Is Freedom of Speech under threat in New Zealand

TWL
Opinion

Freedom of speech is widely regarded as one of the cardinal features of a liberal democracy, and one of the most precious components of the ancient English traditions of liberty, that we here in New Zealand have inherited. Indeed, it is a matter of pride for most Kiwis that New Zealand consistently ranks among the freest nations in the world, and that our ability to think, speak and act as we like is under few restrictions, especially compared to other, less fortunate lands. Freedom of Speech is enshrined in the New Zealand Bill of Rights, we do not suffer from heavy-handed censorship mechanisms such as the 'Great Firewall of China' or blasphemy laws such as are found in the Islamic world.  There are no secret police monitoring our conversations, and criticising the government does not carry the risk of imprisonment, torture or death.  Under these circumstances, it may seem far-fetched to suggest that free speech is endangered in New Zealand.  However, despite the formal deference our constitutional system pays to this foremost of freedoms, we have no cause for complacency.  Thanks primarily to the systemic ideological domination achieved by the Cultural Marxist left in the academic sphere, the major intellectual, artistic, educational and professional institutions and organs of the nation, their control over prevailing cultural, economic and socio-political narratives, and the corrosive and subversive effect this has had on our constitutional structures, free speech is under increasing threat in New Zealand.  The political and cultural mood is right, and public ignorance and apathy sufficient, that New Zealand may (and, I predict, will) very shortly enact into law draconian speech codes similar to those that have been adopted in other Western Countries, including Canada, the United Kingdom, and most of Europe, and follow those jurisdictions down the same broad road to totalitarianism.  This essay will first define free speech, and why it is important, and secondly discuss the major threats to free speech, which I see as two-pronged, coming a) ideologically-driven and from the academic establishment and b) politically-driven and from government, both relying on the same notions and assumptions, though in the former directly, and the later indirectly.

 

 

Freedom of Speech: what is it and why does it matter?

 

The New Zealand Bill of Rights Act 1990 (henceforth BORA) succinctly defines the right to freedom of expression thus: "Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form." It further provides that the rights enumerated in the statute "may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

It is a broad concept, that embraces ideas of free and open debate, exploration, advancement and criticism of ideas and expression of varying viewpoints, particularly viewpoints that are unpopular, politically incorrect, and seen immoral or running counter to social norms.  It is a comparatively rare thing, historically, existing in attenuated forms in Ancient Greece and a few other societies, but only really coming to full development in the English Common law tradition, from which New Zealand's own legal structure is derived. It is a major component of political Liberalism, with Liberal theorists such as John Stuart Mill advocating unrestricted freedom of speech on a number of grounds, including that it is necessary for the pursuit of Truth, to prevent intellectual stagnation, to enable accountability of government, to prevent social institutions from ossifying, to bring about social reform/progress, and, most importantly, to safeguard against tyranny.

At bottom, freedom of speech is the principle that the contents of person's head are theirs alone, and, the expression of that content through their mouths, or by their pen (or keyboard) is similarly not to be interfered with.  Otherwise, if certain modes of speech are to be prohibited, the question then becomes: who decides what is and what is not permissible to say?  Whoever has this power is in the position of a despot, and it is unthinkable that, in a world where no one is perfectly impartial or incorruptible, abuse of this power will not result.  To avoid such a tyranny, the only acceptable solution is to allow all ideas to be heard, all viewpoints to be expressed, no matter how noxious or risible they may seem to be, even matters which society may think are settled ('racism' is bad, the earth is flat, etc.), since we, not possessing absolute knowledge, can never know for certain if one perspective is absolutely right or wrong.

In New Zealand at present, speech is subject to a number of restrictions, including prohibitions on defamation and libel, and, most significantly for the purposes of this discussion, a substantive restriction in the 1993 Human Rights Act, which, in what can be regarded as a prototype 'hate speech' law, penalises speech that "excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons." It is likely that future infringements on speech will build on this and similar provisions, seeking to expand the category of group identity protected to include, sex, sexual orientation, age, disability, gender identity, religion and whatever other aspects of a person will be deemed beyond criticism at that point in time.

