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Chris Trotter asks whether the Government’s proposed 'cure for hate speech is worse than the complaint

Chris Trotter asks whether the Government’s proposed 'cure for hate speech is worse than the complaint

By Chris Trotter*

If any nation understands the relationship between “Hate Speech” and “Hate Crime” it is the German nation. Not only is Germany the nation which gave birth to Nazism, but it is also the nation which gave birth to the constitutional protections which allowed Nazism to destroy Germany’s fledgling democracy.

The constitution of the Weimar Republic – fragile successor to the defeated German Empire of Kaiser Wilhelm II – was the most progressive of its time. It conferred upon the German people civil and political rights as new as they were exhilarating. Foremost among these was that capstone of democracy, Freedom of Expression. Without this crucial freedom, all of Democracy’s other rights and freedoms are swiftly rendered illusory.

But, as the excellent German documentary series The Abyss: Rise and Fall of the Nazis, makes clear, the Weimar constitution’s unconditional guarantee of Freedom of Expression allowed the virulently anti-Semitic newspaper, Der Stürmer, to go on pumping its poison into the German body-politic. Tellingly, at the post-war Nuremberg Trials the editor of Der Stürmer, Julius Streicher, was charged with being an accessory to the mass murder of European Jewry. For his relentless incitement of hatred against the Jews, Streicher was found guilty of aiding and abetting the Holocaust and condemned to death. He was hanged on 16 October 1946.

The judgement of the international jurists at Nuremberg was clear: hate speech leads to hate crimes. To incite hatred is to invite violence – and worse. The constitution of the German Federal Republic (modern-day Germany) reflects the lessons learned from the tragic fate of Weimar. Germany’s “basic law” makes it clear that democratic rights and freedoms do not include the right to turn democracy against itself.

The question which New Zealanders must now answer is whether or not they confront a situation which in any serious respect resembles that of the doomed Weimar Republic? Is there a political force at work in New Zealand society remotely similar to Adolf Hitler’s Nazi Party? And, if such a force does exist, is it reasonable to characterise its protagonists as an existential threat to this country’s democratic institutions?

The answer to all of those questions is an unequivocal “No.” Nevertheless, the Labour Government is getting ready to pass legislation which will define more clearly – and punish more harshly – “hate speech”. It is doing so at the behest of the Royal Commission of Inquiry in to the Christchurch Attacks of 15 March 2019. In the name of strengthening “social cohesion” – and thereby lessening the likelihood of future attacks – the Commissioners concluded that some revision of our current legal protections against hate speech was in order.

Before examining the Government’s proposed changes, it is important to determine whether the “Lone Wolf” Australian-born terrorist who carried out the Christchurch attacks did so as a consequence of absorbing hate speech uttered and/or published by New Zealanders on New Zealand soil. Or, more bluntly, was Brenton Tarrant incited to murder 51 people by a New Zealand variant of Der Stürmer? Once again, the answer is unequivocal: “No, he was not.”

Tarrant’s inspiration came from much further afield. He was a disciple of the Norwegian Lone Wolf terrorist Anders Breivik. He spent years visiting battlefields in southern and central Europe where Christian and Ottoman armies clashed more than 500 years ago. He participated in chat-rooms on the notorious US-based “4-Chan” social media platform. His political focus was upon events unfolding in the Northern – not the Southern Hemisphere.

Indeed, Tarrant chose New Zealand as the location for his attack on Islam precisely because it was so blessedly free of the unbridled hate speech that so inflamed the political discourse in other jurisdictions – along with the protections erected to preserve their citizens from its consequences.

Prior to Tarrant’s deadly attack, New Zealand had not experienced a fatal terrorist incident since the mid-1980s, firstly with the death of Ernie Abbott in the Wellington Trades Hall bombing of 1984, and then the death of Fernando Pereira in the 1985 French state sponsored terrorism of the Rainbow Warrior bombing. Tarrant felt able to hide in plain sight in this country, confident that until he acted, he would not be detected. He wasn’t wrong.

All of which is not to suggest that New Zealand is entirely free of racial and religious prejudice and hatred. Verbal and physical assaults on people of colour and adherents of non-Christian religions are, sadly, all-too-common here. The point remains, however, that the level of this verbal and physical harassment was low enough for Tarrant’s attack to fall upon New Zealand like a bolt from the blue. No one anticipated anything like the horror and mayhem of the 15 March 2019 mosque shootings.

