No Public Consultation and Deference to Experts: NZ Hate Speech legislation

In Mid-March when  Covid-19 was imminent, our Minister of Justice stated that the ‘hate speech’ legislation was to be brought forward.    Ideas for legislative change have existed from 2017 on.  The impetus arises from 15 March 2019 Mosque shootings.
  

On one hand, amending sections 61 and 131 of the Human Rights Act 1993, to capture religious discrimination with the statutory present tests, and with the objective tests in Wall v Fairfax New Zealand Ltd [2018] NZHC 104, is not controversial.  On the other hand ‘Hate crime’ offences on the English model of the Public Order Act 1986 (UK) are.  

 

Contrary to earlier statements in 2018 and 2019 on the need for open discussion, public debate and data (on hate crimes), the senior Clerisy of the Ministry and the Human Rights Commission deemed that this not be done with public consultation.  No public consultation is on the grounds, according to the Chief Executive Officer of the Ministry, of not wanting matters “derailed.”   It is an elitist and paternalistic approach and one that has been seen gurgling away in the Brexit debate.  

Few have commented on the point of non-consultation.  Other pieces of legislation have  similarly passed.     The Law Society and its specialist committee has to date has been silent.   One of the few was Chris Trotter in his article on The Daily Blog, 21 February 2020, wisely  says: “Building trust and amity between peoples is achieved by starting conversations- not by shutting them down.”     Golriz Ghahraman, in ‘Pantograph Punch - Freedom of  Speech and Its Limits’   has also stated that public debate is necessary: “It’s vital that the public is involved in a conversation about what speech meets the threshold for being restricted, and what mix of enforcement tools should be used …”

“Derailment” can be read as a euphemism for avoiding either ‘disagreement’ or a process tested by public transparency or “there might be protests”, formerly known as the right of assembly.  The approach savours of a  UK  deference to “experts”, which is also a rhetorical device to forestall debate.   In   Court, expert testimony is invariably met by opposing expert testimony.
 

Experts and their opinions are not politically value-free.  Nor is there one “EXPERT” position.  Experts are not an unimpeachable neutral moral force beyond public scrutiny when it comes to policy implementation,  which is a political matter.   The same goes for now in vogue elevation of ‘evidence’- “the evidence”- which is not an on- high truth but an object of interpretation.  It is simply a rhetorical appeal to the fallacy of  “higher authority” to deflect contradiction.

 

The “weighing” that the Ministry says it is involved in is not a public service issue- it is not the moral guardian- it’s a matter of political judgment.  The political judgment ought not to be devolved to unelected experts.  If dissent and questioning are excluded and policy that emerges that becomes law without public input then we are no longer part of the Demos.   It is “Black Box Democracy”.   Stalin’s Tromfir Lysenko is a warning of expert fallibility once on top politically.   

The Ministry’s approach is a   State Nanny ‘Master Class in Maternalism’ and the short form paternalistic message is:  “We know what is best for the ‘Common Good’” and “We won’t hear a word against it.”    The debate is avoided because the  moral Clerisy, as shrinking violets might find the “discussion”,  the “conversation”,  disharmonious- uncivil even- and of ‘horrid disagreement’ and thus ‘hateful’.    Public debate should be ‘abrasive’.

Worse, the door is closed to robust and frank discussions on hate crimes, especially in determining what speech is 'hateful' leading to the risk of politically weaponising state agencies to curate, cleanse and shut down unwelcome opinion.  The outcome of the Ministerial “chinwag” does not appear from my inquiries and research to be heading to a Select Committee.  

 The Human Rights Commission’s 13 December 2019 published paper on hate speech, Korero Whakaruhora-Hate Speech. It was put up as guidance for public discussion.   But there has been a sharp u- turn from December.  The paper cites overseas legislation and several UN reports by its Special Rapporteurs.   Legislation is seen by some UN writers as a last and serious step.    The Human Rights Commission has failed to provide an evaluation of the pros and cons to inform a debate.  There is not a “skerret” on the efficacy of hate speech legislation, and no reference to books by Nadine Strossen or  Russel Blackford, where the non-efficacy of hate speech legislation has been noted. 

