Two years after the Christchurch mosque shootings and with racism rising (according to the Human Rights Commission) because of COVID 19, the Government appears to be in a bind over long-promised hate speech laws.

So far, no legislation has appeared.

That “robust public discussion from all quarters” promised by then Justice Minister Andrew Little by the end of 2019 hasn’t materialised.  And there is a drum beat from some commentators that the Government’s demonstrable timidity in other matters (like Capital Gains Tax) will blunt any hate speech laws.

While no news may be bad news for targets of hate, a more charitable explanation for the radio silence might be that the Government understands it’s grappling with a very sticky issue.

A 2020 British study finding “a consistent positive association” between hate speech online and hate crime offline. However correlation isn’t causation.

Definition is difficult. While the Prime Minister has said of hate speech, “…when you see it you know it,” the UK’s Article 19 says that there is no universally accepted definition of the term “hate speech” in international law.

And while violence is often accompanied by hateful words; it’s not clear that hate speech invariably provokes identifiable harm. The Royal Commission Report on the Christchurch mosque massacre cites a 2020 British study finding “a consistent positive association” between hate speech (notably on local Twitter) online and hate crime offline. However correlation isn’t causation.

“The term ‘hate speech’ is both imprecise and misleading,” asserts David Bromell, Senior Associate with the Institute for Governance and Policy Studies. Bromell contends that  harm rather than hate should be the measure.

By that he means violence, hostility and discrimination. Let’s agree that no-one should be subjected to the kind of vile taunts that a Māori family recently endured on an Auckland waterfront. Often the defenders of free speech don’t always sound or act like they know how it feels to be on the receiving end of hate speech.

Yet hate doesn’t always hinder. Academic Robert Post observes  that while hatred is  extreme and troublesome, it  has also served constructive social purposes.

Indeed, without free (sometimes polarising) utterances , it’s unlikely civil rights would have been extended to African Americans in the 1960s.

Hateful speech, when people give voice to the darkness under the surface of society can galvanise public debate, and pushback. When Alabama Governor George Wallace demanded ‘segregation now, segregation tomorrow, segregation forever!’ in 1963, he was inadvertently promoting the very real need for the Civil Rights legislation that would pass soon after.

This explains why Jay Stanley of the American Civil Liberties Union writes, ‘If we don’t stand up… when racist speech is censored, it is the weak, the powerless, minorities, and those who seek change who will be hurt most in the end.’

The Government may be recognising all this. The danger is that by stalling, stakes will be raised, and the desire to do something may produce hasty legislation. Hasty legislation is often wretched.  

Yes, the Government needs to tell us what it intends on the issue of hate speech. But before speaking, it needs to keep listening, and thinking.