Debating the rights and wrongs of rights starts with the acknowledgement there is no right and wrong... so where do you draw the line?

I argued in my previous post that a free speech debate played into the hands of the numpties - Lauren Southern and Stefan Molyneux - who wanted to come to New Zealand to make their case for racial superiority and prejudice. I said it was better to defeat them than ban or martyr them, but I also can't resist dipping my toe in the free speech ripples. 

In short, a debate over free speech and 'hate speech' is what we've got, so (belatedly) here are my two cents. In part I'm drawn to lay out some thoughts on this because I've written a chapter for a Penguin book due out soon that deals with precisely some of these issues.

It's always a difficult debate to have, because it cuts deep into people's identities and core beliefs. There is no easy answer to such debates, and neither should their be. The issue of free speech demands constant vigilence and discussion because there is a line where that freedom can be abused and the rights of people's safety, for example, trump free speech rights. The old 'shouting "fire" in a crowded theatre' scenario is a prime example.

The problem is always that we each draw the line in different places. That is our right, but it ensures this debate can never to tied up in a bow and resolved once and for all. I do not believe there is a wrong or right as to where that line should be drawn and in any discussion we need to retain our respect for people who may draw it in a different place to us. We also need to be incredibly careful around the language we use, specifically those two powerful words 'hate speech'.

My concern is the people who have slipped into talking about 'hate speech' as views that "insult' others. In social media comments and news stories, I was concerned to see comments from people on all sides of the political debate equating 'insult' and 'offense' with 'hate'. Even Phil Goff fell into that one.

That is a terribly dangerous and unwise stance, in my opinion. We have every right to insult each other. Indeed, I struggle to think of positive social change that hasn't involved offending and insulting some. Sure, punching down should be resisted and the most vulnerable defended. But we do not defend victims of prejudice by banning the expression of certain opinions. Rather, as I argued in my other post on this topic, we defend them by winning the argument and exposing the flaws in the prejudice. 

Sure, I understand the 'that's easy for you to say' argument, but for all our sakes we need to ask the victims of prejudice to be robust enough to withstand the insults. We ask them to pay a price for freedom, a price that only some have to pay but that we all profit from. The gain comes in the sweep of history and geography where shoes do move to the other foot. In other places and times, the victims can be the perpetrators. Yet the principle remains the same; we won't always agree and won't always be kind, so we'd better figure out how to make room for those we disagree with. 

In fact trading insults is core to being human. It is OK - it is part of human life - to feel the sting of unkind words. We have all felt them and, let's be honest, we have all hurled them at some stage. Life is difficult and involves pain. It is no life at all if we try to remove all such damage.

I was concerned to see the New Zealand Federation of Islam Association president quoted as saying, "I don't think insulting Muslims comes under free speech, that's an abuse of freedom of speech".

Being able to insult people is in fact at the heart of free speech. As we know, some Muslim views are insulting to others. Yet part of success as a society is our ability to live alongside people who we disagree with and make room for a wide range of views. The truth is, any religious (or atheistic) practice may be insulting to others... and may be wrong and insulting and uncomfortable for some. But we make space. Up to a point. Where that point is remain debateable. But hiring a hall and arguing a case is well below any line I would draw.

While I respect people's rights to have different views, I still have an opinion, and while it moves around from case to case, it's that any threshold for banning free speech should be at the highest possible level. 

We always have to remember that this debate sees us choosing between two evils. Either path involves some harm. Arguing to suppress views is not simply taking the side of safety and kindness.

It may seem a simple act of decency to silence  views that give licence to demonise a minority group already vulnerable to misunderstanding and bullying. No view, no harm, right? However the suppression of views can also harm. It stops the valve of debate, which can build pressure and increase the chance of violence. Banning something does damage to those who want to express themselves in a certain way. It drives certain views underground and can turn words into violence. It also, of course, narrows the human imagination and limits the ideas we can engage with and discuss. And we always come back to the question of who then gets to decide what is banned or insulting or acceptable and what isn't? Who holds that terrible power? And if first they silence Lauren Southern and Stefan Molyneux, who will they silence next?

