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Roderick Mulgan & Patrick Winkler: Chilling effects of outlawing hate speech

About a year ago, the Government proposed new laws to control "hate speech".

Various spokespeople, including the Prime Minister, struggled to say how their own legislation would work - before tactically retreating. The traditional position is that speech should only be illegal if it advocates someone is actually harmed. Merely being offensive is not enough. The distinction is workable in practice and vital in principle, as being "offensive" can mean many things.

However, exclamations urging a drive forward, are again being recited. Commentator Morgan Godfery, for one, recently wrote that new laws are needed because "the far-right is worryingly emboldened harassing journalists and academics at their place of work." True personal harassment would be deplorable, but the key insight is the reference to "the far-right" – a term that the linguistically-immoderate far-left has in the past felt justified in affixing to even centre-right characters.

Godfery and fellow left-wing apologists routinely seem to believe that the focus of extending criminalised speech can only be "right-wing" opinions. Clumsily partisan, these protagonists need to be careful of what they wish for. While the nature of our current Government is left and (very-left) Green, laws once enacted, have a way of taking on unexpected trajectories. And the colour of the government will one day change.

In 1940, when there was deep concern about the influence of extreme opinions, the United States passed "the Smith Act", which made it a crime to advocate the violent overthrow of the government. Subsequently, numerous socialists were jailed and deported for having Marxist affiliations. It was held that merely adhering to the doctrine – since it endorses violence - was enough to trigger the law, even for those who said they only sought a peaceful change of government.

In the 1970s, Halt All Racist Tours spearheaded opposition to rugby tours with apartheid South Africa and seriously irritated Prime Minister Robert Muldoon. Even though HART's adherents advocated violence against members of the South African population, there was no "hate speech" law to shut down mere political language that our government didn't like and HART is now part of left-wing folklore.

But fast forward to a world where upsetting the status quo is illegal. Irrespective of the present free-speech positions of right-aligned parties, would the same tolerance persist if a future government didn't like vigorous protests fundamentally opposed to its positions? A National-ACT coalition might find more-robust climate advocacy untenable, particularly if activism follows British trends toward vandalism and blocking public roads. With the precedent then set, closing down those opinions could be an easy step.

Likewise, if old-school militant trade unions reappear. There was a time, again in the 1970s, when major strikes were a part of life. The hard-left pines for that power and the current Government is throwing some succour by reviving the nationwide awards system that drove it all. Soon, we could witness picket lines and the Cook Strait ferries routinely tied up during school holidays. Or not, if legal tools for squashing union talking points lie handy.

The left should not be surprised at how little public concern might then be expressed over union suppression. Nor, next, as to the silencing of spokespeople for Extinction Rebellion, Tax Justice Aotearoa, or Auckland Action Against Poverty. One can also theorise that median voters are hardly going to demonstrate when politicians with foot-in-mouth proclivities of the Trevor Mallard flavour, find themselves in the gun. Relatively few people may focus on whether those disappearances from the establishment-left ensemble were because of repeated ineptitude, or for say, insulting "rich pricks" - that "marginalised-minority" (the economically successful) having been by then added to the legislative schedule of "vulnerable communities", to be protected from vocal attacks from the "affluence-phobic".

Smith Act prosecutions were eventually constrained by the US Supreme Court, years after government indictments had ruined many lives. That was possible because the Court could refer to a written constitution of basic rights - such as free speech - and throw draconian laws into history's dustbin.

Only the trustingly naive can believe that we are as safe.

Alas, our flaccid "unwritten constitution" provides no US-style system of checks and balances for overruling legislative intention and, if Parliament passes a bill to crush opinions, we are stuck with it.

So, the loud voices of the left might not be so secure in their longer-term liberty if our current Government gets its way.

Letting the left-wing cat out of the bag now might mean that unleashing the right-wing Kraken later is not such a big step. Once loosened, leftist champions could find that this Government's success in subjugating free speech to the criminal law came at a debilitating cost.

Roderick Mulgan and Patrick Winkler are criminal defence lawyers

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