Vox Media – Media Commentary and John Campbell

I came to Media Law and the study of communications media as a result of a number of accidents. It all started with the availability of the Internet and the use of that medium as a tool for lawyers – primarily in the area of research.

That expanded as it became clear that the new medium provided a number of challenges to existing rules of law – copyright in particular was an early focus – and so I drifted from a consideration of how the technology could help lawyers to whether the rules around intellectual property would need to be revisited.

Then there was the question of computer crime and propose amendments to the Crimes Act in 1999 which were finally enacted in 2003. Defamation on the Internet and associated issues of jurisdiction also became apparent.

There was the move towards digitisation of news media which raised question surrounding the rules about media regulation (which still, in the minds of some I don’t include myself in that cohort, require State intervention). It was a developing, dynamic field characterised by continuing disruptive change.

For nineteen years I taught a course – Law and IT –  at the Faculty of Law, University of Auckland which led to writing a text book entitled internet.law.nz published by LexisNexis and now in its fifth edition. My studies and the development of the law surrounding new technologies resulted in my PhD studies on the impact of a new information technology (the printing press) on the law and legal culture in Early Modern England. That was published as a book – The Law Emprynted and Englysshed – The Printing Press as an Agent of Change in Law and Legal Culture 1475 – 1642. The analytical model that I developed in my PhD study was further developed and refined for a new book which was published as Collisions in the Digital Paradigm – Law and Rulemaking in the Internet Age. And in the meantime a University colleague, Rosemary Tobin, and I co-authored a text New Zealand Media and Entertainment Law.

I don’t teach any more. The Law and IT course fell into abeyance and Covid did not help. I was delighted to learn that Auckland Law is offering an ICT Law course as an elective next semester and I understand that there is to be a dedicated Chair in ICT Law the occupant of which is yet to be announced. In the meantime I have taken a door tenancy with a set of Chambers in Auckland – Sangro Chambers – which focusses on Media and IP Law. The head of chambers, Willy Akel is a leading media lawyer both in New Zealand and internationally.

The field continues to develop. The new new thing (As Michael Lewis described the phenomenon) is artificial intelligence although in truth the focus seems to be more on Large Language Models like ChatGPT. The truth is that AI has been with us for a long time. It has just become more immediate as one of its uses has become more available.

Keeping up with developments in the field is time consuming. There are a number of commentators on the state of the media in New Zealand. Radio New Zealand’s Media Watch which looks critically at the state of media is one such source. An independent organisation – NZ Media Watch – has been recently set up which provides a different and independent perspective. Shayne Currie, a former managing editor at NZME and experienced journalist, writes a weekly column for the Herald entitled Media Insider which features a number of stories about different aspects of the media ecosystem including news media, television and the advertising and associated media industries.

Currie at times is a rather lengthy read and often a reader might wonder where he is heading. He indirectly acknowledges this in a recent article where he concedes his columns are lengthy. But as so often is the case the journey has its own rewards although I wonder if at times Currie tends to be a bit too gossipy. But then the column is entitled Media Insider – and there are times when it is definitely that.

Earlier this year I published an article entitled “Vox Populi”. It was a critique of an article by John Campbell which appeared on the TVNZ Website. To be absolutely clear Campbell’s article was clearly presented and labelled as an opinion piece.

Campbell wrote another piece covering the Turangawaewae gathering on 20 January 2024.

That article attracted the attention of Karl du Fresne who was highly critical of the fact that TVNZ – a state broadcaster- had allowed such a partisan piece to be published. Du Fresne called for Campbell to be sacked, not because he disagreed with Campbell – although clearly he does – but because he is of the view that Campbell had a special duty of impartiality. Thus the thrust of du Fresne’s critique is directed to an absence of journalistic integrity.

In his latest Media Insider, Currie examines the “Campbell Phenomenon” and squarely confronts the issues that du Fresne has raised. In part he agrees with them. Because Campbell has been so clear on his position he is unlikely to present the news again in future.

Currie observes as follows:

“In my own opinion, du Fresne was over the top in his comments about  Campbell; some of the language he used about him was unnecessary.

I was indeed surprised that a well-known promoter of free speech had penned such a column. His call for Campbell to be sacked was excessive.

But I do think Campbell has painted himself into a corner in terms of his future responsibilities – something that TVNZ will need to be careful about, even though it insists its happy for him to present any of its news shows.

There’s no issue with Campbell continuing to investigate newsworthy issues – something he has done with distinction in the past, most notably with his team of journalistic crusaders at Campbell Live during that show’s 10-year run on TV3.

But this time last year he was reading TVNZ’s 6pm news – part of a summer roster of newsreaders at the state broadcaster.

In my view, it would be very difficult for Campbell to perform that particular role again – perhaps, at this stage of his career, he might not want to anyway.

Most newsreaders consider themselves unbiased and dispassionate, disseminating information that leaves the viewer free to make up their mind on news events without being coloured by who’s sitting at the desk.

As one senior TVNZ staffer told me a fair while ago: “Other presenter roles exist to enhance core material by adding personality, experience and opinion to the core material; with news, the content is inarguably the star of the show.”

TVNZ might also have to be careful about whether Campbell could fill in as a presenter on some of its other news and current affairs shows, for example, the politically focused Q+A.”

Currie continues as follows:

I personally don’t have any issue with Campbell writing a column, or TVNZ giving him a platform. I’m sure the TVNZ digital editors will be keen to ensure they have a wide range of views, from across the political spectrum.

As long as the columns are clearly marked as opinion – and they are – then fine.

But Campbell’s commentaries raise points about whether he can now fulfill certain other roles at the state broadcaster.

TVNZ insists he can.

“We are happy for John to step out of his chief correspondent role to present any of our programmes if the need arises, including the 6pm bulletin,” said a spokeswoman, adding there were no specific plans.

She said Campbell’s focus hadn’t changed but it had grown. His was a senior role, providing “indepth reporting and specialist expertise” across the news and current affairs portfolio.