Why, then, did the Royal Commission feel moved to recommend a strengthening of our hate speech legislation? Did they not consider our democratic institutions robust enough to meet the outpouring of hatemongers head-on? Did they not regard the power of our news media to name and shame extremists of all kinds as a sufficient bulwark against the rise of New Zealand Nazi Party and/or the publication of a Der Stürmer? After all, when Far-Right and White Supremacist groups have shown themselves on the streets, the only impression they have left is one of profound weakness.

Although not yet “official”, the following wording would appear to be the Government’s preferred alternative to the existing legal prohibition against inciting racial hatred, it reads:

the incitement of disharmony, based on an intent to stir up, maintain or normalise hatred, through threatening, abusive or insulting communications.

It is further reported that legislative protection will be extended to target hate speech directed at religious belief and gender identification. Those found guilty of hate speech will be liable for a prison sentence not exceeding three years.

What sort of speech will it take to convince a jury of ordinary New Zealanders to send a fellow citizen to jail? One suspects that hatred of the sort perfected by Julius Streicher in Der Stürmer will be required to secure a conviction. Speech falling short of that measure will almost certainly result in acquittal. In the process of sorting out where the cut-off point lies (which is unlikely to be very far from where it is currently) real damage could end up being done to New Zealand democracy.

The framers of the Weimar constitution weren’t wrong to hold up Freedom of Expression as the capstone of democracy. They could not have foreseen the intensity of the hatred that fuelled the rise of the Nazis – hatred which the victors of World War I did so much to feed. Nor should we condemn the framers of Germany’s present constitution for attempting to learn the lessons of their country’s awful history. The problem our government faces, however, is that New Zealand is not Germany. Our political history contains nothing even remotely resembling the Nazi Party – or Der Stürmer.

And that’s the rub – isn’t it? Police officers knocking on New Zealanders’ doors on account of what they might think, or what they have said, is more likely to make the rest of us think we are living in Nazi Germany – not drawing lessons from it. The disharmony such heavy-handed state intrusion is bound to create will exceed by a wide margin the disharmony it is attempting to prevent.


*Chris Trotter has been writing and commenting professionally about New Zealand politics for more than 30 years. He writes a weekly column for interest.co.nz. His work may also be found at http://bowalleyroad.blogspot.com.

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40 Comments

""Verbal and physical assaults on people of colour and adherents of non-Christian religions"" implies Christians are safe. I suspect some Jehovah Witnesses may experience verbal assaults. I suspect people of no-colour are verbally assaulted for their lack of colour in certain circumstances.
It would be more accurate to write "People experience verbal and physical assaults on grounds of their appearance and their religious beliefs".

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I will never understand the meaning of people of color (me being one of them). That implies that white people are colorless like some gigantic walking and talking translucent jelly fish.

The whole terminology is laced with errors. Black people are not black, white people are not white, and neither black nor white are technically colours, they are shades. And of course, we're all just different shades depending on our melanin levels. So confuse.

It's a term from the current intelligentsia to collectivise a large group of people into their new proletariat. It's a convenient and easy way for them to declare a group of people as oppressed so they can make their moral argument. I don't see how you could use this term and not be supporting the oppressed/oppressors dynamic that requires a cultural revolution of some sort to solve.
This is an American term anyway, we don't have to use it here.

Social and cultural change can be insidious. It can occur in such a way that many are ignorant of it until it hits them between the eyes, and 'tribal hatred' (of whatever basis) can easily be one of these. For all that the Christchurch killer did, he actually gave us significantly more substance to be concerned about Australians, considering their history with NZ than with any religious or cultural group in NZ! For all that we like to celebrate our diversity and acceptance of others, we are still human and subject to the infallibilities that human beings are guilty of. But we need to understand the origins of these divisions.

History teaches us that these divisions are rooted in inequities, social and economic. CT sites German history, where the divisions grew from the ravages of the Treaty of Versailles after WW 1. But by giving the ordinary people a spectre that walked amongst them, the Nazi Government was able to both generate approval and gain support for its actions from the populace. Any Government today who refuses to take action to address social and economic inequities, runs the risk of fundamentally building the basis for these types of hatred in our society. In NZ I suggest the early vestiges of this are already easily visible.

