Withdrawing the “Hate Speech” Amendment

February 10, 2023 The IT Countrey Justice "Hate Speech", Dangerous Speech, Freedom of Expression, Freedom of Speech

Earlier this week it was announced that the Govenment intended to witrhdraw the Human Rights (Religous) Amendment Bill. The Bill was designed to deal with what is generally referred to as “hate speech” against religous groups. The issue is now going to be referred to the Law Commission. The terms of reference for the Law Commission have yet to be released but I would imagine that they will be considerably wider than “hate speech” againts religous groups.

I made a submission the the Select Committee on the Bill. I thought that I would make it available via this medium, given that I have earlier posted on the subject of “hate speech” and freedom of expression.

The submission follows:

Summary of the Argument

My starting point is that this amendment is problematic and should not proceed in its current form.

In summary I consider that the amendment constitutes an unjustified interference with the freedom of expression guaranteed under the New Zealand Bill of Rights Act 1990 (section 14) and the right of a person guaranteed under the New Zealand Bill of Rights Act 1990 (section 15) to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

In addition, I submit that the proposed amendment is unduly discriminatory for it protects those who have a religious belief. It offers no protection for those who do not have such belief but who have an ethical belief. To be consistent, if the Legislature wishes to protect belief systems (whether religious or otherwise) there should be protection for those who subscribe to ethical belief systems.

Thirdly I submit that if there is to be protection for those who practice religious or ethical beliefs, there should be an exception similar to that which appears in section 29J of the Public Order Act 1986 (United Kingdom).

There are also some definitional difficulties. “Religious belief” is not defined whereas in the principal Act ethical belief is clearly defined. My suggestion (which I shall develop in the submission) is that the term “religious belief” should be substituted with “faith based belief”.

The term “harm” is not defined and should be clarified. At the moment the term is too wide and imprecise and could well result in an unjustified limitation on the freedom of expression.

Discussion

Bill of Rights Act Issues

The starting point for a discussion of this amendment is that it constitutes an interference with the freedom of expression as well as having an impact upon the freedom of religion guaranteed under the New Zealand Bill of Rights Act 1990 (NZBORA).

Any interference with the rights guaranteed under NZBORA should be limited to that which is absolutely necessary to protect a group from a clearly defined outcome.

The proposed amendment poses some difficulties insofar as the limitation of these rights is concerned. In a number of respects the two rights are entwined. The religious belief right involves the manifestation or witness of that belief coupled with the practice or teaching of that belief. This necessarily involves communication at which stage the freedom of expression right is engaged.

Because faith-based belief is strongly held, discussions surrounding doctrine or belief systems can become highly contentious and emotive. Care must be taken to ensure that the spirited nature of faith-based debate is not inhibited.

If there is to be a restriction of the NZBORA rights to which I have referred, those restrictions must be clearly expressed. As the proposal in the Bill stands this clarity is absent.

The extent of the restriction of a NZBORA right must be necessary. The following is a test for the scope of such necessity.

The Scope of Necessity

Without the requirement to comply with NZBORA, restrictions on expression could fall within what is referred to as the “harmful tendency test”.

This is based on a vague, general fear that the speech might indirectly contribute to some possible harm at some indefinite future time. This test is quite extensive in its effect and could allow the State to punish speech that contained ideas that it opposed or did not favour. That includes speech that criticized government policies or officials.

The provisions of NZBORA and the fact that a restriction on a right must be necessary demands a higher test. This stricter test is known as the “emergency” test. Under this test the State could punish speech only when it poses an emergency – that is when it directly, demonstrably and imminently causes certain specific, objectively ascertainable serious harms that cannot be averted other than by censorship. This would fulfil the necessity requirement for an abrogation of a NZBORA right.

The issue then is whether the language of the amendment falls with the emergency principle or whether it is more oriented towards a harmful tendency model.

I suggest that the language which makes unlawful excite hostility or ill will against or bring into contempt or ridicule a religious group does not contain the necessary element of immediacy of harm that would bring the speech within the “emergency” test and therefore demonstrates that the amendment falls within the “harmful tendency” test.

It is submitted that this is insufficient to warrant an abrogation of the rights under NZBORA guaranteed for section 14 and 15. The insufficiency of language is further demonstrated by a semantic analysis.

The words ‘excite hostility against’ or ‘bring into contempt’ any group (s.61) or threatening, abusive, or insulting and which are likely to ‘excite hostility or ill will against, or bring into contempt or ridicule’ (s.131) are imprecise.

The use of the word “hostility” is a part of this absence of precision. “Hostility” and its close relation “hatred” are powerful words.

The emotion of “hatred” or “hostility” is far deeper and more visceral than that which may be engendered by abusive or insulting speech. Abusive or insulting speech may be rude, uncouth, ill-mannered or offensive. It may prompt a reaction or a response from the person against whom it is directed. But it would be unlikely to be able to go so far as to stir up hostility towards a group of people based on a shared characteristic.

To engender the incitement of hatred or hostility the language used would have to be far stronger. For this reason it is my submission that the language must be such that it stirs up, maintains or normalizes violent hostility against any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins or religion of that group of persons or that a person says or otherwise publishes or communicates any words or material that explicitly or implicitly calls for or threatens violence or hostile action against such group of persons.

This emphasizes the importance of the speech engendering or threatening violence or hostile action. There must be an immediacy of harm or threat – what is referred to as the “emergency” principle – a clear and present danger arising from the speech.

It eliminates the slippery and emotive concept of hate or hostility and rather emphasizes the importance of characterizing the speech as dangerous. The emphasis is upon hostile speech because hostility is more capable of being resolved into action.

The quality of the published material and what it seeks to achieve is related to the concepts of violence and hostility but removes the qualities of threat, abuse or insult.

The use of those terms in any proposed legislation would water down robust speech to virtually nothing and would go far beyond what is generally understood by “hate” speech. As I have said, language may be offensive, hurtful or insulting without necessarily setting out to stir up hostility or hostile action and robust debate must be encouraged as well as a need for audiences to be robust and resilient themselves.

The “Religion” Problem

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 in the March 2019 terrorist attack? And if religious groups are to be added, extreme care must be taken not to unnecessarily abrogate the NZBORA rights contained in sections 14 and 15.

The difficulty with including threatening, abusive or insulting language against groups based upon religion means that not only would Islamaphobic “dangerous speech” be caught, but so too would the anti-Christian, anti-West, anti “Crusader” rhetoric of radical Islamic jihadi groups be caught.

Would the 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?^[1]

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.

A further example may be seen in statements of faith.

The Shema Yisrael provides an example of the potential for faith based disputation.

The Shema is the centrepiece of morning and evening Jewish prayers. It states as follows:

Sh’ma Yisrael Adonai Eloheinu Adonai Eḥad: “Hear, O Israel: the LORD is our God, the LORD is One.”

A further example could be taken from Islam’s Shahada “”Lā ʾIlāha ʾIllā Allah, Muḥammadun Rasūl Allah” – “There is no God but God and Muhammad is His Prophet”.

Both statements occupy a number of different levels of meaning.

First, to the devout Muslim or Jew it is a statement of belief and faith.

Secondly, to the devout Muslim or Jew it is a statement of fact – although that cannot be empirically proven and that qualification alone would challenge a devout Muslim.

Thirdly, it is a challenge to any other belief systems that if they hold that there is any other God but Allah or the LORD (Adonai), their belief is false. To many true believers in other religions that could amount to a serious and aggressive challenge.

Thus it can be seen that in a statement as seemingly innocent as the Shahada and the Shema Yisrael there are layers of meaning that could be considered abusive or insulting yet represent some of the fundamentals of muscular and vigorous religious debate.

These examples illustrate 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.

At the moment the test in the Human Rights Act is the “harmful tendency” test – an approach that is problematical in that there need be no immediacy of danger. This contrasts with the “immediacy” or “emergency” test which requires that the speech carry with it a threat of imminent danger of physical harm and which I have discussed above. This more stringent emergency test would bring the speech within a justifiable limitation of the s. 14 NZBORA guarantee of freedom of expression.

Those who advocate a “harmful tendency” test claim that although there may be no immediacy of harm, nevertheless repetition of the message may elevate the risk. In my view it would have to be proven that mere repetition removes the speech from the “viewpoint neutral harmful tendency” position to that of immediacy of harm.

For all the reasons above, I do not consider that it is necessary for religious groups to be included in sections 61 and 131 of the Human Rights Act.

In the event that it is decided that religious groups should be included in sections 61 and 131, I emphasise the necessity for precision in the language of the sections.

I am also of the view that to merely provide protection for religious groups is discriminatory in and of itself. I develop this in the next section of this submission.

The United Kingdom Position

The issue of restrictions on religious speech are the subject of a specific exception in the UK. I refer to section 29J of the Public Order Act 1986 (United Kingdom), which provides:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

The Christchurch Royal Commission’s view was that such an exception would make the offence of inciting racial or religious disharmony – especially the latter – unworkable.

It seems that the Royal Commission misunderstands the nuance behind the exception.

The UK exception goes not to the workability of the proposed amendment but rather to the quality of the discourse and recognises that religious debate can become passionate and heated which is a historical fact. Differences over belief systems have long prompted vigorous and highly charged discussion and language.

The exception does not go so far as to allow for the advocacy of violence or hostile action which would fulfil the immediacy or emergency test. It could be argued that because the immediacy test targets consequences rather than content, an exception such as that appearing in section 28J is not required, in that section 29J merely states examples of freedom of expression which are likely to occur and have occurred over the centuries in religious debate.

However, the inclusion of such an exception would provide protection for adherents of all religious faiths who wish to engage in the robust debate that often surrounds matters of belief.

Definitional Difficulties

Excite Hostility

The language of the proposal adopts the “harmful tendency” approach to limiting the freedom of expression. This restricts expression based on an as yet undetermined potential for harm rather than actual or real threat of harm.

In this respect the use of the words “excite hostility” results in imprecision. I suggest the use of the word “incite” for the following reasons:

The verb “to incite” means to urge or spur on; to stir up, animate, instigate or stimulate to do something or towards some action.[2]

“Stirring up” could be said to be an action that precedes incitement, although it is included as part of the definition cited above. Incitement, however, goes further. It suggests that the inciter expects and intends some sort of action or response to the words that are being used.

Incitement goes beyond engendering an emotional response (which is what hatred or hostility is). It seeks the deployment of hatred or hostility towards some end which aligns with my proposal above that hatred or hostility should be considered within the context of threatened violence or hostile action.

If “incitement” or “stirring up” is not associated with an active consequence it would mean that the law is prohibiting the instigation of an emotion without an associated action.

It can be no offence to harbour an emotion or a belief that is so strongly held in a negative sense that it amounts to hatred or hostility. To do so would be to create a “thought crime”. The criminal law addresses behaviour. It does not address feelings. In the case of hatred or hostility it must be manifested in some form of behaviour or threatened behaviour.

It should be noted that the words “stir up” appear in corresponding legislation in the United Kingdom, rather than the word excite. The verb “excite” is used in a slightly unusual sense in section 131 of the Human Rights Act and suggests causation. This means that an “intent to excite” cannot be established without showing an intention to either cause “hostility or ill-will” that did not previously exist, or enhance or increase pre-existing “hostility or ill-will”. It logically follows that preaching hatred to the already converted would not breach section 131.

It will be seen from the above discussion that a greater degree of precision is required in the proposed language of the amendment.

Religious\Ethical Belief?

It should be noted that other prohibited areas of discrimination include ethical belief, which is defined as the lack of a religious belief, whether in respect of a particular religion or religions or all religions.

If the Legislature were to be serious and evenhanded about faith or non-faith based types of discrimination, ethical belief should have been included.

Although ethical belief is clearly defined, religious belief is not. What is religious belief. Does it mean theism in the broadest sense or a belief system surrounding a certain faith based credo such as Buddhism, Islam, Shintoism or Christianity. Religious belief, notwithstanding the definition, can and often does include ethical belief. Christianity has significant ethical underpinnings associated with a faith-based credo.

In my view, to be consistent in approach with definition, the term “religious belief” should be replaced with “faith-based belief”. This term is used in the explanatory statement and more correctly defines the nature of the belief and more clearly distinguishes it from “ethical belief”

Harm

The term “harm” is not defined and this should be clarified.

“Harm” is defined in the Harmful Digital Communications Act 2015 (HDCA) as meaning “serious emotional distress”. It should be noted that the HDCA provides remedies for individuals in the context of electronic communications. It is an example of “internet exceptionalism” for the nature of the wrongs specified in that legislation do not exist in the “real” or “kinetic” world.

Within that context there would be difficulties for faith-based groups to establish that harm had been caused to the group rather than to any individuals within the group. The responses of the various members of a group may vary widely to any perceived antagonistic statement.

This highlights the need for precision in the approach to be taken. The “emergency” test would mean an immediacy of threat of physical harm to a group or to members of a group based upon their faith.

As matters stand there is little if any evidence of an immediate threat. The Regulatory Impact Statement which points to a lack of evidence of the harm identified.

In my submission the term harm should be defined as “a realistic threat or danger of physical harm” which would clearly encompass the “emergency” test.

Conclusion

In conclusion I submit as follows:

The references to exciting hostility or causing harm should be redefined to for the abrogation of a NZBORA right
There should be a clear exception that would allow for spirited, robust and at time confrontation religious debate similar to the provisions of section 29J of the Public Order Act 1986 (United Kingdom)
It should be made clear that the protections proposed and available under sections 131 and 161 of the Human Rights Act should not only extend to religious belief but also to ethical belief as defined in the principal Act.

[1] 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

[2] Oxford English Dictionary 2^nd ed.

Religious “Hate Speech” under the Human Rights Act 1993

November 20, 2022 The IT Countrey Justice "Hate Speech", Dangerous Speech, Freedom of Expression, Freedom of Speech

Introduction

The Minister of Justice has released the long-awaited “hate speech” proposals. The press release dated 19 November 2022 states:

“Currently, under the Human Rights Act 1993, it is illegal to publish or distribute threatening, abusive, or insulting words likely to ‘excite hostility against’ or ‘bring into contempt’ any group on the grounds of colour, race, ethnic or national origins. Those grounds will now be extended, in both the civil (section 61) and criminal (section 131) provisions, to cover religious belief.”

This article considers the policy that has been announced and is a “first impression” overview of the proposal.

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.

