David Farrar: Collins on why hate speech should be condemned not criminalised

An excellent address by Attorney-General Judith Collins to the University of Western Sydney (which has also made her an Adjunct Professor of Law).

The criminalisation of speech is one of the most serious limitations on the right to freedom of expression that can be contemplated.

There are situations where this may be justified, such as where speech serves to incite violence.

However, criminalisation should not extend to speech that is merely insulting or offensive.

It is important to condemn speech that is purposefully designed to insult or offend, but this is quite distinct from criminalising it.

To do so could have a chilling effect on democratic participation, leaving people reluctant to express their opinions or views for fear of prosecution.

Criminalising speech that forms part of public discourse carries a risk of undermining the function of democracy.

In the words of Lord Justice Sedley, free speech allows for “not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence.”

It is, therefore, fundamental to a functioning democracy that all people are able to freely express their views. While words matter, the fact that someone possesses an unpopular view, or an opinion that may cause offense to another individual, does not serve as a basis for limiting the right to freedom of expression.

It is undisputable that certain forms of speech are unacceptable – but what level of harm does the speech need to meet for criminal prosecution to be appropriate?

We can, and should, take steps as a society to clearly condemn speech that is offensive or insulting, without always needing to resort to measures that create a chilling effect on freedom of expression.

Good to see the Attorney-General state this, especially as so many other politicians do want to criminalise speech they deem hateful.

David Farrar runs Curia Market Research, a specialist opinion polling and research agency, and the popular Kiwiblog where this article was sourced. He previously worked in the Parliament for eight years, serving two National Party Prime Ministers and three Opposition Leaders.