Legal Beagle by Graeme Edgeler


The New New Prohibition

In the decades leading up to the 18th Amendment, the case for the prohibition of alcohol was made repeatedly. The harms of alcohol were substantial, and the US experience was worse than most. The victims made the case, and campaigners made the case for those who couldn’t speak for themselve. You might think there are issues with alcohol consumption still today. In the late 1800s, per capita consumption was three times what it is now.

The need to protect people from the nation of drunkards was obvious. The problems were pressing. And a decades-long campaign pushed for the constitutional amendment that would be needed to give the Federal Government the authority to ban liquor.

And it worked. They got the law change. Alcohol didn’t go away, but consumption dropped. But it didn’t really work. New alcohol harms arose, which the US continues to live with today. Despite the problems caused by alcohol, the problems caused by alcohol prohibition were greater, and then for the only time, the US Constitution was amended to repeal an amendment.

We have seen this again. The problems of drug addiction are well known, but the problems with drug prohibition are also well-known. There are even problems with non-punitive drug interventions such as the D.A.R.E. programme, participation in which appears to have correlated with increased drug use.

We may be facing a similar issue with hate speech. The government and the Royal Commission have done reasonable jobs in establishing that there is a problem. And they have been supported in this by people from communities that are often the target of hate speech (albeit most of the examples given of hate speech by vulnerable communities are of speech that wouldn’t be covered by this proposal, and some people within those communities have raised concerns that hate speech regulation may in fact increase hate incidents).

But making the case that there is a problem is very different from arguing that you have a solution to that problem. And this is something the government simply has not done.

Does the government think it’s proposals will decrease hatred and increase cohesion? It hasn’t really said. It appears to hope they will, but can it explain why?

What countries have good hate speech laws? Whose law has been appropriately applied, without unintended chilling effects against non-hate speech? And which, ideally, has had a positive overall effect on domestic tranquility and ehanced social cohesion?

Does the government have a sense of which countries have had poor (or poorly implemented) hate speech laws? What lessons has it learned from those countries?

I sought examples of countries with good hate speech laws on twitter some time ago, and someone suggested Ireland was one jurisdiction that had done well with its hate speech legislation. And it is generally agreed that the United Kingdom has gone overboard (albeit its worst excesses have been under general speech laws rather than its hate incitement law). But the English hate incitement law and the Irish hate incitement law are essentially paraphrases of each other: they have the same wording in the elements of the offence, using “stir up”, and “hatred”, and cover approximately the same groups (the Irish law adds membership of the travelling community and sexual orientation, which aren’t currently in the English equivalent).

What lessons has the government learned from countries whose experience of hate speech laws has been poor? Whose hate speech laws haven’t just failed to arrest hateful speech, but have instead preceded a less harmonious, more divided society? Does it even acknowledge that that can be a consequence? How does it intend to ensure that New Zealand is a country whose experience of hate speech regulation is a positive one, and not one that not only fails to reduce hate, but perhaps increases it?

Because, as with prohibition – of alcohol, or drugs – this is a major risk. The evidence that hate incitement laws actually do that much about hate is weak.

And most importantly, does the Government even know what it wants to ban?

It has refused to be drawn on hypotheticals offered by journalists and the public, but could it give us some of its own?

What type of currently legal speech does the Government want Parliament to criminalise?

Dr Edward Clark of Victoria University of Wellington has given one example. He thinks the law change should ban this. Does the Government? We don’t know.

I want ridiculously specific examples.

I know what the Royal Commission’s legislative proposal would say, and the what the Royal Commission said that would mean, and how the Courts applied the old law. And I can explain all of those things. But I could have done that with National’s amendments to the Bail Act, and look how they turned out.

There are going to be people who insist that misgendering someone will become illegal. I am relatively clear it would not, under the proposals as they stand, but I am not making charging decisions, nor sitting on juries.

