Roderick Mulgan: The Medical Council Has Gone Too Far -" We're Saying No!"

This email from the Free Speech Union seeks your support:

Hi Peter, The Medical Council of New Zealand (MCNZ) has proposed that treating patients well is no longer enough.   Your doctor must also hold the correct views. This is a substantial change – and as a GP with nearly 40 years’ experience in medicine – let me tell you, Peter, it sends shivers down my spine. Doctors are being told they must now accept that colonisation - present tense, ongoing - is why Māori can't access healthcare, and that it is their professional duty to challenge the "systemic bias within the system”. If they don't? Their practising certificate could be on the line. I'm Dr Roderick Mulgan - GP, barrister, and International Director of the Free Speech Union. I've read these draft standards with both hats on. As a doctor, I know what good patient care looks like. As a barrister, I know what the law requires. These standards go beyond both. The consultation closes 24 March. The Medical Council needs to hear from you. Make a submission to MCNZ today It takes minutes. We've made it easy. More on that below. What doctors must now believe The draft standards on "cultural competence, cultural safety, and hauora Māori" read less like a regulatory document and more like a postgraduate ideology course. Doctors must accept that: the health system is built on oppressive "settler traditions"; colonisation is the reason Māori can't access health resources; patients are entitled to equitable outcomes across identity groups (somehow); doctors must use their professional influence to actively "dismantle unfair systems;" that doctors should challenge colleagues who do not embrace this approach. Which are all funny things to put in a medical standards document. You might agree with some of this. You might agree with all of it. That's beside the point. The question is whether a medical regulator can turn highly contested political opinions into compulsory professional doctrine - backed by the threat of deregistration. What the law actually says - and what happens in a consultation room As a barrister: the Health Practitioners Competence Assurance Act requires doctors to demonstrate cultural competence, including respectful interaction with Māori. That's it. No ideological extremism. No activist roles. No dismantling.  This is yet another clear-cut case of a regulator trying to impose powers beyond what the legislation allows them. The New Zealand Bill of Rights Act protects not only the right to speak freely, but the right not to be compelled to say things you don't believe. What the Council is proposing is compelled belief, dressed up as professional development. As a doctor what matters when a patient walks through my door is whether: I'm listening carefully, examining competently, diagnosing accurately, treating effectively. Whether I hold the Council's approved position on colonisation has precisely nothing to do with any of that. On Friday, I was on The Platform talking about the MCNZ.   The chilling effect nobody's talking about Free Speech Union Council Member Ani O'Brien made a sharp observation earlier in the week: once disagreement with a framework is treated as evidence of the very problem it describes, recertification stops being about clinical skill. It becomes a test of whether you've learned to say the right things. The real danger isn't dramatic purges. It's quieter. Doctors will learn the language. They'll stop saying what they actually think - not because they've been persuaded, but because they have mortgages and families. A culture of inquiry becomes a culture of compliance. Good medicine depends on doctors who think critically, question assumptions, and follow the evidence. These standards would replace that with ideological conformity. What you can do The Free Speech Union is conducting a full legal analysis and will submit before the deadline. But this consultation is open to everyone - and the Council needs to hear from more than just the institutions already nodding along. If you think doctors should be judged on the quality of their care - not the orthodoxy of their politics - make a submission. Make a submission to MCNZ today Consultation documents are available here.  The deadline is 24 March. That's soon. The Medical Council's job is to ensure clinical competence and patient safety. Not to run a political education programme for the medical profession. Let's remind them of that. Best wishes,

Yes, let's keep piling on Anne Salmond.

"Salmond claims to have been guided by a list that reads like a Who's Who in 

Postmodernity... What she does not discuss is whether these thinkers are sound guides."

Anne Salmond, who recently called for thinkers to engage with open rather than closed minds—arguing that "other cultures may have insights that elude us" —was recently called out by Dane Giraud for the very same reason: specifically, for ignoring the insights of Enlightenment culture. The only position that actively suppresses inquiry, pointed out Giraud, is her own. "What is more antithetical to free thought'" he asked rhetorically, "than declaring whole categories of knowledge off-limits to criticism because they belong to the wrong culture."

Salmond, of course, has form. Her own favourite cultural whipping person is Western. Her writing, said Michael King of her 2003 book Two Worlds, gives "a strong impression that, rather than attempting to represent both cultures dispassionately, Salmond [is] straining to case every feature of Māori behaviour in a favourable light and many features of European in an unfavourable one.” 

But in doing so, she fails to learn there either. Reviewing Salmond's work, historian and former Waitangi Tribunal director Buddy Mikaere reckons Salmond's work "turns  our tipuna into cardboard caricatures." Rather than learning deeply from other cultures, he says, she offers only a "one-dimensional characterisation." For her and several other Pākeha historians, he says, "Māori [are] invariably depicted as deeply spiritual beings who only ever acted on the basis of high-minded principles. Pākehā, on the other hand, [are] mostly unprincipled rogues or fools whose behaviour was always motivated by racial arrogance, greed and self-interest."

Such is the accusation, it will be remembered, Salmond throws at the Pākehas of the Free Speech Union. It apparently never gets old.

It begins to look as if Salmond is unable to learn much from either of the Two Worlds of which she writes.

What also never gets old is re-reading the demolition of Salmond's work by the grand old man of New Zealand history Peter Munz, who destroyed her whole platform of post-modern posturing and epistemic duplicity in his 1994 review of her first major book. In her work she is guilty, he says, of not just "disinformation, but of actual misrepresentation."

Salmond claims to have been "guided by 'Heidegger, Foucault, Ricoeur, Gadamer, Habermas, [Mary] Hesse, Derrida, Eco and others.' ... [a] list [that] reads like a Who's Who in Postmodernity ...  all of whom would have helped to confirm her in her prejudices and methods."