Human Rights Act – Sections 61 and 131

The Act prohibits a number of discriminatory practices in relation to various activities and services.^[1] It also prohibits indirect discrimination which is an effects based form of activity.^[2] Victimisation or less favourable treatment based on making certain disclosures is prohibited.^[3] Discrimination in advertising along with provisions dealing with sexual or racial harassment are the subject of provisions.^[4]

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.[5]

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:

Likely to excite hostility against or
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.

Section 131 of the Human Rights Act 1993 creates the offence of inciting racial disharmony[6]. The unlawfulness of the communication in s.61 becomes an offence under s. 131. Pursuant to section 132 a prosecution for an offence under section 131 requires the approval of the Attorney-General.

These provisions could well apply to “dangerous speech” – a terms that I prefer to the emotionally overburdened term “hate speech”.

Is it necessary, therefore, to extend the existing categories in sections 61 and 131 to include religion.

Religion

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.

For some groups such a statement may be an invitation to violence against the speaker.

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

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.

At the moment the test in the Human Rights Act is what may be called a “harmful tendency” test – an approach that is problematical in that there need be no immediacy of danger. This contrasts with the “immediacy” or “emergency” test which requires that the speech carry with it a threat of imminent danger of physical harm. This more stringent test would bring the speech within a justifiable limitation of the s. 14 NZBORA guarantee of freedom of expression.

Those who advocate a “harmful tendency” test claim that although there may be no immediacy of harm, nevertheless repetition of the message may elevate the risk. In my view it would have to be proven that mere repetition removes the speech from the viewpoint neutral harmful tendency position to that of immediacy of harm.

The UK Approach

The issue of restrictions on religious speech are the subject of a specific exception in the UK. I refer to section 29J of the Public Order Act 1986 (United Kingdom), which provides:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

The Christchurch Royal Commission’s view was that such an exception would make the offence of inciting racial or religious disharmony – especially the latter – unworkable. This is correct if indeed it were deemed necessary to have religion included in the Human Rights Act categories. It seems that the Royal Commission was putting the cart before the horse.

The UK exception goes to the quality of the discourse and recognises that religious debate can become passionate and heated.

The exception does not go so far as to allow for the advocacy of violence or hostile action which which would fulfil the immediacy or emergency test. It could be argued that because the immediacy test targets consequences rather than content, an exception such as that appearing in section 28J is not required, in that section 29J merely states examples of freedom of expression which are likely to occur and have occurred over the centuries in religious debate.

However, the inclusion of such an exception would provide protection for adherents of all religious faiths who wish to engage in the robust debate that often surrounds matters of belief.

Conclusion

Towards the end of her press release the Minister made the following comment:

“Some of the debate on this topic over the last year been disappointing, and at times deliberately divisive and misleading, particularly in regard to the proposals that were out for consultation. This is not, and never has been, about the Government wanting to restrict free speech.”

There can be no doubt that this Government characterises dissent or a contrary view as misleading or misinformation. The Minister’s comment continues that hostility towards opposing views. To characterise debate as “disappointing” fails to recognise the importance of debate and the contending views that are present in the community.

Her last sentence is naïve in the extreme. The proposed amendment, while constituting a significant retreat from early pronouncements on the subject of “hate speech” is all about a restriction on freedom of expression – a concept that is wider than “freedom of speech”. People should not only be able to articulate a point of view. Others have a right to hear it.

Perhaps the Minister needs to be made aware of the fact that section 14 NZBORA guarantee not only protects the outward flow of communication – the act of communicating or articulating an idea – but the inward flow as well – the reception of a communication.

In my opinion the proposed change has not been justified and should not be the subject of an amendment to the Human Rights Act 1993.

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

[2] Ibid section 65.

[3] Ibid section 66

[4] Ibid sections 67 and 69.

[5] 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”.

[6] The provisions of section 131 state:

Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $7,000 who, with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons,—
publishes or distributes written matter which is threatening, abusive, or insulting, or broadcasts by means of radio or television words which are threatening, abusive, or insulting; or
uses 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,—

being matter or words likely to excite hostility or ill-will against, or bring into contempt or ridicule, any such group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.

For the purposes of this section, publishes or distributes and written matter have the meaning given to them in section 61.

[7] 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

Eroding Freedom of Expression

October 18, 2022 The IT Countrey Justice Dangerous Speech, Democracy, Freedom of Expression, Liberty, Misinformation, Technology Regulation

Introduction

There is an ambivalence in New Zealand towards freedom of expression. Freedom of expression is guaranteed in the New Zealand Bill of Rights Act 1990. It guarantees not only the expression of information – the outward flow – but also the receipt of information – the inward flow.

The ambivalence has been growing. Freedom of expression has been pushed to the margins. Although, with a few exceptions, the Government has not actively or outwardly restricted freedom of expression it has nevertheless narrowed the scope of what may be considered acceptable.

The narrowing of scope has been led by the Prime Minister, Ms. Jacinda Ardern. Ms. Ardern is a trained communicator in that she holds a degree of Bachelor of Communication Studies (BCS) in politics and public relations.

Public relations is the practice of managing and disseminating information from an individual or an organization – in her case the Government – to the public in order to influence their perception. Ms. Ardern has done this very successfully. But in managing and disseminating the Government message she has been very careful to ensure that contrary views, criticism and contradiction are pushed to the sideline, so that those views are diminished and devalued and are of no account.

In this piece I trace the trajectory of the erosions of freedom of expression and the growth of ambivalence towards the expression of contrary opinions. I start with the Christchurch Call – perhaps a curious and non-contentious beginning but one that, as it has progressed, has chilling consequences for freedom of expression. I follow with the “sole source of truth” declaration and then embark upon an excursion into the validation of discrimination as an example of the blasé and contemptuous attitude of the Prime Minister to those who chose not to be vaccinated and who, by implication, express a contrarian perspective. I shall conclude with the latest example of Ms. Ardern’s erosion of the freedom of expression when she addressed no lesser a forum than the General Assembly of the United Nations.

The Christchurch Call

I have written elsewhere about some of the problems with the Christchurch Call. The call to regulate content online is a difficult one as I have pointed out elsewhere. I see this as a starting point for what appears to be an ambivalence or a relativistic approach towards freedom of expression.

The Christchurch Call is a community of over 120 governments, online service providers, and civil society organisations acting together to eliminate terrorist and violent extremist content online. With that objective there can be little dispute. The difficulty is that extremist content, abhorrent though it might be, should still be allowed a voice as long as it does not advocate imminent harm to people or property. For a discussion of assessing whether expression should be stifled or censored see here.

The Christchurch Call has noble goals but there are a number of concerning features about it.

It is government led – the principal drivers for the Call are national governments. Whilst preventing terrorism is necessary for the safety of civil society, such projects may develop “mission creep” and although there is a recognition of the importance of the freedom of expression, “extremism” or “extremist speech” are slippery concepts and depend very much upon the eye of the beholder and the ear of the listener.

As an example of the issue of “mission creep” the scope of the areas of concern for the Call are expanding to include algorithms, radicalization and gender. The targets of extremism have been expanded to women, LGBTQIA+ communities, youth, and intersectional communities – quite a reach beyond the terrorist lone wolf shooter or bomber and a clear indicator that what the Call is really about is “hate speech.” I have discussed whether “dangerous speech is a better term and how it should be dealt with here and here.

The Call seeks to achieve a “safer Internet” and has enlisted not only national governments but private organisations and some of the tech platforms.

The Call states that

“the future of the internet and the future of our free, open, societies are intertwined. As we look ahead our legacy must be a free, open, secure and interconnected global internet as a force for good, a place where human rights are promoted and upheld and where technology contributes to social mobility and empowerment for all.”

These are laudable goals but the subtext is one of overall control and more importantly overall control of a communications medium. And such control must necessarily impact upon freedom of expression.

The final paragraph of the 2022 Communique issued by Ms Jacinda Ardern and M. Emmanuel Macron is a chilling example of the possible “mission creep” to which reference has already been made.

“Ahead of the Paris Peace Forum, New Zealand, France, and other Call community members with an interest will consider some of these related issues – including disinformation, harassment, abuse, and hatred online, and issues affecting youth – to understand how we might apply what we have learned working on the Christchurch Call, where we can support and engage on related initiatives such as Tech for Democracy, the Summit for Democracy, the Freedom Online Coalition, the Declaration for the Future of the Internet, the Aqaba Process, the Global Partnership for Action on Gender Based Online Harassment and Abuse, the Global Partnership on Artificial Intelligence, and the International Call to Stand up for Children’s Rights Online, and where there is multistakeholder interest in new work programmes separate to the Call.”

Clearly the Call methodologies and approach are intended to expand to other areas and issues that are distinct and separate from the central goal of terrorism and extremist content that advocates violence.

This may not amount to a direct assault upon freedom of expression but it demonstrates the willingness with which State and Government actors and representatives are prepared to erode and whittle away freedom of expression from the margins. The use of generalized language such as “extremist” without a clear definition means that, as Humpty Dumpty said in Alice Through the Looking-Glass a word “ means just what I choose it to mean—neither more nor less.”

The Single Source of Truth

On 2^nd September 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.”

Although this pronouncement was made in the context of information about the COVID-19 pandemic it is clear that it goes much further.

The levels of meaning that can be drawn from this are as follows:

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

This statement discourages any sort of debate, any sort of discourse. Although the freedom of expression protected by the Bill of Rights Act 1990 guarantees the right to impart and receive information, the suggestion that any other person may be able to contribute to the debate is eliminated and the right is negated by the suggestions that no other information is needed apart from that of the State whose pronouncements are “truth” and any dissent should be dismissed.

It is certainly dangerous to the governed in a democracy for any politician, let alone a Prime Minister, to declare that they, or their Government, are a single source of truth.

The Validation of Discrimination

Once the vaccination programme got underway in New Zealand Ms. Ardern endorsed the emergence of a de facto two-tier society.

During a video interview, the PM admitted that the then rules granted vaccinated citizens more freedoms. Asked by a journalist from the New Zealand Herald who asked:

“You’ve basically said, and you probably don’t see it like this, but two different classes of people if you’re vaccinated or unvaccinated. If you’re vaccinated you have all these rights.” Ardern responded enthusiastically, nodding along as she replied: “That is what it is.” She continued:

“If you are still unvaccinated, not only will you be more at risk of catching COVID-19, but many of the freedoms others enjoy will be out of reach. No one wants that to happen but we need to minimize the threat of the virus, which is now mainly spreading amongst unvaccinated people.”

This from a a self-proclaimed believer in the “values of human rights, social justice [and] equality”

What was concerning was that there were many who actually endorsed the two-tier approach, creating division and hostility against those who were unvaccinated or chose not to be. Animus against anti-vaxxers and contrarians began to grow.

Although this may not have a lot to do with freedom of expression the divisiveness that the two-tier approach caused had the effect of marginalizing anyone who expressed a contrary view.

Misinformation and Disinformation

Coincidentally there developed over the pandemic emergency a greater use of two terms – misinformation and disinformation. These became predominantly news media shorthand for any statements that departed from the received wisdom of the government.

Misinformation meant information that misled. Disinformation was false information that the disseminator intended to mislead – in other words lies. The problem was and still is that those words lack certainty. It seems that they mean what people using them want them to mean and consequently they have taken on a perjorative aspect.

In June 2021 the Classification Office, headed by the then Chief Censor Mr David Shanks, released a paper entitled “The Edge of the Infodemic: Challenging Misinformation in Aotearoa”. It argued that misinformation\disinformation (neither term defined in the paper) was a problem, that it came primarily from Internet based sources, that when people rely on misinformation to make important decisions it can have a harmful impact on the health and safety of communities and can also affect us on a personal level, contributing to anxiety, anger, and mistrust.

It argues that that we should be looking at solutions that work to increase access to good information; lower the volume of misinformation; improve resilience to misinformation; and build levels of trust and social cohesion that can serve as a counter to the more harmful effects.

That this document emerged from the Classifications Office is something of a concern. The Classifications Office is involved in the administration of the Films, Videos and Publications Classification Act 1993. That Act allows for censorship of films, videos, publications, and online content in certain limited and restricted circumstances.

It seemed to be part of a concerted effort on the part of the Classifications Office to expand the scope of censorship and information control currently enjoyed by the Classification Office – another example of “mission creep”.

One of the issues that features in the paper is the importance of social cohesion. At first glance this concept is unremarkable. It suggests societal togetherness in the pursuit of common goals.

The problem is in what lies beneath the term. I would suggest that what it really suggests is conformity not so much in behaviour but in thought. The term implies collective agreement or acceptance of a particular narrative – in this case the sole truth that flows from the State.

Thus any expression of disagreement or dissent is seen not only as an affront to the ”truth” propagated by the State but as an assault or an attempt to erode the monolithic structure of “social cohesiveness” or the complacent conformity that the State requires.

Lest it be thought that I am focusing on a single example – “The Edge of the Infodemic” paper – at an Otago University conference about “Social Media and Democracy” in March 2021, Mr Shanks told the conference the way we regulate media is not fit for the future.

“We can be better than this. I think there’s some very obvious moves that we can do here to make the current regulatory system and framework more coherent for a digital environment.” [1]

Before that, in October 2019 Mr Shanks claimed that an entirely new media regulator may be required.[2]

At the Otago University Conference were two representatives of the Disinformation Project – the Director, Ms. Kate Hannah and Dr. Sanjana Hattotuwa. The Disinformation Project has been observing and analysing open source, publicly available data related to Covid-19 mis- and disinformation on social media, mainstream media, and in physical and other digital forms of information and knowledge dissemination.

From August 2020, the Project expanded its brief (yet more “mission creep”) beyond Covid-19 to consider mis- and disinformation ecosystems in New Zealand, including the seed and spread of ‘dangerous speech’, hateful expression, and criminal behaviour. The scope of the study involved looking at global trends, themes, narratives, and actors who influence online harms in New Zealand.

Although the Disinformation Project is not a State Actor, its commentary and thrust is directed towards material that is considered harmful because it is contrary to the received wisdom that is a part of the Government message. In this way, perhaps unintentionally, the Disinformation Project becomes complicit in the Government as the sole source of truth narrative.

