Bryce Edwards: The confusing and concerning hate speech reforms

By Bryce Edwards*

Opinion - Whenever governments attempt to regulate political speech and activity, the results often end up being problematic and potentially harmful to democracy and debate. Regardless of how good the intentions, such reforms often bring complications, confusion, and unintended ill-effects. That means any laws around "hate speech" need to be extremely clear and well thought out.

Unfortunately, this simply isn't the case with the government's new proposals. This has been made obvious over the last few days by both the prime minister and justice minister in their botched explanations of the reforms in interviews. It seems neither have a good understanding of their own reforms, and their statements suggest that the proposed laws might have a chilling impact on society and political activity.

The government's own goal in selling the reforms

Justice Minister Kris Faafoi gave an interview on Saturday in which it was apparent that he was not up to speed on what his rules would do, and he wasn't willing to properly discuss their outcomes - see Dan Satherley and Tova O'Brien's Could Millennials be jailed for hating on Boomers? Kris Faafoi answers tough questions about the new hate speech proposals.

In this interview, the minister was presented with several real and hypothetical cases of speech that might be offensive, to help the public understand in what circumstances the new rules would lead to criminal prosecution. One example was younger generations hating older ones because of the way they've influenced politics to gain a monopoly on house ownership. Kris Faafoi admitted that "potentially" a prosecution against such activists could occur.

Another example was the anti-homosexual statements of rugby player Israel Folau, who the minister said might also be prosecuted if the reforms were in place. Generally, however, Faafoi expressed an unwillingness to clarify what would and wouldn't be subject to prosecution under his rules.

Prime Minister Jacinda Ardern was interviewed on the AM Show yesterday, and attempted to defend the proposal. But she got a number of details wrong. This is explained in Tova O'Brien's must-read evisceration of the prime minister's performance on this issue - see: Jacinda Ardern has misled the public and shut down debate on hate speech laws. She describes the prime minister's interview as "the most magnificent own goal".

O'Brien goes through all the aspects that Ardern got wrong in the interview. Here's her opening paragraph: "Jacinda Ardern is wrong about her own hate speech law. Completely and utterly wrong. Not only is the prime minister wrong about the basic facts of the proposal, she was wrong to shut down debate on hate speech on The AM Show this morning with her glib, inaccurate dismissals."

She asks how the new hate speech laws would be enforced if even the politicians can't understand them: "The Prime Minister and Ministers develop policy and set policy directions for law. If they don't understand the policy direction and intent of the law, how can they expect the judiciary to interpret and apply the law?"

O'Brien also pushes back at Ardern's insistence that hypothetical questions about what will and won't be classified by police as unlawful hate speech are not possible, saying: "to help us understand the implications of the law change, we need to understand when it could be applied. Using a range of examples is one way to achieve that. It is on the government to be clear about how the law could be applied and so far the Prime Minister and her Justice Minister are completely at odds."

The Herald's Audrey Young has also been highly critical of the lack of understanding of the proposals shown by Ardern and Faafoi, as well as their reluctance to discuss hypotheticals - see: Jacinda Ardern gets it wrong on hate speech proposal (paywalled).

Young says Ardern "said that it was not the job of the politicians to decide what a court would or would not decide. That is not good enough for a law which embodies a potential collision of rights, the right to live and participate freely and the right freedom of expression. The detail matters hugely. She and Faafoi would have a much better chance of persuading the public if they a) got the facts right, and b) were prepared to discuss hypothetical examples so the public had a good idea of what is intended by the proposals".

Faafoi's inability to clarify examples of unlawful speech has also been criticised by ACT leader David Seymour, who points out that this reluctance will ultimately make it more difficult for the judiciary in dealing with the new laws - see Dan Satherley's ACT's David Seymour slams 'out of his depth' Kris Faafoi on hate speech proposals.

Here's Seymour's main point: "When interpreting the law, courts often look to speeches from the minister responsible to see what Parliament really intended a law to mean... They won't get any help from Kris Faafoi, who couldn't answer what speech was likely to face prosecution... That's because he can't say".

Seymour also makes a useful point about the difficulties with this sort of policing of speech: "Hate speech is subjective and politicised. Faafoi knows police will end up facing pressure to prosecute people with unpopular views."

