Using free speech so as not to lose it

The deadline for submissions on the Ardern Government's so-called "hate-speech" legislation closes August 6. [Details here [pdf] and here] Rights Institute head Terry Verhoeven shares his submission below. The so-called Free Speech Union also has a generally good submission here. You could use either as a model for your own.

You might say "It's not worth submitting; they never listen to submissions anyway." But bear in mind that this Government is nothing but poll-driven. And it's worth noting too that the internet censorship provision of the "internet filtering bill" was dropped last month after submissions. So they can change minds. After all, how often would they have the opportunity to read a thoughtful, well-argued, articulate argument for freedom and the right to free speech ... 

Ministry of Justice Proposals to Reform
the Legal Frameworks related to Hate Speech:

Public Submission by Terry Verhoeven, principal of the Rights Institute

Proposal 1: Change the language in the incitement provisions so that they protect more groups that are targeted by hateful speech [sic].
Do you agree that broadening the incitement provisions in this way will better protect these groups?

No.

Why or why not?:

Because the word “protect” here refers to a group’s special identity and that group’s supposed entitlement to be legally shielded from confronting speech, as opposed to being protected from actual threats of or incitement to violence, the word is really denoting the idea of privilege. Broadening the incitement provisions in this way therefore will better privilege these groups. Privilege in the sense I use the term is when the state initiates force against individuals (thereby violating their rights) to deliver what it has promised to the privileged person(s). In this case the privilege promised is members of select groups receiving protection from anyone who speaks out against their group in a confrontational way, even though the speech is not threatening or inciting any violence.

Threatening outspoken people with the prospect of jail time simply for saying something that is hated by members of a “protected” group is to wield a privilege, not to uphold a right. Here, the threat of incarceration is itself an initiation of force, and therefore a violation of individual rights. Further, if passed into law, the proposals would violate countless people’s property rights by effectively censoring what they can say on or with their own property, even though what is said does not threaten life, limb, liberty or property (the only legitimate basis for making something a criminal act).

As for the matter of social cohesion, what a society needs for it to become and remain resilient is for people to develop an immunity to encountering confronting speech, including criticism, insult and ridicule, not the criminalisation of confronting speech, including criticism, insult and ridicule. A sterile social environment free of verbal and written pathogens causes people to become hyper-sensitive to whatever they find confrontational, including speech that conveys truth. We see this today in academic institutions which have implemented policies to “protect” students from non-violent speech that confronts ideas they hold dear. Those institutions are a microcosm of what a society becomes when laws are enacted along the same lines to keep people “safe” from unwanted speech.

Pertinent to the proposals and their repercussions is what Rowan Atkinson said at the “Reform Section 5” launch at the British parliament in 2012. It is worth considering his words in some detail:

The problem with the outlawing of insult is that too many things can be interpreted as such. Criticism is easily construed as insult by certain parties. Ridicule, easily construed as insult. Sarcasm, unfavourable comparison, merely stating an alternative point of view to the orthodoxy can be interpreted as insult. And because so many things can be interpreted as insult, it is hardly surprising that so many things have been.

The exact same thing can (and should) be said about so-called “hate speech.”

Atkinson earlier started his talk with a long list of ridiculous charges that have been laid against peaceful but outspoken people under Britain’s hate speech laws… laws which, chillingly, the Royal Commission admits in its report are significantly harder to prosecute with than what it has recommended for New Zealand.

Atkinson continued:

Although the law under discussion has been on the statute books for more than 25 years, it is indicative of a culture that has taken hold of the programmes of successive governments that with the reasonable and well-intentioned ambition to contain obnoxious elements in society, has created a society of an extraordinarily authoritarian and controlling nature. It is what you might call the new intolerance, a new but intense desire to gag uncomfortable voices of dissent. ‘I am not intolerant’, say many people, say many softly-spoken, highly educated liberal-minded people: ‘I am only intolerant of intolerance’. And people tend to nod sagely and say, ‘Oh yes, wise words, wise words’, and yet if you think about this supposedly inarguable statement for longer than five seconds, you realise that all it is advocating is the replacement of one kind of intolerance with another. Which to me doesn’t represent any kind of progress at all. 

