now.”

I guess kindness is a term that encompasses niceness, politeness and decency – respect for others – you don’t have to like them, but they are human beings, they have their own sense of worth and dignity and are entitled, at the very least, to respect. And that respect can be manifested by a nice attitude, by polite speech and a polite attitude, by listening as well as talking and by decency of conduct. As Will said – we can be decent.  We live in hope.