To further emphasise the role of the Disinformation Project, the focus seems to have shifted from mis/disinformation about COVID-19 issues into the wider political scene. Dr Hattotuwa of the Disinformation project in commenting on the role of Voice for Freedom observed that the group skilfully avoids attempts to regulate mis and disinformation and suggests that Voice for Freedom represents a threat to democracy[3] Clearly from this comment the Disinformation Project is suggesting that there should be some form of regulation of mis or disinformation. In the meantime, as Stephen Judd of Fighting Against Conspiracy Theories Aotearoa (FACT), commenting upon contrarian candidates for local body elections, suggests

“People who hold a set of beliefs about the legitimacy of our institutions, and who are conspiracy theorists and who hide that because they think it would harm their chances of being elected, aren’t operating in good faith.

“So, one of the best things we can do is provide more publicity and exposure to candidates because that ultimately is what leads the public to have a fair view of what they are about.”

Thus we have developing a number of strands that seem to be directed towards suppressing or marginalizing dissent or disagreement. Although the Disinformation Project casts a sinister shadow over the terms, and although the Classification Office may see misinformation and disinformation as having potential objectionable qualities, the reality is that every expression of disagreement or dissent, every expression of a contrary view or opinion, every expression of a challenge to the State message is a part of the normal discourse of society. Disagreement is a fundamental aspect of being human. We all have differing points of view, beliefs, values and standards. And it is part of the democratic tradition that we should be able to express those views.

Of course, associated with that is the fact that those who disagree with us must have the right to express that disagreement. And so the cacophony of debate and the exchange of points of view takes place.

It may be that some points of view are strongly contrarian. Some points of view may be wrong-headed or fly in the fact of reason. But they have a right to be expressed and the speakers have a right to be heard in the same way that those to whom they are speaking have a right not to listen.

The problem is that from the State’s point of view, disagreement and dissent are being treated as inimical to the interests of the State. No longer can dissent be tolerated. It is seen as a weapon of opposition – which it frequently is – but so much so that such opposition is characterized as a war with the State.

One of the justifications for the firm line that has been taken by the State arises from the events of February – March 2022 – the Wellington Protest.

The Wellington Protest

The Wellington Protest and the occupation of the grounds of Parliament House in February-March 2022 represented the culmination of a number of contrarian protests against COVID 19 restrictions that had been taking place over the preceding months. The occupation and its violent end have been well covered in the media and do not need rehearsing here. Many people supporting the protesters drifted on and off the site but once the protest had been dispersed it became a symbol for everything that was bad about mis/disinformation and the expression of contrarian views.

Stuff presented a documentary – Fire and Fury – which represented the protest and those involved in a very unfavourable light. I have already commented on the unbalanced approach taken by the documentary, and that it seems to be an example of agitprop but it demonstrates a lack of tolerance about contrarian speech that seems extraordinary for a news media outlet that should be presenting a more balanced view.

The contrarians would suggest that perhaps aided and assisted by a significant influx of Government money to support mainstream news media and guard against mis/disinformation that Stuff and its opinions have been bought and sold. I could not comment on that for I have no evidence to support such an assertion.

However, from the Stuff perspective, the Wellington Protest and the Fire and Fury documentary has become a weapon with which to beat contrarians. Thus those who were standing for local body positions recently who had attended the Protest were identified without more – no examination of their policies; no opportunity for them to provide an explanation for their actions; no evidence of any sort of balance at all. Yet the article making some of these assertions, together with another which identified those who were and were not successful in local body elections were anything but balanced and afforded the contrarians no opportunity to reply or comment.[4] Perhaps the reason for this is that the authors were wary that to ask for comment meant giving the contrarians a platform.

The Wellington protest added fuel to Ms. Ardern’s approach to freedom of expression. She claimed, without identifying any evidence, that there was foreign influence involved in the misinformation. She said:

As we go through a process of accessing what is it that has allowed the growth of misinformation in this country and how do we address that, we will be at pains to ensure that it never becomes an excuse for the violent acts that have happened.

This provides a backdrop to Ms. Ardern’s speech to the United Nations.

The War on Disagreement

The “war with the State” approach to dissent and to disagreement was epitomized by Ms. Ardern, speaking at the United Nations in September 2022.

At the U.N. General Assembly on Friday, Ms. Ardern announced a new initiative “to help improve research and understanding of how a person’s online experiences are curated by automated processes,” saying the work, done in partnership with companies and non-profits, will be “important in understanding more about mis- and disinformation online – A challenge that we must as leaders address.”

It cannot be co-incidental that there had been a meeting of the Christchurch Call participants in New York shortly before Ms. Ardern’s speech.

In the course of the speech she made reference to the way that contrary speech can inhibit or frustrate progress in the implementation of Government policy.

She asked:

“After all, how do you successfully end a war if people are led to believe the reason for its existence is not only legal but noble? How do you tackle climate change if people do not believe it exists? How do you ensure the human rights of others are upheld, when they are subjected to hateful and dangerous rhetoric and ideology?”

She then moved on the discuss how speech and contrarian speech can be used as a weapon. By characterizing the “weapon-like” qualities of speech she shifts the focus from speech as a means of communicating contentious ideas to speech as a contrarian weapon against established thinking or government objectives.

Of course, this characterization of speech demonizes the speaker. It suggests that rather than a means of resolving difference and reaching consensus – or even recognizing that Government policy may not be the desire of the governed – there is a war between contending ideas. And that implies that at the end of the war there must be a winner. As far as Ms. Ardern is concerned, that winner must be the State.

Such a perspective completely ignores that the fact that governments govern with the consent of the governed. If the majority of the governed do not consent, is it suggested then that they are at war with their government?

She then expanded on the “weapons of war” metaphor, at the same time criticizing those who engage in contrarian speech.

“The weapons may be different but the goals of those who perpetuate them is often the same. To cause chaos and reduce the ability of others to defend themselves. To disband communities. To collapse the collective strength of countries who work together,”

But debate is the answer to contrarian speech. If speech is a weapon that may be used in a disruptive sense, that disruption can be answered by counter speech. At least with speech there is an equality of arms, and Ms. Ardern, as a graduate in communications studies, would be and is well skilled in massaging the message.

But she chose a different path. Without explicitly saying so she suggested that there were methods of countering speech that were other than debate, and clearly the subtext of the remarks that follow is directed towards the suppression of contrarian speech.

“But we have an opportunity here to ensure that these particular weapons of war do not become an established part of warfare. In these times, I am acutely aware of how easy it is to feel disheartened. We are facing many battles on many fronts…But there is cause for optimism. Because for every new weapon we face, there is a new tool to overcome it. For every attempt to push the world into chaos, is a collective conviction to bring us back to order. We have the means; we just need the collective will.”

This is the language of authoritarianism although it is expressed in more mellow terms. Given Ms. Ardern’s communication credentials she is able to make authoritarianism look acceptable. But it is, nevertheless, typical of the mindset of the tyrant.

Ms. Ardern is possessed of a high sense of the righteousness of her cause. She does not debate ideas. She rejects them or refutes the premises of opposition without engaging in debate. She therefore avoids confronting the uncomfortable reality that she may be wrong. And by rejecting and refuting she adopts an air of superiority that views dissent as evil and, because it has become “weaponized” it is too dangerous to allow.

It is perhaps evidence of that sense of righteousness that Ms. Ardern went to the UN and called upon the General Assembly, looking for support for her cause. She called upon the nations present to exercise their collective power to deal with this new weapon of war – contrarian speech.

But deeper than that what Ms. Ardern is talking about is ideas. What she is concerned about, what has been “weaponized” is the way that those ideas have been expressed. Ideas that conform with hers are benign. Ideas that conflict with hers must be stamped out. The days of debate are over.

Her speech focused on the alleged scourge of “mis and disinformation online”.

We must tackle it, she said. She acknowledged some people are concerned that “even the most light touch approaches to disinformation” could come across as being “hostile to the values of free speech”.

She is certainly right there. Her approach is indeed hostile to the values of free speech.

When she moved into the “weapons of war” metaphor she was essentially saying that war is speech. Words wound. Ideas kill.

Politicians and those who support the “official position” and who wring their hands over “misinformation” or “disinformation” are usually just talking about beliefs they don’t like. Mis\disinformation are words that are rendered meaningless by misuse.

Ms. Ardern gave climate-change scepticism as an example of one of those “weapons of war” that can cause “chaos”. “How do you tackle climate change if people do not believe it exists?” she asked.

Those who critique climate-change alarmism, those who call into question the ecolobby’s claims that billions will die and Earth will burn if we don’t drastically cut our carbon emissions, is an entirely legitimate political endeavour, contrarian though it might be. However, in treating it as a species of Flat Earthism, as “disinformation”, the new elites seek to demonise dissenters, to treat people whose views differ to their own as the intellectual equivalent of warmongers.

Activists, whose hype about the end of the world could genuinely be labelled misinformation, are never branded with that shaming word. That’s because misinformation doesn’t really mean misinformation anymore. It means dissent. Deviate from the consensus on anything from climate change to Covid and you run the risk of being labelled an evil disinformant.

Indeed, one of the most striking things about Ms. Ardern’s speech was her claim that if the elites ignore “misinformation”, then “the norms we all value” will be in danger. But for her it is dissent that is the enemy. Ms.Ardern does not want a single voice raised against her.

This is the most common cry of the 21st-century authoritarian – that contrarian speech can have a destabilising and even life-threatening impact, especially if it concerns big crises like climate change or Covid-19.

So “climate deniers” are a threat to the future of the human race and thus may be legitimately silenced. “Lockdown deniers” threaten to encourage the spread of viral infection and thus may be legitimately gagged. The spectre of crisis is cynically used to clamp down on anyone who dissents from the new global consensus.

To see how authoritarian the desire to clamp down on “misinformation” can be, it is worth considering other world leaders who used the platform of the UN to call for tougher controls on speech. Muhammadu Buhari, the ruler of Nigeria, focused on his nation’s “many unsavoury experiences with hate speech and divisive disinformation” and joined the calls for a clampdown on the “scourge of disinformation and misinformation”. Russia’s Foreign Minister, Sergey Lavrov, bemoaned the “disinformation” against his nation. Those supporting Ms. Ardern for standing up to “fake news” are implicitly cheering Buhari and Lavrov, too. They are as one with her when it comes to chasing “misinformation” from the public sphere.

Freedom of expression isn’t only threatened by obvious strongmen – like the rulers of Nigeria or the theocratic leaders of Iran. Ms. Ardern’s UN speech exposed the iron fist of authoritarianism that lurks within the velvet glove of liberal kindness.

Conclusion

In this piece I have mapped a trajectory of gradual erosions of freedom of expression in New Zealand. It is the job of an historian to look at the evidence and interpret it. The evidence in the matter or erosions of freedom of expression in New Zealand starts with the Christchurch Call. The initial target was discrete although the widening of the scope to include extremist speech was modified by the word “violent”.

It was at this time concerns were expressed about “hate speech” although that particular project, signalled by the Government as a matter of concern, appears to be of lesser importance than it was following the events of March 2019 and the Royal Commission Report.

A shift in focus came with the “single source of truth” comments by Ms. Ardern. Although these were outwardly intended to inspire confidence in the truth of the Government messaging, it nevertheless marginalized expressions of contrary opinion and in that respect ramped up the anti-contrarian messaging, consigning it to a “non-truth” category.

The messaging about truth, “non-truth” and the issues of mis and disinformation were picked up by various agencies such as the Disinformation Project and elements of the mainstream news media, reinforcing the Government messaging about the potential damage to Government programmes and policies.

The Wellington Protest fuelled Ms Ardern’s speech at the UN which concludes this discussion and it tells two stories. The first is the chilling of freedom of expression. The second is evidence of the chilling of freedom of expression. International news reports have expressed concern and indeed outrage at Ms. Ardern’s hostile attack on freedom of expression[5]. Has there been such concern expressed here in New Zealand by a news media that is the beneficiary of many millions of Government funding? The rest is silence.

[1] “Battle Against Online Harm beefs up censor’s power” Mediawatch, 21 March 2021 https://www.rnz.co.nz/

national/programmes/mediawatch/audio/2018788055/battle-against-online-harm-beefs-up-censor-spower

(last accessed 3 July 2022).

[2] https://www.stuff.co.nz/technology/digital-living/116776465/chief-censor-david-shanks-says-an-entirely-new-media-regulator-may-be-needed

[3] Charles Mitchell and Andrew Vance “Around 3000 people are running for council, more than 200 have promoted false information or conspiracies” Stuff 8 October 2022 Around 3000 people are running for council, more than 200 have promoted false information or conspiracies | Stuff.co.nz

[4] Andrea Vance and Charlie Mitchell Stuff 9 October 2022 https://www.stuff.co.nz/national/politics/local-body-elections/130114188/fewer-than-a-dozen-disinformation-candidates-elected-to-councils

[5] Rita Panahi “’Fake Queen of Empathy’:Ardern’s UN speech described as ‘disturbing, dystopian and dangerous’” Sky News 3 October 2022 https://www.skynews.com.au/opinion/rita-panahi/fake-queen-of-empathy-arderns-un-speech-described-as-disturbing-dystopian-and-dangerous/video/b8a7865217f1325e59884dd9a23b4c7b

The Times view on Jacinda Ardern and Liberty: Unfree Speech – The Time 3 October 2022 https://www.thetimes.co.uk/article/the-times-view-on-jacinda-ardern-and-liberty-unfree-speech-bqnqzp7mt

“Woke Queen Ardern wages war on free speech” The Australian 3 October 2022 https://www.theaustralian.com.au/subscribe/news/1/?sourceCode=TAWEB_WRE170_a_GGL&dest=https%3A%2F%2Fwww.theaustralian.com.au%2Fcommentary%2Fwoke-queen-arderns-war-on-free-speech%2Fnews-story%2Fb221012efa2dde6ab6e332f5c85626b9&memtype=anonymous&mode=premium&v21=dynamic-groupa-control-noscore&V21spcbehaviour=append

“New Zealand PM Jacinda Ardern condemned for comparing free speech to ‘weapons of war’ at UN” New York Post 29 September 2022 https://nypost.com/2022/09/29/new-zealand-pm-condemned-for-calling-free-speech-weapons-of-war-at-un/

“New Zealand prime minister condemned for calling to regulate free speech as a ‘weapon of war’ at UN” Alexander Hall, Fox News 28 September 2022 https://www.foxnews.com/media/new-zealand-prime-minister-condemned-calling-regulate-free-speech-weapon-war-un

Testing Expression

September 15, 2022 The IT Countrey Justice Censorship, Dangerous Speech, Freedom of Expression

Introduction

There seems to be an ambivalence in New Zealand about freedom of expression. Although the right to communicate and receive information is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990, the exercise of that right in certain circumstances is questioned. Indeed there seems to be a shift towards banning or censoring some manifestations of expression. In this piece I outline the approach that should be adopted to controversial speech, and the rare circumstances in which censorship – an extreme remedy – should be contemplated. The approach that I have developed owes much to the material in Professor Nadine Strossen’s excellent book “Hate: Why We Should Resist It With Free Speech Not Censorship”

The Approach

There are two major principles that must guide an assessment of whether or not an expression should be stifled, censored or punished. These principles are known as the emergency and viewpoint neutrality principle. They have developed in the United States but can operate as useful guidelines for an approach to the application of the freedom of expression guarantees in the New Zealand Bill of Rights Act 1990.