Legal commentator Graeme Edgeler is also concerned about the government's stance against hypothetical questions like those posed by Tova O'Brien, saying: "The most obvious concern is that the government has not been clear about what it thinks the law will actually ban, and worryingly the Minister of Justice doesn't seem to think he has a role in deciding what types of things this law would make illegal, nor more importantly, what types of things it would not make illegal" - see: The government's proposed decriminalisation of racist hate speech.

Confusion about the detail of the hate speech proposals

There are several news reports that attempt to explain the proposals on hate speech, but these have tended to add to the confusion, rather than clarify the detail of what the changes will entail.

Graeme Edgeler's blog post cited above is the most important account, giving details in Q&A form about what the law will achieve. He points out that the existing and new laws don't generally apply to forms of speech directed at individuals, unless it would cause harm to wider social groups: "Importantly, this offence covers speech about groups. Speech directed at individuals mostly isn't covered by this law, nor by the proposals for change. If you are looking for legislation to deal with things like racist or otherwise bigoted street harassment, this is not it."

One of the biggest areas of confusion is over whether the threshold for classifying and prosecuting any form of speech will be high or low. For example, could people be prosecuted for merely insulting certain groups? The prime minister has suggested not, focusing on cases where violence occurs or is incited. For example, she said yesterday that "This is about extreme speech where you're inciting violence and hatred".

But this has proved to be incorrect. In her opinion piece, Tova O'Brien says the bar for prosecuting hate speech will be lowered to include forms of insults: "So someone who intentionally stirs up or normalises hatred by being insulting would break the law." And she points out that Faafoi too, "made it sound like the bar could be quite low" for what will be deemed hate speech.

O'Brien's Newshub colleague Jenna Lynch has pointed out that Faafoi and Ardern are not on the same page on this issue. She says: "The discussion document is clear: under the changes, a person would break the law if they intentionally stir up hatred by being threatening, abusive or even just insulting" - see: Prime Minister Jacinda Ardern concedes proposed hate speech threshold is lower than inciting violence. In this report, Seymour is quoted saying: "Outlawing insulting people based on political opinion belongs in North Korea, not New Zealand."

Heather du Plessis-Allan says she has become more uncomfortable with the proposals following on from the various government interviews, given that the ministers themselves don't understand their own law, and because it's becoming clearer that the proposals are about "substantially lowering the bar" for prosecutions of hate speech - see: Do Ministers even understand the proposed hate speech laws?.

Du Plessis-Allan says: "Under the current law people only get prosecuted if they incite violence. Under the proposed law people will get prosecuted for insulting protected groups."

On a similar basis, broadcaster Duncan Garner has also come out against the proposed laws: "It's already against the law to incite violence in New Zealand - the proposals take it much further than what even Ardern knows, or admits to. It could be against the law to insult and/or offend people if these proposals become law - it significantly lowers the test of hate speech. I think we should fight this. It should never be against the law to offend anyone - heavens, we'd be out of jobs and all in jail" - see: Jacinda Ardern and Kris Faafoi have stuffed up the proposed hate speech law.

Garner argues that the government is just too busy with more pressing concerns to pay proper attention to the hate speech issue, and he says it isn't a priority for the public, so they should park it until the issue can be clearly and thoroughly thought out.

The extreme difficulties in legislating in this area, and the care required, are emphasised in a Stuff newspaper editorial this week, which says: "When is it hate speech and when is it just a bad opinion? We have to tread carefully when it comes to the criminalisation of hate speech" - see: The slipperiness of hate speech.

On the question of whether insults qualify as unlawful hate speech, the newspaper says: "Despite the relatively mild word 'insulting' appearing throughout the document released on Friday, hate speech must be more than merely an insult. It must incite or normalise hatred."

The editorial concludes by warning against over-reactions in the debate. On the one hand, opponents of the reform should refrain from hyperbole, but also "criminalising hate speech can itself be a disproportionate response". The editorial agrees that "anti-hate speech measures must be well-founded, proportionate, non-discriminatory, and not be misused to curb freedom of expression or assembly nor to suppress criticism of official policies, political opposition and religious beliefs".

