VUW academics Michael Johnston and James Kierstead write:
If the ability to say things that may offend is legally hindered, then the contest of ideas necessary to keep a democracy healthy is hindered as well, write Dr Michael Johnston and Dr James Kierstead …
A society that leaves it to politicians, the courts or – worse still – the police to determine which ideas may be expressed and which may not is no true democracy, whether or not it holds elections. If the ability to say things that may offend is legally hindered, then the contest of ideas necessary to keep a democracy healthy is hindered as well. Many good ideas may never be expressed, and many bad ones may go unrebutted.
Supporters of the Government’s intended ‘hate speech’ legislation might argue it is only the ill-intentioned – those who would deliberately offend, hurt or stir up hatred against vulnerable minorities – who need fear these laws. But if we hand to those in power the ability to control public discourse, they will inevitably use it to advance their own agendas. They might even do this with a clear conscience, having convinced themselves they are merely protecting the vulnerable.
There are many contestable and topical questions that affect vulnerable groups, such as whether trans women ought to be incarcerated in women’s prisons and whether separate political representation for Māori is compatible with universalist democratic principles. Three years ago, Massey University’s Vice-Chancellor Professor Jan Thomas justified banning Don Brash from speaking there on the grounds that his expressed views on the latter issue came “dangerously close to hate speech”.
Statements like Thomas’s make it clear why the Government’s proposed legislation might stifle public debate. Had this legislation been law at the time at which Brash expressed his views, would he – the leader of the National Party until 2006 – have been liable to jail time?
This is indeed the huge danger. These laws will be used to intimidate and prevent debate on controversial political issues. If hundreds of people flood the Police with complaints that someone’s view on an issue is promoting hatred, then of course the Police will investigate. And even if not charged or convicted, that will be enough to have a chilling effect.