RELIGION AND "HATE SPEECH": WHY ONE OF LABOUR'S PROPOSED CHANGES TO THE EXISTING LAW IS A REALLY REALLY BAD IDEA

 In the aftermath of the tragedy and horror of the Christchurch mosque attacks of 2020, the New Zealand Government fast tracked a review of “hate speech” legislation, with Justice Minister Andrew Little declaring the extant law to be “woefully inadequate”. The Government then began a process of considering options submitted by the Justice Ministry and Human Rights Commission.

There is no obvious problem with extending these protections to gender and sexual minorities or the disabled, but there is when it comes to religion. The usual argument in support of such legislative reform, when advanced in secular democracies that have assented to the relevant UN agreements and declarations runs something like this:

Article 20(2) of the International Covenant for Civil and Political Rights (ICCPP) 1976 – which New Zealand is a ratified signatory to – provides that “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law,” and “without distinction of any kind”, while Article 26 provides that, “the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground.”

That’s fine as far as it goes, but it is worth noting that the wording of Article 20(2) is almost never found enshrined in domestic law anywhere. Although the UN Human Rights Committee (HRC) has ruled that Article 20 is compatible with Article 19 providing that “Everyone shall have the right to hold opinions without interference” and “Everyone shall have the right to freedom of expression”, this ruling is not unchallenged.

Ominously Article 19 also states that the latter “may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary.” It is debatable whether such restrictions are necessary in a country like New Zealand where there are already legal protections in place.

ARTICLE 19: the Global Campaign for Free Expression observed of Article 20 in a report to the UN High Commissioner for Human Rights in 2010 that it: “employs a double-barrelled formulation, whereby what is to be prohibited is advocacy of hatred that “constitutes” incitement rather than simply incitement.” This is rather alarming as the definition of what “constitutes” incitement can be broad and subjective indeed.

If we take the definition of “racial disharmony” as defined by the New Zealand Human Rights Act 1993 as the likely template for new legislation, it states:

It shall be unlawful for any person—

(a) to publish or distribute written matter which is threatening, abusive, or insulting, or to broadcast by means of radio or television or other electronic communication words which are threatening, abusive, or insulting; or (b) to use in any public place as defined in section 2(1) of the Summary Offences Act 1981, or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting; or (c) to use in any place words which are threatening, abusive, or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper, magazine, or periodical or broadcast by means of radio or television,— being matter or words likely to excite hostility against or bring into contempt any group of persons etc.

That is very broad. It is relatively easy to determine hate speech and harm in relation to ethnicity, gender or sexual orientation, but not belief, and especially not religious belief rooted in faith and dogma. Faith has no objective metric to test. If in the very unlikely event the Pope was to declare ex cathedra that he was a pink elephant named Gertrude, technically (until the Holy See gets involved), as far as Catholicism and Papal Infallibility are concerned it is true by Act of Faith. That’s perhaps exaggerating the process, but it gives the flavour.

The philosopher Richard Rorty made the point in his Philosophy and Social Hope (1999) that most of the world’s conflicts tend to boil down to differing interpretations of metaphor in pursuit of an external authority such as God or ideology. Religion asserts dogmatic authoritarian ideas about truth and goodness through what Rorty called “ontotheological” metaphors to control and subjugate.

How exactly can you legislate something as subjective as a metaphor? How do you determine harm from criticism in relation to belief? Where does that leave us in relation to individuals who use their religion to justify such things as creationism, withholding medical intervention, protecting sexual predators, persecuting homosexuals and oppressing women? For the sincerely faithful there is no separation between them and their community of faith, and any criticism of that faith is, by extension, of insult or harm to the individual worshipper.

There is also the fact that while such legislation is intended to protect vulnerable groups within a country, many religions have the backing of vast, wealthy, influential international networks (in the case of, for example, various Christian or Christian adjacent sects) or entire nation states or multiple states (as in the case of Hinduism, the main sects of Islam, and Judaism).

Things became even more complicated when between 1999 and 2010 the Organization of the Islamic Conference, which eventually became the Organisation of Islamic Cooperation, managed to push through a number of non-binding resolutions forbidding “defamation of religion” through the UN.

Quite rightly a number of groups pushed back against what they saw as a de facto international anti-blasphemy law. These included religious groups fearing persecution, free-speech, human rights and civil liberties groups, and several secular democracies. The was particular concern that authoritarian theocratic states might use such resolutions as an endorsement of their human rights abuses.