What she does not discuss ... [is] whether [these thinkers] are sound guides. It appears that she is under the impression that these postmodern thinkers have solved the problem as to how different systems of knowledge or belief are related or, rather, not related to one another. Could it be that she is simply ignorant of the fact that there is much modern thought which rejects these facile, politically motivated doctrines of Foucault and Derrida, of Eco and Ricoeur? If she takes her stand with these people, she ought, to say the least, have produced some evidence that she has also examined the counter-arguments and, perhaps, found them wanting. But as things stand, she appears simply as an  uncritical camp-follower — which is a poor show for a professional anthropologist.

Furthermore, 

the explanations of the differences in systems of knowledge that these thinkers provide should not, I trust, be considered final. In the pre-postmodern world of good sense, belief or knowledge systems are distinguished according to whether they are true or false. ... What is really at issue and what she is trying hard to disguise by her way of constructing the past, is the brute reality of cultural evolution. ... 

[I]nstead of jumping on the postmodern bandwagon which is nothing more than a belated overreaction to the Victorian age, it is time scholars like Salmond caught up with modern thought and revised their view of evolution.

The limitations of the early mind are the result of isolation and of absence of the kind of contact which would expose beliefs and taboos to criticism. Societies and cultures, which for demographic and political reasons are exposed to contact with others, are more likely to question their own traditions, change their taboos and develop eventually a more universal system of knowledge — that is, beliefs which are more than validations or legitimizations of their own parochial cultures. In a nutshell, this is the heart of cultural evolution.

An evolution — a progress — only made possible by being open to new ideas. Says Munz:

Darwin or no Darwin, we are all descended from black Eve, and every single culture which has ever existed is a departure from the culture of black Eve, whoever she was. [I am using the notion 'black Eve' metaphorically to indicate that all existing cultures are descended or transmuted from a common stock.] ...

I would suggest ...  that one can rank the distance of societies from black Eve according to their exclusiveness. The earliest societies were totally exclusive and would not admit people other than those who belonged to their descent group. Next came societies which would admit people through marriage; and at the other end of the scale, farthest removed from black Eve, there are societies which potentially include anybody who wants to be included. Ranking in these terms is completely neutral and value-free. All it says is that while one cannot 'become' a Maori, one can 'become' a New Zealander, and that, for that reason, there is a structural difference between these two kinds of societies, and that that difference defines the distance of these societies from black Eve and that the actually exclusive structures are earlier than the potentially inclusive structures. Since this criterion is neutral, there can be no question of 'progress', only of progression. ...

[W]hatever criteria one likes to choose, the distances from black Eve can be ascertained because evolution, including cultural evolution, is a reality of life. 

If one wants to understand the coming together of two different cultures, as Salmond does, one must take into account, as Salmond does not, the different distances they have moved away from the earlier forms. Salmond has explicitly rejected evolution. 'Contemporary literature on traditional thought is still bedevilled", she writes, 'with implicit sometimes explicit evolutionism.' If she had her way, it would soon cease to be so bedevilled! I suppose she rejects cultural evolution in the face of overwhelming evidence because by making all cultures more or less equal she thinks she can heal wounds and pour oil on troubled waters and be 'politically correct'. But in the long run, there is no point in burying one's head in the sand: a distortion of reality brings about its own nemesis even if one does not quite yet know what shape that nemesis will take.

Can one say 'Ouch!'? 

"Every so often, a critic of 'universal reason' appears who, in the course of denouncing it, inadvertently demonstrates why we need it."

Anne Salmond, the patron saint of the straw man 

"Every so often, a critic of 'universal reason' appears who, in the course of denouncing it, inadvertently demonstrates why we need it. ... 

"Anne Salmond ... goes after a recent article in the Herald by former Free Speech Union Chief Executive Jonathan Ayling, in which he called for 'an Enlightenment approach [to the school curriculum] grounded in universal reason' This is taken as proof that he wants all children to think in the same way, as though 'universal reason' means a kind of intellectual North Korea, complete with a Ministry of Correct Thoughts. The author writes that universal reason 'suggests there is only one right way to think.' The incessant quarrelling of Kant, Hume, and Voltaire surely makes a lie of that. 

"Universal reason, properly understood, means something so elementary it ought to be uncontroversial: that humans, regardless of tribe, tongue, or whakapapa, share the basic capacity to make and understand arguments. It is what allows a Māori scholar to critique a German philosopher, or vice versa. It is what allows any of us to read a book from another century, or to engage with the sciences, or to disagree at all. Without a universal reason, debate becomes a kind of cultural tourism in which we admire each other’s 'ways of knowing' from a polite distance, like exhibits in an epistemic zoo. 

"[Salmond's] column insists that because language and culture shape thought, there can be no universal reason. This is like saying that because people wear different clothes, there can be no human body underneath. Yes, thought varies, but its very variability depends on a shared structure that allows us to recognise a difference as a difference. If there were no universals of cognition, no common tools of inference or logic, the entire academic industry of “cross-cultural workshops” - which the author curiously cites as evidence - would be impossible. One does not attend a conference on how minds differ unless one assumes the participants have minds capable of discussing it. 

"Then comes the moralising: that the Free Speech Union lacks 'humility before truth,' that Māori voices are being 'silenced,' that universal reason somehow implies a political programme in favour of ignorance. But the only position in the piece that actively suppresses inquiry is the author’s own. What is more antithetical to free thought than declaring whole categories of knowledge off-limits to criticism because they belong to the wrong culture (or, as Salmond frequently argues, are immeasurable by a universal standard)? What is more hostile to academic freedom than demanding that educational policy be bound not by rational argument but by obligations to particular groups, with 'truth' distributed like government grants? 

