By way of introduction, I worked as a policy advisor in central and local government for nearly 20 years. So I come at this as a policy wonk who has learned a few things about how government works and how laws are made. I’ve taught in the School of Government at Victoria University, where I’m a Senior Associate of the Institute for Governance and Policy Studies. And I’m an Adjunct Senior Fellow in the Department of Political Science and International Relations at the University of Canterbury. During 2020 and 2021, I did some research on the Christchurch Call and wrote a book on Regulating free speech in a digital age: Hate, harm and the limits of censorship (Springer, 2022).
I want to highlight three points that caught my attention in the Free Speech Union’s documentary, Last Words.
First, passing laws does not solve complex social problems – and may make it worse.
When bad things happen, common reactions are: “The government should have prevented this”; and “There should be a law against it.” We saw both reactions after the terrorist attack on Christchurch mosques in March 2019.
Let me be clear, as Jacob Mchangama was in the film, that governments should and must censor and criminalise incitement of violence, in accordance with international human rights law.
NZ law already has provisions for this – in the Crimes Act, the Summary Offences Act and the Terrorism Suppression Act.
The challenge, and the current debate, is about how society should respond to abuse and nastiness that stop short of incitement to violence – to communication that is harmful but legal, “lawful but awful”.
That’s what the current debate is about. How might society and the law best respond to disagreement and conflict along a continuum that runs from criticism, satire and “hurtful” remarks through to verbal abuse and “stirring up” of hatred and hostility?
In a liberal democratic society where people want and value different things, I don’t think it should be a crime for you to hate me, or for me to hate you. The state cannot justifiably legislate affection, or demand that we like, agree with or approve of one another’s ideas, beliefs, attitudes, values, practices or ways of life.
But a liberal democratic society can justifiably require us to tolerate what we dislike and even hate in one another. And it can insist that we resolve our inevitable conflicts under the rule of law and without resorting to violence, using words instead of weapons.
In other words, I have a right to be protected from violence, but I don’t have a right to be protected from offence. Neither do I have a right to be liked.
In any case, passing laws doesn’t make hostility and hatred go away. In the film, Mike Grimshaw reminded us that when we’re dealing with “radical losers”, passing harsher laws can feed confirmation bias and drive resistance underground where it festers and grows into something bigger and worse.
Secondly, if you want the government to control speech, be careful what you wish for.
The state has a monopoly on the legitimate use of force. Those who call for hate speech laws want to leverage that coercive power to silence people and views they don’t like, and to regulate the boundaries of permissible speech and thought.
There’s a long human history of this – heresy trials, crusades, jihad and other wars of religion, inquisitions, witch trials, cultural revolutions, fatwas and now “cancel culture”. The urge to censor and suppress never ends well and causes a great deal of human misery, particularly when it leverages the coercive powers of the state.
What we can learn from history, and especially the European Wars of Religion, is that our best chance is toleration – agreeing to disagree, and learning to disagree agreeably. That’s more about culture and civility than law, and it requires more speech rather than less speech—curiosity, respect, more talking and a lot more listening.
If you would prefer a pile on, and for the state to punish people who think, write and speak wrong thoughts, history tells us to be careful what we wish for. In his book, Free speech: A global history from Socrates to social media (Basic Books, 2022), Jacob Mchangama, who we saw and heard in the film, describes what he calls the Weimar Fallacy.
During the 1920s, Germany’s Weimar Republic introduced censorship laws to suppress right-wing radical extremism from the likes of Adolf Hitler and his National Socialists. The laws were expanded in the 1930s, so by the time Hitler came to power, it was easy for the Nazis to abolish free speech completely. Laws designed against the Nazis were used by the Nazis against everyone else.
The Weimar Fallacy cautions that the power of the state and of the law may be used by “us” against “them” today, but by “them” against “us” tomorrow. So if you want the state to legislate and enforce censorship and criminalisation, be careful what you wish for, particularly if you are a member of a minority social group.
Thirdly, let’s not get sucked into moral panic about the internet and social media.
The 2019 attack on Christchurch mosques was the first time a terrorist act had been live-streamed on social media. Brenton Tarrant designed and planned it to “go viral”. And there have been copy-cat incidents since then, including in Halle, Germany, in October 2019 and in Glendale, Arizona, in May 2020.
The internet and social media platforms are used and abused for morally reprehensible purposes. But let’s not forget that the internet and social media also serve countless good purposes, including information sharing; social connecting; access to government, commercial and community services; online delivery of education and healthcare; research, and much more. Like all human enterprise, the internet and social media platforms are morally ambiguous – they can be used for both good and bad purposes.
(Imagine if the COVID-19 pandemic had happened in the era before the internet and the government had imposed a level 4-type lockdown. How much greater the damage to society and the economy might have been without digital connectivity.)
And let’s not forget that contemporary moral panic over the internet, social media, misinformation and disinformation is eerily reminiscent of moral panic over earlier technologies, like the invention of the printing press in the 15th century, and the distribution of pamphlets and books during the Protestant Reformation of the 16th century.
Besides, even more than the printed word, the internet is a “world-wide web”. Trying to regulate, control and censor it is a global game of whack-a-mole. Suppress harmful communication here and it pops up again over there.
We cannot eliminate harmful communication from the internet. That isn’t an excuse to do nothing, but there’s no simple solution. We can’t just pass a few laws and hope the problem will go away. Because it won’t, and then the temptation for governments is to keep passing ever more restrictive laws.
My own view is that cleaning up the internet requires a combination of internationally aligned government regulation and co-regulation with internet service providers; industry self-regulation; pressure from users, shareholders and advertisers; education from primary school-age up up in civics, human rights, critical thinking, digital literacy and non-violent conflict resolution; adequately funded and politically independent public broadcasting; and citizen counter-speech – and that’s a whole topic in itself!
Merely passing censorship laws never has and never will solve complex social problems. We’ve all got a role to play in recovering the art of civility. It starts with us, here and now; not with politicians in Wellington enacting badly designed laws.