Why hate speech law is authoritarian
13 July 2021
Opinion: Ananish Chaudhuri lays out some concerns about New Zealand's proposed hate speech law, arguing it's in line with a pattern of authoritarianism.
There is understandable unease with the proposed new hate speech law. But for those of us paying attention, this proposal is part of an established pattern manifesting an inherently authoritarian mindset.
Back in mid-March, 2020, New Zealand was in Alert Level 2. Then we went to Level 3 for one day before moving to Level 4. At the time, two legal experts wrote: “[The lockdown] imposes the most extensive restrictions on New Zealanders’ lives seen for at least 70 years; perhaps ever. No matter how ‘necessary’ these may be, we should expect such restrictions to have a clear, certain basis in law and be imposed through a transparent and accountable process.”
Subsequently, a court found that the first nine days of this lockdown were “unlawful”. In response, the government passed “under urgency” the Covid-19 Public Health Response Bill. According to one report in Newsroom, “the bill went through Parliament in less than two days and with no select committee hearings (and) grants police warrantless entry to premises if they reasonably believe virus-related orders are being breached”.
Both the Human Rights Commission and civil rights advocates expressed reservations about this law given the concentration of power in the hands of the Executive.
Later in 2020, New Zealand Ombudsman Peter Boshier revealed that he was “horrified” to learn that in the aftermath of the pandemic the government had actually considered suspending the Official Information Act, before backing down. Curbing freedom of the press is a well-established authoritarian practice.
Recently, another court found the government guilty again of exceeding its powers (ultra vires) when it rolled out a universal vaccination program under the 1981 Medicines Act. This once again required a hasty fix to the existing law to ensure that the vaccination program is lawful.
In a recent article, my colleague Robert MacCulloch argues that even the Government’s climate change strategies are more about power than about prudent policy making.
Another columnist noted that the Government is well on its ways toward establishing a command and control economic and social structure.
A recent paper by two European researchers shows that countries hit to the same extent by Covid-19 were more likely to declare a state of emergency when their constitutional emergency provisions granted them more discretionary power.
But the assumption of such emergency powers by the Executive has long-term consequences for a country’s development.
Now we have the proposed hate speech law.
The fact that the drafters of the law have little understanding of what they are talking about is made clear by an example provided in the draft bill.
It states: “For example, the film classification regime limits the freedom of expression of creators and viewers to uphold the rights of children and other members of the public, to protect them from content they might find harmful or that breaches society’s standards.”
At best, film certification regimes can be construed as a form of censorship. This is a far cry from classifying something as hate speech since a film-maker is seldom thrown into prison for making a movie with controversial content. At worst, the movie gets a R rating or is prevented from being shown widely.
Possibly the most problematic part of this new law is Proposal Two, which would prohibit speech that “maintains or normalises hatred, in addition, to speech that incites or stirs up hatred”. The word “hatred” replaces four different terms in Section 131 of the Human Rights Act: “hostility”, “ill-will”, “contempt” and “ridicule”. “Hatred” is obviously so much easier to define than the other terms.
Why may this be problematic?
I have been highly critical of aspects of the Government’s Covid-19 elimination strategy. While I am certainly not opposed to vaccination, I am deeply sceptical about vaccinating children for Covid-19. Globally, very few children have contracted Covid-19 and therefore they are unlikely to pass it on. These children are being vaccinated not for their own health, but in order to protect other, mostly elderly, citizens.
There is a serious moral dilemma here that vaccine proponents are choosing to ignore.
The draft suggests that “more groups would be protected by the law if hatred was incited against them due to a characteristic that they have”. How is characteristic defined? This implies that the new law could well find me guilty of violating Section 21 of the Human Rights Act for inciting hatred toward the elderly and medical professionals.
“Knowledge workers” like academics, performers, journalists or lawyers, who tend to dominate airwaves and social media, typically skew left of centre. Consequently, we worry a lot about right-wing authoritarianism. But left-wing authoritarianism is a problem too. Stalin and Mao were no less evil than Hitler or Mussolini. But the proper functioning of a liberal democracy is crucially dependent on calling out authoritarianism, whether on the left or on the right. After all, the price of liberty is eternal vigilance.
Ananish Chaudhuri is Professor of Experimental Economics in the Department of Economics at the Business School.
This article reflects the opinion of the author and not necessarily the views of the University of Auckland.
Used with permission from Newsroom Why hate speech law is authoritarian 12 July 2021.
Alison Sims | Research Communications Editor
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