Some notable gains and a disappointing own-goal for the Free Speech Union

There are not a lot of warm fuzzy feelings to cherish from 2021. Most people will be happy to put the year behind them, for a whole lot of reasons not necessarily related to Covid-19. But there was one luminously bright spot. I refer to the establishment of the Free Speech Union last May.

The FSU evolved from the Free Speech Coalition, which in turn arose from outrage at the denial of a public speaking platform to the Canadian provocateurs Lauren Southern and Stefan Molyneux in 2018. Readers of this blog will recall that Phil Goff – whom I described at the time as the Gauleiter of Auckland – personally meddled in a process which resulted in council-owned Regional Facilities Auckland Ltd reneging on an earlier decision to make one of its venues available to the Canadians.

I should stress here that the coalition wasn’t formed because its founders endorsed the views of Southern and Molyneux, whom the media demonised as “far right” or “alt right” (whatever those terms might mean). The coalition was simply concerned with protecting the principle of free speech and the right of New Zealanders to be exposed to ideas not everyone agrees with.

Speaking for myself, I still have no idea what supposedly poisonous beliefs the Canadians were peddling, because we weren’t allowed to hear them. That was the whole point. They were “cancelled” on the pretext of threats to health and safety – the so-called thugs’ or hecklers’ veto, whereby officials can use the possibility of disruption as an excuse to de-platform controversial speakers (a fate also suffered later by Don Brash at Massey University).

The FSU initiated legal action challenging the Auckland cancellation but ran into an unsympathetic High Court decision, elements of which it then got overturned in the Court of Appeal, and is now going all the way to the Supreme Court. That the country’s highest court agreed to consider the issue is significant, indicating it should be seen as a test case on whether threats of violence should be allowed to over-ride free speech rights.

In the meantime the FSU, which is modelled on a similar organisation formed in Britain by Toby Young, associate editor of The Spectator, has busied itself with other worthy causes which it listed in an end-of-year summary put out by union spokesman Dane Giraud. These included:

■ Successful court action that forced Palmerston North City Council to reverse an earlier decision denying the feminist group Speak Up For Women, which opposed legislation allowing people to change the sex recorded on their birth certificates, the right to hold a public meeting in the city library. Other councils (Auckland, Dunedin and Wellington) got the message and also backtracked on similar speaking bans.

■ A petition signed by 40,000 people opposing the government’s plan to introduce “hate speech” laws that are so ill-defined and poorly thought out that neither the prime minister nor the Minister of Justice could explain how they would work.

■ Action to uphold the academic freedom of a Waikato University lecturer who faced a disciplinary hearing because his views about religion upset a student. The lecturer’s own union hung him out to dry but university officials did a handbrake turn after the FSU’s lawyers reminded them of their obligation to respect academic freedom under the Education Act.

■ In the most celebrated free speech case of the year, the FSU took up the cause of the seven eminent academics who were blackballed and pilloried by 2000 censorious (for which read bigoted) colleagues – again, with no support from union representatives or university authorities – after they wrote a letter to The Listener challenging the idea that traditional Maori knowledge (matauranga Maori) should be equated with science. The controversy attracted international attention and brought down a richly deserved hail of ridicule on the Royal Society of New Zealand when it announced its attention to subject two of the Listener Seven to the 21^st century equivalent of a heresy trial.

■ Action was also taken in support of local government councillors, including former MP Michael Laws, who contravened stifling “codes of conduct” that restrict what the elected representatives of the people can say about council policies or council performance - in other words, censorship of the elected by the unelected. Dane Giraud comments: “There is a worrying trend of Codes of Conduct within organisations being weaponised to undermine free speech. This is true across numerous sectors, not just local government, where vague provisions can be twisted to suit just about any purpose."

All this serves to confirm the importance of the FSU in protecting freedom of expression at a time when it’s under attack on a scale unprecedented in the memory of most New Zealanders. It shouldn’t be necessary, of course, since free speech is guaranteed under the Bill of Rights Act. But most of the institutions that we once counted on to uphold free speech – including the news media, academia and the government itself – have deserted the cause and even worse, become complicit in its erosion.