She also reiterated my point above that Hosking and du Plessis-Allan write columns for the NZ Herald “and front news-leaning shows on ZB”.

On this point, I think there is a subtle difference.

Hosking and du Plessis-Allan are broadcasters – rather than journalists – whose shows and special talents draw big audiences expecting to hear their views, interviews and approaches to the day’s top issues.

They do not read the news at the top of the hour or chase down their own stories in the field.

On du Fresne’s column, the TVNZ spokeswoman said: “Opinion pieces and editorials are not new journalism formats. They play a role in holding power to account, reflecting different perspectives held in our communities and inspiring robust conversations.

“John’s pieces are doing that – they’re resonating with New Zealanders who agree or disagree with the perspective and driving huge digital audiences. Given du Fresne also engages in this style of reporting himself, the irony is not lost on us.”

Currie’s position about the extent of Campbell’s role with TVNZ is not as confident was Campbell’s TVNZ employers and I think they need to reconsider their open support for him. Campbell may have diluted the value of his brand in taking the clear positions that he has.

In many respects I agree with Currie. I think du Fresne, with whom I agree on many matters, overstated the case. But to be fair he is consistent. Du Fresne on his blog has long been a critic of what he sees as declining media and particularly journalistic standards. But sacking Campbell is a bridge too far. I understand the concern with his position of influence using a State broadcaster as a platform but as long as his material is entitled “Opinion” there should be no problem. Although TVNZ is clearly supportive of him, and more extensively than Currie would have, it does not necessarily mean that it endorses his views.

From my earlier post it will be clear that I hold no brief for Campbell. I find his style pompous, self-righteous, booming and overbearing with faux bonhomie and a vision of New Zealand as he would like to think it was or should be but never was and is unlikely to be.

That said, I would never deny him a platform nor would I deny him the right to hold and to express an opinion. That is an essential aspect of our liberal democracy. And although I don’t like his style and find his pomposity grating, I will still read and consider his material and his opinions, in the same way as I do with another self-righteous progressive, Simon Wilson, who writes for the Herald.

Points of view are all important in allowing individuals to arrive at a conclusion about an issue. Consideration of differing points of view requires an open mind, which is often not easy to achieve but attainable with practice. Disagreement with a point of view does not justify shutting it down. At some stage the points of view and the information contained can crystallise an issue and at times allow for consensus or acceptance of a position.

Shutting people down and stifling their opinions is not the way to go.

Strengthening Resilience to Disinformation – A Solution

This post appeared in a very slightly different form on my substack site “A Halflings View”

I have been referred to a webpage from the Department of Prime Minister and Cabinet. I have adapted the heading to the page as the title for this post.

The webpage starts:

“The way that people access and consume information has radically changed in the last few decades. The ease and speed of access to digitised information has come with numerous benefits. However, these technologies can be used in ways that cause harm. Where individuals or groups communicate to shape public perception in ways that may be manipulative, deceptive or misleading, this can be referred to as ‘disinformation’.”

It goes on to note that the effects of disinformation and misinformation are of concern to New Zealanders and those concerns are high on the list of national security threats people felt would likely occur in both the short and long term.

The message advises that

“The Government is seeking to support a “whole-of-society” approach to build understanding and resilience against the harms of disinformation, that can be led primarily by those outside government. This approach recognises the need to maintain an open internet and uphold the right to freedom of expression.”

Three initiatives are proposed

1.   Convening a “civil society-led group” to scope longer-term work

2.   Working to design a one-off fund to  support community projects and organisations in helping to build New Zealand’s resilience and capacity to respond to disinformation.

3.   Commissioning public research and analysis into the problem.

What is the purpose of this? The Request for Proposal (RFP) states as follows:

“The government is seeking to support a “whole-of-society” approach to build understanding and resilience against the harms of disinformation, that can be led primarily by those outside government. This approach includes commissioning reporting to build a transparent empirical foundation for any policy response; enhancing community capacity and capability outside of government; and promoting civil society leadership.”

It should be remembered that it was the same Department that in 2020 suggested that

“Ideally efforts to counter mis/disinformation should be led outside of government by the media, civil society, NGOs, academia and the private sector. Several leading academics, research organisations such as Te Pūnaha Matatini, and other organisations such as Netsafe and InternetNZ have already been very active, and we are exploring how to support them and lift their capacity in this work.

Oversight of mis/disinformation is a sensitive issue, as any public commentary or perceived control of a ‘counter-disinformation effort’ can reinforce conspiracy meta-narratives about state manipulation of information and give legitimacy to those claiming an erosion of free speech. For this reason, we would not recommend formal allocation of disinformation responsibilities or the identification of a government spokesperson. A group of relevant Ministers with whom significant issues can be highlighted and public communications approaches approved will, however, be important to ensure appropriate proactive oversight of official activity in this area”

One can only speculate that the current proposals are yet another example of the State “distancing” itself – at least as far as public perception is concerned – from interference with matters of expression whilst at the same time driving, indirectly, the campaign against disinformation.

And what is seen as the final outcome? The RFP states:

“The reporting produced as a result of this RFP is intended to be released publicly. DPMC is aware that this kind of work is a matter of evolving best practice, and while we will scrutinise proposed solutions carefully, we are realistic about the need to support a developing community of local practitioners.”

There are a few issues that arise out of these proposals.

1.   The opportunity for citizens or groups to put their names forward to help is obscure. It is located on the Government tender page. I would have thought that there would be a link but there is not. Input is not sought from individuals. A certain level of organisation and structure is required of applicants. Institutions are clearly the target. I would suggest that  at the end of the day the “civil society-led group” will probably be appointees which will probably include well-known groups who frequently appear in the “Disinformation” space. Outcomes in such a situation become predictable.