The unspoken hatred towards certain groups but never expressed... Society's genuine hatred for victims of misfortune, e.g. young women/trans in Hunters Corner who are forced to perform sex acts to pay rent.. Surely it must be hatred that prevents us from putting forward an effective intervention and allows us to turn a blind eye to their suffering.

Is it hatred or misplaced self preservation/security? In many occasions it seems that some see the allocation of resources to address inequities as a threat to their own security, perhaps through status. The old"I'm all right Jack" position. Our politicians appear to be afflicted with this disease. Yet history teaches us that society is stronger when we look after all in it.

Chris Trotter is correct. I assume NZ law is roughly the same as traditional British law where actions likely to provoke crime are illegal with my favourite example being carrying a Union Jack to a Celtic - Rangers (auld firm) soccer match. The police and magistrates assume the national flag is not being carried out of patriotism but because you are looking to start an affray. That is sufficient law to handle anti-Semitic or anti-Muslim activity likely to lead to criminal behaviour.

That's where the law falls short. This definition would also mean, as an example, if a Protestant walked by a group of Catholics, then the Protestant would be 'looking to start an affray.' Clearly a ridiculous notion.

I have worn my All Blacks jacket and scarf to Principality Stadium to be surrounded by thousands of Welsh fans. All of which, were in good spirits, and welcoming, even though they lost.

Maybe these hate laws are only for soccer fans.

No one seems to clearly define hate speech, which to me is something that would insight violence on those that the hate is being directed. It's not to give an excuse for those speaking their opinion (right or wrong) to be physically attacked by those that don't like that opinion. Violence against the person doing the talking cannot be seen as that people, by definition, speaking hate speech. Otherwise, any person that said anything and then was attacked would be seen as being in the wrong.

My point being that what is very difficult to define in law may be easy to understand in reality. If there was a long history of Welsh and Kiwi rugby fans fighting violently and attacking random passer-by's because of their scarves then you wearing your All Blacks jacket could depending on the circumstance be considered threatening behaviour.
A similar use of common sense is to permit protesting against abortion clinics but to keep the protestors on the other side of the road - that is able to make their protest heard by whoever enters the clinic but not leading to the violence that might occur if the protestors blocked the doorway.

Maybe we should drop the OCR.

Don't give Adrian ideas.

hate speech!

not if you're a house owner.

It's love speech!

Many recent comments on this website - say towards property investors - could be regarded as hate speech under the new legislation, which is ridiculous. I hope people wake up to realise how dangerous this legislation could be.

At least three politely written letters in today's NZ Herald are clearly written by haters. One expressing disgust at the overseas transport of live cows is written by an author horrified by killing calves and presumably eating meat. Another hates members of the public who are unconcerned about climate change and its effects on our grandchildren.
Those who change society start by hating the status quo. They were radicals who fought for highly unpopular policies such as votes for women or abolishing slavery. Hate is an honest emotion. Breaking the law to get publicity is acceptable if the perpetrators are willing to be arrested and sentenced (eg Greenpeace and suffragettes).

True but as some found out there is a big difference between protesting, and getting arrested, by climbing a ship’s mast in NZ to doing that in Russia. That is why, could we say, soft targets are preferred for obvious reasons. Yet those harder targets are more often than not the greater perpetrators and much more deserving the protest. But can only agree protest is a basic right in any part of the free world, and especially as Gandhi evidenced with the power of passive resistance and so too, to a certain extent, Mandela in locations not that free at all.

He/She/Ze with the biggest grievance and government lobby wins the treats

Dangerous and a slippery slope. I fear it will depend on who/what the target is as to whether its hate speech or a noble act of protest, and the ideologies of those making that determination.

Slippery indeed, convoluted too and of unpredictable outcomes and justice. For instance Red Sunday 1905 St Petersburg. The Chicago 7 trial ex 1968 riots. The former catalysed the eventual destruction of a monarchy. The latter spotlighted failings of the USA judiciary and created the road for public opinion to eventually force the withdrawal from Vietnam. Took time but on that basis you can argue that the ideology for each event was supported by and carried its own natural justice. Perhaps that is the key element for success.