But the other damage often forgotten in this debate, is that it stops people thinking about the issues raised and coming to their own conclusions. It stops people from deciding for themselves what nasty and destructive nonsense these people are spouting. It stops us having and winning the argument about whatever issue is being presented. That was at the heart of my previous post.

But what about the argument that if they have the right to speak, others have the right to ban them? Oscar Kightley has made that argument. Sorry, I don't think those are equivalent rights. You have the right to ignore the arguments as beneath contempt. You have the right to disagree and to argue back. But you do not have the right to stop someone expressing their view. If you want to make that argument, at the very least you have to then be willing to have others ban you from expressing your view if they decide it is beyond the pale. 

It's funny, we often hear praise these days for people 'speaking their truth' and 'telling their story'. Yet it seems we feel the need to decide whose truths and whose stories are valid and whose are not. 

At the heart of this debate is humility and the question: Who are we to take on that mantle and make ourselves judge, jury and silencer? 

One final thought... on Phil Goff's decision not to allow Southern and Molyneux to speak at an Auckland Council venue. I'm not sure I would have made his decision and I think the Council was on stronger ground with its official concerns about health and safety than when Goff went onto say he wanted to protect people from insults and offense. Goff has taken decisions in office, for example around New Zealand's role in Afghanistan, that have deeply offended people. So he's throwing stones at glasshouses with that argument.

Having said that, I think he and the Council probably have the right to stop the pair speaking in Auckland Council buildings. You can tell me I'm wrong... and I may be. But it seems me the right to speech and a certain organisations obligation to provide you with a platform to speak are not the same thing.

Not every organisation has to make room for every view. I spent many years being criticised for all the people who didn't appear on Q+A and The Nation in the years I was producing them. But the fact is that choices have to be made and lines drawn. Everyone deserves a voice, but not on every platform or in every building at any time. If the Canadian pair can find someone to host them, fine. If they cannot, perhaps that tells them something about the New Zealand appetite for their views. Either way, dosn't the Council have discretion to reflect its values? 

So having earlier argued that a free speech debate only gives the stirrers what they want, I've now had my go. Not because I care about these two in particular, but because I think encouraging debate and making space for those we disagree with is a value and skill that we're losing in these polarising times. The greater good - and the hardest challenge - is to find our common humanity rather than focus on the insults and prejudice. 

Oh, and because I've got a book to plug. It's called 'The Big Questions' and is out in August.

Comments (22)

by Kat on July 17, 2018

"But you do not have the right to stop someone expressing their view. If you want to make that argument, at the very least you have to then be willing to have others ban you from expressing your view if they decide it is beyond the pale"

Except perhaps when it falls under the laws pertaining to Seditious Intention. Perhaps Andrew has a scholarly view on this.

by Rich on July 17, 2018

@Kat the crime of sedition was repealed in 2007?

by Lee Churchman on July 17, 2018
Lee Churchman

As I said before. This is mostly J S Mill’s argument and suffers from the same problems. One is that we don’t need awful views to be advocated to remind us they are awful,   

As for the line drawing arguments, governments and courts manage to do a fairly decent job of this in most cases. Let’s face it: nothing of value would be lost by banning Nazis just as nothing of value would be lost by draconian legislation aimed at organised crime. It would be fairly easy to make such laws (the Germans have long standing anti-Nazi laws IIRC). 

by Ross on July 17, 2018

The old 'shouting "fire" in a crowded theatre' scenario is a prime example

Oh dear, I thought we'd heard that old chestnut for the last time. Hopefully this is the last time!

"We [protect speech critical of religion not] because we support hateful speech, but because our founders understood that without such protections, the capacity of each individual to express their own views and practice their own faith may be threatened.  We do so because in a diverse society, efforts to restrict speech can quickly become a tool to silence critics and oppress minorities. We do so because given the power of faith in our lives, and the passion that religious differences can inflame, the strongest weapon against hateful speech is not repression; it is more speech." ~ Barack Obama

by Kat on July 17, 2018

@Rich, Yes thanks for that :) its not exactly how I wanted to word it but once I hit the button I couldn't edit. You are correct Sedition law was repealed, what i wanted to say was the criminal laws that existed alongside Seditious Intentions in my understanding still exist today and therefore could be enforced for "deliberately exciting hostility or ill-will between different classes of persons as may endanger public safety"

