Waikato Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Waikato Law Review |
|
READING HATE SPEECH FROM THE BOTTOM IN AOTEAROA: SUBJECTIVITY, EMPATHY, CULTURAL DIFFERENCE
The starting point for this encounter between hate speech and free speech is Franz Fanon’s description of black alienation in a world of whiteness.
I had to meet the white man’s eyes. An unfamiliar weight burdened me. In the white world the man of colour encounters difficulties in the development of his bodily schema ... I was battered down by tom-toms, cannibalism, intellectual deficiency, fetishism, racial defects.... I took myself far off from my own presence .... What else could it be for me but an amputation, an excision, a haemorrhage that splattered my whole body with black blood?[1]
This “agonising performance of self images”[2] signals the pain and complexity of psychic identification in settings of cultural alienation. It is both a source of and evidence for what I shall argue in this article. That is that, while scholars and commentators (either deliberately or unthinkingly) restrict themselves to the conceptual repertoire of liberal legal discourse, debates about using law to suppress and to deter racially hateful speech cannot recognise the bitter significance of hate speech and the nature of the injuries it inflicts.
Since I shall argue against the claim that hate speech should (or can) be defined as a socially and culturally neutral phenomenon,[3] I will not offer a formal definition, but it will be useful to indicate broad parameters of meaning.[4] The term “racially hateful speech” is intended here to signify incidents of face-to-face vilification in the form of physical or verbal behaviour that stigmatises or victimises an individual on the basis of his or her race or ethnicity[5] and that creates an intimidating, hostile or demeaning environment.[6] A further dimension of definition may be drawn from the characterisation of hate speech as a kind of group libel that vilifies and harms the reputation of individuals or groups on the basis of their race or colour.[7]
Critical legal theory seeks to uncover alternative accounts of how law works. It looks to demystify, dissect and deconstruct that which the liberal legal model of law assumes; to render problematic that which has been most taken for granted. In that tradition this article deconstructs[8] a recent authoritative analysis of the relationship between provisions relating to “free speech” in the New Zealand Bill of Rights Act 1990 and in the Human Rights Act 1993, and introduces some alternative ways of looking at the freedom of insult and expression.[9] The conventional framing of an even handed balance between protecting democracy (an abstract concept) and protecting the people’s feelings (allocated a similar quality of abstraction) masks the very significant difference that exists between ideas and experiences. My attempt to highlight this difference leads me to adopt an approach which (following critical race theory) looks to the perspective of those at the bottom.[10] This leads me to suggest that the legal deadlock implicit in arguments that frame the issue through abstract notions of rights and freedoms might be thought around (if not broken) by adopting an alternative conceptual repertoire, drawn from sociological thought, that includes empathy, subjectivity, and cultural difference.
Although there has been ethnic diversity in Aotearoa New Zealand since British settlement, refusal to recognise the Treaty of Waitangi as a legally binding document[11] has meant that the country governed itself as a mono-cultural white entity.[12] In the 1970s, Pacific Island people invited from Samoa, Tonga, and Fiji, to augment the labour force added diversity, but government immigration policy still strongly favoured citizens of Britain and the white Commonwealth as the preferred migrants.
In 1987 New Zealand abandoned the practice of limiting entry to migrants from specified countries of origin and replaced it with a system of points given for desired characteristics.[13] The resulting increase in ethnic diversity has brought more public racial confrontation and visibly hardening xenophobia. At the same time, significant government efforts to honour the Treaty of Waitangi and to recompense MŠori tribes for past confiscations and compulsory purchases of land have triggered resentment and resistance in many “white” New Zealanders.[14]
The practice of managing race relations through the state funded and controlled Office of the Race Relations Conciliator was New Zealand’s response to obligations consequent on signing the International Convention on the Elimination of All Forms of Racial Discrimination. Under the Human Rights Act 1993 (which replaced earlier legislation) the Race Relations Office is authorised to hear complaints of racial discrimination measured against legally defined prohibitions which include restrictions on certain kinds of speech.[15] At the same time, the Bill of Rights Act 1990 contains a guarantee for freedom of expression and this is perceived by some to make controls on racist speech legally inappropriate, if not constitutionally improper. In the American legal system there is little that is more taken for granted than the sanctity of free speech, protected in the First Amendment to the Constitution, and interpreted by the Supreme Court. Recently, strong arguments for the sanctity of free speech, no matter what the cost, have also been raised in New Zealand.
In the conventions of liberal legal scholarship this disjunction between laws made in response to different social imperatives is cast in the form of a contest between two competing principled demands - freedom and equality. Beneath this framing of what is at stake lies a bedrock of liberal legal assumptions, “truths” about the nature of law and about the relationship between law and racism. Alternative scholarly accounts of this relationship, however, argue that two foundational principles of liberal legality - equality and universality – actually import racism into law while simultaneously claiming to oppose it. Fitzpatrick argues that because the liberal world-view of law privileges it as a form of universalistic ordering that transcends material life, law may simultaneously be complicit in the perpetuation of racist beliefs and values and yet claim “innocence” of racist particularity through that same universality.[16]
This may explain why the uncomfortable question of racism has mostly been ignored in local legal publications. Possibly practitioners, scholars, and academics are unaware that there is a problem, perhaps they believe that expressions of racist hatred are not the law’s business. There is really no way of knowing. Nevertheless racism is a significant part of the New Zealand social fabric; a flaw in the weave that, in particular moments of violence, abruptly tears apart comfortable illusions of mutually respecting citizenship.[17] It is therefore within that social context that any debate about the desirability of restricting racially hateful speech will inevitably take place.
In the following discussion I identify three positions which may be taken about the desirability of enforcing legal restrictions on the public utterance of racial hate speech. These are: first, the claim that the virtues of free speech in a democratic society are so great that even speech promulgating racial hatred deserves protection (which I describe as law school orthodoxy); second, proposals to restrict speech that actively fosters racial hatred and injury (described as law school unorthodoxy); and, finally, some alternative (and explicitly sociological) concepts for evaluating the desirability of restrictions on racial hate speech.
Argued and justified with varying degrees of sophistication, the orthodox defences of free speech claim that the benefits of open expression outweigh all potential dangers and damage. Those who argue that law must ensure freedom of expression, even for hate speech in its most extreme forms, do so both by asserting the values to be achieved through unlimited speech and by adducing reasons why prohibitions must be avoided. Pro-speech arguments declare the importance of a market place of ideas for the proper functioning of democratic government. In this perspective the best way to deal with the negative effects of harmful speech is, according to Justice Louis Brandeis, with “more speech”. Free speech is conceived as a “public right” whose purpose is to protect the ability of people as a collectivity, through rich public debate, to decide their own fate.[18] It is said to offer the value of individual autonomy experienced in self-actualization through speech.[19] At the extreme it has even been claimed that “offensive graffiti and race hatred are often the only means of self expression of some sections of the community”.[20]
Arguments against suppressing hate speech include the slippery slope claim that, once any suppression is allowed, the next suppression may be of precisely that speech which minorities, for example, would want to have heard. It is further asserted that controls on freedom of expression prevent or deter valuable political debate and even that they encourage state control of ideas which is itself a form of mind control[21](a version of the slippery slope argument). Absence of proof that laws prohibiting racist abuse and harassment ever achieve their intended effect and the need to expose race hatred as a disease so that treatment (through education) can be provided are also claimed. Government suppression of hate speech is also said to deprive members of the target group of “important if distressing knowledge”.[22]
Amongst the most visible supporters of the pro-speech position in New Zealand has been Grant Huscroft who, in an essay collection designed to serve as a law school text,[23] asserts that the benefits of free expression guaranteed in section 14 of the Bill of Rights Act are threatened by the controls on hate speech enacted in the Human Rights Act 1993 and in New Zealand defamation law. I shall argue here that his central focus on discussing and defending freedom of expression through a standard United States First Amendment constitutional position[24] may have drawn him to overstate the significance of First Amendment jurisprudence for New Zealand and to underestimate the benefits which derive from preventing overt expressions of racial hatred in this society.[25]
Huscroft’s discussion is explicitly grounded in his perception that New Zealand citizens take freedom of expression far too lightly. Neither the legal profession nor the general public appear troubled that their law has a history of limiting freedom of expression.[26] When compared with American expectations of freedom of expression, we just do not measure up. American awareness that “like most rights, freedom of expression often comes at a high price - the requirement that they tolerate expression they may find intolerable”,[27] is adversely contrasted with New Zealand laws that allow politicians and public figures to take defamation actions; publication bans and name suppression in judicial proceedings; prior restraints on the press; and censorship in various artistic media.