It should be remembered that in its paper “Dangerous speech, misogyny, and democracy: A review of the impacts of dangerous speech since the end of the Parliament Protest” (August 2022) the Disinformation Project recommended:

The establishment of a transparent, outside government entity to provide research, analysis and advice for communities, civil society organisations, agencies and independent crown authorities on information disorders and their impacts in Aotearoa New Zealand.

I suggested that this recommendation was clearly a pitch by the Project to be an “outside of government” entity. As I observed – the best way to get a job is to suggest that there is a need for it.

When one reads through the Request for Proposal (RFP) documents it becomes clear that the Disinformation Project will be a likely appointee.

2.   At no time – and indeed throughout the whole campaign against disinformation- have any concrete examples of disinformation been provided. Rather the all-embracing catch-words of dis and misinformation and conspiracy theories are flung about without any clear examples. It would be helpful to have examples rather than the use of buzz-words like hate speech, misogyny and the rhetoric that emerges from the Disinformation Project.

3.   Although the terms misinformation and disinformation are defined (on the definition of disinformation see the next item) there is ample scope for “mission creep”. The RFP states

“This RFP is primarily focused on disinformation, but acknowledges that reporting may cover a wider spectrum of false and misleading information.”

4.   There is in fact a very simple solution to the “disinformation problem”. It works like this. Let us start with the definition advanced by the DPMC

“Disinformation is false or modified information knowingly and deliberately shared to cause harm or achieve a broader aim.”

Let’s cut through the rubbish of bureaucrat-speak (There is the Plain Language Act 2022 statute on the books but reading the RFP one would not know it) The Plain Language word for disinformation is lies. Call it for what it is.

The business about sharing knowingly or deliberately adds nothing. Information is passive unless it is published. The same is the case with disinformation. It is axiomatic it should be shared. Otherwise it is neither information nor disinformation

What is the antidote and antithesis of lies – the truth. John 8:31, writing in another context, made it clear – “the Truth will set you free”. That is how you “strengthen resilience to disinformation.”

Rather than engage in a complex bureaucratic process – for that is what is envisaged – simply use counter-speech (advocated by Nadine Strossen in her recent visit to New Zealand) to address the lies and counter lies with plain unvarnished truth.

Sadly however I think the agenda may go deeper than merely countering disinformation and reference is made in the opening statement to the use of information technologies as a means of disseminating disinformation.

My concern is that this is a covert attempt to regulate the means of distribution of information – a blunt instrument approach to a subtle and nuanced problem.

Certainly that is what has been advocated in some of the papers released by the Disinformation Project.  

In its RFP the DPMC states

“The protection and promotion of human rights, including freedom of expression, a diverse range of views, and rights to privacy, are critical to this work programme. Any solutions must proactively incorporate structures and safeguards designed to build public trust and confidence and enable robust testing of data collection, analysis, and conclusions.”

This is encouraging. In addition the RFP states:

“We do not want solutions oriented toward intervention in disinformation, reporting particular instances of disinformation to platforms or governments, or censorship.”

The ultimate goal is stated to understand the problem of disinformation in New Zealand, to continue that understanding, to encourage future reporting, to maintain independence of reporting from Government and to confine the scope of the work to monitoring the problem and insights into it.

In the final analysis the target of this proposal is the transmission of information. It must always be a matter of concern when the State involves itself in this activity. We already have significant regulation of the means of communication of information (radio and TV licences as examples) and a means of managing and controlling content (the Classification Office and the Broadcasting Standards Authority as examples).

Because “disinformation” is acknowledged to be a problem occurring mainly in the digital space – the Internet which is largely unregulated – it seems to me that understanding the distribution of this form of content is a prelude to an attempt to regulate this means of distribution of information – hence my earlier expressed concern.

Watch this space.

Elegant Argument and the Heckler’s Veto

I have written before about what I consider to be the decline of reasonable discourse. Certainly any hope for reasoned argument and a discussion about differences in opinion and point of view has gone out the window.

If anyone thought that the recent incident involving Kellie-Jay Keen-Minshull (aka Posie Parker) was unusual they are forgetful of earlier examples of shutting down disagreeable points of view. Massey University’s cancellation of Don Brash’s invitation to speak in 2018 provides one example although to be fair he later spoke at Massey in 2022.

Brash’s “cancellation” took place around the same time as the attempt by controversial Canadians Lauren Southern and Stefan Molyneux to speak publicly in Auckland at the Bruce Mason Theatre. They were denied that venue by Regional Facilities Auckland although the then Mayor Phil Goff did not hesitate to express his opposition to them using public facilities made available by the City Council. This refusal gave rise to litigation which went all the way to the Supreme Court – see Moncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138– where the approach by Regional Facilities was upheld.

From time to time controversial speakers visit our shores. Often their presence or their opportunity to express their views is challenged. In 2022 there were calls to cancel Jordan Peterson’s presentation in Auckland in 2022 by Auckland feminists and by transgender activist Shaneel Lal. Lal was one of the organisers of the what was described as a counter protest (it was in fact a protest) against Ms Keen-Minshull.

An attempt to seek a High Court decision to review the fact that Ms Keen-Minshull was permitted to enter the country was unsuccessful, notwithstanding sympathetic comments by the Judge hearing the application – see Auckland Pride v Minister of Immigration (Reasons Judgment 5 April 2023) [2023] NZHC 758. One of the concerns that was expressed by the applicants was that the extreme views expressed by Ms Keen-Minshull attracted conservative, far-right, white supremacist groups and that her presence might constitute a threat to public order.

That in fact came to pass. In one of what must be the most extreme examples of a cancellation or deplatforming of a person who was entitled to express a point of view, Ms Keen-Minshull was set upon and allegedly assaulted by one of the protesters present. This cancellation was subsequently celebrated by Shaneel Lal.