In the UK and the US, for example,  for example, hate speech laws have ended up prosecuting the minorities it was supposed to protect.   There is a naïve and paternalistic view that minorities are somehow exempt from expressions of racism and hate speech.  Then there is police overreach where heckling can be prosecuted: R v Choudhury.  The Commission’s guidance is of less value than it could have been.

Some UN reports desire to maintain the primacy of free speech.  The UN has sought to do so by the  Rabat Plan of Action and how Article 19 (3) is to be used and by evolving tests to safeguard free speech.    There is literature on non-legal ‘bottom-up’ social means to confront hate speech: counter speech, resilience and education whereby mores that form common sense truisms then shape the dominant social moral discourse.  Most people know that racial and sexual prejudices are not good things.

It is not for politically motivated prosecution and departments of state to cleanse and sanitise the polity of what it thinks is unacceptable or discordant speech. 

     

Debate risks being socially constrained in the name of therapeutic politics - a Woke fetish- as seen in the superficially well-meaning slogan ‘Be Kind’.  It puts off, circumscribes, displacing  contestability and open argument by dissolving them into a syrupy solution of euphemisms of    ‘civility’  ‘caring’ and ‘Be Kind’.   The unkind disagree and rock our boat.  But equally the  therapeutic  risks slippage by defining pejoratively,  ‘disagreement’, ‘divisiveness, ’ ‘disharmony of ideas  and abrasion’, and  in  J S Mill and de Tocqueville ‘dominant discourse’, as heresy and then fall under the  moral sledgehammer of “hate .”

Hate speech is a foremost a colloquial and political term.  Its use in political discourse involves a sleight of hand to gain assent.    “Hate” is a moral prejudgment, and thus politically loaded and primed.  It is deployed manipulatively by garnering support on it as a subject and then plugging-on any object of moral opprobrium where the support of the subject will carry over to whatever the object is. 

The Free Speech Coalition,  in its 31 March  2019 Press Release on  the term ‘hate’ it put  the position extremely  well:

The term ‘hate speech’ is deliberately extreme.  It has been designed to prejudice discussion.  It exploits the decency of ordinary people.  How could anyone not oppose ‘hate’?  …  Overseas examples often just give authorities the ability to say ‘it means what they say they want it to mean from time to time’. 

The US use of “lawfare” in the US v Concorde Management to shut down speech is ominous as is our government’s in  declining public debate on disharmonious speech.   I see the hate speech modelled on the UK Public Order Act 1986 as a parallel to promote lawfare.  The UK experience of shutting down criticism of trans gender pronouns has more the look of punishing heresy. 

Hate speech, as an extreme and loaded moral term  which censors (and leads to self-censorship) language and impinges on other protected rights (freedom of conscience)  by the risk of prosecution.    If the definition of harm and upset was to extend to discord disharmony we would seem to be on a  slippery political slope towards one particular political outlook that holds social relations as being based on oppressors and oppression fueled by identity politics.

 

 Freedom of speech relates to freedom of conscience and thus to the dignity of the person.  We have already had an incidence of Police in New Zealand inquiring of people’s thoughts in 2019 and it is not for prosecutors to lay politically oriented charges.  Without open discussion or details on the ambit of any change to the existing legislation or even if a new Act based on the UK Public Order Act 1986 is unknown.   Hate crime on the UK model is a fraught concept jurisprudentially and open to abuse politically.  

 The normal legal battles and prosecution, which can and do carry stigma and life consequences, are bad enough. Not everyone has access to justice despite the fiction that we do to clear one's name.     The weighing of concerns is difficult.  The difficulty rather points to the need that open debate is required, and not in camera chinwags with experts and public servants.  By not airing the issues even at the risk of disagreement and not getting assent of the Demos is more of an evil.   To proceed otherwise is to commit a Rousseauan error.

Graham Hill MA (Hons), llB (Hons)
Nelson, 26  May 2020

Of Truth and Human Decency: Private and Social Discourse- To Speak... To Hear?

I wrote this in 2018 and Olivia Pierson kindly posted it on her blog in October 2018.    I saw the censorship and self censorship in the public arena was also a feature of the social and private as well.