 

 

Threats to free speech from academia

 

It is not necessary to give a laborious rehearsal of the history of how this state of affairs came about; suffice it to say that the ideological roots of the current anti-free speech doctrines go back to the 1920s, with the realisation by members of the Frankfurt School[1] in Germany that a Classical Marxist revolution by the working class was not going to occur in the developed Capitalist countries, and thus a new direction was necessary. Instead of fomenting class warfare to bring about an economic revolution, they shifted focus to the arena of culture, and the attendant battlegrounds of race, sex/gender and sexuality, aspiring to undermine and destroy Western Civilisation by waging war on numerous, seemingly unrelated, fronts.  Thus, instead of the proletariat being oppressed by the bourgeoisie, it was 'people of colour' being oppressed by 'White Supremacy', women being oppressed 'the Patriarchy', 'LGBT' and related acronyms being oppressed by 'heteronormativity', 'transgender' people being oppressed by 'cissexism' and so on, ad infinitum.  The resultant, ingenious ideological framework was known as Critical Theory or alternatively Cultural Marxism, as it was, essentially, Marxism applied to culture rather than economics.  Cultural Marxism lay relatively dormant until the 'Long March through the Institutions- the leftist infiltration and occupation of universities and other educational bodies, was complete.  It was not until the 1960s/70s that these ideas exploded out into the open, with the rise of counter-cultural protest movements, the emergence of the 'New Left' and the proliferation of subversive ideas and organisations ('Women's Rights/Liberation', 'Gay Rights/Liberation', etc.)  Post-modernism developed at the same time.  Although ultimately nested inside (Neo-)Marxism, post-modernism came at free speech from a slightly different angle.  According to Post-modern theorists such as Foucault and Derrida, there is, fundamentally, no such thing as logic or dialogue, with speech being merely the superficial justifications for the jockeying for power of various groups.  There is no such thing as rational debate, dialogue is useless, and free speech, having no inherent value, becomes nothing but a tool of power, to be used to advance one's own ideological position[2], but to be vehemently denied to one's enemies.  This largely explains the hostile attitude of the, overwhelmingly left-wing and Marxist in orientation, university establishment, and their indoctrinated students to dissident speech, and the eagerness to 'de-platform' politically incorrect speakers[3], adopt rigid speech codes and quash critical inquiry/challenge in the classroom and research sphere.

At the University of Auckland, this takes the form of large signs which are displayed prominently throughout the campus, proclaiming that the University has "zero-tolerance policy" toward discrimination, including "Racism, Sexism, Homophobia, Transphobia and Ableism".  What this is effectively saying is that certain forms of thought, deemed 'discriminatory' by the University authorities are prohibited, and the expression of these thoughts is liable to incur certain (undisclosed) penalties.  Similar "anti-discrimination", "anti-hate speech" and "anti-bullying" policies regulate speech at most New Zealand education institutions and workplaces.  Universities in other countries are much more strenuous in their action against "micro-aggressions", including speech which is not intended to be offensive, but is perceived as such. The University of Cardiff, for instance, recently warned against using the term "workmanlike" and the University of Oxford announced that "students who avoid making eye contact could be guilty of racism".  It is likely that similar standards will soon be imported to New Zealand.

The single biggest threat to free speech in New Zealand is the idea of 'hate speech'.  Hate speech is an amorphous concept, and not very well defined.  One can only assume this is intentional, as it allows the arbiters of speech to put anything that runs contrary to their narrative in this box.  From what I can tell, any form of speech that is critical of or negative toward an identity characteristic, such as race, sex, sexuality, gender identity, disability status, religion, etc., is considered 'hateful'.  In practice, however, this protection extends only to certain groups designated 'victim' or 'marginalised', and does not extend to certain other groups (notably the proverbial 'Straight White Male'), categorised as 'oppressor', toward whom criticism or 'hate speech' becomes not only tolerated, but mandatory.  As I mentioned, this is the old Marxist class conflict theory, but applied to identity group. Thus, speech hostile to or critical of non-White ethnicities is 'hate speech', whereas criticism of Whites is not.  'Hate speech' against minority classes: women (who are actually a numerical majority, but according to Feminist theory are a "power minority"), homosexual and transgender individuals is forbidden, while 'hate speech' against men, 'heterosexuals' and 'cisgendered' people is compulsory.  Speech critical of Islam or Muslims is 'Islamophobia', however this privileged status, interestingly, does not extend to any other religion, and certainly not Christianity.

This glaring double standard is defended using the proposition that minority groups need to be protected because they are marginalised, whereas the dominant majority groups are not. The response is: who decides who is oppressed?  Every person alive can plausibly claim to be 'oppressed' by some metric or another; again, the arbiter of this is in the position of a tyrant.  Indeed, society is, by definition, oppressive.  The very existence of societal norms necessitates that there will be those who are marginalised for failing to comply with these norms.  This is simply a feature of human communities.  The only alternative is to abolish society[4], but then everybody becomes marginalised! Furthermore, this argument readily exposes the fact that the purpose of the circumscription of speech is not to prevent 'hate', but to undermine the dominant culture, a goal which, outside Cultural Marxist/postmodernist circles, most people do not support.