There were people present who genuinely wanted to hear what Ms Keen-Minshull was going to say and who had a right to receive the information imparted albeit that information may have been unacceptable. I am sure that Shaneel Lal as a law student, is acquainted with the provisions of section 14 of the New Zealand Bill of Rights Act 1990 which guarantees the freedom to seek, receive, and impart information and opinions of any kind in any form. He and the protesters not only cancelled Ms Keen-Minshull’s right to express and opinion but also cancelled the right of members of the audience to hear her opinion.

Another example of “official” cancellation may be seen in the withdrawal of a venue previously available to Julian Batchelor who faced threats of disruption from opponents of his position.

This trend of cancellation, deplatforming or “the heckler’s’veto” was considered by the Supreme Court. It noted that the “heckler’s veto describes the situation in which those wishing to exercise their free speech rights are prevented from doing so by actual or threatened protests, particularly threats of violence. (See Moncrieff-Spittle at para [93]. Although it could be suggested that there may be attendant health and safety issues arising from the exercise of free speech it may be that the cancellation of a venue hire agreement (as was the case in Moncrieff-Spittle) may be reasonable limit that could be justified in a free and democratic society. (Moncrieff-Spittle at para [101] and following.)

The Supreme Court was at pains to point out that every case had to be dealt with on its individual merits. The problem is whether or not every controversial speaker who comes to New Zealand will run the risk of threats of violence and disruption to such a degree that the authorities will not make venues available or the speaker is silenced by a level of violent and disruptive behaviour as was experienced by Ms. Keen-Minshull.

This does not bode well for the freedom of expression in New Zealand – where a vocal minority can shut down the expression of an opinion by one person and prevent the hearing of that expression of opinion by another.

However, this form of cancellation or deplatforming by threat is not the only way in which points of view may be silenced.

Recently Sean Plunket, an outspoken broadcaster who runs a show on the Platform was banned from Twitter. He was reinstated a few days later. I also know of a person who was banned from a discussion group (the organisation does not matter) although his posts were rational and polite. That person was asked to justify his position and have his continued participation in the group reassessed. He has since been reinstated.

It is acknowledged that platforms occupy a somewhat different position from Government organisations when it comes to freedom of expression, and in many cases rely on contractual terms to moderate content that may be permissible. But that said, a person who uses such a platform has an expectation of fair treatment. Rather than be deplatformed without a hearing, and then have to justify reinstatement (an interesting reversal of the traditional flow of proof burdens both civil and criminal where the accuser has the burden of proof).  My view is that a warning should issue advising that deplatforming is likely if the conduct complained of is continued. That at least could be the starting point of a dialogue where the accused person would have an opportunity to put his or her point of view (in law the principle is audi alteram partem – hear the other side – before reaching a decision).

This leads me to a theme which I have expressed before in other posts. Many of those opposed to a particular position would rather not debate it for fear of giving the oxygen of publicity to the opposed point of view. Rather those opponents would like to see the point of view remain unpublished or shut down entirely.

This runs contrary to the “marketplace of ideas” position which suggests that contending positions should be discussed and considered. If an idea has validity or is acceptable it will survive the debate. If it is invalid or unacceptable it will be dismissed or at best relegated to the margins.

But what is important in this process is that an idea, opinion or point of view should be properly and objectively debated. That debate should not involve emotive language, the use of “veto” words like racist, conspiracy theorist  or toxic. Rather, if an idea or opinion does contain elements of say, a conspiracy theory, identify the theory and explain why it is incorrect or wrong. Admittedly, many of those advancing a contrarian position (probably a better term than the emotive “conspiracy theory”) are monist in their approach. But while the person expressing the contrary opinion may not be convinced of the invalidity of the argument advanced, a member of the audience may be and in that way the marketplace of ideas succeeds.

The problem as I see it is that in the current climate rational and objective argument seems to be sidelined in favour of emotive outbursts, veto statements and cancellation behaviour.

My professional background has been in the environment of a highly structured approach to contending positions. In addition there are a number of fundamental rules underlying that approach. One side has an opportunity to put forward a proposition and produce evidence to support it. The other side has an opportunity to critique the evidence by way of cross-examination and put forward a contending point of view supported by evidence. The decision-maker may intervene in argument by questions or to test it in a Socratic manner. This process of argument, when done properly, has a high degree of elegance to it. Sadly it is too much to hope that it would be a characteristic of public debate.

There can be no doubt that the comments sections of the NZ Herald, Facebook, LinkedIn or Twitter itself are hardly venues for the level of debate that should take place in the marketplace of ideas. But in public fora a person should have the opportunity to put a point of view, stand ready to justify it and debate the rights and wrongs in an objective and rational manner. Heckling can often be amusing but is something of a distraction and in my view characterises the heckler as one who is not prepared to properly engage.

It is for good reason that the current trend of cancelling and deplatforming is called “the heckler’s veto”.

Withdrawing the “Hate Speech” Amendment

Earlier this week it was announced that the Govenment intended to withdraw 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” against 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:

1. The references to exciting hostility or causing harm should be redefined to for the abrogation of a NZBORA right
2. 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)
3. 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.

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[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

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:

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

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

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

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

The difficulty with including threatening, abusive or insulting language against groups based upon religion means that not only would Islamaphobic “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?^[7]

A further difficulty with religious-based speech is that often there are doctrinal differences that can lead to strong differences of opinion that are strongly voiced. Often the consequences for doctrinal heresy will be identified as having certain consequences in the afterlife.

Doctrinal disputes, often expressed in strong terms, have been characteristics of religious discourse for centuries. Indeed the history of the development of the freedom of expression and the freedom of the press was often in the context of religious debate and dissent.

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

An example of the difficulty that may arise with restrictions on religious speech may be demonstrated by the statement “God is dead.” This relatively innocuous statement may be insulting or abusive to members of theist groups who would find a fundamental aspect of their belief system challenged.

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

Yet the same statement could be insulting or abusive to atheists as well simply for the reason that for God to be dead presupposes the existence of God which challenges a fundamental aspect of atheist belief.

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

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

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

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

THERE’S SOMETHING HAPPENING HERE?

