The ACT Party's "plan to protect freedom of expression" is long on aspiration, short on detail, and would usher in an extremely unpleasant society should it ever be put into place.

This morning I had a chat to RNZ’s Morning Report about the ACT Party’s “plan to protect freedom of expression”. Because I don’t think I did all that great a job explaining my points there, I want to have a longer go at it. So, here we are.

ACT’s headline grabbing proposal is to “remove restrictions on freedom of expression which make ‘insulting’, ‘abusive’ and ‘offensive’ speech unlawful.” It identifies two bits of our law that it would eliminate:

• Sections 61 and 131 of the Human Rights Act 1993, which make unlawful forms of expression that may provoke “racial disharmony” or have the effect of “inciting racial disharmony”;

• Some unspecified bits of section 4 of the Summary Offences Act 1981, which make it (amongst other things) an offence to “in any public place, address any words to any person intending to threaten, alarm, insult, or offend that person.”

The reason for doing so, ACT says, is that “while it should be a crime to incite or threaten violence, nobody should ever be punished for their opinion.”

Great bumper sticker slogan, which I’m sure looks wonderful in pink on a yellow T-Shirt. However, it may not entirely surprise you to discover that the legal background to this area is a lot more complicated than ACT would lead you to believe, and that its policy proposal (if ever actually adopted) would lead to some pretty unpleasant social consequences.

Let’s begin with the provisions in the Human Rights Act that ACT sees as being so inimical to free speech ideals. For either provision to apply, two conditions must be met. There must be a form of public communication “which is threatening, abusive, or insulting”. That’s the bit of the law that ACT has focused on in its policy messaging, with David Seymour saying “nobody should ever be punished for insulting or offensive speech”.

However, to be unlawful the public communication also must be “likely to excite hostility against or bring into contempt any group of persons … on the ground of the colour, race, or ethnic or national origins of that group of persons.” And that element of the statutory test has been given a very narrow reading by our courts.

In a case decided just last year, the High Court said that it “applies only to relatively egregious examples of expression which inspire enmity, extreme ill-will or are likely to result in the group being despised.” (at [56]). So, it’s not enough for someone to make reference to a person’s race or ethnicity in a way that that person finds personally insulting or offensive. The reference to race or ethnicity must be in a form that is objectively likely to cause others exposed to the words to (in shorthand) “hate” members of the relevant racial or ethnic group.

In other words, the Human Rights Act does not make it unlawful for a person to hate someone else for their race or ethnicity, or even to express that hatred publicly. It also does not make it unlawful to express hatred of other races or ethnicities in ways that merely insult or offend any individual. Rather, it makes it unlawful to express your views in an offensive, abusive or insulting way that could then cause other people to hate individuals based on their race or ethnicity.

Now, why might our law seek to prevent this last sort of expression from occurring? 

One answer is because we’ve promised the rest of the world that we would do so. Having ratified the International Convention on the Elimination of All Forms of Racial Discrimination in the 1960s, we committed to “declar[ing] an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination”. But that only raises the question of why did the international community (including New Zealand) think this matter so important that it created an entire treaty regime to cover it?

The answer, it seems to me, lies in looking at what happens in societies which have normalised expression that inspires enmity, extreme ill-will or is likely to result in the group being despised. Whether it be Rwanda, the Balkans, Myanmar or (at the risk of Godwining my post) Nazi Germany, the repeated use of dehumanising language towards ethnic groups laid the groundwork for subsequent genocides against those groups. Seeking to stop a similar dynamic from ever occurring here in New Zealand seems to me to be a quite legitimate state interest to pursue. 

Now, I’m sure the response to this will be “but we’re not that sort of place—we don’t really need to use the law to suppress expression that may provoke hatred against racial or ethnic groups.” I would have thought that the Christchurch atrocity might be cause to pause on that claim. Also, exactly when is the right time to introduce such a law? Waiting until after such expression becomes normalised, and so becomes a “real problem” to address? That seems like a recipe in futility.

