Yesterday, the Free Speech Union was leaked 3 major documents that put our team in a cold sweat. After some thought, we have decided to share the details with you, even though this is breaking an embargo. You deserve to know the major steps that are being taken to limit your speech.   

This afternoon, at 2pm, the Department of Internal Affairs will release a consultation document on proposed changes to our censorship regime. This is a review of New Zealand's regulatory system for media and online platforms and is the culmination of two years work on the 'Content Regulation Review'. It proposes a major shift in how media and online platforms allow you to express yourself openly.

In essence, this is what you need to know:

- The Department of Internal Affairs is going to release a consultation document which proposes to have a law drafted which would establish a new 'Regulator' for online content; 

- This Regulator would have broad powers, far more significant than any that exist at the moment over the content you put up on social media or other platforms. (Even the Free Speech Union's updates and emails would be subject to the Regulator's reach, as our 'platform' is larger than 25,000 users- we don't think they should have a say on what our defence of free speech looks like).

- Codes would be drafted, which would outline what content, material and speech are allowed. But Parliament won't draft the Codes. In fact, there is no representative accountability over what is included in the Codes at all.

- The draft law would just establish the Regulator, with the broad responsibilities of the Codes. Away from Parliament, the Select Committee process, and from your right to engage with politicians or vote out those you disagree with, industry, NGOs, and academics will write the codes which dictates what you're allowed to say online.

- They advise that the penalty for platforms that do not comply with takedown notices should be increased to 'reflect the seriousness of non-compliance'. Currently, it's $200,000 for each incident of non-compliance.   

- This is all part of the attempts by the Government to control information and the narrative. In their definitions of safety and harm, the DIA claim that 'Content can cause harm to wider society. This might look like individuals or communities losing trust in, or access to, key public institutions such as the legal, health and education systems, [and] freedoms of identity...'

- We have till July 31 to submit on this consultation. They expect legislation to be introduced to Parliament next year.  

The lack of accountability for those drafting the Codes are astonishing. Not only are the Codes (which is the part that will actually be used to silence your voice online) not drafted in Parliament, where the public can have input, the discussion document specifically says that if it doesn't include the things that the Regulator wants, they can draft the Codes as they wish to 'make [it] acceptable.' This is effectively saying "You'll be free to develop your own codes, but not so free that we won't step in if you decide not to censor yourselves."

The discussion document notes that the Codes of practice will outline the 'processes for platforms to remove content and reduce the distribution of unsafe content'. 'Unsafe content'. What's that? It's content that is 'harmful'. Does that make it clearer? The use of words like 'unsafe' and 'harm' give us a very clear indication of how these Codes are going to be used. As you know, to simply disagree with someone now, or how they identify, is often considered 'harmful'. 

This law would put hate speech laws back on the table 

This isn't even a theory. Look at number 87 below, the discussion document specifically says that the work the Law Commission is currently doing would fit into this legislation later on. This Law, and more importantly the Regulator and Codes, could be used to exclude entire perspectives and worldviews from discourse online.  

Last year, when we coordinated opposition to the Aotearoa New Zealand Code of Practice for Online Safety and Harms, we insisted that this 'voluntary code' was just the thin edge of the wedge. We were concerned that some speech would be prohibited online but legal in person. Now, many of the same principles as those found in that voluntary code will carry the weight of law. We are preparing a campaign to push back against this overreach, but we can't do it alone. Would you help?

Let me be clear. We have never opposed the Chief Censor's role of removing patently objectionable content like terrorist activity. We're not talking about the extreme material that is already illegal and is already regulated by the Chief Censor's Office. We're talking about the expression of your beliefs, opinions, and experiences that other's dislike or disagree with. 

New Zealand already has significant laws in this area, such as the Harmful Digital Communications Act (which already goes too far). While there are problems with the way minors interact online, or the material they consume, is regulation really the answer? 

The discussion document tells us that these changes are in step with the EU's Digital Safety Act, Australia's Online Safety Act, and the UK's draft Online Safety Bill. Why does that not fill us with confidence? Our counter-part in the UK has been fighting for two years to oppose the 'Online Safety Bill', because the exact same pitfalls apply- this isn't about 'safety' and reducing 'harm', it's about silencing those that dare express unconventional or controversial views.   

There is an awful lot happening in the fight for free speech at the moment- the Free Speech Union has more than we can deal with on our plate. But when our team saw the proposals, we knew we couldn't just sit by. Yet again, this is another major attempt at silencing Kiwis. We've seen them off before, and I'm sure we can do it again. 

The implications for the ability for the public to debate major questions will be seriously undermined by a Regulator empowered to silence voices online. This is not the free and open internet so many have imagined, that has led to greater democracy. This is not the Kiwi way, to simply suppress views we dislike.   

