It’s been an interesting few days for anyone with an
interest in free speech. There's been one positive development, one negative and one inconclusive.
First came the surprise announcement last Friday that Sir
Robert Jones was abandoning his defamation case against film maker Renae Maihi.
To recap: Jones wrote a self-evidently satirical column for National Business Review* in which he
suggested that Waitangi Day should be replaced with Maori Gratitude Day.
“I have in mind a public holiday where Maori bring us
breakfast in bed or weed our gardens, wash and polish our cars and so on out of
gratitude for existing,” he wrote.
It was classic Bob Jones: wilfully provocative but quite
funny, not least because it was outrageous in a Private Eye-ish fashion. And while it was clearly not meant to be
taken seriously, he was making a valid point – namely, that for all the talk
about the harm done to Maori by British colonisation, they benefited in ways
that are not often talked about. The fact that colonisation brought an end to
slavery, cannibalism and savage inter-tribal warfare must surely count for
something.
But Maihi didn’t see the joke. Describing the column as a
vile rant, she called Jones a racist and launched an online petition urging that
he be stripped of his knighthood. (The petition, which reportedly attracted
85,000 signatures, was twice submitted to Parliament but not accepted for
consideration.)
Jones sued, but not for damages. All he wanted was a
declaration from the court that he was defamed and an order for Maihi to pay
his costs, though he left open the question of whether he would accept her
money. He took particular exception to the claim that he was racist.
I found myself in the unusual position of supporting both
parties. You can understand why Jones objected to being called a racist – a
deeply offensive term that is thrown around far too freely, often with the aim
of intimidating people into silence.
But it seems unrealistic to exercise your right to free
speech, as Jones did, then call in the lawyers when someone strikes back. Even
allowing for the argument that the word racist should be viewed as technically
defamatory, the free market of ideas and opinions is a rough-and-tumble place
where you can expect to be bruised. Jones knows this, and has inflicted more
than a few contusions himself over the decades.
It seems to me that the more provocative a columnist is, the
more he or she should be prepared to tolerate blowback. The old saying about
heat and kitchens applies. This might not be a view that would stand up in
court, where prolix legal arguments often succeed in making simple things seem
complex, but I think it’s a fair and reasonable one.
There was also the perception that a man with very deep
pockets was using the law to squash a critic whom we can safely assume didn’t have a
lot of money to fight an expensive defamation action. Of course Jones was
entitled to exercise his legal rights, but rich property investor versus young(ish)
Maori film maker was never going to play well.
In my view, then, for what it’s worth (which I admit is probably
bugger-all), Jones should have sucked it up.
As it turned out, he discontinued the action anyway, after
five days. In a conciliatory statement, Jones said he remained deeply offended
by Maihi’s allegations but accepted that she was expressing a sincerely held
opinion. One wonders why he couldn’t have come to that conclusion in the first
place.
Jones went on to say that the parties differed on what was
acceptable humour, but no malice was intended by either side and it was
sensible to put an end to the proceedings.
It was an uncharacteristic backdown from the old warhorse,
and one wonders whether his heart was in it. Perhaps he sensed things were
going badly in court (the news and comment website The Spinoff carried a savage critique of his performance in the
witness box) or simply decided that he didn’t need this sort of carry-on at his
stage in life (he’s 80). Who knows?
I was disappointed by the non-outcome because I thought this
might be an opportunity for a judge to attempt a definition of that troublesome
word “racist”. The term is used so indiscriminately that it would be helpful for the
courts to pin down its meaning and rule on whether it can be defamatory (I
would have thought yes, in which case I’ve been defamed more than a few times
myself). But I guess we’ll have to wait.
As it happens, on the same day as Jones’ defamation case
came to its non-conclusion in Wellington, a High Court judge in England was
delivering a judgment that applies some overdue common sense to another
vexatious and overused term: hate speech.
I’ve already outlined the bare bones of this case in the COLUMN
posted on this blog yesterday, but you can read Mr Justice Julian Knowles’
judgment in full HERE. It lays bare the frightening extent to which the British
police have been contaminated by the fashionable ideology of identity politics.
