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Hate speech: a question
By Steven | July 5, 2021
A question occurs to me that seems worth throwing into the debate.
An ambiguity
I think there’s an ambiguity in the proposed law. We don’t know the exact wording of the offence. It seems the government doesn’t have one. It’s not in the Cabinet paper or the discussion paper anyway. That makes it hard to analyse. But it seems to me that one question leaps off the pages of the discussion paper.
The discussion paper says:
It would be a crime to intentionally incite/stir up, maintain or normalise hatred…
(if it’s a threatening, abusive or insulting communication, including inciting violence, and is aimed at particular discriminated-against groups).
Let’s focus on the intent to incite, stir up, maintain or normalise hatred. My question is: does this require proof of any harm or likelihood of harm that is manifested in the real world? Or is it just a mental element?
In other words, is the proposed offence committed if it can be shown that what’s going on in my head is an intent to incite or normalise (etc) hatred?
Or does it also have to be proved that some sort of hatred has been incited or normalised?
Or – and this is a halfway house – that my speech has a tendency of some sort to incite or normalise hatred?
I don’t think this is clear in the proposal. Neither does an expert on criminal law I talked to.
You-already-know-this-bit-but-I-think-I-should-spell-it-out
Before I go through the possible interpretations of intentionally inciting hatred, I just want to remind any alarmable persons who happen to be reading that a prosecution would ALSO require (a) a threatening, abusive or insulting communication, (b) that is aimed at a particular listed group, (c) consent of the Attorney-General, and (d) a Bill of Rights analysis designed to ensure that any convictions can be demonstrably justified in a free and democratic society.
Possibility one: It’s all the in head
If the intentionally-inciting-or-normalising-hatred element of the crime is only about what the defendant intends, it’s arguably too wide. We are punishing someone for their thoughts when no social harm needs to be proved. Still, it might be thought that once you’ve shown someone has made some threatening, abusive or insulting speech against a group, and you can prove they intended to incite hatred, it stands to reason that this will probably have an effect on the audience, so maybe it’s right to criminalise it. This does seem to be what the Royal Commission had in mind.
Possibility two: You need to prove some real-world impact
On the other hand, if it requires proof that some hatred has been produced or normalised in the world, that might be a difficult task for a prosecutor. It won’t always be impossible: it’s possible that violence might erupt shortly after and as a result of the speech, or people might pile on in a way that demonstrates hatred has been stirred up. But often it will be tough to show that the levels of hatred in the world have been affected as a result of the speech. Anyway, it would be harder to prove than the existing law against racial hate speech.
Possibility three: The half-way house
The existing hate speech law requires proof of likelihood of harm (that harm being contempt, hostility, ridicule or ill-will against racial or ethnic groups). That’s quite a high threshold, but doesn’t require evidence of harm in the world. What needs to be shown is “a real and substantial risk” of such harm. The Canadian Supreme Court (cited in a NZ case) said the question is “Would a reasonable person consider that the expression vilifying a protected group has the potential to lead to discrimination and other harmful effects?” So you can reason your way to a conclusion that the speech is likely to cause harm in the world without evidence that it has actually happened, evidence that might be very difficult to come by, even if the speech really has had a serious impact on some people’s hearts and minds.
I have to say, this seems like the sensible option to me. There’s just one problem. The Royal Commission recommended that this “likelihood” test be dumped and the government has followed its advice. So it’s hard to see how the government’s proposal can be interpreted to include some liklihood of external manifestation of hatred. (But not impossible to imagine. I could see the courts getting hold of this, and being reluctant to interpret the law as either possibility one or possibility two. They could read in some sort of tendency-to-create-hatred as implicit in the offence, or required by the Bill of Rights Act. After all, the courts read in a damages remedy in the Bill of Rights Act when Parliament deliberately left it out. But it’s not a good thing to leave this sort of thing up in the air).
Conclusion
This should be clarified. It’s easy to write a law so that it makes it clear which bits of the offence are in the head (mens rea) and which are in the world (actus reus). It probably won’t be ambiguous if and when a Hate Speech Bill is produced. But it would be helpful to have this point clarified during the public debate right now, so that we are all on the same page when we make our submissions on the discussion paper.
There’s an easy solution: the government could issue a draft of the actual wording of the reform its proposing. Or at least put out some sort of statement making clear what exactly it’s proposing here. I doubt it’s an exaggeration to say that some people’s position on the proposal will depend on which of these three possible interpretations is the real one.
I’m no criminal lawyer, but I wonder whether one possibility is to have a reverse onus – eg it’s a defence to establish on balance of probabilities that, in the particular circumstances of the case, no hatred has been likely to have been incited or normalised.
PS
I’ve just seen the government’s regulatory impact statement. It says this:
The Ministry intends to further assess the benefits and disadvantages of this element
following consultation. It could be argued that removing this objective element might limit
freedom of speech, honest opinion, art and debate by criminalising intent rather than
harmful effects or a risk of harm. Retaining this element also appears to align better with
guidance by the United Nations under the ICCPR. On the other hand, it would simplify
the test. This issue should be covered in the consultation.
so the Ministry was aware of the issue. And yet…. it’s not in the consultation.
Topics: Free speech theory, Hate speech | Comments Off on Hate speech: a question