David Harvey on freedom of expression
An excellent article by former judge David Harvey on freedom of expression. Take the time to read the whole thing, but some key extracts:
Speech should not be the subject of State interference solely because the message is unpleasant, discomforting, disfavoured or feared to be dangerous by the State. This is known as “content or viewpoint neutrality”. This approach prevents the State from regulating speech simply because the speech’s message, idea or viewpoint is unpleasant, discomforting, offensive, disfavoured or feared to be dangerous by government officials or community members. That approach – what could be called “viewpoint discriminatory” regulation – would attack individual liberty but also democratic principles. Officials could use it to suppress unpopular idea or information or manipulate public debate.
Censoring speech because it is disfavoured, no matter how deeply, violates the viewpoint neutrality principle. That principle is also violated when the State suppresses speech about public issues. This can include “hate speech” simply because its views might have a disturbing impact upon the emotions or psyches of some audience members. The State may not punish “hate speech” or speech with other messages simply because of its offensive, discomforting, disfavoured, disturbing or feared message.
Counterspeech is available to address such messages. Only when the speech crosses the threshold into the emergency test – that is when it directly, demonstrably and imminently causes certain specific, objectively ascertainable serious harms that cannot be averted by other than censorship – may the State intervene.
The threshold for state intervention should be very high.
A recent demonstration of the overreaction of the public to forms of expression, the rise of the harmful tendency approach and the belief that the State should intervene is chilling and concerning. Rather than addressing the problem with counterspeech or some such similar demonstration, citizens required the Police to investigate incidents involving the flying of flags.
In Wanaka the investigation involved a red flag with a white circle. Inside the circle was a three pointed icon. What could this have been? Some far-right white supremacist coven, perhaps. It was reported as a racist flag. But no. The flag in fact was a Klingon battle flag from the TV series Star Trek. The Police investigated nevertheless.
Yes the Police investigated a Klingon flag. That reminds me of one of my favourite Frasier episodes where Frasier asks a colleague to translate the speech at his son’s Bar Mitzvah into Yiddish, but instead he turns it into Klingon. Ironically the kids love it as the best bar mitzvah speech ever.
The second flag that was investigated was a little more confrontational. A flag was flying from a dwelling bearing the insignia of the gang Black Power along with the iconic clenched fist salute. It was what was written below the salute that caused concern. It was the “N” word but instead of ending “er” it just ended with “a”.
So concerned were the Police that they referred the flag to the Censor in an effort to have it declare objectionable. Quite properly the application was refused.
More focus on ram raids and less on flags please.
Are we becoming too precious about taking offence? Are we leaning towards a “harmful tendency” position? Is the answer to something with which we disagree to complain to the authorities or try to shut it down? That is not what freedom of expression in a democratic society is all about.
That these sentiments seem to be surfacing should be no surprise. The Government holds itself out as the sole source of truth and any disagreement is cast as misinformation or disinformation. Some elements of the media demonise contrary opinions and there seems to be a developing trend to silence or cancel opposing points of view simply because they are perceived to be disagreeable or offensive, rather than engaging with the issue.
The reason that is advanced for failing to engage with the issue is that to do so merely gives oxygen to a contrary point of view, but only by discussion and challenge can the holders of contrary views understand and perhaps even accept they are wrong.
We need to be more robust in the way that we deal with views with which we disagree. We must remember that those expressing such views have as much right to express their sentiments as we have to express ours. And we must remember that the only time speech should be censored is if there is a clear, immediate and present danger that it may cause harm. If the ideas that are the subject of speech are controversial, offensive or disfavoured the remedy lies in debate or persuasion and not the intervention of the State.
I absolutely agree.