The government report on March 15th studiously and shamefully avoided accountability. The recommendations made for the future were clearer. Legislation intended to curb hate speech has been embraced by the government, both to genuinely work on an issue, and to be seen at least doing something. The responsible figure will be the Minister of Justice, now Kris Faafoi, who so far seems capable and is rising quickly off of his hard work. All agree that, if hate speech laws come into existence, they need to be carefully crafted. I think the issue is concerning: people aren’t born hateful and bigoted, and they don’t commit hate crimes unless they’ve heard plenty of hatred. It’s also onerous for marginalised people like Māori to constantly put up with bile that stacks on top of existing disadvantages, like convincing schoolchildren growing up in poverty that they won't amount to anything and shouldn't try. I don’t think hate speech laws are the answer.
First of all, let me clear some daylight between the free speech movement and I. Visible champions of the movement - basically, David Seymour and, to an extent, Judith Collins and Winston Peters - have two goals. The first is to avert government oppression. This is laughable. They have produced no evidence of a chilled political atmosphere in any other free liberal Western democracy that has hate speech laws. Many European countries have laws criminalising hate speech, most notably around Holocaust denial, yet they’ve only had an effect on a few celebrity cases like the YouTuber who made a Nazi video with his pug. Much of the hullabaloo about free speech comes from emigres from authoritarian regimes mistakenly misidentifying NZ as soon to be among them.
The second is to encourage free discussion and debate. Somehow, this goal, not their comical conviction that being unable to say slurs means the end of democracy, is their greatest failing. You see, I’ve never actually seen any prominent free speech advocate put it to good use. Yes, they use it like any of us do, to make statements on various issues, but there’s no attempt to use the best part of free speech. Free speech means you get to listen to other people, and grow in the process, refining your views and selecting the best parts of a whole crop of options.
Instead, Judith Collins and Jacinda Ardern go toe-to-toe over the pressing issue of whether Collins is a Karen. The state of Parliament itself is a good indicator that the most prominent free speech advocates are selling out those passionate people in the movement. They are exploiting it for political gain, just like how they cannibalise any legitimate debate, and too often themselves spread fear and hate. (Looking at you, Winston.) They could do so much to speak out against hateful speech and bigotry, and they do so little.
Let's pick on an easy target. Seymour is just one of many dismissive and snarky politicians. He is more interested in inviting TERFs to picnic on Parliamentary ground than trying to use his platform to elevate the voice of any group most Kiwis usually don’t hear from. When is the last time you heard an openly trans person on TV? The free speech movement currently have about everything they want. People throughout history and the large majority of the present-day world would, and do, fight and die for the freedom of speech we enjoy here. The most visible figures for free speech are completely, bafflingly squandering it. I rarely get the impression that they have a clue why people on the other side of issues from them have different beliefs - least of all those against free speech.
Why do I oppose this law anyway? Firstly, we have to talk about the principle of free speech. I generally don’t care that much about principles if they’re not backed up by actual consequences. If something’s a good idea, you do it even if it violates some arcane principle, because how will that principle help people?
Still, those arguing against free speech should at least honestly participate in the debate and acknowledge that that principle is being violated. Claiming “hate speech isn’t free speech” doesn’t make it so. Saying we should curb undocumented immigration to reduce littering is pretty clearly a political view presently protected by free speech, just as it’s also obviously reprehensible hate speech. We’d like him not to say racist crap and, when he does, we’d prefer people, especially his targets, don’t hear him.
Free speech is unique because, alongside other fundamentals like freedom of the press, it's a building block for scaffolding additional freedoms. Once free speech is restricted enough, freedoms themselves (including, paradoxically, free speech) cannot be advocated for. Of course outlawing calling people a slur will not end freedom in this country. However, there are specific implications of curbing freedoms that I’ll cover later.
The point is we’re starting from a place where a legal precedent is set for restriction of free speech. This is particularly salient in an era where regulation of misinformation is increasingly discussed. Note that authorities and institutions like health bodies and the media frequently got it wrong on COVID, such as initially downplaying the risk and not platforming voices calling to close the borders and implement lockdowns. These are outcomes likelier to occur if governments can scaffold for themselves additional powers to restrict dangerous speech.