At the heart of his discussion of freedom of information in New Zealand is the assertion that, since section14 of the Bill of Rights Act 1990 guarantees freedom of expression, we must now look to reforming both the law of defamation and the Human Rights Act 1993 because both are well established limitations on such freedom. He declares that “both have the effect of chilling the discussion of matters of public interest and concern, and neither establishes limitations on freedom of expression which can be justified”.[28] Huscroft states that section 14 was not created out of a local vision of free speech but rather by wholesale adoption of American principle, theory and debate.[29] Attempts to generate local debate were substantially ineffective, and so the justification for section 14 rests on theories developed in a quite different social and political environment. He takes this as evidence of the dangerous public lack of concern for freedom of expression in this society. He gives thoughtful consideration to the fact that there are inherent difficulties in rights’ arguments based on experiences in other jurisdictions and notes that “rights and freedoms are valued and enjoyed in different ways by different peoples in different contexts”.[30] But, ultimately, this does not lead him to conclude that First Amendment jurisprudence, developed in quite different social circumstances, might simply not resonate here: that in Aotearoa equality might well count as a higher moral value than freedom.
Huscroft argues that defamation laws are about choosing between personal reputations and the needs of political discourse. He believes that, currently, New Zealand courts are biased in favour of the needs of personal reputation.[31] His position on the appropriate reach of defamation law is directly relevant to the question of protection against hate speech because, in Huscroft’s analysis, defamation and racist hate speech are two sides of the same coin - defamation of individuals and defamation of groups. And so it is argued that section 61
Racial disharmony – It shall be unlawful for any person ... to publish or distribute written matter which is threatening, abusive or insulting, or to broadcast by means of radio or television words which are threatening, abusive, or insulting .. [or to use such words] in any public place ... being matter or words likely to excite hostility or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of colour, race, or ethnic or national origins.
and section 131
Inciting racial disharmony – Every person commits an offence and is liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $7000 who, with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons ....
of the Human Rights Act 1993 constitute an inappropriate contradiction of section 14 of the Bill of Rights Act 1990. They represent a basic conflict between freedom of expression and prohibitions on racist expression. The Human Rights Act provisions can be successful only by preventing the expression of thought which the legislature has condemned, but any such suppression offends against the protection of pure free speech. For a free speech devotee there is only one way to go: undo the race relations legislation and get rid of the Race Relations Office.[32]
The problem with this position is that it neglects a significant aspect of the New Zealand situation. To understand the local context it is important to ask why the Bill of Rights Act was enacted as an ordinary statute and not protected against alteration by a simple majority in Parliament. Why is it “simply a tool of interpretation for the courts”[33] and “an important brake on Parliament”,[34] and not the higher law “constitutional sledge-hammer”[35] that was originally proposed. Sir Geoffrey Palmer, the force behind this legislation, describes the journey to the enactment of the legislation as “a long and tortuous one” and notes that the proposal to give courts power to strike down legislation was “stoutly resisted”.[36] Local debate revealed serious misgivings about the appropriateness of an entrenched bill of rights for Aotearoa New Zealand.[37] In declining to give the overriding status of supreme law to the local Bill of Rights and enacting it instead as ordinary legislation, the New Zealand government was deliberately creating a fundamentally different arrangement from that of the United States. The Bill of Rights Act 1990 protects freedom of expression. It also protects freedom from discrimination. The Human Rights Act, three years later, names specific prohibitions against discrimination, thereby indicating that in New Zealand society these are seen as specific areas of concern. Clearly then they must fall within the ambit of the reservations provided in section 4 of the Bill of Rights Act. In a narrowly legalistic reading freedom of expression provisions in the two countries may appear to be substantially the same; but the social and legal contexts are not.
Huscroft’s arguments against sections 61 and 131 of the Human Rights Act 1993 rest on a claim that the conflict between freedom of expression and prohibitions on racist expression is fundamental and irreconcilable: the success of these laws depends entirely on how effectively they can prevent the expression of thoughts which the legislature has decided to suppress. But, as he observes, from a civil liberties standpoint, the whole purpose of freedom of expression is to protect unpopular points of view. What the community likes (presuming that community and legislators think alike) will not require protection anyway. Carl Cohen notes that, for First Amendment defenders, “The freedom to say ‘nasty, vicious, wrongheaded, and downright evil’ things is regarded as essential for the functioning of a vital democracy”.[38] For Huscroft, “Everyone must be free to express his or her opinion regardless of how worthless or odious it may be thought to be”.[39] And so he recommends, for New Zealand, the US Supreme Court finding that hate speech should be protected along with other forms of expression. To preserve the First Amendment freedoms, there must be “freedom for the thought that we hate” as well as that which we support.[40]
Clearly, such assertions are at risk of appearing unduly dismissive of those who bear the burden of the racist’s freedom. In acknowledging this, Huscroft provides the familiar set of practical justifications for allowing unlimited speech that have been rehearsed in the First Amendment debates. These include claims that laws limiting freedom of expression are hard to enforce, that they give racists free publicity and even martyrdom through court actions, and that they serve to drive racist expression underground where it cannot be countered by education. There is certainly some substance to parts of these arguments. Court hearings may provoke wide publicity for racist arguments (even when deploring them) and education is likely to have wider-reaching outcomes than the punishment of selected offenders. Arguably, though, these are reasons for countering racism with a variety of strategies rather than arguments against the desirability of controlling racial hate speech.
The ideological position represented throughout this discussion is, of course, that of libertarianism. A premium is placed on free expression conceived of as an almost absolute human right and the cornerstone of democracy. This is because all freedoms are seen to depend on the right of every citizen to dissent from government. Constraints are found to be justified only where unrestricted freedom of expression poses an immediate danger to that citizenry. Because this “citizenry” is conceived as an homogeneous entity, designation of groups for special protection is impermissible. Any legislation specifically prohibiting expressions of racial or any other kind of hate directed against members of designated groups is defined as bad law. Only expressions dangerous to the (universal, collective) “public order” might conceivably be restrained.
Huscroft represents the arguments of American First Amendment legal orthodoxy. But he only briefly notes a counter ideological position still argued from within American law schools. This is a set of egalitarian arguments which give priority to rights of equality, dignity of the person and racial harmony, and accept that “reasonable limits” on freedom of expression may be required to safeguard these rights. Such arguments come out of developments in socio-legal scholarship often described as critical legal studies and their own critical offshoot - critical race theory.
Scholars who adopt the critical legal studies position believe that law is, among other things, a method of oppressing certain categories of people while advancing the interests of others. To substantiate this claim, they draw on conceptions of hegemony, domination, legitimacy and consciousness to reveal how oppression occurs. Those who describe themselves as critical race theorists use, and advance, some of the insights from the critical legal studies position in order to show that laws may be racist in effect and that legal systems in many places effectively contribute to the oppression of minority racial groups.[41]
One of the main philosophical areas of contest between liberal-legalism and critical theory engages the question of what is “true” or what shall count as “truth”. In the human sciences modernist thought assumes that truth is accessible to all human subjects through the operation of reason; once the nature of human beings and their situation has been discovered, society can be organised in a manner that is most suited to human nature. Post modern critique demonstrates that the modernist project has represented particular interests and had potentially harmful consequences both for those who are made the objects of, and those whose circumstances are excluded from, study.[42] When the world is conceived with reason and truth as the ultimate measurements of reality, this effectively excludes alternative realities and viewpoints. A claim out of post modern thought rejects any possibility of ultimate truth, and turns instead to an investigation of language and the ways in which it is used to justify certain positions. New questions become meaningful. How, for example, do the situations of certain categories of people correspond to the creation of those categories by others?
Liberal legal justification of the legal system is characterised by claims about the separation of law from other forms of social control and the presentation of rules as objective and as the only legitimate normative mechanism.[43] Together these produce (with apparent objectivity) the perception that law really serves the (imaginary) totality of all people in society. Critical legal studies thought sets out to provide empirical demonstrations of the many ways in which this is not so. It also sets out to uncover the ideological nature of the law; how the creation and maintenance of legal categories serves to exclude other ways of thinking and imagining alternative social arrangements. The language of law generates an impression of legal categories as conceptual and social facts rather than as human creations, variable and available for change.[44]
Although the enabling conditions of critical race theory lie in the epistemological diversity of post-modern thought, and writers in this field draw on a range of post modern methods and strategies, some essentially modernist elements remain. Its creators locate it within the experience of racial groups (conceived as historically specific and always identifiable), subordinated both by and through the experience of racism - directly by racial slurs and threats and indirectly by systemic structural discrimination. The possibility of opening up previously incontestable truths and assumptions to intense scrutiny, criticism, and reinterpretation makes a post modern intellectual position particularly fitted to revealing underlying, even hidden, narratives of liberal-legalism. But the political project of emancipation as conceived by critical race theorists depends also on modernist metanarratives.[45] In their various ways Derrick Bell,[46] Mari Matsuda,[47] Patricia Williams,[48] Charles Lawrence III,[49] and Angela Harris[50] all argue that reason and truth, and rights and freedoms, are essential to their struggle for substantive equality in American society. That is, their claims for justice are based in an appeal to (universal) shared values within the political community.
