Let’s start with two facts. First: Hate-speech laws are offensive and insulting to anyone whose political ‘religion’ is rights. Second: We rights-respecters are a minority group. From these two facts you can see the contradiction involved in criminalising free speech that is said to “offend or insult” a person or group – so-called “hate speech”.
Last year, I supported and voted for the ACT Party primarily because it was proving itself to be an eloquent opponent of Andrew Little’s proposed new “hate speech” laws. Right up until the 2020 election. ACT’s leader David Seymour was the only MP who seemed to get it, arguing cogently for the right to freedom of speech. He seemed to clearly understand both its importance, and the ideas that support it.
So earlier this week, I had to rub my eyes when I received the following email communication from the ACT Party containing "a column on a single topic" headlined 'Free Speech is a Freedom, Not a Right.'
Was this a joke? Not a bit: this is David Seymour demonstrating he does not understand that individual rights are precisely what sanctions an individual’s freedom in a social context.
The implication is unpleasant. So, here, read the whole thing for yourself, starting with that headline (I’ve emboldened the most egregious parts) …
Free Speech is a Freedom, Not a Right [from the Act Party newsletter]“Free speech is not a right??!” Unable to come to terms with the blasphemy, I drafted an email and sent it off to David Seymour at his parliamentary email address. Here is what I wrote:
Free Speech is as big as all the other problems combined, because it’s the key to solving them. We must protect it from so-called hate speech laws the Government is threatening this year.
To give them credit, the Government recognises a real problem. There are too many people saying too many nasty things, too often, to too many people. We should all work on, as the Queen says, “speaking well of each other and respecting different points of view; coming together to seek out the common ground; and never losing sight of the bigger picture.” But, empowering a Government department to go around punishing ‘hate-motivated’ speech is impractical and far too open to abuse.
The risk is we lose not only our freedom, but our problem-solving ability. In a healthy culture, you’re allowed to say unpopular things. Judging by her written speeches, Kate Sheppard may have been New Zealand’s best orator, but her views were radical for her time. One of our greatest achievements as a country occurred, and could only have occurred, in a culture of free speech.
Of course, Free Speech is important every year. That's why the CCP never stops censoring the internet. Thing is, this year it’s our Government threatening to censor free speech.
The Minister of Justice wrote a one-page letter to political party leaders in December. He says the Government will crack down on ‘hate-motivated speech.’ Basically, he wants tougher penalties for more kinds of speech than what’s currently in the Human Rights Act.
If we’re going to fight this, we need to know what free speech is and isn’t. Some people think it’s the right to say whatever you want. Some people think it’s the right to have other people to give their time listening to you, or perhaps tweet on their platform.
But who wants to listen to tedious people who claim the right to bore us witless? The problem with all rights is that they only work if someone else plays along. Making speech a right only works if you can make some poor sucker listen.
Free speech is not a right but a freedom. [!] Freedom is the ability to plan your future without others arbitrarily messing with you. When people are in conflict, the rules should be written down and clear so everyone knows what to expect. They should be able to know what the rules are, and the penalties for breaking them.
That’s the rule of law, and we get it from an early age. Try going to any Intermediate school at lunch time, change the rules half way through, and see what happens.
We already have some restrictions on freedom of speech [sic] that are compatible with the rule of law. You can’t incite people to commit crimes, you can’t threaten people with violence, you can’t be a nuisance (like shouting fire when there is none).
If you do those things there’s a good chance you’ll be convicted and punished. The maximum punishments are written in the Crimes Act. On the other hand, you also have clear defences, such as ‘I did not make a threat.’ There are other advantages. When the rules are written down, they apply equally to everyone.
That’s why hate speech laws are incompatible with freedom. There’s no way of consistently applying what’s offensive. Take the case of Sean Plunkett, who was fined $3,000 by the Broadcasting Standards Authority for ‘amplifying negative stereotypes about Māori.’ The finding was described as a “huge shock…” by the complainant!
The case shows the problem with hate speech laws. You don’t know if you’ve broken them until you are convicted. Whether other people think your views are offensive or might unreasonably influence others is so bland there's no real test.
