Hate Speech | Balancing expression, religion, discrimination, and harm
In 1869, John Stuart Mill considered that the question of a legislature or executive prescribing what opinions were and were not allowed to be spoken had been so “triumphantly enforced” that as a writer, he need not pay any attention to the topic:
It is not in constitutional countries, to be apprehended, that the government, whether completely responsible to the people or not, will attempt to control the expression of opinion, except when in doing so it makes itself the organ of the general intolerance of the public.
Mill would be disappointed to know that many constitutional and other western countries are debating the limits of expression with renewed enthusiasm and many writers are indeed paying close attention to the topic.
New Zealand is such a country. On 5 August 2004, the New Zealand Government Administration Committee (“Committee”) announced that it was to hold an inquiry into “hate speech”. In announcing the inquiry, Justice Minister Phil Goff stated that “Parliament’s responsibility is to balance freedom of speech as a fundamental right in a democratic society with the protection of individuals from direct harm…” 2
Whilst his formulation of the competing rights can be debated, it is clear that the legislature will be required to balance a number of competing rights and freedoms in its consideration of “hate speech” legislation.
This policy paper identifies those competing rights as being: freedom of expression; freedom of religion and the right to manifest that religion; freedom from discrimination; and the desire (some would say the right) to be free from differing forms of harm.
It will begin by outlining the background to the government inquiry, which has its genesis in censorship law. It then follows the terms of the Committee’s inquiry and addresses the legislative framework in New Zealand (which already restricts speech), the application of the New Zealand Bill of Rights Act 1990 and provides a brief overview of “hate speech” laws in the international community.
This policy paper is necessarily broad in its scope, so as to highlight the number and range of issues involved and provide an accurate background to the issue. Ultimately this paper aims to determine whether legislative intervention is required in the area of “hate speech” by focusing on the rights and freedoms that compete for priority.
The paper finds that restricting the fundamental and protected right to manifest religion and have free expression must be balanced with a similarly fundamental and important right and concludes that there is no such fundamental right in law or policy that outweighs these rights. The paper concludes that laws against “hate speech” are unwarranted in New Zealand’s social and legal context.go back