Bruce Logan: The idea of ‘hate speech’ is a political construct

1 May 2019

Justice Minister Andrew Little is going to review the current law in order to consider hate speech legislation. Bruce Logan argues that he needn’t bother. New Zealand law is already adequate to control defamation and incitement to violence. Hate speech is impossible to define and the tool of the tyrant. That’s its historical bloodline. Here are 10 reasons for Mr Little to consider.


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Hate speech law will always expand the contestable power of the state by undermining a vital characteristic of democracy; the right to be critical of the state and its laws. By its very nature, especially in a culture of identity politics, hate speech law is expansionist; it must keep extending its reach in order to preserve the prevailing and evolving ideology. In the middle and around its edges hate speech law is anti-democratic. Of course, to call a political or legal system anti-democratic is not sufficient to condemn it. Democracy is not sacred but it is probably the best kind of governmental process we have at our disposal. The simple point is that democracy cannot operate if everyone thinks his or her own particular identity is sacred enough to be protected by new legislation.

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In a healthy democracy the demand for hate speech legislation is weak because everyone has equal status under the law and consequently there is little demand for identity protection. Manipulating equality of outcome is not confused with creating the conditions for equality of opportunity. Because everyone values freedom of speech contentious dialogue is normative while egregious speech is expected to die under a barrage of satire, irony and simple ridicule. Such a critical faculty should be a function of open public debate distilled through the arts; not politics. The contemporary demand, largely by those on the political left, to regulate free-speech is a consequence of the divisiveness of identity politics. It is about the law being called upon to protect group identity. “Offence” is required to protect an individual who identifies with a group merely on the basis of his or her threshold of taking offence.

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Hate speech law actually changes the understanding of equal rights intrinsic to an ordered civil society because it encourages the validity and proliferation of separate identity groups. Democracy can only operate when individual citizens share a common and transcendent belief in what it means to be human. John Adams comment on the Constitution of the United States is illustrative here. “Our Constitution was made only for a moral and religious people. It is wholly inadequate for any other.” A reading of the New Zealand National Anthem may well be salutary as it reminds us of our roots.

A shared belief in the Transcendent is critical because a just understanding of freedom has to have an authority outside any written legal structure in order to keep the secular lawmaker honest in his or her presumed neutrality. Hate speech law, because it assumes the primacy of a prescribed identity, shifts the authority that determines human dignity away from the Transcendent to the self. Any credibility that hate speech might have depends on the invasion of identity politics into the traditional democratic mainstream, first by diluting it and then replacing it.

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Law has its limitations. Its primary concern is prohibiting those things that harm the public good. Hate speech law distorts that concern by declaring that criticism of one’s chosen identity harms the public good. There is no law yet to make us love another or judge the intentions of the heart. Hate is certainly real but hate crime law is a pretender that encourages the virtue signaller. Why single hate out when we have crimes of anger, envy, lust, passion or even stupidity? Why should a crime, allegedly motivated by hate, be more criminal, or criminal in a particular way, that any of these? In the business of motivation it must be obvious that crime is frequently a consequence of a variety of passions which are difficult, probably impossible, to unravel in court. Any attempt to define crime by what we might think is its underlying passion has to be arbitrary and likely to distort process and lead to a twisting of justice.

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Hate speech law is a catalyst for hypocrisy. It fronts as concern for the other but is really about self-justification. It conceptualises personal offence as an attack on a “vulnerable” group. Hate speech law is not about sharing an objective (transcendent) standard that can be applied by everyone to everyone. Rather hate speech law is about where one individual sits in relation to another on the basis of each person’s subjective standard. Or more accurately where one group sets in relation to another group. Hate speech law will ultimately do little more than increase misunderstanding between groups. Hate speech law creates a own allegedly unique victim in the inevitable struggle for power between competing groups.

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Lurking beneath hate speech law is the malignant concept that the state is the creator and guarantor of public morality. That malignancy has considerable potential to increase resentment towards and suspicion of the law. The enforcement of promiscuous contemporary human rights legislation can be a catalyst here. The most recent example would be to make the self-selection of one’s sex a human rights issue. In this, for most people, the law looks like an ass.

Because hate speech law is not just about justice but more about protecting the dignity of one’s chosen identity the state must be the arbiter of that identity. And the validity of one’s chosen identity is always going to be a movable feast. That is quite the opposite of the historical notion of dignity that gave rise to the nature of freedom within a just society. Human dignity, we used to believe, and some of us still do, was discovered in the culturally binding biblical declaration that every human being had been created in God’s image. Without such a belief we could not have had Magna Carta and its offshoots, the Constitution of the United States or The Universal Declaration of Human Rights. Or, one suspects the Treaty of Waitangi.

