Free speech is a people’s frank confession to itself

by Daphna Whitmore

The government is devising new “Hate Speech” laws to save New Zealand from something that has not been defined. When asked what is hate speech the Prime Minister replied “You know it when you see it”. The Human Rights Commission is supporting the law change and sees it as “a balancing of rights”. In a debate I took part in with the Chief Human Rights Commissioner on the subject I argued that hate speech laws are ultimately anti-working class. I expand on that in the discussion below.

Woke-left activists have joined the state in backing speech restrictions. This is a complete reversal of the classical left position which was very clear that limiting speech does not serve the working class or any oppressed group or disadvantaged minority. Yet the woke-left embracing censorship has become so common it is now the dominant position. They view censorship as a means of protecting people against emotional harm caused by racism, misogyny, homophobia and an array of new “phobias”. They believe that speech restrictions protect the dignity of groups they consider powerless. This woke worldview sees social problems arising from words and manifesting as psychological problems.

The woke want many more social restrictions, such as trigger warnings and safe spaces. They have also embraced cancel culture in the form of public shaming and harassment for unfashionable opinions. They view the working class as meek and defenceless, not a force that could change society. This patronising soft bigotry couldn’t be further from Karl Marx’s view of the unified working class as the agent of change with enormous latent power.

Free speech is a core Enlightenment value, and the classical left recognised these values as principles that needed to be defended. The first 10 pages of the 40-page Communist Manifesto are a tribute to the Enlightenment.  Marx, in an essay in 1842 on press freedom, asserted that controls on speech hold back emancipation and there should be no limits on viewpoints.

Like Milton and Locke before him, Marx saw free speech not just as one of many rights, but as a foundational right. Intellectual freedom depended on it and he took an absolutist position opposing the ban of conservative-monarchist-clerical newspapers as vigorously as he opposed the banning of radical progressive papers. He was confident that in the struggle of freely competing ideas the better ideas would win out.

Marx recognised that an open and free press doesn’t guarantee freedom, but it is vital for democracy. He wanted the free speech enjoyed by the powerful to be extended to the masses and for them to have the freedom to challenge the powerful. When free speech can be stifled the state always wins. Marx noted that in a censorship society the state has freedom of the press for itself. The freedom enjoyed by the state should be a universal right.

The radical movements from well before the Enlightenment and onwards were for universalism. These movements shaped the modern world. As Kenan Malik has pointed out, “from the almost-forgotten but hugely important Haitian Revolution of 1791, to the anti-colonial and anti-imperialist struggles of the twentieth century to the movement for women’s suffrage to the battles for gay rights, indeed to the struggle against apartheid” universalism was the driving principle. Malik – who is an unequivocal defender of free speech – notes: “Today, the relationship between radicalism and universalism is very different. Radicals often decry universalism as a ‘Eurocentric’ project, a viewpoint that is itself imbricated with the poison of racism, chauvinism and particularism.”

The woke have little interest in fighting class exploitation. Ironically, while they agitate for an end to prisons (without really addressing how to deal with dangerously violent antisocial people), they are cheerleading for the state to have its power extended to punish speech that is offensive to them. They lack the foresight to see the state can then punish any speech it may choose over time. 

In contrast to the woke, ordinary people distrust giving the state the power to police thought and speech. They know that laws invariably target the working class, not the elites.

What speech these new laws would capture remains a mystery It’s not just Jacinda Ardern who was unable to say what hate speech is, the definition of hate speech is unknown and ambiguous and the European Court of Human Rights and UNESCO concede that hate speech cannot be meaningfully defined.

It is very hard to design a law to protect minorities that doesn’t turn into a double-edged sword. It is often minorities themselves who end up being the targets of hate-speech prosecutions — such as gay people who are attacking religious groups who are attacking them.

Even if speech restrictions could be neatly applied to just very extreme forms of speech the moment you limit free speech it is not free speech. 

Such laws are prone to “mission creep”. This is evident in Europe where hate speech laws are common and a wide range of people are being caught in the net. In 2005 Muslims in Denmark called for hate speech charges against the publication of cartoons of the Prophet Muhammad, now hate speech laws are being used there against Muslims. In Sweden an artist was sent to jail for posters with caricatures of prominent black Swedes. The gallery owner was convicted too. In Britain hate speech laws have been used to convict both a religious campaigner holding up a sign condemning homosexuality as a sin, and an atheist campaigner who left “offensive” caricatures in an airport prayer room. In France there have been convictions against people who support the campaign to boycott Israel. Critics have noted that under a strict application of the law, campaigns to boycott South Africa’s former apartheid regime would have been liable to prosecution.

It’s not the ruling elites being caught up in these speech restrictions. There is also no evidence that hate speech laws reduce bigotry. What’s more, bigoted speech doesn’t automatically cause bigotry, often it will galvanise people against the abhorrent view. 

Standing up for the speech rights of repellent figures is not a case of being complicit, it is because it is better such individuals be challenged and shown, if possible, how their prejudice is fundamentally irrational.

Even if the bar is set high new hate speech laws signal to the police that the government wants more prosecutions. This has a chilling effect on speech and the possibility of legal action can be very intimidating.  Already there has been a case where police gave a verbal warning to Christians preaching outside a gay nightclub in Auckland. The police will face pressure to prosecute people with unpopular views.

It is also recognised that hate speech trials often backfire and create martyrs as the content of the speech is given a very public platform in court, amplifying the very message that is deemed hate speech.

Hate speech laws are subjective and wide open to collateral damage. This isn’t a balancing of rights, it is a departure from the law punishing actions, and instead, punishing speech.

There is a crucial problem with hate speech laws – they focus on language as if words themselves oppress people. In an article back in 1995, Phillip Ferguson pointed out “In reality, this is politics as social etiquette.  Like the snobs concerned with the positioning of cutlery and other table manners, PC professionals want people to mind their Ps and Qs and never mind the real causes of racial and sexual inequality.  (Interestingly, class inequality never seems to crop up.  The working class is generally seen as the source of all the most backward views in society and beyond PC redemption, a fact for which many workers might be grateful.)”

No country that has hate speech laws has shown them to be effective. The Washington-based Pew Research Centre does surveys across countries and it has found that religious intolerance and the development of the far right has increased in Europe where there are hate speech laws. Yet in the US, which still has the First Amendment speech protection, religious intolerance has been declining. There is no evidence that censorship in the style of hate speech laws leads to less racism and greater ethnic harmony.

Free speech will always serve the cause of civil rights more effectively than hate-speech laws.

One of the best defences of free speech is from Marx (1842) “The free press is the ubiquitous vigilant eye of a people’s soul, the embodiment of a people’s faith in itself, the eloquent link that connects the individual with the state and the world, the embodied culture that transforms material struggles into intellectual struggles and idealises their crude material form. It is a people’s frank confession to itself… It is the spiritual mirror in which a people can see itself, and self-examination is the first condition of wisdom”. A left worthy of the name must make free speech a top priority.