The Justice Minister put the cart before the horse when he spoke about hate speech recently. In the shadow of the Christchurch terror attacks, he announced that he was “fast-tracking” a review of the Human Rights Act and that the law “needed to change.” We should explore every avenue to prevent such a tragedy happening again, but there’s a lot that can go wrong with his approach.  

Speech can do real damage. As Professor Jeremy Waldron says, speech can deny a person’s dignity and their entitlement “to be treated as equals.” I agree that dehumanising people in this way is wrong, but not everything that’s wrong should be a crime, especially when there’s a risk of the law going too far. Legal over-reach would do real harm because speech can be beneficial; for example, controversial and challenging speech helps us to learn and grow. We must also be mindful of what AUT’s Dr David Hall calls, “our responsibilities as speakers.”

Speech can deny a person’s dignity and their entitlement “to be treated as equals.”

We also need to think about the context for our discussion of hate speech. Terrorism is part of that context, and so is the rise of “safetyism,” as seen when some staff at Massey University raised concerns that they were “culturally unsafe” because of the actions of members of Hobson’s Pledge. The context for discussing hate speech is distorted, first, by the spectre of extreme and violent racism, and second, by the misuse of terms like “safety” to equate speech with physical violence.

There’s also a risk of unintended costs. Hate speech laws could be used to suppress speech just because it’s unpopular, and this is a particular risk for minorities. For example, Professor Nadine Strossen notes that a 1960s law against hate speech in the UK was often used to prosecute leaders of the Black Liberation Movement, and “the first person convicted under [the law] was a black man who cursed a white police officer.”

And preventing unacceptable speech doesn’t automatically mean the Government has to step in.

The discussion also needs to start with existing protections in our laws. It needs to draw careful distinctions between speech that catalyses violence, and speech that is merely challenging. And preventing unacceptable speech doesn’t automatically mean the Government has to step in. As Hall points out, “public and private organisations” can take their own steps. These steps are part of the cultural conversation that creates social norms that ultimately define who we are, and what we think is acceptable.

These norms are forged in controversial and confronting debate about the things that matter most. That’s why we should tread very carefully when thinking about hate speech laws, and it’s why the Justice Minister now has to figure out how to get the horse back in front of the cart. He’s said that the Government will work with the Human Rights Commission to create a proposal regarding law change, so a good start would be to include multiple voices, not just the Commission, in developing the proposal. Speech matters and it would be ironic, and unfortunate, if a review of our laws on speech happened in an echo chamber.