Introduction

Bruce Cotterill wrote an opinion piece for the New Zealand Herald. It was published on Saturday 5 November 2022. It was about free speech and entitled “Free speech – worth speaking up for.” It presented some important and compelling arguments in support of the importance and necessity of freedom of speech.

Mr Cotterill’s article attracted some comment. Even something as fundamentally important as freedom of speech is a contentious topic. Critics of advocates of free speech use the ability to express themselves freely in opposition. If it were not for free speech they would be unable to do so. That in itself demonstrates the vital importance of freedom of expression.

One critic of Mr Cotterill’s piece took him to task for conflating freedom of speech issues and disinformation. The reasoning is clear. There is a move afoot to point out and deal with disinformation. That in itself is a freedom of speech issue. No matter how wrong headed a point of view might be, if there is no immediacy of physical harm caused by the expression of the point of view, freedom of expression allows it to be communicated.

I should observe at this stage that rather than the term “Free speech” I prefer to use “freedom of expression.” There are two reasons for this.

The first is that is the term that is used in Section 14 of the New Zealand Bill of Rights Act 1990.

The second is that the right as expressed in section 14 recognises that freedom of expression is a two way street. There is the right to impart information and opinions of any kind in any form – what could be called the “outward flow”. There is also the right to seek and receive information and opinions of any kind in any form – what could be called the “inward flow”.

In the discussion that follows I go another step further than Mr Cotterill and conflate what is referred to generically as “hate speech” with disinformation. Both concepts have freedom of expression implications. My reasons for conflating the concepts will become clear in what follows.

My discussion commences with a prologue, highlighting some of the remarks made by the Primes Minister of New Zealand Ms Jacinda Ardern at the United Nations General Assembly.

These remarks set the stage for the discussion that follows. The starting point for that discussion is the announcement by the Minister of Justice Ms Kiri Allan that “hate speech” legislation – legislation that has had a gestation period that would rival that of a blue whale – will be enacted by the general election in 2023.

The discussion then moves to consider two documentaries that were screened on television during the week of 31 October 2022. One is entitled “Web of Chaos”. The other was the final episode of the series “A Question of Justice” and addresses hate crimes.

I then go on to make some observations about the climate of fear that has continued to develop in New Zealand, fed not only by documentaries such as “Fire and Fury” and “Web of Chaos” but also by some disturbing and sonorous remarks by the Director of the New Zealand Security Intelligence Service, Ms Rebecca Kitteridge.

Taken collectively these various events and pronouncements provide a backdrop against which a discussion of hate speech legislation, mis/disinformation and the tension with the freedom of expression is going to take place.

I pose a question – taken from the opening lines of a 1967 song by Buffalo Springfield entitled “For What its Worth” – “There’s something happening here?”

Prologue

On 23^rd September 2022 Prime Minister Ardern addressed the United Nations General Assembly. She spoke generally of the issues of the day before segueing into a discussion of the new weapons of war, referring to cyber-attacks, prolific disinformation and the manipulation of communities and societies.

The cyberattacks are easily understood. It was the second part that was concerning because the weapons to which Ms Ardern referred were words.

She quickly reassured her audience that “even those most light touch approaches to disinformation could be misinterpreted as being hostile to the values of free speech we value so highly”.

Yet within moments she retreated from that view when she posed the rhetorical question  “How do you tackle climate change, if people do not believe it exists?”

The answer becomes clear when you line that comment up against the claim made during the height of the COVID pandemic that the Government was the sole source of truth. The answer is to shut down speech that is hostile to the received wisdom of the Government.

If there is to be a move towards further restrictions of speech – and this is in the wind following the announcement during the week of 30 October that the Minister of Justice will introduce “hate speech” legislation before the next election – who is to decide what speech should be restricted? When does opinion become misinformation? What is an accurate opinion as opposed to an inaccurate one? When does mis/disinformation become “hate speech?” If the law manages to shut down one side of an argument the community is the poorer for being unable to evaluate an alternative view.

Two Documentaries

On 1 November 2022, TV1 screened the documentary “Web of Chaos”. The following day, Prime screened the fourth instalment of the series “A Question of Justice” which addressed hate crimes.

I shall start my consideration of the documentaries by explaining why I conflate disinformation and hate speech.

The predominant theme of “Web of Chaos” is that of disinformation and the way that online networks have enabled its spread. Sadly, at no time is disinformation defined. This is curious because much of the documentary contains interviews or commentary from two academics involved in The Disinformation Project. One of these academics is Ms. Kate Hannah.

Ms. Hannah describes how people are drawn into mis/disinformation networks in in different ways. She refers to the “trad wife” viewpoint. She claims that white Christian pseudo-Celtic pseudo-Nordic ideology lies behind this viewpoint. They (presumably the “white Christian pseudo-Celtic pseudo-Nordic”) use Pinterest and Instagram to draw in other women who are interested in interior design, children’s clothing, knitting, healthy food for children.

From this innocent start people are drawn in towards a set of white nationalist ideas. Fair skinned children with braids is a danger signal according to Ms Hannah. She did not explain why this was the case.

She then referred to the association of these ideas with a toxic masculinity which had

 ”…very fixed ideas about gender roles, race, ethnic identity, national identity, nationalism and rights to  things like free speech – very influenced by a totally US centric model.” (“Web of Chaos” at 21.5) 

In essence these characteristics, according to Hannah, derive from US based alt-right perspectives.

If I understand Ms Hannah’s position disinformation is associated with extremist ideologies. These ideologies are nationalistic, white supremacist and far right.

This may be viewed alongside the material presented in the documentary by Professor Lisa Ellis, Political Philosopher, Otago University. She commented on some aspects leading to the rise of the Nazi’s in 1930’s Germany. The racist hatred of Nazis is reflected in some modern extremist organisations. Ms Hannah and Professor Ellis focus on the Far Right but similar racist hatred is expressed in other ideologies represented by Al Quaeda or ISIS.