"A liberal society cannot function on those terms."

~ Dane Giraud from his post 'Why Dame Anne Salmond Misunderstands the Enlightenment'

"Determining what qualifies as a ‘hate crime’ is entirely subjective and threatens to simply create a bigger stick"

"[D]etermining what qualifies as a ‘hate crime’ is entirely subjective ... and threaten[s] to simply create a bigger stick with which to beat unpopular views.
    “Criminal acts motivated by hate are already illegal and should be prosecuted to the fullest extent of the law. However, categorising an existing offence as a ‘hate crime’ means punishing not just the action, but the perceived thoughts or motivations behind it.
    “New Zealand law already permits judges to consider motivation as an aggravating factor under the Sentencing Act. This is the right approach—judges daily use their subjective discretion in determining appropriate punishments.
    “Throwing red paint on an MP's office in response to the conflict in Gaza? Defacing an installation of the English version of the Treaty in Te Papa? Vandalising a rainbow pedestrian street crossing? All of these are [already] criminal offences—all should be addressed appropriately under the law. But who decides which is a ‘hate crime’?
    “No jurisdiction in the world has created an objective standard for ‘hate.’ Trying to legislate against something so subjective will lead to confusion and inconsistency in enforcement. There is far too much room for ideological interpretation when deciding if a crime constitutes as ‘hateful’ and to what extent. ...
    "Internationally, ‘hate crime’ laws have proven to be easily [exploited]. The rule of law is too important for our democracy to get caught up in subjective and ideological debates that undermine clear legal standards.”

~ Free Speech Union's submission on the Law Commission’s foolish consultation on hate speech law [More here]

Your place: your rules.

 

The Free Speech Union still doesn't understand free speech. For all its good work, it remains ignorant of the very foundation of their subject.

Over the summer, a woman was barred from New World Otaki for wearing a T-shirt expressing an opinion that reportedly upset a staff member, and then allegedly engaging in a shouting match with shop staff.

The Free Speech Union leapt into action in support of the woman and her T-shirt, saying in an Open Letter to the shop owner that they were "concerned" at the store's actions. "Customers may not be entitled to repeatedly share their views with a store's employees," says the Free Speech Union, "but employees and businesses do not have the right to have to have customers banned from their store simply on the ground of their person views."

This is exactly wrong.

Businesses have the moral right to ban customers for any reason they damn well choose. Your place: your rules. Just as anyone else has the right to criticise that, if they damn well choose to.

That's what free speech looks like. Understand? Because the Free Speech Union still doesn't.

"We are considering legal advice on this matter," threatens the mis-named Free Speech Union however, exhibiting a complete unawareness of how free speech works.

The right way to protest the decision is to protest the decision, i.e., to exercise your own free speech. Not to threaten them with lawyers. Not to insist on telling a shop owner what they may or may not do on their own property. Criticise away, and boycott if you wish. But start calling in the thugs and you've lost my support altogether.

You'd think an organisation said to promote free speech would understand this.

That they still don't after several years of having it pointed out to them is embarrassing.

Much Ado About Something: "The welfare state of the intellect"

IT'S NOT EVERY DAY that a long-dead Elizabethan playwright hits the headlines here at home. Creative New Zealand's decision to defund (or not to defund) a high-school Shakespeare competition spiralled into a debate into what Creative New Zealand should be funding and promoting. Competition supporter Terry Sheat argued a public enquiry must be held into what and how Creative New Zealand goes about its funding choices:

If I were to mark CNZ’s funding criteria and outcomes against the duties under the legislation, I would be forced to give them a failing grade. I wouldn’t give them funding. They are not delivering to the proper scope of their mission statement. Diversity is not diversity of “New Zealand art”, it is diversity of all art in New Zealand, with freedom of artistic expression for all. That is literally in the statute.
    In the case of Shakespeare Globe Centre NZ, funding was terminated primarily if not solely because Shakespeare is, to quote CNZ’s assessment, “located within a canon of imperialism” and not “relevant to a decolonising Aotearoa in the 2020s and beyond.” Vincent O’Sullivan dismissed this as nonsense in his letter published last week in the Otago Daily Times, describing it as “a breathtaking absurdity from a government body whose brief is to promote excellence in the arts.” An editorial in Stuff said that “the CNZ assessment has exposed the obvious problems that come with interpreting art through the narrow lens of national identity and politics.”

And then before you knew it, everyone was debating Creative New Zealand's funding criteria, how it should best promote "Aotearoan art," and whether or not Shakespeare was an "imperialist."[1]

Which rather starts where the argument should end. To me, it’s not an argument about how Creative New Zealand's bureaucrats should choose whom to fund in order to promote the latest fashionable ideals; it's whether these bureaucrats should have the power (and the money) to do that at all! The problem is not how Creative New Zealand goes about handing out money, in other words: it’s that Creative New Zealand hands out any money at all.

And here the issue here isn’t primarily the amounts that the establishment elects to pays out; it’s the effect of what that money buys: which (like its more quotidian companion, the Public Interest Journalism Fund) is intellectual conformity.

You may not realise it (and the dullards at the myopic Free Speech Union almost certainly won't), but this is a free-speech issue -- but not in the way you probably think.

WERE YOU AWARE THAT there is more than one way to curtail free speech? Government organisations who censor speech or expression are one way. Government organisations who promote it, like Creative New Zealand. are another.

