Stephen Franks: Censors given a law against hate speech

Stephen Franks

We already have a hate speech law, but so far it applies only to films, videos and the internet. Perhaps that is why newspapers paid no attention when it went through last month.

But the one or two Select Committee members in the know at last week's hearings in Auckland must have been choking with suppressed amusement. All those earnest submissions against future threats to free speech, yet a month ago Parliament gave the censors the power to ban Christians from using videos and films to teach their children anti-homosexuality views. That power was smuggled through in a bill to increase child pornography penalties.

The plot dates back to the censoring of two Christian Living Word videos in 1997. The film censors made New Zealanders liable to a $20,000 fine or up to a year in prison if they showed them to teenagers. Mere possession by an adult was punishable by a $2000 fine.

The 1989 US-made videos showed clothed adults arguing that a gay lobby was using political influence to twist public health measures against Aids, to redefine family and to obtain legal privileges for deviant lifestyles. No censor anywhere else in the world has restricted them.

Three years later our Court of Appeal told the censors to back off because the videos did not portray sex, cruelty, violence, horror bestiality or torture. Those gateway tests in section 3 of the Films, Videos and Publications Classification Act 1993 protected free political, social and religious debate from the censors' agenda.

Grudgingly the censors complied, but since 2001 they have been trying to persuade Parliament to reverse that court decision. Last month they won.

The amendment gave the censor vast new powers to restrict filmed hate speech. Instead of the words "hate speech" the terms used are "likely to be injurious to the public good" or "highly offensive to the public in general", but their definitions are unmistakable. They are the same Orwellian descriptions the censors adopted to describe the Living Word videos.

For example, they can, on pain of fine or prison for up to one year, ban supply to young people of material which includes "visual images of a person's body; and [which is] alone, or together with any other contents of the publication of a degrading, or dehumanising or demeaning nature, if it would be likely to encourage [people under the specified age] to treat or regard themselves, [or others] as degraded or dehumanised or demeaned".

There can be no doubt about the intention. These new powers are exempted from the free-speech protecting gateway section (requiring horror, cruelty abuse of children and so on), putting them beyond the reach of the Court of Appeal's reasoning. A further section expressly makes these new powers retrospective. The censors could even go back and have another go at Living Word, though they'll be too shrewd for that.

For practical purposes an age restriction is equivalent to a ban. The material can't go on a website, for example, because under-age people could access it.

So if the video shows homosexuality and says it is abnormal, or that it spreads Aids, and it could make some schoolkid who thinks he might be gay feel demeaned or degraded, the censors can now ban it. They can give the fingers to the Court of Appeal's earlier protection of free speech.

The same reasoning could ban a tough video for or against drug use, or Muslim treatment of girls, or Indian arranged marriages, or even a Jewish depiction of the risks in eating shark or shellfish.

Labour elements have been angling for this for years, but they won by bracketing their changes in a bill to increase penalties for child porn. Every party wants to look tough on child porn, and my colleague Deborah Coddington was successful in pressing Labour's Phil Goff to increase penalties.

More importantly the same committee that is now holding its show hearings misled readers who looked only at a bill report commentary, and not the actual provisions.

I was initially reassured by claims the bill did not deal with hate speech, and did not widen "the scope of what may be classified as objectionable under the Act ... relative to the original intent of Parliament".

When the actual words showed that both claims were deceptive I approached other opposition parties with amendments to protect free speech. After re-examining the words they agreed to support the amendments. This took some courage. They knew Labour would call any late concern porn-friendliness.

It is almost unheard of for the Greens to vote for an Act motion on short notice, but Keith Locke agreed, because of the threats to freedom of speech.

Then, astonishingly, United Future votes enabled Labour to pass the new clauses. I can only surmise that United Future thinks it must pay this price to refute claims that it is a religious party.

This isn't just another disappointment for Christians. It is dangerous for all who believe that even those whose ideas we detest must be free to express them.

Uncle Tom's Cabin was supposed to make slave owners ashamed of themselves. Black Beauty was meant to incite hatred of cruel horse cab drivers. Hart wanted apartheid supporters to feel isolated and reviled.

Freedom of speech is a hard-won right of every New Zealander including gay groups, political groups, and fundamentalist Christians. It is meaningless if it ends when a censor claims someone young could feel demeaned, or that a majority could feel offended. It may not be true that sticks and stones may break your bones, but words can never hurt you, but tyrants will be the first to claim hurt if the law holds out protection from hurtful words.

* For more detail, including the defeated amendments, and United Future's comment see the Act website.

* Stephen Franks is Act's justice spokesman.