"Did they (the Royal Commission) not regard the power of our news media to name and shame extremists of all kinds"
The big issue is that with the internet the power of the MSM has been severely eroded; some will see this as a good thing others not. However their power basis including to name and shame extremists and report facts has been severely eroded.
The internet has meant that hate speech, fake news and conspiracy theorists now have a far bigger and more accessible audience.
One can justifiably criticise the conservatism of the MSM however they effectively acted as a de facto censors and that has changed. Trump's lies are a clear case of this - much of what he tweeted to a mass audience would never have been previously reported by the MSM.

The MSM are in death spiral. Almost all of them have chosen (maintaining) their own profits over journalism and reporting (they are private companies you can't blame them). This effects their long term paying readers and viewer number further degrading their profitability. I don't think a single media company has survived the last two decades with their integrity fully intact, the model is no longer viable and it can't be subsidised as they would no longer be independent.
CNN is worst offender (you would have to believe the Project Veritas stuff is fake to take them seriously again) and our own Stuff who openly admit they accept donations for partisan political advocacy. You are defiantly right the MSM don't have the credibility to counter hate speech.

Exactly, the availability to individuals of electronic mechanisms to propagate and broadcast any sort of bumf or worse, has exploded beyond reason and too often far beyond any control, and it is an instantaneous connection to every point of the compass at any moment day and night.

This has always been the case, CNN pushed the WMDs story with no evidence or critical examination of facts back in early 2000. It's been known that big media distorts reality for several decades and probably longer. The internet is new, it's a little wild but we will grow to deal with more information and that will end up being a good thing. The central authority having an effective duopoly on information propagation is a much bigger risk than some fake news and conspiracies about lizard people.

All western religions (and by that I mean from India to the west) are basically hate speech as they have to denounce those other false faiths. This is on top of the fact that any religion, by design and as one of its primary foundations, is hate speech against the arrogant sinners who do not believe in any creator story.
It is true that racial (or national or tribal of whatever) supremacism is a very obvious potential source of real and dangerous hate. But this as equally applies to religions. Yet you see those who are staunch blockers of racialism bend any other way to accommodate clearly hateful religion practices of Judaism, Christianity and Islam. Hinduism (with its horrendous cast system) does not look any better to be honest.

Chris, I've been lately watching all those fascinating Sky documentaries of WW I and WW II and gleaned all sorts of information I hadn't come across before. The one piece I was most struct by was that Kaiser Wilhelm II was the British Queen Victoria's grandson and he had a huge chip on his shoulder because he had suffered a deformed shoulder during birth. He fanatically took to all things military to compensate for this disability and was seething with anger at his mother who gave him this defect. It seems now that if you can attribute WW I
to any one person it was Kaiser Wilhelm II born of a German royal family whose relatives also reigned over Britain and other European countries. Just think of all those tens of millions who died because of one Royal's simmering personal grievance! I would put Wilhelm II in the same category as Hitler.
Over the centuries unelected royalty in Europe has caused death and destruction on a mega-scale. And not just Europe , look at the likes of Emperor Hirohito in Japan.
Thankfully today, the British Royal Family have been reduced to the level of the TV soap opera stars in "Coronation Street" et al. They are mere celebrity entertainers who keep the women's magazine industry afloat. I certainly don't respect them as being somehow better than anybody else; some of them in fact are buffoons.

Yes the Kaiser has been overlooked largely for the utter mayhem and misery he enabled. An utter ruthless monarchical fanatic who abused the social hierarchical system then in Germany, to his own will and fantasies. The fact of how he did this early on, to overturn and sideline Bismarck, is a fascinating example of warning signs of things to come not being acknowledged. And yes not that many years later, a virtual replay with Adolf.

The best explanation of why free speech is important - from Rowan Atkinson
https://www.youtube.com/watch?v=BiqDZlAZygU

Free speech is a complex issue and I'm not sure using Germany is a great example. Doesn't matter what comes out of someone's mouth it still requires the masses to take it up rather than to just ignore it. Germany became the perfect storm and Iooking at the extremist groups still in existence there you can see it wouldn't take that much to have the same thing all over again in Europe. Limiting freedom of speech is a very dangerous path to go down.