    Underlying prejudices, injustices or resentments are not addressed by arresting people. They are addressed by the issues being aired, argued and dealt with preferably outside the legal process. For me, the best way to increase society’s resistance to insulting or offensive speech is to allow a lot more of it. As with childhood diseases, you can better resist those germs to which you have been exposed. We need to build our immunity to taking offence, so that we can deal with the issues that perfectly justified criticism can raise. Our priority should be to deal with the message, not the messenger. [Emphasis mine.]

Indeed.

The point about needing to build up mental and emotional resistance to verbal and written pathogens by fostering a societal norm of frank, open and free discussion, rather than limiting the sphere in which peaceful but discomforting discourse is legally allowed, cannot be overemphasised. Censoriousness is not going to build a more resilient or free or “cohesive” society, quite the opposite. This is just common sense.

If it is protection of minorities that is the aim, then it would do well to remember what philosopher-novelist Ayn Rand once observed: “The smallest minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities”. The Royal Commission only ever consulted select groups, with a disproportionate focus going on one small group (Muslims) which has its own political ideas on the subject of freedom of expression. Most other groups have not been consulted. More importantly, individuals qua individuals have not been consulted. The smallest minority – the individual – will not be protected by the proposals. In fact, because the proposals explicitly aim to empower certain groups at the expense of the liberty of the individual, the individual is going to become the victim of the proposals if they are enacted. 

What has spurred the current push for “hate speech” legislation in New Zealand is of course the March 15th atrocity. We all recognise the inhumanity of that attack, and the needless suffering it caused, and condemn it in the strongest possible terms. Contrary to the findings of the Royal Commission however,  I understand that criminalising more forms of speech, however obnoxious they may be, is no guarantee something similar is less likely to happen again. If anything, making it unlawful to share abhorrent opinions is only going to make it even harder for the public and law enforcement to identify, monitor and intervene in the plans of those who would go on to perpetrate violence, by pushing such views underground. The reality is that the main effect the proposals are going to have, if enacted, is to give legal protection not to the lives, but to the feelings of some people at the price of the freedom of everyone. Protecting feelings is not a legitimate purpose for the law.

In your opinion, which groups should be protected by this change?

Groups:

Again, because of the nature of this change, the question really asks which groups should become privileged by it. The answer is none.

As Britain’s experience with this sort of legislation shows, what is called hate speech tends to be not so much about hateful speech as about speech which is hated. To those who hate hearing or reading the truth, the truth becomes, for them, “hate speech.” This is an insurmountable hurdle which should stop these proposals in their tracks.

Further, it is a nonsense to equate something like religious belief or political opinion or even cultural practices, which are all matters open to choice, with something like race, ethnicity, biological sex or disability, which are matters not open to choice. It is perfectly rational (and therefore should be legal) for people to criticise, pass judgment on, and even ridicule matters that are open to choice, and to do so in ways that might even be construed as being hateful. It certainly is irrational to criticise, pass judgment on or ridicule matters that are not open to choice, but even that should be legal because no one’s right to life, limb, liberty and property – one’s means to living - is being violated. There is no such thing as a right to have one’s feelings protected.

Do you think that there are any groups that experience hateful speech that would not be protected by this change?

