Hard News by Russell Brown

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Hard News: How much speech does it take?

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  • DCBCauchi,

    I am sitting here in disbelief that I am about to type these words: What this discussion needs is some lawyers.

    Since Feb 2011 • 320 posts Report Reply

  • giovanni tiso, in reply to DCBCauchi,

    Yes, it does. As I understand it, Giovanni, Kracklite, and others are saying that the basis on which it defines these things is (and should be) on an ad hoc case-by-case basis according to the political climate of the time.

    It's not what I'm saying at all. I would like there to be robust principles and good definitions in law, but since they're bound not to be sufficient to deal with actual expression - which is the most complex thing there is - I would expect them to be tested in courts and through the guidelines of publishers and institutions, and for the outcomes of these mediations to feed back into the legislation so that it can be refined.

    As a publisher/issuer, I’m saying that that is not good enough. Actual principles underpin legal restrictions on our rights, and are the ultimate protection of those rights.

    Do you have specific recommendations to make? How would you deal with the issue?

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • Sacha, in reply to DCBCauchi,

    on an ad hoc case-by-case basis according to the political climate of the time

    That's misleadingly narrow. The body of law and process on this has been developed over many decades by courts, parliament and other social institutions, in conjunction with broader public discourse through various forms including media. Campaigns, case law and political changes adjust the boundaries over time. But each 'case' is not judged in an ad-hoc vacuum.

    I like what Lew has re-posted about hate speech in the comments section of his Breivik thread.

    ‘Hate speech’ is tricky to define, so for this purpose I’ll crib part of the definition from s131 of the Human Rights Act 1993; speech “with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand”. This is broader than the definition in that act, which applies only to racial disharmony, whereas I intend it to cover other forms of hate speech (such as that against religious groups, people of a given sexual orientation, or whatever) as well.

    First of all, let us dispense with the canard that speech is not action. The ‘”fire” in a crowded theatre’ argument already put forward in the other thread is enough to invalidate this, but even so, let’s look at it more closely.

    Speech (more technically, discourse) is the stuff of which civil society is constructed. Law, policy, norms of interaction and all other such things are fundamentally made up of words.

    The laws formulated by governments to give force to society’s commonly-held norms are constructed in just such a way, and if the discourse of a society contains significant prejudice, the laws and policies constructed from within that discourse will be likewise prejudicial. Moreover, a prejudicial discourse legitimates other forms of social conduct which are themselves prejudicial.

    There is no legitimacy to the ‘sticks and stones’ argument that people have no right to not be offended, and must therefore tolerate anything which is not strictly violence. Many aspects of civil society are not strictly codified, but operate on mutual trust, goodwill and expectations of reasonable conduct. Where there is prejudice, that trust, goodwill, and expectation of reasonable conduct cannot be entirely mutual.

    This [is] fundamentally the problem. The Universal Declaration of Human Rights provides that rights be accorded all people ‘without distinction of any kind’. The problem with hate speech or a society founded on prejudicial discourse is that it harmfully distinguishes between people. Speech is action inasmuch as it begets action, and the worst cases of hate speech must be circumscribed lest they beget similar action.

    When there is sustained 'othering' of groups of fellow humans, it tends to lead to us and our institutions acting to disadvantage members of that group, causing harm to us as well as them. This is hardly a novel observation, hence well-established laws and processes around it.

    If you don't like that, I'd suggest you probably have deeper issues with the whole notion of collective rights, civil society, or even society at all. I find it reassuring that 49 out of 50 New Zealanders do not vote for the Act party.

    Ak • Since May 2008 • 19740 posts Report Reply

  • Steve Barnes, in reply to Ian Dalziel,

    dangerous ideas…

    Well, thanks to people like these knuckle dragging small government bible thumpers, America will have nothing to worry about come Tuesday, nothing at all.

    Peria • Since Dec 2006 • 5521 posts Report Reply

  • giovanni tiso, in reply to Sacha,

    If you don't like that, I'd suggest you probably have deeper issues with the whole notion of collective rights, civil society, or even society at all. I find it reassuring that 49 out of 50 New Zealanders do not vote for the Act party.

    Whoah there Sacha. Opposition to the regulation of free speech does not an ACT party supporter make.

