A word of caution on prohibiting ‘hate speech’

In late 2001, as American bombs rained down on Afghanistan in retaliation for the terrorist attacks of September 11, protests erupted in Indonesia.

It was a country I visited frequently from my home in Singapore, where such demonstrations were illegal. In newly democratic Indonesia, however, angry crowds gathered in huge numbers; religious leaders and politicians gave fiery speeches decrying atrocities.

Friends arranged for military escorts to meet us at Jakarta airport, just in case we felt fearful. An American who travelled with me reeled at what he felt was hatred directed at him and his country.

As the American-led war on terror proceeded and news came out of American renditions, torture and extreme human rights abuses in bases around the world, many Indonesians expressed their outrage.

Then Indonesia faced its own experience of domestic terrorism in the Bali bombing of 2002 and other fatal bombings in the years that followed. Many commentators and politicians in Singapore and the West pointed the finger at those who spread “anti-American hatred” and religious extremism, poisoning young minds and fomenting violence against non-Muslims, Americans and their allies. In language that has recently hit the news in New Zealand, they were accused of “stirring up hatred”.

Much of the content that circulated in Indonesian newspapers, mosques and street protests could reasonably be described as stirring up hatred.

Neighbouring Singapore was certainly taking no chances, justifying tight controls as necessary for maintaining racial and religious harmony as well as national security.

My research that came out of this period explained why I believed it was unhelpful and dangerous to pathologise anti-American hatred as a precursor to terrorist violence. Intense anti-American emotion spread far more widely than sympathy for terrorism, let alone acts of terrorism. Efforts to suppress expression of this anger fed into narratives of victimisation and downplayed well-founded grievances.

I read the manifesto of one of the convicted Bali bombers, Imam Samudra (since executed by firing squad), and materials put out by the Majelis Mujahidin Indonesia, an organisation associated with a cleric blamed for inspiring the young militants. In many ways the content put out by these extremists relating to the war on terror was similar to that compiled by longstanding critics of US foreign policy, such as Noam Chomsky. What distinguished the Bali bomber was not “stirring up hatred”, but open advocacy of violence.

Here in New Zealand, proposed changes to the Human Rights Act and the Crimes Act would criminalise inciting hatred on the basis of a person’s “protected” characteristics.

Currently, inciting hatred against race, ethnicity or national origin is against the law. The proposal argues for extending this protection to religion, sexuality and transgender identity, and potentially also to political opinion.

What could be wrong with that? Well, it’s not hard to make the case that the Indonesians protesting against the American war on terror were stirring up hatred. Sure, they could have protested without the angry, emotive anti-American language. Many liberal, English-speaking Muslim intellectuals in Southeast Asia criticised the war on terror using mild language that carefully distinguished between the American people and the US government. Many Indonesians perceived them as stooges.

Protest is often angry and intensely emotional; signs waved at street protests do not make fine distinctions.

Could we see hate speech legislation turned against people using emotive language to criticise Israeli actions against Palestinians? What about denouncing as utterly despicable the religious beliefs of those who endorse shooting homo-sexuals? If you would want to convict a certain pastor, but not the critics who denounce him as hateful on account of his religious beliefs, on what basis would you do so? Should the courts decide whose religion is correct?

The Bali Bombers were enabled by failures of the Indonesian intelligence and security apparatus. Our mass-murdering terrorist in Christchurch was enabled by our police and intelligence failures.

Inciting or threatening violence against anyone is already a criminal offence in New Zealand. Inciting hatred is far more difficult to define in ways that would not capture at least arguably legitimate anger and protest.

Natasha Hamilton-Hart is a professor with the New Zealand Asia Institute, University of Auckland Business School.

This article reflects the opinion of the author and not necessarily the views of the University of Auckland.

Used with permission from the New Zealand Herald, A word of caution on prohibiting ‘hate speech', 5 July 2021.

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