In these shadows operate political prejudice. If you’re in the majority of opinion you are probably safe from hate speech laws. Your views will be accepted. It is minorities who need the protection of free speech.
Hate speech laws, on the other hand, are mob rule. They amount to the popular using the force of the state to silence the unpopular. They lead to conformity of opinion and blandness in life. They make us less human by suppressing our self-expression. They make our society poorer by suppressing the generation of new ideas and criticism of bad ones.
For those reasons, freedom to speak our mind under the protection of the rule of law is the foundation of a free society and should be our main priority. If the Government passes laws that allow punishment on the basis of opinion, ACT will petition for a referendum to reverse those laws. We hope you’ll help.
Dear David,
I refer to today's email I received from ACT, which shocks and dismays me.
"Free speech is not a right"??
Is this now one of ACT's principles, or is it just a poorly thought-out press release? My understanding is that you last year called freedom of speech a "sacred right" (see https://www.rnz.co.nz/news/political/408979/act-leader-david-seymour-criticises-gun-laws-in-state-of-nation-address). Please clarify by reply email.
The position taken by ACT in the email implies that if legislation is clear on and upfront about what is not permitted to be communicated to others, then lawmakers may censor and ban whatever they don't like. It implies that legislation and not rights should define and sanction whether a person has freedom to speak their mind or not. The implied 'principle' opens up a Pandora's Box: it gives the government a green light to censor and ban whatever it doesn't like so long as it is clear and upfront about it. Is that really where you and/or ACT want to go with this? If it is, or if ACT does not correct its error, my vote and support, including financial support, will be lost. This is just too important to get wrong.Within approximately ninety seconds of sending that email, I received a reply, I presume from David, with this one-liner: “Please read, it says it is a freedom, which is better than a right because you don't need someone else to guarantee it.”
If there is to be any hope for the future of this country, we need to urgently get back to basics on rights.
A right is a principle which defines and sanctions an individual's freedom of action in a social context. Being free to speak one's mind most certainly is a right - a crucial and sacred right, one that is limited only by the right of others to their life, liberty and property, which are more fundamental rights.
Free speech is a type of liberty or freedom, but exercising that liberty is a right.
(I now delve deeper into the subject of rights, if you would indulge me by reading on. If you prefer not to read any more, then skip to the last paragraph.)
The right to freedom of speech is under assault today primarily because property rights are under assault. One cannot defend the former without upholding the latter. The quote famously misattributed to Voltaire would be much more effective if it read "I disapprove of how you are choosing to exercise your property rights, but I will defend to the death your right to exercise them." The right to create, enjoy and dispose of one's justly acquired property is the right that implements all other legitimate rights (where property exists). The alternative to property rights drawing boundaries around other rights (where property exists) is to have a clashing chaos of claims to "rights", which are really privileges - a violation of rights. This is what we are seeing play out today.
The only problem with upholding the right to freedom of speech by recourse to property rights (where property exists) is that more and more people today are acquiring wealth unjustly through government privileges (subsidies, welfare, grants, bailouts, licenses, etc). This is going to lead to disaffection within the population against those who accumulate wealth, even if a person's accumulated wealth has been earned without any privilege, and empowers the privileged to speak out in favor of more privilege while quashing the rights of others to speak against that idea.
The right of free speech does not mean that one can communicate whatever one wants, where-ever one wants. It means that one can communicate whatever one wants so long as the act of communicating it does not violate anyone's right to life, liberty and property. The Founding Fathers of the U.S. understood this truth, and its importance, which is why they made the First Amendment the First Amendment.
There is no such thing as the right not to be offended or insulted. There is only the right to demand that the offending or insulting person leave one's property, or for one to leave their property (as applicable), or to rebut or ignore their slight. These are legitimate rights, not least because they are compossible with all other rights.
If someone doesn't like the truth, then the truth will offend them. No one has the right to suppress the truth simply because it offends, just as no one has the right to spread falsehoods without suffering the consequences, which may include disapproval, insult, boycott, and where justified, legal action, not to mention conscience biting.