As freedom of expression jurisprudence developed in the United States of America, the Supreme Court held that a government could punish speech based on a feared “bad” or “harmful” tendency. This was based on a vague, general fear that the speech might indirectly contribute to some possible harm at some indefinite future time. This could be called the “harmful tendency” test. This test allowed the State to punish speech that contained ideas that it opposed or did not favour. That included speech that criticized government policies or officials.

The ”harmful tendency” approach was rejected by the US Supreme Court in the early twentieth century. It was replaced by a stricter test known as the “emergency” test. Under this test the State could punish speech only when it poses an emergency – that is when it directly, demonstrably and imminently causes certain specific, objectively ascertainable serious harms that cannot be averted other than by censorship. One of those other ways is by what has been described as “counterspeech”.

Counterspeech counters or responds to speech with a message that the speaker rejects. Counterspeech may address various audiences including the speaker and those who share the speaker’s views, the people whom the speech disparages and the general public. It may include denunciations and refutations of the message. It may provide support for persons who the speech disparages. It may include information that seeks to alter the views of the speaker and those who may be sympathetic to those views. If speech does not satisfy the emergency test, the proper response is counterspeech.

Speech should not be the subject of State interference solely because the message is unpleasant, discomforting, disfavoured or feared to be dangerous by the State. This is known as “content or viewpoint neutrality”. This approach prevents the State from regulating speech simply because the speech’s message, idea or viewpoint is unpleasant, discomforting, offensive, disfavoured or feared to be dangerous by government officials or community members. That approach – what could be called “viewpoint discriminatory” regulation – would attack individual liberty but also democratic principles. Officials could use it to suppress unpopular idea or information or manipulate public debate.

Censoring speech because it is disfavoured, no matter how deeply, violates the viewpoint neutrality principle. That principle is also violated when the State suppresses speech about public issues. This can include “hate speech” simply because its views might have a disturbing impact upon the emotions or psyches of some audience members. The State may not punish “hate speech” or speech with other messages simply because of its offensive, discomforting, disfavoured, disturbing or feared message.

Counterspeech is available to address such messages. Only when the speech crosses the threshold into the emergency test – that is when it directly, demonstrably and imminently causes certain specific, objectively ascertainable serious harms that cannot be averted by other than censorship – may the State intervene.

I referred to “hate speech” in the preceding paragraph. I have put it in quotation marks. This is because the term lacks specificity of meaning. Its generally understood core meaning is speech that expresses hateful or discriminatory views about certain groups that historically have been subject to discrimination such as people of colour, Jews, Muslims, women and LGBTQ persons, or about certain characteristics that have been the basis for discrimination such as race, gender, religion and sexual orientation. It is not speech that the listener hates to hear. Only when the speech crosses the threshold and satisfies the emergency test should the State intervene. It is for that reason that I prefer to refer to such speech as dangerous speech because it poses a clear and present danger of serious physical harm.

In New Zealand we have a number of State interventions in the area of speech regulation. These can be found in the Films, Videos and Publications Classification Act 1993, the Harmful Digital Communications Act 2015 and the various sections of the Crimes Act 1961 and the Summary Offences Act 1981 dealing with threatening language or behaviour.

Some of these pieces of legislation provide examples of the emergency test in action. For the provisions of the Harmful Digital Communications Act to be engaged serious emotional distress (harm) must be suffered. Criminal penalties are attracted if the person posting the digital material has the requisite intention to post the material with the associated intention of causing serious emotional distress. Thus actual harm is an element that engages legislative intervention. Mere offence or disfavour is not sufficient.

The declaring of material to be objectionable under the Films, Videos and Publications Classification Act 1993 leans towards a harmful tendency test. Material may be objectionable if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good. This definition suggests that the particular publication may be injurious to the public good – not as an imminent threat – but at some indefinite future time.

The Classification Office is careful to ensure that its determinations fall within the ambit of the categories expressed in the definition of objectionable. Recently, however, there have been a couple of examples where political expression – albeit abhorrent – has been classified as objectionable. However, unless the level of abhorrence comes within the statute it can be addressed by counterspeech.

One of the difficulties facing freedom of expression in New Zealand lies in the climate of fear that has generated over the period of the Covid pandemic. There has been fear about the consequences of the disease, fear if the various directives of the government are not complied with, and fear arising from the expression of contrary views.

Anti-vax sentiments have morphed into anti-government protests and those who express contrarian views have been accused of spreading misinformation and disinformation. All of these views are in the main disfavoured, disturbing or adding to the climate of fear. So much so that the former Chief Censor lent the weight of his office to a publication about misinformation and disinformation entitled the “The Edge of the Infodemic – Challenging Misinformation in Aotearoa”.

One wonders whether the Chief Censor of the time wished to see misinformation come within his ambit and be subject to classification or even being classed as objectionable. It is difficult to see how misinformation or disinformation could fall within the emergency test. Although it may be disfavoured, wrong-headed or disturbing it falls within the scope of viewpoint neutrality, best met with counterspeech.

The ”Harmful Tendency” In Action

A recent demonstration of the overreaction of the public to forms of expression, the rise of the harmful tendency approach and the belief that the State should intervene is chilling and concerning. Rather than addressing the problem with counterspeech or some such similar demonstration, citizens required the Police to investigate incidents involving the flying of flags.

In Wanaka the investigation involved a red flag with a white circle. Inside the circle was a three pointed icon. What could this have been? Some far-right white supremacist coven, perhaps. It was reported as a racist flag. But no. The flag in fact was a Klingon battle flag from the TV series Star Trek. The Police investigated nevertheless.

The second flag that was investigated was a little more confrontational. A flag was flying from a dwelling bearing the insignia of the gang Black Power along with the iconic clenched fist salute. It was what was written below the salute that caused concern. It was the “N” word but instead of ending “er” it just ended with “a”.

So concerned were the Police that they referred the flag to the Censor in an effort to have it declare objectionable. Quite properly the application was refused.

Although these cases may seem insignificant or trivial in themselves there is a deeper level of concern. Are we becoming too precious about taking offence? Are we leaning towards a “harmful tendency” position? Is the answer to something with which we disagree to complain to the authorities or try to shut it down? That is not what freedom of expression in a democratic society is all about.

That these sentiments seem to be surfacing should be no surprise. The Government holds itself out as the sole source of truth and any disagreement is cast as misinformation or disinformation. Some elements of the media demonise contrary opinions and there seems to be a developing trend to silence or cancel opposing points of view simply because they are perceived to be disagreeable or offensive, rather than engaging with the issue.

The reason that is advanced for failing to engage with the issue is that to do so merely gives oxygen to a contrary point of view, but only by discussion and challenge can the holders of contrary views understand and perhaps even accept they are wrong.

We need to be more robust in the way that we deal with views with which we disagree. We must remember that those expressing such views have as much right to express their sentiments as we have to express ours. And we must remember that the only time speech should be censored is if there is a clear, immediate and present danger that it may cause harm. If the ideas that are the subject of speech are controversial, offensive or disfavoured the remedy lies in debate or persuasion and not the intervention of the State.

Fire and Fury and….Fear

August 21, 2022August 21, 2022 The IT Countrey Justice Dangerous Speech, Freedom of Expression, Politics, Rule of Law, Technology Regulation

This is a commentary on a documentary that was released by Stuff and is part of a continuing examination of and commentary on the issue of mis/disinformation. The documentary – Fire and Fury – had the potential to be an informative and useful addition the the material swirling around current concerns about mis/disinformation. Sadly it did not fulfil that potential but rather was caught up in its own pre-determined view of the issue and those participating in it.

As I have earlier observed, I do not generally support the position advocated by those who express contrarian views. At the same time I would not wish their voices to be silenced. An exchange of ideas, although such a hope may be somewhat futile, is far preferable to the alternative which would be a form of censorship.

What follows is my view on the documentary and my reasons for suggesting that it does not fulfil its potential. It is entirely up to the reader whether or not these views find favour.

________________________________________________________________________________________________________

The Stuff documentary “Fire and Fury” is an interesting example of advocacy journalism. One commentator has described it as “agitprop”[1].

Because it originates from a mainstream media source there are certain constraints on its approach. One such constraint is the need for journalistic balance. Yet the introduction to the documentary and its accompanying material on the Stuff website suggests that balance and a portrayal of contesting views, leaving the reader or viewer to come to a conclusion, is not present.

The explanation of the project goes under the heading of opinion. The bias of the piece is clear from the title “Pushing Back Against the Monsters” although one would hope for some journalistic integrity in the piece. This is what it has to say:

You’ll recall the narrative driven (and accepted by many) during the Wellington protest that it was peaceful and had one objective: to end the mandates.

Scratching not too far beneath the surface, though, it was apparent there was an entirely different — and dangerous — agenda.

At Stuff Circuit our role is to investigate matters that are in the public interest, and two things happened around the time of the occupation that got our attention.

First, we saw talk in social media about making the country “ungovernable”. It sounded like a direct threat to democracy. What did it mean? Who were the people saying it and what was their intent?

Second, we started to see extreme violent language, death threats, and the normalising of language not previously used in everyday New Zealand: people talking very publicly about killing authority figures because they didn’t agree with their policies.

We wanted to understand where that had come from and how mainstream it was going; why your auntie or neighbour was putting this stuff on their Facebook page, oblivious and unquestioning as to its origins.

So far, so good. It is clear that this an investigative effort notwithstanding that the position of the authors started to become clear in the second paragraph (not to mention the title) when the suggestion of a “dangerous agenda” is made.

The focus of the documentary becomes clear and this, as described, is perfectly legitimate and clearly in the public interest.

Our focus in Fire and Fury is not the protest itself, but rather the key figures behind it. Who are they, where had they come from, what did they believe? Why were they so keen on the protest, what did they gain from it, and crucially, what do they want to happen next? The documentary explores how they had not come haphazardly to this moment: this seemingly disparate group of key figures is strategically interconnected, stronger together.

However, in the next paragraphs the focus shifts and the conclusions and directions of the documentary become clear. With the perjorative language that is used, it is unlikely that this will be an unbiassed account

Our decision to investigate led to months of being mired in online chat rooms and watching their mass-produced content: the most violent misogyny, racism, religious bigotry, transphobia, homophobia, online stalking and harassment.

And imbued throughout it all, conspiracy theories ranging from the QAnon-driven sinister cabal of paedophiles controlling the world, to the New World Order and the Great Reset Theory. That the pandemic is a guise for world depopulation and the establishment of a tyrannical global government. That the New Zealand government is engaged in democide: the destruction of its own people.

On and on it went. All of it sitting directly alongside and intertwined with disinformation about Covid, vaccines, and the pandemic response, combining to form a vast, dangerous, swirling, nonsensical, paranoid soup of toxicity.

Then there was the question of whether this material should be published. Was it going to give the contrarians (for that is what they are) yet another platform? That issue was dealt with in this way:

Our decision to investigate led to months of being mired in online chat rooms and watching their mass-produced content: the most violent misogyny, racism, religious bigotry, transphobia, homophobia, online stalking and harassment.

And imbued throughout it all, conspiracy theories ranging from the QAnon-driven sinister cabal of paedophiles controlling the world, to the New World Order and the Great Reset Theory. That the pandemic is a guise for world depopulation and the establishment of a tyrannical global government. That the New Zealand government is engaged in democide: the destruction of its own people.

On and on it went. All of it sitting directly alongside and intertwined with disinformation about Covid, vaccines, and the pandemic response, combining to form a vast, dangerous, swirling, nonsensical, paranoid soup of toxicity.

Then there was the question of whether this material should be published. Was it going to give the contrarians (for that is what they are) yet another platform? That issue was dealt with in this way:

But having decided to investigate, the question remained whether we should report what we were seeing. Why risk amplifying inflammatory and harmful material? Why risk making these people more influential than they would otherwise be? (Side note: it’s creepy watching some of them react when they have been in the news. They love it. They get off on it. It makes them feel important. Did we want to facilitate that?)

There were other reasons not to report, not least of which was the personal harassment which would inevitably come our way — as it does to anyone who works in this field — and has been directed at us (including death threats) for previous work. Massey University research of Stuff staff shows two thirds of our colleagues report experiencing actual violence or threats of violence related to their work — a figure far higher than that reported by journalists globally. (You’ll see in Fire and Fury how people have been provoked to hate journalists. There are real world consequences for that.)

The commentary continues with a consideration of not reporting on the findings of the investigation:

And there was one final question: What was the risk of not reporting?

The more we looked at the volume and scope of their material the more it became clear that not covering these people would not make them go away.

The lesson of history suggests that if you let far-right groups have the streets to themselves, they don’t just go home because there’s no one to fight. They’ll find someone to fight, someone to beat up. Any uncontested space, they’ll take over,” is how one journalist summed it up for Data & Society’s advice on reporting on extremists, antagonists, and manipulators.

One of the extraordinary comments in the immediately preceding passage refers to the “lesson of history”. Yet, as I shall demonstrate, a consideration of some of the historical material would suggest that some of the attitudes and approaches by the contrarians was not unique.

This piece is a review of some of the aspects of the Fire and Fury documentary. It is by no means a full review nor is it a critique. Some of the material in the documentary is important and vital – material that citizens should know so that they can be properly informed. But other aspects of the documentary display an absence of balance and almost a paternalistic and patronizing approach to the ability of citizens to make up their own minds.

I shall consider the way in which some of the material is presented, some of the production values underlying the documentary, an overall impression of the documentary and then the way in which history has a best been overlooked or at worst ignored in locating the views of contrarians. I shall discuss the very obvious bias that was displayed towards the end of the documentary and close my discussion with some observations of the impact of alternative (as opposed to mainstream) media on our expectations of information. The conclusion that I reach on the documentary may be surprising and indeed counter-intuitive – I shall leave that to the reader.

