NZ Skeptics Articles

A Skeptics' Guide to Free Speech

Colin GavaghanCarol Jess - 1 February 2019

The ‘free speech’ debate is not a new one for NZ. But the past couple of years have certainly brought it into the spotlight. The screening of the anti-vaxxer film Vaxxed, the racist cartoons of Al Nisbet, the visits of the controversial Canadians Southern and Molyneux – the contentious case studies seem just to keep on coming. Magnified through the lens of social media, these have broadened the discussion about important matters, but have also risked polarisation and at times confusion, as half-truths and memes have sometimes replaced informed discussion.

In this article, we try to provide some information about the status of the ‘right to free speech’ in New Zealand, and to dispel some of the myths and misunderstandings that have sometimes surrounded it.

What does the law say?

When we talk about ‘free speech’ in New Zealand, we’re really talking about a bundle of different rights and protections. Most obviously, there’s the right to free expression within the Bill of Rights Act (BORA). But there are other protections available that may potentially be just as important.

We’ll start, though, with the BORA. Section 14 states that “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.”

Most obviously, this right limits the extent to which the Government or Parliament can restrict free expression. In common with others of the BORA rights, though, the free expression right isn’t absolute. That much should be fairly obvious when we think of laws against, say, blackmail, defamation or making threats.

When can Government override free expression? Section 5 of the Act provides for Justified limitations on rights: “rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” If you’re thinking this is pretty vague, you’re probably right, and decisions about whether particular limitations meet this test have to be determined on a case by case basis.

The s14 right is what lawyers call vertical and negative. Vertical means that the right applies against government and other public bodies, but not against our fellow citizens. Negative rights are concerned with preventing government doing things rather than requiring them to do anything. So, while the government or a local authority can’t stop you from exercising your free speech right (subject to the limitations discussed above), it isn’t required to provide you with a venue to exercise it either.

This is what Auckland Mayor Phil Goff seems to have had in mind when he said this about the Southern and Molyneux controversy: “Let me be very clear, the right to free speech does not mean the right to be provided with an Auckland Council platform for that speech.” If s14 was the only relevant piece of law in this area, he might well be right. The legal position, however (and with lawyers, there’s usually a “however”!) becomes less straightforward when we look to s19 - freedom from discrimination. This section then takes us to the Human Rights Act 1993, where the prohibited forms and grounds of discrimination are set out.

Among the contexts in which we are protected from discrimination is the provision of services (s.44). Unlike the “freedom of expression” provision, the anti-discrimination rights also have a degree of horizontal application. They don’t just apply to the Government or public bodies, but also to employers and service providers. This is the provision that would come into play if, say, a baker or a barman refused to serve someone on the basis of their ethnicity or sexual orientation.

What does that have to do with free speech though?

Well, amongst the other prohibited grounds listed in s21 is “political opinion.” We’re not allowed (subject to limited exceptions) to withhold services that we offer from someone because we don’t like their politics. So while it might be true that Auckland Council had no duty to provide a platform for anyone to speak, once it did so, it isn’t allowed to discriminate on political grounds about who gets to use it.

But how far does this go? Does it follow that, say, a council venue or a university is obliged to provide a platform for just any view, no matter how preposterous or lacking in value? Do flat earthers, Holocaust deniers and the like really get to use this right to demand a place at the table? What about the Vaxxed screening at Otago in 2017? Certainly, the University sought to defend its decision on the basis of respect for free speech. As a political statement, that may be fair enough. But what about the law?

This is one of those areas where the legal position just isn’t entirely clear. But it may be possible that something like a university could hold a line with regard to credibility and quality of a presentation. Refusing to provide a venue for something like Vaxxed because it is wholly devoid of scientific rigour may be a different thing from refusing it because we disapprove of its political message. This seems to be untested water for NZ courts, and of course, care would have to be taken to avoid using the quality argument as a mask for political discrimination.