I’m going to repost a piece from 2006 to make this point…

This is a post about free speech.  
It is not a piece about outrageous assaults on free speech committed in Paris last month, or by government censorship offices, or by successive NZ governments keen to curtail criticism during election periods.  
    No, this is a post about a different kind of attack on free speech. One more subtle, and no less chilling. One in which artists, musicians, scriptwriters, screenwriters, television producers and television production companies are kept afloat by government cash and government grants from Creative New Zealand and Te Mangai Paho and New Zealand on Air or their proxies, or in which many scientists are kept afloat by government grants or by employment in government research projects.  
    The direct result of this is what Ayn Rand once called ‘The Establishing of an Establishment’²: not the sponsorship of creative souls to toe a government line, but a more insidious kind of greyness inciting would-be creatives to to a culturalline embodied by those doling out and reviewing these government grants.

    What's the problem, you might ask?  
Well, think about this. There is more than one kind of censorship. In fact, I'd suggest to you that there are two. The first and most straightforward method of censorship is for a government to ban speech that they don't like -- that's just what National and Labour and the Greens and Gareth Morgan want to do at elections, and I hope you lot feel disgusted enough about that to do something about it. The second form of censorship is one that Ayn Rand called "the establishing of an establishment," and it is even more insidious and no less chilling: 

Governmental repression is [not] the only way a government can destroy the intellectual life of a country... There is another way: governmental encouragement.

That's right. Rather than simply banning opponents or banning expression, this form of censorship is much more subtle: it encourages expression (or scientific research) that is deemed acceptable, and by implication discourages anyone interested in career advancement from engaging in possibly unacceptable expression or research, . 

Governmental encouragement does not order men to believe that the false is true: it merely makes them indifferent to the issue of truth or falsehood.

It makes them sensitive instead to what is deemed acceptable, and thereby lucrative -- it encourages and makes lucrative that very form of sensitivity – it invites all those lucred up by the process to band together against whoever they perceive as their ‘other’ [and no better target for that than the phoney shibboleth they call 'neo-liberalism'].  
    This is what Rand referred to as "the welfare state of the intellect," and the result is as destructive as that other, more visible welfare state: the setting up of politicians, bureaucrats and their minions (the establishment) as arbiters of thinking and taste and ideology; the freezing of the status quo; a staleness and conformity, and an unwillingness to speak out – what Frank Lloyd Wright once called “an average upon an average by averages on behalf of the average” such that in interrogating any one modern artist you would get essentially the same answers as from any other -- in short "the establishing of an establishment" to which new entrants in a field realise very quickly they are all but required to either conform or go under. 

If you talk to a typical business executive or college dean or magazine editor [or spin doctor or opposition leader], you can observe his special, modern quality: a kind of flowing or skipping evasiveness that drips or bounces automatically off any fundamental issue, a gently non-committal blandness, an ingrained cautiousness toward everything, as if an inner tape recorder were whispering: "Play it safe, don't antagonize--whom?--anybody."

If you've ever wondered where this "special, modern quality" comes from, this is perhaps one answer -- through the intellectual mediocrity advanced by this less well-known form of censorship -- a censorship of encouragement. It's a much less obvious and much more insidious method of censorship, and no less chilling for that. 

The [US] Constitution forbids a governmental establishment of religion, properly regarding it as a violation of individual rights. Since a man's beliefs are protected from the intrusion of force, the same principle should protect his reasoned convictions and forbid governmental establishments in the field of thought.

Think about it.

NOW, IT SOUNDS LIKE good news that the Shakespeare funding has been reinstated, for which everyone and his leather codpiece are praising the Prime Minister's intervention

And I applaud the establishment luvvies and others who came out in defence of one of my favourite playwrights. Good for them.

I'm also happy that for a week or so we've been discussing his work. 

But why should you or I other folk be forced to pay, for the most part, for theatre (or art) you don't like. Especially when this process of bureaucratically-selected funding -- bureaucrats choosing what to fund based on what best fits the government's fashionable cultural concerns -- constitutes the self-same censorship of encouragement New Zealand is presently enjoying with the Public Interest Journalism Fund.

By my own literary and theatrical standards, it looks like the restatement this week was a small win. From the larger standpoint however, the amounts involved are but a tiny pimple one the huge arse of the government-promoted cultural establishment.

If we understand how that whole arts and literary establishment has become so comfortably established, we might feel more uneasy not just about the way this sausage is sliced - but that it's there to be sliced at all.

* * * * * 

1. You would have thought one look at Henry V would answer that one.
2. Cresswell (1996), reposted with the generous permission of Dave Perkins.
3. From "The Establishing of an Establishment," republished in her book Philosophy: Who Needs It?, from which the otherwise unreferenced quotes above derive.
Highly recommended if you want to get to grips with this subtle form of censorship.

[Pics from The Spinoff]

Using free speech so as not to lose it

The deadline for submissions on the Ardern Government's so-called "hate-speech" legislation closes August 6. [Details here [pdf] and here] Rights Institute head Terry Verhoeven shares his submission below. The so-called Free Speech Union also has a generally good submission here. You could use either as a model for your own.

You might say "It's not worth submitting; they never listen to submissions anyway." But bear in mind that this Government is nothing but poll-driven. And it's worth noting too that the internet censorship provision of the "internet filtering bill" was dropped last month after submissions. So they can change minds. After all, how often would they have the opportunity to read a thoughtful, well-argued, articulate argument for freedom and the right to free speech ... 

Ministry of Justice Proposals to Reform
the Legal Frameworks related to Hate Speech:

Public Submission by Terry Verhoeven, principal of the Rights Institute

Proposal 1: Change the language in the incitement provisions so that they protect more groups that are targeted by hateful speech [sic].
Do you agree that broadening the incitement provisions in this way will better protect these groups?

No.

Why or why not?:

Because the word “protect” here refers to a group’s special identity and that group’s supposed entitlement to be legally shielded from confronting speech, as opposed to being protected from actual threats of or incitement to violence, the word is really denoting the idea of privilege. Broadening the incitement provisions in this way therefore will better privilege these groups. Privilege in the sense I use the term is when the state initiates force against individuals (thereby violating their rights) to deliver what it has promised to the privileged person(s). In this case the privilege promised is members of select groups receiving protection from anyone who speaks out against their group in a confrontational way, even though the speech is not threatening or inciting any violence.