Groups not protected:

This question commits the fallacy of begging the question by assuming that people require more protection from speech than the law currently provides. People do not need legal protection from confronting speech that does not directly and objectively threaten life, limb, liberty or property, what they need is their property rights to be respected and upheld so that they have the freedom not to listen to or read hateful things. People also need to build up a mental and emotional resistance to such speech if and when it is encountered in public space. Where the speech is wrongful, but not directly and objectively threatening life, limb, liberty or property, and the person who is on the receiving end needs moral support, concerned others should come to their defence in a non-violent manner because it is the right thing to do, not because communicating ideas or opinions which others hate to hear should be a crime, or because arresting and/or incarcerating critics, however obnoxious, is the proper moral response. That which is wrongly spoken but which doesn’t threaten to initiate force should not be met with force, it should be ignored, or else met with persuasion in whatever form a person chooses so long as it does not employ physical force. 

Proposal 2: Replace the existing criminal provision with a new criminal offence in the Crimes Act that is clearer and more effective

Do you agree that changing the wording of the criminal provision in this way will make it clearer and simpler to understand?

No.

Why or why not?

The Human Rights Act is already worded wrongly: speech that is not directly and objectively threatening life, limb, liberty or property should not be criminalised. Sometimes people and groups are deserving of contempt and/or ridicule, such as those propounding racist or bigoted or individual rights-violating opinions. Making something that is wrong to begin with clearer and simpler to understand does not change what is wrong to being right.

Do you think that this proposal would capture the types of behaviours that should be unlawful under the new offence?

No

Why or why not?

The question commits the fallacy of begging the question: it assumes the targeted behaviours should be criminalised.

Proposal 3: Increase the punishment for the criminal offence to up to three years’ imprisonment or a fine of up to $50,000 to better reflect its seriousness

Do you think that this penalty appropriately reflects the seriousness of the crime?

No

Why or why not?

Again, this question commits the fallacy of begging the question. Where is the crime? No one should go to jail or pay fines for saying something confronting about others, however obnoxious, when it does not threaten to initiate force. To criminalise such speech is to invite umbrage-takers to take out legal vendettas against those whose speech they hate to hear by calling upon the state to take away the outspoken person’s liberty and/or property. That is not justice.

If you disagree, what crimes should be used as an appropriate comparison?

Proposal Three: If disagree what crimes should be used as comparison:

No crime is an appropriate comparison because objectionable, offensive or insulting and even hateful speech should not be a crime unless it objectively and directly threatens life, limb, liberty or property. That does not mean such speech should be condoned or tolerated, merely kept within the sphere of free action and reaction according to natural and authentic rights.

Proposal 4: Change the language of the civil incitement provision to better match the changes being made to the criminal provision

Do you support changing this language in section 61?

No

Why or why not?

The proposed law should be scrapped. But if legislation based on the proposal(s) does pass into law, then the inclusion of a section like section 29J of Britain's Public Order Act 1986  is necessary to avoid a truly Orwellian outcome. It states: “Nothing in this [Bill/Act] 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.” Including this wording would ensure that ideas continue to be freely discussed without the threat of incarceration or hefty fines. Bringing charges against people simply for espousing ideas, including stating truths, would be an egregious violation of an individual’s rights, including section 14 of the New Zealand Bill of Rights Act 1990 which states, “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.” The Royal Commission’ report specifically cites the UK legislation as an example to be followed. The Royal Commission has made its fundamentally flawed set of recommendations so much worse for not supporting the inclusion of a mitigating provision such as the one found in UK law cited above.

Do you think that any other parts of the current wording of the civil provision should be changed?

Yes

Why or why not?

For reasons given above, they should be scrapped.

Proposal 5: Change the civil provision so that it makes 'incitement to discrimination' against the law

Do you support including the prohibition of incitement to discriminate in section 61?

No.

Why or why not?

See answers above.

Proposal 6: Add to the grounds of discrimination in the Human Rights Act to clarify that trans, gender diverse, and intersex people are protected from discrimination

Do you consider that this terminology is appropriate?

No

Why or why not?

Begs the question.

Do you think that this proposal sufficiently covers the groups that should be protected from discrimination under the Human Rights Act?

No

Why or why not?

Begs the question.

Do you consider that this proposal appropriately protects culturally specific gender identities, including takatāpui?

No

Why or why not?

Begs the question.

