In Mid-March as Covid-19 was imminent, our Minister of Justice, Andrew Little, stated that the ‘hate speech’ legislation was
to be brought forward. Ideas for
legislative change have existed since 2017 on.
The impetus is owing to 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 the objective
approach 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.
But 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.” The plebs
sordida and their public interest is such a tiresome bother. It is an attitude, which is elitist and
paternalistic and one that has been seen gurgling away in Brexit debate from
‘remainers’ in the UK. Chris Trotter in
his article on The Daily Blog 21
February 2020 wisely puts it: “Building trust and amity between peoples is
achieved by starting conversations- not by shutting them down.”
“Derailment” can be read as a euphemism for precluding
either ‘disagreement’ or a process tested by transparency or “there might be
protests”, also known as the right of assembly. The approach savours of bias or
predetermination with UK deference to “experts, which can also be a rhetorical device
to forestall debate and contestability. In Court cases, expert testimony is invariably
met by opposing expert testimony.
Experts and their opinions are not politically value-free, nor is there one “EXPERT” position and experts are not and should not be, and are not, an unimpeachable neutral moral force
beyond public scrutiny when it comes to policy implementation which is
political matter. The “weighing” that the
Ministry says it is involved in is not a public service issue- they are not
moral guardians- but a matter of political judgment. Political judgment ought not be devolved to
unelected experts. If dissent and
questioning is excluded and policy that emerges that becomes law without public input then we are no longer
part of the Demos. The
example of Stalin’s infamous Tromfir Lysenko is a warning of expert
infallibility once on top politically. One expert the HRC has consulted with, and who
is not above criticism, is an activist with biases and who is not legally
qualified. This is not to derogate from her social work expertise but it does
not make her, with the risk of “expertise slippage” an expert on New Zealand
jurisprudence.
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 takeaway is debate is forestalled and avoided as the moral Clerisy, as shrinking violets, might find the “discussion”, the “conversation”, disharmonious and of horrid disagreement and thus
hateful. The risk of the UK model of the
Public Order Act 1986 is its extension to deal with dissent by arming police
and prosecutors.
Worse, the door is closed to robust and frank
discussions on hate crimes, especially those determining what speech is 'hateful'
leading to the risk of politically weaponising state agencies to curate,
cleanse or shut down an opinion that is not welcome. Do we really want to have imposed the jurisprudential
mess that the UK Public Order Act 1986
type of legislation entails? Should the
Human Rights Commission (the Chief Commissioner’s political orientation is known as pointed out by Shallom
Kiwi in an article on 8 October 2018) and the Ministry of Justice be determining, behind closed doors, rather than proposing what is to be captured or not ? Is internal debate of real efficacy, free
from careerists mindful of promotion and subject to employment law duties that
may not speak up or be free from internal departmental group think? Presently, the outcome of the Ministerial “chinwag”
does not appear from my inquiries and research to be heading to a Select
Committee. The US DoJ has been shown to
have a political orientation which has been deployed in gross prosecutorial overreach, so we should look at recent US events.
Meanwhile in March, in a republic ‘far far away’
political speech prosecutions were faltering.
Another Justice Department was digging
itself out of the mire, as ours may be digging into one, which it thinks is
achieved by precluding public debate. The
US Department of Justice in taking out the Mueller /Rosenstein trash, by filing a memorandum in Court seeking the
dismissal of two of its Russian Collusion Bot/Troll farming cases against two
Russian corporations (US v Concorde Marketing and Consulting LLC and Concorde Catering LLC) which lay in a raft of cases. In face-saving, the
prosecution professed that there was no longer any point in the litigation and
blamed the defendant for playing with the system.
These cases, along with Lt General Flynn’s case- which was perched on the rocks of abuse of process and
miscarriage of justice until withdrawn on 7 May 2020 - were part of the “legal fruit salad’ political narrative” to fan public opinion on Russian collusion by Mr Trump. But the factual ducks were not in line- no
collusion for one, no offence or duty
for another- and the politicising
of the legal process was being undone by the legal process norms. The cases, along with ‘Bridgegate’ (Kelly v US no 18-1059 decision of the US
Supreme Court on 7 May 2020 in favour of the appellants' Ms Kelly and Mr Boroni,)
have been ones of an indictment looking for a crime.
In Concorde
there is a view that the indictments were laid because it was not expected there
would be a defence and that would result in non-contested default decisions. The companies were outside the jurisdictional
and there was no possibility of extradition.
