Stuff: Sound intentions, poor explanation — Why Labour needs to regroup on hate speech reforms

Read the original article on Stuff

When John Milton penned his seminal 1644​ defence of free speech, Areopagitica​, he asked: “Who ever knew Truth put to the worse, in a free and open encounter?” Vigorous debate, though, must not lead to “tolerated Popery”. No free speech for Catholics, then!

Milton’s inconsistencies prefigure the fraught nature of free speech reform, something the Government has just experienced since the publication of its proposals last week.

Already the debate is frenzied, and basic facts are being lost. Free speech is essential, but has never been absolute, though its benefits do now extend to Catholics. (Thank God, you might say.) It is often curbed to prevent harm: hence why we can’t make or share child pornography, or defame people.

We have also lived for more than 40 years with the Human Rights Act and its predecessors, which in one sense have set the bar lower than the Government’s proposed reforms. Since 1977, it has been an offence to say anything “likely to excite hostility or ill-will against, or bring into contempt or ridicule” groups based on their “colour, race, or ethnic or national origins”. Only one prosecution has ever been taken.

The Government’s proposal is to simultaneously narrow the kinds of speech that are targeted – only those that incite “hatred” – but extend the law’s protections to other groups, including those based on gender, religion, marital status, sexuality, disability, employment status and age.

The intentions here are sound. Hate speech can lead directly to harm, as when violence is urged. But it can also create an atmosphere which is itself threatening. As the Islamic Women’s Council spokesperson Anjum Rahman said recently, “We know that hate speech can turn into hateful actions.”

Legal philosopher Jeremy Waldron likens the public sphere of democracy to the physical public sphere of streets, plazas and libraries. Every group of people has the right to go into the public sphere and know it will be safe.

Every group has the right to participate without fear, and as an equal, in our democracy, secure in the knowledge it has “the same liberties, protections, and powers that everyone else has”. Speech that stirs up hatred – white supremacist posts, for instance – can destroy that assurance, creating fear and making people feel like lesser citizens.

So the Government is right to act. But the problems are already multiplying. Critics have seized on the fact that “insulting” speech would be caught by the proposed law.

This is slightly misleading, because speech would have to be not just insulting but also intended to incite hatred. Given the ordinary meaning of the word, though, and the frequency with which people insult each other in daily life, it may need to be dropped, if only to avoid scaremongering.

There are, moreover, real dangers in an overly wide wording. Critics have argued that the new law will invite a slew of bad-faith reporting to police as people seek to have their political adversaries convicted or at least intimidated.

Again, such logic can go too far: all laws can lead to vexatious complaints. But the critics are right that, even if false claims would ultimately be rebuffed, that is not a sufficient defence. Just being investigated or talked to by the police, let alone going through a court process, can be traumatic or have a chilling effect. The law must be worded as tightly as possible to minimise such threats.

It is also worrying that ministers appear unable to say what would or would not count as hate speech. Of course the courts will ultimately decide that, but only within a range of possible interpretations, and we need to know what the Government thinks that range is.

Equally, it is questionable whether we should, as the Government proposes, seek to protect such a vast range of groups, including those based on “political opinion”, a move that could threaten open political debate. Jacinda Ardern also needs to be clear that the law targets more than just direct calls to violence.

The debate has begun poorly, not helped by multiple bad-faith attacks, and the Government must regroup. Ministers would do well to convene something like a Te Tiriti-based citizens’ assembly, in which a perfectly representative group of ordinary people could discuss the issue deeply, hear from those affected by hate speech, and make recommendations that reflect the wider public’s considered view.

Most of all, the Government needs to be clearer about its intentions. The core problem, of course, is that hatred is difficult to define, and any law risks being either so broad as to be dangerous, or so narrow as to be unusable. But we cannot avoid striking a balance: there is already one in law, and I believe we can strike one still better, preserving the essence of free speech while protecting our most vulnerable groups from real harm.