After threatening Prime Minister Chris Hipkins of consequences if he dared to bar her entry, Kellie-Jay Keen-Minshull has been given her visa, regardless. This will enable her to hold rallies in Auckland and Wellington this weekend, and spread her messages of hostility against an already marginalised trans community. Neo-Nazis may, or may not, turn out to support her. They did at her recent rally in Victoria, but not at the subsequent one in Tasmania.

According to Immigration Minister Michael Wood, the circumstances didn’t reach the threshold that would justify a “ministerial intervention.” The public deserves to know more about the criteria for such decisions. Less than a decade ago, New Zealand banned the rap group Odd Future from entering New Zealand because our immigration authorities said the group “has been deemed to be a potential threat to public order.”

That decision appeared to be based on (a) some song lyrics that denigrated women and (b) because three years beforehand in the United States, a 13 year old had been injured at an Odd Future concert. If Odd Future crossed the relevant threshold, how on earth can Keen-Minshull be deemed to pose a lesser risk to public order?

Clearly, these sort of distinctions are problematic. But the differing Odd Future/Keen-Minshull outcomes indicate that we’re willing to allow singers to be barred, but political rabble rousers can be let in. One vulnerable community can be denigrated, even though the protection of a ministerial intervention would almost certainly be extended if a different minority had found itself to be in the crosshairs. Surely, the exercise of our laws and policies around free speech should not depend on how popular (or politically expendable) the targets of visiting demagogues happen or be.

Making exceptions

In the meantime, it is a bit surprising that the same government that is strongly behind the Christchurch Call (which attempts to curb the incidence of hate speech in the digital world) should be so tolerant about enabling people to promote the same hateful messages in the real world, amid our city centres.

Also, consider an analogy. Imagine for a moment that Keen-Minshull was coming here to spread falsehoods and to stir up public resentment against the Jewish community. Would she have been treated differently? Probably. Some years ago, an earlier Labour government refused to allow entry to David Irving, a British historian and notorious Holocaust denier. Anti-Semitism seems to be the ingredient most likely to trigger pre-emptive action by politicians, and by the immigration authorities.

The National Party has sought to make a virtue out of sacrificing the trans community on the altar of free speech. According to deputy leader Nicola Willis, letting Keen-Minshull hold her rallies here is a sign of the maturity of our democracy. To repeat: would National be “mature” enough to allow neo-Nazi rallies to be held here that denigrated Jews and called for restrictions on their rights? Almost certainly not. The trans community though, is being treated as expendable, in the name of free expression.

“Free” speech, misnomer.

For the boomer generation, standing up for free speech used to be a simple matter. Back in the early 1970s, it was easy to be a free thinking, free-wheeling son of a gun when the cause of free speech involved railing against the Establishment’s stuffy laws around blasphemy or profanity or sexual puritanism, or around the sort of talk that might portray Queen and Country in a bad light.

Rap music excepted, artistic expression was another no-brainer. It was dead easy to champion the right to paint nudes or exhibit Robert Mapplethorpe’s photos, or defend art works that put a crucifix in a jar or urine, or the virgin in a condom. Other expansions of free speech carried more in the way of personal risk. Yet thanks to the legal precedent bravely set by Valerie Morse, people can now burn a flag on Anzac Day, if they want to make a statement against the glorification of war.

Most of those battles were fought and won long ago, in this country at least. Of late though, free speech issues have become more divisive. Despite resistance in some quarters, society is finally beginning to accept that not everyone has equal access to the public microphone. As a result, racial and gender minorities that have long experienced the negative impact of “free” speech are now pushing back, and making their feelings known. Issues of racial and gender privilege are being debated – even though some of the critics of “cancel culture” continue to demand that their opinions should not only go unchallenged, but be heard out in respectful silence. Tough.

As the Australian lawyer and commentator Michael Bradley says, the law is changing to reflect this (overdue) revolution against the social inequalities embedded in much of our public speech:

As society’s attitudes have evolved, many things that were once openly tolerated, such as racial vilification and other hate speech targeting minorities, have become targets of the law. We recognise that words can hurt their targets in a direct way, so much that it is fair to apply legal consequences to their deployment.