Threatening outspoken people with the prospect of jail time simply for saying something that is hated by members of a “protected” group is to wield a privilege, not to uphold a right. Here, the threat of incarceration is itself an initiation of force, and therefore a violation of individual rights. Further, if passed into law, the proposals would violate countless people’s property rights by effectively censoring what they can say on or with their own property, even though what is said does not threaten life, limb, liberty or property (the only legitimate basis for making something a criminal act).

As for the matter of social cohesion, what a society needs for it to become and remain resilient is for people to develop an immunity to encountering confronting speech, including criticism, insult and ridicule, not the criminalisation of confronting speech, including criticism, insult and ridicule. A sterile social environment free of verbal and written pathogens causes people to become hyper-sensitive to whatever they find confrontational, including speech that conveys truth. We see this today in academic institutions which have implemented policies to “protect” students from non-violent speech that confronts ideas they hold dear. Those institutions are a microcosm of what a society becomes when laws are enacted along the same lines to keep people “safe” from unwanted speech.

Pertinent to the proposals and their repercussions is what Rowan Atkinson said at the “Reform Section 5” launch at the British parliament in 2012. It is worth considering his words in some detail:

The problem with the outlawing of insult is that too many things can be interpreted as such. Criticism is easily construed as insult by certain parties. Ridicule, easily construed as insult. Sarcasm, unfavourable comparison, merely stating an alternative point of view to the orthodoxy can be interpreted as insult. And because so many things can be interpreted as insult, it is hardly surprising that so many things have been.

The exact same thing can (and should) be said about so-called “hate speech.”

Atkinson earlier started his talk with a long list of ridiculous charges that have been laid against peaceful but outspoken people under Britain’s hate speech laws… laws which, chillingly, the Royal Commission admits in its report are significantly harder to prosecute with than what it has recommended for New Zealand.

Atkinson continued:

Although the law under discussion has been on the statute books for more than 25 years, it is indicative of a culture that has taken hold of the programmes of successive governments that with the reasonable and well-intentioned ambition to contain obnoxious elements in society, has created a society of an extraordinarily authoritarian and controlling nature. It is what you might call the new intolerance, a new but intense desire to gag uncomfortable voices of dissent. ‘I am not intolerant’, say many people, say many softly-spoken, highly educated liberal-minded people: ‘I am only intolerant of intolerance’. And people tend to nod sagely and say, ‘Oh yes, wise words, wise words’, and yet if you think about this supposedly inarguable statement for longer than five seconds, you realise that all it is advocating is the replacement of one kind of intolerance with another. Which to me doesn’t represent any kind of progress at all. 

    Underlying prejudices, injustices or resentments are not addressed by arresting people. They are addressed by the issues being aired, argued and dealt with preferably outside the legal process. For me, the best way to increase society’s resistance to insulting or offensive speech is to allow a lot more of it. As with childhood diseases, you can better resist those germs to which you have been exposed. We need to build our immunity to taking offence, so that we can deal with the issues that perfectly justified criticism can raise. Our priority should be to deal with the message, not the messenger. [Emphasis mine.]

Indeed.

The point about needing to build up mental and emotional resistance to verbal and written pathogens by fostering a societal norm of frank, open and free discussion, rather than limiting the sphere in which peaceful but discomforting discourse is legally allowed, cannot be overemphasised. Censoriousness is not going to build a more resilient or free or “cohesive” society, quite the opposite. This is just common sense.

If it is protection of minorities that is the aim, then it would do well to remember what philosopher-novelist Ayn Rand once observed: “The smallest minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities”. The Royal Commission only ever consulted select groups, with a disproportionate focus going on one small group (Muslims) which has its own political ideas on the subject of freedom of expression. Most other groups have not been consulted. More importantly, individuals qua individuals have not been consulted. The smallest minority – the individual – will not be protected by the proposals. In fact, because the proposals explicitly aim to empower certain groups at the expense of the liberty of the individual, the individual is going to become the victim of the proposals if they are enacted. 

What has spurred the current push for “hate speech” legislation in New Zealand is of course the March 15th atrocity. We all recognise the inhumanity of that attack, and the needless suffering it caused, and condemn it in the strongest possible terms. Contrary to the findings of the Royal Commission however,  I understand that criminalising more forms of speech, however obnoxious they may be, is no guarantee something similar is less likely to happen again. If anything, making it unlawful to share abhorrent opinions is only going to make it even harder for the public and law enforcement to identify, monitor and intervene in the plans of those who would go on to perpetrate violence, by pushing such views underground. The reality is that the main effect the proposals are going to have, if enacted, is to give legal protection not to the lives, but to the feelings of some people at the price of the freedom of everyone. Protecting feelings is not a legitimate purpose for the law.

In your opinion, which groups should be protected by this change?

Groups:

Again, because of the nature of this change, the question really asks which groups should become privileged by it. The answer is none.

As Britain’s experience with this sort of legislation shows, what is called hate speech tends to be not so much about hateful speech as about speech which is hated. To those who hate hearing or reading the truth, the truth becomes, for them, “hate speech.” This is an insurmountable hurdle which should stop these proposals in their tracks.

Further, it is a nonsense to equate something like religious belief or political opinion or even cultural practices, which are all matters open to choice, with something like race, ethnicity, biological sex or disability, which are matters not open to choice. It is perfectly rational (and therefore should be legal) for people to criticise, pass judgment on, and even ridicule matters that are open to choice, and to do so in ways that might even be construed as being hateful. It certainly is irrational to criticise, pass judgment on or ridicule matters that are not open to choice, but even that should be legal because no one’s right to life, limb, liberty and property – one’s means to living - is being violated. There is no such thing as a right to have one’s feelings protected.

