Report by Daphna Whitmore
The growth of the Free Speech Union is remarkable. In just a few years it has grown to 72,000 registered supporters, 6,000 New Zealanders have donated to it, and more than 1000 people are members of its trade union arm.
The FSU put on a symposium and held its first AGM in Auckland on 5 November.
Jacob Mchangama was the keynote speaker. He is a Danish human rights lawyer and has just published a book Free Speech: A History from Socrates to Social Media, on the ongoing struggle for free speech. Much of Mchangama’s talk focused on the importance of free speech to minorities. Free Speech and equality are mutually reinforcing, he maintains.
The US is often seen as a bastion of free speech as it has a Constitution which protects those rights. Yet despite the 1st Amendment, speech rights were not always upheld. Mchangama pointed to the fight against slavery where in a number of states there was a death penalty for spreading abolitionist ideas. Abolitionists relied forcefully on free speech to make their case.
The struggle continued in the 20th century. During WW1 in the US it was illegal to criticise involvement in the war. The civil rights movement had to fight for freedom of expression too and won a number of landmark cases that dramatically expanded speech rights and made it lawful to peacefully protest against racial segregation. “Without freedom of speech and the right to dissent the civil rights movement would have been a bird without wings”, said John Lewis, a prominent US civil rights leader. He had been arrested multiple times in Texas for holding a sign saying “One man, one vote”.
Similarly, the struggle against British colonialism in India attested to the importance of speech rights. The anti-colonial movement fought against sedition laws. “Free speech are the lungs of liberty” declared Gandhi.
Mchangama also laid out the case of the Weimar Republic where speech restrictions failed to stop the rise of Nazism. They banned Nazis and communists from appearing on radio, and some newspapers had the right to ban “disinformation”. All this turned out to be a blueprint for censorship which was immediately used by the Nazis when they came to power. With the stroke of a pen the Nazis banned all opposition parties. After WW2 fascist parties were banned in the USSR but the provision was also used in bad faith to ban opposition parties. These rules were then adopted in international human rights law. Islamic states too emulated this and demanded provisions that banned criticism of religion.
Mchangama’s historical examples show how often speech restrictions and curbs on civil rights can be weaponised to attack the very people and minorities they are supposed to protect. Orwell said ultimately it is civic commitment to free speech that will ensure its survival. We need to use free speech to show solidarity with minorities when they are under attack rather than appeal to the authority of the state. When minorities try to restrict free speech they often soon become the target rather than the beneficiary of speech restrictions. Mchangama warns of unintended consequences and the risk of making martyrs out of monsters with hate speech laws.
There was a panel discussion on free speech and the defense of minorities. Panelists were asked “do we need to limit what we can say for the purpose of protecting minorities?” The FSU had invited proponents of hate speech laws to speak at the symposium but none took up the offer.
Juliet Moses, the spokesperson for the New Zealand Jewish Council, said we need to assume people proposing these laws are acting in good faith, and acknowledge there is real harm from speech. Judaism has a very strong tradition of debate, dissent, questioning, and scholarship she said. As the old joke goes, “Two Jews, three opinions”. Jewish people have always thrived in liberal societies, and where there is not freedom Jews do not thrive. Anti-Semitism is a conspiracy theory that Jews have outsize power, that Jews control the media, governments and banks. So suppressing speech becomes self-affirming of the conspiracy that “Jews are in control”. She noted too that minorities often suffer as criminal laws are more like to be unfairly applied against them. So why should we believe that hate speech laws would not also be used disproportionately against minorities?
Also on the panel was ACT MP Karen Chhour. She had recently very publicly faced insulting comments that she wasn’t a “real” Maori. She argued that she didn’t need the person who insulted her to be criminalised. What happened was people came to her defense which she found very reassuring. She urged people to defend free and open debate. Who gets to decide what is hate speech, and who defines what is misinformation, she asked? Chhour noted that trying to make legal consequences is difficult because you have to prove intent.
Dr David Brommel a Victoria University lecturer and an author on free speech was another panel speaker. He spoke of how today so much emphasis is on minority and majority social groups, yet majorities and minorites are not fixed social groups. They are shifting constellations of ideas, beliefs and values, and we should remember that social groups include minority opinions.
Another panel discussed how we can create a culture of free speech in New Zealand.
Dr Paul Moon, Professor of History at Auckland University of Technology, gave examples where free speech had been essential in New Zealand, such as the women’s struggle for the vote, and with homosexual law reform, and the movement to make New Zealand a nuclear free zone. He said hate speech can’t be defined in a precise legal way, so you cannot know what is the point where you’ve crossed the line into illegality. So people then opt to not say anything. These laws end up being about controlling speech. In Britain there have been thousands and thousands of people questioned by police for statements that are still legal in New Zealand.
Dr Michael Johnson from the NZ Initiative talked about the university being the nerve centre of free speech. It is the right and duty of academics to speak their minds and they have a central role in maintaining democracy and trying to get to a better understanding of the world. Key to that is free debate. Free speech doesn’t come naturally to humans as we are quite hierarchical, have cognitive biases, and there is no formula to protect open society. He argued we need to keep defending free speech, it is the antidote to free speech entropy.
Dr Ananish Chaudhuri, Professor of Experimental Economics at Auckland University, discussed how Covid restrictions had been extended to very undemocratic measures such as the suspension of parliament. Hate speech has little to do with hate and a lot to do with speech, he said. Hate Speech laws are brought in by administrations when they start to lose popular support. He spoke of how a clash of economic interests happened with globalisation which lifted millions out of poverty in Bangladesh, for instance, and vastly enriched the 1 percent, but at the same time the middle layer has been hollowed out in the West. These are dispossessed who comprised many of the protesters who camped outside parliament and were ignored and disparaged by the government.
Paul Goldsmith National MP and spokesperson for Justice said we need champions of free speech throughout society. In his experience in the 1990s when he studied history at Auckland University it was already an environment that was intolerant of different opinions. The Prime Minister would rather talk about hate speech rather than housing and the cost of living, he said. Statements from the audience showed that there was not a lot of confidence that a National government could be relied on to defend free speech.
The symposium was followed by the inaugural AGM. The FSU chair Jordan Williams spoke of the union defending workers’ rights to speak freely and not be a servant to the employer 24/7. The work of the FSU is not just a legal fight it is a cultural one where more and more often the fight is occurring with employers. If you want to say something out of work hours, or want to say something silly on your social media it is your right, he said. That is a fight that the trade union movement has historically made and that is one of the reasons the FSU became a registered union.