Following a bungled launch and antagonistic responses from both the political right and left, much of the furore over the Government’s hate speech law proposals can be resolved into a single question: If hateful speech is criminalised, will it actually improve how New Zealanders behave to each other?

We can start by looking at the law enforcement responses to more easily defined “hate crime” laws around the world. In places like Australia, reports suggest that the incidence of hate crime prosecutions is surprisingly low. In Canada there is uncertainty and ongoing questions about how hate crime data is collated. As for the UK, the South Yorkshire police were mocked in 2018 for tweeting a request for locals to report “non hate-crime hate incidences.” A mixture then of under-reaction, uncertainty, and over-reaction: such divergent scenarios hardly advance trust in a law that extends beyond hate crime to police speech.

Sadly, these laws didn’t ultimately prevent the rise of exactly the kind of regime they were designed to prevent.

History has more to add. Hate speech laws existed in Weimar Germany during the rise of Nazism. They were regularly and vigorously applied. Leading Nazis, such as propaganda supremo Joseph Goebbels, were prosecuted for their anti-Semitic views. Sadly, these laws didn’t ultimately prevent the rise of exactly the kind of regime they were designed to prevent. Culture and socio-economic pressures prevailed. This demonstrates the futility of relying solely on legislation to alter culture.

So the risks are numerous, but the attempt to do something (anything!) points us back to an even larger and more difficult responsibility.

Law makers are attempting to figure out, codify, and penalise ideas and behaviour that are socially toxic. They’re trying to define exactly (for laws must be exact) what intolerance looks like. Yet this task is paradoxical. Noted New Zealand-born legal philosopher Professor Jeremy Waldron observes, “We do not tolerate those of whom we approve or those to whom we are indifferent. We don’t tolerate those whom we suspect might have the truth or part of the truth in a pluralistic world…”

Here Waldron nails the crux of the issue: “…We tolerate those whom we judge wrong, mistaken, or benighted. And surely toleration must permit us to give voice to those judgments. Otherwise it demands too much.”

Aside from everything else our political leaders must take into account, they’re now faced with defining not only intolerance, but also tolerance itself – what ideas and actions are worthy and unworthy of tolerating. That’s a massive ask.

Can we confidently say we’ll always enjoy liberal, democratically-inclined governments?

Finally, while the very laudable aims of reducing racism and increasing inclusiveness in our country are cited as justifying hate speech laws, such measures don’t invariably serve the good. Academic David Bromell notes that similar laws were used by South Africa’s apartheid regime to criminalise criticism of white domination. And before the 2021 presidential election, Uganda used hate speech prosecutions to shut down or manipulate dissent.

The effectiveness and appropriateness of these hate speech proposals depends not just on the law, or the society, but on the government ruling both. Can we confidently say we’ll always enjoy liberal, democratically-inclined governments? That’s another burden this potential law must bear: predicting the future.