But the two companies played a stunning blinder by instructing Washington DC Counsel,
Mr Dublier who has un-footed the
prosecution on the basis of there being ‘no cause’ along with the fact that the principal company was not
incorporated at the material time, which either shows opportunism or incompetence by
the prosecution.
There is more “The special counsel appears to have forgotten to explain how
foreign political speech broke U.S law”.
Mr Dublier has let fly a quiver of barbs of
ridicule at the prosecution. Significantly,
in calling the bluff, he tripped procedural obligations on the part of the prosecution
to disclose the evidence against the defendants. The procedural squeeze has helped crunch the
case because the prosecution did not want to disclose or it couldn’t.
‘Weaponising’ the criminal justice system over
a political statement for political purposes was misconceived because legal processes
and outcomes are not political ones.
Both have differing teloi. This an ongoing shortcoming in present US
politics as expounded by Democrats such as former prosecutor Adam Schiff (D-CA) that having a hearing and prosecuting is an answer to political issues. It is tunnel thinking.
The prosecutor’s game in Concorde was not within the ambit of the ‘Justice Game’ which runs
on its own terms. The Court “docket”
has as its terminus, a trial.
Litigation, as the late Sir Ivor Richardson once said “is not a bus you
can get on and off at will.” Andrew
McCarthy, a former prosecutor, and writer for the National Review has said,’ if you are going to lay the charge you
better be prepared to go to trial.’
The prosecution had its bluff of gaming the parties,
and the Court system, well and truly called.
McCarthy’s view is that the “indictment
[was] more a political statement than a charging instrument.” Adding, “The
indictment was political theatre never meant to be tried in court. More than an investigation, the Mueller
probe was the wellspring of a political narrative.” We all expect the justice system, imperfect as
it may be from time to time, to be politically neutral and strive for impartiality. It seems, once it is weaponised it might not be a very big leap to entities like the Gestapo, the NKVD/ KGB
and the Stasi, and one that deftly
ensnares defendants such as Lt Gen Flynn
US v Concorde management is about Free Political Speech Online.
The Concorde Management case is about Russian“ troll farming” from the Russian Internet Research Agency involving
the release of bots and anonymous posts onto FaceBook and other social media that was critical of
Hillary Clinton in her 2016 bid for President.
Yet the importance for present
purposes is that Concorde has underpinning it the question
of free political speech. Can the
government shut down, and cleanse the polity, of free speech emanating from offshore which
the DoJ prosecutor’s deemed as ones “sowing discord” and were “divisive” ( does this mean disagreement, controversial,
unpalatable or hateful?)? Adam Mill in
the Federalist (2018) saw that the DoJ was trying to “control manage and curate
political ideas from abroad” to its narrative of what is acceptable.
When pressed the prosecution
could not identify what law had been broken. The court ordered that the DoJ
needed to show that there was a duty for foreign opinion to seek the permission,
as sentinel gateways, of the DoJ and the FEC (Federal Election Commission)
before it was posted online. Absent a
duty there was no case. The idea of a
state gateway filter of opinion of what politically a prosecutor doesn’t like
and disagrees with inherently divisive and divisiveness is a matter of partisan
perception. China curates incoming
opinion in a similar way. The fact is
that any post, Mill says, for either Mrs Clinton or Mr Trump, given present
polarisation in US politics, would be divisive.
Yet, it was the criticism of Mrs Clinton, not Mr Trump that gave rise to
the prosecutions. The Town Square was being shielded for one but not the other. The Judge in the event considered that the
‘sowing of discord’ was not illegal.
A disturbing if not a noxious
feature was that the initiating of a prosecution for the political criticism of
a candidate was that it could not provide detail of the law being relied
on. For Adam Mill, this was “troubling.” It savours of the “whiff” of ‘law-fare’ deployed
by a weaponised DoJ to resolve adverse political content for “its” candidate. As John Stuart Mill says in On Liberty
(1859), a dominant
opinion (discourse) does not readily accept a minority one. It is likely to view a critical
differing opinion as divisive and disharmonious. The US
departments of state such as the DoJ (and its FBI) have been acculturated and
subject to the long periods of Democratic rule along with the Presidency. The Democrat Presidency – and Obama was unabashedly
progressive- appoints senior executives and staff selection will flow from that
as like recruits like. A political viewpoint has been inculcated and
embedded in the executive wing as the dominant discourse and has become a
political bias.
