Karl du Fresne: A mixed week for freedom of speech

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.

Karl du Fresne, a freelance journalist, is the former editor of The Dominion newspaper. He blogs at karldufresne.blogspot.co.nz.