The hate speech inquiry

This post is a bit longer than usual but it concerns hate speech. Hate speech is different to hate crime.

The Government Administration Committee announced an inquiry into hate speech in August 2004. The inquiry was sparked after submissions were made to the committee in relation to the Films, Videos, and Publications Classification Amendment Bill.

The point of the inquiry is not to stop expression of hateful opinion, but to determine where the line should be drawn between expression of opinion which is legitimate, and that opinion inciting hatred or harm against others, which is not legitimate. The inquiry will also recommend whether to change sections 61 and 131 of the Human Rights Act 1993.

Currently the Human Rights Act 1993 deals with inciting racial disharmony. Should it be similarly unlawful to speak ill of a group on grounds of sexual orientation or religious belief? If so, is that described as "hate speech" anyway?

A while back, Media Watch backgrounded the reason for the inquiry in light of the submissions to the Films, Videos, and Publications Classification Amendment Bill.

"About eight years ago a Christian video distribution company named Living Word imported two videotapes from America. Those videos expressed views that were unpopular with gay activists (well, one anyway, Calum Bennachie under the guise of the Human Rights Action Group). One was that the gay activist lobby was demanding not just equal rights, but special rights; the other was that homosexuality was a factor in the spread of HIV and Aids.

The Film and Literature Board of Review, in a decision written by Bill Hastings, (who has since been elevated to the position of Chief Censor), banned the videos.

It took a full bench of the Court of Appeal to restore some reason and common sense to the situation by pointing out that the censorship laws were supposed to be concerned with depictions of activity, such as sex and violence, rather than with expressions of opinion. The court held, in essence, that a publication cannot be considered objectionable under the censorship laws if all it¹s doing is expressing an opinion. The court told the Film and Literature Board of Review to think again, and this time to take into consideration the Bill of Rights Act which guarantees New Zealanders ­ and I quote ­ the right to "receive and impart information and opinion of any kind and in any form".

The board subsequently - and reluctantly - cleared the videos for general release. Well, it could hardly do otherwise. But the board added a peevish note to the effect that it was a shame the law allowed no prohibition of what it called "hate speech"."

So we have the inquiry. Its is important to remember that Section 9(1)(h) of the Sentencing and Parole Act 2002 provides that hate crime - as opposed to hate speech - is to be taken into account as an aggravating factor when sentencing, thanks to a sole convincing submission to the select committee by Calum Bennachie. Yet gender is excluded from the listed grounds of hostility. In reality, all sentences for hate crime may well be determined by two things: What the judge considered was going through the mind of the offender and what that judge thought of crimes against the victim. How can a judge base a sentence on what a criminal thought?

It is also difficult basing sentence on what a person said. That is one reason we don’t need hate speech legislation. The main supporting organisation of hate speech legislation is the AIDS Foundation - interestingly they were the only organsation actively opposed to the decision of the Court of Appeal in the Living Word case.

The other reason we don’t need hate speech legislation is that it is a fundamental breach of freedom of expression - one of the few things that most liberals and conservatives agree on.