Is The Government’s Proposed “Cure” For Hate Speech Worse Than The Complaint?

For Our Own Good? Police officers knocking on New Zealanders’ doors on account of what they might think, or what they have said, is more likely to make the rest of us think we are living in Nazi Germany – not drawing lessons from it. The disharmony such heavy-handed state intrusion is bound to create will exceed by a wide margin the disharmony it is attempting to prevent.

IF ANY NATION UNDERSTANDS the relationship between “Hate Speech” and “Hate Crime” it is the German nation. Not only is Germany the nation which gave birth to Nazism, but it is also the nation which gave birth to the constitutional protections which allowed Nazism to destroy Germany’s fledgling democracy.

The constitution of the Weimar Republic – fragile successor to the defeated German Empire of Kaiser Wilhelm II – was the most progressive of its time. It conferred upon the German people civil and political rights as new as they were exhilarating. Foremost among these was that capstone of democracy, Freedom of Expression. Without this crucial freedom, all of Democracy’s other rights and freedoms are swiftly rendered illusory.

But, as the excellent German documentary series The Abyss: Rise and Fall of the Nazis, makes clear, the Weimar constitution’s unconditional guarantee of Freedom of Expression allowed the virulently anti-Semitic newspaper, Der Stürmer, to go on pumping its poison into the German body-politic. Tellingly, at the post-war Nuremberg Trials the editor of Der Stürmer, Julius Streicher, was charged with being an accessory to the mass murder of European Jewry. For his relentless incitement of hatred against the Jews, Streicher was found guilty of aiding and abetting the Holocaust and condemned to death. He was hanged on 16 October 1946.

The judgement of the international jurists at Nuremberg was clear: hate speech leads to hate crimes. To incite hatred is to invite violence – and worse. The constitution of the German Federal Republic (modern-day Germany) reflects the lessons learned from the tragic fate of Weimar. Germany’s “basic law” makes it clear that democratic rights and freedoms do not include the right to turn democracy against itself.

The question which New Zealanders must now answer is whether or not they confront a situation which in any serious respect resembles that of the doomed Weimar Republic? Is there a political force at work in New Zealand society remotely similar to Adolf Hitler’s Nazi Party? And, if such a force does exist, is it reasonable to characterise its protagonists as an existential threat to this country’s democratic institutions?

The answer to all of those questions is an unequivocal “No.” Nevertheless, the Labour Government is getting ready to pass legislation which will more define more clearly – and punish more harshly – “hate speech”. It is doing so at the behest of the Royal Commission of Inquiry in to the Christchurch Attacks of 15 March 2019. In the name of strengthening “social cohesion” – and thereby lessening the likelihood of future attacks – the Commissioners concluded that some revision of our current legal protections against hate speech was in order.

Before examining the Government’s proposed changes, it is important to determine whether the “Lone Wolf” Australian-born terrorist who carried out the Christchurch attacks did so as a consequence of absorbing hate speech uttered and/or published by New Zealanders on New Zealand soil. Or, more bluntly, was Brenton Tarrant incited to murder 51 people by a New Zealand variant of Der Stürmer? Once again, the answer is unequivocal: “No, he was not.”

Tarrant’s inspiration came from much further afield. He was a disciple of the Norwegian Lone Wolf terrorist Anders Breivik. He spent years visiting battlefields in southern and central Europe where Christian and Ottoman armies clashed more than 500 years ago. He participated in chat-rooms on the notorious US-based “4-Chan” social media platform. His political focus was upon events unfolding in the Northern – not the Southern Hemisphere.

Indeed, Tarrant chose New Zealand as the location for his attack on Islam precisely because it was so blessedly free of the unbridled hate speech that so inflamed the political discourse in other jurisdictions – along with the protections erected to preserve their citizens from its consequences. Prior to Tarrant’s deadly attack, New Zealand had not experienced a fatal terrorist incident since the death of Ernie Abbott in the Wellington Trades Hall bombing of 1984, and the loss of Fernando Pereira a year later in the state terrorist bombing of the Rainbow Warrior by the French government. Tarrant felt able to hide in plain sight in this country, confident that until he acted, he would not be detected. He wasn’t wrong.

All of which is not to suggest that New Zealand is entirely free of racial and religious prejudice and hatred. Verbal and physical assaults on people of colour and adherents of non-Christian religions are, sadly, all-too-common here. The point remains, however, that the level of this verbal and physical harassment was low enough for Tarrant’s attack to fall upon New Zealand like a bolt from the blue. No one anticipated anything like the horror and mayhem of the 15 March 2019 mosque shootings.

Why, then, did the Royal Commission feel moved to recommend a strengthening of our hate speech legislation? Did they not consider our democratic institutions robust enough to meet the outpouring of hatemongers head-on? Did they not regard the power of our news media to name and shame extremists of all kinds as a sufficient bulwark against the rise of a New Zealand Nazi Party and/or the publication of a down-under Der Stürmer? After all, when Far-Right and White Supremacist groups have shown themselves on the streets, the only impression they have left is one of profound weakness.

Although not yet “official”, the following wording would appear to be the Government’s preferred alternative to the existing legal prohibition against inciting racial hatred, it reads:

the incitement of disharmony, based on an intent to stir up, maintain or normalise hatred, through threatening, abusive or insulting communications.

It is further reported that legislative protection will be extended to target hate speech directed at religious belief and gender identification. Those found guilty of hate speech will be liable for a prison sentence not exceeding three years.

What sort of speech will it take to convince a jury of ordinary New Zealanders to send a fellow citizen to jail? One suspects that hatred of the sort perfected by Julius Streicher in Der Sturmer will be required to secure a conviction. Speech falling short of that measure will almost certainly result in acquittal. In the process of sorting out where the cut-off point lies (which is unlikely to be very far from where it is currently) real damage could end up being done to New Zealand democracy.

The framers of the Weimar constitution weren’t wrong to hold up Freedom of Expression as the capstone of democracy. They could not have foreseen the intensity of the hatred that fuelled the rise of the Nazis – hatred which the victors of World War I did so much to feed. Nor should we condemn the framers of Germany’s present constitution for attempting to learn the lessons of their country’s awful history. The problem our government faces, however, is that New Zealand is not Germany. Our political history contains nothing even remotely resembling the Nazi Party – or Der Stürmer.

And that’s the rub – isn’t it? Police officers knocking on New Zealanders’ doors on account of what they might think, or what they have said, is more likely to make the rest of us think we are living in Nazi Germany – not drawing lessons from it. The disharmony such heavy-handed state intrusion is bound to create will exceed by a wide margin the disharmony it is attempting to prevent.

This essay was originally posted on the Interest.co.nz website on Monday, 19 April 2021.