The FBI in Flynn’s case has
manifested bias in its prosecution. In Concorde, it was the critical speech about
Clinton that was bad, divisive and discordant but it was okay for Trump.
Adam Mill contends that the more
divisive and controversial that speech
is the more relevant it is. For him,
the source does not matter. It was known
that the Russians would interfere and did interfere. The Guardian (14/10 2017) noted that the
Russians used social media to “attack the social fabric” along the sensitive
lines of race gender class and religion. Both Messrs Clapper and Comey have
acknowledged that Mr Putin did not like Mrs Clinton.
The Russian aim was to sow
discord and destabilise the country along existing divisions rather than on
party lines. Mill, in a form of
argument rejecting state paternalism, says “We are free citizens and can decide
whose speech and claims of foreigners have merit or not.” Adding, political speech is best dealt with
by open refutation and debate not by the prosecution because that puts decision
making as to what is unacceptable speech into the hands of the DoJ.
It is not for politically
motivated prosecution and departments of state (e.g. our DoJ and HRC) to cleanse
and sanitise the polity of what it thinks is unacceptable or discordant speech. That decision is a political decision and is
inherently divisive. Two devices have
been deployed to sidestep undesired contrary opinion. First is the idea that the state, in neutralising disagreement and opinion, does
so by the charade of “the experts” or ‘the science’. Neither of which alters the character of a
political comment nor compromises its value.
It is simply a rhetorical appeal to the fallacy of “higher authority” to deflect
contradiction. The other, in the name of therapeutic politics- as seen
in the well-meaning slogan ‘be Kind’ which is to put off, circumscribe, displace contestability and open argument by
dissolving them into a solution of euphemisms such as ‘civility’ ‘caring’ and ‘Be Kind’. But the corollary is that it may easily suffer slippage and define,
pejoratively, ‘disagreement’, ‘divisiveness’
and ‘disharmony of ideas “ as heresy and
then the moral sledgehammer, “hate .”
Hate speech is a foremost a
political concept. Its use in political discourse
involves a sleight of hand to gain assent.
Hate is a morally, and thus a,
politically loaded word and can be deployed manipulatively by garnering support
on it as a subject and then plugging-on an object where support for the subject will carry over
to the whatever the designated object is.
The Free Speech Coalition, in its 31 March 2019 Press Release overstated matters on
legislative overreach, except where it
was obliquely referring to the Public Order Act 1986 (UK), but 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’?
But as defined legally it generally means something that could upset
someone. Overseas examples often just
give authorities the ability to say ‘it means what they say they want it to
mean from time to time’. Recently, in
Britain their version of the law was used to bring criminal charges against an elderly
woman who refused to use a transgender man’s preferred designation as a woman
and insisted on referring to him as a man who wanted to use women’s toilets.
The US example of “lawfare” to
shut down speech is ominous as is our government declining public debate on
disharmonious speech. I see the UK
Public Order Act 1986 as a parallel to be used in the same way to promote lawfare. The UK experience of shutting down
criticism of trans gender pronouns has more the look of punishing heresy. State coercion can be very heavy-handed.
Hate speech, as an extreme and
loaded moral term censors (and leads to self-censorship) language and impinges
on other protected rights by the risk of prosecution for an upset. 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 are based on
oppressors and oppression and is fuelled
by identity politics.
The incitement provisions in s 131
tend to the politically neutral and have an objective test Prosecution
requires, as a safeguard, the Attorney –General’s consent under s 132. But it still falls on the agency concerned
and prosecutorial discretion to get to the Attorney- General. Complaints related to the comment “pale, male
[immutable characteristics] and stale” while made to the HRC, and from a Google
search, do not seem to have gone far unless dealt with in mediation. The lack
of published outcome is unsatisfactory. I suspect that those who complained were
making a point about consistency and as Attorney General Barr has said of the
Flynn case “There's
only one standard of justice.” Partiality of law is a recipe
for social instability.
Without open discussion or
details on the ambit of any change to the legislation or even if a new Act on
the lines of the UK Public Order Act 1986 is unknown. Hate
crime on the UK model is a fraught concept and open to abuse politically. The
present Human Rights’ Commissioner, while academically qualified and
experienced, has come from the UK, a former UK Labour Party Candidate and was a pro-Corbyn candidate. He prima facie is an ‘expert’ with political
colours.
Freedom of speech relates to
freedom of conscience and thus thought.
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.
The legal battles and
prosecution, which carries 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 for 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, 10 May 2020
