Do we still have free speech in New Zealand?

How free should speech be in New Zealand today? This issue has been in the news recently for a number of reasons. Just last week a group of prominent academics called for restrictions on what they termed hate speech against sexual and ethnic minorities. At the same time, the Leader of the Opposition was in Court defending libel allegations. Each raises questions about what limits there are on free speech, and where, if at all, any boundary lines should be drawn.

Of the two, the issue of hate speech (speech which attacks a person on the basis of their gender, ethnicity, religion or sexual orientation) is the more vexed. At one obvious level no such attacks should be acceptable in a free and open society, but the question then arises what sanctions should be imposed when those norms are breached. Recently, a vile, overtly racist pamphlet, purportedly in support of the Hobson’s Choice movement, was circulated in my electorate and elsewhere. Its contents were repugnant to me and many of my constituents, and I took every opportunity to say so. But should it have been banned? I do not think so, because I think that even though the views are despicable, the racists who peddle them have just as much right to do so, as I have to rail against them. In an open society, views and outcomes are shaped by the free expression of ideas, however objectionable or extreme, what an American political scientist once famously called the mobilisation of bias, as citizens weigh up what they have heard or seen against their own values (and biases) a reach a view accordingly. Book-burning and its modern equivalents have never been hallmarks of democracy. Nor should they become so now.

The Andrew Little libel case raises its own set of interesting issues. At the one level, there is the right of the Leader of the Opposition, and any politician for that matter, to speak out without fear or favour on the issues of the day. Indeed, that right is enshrined in the concept of Parliamentary Privilege, and dates back to the 1688 Bill of Rights. Parliamentary Privilege affords absolute protection to Members of Parliament for comments genuinely made in the course of debate in the Parliamentary Debating Chamber. It is a somewhat different matter, as Mr Little found out nearly to his considerable cost, to be so frank outside the confines of Parliament. Whatever else, it is a salutary reminder that although the law can legislate rights, it can never legislate for individual prudence and judgement.

But, as with the case of hate speech, the question of malice and intent lurks in the background. Freedom of speech and the open expression of views, even if wrong or unacceptable to the reasonable majority are properly defensible, if the views are genuinely held. (Society is entitled to its crackpots, benign or otherwise.) What is more difficult to measure in both instances is where genuine belief gives way to malicious intent. Do those, for example, who preach racial intolerance do so because of a genuine, if thoroughly misguided, belief, or are they doing so to impose pain and suffering on the minority they are vilifying? Are those who attack people’s sexual orientation doing so for biological or strongly held moral reasons, or are they more interested in stigmatising and thereby punishing those whom they are opposing? And where malice is determined to be a factor, how far can we reasonably go in imposing sanctions, before we impinge upon an individual’s right to cause offence and infuriate? There are already provisions in our Human Rights and Race Relations legislation covering the most egregious behaviour.

In two weeks’ time we commemorate ANZAC Day, and invoke once more the notion of the spirit of the ANZACs. We will talk sombrely about their heroic and unselfish efforts over a century ago to secure the freedoms we enjoy today, and how their legacy must never be dishonoured. All quite proper and true. Freedom from the tyranny of strutting despots and the right to free expression lie at the core of that legacy. When we intone “Lest We Forget” this ANZAC morn, we should recall equally that commitment to securing freedom for all. And, for good measure, we should not overlook the famous simple but eloquent words of the French writer Voltaire, over 250 years ago:

“I disapprove of what you say, but will defend to the death your right to say it.

“Common sense is genius in homespun.”

On a separate note, Easter comes along this weekend. Whatever Easter may mean to you, my wish is that you are able to enjoy the weekend with those you hold dearest, and that if you are travelling around the country, you are able to do so conveniently and safely.

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