So far, much of the fuss about the government’s proposed legislation on hate speech has focused on the state – the state ! – being empowered to define and enforce the rules about certain forms of discrimination and related speech. As if this was some new thing. Yet… the government has always played that role, notably via the Human Rights Act, and in certain parts of the Crimes Act. Free speech never has been an absolute, even in the USA. (Below, I’ve listed a few of the restrictions on the free speech rights of Americans, under the First Amendment.)
A lot less air-time has been given to the wider, re-active aspect to all of this. Imagine for example that an employer or landlord wanted to employ or to rent only to Christians and/or to people who voted National. To the point where they rejected every prospective job applicant or would-be renter who confessed to being agnostic about the afterlife and/or who voted Green. That would be discrimination on the basis of “religion” or “political opinion.” In some countries people can lose their lives for believing in the wrong God or supporting the wrong brand of politics. Arguably, it is a good idea to prevent similar outcomes here.
In other words, there’s a continuum – not a conflict – between freedoms enshrined in the Human Rights Act, and this proposed “ hate speech” legislation. That’s also why the government is seeking public feedback over whether political opinion that can cause demonstrable harm to individuals and /or to communities should qualify as “hate speech.” This exercise isn’t about restricting speech that results in hurt feelings. Nothing in the proposed law would restrict or penalise vigorous political debate. It is about whether certain speech can provoke and/or perpetuate socially (or personally) harmful behaviours. In harmony with human rights law, it is about whether behaviours that restrict the free expression by other people of religion, political opinion, their disability rights and their gender identity should be tolerated.
For those sensitive about civil liberties, the re-assurance is that the legal hurdles will remain very, very high. As mentioned, hurt feelings alone won’t cut it. The harm has to be substantial and demonstrable, the speech in question has to be causally linked to the harmful outcomes and – to top things off – it will have to be proven that the perpetrator intended to cause the negative outcomes in question.
None of those requirements are easy to meet in a court of law. (It is easy to disguise or profess innocence of an intention.) Whatever shape the new legislation on ‘ hate speech” law may eventually take, these hurdles mean one thing for certain : prosecutions for breaches will be few and far between, if any happen to occur at all. That being so, this legislation will have a “chilling effect” only on the most delicate of sensibilities., As with the near identical provisions already contained in the Human Rights Act, it will remain up to the victims to forge convincing causal links between the speech and the harms they have experienced. Moreover…can it ever be possible to prove that one’s political persuasion, race, religion, or gender identity was the sole reason why bad things happened?
The government’s aim – at the bidding of the Royal Commission into the mosque shootings – has been to shift the relevant provisions – under sections 61 and 131 of the HRA – into the Crimes Act and to increase the penalties. Because restrictions on “ political opinion” are such a minefield, the government – in an excess of caution – has sought public feedback on whether this factor should be included. To repeat: even if the answer is“yes” this is unlikely to have any real life consequences because of those requirements to prove the palpable harm, the causal links and the prior intention, all of which will be read conservatively because of the existing protections around free speech Ultimately, the hate speech legislation is likely to end up as just a form of virtue signalling. It will say what society expects, even if few people (if any) will ever be punished for flouting those expectations.
In the meantime though, politicians on the centre-right appear hellbent on creating a moral panic about what’s being proposed. The tactical aim of is to put ‘hate speech” into the same bag as other paranoid fantasies like cancel culture, and political correctness. All of which is a ploy to enable the privileged to present themselves as the victims of the liberal elite. First they came for your racial slurs.Then they came for your rape jokes. Mark my words, tomorrow they’ll be coming for your manifesto about the blood destiny of the white race. Sheesh, when will it ever end?
Footnote One: Ironically, the same champions of free speech seem to be dead keen on restricting the speech allowed – in the context of the new school curriculum – about the impact of colonisation. Can’t help thinking that the fuss over the ’ hate speech” laws is only the opening skirmish in the looming war over the new school curriculum and the allegedly “woke” version of history that is being promoted by those all-powerful liberal elites. Woe betide if schoolteachers are ever allowed to suggest that anything other than good things happened to Maori in the wake of European contact.
That’s the agenda. The free speech crusaders don’t want anyone in charge of a classroom to be able to raise the possibility that the current negative health statistics and imprisonment rates among Maori and Pasifika might have something to do with the intergenerational effects of colonisation. Perish the thought.
Footnote Two: Yesterday’s fractious encounter between National Party leader Judith Collins and Morning Report co-presenter Susie Ferguson usefully illustrated a few other contradictions to do with free speech, and the media. Time and again, Collins insisted that she was there to talk about what she asserted were the topics ordinary listeners wanted to hear from her about: e.g. the vaccine rollout, the hate speech legislation etc.
Instead, to Collins audible chagrin, Ferguson’s questions were about the ructions within the National caucus, the apparently selective purging of Todd Muller and what all this might say about Collins’ current leadership style. It seemed to elude Collins completely that a major part of being the Opposition is to look like a credible government-in-waiting, and that National’s chronic failure to do so continues to be problematic for it. With that in mind, Ferguson’s line of questioning was entirely valid, and something of a prerequisite before Collins’ pronouncements on any other subject can be taken seriously.
