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Rethinking
Free Speech
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| pn61 |
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.