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Following on from 6 is the vexatious issue of the “countercultural misfit”. New Zealand, in having accepted the doctrine of multiculturalism, is passing through a period of substantial social change. It is in this context that identity politics becomes a real threat to freedom of religion. In moving away from its Christian roots and the belief in permanent and transcendent truth, New Zealand develops, by default, a civil religion that sees truth as neither permanent nor transcendent. The Christian becomes an outlier who denies the authority of morality can be found in the declaration of human autonomy. The Christian is always going to be a critic of those who identify dignity on the basis of self-selection; of individual autonomy. For example, neither abortion nor euthanasia can be defended on the basis of the Christian declaration of dignity. Because hate speech law is founded on the claim that dignity is grounded in personal autonomy the Christian must always be in conflict with it, and ironically, in danger of becoming a victim of it. Traditionally freedom of religious belief and expression sustained the right to freedom of speech. Should hate speech law overwhelm the right to religious belief and expression by protecting a variety of sexual behaviours there will be no basis for freedom of speech of any kind. Religious freedom will become a freedom that precariously exists when the authoritative state decides, rather than a freedom that underpins the entire democratic process.

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Hate speech law contains within itself the seeds of its own distortion because of the tendency of “hate speech” to mutate. It must always reach out to extend its Dominion. Hate speech law, in order to retain its authority, increasingly depends on the submission of permanent truth to the aggressive certainty of subjectivity. More and more people will become potentially guilty of “speaking hatefully” Consequently many people will be forced into an unwilling self-censorship that can only fester because hate speech has been identified as vilification; that it resembles that unique and pernicious phenomenon anti-Semitism. In passing, something that could be considered at another time, in the midst of the demand for hate speech, anti-Semitism is increasing around the Western world. It might even be that the demand for hate speech legislation and increasing anti-Semitism draw their strength from a perverse union between the far left and the far right.

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Hate speech law has a contentious history, although it did travel undercover rather than having the exposure of legislation. For most of the 20th century dictatorships controlled what citizens could say as a matter of political convenience. Freedom of speech was anathema. Of course, there is always tension between the authority of the state and the desire of the people. The balance is critical. Hate speech legislation distorts that balance. The grasping after power by dictators in the 20th century should be sufficient example. From Hitler, through Stalin, Mao and Pol Pot the use, the power and danger of hate speech legislation must be obvious.

It might not be immediately obvious that there is a direct link between the tyranny of overwhelming state power and identity politics, but the outworking of that dynamic is inevitable. Both are concerned with inhibiting freedom of speech. In our contemporary decaying democracy the struggle for power between competing groups will make it necessary for the state to increasingly interfere in the beliefs of its citizens. The recent furore around the Israel Falou affair (which has had astonishing international exposure) is an excellent illustration of how identity politics must interfere with freedom of religious expression and freedom of speech and how the offended group will take refuge in the demand for hate speech.

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As citizens of a secular society we are obliged to obey the law, and the law is obliged to protect us as members of the nation-state, and not on the basis of religious or other group identity. The law does not exist to reinforce my confidence in my chosen identity of any kind, but to protect me as a free individual with certain inalienable (negative) rights. They include freedom to believe and practice my religion, freedom of conscience and speech, freedom of assembly and freedom of movement. In none of these does the government have to do anything; simply leave me alone to get on with my life. Hate speech legislation must interfere with that just process by not allowing me to get on with my life.

In a just democracy if some people think one’s religion/culture is nonsense then they are free to criticise or ridicule any religion and practice of it. Likewise chosen identity groups should also be open to ridicule or criticism. If I speak vindictively about others I should be admonished by public disapproval. That is the healthy dynamic. Hate speech legislation interferes with that self-correcting process. Should I lie or be defamatory then I must suffer the consequences legal or moral. We do not need hate speech law to protect anyone from ridicule.

Perhaps something needs to be said about “public disapproval”. In a democracy where the people have a shared understanding of human dignity “disapproval” is tempered by experience and tradition. In a society submitted to hate speech legislation the definition of disapproval moves away from the public consciousness to group identity and then to the state.

For much of my fortunate life, increasingly so, I have been called a bigot, a wanker, a homophobe, an extremist, a fundamentalist and a number of other equally vacuous names because I choose to identify as a Christian in the public square and declare, to give one recent example, that euthanasia is not really an exercise in compassion. I was not offended because the truth of what I believe does not depend on me. Like any reasonable democratic conservative I believe the truth to be my defence.

Such a belief is the heart of the issue and the pivot around which democratic harmony revolves. The doctrine of identity politics would have the truth rest in nothing more than ungrounded subjectivity. We should not be surprised that any criticism quickly becomes an offence. Almost without noticing, the call for tolerance slips into a demand for affirmation, and it is that demand for affirmation that would take refuge in hate speech legislation. However, in the real world, freedom to ridicule can have a positive effect insofar as it can encourage open debate and self-criticism. Indeed satire, simple ridicule and uncensored contentious debate is the red blood that flows in democracy’s veins.

Bruce Logan is a Board Member of Family First New Zealand

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