Jonathan and the team are already preparing briefing materials and have started on our submission to this consultation. We'll provide you with the resources and tools you need to push back against this censorial overreach next week. If this becomes law, even just the supposedly benign role of an online speech 'regulator', we lose the ability to submit on the 'Codes', and we lose our online speech rights. 

Please don't let that happen. Help us push back. We've got the team in place, but with all the battles we're facing we need the resources. DIA won't be pleased we've bet them to the punch and got out of the gates ahead of them, but when we're up against those undermining basic liberties, we don't have to play by their rules. 

Together, we'll push our would-be-censors back once more. 

Dr. Roderick Mulgan Council Chair Free Speech Union www.fsu.nz

P.S. The DIA's "Review of New Zealand's regulatory system for media and online platforms" is cover for more Government control of Kiwis' speech. This is going to be a big fight, but we're up for it if you are. 

Report on the State of Academic Freedom in New Zealand Universities

The Free Speech Union's report, conducted in partnership with Curia Research, on academic freedom in New Zealand's tertiary education sector represents the second year of robustly conducted quantitative research in New Zealand.

This work scrutinises the freedom that academics perceive within their institutions, evaluating the liberty to advance knowledge, contribute to public discourse, and voice controversial opinions, as delineated by the Education Act 1989 and the Education and Training Act 2020. 

Understanding whether academics are free to pursue such a course, in accordance with the freedom enshrined into law is not frivolous or academic pontificating.

It is important because free and open debate around issues we do not agree on is how societies move constructively forward. Indeed, this is the process of science. 

This research is important because we want to know the extent to which those charged with being the critic and conscience of society and fulfilling that important responsibility feel free to do so.

It is important because free and open debate in this manner is what helps us come together. Stifling debate, necessarily aimed at preventing us coming together, has the paradoxical failure of setting us apart, creating echo chambers, virtue signalling, bullying and a cancel culture. None of us should agree, whatever our opinions, that these are good things.

The study uncovered worrying insights; many academics find themselves inhibited and their capacity for open debate stifled, an ominous development given the universities' role as a 'critic and conscience' of society.

The findings indicate that while most academics feel somewhat free in selecting their research topics, only a slim majority feel comfortable raising differing perspectives with colleagues. More worryingly, less than half feel free to express controversial or unpopular views. Male, of European descent, with centrist and right leaning views were the least likely to feel freedom to speak.

The onus is on us as a society, and more specifically on tertiary education institutions, the Tertiary Education Commission, the Minister of Tertiary Education, and the Vice-Chancellors, to protect academic freedom and foster a climate of intellectual fearlessness.

In addition, the responsibility lies with us as academics to exercise this responsibility with care but freedom. The privilege of being able to contribute to society is something academics need to embrace and get on with robustly.

Yes, the response rate and sample size are limited in this work, but given the magnitude of the effects reported here, even a more conservative estimate would indicate a large issue which we need to confront. 

I hope this report and the work of the Free Speech Union can catalyse a crucial conversation about academic freedom in New Zealand, illuminating the urgency of addressing this issue. 

Professor Grant Schofield

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.

Looking for more information on our Last Words documentary, and the screenings which are taking place around the country? Follow this link here! https://www.fsu.nz/lastwordstour

Waitangi Day marks the signing of the Treaty of Waitangi. Regrettably, this is not always a day of coming together. 

Controversy will likely churn forever around which is the correct interpretation of the Treaty, but that is for another thought-piece, and one not written by yours truly. 

I do want to talk about partnership, however, and why supporting free speech requires us to partner even with those we vehemently disagree with, in order to preserve this right, but also demands that we radically listen to each other, if we want a way out of today’s polarised political landscape.   

My start in TV production was with a company that had multiple contracts with the newly minted Māori Television. 

I, a non-Māori, was hired to oversee a rugby league show (likely because I hail from legendary rugby league town, Otahuhu), and my position quickly extended into writing, directing, and producing on a range of different shows. 

As an Otahuhu boy I was no stranger to multiculturalism. While I knew very little of the rural Māori experience it seemed like every second home in Otahuhu was either Māori or of a mixed whanau. 

But I certainly knew nothing about Māori politics, even into my early twenties. 

Looking back, if I saw Maori activists on TV, my general thoughts would have been “We live in an awesome place? What’s the beef? Chill out, man?” 

So, while not overtly anti their activism, I just could not see the problem. I vaguely knew of historic injustice, but my own family, on both sides, had been victims of terrible injustices back in Europe. 

That was then, this is now. 

But working at this production company changed that, and I can pinpoint my awakening down to the day. A pair of DV tapes were tossed onto my desk and I was told to find a catchy grab of then Māori party co-leader Tariana Turia to use at the start of a new show. Something zappy. Provocative, even. But no longer than 10 or 20 seconds please! 