Within these parameters critical race theorists have offered a new jurisprudence of hate speech.[51] They take the view that “interests of equality and dignity might sometimes justify limits on what may be said”.[52] These writers point out the difference between formal equality constituted through abstract measures (and guaranteed by a colour blind constitution), and substantive equality which takes into account the lived experience of individuals whose subjectivity is constituted in and through racism in their everyday world. Delgado describes the hate speech controversy as “the Plessy v Ferguson of our age” where the issues are “seen as a contest of rights through a kind of perverse neutralism” in which
The white ... insists on the freedom to say whatever is on his mind. The black or brown insists on the right not to hear what is on the white’s mind when that takes the form of a vicious racial slur. One interest balanced against another, one emanating from one part of the Constitution (the First Amendment), the other from a different part (the Fourteenth Amendment) – seemingly a perfect standoff.[53]
And he believes that, as in the case of Plessy, history will tell us which represents the more compelling moral interest.
Critical race scholars argue that racial hate speech should attract civil[54] or criminal[55] sanctions.[56] Their carefully crafted proposals scrupulously require the least possible interference with speech freedoms, they frame their proposals through concepts drawn from First Amendment jurisprudence (for example, Matsuda’s “fighting words” formulation),[57] and most proposals for hate speech regulation are limited to the control of face-to-face insults between individuals. They do not generally propose controls on the more comprehensive issues of hate speech in books or in speeches to crowds.
But, not surprisingly, since they are legal scholars steeped in notions of the power and importance of individual freedom (whatever that may mean) and the United State Constitution as both a necessary and sufficient condition of democratic society (whatever that may mean), these scholars allow too much weight and power to their conception of the law. Ultimately, this is still analysis based in United States rights’ thinking. And this, inevitably, circumscribes their ability to escape the conceptual seesaw where principles of liberty and equality forever balance in opposition.[58] It is because their arguments appear to be enmeshed in an over-determined confrontation that I can claim that law school unorthodoxy is as effectively trapped in this binary as the law school orthodoxy it seeks to overturn.
For me, the strength of the critical race theorists’ position lies in their insistence on holding at the heart of all analysis the reality experienced by the targets of hate speech. And so I believe that Mari Matsuda gets to the heart of the matter when she writes that
The victims’ experience reminds us that the harm of racist hate messages is a real harm to real people. When the legal system offers no redress for that real harm, it perpetuates racism.[59]
It is my doubt about the will and capacity within the law and legal thought (orthodox and unorthodox) to get beyond the limitations of constitutional ideology that leads me to explore the sociological ideas introduced in my next section.
It is neither new nor unusual, of course, to claim that legal scholars are at risk of tunnel vision in relation to the inner workings of legal doctrine and dogma; sociologists and socio-legal scholars have being saying so for years.[60] From within legal academia, Frederick Schauer has written that typical United States discourse concerning the First Amendment frequently appears to consist of a viewpoint held tenaciously in the face of significant contrary evidence – which puts it nearer to ideology than to reason.[61] Stanley Fish writes of the presence of pure assertion and blind faith in First Amendment discourse.[62] David Kairys dissects the ideological aspects of free speech in the United States to conclude that what now exists is a “recast version of freedom of speech” that serves “to validate and legitimize existing social and power relations and to mask a lack of real participation and democracy”.[63] He argues that, while originally it was struggles and achievements in the labour and civil rights movements which gained the recognition of free speech in the US, these achievements have been “falsely redefined as a set of preexisting natural rights whose essence and history are legal rather than political”;[64] that courts and lawyers have turned a fine practice into an unequally applied set of dogma. John Downing, analysing what he calls “First Amendment absolutism”, finds “undercurrents of nationalistic boastfulness and naivete” in contemporary First Amendment discourse. In a few briskly argued pages, he exposes a number of common claims in defence of the First Amendment[65] to some hard sociological evidence. The result leads him to warn that excessive deference inside and outside the US to the First Amendment as “a historical high-water mark of discursive freedom” has led to a refusal to confront its “dangerous implications” for the growth of hate speech, and this in turn has deterred the production of strategies to combat its role in developing situations of ethnic hatred in many parts of the world.
So, what would it look like to introduce some sociological concepts and evidence into the standoff where freedom of speech as the greater good always triumphs over hate speech as the lesser evil?[66]
In a well-known essay on the fate of antidiscrimination law in the hands of the United States Supreme Court, Alan Freeman[67] draws a distinction between recognising discrimination only where a perpetrator can be identified to carry the blame, and seeing it through the eyes of the victim who knows what she or he has experienced, whether or not the causation is known. It is this notion of seeing from a victim’s point of view that I want to explore in discussing a third perspective on racial hate speech. And so, although I have rejected critical race theory’s excessive reliance on thinking through liberal legal categories, I want now to use what I see as critical race theorists’ most significant contribution on this issue. This contribution is the insistence that racism is significant and deeply embedded in many if not all societies, and that this is central to the lives of those who fall into the racialised categories, who are the victims of racism.[68] This insistence is linked to the insight, framed as a claim, that subjective experience of racism must be a central part of the normative source of laws about freedom of expression. And this requires “[l]ooking to the bottom - adopting the perspective of those who have seen and felt the falsity of the liberal promise ...”[69]
Such a task may, I believe, be advanced through a careful and thoughtful use of three concepts which are not usually central in discussions of free speech and racial insult. I have already indicated that the first of these is subjectivity; the other two, empathy and cultural difference, can be used, I think, to expand our understanding of the realm of subjectivity and its significance in relation to claims that freedom for racial insult cannot be essential to democratic society. They do this by advancing the level of discussion from the formal abstractions of “freedom” and “equality” to the experiential context where subjectivity, empathy, and cultural difference have their place.
This article began with Fanon’s cry of psychic pain and dislocation. That is because his writings so clearly illustrate my claim that subjective experience is essential to normative claims to justice for victims of hate speech. Forty years later, many writers of colour observe that among the greatest destruction caused by hate speech is the loss or rejection of one’s own identity.[70] This claim might be illustrated from the many published examples cited in this article, but I want instead to make my argument by returning to Huscroft’s commentary on the New Zealand legislation and adding a counterpoint that reads in subjectivity as a central, not peripheral, element.
Huscroft argues his claim that New Zealand law contains threats to the freedom of expression through two parallel (and by implication, equal, equivalent or similar) strands. Defamation and hate speech become two sides of the one coin - each an injury to individuals which is experienced under particular social and political conditions. Because the discussion of defamation comes first, it establishes the tone and parameters for the discussion of hate speech. Defamation is about individual reputation and its principal effect is on public and/or powerful private figures who, implicitly, have more reputation to lose.[71] Huscroft argues that one of the few ways in which ordinary people can have a voice and an effect may well be through attacking politicians in robust debate. Therefore, he argues, New Zealand defamation laws improperly protect the powerful. If this were indeed so then I would not have any argument with that part of his analysis. (In fact the formulation fails to recognize that those without power still need protection against defamation in the work place. The jobs of the non-powerful and poor can also rest on reputation, even if they cannot afford expensive court actions to protect it).
But, when the second half of the discussion is constructed, it is already framed to be read within the notion of reputation. This means that expressions of racial hatred, which are designed to create fear and self-loathing in their targeted victims and to recreate and reiterate an unequal relationship of dominance and oppression, become simply a matter of “group reputation”. One consequence of this choice of focus is that section 63 of the Act appears only in a footnote. The section, which deals with racial harassment, is a frequently invoked source of claims against hate speech, and cannot be subsumed under a “defamation” rubric. The principal beneficiaries of this section so far have been MŠori women who make up over half of the 70 to 100 complainants each year.[72]
Although Huscroft notes that the civil libertarian position of total freedom of expression, no matter how odious, may seem unduly dismissive of those who bear the burden of the racist’s freedom he nevertheless thinks that the practical justifications are convincing.[73] In short, we must have what Justice Holmes described as “freedom for the thought that we hate”. But who in fact are “we”? Kim Scheppele has pointed out that the “we” of legal theory and practice inevitably produce a “they” who are outside the privileges and protections of legal meaning.[74] Theirs are the experiences that the law does not hear, cannot value. Many writers have demonstrated how women and members of various minority groups, including those constituted by race or ethnicity, regularly form the legal “they”. It is one thing to hate the thought in an abstract and principled way; it is quite another to experience, each day, such thought in action.
A recent complaint under the New Zealand race relations legislation[75] came from a woman who for months had been greeted by a work mate each morning as she joined the factory production line with “Hullo, you black bitch”. What she wanted was simple - for him to stop doing it and to apologise. I may hate the thought; but neither I nor Huscroft nor Holmes (even more so) will ever have to experience it. And this is why, again, I would call into question Huscroft’s description of the critical race theory project as an “attempt to put a human face on the problem of racism”.[76] The more I reflect on this phrase, the more it disturbs me. Here is law’s “we” - never part of a minority, oppressed only by the pains of professional life. Racism has no face other than a human one. Those who feel it in their bodies and their minds do not experience an abstract concept. There is evidence that severe or protracted exposure to racist abuse (face to face and in popular culture) can cause physical sickness including high blood pressure, sleep disturbance, tremors, and early death.[77] Drucilla Cornell, asserting the corporeal nature of hate speech, refers to Toni Morrison’s description of racist taunts “instilling a feeling of ugliness which attaches to the skin and eats into the body”.[78]
The racialising of individuals through hate speech inflicts deep internalised psychic injury that may have significant consequences for their life chances;[79] none of this is readily accessible to the legal system. It is not like a defamed politician being exposed to healthy dissent and critique for the good of the general polity. But coupling the two distorts how we are invited to think about the hate speech issue. It invites us into what Stanley Fish calls “the fiction of a world of weightless verbal exchange”.[80] And this in turn leads directly to the predictable claim that victims of hate speech are simply being “oversensitive”. And indeed the discussion does reach this point. The run of complaints to the Race Relations Office reported in the press suggests that many complaints are concerned with the relatively trivial, “inappropriate jokes, insensitive comments”. One can only ask “trivial to whom?”