Free expression is the base of human rights, the root of human nature and the mother of truth.  To kill free speech is to insult human rights, to stifle human nature and to suppress truth.[1] 

(Liu Xiabo 28 December 1955 to 13 July 2017.)

Free speech is often seen as a public platform concern.  Examples of public non-platforming are the instances of Southern and  Molyneux in Auckland  and   then Dr  Brash  at Massey University.    The question this paper deals with is whether what is happening in the public domain if this also is occurring in our day to day personal interactions in the social, professional and private domains as well?     I say it is.   That non-platforming in the private, professional and social domains has differing but existential and socio cultural consequences.   These concern  the acceptance or not of a person who will and will not be heard.   Cultural consequences stem from the recoil from curiosity, inquiry  and openness.   The recoil to closure  has historically been seen to  lead to a culture of lies.  Then  in terms of inquiry and  knowledge has lead to the society of the  Hedgehog.   The latter comes from Isaiah Berlin’s  use of Archilochus’ simile of the fox and the hedgehog. [2]  The hedgehog knows only one big thing, if not an inner light, through which all is interpreted, which  has the propensity to lead to the closed society
.

The question came to mind after I queried a point  (made in a letter to the US Ambassador by a group of  lawyers) with a colleague concerning the present US border immigration issues.    The response was remarkable for its abusive, vitriolic and  stereotyped prejudice of ‘deplorable’s’.     The response also took no heed of basic human rights principles nor  differences of viewpoint or any open curiosity to confirm or find out about another view point or what the facts of the situation were.  I realised I needed to exit the conversation, to say no more nor to raise the topic again.  Possibly I will carry scarlet letter “D” from now on.

What was surprising was that this came from a lawyer.  Lawyers are to uphold the Rule of Law which includes human rights.  I had expected that there might be an element of reasoned deliberation and judgment in any reply.   The experience signals that there is fragility in our social, legal and ultimately our political discourse.    That a simple clarifying enquiry can be considered ‘unsafe’ that it has tribal ‘in group orthodox’ belief implications requiring silence for fear of an indelible Puritan “Scarlet Letter” of some form adhering to us.

In truncating the right of freedom of speech in private social or professional discourse,   two comparable concepts exist: first,  that of  self-censorship; and  secondly, being silenced or not being heard- “I don’t  want to hear what you have to say”.    In the public domain we can choose not to go to an event to hear someone.    In the private, professional and social domain the right of freedom of speech carries with it  a moral right or duty to hear and  to listen.    It has been put thus: “If you say something I do not like, I have to listen even more.”[3]   If we are committed to not living  a life of the lie[4], but to integrity, seeking truth and understanding the world, celebrating human dignity, and  valuing a person these  become an “ought” or an imperative.

The further catalyst- again from a lawyer-  for the present article arises from a recent personal experience of being denied to tell one’s story after being asked of one's predicament because the perpetrator of harm was a friend of the questioner.  "I  won't hear a word against her". (It is a good example of the banality of evil and refusing to confront the truth)   That is why I believe that what is happening in public discourse also affects, and is mirrored in, private, social, professional discourse.    One  either   self-censors or is silenced or is not heard.     It can be seen in people not asking questions at university for fear of losing grades or being pilloried[5].   Both have an existential upshot ranging from devaluation to dismissal for the self-censored and the silenced.   Every story of harm, suffering or loss that becomes devalued and devoid of meaning in itself causes harm and suffering.

That   speaking ‘our stories’, and  being believed about our lived experience, and reality, does bear on our present personal existence and integrity.   When a person’s story is shut down in a social or private setting it is to say that the person is not to be believed, is of no account or of consequence: in short the speaker is socially, professionally and personally proscribed[6] and annulled.  The story, as it travels with the person, is similarly proscribed.  The “voice” so devalued becomes one of no account,   and not to be believed or is  an “invalid” understanding.    Simply, a nullity,  “it does not matter, it did not happen.”    It says that a person, as a speaker, is not to be believed,  does not matter and  is of no consequence.