To paraphrase Rowan Atkinson's analogy, we all need to build a better free-speech immune system, and not put ourselves in a bubble when it comes to offensive and insulting speech. Whatever happened to the Sticks 'n Stones rhyme? Is it healthy to build a society that hides behind enfeebling laws which are themselves violating rights? We should not encourage or engage in offensive or insulting speech ourselves, and should call others out when lines get crossed, as that is part of being civilised. But to deny the right? That is a road fraught with danger and injustice.
If ACT truly is for freedom, then it must be for rights. To be for rights, it must understand what rights are, what they protect, who has them, why, and how. To that end, I refer you and others to the short online course found at Rights.NZ, or alternatively, to read the book I handed to you last year in Mt Eden when Don Brash was speaker. It is called Rights: Rediscovering Our Means to Liberty.
Sincerely,
Terry Verhoeven
** The principled is the practical **
The confusion here is total: saying that freedom “is better than a right” because you don’t need a guarantee is like saying wealth is better than production because you don’t need to work.
I replied to the reply with the following:
You have it back-to-front.Freedom necessitates rights being guaranteed, while rights, which are principles recognising the requirements of freedom, exist without needing agreement from others.History bears this out. Rights originate as a type of recognition, and then may or may not progress to an agreement which may or may not be enforceable, and are only perfected when they are institutionalised.
At the time of writing this, I have received no further reply. [This post will be updated if we do. – Ed.]
Mr Seymour is apparently unaware that one cannot achieve the end, which is freedom, without the means, which is rights.
By taking a stand against free speech being a right, New Zealand’s self-proclaimed party “for freedom” is sowing confusion and undercutting both freedom (which it says it supports) and rights (which it now says it doesn’t).
What made David Seymour change his tune from last year when he said free speech was a “sacred right” to this January when his very headline declares it not to be a right at all? Perhaps because he fails to fully understand the concept of rights, and so he and/or his party has decided to abandon the concept to those who misunderstand it altogether – that is, to those who use the word “rights” (the moral concept that ratifies our freedom) to denote what are in fact privileges (claims to things that can only be supplied by others). If so, in failing to fully understand the concept, instead of defending it he appears ready to abandon it to those who would violate it, using the word "freedom" in its place to try maintain a vestige of the concept of rights proper.
Instead of using their political platforms to teach others what rights mean, ACT instead appears ready to toss them aside. This is a course that will spell disaster for the rights they reject -- and, therefore, for the freedom they claim to support.
If ACT says it no longer supports freedom to speak as a right, then we should believe them. This means they can no longer offer either a principled or practical voice for freedom. David Seymour can still get his act together: by once again arguing for a freedom based on rights.
* * * *
Terry Verhoeven is Principal of the Rights Institute (an initiative) and author of the book Rights: Rediscovering Our Means to Liberty
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11 comments:
I'm not sure Seymour wrote that. I thought when it arrived in my inbox it was a tad mangled. The only reason I can find for trying to somehow elevate free speech above the status of a right is that our own Bill of Rights is so toothless.
Hi Lindsay. Not only elevated, but not being a right. And if not written by Seymour, then on the face of it sanctioned by him, as evidenced by his reply to my email. You may be right about the reason.
Often misunderstandings or unnecessary conflicts arise because we attach specific meanings or definitions to words that others don't, and I think that's the case here.
The ACT author is not taking 'rights' to be same thing that you and I would define them as. They're taking it to mean a claim to something over someone else, requiring action or agreement from that someone. For instance the right to a Twitter account, but only if the provider of that account agrees. They're essentially narrowing the definition of rights, and drawing a distinction between that and 'freedoms' - which don't require agreement from somebody else. Hence David's reply that "freedom....is better than a right". It's not relying on someone else to provide it, and from that perspective stronger and easier to defend.
If you appreciate that conceptual perspective, the idea that "free speech is not a right" makes some sense. Free speech doesn't require action from anyone else, so on a hierarchy of stronger to weaker claims it's easier to defend.
I agree that's an inferior conceptual model, and does lead to some confusion, particularly in the context of all their other policies. They would do better to integrate freedom with rights by expanding the concept of rights as we do, rather than trying to make this seemingly arbitrary distinction. But it's not blasphemous, nor do I think it's a disagreement over fundamentals.