Would someone making statements similar to those made by Israel Folau be at risk? Would cartoons like Jyllands-Posten’s, which were reprinted in several New Zealand newspapers in solidarity be illegal? How about Charlie Hebdo’s? There were activists who wanted the mayor of Wellington to declare a state of emergency in order to stop the harm they said would be done by Speak Up For Women’s recent meeting to discuss the Births, Deaths, Marriages and Relationships Amendment Bill. Does the government think the statements made at a meeting like that should be illegal? How about the statements made by the people protesting outside?

We need the government to be able to say “no”. Or perhaps “yes”.

Because we do not know it when we see it.

An important component of the rule of law (perhaps the most important) is certainty. The law should be declared in advance so that people can comply with it. And the biggest problem for people who will try to moderate their behaviour in response to a new criminal law isn’t whether they can recognise a bunch of things that will be covered by it, it’s whether they can recognise what things won’t. Because if it is not clear, then important, protected speech will be chilled.

As discussed in this piece, there is the fear of second order effects. Whatever you think of the law itself, there is a real risk it simply causes other things to happen, because of the signal it sends to police and to courts.

There are also the standard reasons to oppose any criminal law. Imprisoning people is really bad. It affects them. It affects their partners, and children. The effects are intergenerational. You should reserve imprisonment for the worst types of offending, where these consequences are truly justifiable.

But beyond imprisonment, prosecution itself is massively harmful.

Imposing criminal justice processes on people should be reserved for situations where the consequences of subjecting people to criminal processes are justified by the harm done by an alleged crime. This is especially so when we are dealing with what might be prosecutions for speech we might ultimately find out – perhaps after multiple appeals – isn’t just not criminal hate speech, but is legislatively protected free speech. Liam Hehir describes these concerns as well as I could here:

For those caught up in it, the process is the punishment

So let’s say you make a controversial political statement and some deranged person on Twitter or whatever decides to lay a police complaint about it.

An officious police officer decides to investigate you for it. You then have the anxiety of having an investigation hanging over your head. While the investigation is ongoing, and who knows how long it will take, it will be the first thing you think about in the morning and the last thing you think about before you go to sleep.

If a prosecution is brought, you could then face expensive and stressful court processes. It could go all the way to the Supreme Court - then back down to the lower courts again - then up again. All in all your case could spend years working its way through the Byzantine legal system before any sense of finality is reached.

All of this time and effort will be on top of your regular job since the fact that you are caught up in a time consuming prosecution does not relieve you of the need to make a living. Quite the opposite, in fact, since you would be a fool not to use a lawyer and they're not cheap. The investigators and prosecutors, on the other hand, are just doing their day job, have nothing at risk and are being paid to make your life an ordeal.

The costs of victory can be very steep

You might ultimately win that case. If so you get your name in the law reports and lecturers in law schools up and down the country can cite the case as an example of the law working as planned. That might feel like a moral victory. 

In no other sense will you consider yourself to have won anything.

In fact there’s a good chance your life will be wrecked anyway. As we’ve seen in places like the United States, a common response to somebody being vindicated in one set of proceedings is the launch of another set. When it becomes a tool in the hands of the motivated, the law can be a blunt and unforgiving weapon.

This assumes you have the stomach to see the whole thing through, of course. In practice, the easier thing to do is just not speak your mind on an issue of controversy. Which if you’re inclined to a more controlled discourse you might think is a good thing - but that’s because you favour political censorship.

Voltaire once said: “I was never ruined but twice: once when I lost a lawsuit, and once when I won one.” It’s absolutely true. In Canadian and American jurisprudence they call this a chilling effect, which refers to the voluntary curtailment of rights through fear of the disproportionate stress and anxiety inflicted on people by the legal system.

The Government has the numbers to pass a law, but if it wants to bring the public with it, it should be starting now. A government passing any law should be able to answer questions like those I ask above. It hasn’t yet. And until it can, there’s no way it should be legislating.

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