What I am not sure on is whether "classes" extends to races.

by Tom Semmens on July 18, 2018
Tom Semmens

In the notoriously shifting and lumpy boundaries of democracy the ultimate arbiter of freedom of speech is probably whether or not the mass of the demos is worried about a particular case. Despite the obsession of the media/political class with the case of Southern and Molyneux this is not an issue that has engaged the wider population. I would contend that is because the wisdom of the crowd has judged the value of Southern and Molyneux and found them not worth the effort. For better or worse, we have a political tradition of liberal empirical expediency, not an American model of schlerotic constitutional legalism. Plenty of our twitterati seem to forget that.

by Ross on July 18, 2018

Despite the obsession of the media/political class with the case of Southern and Molyneux this is not an issue that has engaged the wider population

But, Tom, according to Phil Goff, health and safety was the main reason the intended speakers were barred from using Council facilities. But if one man and a dog had turned up to hear them speak, which is what you may be suggesting, then that argument cannot possibly be correct. I also understand that organisers had imposed specific entry requirements which made it unlikely that there would be any issue with health and safety. If you're going to bar someone from speaking, you should at least have the decency to tell them the truth about why you're doing so.

by Tim Watkin on July 18, 2018
Tim Watkin

A very good piece by Liam Hehir in the Manawatu Standard on these same issues, i which he makes some of the arguments I tried to make, but more concisely.

"And the value of that [free speech] culture isn't that it protects racists and crackpots. It's that it protects the humane and decent, who will not always hold the reins of power. The re-emergence of authoritarianism in continental Europe, where free-speech rights are less embedded, may well provide a warning here.

So should we accord liberal free speech rights to those with deplorable views? Yes. But it's not to protect them from us. It's to protect us from them."


by Tim Watkin on July 18, 2018
Tim Watkin

Kat, you're right in principle. That sentence is insufficient on its own. As I wrote elsewhere, we all draw a line and there are limits to all freedoms. Quite agree.

Tom, I have a lot of sympathy for your view. It's partly what I was drawing on in my first piece on this pair. By getting into this argument we are boosting two people who would otherwise be of little note to most.  

by Tim Watkin on July 18, 2018
Tim Watkin

Ross, to be fair Goff rather quickly moved on from the health and safety argument and talked openly about his distaste for the views being expressed and the insult caused to Auckland's migrant communities, which he welcomes.   

He tweeted: ".@AklCouncil venues shouldn't be used to stir up ethnic or religious tensions. Views that divide rather than unite are repugnant and I have made my views on this very clear."

He told Q+A: "I'm not banning them. I'm just not going to aid and abet their malicious comments about part of our community by providing them with a venue".

by Lee Churchman on July 18, 2018
Lee Churchman

Hehir's argument doesn't work. He actually admits that the paradox of tolerance shows that speech can be curtailed in certain circumstances and the fact is that, when these circumstances have already become extreme, it is already too late. 

And the idea that free speech protects us doesn't hold water either. Those who wish to do us harm have historically had little trouble in shutting it down once they have achieved power. 

by Alan Johnstone on July 18, 2018
Alan Johnstone

Is there anything that controversial about Lauren Southern ?

I took an hour or so to watch some of her videos after all this came out, sure she's quite annoying but nothing I saw was particularly racist.

Freedom of speech absolutely must include the right to mock and ridicule all religions including Islam. People like Hazim Arafeh  appear to want to roll back the Age of Enlightenment. 

by Ross on July 18, 2018

the paradox of tolerance shows that speech can be curtailed in certain circumstances

Well, of course it can and I'm not aware of anyone arguing otherwise. It's illegal to defame and to threaten to kill so free speech has its limits. But the threshhold to restrict free speech should be very high. In this case, Phil Goff is an experienced politican who, I would've thought, was more thick-skinned.

Valerie Morse burnt a flag near the cenotaph during a dawn service on Anzac Day. That must have been offensive to old diggers who witnessed it. But no one got hurt (apart from a guy blowing a horn). Holocaust denier David Irving visited New Zealand in 1986 and 1987 (but was banned in 2004) - again, I'm not aware that there was an outbreak of public disorder.

