Hate speech laws and red lights

Hate speech laws and red lights

August 30, 2021

By Chief Human Rights Commissioner Paul Hunt

This opinion piece first appeared in the NZ Herald on 31 August 2021

Red lights don’t stop trains.

What stops trains? An effective, well-maintained railway system with drivers, engines, brakes, and the latest technology. 

Red lights also have a role to play but, by themselves, they don’t stop trains.

Equally, hate speech laws don’t stop hate speech.

What’s the most effective way of stopping – or at least moderating – hate speech?

A fair, equitable, inclusive, diverse, plural, open, multicultural society which, in Aotearoa New Zealand, is grounded on Te Tiriti o Waitangi.

We need education, health, economic and other systems that embody these values.

A public service that listens to, and delivers for, communities, as well as dynamic community networks that are the lifeblood of any society.

We also need a vibrant democracy and respect for the rule of law.

Among those laws we need sensible hate speech laws. They have a role to play but, by themselves, hate speech laws don’t stop hate speech any more than red lights stop trains.

Boundaries matter

Nonetheless, hate speech laws do something extremely important.

They send the message that vile speech can have terrible consequences and it is not tolerated in Aotearoa New Zealand.

Whether offensive words fall one side, or the other side, of the legal threshold for hate speech, the message is clear: abusive speech is unacceptable.

This message promotes a respectful model for relations between individuals and communities, particularly marginalised groups.

If you are powerful and privileged it is easy to dismiss the idea of boundaries indicating what is acceptable. But if you are a member of a disadvantaged group – tangata whenua, ethnic minority, a faith community, sexual minority, a woman, or disabled person – boundaries matter.

We all have the right to freedom of speech and, if we believe in a dynamic democracy, it is a spectacularly important human right. But the International Bill of Human Rights could not be clearer. Freedom of speech, it says, “carries with it special duties and responsibilities.”

We owe those responsibilities to our neighbours, country, and global community.

One way of approaching hate speech laws is to search for a reasonable balance between freedom of speech and other human rights, such as the right to live in safety. This lawyerly approach has merit.

But there’s another approach which doesn’t require compromising one right for another.

Put simply, anything approaching hate speech is wrong because it denies dignity and equality to individuals and communities, normalises stereotypes, and affirms discriminatory and prejudicial practices.

Royal Commission of inquiry into the terrorist attacks

The Royal Commission of inquiry into the massacres on 15 March 2019 was right to recommend that we urgently bring our hate speech laws up to date. Like the Royal Commission, I favour a definition of hate speech that establishes a high threshold of hatefulness before speech falls foul of the law, but on one very important condition.

We must give more attention to challenging vile speech, whatever side of the legal threshold it falls.

The Royal Commission of inquiry into 15 March 2019 points the way forward. It recommends teaching about rights and responsibilities in schools; public education on diversity; and a whole-of-government approach to inclusivity.

The government has committed to implementing these recommendations and it is imperative that it does not take its eye off the ball.

The Human Rights Commission already calls out vile speech, whether it is lawful or unlawful. We must do this more often and consistently. Sometimes privately, sometimes in public. We must offer support to victims, engage with those who caused harm, and not assume they understood that they were causing hurt.

We are always open to new and imaginative ways to advance dignity, equality, respect, responsibility, and freedom of speech.

A democratic space to deepen understanding

The Human Rights Commission has been reflecting on hate speech since the day after 15 March 2019. We have researched, published reports, and listened to communities talking about their experiences of hate speech. Twice we were advised not to hold public meetings because they could be unsafe for members of marginal communities.

I felt physically intimidated by a participant who confronted me about hate speech. I enjoy a very privileged position in society and can only imagine how marginal individuals and communities are sometimes made to feel in public and private spaces.

However, democracies need a space in which to speak, listen, and deepen understanding, even if the discussion is deeply unsettling. Hate speech is not the same as expressing opinions some people find upsetting. Feelings of hurt and offence must be recognised, but they should not inadvertently be misused as a device to silence those we disagree with.

As a society, we are trying to chart a suitable way forward for everyone in this country, not just those with power and resources.

Crucially, everyone engaging in discussions about hate speech must be respectful, self-aware, and empathetic.

More information

Earlier this year, the Ministry of Justice published its Proposals against incitement of hatred and discrimination. On 31 August 2021, the Human Rights Commission published its Submission on the Ministry’s proposals. The Submission was accompanied by a media release