Do you think that there are any groups that experience hateful speech that would not be protected by this change?

Groups not protected:

This question commits the fallacy of begging the question by assuming that people require more protection from speech than the law currently provides. People do not need legal protection from confronting speech that does not directly and objectively threaten life, limb, liberty or property, what they need is their property rights to be respected and upheld so that they have the freedom not to listen to or read hateful things. People also need to build up a mental and emotional resistance to such speech if and when it is encountered in public space. Where the speech is wrongful, but not directly and objectively threatening life, limb, liberty or property, and the person who is on the receiving end needs moral support, concerned others should come to their defence in a non-violent manner because it is the right thing to do, not because communicating ideas or opinions which others hate to hear should be a crime, or because arresting and/or incarcerating critics, however obnoxious, is the proper moral response. That which is wrongly spoken but which doesn’t threaten to initiate force should not be met with force, it should be ignored, or else met with persuasion in whatever form a person chooses so long as it does not employ physical force. 

Proposal 2: Replace the existing criminal provision with a new criminal offence in the Crimes Act that is clearer and more effective

Do you agree that changing the wording of the criminal provision in this way will make it clearer and simpler to understand?

No.

Why or why not?

The Human Rights Act is already worded wrongly: speech that is not directly and objectively threatening life, limb, liberty or property should not be criminalised. Sometimes people and groups are deserving of contempt and/or ridicule, such as those propounding racist or bigoted or individual rights-violating opinions. Making something that is wrong to begin with clearer and simpler to understand does not change what is wrong to being right.

Do you think that this proposal would capture the types of behaviours that should be unlawful under the new offence?

No

Why or why not?

The question commits the fallacy of begging the question: it assumes the targeted behaviours should be criminalised.

Proposal 3: Increase the punishment for the criminal offence to up to three years’ imprisonment or a fine of up to $50,000 to better reflect its seriousness

Do you think that this penalty appropriately reflects the seriousness of the crime?

No

Why or why not?

Again, this question commits the fallacy of begging the question. Where is the crime? No one should go to jail or pay fines for saying something confronting about others, however obnoxious, when it does not threaten to initiate force. To criminalise such speech is to invite umbrage-takers to take out legal vendettas against those whose speech they hate to hear by calling upon the state to take away the outspoken person’s liberty and/or property. That is not justice.

If you disagree, what crimes should be used as an appropriate comparison?

Proposal Three: If disagree what crimes should be used as comparison:

No crime is an appropriate comparison because objectionable, offensive or insulting and even hateful speech should not be a crime unless it objectively and directly threatens life, limb, liberty or property. That does not mean such speech should be condoned or tolerated, merely kept within the sphere of free action and reaction according to natural and authentic rights.

Proposal 4: Change the language of the civil incitement provision to better match the changes being made to the criminal provision

Do you support changing this language in section 61?

No

Why or why not?

The proposed law should be scrapped. But if legislation based on the proposal(s) does pass into law, then the inclusion of a section like section 29J of Britain's Public Order Act 1986  is necessary to avoid a truly Orwellian outcome. It states: “Nothing in this [Bill/Act] shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.” Including this wording would ensure that ideas continue to be freely discussed without the threat of incarceration or hefty fines. Bringing charges against people simply for espousing ideas, including stating truths, would be an egregious violation of an individual’s rights, including section 14 of the New Zealand Bill of Rights Act 1990 which states, “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.” The Royal Commission’ report specifically cites the UK legislation as an example to be followed. The Royal Commission has made its fundamentally flawed set of recommendations so much worse for not supporting the inclusion of a mitigating provision such as the one found in UK law cited above.

Do you think that any other parts of the current wording of the civil provision should be changed?

Yes

Why or why not?

For reasons given above, they should be scrapped.

Proposal 5: Change the civil provision so that it makes 'incitement to discrimination' against the law

Do you support including the prohibition of incitement to discriminate in section 61?

No.

Why or why not?

See answers above.

Proposal 6: Add to the grounds of discrimination in the Human Rights Act to clarify that trans, gender diverse, and intersex people are protected from discrimination

Do you consider that this terminology is appropriate?

No

Why or why not?

Begs the question.

Do you think that this proposal sufficiently covers the groups that should be protected from discrimination under the Human Rights Act?

No

Why or why not?

Begs the question.

Do you consider that this proposal appropriately protects culturally specific gender identities, including takatāpui?

No

Why or why not?

Begs the question.

General comments

Do you have any other comments or feedback?

Other:

Natural rights are not a Western idea, they are an Enlightenment one. Rights result from us reasoning about our nature as “the “rational animal” (as Aristotle identified our species), and may be arrived at and enjoyed by any individual who makes the mental effort to grasp and uphold them. This makes rights truly universal. 

If it is social cohesion that is the goal, then nothing can unite a people better than a mutual commitment to upholding the existential requirement of every reasoning mind: freedom, and the means of achieving freedom: rights. I give you Revolutionary America in the 18th century, and the Union (Northern) states of the United States in the 19th century as examples.

The proper means for dealing with and solving complex problems are Principles. Let us now turn to some basic principles about rights, because this submission is taking a principled approach to the question of whether certain forms of speech should be illegal. 

What is a natural and authentic right, as opposed to a privilege or a printing-press “right”? A right is a principle that defines and sanctions individual action in a social context. More specifically, it is what the facts of reality determine reasoning minds need to function and flourish in a social context. The principle of a “right” is arrived at by making a proper identification of that need. Rights begin with, end with, and serve to protect the reasoning mind, our defining characteristic as an enlightened species.