  

From this flows the   civil “othering” of the speaker from the class of worthy  people who  should be listened to.    That denigrating “othering”,  when the other is cast into the out group  and of no merit or  consequence,  is the open door  for  pretexts and justifications for   prejudice and discrimination.    Holocaust and rape victims,  and the likes of survivors from  the Soviet Gulag or Pol Pot killing fields,  take offence at having their experiences invalidated and dismissed as if they were wrong their  experience and suffering  trivial or  impalpable or non existent.     Such conduct it is bad manners-manners come from a  desire to facilitate and  please; secondly it impugns the dignity of the person particularly when the teller has been invited to speak; and thirdly it is moral cowardice,  fleeing opinion, truth and knowledge.

 Weight and praise  is bestowed on the ‘authenticity of ‘stories’,  of  personal  experience, of “giving voice”,  recounting  their “experience and  stories”,[7]  and “speaking your truth”[8] as Senator Booker says.  Socially directed propositions are distilled   from these stories.   Yet, Harvard Emeritus Professor Alan Dershowitz’s  “ the shoe on the other foot test”  fails in my experience  owing to the “identity” of the speaker.    Wrongly or rightly for some a syllogism predetermines whose story can be heard or is contingent on a person’s politics[9] or a cognitive confirmation bias.[10]

What is the nature of the two parallel concepts mentioned above?  Self-censorship is where we hold back from expressing an opinion out of fear of  adverse opinion, being held in low esteem, reprisals e.g demotion,  economic  threats (see. James Damore loss of job from Google for expressing an opinion; and Ian Buruma from the  NYRB[11]), or  public mauling or actual violence.  Secondly,  it is  where someone refuses to hear/listen  because what you might say  is “uncomfortable” but  the   truth.  Excluding  the uncomfortable can be effected with a near McCarthy like fanaticism.[12] 

The concept of self- censorship has been examined by the Danish writer, Flemming Rose,  in his compelling book, The Tyranny of Silence (2014).   To be afraid to say something, to withdraw or hold back from saying something but nevertheless holding an opinion (from whence comes the thought crime) are forms  of non- platforming in social and public discourse.[13]    It can mean a capitulation to unreason, to blatant bigotry, to arbitrary and unlawful power and remedies of protest; to having one’s will over borne and suppressed.  Implicit is the act of some form of intimidation whether psychological or physical.[14]  Career, passing exams, on-going participation/acceptance and  commercial threats rank high.  For example, a Face Book executive is faced serious opprobrium from Facebook management and staff for his supporting an appointment to the US Supreme Court.

In my view,  such conduct may  beget  “Nelsonian Blindness” and a “banality of evil” that Hannah Arendt described  in Eichmann in Jerusalem.   To say nothing is on the same continuum of doing nothing and inactivity enables harm and evil.  Dietrich Bonhoeffer, Sophie Scholls, Martin Luther King and Liu Xiabo have all echoed similar sentiments.  In a sense,  non-platforming and self-censorship are the first tottering steps on Claudia  Card’s famous “atrocity paradigm” starting with countermanding  the freedom of speech as opinions  and intimidation such as othering.   Wrongs and errors cannot not be even understood let alone righted or resolved if a person is not heard.   The rules of Natural Justice appropriately place a high premium on the right to be heard because Court’s demand for accuracy avoids erroneous decisions and bias.   The value to accord each other mutual respect requires this too.

The concept of not listening is where someone refuses to hear/listen  a contrary opinion or differing perspective.  What you might say  is “uncomfortable” and affects feelings or a belief about “in group” members.   I recently experienced this with a lawyer when the reasons for a situation involved a “colleague- friend” ( an ‘in group’ participant) where speech/opinion, in answer to a question,  was abruptly ended on the basis of “I don’t want to hear”.

Clearly,   my   answer was productive of cognitive dissonance with a preconceived equanimity.   A  differing opinion in these circumstances was a threat to solidarity with belief implications for the questioner’s/listeners’  “in group”; thereby the closure of conversation was retracting from the values of    curiosity, openness,  inclusiveness, diversity, wider social/professional  discourse and human rights concerns.   An argument can be made that this closure of discussion evinces visceral discrimination for threatened status or power, an “in group v out group” contest arises.    It does have a  worrying tendency towards a  “velvet totalitarian”[15] mind set of the punishing of  heterodox opinion.   At the level of public discourse the act of retraction/recession may be expressed as the flight from the ‘open society’ to the ‘closed society’.

