There seems to be an ambivalence in New Zealand about freedom of expression.

Although the right to communicate and receive information is guaranteed by s 14 of the New Zealand Bill of Rights Act 1990, the exercise of that right in certain circumstances is questioned.

Indeed, there seems to be a shift towards banning or censoring some manifestations of expression. In this piece I outline the approach that should be adopted to controversial speech and the rare circumstances in which censorship – an extreme remedy – should be contemplated.

The approach I have developed owes much to the material in Professor Nadine Strossen’s excellent book Hate: Why We Should Resist It With Free Speech Not Censorship.

The approach

There are two major principles that must guide an assessment of whether an expression should be stifled, censored or punished.

These are known as the emergency and viewpoint neutrality principles. They have developed in the United States but can operate as useful guidelines for an approach to applying the freedom of expression guarantees in the New Zealand Bill of Rights Act.

As freedom of expression jurisprudence developed in the United States of America, the Supreme Court held that a government could punish speech based on a feared “bad” or “harmful” tendency. This was based on a vague, general fear that the speech might indirectly contribute to some possible harm at some indefinite future time.

This could be called the “harmful tendency” test. This test allowed the State to punish speech that contained ideas it opposed or did not favour. That included speech that criticised government policies or officials.

The “harmful tendency” approach was rejected by the US Supreme Court in the early 20th century. It was replaced by a stricter test known as the “emergency” test.

Under this test, the State could punish speech only when it poses an emergency – that is, when it directly, demonstrably and imminently causes certain specific, objectively ascertainable serious harms that cannot be averted other than by censorship. One of those other ways is by what has been described as “counterspeech”.

Counterspeech counters or responds to speech with a message that the speaker rejects. Counterspeech may address various audiences, including the speaker and those who share the speaker’s views, the people whom the speech disparages and the general public.

It may include denunciations and refutations of the message. It may provide support for persons who the speech disparages. It may include information that seeks to alter the views of the speaker and those who may be sympathetic to those views. If speech does not satisfy the emergency test, the proper response is counterspeech.

Speech should not be the subject of State interference solely because the message is unpleasant, discomforting, disfavoured or feared to be dangerous by the State.

This is known as “content or viewpoint neutrality”. This approach prevents the State from regulating speech simply because the speech’s message, idea or viewpoint is unpleasant, discomforting, offensive, disfavoured or feared to be dangerous by government officials or community members.

That approach – what could be called “viewpoint discriminatory” regulation – would attack individual liberty but also democratic principles. Officials could use it to suppress unpopular idea or information or manipulate public debate.

Censoring speech because it is disfavoured, no matter how deeply, violates the viewpoint neutrality principle. That principle is also violated when the State suppresses speech about public issues. This can include “hate speech” simply because its views might have a disturbing impact upon the emotions or psyches of some audience members. The State may not punish “hate speech” or speech with other messages simply because of its offensive, discomforting, disfavoured, disturbing or feared message.

Counterspeech is available to address such messages. Only when the speech crosses the threshold into the emergency test – that is, when it directly, demonstrably and imminently causes certain specific, objectively ascertainable serious harms that cannot be averted by other than censorship – may the State intervene.

Hate speech

I referred to “hate speech” in the preceding paragraph. I have put it in quotation marks because the term lacks specificity of meaning.

Its generally understood core meaning is speech that expresses hateful or discriminatory views about certain groups that historically have been subject to discrimination such as people of colour, Jews, Muslims, women and LGBTQ persons, or about certain characteristics that have been the basis for discrimination such as race, gender, religion and sexual orientation.

It is not speech that the listener hates to hear. Only when the speech crosses the threshold and satisfies the emergency test should the State intervene. It is for that reason that I prefer to refer to such speech as dangerous speech because it poses a clear and present danger of serious physical harm.

In New Zealand we have several State interventions around speech regulation. These can be found in the Films, Videos and Publications Classification Act 1993, the Harmful Digital Communications Act 2015 and the various sections of the Crimes Act 1961 and the Summary Offences Act 1981 dealing with threatening language or behaviour.