Similarly, it is claimed that the legislation gives great scope for unintentional insult - insensitivity on the one side, oversensitivity on the other.[81] In a breathtaking leap into point of viewlessness we are told that “[i]nsult can also occur despite the absence of any objective insult”.[82] This leads me to wonder what an objective insult might look like. Would it be tested by consensus among the target group or the perpetrator’s group? Because, of course, racist insults are by definition insults to a group and not simply to an individual. When, as regularly happens in New Zealand, a Polynesian present where Polynesians in general are being racially denigrated is told by the abusers that of course he or she is different and they are talking about all the rest, this does not, strangely enough, make him or her feel better. Huscroft appears to feel that the definitional question is adequately answered by the House of Lords which has said that, while there can be no definition of insult, “an ordinary sensible man knows an insult when he sees or hears it”.[83] But that of course makes it harder still, since we now have the problem of deciding what an “ordinary sensible man” might look like - compounding the “race” issue with a gender one.
This question of objectivity and subjectivity in racially related insults was addressed by Greig J, in Zdrahal v Wellington City Council, though not in the context of the Human Rights Act.[84] When Mr Zdrahal painted two swastikas on the outside wall of his house and lit one at night with a spotlight, two neighbours who could see the signs from their property complained to the Wellington City Council. One claimed that the signs were objectionable and offensive because of their anti-semitic nature; the other saw the signs as clear racist provocation and as related to derogatory verbal comments Zdrahal had made to him about his Chinese background. The Council issued an abatement notice under the Resource Management Act 1991, and the Planning Tribunal upheld the abatement notice. Zdrahal appealed to the High Court on several grounds including a claim that the swastikas were not objectionable enough to have an adverse effect on the environment and that the abatement notice breached his freedom of expression under the New Zealand Bill of Rights Act 1990.
In dismissing, the appeal Greig J rejected a claim that the Tribunal had made an improperly subjective decision as to whether the swastika was offensive and objectionable. He said the Tribunal has been correct in finding that rather than the neighbours being hypersensitive, their views were “reflective of the opinions of a significant proportion of the public”. He then he made a point that lies close to the heart of what I have been arguing here:
In a sense the decision in matters such as this is and must be subjective because it is what is perceived by the ears or the eyes and its effect on the individual and his personal wellbeing. Offensiveness or objectionability cannot be measured by a machine or by some standard with arithmetical gradations. It is a matter of perception and the interpretation of that perception in the mind.[85]
However, he drew from it the formulation that, in a case like this, it is the task of the Tribunal to “transpose itself into the ordinary person, representative of the community at large, and so decide the matter”. In trying both to recognize subjectivity and to re-embed it in something more objective,[86] he was drawn to invoke not only the subjective view of those most directly affected but also the subjective view of “ordinary persons, members of the public”. And that reinstates the problem of representation in a culturally and ethnically diverse society. Nevertheless what has been recognized here is that even objectivity has a subjective dimension; social context matters:
It is the people in their surroundings or environment, not the objects and substances in them, which are affected by swastikas or other things which can only be perceived by the eye and have an effect, depending upon their meaning and connotation in the culture, the knowledge and the experience of the perceivers, the people.[87]
Supporters of the “more speech” position believe that racist expression is best answered by anti-racist expression so that in the free marketplace of ideas the best may rise to the surface and the worst sink without trace. But when this idea is tested in the rough and tumble of everyday social and political life where racism and economic inequalities are firmly entrenched, then a number of flaws appear. First, there is the difficulty of finding empirical evidence that the cream of liberal tolerant ideas actually does prevail in modern western societies.[88] On the contrary, it has been persuasively argued by critical race scholars that members of minority groups have great difficulty in getting their point of view heard,[89] and that, even if this were not so, because the purpose of racial hate speech is to invoke fear in its targets, the most sensible response to threats against one’s group is to become as silent and invisible as possible to keep out of harm’s way.[90] There is also a problem here with the distribution of costs. What of the feelings of those whose identities form the battleground for this healthy exchange of ideas? Might they not get damaged in this “healthy” process. Again, of course, this is an issue of subjectivity and whether or not there is a conceptual framework that makes it possible to frame and require serious answers to such questions. Empathy is a part of that framework.
Self-knowledge (in the form of subjectivity) and empathy are mutually constructive. Unless the insights from that knowledge are read with empathy by those to whom they are directed it is useless to emphasise the importance of subjectivity. Only empathy might elicit a focused and thoughtful hearing for personal revelations of black subjectivity by those who enjoy the benefits of existence in an unmarked category of whiteness.[92]
The concept of empathy is slippery and imprecise; it resists simple definition; it tumbles too easily into facile sympathy (“Oh I do know just how you feel”). At its heart is the notion of understanding the feelings of another person. The mechanisms of empathy are not clearly known and its absence is probably more easily detected than its presence. I may say that “I know how you feel” but you and I can share no more than a comfortable fiction of mutuality.[93] Nevertheless, human beings continue in life and in writing to attempt this synthesis of knowing. Patricia Williams, when she describes the “spirit-murder” of racist abuse, is reaching out to communicate the pain, helplessness, and anger of the moment so that those who have not personally felt the damage might yet begin to imagine it in relation to themselves.[94] Empathy is about emotion and imagination; it is not rational and it will always be silenced (made meaningless) by the language of reason. And so it is alien to conventional legal discourse.
Empathy cannot prescribe what should be done or how to do it, but it does signal moral choice and the necessity of care for others.[95] Arne Johan Vetlesen defines empathy as “the specific cognitive-emotional precondition of moral capacity”,[96] and many writers, whether or not they concede it a place in legal practice, note its moral significance. Lynn Henderson, in an influential plea for greater recognition of empathy’s place in the legal process, describes it as a window to feelings that “reveals moral problems previously sublimated by pretentions to reductionist rationality”.[97] She identifies three aspects of empathy: feeling another’s emotion; imaginative understanding of another’s experience or situation; and (possibly but not necessarily) action to ease the pain of another. But she also notes psychological research showing that people feeling the distress of others may block their own distress reaction to this by withdrawing, or by rationalising non-action by rules or limits.[98] And it has also been found that we are most likely to empathise with people who are most similar to ourselves.[99] Indeed, this underpins Delgado’s sceptical look at the possibility of white empathy working to the advantage of a black American underclass. He says that “[t]he poorer and more wretched blacks become, the less white people will empathize with them”.[100] Empathy, for him, is a highly limited quality which reduces over time: “Empathy is least useful where we need it most. When inequality is deep and structural, empathy declines”.[101] And in relation to the US legal system he observes that:
Legal empathy is even rarer and less trustworthy than other kinds. Law carves up your story, serves it up to an uncomprehending judge, atomizes our claim, and sparks real resistance when it tries to do something – as it does every century or so.[102]
But, at least in relation to New Zealand, I do not share Delgado’s pessimism.[103]
Those who have written about empathy in a legal context have tended to focus almost entirely on judges. Some feminist scholars have argued that judges need, along with more extensive life experiences, qualities of empathy so that they may understand more clearly the ways in which the world is different for those who are not white, male, or middle class. Some have even argued that judges who are women might be expected to be more empathetic.[104] One consequence of this focus has been a rush by defenders of the liberal legal paradigm to reject empathy as either inappropriate in a legal setting or too hard to apply.[105] Judges and empathy should not be thought of together, the argument goes, because this runs directly counter to what judges are expected to do in a court hearing.[106] If all stories (people’s accounts of what they thought happened to them) were given equal value in court, then the ordering of interests which is inherent to the judicial process could not happen.
It seems to me that this argument collapses two steps into one. Might not a good judge try to listen to all stories with empathy and then still decide which account she found to be the most convincing? A request to be more open to the stories of those who are “other” to oneself is not a requirement to reject the need for judgment or even for neutrality, but is a call for the widening of emotional and intellectual horizons.
Empathy cannot, of course, replace judgment in legal proceedings.[107] But I still want to argue that empathy is valuable for framing the discussions of legal theory and principle that underpin both legislation and what happens in courts. More specifically, I believe that empathy is required to create the kind of effective communication crucial to understanding the meaning and significance of context in situations of racial hate speech.