The definition will not do. Any radical wanting to change society will be guilty. This includes religious teachers who preach that non-believers will go to hell; socialists arguing that every billionaire is leaving thousands of children in poverty; vegans explaining how every mammal by definition has mother love so every cow or sow that has its babies taken is being tortured; every anti-abortion campaigner saying a foetus is a human life.
""the incitement of disharmony, based on an intent to stir up, maintain or normalise hatred, through threatening, abusive or insulting communications""
Of course they want disharmony, they want to stir up and maintain and normalise hatred and they must be permitted to do so. They are entitled to be abusive and insulting. So all that is left is the one word: 'threatening'. Does this need another law?

Chris's claim that "The Weimar constitution’s unconditional guarantee of Freedom of Expression allowed the virulently anti-Semitic newspaper, Der Stürmer, to go on pumping its poison into the German body-politic..." isn't the whole story.
The German Criminal Code Nazi meant leaders including Joseph Goebbels and Julius Streicher, as well as hundreds of other Nazi agitators of the 1920s, were found guilty on numerous occasions of
violating that code — as this paper makes clear:
https://www.bjpa.org/content/upload/bjpa/4_an/4_Anti-Semitism_September-...
"During the period in which they carried on their successful crusade to make anti-Semitism a basic state policy, the German constitution contained guaranties of equality for all Germans; the Criminal Code provided punishment for defamation, incitement to class violence and insults to religious communities. There was also a large Jewish organization which maintained legal offices throughout the country for the purpose of instituting prosecutions to vindicate the legal rights of Jews."
Goebbels and Streicher spent brief times in prison for their anti-Semitic views. Mostly, their prosecution brought attention to their cause and made them martyrs for it.

Nazis were not just in jail for what they said. A good deal of their early funding came basically from bank robberies and similar crimes. They were in fact outright gangsters, akin to anything in say Chicago at the time, a lot of political rivals did not hesitate to call them as such, probably regretted that some years later though.

If any nation understands the relationship between “Hate Speech” and “Hate Crime” and one more, "Hate Thinking!"
Helen Clarks Social Engineering programme MK11.

Millennials have been recruited and are now receiving their reward. A few hundred million dollars have been allocated to 'Mental Health' to start the reprogramming program, just in time for the next election to then set them loose again. Jacindamania is a real mental disorder.

There is a certain religious ‘book’ that encourages all sorts of horrendous violent acts against those that don’t follow said ‘Book’. One could describe it as a manifest of hate speech. It certainly fits the criteria but of course it is on the ‘do not mention it or you will be labelled as a hater’ list. Double standards abound.

Oh No! Not Dr Seuss! :)

I agree this really does look just like bad law on the way here.
The people that are serious about this stuff aren't doing it under their own names on Facebook.
They are doing it hidden away on 4chan etc, on encrypted channels, and in the dark web.
The time and effort would be much better served looking into those areas, than locking uncle Bill in the slammer for a few years basically just because he's making bigoted comments on Facebook.
I thought we were trying to stop locking people in the slammer in NZ for inconsequential things? this flies in the face of that.

ACT wrote to Minister Faafoi about it. Quite a good essay on why it's the wrong approach:
https://www.scribd.com/document/503514381/ACT-letter-to-Faafoi#page=1&fu...

Another edict from Jacinda on high to distract the unwashed. Getting people in a twist to point fingers at each other and distract them from the fact that our country is crumbling from poor governance over it's core foundations - health, education, housing and poverty to name a few. A genius master stroke to stuff Cindy's [hate speech] resume, that will surely be noticed by the UN. I'm cynically very impressed.

As an anecdotal side note, I'm on holiday up north, and I've never seen beggars on any scale in NZ like I have on this trip. 10 years ago, beggars in NZ were basically non-existent. Today they're everywhere and it's heart breaking.

The deadly, malignant CV19 hate to say, has paradoxically been something of a lifesaver for this government hasn’t it. Great big blooming daily smokescreen.

Meanwhile some people that go as far as assaulting police or committing firearms offences, don't even have to go to court now, but are held at a special hui where they get no criminal record at all.
But say a few cross words in the heat of the moment on Facebook, and you could be locked up for 3 years, this seems pretty pathetic to me, and very very inconsistent. I thought actions spoke louder than words, not according to these law changes.
https://www.stuff.co.nz/national/crime/300277580/people-who-assault-poli...