A Maori Perspective on Free Speech

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Rethinking Free Speech

By Moana Jackson 

Moana Jackson is a New Zealand Māori lawyer specialising in Treaty of Waitangi and constitutional issues. Jackson is of Ngāti Kahungunu and Ngāti Porou descent. He is Director of Nga Kaiwhakamarama I Nga Ture (the Māori Legal Service) which he co-founded in 1987.-- Wikipedia  He is a younger brother to the late Syd Jackson and the uncle of Labour MP Willie Jackson. The article was first published in e-Tangata.

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Perhaps it’s time to rethink free speech. In recent months, it has been caught up in a verbal free-for-all that has had more to do with division and bigotry than the noble ideal of freedom of expression and the right to impart ideas of all kinds. It has, in fact, too often been misused and abused to foster a worrying climate of intolerant discontent.

If the recent visit by two dangerously self-obsessed Canadians and the ongoing ramblings of a former leader of the National Party have shown anything, it’s how that misuse can occur.

In an environment where newspapers and television seem obsessed with conflict and where social media enables misogynists to regularly troll women with threats of sexist violence, free speech has become a catchphrase that is used to ostensibly protect everyone from alt-right anti-Semites in the United States to anti-Islamists in Britain.

And it’s sadly not surprising that nearly all of the claims to freedom of expression in this country have been made in defence of racist denigration and slurs. Whether it’s a city councillor suggesting that Captain Cook should have killed more Māori in 1769, or another old white man concluding that Māori are an inferior race, their purported freedom of speech has besmirched a grand ideal with sordid small-mindedness.

A great deal of insightful commentary has been written about such statements and the nature and importance of free speech. The public protests against the Canadians and the former politician were also timely and well-considered, and it was especially welcome that so many young people, both Māori and others, were willing to question how easily free speech becomes hate speech and how fair comment can slide into vicious diatribe.

Most pleasingly, perhaps, the protesters seemed to realise that the much touted “right to offend” that is regarded as part of free speech, is often just a mask which obscures a desire to hurt and damage the most vulnerable in society. It’s the kind of spoken violence which can lead to fascism posing as freedom.

If the protests tended to focus on individual racist speech rather than the more important issue of the systemic racism that shapes the colonising reality, at least they have been forthright and brave in their opposition.

By contrast, many of the proponents of free speech have clung to generalised notions of liberal democracy or retreated into the tired cliché that the best antidote to bad speech is more speech, as if repetitive hatred breeds compassion or the constant parroting of invective carries no cost to those affected.

Yet it’s those liberal clichés which make the whole debate about free speech so difficult, and which so readily expose the right itself to abuse. They are arguments grounded in an ahistorical presumption about the nature of rights and freedoms, and a decontextualizing of the colonising situation within which they have so often been promoted.

They propose limits against hate speech, for example, but then set the legal bar so high that it’s really difficult for people to prove that a speaker hates those being maligned or that his or her words might provoke hatred in others.

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The idea of free speech has probably never been so freely spoken about as it has in recent months. And neither has it been so freely misrepresented and misunderstood. In a year that seems strangely like a time of intolerant discontent, it has often seemed an excuse for racism as much as a democratic ideal — a cover for bigotry and power more than a call to respect and collective responsibility.

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And, as history shows, those who constructed colonisation on racist distinctions between inferior Indigenous Peoples and superior Europeans did not necessarily “hate” the people they wished to dispossess. They had simply learned that the “other” was less worthy and needed to be colonised.

The so-called humanitarian colonisers who came here in the 19th century did not necessarily “hate” Māori. Indeed, they sometimes professed to love us and simply wanted to dispossess us in a sensitive and caring way. But they “knew” we were inferior and would say so with a good faith intent.

They therefore felt free to malign us because it seemed the natural way of things in which they were entitled to rule the “lesser breeds” with a violent benevolence. Their free speech was the speech of a deceitful and illogically racist power more than an irrational hatred, and today’s racists are no different in that they seek to maintain that power at all costs.

Some may even claim to respect and want “what is best” for us, but they attack our values, our language, and even our rights because they still see them as less worthy and a threat to the privilege which colonisation has given them. Their freedom depends on limiting ours to the terms and conditions which they determine, as it always has in the whole cruel history of colonisation.

That the ideal of free speech is used to excuse and maintain that privilege is an ongoing abuse that can be traced back to its very origins. The right was of course outlined in the United Nations Covenant on Civil and Political Rights after the Second World War, but one of its earliest European definitions was formulated during the 18th-century period which the colonisers like to call the Enlightenment.