What does hate speech actually look like? Straight-up hate based on characteristics, sometimes coupled with nonsense political views to justify them. How would these laws be practically enforced? When I was called a faggot walking down the street in Christchurch, I just had to keep moving. We identify hate speech as dangerous and people participating in it as likelier to engage in violence towards marginalised people. In practical terms, this means it’s often a stupid or risky decision to do anything but get away from a bigot. If somebody calls me a tranny on the street, I’m not going to be safely able to go back and note their appearance so I can report them. Even if I did, that would not be enough for the police to go off of.
Nor am I likely to try. Marginalisation means you’re more likely to internalise the idea hateful speech about you is correct, less likely to believe others will care if you report it, and actually less likely to be listened to if you do report it. For any report to result in an arrest would require a belief that many police in this country take being called a slur seriously enough to go arrest someone. We know they often neglect to follow up far more serious crimes like sexual violence and domestic abuse. They have a sneaky tendency to arrest disproportionately more minorities than they do white people even for stuff that isn’t hurting anybody like smoking marijuana. The same goes for convictions in court. We’ll come back to this later.
What’s my solution to hate speech? Sadly, I’ve got nothing better than the slow and grinding wheels of social change. Ordinary people need to be raised, educated, and consume media that teaches them that hate speech is commonplace, harmful, and it’s their place to step in and protect others. This is gradually occurring over time. Too slowly, but it is happening, and social activism can accelerate this. Evidence suggests the most effective method is, gratingly, to get figures who are trusted by and close to bigots to engage in two-way conversation with them and defuse their concerns over time. This is fraught with issues, like our self-interest not to get tough on the people close to us, but it’s what works.
Social change is particularly necessary amongst people in positions of power, like government officials and business owners, whose speech often does not fit the interpersonal example I set out above. We can exert “soft power” against bigots such as letting them go from their jobs, creating consequences just like hate speech laws aim to. I’d trust a lot of other government departments and plenty of small business owners more than the Ministry of Justice to get it right on combatting bigotry. We could have both, of course, but then that relieves the pressure on employers and others to act against hate speech, by putting the blame on victims for not reporting. Again, I’ll come back to this.
The other major kind is online hate. One only need take a look through some of the most vitriolic Kiwiblog articles to see the sheer volume. Or don’t, because that place is a cesspit. Online hate includes its own, obvious problem: how do you create consequences for people typically hiding behind anonymous accounts? How can we design a regime that prevents online hate, when so much of both the hate and the apparatus that carries it is exported from overseas? Most technology originating from the US is, in general, a recurring impediment when devising solutions to tech issues. The stalled Christchurch Call aptly demonstrates that the government does not have answers on this.
To somehow circumvent these barriers would require an extension of the surveillance state. That takes us back to what started all this: our intelligence services “misallocating” resources and failing to stop real harm. Best-case scenario, they prioritise reducing hate that could eventually contribute to violence by some people over actually directly stopping violence. Worst-case scenario, they end up harassing Muslims all over again because they identify components of sharia law and khutbahs as hate speech. It's more important to me that we work against the status quo of government agencies singling out and harassing marginalised communities than that people stop DMing me to inform me I'm a trap.
Remember how endless the drivel is out there. If you stop some of a problem and can’t solve it all, you’re usually still creating an improvement, but I don’t see the difference between a 500-comment section that’s 90% hate, and a 250-comment section that’s still 80% hate. It’s not going to improve the amount of positive, supportive love that exists. Again, encouraging more active positivity and care among more people, particularly those not currently as affected by hate speech and with the most room to get involved, is the way forward.
Finally, the standards for what is measurable as harm start to break down. Anybody can view anything on the internet. I can take two minutes to go look up TERF profiles on Instagram if I feel like feeling sorry for myself today. I have a sneaking suspicion this could end up amounting to victim blaming, reaffirming the false insinuation that marginalised people go looking for something to get offended about. We may see certain areas of cyberspace defined by social norms as where marginalised people “belong” and others where they stray at their own risk. These sorts of social norms are very influential in a pretty privileged justice system that all too easily turns on people it's meant to save and demands to know why they didn't protect themselves.