And so, for two whole hours I sat and watched a head and shoulders interview of Tariana Turia. 

A few things happened over those two hours. First, I started to really like her. And then, with my heart open, so to speak, I started to truly hear her, and while I cannot pretend I agreed with everything she said, I started to understand why she did.

This long form interview gave me context, and with my ear more attuned, I thereafter continued to absorb multiple Māori positions and developed a far more sympathetic and engaged view. 

I am saddened by those online who frame the government’s minimal use of te reo Maori as an existential threat to their own identities - a “takeover” as some put it. We can debate how and why proficiency in spoken Maori language dramatically diminished, but no answer will diminish the tragedy of a dying language. 

Equally maddening are those who dismiss any critics of contemporary Left identarianism as sexist, racist or transphobic. To quote the late, great Christopher Hitchens, from his 2004 Atlantic essay on Edmund Burke (Reactionary Prophet) … 

“It is a frequent vice of radical polemic to assert, and even to believe, that once you have found the lowest motive for an antagonist, you have identified the correct one.”

Ultimately, the culture wars will prove futile because we live in a multicultural democracy. 

We only really have the choice of partnership – and by that, I mean a recognition that every one of us is a dissenting voice at some level, and yet we must all believe compromise to be possible, even in the face of seemingly impossible social questions.  

This takes radical listening, a privilege free speech gives us, that demands we silence the censor in all of our hearts – that pernicious voice within us that is addicted to conflict, and that will fight tooth and nail to prevent our minds from being changed. 

Happy Waitangi Day. 

The spectre of terrorism is present throughout the West (and far beyond), but due to our recent past in New Zealand, this threat plays on our mind in unique ways. 

On March 15, 2019, 51 Muslim worshippers were killed by a lone-Australian terrorist, inspired in part by the actions of Norwegian, Anders Behring Breivik. More explicitly though, as Foreign Policy notes, it was French ideas (including those from Renaud Camus) which inspired Brenton Tarrant to take this extreme action.

This was not the only French connection to these tragic events on the other side of the globe. Exactly two months after the Christchurch Attack, New Zealand Prime Minister, Jacinda Ardern, and French President, Emmanuel Macron, met in Paris to found the Christchurch Call to Action. This initiative has since gathered together a community of over 120 governments, online service providers, and civil society organisations, working to eliminate terrorist and violent extremist content online. 

While it is entirely consistent with the role of the state to protect their citizens from attacks both foreign and domestic, we often pay for safety in the currency of freedom. It is crucial that civil society operates as a watchdog for government overreach that undermines crucial civil liberties, especially the freedom of speech, which founds so many other basic freedoms. 

As the Chief Executive of the Free Speech Union New Zealand, an organisation with sister-groups across the anglosphere, I am deeply invested in the idea that the right to free expression and speech makes our communities safer, not more dangerous. Yet, in line with that, I must spend a lot of my time explaining that direct incitement to violence, and violent extremist material online which promotes or directly calls for terrorism, is not protected by freedom of expression and falls ‘beyond the pale.’

This is because violence is the antithesis of speech.

However, noting that direct incitement to violence is not protected by freedom of expression admittedly introduces an element of subjectivity in distinguishing between direct incitement and more general expression of opinion. 

This distinction, and the difficulty in assessing it, is illustrated in a recent document released by the security agency responsible for counter-terrorism in New Zealand. In October 2022, the New Zealand Security Intelligence Service (NZSIS) released ‘Know the Signs: a guide to identify signs of violent extremism.’ This guide outlined key features that could indicate an individual's intent to commit a violent attack, such as withdrawing from community, possessing instructions for how to make weapons, discussing willingness to die for their beliefs, and others.  

Many were concerned about this guide, claiming it simply relegated all those with opinions that differed with the mainstream, or ‘developing a hostile “us vs them” world view’, into extremists and possible terrorists. There is particular sensitivity to this in New Zealand, as an especially censorious government continues to divide the nation and denigrate those with opinions that differ from theirs. Initiatives such as the Christchurch Call, according to some, threaten to further enable state censorship, and punish any who express dissenting or provocative ideas- all in the name of counter-extremism and safety. Given that there is currently legislation before Parliament that would allow the state to charge someone as a terrorist if they possess ‘objectionable material’, even though it has nothing to do with terrorism or the promotion of terrorism at all, illustrates why some are concerned. 

A key distinction between the NZSIS guide, and other material that undermines the right for others to freely express themselves, is the fact that it explicitly relates only to the threat of violence. The guide 'talks specifically about violent extremism rather than non-violent forms of extremism.’ This is an important caveat. 

But what about those that claim ‘words are violence’? Seemingly daily, we see academics dismissed from university posts for ‘wrong-think’, and activists and government bureaucrats patholgising the role of speech in dividing our societies. Should words be treated as violence if they are ‘harmful’. In reality, words are the opposite of violence, and we must never stop asserting that. 