Another way censorship is justified is by focussing on the alleged emotional/psychological harm offensive speech inflicts.  Ideas of 'thick concepts are invoked-certain words and phrases, racial slurs, for instance, are so laden with negative connotation, that they invariable inflict trauma on the person they are directed against, and must thus be forbidden.  But practically any word is a 'thick concept'.  Any word can have negative connotations to different people, and may indeed be traumatic or "triggering".  Learning to deal calmly with speech we dislike, and responding in a restrained and emotionally mature way is simply part of being an adult in an open society.  Lashing out and demanding speech that makes you uncomfortable be silenced is the reaction of an infant, and infants have no place in the public square.  Or as John Cleese puts it, "people who can’t control their emotions try to control other people's behaviour".  One cannot help but comment also on the sinister intent behind this conflation of 'hate speech' with physical violence.  People who equate words with violence do so because they want to respond to their opponents’ words with violence.  It is useful to analyse the reaction of the left to the recent violent assault on White Nationalist Richard Spencer in this light.  With the celebration by the left of "punching Nazis", the implication is clear: some beliefs (which I get to define) are so heinous that merely holding them, let alone expressing them, makes physically attacking you not only justifiable, but laudable.  And with the term 'Nazi' commonly being used to encompass anyone of a vaguely right-wing persuasion, including all of the sixty-two million Americans who voted for Donald Trump, it is not difficult to see where this is going.

Despite the leftist mantra that "Hate Speech is not Free Speech", any useful protection of free speech must, by necessity, include speech that is "hateful", offensive, provocative or incendiary. After all, harmless, inoffensive speech needs no protection. If free speech is viewed as vehicle for discovering truth and advancing social progress through dialogue, then the dissident and deviant viewpoints. Consider the fact that, 50 years ago, to publicly state "Homosexuality should be legal" would have been received with the same disapproval and censure which would today greet somebody who said, "Homosexuality should be illegal".

The Neo-Marxist counter to this argument is the claim that 'hateful' ('racist', 'sexist', 'homophobic', etc.) speech is, far from being deviant or radical, merely reinforces of the "prevailing power structures and systems of oppression in the White Supremacist Capitalist Patriarchy in which we live", and which they are dedicated to overthrowing. This is, to my mind, a specious argument. Leaving aside the sheer laughability of the idea that 'White Supremacists', 'misogynists', 'homophobes', 'Islamopobes', etc. are the mouthpiece of a system in which they are only universally condemned and marginalised, denied employment, subject to threats and acts of violence and vandalism, and increasingly state surveillance and criminal sanction, including fines and imprisonment, this again falls under the "who decides?" problem. Anybody can say that the opinions of their opponent are enabling some horrible evil, and ought therefore to be suppressed.  In the Middle Ages, this evil was Heresy; today it is Patriarchy/White Supremacy/Capitalism et. al. The point is, this argument only works if you accept the premises that a) our society is a White Supremacist Capitalist Patriarchy and b) 'hate speech' enables this system; and, as I have previously argued, speech codes based on specific ideological tenets constitute political censorship and enable a form of tyranny.

 

 

Threats to free speech from government

 

Possibly even more frightening than the aforementioned infringement on free speech in the academic sphere, is the adoption of these ideas by governments as a way to justify laws which restrict speech to a degree previously unthinkable. Overseas, this has taken variety of forms: throughout most of Western Europe, there are laws prohibiting the denial or even minimising of the Holocaust (quite why something that is obviously factual needs laws prohibiting the dispute of its historicity is unclear to me) and this has expanded to include online speech, with the EU putting pressure on social media sites like Facebook and Twitter to censor content.  This has resulted, in Germany, with people being arrested for posts criticising the recent massive waves of migration Europe has undergone. In the UK, this is embodied in laws which prohibit online "extremism", a term as meaningless and devoid of content as "radicalism" or even the Soviet-sounding offence of "glorifying terrorism".  These deliberately vague and expansive phrases effectively allow the government unlimited power to punish anyone who the deem a threat to national security, even, as recently occurred, a Scottish youtuber who taught his dog to do the Nazi salute as a joke.  Canada and Sweden, as always, lead the charge in this area, with the Swedish government compiling a 'hate list', including famous YouTube personality PewDiePie, and the Canadian legislature passing Bill C-16, a piece of legislation which, purporting to "extend human rights for transgender people", enacts one of the most monumental ruptures with English tradition of personal liberty and free expression yet seen.  The bill actually goes beyond outlawing 'hate speech' and institutes compelled speech, legally requiring Canadian citizens to use the preferred pronouns of 'transgender' persons, mandating, on pain of fine or imprisonment, that others recognise such a person's subjective definition of their personal 'gender identity', no matter how such recognition may go against others' own beliefs and convictions.