The points of view expressed in the production were of two types. The contrarian position was taken from social media posts and other internet-based sources. Significantly there were no interviews with any of the contrarian figures such as Claire Deeks and Chantelle Baker and certainly no discussions with Kelvyn Alps or Damien de Ment. In some respects this is understandable. Given the attitude of the contrarians to the media it is unlikely that they should want to engage. But at the same time those who discussed and critiqued the contrarian approach such as Khylee Quince, Kate Hannah, Ed Coper and others were interviewed and expressed their views in a calm and rational manner.

The way the opposing views were portrayed was interesting. The clips that were taken of the contrarian position were shrill, at times using the language of hyperbole and at other times were emotional and extreme. By contrast those who were interviewed were calm and rational although there were times when subjective views began to creep in.

Another issue arises in the way in which the contrarian position was portrayed. Rather than taking clips from social media platforms and portraying the points of view within that context, often the contrarian position was over-dramatised by superimposing the speaker on the backdrop of a large building, as if they were expressing their views not on a social media platform, but on a large sized electronic advertising billboard. The context became one of a city street scene with the contrarian view echoing through the canyon on buildings as if this was the means by which their views were communicated.

This portrayal misrepresented the medium of communication employed. Certainly it had dramatic effect but it was not a truthful nor realistic portrayal of how the message was communicated. In my view this was carrying creative license too far and again raised questions about the level of balance in the documentary.

The highlight of the documentary was the protest in the grounds of Parliament in March 2022. For some this must have been a disturbing experience to see, the ending was never going to be peaceful, and the violence of the ending cannot in any way be condoned. But once again the documentary used production techniques to lend a highly dramatic backdrop to the event – a backdrop that was not present at the time. Throughout the segment on the Parliamentary protest dark, sonorous, doom-laden music provides a soundtrack, no doubt to heighten the drama of the event. But this was not a drama. Although we are well used to background music in malls and other places, life does not have a musical soundtrack, and in my view to superimpose one – especially one as oppressive and dark as that used in the documentary – is taking a considerable production liberty.

I suppose that the makers of the documentary wanted to emphasise an atmosphere of Gotterdammerung but Richard Wagner’s Siegfried’s Funeral March is positively lyrical in comparison to the Parliamentary protest soundtrack.

Given the various production elements that I have discussed I viewed the piece with growing concern. This clearly was not a balanced objective “put both sides out there” piece of journalism, even although it purported to be that. In essence the writers and producers were paying lip-service (and not a lot of that) to journalistic standards.

During the Parliamentary Protest the journalists involved were on the ground filming and reporting on the event and gathering material which ended up in the documentary. They were challenged by the protesters and the indignant outrage of the journalists, who claimed that they were only doing their jobs, was clearly and unequivocally expressed. I am not sure if this arose from a journalistic attitude of entitlement or ignorance of what they were getting themselves into.

They were reporting on a group of people for whom distrust and scepticism of mainstream media is a significant article of belief. One of the problems in reporting on the contrarian position is that the mainstream media portrayal is largely unfavourable and merely cements in contrarian distrust. Indeed, there is even a point of view in mainstream media that suggests that by reporting on both sides of the protest, a platform is provided to a group that has been banned from Facebook for spreading misinformation.[2]

Another aspect of the problem faced by the media is the fact that the public interest journalism fund provides financial support for public interest journalism. So far, so good. A $55 million fund is available to support New Zealand’s media to continue to produce stories that keep New Zealanders informed and engaged, and support a healthy democracy. Again, so far so good.

The Cabinet paper supporting the fund sets out the difficulties that were faced by mainstream media organisations during the pandemic. But it is in paragraph 5 of the Cabinet paper that one of the objectives of the fund becomes clear. It states “The spread of misinformation related to COVID-19, particularly through social media channels, has sharpened public awareness of the importance of, and reliance on, a strong and independent media sector.”

As is so often the case in the current discussions on misinformation, the term is not defined but it is clear that there is a concern about the expression of contrarian views and that a viable and well-funded mainstream media may provide a counter to contrarian expression. Nothing wrong with a healthy debate, but a shadow is apparent when one considers the optics of the fund. From the contrarian position, the investment of $55 million in sustainable journalism is a means of controlling the message. The view is that of course mainstream media will report the government position favourably, if only to ensure that the cash keeps flowing. Although the presence of the funding may not lead to bias, it is the perception of bias that is the problem.

All of this is further complicated by the fact that the State sees itself as the sole source of truth. As the Prime Minister said to Parliament on 2 September 2020

“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]

It is little wonder that the contrarians have a perception of bias by mainstream media. The facts can give rise to that inference, and although there is a body of literature to the contrary, in the minds of many, perception is reality. Interestingly enough I understand that Fire and Fury was a beneficiary of that fund. In the minds of the contrarians, QED.

There can be little doubt that mainstream media and its position the arbiters of “truth” has been threatened by the rise of the Internet and social media. In many respects the Internet potentially provides everyone with a platform and in that respect enhances and enables a level of freedom of expression – the reception and dissemination of information – to an extent that society has not seen before. That everyone potentially has a voice is a long sought aspect of democracy.

What follows from this is cacophony and the expression of many and varying viewpoints. Many of these viewpoints are personal opinions only. They may be based on an incomplete or incorrect factual basis but they may, nevertheless, be validly held.

And if some of these views challenge established points of view or perspectives, so be it. To have our viewpoints or opinions challenged is the price we pay for being able to express our viewpoints and challenge those of others.

“Democracy is built on the right to dissent, on the right for people to hold opposing positions. Our societies need freedom of expression to protect us from the worst atrocities that governments can visit on their citizens.”[4]

There are times when a contrarian position will give offence. Salman Rushdie has made a number of comments on the freedom of expression and offence. The starting point is that no one has a right not to be offended. It doesn’t appear in any international instruments on human rights. Rushdie’s view is that

” If you are offended it is your problem, and frankly lots of things offend lots of people.”

Then he locates offence within the context of the freedom of expression

“What is freedom of expression? Without the freedom to offend, it ceases to exist.”

One of the ironies that came out of the Fire and Fury documentary were the expressions of offence on the part of some of commentators including Dean of AUT Law School Khylee Quince who expressed her offence at some of the associations that were developing within the contrarian movement. I would have thought that Ms Quince would have been a little more objective in the expression of her views. Being offended is simply not a good enough argument in my view. Perhaps she should have expressed her disagreement accompanied by reasons.

Underlying the documentary is a concern at the way that social media platforms enable the expression of contrarian positions. Facebook, Twitter, Instagram and other “big tech” platforms have taken steps to address some of the more extreme positions adopted by contrarians but there are other platforms like Telegram and Gab that appear to be quite unregulated and not susceptible to control. These platforms are seen as breeding grounds for disinformation.

Part of the problem about communications technology is the way that it can alter and change our approaches to and our expectations of information. A clear example is in the way that the printing press was an agent of change in the way in which information was communicated and the way that it enabled the expression of contrarian views. Martin Luther’s 97 theses that sparked the Reformation were circulated throughout Germany within two weeks of Luther initiating the debate by pinning his theses to the church door in Wittenberg. His views were as contrarian as they possibly could be and the printing press enabled the dissemination of contrarian points of view and still does.

The underlying properties of internet-based communications technology enable, as I have said, everyone to have a platform and to express a point of view. As I have observed, this is cacophonous but it does mean that people are far more willing to express themselves, often quite pungently, knowing that there may be little consequence visited upon them. The communications technology has enabled this shift in behaviour. The technology enables it.

One of the commentators on Fire and Fury expressed the somewhat interesting point of view that people can be radicalized by over-exposure to extreme ideas. This is an extraordinarily patronizing perspective as well as being a very wide and all-consuming generalization. There can be little support for the view that a whole community is going to become radicalized if they watch Counterspin media too frequently. This does a disservice to the intelligence and common sense of the greater majority of the community.

There are some who have adopted extremist views. Some in the Fire and Fury documentary use extreme language, calling for extreme and violent consequences. How much these people were playing to the camera would need to be assessed and in some cases such expression may be fuelled by highly charged emotions and anger. Although the protest at Parliament ended violently if there had been a true undercurrent of revolutionary violence it would have happened.

We may decry the over-exuberant expression that we see on Internet platforms. Our concerns must be measured against a recognition of the importance of freedom of expression. But regrettably I do not see a return to polite conversation. Communications platforms have been with us for too long and our behaviours have become too ingrained for there to be any likelihood of change. Although this may be seen as a form of technological determinism, it must also be recognized as a reality.

The final point that I would like to make is about the lessons of history, referred to in the opening introduction to the documentary. Was the protest at Parliament that unusual in the overall scheme of things. Was the language of the protesters so extreme. In 1787 in (to our ears) an erudite letter from Thomas Jefferson to William Stephens Smith, Jefferson said

“And what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.”

This language is probably as extreme as some that was used in March 2022 and yet it is over 200 years old and written at a time when the American Revolution had been successfully achieved.

History is full of similar examples – the French Revolution, the 1830 Revolution in France, the European Revolutions of 1848, the anarchists, Socialists and Bolsheviks of the period leading up to the 1917 Revolution and the student protests in Europe on 1968.

More recently one only has to look at some of the messaging from Al-Quaeda and Islamic State to see that the rhetoric continues. In 2012 protesters erected a mock guillotine to “decapitate” leading politicians as a demonstration against the sale of state assets. In 2014 a musician sang about wanting to kill then then PM and violate his daughter.

In New Zealand certainly in my time some of the so-called radical movements such as the Progressive Youth Movement, Halt All Racist Tours and associated organisations in the mid-sixties, spurred on by perceived societal injustices and taking their lead from similar organisations in other countries, protested and occupied public facilities, but often the radical language of the time was offset by the trending peace, love and flowers of the hippies.

The violence that accompanied the Springbok Tour of 1981 was as bad in its way as the violence at the end of the Parliament Protest, and was just as frightening. But all of this seems to have been forgotten and overlooked by the authors and producers of Fire and Fury. The point I am trying to make is that this is not new.

Interestingly enough, one of the leading lights of the 1960’s protest movement went into politics and was elected Mayor of Waitakere and latterly Invercargill. It is a matter of comment in mainstream media that some of the leading lights of Voices for Democracy and other contrarian groups are putting themselves forward for election in the upcoming local body elections. Some of them have done so before. None of them have so far been elected. Yet there is concern about contrarians exercising their democratic right to stand for election. As I understand it the availability of democratic process does not depend on the quality of your beliefs, although those beliefs may cause rejection by the electorate.

So where does this leave us. Certainly during the early days of the Covid-19 Pandemic the Government was able to prey on public fears of the outbreak of plague and imminent death to justify lockdowns and to enable the acceptance of discriminatory treatment of citizens based on their vaccination status. The initial response was unplanned but necessary. But we are past that now

What the Fire and Fury documentary seeks to do is re-channel that fear to a form of opposition to and distrust of the contrarian movement. But after viewing the documentary I was left with an uncomfortable feeling. In all the talk about the weird conspiracy theories put about by the contrarians perhaps the underlying theme of the documentary is a conspiracy theory itself and it seemed to come from Kate Hannah who is one of the heads of the Disinformation Project. She implies that the real threat to democracy comes from a few people given to euphemistic language who make no secret of their views, who are openly all over social media, making no secret of their views and who are well known to Police and the Security Services. Do we really need to fear this vocal minority.

Perhaps Fire and Fury is an example of a mainstream media-based conspiracy theory based on fear and should be treated as such. Or perhaps it is rather a tale told by an idiot, full of Sound and Fury signifying nothing.

[1] Graham Adams “Fire and Fury is often funny – unintentionally” The Platform 18 August 2022 https://theplatform.kiwi/opinions/fire-and-fury-is-often-funny-unintentionally (Last accessed 19 August 2022)

[2] Madelaine Chapman “Giving a Voice to Voices for Freedom” The Spinoiff 2 March 2022 https://thespinoff.co.nz/politics/02-03-2022/giving-a-voice-to-voices-for-freedom

[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

[4] Ben Okri “Authors on the Salman Rushdie attack: ‘A society cannot survive without free speech’” The Guardian 14 August 2022 https://www.theguardian.com/books/2022/aug/14/authors-on-the-salman-rushie-attack-a-society-cannot-survive-without-free-speech

Fear Itself?

May 20, 2022 The IT Countrey Justice Censorship, Dangerous Speech, Digital Speech Harms, Harmful Digital Communications, Misinformation, Rule of Law

Introduction

This is another piece about misinformation and disinformation. I have already written about these issues here and here. In this piece I discuss a paper recently released by the Disinformation Project. I consider the definitions that are used and offer a slightly more nuanced approach to the meaning of the terms “misinformation” and “disinformation”. I then go on to discuss some of the available remedies for problems arising from the dissemination of disinformation and close with a discussion of the way in which fear seems to be weaponised to achieve the goal of “social cohesion”. I close with an observation about vested interests and the campaign against disinformation.

Definitional Issues

The working paper “The murmuration of information disorders: Aotearoa New Zealand’s mis- and disinformation ecologies and the Parliament Protest” from the Disinformation Project[1] captured media attention and is itself an interesting study.

I have previously been rather critical of the way in which the terms “misinformation” and “disinformation” have been bandied about and the authors of the working paper have defined their terms.

Misinformation is false information that was not created with the intent to harm people.

Disinformation is false information that was created with the intent to harm a person, community, or organisation.

The material that is available from the Disinformation Project website does not offer any discussion of how these definitions were settled although it is fair to say that similar definitions have appeared in other publications.

Regrettably, the definitions both suffer from a lack of nuance. The nature of the information is not clarified. The definitions do not state whether or not the information conveyed is a statement of fact or opinion. Furthermore the definitions fail to recognise that often a fact may be determined by a process of inference or conclusion based on other existing facts. It may well be that upon further analysis an inferential conclusion may be erroneous. Whether or not it should be described as false gives rise to another issue. The use of the word “false” suggests a fraudulent, dishonest or morally questionable motive. Yet an inferential conclusion may be reached honestly and in good faith.

The definition of “misinformation” goes on to suggest that the information (which may be incorrect) was created and in that sense the suggestion is that it derived from imagination rather than from a number of other pieces of evidence or sources. In my view rather than use the word “created” the word “communicated” should be used and more properly crystallises the nature of the problem.