General comments

Do you have any other comments or feedback?

Other:

Natural rights are not a Western idea, they are an Enlightenment one. Rights result from us reasoning about our nature as “the “rational animal” (as Aristotle identified our species), and may be arrived at and enjoyed by any individual who makes the mental effort to grasp and uphold them. This makes rights truly universal. 

If it is social cohesion that is the goal, then nothing can unite a people better than a mutual commitment to upholding the existential requirement of every reasoning mind: freedom, and the means of achieving freedom: rights. I give you Revolutionary America in the 18th century, and the Union (Northern) states of the United States in the 19th century as examples.

The proper means for dealing with and solving complex problems are Principles. Let us now turn to some basic principles about rights, because this submission is taking a principled approach to the question of whether certain forms of speech should be illegal. 

What is a natural and authentic right, as opposed to a privilege or a printing-press “right”? A right is a principle that defines and sanctions individual action in a social context. More specifically, it is what the facts of reality determine reasoning minds need to function and flourish in a social context. The principle of a “right” is arrived at by making a proper identification of that need. Rights begin with, end with, and serve to protect the reasoning mind, our defining characteristic as an enlightened species.

Note that the reasoning mind is not a group attribute, but an individual attribute. A group is but a collection of individuals. All thoughts and actions are ultimately generated by individuals. For this reason, rights are only had by individuals, and may be delegated to representatives. A group cannot possess rights that are any different to the rights held by its individual members. Privileges, yes. Rights? No. 

So, if the reasoning mind is both the subject and beneficiary of rights, what does it need to function and flourish in a social context? Is it not being offended? No! A reasoning mind can still function perfectly well when it is offended. Same with being insulted, or confronted with ideas opposed to one’s own. What a reasoning mind needs is freedom, which can only be achieved in the absence of coercion. The existential requirement of each and every reasoning mind is the freedom to think, speak and act, limited only by the inherent obligation not to infringe on another’s right to do the same.

The proposals under discussion, which aim to curtail the sphere of lawful speech, would themselves be an infringing act if passed into law and used to convict non-violent people. They would not achieve social cohesion, but introduce a new form of social coercion, their purpose being to coerce people into not speaking or acting in a manner that might offend, insult or discriminate against others, according to some subjective standard.

Property rights are perhaps the most important right missing in all this. Property rights implement the right to liberty, which in turn implements the right to live as a reasoning being, commonly called the right to life. In a free and just society, if you do not like what someone says on or with their legitimately acquired property, you simply go your own way and avoid them. No harm done. Conversely, if you want to say something on or with your own legitimately acquired property, no one has the right to stop you. Property rights enable people to live and let live by resolving conflicting claims to freedom of action in a compossible manner. Upholding property rights does not lead to a utopia by any means, because people are free to do or say dumb or obnoxious things with or on their property, but it is nonetheless the best and most just system of rights-implementation there is.

If passed into law, the proposals under discussion would violate countless people’s property rights by effectively censoring what they can say on or with their own property.

If people abuse the freedoms given them by rights, for example by being bigoted, the disgruntled and those who possess a conscience are free to exercise their right to ignore, boycott, protest, condemn, ridicule, retort, and/or take any other action within their rights to affect a change of attitude and behaviour. That is how a society remains free while progressing towards better outcomes.

Without property rights as the arbiter of what can or cannot be said with or on one’s own property (such as on a website, so long as there is no threat of or incitement to violence), a chaos of clashing claims inevitably ensues, whereby a culture of authoritarianism, political pull and ultimately corruption becomes the arbiter. That is the direction any legislation based on the proposals under discussion is going to take this country, which is why it and they should be scrapped.

The laws currently on the statute books are more than sufficient to protect against truly rights-infringing speech, as other submissions will no doubt point out.

* * * * * 

Terry Verhoeven is the principal of the Rights Institute (an initiative), and the author of Rights: Rediscovering Our Means to Liberty.