Opinion: Should there be a limit on free speech?

The issue of how far we should go in allowing free speech is one of the issues of the moment – sparked by Phil Goff’s refusal to allow Auckland Council facilities to be used for two visiting right-wing speakers. Opinions are being sought by polling organisations, letters have flooded in to Editors, and a legal case for free speech (and against the Goff stance) has been mounted with some very high-profile people involved. Interestingly, the Minister most directly involved has refused to bar entry of these individuals to New Zealand.

Assuming the case is brought, it will be interesting to see how the Courts rule on the issue, particularly in the context of the Bill of Rights.

It is an issue on which most people will have a view and those views will probably cover the whole range of possibilities.

For me, the issues come down to the practical question of preventing significant harm (or potential significant harm) to individuals or to the community which would be directly a result of the exercise of free speech in a particular case. The starting point for determining this is surely that the right of free speech is fundamental to a well-functioning democracy and should be allowed and protected in almost all circumstances. However, if the exercise of free speech in a particular case is very likely to cause substantial harm to individuals or to parts of the community, then that may be cause for intervention. The key questions – and unfortunately, they are matters of judgement not black and white fact – are the extent of harm possible and the likelihood that this harm will result from a particular instance of the exercise of free speech.

The problem, of course, is that we would all probably draw the line at different places. For example, I was not at all convinced by Phil Goff’s argument of avoiding harm to Council employees involved at potential venues. On the other hand, if there was a deliberate attempt to incite violence or worse against individuals or groups in the community, and that was likely to be successful, that would be a bridge too far for me. Under those circumstances, I would be happy to see the authorities taking preventative action.

The bug bear in all of this is the need to exercise judgement. Proponents of unfettered free speech would argue that allowing judgement to influence the decision is an invitation to close down free speech on what may sometimes be very thin grounds, eg simply because people in authority disagree with the views being expressed or find them threatening to the status quo view. There is a small step from this to the imposition of a dictatorial view to which no opposition is permitted. History abounds with examples, the worst of which include Hitler’s Germany and Communists Russia. Better – it is argued – to accept the right to express distasteful views than risk outright censorship. A free and mature democratic society should be able to make its own judgement and reject or argue against outrageous views rather than prevent them being expressed at all.

In practice society is imperfect and many people are influenced by what could be called “hate” speech. The classic example at present – unfortunate though it might be – is Donald Trump’s America. Many if not most Americans might be horrified by the views that Trump is expressing, but there is a solid constituency which appears to support him to the hilt.

So, it really becomes a balancing act – do we regard free speech as an essential part of being a free democracy, irrespective of the extreme views that might be expressed; or do we put some limits in the extent to which people can take advantage of the “privilege” of free speech to express harmful views.
There is, unfortunately, no easy answer. However, my own view is that there are limits that should be placed on the exercise of free speech, but the bar should be set very high and entrenched in law so that the limits are clearly signalled. The bar should be set at the point where actual harm is likely – it is not enough that the views being expressed are distasteful or distorted. Moreover, the onus of proof should be in the direction of allowing free speech, rather than preventing it.

Given this type of legal framework, it would be appropriate to have decisions initially in the hands of Ministers – this would allow reasonably quick decisions at modest cost. Heavens forbid that decisions should always be made by the Courts, as this would extend timelines and costs to an unacceptable degree. However, the Courts should always be available as a point of last resort, to deal with decisions by Ministers which are thought to be unreasonable, and maybe to enable a body, of case law to be established.

By Bas Walker

This is another of Bas Walker’s posts on GrownUps.  Please look out for his articles, containing his Beachside Ponderings.