Does the right to free speech extend to shouting at a woman to take off her burqa in a supermarket? If not, why not?

We (where "we" are nice liberal folks who share in the positive values of tolerance and respect for others) like to think New Zealand has become a more diverse society, in which people have become much more accepting of difference and display greater willingness to live with the life choices of others.

Multiculturalism. Same sex marriage. Legalisation of prostitution. And so on.

Unsurprisingly, this belief has found its way into the law in a number of ways. There's legislation, of course, as was the case with same sex marriage and prostitution reform laws. But there's also been changes in how the courts approach certain issues, driven by a sometimes open/sometimes unstated belief that the law needs to move with the new times in which we live.

For example, the Supreme Court, in a couple of cases called Brooker v Police and Morse v Police (I've posted on them in passing here and here), has indicated that the offences of "disorderly" and "offensive" behaviour now need to be applied in ways that are properly respectful of the rights of individuals to express their (often unpopular or inconvenient) views on social and political matters. Such expression should only be criminalised where it poses some threat to public order that exceeds the bounds of what a properly tolerant citizen who is mindful of the rights of others should have to bear.

That's not the same as saying that "free speech" now means "anything goes" in terms of how you can express your beliefs. There are still limits to just how "disorderly" or "offensive" you can be in the means that you choose to have your say. It's just that the Supreme Court ruled those limits ought to be looser today than they were in the past (when you could be convicted and fined for things like saying "fuck" during an anti-government speech in Aotea Square, or calling out "the Treaty is a Fraud" during a reception at the Beehive).

Just where those limits should lie today is then the tricky question. That's especially the case where the person seeking to express his or her views is saying something that we (where "we" are nice liberal folks who share in the positive values of tolerance and respect for others) find particularly distasteful.

Step forward Ms Yuet Rappard, in a story courtesy of the Otago Daily Times:

Farm worker Yuet Rappard appeared before justices of the peace in the Dunedin District Court yesterday and was found guilty of offensive behaviour and fined $500 for telling a student to remove her burqa on May 17.

Rappard, representing herself, did not dispute that she told a University of Otago student to take off her burqa at Gardens New World, but told the court she was expressing her freedom of speech.

''I said, 'Shame on you, you should take it off. When in Rome you should do as the Romans do'.''

Rappard, who moved to New Zealand from the Netherlands when she was a child, believed burqas should be banned and felt ''intimidated'' when she saw people wearing them.

There's a bit of a conflict of evidence as to exactly how Ms Raddard expressed her views. According to the supermarket worker who served the student in question:

... Rappard moved to within 10cm to 15cm of the student's face before shouting at her to take off the headscarf.

''I think she called her a dirty Muslim and I think she said, 'You're from New Zealand - take off the head scarf'.''

That same worker then reported seeing Rappard "shouting" at the student again outside of the Supermarket.

Rappard's account, however, denied using the words "dirty Muslim" and claimed not to have been "shouting" when expressing her views. Because I'm working off the ODT's coverage and haven't seen the justices of the peace decision, I don't know which version of the truth was preferred by them. Given the outcome, however, I suspect it was that of the supermarket worker, so I'll run with that.

Now, here's the question for us (where "us" are nice liberal folks who share in the positive values of tolerance and respect for others). Why should Ms Rappard's particular expression of views that we find quite distasteful attract a criminal conviction and fine?

Well, it can't be the views themselves, can it? Because if it is, can we distinguish Ms Rappard's actions from (say) a Maori kaumatua who tells a visiting tourist to take off a t-shirt that he believes has an image that misappropriates or demeans part of tikanga Maori?

Well, maybe we could do so, on the basis that the burqa has a particular religious importance and meaning for the student above and beyond that which a tourist would feel for a mere t-shirt. However, isn't it precisely that religious importance and significance that so upsets Ms Rappard? So the symbolic value of the burqa works both ways here - it both increases the impact of the expression on the student, but also increases the "value" of the expression to Ms Rappard. How can we privilege the right of the student to wear what she wants for religious reasons over Ms Rappard's right to express her views on that student's public attestation of her faith?

So if it isn't the views in and of themselves that warrant criminal sanction, maybe it's the way that they were expressed. No matter how strongly you feel on an issue, approaching a stranger while they are going about their daily business and personally insulting them ("dirty Muslim") by shouting into their face just ought not to be allowed.

Let's say that's the problem here - by targetting the student and personally "attacking" her, Ms Rappard crossed over the line into deliberately victimising her in a bullying manner. (Looked at in this way, the current case has a lot of similarities to this other tricky line-drawing exercise from earlier in the year.)

OK - but this standard then has implications for (say) protestors at the next National Party conference. Surely anyone so incensed at National's performance in government who walks up to a delegate and shouts at her or him "Tory scum! You should be ashamed of what you are doing to New Zealand!" has acted in an "offensive" a way as Ms Rappard did. Or, again, can we privilege certain kinds of shouted insults (into the faces of ordinary political party members seeking to attend their organisation's meeting) over and above others (into the faces of students while they are doing their weekly shopping)?

Well, what about the effect that Ms Rappard's actions had on the student affected? Here's what she told the District Court about that issue:

The student, whose identity was suppressed, said being shouted at, first when she was at the checkout and then a few minutes later outside the supermarket, left her shaken.

''I was crying and shocked. I just felt lonely and scared,'' she told the court.

She had since had nightmares and the incident had affected her studies.

That's bad, and I am sorry the student felt that way. But here's the crux of the matter - whose fault is it that Ms Rappard's expression had this impact? Is it Ms Rappard's, because she has so contravened generally accepted values of civility that the hurt caused was both entirely predictable and beyond that which should be permitted? Or is it the student's, because she is failing to display the sort of resiliance and tough-mindedness needed to live in a society with multiple, conflicting views on how the world should be? 

In other words, who should be expected to be "tolerant" here? Ms Rappard, by refraining from expressing vehemently her views on the student's religious choices? Or the student, by just sucking up Ms Rappard's boorish behaviour and carrying on with her life?

So here's the question we (where "we" are nice liberal folks who share in the positive values of tolerance and respect for others) face. Can we find some way to draw a line that allows us to get all the good things we want out of a commitment to free speech, while still saying that Ms Rappard's particular behaviour ought to attract the sanction of the criminal law? Or, are we forced by our commitment to tolerance and respect for others to agree with Ms Rappard's assessment of the Court's verdict?

The guilty finding was an example of political correctness ''gone mad'', she said.

''Telling a woman to take a burqa off is in my mind not offensive,'' she said.

Discuss amongst yourselves (politely, whilst demonstrating an appropriate level of tolerance for the views of others ... such level to be arbtrarily determined by those individuals with access to the power of edit).