A person may develop some information either from imagination or from other evidential sources but may do nothing with it. In that respect the information, irrespective of its correctness, is passive. Only when it is communicated and comprehended by an audience does the information become active.

The definition of misinformation also contains the element of motive. A person may analyse a number of facts and arrive at a conclusion. That conclusion may be communicated. The conclusion may be incorrect or misleading. But the communication of the information was in good faith as to the correctness of the conclusion or its veracity. In such circumstances, the motive for the communication of the information does not matter.

If one is looking for a more nuanced definition of “misinformation” that incorporates the above matters it could read “misinformation is information that is communicated and that is erroneous.”

That definition avoids the issue of motive and the use of the rather loaded word “false”.

“Disinformation” as defined creates some issues. A simple word to describe disinformation is that it is a lie. However, in the definition the word false is used which, in the context of a lie, is a correct term. I have some difficulty with the issue of intention. The intention must be to harm a person, community, or organisation.

A Matter of Harm

I wonder if harm is the correct term. In the context of the Harmful Digital Communications Act, harm is defined as “serious emotional distress” which would be a satisfactory, albeit limited, definition for a person or a community. However, it would not be applicable to an organisation.

Harm could also mean some form of adverse consequence which causes loss or damage. In this respect the communication of false information with the intention of causing loss or damage resembles a crime involving dishonesty. In this respect it could be argued that section 240(1)(d) of the Crimes Act 1961 is applicable. This reads:

“Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right….. causes loss to any other person.”

Deception is defined as follows:

a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—
knows that it is false in a material particular; or
is reckless as to whether it is false in a material particular; or
an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
a fraudulent device, trick, or stratagem used with intent to deceive any person.

Thus it would seem that the communication of false information would fall within the ambit of deception. It is accompanied by the necessary intention and if it causes loss/harm then the offence would be available.

However, as I understand it from the material that is available on the Disinformation Project website and the various commentaries on the “Mumuration” paper the harm that is contemplated is more inchoate and nebulous.

The paper states:

“Disinformation highlights differences and divisions that can be used to target and scapegoat, normalise prejudices, harden us-versus-them mentalities, and justify violence.

Disinformation and its focus on social division are at risk of cementing increasingly angry, anxious and antagonistic ways around how we interact with one another, eroding social cohesion and cooperation.

This has dangerous implications for our individual and collective safety”

Thus, the harm that is perceived is that of divisiveness, antagonism, prejudice and possible physical danger resulting from the use of language that is inciteful. There is concern at the erosion of social cohesion and co-operation.

This theme is picked up by David Fisher in his analysis of the paper. Fisher suggests that the trafficking of false and misleading information should be elevated to the level of national security. With respect I consider such a statement to be unnecessarily shrill and the proposal to be unwarranted. The underlying theme of Fisher’s analysis is that the dissemination of disinformation, some of which originates from overseas sources, poses a threat to established institutions and processes. He cites local body elections and the general election next year which could see a rise in disinformation.

Fisher states:

When it comes to next year’s general election – which attracts much higher public engagement – expect to experience friction as a growing faction with a discordant perception of reality bangs into those who retain faith in the way we live.

The concerns that are voiced by the Disinformation Project and by Fisher express a fear that society is under threat from the spread of disinformation primarily from a cluster of 12 groups of Facebook or social media platforms.

These concerns carry an implicit message that “something must be done”. For some of the disinformation concerns there are already remedies. I categorise these remedies available under existing law as “communications offences”. I have discussed them in an earlier post entitled “Dangerous Speech” but I shall summarise these remedies here.

Existing Remedies

Threats of violence or of harm are covered by section 306 – 307A of the Crimes Act.

Section 307A would seem to be a possible answer to the consequences of disinformation although the language of the section is difficult.

The relevant portions of the section read as follows:

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:…..

communicates information—

that purports to be about an act likely to have 1 or more of the results described in subsection (3); and
that he or she believes to be false.

Subsection (2) which deals with the effects that are sought to be achieved reads as follows:

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

the activities of the civilian population of New Zealand:
something that is or forms part of an infrastructure facility in New Zealand:
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 schools):
commercial activity in New Zealand (whether commercial activity in general or commercial activity of a particular kind).

The results that are likely to occur are set out in subsection (3) which reads as follows:

The results are—

creating a risk to the health of 1 or more people:
causing major property damage:
causing major economic loss to 1 or more persons:
causing major damage to the national economy of New Zealand.

However, subsection (4) creates an exception and exempts certain activities from the effect of s. 307A. It reads:

“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).” (The emphasis is mine)

There has been one case, to my knowledge, that specifically deals with section 307A – that of Police v Joseph [2013] DCR 482.

Other examples of communications offences may be found in the following statutes:

a) the Human Rights Act 1993;

b) the Summary Offences Act 1981;

c) the Harmful Digital Communications Act 2015;

d) the Broadcasting Act 1984; and

e) the Films, Videos, and Publications Classification Act 1993.

f) the Crimes Act 1961.

It should be conceded that not all of the offences created by these statutes deal with the problem of disinformation and I do not propose to discuss all of them and refer the reader to my earlier post on “Dangerous Speech”.

Indeed, the law has been ambivalent towards what could be called communications offences . In 2019 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.

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.

The offence prescribed in section 308 of the Crimes Act involves 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 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,—

(a) 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:

(1) Every person is liable to a fine not exceeding $1,000 who,—

(a) in or within view of any public place, behaves in an offensive or disorderly manner; or

(b) in any public place, addresses any words to any person intending to threaten, alarm, insult, or offend that person; or

(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.

(2) 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.

(3) 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.

(4) 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 [2011] NZSC 45.

In some respects these various offences occupy points on a spectrum. Interestingly, the offence of offensive behaviour has the greatest implications for freedom of expression or expressive behaviour, 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.

Democracy vs Cohesion

The concerns about the effects of disinformation other than those effects which may cause harm relate more to issues of what are described as social cohesiveness. This is a phrase that seems to have been gaining in traction since the Royal Commission Report on the March 15 Christchurch tragedy. It is emphasised in both the “Mumuration” paper and in Fisher’s analysis. The problem with social cohesiveness is that, taken to its ultimate result, we have a society based on silent conformity without any room for dissent, opposition or contrary or contentious opinions.

These elements are essential to a functioning democracy which is cacophonous by nature and which often involves strongly held and differing opinions. Much of the debate surrounding differing opinions can get quite heated and result in what the Disinformation Project claims are angry, anxious and antagonistic arguments. These have been with us for centuries. One need only look at the arguments that have taken place withing the Christian faith over the centuries to understand the passion with which people often approach matters of belief. And, indeed, conflicting opinions within that context would, at the very least be termed “misinformation” or, at worst “disinformation”.

Although the printing press was responsible for the wide dissemination of the contentious arguments surrounding the Reformation and, later in England, the constitutional debates that led to the English Civil War, the dissemination of information afforded by social media platforms is exponentially greater. It is perhaps the delivery of the message, rather than the message itself, that seems to be the root of the problem.

Weaponising Fear

Coupled with this is the fact that the perceived disinformation problem is accompanied by a sense of threat to established institutions which in turn generates a sense of fear and foreboding if the problem is allowed to continue or at least to go unrecognised.

Fear seems to be a widely distributed currency these days. Perhaps older generations have had more experience of the reality of fear having lived through events like various outbreaks of war – Korean, Viet-Nam, Gulf 1 and 2, Afghanistan as a few examples – along with the continuing threat of nuclear conflict which seemed to dissipate in the 1990’s but has now once again loomed and the spectre of terrorism which preceded 9/11 – which was its most egregious example – and which has also been exemplified not only by jihadis but by extremists such as Timothy McVeigh, Anders Breivik and Brenton Tarrant.

But fear is used to market other products. The response to the Covid Pandemic in New Zealand was underpinned by fear, with concerns about potentially high numbers of deaths from the disease if strong measures were not taken. That fear of death and of the consequences of the pandemic underpinned most of the steps taken by the Government and was probably responsible for the complacent response by the populace at least in the first year or 18 months of the pandemic.

Fear can be a strong motivator and often drives extreme responses. Senator Joseph McCarthy played on the fear of a Communist conspiracy in post-World War II USA the reverberations of which were still present in the early 1960’s. The end of the Cold War meant that the fear of the Communist threat was ephemeral but it was shortly replaced by fear of terrorism in the US.

What concerns me is that the fears that are being expressed around misinformation and disinformation suggest that the phenomenon is a new one. It isn’t but has been exacerbated by the exponential dissemination quality of online platforms.

It is also suggested that there are no remedies to deal with particularly disinformation.

There are and in certain cases the provisions of s. 307A of the Crimes Act 1961 could be deployed along with other remedies discussed if they fit the circumstances.

There are some remedies along with critical analysis of posts that may contain disinformation. To engender a climate of fear is unhelpful, especially when there are existing tools to deal with the issues.

The problem can be summed up by the remark by Franklin D. Roosevelt at his 1933 inauguration – “the only thing we have to fear is…fear itself — nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.”

Misinformation occupies a different space and in my view poses no threat. The views expressed may be contentious or contrarian perspectives. Often the information contained in these views will be opinions based on certain facts which may or may not be valid. Statements of opinion appear regularly in mainstream media and are labelled as such. Often they are the subject of debate and discussion in online comments sections or in letters to the editor. This is part and parcel of life in a liberal democracy that places a high value upon the right to impart and receive information – no matter how wrongheaded it might be.

In fact the way to deal with misinformation was referred to in the NZ Herald for 18 May 2020 entitled “’Tectonic shift’: How Parliament protest supercharged NZ’s misinfodemic” which contained commentary on the “Mumuration” paper. The Prime Minister’s Chief Science adviser Dame Juliette Gerrard is quotes as saying:

“New Zealand needs to play its part in the global effort to foster social cohesion and to empower our children to learn skills which make the next generation strong critical thinkers who are as resilient as possible to an increasingly polluted online environment.”

Whilst I would take issue with the “social cohesion” comment I strongly endorse the suggestion that we need to engage in critical analysis and evaluation of the information that we receive. This is something that needs to be done not only by our children but by ourselves.

Social cohesion is a vague and ephemeral concept for defining acceptable behaviour in society. As I have said in an earlier post:

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.

In my view although a peaceable society is an objective that is the goal of the Rule of Law which allows for a variety of behaviours but provides consequences for unacceptable behaviours – either by civil remedies or criminal sanctions. It is far better to have a clearly defined approach rather than a vague and ephemeral one.

Conclusion – Vested Interests.

Finally it is of interest to observe how vexed the mainstream news media get with the issue of mis/disinformation. Because the warnings emanating from the Disinformation Project, the Chief Censor’s Office and the University of Auckland Centre for Informed Futures, the news media are quick to fan the flames of fear and perhaps overdramatise the significance of the message. But perhaps there is an unstated interest that the news media might have in campaigning against mis/disinformation. In the past they have been the organs of reliable information and their editing and checking systems ensure this.

The Disinformation Project study indicates that on 10 February 2022 misinformation (as they define it) overtook NZ Media for the first time. Perhaps mainstream media has some territory to protect in the contest for the information audience and in fact what they are doing is campaigning strongly against the purveyors of mis/disinformation not to alert the public or perform some altruistic public interest goal but to do whatever they can to protect their own turf, their position as the purveyors of “truth” (despite significant column inches dedicated to “opinion”) and, not least, their advertising revenues and income streams.

[1] It is important to note that the Disinformation Project referred to is based at Victoria University, Wellington and is separate and distinct from the Disinformation Project – a American organization based in Fairfax, Virginia. The website of the NZ organization is https://thedisinfoproject.org. That of the American group is https://thedisinformationproject.org

De-Platforming Dissent

October 31, 2021 The IT Countrey Justice Censorship, Dangerous Speech, Freedom of Expression, Liberty

History shows us that lawyers have often been at the forefront of dissent. And on some occasions they have been punished or de-platformed for their dissent This may not seem unusual. The law is perceived as a conservative profession.

Three historical examples came to mind. There are plenty of others.

Marcus Tullius Cicero (106 – 43 BC), the Roman lawyer and Senator, spoke out against Gaius Julius Caesar and although he did not join the assassins was no great supporter of those who came after. His Phillipics aimed mainly at Marcus Antonius earned him the hatred of its subject and his wife Fulvia. When, as the Second Triumvirate, Antonius, Gaius Octavius and Marcus Aemilius Lepidus sought to eliminate opposition by adopting the proscription – the tool of the former dictator Lucius Cornelius Sulla – which put a price on the heads (literally) of opponents, Cicero was one of those named. He was executed by soldiers operating on behalf of the Triumvirs in 43 BC after having been intercepted during an attempted flight from the Italian peninsula. His severed hands and head were then, as a final revenge of Marcus Antonius, displayed on the Rostra. A very final form of de-platforming ending up with exposure on a platform.

John Stubbs (1544 – 1589) was educated at Trinity College, Cambridge and read law at Lincolns Inn. He was a committed Puritan and was opposed to the negotiations for a marriage between Queen Elizabeth I and the Duke of Alencon who was a Catholic. In 1579 he expressed his opinions in a pamphlet entitled “The Discovery of a Gaping Gulf whereunto England is like to be swallowed by another French Marriage, if the Lord forbid not the banns, by letting her Majesty see the sin and punishment thereo.”

Stubbs graphically characterised the proposed wedding as a “contrary coupling,” “an immoral union, an uneven yoking of the clean ox to the unclean ass, a thing forbidden in the law” as laid down by St. Paul, a “more foul and more gross” union that would draw the wrath of God on England and leave the English “pressed down with the heavy loins of a worse people and beaten as with scorpions by a more vile nation.”

Elizabeth and her Court were outraged. The publication was denounced by a specific proclamation of 27 September 1579. The proclamation claimed that the pamphlet stirred up rebellion “on the part of the Queen’s subjects, to fear for their own utter ruin and change of government”.

Circulation of the pamphlet was prohibited and copies were burned at the headquarters of the printing trade – Stationers Hall. Stubbs and the publisher were tried and found guilty of seditious writing.

Stubbs’ de-platforming was especially horrific. He and the publisher were sentenced to have their right hands cut off by means of a cleaver driven through the wrist by a mallet. Initially Queen Elizabeth had favoured the death penalty but was persuaded to opt for the lesser sentence. The sentence was carried out and Stubbs’ right hand was cut off on 3 November 1579. At the time he protested his loyalty to the Crown, and immediately before the public dismemberment delivered a shocking pun: “Pray for me now my calamity is at hand.” His right hand having been cut off, he removed his hat with his left hand and cried “God Save the Queen!” before fainting. His fellow conspirator, the publisher William Page, lifted up his bleeding hand and said: “I left there a true Englishman’s hand.”