The classical Liberal culture of Rights and Freedoms are some of our culture’s significant “Apps”.  Both critically and importantly they are self-critically directed and engaged.   Criticism and self-criticism mitigate  bias in favour of accuracy and enable things to be examined,  fixed and to be learned from and then incorporated into common sense (as societal shared understandings)  for  navigating our  world of daily experience.   Two points flow: a recognition of dignity of the person; and truth.   I turn to consider each of these.

As to dignity of the person, Rose develops an important ideas arising out of the freedom of speech, namely freedom of expression and thus freedom of conscience[16].  Rose in relaying details from a discussion with Salman Rushdie, says that story telling helps define and understand the teller.    Storytelling   “derives from the language instinct that is a universal and innate in human nature.” Stopping people from telling their stories is “an existential insult that turns people into something they are not.”[17]  Telling our stories is the difference between an ‘open society and a closed one.’  Hearing someone, believing their story, gives recognition and goes to the very being of a person.  They also accord  that singularly great human right value ‘dignity of the person.’

 

To decry a person’s words of personal experience, and suffering,  is to annul a person. That is a serious matter.   The corrosive effect is to rescind and strip a person of their inherent dignity and existential validity as an individual person [18]   Equally, not being believed, having one’s trust betrayed or professional reputation sallied is equally destructive of dignity.  It is disempowering and heinous, causing loss of career and financial loss especially when betrayed  by a colleague  or   friend.    Dante reserved the lowest level in the Inferno for those who betray others and we could add to also  annul others.  It is a violation of their human dignity.

The media may also violate human decency and dignity.  They can  betray the truth of a person.  Pope Francis[19] in an article[20]  compared fake news to excrement.  The trend of coprophillia and coprophagia has spread, he said, from our politics, the media and to wider culture and into law but also, in my view,  to social and personal  relations.    “The Pope also criticized the media’s tendency to present only half a story while ignoring the rest, which he qualified as “disinformation, that is, to tell only part of the truth of a situation and not the other.”     The consequence of “…this disinformation, Francis said, prevents people making a “serious judgment” and therefore is “probably the greatest harm they can do, because it sways views in one direction, leaving out the other part of the truth.”

The cornerstone idea he evolved was that of “annulling a person.”    To "annul" a person is to deprive that person of a basic and existential status and right, the Human Right- of integrity and self-dignity.      Discrimination as the deployment of stereotypes and stigma as well as slander and lies do that.    It is a hurtful and humiliating  experience: the corollary or the jural correlative  of humiliation is dignity.

 Rose  says that shutting down speech, censoring discourse  or  self censoring-  leads to “living a lie”[21].  That lie about the truth of matters then exists on both sides of the social interaction.  It is  a form of wilful blindness and thus gives rise to  cognitive dissonance.   Truth is important because  speech and reality are often seen as parting company.  The inner light of metaphysical intuition (rather than fact or reality based), self-deception  and  lies are corrosive.  Thomas Jefferson noted this when he said: He who permits himself to tell a lie once, finds it much easier to do it a second time, till at length it becomes habitual; he tells lies without attending to it, and truths without the world’s believing him.  This falsehood of the tongue leads to that of the heart, and in time depraves  all its good dispositions.[22]

Lies use language to win arguments, obtain status, impress people, and denigrate people “to bend the world to what I want.”[23]   Lies also have unintended consequences.  Alexander Solzhenitsyn in his article Live not by Lies examined the lies create a culture of lies and “a spiritual death.”[24]  In The Gulag Archipelago the social metastases caused by not hearing, not speaking,  and lies led to a culture of the life of lies. Its outcomes were ignorance, falsification, mistrust and disinformation and cynical apathy.  Functionally this has consequences.   For example, to request a plumber, say,  to attend a blocked drain requires both truth and trust:  that someone will actually turn up when they say they will; that there is in fact a problem that is believed to exist.    The inception of the will to disbelieve or to be complicity apathetic in even wanting to know the facts betrays “truth.”   Two examples from the Gulag Archipelago illustrate the point:

