Hateful words can lead to hateful actions. They can also stir up others to do things we may or may not have intended to happen.
Following the terrorist attack on Christchurch mosques on 15 March 2019 and the royal commission of inquiry that reported in November 2020, the New Zealand government intends to tighten up the law on hate speech. That may be a part solution to a complex social problem. Or it may be no solution at all, depending on what we mean by “hate speech” and how any legislation is drafted, enacted and enforced.
The term “hate speech” is misleading in two ways – the issue is harm rather than hate and it does not only involve speech.
Public policy should focus on the effect of harm, not the emotions of hatred or offence. In a free, open and democratic society, a government cannot tell citizens what to feel, think, believe or value. Feeling dislike or even hatred towards an individual or social group is not and should not be a crime.
Stirring up and inciting discrimination, hostility or violence against members of a social group, however, is and should be a crime. This may involve speech, but incitement can also be written, mimed, memed, graffitied, cartooned or tweeted.
There is broad agreement in international human rights law, the academic literature and current domestic law in countries like the UK, Canada, Denmark and Germany that hate speech (better: harmful communication) is public communication that incites discrimination, hostility or violence against members of a social group with a common “protected characteristic” such as nationality, race or religion.
Current New Zealand law (Human Rights Act 1993, sections 61 and 131) similarly focuses on “intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.”
As noted since the Christchurch attack, religion is not a protected characteristic in sections 61 and 131 of the Human Rights Act. (It is a prohibited ground of discrimination in section 21.) In legislating against harmful communication, the challenge is to include religion as a protected characteristic in ways that protect believers from harm, without protecting beliefs from criticism, satire or offence and in effect reinstating blasphemy laws. The Royal Commission of Inquiry’s recommendation to include religion, without any qualification along the lines of section 29J of the UK’s Public Order Act 1986, needs wide public debate, not just limited consultation with selected affected communities.
In short, a democratic state can justifiably restrict freedom of expression to protect its citizens from harmful public communication that incites discrimination, hostility or violence against them based on their actual or supposed membership of a social group. A democratic state cannot justifiably restrict freedom of expression by prohibiting criticism, satire, offensive or “hurtful” comments, or the communication of disapproval, dislike – or even hatred.
Those who claim liberty as licence to communicate anything at all, regardless of the harm it causes or incites, ask too much in a society governed by principles of freedom and equality.
Those who call for “hate speech” laws to protect their religion or culture from criticism and offensive or distressing remarks also ask too much. And those who advocate for “hate speech” laws to suppress ideas and opinions they do not like are a threat to democracy.
Because “hate speech” laws qualify the right to freedom of expression, the best anyone can hope for is a fair balance between protection from harm and the right to freedom of opinion and expression.
In a society as diverse as ours, we don’t all need to like each other. We will not always or often reach reasonable agreement. And there will always be idiots who shoot their mouths off. In a democratic society, we just need to learn to live together in all our difference, resolving our conflicts politically without recourse to domination, humiliation, cruelty or violence.
“Hate speech” laws may play a part in that, to the extent they protect members of social groups from discrimination, hostility or violence. But although legislation may be necessary, it is not sufficient to resolve social conflict. Civility is everyone’s responsibility, and governments can encourage and support counter-speech strategies as alternatives or complements to regulation.
Options include investment in public education programmes in civics, human rights, conflict resolution and digital literacy; building stronger partnerships with communities, civil society groups, public sector institutions and industry; reducing inequalities and marginalisation on all fronts, with outreach, early intervention and rehabilitation to prevent extremism from taking root; and well-funded public broadcasting that provides access to authoritative information and diverse ideas and opinion.
All this requires long-term and well-integrated, rather than piecemeal, planning and investment, with co-ordinated delivery. Trying to solve a complex social problem by passing a law might be just another way of shooting our mouths off.
David Bromell is a senior associate of the Institute for Governance and Policy Studies (IGPS) in the Wellington School of Business and Government at Te Herenga Waka—Victoria University of Wellington. The IGPS is publishing his seven working papers on After Christchurch: Hate, harm and the limits of censorship during March and April 2021 here