Some of these pieces of legislation provide examples of the emergency test in action. For the provisions of the Harmful Digital Communications Act to be engaged, serious emotional distress (harm) must be suffered. Criminal penalties are attracted if the person posting the digital material has the requisite intention to post the material with the associated intention of causing serious emotional distress. Thus, actual harm is an element that engages legislative intervention. Mere offence or disfavour is not sufficient.

The declaring of material to be objectionable under the Films, Videos and Publications Classification Act 1993 leans towards a harmful tendency test.

Material may be objectionable if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty or violence in such a manner that the availability of the publication is likely to be injurious to the public good.

This definition suggests the particular publication may be injurious to the public good, not as an imminent threat but at some indefinite future time.

The Classification Office is careful to ensure its determinations fall within the ambit of the categories expressed in the definition of objectionable.

Recently, however, there have been a couple of examples where political expression – albeit abhorrent – has been classified as objectionable. However, unless the level of abhorrence comes within the statute, it can be addressed by counterspeech.

Climate of fear

One of the difficulties facing freedom of expression in New Zealand lies in the climate of fear that has generated over the period of the covid pandemic. There has been fear about the consequences of the disease, fear if the various directives of the government are not complied with and fear arising from the expression of contrary views.

Anti-vax sentiments have morphed into anti-government protests and those who express contrarian views have been accused of spreading misinformation and disinformation.

All these views are in the main disfavoured, disturbing or adding to the climate of fear, so much so that the former chief censor lent the weight of his office to a publication about misinformation and disinformation entitled The Edge of the Infodemic – Challenging Misinformation in Aotearoa.

One wonders whether the chief censor of the time wished to see misinformation come within his ambit and be subject to classification or even being classed as objectionable. It is difficult to see how misinformation or disinformation could fall within the emergency test. Although it may be disfavoured, wrong-headed or disturbing it falls within the scope of viewpoint neutrality, best met with counterspeech.

Chilling and concerning

A recent demonstration of the overreaction of the public to forms of expression, the rise of the harmful tendency approach and the belief that the State should intervene is chilling and concerning.

Rather than addressing the problem with counterspeech or some such similar demonstration, citizens required the police to investigate incidents involving the flying of flags.

In Wanaka, the investigation involved a red flag with a white circle. Inside the circle was a three-pointed icon. What could this have been? Some far-right white supremacist coven, perhaps? It was reported as a racist flag. But no. The flag in fact was a Klingon battle flag from the TV series Star Trek. The police investigated, nevertheless.

The second flag to be investigated was a little more confrontational. A flag was flying from a dwelling bearing the insignia of the gang Black Power, along with the iconic clenched fist salute. It was what was written below the salute that caused concern. It was the “N” word but instead of ending “er” it just ended with “a”.

So concerned were the police that they referred the flag to the censor in an effort to have it declared objectionable. Quite properly, the application was refused.

Although these cases may seem insignificant or trivial in themselves, there is a deeper level of concern. Are we becoming too precious about taking offence? Are we leaning towards a “harmful tendency” position? Is the answer to something with which we disagree to complain to the authorities or try to shut it down? That is not what freedom of expression in a democratic society is all about.

That these sentiments seem to be surfacing should be no surprise. The government holds itself out as the sole source of truth and any disagreement is cast as misinformation or disinformation.

Some elements of the media demonise contrary opinions and there seems to be a developing trend to silence or cancel opposing points of view simply because they are perceived to be disagreeable or offensive, rather than engaging with the issue.

The reason that is advanced for failing to engage with the issue is that to do so merely gives oxygen to a contrary point of view. But only by discussion and challenge can the holders of contrary views understand and perhaps even accept they are wrong.

We need to be more robust in the way we deal with views with which we disagree. We must remember that those expressing such views have as much right to express their sentiments as we have to express ours.

And we must remember that the only time speech should be censored is if there is a clear, immediate and present danger that it may cause harm.

If the ideas that are the subject of speech are controversial, offensive or disfavoured, the remedy lies in debate or persuasion and not the intervention of the State. ■

David Harvey is a retired District Court judge ■