Note that the reasoning mind is not a group attribute, but an individual attribute. A group is but a collection of individuals. All thoughts and actions are ultimately generated by individuals. For this reason, rights are only had by individuals, and may be delegated to representatives. A group cannot possess rights that are any different to the rights held by its individual members. Privileges, yes. Rights? No. 

So, if the reasoning mind is both the subject and beneficiary of rights, what does it need to function and flourish in a social context? Is it not being offended? No! A reasoning mind can still function perfectly well when it is offended. Same with being insulted, or confronted with ideas opposed to one’s own. What a reasoning mind needs is freedom, which can only be achieved in the absence of coercion. The existential requirement of each and every reasoning mind is the freedom to think, speak and act, limited only by the inherent obligation not to infringe on another’s right to do the same.

The proposals under discussion, which aim to curtail the sphere of lawful speech, would themselves be an infringing act if passed into law and used to convict non-violent people. They would not achieve social cohesion, but introduce a new form of social coercion, their purpose being to coerce people into not speaking or acting in a manner that might offend, insult or discriminate against others, according to some subjective standard.

Property rights are perhaps the most important right missing in all this. Property rights implement the right to liberty, which in turn implements the right to live as a reasoning being, commonly called the right to life. In a free and just society, if you do not like what someone says on or with their legitimately acquired property, you simply go your own way and avoid them. No harm done. Conversely, if you want to say something on or with your own legitimately acquired property, no one has the right to stop you. Property rights enable people to live and let live by resolving conflicting claims to freedom of action in a compossible manner. Upholding property rights does not lead to a utopia by any means, because people are free to do or say dumb or obnoxious things with or on their property, but it is nonetheless the best and most just system of rights-implementation there is.

If passed into law, the proposals under discussion would violate countless people’s property rights by effectively censoring what they can say on or with their own property.

If people abuse the freedoms given them by rights, for example by being bigoted, the disgruntled and those who possess a conscience are free to exercise their right to ignore, boycott, protest, condemn, ridicule, retort, and/or take any other action within their rights to affect a change of attitude and behaviour. That is how a society remains free while progressing towards better outcomes.

Without property rights as the arbiter of what can or cannot be said with or on one’s own property (such as on a website, so long as there is no threat of or incitement to violence), a chaos of clashing claims inevitably ensues, whereby a culture of authoritarianism, political pull and ultimately corruption becomes the arbiter. That is the direction any legislation based on the proposals under discussion is going to take this country, which is why it and they should be scrapped.

The laws currently on the statute books are more than sufficient to protect against truly rights-infringing speech, as other submissions will no doubt point out.

* * * * * 

Terry Verhoeven is the principal of the Rights Institute (an initiative), and the author of Rights: Rediscovering Our Means to Liberty.

The Free Speech Coalition is no more

** Guest post by Terry Verhoeven **

The Free Speech Coalition has been something of a cocoon, it turns out. What emerged this week from the chrysalis is something called the Free Speech Union. 

The former organism, founded spontaneously in the wake of several speakers being 'cancelled,' has now been reborn as the latter. The Free Speech Union appears on its surface to be good for this country, professing to stand for the right to free speech, and wanting to fight cancel culture. Sounds encouraging. But beware. 

It turns out that the word "Union" is being used literally. In its email announcing the emergence of the new entity, the FSU made a point of explaining why it is has formed into a real union, rather than remaining a coalition: the union model has "advantages,"  says the email, which include (in their words):

• "the right to access employer’s property to conduct union business. The next time Massey University bans Don Brash or Martin Bradbury because what they might say is ‘unsafe’ – we may organise a union event on campus. That could include giving those they want to de-platform the legal right to enter as delegates of the Union.
• "employers can’t stop people from joining our union – if they do, they’ll be in breach of employment law. We know of instances where universities have scolded academics for their public support of free speech / our campaign. If they try to do that with the Free Speech Union, they’ll be breaching employment law." [Emphasis in the original.]

Get that? Their explicit reason for a union model being adopted is, in the name of upholding “free speech," to trespass on and thus violate the property rights of employers! 

This is bizarre. As I and Peter have argued here many times, the only means by which to implement all rights in a compossible* manner, including the right to free speech, is to recognise property rights. Put simply, he who owns the microphone (or the hall) gets to choose who uses it. Understand this, and you understand that free speech itself is also at root a property-rights issue.   

The only alternative to implementing rights via property claims is a chaos of clashing claims to "rights." Determining, midst this chaos, whose claims are to be respected (and whose violated) results inexorably in a system of political pull in which all freedom is eventually lost. Violate property rights, the foundational right which supports the implementation of all others, and one necessarily violates all those rights, including the right to free speech.

The crux of the issue is this. Where property exists, it is the right of the property owner themselves to decide what can and cannot be said on or with their property. That's an absolute. The alternative is to legalise the hijacking of people’s property to spout ideas with which the property owner disagrees or, worse, actively undermines their own values and interests. Yet this is the direction the former Free Speech Coalition is now taking in its fight for “free speech,” i.e., to undermine the very foundations of its stated cause.

As I said: bizarre.

The former Coalition intends to begin its proposed legal violations of property rights on campuses and in so-called "public" venues, setting out explicitly to hamstring the administrators and agents of those properties -- starting precisely at the point that anti-free speech activists found a crevice in the system, and for similar reasons. But the next logical step (especially from those so blind to the difference between public and private) would be to hamstring private-property owners and to force upon them speech with which they disagree, to be propounded on or with their property. The logic is as inevitable as it is disturbing.

I donated to the Free Speech Coalition after it announced that it would be fighting the looming hate-speech legislation, and sent them a couple of emails urging that they recognise property rights as the sole means by which to implement free speech. No one even bothered replying to me. That silence speaks volumes.