Stubbs was subsequently imprisoned for eighteen months. On being released in 1581 he continued to write, publishing, among other pamphlets, a reply to Cardinal Allen’s “Defence of the English Catholics”. Despite his punishment, he remained a loyal subject of Queen Elizabeth and later served in the House of Commons as MP for Great Yarmouth in the English Parliament of 1589

William Prynne (1600 – 1669) was a lawyer, author and polemicist and a Puritan opponent of the Anglican establishment He was a graduate of Oriel College, Oxford and was called to the Bar at Lincolns Inn in 1628.

Prynne did not set out to be popular. Many of his views, acerbically expressed, were very unpopular. He opposed religious feast days and their associated revelries. He thought men should not wear their hair long and opposed the custom of drinking to one’s health. In 1632 had printed his Historiomastix in which he argued that stage plays were incentives to immorality and were prohibited by scripture. Shortly after the book was released, Charles I’s Queen Henrietta Maria took part in a play at Court. A passage in Historiomastix critical of the character of female actresses was interpreted as an attack on the Queen. Passages attacking the audiences of plays and the judges who failed to suppress them were taken as an attack on the King.

Prynne was taken before Star Chamber. After a year’s imprisonment in the Tower of London, he was sentenced on 17 February 1634 to life imprisonment, a fine of £5,000, expulsion from Lincoln’s Inn, deprival of his Oxford University degree, and amputation of both his ears in the pillory where he was held on 7–10 May 1634.

This did not silence Prynne. From the Tower he continued to write polemics against Archbishop Laud, whom he saw as his main persecutor, the Attorney-General William Noy who had prosecuted him before Star Chamber as well as other attacks on leading Anglican clergymen.

Once again he was brought before Star Chamber and on 14 June 1637 Prynne was sentenced once more to a fine of £5,000, to imprisonment for life, and to lose the rest of his ears. At the proposal of Chief-justice John Finch he was also to be branded on the cheeks with the letters S. L., signifying ‘seditious libeller’. Prynne was pilloried on 30 June. Prynne was handled brutally by the executioner. He made, as he returned to his prison, a couple of Latin verses explaining the ‘S. L.’ with which he was branded to mean ‘stigmata laudis’ (“sign of praise”, or “sign of Laud”). His following imprisonment harsh. He was allowed no pens nor ink, had few books and was removed to remote prisons in Wales and Jersey.

Prynne was released by the Long Parliament in 1640. His sentences were declared illegal. His ears could not be restored to him although his degree was along with his membership of Lincolns Inn.

It was not long before Prynne found himself in trouble with the supporters of Parliament and in 1647 he wrote a number of pamphlets against the army, and championed the cause of the eleven presbyterian leaders whom the army impeached.

n November 1648 Prynne was elected Member of Parliament. As soon as he took his seat, he showed his opposition to the army. He urged the Commons to declare them rebels, and argued that concessions made by Charles in the recent treaty were a satisfactory basis for a peace.

Two days later Pride’s Purge took place. Prynne was arrested by Colonel Thomas Pride and Sir Hardress Waller, and kept prisoner first at an eating-house (called Hell), and then at the Swan and King’s Head inns in the Strand.

Released from custody some time in January 1649, Prynne retired to Swainswick, and began a paper war against the new government. He became a thorn in Cromwell’s side.

He wrote three pamphlets against the engagement to be faithful to the Commonwealth, and proved that neither in conscience, law, nor prudence was he bound to pay the taxes which it imposed.

The government retaliated by imprisoning him for nearly three years without a trial. On 30 June 1650 he was arrested and confined, and was finally offered his liberty on giving security to the amount of £1,000 that he would henceforward do nothing against the government; but, refusing to make any promise, he was released unconditionally on 18 February 1653.

Prynne continued his pamphleteering and supported the restoration of Charles II. He was rewarded with public office and once again elected to Parliamentand ended up as Keeper of Records in the Tower of London before his death in 1669.

Prynne was a gadfly who angered many who suffered at the tip of his pen. He is best known for his horrifying treatment in the 1630’s for publishing and expressing what were at the time unpopular views.

These three examples came to mind as I reflected on what appears to be a growing crackdown on dissent around the globe. De-platforming and cancelling seem to be common. Both are forms of silencing dissent.

Lawyers, as I said at the outset, have often headed dissenting movements. It was the dedication of lawyers who brought proceedings against the Rugby Union that halted an All Black’s tour of South Africa in 1985 – not a popular move in the temper of those times. It is commemorated in an article by Sam Bookman of 2018 and may be found on the New Zealand Law Society website here. And whilst I am on South Africa, Nelson Mandela was a lawyer and practiced in Johnannesburg before turning to anti-apartheid politics for which he was seriously de-platformed and like Stubbs was charged with sedition.

I must say I find it interesting that the tide of history has not turned and that attempts at de-platforming lawyers expressing dissenting views are still occurring

“Hate Speech” Proposals – A Consideration

February 2, 2021 The IT Countrey Justice Censorship, Dangerous Speech, Freedom of Expression

Abstract

This paper examines the Report of the Royal Commission of Inquiry into the 15 March 2019 terrorist attack in Christchurch, New Zealand and focusses on proposals to reconsider provisions of the existing law about “hate speech”. The paper considers the existing law contained within the Human Rights Act 1993 and then goes on the consider the critique of the existing law undertaken by the Commission. The paper also considers the Commissions proposals for a “hate speech” offence to be incorporated in the Crimes Act – a proposal which, in the opinion of this commentator, is too wide and does unnecessary violence to the freedom of expression. An alternative and more limited offence is proposed which fulfils the objectives stated by the Commission yet maintains an environment for the robust level of discourse so vital in a free and democratic society.

Introduction

The Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch mosques on 15 March 2019 is lengthy. It is divided into a number of parts. Part 9 deals with issues surrounding social cohesion and embracing diversity.

Social cohesion is seen as a way of preventing or countering extremism. Cohesive and resilient communities are better placed to resist and counter the risk of radicalisation and mobilisation to violent extremism and terrorism. Tolerant and, ideally, inclusive, societies are more able to address and prevent the polarisation and disenfranchisement that can contribute to a rise in extremism.[1]

Hate speech and hate crimes are seen as challenges to a socially cohesive and tolerant society and the Commission devotes Chapter 4 of Part 9 to the issue. The Commission points out that a hate crime is an offence that is motivated by the offender’s hostility to the victim as a member of a group that has a common characteristic, such as race, religion or sexual orientation. An example is an assault against a person wearing religious attire that was motivated by the offender’s hostility towards that particular religion.[2]

It acknowledges that hate speech is a less precise term.[3] The Commission uses the expression hate speech to mean speech that expresses hostility towards, or contempt for, people who share a characteristic[4]. Legislation that creates hate speech liability (which can be civil or criminal) specifies what types of speech are captured and characteristics that are protected[5].

The Commission acknowledges that addressing and criminalising hate speech creates a significant tension with the freedom of expression and care is required in developing the legislative approach. There are a number of purposes and other tensions that the creation of a hate speech offence poses including:

a) the promotion of social cohesion;
b) the desirability of limiting speech that encourages hostility that may result in harms such as discrimination and abuse, fears of physical harm and actual violence;
c) the importance of freedom of expression; and
d) ensuring that the law can practically be enforced.[6]

The Commission observes[7] that there are five existing statutes that impose liability and provide remedies for hate speech. They are:

a) the Human Rights Act 1993;
b) the Summary Offences Act 1981;
c) the Harmful Digital Communications Act 2015;
d) the Broadcasting Act 1984; and
e) the Films, Videos, and Publications Classification Act 1993.

Although the Commission notes a link between hate speech and hate crime it correctly considers hate crime and hate speech as different legal concepts. However, they are linked by underlying commonalities and, in terms of their consequences, sit on the same spectrum of behaviours.[8] In this paper, however, I shall confine myself to a consideration of the Commission’s approach to hate speech.

In its recommendations the Commission suggests that the offence created by section 131 of the Human Rights Act 1993 be modified and incorporated into the Crimes Act. In this paper I shall consider this proposal, the rationale advanced for it and the problems that the Commission’s proposal may create if enacted. In brief I suggest that the proposal by the Commission is too wide and unnecessarily interferes with the freedom of expression. I conclude by advancing an alternative that will meet the objectives stated by the Commission and do as little violence to the freedom of expression as possible.

Human Rights Act Background

A substantial part of the discussion of hate speech centres upon two provisions in the Human Rights Act 1993[9]. Section 61 addresses racial disharmony and sections 131 which creates a criminal offence for speech that is used with “intent to excite” hostility (or other consequences). A prosecution for this offence can be brought only with the consent of the Attorney-General.

Section 61 provides

61 Racial disharmony
(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.[10]

Section 61 is limited in its application – “on the ground of the colour, race, or ethnic or national origins of that group of persons.”[11]

The question of race or ethnic or national origins was considered in the case of King-Ansell v Police[12] which, although it dealt with the equivalent of section 131 under the then Race Relations Act, is useful in its discussion of the wording of section 61 – colour, race, or ethnic or national origins of that group of persons which is replicated in section 131 . The issue was whether Jews fell within the scope of the Act or whether, as claimed by the appellant they were a religious group.

The Court held that religious discrimination was outside the scope of the Race Relations Act but that ethnic was to be given a meaning within this scope. The Court noted that the answer needed to ensure that the concept was interpreted in a broad and non-technical sense while also preventing a meaning which would take the operation of the act outside a broad interpretation of racial discrimination.

While it was commonly accepted usage in New Zealand that ‘ethnic’ is related to race and is also accepted as meaning common racial, cultural, religious or linguistic characteristics that would, according to Richmond P, render the Act too broad. He concluded that ‘ethnic’ should the taken to mean ‘pertaining to race or nation’, a proposition for which he finds support in Ealing LBC v. Race Relations Board.[13]

Considering expert testimony by anthropologist and sociologist Dr MacPherson, Richmond P concluded that while Dr MacPherson’s definition of ‘ethnic group’ is too wide for the Act, it did inform an appropriate definition and conclusion in relation to Jews. He concluded that the Race Relations Act covered groups of persons who have common ethnic origins, which include groups “marked off from the generality of our society by shared beliefs, customs and attitudes”.

“The ultimate genetic ancestry of any New Zealander is not susceptible to legal proof. Race is clearly used in its popular meaning. So are the other words. The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. That must be based on a belief shared by members of the group.”[14]

Richmond P noted that ethnic origin is therefore established by reference to shared customs, beliefs, traditions and characteristics derived from a common or presumed common past. A combination which gives them a ‘historically determined social identity based … on their belief as to their historical antecedents.’[15]

He concluded that ‘Jewishness’ is much more than just religion and therefore does fall into the category of an ethnic group.

However it is doubtful that this reasoning could extend to adherents of Islam.

The quality of the communication and whether it was likely to excite hostility was considered in the case of Wall v Fairfax.[16]In that case there was a complaint about two cartoons published around the food in school programme, that the complainant alleged were likely to promote racial disharmony. The case went on appeal from a decision of the Human Rights Review Tribunal.

In dismissing the appeal, the High Court held that the s 61 publishing prohibition applied only to expression which inspired enmity, extreme ill-will or was likely to result in a group being despised. An expression that was simply offensive or insulting was not likely to incite disharmony.

Section 61 focused on the nature of the inter-reaction between groups of citizens, not the response of the target group. It set a two-stage test: was the publication “insulting” and, if it was, was it “likely to excite hostility against” Maori and Pasifika or “likely to bring [Maori and Pasifika] into contempt”. The ordinary meaning of the words used in s 61 reinforced the conclusion that the behaviour targeted was at the “serious end of the continuum of meaning”.

The Court then went on to consider whether or not the publication fell within the ambit of the Act. Although offensive, the two publications were not likely to excite hostility or contempt at the level of abhorrence, delegitimisation and rejection that could realistically threaten racial disharmony in New Zealand. The key elements in assessing the effect of the publication were context and circumstance.

The relevant publications were editorial cartoons. Cartoons formed part of a rich tradition by which cartoonists expressed views which may differ markedly from those expressed more formally elsewhere in a newspaper. Cartoons had a “special licence to make exaggerated and comic criticisms of public figures and policies”. There were Press Council decisions upholding a cartoonist’s right to use hyperbole in the expression of strong, unpopular viewpoints even if they caused offence, and that was a view which resonated through many liberal democracies.

Cartoons could operate like a mirror reflecting back at the reader some of the more intolerant attitudes held in parts of the community. Care was needed before identifying a cartoon as unlawful. Canadian authorities had observed that in the normal course of events satire would not likely constitute hate speech.

The cartoons had satirical elements but their audience were not likely to be excited to hostility or brought to a position of contempt by the depictions when considered in that context. The cartoons were two contributions only, to a wide-ranging public debate about an important issue of public policy.

The effect of the publication was to enliven debate about the effectiveness of a food in schools programme, as well as wider issues about the realities of life in deprived communities and the depiction of Māori and Pasifika in the media.

The negative cartoon depictions of Māori and Pasifika were not likely to excite even persuadable people to hostility or feelings of contempt towards them. The “space” within which issues could be raised and debated had to be kept as broad as possible. Section 61 recognised that it was not in the interests of society to confine publications to those which did not shock, offend or disturb.[17]

The language in section 61 should be applied “only to relatively egregious examples of expression which inspire enmity, extreme ill-will or are likely to result in the group being despised”.[18]

The Wall case is useful because it analyses the difference between offensiveness, shocking or disturbing speech which it considered was not captured by the Act and the level of seriousness of the speech to bring it within the scope of the legislation

I shall now turn to consider section 131.

Section 131 creates an offence of inciting racial disharmony. The section reads as follows:

131 Inciting racial disharmony
Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $7,000 who, with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons,—
(a) publishes or distributes written matter which is threatening, abusive, or insulting, or broadcasts by means of radio or television words which are threatening, abusive, or insulting; or
(b) uses 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,—
being matter or words likely to excite hostility or ill-will against, or bring into contempt or ridicule, any such group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.

