David Harvey: What Should We Do About Bad Arguments

A Reply to Simon Wilson

I thought when Simon Wilson stopped writing his weekly column for the Herald on Tuesdays that he might fade from my consciousness. Not so. He now writes a fortnightly column for the Listener and ironically his articles feature on the page opposite mine. Even more ironically, his page is often positioned to the right of the fold, mine to the left. Go figure.

Wilson also has a Substack column that he calls Hopetown. In one piece that he wrote he explained why he is voting for the Greens in the next election.

Readers will be well aware of my frequent disagreements with Wilson in the past. But my disagreements are based on the substance of his arguments. He is entitled, as are we all, to put his case and exercise his freedom of expression.

But the freedom of expression that he claims, he would deny to others, based on a relativist approach to free speech and diversity of opinions.

The article that follows is an analysis of a piece he wrote for his Substack about some recent comments made about Brian Tamaki and Wilson’s appearance at the Keith Locke Memorial Debate where the topic under consideration was “That hate speech laws threaten free speech.” Unsurprisingly, Wilson was arguing against the proposition. But if this article reflects his arguments he really needs to think again.

A link to the article appears in the first sentence. It may be helpful to read Wilson’s piece before embarking upon this one.

Simon Wilson opens his latest Substack piece “What Should We Do About Brian Tamaki” with the words “What an @r$ehole.” It is worth pausing on that sentence, because it tells you everything about the method of the 3,000 words that follow.

It is not an argument. It is not evidence. It is a mood. And a piece that begins by establishing a mood rather than a case never quite recovers, because the reader has been told from the first line that the conclusions were settled before the reasoning began.

A writer confident in his argument does not need to soften the audience with invective; a writer unsure of it very often does.

The piece proceeds in the same register throughout: the Free Speech Union is a “so-called” union telling lies about itself, opponents are fretful folks, an American think tank’s alumni get a jeering nickname, a fellow debater is mocked by his own nickname in an aside.

This is not analysis. It is a performance of contempt for an audience already persuaded, and it should not be mistaken for the serious engagement with a serious question that Wilson claims to be offering.

He even concedes, early on, that the question doesn’t admit a simple yes or no — and then spends the rest of the piece delivering one, complete with a victory lap about winning the audience vote. Persuading a self-selected Auckland debating audience that leaned your way before you opened your mouth is not a demonstration of anything except the room you were in.

Now to the arguments, such as they are.

The Tamaki non-sequitur

Wilson’s central move is this: Brian Tamaki said appalling things last weekend, he has not been arrested, therefore New Zealand needs stronger speech laws. Every step of this is wrong.

Incitement to violence is already a crime in New Zealand. If Tamaki genuinely called for places of worship to be burned and communities expelled, the Crimes Act and the Human Rights Act between them give police and prosecutors ample material.

If they have not charged him, the explanation lies in evidence, prosecutorial judgement, or operational caution — not in a gap in the statute book. You cannot reason from “the existing law was not enforced in one case” to “we need a new and broader law.” A state that declines to use the powers it has will not become more decisive when handed vaguer ones; it will simply have vaguer powers lying around for someone else to use.

Worse for Wilson, his own supporting examples demolish his case. He cites Dave Dobbyn, arrested in 1984 for inciting a riot he did not incite, and exonerated. He cites Tame Iti, arrested in an operation later found to be unlawful, and exonerated.

Think about what these examples show: they show the New Zealand state, twice, wielding speech-adjacent criminal powers against people it found inconvenient, and getting it wrong both times.

These are not arguments for expanding the state’s power over expression. They are the standard cautionary tales against it. That Wilson deploys them without noticing which way they cut is the single most revealing moment in the piece.

“It’s just a construct”

Wilson’s philosophical foundation is that free speech is a construct, made by humans to serve their interests, and therefore not absolute. Both halves are true and neither does any work.

Democracy is a construct. The presumption of innocence is a construct. Property, marriage, the Treaty, and Simon Wilson’s Substack are constructs.

Identifying something as humanly made tells you nothing about whether it should be strengthened or weakened. It is relativism deployed as a solvent: dissolve the principle into contingency, and then anything can be done to it.

Nor is anyone he is arguing with an absolutist. Incitement, defamation, fraud, perjury, true threats — every liberal legal order already excludes these, and the Free Speech Union does not dispute it.

Wilson’s fire-in-a-crowded-theatre gotcha refutes a position nobody on the other side holds. The actual debate — where the line sits, how precisely it can be drawn, and how much discretion the state should have in drawing it — is the debate he declines to have, because it is the one his side loses on the evidence.