Interestingly, Deborah Lipstadt, whom Irving sued for defamation and lost, defended Irving after he was imprisoned in Austria for Holocaust denial. She said:

“Rather than on grounds of compassion, I support Irving’s release for ideological and strategic reasons. Laws against Holocaust denial contravene the notion of free speech. Although I am not a free-speech absolutist, I have never been comfortable with censorship. The recent debate about the publication of the Danish cartoons depicting Muhammad has given added meaning to that stance. If one outlaws Holocaust denial, one can outlaw such cartoons. If one outlaws such cartoons, one can outlaw what Shiites say about Sunnis… Simply put: there is no end to the matter.”

The above link has a good discussion of free speech in the context of Irving's Holocaust denial and pro-Nazi views.

by Lee Churchman on July 19, 2018
Lee Churchman

But the threshhold to restrict free speech should be very high.

It generally is. The so-called paradox of tolerance (which isn't really a paradox) would allow it only for people who advocate undermining the liberal settlement. The underlying philosophical point is that there is no coherent ethic that tolerates everything—it's blindingly obvious to anyone with any experience in applied ethics. 

It follows that a liberal society is justified in curtailing threats to its core principles, but only when these threats are urgent. Normally, far right idiots are just a minor nuisance and can be tolerated, but sometimes they are a threat. The problem—as Robert Paxton has shown—is that the point of no return is reached quite early. Given the way things are going in the world, that time is coming soon, if it hasn't passed already. 

Germany bans Nazism. We should too. The 'who are we to say it's wrong' argument is about as useless in this case as it is in the case of 'who is to say that murder or rape are wrong'. The important thing is that nothing of value is really lost by doing so. We allow a very high degree of disagreement in our society, but even that has limits. 

There's also another interesting argument based on the way rationality works in society. I will leave that one for now, but the basic point is that public rationality is an achievement rather than an endowment—we can rightly act against those who seek to undermine it. This is the point that Mill and others like him get wrong, I think. Just as universities have means to deal with raging bullshitters, so should we.

Lastly, this whole dispute reeks of old people talking. Young people just don't think this way any more. Most of them are implicit value pluralists (I know this, because I taught them for years). They accept that freedom of expression is important, but it doesn't trump all other values.  They tend to like a pluralist liberalism rather than one grounded in strict rights. They're probably right about this as well.  

by Flat Eric on July 20, 2018
Flat Eric

@ Lee

Too bad for you that that the New Zealand Bill of Rights guarantees me not just the freedom to express myself but also "the freedom to seek [and] receive... information and opinions of any kind in any form."

You don't get to decide what I want to hear.

by Charlie on July 20, 2018

I'm with Alan Johnstone on this one: Neither of these two seem to offer extreme views. Certainly not fascists by any stretch of the imagination.

Since we live in a truly multicultural society the local Muslim community had better get used to a bit of verbal jostling if they wish to integrate into society. If they don't want to fit in and wish instead to create a mini caliphate/ghetto like they have in some parts of Europe, then I can give them directions to the airport.

Anyway, who voted Hazim Arafeh to represent all Muslims in NZ? From what I've been told by Muslim colleagues, the local community is represented by many shades and types of Islam. I doubt he speaks for the majority. 

by Tim Watkin on July 20, 2018
Tim Watkin

Lee, you keep applying extremes to the other side of the argument - as if Liam is arguing there are no circumstances in which you can limit freedom of expression or that someone is saying freedom of expression 'trumps all other values'. But I specifically wrote that this debate is all about where you draw the line and Ross has picked you up on this as well.

But the idea that freedom of speech doesn't protect us because some tyrants have been able to shut it down once in power seems a very odd one to me. Surely the fact that tyranny and a lack of freedom of speech go hand-in-hand and the fact dictators often shut down free expressions damn quick rather undermine your point. And how many tyrants as freedom of speech kept at bay? 