What do we do instead? There’s not a whole lot we can do about the Internet. I applaud the Christchurch Call in principle as a smart identification of the source. However, Facebook and the rest don’t care about what any Prime Minister of New Zealand has to say. They barely even care when the U.S President weighs in. All that remains is the “social pressure” avenue for profiles that aren’t anonymous, like those on Facebook.
The other solution to remind people of is that we already have laws against some kinds of hate speech. They are intended to prevent the incitement of violence. This is justified because violent hate crimes are universally (excepting the Neo-Nazis) perceived as wrong and illegal, and it makes no sense to let crimes go ahead when we can stop them at far less cost at the roots. The link between hate speech and violent hate crimes, while extant, is far more ambiguous in individual cases, because the volume of the former so outways the latter. Governments should instead enforce these laws on the books in clear-cut cases.
Finally, what other downsides exist to this law? It takes up parliamentary time, though this is low on my list of concerns. The pretty obvious one is that how subjective it is plays into the hands of people who feel threatened by it. That’s bound to promote backlash by the types who think, if such laws exist, they should really be protecting white people against “reverse racism”, men against “feminazis” and so forth. The right thing should always be done against the ever-present social force of backlash, but we also can’t pretend it doesn’t exist, or have a real negative effect on progress when galvanized.
There is a vague, distant concern that these laws can be used to curtail legitimate political speech, but I can’t see how one could dress up, for instance, criticism of an authoritarian government as hate speech. Any government in a position to get away with that is already getting away with murder. Still, our democracy lacks many formal safeguards, so we should be careful with every additional mechanic we load the government with that it might use to play “constitutional hardball” someday.
As examples like gerrymandering in the US demonstrate, undemocratic tools placed in the hands of legislators create a quandary. The “good guys” who still believe in democracy may choose not to use them, but that lets their undemocratic opponents get an edge. On the other hand, using them further erodes democracy, and they’re likelier to get away with it because democratic watchdogs are on their side. If a far-right party threatened to take power here, would it be right to curtail their speech, and deal with unpredictable results like disengaging them from the system and incentivising their turn to violence? Would it be right to let them continue marching down their dark path? Much better to leave the cupboard bare of weapons they’d plunge into our hearts, and that of our democracy.
Finally, the most blatantly overlooked concern to my mind is one that I mentioned earlier: if the justice system ends up focusing on alleged hate speech coming from members of marginalised groups. A clear example in the world today is France, a nation-state obsessed with secularism and assimilating “foreigners”. Their relentless drive to integrate Muslims into a system of “Western values” means repeated affronts and restrictions on the rights of Muslims. Given hate speech laws, a favoured target of the government for that agenda would therefore become doctrines and beliefs that may not actually be manifesting as practical harms. Many strains of Mormonism have racist beliefs against black people, but Tongan and Samoan Mormons clearly don’t practice those as part of their faith. Yet a government might come for them anyway. The extremely belated Dawn Raids apology reminds us that systematically racist enforcement of the law to scapegoat minorities has happened before.
I try to avoid taking too much of a “debating” approach to the real world. The goal of debating is to win by hook and crook, not to try to reach good outcomes or preserve individual freedoms. However, if there were any place to apply a debating rubric, it’s here, where the intended outcomes revolve around discussion and debate.
There is a principle that, however hard it is to see the practical effects coming to be, could potentially go wrong if compromised. What the hate speech laws set out to do is, in part, already covered under the status quo. I have never seen an adequate explanation on how they will solve the rest of the problems. There are better routes to dealing with those, which new hate speech laws will only impede, while adding to those problems from a position of ultimate power. I’m perfectly persuadable on this. I don’t think it’s a matter of life and death if one side or the other triumphs, as the government presumably will. Still, for now, I’m against the passage of hate speech laws.
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