In New Zealand, figures such as Race Relations Commissioner Susan Devoy, in tandem with the Human Rights Commission, have recently been, apparently, pushing for speech codes in line with other Western nations.  The Police Commissioner recently recommended that New Zealand adopt hate crime legislation, and although this suggestion was not followed through, the fact that such high-profile state functionaries are supportive of such measures is cause for concern.  Even if new laws are not immediately enacted, it is likely that sections 61 and 131 of the Human Rights Code will be used more liberally (or illiberally) than they have been in the past to censor speech considered to incite racial hatred, again, an entirely subjective standard.

In summary, the potential for states to co-opt ideas of 'hate speech' to silence criticism of their policies is enormous, and something vehemently to be resisted, if we wish to continue living in a free society.

 

 

Other threats to free speech?

 

It is worth digressing to address potential objections that my focus exclusively on left-wing threats to free speech is wrong-headed, ignores threats to free speech from the right.  While it is true that that conservative-oriented groups (such as the Society for the Promotion of Community Standards) have historically attempted to prohibit "offensive" forms of expression, mainly graphic violence in video games, films and television, and even at present Family First is waging an anti-porn crusade, these moralistic campaigns are not an existential danger to the fundamental constitutional fabric of our society in the way leftist censorship is.

First of all, it is arguable whether pornography or other obscene content falls into the category of 'speech' at all, since its purpose is not to impart ideas but to provide sexual gratification. Few would argue that laws against child pornography or threats of violence, for instance, are a violation of freedom of speech, even though they are undoubtedly a form of censorship.  The distinction here, which most people instinctively recognise, is that this censorship is moral rather than political in nature. It is the difference between prosecuting someone for saying "Bill English is a terrible Prime Minister", which most people would consider an unacceptable infringement on speech, and prosecuting someone for saying "Bill English is a terrible Prime Minister-let's just shoot him!", which is not. Secondly, it is doubtful whether attempts to outlaw online pornography will gain much headway. Not only is their support marginal, limited largely to conservative Christians and (ironically) radical feminists, but in an internet- and porn-saturated age, the sheer practicality of such an endeavour is highly questionable.[5]

New Zealand's archaic blasphemy law falls into the same category.  Widely regarded as outdated, and likely to be repealed[6], it cannot, I think, be considered a serious threat to free speech, as even prosecuting under it requires the specific permission of the Attorney-General, and the only known prosecution, which occurred almost a century ago, returned a verdict of Not Guilty.  The current social and political climate has become significantly less favourable to laws purporting to defend some sort of White Christian identity, whereas it is becoming significantly more favourable to laws penalising the expression or advocacy of such an identity.

 

 

Conclusion

 

To conclude, I am pessimistic about the prospects of free speech in New Zealand.  Throughout the Western World, the political currents are clearly moving toward increasing restrictions on what it is acceptable to say online or in public, and it is likely that New Zealand will follow suit.  Academia, the intellectual heart of the nation, responsible for moulding the minds of the next generation of leaders, has worked very effectively to subvert it, and the state, which has already proven itself to be no champion of civil liberties (e.g. with the GCSB spy bill) can be expected to adopt censorious legislation with alacrity, under the guise of combatting 'extremism'.  The New Zealand public, doped as they are on the drug of Huxleyesque mindless consumerism, are too apathetic to do much to prevent it.  A few, mostly older, will grumble about "political correctness gone mad!", but most will accept the incremental narrowing of the parameters of what is acceptable in public discourse.  Dissatisfaction with the current system will not disappear of course; stopping somebody from saying something does not stop them from thinking it.  Free speech is the most important non-violent outlet for discontent, and if it is taken away, one shudders to think where the mounting pressure of resentment and anger will go.  After all, in the words of JFK, "Those who make peaceful revolution impossible, make violent revolution inevitable."

 

[1] Italian Communist Antonio Gramsci had a similar epiphany

[2] Think of the ‘60s Berkeley free speech protests

[3] Which apparently now includes figures such as veteran Feminist Germaine Greer

[4] Which is precisely what Foucault and the post-modernists advocate

[5] Even Chinese citizens are able to access banned sites through the use of VPNs

[6] Precisely why the present government declined to support the recent initiative to do so is mystifying

About the author

TWL