The facts of the case were that a man named Harry Miller
posted a series of comments on Twitter that upset a “post-operative
trans-gender lady” identified as Mrs B. (In passing, it strikes me as
fundamentally unfair that the complainants in such cases have the protection of
anonymity while those they accuse – often unfairly, as in this instance – must
suffer the unpleasant consequences of being publically named.)
Miller, a former police officer whom the judge described as
intelligent and highly educated, opposed government moves to enable people to
“self-identify” as trans-gender. He objected to the distortion of commonly
understood biological concepts such as male and female – a concern shared by
many feminists – and thought that self-identification posed a threat to
existing sex-based rights. He also objected to the politicisation of the police
in their “open campaigning” in support of the law change.
He told the court he had no hatred for the transgender
community and believed “such persons have the right to present and perform in
any way they choose, provided that such choices do not infringe upon the rights
of women”. But he wanted to raise awareness of the issue “by stating that which
used to be instinctively obvious – a biological man is a man and a biological
woman is a woman. To claim otherwise is extraordinary.”
A friend of Mrs B drew her attention to some of Miller’s
tweets and she complained to the Humberside police, describing Miller as transphobic
and “a bigot” who “eighty years ago … would have been making the same comments
about Jewish people”.
So what was the nature of these heinous tweets that evoked
comparisons with Nazism? One tweet dismissed as “bollocks” the notion that “transwomen
are women”. In another, Miller joked
about being assigned mammal at birth when his real orientation was fish – thus
poking fun at the idea that people could create their own biological reality.
On another occasion he retweeted a verse from a song by a feminist songwriter
which referred to silicone breasts, synthetic hormones and a vagina that “goes
nowhere”. The judge said this was the tweet that most concerned the police,
though it’s not clear why.
Justice Knowles said the police recorded the matter as a
hate incident without any critical scrutiny of the tweets or assessment of
whether what Mrs B was saying was accurate, which he ruled it wasn’t. A hate
crime report referred to Mrs B as “the victim” and Miller as “the suspect”.
A later entry in the police file said Miller had been making
comments that were “designed to cause deep offence and show his hatred for the
transgender community” – a claim for which the judge said there was no
evidence.
The complaint was placed in the hands of a Constable
Mansoor Gul, who is described as a “community cohesion officer”. His witness
statement reveals the startling extent to which rank-and-file British police
officers are empowered to form what are essentially political judgments about
matters they are investigating – to say nothing of their susceptibility to
faddish ideology.
“Where I am assigned a hate incident to investigate,”
Constable Gul said in his witness statement, “I review the report and decide
whether it has been correctly classified as a hate incident. If, having
reviewed the evidence available and spoken to the victim, I consider it to be
more serious than a hate incident, then I can recommend that it be
re-classified as a hate crime.”
PC Gul viewed screen shots of the tweets supplied to him by
Mrs B and formed the view that they were properly treated as a hate incident.
Having considered the risk of matters escalating to criminal offences being
committed, he decided to speak to Miller.
He went to Miller’s place of work. Miller wasn’t there, so
he left his card with a company director with a request that Miller phone him.
Gul wasn’t in uniform, but the company director would have known he was a
police officer and must have wondered what Miller had done to warrant police
attention.
Gul said that in their subsequent phone conversation, he
explained to Miller that although the tweets were not criminal, they were
upsetting many members of the transgender community [in fact only one, as the
judge was at pains to point out]. Gul told Miller that although his behaviour
did not amount to criminal behaviour, if it escalated then it might become criminal
and the police would need to deal with it appropriately.
Gul said he was acting in line with national guidelines
known as the Hate Crime Operational Guidance (HCOG), which are issued by the
College of Policing – the first defendant in the action.
Miller testified that he asked for, and received,
confirmation that none of his alleged 30 tweets were criminal. He then asked
why Gul was wasting his time and was told: “I need to check your thinking”.
“I replied: ‘So, let me get this straight, I’ve committed no
crime. You’re a police officer. And you need to check my thinking?’ PC Gul
answered: ‘Yes’.
“I said, ‘Have you any idea what that makes you? Nineteen Eighty-Four is a dystopian
novel, not a police training manual.’”
At this point in his judgment, Justice Knowles helpfully
explains that Nineteen Eighty-Four is
the 1949 novel by George Orwell which coined the term ‘thoughtcrime’ to
describe a person's politically unorthodox or unacceptable thoughts.
