Körero Whakamauähara : Hate Speech function for the general community.23 In other words, the right way to counter hateful ideas is to allow them to be tested in the field of open debate, where they will eventually be refuted conclusively and wither away. As stated by Lester and Bindman:24 Democracy stands (and some would say, may fall) on the conviction that unpopular ideas would be freely expressed, and that, if they are false or evil, they will ultimately be defeated, not by censorship or prosecution, but by public education and debate. However, it has been argued that if hate speech leads to its targets retracting their opinions from public consumption then Mill’s marketplace of ideas is compromised.25 The third key argument against regulating hate speech is that part of respecting people’s autonomy is letting them express who they are and what they think, even if we vehemently disapprove.26 This has also been expressed as the promotion of self-development and personal fulfilment. The personal autonomy argument allows individuals to weigh up competing ideas and develop a sense of self when preferring a view over other views. However, the counterview is that by creating a climate of discrimination, hate speech undermines self-worth and causes targets to encompass a subordinate status which some argue runs counter to the self-development rational.27 Other arguments against regulating free speech include the view that laws restricting speech are counterproductive, allowing racists to use the courts to achieve far more publicity for their racist viewpoints than otherwise may have been achieved.28 Related to this is the view that it allows racists to enhance their personal 23 24 25 26 27 28 29 30 31 32 33 status within their community, acting as a sort of martyr to the cause.29 It is also argued that hate speech laws antagonise citizens, forcing them underground and making them more dangerous.30 Instead, by permitting the expression of dangerous ideas, we are better able to defuse their danger by arguing against them.31 A further argument against regulation of hate speech is that it is dangerous to give the state the power to restrict dangerous speech, since it is likely to misuse that power (either by making mistakes about what is genuinely dangerous, or by abusing the power for political purposes).32 Hate crime compared with hate speech While hate speech and hate crime are connected, and can overlap, they are distinct concepts. As noted above, hate speech addresses words or expression that encourage others to hate a group based on a protected characteristic. In most hate speech legislation, hate is primarily relevant, not as the motive for the words spoken but as a possible effect of the form of speech.33 The words, whether or not spoken hatefully by the perpetrator, result in the incitement of hostility or hatred against others. Hate crimes, on the other hand, involve the commission of an offence, for example an assault against a person or damage to property, which is accompanied by the motive of hatred against a protected group. It is the motive or demonstration of hostility that marks it out as a hate crime. New Zealand does not have specific hate crime offences. However, hateful motivations are considered an aggravating factor in sentencing under the Lee Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America (New York, Oxford University Press, 1986). Anthony Lester and Geoffrey Bindman, Race and Law (London, Penguin, 1972) at 358. Christopher Jones, “Rocks can Turn to Sand and Wash Away But Words Last Forever: A Policy Recommendation for New Zealand’s Vilification Legislation”, (Hamilton, University of Waikato, 2002) at 13. Jeffrey Howard, “Should we ban dangerous speech?” (2018) 32 British Academy Review 19 at 20. Elizabeth MacPherson, “Regulating Hate Speech in New Zealand” (Wellington. Victoria University of Wellington Faculty of Law, 2003) 20. Grant Huscroft and Paul Rishworth, Rights and Freedoms (Wellington, Brookers, 1995) at 193. At 193. Jeffrey Howard, “Should we ban dangerous speech?” (2018) 32 British Academy Review 19 at 20; Grant Huscroft and Paul Rishworth, Rights and Freedoms (Wellington, Brookers, 1995) at 193. Jeffrey Howard, “Should we ban dangerous speech?” (2018) 32 British Academy Review 19 at 20. At 20. Jeremy Waldron, The Harm in Hate Speech (Harvard University Press, Cambridge, 2012) at 35. 7