The third element of my proposed conceptual enrichment of the way in which we think about freedom, equality and racist hate speech involves another large idea which is also the subject of debate and varying interpretations. And so I have chosen to frame this discussion through describing particular instances where cultural difference might be said to matter, before moving to a more general consideration of what is signified by my use of the phrase.
During an All Black rugby tour of South Africa in the late 1990s, public attention was aroused in New Zealand by a South African commentator referring to a “coconut tackle”. Since, locally, “coconut” is a term of derogation used against Pacific Island people (and not used lightly or inconsequently) it took some time for the realisation that in South Africa, as in the United Kingdom, coconut is sometimes used as a slang term for head. Hate speech in South Africa will not necessarily look the same as hate speech in New Zealand either to victim or perpetrator. This is not so say that such misunderstandings show the whole issue to be either vexatious or trivial, but rather to argue that, without cultural context, understanding may be difficult or impossible.
Critical race theorists have demonstrated how when colour or race determines one’s experience of life, certain human behaviours will have particular cultural meanings. For example, the meaning of a burning cross, placed on the front lawn of a family home in the United States, will be strongly determined by whether that family is black or white.[108] Defenders of untrammelled public speech often quote the children’s rhyme that “sticks and stones may break my bones but names will never hurt me”, and it is undoubtedly true that Pakeha New Zealanders are more afraid of insults against the person than of insults to reputation. But many New Zealanders are not Pakeha. In Samoan culture there is a deep-rooted belief, expressed in proverbs, that actions are unimportant and soon forgotten but that words last forever: rocks can turn to sand and be washed away but words live on (ua pala le ma’a ae le pala le upu). Another Samoan proverb likens insult to the barbs of stingrays that remain, causing pain and poisoning their victims, long after the stingray has gone.[109]
When colour and “racial” identity determine one’s experience of life, and/or when one’s culture sees a particular relationship between language and injury that is not that of the dominant culture, then the injury of racial insult is different. The potential significance of cultural difference in a legal context has been seen in attempts by individual judges to recognise what has been called a “cultural defence” in some criminal cases.[110] More specifically, on the question of racial insult, a complaint against a newsarticle article containing a number of jokes about Australians was dismissed on the basis that it was “robust banter and leg pulling“ (Neal v Sunday News Auckland Newspaper Publication Ltd). But the Tribunal indicated that the article “might well have offended against [the Act] had it been directed at a different race or ethnic group”. Was the Tribunal then working from the contextual knowledge that these “insults” were not messages of racial inferiority directed at an historically oppressed group?[111]
Although Huscroft sees that “rights and freedoms are valued and enjoyed in different ways by different peoples in different contexts”,[112] he does not read this as a justification for determining complaints in relation to the social and cultural context of each objectionable utterance. Instead, he argues, citing Neal v Sunday News Auckland Newspaper Publication Ltd, that the Human Rights Act is bad law because contextual difference evidently did make a difference to the way that this complaint was decided. This is entirely consistent with a position that focuses on the consequences of such speech for some amorphous “public good” rather than on individuals and their subjective experience of racism. And this in turn is a product of approaching controls on hate speech in terms of the potential danger that they posed for unlimited free expression.[113]
An interesting insight into the two points of view can be drawn from the report of the Court of Appeal decision in Awa v Independent News Auckland Limited. In deciding that publication of the description of Mr Awa as “Billy’s ‘body snatching’ Uncle Bill Awa” constituted fair comment/honest opinion, Richardson P, Gault, Keith and Blanchard JJ opined in obiter that:
[Mr Hassall] was contending that a fair minded New Zealander must recognize the significance of MŠori custom; that critical comment which does not do so is incapable of being fair comment. We reject that as firmly as we would reject a submission that a fair minded New Zealander cannot criticize non-MŠori customs or behaviour. One race is entitled to comment adversely and even narrow mindedly on the practices of another save as prohibited by statutes, for example the Human Rights Act 1993. The exercise of this right may sometimes be a cause of discomfort for many New Zealanders. They may reasonably consider that it is detrimental to race relations and that a degree of restraint would be preferable. However, provided that comment is factually based and expresses a genuinely held opinion rather than being mere invective, ... the insensitivity of the comment does not deprive it of that protection if it was made honestly. That the jury or the Judge may personally disagree is an irrelevant consideration. If it were otherwise freedom of expression, a right affirmed by s 14 New Zealand Bill of Rights Act 1990, would be seriously in jeopardy.[114]
But in the same case Thomas J, while concurring in the outcome, wrote (with regret) a separate opinion to disassociate himself from this paragraph. He was motivated to do this, he said, because he believed that “some sort of qualification [should stand alongside it] reminding us that the law is not the be all and end all”.[115]
Thomas J noted that the comment in the article was not about MŠori custom relating to the burial of dead persons; it was about Mr Awa’s behaviour and therefore the observations in the paragraph might be seen as “unnecessary, if not gratuitous”. Thomas J then moved to his central concern. This was that the observations were capable of being perceived as “an endorsement of public comment of a culturally or racially insensitive kind, providing the comment does not infringe the letter of the law”; and that it might even be read as “exhortatory.[116] In explanation of this position, he said that the boundaries of law - the law of defamation and the provisions of the Human Rights Act 1993 - should not be taken as the definitional standard of responsible publishing in a bicultural nation. He continued:
Communications which are irresponsible, mischievous, of bad taste, crude or hurtful may be published without crossing the boundaries of the law, but this does not make them compatible with a socially essential objective such as racial harmony. Statutory provisions such as s 61 of the Human Rights Act recognize such an objective, but they cannot legislate it into existence ... New Zealand is one nation made up of two peoples. ... History, and the population imbalance in this country, means that the European culture is the dominant culture and the MŠori culture and language is in jeopardy of being submerged or engulfed. ... Yet, the two peoples, both the European and the tangata whenua, must necessarily strive to live and work together in common accord. . it is an area in which feelings and emotions are inescapable .... If there is to be a solution in which the two peoples inhabit this country in harmony and dignity as equal citizens, mutual respect for and understanding of each other’s cultures is imperative.[117]
These two versions of the proper relationship between law, speech, and ethnic relations encapsulate the difference that I have been describing between simply privileging First Amendment law (in this case section 14 of the Bill of Rights Act) and taking a sociologically informed approach that gives due weight to the significance of social and cultural context in the production of racially insulting speech.
There have been no systematic attempts in New Zealand to find formulae to define what does and does not constitute hate speech. Complaints under the Human Rights Act are determined on an individual and ad hoc basis and the grounds for decision are not reported. No general analysis of the principles which guide or can be derived from the rulings has been undertaken either within the Race Relations Office or by academics. One way of beginning to separate the trivial from the significant in complaints might be to draw on ideas about subjectivity, empathy and cultural difference to understand what racist hate speech looks like “from the bottom”.
Stanley Fish describes why my proposal to look to context in determining what constitutes hate speech which will not be protected is not, epistemologically at least, really radical at all. Declaring that speech never exists outside of historical and social context, Fish argues that “free speech is the name we give to verbal behaviour that serves our substantive agendas”. And so with one stroke he simultaneously asserts that meaning is always socially constructed and that such construction is always politically inflected: “abstract concepts like freedom, rights, and free speech don’t have any ‘natural’ content but are filled with whatever content and direction one can manage to put into them”. [118] Talk of “free speech” is not the description of a real or possible condition, but only the expression of a hope that it might be possible to free ideas from the political and ideological conditions of their existence. Limitations on speech are always made in relation to a defining and assumed purpose, and they are inseparable from community membership. Courts classify speech and assign value to particular kinds; they do not protect “speech” as an abstract (contentless) entity.[119]
Reading through a Fish-eye lens, Huscroft’s argument against restrictions on racial hate speech can be seen to work by envisioning “speech” as pure and without context (like “the speech we hate”) and then “stripping particular speech acts of the properties conferred on them by contexts”.[120] The notion that the damage of hate speech can somehow be undone by more speech assumes that the mind of the hearer can be wiped clean by the next utterance, even, perhaps, that insults can be reversed and returned to sender.[121] In Samoan society insults have long-term damaging consequences for the target; they live on in the minds of those who heard them and are passed in turn to their descendants. Oral cultures preserve knowledge through remembered stories.[122] Racial insults live in the minds of those subjected to them, that is part of how relations of racial domination and subordination persist.
Phrases like “freedom of speech” and “the right of individual expression” obscure the brute fact that speech is political; a prize for contestation. There are several kinds of speech that the United States Constitution does not protect.[123] These are not “natural” immutable phenomena, they are the result of definitions produced and refined in a political context. To reveal that the decision to protect or not to protect hate speech is simply another political decision of the same order removes the pretence that there is or ever was “free speech”. Perhaps freedom of expression, even in its First Amendment home, is less certain, more imagined than the scholarly and political position which Huscroft represents would have it.
What has concerned me in this article is not that freedom of expression should be defended as a good but the claim that it is an incontrovertible good, to be protected at all costs.[124] When the free speech in question is also speech that carries a message of racial hatred, then I think that there is a serious problem. Given the extensive history of European racism against people of colour and an extended history of privilege which has allowed me, and others like me, to own whiteness as an unmarked and unracialised benefit, it could hardly be otherwise.
The effect of racism directed at particular ethnic or “racial” groups is to create, over time, systemic inequalities which ensure that members of some groups inevitably will bear an unequal weight of racism and racist abuse. Therefore it can be argued that they are owed protection from this unequal burden. Critical race theorists have proposed differential treatment within the law for victims of racist speech.[125] Their proposals have been countered by claims that the universalising precepts of law demand that all be treated the same, that the law be colour blind. Any control of hate speech which effectively could better the position of those who are most injured by its effects would have explicitly to recognise and respond to structures of subordination constructed through racial and ethnic difference. And that, “colour blind law” cannot do.
In the United States the preference for formal freedom over substantive equality has served to justify refusals to ban racist hate speech. Thus the problem there is framed as one of conflicting constitutional principles. In New Zealand the difficulties have been more practical than principled. Clearly, since the largest number of complaints under the Race Relations Act currently are made under section 61 and are made by male Pakeha who complain about MŠori, [126] it might reasonably be assumed that the practical problems of framing truly effective legislation and an institutional infrastructure for hearing complaints and providing remedies have not yet been solved.
Should we then accept Huscroft’s position that current prohibitions on racial hate speech are bad law and that all New Zealanders would be better off without them?[127] I think not. I have suggested that in Aotearoa New Zealand the debate about free speech and hate speech is too important to leave in the realm of lawyers and legal knowledge. The debate should also be informed by practical sociological knowledge. The ideas of subjectivity, empathy, and cultural differences can help us to focus on what is at stake in this discussion, and to avoid entrapment in First Amendment discourse which owes more to ideology masquerading as abstract legal principle and debate than might at first appear.
The present difficulties in making the legislation work where it is most needed would be better addressed by developing an effective jurisprudence of race relations informed by knowledge from the social sciences than by giving up on legislative protection for racial minorities and allowing the injuries of racist hate speech to flourish. Such a jurisprudence would grant less weight to formal abstract principles of freedom and equality and more weight to subjective experience in context. Recognizing that instances of racist hate speech will put claims of free expression and equality into conflict, it could provide a more richly nuanced view of the interests involved. Perhaps, when the abstract principles are of the order of claiming to know an insult when the reasonable man sees one, this might even count as progress.[128]
[*] MA (London), MA, PhD (Auckland), Senior Lecturer in Sociology, University of Auckland. My thanks to Jane Kelsey, Ruth Butterworth and Grant Huscroft for comments on versions of this article and to the students who explored these ideas with me.
[1] Bhabha, H The Location of Culture (1994) 42 quoting Fanon, F Black Skins White Masks (1986) 10-12.
[2] Ibid.
[3] Delgado calls this “perverse neutralism”: “Are Hate-Speech Rules Constitutional Heresy? A Reply to Steve Gey” (1998) 146 U Penn L R 865, 878.
[4] The following definitional elements are drawn from Brison, “The Autonomy Defense of Free Speech” (1998) 108 Ethics 312. She presents a “disjunctive definition of hate speech” and her purpose, like mine, is to capture, as a class of ideas, most of what has been called “hate speech” in the legal literature. As Brison notes, such a formulation would probably not be acceptable in US legislation.
[5] Stanford University hate speech code quoted in Lawrence, “If He Hollers Let Him Go: Regulating Racist Speech on Campus” in Matsuda, M et al (eds) Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (1993) 67.
[6] University of Michigan policy on discrimination and discriminatory harassment. See Brison supra note 4. The Stanford and Michigan codes were both struck down by court decision. Much of the US debate over legislating against hate speech takes place in the context of local and university campus ordinances; neither federal nor state governments offer legislative challenges to the First Amendment. This means that the US situation is fundamentally different from that of New Zealand, Australia, Canada, the United Kingdom, Germany, the Netherlands, Denmark, and France.
[7] This concept was established in Beauharnais v People of the State of Illinois [1952] USSC 75; 343 US 250 (1957) 251. Here the US Supreme Court upheld an Illinois group libel law. Although there is debate about the status of that decision after New York Times Co v Sullivan [1964] USSC 40; 376 US 254 (1964), for my purposes it is the concept rather than its current legal status that is significant.
[8] In the sense of taking apart piece by piece rather than anything more grandly in the style of Jacques Derrida. Another article, currently under construction, looks at the silences and dangerous supplements of free speech discourse.
[9] It may be noted here that Stanley Fish, to whom I shall return later, claims that free speech is the name that we give to our own preferred point of view: There’s No Such Thing as Free Speech and it’s a Good Thing Too (1994).
[10] See Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations” in Matsuda, M Where is Your Body? (1996). This idea also appears in Williams, P The Alchemy of Race And Rights (1991). The term Critical Race Theory has been adopted by a group of United States law professors who are theorists and activists devoted to increasing understanding of the issues of race in law. Among the most prominent thinkers are Patricia Williams, Mari Matsuda, Kimberle Crenshaw, Derrick Bell, Charles Lawrence III, and Richard Delgado. Many more graduate students and professors are also contributing to this persuasive body of analysis. See Crenshaw (ed), Critical Race Theory: the key writings that formed the movement (1995). There is also a growing body of work focused on the relationship between MŠori and law. See eg Jackson, “The Treaty and the Word: The Colonization of Maori Philosophy” in Oddie, G and Perrett, R (eds), Justice, Ethics & New Zealand Society (1992); Tauri, “Indigenous Justice or Popular Justice? Issues in the Development of a Maori Criminal Justice System” in Spoonley, P et al (eds) Nga Patai (1996); Tauri, “Explaining Recent Innovations in New Zealand’s Criminal Justice System: Empowering Maori or Biculturalising the State” 32 Aus and NZ Jnl of Criminology 2, 153; Milroy, “The Maori Fishing Settlement and the Loss of Rangatiratanga” (2000) 8 Waikato L R 63.
[11] In 1877 Justice Prendergast in the case of Wi Parata v Bishop of Wellington (3 NZ Jur (NS) SC 72) declared the Treaty of Waitangi to be “a simple nullity”.
[12] Kelsey, “Legal Imperialism and the colonisation of Aotearoa” in Spoonley, P et al Tauiwi: Racism and Ethnicity in New Zealand (1984); and Sharp, A Justice and the Maori (1990). In spite of some softening in this position in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, 673, where the Treaty was found to be a solemn compact in which “the Crown sought legitimacy from the indigenous people for its acquisition of sovereignty and in return it gave certain guarantees”, Kelsey’s description still applies.
[13] Greiff, S (ed) Immigration and National Identity in New Zealand (1995).
[14] Scott, S The Travesty of Waitangi (1995) and Round, D Truth or Treaty? (1998) reflect this point of view.
[15] Article 20 of the International Covenant of Civil and Political Rights states that “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”. Signatories to the International Convention for the Elimination of All Forms of Racial Discrimination are bound to declare “an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin”.
[16] “Racism and the Innocence of Law” in Fitzpatrick, P and Hunt, A (eds), Critical Legal Studies (1987) 119. The context for these observations is a discussion of appeals about discrimination in employment under the Race Relations Act 1976 in Britain. See also Peller, “Race Consciousness” in Danielson, D and Engle, K (eds) After Identity: A Reader in Law and Culture (1995) 67.
[17] Instances of racially focused public violence are regularly reported in the newspapers. Two high profile ones in 1998 involved an attack on a Nigerian man walking with his family in a Christchurch beach suburb and shots fired into the house of an elderly Chinese couple in an Auckland suburb.
[18] Fiss, O Liberalism Divided: Freedom of Speech and the Many uses of State Power (1996). See also Robert Post’s articles including “Meiklejohn’s Mistake: Individual Autonomy and the Reform of Public Discourse” (1993) 64 Univ of Colorado L Rev 1109, and “Liberalism Divided: Freedom of Speech and the Many Uses of State Power: Book Review” (1997) 19 Mich LR 6, 1517.
[19] A detailed analysis of autonomy defences of free speech as they are employed in arguments against restricting hate speech is given in Brison, supra note 4, at 312. She concludes that “none of them yields a defense of free speech that precludes restrictions on hate speech”.
[20] Katsigiannis, “Opponents to Legislation Against Incitement to Racial Hatred” (1985) 118 Civil Liberty 27.
[21] Gey, “The Case Against Postmodern Censorship Theory” (1996) 145 University of Pennsylvania Law Review 193.
[22] Hill, “Pauline Hanson, Free Speech and Reconciliation” (1998)10 Jnl of Australian Studies, quoting from a discussion by Flahvin “Can Legislation Prohibiting Hate Speech be Justified in the Light of Free Speech Principles?” (1995) 16 University of NSW L J 2, 327.
[23] Huscroft, G and Rishworth, P (eds) Rights and Freedoms: the NZ Bill of Rights Act 1990 and the Human Rights Act 1993 (1995).
[24] “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and petition the Government for a redress of grievances” (the First Amendment , US. Constitution, adopted 1791). See Emerson, T Haber, D and Dorsen, N Political and Civil Rights in the United States (4th ed, 1976) Volume I.
[25] Downing makes similar points about “first amendment absolutism” in the United States context: “‘Hate Speech’ and ‘First Amendment absolutism’ discourses in the US” (1999) 10 Discourse & Society 2, 175.
[26] Huscroft, supra note 23, at 171.
[27] Ibid, 172.
[28] Ibid, 173. Section 14 reads: “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form”.
[29] He cites the influence of Justice Brandeis’ belief in expression as a means of individual fulfillment, Professor Meiklejohn’s theory of democratic self governance, Justice Holmes’ “the best test of truth is the power of the thought to get itself accepted in the competition of the market” and Professor Thomas Emerson’s emphasis on community stability (ibid, 174).
[30] Ibid, 174.
[31] Huscroft’s argument that the law of defamation offends because it works to protect powerful politicians but adds no benefit to the lives of ordinary people (187) may have been somewhat undercut by the decision in Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385; (2000) 5 HRNZ 684.
[32] He is not, of course, alone in arguing that the work done by the Race Relations Office might be better handled through a different administrative format. See Re-Evaluation of the Human Rights Protections in New Zealand: Report for the Associate Minister of Justice and Attorney General Hon Margaret Wilson, October 2000. My concern is with his rejection of legislative controls on racial hate speech, rather than his doubts about the current mechanisms for implementation of those controls.
[33] Hazell, “The Rights to Fit the Bill” (1997) 126 New Statesman 4 July, 24.
[34] Palmer, G and Palmer, M Bridled Power (1997) 264.
[35] Ibid, 264.
[36] Ibid, 266.
[37] In a speech made to the Policy Conference on Human Rights held in Wellington on 27 May 1989, Geoffrey Palmer said that submissions to the Select Committee indicated that “many members of the public were nervous about it. They were wary in particular of the power it would have given to the judiciary. They appeared to be concerned about what they perceived as a transfer of power from their elected representatives to judges who are appointed to office. Another concern ... was that an entrenched statute was perceived as locking the rights enunciated in it into a particular timeframe since there would be restraints on Parliament changing it in the future”.
[38] Cohen, “Free Speech and Political Extremism: How Nasty Are We Free To Be?” (1989) 7 Law and Philosophy 263.
[39] Huscroft, supra note 23, at 193.
[40] Ibid, 193, quoting Holmes J in United States v Schwimmer [1989] USSC 127; (1929) 105 L Ed 2d 342, 360.
[41] An influential example of critical legal studies writing appears in the collection of essays by Kairys, D (ed) The Politics of Law A Progressive Critique (revised ed, 1990). Critical race theory collections include Matsuda, M, Lawrence, C, Delgado, R and Crenshaw, K (eds) Words That Wound (1993), and Crenshaw, supra, note 10.
[42] For an extended discussion of the relationship between modernism and post-modernism in the social sciences see Rosenau, P Post-Modernism and the Social Sciences (1992).
[43] Hunt, A Explorations in Law and Society (1993).
[44] See, eg, Freeman, “Antidiscrimination Law: The View From 1989” in Kairys, supra note 41; Gabel “The Phenomenology of Rights Consciousness and the Pact of the Withdrawn Selves” (1984) 62 Texas Law Review 1563-1599; Feinman and Gabel “Contract Law as Ideology”, Kairys, supra note 41; Klare “Law-Making as Praxis” (1979) 40 Telos 123.
[45] Lyotard, J The Postmodern Condition: A Report on Knowledge (1984). In the term “metanarrative”, Lyotard encapsulates the idea of “appeal to a higher, universal, domain of thought ... as a way of validating knowledge” (Davies, M Asking The Law Question (1994) 226).
[46] Faces at the Bottom of the Well: The Permanence of Racism (1992).
[47] “Looking to the Bottom, Critical Legal Studies and Reparations” (1987) 22 Harvard Civil Rights-Civil Liberties Law Review 401; “When the First Quail Calls: Multiple Consciousness as Jurisprudential Method” (1989) 11 Women’s Rights Law Reporter 7.
[48] Supra note 10.
[49] “The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism” (1989) 39 Stanford LR 317.
[50] “Race and Essentialism in Feminist Legal Theory” (1990) 42 Stanford LR 581.
[51] Matsuda et al, supra note 41; Delgado, “Epithets and Name-Calling” (1987) 17 Harvard Civil Rights-Civil Liberties LR 301; Matsuda “Language as Violence v Freedom of Expression: Canadian and American Perspectives on Group Defamation” (1989) 37 Buffalo LR 337; Delgado, supra note 3; Williams “Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law’s Response to Racism” (1987) 42 University of Miami LR 127.
[52] Delgado, supra note 3, at 865.
[53] Ibid, 878.
[54] Delgado, “Words That Wound: A Tort Action for Racial Insults, Epithets, and Name Calling” in Matsuda et al, supra note 41.
[55] Matsuda “Public Response to Racist Speech: Considering the Victim’s Story” in Matsuda et al, supra note 41.
[56] Much of the United States debate on the regulation of hate speech revolves around proposals and attempts to regulate such speech on university campuses. In New Zealand this has not been an issue – certainly I am unaware of any proposals for campus speech codes or of claims that they are needed.
[57] Supra note 55. “[C]arefully drafted regulations can and should be sustained without significant departures from existing first amendment doctrine. The regulation of racist fighting words should not be treated differently from the regulation of garden-variety fighting words, and captive audiences deserve no less protection when they are held captive by racist speakers” (2380).
[58] Delgado writes of the “seemingly perfect standoff” of one interest (the First Amendment) balanced against another (the Fourteenth amendment) (supra note 3). He believes that “history will have no trouble telling us which interest is more morally significant”. Yet he still places constitutional interpretation at the heart of his defence of “the view that interests of equality and dignity might sometimes justify limits on what may be said”.
[59] Matsuda, supra note 41, at 50.
[60] Carol Smart, Alan Hunt, Roger Cotterrell, Duncan Kennedy, David Kairys, and many others.
[61] Schauer, “The First Amendment as Ideology” in Allen, D and Jensen, R (eds) Freeing the First Amendment: Critical Perspectives on Freedom of Expression (1995).
[62] Supra note 9.
[63] “Freedom of Speech” in Kairys, supra note 41, at 265.
[64] Ibid, 264-265.
[65] See text accompanying footnotes 18 to 22 supra.
[66] The form of this description comes from Downing, supra note 25, at 176.
[67] Freeman, “Antidiscrimination Law: The View From 1989” in Kairys, supra note 41.
[68] For an extended examination of the nature and function of racism see Goldberg, D Racist Culture: Philosophy and the Politics of Meaning (1993). See also Williams, P Seeing a Colour-Blind Future: the paradox of race (1997).
[69] Matsuda, supra note 10.
[70] See Delgado, “Words That Wound: A Tort Action for Racial Insults, Epithets, and Name Calling” in Matsuda et al, supra note 41, especially at 90-96; Lawrence, “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism” (1987) 39 Stanford LR 317; Williams, “On Being the Object of Property” (1988) 14 Signs 5. In New Zealand, Mihi Edwards has documented her experience as a young MŠori woman in a racist Pakeha world in Mihipeka: the early years (1990), and Mihipeka: time of turmoil (1992).
[71] It is not clear how reputation may be quantified to argue that some people have more of it than others.
[72] Personal communication from Peter O’Connor, Office of the Race Relations Concilliator.
[73] These are difficulties of enforcement, publicity for racists in courts, driving racism underground where it cannot be countered by education, the dangers of the slippery slope of state control, the dangers of excess breadth of prohibition chilling good, democratically healthy speech, and the lack of proof that such laws work.
[74] Scheppele, “Foreword: Telling Stories” (1989) 87 Michigan LR 2073.
[75] Human Rights Act 1993, s 63. The outcome of this case raises interesting issues of equality and social consequence. A defamation action in court (which would presumably have been beyond her financial reach) would have involved a large claim for damages. Firing the co-worker would have solved the immediate problem but would also probably have sent out into the community an individual with racist attitudes exacerbated as he blamed his victim for the outcome.
[76] Huscroft, supra note 23, at 194. “Arguments by those favouring legislative prohibitions on racist expression attempt to put a human face on the problem of racism, focusing on concerns about the effect racist expression has on minorities”.
[77] Delgado, supra note 70; Matsuda, supra note 55.
[78] Unpublished lecture quoted by Richardson, “‘A Burglar in the House of Philosophy’: Theodor Adorno and Drucilla Cornell and Hate Speech” (1999) 7 Feminist Legal Studies 3, 4.
[79] An experiment by Greenburg and Pyszczynski demonstrated the power of ethnic hate speech to have a negative influence on how observers judged the target of that speech. “White participants returned lower evaluations of a Black debater’s skill after hearing a confederate describe him in ethnically derogatory terms when that Black debater had lost the debate. This finding suggests that exposure to ethnic slurs can cue prejudiced behaviour in observers” (Cowan and Hodge, “Judgments of Hate Speech: The Effects of Target Group, Publicness, and Behavioral Responses of the Target” (1996) 26 Journal of Applied Social Psychology 355, 356).
[80] Supra note 62.
[81] Human Rights Act, s 61 prohibits words considered likely to cause hostility or contempt, regardless of the speaker’s intention.
[82] Huscroft and Rishworth, supra note 23.
[83] Cozens v Brutus [1972] UKHL 6; [1973] AC 854, 862, quoted in Huscroft, supra note 23, at 205.
[84] [1994] NZHC 1554; [1995] 1 NZLR 700.
[85] At 708.
[86] There is abundant evidence (much of it presented by feminist legal theorists) that discomfort with subjectivity is deeply embedded in liberal legalism. See eg the work of Robin West, Martha Fineman, Martha Minow, and Carol Smart.
[87] Supra note 84, at 708.
[88] Outbreaks of ethnically motivated violence in the United States and in New Zealand testify to the power and tenacity of white supremacism.
[89] See Kairys, supra note 41, and (in relation to women and speech) Jensen and Arriola, “Feminism and Free Expression: Silence and Voice” in Allen, D and Jensen, R (eds) Freeing the First Amendment: Critical Perspectives on Freedom of Expression (1995) 195.
[90] In a discussion that ultimately rejects the “silencing” arguments, Wojciech Sadurski also mentions the proposition that, when legally unrestricted hate speech is present, it devalues the views of its victims by diminishing their credence (to racists, including those who have been persuaded to that position by the hate speech) and thereby reduces the value attached to the stigmatized victims’ own views (“On ‘Seeing Speech Through an Equality Lens’: A Critique of Egalitarian Arguments for Suppression of Hate Speech and Pornography” (1996) 16 Oxford Journal of Legal Studies 713, 714).
[91] Jurgen Habermas includes the quality of empathy in his account of the new developing sense of what it meant to be human, which he says characterises the institutionalisation of the public sphere in the early modern era. The family provided the structural underpinnings of the private sphere, and at the same time “provided a crucial basis for the immanent critique of the bourgeois public sphere itself, for it taught that there was something essential to humanness that economic or other status could not take away” (Calhoun, C Habermas and the Public Sphere (1992) 11). Contemporary literature (like Richardson’s Pamela) reinforced this “sense of humanness”. “The relations between author, work, and public changed. They became intimate mutual relationships between privatized individuals who were psychologically interested in what was ‘human’, in self-knowledge, and in empathy” (Habermas, J The Structural Transformation of The Public Sphere (1989) 50).
[92] Patricia Williams comments on the way in which whiteness is seldom seen as “race”. She reads as “one of the more difficult legacies of slavery and of colonialism” the way in which racism maintains its grip through the process of “the ‘exnomination’ of whiteness as racial identity”. “Whiteness is unnamed, suppressed, beyond the realm of race. Race has nothing to do with whites” (Seeing a Colour-Blind Future (1997) 4-5). (The term ‘exnomination’ is credited to “media expert John Fiske”).
[93] Cynthia Ward is doubtful that it is ever possible for empathy to bring us closer together and quotes philosopher R M Hare’s doubt: “if all the properties of the situation in which I had to imagine myself, including the properties of the person in whose shoes I was putting myself, were so unlike those of myself and my present situation, would it any longer be me?” (“A Kinder, Gentler Liberalism? Visions of Empathy in Feminist and Communitarian Literature” (1994) 61 University of Chicago L R 929, 939).
[94] The Alchemy of Race and Rights (1990).
[95] Henderson, “Legality and Empathy” (1987) 85 Mich L R 1574, 1653.
[96] “Why Does Proximity Make a Moral Difference?” (January 1993) 12 Praxis International 383, quoted in Bauman, Z Postmodern Ethics (1993) 143.
[97] Henderson, supra note 95, at 1576.
[98] Quoting Hoffman, “The Development of Empathy“ in Ruston, J and Sorrentino, R (eds) Altruism and Helping Behaviour: Social Personality and Developmental Perspectives (1981) 41, 44, 54-55.
[99] Stotland, Sherman, and Shaver, “Empathy and Birth Order” in Henderson, supra note 95, at 1584.
[100] Delgado, “Rodrigo’s Eleventh Chronicle: Empathy and False Empathy” (1996) 84 California L R 61, 77.
[101] Ibid.
[102] The Price We Pay: The Case Against Racist Speech, Hate Propaganda and Pornography (1995) Lederer, L and Delgado, R (eds) 95.
[103] Cooke P’s judgment in NZ Maori Council v Attorney General (supra note 12) seems to offer some hope.
[104] See eg Boyle, “Sexual Assault and the Feminist Judge” (1985) 1 Canadian Journal of Women and the Law 93. She argues that a feminist judge would use the collective experience of women and share and analyse her own experience. See also, Justice Bertha Wilson, “Will Women Judges Really Make a Difference?” quoted in Graycar, R and Morgan, J The Hidden Gender of Law (1990) 413.
[105] Richard Posner states that “the internal perspective – the putting oneself in the other person’s shoes – that is achieved by the exercise of empathetic imagination lacks normative significance” (Overcoming Law (1995) 318).
[106] Massaro, “Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds” (1989) 87 Mich L R 2099.
[107] And a “slippery slope” argument could claim that support for it opens up a fundamental challenge to liberal legalism that extends far beyond this subject area.
[108] RAV v St Paul [1992] USSC 99; 112 S Ct 2538 (1992). But note that, although the City of St Paul attempted to prohibit such behaviour, the US Supreme Court found the city ordinance unconstitutionally broad; the burning cross was found to be a viewpoint within the free marketplace of ideas.
[109] My thanks to Dr Cluny Macpherson, who confirmed my knowledge of this, supplied the words, and told me that there is also a MŠori proverb of similar substance.
[110] Police v S & M (1993) 11 FRNZ 322, [1993] DCR 1080; and R v Matafeo [1996] NZCA 170; (1996) 14 CRNZ 276.
[111] Note also Skelton v Sunday-Star Times, where the Complaints Review Tribunal found that publishing the word “pakeha” instead of “Pakeha” did not amount to racial harassment or insult or bringing a group of New Zealanders into contempt. The Tribunal held that “the views of the very sensitive are not the appropriate yardstick by which to measure whether something is insulting under s 61(1)(a) of the Human Rights Act 1993” (Decision 12/96).
[112] Huscroft and Rishworth supra note 23, at 174.
[113] Ibid, 205.
[114] (1997) 4 HRNZ 288, 293. The “Billy” in question was Billy T James and the subject of the story the events surrounding his funeral. The presence of judicial empathy would surely have precluded this paragraph.
[115] At 296.
[116] At 295.
[117] At 295.
[118] Supra note 9, at 102.
[119] Ibid, 106.
[120] Ibid, 109.
[121] Judith Butler explores the possibilities of doing just this in Excitable Speech, A Politics of the Performative (1997). The potential for successful subversion of abusive terms seems to be greater in the case of hate speech directed at the sexuality of individuals (which is her particular focus) than of racial hate speech.
[122] Again, my thanks to Cluny Macpherson.
[123] Delgado points out that the First Amendment protects some forms of speech like social vituperation “but not others such as libel, official secrets, fighting words, and disrespectful words uttered to a judge or other authority figure” (supra note 100, at 83). Examples of speech the courts have found unprotected (or less protected) are words posing a “clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” (Schenck v United States [1919] USSC 64; 249 US 47 (1919)); “fighting words” (Chaplinsky v State of New Hampshire [1942] USSC 50; 315 US 568 (1942)); obscenity (Miller v California [1973] USSC 190; 413 US 15 (1973)); and false advertising and advertising of harmful, but legal, products or activities (Brison, supra note 4, at 315).
[124] This claim typically comes with modifying disclaimers that of course some speech (unspecified) should not be protected but then proceeds to write of “speech” universal.
[125] Matsuda’s proposal to criminalise racist hate speech includes a suggestion that greater value be given to the victim’s story than to First Amendment interests or to the promoter of racial hatred. This involves procedural weighting rather than an appeal to empathy.
[126] Personal communication, Peter O’Connor, Race Relations Office.
[127] It should be noted that Huscroft is arguing that sections 61 and 131 of the Human Rights Act 1993 establish limitations on the right to freedom of expression which cannot be justified because, among other things, they stifle political discussion and do not allow defences such as truth. He is upholding the importance of section 14 of the New Zealand Bill of Rights Act 1990; he does not defend racial hate speech as such.
[128] Supra note 83 and accompanying text. Ultimately these proposals may be too optimistic. If racism and inequality are indeed built into the very foundations of liberal legalism, then the question of how cultural and ethnic diversity can flourish in a climate of mutual respect in Aotearoa New Zealand may be beyond the capacities of legal knowing. But we won’t know unless we try.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/WkoLawRw/2001/9.html