The hate speech law, a threat to democracy
If the ability to say things that may offend is hindered by law, then the competition of ideas necessary to maintain a healthy democracy is also hindered, write Dr Michael Johnston and Dr James Kierstead
Democracy is easy to take for granted. Arguably the last time he faced a real existential threat was during World War II, and those still alive who remember those dark times are now 80s and 90s. Since the fall of the Berlin Wall over 30 years ago, democracy in various forms has been the dominant political order in the world.
Of course, authoritarian systems of government still exist. Recent events in China have shown that increasing prosperity does not always translate into a more open society, and Vladimir Putin’s long domination of Russian politics appears to have strangled the nascent democracy that began to emerge there after the fall of The soviet union.
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A generation has come of age since the end of the Cold War. As the horrors of fascist and communist totalitarianism begin to recede from living memory, we may risk underestimating the benefits of democracy and overestimating its sustainability. In these times of political appeasement, it has become too easy to focus on the flaws and broken promises of democracy and forget all that it has done for us. It is this complacency – far more than a rising China or a resurgent Russia – that now poses the greatest threat to the freedoms we have enjoyed in Aotearoa, New Zealand for over a century.
One way we tend to take democracy for granted is to assume that it is defined by the institution of voting. It is true that choosing political representatives by ballot is a viable way to implement democratic government, but if a democracy is to thrive, its core values ââmust be understood and honored by its citizens. There are many countries in which a semblance of voting occurs, but which are not truly democratic (Russia is one example).
So what are the values ââthat make democracy possible? One could think first of political equality. Before Western Enlightenment, the idea that everyone should have equal rights – if it were formulated at all – would have seemed absurd. In feudal societies, tribal societies, and even in ancient Greek democracies – which took slavery and the political deprivation of women for granted – equality, though much touted, applied only to male citizens, not to women, foreigners or slaves.
At the very least, this government failed to exercise due diligence on the implications of the proposed new laws for our democracy.
In today’s democracies, most of which came of age in the 20e century, equality remains a work in progress. Even countries that grant the right to vote to all adult citizens do not necessarily give them equal treatment under the law, and even when equal rights are protected by law, it is very difficult to ensure that they are respected in everyday life. Despite legal guarantees of equal rights, sexism, racism and homophobia still exist. To paraphrase Martin Luther King Jr., while laws can âhold back the heartlessâ, they do not âchange the heartâ.
All this to say that the principle that we should treat each other as equals is not a default setting in human societies, but a hard-won and imperfectly realized historical exception. It is only as each generation strives to instill a cultural commitment to this principle in the next generation that we will continue to move forward towards realizing the democratic promise of freedom and equality for all.
There is another value even more fundamental to democracy than equality, and perhaps even more difficult to maintain. It is the free expression of ideas, or âfreedom of expressionâ. It is, we believe, the foundation of democracy. In a democracy, ideas and policies must always be contestable – and genuinely contested – so that we can blur our collective path to improvement. The competition of ideas that democracies allow is undoubtedly the reason why they have been so successful in raising the standard of living and, although gradually, freedom and equality as well.
Nevertheless, because we still fail to realize the democratic ideal of equality, it is not surprising that some regard freedom of speech as the privilege of the powerful to say what they want, often to the detriment of the powerful. less powerful. But, while understandable, this characterization is superficial and fundamentally incorrect. If we were to abrogate free speech, we would undermine democracy and make full equality even more difficult to achieve. As Holocaust survivor Aryeh Neier said, âThose who call for censorship on behalf of the oppressed should recognize that it is never the oppressed who determine the limits of censorship. “
The historical record, from suffragists to the civil rights movement to gay liberation, makes it clear: freedom of speech has been a vital part – perhaps the vital – tool in the struggle of marginalized peoples to defend their rights. Being able to speak out without being fined or imprisoned should also be considered a fundamental right of all citizens and is recognized as such in the Universal Declaration of Human Rights.
Unfortunately, our current government and our current Prime Minister seem to have succumbed to the temptation to limit free speech in the name of our security. Jacinda Ardern is undoubtedly well-meaning in her intention to pass laws that will criminalize âhate speechâ. Perhaps she sincerely believes that such laws could have prevented the Christchurch atrocity. But she takes the very system that brought her to power for granted if she believes such laws will not have unintended consequences.
A society that leaves it to politicians, the courts or – worse yet – the police to determine which ideas can be expressed and which cannot is not a true democracy, whether or not it holds an election. If the ability to say things that can offend is legally hindered, then the competition of ideas necessary to maintain a healthy democracy is also hindered. Many good ideas may never be expressed, and many bad ideas may not be refuted.
Supporters of the government’s planned âhate speechâ legislation might argue that only the bad guys – those who would offend, hurt or deliberately stir up hatred against vulnerable minorities – who should fear these laws. But if we give those in power the ability to control public discourse, they will inevitably use it to advance their own agendas. They might even do so with a clear conscience, having convinced themselves that they are only protecting the vulnerable.
There are many contentious and topical questions that affect vulnerable groups, such as whether trans women should be incarcerated in women’s prisons and whether separate political representation for Maori is compatible with universal democratic principles. Three years ago, Massey University Vice-Chancellor Professor Jan Thomas justified banning Don Brash from speaking on the grounds that his views on the latter issue were “dangerously close to a hate speech â.
Statements like Thomas’ make it clear why the government’s proposed legislation could stifle public debate. If this legislation had been law when Brash was speaking, would he – the leader of the National Party until 2006 – face jail time? We can ask similar questions about other debates; In reality, Newshub Journalist Tova O’Brien recently asked Minister of Justice Kris Faafoi a series of questions along these lines. For example, could millennials be jailed for saying rude things about baby boomers and their grip on the housing market? Faafoi couldn’t tell.
Many societies place certain limits on freedom of expression, usually to prohibit direct incitement to violence; in New Zealand, incitement to violence was criminalized by the 1961 Crimes Act. But going beyond these minimum restrictions is something any democratic government should shy away from. As O’Brien’s interview with Faafoi showed, this government has, at the very least, failed to exercise due diligence on the implications of the proposed new laws for our democracy. New Zealanders should vehemently oppose it.
Dr Michael Johnston and Dr James Kierstead are joint hosts of the Free kiwi! Podcast.