That is what we claimed following another terrorist attack in New Zealand in 2021 by an Islamic extremist. We wrote: 

‘Violence in the name of ideology is the polar opposite of free speech. It is the ultimate attempt to silence those who do not share your worldview. Differences of political and religious opinion must be navigated with reason and dialogue. Never through violence. Never through fear.

Those who refuse to resolve ideological differences with words are the ones who turn to violence. Those who refuse to respectfully engage in civil dialogue with those they disagree with are the ones who become hateful extremists in the first place.

Freedom of speech — the fundamental human right to peacefully express one’s opinion — is an inherently non-violent principle. This is why we seek to protect it.’ 

As Jonathan Haidt and Greg Lukianoff note, this claim will make our societies ‘more anxious and more willing to justify physical harm.’ Lukianoff went on to claim, ‘Redefining the expression of opinion as violence is a formula for a chain reaction of endless violence, repression, and regression.’

It was Sigmund Freud who claimed ‘The first human being who hurled an insult instead of a stone was the founder of civilisation.’ A culture of free speech that resolutely asserts the right for all to openly express their beliefs is crucial if our countries are to be safe from those who would use violence and terrorism to advance their cause rather than reason, dialogue, and debate. While censorship may appear to be a simple solution to remove the ideas we most despise, in reality, it is a short-term fix with a high price. It forces potentially dangerous viewpoints underground where they fester and remain unchallenged. 

Counter-intuitively, free speech is the greatest preventative to extreme ideologies that advocate violence because it places these perspectives in the open where they can be challenged and,  through debate and reason, revealed to be faulty. Our governments and security services must keep this in mind. 

Those of us on the council at the Free Speech Union spend a lot of time disagreeing. We don’t all vote for the same parties nor believe in the same gods (or any at all). We don’t agree with everyone whose speech we have defended and we robustly debate the merits of the cases we get involved with.

So it was unsurprising that this week we found ourselves disagreeing on what our role is in regards to the media in New Zealand. Some of my fellow council members frame our role more tightly around the law. That is, our focus should be on that which the state controls, for example hate speech laws and the criminalisation of expression.

My perspective is that our role must take a wider scope to be effective in promoting a tolerant and open New Zealand in which speech is free. The elite institutions which exist in the political eco-system, but aren’t directly run by the state, should receive the same scrutiny for how they create the conditions of suppression. This includes academia and the media.

Last week Stuff ran a story about a school counsellor from Bethleham College who they claimed was “accused of transphobia”. The article no longer appears to be online. The central focus of the article were comments the counsellor had posted on her personal Facebook account, raising concerns about children being given puberty blockers.

Now, I considered the counsellor’s comments to be reasonable, compassionate, and measured, but even if I hadn’t the conduct of Stuff and the journalist who wrote the piece warrants some reflection. When is it appropriate for media to ‘name and shame’ private citizens for what they write on their personal Facebook pages?

In the first instance, the privacy of the individual must be weighed against the question of whether such an article is in the public’s interest. Given that the counsellor, in this case, is currently on maternity leave it seems to me that the contents of her social media accounts are even less newsworthy than they would have already been otherwise.

The completely uneven power and influence dynamic between Stuff and the young woman named in the article present an example of how private organisations and companies attempt to control public narratives and suppress speech they don’t like.

In my view, the article wasn’t written to inform, it was written to punish. The journalist was operating as an activist with a particular world view and her message was clear ‘if you express this view, you could be named and shamed with your face published in Stuff’. This is what we call the chilling effect, where explicit suppression laws are not required because those with significant social power or influence make examples of dissenters, frightening everyone else into silence.

But am I impinging on the free speech of Stuff and this particular journalist by calling out what I consider to be unethical journalism? No. 

We can all criticise whatever speech we like and to say we think something is bad or even immoral is not to say ‘chuck them in prison’. If the journalist had commented in her own personal capacity on the school counsellor’s post they would have been engaged in a pretty even exchange of ideas.

By wielding the power of one of the largest media conglomerates in the country, personal criticism became weaponised in a way that victimised a private citizen and warned others who share her view to stay quiet. Additionally, the state funding that Stuff has received creates an extra dynamic where they can be seen as an extension of the state.

For New Zealanders to be truly free to speak and contest ideas, a lot more needs to happen than just preventing speech suppression laws. The most powerful among us must know that we do not tolerate bullying tactics like those used in the article about the school counsellor. We must promote a culture of free speech and tolerance that flourishes in our communities, corporations, schools, and homes.  

The Free Speech Union, in my view, should be just as willing to call out the corporate bullies as we do state overreach. We should be driving social change towards a culture of tolerance of difference. We continue to debate this as a union and whatever position we come to will be more robust and considered because we were willing to hear different perspectives.