11 Apr 2017

What we talk about when we talk about freedom of speech

11:39 am on 11 April 2017

What does the right to freedom of speech really entitle us to? We asked political theory expert and University of Auckland senior lecturer Dr Kathy Smits to shed some light.

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In these troubling times, the threat of hate groups seems more real than ever and some people we would really just prefer to not hear from.

Yet, say Paul Moon and 27 other #prominent New Zealanders, hear from them we must or the very cornerstone on which democracy rests will crumble into an Orwellian nightmare.

Penning an open letter last week, Moon and co. (including Don Brash, Sir Bob Jones, Gavin Ellis and Dame Tariana Turia) expressed their grave concerns that freedom of speech in our universities is under threat.

Cautioning that “intellectual rigour must prevail over emotional blackmail”, the letter remained vague as to what specifically prompted it, something clarified in an op-ed on Stuff by Moon.

Citing the recent disbanding of the European Students Union at the University of Auckland (a group suspected by many to have been a thin guise for a white pride organisation), the tentative proposal of hate speech legislation in the wake of islamophobic and racist attacks, and the “absurd notion” of safe spaces, Moon worries that we’re heading towards trouble.

Now few would argue against freedom of speech - who doesn’t like a little verbal vomit every now and then? - But it is also worth noting that it is not an absolute right, nor does it protect one from the ire of others. It’s a thin line - so how do we decide how to toe it?

To shed a little light, we asked University of Auckland Dr Katherine Smits, an associate Professor and Senior Lecturer in Political theory to explain a little bit more about the right to freedom of speech, its place in liberal democracy and how to know if we’re sliding down the slippery slope to censorship doom.


Where does the concept of free speech come from?

We associate that with big thinkers about liberal democracy like the philosopher John Stuart Mill, who made a big argument for freedom of speech. There wasn't really any automatic right of freedom of speech for quite some time in liberal democratic societies in the west but in the 19th century is when it started becoming really recognised as being an important value and a good thing.

Freedom of speech is not an absolute right though - what kind of limitations have traditionally been considered appropriate?

Well there's always been limitations recognised on freedom of speech. The famous one comes from an American legal case where the courts say there's a right to freedom of speech, but there's the famous exception you can't shout fire in a crowded theatre.

So there always has to be an attempt to balance freedom of speech with the kind of effects that it might have. In a case like that, you know mass panic, people die, I mean it's kind of easy to see the balance there but in our modern world there's been much more focus on balancing freedom of speech with the security of groups in society, minority groups in society, their security, their general social situation, their wellbeing.

To some extent most of these debates, the contemporary debates, like the one involving the club at AU, most of these really centre around whether you should be balancing freedom of speech against people being offended and being hurt and humiliated and those kind of arguments.

It's always been limited, but there are arguments for more limitations now than what we've seen in the past.

Paul Moon has described the AUESA club as an instance of curtailed freedom of speech due to its “forced closure” - even though this appeared to be mainly a decision made on the part of the club in response to public criticism. Was freedom of speech compromised in this instance?

Let's put it this way, if a club was forced to shut down because opponents bombed it - that's clearly an offence against freedom of speech - or pasted slurs up against it or something like that, then you can really say that you've got a situation of pressure.

But I think in the case of that particular club, what we really saw was freedom of speech, then more freedom of speech. And a public debate ensued which I think is always a good thing, and as [the club] realised it was going to be under so much opposition - I don't know I can't speak for the organisers of that club - but I think that was probably likely to be why they closed down.

Without knowing from inside of that particular case, I think that's likely to be a case of the kind of democratic debate you're going to get in society under freedom of speech. Freedom of speech doesn't mean we're going to let you say whatever you like and we're going to like it. It can mean you're going to say what you like and we're going to argue against it and then let's see what happens, within the confines of democratic debate.

Do you feel like the idea that they were "forced" to shut down is a misunderstanding of freedom of expression?

A lot of times I think that's right, I mean I think it really is. If you get the kind of democratic debate that freedom of speech is supposed to produce and it does produce, and there's a very strong swell of opinion on one side and the other side is, I don't know, we might say marginalised - I mean I don't think anything’s happened to freedom of speech there. I think the democratic process has worked out pretty well.

But I do want to emphasise there is a line, and a line would obviously be any kind of harassment, or anything that crosses the boundary away from speech against something into other sorts of pressure.

It's always really difficult to draw a clear line in these kinds of cases, but as long as its speech combating other speech and then that speech has a result, the way I see it that's kind of in many ways how the system is supposed to work.

Does freedom of speech - and what is considered hate speech - differ from context to context? For instance examples of islamophobia, in most Western societies, may be treated less seriously than the use of Nazi symbols and so forth.

I think there's always debate and argument about freedom of speech and it takes place within a particular national context.

I think the people who are likely to be offended will differ and as New Zealand has changed and become much more multicultural, certain kinds of symbols - so yes, symbols or speech attacking or seen as being critical of Islam - that would not have raised eyebrows 20 years ago, obviously now do because there are people who are sensitive to it.

The use of Nazi symbols has a kind of universal value. It always makes people very nervous where any kind of Nazi symbols are used because it's part of the pretty much global heritage that people have.

I do think it's a sign of New Zealand becoming more multicultural that these questions of freedom of speech get raised in more contexts than they used to.

In a society in which minority groups and other demographics might find themselves on a less than even playing field, can freedom of speech and freedom from discrimination be mutually consistent?

Protection against religious and racial discrimination - it's important to note that that's a bigger issue than just speech, because discrimination can affect all sorts of things including people getting jobs and how whether they can appear in public and all that. That's a big issue that's certainly compatible with freedom of speech.

Then you come down to the issue of if you're offending particular groups. It could be mainstream pakeha or it could be a smaller more recent minority group. To what extent is that compatible with freedom of speech?

In Australia, because of their legislation, they actually have this very controversial section that says that speech which causes offence is unlawful. We don't have that. I can certainly imagine a situation where, if there was a legislation like that, really seeing freedom of speech arguments coming into conflict with the claims of some minority groups but I don't think that's happening now.

I don't actually agree with the letter, and I don't feel in New Zealand that freedom of speech is under threat.

I think universities are always tricky places to look at, because they have this big academic commitment to freedom of speech which is very important but they're also really culturally diverse societies and they involve a lot of young people.

And so there's always that slight mitigation and that's why these issues hardly ever arise out of what academics say, they arise out of what students say.