From the other side

‘While Nazism and other reprehensible political theories have used the oxygen of free speech to spread, so have democracy, liberalism, trade unionism, and women’s suffrage.’ (Duncan Webb, There are many limits on free speech in New Zealand)

Media (social and mainstream) discussion of “free speech debate” has been unfortunate in several respects. The specifics of the recent cases that have captured so much attention have often seen the debate couched in terms of the “libertarian right” working to protect free speech from the “snowflake” or “regressive” left. Certainly, there is reason to believe that an array of right-wing provocateurs (alt and trad) have sought to frame the debate in just that way. And arguably, too many leftists and progressives have been drawn in by this lure.

But the history and importance of free speech goes beyond the very particular issues – often about race or gender – that have captured our recent attention . As Webb – an NZ lawyer and Labour MP – says, throughout history, progressive movements have often had to fight hardest to safeguard their right to express their view. And not uncommonly, it has been conservatives on the side of censorship. To consider just a few local examples:

• The activities of anti-war and Communist agitators during the Second World War, and of pro-union publications during the 1951 Waterfront Strike, were heavily censored by the NZ Government;

• During the 1980s and 1990s, a series of legal cases challenged the legality of gay erotica, previously subject to strict censorship rules;

• Three years ago, the major censorship talking point in NZ was the effort by Family First to ban Ted Dawe’s YA novel Into the River.

It would be a mistake, then, to allow the cases that come most readily to mind to define the entire issue. “Free speech” is not a convenient device dreamt up recently by those who want to spout racism. It is a long established, hard won right at the core of any healthy democracy. And given recent developments globally, it would seem rather complacent to assume that we’ll never again need it in the face of repressive and censorious government!

It may be, though, that the greatest threat to free speech for many of us in stable democracies now comes less from The State, and more from another party who has a great deal of power over us.

Big Government or Big Business

A commonly heard retort in the recent ‘free speech wars’ has been something like: ‘free speech doesn’t mean freedom from the consequences of your speech.’ Our response to that is: it depends which consequences you have in mind. It certainly doesn’t mean immunity from criticism – other people get free speech rights too! And sometimes, financial consequences might follow as well. When Israel Folau lost sponsorship deals over his anti-gay tweets, our sympathy was thin on the ground. After all, his ‘brand identity’ is precisely what generates those lucrative incomes in the first place, and if he chooses to sully that brand, he can hardly complain if some of those image-based income streams dry up.

But the threat of ‘consequences’ for speaking out can have a major chilling effect on any meaningful idea of free speech. For the majority of us, the most important economic relationship we have is that with our employer. While we might agree that certain constraints are reasonable within the workplace, there has been increasing concern about how far employers can exercise control over what we say in our own time.

Most of these policies are couched in terms of the employee’s common law obligation not to bring the employer into disrepute. It is accepted in law that if an employee’s words or actions outside the workplace can be seen to have had a connection to the employer and to have caused the employer harm, then disciplinary action, up to and including dismissal, can be justified.

In 2014, Rachel Llyleven “liked” two Facebook posts which were negative and derogatory about her employer Kidicorp Ltd. When Kidicorp found out, they dismissed her. This was found to be justified; anyone looking at the posts she had liked could not only see that she had done this, but when hovering over her name in the list, could see that she was also an employee of Kidicorp.

Karen Hammond’s case the following year went the other way. This case concerned the publication on a “Friends only” Facebook page of a cake, photographed at a private dinner party, decorated with obscenities about Hammond’s employer. The Human Rights Tribunal found that, in contacting other employers in the area to prevent the plaintiff from obtaining another job, Hammond’s bosses had gone too far.

Whether or not an employee’s freedom of expression can be constrained by the employer is, therefore, a finding of fact in all the circumstances of each case. These examples may seem fairly trivial. But it’s not hard to see how employer control over workers could become a major issue. In many US states, employers have considerable freedom to sack workers for expressing their political views.

Some takeaway points