The permanent lie becomes the only safe form of existence, in the same way as betrayal… Every wag of the tongue can be overheard by someone, every facial expression observed by someone.   The Lie as a Form of Existence.  Whether giving in to fear, or influenced by material self-interest or envy, people can't nonetheless become stupid so swiftly. Their souls may be thoroughly muddied, but they still have a sufficiently clear mind. They cannot believe that all the genius of the world has suddenly concentrated itself in one head [Stalin’s] with a flattened, low-hanging –forehead.  They simply cannot believe the stupid and silly images of themselves which they hear over the radio, see in films, and read in the newspapers. Nothing forces them to speak the truth in reply, but no one allows them to keep silent! They have to talk!  And what else but a lie?  They have to applaud madly, and no one requires honesty of them.
…

Therefore every word, if it does not have to be a direct lie, is nonetheless obliged not to contradict the general, common lie. There exists a collection of ready-made phrases, of labels, a selection of ready-made lies. And not one single speech nor one single essay or article nor one single book—be it scientific, journalistic, -critical, or "literary," so-called—can exist without the use of these primary clichés.[25]

The trend of untruth exists in politics, in “marketing” and at work.   The objective is to manipulate the world and others, which is what is meant by to act politically.[26]  The ‘Spin Miester’s’ PR/damage control uses euphemistic language and is often cynically seen for what it is: falsifying a person, gilding the lily or scheming, sloganeering and propaganda.[27]     There are says Peterson typically calculated ends so as to impose say an ideological beliefs,  that “I am right”, to appear competent, to ratchet oneself up the dominance hierarchy;  to avoid responsibility;  to rationalise anti-social outlook  or to minimise immediate conflict.[28]   As a result Spin Miesters-Politicians-Marketing “Hypesters”-political/social monitor work mates can be viewed as people who game the  system,  play loose with the truth or just lie and will throw a colleague or friend under a bus.

Alfred Adler called this “a life of lies.” [29]   A life of lies entails  the manipulation of reality for predetermined ends.  It has says Peterson two premises. First, that current knowledge- I know everything I need to know- is sufficient to determine what is good for the future; and secondly, reality would be unbearable if left to its own devices. This is objected to on the grounds that it assumes the objective is ultimately worth obtaining and that there is no error in that course.  Then it is valid only if reality is intrinsically intolerable and can be manipulated.  Reliance is placed strictly on rationality, which Peterson says inclines to arrogance.  He draws a parallel with John Milton’s supreme star rationalist, Satan, from Paradise Lost.[30]  Bending oneself to a life lie, if the goal is wrong, is a path to an unhappy torment.

The ‘life of the lie’ predicament and the topic of this essay may also be explained by Isaiah Berlins use of the archaic Greek poet, Archilochus’ simile of the hedgehog and the fox.  The hedgehog knows one thing and is closed whereas the fox knows many and is open to data and reality of the world.[31]

Where a person’s reputation is at stake truth is vital.[32]  Lawyers for example have a duty of candour to the Court for integrity of decision making.  The Client Care Rules support this but the rule seems to have a half-life in reality with some counsel or they sail close to the line with innuendo, spin and sophistry. (E.g. “that theft is a practical commercial solution”). 

 

In conclusion it is my  argument that to thwart or avoid  a person’s story so as to avoid a contrary view which is a discomfort  in favour of therapeutic conformity of comfort, as defined by an  ideological tribal  group, rather  than that of   truth,[33] is to live a lie.  Lies betray human rights, human dignity and degrade social interactions to ones marked by, insincerity, indifference and lack of empathy.   Where the motive is avoidance then sins of commission and sins of omission are not  confronted.   To fail to speak and to hear are the means of how the trains ran to Auschwitz, how a colleague is bullied at work and succumbs to a break down and discrimination.   When that happens the curiosity to discover, to see what is authentic and meaningful in life decomposes to a decadent nihilism.    Life and reality  becomes the deceptive, unreliable and inchoate  shadowy world of Plato’s cave simile.