After much back and forth, in March 2011 the HRC adopted Resolution 16/18, sponsored by Pakistan, which shifted emphasis from protecting religions to protecting religious individuals from discrimination, intolerance and violence. This was reaffirmed Resolution 19/8 in 2012 and Resolution 22/31. Arguably New Zealand already has laws against violence, incitement to violence, intolerance, and discrimination already within the Crimes Act (1961) and the Human Rights Act, though the latter isn’t sovereign law and Parliament isn’t bound by it.

Also that month the UNHRC accepted the 52 paragraphs of General Comment 34 on the ICCPP. Of the latter, paragraph 48 states:

Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26. Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.

New Zealand, for the record, only repealed Section 123 of the Crimes Act against “blasphemous libel” in 2019. You would think that General Comment 34 would be a fairly open and shut rejection of ambiguous hate speech laws protecting the religious, who would likely find lack of respect for their religion to constitute direct harm to themselves.

Those opposed to this view, however, will point to the United Nations General Assembly Report of the Special Rapporteur on the promotion and protection of the freedom of opinion and expression 2019, which notes that international (read “western”) standards ensure the protection against adverse action for most groups and that “Given the expansion of protection worldwide, the prohibition on incitement should be understood to apply to the broader categories now covered in international human rights law.”

This is more or less the position endorsed by Little in response to criticism by David Seymour, leader of the ACT party. Little stated: “He's got to explain why it is that it’s a criminal offence to say ‘let's kill at the Māoris’ but it's not a criminal offence to say ‘let's kill all the Jews and the Muslims’. And if his defence to that is to say ‘we should be allowed to say let's all the Māoris’, then that's on him.”

I agree that Seymour’s hard and fast fundamentalist approach to free speech is unworkable and problematic, but as incitement to violence is already covered by the Crimes Act, and as ethno-religions the extant Human Rights law also probably applies to Jews and Muslims if tested, it is difficult to see what Little’s point is.

As I have said above, Article 20 is rarely endorsed by domestic laws verbatim and prohibition of incitement is already extant in New Zealand law. There is no reason for the protections granted ethnic groups to extended to religious ones. New Zealand is not a country where any religious group faces an existential threat of the sort that would warrant it. Unlike other categories like ethnicity, gender or sexual orientation, religion is ultimately a choice, not an arbitrary condition.

Many forms of “hate speech” – a view endorsed by the ARTICLE 19 group and implied by General Comment 34 – that while a serious matter for concern, simply do not invoke the degree of serious set out in Article 20, and that only the specific forms of expression outlined in Article 20 should be subject to legal prohibition, which they already are in New Zealand.

Any legislation against other forms of discriminatory or derogatory speech must held in strict conformity with Article 19, otherwise there is a danger of overreach through overly broad application of “incitement” laws. This has been observed in Germany and Denmark where such laws were deployed against Holocaust deniers. Obviously, such speech is deeply offensive, causes hurt, and could indeed be described as inflammatory, but it is dubious whether Holocaust denial breaches Article 20 and could not be dealt with by other, more appropriate legal and political options.

The proposed law change is a hasty response to a terrible tragedy that understandably focuses on harassment of New Zealand’s Muslim community, but totally ignores the broader implications for other contexts.

“Taking the piss” is a fundamental aspect of New Zealand’s culture. Would New Zealanders under such a law still be able to mock someone like Israel Folau for their condemnation of “Drunks, Homosexuals, Adulterers, Liars, Fornicators, Thieves, Atheists, [and] Idolators” as Folau did on Instagram in 2019? Would New Zealanders remain at liberty to satirise Brian Tamaki for his pronouncements, aggressive tithing and quasi-fascistic posturing?

Hanna Arendt pointed out that rights only exist insofar as the state is willing to protect them. The idea of universal rights is something of a comforting illusion. In a legislative framework rights always have to be negotiated. Expanding the rights of one group inevitably means restricting the rights of another. Anyone who suggests otherwise is an idealistic idiot. Affording extended rights to the religious necessitates the reduction of the rights of groups traditionally oppressed by religion to express themselves. It is a double-edged sword, and it hangs like that of Damocles over a number of vulnerable groups targeted by religious groups, who might very well find constrained their ability to defend themselves or express their pain.

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