Futher, turn things around and ask how tyrants and repressive regimes have been over-thrown and look at how important free expression have been in that. Criticism, information about alternatives, people gathering and talking, protests and shouting, stories told of things so terrible that the world feels compelled to act, songs and art... these have all played large parts when those who wish to do harm have been overthrown. So while your philosophy chops are obviously much greater than mine, I don't buy that comment for a second. Of course free speech protects and redeems.

by Charlie on July 21, 2018

"Either way, doesn't the Council have discretion to reflect its values? "

I think you're wrong on this one point. It's a public facility, paid for by the ratepayers. The council's job is just to maintain and operate the thing.

The council shouldn't be in the business of picking & chosing who uses it and who doesn't, based on some vague 'values' statement, just because that is so open to political bias and corruption.


by Lee Churchman on July 21, 2018
Lee Churchman


Thanks for the reply.

as if Liam is arguing there are no circumstances in which you can limit freedom of expression or that someone is saying freedom of expression 'trumps all other values'.

I didn't want to quote from his article at length, due to wall of text issues. He argues that suppression is a last resort and does not require early interventions. If we're to believe Robert Paxton—probably the leading scholar on the topic— on how fascism comes about, then 'last resorts' are far too late (you can look up his 'five stages' if you like). By the time you get around to trying to stop it, the process will be well along. And this argument holds notwithstanding other reasons for limiting expression (of which there are many—I'm just responding to the extreme type of liberalism on show in his article). 

But the idea that freedom of speech doesn't protect us because some tyrants have been able to shut it down once in power seems a very odd one to me.

That's not my argument. Hehir argues that any censorship rules we impose may then be used against us when authoritarians are in charge. That's true, but it doesn't follow that authoritarians will respect existing  laws once they attain power. As you point out, they tend not to. Thus, the idea that free speech protects us against them in this sense seems to me to be wanting. 

In a more general sense you could say that freedom of expression protects against authoritarianism. Equally, it can be used to enable it, as past successes of authoritarian propaganda have shown. 

Futher, turn things around and ask how tyrants and repressive regimes have been over-thrown and look at how important free expression have been in that.

I'm a bit puzzled. I agree that people being able to express ideas has played a major role in overthrowing authoritarian regimes. On the other hand, the people doing it were often breaking the law when they criticised the government (and they were morally right to break those laws). So the lack of legal protection for free speech obviously didn't get in their way. 

In general, I think society loses nothing by banning Nazis and some people in the community gain quite a lot. As I said, Germany seems to have managed. As for the argument that this opens us up to banning other forms of speech, I don't see how that follows. After all, we make certain acts crimes, but it has not resulted in the government routinely criminalising innocent acts for political reasons. Moreover, people are often actually harmed by Nazis exercising freedom of expression.

Just to add: it's worth noting a common defence of free speech equates it with academic freedom. Just as academic freedom allows people in universities to reach the right answers in the long run, so will generalised freedom of expression in society. Except that academic freedom is wildly different from generalised freedom of expression—it's quite heavily regulated, both by institutions and the community. For example, if you start giving lectures about the worlwide Jewish conspiracy, you will generally end up in trouble (offhand, I can think of just one guy who is an exception). Academic freedom is restricted in ways that promote rational discussion and consideration of evidence. Ordinary discourse isn't. Thus, I think that defences of free speech in general should be based on alternative considerations. 

by Charlie on July 21, 2018

Overall I think sunlight is the best disinfectant: Suppressing views in the end achieves nothing. Far better to expose them to public debate, critique and ridicule if appropriate.

A society is vulnerable to extremist politics when it's not practiced in the art of debate and therefore vulnerable to simplistic catch phrases that lad to dark ideas. Just how weak is NZ in this regard!


by Ross on July 22, 2018

In general, I think society loses nothing by banning Nazis and some people in the community gain quite a lot.

Maybe, maybe not. First, it depends how you define a Nazi and what exactly you want banned. Is a Nazi-sympathiser to be banned? Is a novel to be banned because a central character is a Nazi sympathiser? What about a painting that features a swastika? 

Various neo-Nazis are currently wanted in Germany. The problem is they have been driven underground and are proving difficult to locate. That's the downside of banning people.



by Lee Churchman on July 23, 2018
Lee Churchman

The problem is they have been driven underground and are proving difficult to locate

If they are so hard to identify, then why are they on the run?

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