What the new Free Speech Union seems to stand for then is not free speech, as you'd expect them to, but being provided a free platform for speech. These are not the same, and it's not just a minor debating point. Anyone who supports  free speech must support the sanctity of property rights. Conversely, whatever they may say otherwise, anyone who does not support the sanctity of property rights is not in truth a supporter of free speech. For this reason, I urge you to be circumspect about giving the so-called Free Speech Union your support. This bug could be dangerous.

*

     

Terry Verhoeven is Principal of the Rights Institute (an initiative) and author of the book Rights: Rediscovering Our Means to Liberty

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Free Speech Under Attack: "The Thug's Veto"

So "legal advice" about protestors threatening unspecified violence has managed to give Massey University  a "Health and Safety" reason to shut down a planned Feminism 2020 Conference at the University -- hosting which despite the threats against it had previously given some of us to describe the University using words like "courageous." Turns out we were wrong.  "Cancellation of the event," blathers the University statement on the cancellation, "is the only way to eliminate the risk to health and safety and to ensure that the university would not be in breach of its health and safety obligations." 

Commenters were quick to observe that you can mark this down as both the inevitable outcome of the failed Free Speech Coalition litigation against Auckland Council -- which has now cemented into legal precedent this Health and Safety excuse -- and another example of the Thug's Veto.

A timely moment then to post this brief excerpt from the just released book Free Speech Under Attack, from one my three chapters in the book, this one explaining the re-emergence of this phenomenon: 'The Thug's Veto' ...

The Thug's Veto

When we dehumanise and demonise our opponents, we abandon the possibility of peacefully resolving our differences, and seek to justify violence against them.

    ~ Nelson Mandela

Want to shut down your opposition without answering their ideas? Want to deplatform a speaker without letting them speak? Achieve your aim in two easy steps by exercising what’s become known as the Thug’s Veto. “A 'Thug's Veto' is when violent and/or threatening activists and/or protest groups … force the closure, cancellation or disruption of an event that they don't agree with by means of intimidation or threats of violence and chaos.”[i]

We saw this in 2019 when threats by Peace Action Aotearoa prompted the cancellation of a speaking event by two controversial Canadians. These were not threats to take lightly: the ill-named group’s notoriety was earned by having placed a fake bomb in a crowded Wellington theatre, in order to have a film screening cancelled.

As a logical fallacy, the Thug’s Veto is the violent equivalent of ad hominem. It plays the man without the ball, leaving unanswered the ideas that speakers express, and their bones often battered and bruised.

The practice used to be called a ‘Heckler’s Veto.’[ii] Appropriate to our age, it has now been updated to be more violent.

It was first used in the modern form in 2001 after the pro-Palestinian professor, Dr Sami Al-Arian, appeared on Bill O’Reilly’s Fox News TV show. So incensed were viewers by what they heard that they send death threats to Al-Arian and protested at the University of Southern Florida, from which he was promptly sacked. The university argued “that Dr Al-Arian’s presence constituted an intolerable “disruption” to campus operations, making his termination necessary.”[iii] In response, Alan Charles Kors, editor of the Oxford Encyclopedia of the Enlightenment, and president of the Foundation for Individual Rights in Education (FIRE), sent an open letter to the university arguing:

The University cannot and must not remove a professor because some portion of the public demands it on the basis of his purported political beliefs, his protected associations, and other wholly unproven suspicions. To do so would allow a “heckler’s veto” and would open the floodgates to arbitrarily firing all professors when some individuals, especially individuals willing to portray themselves as criminals, decide that they do not like the way that a professor talks, thinks, or appears. Indeed, it would create a new category, the “USF thug’s veto,” which actively encourages the threat of violence to accomplish the dismissal of professors disliked by any portion of the public. This is not only unconstitutional, but, indeed, endangers the core of freedom at any institution of higher learning and the very rule of civilised law itself….[iv]

That argument seems exactly right. “This is not about Sami Al-Arian or his political views,” Kors told the press. “This is about the devastation of free speech and academic freedom at USF and the destruction of constitutional protections at a public university.”

That devastation has continued, with protestors in recent times shutting down events from Arkansas to Auckland, and from Oxford to Oklahoma.

If the New Censors have their way, the Thug’s Veto may become the most widely accepted way to deplatform your opposition.[v]

. . . 

[To read on, order your copy of Free Speech Under Attack today!]

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NOTES[i] ‘Thug’s Veto,’ Urban Dictionary
[ii] “The [US] Supreme Court first recognised the term in Brown v. Louisiana (1966), citing the work of First Amendment expert Harry Kalven Jr., who coined the phrase. The term is also used in general conversation to refer to any incident in which opponents block speech by direct action or by ‘shouting down’ a speaker through protest. Although some scholars refer to a string of heckler’s veto cases, the idea appears across a wide range of cases in First Amendment law as a label critical for any claim, made in defence of the government’s suppression, that speech inciting hostile reactions may be restrained.” Patrick Schmidt, ‘Heckler’s Veto,’ First Amendment Encyclopaedia.
[iii] ‘The University of South Florida Betrays the Rule of Law: The “Thug’s Veto” and the Ongoing Case of Sami Al-Arian,’ FIRE website, January 29, 2002
[iv] Ibid.
[v] Jonathan Haidt observes that there is also a parallel sort of ‘Victim’s Veto’ giving the easily offended power to silence speech. If “giving offence” is deemed off limits, then anyone claiming offence, especially on behalf of their group, is able to shut down any speaker they choose. This is creating am especially chilling effect on campuses, he says. To free up campus debate, he argues for a return to the common law notion of the “reasonable man” defence: i.e., if a “reasonable person” would not be offended by Statement ‘x,’ then Statement ‘x’ is okay.

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