The Stuff documentary “Fire and Fury” – which I have written about here – dealt with the rise of disinformation and the way in which that led to radical and violent action and extreme expressions of hatred especially towards politicians.

The very clear message from these sources is that disinformation and racial hatred or hate speech are two sides of the same coin. According to Ms Hannah they are inextricably intertwined. One inevitably leads to another. It seems that any discussion of disinformation ultimately ends up in a consideration of hate speech or extremist speech.

In her address to opening of New Zealand’s Hui on Countering Terrorism and Violent Extremism – He Whenua Taurikura the Ms Ardern made a similar association between disinformation and violent extremism. I discuss this in detail below.

It is for those reasons that I conflate disinformation and hate speech as both worthy of consideration in a discussion about freedom of expression.

1 November 2022 – Web of Chaos – TV 1

This TV programme was described as “A deep dive into the world of disinformation, exploring why it’s spreading at pace throughout Aotearoa and the world, with specialists warning of striking consequences for social cohesion and democracy.”

In many respects, both in the manner of presentation and the content presented it bore a close relationship to the “Fire and Fury” documentary put out by Stuff. It starts with a recognition of the way in which online platforms can enable communities but then rapidly descends into a critique of what is described as cultish behaviour.

Kate Hannah was joined by Dr. Sanjana Hattotuwa, also of the Disinformation Project and assisted by David Farrier, described as a journalist and podcaster. Farrier tracks the development of Internet communication from the early days of discussion groups to the current world of social media platforms and algorithm driven content.

A fair section of the programme focusses upon the Wellington Protests of February – March 2022, covering the same material as “Fire and Fury” and expressing similar concerns about perceptions of violent radicalism or extremism. A concern by Dr. Hattotuwa is that the Internet provides a means of communication and connection between previously isolated radicals. He describes it as the algorithmic amplification of psychosis.

Although it is not clearly explained there is ample evidence to establish that social media platforms use algorithms in the background. These algorithms are designed to track the search or interest patterns of a user and then provide more information of a similar type. The problem is that as the user follows a particular interest, more and more information associated with that interest will be provided. This can be troublesome if the users’ interests are oriented towards violence or extremism. More problematic is the situation where a user may hover around the edges of extremist content but be served up more and more content of that nature.

Both Dr Hattotuwa and Ms Hannah immerse themselves in the vast amount of what comprises misinformation, disinformation and radical extremism online.

 Dr Hattotuwa subscribes to 130 Telegram channels and groups. He concedes he does not read everything that comes across his screen. Because of the way he organizes the information, he claims that he gets an insight into the mindset of the people who frequent the channels.

Dr Hattotuwa discussed what he calls toxic information and commentary including material directed about the Prime Minister. What was extraordinary was the suggestion that this toxic informational landscape was being used by 350,000 New Zealanders – all grooming and harvesting. Dr Hattotuwa emphasizes “It is here. It is amongst you” (“Web of Chaos” at 29.30). No evidence is offered to support either the numbers or the assertion.

Ms Hannah expressed concerns about death threats that she received and records the ritualistic washing of hands she undertakes before she examines archival material – a form of symbolic disengagement from reading unpleasant material.  She does the same investigating information on the computer. Dr. Hattotuwa describes how he has two showers a day to symbolically wash away the detritus of the online material he has been viewing. These actions on the part of two individuals who are meant to be carrying out dispassionate and objective research is interesting if only for the level of subjectivity it introduces.

Marc Daalder – reporter on Technology and the Far Right which must be a clear indicator of other than an objective perspective – suggests that although there may not be funding of extreme groups in New Zealand the Internet allows the importation and availability of this material.

Ms Hannah suggests that groups are using New Zealand as a laboratory for disinformation strategies to see if they work.

The documentary offers no solutions other than to have Professor Ellis observe that today’s Digital Natives are less likely to be taken in by mis/disinformation and Conspiracy theories. She holds out some hope for the future.

What the documentary does do is to further enhance the aura of fear that was generated by the “Fire and Fury” piece, identifying what is perceived as a problem but leaving the door open as to solutions.

The conflation of disinformation with hate speech suggests that whatever proposals there may be for restricting or limiting hate speech should be applied equally to disinformation and possibly even misinformation. This would result in a significant limitation upon the freedom of expression.

Ms Hannah and Dr Hattotuwa expressed their views in the “Fire and Fury” documentary as well as the “Web of Chaos” documentary. They are entitled to express their views. My suggestion is that those views should be approached with caution. Although they may be able to point to evidence of what they describe as mis/disinformation, the way in which they interpret that evidence gives me some cause for concern.

Certainly they are neither dispassionate nor objective about their topic. This is evidenced by the reactions that they have to the content of the material that they view. They clearly are responding subjectively to it. They make value judgements rather than empirical or descriptive ones.

One astonishing connection was made by Ms Hannah to which I have referred above. In her discussion about connection between white nationalism and the slide towards extremism she said that an identifier of the groups of which she was critical involved the “advocacy of rights to things like free speech.” (My emphasis)

I trust Ms Hannah does not stand by that generalization. The implication is clear. If one is an advocate of rights such as free speech, one is a right-wing extremist, supporting white nationalism or white supremacy.

That conclusion cannot be supported by the facts. Those who advocate liberty are not extremists. Those who advocate freedom of expression are not far-right wing. For example, an examination of the Council of the Free Speech Union reveals some commentators who occupy a position on the Left of the political spectrum.

Ms Hannah’s sweeping generalisation does neither her argument nor her credibility any good. Dr Hattotuwa’s unsupported assertion that 350,000 subscribe to the toxic informational network does little for dispassionate analysis or objectivity.

Indeed, examples such as this cause one to examine with a greater critical lens, the assertions and validity of material that emanates from the Disinformation Project.

