Hate speech law needs to be carefully calibrated

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“Incitement to violence” should not be the only threshold to define hate speech in New Zealand, writes Eddie Clark.

The regulation of hate speech is difficult to master. As media law scholar Steven Price has pointed out, the challenge of a democratic society is to target the alleged evil of hate speech without grasping too broadly other legitimate forms of speech.

It is true that the scope, application and effectiveness of the hate speech law must be carefully calibrated. But these are practical and mechanical questions of how hate speech laws might work, not claims that the harm caused by hate speech is something the law cannot regulate.

While I accept that these practical difficulties exist, in my opinion the harm caused by hate speech is clearly something the law should be concerned with. But neither can we ignore the lingering skepticism about whether to use the law to regulate this kind of speech.

When the Race Relations Commissioner raised the possibility of hate speech reforms in 2017, Act New Zealand leader David Seymour argued that there were already adequate laws controlling defamation or incitement to violence.

The link with violence

The insistence on a link to incitement to violence as a precondition for restricting freedom of expression has been repeated several times since the government announced its intention to reform the hate speech law after the attacks on the Christchurch mosque.

Opposition leader Judith Collins pledged that “the National Party will quash all attempts by Jacinda Ardern’s government to criminalize speech beyond the incitement to violence threshold.”

Likewise, when a division of the Auckland Council canceled a room reservation for controversial Canadian speakers Lauren Southern and Stefan Molyneux in 2019, a spokesperson for the Free Speech Coalition said the organization was accepting a “genuine hate speech ”that incites violence or illegal activity should be blocked.

But restricting free debate under the threat of disruption is neither desirable nor acceptable in a free and democratic society.

Not everyone who is skeptical of hate speech law reform is following this line. But it demands attention when the leaders of the two main opposition parties and a prominent lobby group insist that a link to violence is needed before regulation of hate speech can be justified.

What do other laws of speech do

The problem with the argument, however, is that this is not how we treat many other existing forms of speech regulation in New Zealand law.

Defamation, for example, deals with the damage to a person’s reputation and the related effects this has on their ability to interact with friends, family, colleagues and the world at large.

The interference with these social ties caused by defamation is considered sufficient justification in itself to allow the recovery of civil damages. No connection to violence is required.

Similar protections exist under privacy breach laws. These allow people to be sued if they share private facts about another person in a very offensive way.

The damage here is to the dignity and autonomy of the affected person. Again, no connection to violence is required, even from a distance.

Harmful forms of speech

It could be argued that these are torts and that the proposed hate speech laws include criminal liability. But a civil regulation of hate speech is also proposed. Conversely, we already criminalize many types of speech unrelated to physical violence.

Obtaining by deception and blackmail are two obvious examples. These focus on speech which, without threats of violence, causes loss to the victim and / or an advantage to the offender.

No connection to violence is required – in fact, no financial loss is required. The heart of the damage covered by these offenses is that of the autonomy of the victim, which has been compromised by blackmail or fraudulent statements.

More generally, a diffuse public interest is supported by offenses such as perjury, which deals with systemic attacks on the administration of justice, and public order offenses, which defend our collective right to enjoy public spaces.

None of these elements require a link to violence. Moreover, the protected interests – dignity, autonomy, collective public good – are exactly the kinds of things that influential legal scholars argue are protected by the regulation of hate speech.

Focus on the real concerns

In my opinion, therefore, the argument that a link to violence is a prerequisite for the regulation of hate speech is false.

This is not to say that there are no good arguments against the reforms proposed by the government. It’s hard to do it right, and there are things that can and should be changed. As Steven Price also pointed out, the proposition is eerily equivocal as to whether speech intended to provoke hatred should also cause (or be likely to cause) hatred in society.

In addition, serious consideration needs to be given to whether the potential inclusion of each group protected from discrimination under section 21 of the Human Rights Act is too broad in the context of the regulation of human rights. hate speech.

We should focus on these very real concerns – public submissions on the bill end on August 6 – rather than insisting on a threshold of speech regulation that our legal tradition simply does not require. – theconversation.com

  • Eddie Clark is Senior Lecturer at the Faculty of Law, Te Herenga Waka – Victoria University of Wellington.


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