It is imperative that our private, social and professional discourse maintains its open nature of discourse.  The life of lies is bleak.  Courage in speaking travels  in tandem with the courage of the will to listen, courage to hear,  courage to believe and change one’s mind and to advance to a greater understanding and thus closer to the authentic and real, which is the pursuit of  truth.

******

Graham Hill, MA (Hons) Ll.B (Hons)
Nelson
24 October 2018

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[1] Liu Xiabo cited on https://www.brainyquote.com/quotes/liu_xiaobo_510283 (accessed 05102018)

[2] The simile is that of the fox, who knows many things and the hedgehog who knows one big thing  is from the  Archaic Greek poet Archilochus fl 680 to 645 BCE.  Isaiah Berlin, The Hedeghog and the Fox: An Essay on Tolstoy’s View of History, Phoenix: Orion Books Ltd, London 1953 1978, 1999.  The hedgehog is suggestive of the totalitarian mind set of the closed society.

[3] Thomas D Williams, “Pope Francis: If you say something I do not like, I have to listen even more.” In Brietbart 4 October 2018 (https://www.breitbart.com/national-security/2018/10/04/pope-francis-if-you-say-something-i-do-not-like-i-have-to-listen-even-more/ (Accessed,  5 October 2018)

[4] See the n 25

[5] “Lushington D Brady, “Bureaucrats to the Rescue” Whale Oil 12 October 2018  (Accessed 12/10/2018)

[6] In the republican Rome a form of othering or “un-personing”  was proscription: “Proscription, Latin proscriptio, plural proscriptiones, in ancient Rome, a posted notice listing Roman citizens who had been declared outlaws and whose goods were confiscated. Rewards were offered to anyone killing or betraying the proscribed, and severe penalties were inflicted on anyone harbouring them. Their properties were confiscated, and their sons and grandsons were forever barred from public office and from the Senate: https://www.britannica.com/topic/proscription.

[7] Law Talk # 913  (1/12/2017) Feminist Judgments Project Review: http://www.lawsociety.org.nz/practice-resources/research-and-insight/legal-publications/from-tempting-idea-to-weighty-tome (accessed 5/10/2018); In New Zealand there is  The Workshop, a research, policy and storytelling collaborative:  https://www.theworkshop.org.nz/

[8]Jonathan D Salant, “Booker tells Kavanaugh that Christine Blasey- Ford’s Accusations were no Political Hit”,  in NJ.com 28 September 2018. Speaking your truth is  species  of the “inner light” or “calling and is of a slightly differing order: https://www.nj.com/politics/index.ssf/2018/09/booker_to_kavanaugh_fords_accusations_were_no_political_hit_job.html (Accessed 6 October 2018) 

[9] Rod Liddle, ‘The Truth is We Prefer to Lie’, The US edition of the  Spectator: htps/spectator.us/2018/10/truth-prefer-lie/  (accessed 5 October 2018).

[10] Tversky etc

Ian  Buruma https://www.vanityfair.com/style/2018/09/ian-buruma-new-york-review-of-books-exit. (Accessed 6 October 2018) see alos n 3 above.

[12] Harvard Emeritus Professor of Law  Alan Dershowitz cited by Lauretta Brown, “Dershowitz on Kavanaugh: What’s Happening is Sexual McCarthyism-‘setting a terrible precedent’ in Townhall 5 October 2018

[13] How often are the Lawyers Client Care Rule 2.8 – the rule to report lawyers’ misconduct and unsatisfactory conduct - invoked?

[14] Flemming Rose, The Tyranny of Silence.. Cato Institute, Washington DC 2014, 2016, outlines the threats to one of the cartoonist of the Muhammad cartoons featured  in Jylannds Posten;  and then there are  the murders of staff at the offices of Charlie Hebdo in Paris and the fatwa against Salman Rushdie.  The US campus non platforming cases do seem have this as a sub text or  theme.

[15] John Fueredy, Velvet Totalitarianism,  (1997)  Vol 28:4 Interchange 331-350.

[16] To which Martha Nussbaum refers to as the liberty of conscience.