Alternatively, it may be argued that legal attempts to suppress such hate speech simply cannot work, and come at a cost in terms of dissuading some people from speaking as they otherwise may choose to. The former argument strikes me as being more of a statement of ideological commitment than a genuine assessment of the empirical evidence. If you believe speech restrictions shouldn’t exist, then you are going to believe they don’t work.

And the latter claim that the cost of such laws simply is too great ignores the other side of the equation. Because not having such legal limits on permissible speech acts also comes at a cost. Permitting someone to (say) stand on a street corner loudly telling passers-by with coloured skin “you don’t belong here—you are ruining our country and should f*ck off out of it right now” imposes what we may call a “psychological tax” on members of that group. 

There’s lots of voices telling those of us who do not face the everyday burdens associated with such speech acts just what that psychological tax entails. It is not simply a case of feeling “insulted”, “offended” or “annoyed”. It’s the constant grind of being told you are not a proper part of this society and that your presence here is not welcome.

We then have to ask why those wishing to engage in racial hate speech—currently defined, remember, as “relatively egregious examples of expression which inspire enmity, extreme ill-will or are likely to result in the group being despised”—ought to be allowed to impose such a psychological tax on other members of our society. The state has to protect one group or the other. And it simply is not clear to me what theory of the value of “free speech” requires that it must be the former.

Just as importantly, repealing the Human Rights Act provisions is only one part of ACT’s proposal. The other part is to remove the provisions in the Summary Offences Act that deal with “‘insulting’ … and ‘offensive’ speech”. Exactly which bits of this legislation will go is unclear, as the party hasn’t actually bothered to spell out its policy beyond broad slogans, but we’ll press on anyways.

Now, it is true that the Summary Offences Act has been used to punish individuals for engaging in racist speech in public. In 2015, a man was convicted of using offensive language for calling two men on a bus “Islam c**ts” and accusing them of “shooting innocent people” (he also told a woman who intervened in their support to “shut your mouth up b**ch”). In 2014, a woman was found guilty of using offensive language for telling a taxi driver to “F**k to India. You come here and get all the Kiwi jobs; eat your f*cking curry and f*ck off to India. This is a Kiwi job.”

However, it’s not just racist rants that attract such consequences. A man screaming abuse at his wife in a supermarket carpark has been similarly convicted. Swearing at the police as they try and break up a street fight attracted a conviction. And so on, and so on. Because the point of this provision is that it is concerned with protecting public order. It seeks to establish lines of acceptable conduct (including speech conduct) in public places that allow all of us to share in using them. Without such lines, we devolve to the lowest common denominator; whoever has the least social shame and most obnoxious attitude gets to decide how those spaces may be enjoyed.

Imagine, then, that ACT ever followed through on its proposal to remove such legal lines, in order to permit an “anything goes” approach (at least, up until violence is incited or threatened). Note also that this isn’t an area where “self-help” remedies apply. If you decide that someone’s offensive or abusive language is beyond the pale and take matters into your own hands to put an end to it, it’s you that will end up in the dock.

Well, we know one outcome of ACT’s policy. It will make New Zealand a place where people are legally free to give Nazi salutes on Parliament’s grounds and walk down the street calling strangers “the N-word”. David Seymour himself tells us this is so. 

And it also will be a world where you go for a picnic with your family on a pleasant summer afternoon in your local park. Two bogan wastrels, who have been drinking all day, pass by and see you enjoying your day out. They come over and tell you to “take your f*cking ugly c*nt kids and f*ck off out of our park”, before spreading themselves on the grass beside you and continuing to carry out a swear-word riddled rant.

Remember, under ACT’s policy, this mere “expression of opinion” cannot be grounds for state intervention. You may be insulted or offended, but you cannot call the police to have them intervene as no laws are being broken. You either grit your teeth and bear the abuse, or you pack up your things and leave the park. Because … freedom.

Now, if ACT wants to go into the 2020 election campaigning for the rights of drunken bogan wastrels to abuse suburban families picnicking in public parks, then I guess that’s their political choice. But I’m pretty sure that’s not the “rights” they are concerned with, and I’m also pretty sure that’s not the particular dog whistle that they are blowing.