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • DCBCauchi, in reply to giovanni tiso,

    Do you have specific recommendations to make? How would you deal with the issue?

    I would like there to be a clear statement of the principles underpinning free speech, one that is clear enough for, for example, the morons making up the National Front to understand.

    Free speech is a contentious issue, because all players in the political game manipulate and misrepresent the issues to serve their own ends.

    I would like there to be a bright line – a clear, unambiguous line that illuminates itself – that anyone can point to say: see?

    I actually think such a bright line exists. It just hasn't been articulated here.

    Since Feb 2011 • 320 posts Report Reply

  • DCBCauchi, in reply to giovanni tiso,

    If you don’t like that, I’d suggest you probably have deeper issues with the whole notion of collective rights, civil society, or even society at all. I find it reassuring that 49 out of 50 New Zealanders do not vote for the Act party.

    Whoah there Sacha. Opposition to the regulation of free speech does not an ACT party supporter make.

    Um yeah, keep your cod-psychology to yourself thank you very much. I'm just as much a member of this society as you are.

    Since Feb 2011 • 320 posts Report Reply

  • giovanni tiso, in reply to DCBCauchi,

    I actually think such a bright line exists. It just hasn't been articulated here.

    Would you care to articulate it for us?

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • Sacha, in reply to giovanni tiso,

    Opposition to the regulation of free speech does not an ACT party supporter make.

    My statement "If you don't like that.." refers to the preceding paragraph and its final sentence:

    When there is sustained 'othering' of groups of fellow humans, it tends to lead to us and our institutions acting to disadvantage members of that group, causing harm to us as well as them. This is hardly a novel observation, hence well-established laws and processes around it.

    Not a novel linguistic linkage. And I'm treating Act support as a proxy for individualism. Wouldn't think I'd need to spell out the connection with Maggie Thatcher's famous utterance here.

    Ak • Since May 2008 • 19740 posts Report Reply

  • Sacha, in reply to DCBCauchi,

    cod-psychology

    If you want to read the word "issues" as psychological rather than political, there's little I can do about that.

    Ak • Since May 2008 • 19740 posts Report Reply

  • DCBCauchi, in reply to giovanni tiso,

    Would you care to articulate it for us?

    I'd prefer a lawyer to. The key phrase, as is mentioned in a quote above, is speech 'with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand'.

    Each of those terms needs to be unpacked (for want of a better term). For example, I have made and will make more works 'with intent to' 'ridicule' 'group[s] of persons [within the art world] in New Zealand'.

    (But, and I reiterate strongly, this isn't specifically about art works. I am using them simply as an example of free speech.)

    I think the unpacking will show clearly how such works are not hate speech, as well as what would be required for them to be so.

    Since Feb 2011 • 320 posts Report Reply

  • DCBCauchi, in reply to Sacha,

    If you want to read the word “issues” as psychological rather than political, there’s little I can do about that.

    I am not going to get into tit-for-tat personal observations, but will just note that you’re the one projecting attitudes and beliefs on to me. I don’t know why or even quite what attitudes or beliefs you think I have, and I don’t care.

    Since Feb 2011 • 320 posts Report Reply

  • Sacha, in reply to DCBCauchi,

    David, your beliefs are clear enough from previous discussions here (and I remember you're not a neoliberal, don't worry). I've made political points and you've chosen to take them as psychological ones. Your choice and I have no interest in engaging with you about them either.

    Ak • Since May 2008 • 19740 posts Report Reply

  • DCBCauchi, in reply to Sacha,

    David, your beliefs are clear enough from previous discussions here (and I remember you’re not a neoliberal, don’t worry).

    Sacha, you stated above that you think it possible I support the 'sustained "othering" of groups of fellow humans ... to disadvantage members of that group' and that I probably 'have deeper issues with the whole notion of collective rights, civil society, or even society at all'.

    Neither of these things is even remotely close to being true. I suggest that you do not have a clear understanding of my beliefs from previous discussions at all. In fact, I wonder what the hell you thought I was saying in those previous discussions.

    Since Feb 2011 • 320 posts Report Reply

  • Sacha, in reply to DCBCauchi,

    My apology for using the word "you" when I should have said "people".