Indeed the whole tone of the “Web of Chaos” documentary had a whiff of hysteria to it. Suggestions of a far-Right conspiracy peddling disinformation with the objective of destroying democracy echo the themes underlying “Fire and Fury”.

This was my conclusion on that documentary

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.

One writer described “Fire and Fury” as an example of agitprop. I am driven to agree. I ascribe the same word to the “Web of Chaos” documentary.

2 November 2022 – A Question of Justice – Hate Crimes

The documentary programme “A Question of Justice – Hate Crimes” was the fourth in a series which examined aspects of the New Zealand justice system. Earlier episodes focused on the role of victims in the system, the over-representation of Maori in the criminal justice system and whether there should be degrees of the crime of murder.

The style of the series was to take a case or a couple of cases as exemplars of a problem and then carry out an investigation focusing on the issues raised by those cases.

The episode on hate crimes focused on the Christchurch mosque attacks and the killing of Jae Hyeon Kim by white supremacists. The programme examined the nature of hate crimes and the proposals by the Royal Commission on the mosque attacks surrounding hate speech.

The documentary used an “investigative team” approach who reported back and developed an itemized set of problems or shortcomings and then examined possible solutions. Each episode focused on a certain case or cases.

The investigators themselves acted as reporters and were clearly neutral. Occasionally questions about shortcomings in the system might arise but these were stratagems for further lines of inquiry rather than criticism or advocacy for a particular point of view or outcome.

Documentary maker Bryan Bruce who leads the series said of the style of the show:

“I try not to go into any investigation with a ‘stance’. What I try to do is formulate questions that hopefully will get to the core of an issue. Then I talk to a whole lot of people wiser than me to try and find the answer”

Speaking of the first programme in the series about victims, Bruce observed:

“If I had to pick one thing that surprised me, it would be that I had always wrongly assumed the State prosecutes an offender to get justice for the victim. In fact, the prosecutor prosecutes the offender on behalf of the Crown and no one actually represents the victim in court… and that’s something I think we need to look at.”

Bruce stated that the overall purpose of the series was to use

“case studies to examine the law by which we are all bound. Viewers, I hope, will find it engaging but the purpose in making the series was not to produce sheer entertainment.”

The tone of the series was more that of the traditional documentary. It was generally dispassionate and objective and helped to identify problems and at time suggesting possible solutions without advocating any particular outcome.

In this respect the approach to hate speech differed from that of “Wed of Chaos” or “Fire and Fury”. In many respects the “Question of Justice” episode benefitted from a more measured and less emotional approach.

Rather than use dramatic footage and video tricks, it focused upon the nature of the problem and, although not specifically identifying it as such, the way in which the Royal Commission had addressed hate speech and the various tensions between freedom of expression and speech which incited hatred and violent action towards others. In this respect one was left with a sense that reason and objectivity predominated, and that some sense had been brought into the debate.

It would have been helpful if the documentary had detailed the solutions offered by the Royal Commission. I have written on the Royal Commission proposals here.

One of the matters that the Commission’s report was to abandon the use of the word “incite”. It suggested that the term “stirring up” was a better one. It described the way in which speech could potentially be transformed into action. However, the documentary closed by focusing on the term “incite”.

One thing that the documentary did not do was attempt to define “hate” or “hate speech”. In this respect it left and interpretative door wide open. It recognized the tension between freedom of expression and harmful speech. It acknowledged the difficulty in where to draw the line. But the wider association of “hate speech” and “disinformation” that has been touted by “Fire and Fury” and “Web of Chaos” remains.

31 October – 1 November 2022 New Zealand’s Hui on Countering Terrorism and Violent Extremism – He Whenua Taurikura

The focus of the hui was the prevention of terrorism and violent extremism. In her opening remarks, Prime Minister Ardern referred to threats to our security. Second and third on the list of the five top threats of most concern to New Zealanders was misinformation and hacking – a reprise of the concerns that she mentioned at the United Nations speech. She went on to say

• “Greater efforts are needed to detect dis-information campaigns and networks, and disrupt them, while calling out those that sponsor this activity. We are committed to working with communities, media, academia, civil society, the private sector – especially our social media platforms to counter the threat of disinformation, and I will talk about this and the Christchurch Call in the second part of my speech today.”

In discussing the Christchurch Call, Ms Ardern said:

“There must always be space for radical ideas; these are valued and vital in Aotearoa New Zealand as a free, open, democratic and progressive society.”

A reiteration of her acknowledgement of the importance of freedom of expression that she made at the UN

“However, when dehumanising and hateful ideas are part of ideologies that include hate and intolerance toward specific groups or communities, promoting or enabling violence, these may indicate a path toward violent extremism.”

To deal with this problem she itemized the importance of research the problems arising from the online environment upon which we are dependent and the importance of the international effort – the Christchurch Call.

Using the collective power of national governments who have joined the call the objective is to bring pressure upon technology platforms to change the online and societal landscape.

Ms Ardern then went on to talk about the development of a Strategic Framework for Preventing and Countering Violent Extremism, which includes solutions and approaches developed by society for society. A prevention framework includes a fund for preventing and countering violent extremism. The fund, over three years, will provide grants to civil society and community organisations to support them to deliver initiatives for building resilience to violent extremism and radicalisation.

Finally she stressed the importance of talking about national security, and in this respect the hui was addressed by SIS Director Ms Rebecca Kitteridge.

Ms Kitteridge made the following statement:

“Recognising a potential warning sign and then alerting NZSIS or Police could be the vital piece in the puzzle that ultimately saves lives.”

To that end the SIS has published a guide called “Know the Signs” to help identify terrorists. The Guide is directed towards violent extremism rather than non-violent forms of extremism. Ms Kitteridge suggests that if a person sees something that is “off” or that worries or concerns, the suggestion is to consult the guide and try and work out if the person is on the road to perpetrating an attack.