History has told us, Bradley adds, about where hateful words and street rallies can lead:

More importantly, we also recognise that malign actions and words sit at the beginning of a continuum that can lead to seriously evil ends. The Nazis started with rhetoric and street marches, and ended with genocide. We allow their political descendants, no matter how pig ignorant and pathetically stupid they may be, to prosper at our collective peril.

Drawing the line

But where, and how, to draw the line of offence/defence? As mentioned, the law already draws lines on what is legally accepted speech, so it would not be unprecedented for the state to re-draw some of those boundaries in ways that reflect changing social attitudes, and in line with our human rights legislation.

Again though, Bradley has it about right. The onus, he believes, is on the state to refrain from infringing on free speech, unless the risk to minorities is serious, and imminent:

..The governing principle of the common law was always that human freedom is a default; any legal impingement on it must be properly justified by a higher and greater need. That remains the best way to think about it, because it forces us (and our governments) to avoid knee-jerk reactions.

The above shouldn’t be read as legalese to justify a “hands off” approach. Or for the state to intervene to prevent hurt feelings. Rather, as Bradley points out, society has no qualms about criminalising actions that cause direct physical or material harm, such as assault, theft or fraud. “The balance of rights is obvious: one person’s personal safety and property rights trump another’s freedom to violate them.”

Therefore, if we recognise speech as a form of action that can have direct consequences for the personal safety of others, governments have - on principle! - a duty to act pre-emptively to prevent that foreseeable harm from occurring.

That said, the whens and the hows of that intervention are difficult to codify. It has to be on a case by case basis. The cautionary examples of state overkill are easy to find. Even before Keen-Minshull arrived in Australia, the state of Victoria had already banned public displays of the Nazi swastika. In the wake of her visit, a bill before Victoria’s state parliament now wants to also ban people from giving Nazi salutes in public.

Are these reasonable precautions, and are they overkill? The efforts to ban the wearing of gang patches in public is another good example of legislative overkill. New Zealand already happens to know from experience that the banning of gang patches would achieve nothing, and would be an expensive and ineffective use of Police resources that would not enhance the safety of the public. In free speech terms, National’s proposal would also set a dangerous precedent. If the state can dictate what we wear, how long before it starts to dictate what we can say?

Finally...

So… Should we have let in Keen-Minshull? On balance, yes. The threat to public order can be managed, even if the Police have far better things to do. However, the decision to wilfully expose the trans community to potential harm calls for a different government response. Having chosen to allow this hate-monger into the country, the government surely has a duty of care to embrace and support the trans community. Although the scale of harm is obviously different, what is required is something akin to the compassion that Jacinda Ardern extended to the Muslim community in the wake of the mosque shootings.

In sum… This weekend’s hate rallies provide an opportunity for the government to step up, denounce the demonisation of the trans community, and announce the allocation of the kind of resources that the trans community has already identified as necessary for members of the trans community to be able to fully participate in New Zealand society. Given the dire statistics, providing more funding for the physical and mental health needs of trans people would be an obvious place to start.

So far though, there has been no sign of the government - or the wider public, for that matter - stepping forward to counter the hate messages that the state has consciously chosen to enable.

Footnote: There is an added rationale for allowing Keen-Minshull into the country. If local neo-Nazis do come out of the woodwork to support her, it may give some of her supporters pause, by indicating the nature of their fellow travellers. Some of the allegations to do with her associations with white supremacists are cited in this link. Also, the reasons for the decision by the UK feminist group Women’s Place to no longer work with Keen-Minshull are set out here.

One of her tweets ( 16 April, 2018) contained comments such as: “There are pockets of Bradford where the culture is not British. Like many expat communities they hold on to their past culture rather tightly. There was an all boys school that was 99.9% Pakistani Muslim. Awful place for women.” Another of her tweets ( 11 August 2017) says “We say the way men [are] socialised results in certain behaviour, but not the way Muslim men feel about white girls.”

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