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Alex Penk: To understand hate speech, we have to understand free speech

The Government is pushing ahead with new hate speech laws. It’s introduced a Bill to make it illegal to “excite hostility” against religious believers or bring them into “contempt” with “threatening, abusive or insulting” words, and the Law Commission will be asked to look at more extensive changes. Most of the debate will be about the problems with hate speech laws, like the way they can make people afraid to speak freely about important but sensitive issues. So to really understand what’s at stake we have to understand why free speech matters in the first place.

This is particularly important because we’re starting behind the eight ball. Professor Dawn Freshwater, Vice-Chancellor at Auckland University, recently wrote: “New Zealand does not have a strong tradition of public debate nor of discussing serious issues at length. We err towards pragmatism and our small society can quickly coalesce around a single viewpoint.” We saw this in the stifling consensus of the COVID era, echoed recently at a NZ Bar Association conference where lawyers who challenged government action on behalf of their clients were told off for not being sufficiently “careful” about shoring up public confidence in state action.

So here are two big reasons that free speech is always valuable, and a third that’s particularly relevant for 2023.

The first is that we are meaning-seeking beings. Free speech allows us to discover sources of truth and meaning so that we can organise our lives around them. If we don’t do this deliberately, through the free exchange of ideas and beliefs, it will happen to us by default, as when we simply absorb current ideological fashions or whatever institutions like the state and the market tell us to think.

Passively absorbing ideas also stunts our development. A fully human life involves agency, the ability to make decisions that matter, which is supported by the ability to share and receive ideas and information. Yes, this includes making mistakes and getting things wrong—and learning and growing in the process.

The second reason to value free speech is that it helps us realise when we’re wrong and make better decisions. No-one’s right about everything, so we need others to tell us where we’ve gone astray even when that might offend us or challenge our deepest beliefs. That’s why true viewpoint diversity leads to better outcomes. Unfortunately, New Zealand research reveals that too many academics are afraid to engage with sensitive topics like te Tiriti or gender or even to raise differing perspectives. Not surprisingly, many Kiwi students are afraid to discuss similar issues in their lecture theatres.

Now consider that the media, which creates and maintains an essential part of the public square, are mostly drawn from the ranks of university graduates and increasingly see their role as “educating” rather than reporting. This creates a feedback loop or, less politely, an echo chamber which pushes questions underground and questioners to the margins of society, fuelling polarisation and social distrust.

The third reason to value free speech is that it helps hold us together as a society. Next year we’ll have another general election. Some of us will get the outcome we want and some of us won’t. If we expect the losers to accept their loss gracefully or, at least, peacefully, we need to give everyone a fair shot at participating fully and making their case.

If some groups feel they have legitimate views that can’t be shared or that are met with hostility, they either won’t participate or won’t accept the outcome of the election. That’s how nations start to unravel.

Freedom has been described as “a very good horse to ride, but to ride somewhere.” In other words, freedom is not absolute; what it’s used for matters and there are limits to what we should tolerate. The New Zealand Bill of Rights Act affirms both freedom of expression and the need for reasonable limits on that right. A lot of the debate about hate speech is about where to draw those lines, for example, whether “contempt” or “insulting” words should count as hate and whether hate without any accompanying violence should be criminal.

It’s important to debate the details of the Government’s Bill and the Law Commission’s review. But we need to start by acknowledging not just that hate speech is bad, but that free speech is good.

Alex Penk writes at A Place to Stand. This piece was first published at Stuff on 4 January 2023. Alex is an independent researcher and writer, and a member of the National Party.

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