On the positive side, I was pleased to see the author appreciates the fundamental link between being able to speak, and being about to reason - reason being our means of survival (called "problem solving" by the author) - and was able to explain this in plain language most people should be able to understand.
My reaction when I received and read the release was primarily positive - albeit thinking they could have explained it better by adopting a better conceptual model - seeing rights and freedoms as integral rather than something requiring disintction.
Not a disagreement over fundamentals?? It doesn't get any more fundamental than this.
I agree I did not do justice to the many positives included in the release, which I too agree with. But I think my post is long enough as is.
"In the realm of cognition, nothing is as bad as the approximate."
~ Ayn Rand, “Credibility and Polarization,” The Ayn Rand Letter, I, 1, 1
@ Terry: I regard the fundamentals you agree on being that free speech is crucial for human well being. I think that comes across clearly and convincingly despite the flaw you've pointed out, which I regard as relatively minor. The meaning the author was attaching to 'right' was clear enough (to me at least) from the context.
Mark, minor flaw you say? Replacing freedom ratified by rights to freedom ratified by rule of law, i.e., by legislation? Explain to me how this is not throwing the baby out with the *clean* bathwater? The fundamentals I speak of is the means required to attain the end. Yes, we agree on the end: freedom. I refer you to my post above.
Terry - If you're asking me to defend what they said from the perspective of yours and my (superior) understanding of the concept of rights, then I can't. If instead you want to understand the essential meaning they were conveying (and what 99% of people will take from it), then I challenge you to:
1. Put aside for a moment your definition of rights, and
2. Accept for a moment the terminology/definitions they're applying - and tell me in what way that essential meaning is blasphemous from that perspective?
I think though you might struggle to do that, because every time you see the word 'right' it conveys all sorts of meanings the author didn't intend.
Words are not primary, they only have value (or not) to the extent they convey something in reality . Communicating about that reality is simpler when we all accept the same definition and meaning. But when we don't, and we want to understand that someone else is really saying (or trying to say), we need to put ourselves in their mental perspective.
For my part I can't see them advocating for freedoms based on legislation as you suggest. They're just pointing out that one of the problems with such non-objective rights is the arbitrariness of it all, and inability to address competing demands.
I agree their position on rights versus freedoms is confusing and could do with correction. In particular they've partially adopted the modern (contradictory) definition of rights, being a claim on somebody or something. But it's not as bad as you're assuming either.
Mark, the extended meaning of blasphemy is "an act of irreverence towards anything considered inviolable". Prior to the election, Seymour called free speech a "sacred right". Calling it or endorsing that it is "not a right" now is the blasphemy. You are defending the blasphemy employing semantics. The purpose of my post is to point out the confusion being sown by ACT, and attempt to make things clear again. This is not Labour or Greens making the gaffes.
You wrote: "I can't see them advocating for freedoms based on legislation as you suggest."
Here are the relevant passages from which you can infer it: "Freedom is the ability to plan your future without others arbitrarily messing with you. When people are in conflict, the rules should be written down and clear so everyone knows what to expect. They should be able to know what the rules are, and the penalties for breaking them. That’s the rule of law, and we get it from an early age ... That’s why hate speech laws are incompatible with freedom [:] There’s no way of consistently applying what’s offensive ... the problem with hate speech laws [:] You don’t know if you’ve broken them until you are convicted ... freedom to speak our mind under the protection of the rule of law is the foundation of a free society."
In other words, rather than one's freedom being found within the sphere of one's own rights, their argument implies it should be found with in the sphere of the law, where the law must be clear and unambiguous. Now that may not be what they really mean, but it is what is implied, which just means they are sowing more confusion.
Mark, let me add that ACT's position as it has been communicated is consistent with the 1789 Declaration of the Rights of Man in France, not with the Founding Father's understanding of rights in the US. The first ended in terror and tyranny. The second in liberty. Here is the relevant "right" as the French then understood it (#11): "The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined in law."
Dwell on that.
I mean consistent with the second sentence.
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