Geddis on free speech

writes at Pundit:

Does the right to extend to shouting at a woman to take off her burqa in a supermarket? If not, why not?

A good question.

For example, the Supreme Court, in a couple of cases calledBrooker v Police and Morse v Police (I’ve posted on them in passinghere and here), has indicated that the offences of “disorderly” and “offensive” behaviour now need to be applied in ways that are properly respectful of the rights of individuals to express their (often unpopular or inconvenient) views on social and political matters. Such expression should only be criminalised where it poses some threat to public order that exceeds the bounds of what a properly tolerant citizen who is mindful of the rights of others should have to bear.

The threshold for speech to be criminal should be very high indeed.

Now, here’s the question for us (where “us” are nice liberal folks who share in the positive values of tolerance and respect for others). Why should Ms Rappard’s particular expression of views that we find quite distasteful attract a criminal conviction and fine?

Well, it can’t be the views themselves, can it? Because if it is, can we distinguish Ms Rappard’s actions from (say) a Maori kaumatua who tells a visiting tourist to take off a t-shirt that he believes has an image that misappropriates or demeans part of tikanga Maori?

Well, maybe we could do so, on the basis that the burqa has a particular religious importance and meaning for the student above and beyond that which a tourist would feel for a mere t-shirt. However, isn’t it precisely that religious importance and significance that so upsets Ms Rappard? So the symbolic value of the burqa works both ways here – it both increases the impact of the expression on the student, but also increases the “value” of the expression to Ms Rappard. How can we privilege the right of the student to wear what she wants for religious reasons over Ms Rappard’s right to express her views on that student’s public attestation of her faith?

I agree saying take off your burqa should not in itself be something you can not say.

So if it isn’t the views in and of themselves that warrant criminal sanction, maybe it’s the way that they were expressed. No matter how strongly you feel on an issue, approaching a stranger while they are going about their daily business and personally insulting them (“dirty Muslim”) by shouting into their face just ought not to be allowed.

Let’s say that’s the problem here – by targetting the student and personally “attacking” her, Ms Rappard crossed over the line into deliberately victimising her in a bullying manner. (Looked at in this way, the current case has a lot of similarities to this other tricky line-drawing exercise from earlier in the year.)

OK – but this standard then has implications for (say) protestors at the next National Party conference. Surely anyone so incensed at National’s performance in government who walks up to a delegate and shouts at her or him “Tory scum! You should be ashamed of what you are doing to New Zealand!” has acted in an “offensive” a way as Ms Rappard did. Or, again, can we privilege certain kinds of shouted insults (into the faces of ordinary political party members seeking to attend their organisation’s meeting) over and above others (into the faces of students while they are doing their weekly shopping)?

I think you can distinguish the two. Having protesters shout abuse at you as you attend a party conference is par for the course – you are there to take part in a political conference that of course attracts diverse opinions.

However if I was wearing (for example) a National Party t-shirt at my local supermarket and someone came up to me and started abusing me and yelling in my face, I’d be very unimpressed. However I’d tell them to go copulate themselves rather than call the Police!

That’s bad, and I am sorry the student felt that way. But here’s the crux of the matter – whose fault is it that Ms Rappard’s expression had this impact? Is it Ms Rappard’s, because she has so contravened generally accepted values of civility that the hurt caused was both entirely predictable and beyond that which should be permitted? Or is it the student’s, because she is failing to display the sort of resiliance and tough-mindedness needed to live in a society with multiple, conflicting views on how the world should be? 

In other words, who should be expected to be “tolerant” here? Ms Rappard, by refraining from expressing vehemently her views on the student’s religious choices? Or the student, by just sucking up Ms Rappard’s boorish behaviour and carrying on with her life?

A good point.

So here’s the question we (where “we” are nice liberal folks who share in the positive values of tolerance and respect for others) face. Can we find some way to draw a line that allows us to get all the good things we want out of a commitment to free speech, while still saying that Ms Rappard’s particular behaviour ought to attract the sanction of the criminal law? Or, are we forced by our commitment to tolerance and respect for others to agree with Ms Rappard’s assessment of the Court’s verdict?

The guilty finding was an example of political correctness ”gone mad”, she said.

”Telling a woman to take a burqa off is in my mind not offensive,” she said.

I think Ms Rappard is a pretty despicable human being to start shouting abuse at someone just because she disapproves of her head scarf. She should be ashamed of herself. However I don’t think it should be a matter for the Police unless the behaviour crosses the line into threatening.

What would have been better would be if other people at the scene rounded on Ms Rappard and told her how awful her behaviour was.

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