The battle for free speech rages on

Dr Michael Johnston
ZB Plus
2 February, 2024

The Ardern Government was New Zealand’s most censorious in living memory. Following Brenton Tarrant’s murderous rampage through two Christchurch mosques in March 2019, Ardern set out on an anti-free speech path. Her government introduced legislation that would have made speech “intentionally stirring up, maintaining or normalising hatred” a jailable offence.

The Ardern government was New Zealand’s most censorious in living memory. Following Brenton Tarrant’s murderous rampage through two Christchurch mosques in March 2019, Ardern set out on an anti-free speech path. Her government introduced legislation that would have made speech “intentionally stirring up, maintaining or normalising hatred” a jailable offence.

There is no evidence that censorship ever combats hate, especially of the kind that motivated the terrorist Tarrant. Indeed, a pragmatic argument against hate speech laws is that they drive those who want to express hateful thoughts underground.

Out of sight, out of mind, perhaps – but hateful people do not typically cease their ruminations just because they’ve been censored. Censorship may even make it more likely that they will act on their odious thoughts. They’re likely to withdraw to online echo chambers that only amplify their twisted thinking. Far better that unpleasant ideas are expressed in the open, where they can be contested and monitored.

Organised opposition to Ardern’s legislation was already in place, thanks to then-Auckland Mayor Phil Goff. Goff had denied Canadian ‘alt-right’ activists Lauren Southern and Stephan Molyneaux access to public venues for their planned speaking events. That was the catalyst for the formation of the Free Speech Coalition, which became the Free Speech Union.

The coalition and its allies quickly got to work opposing the hate speech legislation. They were ably assisted by then-Justice Minister Kris Faafoi and Ardern herself, neither of whom could clearly describe the kinds of speech that would, or wouldn’t, be banned. Faafoi, for example, equivocated on whether people criticising baby-boomers for dominating the housing market might run afoul of the law.

In part due to concerted opposition from free speech proponents, and in part to inept handling by the government, the legislation was withdrawn. A revised, and arguably watered-down, version was reintroduced late in Ardern’s tenure as Prime Minister. This bill also suffered an ignominious demise. Following Ardern’s resignation, her successor Chris Hipkins threw it on his ‘policy bonfire’ in a belated attempt to focus his government on ‘bread-and-butter’ issues.

Now the sixth Labour government has been ousted and the new National-led government is reliant on its ACT coalition partner. ACT leader David Seymour was vociferous in his opposition to Labour’s hate speech agenda so New Zealand seems safe from legislative interference with free speech for the foreseeable future. But that does not mean that the friends of liberal democracy and open society can rest easy. Far from it.

There is a well-known maxim that “politics is downstream from culture.” This is especially true in a democracy because politicians have to appeal to voters. It’s much easier to establish laws that voters agree with than ones that they dislike. The fact that the Ardern government’s attempts to introduce anti-free speech laws met with concerted opposition and ultimately failed is a hopeful sign. But the legislation had plenty of support too, much of it from young people.

At a recent speaking engagement, Free Speech Union Chief Executive Jonathan Ayling was told, by a law student no less, that, "I don't like hearing ideas I don't agree with – that's why I don't think others should be allowed to say whatever they want."

Hate speech laws may have been canned for now, but the cultural trends that, perhaps, made Ardern think that she could get away with her outrageous assault on free expression, are very much still in place. A rising tide of social censoriousness is ubiquitous across the Anglosphere. It’s part of a wider culture war that shows no sign of abating.

It has become fashionable to respond to those with whom we disagree with insults instead of reasoned arguments. Disagree with co-governance? You’re a racist. Think that biological women should not have to share changing facilities with biological men? You’re a transphobic bigot.

Of course, in an open society, people have a perfect right to express themselves by insulting those with whom they disagree. The trouble is, though, that if a culture of shouting down and cancelling people gains too much traction, public discourse becomes stultified, and the social engine that produces ideas and knowledge starts to seize. It’s what philosopher Karl Popper called “the paradox of tolerance”: In an open society, people are free to express themselves in ways that put open society at risk.

Believers in free speech can hardly fall back on legislative approaches to silence the enemies of open society. That would be both hypocritical and ineffective. Instead, we must work hard to convince our fellow citizens that thrashing out our thoughts and openly disagreeing with one another sets us on a path to a healthier and more vibrant society for all.

We must actively and intelligently defend disadvantaged minorities who are subjected to hate and prejudice. We must cultivate the intellectual humility to change our minds when confronted with evidence and compelling arguments. We must lead by example and put our proverbial money where our mouths are.

Our education system must better prepare young people for life in a liberal democracy. That requires practice in expressing and contesting all kinds of ideas, many of which will be unappealing and some of which will be upsetting. We must develop their resilience, so they can productively converse with those with whom they vehemently disagree. We must teach them to express their own arguments and counterarguments in a reasoned and, ideally, courteous way.

The battle against hate speech legislation may have been won, but the wider battle for open society will rage for the foreseeable future. Enemies of open society have always sought to control discourse – whether through laws, exclusion from media or the ‘thug’s veto’ (shouting down or threatening violence against opponents). They have always portrayed their opponents’ sincerely held views as being beyond the political pale. They have used education to indoctrinate rather than to enlighten.

New Zealand remains an open society, but open society is not self-maintaining. Historically, very few societies have been democratic. Unless the cultural tide turns, the future for liberty is bleak.

The good news is that the tools of liberal democracy itself – free public and private discourse, the electoral process and public education – are all we need to save our open society. We must simply have the courage to use them – or to demand of our politicians that they be used – in a way that preserves the cultural ground upon which the democratic order stands.

To read the article on the ZB Plus website, click here.

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