Freedom of speech – Judith Collins sounds a caution against criminalising what people say
Judith Collins has gone out to bat for our right to freedom of speech.
She cautioned against criminalising speech that forms part of public discourse.
Speech that was offsensive or insulting should be condemned, but “without always needing to resort to measures that create a chilling effect on freedom of expression.”
Collins was speaking at Western Sydney University on constitutional and rule-of-law challenges in today’s uncertain global environment.
She explained that – as New Zealand’s Attorney-General – she exercised several constitutional functions that serve as safeguards and ensure that the government acts in accordance with the rule of law.
The Bill of Rights and Treaty of Waitangi came into her account of her responsibilities.
But her focus was on the importance of the right to freedom of expression and the challenge of striking the correct balance between upholding the right to freedom of expression and other protected rights.
The speech is among the latest press releases and speeches posted on the government’s official website since late Friday.
She explained that – as New Zealand’s Attorney-General – she exercised several constitutional functions that serve as safeguards and ensure that the government acts in accordance with the rule of law.
The Bill of Rights and Treaty of Waitangi came into her account of her responsibilities.
But her focus was on the importance of the right to freedom of expression and the challenge of striking the correct balance between upholding the right to freedom of expression and other protected rights.
The speech is among the latest press releases and speeches posted on the government’s official website since late Friday.
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In her speech, Judith Collins said one of the most influential rationales underpinning the right to freedom of expression is the marketplace of ideas.
The metaphor sets out that permitting all opinions to exist within the marketplace of ideas, regardless of how offensive they may be, allows people to subject the bad ideas to criticism – and as a result, the best arguments will prevail.
It is also, of course, irrefutable that upholding the right to freedom of expression is a prerequisite for the existence of a functional democracy.
An effective functioning democracy requires debate and discussion, alongside the ability for all people to be able to express their views.
Undue restrictions on the right to freedom of expression would constrain the function of our democracy, which requires active participation and engagement from all people.
The criminalisation of speech was one of the most serious limitations on the right to freedom of expression that could be contemplated, Collins said.
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 carried a risk of undermining the function of democracy, Collins said.
She referenced Lord Justice Sedley, saying 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 was fundamental to a functioning democracy – therefore – that all people were 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.
Point of Order is a blog focused on politics and the economy run by veteran newspaper reporters Bob Edlin and Ian Templeton
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