    It was intended as a general observation that individualists are less likely to support collective civic processes that restrain personal action. Others may disagree with the methods but support the goal.

    However, I'm sure I didn't say anything at all about you personally in this statement:

    When there is sustained 'othering' of groups of fellow humans, it tends to lead to us and our institutions acting to disadvantage members of that group, causing harm to us as well as them.

    Ak • Since May 2008 • 19740 posts Report Reply

  • Paul Williams, in reply to DCBCauchi,

    As a publisher/issuer, I’m saying that that is not good enough. Actual principles underpin legal restrictions on our rights, and are the ultimate protection of those rights.

    Then I reiterate my earlier point, if you want certainty and simplicity, you'll get the lowest common denominator standard.

    Sydney • Since Nov 2006 • 2273 posts Report Reply

  • Kumara Republic, in reply to Sacha,

    ‘Hate speech’ is tricky to define

    Just like porno - hard to define on paper, but you know it when you see it.

    The southernmost capital … • Since Nov 2006 • 5441 posts Report Reply

  • giovanni tiso, in reply to DCBCauchi,

    The key phrase, as is mentioned in a quote above, is speech ‘with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand’.

    Each of those terms needs to be unpacked (for want of a better term).

    It might, if you hadn’t been so selective in your quotation. The act says “…intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons ”.

    And your problem with this is…?

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • Russell Brown, in reply to Paul Williams,

    Then I reiterate my earlier point, if you want certainty and simplicity, you’ll get the lowest common denominator standard.

    You'll also get an immovable point in time. If we had forever codified norms about speech in the 1950s they'd look very different to the ones we have argued our way to now.

    Auckland • Since Nov 2006 • 22848 posts Report Reply

  • giovanni tiso, in reply to Russell Brown,

    If we had forever codified norms about speech in the 1950s they’d look very different to the ones we have argued our way to now.

    The way the Italian constitution (est. 1948) dealt with this, like many other foundational documents of its time, was to enshrine freedom of expression (article 21), and leave the exceptions to the legislators. So the principle – that the state aspires to allow as little censorship as possible – remains fixed in time, while the particulars of what is deemed objectionable change over time. (Except for one thing: the banning of Fascist symbols, along with the prohibition to reform the party, was itself part of the constitution.)

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • giovanni tiso,

    (To give a concrete example, based on that article the NZ law that bans satirical use of Parliament footage would have been sent back to Parliament by the constitutional court.)

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • Russell Brown, in reply to giovanni tiso,

    So the principle – that the state aspires to allow as little censorship as possible – remains fixed in time, while the particulars of what is deemed objectionable change over time.

    Which is essentially what I said to David above. The question isn't "what specific criteria should we use to determine whether something is legitimate free speech?" but “what are our criteria, if any, for restricting speech?”

    Auckland • Since Nov 2006 • 22848 posts Report Reply

  • DCBCauchi, in reply to giovanni tiso,

    It might, if you hadn’t been so selective in your quotation. The act says “…intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons ”.

    And your problem with this is…?

    If you’d actually read what I’d written, I obviously wasn’t quoting the Act. I was quoting a specific suggestion (which Sacha quoted) that the definition in the Act be extended to apply to other speech, not just racial speech.

    And, to Russell, I never suggested that the bright line I mentioned be based on the societal norms of a particular time. How do you possibly read a specific reference to principles as a reference to societal norms???

    Honestly, I do not understand this discussion at all. It seems impossible to say the simplest thing without it being grossly misinterpreted – or in fact read as saying the complete opposite of what it actually says.

    I am left thinking I’ve completely wasted my time, once again. More fool me.

    Since Feb 2011 • 320 posts Report Reply

  • giovanni tiso, in reply to DCBCauchi,

    If you’d actually read what I’d written, I obviously wasn’t quoting the Act. I was quoting a specific suggestion (which Sacha quoted) that the definition in the Act be extended to apply to other speech, not just racial speech.

    You were responding to me, not to Sacha, and my question concerned the provisions that we have. But I see this is going nowhere.

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • Sacha,

    I'd note that the Human Rights Act is not the be-all and end-all in this matter either, but it does encompass grounds other than ethnicity.

    Ak • Since May 2008 • 19740 posts Report Reply

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