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Calls for hate speech legislation: 'Free speech is not the justification we think it is'

29 March, 2023 

Interview by Milly Smyth, adapted by Georgi Striling

Photo: Corey Fuimaono.

Listen to the full interview.

In lieu of the recent protests against anti-trans campaigner Posie Parker in Tāmaki Makaurau last Saturday, there has been widespread debate across Aotearoa surrounding the balance between conserving freedom of speech and preventing hate speech. 

Dylan Asafo, a senior law lecturer from the University of Auckland, told Milly Smyth on 95bFM’s The Wire that free speech has long been weaponised as a justification for the expression of hateful rhetoric against marginalised communities. 

“While people may think of free speech as an absolute and inherent public good, it is something that does need to be limited.” 

Currently, under the Human Rights Act 1993, it is against the law to publish or distribute threatening, abusive, or insulting words likely to “excite hostility against” or “bring into contempt” any group on the grounds of colour, race, ethnic or national origins.

Asafo argued that free speech laws should be expanded to protect against hate speech on the basis of gender, sexual orientation, gender identity, and religion.

Regarding our current hate speech laws, Asafo said they leave more to be desired.

He pointed out that the Posie Parker debacle revealed the need for reform to allow us to protect our trans communities from hateful, transphobic rhetoric. 

Asafo stated that the way hate speech claims are being assessed should also be reframed. 

“We also need to dismantle what is the objective standard imposed on hate speech laws because, at the moment, hate speech is only looked at objectively, without due consideration of the opinions and the views of targeted groups.”

He highlighted that most judges in Aotearoa represent the Pākehā male demographic and are responsible for assessing hate speech claims with an objective lens, which is a clear issue. 

“We need to include subjective views of targeted groups when hearing hate speech claims in the courts.”

Reforming our hate speech laws has been in discussion since 2019 after the Christchurch terror attacks. 

A Royal Commission of Inquiry into the attack uncovered how inadequate our hate speech laws were. However, few changes recommended by the commission have been implemented.

Asafo said that although the past two Labour governments have claimed they would like to proceed with the reforms and proposals, backlash from conservative parties has caused the issue to be shelved.

He added that a common issue halting hate speech law reform is the widespread commitment to protecting free speech absolutely and that the sentiment that free speech is inherently good must be re-evaluated. 

“It is really important we realise that free speech is not the justification we think it is, that it has actually invoked violence towards our most marginalised.”

Asafo maintained that while recent messaging from the government suggests that hate speech law reform is not on the agenda at least until after the election, that it is important to continue pushing for hate speech reform, to remind our MPs that it is an issue many people care about. 

Public interest journalism funded through NZ On Air