It was a time of great intellectual and social ferment that challenged religious dogmatism and launched new ways of thinking about science and individual rights. The profound shift in ideas eventually became known as the Age of Reason, although, as Toni Morrison has pointed out, it was also the Age of Racism because it produced brand new “reasons” to explain the inferiority of everyone who wasn’t European.

The fact that the colonisers consistently name the period as  the  Enlightenment is one small example of that new racist reasoning as it implies that what happened in Europe was the only enlightenment in human history. Yet every culture has had its own moments of different but equally momentous enlightenment, and, rather like the colonisers naming their law as  the  law, those moments have been lost in a presumption that only Europe produced real insight and real law.

It’s that history which has shaped the understanding of free speech as a quite specific individual right. It’s also the context which has led to the current situation where some people can deny racism or excuse the collective hurt it causes as the price of freedom that must be accepted unless personal hatred can be proved. That is a narrow, culturally-defined perception of the use of free speech that, like their Enlightenment, has pretensions to some non-cultural universality.

But, just as many different cultures define law in their own way, so they have accepted the ideal of free speech but perceive its practical application in quite diverse ways. The right itself is universal but it may be exercised in distinct ways.

In this country, there has long been a tradition of speaking which may be seen as a particular Māori way of exercising free speech within the rules and kawa of the marae. Thus, in every iwi and hapū the physical space of the marae has two separate but intimately connected parts — the marae ātea where the rituals and speeches of welcome generally occur under the mantle of Tūmatauenga, the atua of war, and the whare tīpuna or meeting house which is the domain of Rongo, the atua of peace.

On the ātea, speech is free and often argumentative, vociferous and challenging. However, the freedom is always exercised with an awareness of the relationships that exist between the home people and their visitors as well as an implicit understanding that ultimately those relationships are protected by the domain of peace.

In that situation, both the right to speak freely and the actual exercise of the right are ideals to be protected because the marae exists to nurture relationships. Difference and debate are not restricted, but neither are the collective consequences of the speech ignored — because our people have always known that, while the thrusts of a weapon may be turned aside, those that are carried in words cannot.

In the frenetic tensions and discord of life, the ideals are often strained but they retain the simplicity of a taonga about how people ought to relate with each other. They express the truly universal aspiration that any freedom should enhance the mana of the individual and the collective rather than diminish it.

The current use and misuse of free speech in a Pākehā liberal framework too often stifles that aspiration in an odd privileging of spite over respect. It also twists genuine attempts to protect people into some misguided attempt at political correctness.

This was clearly seen when the vice-chancellor of Massey University responded to possible threats of violence at an appearance by the ex-politician to cancel his use of a campus venue. The decision was immediately reframed by some people as both an infringement of free speech and an affront to the traditional role of a university as a critic and conscience of society.

There is a certain irony in the latter charge as the willingness of many university staff to be critics has been constrained by fears over funding and the business model of tertiary education promoted by many of those who were complaining about the denial of free speech.

Yet, apart from the irony and the reframing of the reasons for the cancellation, it is clear that a Māori understanding of free speech could have been applied. A university is a marae ātea where robust debate and criticism should flourish. However, it’s also a whare where relationships should be nurtured and enhanced, and where all students and staff should feel safe and free.

The different perceptions about how a basic freedom might be given effect were mirrored in the long process of drafting the United Nations Declaration on the Rights of Indigenous Peoples. To all indigenous representatives, the most difficult struggle was to have the fundamental right of self-determination included in the document because it was seen as the foundational human right from which all others flowed.

Its eventual inclusion was a celebratory recognition of the humanity which colonisation had for so long denied. It was also a recognition that, while the right was universal, each peoples would define what their self-determination meant in their own way. It was also accepted by states that the Indigenous Peoples of Chile, for example, might decide to be self-determining in quite different ways to the Inuit in Alaska.

Freedom of speech can and should be seen in the same way as self-determination — as a right that may be used in different ways while preserving its innate universality.

It would be nice if it could be used in this country like the kawa of the marae where the tikanga depends upon respect for what Leonie Pihama has called “the sanctity of words”. Most of all, it would be nice if it could be used to honour debate and difference while replacing racism and intolerance with a shared respect for the sanctity of relationships.

The idea of free speech has probably never been so freely spoken about as it has in recent months. And neither has it been so freely misrepresented and misunderstood. In a year that seems strangely like a time of intolerant discontent, it has often seemed an excuse for racism as much as a democratic ideal — a cover for bigotry and power more than a call to respect and collective responsibility.