Elements

In a prosecution under section 131, the prosecution is currently required to prove:

a publication that is “threatening, abusive, or insulting”;

2. an intent to “excite hostility or ill-will against, or bring into contempt or ridicule” people sharing a protected characteristic; and

3. that the publication was “likely to excite hostility or ill-will against, or bring into contempt or ridicule” people sharing that protected characteristic.

The drafting of the section reflects the style of the time and appears rather complex.

The first element addresses the nature of the publication (s.131(1)(a) or the words used in a public place (s. 131(1)(b). The quality of the language of concern must be threatening, abusive or insulting. These words, in and of themselves, would not fall within the definition of hate speech. Threatening language involving possible physical consequences is already addressed in the Crimes Act or the Summary Offences Act. Insulting or abusive language unassociated with physical threat may be offensive or disturbing but hardly warrant the intervention of the criminal law.

It is when the second element is considered that the nature of the speech is further refined. The use of the threatening, abusive words must be accompanied by a specific intent – that of exciting hostility or ill-will against, or bring into contempt or ridicule” people sharing a protected characteristic

Finally, there is the element of likelihood. Were the words used, accompanied by the specific intent likely to do what the speaker or publisher intended. This involves an objective evaluation of the words including the context within which the publication or use of the words under s.131(1)(b) took place.

The latter scenario is quite straight forward and involves a consideration of the context of the meeting or public forum at which the words were used. The situation under s. 131(1)(a) is slightly more problematic in that elements (a) and (b) may have been completed but in circumstances when the effect of the words on a third party may not have taken place. Thus the contextual element of likelihood of excitation of hostility may not be complete. An example may be given of the publication of words with a specific intent in a publication that may be distributed but not read or on a website that is not accessed. Rather akin to the unobserved tree that falls in a forest[19], such a communication is passive in nature. Only when there is an identifiable recipient of the communication is the circle commenced in section 131 closed.

The Commission concluded that the third element was not necessary. In a situation where the first two elements can be made out (a threatening, abusive or insulting publication and an intent to “excite hostility”), we see the third element as having little or no bearing on whether the conduct is sufficiently culpable to justify in a charge. It is thus unnecessary. On this analysis words published with a specific intent would be sufficient to create the offence even although there was either no audience nor readership. Thus the utterance plus intent would be sufficient to create the offence. This would significantly widen the scope of the offence.

Looking at it another way, the Royal Commission in collapsing the nature of the publication with the likelihood of what it might do overlooks the fact that publications may be threatening, abusive or insulting but do not go so far as to have the potential or the likelihood to excite hostility etc.

Even if I have the intention of exciting hostility or ill-will against people of a particular characteristic my publication may well be unlikely to achieve that goal or fulfil what I intended.

Thus in my view it is necessary that the element of objective assessment of the potential for the exciting of hostility or ill will be present if only to ensure that the intention is capable of fulfilment. Otherwise one may be convicted of merely publishing threatening or abusive material with an associated intent that may not be capable of being achieved.

Excite or “Stir Up”

The Commission commented on two other aspects of the section. One was the use of the word “excite”. It observed that the verb “excite” is used in a slightly unusual sense and suggests causation. This means that an “intent to excite” cannot be established without showing an intention to either cause “hostility or ill-will” that did not previously exist, or enhance or increase pre-existing “hostility or ill-will”. It logically follows that preaching hatred to the already converted would not breach section 131.

The Commission considered that the verb “excite” should be replaced with the words “stir up” which is used in corresponding legislation in the United Kingdom. The “preaching hatred to the converted” issue could be resolved by adding the verbs “maintain” and “normalise”. Neither of these proposals are controversial although some care would have to be taken. A person who was restating an existing belief about race, national or ethnic origins to a group of like-minded people could be prosecuted for merely stating that belief. Does such a restatement actually stir up hostility or would the words have to call for hostile action?

Much would also depend upon whether the maintaining or normalizing required a specific intention. In addition the potential for infiltration by investigators or other aspects of the surveillance state to prosecute the “preaching to the converted” could well arise.

The second aspect dealt with an extension of the protected characteristics currently in the Human Rights Act.

Protected Characteristics

The Commission suggests that religious belief should be a protected characteristic. It correctly notes:

There are distinct freedom of expression issues if sharing a particular religious belief system is treated as a protected characteristic. There is a strong tradition in New Zealand (as in many other countries) that religious belief systems are open to debate and that this can be vigorous. Strongly expressed challenges to a religious belief system may also amount to criticism of those who adhere to it. It is not easy to determine where to draw the line.[20]

It should be noted that even within the same belief system or religion there are divisions and subsets of belief. The Christian religion is made up of a number of denominations and even within denominations there may be differences and dispute.[21] Islam itself has a number of denominations the best known of which are the Shi’ia and Sunni.[22]

The Commission advanced the following reasons for the inclusion of religious belief as a protected characteristic.

a) under section 9(1)(h) of the Sentencing Act, “religion” is a protected characteristic;

b) in other jurisdictions, similar legislative provisions have been amended to include religion as a protected characteristic;

c) it would bring New Zealand into compliance with article 20(2) of the International Covenant on Civil and Political Rights

d) it is not logical that affiliation with Judaism and Sikhism are protected characteristics but affiliation with other religions such as Islam or Christianity are not;

e) the very clear overlap between Islamophobia and racism (in that many victims of Islamophobic harassment are people of colour); and

f) most significantly, the current realities of Islamophobia and the association between hate speech and terrorism.

In the UK legislation the vigorous debate that accompanies religious belief is reflected in section 29J of the Public Order Act 1986 (United Kingdom), which was enacted when “stirring up” religious hatred was introduced as an offence in England and Wales. This section provides:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

Could that be a line that could be drawn. The Commission thought not in that it would make prosecutions for stirring up religious hatred practically impossible. The Commission hopefully observed:

We consider that concerns about freedom of expression are met with a high threshold for liability, requiring the prosecution to establish an intention to stir up, maintain or normalise hatred towards members of the protected group and specifically criminalising explicit and implicit calls for violence against such a group.[23]

There are two issues that arise from this. The English exception recognizes the nature of disputation in matters of faith. As noted, vigorous disputation has been a characteristic of all religions and the disputes can become very heated. The English exception allows for expressions of antipathy towards other faiths. Within the Christian and Islam faiths the word infidel is used to describe an unbeliever. Historically that designation meant that the unbeliever may be killed without fear of consequence for murder in either the secular or spiritual context.

The second issue is more fundamental. The Commission recognizes this in referring to a high liability threshold. In my view this threshold – if applied – would have to be clearly defined. Any interference with freedom of expression must clearly set the boundaries of what is impermissible. Uncertainty will have a chilling effect on free expression simply because people will not be sure that they may express themselves without fear of prosecution.

The Courts have been robust in protecting freedom of expression – see Morse v Police[24] – but a “wait and see what the Courts say” is hardly satisfactory as an approach to discovering the limitations on the freedom of expression, especially in such a sensitive and delicate area. The Commission was focussing upon the circumstances and context of the Christchurch massacre, but the law will go well beyond that immediate context and the reaction to it. Care must be taken not to allow the justifiable outrage against the action of a lone wolf terrorist to colour and unnecessarily limit the freedoms we presently enjoy.

Developing the New Offence

The Commission suggested that a “hate speech” offence should be removed from the Human Rights Act and elevated to a crime by inclusion in the Crimes Act. The location of the offence really makes little difference. What is significant is what the offence actually is and what the penalties may be. It could be argued that shifting the offence to the Crimes Act is largely symbolic.

The suggested offence, irrespective of placement, that is proposed reads as follows

Inciting racial or religious disharmony

Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding three years who:

(a) with intent to stir up, maintain or normalise hatred against any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins or religion of that group of persons;

says or otherwise publishes or communicates any words or material that explicitly or implicitly calls for violence against or is otherwise, threatening, abusive, or insulting to such group of persons.

The element relating to intention appearing in section 131 is maintained. The protected characteristic of religion is added. The publication element is maintained, along with an ability to assess the nature of the content.

It is interesting that it seemed necessary to include a territorial element in the offence. The target of the speech must be persons in New Zealand. This means that one would not commit an offence if they were in New Zealand and published material that included all of the elements of the offence save that it was directed to people in another country. I can understand the “social cohesion” principle that underlies the offence and that this might thus restrict it to New Zealand, but given the association between hate speech and terrorism, and given that terrorism is a phenomenon with global implications it is surprising that the Commission has seen fit to limit the application of the offence.

However subclause (a) is vague in that it refers to “hatred” and perhaps should be linked to the consequence of the speech in subclause (b). The requirement that the speech calls for violence against those with protected characteristics falls within the ambit of what I have earlier described as “dangerous speech”[25].

What is of concern is that even although the speech may not call for violence the scope and effect of the speech are significantly expanded by the additional alternative element of it being threatening, abusive or insulting. In my view and for reasons that I have expressed earlier in this paper, this will have a chilling effect upon the freedom of expression. The tenor of abusive or insulting could well result in a complaint by someone who was merely offended by the speech.

An Alternative Proposal

My suggestion is that the section could be recast to meet some of these objections and yet fulfil what the Commission was proposing. My proposal is that the section could read as follows:

Inciting racial or religious disharmony

Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding three years who:

(a) with intent to stir up, maintain or normalise violence or hostility against any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins or religion of that group of persons;

(b) says or otherwise publishes or communicates any words or material that explicitly or implicitly calls for or threatens violence or hostile action against ~~or is otherwise, threatening, abusive, or insulting to~~ such group of persons.

The changes suggested achieve the following objectives:

1. The emotive and difficult to define concept of “hate” is removed and the “dangerousness” of the speech is emphasized

2. Hostility as a term is used to replace “hate” because hostility is more capable of being resolved into action

3. The quality of the published material and what it seeks to achieve is related to the concepts of violence and hostility in (a) but removes the qualities of threat, abuse or insult. The use of those terms in the proposed legislation would water down robust speech to virtually nothing and would go far beyond what is generally understood by “hate” speech. Language may be offensive, hurtful or insulting without necessarily setting out to stir up hostility or hostile action and robust debate must be encouraged as well as a need for audiences to be robust and resilient themselves.

The Religious Exception

I refer to section 29J of the Public Order Act 1986 (United Kingdom), which provides:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

I do not share the Commission’s view that such an exception would make the offence of inciting racial or religious disharmony – especially the latter – unworkable.

The exception goes to the quality of the discourse and recognises that religious debate can become passionate and heated. The exception does not go so far as to allow for the advocacy of violence or hostile action which are the targets of the alternative proposal that I have put forward. It could be argued that because my proposal targets consequences rather than content, an exception such as that appearing in section 28J is not required, in that section 29J merely states examples of freedom of expression which are likely to occur and have occurred over the centuries in religious debate. However, the inclusion of such an exception would provide protection for adherents of all religious faiths who wish to engage in the robust debate that often surrounds matters of belief.

Conclusion

It may well be said that in its proposals about “hate speech” the Commission has perhaps gone a little too far in the scope of the offence that it proposes. The suggested offence I have put forward sharpens the focus of the offence, removes the emotive concept of hate and maintains the ability for robust discussion and debate – vital aspects of the freedom of expression in a free and democratic society.

Ideally I would like to see the abandonment of the term “hate speech”. It has a sloganeering aspect to it and, as is so often the case with slogans, provides a form of shorthand for a much deeper and nuanced set of issues. It is for this reason that I have examined the Commission’s proposals in the depth that I have. It provides little profit from an intellectual or a policy perspective to debate a slogan like hate speech and its criminalisation without understanding what it really means from a legal point of view. This paper, hopefully, provides some clarification.

[1] The Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch mosques on 15 March 2019 (Wellington, 2020) p. 655 hereafter referred to as RC Report. https://christchurchattack.royalcommission.nz/the-report/ (Last accessed 26 December 2020)

[2] Ibid. p. 700

[3] I entirely agree and have written on the topic. See “Dangerous Speech – Some Legislative Proposals” available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3496363 or https://theitcountreyjustice.wordpress.com/2020/11/29/dangerous-speech-some-legislative-proposals/

[4] Expressions of contempt for members of a group may be insulting, offensive or discriminatory, but speaking contemptuously of a group is a far cry from encouraging hostility towards them.

[5] RC Report p.700

[6] Ibid p. 701

[7] Ibid p. 701

[8] Ibid. p. 701

[9] And its predecessor the Race Relations Act

[10] The emphasis is mine.

[11] Section 131 is similarly limited

[12] [1979] 2 NZLR 531

[13] [1972] AC 342.

[14] King-Ansell v Police above at p. 542.

[15] Ibid p. 543.

[16] [2018] 2 NZLR 471

[17] My emphasis. This reasoning could apply to the Charlie Hebdo cartoons of the Prophet or to the highly satirical movie “Monty Python’s Life of Brian”.

[18] Wall v Fairfax above at para [56].

[19] “If a tree falls in a forest and no one is around to hear it, does it make a sound?” is a philosophical thought experiment that raises questions regarding observation and perception.

[20] RC Report p.710 para [49]

[21] For example In 1967, Professor Lloyd Geering’s writings on the resurrection of Jesus and the immortality of the soul, resulted in his being charged by the Presbyterian Church with “doctrinal error” and “disturbing the peace of the church” – which is more or less the same thing as a heresy charge

[22] Sunni-Shia strife, especially in Iraq and Pakistan has led to violence and bloodshed.

[23] RC Report p. 710 para [51]

[24] [2011] NZSC 45

[25] See “Dangerous Speech – Some Legislative Proposals” available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3496363 or https://theitcountreyjustice.wordpress.com/2020/11/29/dangerous-speech-some-legislative-proposals/

Summary of the Argument

Discussion

Bill of Rights Act Issues

The Scope of Necessity

The “Religion” Problem

The United Kingdom Position

Definitional Difficulties

Excite Hostility

Religious\Ethical Belief?

Harm

Conclusion

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Introduction

Human Rights Act – Sections 61 and 131

Religion

The UK Approach

Conclusion

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Introduction

The Christchurch Call

The Single Source of Truth

The Validation of Discrimination

Misinformation and Disinformation

The Wellington Protest

The War on Disagreement

Conclusion

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­­­­­­­­­­­­Introduction

Definitional Issues

A Matter of Harm

Existing Remedies

Democracy vs Cohesion

Weaponising Fear

Conclusion – Vested Interests.

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Introduction

Human Rights Act Background

Elements

Excite or “Stir Up”

Protected Characteristics

Developing the New Offence

An Alternative Proposal

The Religious Exception

Conclusion

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Introduction