A debate is also needed about the appropriate penalties for hate speech. The new proposals suggest increasing the maximum fine from $7000 to $50,000, and the maximum length of imprisonment from three months to three years.

On the latter, Heather du Plessis-Allan says: "Three years in jail for a start is disproportionate. It's three times longer than you get for common assault, for example for punching someone in the face: that's a year. It's longer than the punishment for assaulting a child, or a man bashing a woman: that's two years. So they're going to have to tell us how nasty words deserve a greater punishment than an actual physical attack" - see: Hate Speech Law can go into the Awkward Friday Politics file.

And which groups in society should be protected from hate speech? The new proposals suggest giving legal protection to a whole range of new groups - most notably, religions.

But there is uncertainty about whether "political opinion" groups, such as political parties, should also be protected from speech against them. The prime minister says it won't be included, but the official discussion document does include such groups.

On this, du Plessis-Allan says: "So now if you go around saying you hate Green Party voters or National Party voters and you want to convince other people to hate them all too because they're entitled or selfish or whatever, you now run the risk of ending up in jail? I think there'll be a fair people who baulk at that. That feels a helluva lot like it's crossing a line into stifling debate."

But are critics correct about all of this? According to law academic Steven Price, they're not - see his blog post, Hating on hate speech. In this, Price argues that the bar is actually set very high in terms of criminalising speech. So, for insulting speech to be prosecuted, it would also have to "be likely to incite or normalise hatred", it would have to have "an intention to incite or normalise hatred", and it would have to "be aimed at a particular group". In addition, he thinks judges would take into account the Bill of Rights and the free speech protections it provides.

Amongst many other good points, Price also agrees that "it's really hard" to legislate against hate speech because "it's almost impossible to define. Any attempt is likely to cover too much speech or too little, or have the appearance of covering too much but the effect of covering too little."

He's also not convinced that the government's proposals are clear enough: "It's not very clear to me. What is hatred exactly? What evidence do you put before a court to show that hatred has been normalised or incited?" Ultimately, he believes the government has oversold the reforms, and the protections are unlikely to result in any changes. He concludes that the media should be asking "whether the law will in fact be too ineffective."

Much of the criticism of the hate speech reforms is coming from the political right and conservatives. But it's worth noting that some leftwing commentators are strongly opposed too. The most vocal opponent, so far, is blogger Martyn Bradbury. Amongst his many blog posts against the changes, he warns the political left against supporting giving the state and police more powers that will inevitable be used against his own side - see: What you woke morons are missing in the hate speech fiasco.

Bradbury also argues that if the intention of hate speech legislation is to create greater social harmony, then the government is focusing on the wrong weapon: "This government needs to spend far more time on housing, child poverty, education, welfare, infrastructure, climate change and inequality and far, far, far less time on social engineering vanity projects to criminalise you for word crimes! If government wants to make NZ more 'socially cohesive' they should build more houses, use a wider range of taxes against corporations and fully fund mental health, education and public health - they shouldn't strangle off free speech with poorly thought out knee jerk legislation" - see: Jacinda's trainwreck interview on AM Show & the most important column Tova ever wrote.

Similarly, Chris Trotter has written that the government's proposal will achieve the opposite of social cohesion, and a more progressive and productive approach would be to concentrate on uplifting those at the bottom of society, which would preserve "the material conditions necessary for a diverse collection of human communities to live and work together peacefully and productively" - see: 'Doubleplusgood!' Labour declares war on New Zealanders' freedom of expression (paywalled).

Here's Trotter's main point: "To have any reasonable expectation of producing social cohesion, it is first necessary to ensure that as many people as possible have jobs to go to, houses to live in, easily accessible educational and health services for themselves and their children, generous support in old age, and the ability to participate meaningfully in the political and cultural life of their country. Provide these things and social cohesion will emerge naturally. A population which feels secure in its material existence has little incentive to exploit or harass its weakest and most vulnerable communities."

Finally, if all of the above is confusing, then check out the Ministry of Justice's discussion document on how the government wants to deal with hate speech: Proposals against incitement of hatred and discrimination.

*Dr Bryce Edwards is Political Analyst in Residence at Victoria University of Wellington. He is the director of The Democracy Project.