Miller said the clear implication from the conversation with
Gul was that he should stop tweeting on transgender issues or risk the matter
being escalated from non-crime to crime, thus promoting further police intervention.
As the British columnist Melanie Phillips acidly observed:
“Got that? A non-crime can morph into a crime simply by virtue of the non-crime
being committed on multiple occasions.”
But it was what came next in the conversation with Gul that “stunned”
Miller.
“He [Gul] said, ‘You have to understand, sometimes in the
womb, a female brain gets confused and pushes out the wrong body parts, and
that is what transgender is.
“I replied, ‘You’ve got to be kidding me. Wrong body parts?
You have to know that is absolute bullshit. Is this really the official police
line?’ PC Gul said, ‘Yes, I have been on a course’.”
In his witness statement, Gul denied saying this. But given
that Justice Knowles found other statements by Gul to be incorrect, I know
whose account I’d believe.
The judge said Miller experienced a deep sense of personal
humiliation, shame and embarrassment as a result of the police action and
hadn’t been back to work since the day he was first contacted by PC Gul. It’s
interesting to contrast this with the total absence of any adverse consequences
for the mischievous complainant, Mrs B.
Justice Knowles was sharply critical of PC Gul, saying he
had “misrepresented and/or exaggerated the effect the Claimant’s tweets had had
and the number of complaints the police had received”.
He went on to say that the police left Miller with the clear
belief that he was being warned by them to desist from posting further tweets
on transgender matters. “In other words, I conclude that the police’s actions
led him [Miller], reasonably, to believe that he was being warned not to
exercise his right to freedom of expression about transgender issues on pain of
potential criminal prosecution.”
I’ll skip the next 30-odd pages of Knowles’ 65-page
judgment, which are largely concerned with argument over the legality of the
Hate Crime Operational Guidance, which Miller challenged.
Knowles upheld the
legality of the HCOG, which arose from recommendations made by the Macpherson
Inquiry that followed the racially motivated killing of black teenager Stephen
Lawrence in London in 1993. But to quote Melanie Phillips again: “It was the
toxic and ideologically distorted Macpherson report which led to the
introduction of the Orwellian concepts of hate crime, the replacement of
objective reality by subjective ‘victim’ opinion and the policing of thought
itself.”
Let’s fast-forward now to the last section of the judgment,
where Knowles considers the specific issue of Miller’s treatment by the police.
He doesn’t hold back: “It is clear that there are those on one side of the
[transgender] debate who simply will not tolerate different views, even when
they are expressed by legitimate scholars whose views are not grounded in
hatred, bigotry, prejudice or hostility, but are based on legitimately
different value judgments, reasoning and analysis, and form part of mainstream
academic research.”
He held that Miller’s tweets were protected by Section 10.1
(Freedom of Expression) of the UK Human Rights Act. They were expressions of
opinion on a topic of current controversy and were congruent with the opinions
of respected academics.
Gul had no rational basis on which to believe there was any
risk of Miller committing a criminal offence, Knowles said. “There was no firm
evidence that anyone had read his tweets and been upset, apart from Mrs B.
There was no evidence anyone would read any future tweets and be upset by
them.” He added that Gul was wrong to say that the tweets had upset many
members of the transgender community. “There was no evidence of that and Mrs B
does not say that in her witness statement.”
As for Mrs B, Knowles commented: “I consider it fair to say
that her reaction to the Claimant’s tweets was, at times, at the outer margins
of rationality.”
Knowles went on to say: “The undisputed facts plainly show
that the police interfered with the Claimant’s [Miller’s] right to freedom of
expression. PC Gul’s actions in going to the Claimant’s place of work and his
misstatement of the facts, his warning to the Claimant, coupled with the
subsequent warnings by the police to the Claimant that he would be at risk of
criminal prosecution if he continued to tweet ... all lead me to conclude that the police did interfere
with his Article 10(1) rights even though he was not made subject to any formal
sanction.”
