Letting speech blossom

News broke this week that a bunch of prominent New Zealanders were standing up for free speech.

Their open letter comes after comments made by the Human Rights Commissioner, Dame Susan Devoy. She suggested hate speech laws needed toughening up, as did the Police Commissioner.

Perhaps she’s thinking Canada sets a good model. They decided to make it an offence to communicate any material “that is likely to expose a person or persons to hatred or contempt.” That law only lasted 15 years before it had to be chucked out because, in the words of one MP, “a small number of people [are] determining what Canadians can and can’t say.”

Despite the warning, Canada still considers hate speech a crime for which you could be thrown in prison for two years.

Over in the United States there is a pretty big debate about “fighting words”, which we call hate speech, but they still defend it – just. Even Westoro Baptist Church still has the right to hold horrible signs at the funerals of soldiers, or at gay pride parades, so long as they are not actually encouraging others to kill or harm.

The United States does, however, have a problem with Universities producing “speech codes” that, time and again, have been thrown out by its Supreme Court for breaching the right to free speech. So even if the laws of a country keep our right to speech safe, its institutions might not.

That, along with what is happening in Canada, teaches us something very important about hate speech laws, and free speech too.

You see, we all agree that inciting people to murder, or genocide, or defaming someone ought to be illegal because they pose imminent danger to a specific person or group of people. That is why there are laws against these things in New Zealand, Canada and the United States.

Hate speech is different. It is based on offense, and that, as Canada shows us, is a very subjective, and difficult to control without harming free speech.

This is because there isn’t a sentence on earth you could utter that wouldn’t offend someone. I could look into my husband’s eyes at the park and tell him I love him, and a passerby might feel offended at my public statement of affection.

In other words, when you try to apply these laws, all sorts of people get swept up in them who were simply trying to express or argue a point of view. In the end you find the laws are just being used by different groups in society to try to control each other.

That is why creating laws around hate speech is dangerous. Where do they stop if they are based on offense caused, rather than actual and imminent harm? They don’t, which is why Canada’s hate speech laws might soon include a clause making it illegal to promote “hatred towards a gender identity or expression,” rather than, as previously, to incite genocide.

That’s a concern, of course, because it means pointing out things like the alarmingly high suicide rate amongst those who choose to transition genders, and suggesting we ought to do a lot more research before funding transgender operations, might constitute hate speech. At the very least, such a law will make academics and citizens very nervous when it comes to talking about such findings. That leaves us with a society in which a truth that could save lives being suppressed.

That, if nothing else, should convince us that free speech is worth protecting – even if we do have to put up with the odd horrible person saying awful things.

And as the prominent Kiwis say, free speech needs protecting in our laws as much as it does in our institutions if we are to keep fear and intolerance at bay.

This article was first published on Stuff.co.nz

 

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