Against this backdrop, however, it’s disheartening to note that the FSU passed up an opportunity to speak out in support of blogger Cameron Slater when he reported that he was under surveillance by a police “scanning and targeting team” for holding “anti-government” views and “denigrating” Labour Party policies.

I continue to support the FSU, but in my opinion they got things badly wrong here. It was a serious and seemingly inexplicable lapse in an otherwise laudable first few months.

In a statement belatedly issued on Christmas Eve, presumably in response to the concerns of members sympathetic to Slater (who wrote a trenchant post attacking the FSU), the union justified its silence by explaining that it had considered the issue and decided it involved “civil liberties” rather than free speech. But free speech is a civil liberty – arguably the most important civil liberty of all, since it goes to the very heart of participatory democracy. Look up almost any definition of civil liberties and you’ll find it includes freedom of speech along with other rights such as freedom of religion, freedom of conscience and freedom of assembly. To treat it as something separate and discrete is to draw an artificial distinction.

The FSU went on to explain that Slater had not had his freedom of expression infringed in any practical way, which struck me as a narrow and rather legalistic assessment. It’s true, as the FSU says, that the police report on Slater didn’t stop him from writing columns or standing on a soapbox (metaphorically speaking). But active interference and outright coercion are not the only means of discouraging people from exercising their rights. The very knowledge that writing or publishing “anti-government” rhetoric might invite police attention would in itself serve as a deterrent to people less bold than Slater. The disclosure that police covertly monitor dissenters could have a potent chilling effect on public debate and is therefore something I believe the FSU should concern itself with.

Even more worrying was the suggestion from a senior sergeant that police should pay Slater a visit. This is how police states begin.

The FSU said the police had a legitimate role in monitoring sites where extremists congregated but conceded that they showed poor judgment in thinking the BFD, the site Slater is associated with, was one of those places. Here we get to the core of the argument. Slater might have invited police attention had he been inciting violence or insurrection, but he wasn’t. His putative offence was criticising the government – a legitimate, indeed necessary, function in any open democracy.  That’s why we should all be alarmed that he was under police scrutiny. Slater expresses himself very forcefully and certainly rubs people up the wrong way, but he’s not a political extremist.

On the other hand, we should be reassured that Slater's Official Information Act request flushed out the police zealots and that senior officers stepped in before things went too far. But none of this was a reason for the FSU to sit on its hands. The union could have acknowledged those redeeming factors while still pointing out that the OIA disclosures pointed to an unhealthy and potentially dangerous mentality within sections of the police. In fact to look at the issue from a different angle, what harm would have been done by issuing a statement cautioning against abuse of police powers? None that I can see. But it would have signalled that the union was vigilant in upholding free speech across the board, and perhaps more importantly it would have avoided the inevitable suspicion that the union decided to stay silent because of the identity of the individual concerned.

Slater, after all, has a complicated history and has made lots of enemies. His many critics would say he doesn’t make it easy to like him. We can only hope that wasn’t the reason the FSU held back from defending him. As Noam Chomsky (a lefty) observed, if we don’t believe in freedom of speech for people we dislike [although Chomsky used a much stronger word], we don’t believe in it at all. Or as someone close to me put it, you can’t pick and choose who you’re going to support when it comes to a scrap over free speech.

As it was, the FSU did itself no credit by eventually making a statement – to its members, not the public at large – on a day when people had other things on their minds. That’s what governments do when they want to hide something.

I respect the leaders of the union and I admire them for all they have achieved in a short time, but they didn’t so much drop the ball on this occasion as refuse to pick it up. Sadly, I suspect their credibility will have been damaged as a result.

FOOTNOTE: At the risk of repeating myself, I don’t know Cameron Slater, although the BFD has published pieces by me. I should also acknowledge that the Free Speech Union republished my original blog post on the police surveillance issue, noting that “reasonable minds can differ on these issues”.