It seems weird to have to spell all this out to Collins, a self-declared champion of free speech. But truth to tell, Collins has no right to dictate what questions she is asked, and how long journalists maintain a question line on a subject. More alarmingly, Collins seemed to be treating her appearance on RNZ as a bartering point as to what direction the subsequent interview should take, and how her interviewers should behave. IMO, that attitude seems more dangerous than any of the proposed wordings in the hate speech discussion paper. Evidently, Collins regards her political interviews on radio as something of a joint performance, with the politician and her RNZ host playing roles agreed beforehand as the condition of her gracing RNZ with her presence.
There is a name for that sort of thing. It is called access journalism. It has become the bane of sports journalism, business journalism and celebrity journalism. Access to the bigwig is conditional on the pre-negotiated agenda being followed, with the journalist’s future access dependent on how nicely they behave, and whether they stick to the script. To her credit, Ferguson took the opposite tack. It is called accountability journalism. Long may it last.
Footnote Three: As mentioned above, the current free speech advocates don’t seem to realise how – even under the US Constitution and its First Amendment protections – free speech isn’t an ‘anything goes’ free-for-all.
Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, and commercial speech such as advertising. Defamation that causes harm to reputation is a tort and is also an exception to free speech.
In other words, there is nothing inherently wrong with the government asking, in the light of (a) the mosque shootings and (b) the online recruitment of extremists…. whether a new balance needs to be struck between protecting the right to free speech, and protecting the right of the vulnerable to be reasonably shielded from harm.
The weekly playlist
It has taken Isaac Brock 14 years to get the last two Modest Mouse records into a shape where he was willing to release them. Pretty sad. Eight years passed between the first Modest Mouse album This Is A Long Drive For Someone With Nothing to Think About in 1996, and the band’s belated commercial breakthrough in 2004 with Good News For People Who Love Bad News. In that time, Brock released four Modest Mouse albums, plus a fantastically solid album of random singles, plus two excellent albums by Ugly Casanova, his own Tom Waitsian side project. Seven albums in eight years versus the current rate of two albums in fourteen years.
That previous outpouring included one indie classic in The Lonesome Crowded West and one masterpiece called The Moon & Antarctica, an album Pitchfork (rightly, IMO) ranked alongside OK Computer in the Greatest Of All Time stakes. So… what’s happened? Brock’s well-known problems with alcohol and drugs, falling asleep while driving, tempestuous personal relationships and various band combinations and dis-integrations have been part of the picture. Finally last week, Brock ushered a new Modest Mouse album (called The Golden Casket) into the light of day. The album has a resolutely positive air about it. At times, this seems like an act of will as much as the product of genuine optimism.
“Lace Your Shoes” for instance, is a largely acoustic message addressed to his young sons. As you might expect if your Dad was Isaac Brock, the song quickly becomes touchingly, uncomfortably intense. It reminded me a lot of what classic children’s book author Margaret Wise Brown (of Goodnight Moon fame) once put in a letter to her lover:
I know why now, parents keep telling their children to keep warm, and get fat and not to get wet. It is all they can say to express something, poor devils. And yet the Rabbit poet in me has always longed for another language before it is too late – a more fearless boldness of the heart, to say the things we never say, and the other never knows.
Brock would probably relate to that. This week’s playlist begins with a Modest Mouse track from the new album, and ends with a cut from the 2007 album We Were Dead Before The Ship Even Sank. On other fronts…Kristin Hayter aka Lingua Ignota has previously seemed like a bit of a try-hard. She wrote her master’s thesis on Bach’s Well Tempered Clavier. Another conceptual project consisted of 10,000 pages, which she estimated to be her weight in paper. She released an emo industrial noise/emo album called All Bitches Die, and another one called Caligula, always a reliable signifier of raging excess. On this 2021 single “ Pennsylvania Furnace” though she reins it in, to solid Bjorkian effect.
The Jellies cut dates from the early 1980s. Wye Oak and Flock of Dimes share the same lead singer, Jenn Wasner. Colleen Green once got herself arrested in Australia and deported for the crime of playing music for monetary gain on a tourist visa. Her excellent 2015 EDM cut “Deeper Than Love” offered a sharply felt take on the fear of intimacy. Check these lyrics:
And…the only best friends I ever made
Were people I knew I didn’t have to see every day
The closest to true love I ever came
Was with someone I kept many miles away
Cause I’m wary of eliminating distance
This could surely be the death of any romance
Cause I’m shitty and I’m dumb and I’m lame and I’m a bore
And once you get to know me you won’t love me anymore
And that possibility worries me the most
Not harm or abuse or becoming a ghost
It’s the closeness, the intimacy,
I’m afraid it might kill me…
Green’s more upbeat recent single conveys exactly what it says in the title: “I Wanna Be A Dog..” It bears no resemblance at all to the Stooges classic. Here’s the Spotify playlist: