New Zealand Human Rights Commission: Te Kähui Tika Tangata characteristics is harmful to the achievement of the values of a democratic society which respects (inter alia) human dignity, equality and fundamental freedoms including the right to be free from discrimination. Moana Jackson has pointed out that repetitive hatred cannot breed compassion and it carries a cost to those affected.12 Jackson points to the history of colonisation where free speech has been used to excuse and maintain privilege and the devaluing of indigenous values, language and rights. Arguments against regulating hate speech The arguments against regulating hate speech centre on freedom of expression. Freedom of expression has become one of the world’s most widely recognised rights.13 For some concerned with civil liberties, there is a strong belief that everyone must be able to express their opinion regardless of how worthless or odious it may be thought to be.14 Classical liberal discourse provides numerous rationales for freedom of speech and consequently against regulating hate speech. These include that it is essential for democracy; guarantees the marketplace of ideas; and promotes individual autonomy. These and other common reasons put forward for not regulating hate speech are outlined below. The first key argument is based on the recognition that freedom of speech is essential to democracy.15 A democracy is a society in which the citizens debate and decide the laws for themselves. To be a true democracy, then, citizens must be free to discuss any idea, no matter how repugnant it may be.16 This enables voters to be better informed and allows state officials to be held accountable for their actions. Freedom of expression is also essential for a representative government. By facilitating public discussion on controversial issues, the government can recognise and combat social problems more effectively and those in Parliament can better represent their constituents.17 Some have noted however that this rationale implies hate speech can be limited when it does not influence the democratic process.18 The second concerns the concept of the “marketplace of ideas” which recognises the advancement of knowledge and the discovery of truth as a fundamental good.19 It treats people as adults which requires letting them hear bad ideas, so that they can make up their minds for themselves.20 As stated by the political philosopher John Stuart Mill in On Liberty:21 But the peculiar evil of silencing an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. This theory was the basis for the dissenting opinion in the Supreme Court of the United States case of Abrams v US.22 Legal scholar, Bollinger, states that freedom of expression promotes the “right” attitudes of tolerance among the audience and performs a self-reformation Moana Jackson, “Rethinking free speech” (19 August 2018) E-Tangata, <https://e-tangata.co.nz/comment-and-analysis/moana-jacksonrethinking-free-speech/>. 13 Dominic McGoldrick and Terese O’Donnell “Hate-Speech Laws: Consistency with National and International Human Rights Law” (1998) 18 Legal Studies (Society of Public Teachers of Law) at 454. 14 Grant Huscroft and Paul Rishworth, Rights and Freedoms (Wellington, Brookers, 1995) at 192. 15 Rex Ahdar, “The Right to Protection of Religious Freedom” (2008) OLR 363. 16 Jeffrey Howard “Should we ban dangerous speech?” (2018) 32 British Academy Review 19 at 20. 17 Hannah Musgrave “What Makes Race So Special? Should hate speech provisions under the Human Rights Act 1993 be extended to cover target groups other than race?” (2009) OYLR at 5. 18 At 5. 19 Abrams v US (1919) 250 US 616 at 630. 20 Jeffrey Howard “Should we ban dangerous speech?” (2018) 32 British Academy Review 19 at 20. 21 John Stuart Mill, On Liberty (London: Longman, Roberts and Green, 1869) cited in John Gray and G.W. Smith, J.S. Mill On Liberty: In Focus (London and New York: Routledge, 1991) 17. See also reference in Geoffrey Palmer, “The purposes of protecting speech” [2018] NZLJ 227 at 227. 22 Abrams v US, above n 19, at 616. 12 6