[17] Flemming Rose, The Tyranny of Silence.. Cato Institute, Washington DC 2014, 2016, p. 6

[18] Pope Francis Compares ‘Fake News’ to excrement[18]   http://www.breitbart.com/big-government/2016/12/07/pope-francis-decries-fake-news-like-excrement/#disqus_thread.   

[19] It should be noted that Popes John Paul ii and  Benedict (who spoke in the  UN in April 2008) were active in promoting the human rights standards for the Roman Catholic Church with emphasis on the  inherent dignity of the  person (which after all is a Christian value): Compendium of Social Doctrine for the Church 25 September 2006. 

[20] Ibid

[21] Alexander Solzhenitsyn,  Live not by Lies, Moscow 12 February 1974,  Downloaded  from  ioc.sagepub.com Index on Censorship 2 2006 at 203 accessed on 05102018; Alexander Solzhenitsyn, The Gulag  Archipelago  2, 1918- 1956 Parts III to IV, Collins Fontana, 1975, 1976 .  In Part 4  chapter 3, “Our Muzzled Freedom”; Flemming Rose, The Tyranny of Silence.. Cato Institute, Washington DC 2014, 2016, p. 119, ,

[22] Cited as a  chapter mast head in  in James Comey,  A Higher Loyalty: Truth Lies and leadership,  MacMillan 2018 at page 50

[23] Dr J B Peterson, 12 Rules for Life, Penguin 2018 Rule 8, p,. 204

[24] Alexander Solzhenitsyn,  Live not by Lies, Moscow 12 February 1974,  Downloaded  from  ioc.sagepub.com Index on Censorship 2 2006 at 203 accessed on 05102018

[25] Language  also ceases to be neutral.  Alexander Solzhenitsyn, The Gulag  Archipelago  2, 1918- 1956 Parts III to IV, Collins Fontana, 1975, 1976 .  In Part 4  chapter 3, “Our Muzzled Freedom”  at 617 he talks of universal ignorance, mistrust, and disinformation- the  cause of causes of everything that took place  p 628-9-8 Solzhenitsyn discourses on this  topic for several pages- e.g. “There is no man who has typed even one page  ....  without lying. There is no man who has spoken from a rostrum . . . without lying;  There is no man who has spoken into a microphone . . . without lying.   But if only it had all ended there!   After all, it went further than that: every conversation with the management, every conversation in the Personnel Section, every conversation of any kind with any other Soviet person called for lies—sometimes head on, sometimes looking over your shoulder, sometimes indulgently affirmative. And if your idiot interlocutor said to you face to face that we were retreating to the Volga in order to decoy Hitler farther, or that the Colorado beetles had been dropped on us by the Americans---it was necessary to agree!  It was obligatory to agree!  And a shake of the head instead of a nod might well cost you resettlement in the Archipelago…. But that was not all: Your children were growing up! If they weren't yet old enough, you and your wife had to avoid saying openly in front of them what you really thought; after all, they were being brought up to be Pavlik Morozovs, to betray their own parents, and they wouldn't hesitate to repeat his achievement. And if the children were still little, then you had to decide what was the best way to bring them up; whether to start them off on lies instead of the truth (so that it would be  easier  for them to live) and then to lie forevermore in front of them tool or to tell   them the truth, with the risk that they might make a slip, that they might let it out, which meant that you had to instil into them from the start that the truth was murderous, that beyond the threshold of the house you had to lie, … just like papa and mama

[26] Dr J B Peterson, 12 Rules for life, op cit p 209

[27] Ibid

[28] Ibid

[29] Ibid p 210 citing  Adler 1973, “Life Lies and responsibility in neurosis and psychosis: a contribution to Melancholia, in P Radison, The Practice and Theory of Individual Psychology, Littlefield & Ass. Totowa, NJ

[30] Ibid

[31] Isaiah Berlin, The Hedeghog and the Fox: An Essay on Tolstoy’s View of History, Phoenix: Orion Books Ltd, London 1953 1978, 1999.

[32] Ellis v LCRO [2013] NZHC 3514 at [74] and [75] per Williams J

[33] John Fueredy, Velvet Totalitarianism,  (1997)  Vol 28:4 Interchange 331-350.