No free speech crisis in NZ

30 July 2018
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Dr Jane Calderwood Norton

A healthy liberal democracy requires a robust commitment to freedom of expression. This means the law should not protect people from being offended. This also means the law should not protect religion – and religious ideas – from criticism however offensive to its believers. Difficulties arise where criticism of religion blurs with hostility towards individual members of that religion.

The commentary around the visit to New Zealand of two controversial alt-right Canadian speakers – Stefan Molyneux and Lauren Southern, who have expressed pro-White and anti-Muslim views – could lead us to think freedom of expression in this country is under attack. Council-owned venue manager, Auckland Live, cancelled their booking to speak at the Bruce Mason Theatre citing security and health and safety concerns. A group called the Free Speech Coalition was then hastily assembled to challenge this decision in the courts.

In responses to this decision, countless articles have appeared emphasising the importance of tolerating unpopular, controversial, or even hateful, speech with all the usual reasons given. For example, suppressing unpopular opinion can be counter-productive as it risks turning the speaker into a victim and generates sympathy and publicity for their cause. Further, driving such views underground makes it more difficult to educate through healthy debate and can jeopardise society’s ability to find out what is ‘true’ by exposing all ideas to what Justice Oliver Wendell Holmes termed ‘the marketplace of ideas.’ 

Let us not forget that history is littered with examples of controversial views that were later accepted by mainstream society from the earth orbiting the sun to gay rights. Concern also arises around who gets to decide what speech should be suppressed. One person’s dangerous, blasphemous or hate-filled speech is another person’s legitimate political opinion.

However, does the example of Southern and Molyneux really demonstrate freedom of expression is under threat in New Zealand? What has been lost in the debate so far is the simple fact that their views have not actually been suppressed. They have not been subject to any civil or criminal penalties (and nor have those who possess their materials) and their strong internet presence with their podcasts, vlogs, and books remains easily available. 

It is true that New Zealand has ‘hate speech laws’ in the racial disharmony provisions of our Human Rights Act 1993. But these provisions are not what is at issue here. In any event, these racial disharmony provisions – one civil and one criminal – apply only to instances where hostility or contempt is stirred up amongst people other than those who are the subject of the hostility. The mere expression of hatred in and of itself (or the effect of that hatred on the person or group it is directed towards) is not sufficient for the law to apply.

Needless to say, mere offence is not enough to limit speech under these provisions. Given the scarcity of successful racial disharmony claims to the Human Rights Review Tribunal, let alone criminal prosecutions, it is hard to see how we have a free speech crisis in New Zealand. Indeed, the hate speech provisions in the Human Rights Act apply only to colour, race, or ethnic or national origins and not religion. ‘Hate speech’ against religion, or even religious people, is not unlawful.

It could be argued that while their speech has not been suppressed through legal penalty, denying access to a public venue suppresses free expression. Freedom of expression is, however, a negative liberty – there is a duty on the government not to interfere with free expression but there is no positive obligation on the government to provide a person with a venue from which to speak. However, where it does have venues that it leases to the public, government at least has to consider freedom of expression when granting accessing. Any limitations it provides on free expression have to be justified. 

Interestingly, the applicants in the High Court proceedings are not the speakers themselves but their Australian event promotion company and someone who bought a ticket. The latter claims the decision restricted his rights (and the rights of others like him) to adopt and hold opinions without interference and hear and observe the speakers express their views. It is not clear how the decision prevents him from holding any opinions he likes and the extensive internet presence of the speakers allows him to hear and observe the speakers. In any event, the two speakers have now secured a private venue from which to speak.

Where the Council does give licences to use its venues, can it deny access based on the particular views of the people speaking there? There is something unsettling about the council vetting speech content before granting a venue licence. In the US this would be unconstitutional viewpoint discrimination. Part of the furore around the two speakers resulted from Mayor Phil Goff’s Twitter statements that ‘[Council] venues shouldn’t be used to stir up ethnic or religious tensions.’ And that ‘the right to free speech does not mean the right to be provided with an [Auckland Council] platform for that speech’. 

The Free Speech Coalition has said Goff’s statements amount to political opinion discrimination. However, the council has conceded that Goff did not make the decision to revoke the licence which leaves the political opinion discrimination point moot. 

While there are valid arguments to be made that government should not restrict access to the public on the basis of political opinion (or any other ground in the Human Rights Act), the Free Speech Coalition’s Statement of Claim is a legal mess. The coalition’s strategy has been to throw the whole basket of judicial review grounds at the council and hope one of the grounds sticks, thus appearing more like advocates for these two speakers in particular rather than principled free speech advocates.

The Statement of Claim asserts the decision contravenes the Human Rights Act and goes on to list a range of sections from the Act with little explanation as to their relevance. We are left to presume that the ground is political opinion discrimination. However, the sections cited (sections 42 and 44) expressly do not apply to the council under section 21A. They also plead indirect discrimination (section 65) – which is about neutral requirements that have the effect of treating persons differently (in contrast to direct discrimination which is about intent) – when the essence of their argument in the rest of the Statement of Claim is that the government’s decision was intentionally discriminatory.

This leaves the question of whether security and health and safety can be a justification for denying a speaker a licence. Auckland Live stated that security concerns around the health and safety of the presenters, staff, and patrons led to the cancellation of the venue. It would seem the council is concerned about counter-protests that may turn violent. 

The first point, as already noted, is that the applicants may not have a right to hear Molyneux and Southern speak at a Council-owned venue. So whether the justification is a valid limitation on freedom of expression is irrelevant. Nonetheless, where a right is limited, we should be wary of security and health and safety justifications... Such justifications have been used by governments all over the world to limit the freedom of speech and the freedom of religion of unpopular opinions and groups. Even the European Court of Human Rights has upheld bans on anti-Christian films and art works and on headscarves and facial coverings in European countries with strong anti-Muslim sentiment. It has done so by simply accepting claims of governments citing ‘interests of national security’ or ‘protection of health or morals’. Governments have used vaguely-worded and open-ended justifications to limit speech they do not like, often on the basis of very little evidence and supported by a deferential judiciary that is willing to accept a government’s account without question. However, these cases involve outright bans – through criminalisation or censorship laws – which are quite different from denying someone access to a venue from which to espouse their views. 

We should also be wary, however, of governments imposing onerous fees – for security and insurance, for example – as a condition of allowing groups to speak. While reasonable financial costs can be imposed, they should not be used to prohibit speech through the back door. And as uncomfortable as it is to make this argument in relation to speakers who have chosen to come to New Zealand to cause controversy, security concerns due to the behaviour of others should not be a reason to limit free expression. The result would be that only popular speech is ever permitted and that people can shut down speech they do not like by threats of violence. This would make freedom of expression meaningless.

It remains to be seen how the High Court will respond to the Free Speech Coalition’s challenge but, as yet, there is no freedom of expression crisis in New Zealand. As my colleague Andrew Geddis at Otago Law School has noted, until recently most New Zealanders had never heard the names of these two speakers let alone known any of their odious views. However, the decision of Auckland Live, and the subsequent legal action from the coalition, has given them a platform that reaches far beyond the four walls of the Bruce Mason Centre.

Dr Jane Calderwood Norton is a senior lecturer at the Auckland Law School, University of Auckland.

Used with permission from Newsroom, No free speech crisis in NZ published on Monday 30 July 2018.