Arguments advanced by lawyers for the police did not
properly reflect the value of free speech in a democracy, he said. Then this:
“There was not a shred of evidence that the Claimant was at risk of committing
a criminal offence. The effect of the police turning up at his place of work
because of his political opinions must not be underestimated. To do so would be
to undervalue a cardinal democratic freedom. In this country we have never had
a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.” He
held that the police’s actions, taken as a whole, had a chilling effect on
Miller’s right to freedom of expression.
Knowles concluded his judgment by quoting from John Stuart
Mill’s 1859 treatise On Liberty: “If
all mankind minus one, were of one opinion, and only one person were of the
contrary opinion, mankind would be no more justified in silencing that one
person, than he, if he had the power, would be justified in silencing mankind.”
It was an emphatic defence of free speech in a country that
has been waiting a long time for one. In the meantime, as Melanie Phillips has
written, Britain has fallen into a “terrifying state of authoritarian
imbecility”. Whether one judge’s ruling will be enough to arrest the process
remains to be seen.
I’ve taken the trouble to describe this case in some detail
because it’s relevant to New Zealand. While our police force hasn’t been
politicised in the way Britain’s has, there’s no guarantee it won’t
happen. The same angry, illiberal
ideological forces are in play here, and we have a police commissioner who has
made sympathetic noises about the need for "hate crime" and "hate speech" to be more actively policed.
We certainly shouldn’t expect government politicians to
defend free speech – not when the Minister of Justice has seized the Christchurch
mosque massacres as a chance to crack down on opinions that upset aggrieved
minority groups, and when the comically misnamed Human Rights Commission promotes
restrictions on what New Zealanders should be allowed to say.
That the prevailing climate is one of dangerous censoriousness
was again demonstrated this week by the SkyCity convention centre’s decision to
cancel a speaking engagement by the controversial Australian philosopher Peter
Singer. In a particularly nauseating example of PR-speak, a spokesperson said: “Whilst
SkyCity supports the right of free speech, some of the themes promoted by this
speaker do not reflect our values of diversity and inclusivity.”
What bullshit. If SkyCity truly believed in free speech, it
would honour its contract with the promoter of the event. And if it truly
valued diversity, it would recognise that this must extend to diversity
of opinion.
In truth, a gutless SkyCity bailed out because it was
worried about “reputational damage”, to use another hideous PR term. It appears
to have been unnerved by the possibility of disability activists protesting
against Singer.
Why should disability activists protest? Because Singer has
argued that parents of seriously disabled babies have a moral right to kill
them.
It’s a stance I consider utterly repulsive, but it won’t become
less repulsive if Singer is denied the chance to talk about it. Barring him from
speaking may simply enhance his mystique among those who are drawn to "edgy" thinkers.
Besides, Singer’s abhorrent ideas serve one useful purpose:
they highlight the hypocrisy and inconsistency of prevailing attitudes toward
abortion. Because if people are appalled by the thought of newborn babies being
euthanased, how do they justify babies being killed in the womb – especially those
that have passed the point where they can survive on their own? What’s the
qualitative difference? Where is the line to be drawn, assuming one can be
drawn anywhere?
Singer’s de-platforming follows similar action taken against
the Canadian speakers Stefan Molyneux and Lauren Southern in 2018, which
prompted the formation of the Free Speech Coalition, and even more reprehensibly against Don Brash by Massey University.
Not surprisingly, commentators on the
left who applauded the banning of Molyneux and Southern are appalled that it’s
now happened to Singer – although they don’t explain what the difference is,
other than that they hated the right-wing Canadians but regard Singer as “a
category of thinker we should pay attention to”, to quote The Spinoff’s Danyl Mclauchlan.
Myself, I believe it’s vital that people support Singer’s
right to speak in Auckland, notwithstanding his abhorrent view on the killing
of disabled babies. We should also support the right of disability activists to
protest, provided they don’t try to deny people access to the venue or seek to
disrupt the event (and as far as I know, that wasn’t their intention).
After all, that’s how a liberal democracy is supposed to
function: by allowing people to engage freely in the contest of ideas. As the
American academic Noam Chomsky, himself a darling of the left, once said: “If
we don’t believe in freedom of expression for people we despise, we don’t
believe in it at all.”
* To its eternal shame, National
Business Review later removed Jones’ column from its website, citing
“inappropriate content” – a weaselly phrase beloved of people who lack the
courage to stand up to the enemies of free speech.