The guide lists 50 signs from the very obvious (like writing messages on a weapon) to a person who is developing an “us versus them” world view. The SIS is monitoring some 40 – 50 potential terrorists but now a new suspicious class has emerged – those driven by politics. Ms Kitteridge suggests that this could be motivated by the measures that the Government took over COVID or other policies that are interpreted as infringing on rights – what Ms Kitteridge describes as a hot mess of ideologies and beliefs fuelled by conspiracy theories.

It is clear that the publication of the guide means that the SIS recognizes that it cannot do their work alone and that they need the help of the public.

In the introduction to the Guide Ms Kitteridge states:

“I am asking all New Zealanders to look out for concerning behaviours or activities that could be easily observed, and to report them. You may be uniquely placed to see the signs, and to help NZSIS to understand the true threat an individual poses.”

Paul Spoonley obviously buys into the SIS proposal but sees it as a first step. He sees a problem in upskilling people to understand what it is that they are seeing.

So citizens are being encouraged to monitor friends, family, neighbours and those around them, and must be watchful for the “signs”. They must be upskilled to recognize the “signs”. This air of suspicion is grounded upon fear. This has echoes of the “Red Scare” in the USA between 1917 and 1920. The Red Scare was the promotion of a widespread fear of a potential rise of communism, anarchism or other leftist ideologies by a society or state.

There was a second Red Scare in the USA from 1947 – 1957 associated with the rise of McCarthyism and the fear of Soviet espionage in US Government agencies and the “witch-hunts” that followed. Fear and suspicion characterized both of these periods. History is repeating itself but on these shores.

The Fear Factor

When the COVID pandemic hit, the Government was able to obtain compliance with a draconian suspension of our rights and liberties. It did this within a context of a climate of fear. The fear was that if the restrictions were not put in place people would contract COVID and die.

The fear factor was a part of the Government strategy through to the vaccination programme, the mandates that were imposed and through until the so-called “traffic-light” system.

It became apparent, after the numbers began to subside, that the fears of death had been overstated. The “fear factor” was received with skepticism on the part of the public which was prepared to assume risk and take their own measures to protect their health and well being.

Now the fear factor has shifted. The shift has been a gradual one. Instead of the fear of disease and death, what is being advanced is a fear of attacks upon democracy and our way of life – the scare tactics that were applied in the US with the fear of the Communist menace and infiltration.

This narrative began during the pandemic and was highlighted during the vaccine mandates. Those who resisted the mandates – the anti-vaxxers – were viewed as a contrarian threat to the Government line that emanated from “the podium of truth.”

This has morphed into a fear of the erosion of democracy arising from disinformation. The likelihood of terrorism in our own backyard. The need for vigilance. An insidious vaguely identified threat to our way of life.

This fear is magnified by messaging from our politicians. It is suggested that the election next year will be a different one as politicians – at least from the Government – are afraid of walking the streets and canvassing for votes as they once did. An air of hostility is abroad – or at least that is the narrative.

The cultivation of this atmosphere of fear enables the Government to justify erosions of liberty. One example of this will be to target “hate speech” and its close relative, disinformation. A fearful public will be more willing to accept interference with the freedom of expression if it may be seen to address a problem that will supposedly lessen or reduce the fear.

There is a wider issue arising from the climate of fear. I have already addressed it in some detail in an earlier post entitled “Fear Itself”. In that post I conclude with a consideration of the vested interest of mainstream media in promoting the “narrative of truth”. I said there:

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.

I also made some observations on the fear factor engendered by the agitprop “Fire and Fury” documentary. In that piece I said:

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.

Conclusion – What it Is is Becoming Clear

The debate about so-called “hate” or “dangerous speech” must take place in a calm and objective environment. I realise that this is a sentiment based more on hope than reality, for the subject is an emotive one.

But the debate must not take place against a backdrop of fear which may mean that the solutions proposed are more extreme than the problem itself.

The growing panic on the part of some of misinformation and disinformation feeds into the wider landscape of concerns about “messaging” and, as I have argued, seems to have fed into the “hate speech” milieu with calls for regulation.

Comments like “disinformation corrodes the foundation of liberal democracy” – made by Ms Ardern – add to the scaremongering, softening up the populace so that they become pliable and amenable to greater restrictions on the freedom of expression and ultimately their liberty. It won’t just be about “hate speech.” The net will become incrementally and subtly wider to catch other forms of dissident and contrarian opinion.

Indeed, as Thomas Jefferson said “eternal vigilance is the price we pay for liberty” (1817) but perhaps not the form of vigilance suggested by Ms. Kitteridge.   

We must be vigilant to ensure our liberty, and its foundation stone freedom of expression, is not further eroded.

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Postscript

The title of this post is taken from the first line of a song recorded by Buffalo Springfield in 1966 entitled “For What its Worth”. The lyrics follow:

There’s something happening here

But what it is ain’t exactly clear

There’s a man with a gun over there

Telling me I got to beware

I think it’s time we stop

Children, what’s that sound?

Everybody look, what’s going down?

There’s battle lines being drawn

Nobody’s right if everybody’s wrong

Young people speaking their minds

Getting so much resistance from behind

It’s time we stop

Hey, what’s that sound?

Everybody look, what’s going down?

What a field day for the heat

A thousand people in the street

Singing songs and they carrying signs

Mostly say, “Hooray for our side”

It’s time we stop

Hey, what’s that sound?

Everybody look, what’s going down?

Paranoia strikes deep

Into your life it will creep

It starts when you’re always afraid

Step out of line, the men come and take you away

We better stop

Hey, what’s that sound?

Everybody look, what’s going down?

Eroding Freedom of Expression

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.

1. 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.

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[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

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

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.

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[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

Knowledge, Truth and Discourse

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

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

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

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

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

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

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

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

I have highlighted the relevant language.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Applying the Rules

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

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

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

The New Zealand Bill of Rights Act.

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

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

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

The Fallabilist Rule

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

The Empirical Rule

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

Conclusion

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

Postscript

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

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

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

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

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