The Athens digression

Wilson notes that Athenian free speech excluded slaves and women, and that Plato distrusted democracy.

What follows from this? Athens was a prototype democracy. It also had its tyrants. Wilson commits the sin of historical anachronism – judging the standards of an Athens over 2000 years ago with those of today.

Historically, speech rights were distributed unequally; the remedy pursued by every emancipation movement since has been to universalise them, not to re-qualify them.

The American civil rights movement that Wilson invokes later in the piece did not campaign to narrow the First Amendment. It relied on it, expanded it, and won some of its most important victories through it — protections for protest, for boycott, for the press, for membership lists that segregationist state governments were desperate to expose.

Frederick Douglass called free speech the dread of tyrants. Te Whiti at Parihaka, whom Wilson conscripts for his cause, was the victim of a state that decided certain speech and assembly were too dangerous to permit. Wilson’s own heroes are witnesses for the other side.

The Kirk detour and the whitewashing charge

The long excursion into American gun culture and the murder of Charlie Kirk is a category error stretched over several paragraphs.

New Zealand is debating a hate speech statute; the Second Amendment, the NRA and the Heritage Foundation have nothing to do with it.

Guilt by geographic association — this idea comes from America, America has problems, therefore the idea is suspect — is not reasoning. On that logic Wilson should also renounce the civil rights movement, jazz, and the Substack platform he publishes on.

And there is something genuinely uncomfortable in his handling of Kirk’s death. A man was murdered at a speaking event, for his views, and Wilson’s complaint is that people framed this as a free-speech issue.

It is difficult to imagine an event more squarely about the freedom to speak than being shot for speaking. Wilson’s insistence that we look instead at the substance of what the victim stood for edges toward a logic he surely does not intend: that how much a killing troubles us depends on whether we liked what the victim said.

That is precisely the flattening of the line between words and violence that his whole piece performs. Once you accept the premise that words are a form of danger, the arithmetic that treats violence against speakers as a kind of accounting entry becomes thinkable. It should not be.

The network conspiracy

The passage linking the Free Speech Union to Hobson’s Pledge, the Taxpayers’ Union, Atlas, Heritage, the Federalist Society and the Claremont Institute is the genetic fallacy performed at scale. Arguments are true or false regardless of who funds the person making them.

If Wilson believes the FSU’s specific claims about the chilling effect of vague speech laws are wrong, the way to show it is to engage them.

Drawing an org chart and gesturing at it is what you do when you cannot. The casual accusation that some of these people are white supremacists themselves — asserted, unnamed, unevidenced — is exactly the kind of reputational drive-by that Wilson would call hate if it were directed at his allies.

The argument that eats itself

The strangest feature of the piece is that its strongest passage refutes its thesis.

Wilson tells us, correctly, that New Zealand’s defamation laws let the litigious wealthy kill stories before publication — that a column of his about billionaires and ocean plastic never ran because the targets were too rich to risk. He calls this a real threat to free speech.

He is right. But notice what he has just described: a speech-restricting law, written in neutral language, captured in practice by the powerful and used to silence a journalist.

That is the entire case against hate speech laws, made by Wilson, about his own experience. Speech restrictions are enforced by institutions, institutions are dominated by the powerful, and the powerful will define hate as it suits them. He even supplies the maxim himself: them with the power makes the rules. Quite. So why is his remedy to give power more rules?

He never confronts the obvious follow-up. Wilson plainly regards the current government as hostile to the vulnerable — he says its policies would strip rough sleepers of their rights. Very well: a hate speech law passed tomorrow would be administered by that government, and by whichever government follows, and by police whose judgement he spends half the piece doubting.

Laws are not enforced by the people who imagine them. They are enforced by the state as it actually exists. Overseas experience — people prosecuted in Britain for tweets and jokes, hate-crime statutes generating thousands of complaints against ordinary citizens — suggests the burden of such laws falls far more often on cranks, comics and the powerless than on demagogues with lawyers.

Vulnerability as a licence

Wilson’s closing principle is that rights should be qualified to protect vulnerable groups. As a sentiment it is unimpeachable; as a legal standard it is a blank cheque.

Who is vulnerable is itself politically contested — every faction in the culture war claims the mantle, usually sincerely. A statute that criminalises speech by reference to categories as elastic as hatred, harm and vulnerability transfers the contest over those words from open argument, where everyone can participate, to prosecutors and courts, where almost no one can.

Wilson worries, in passing, about the tyranny of the righteous. He raises the phrase and then walks away from it, which is a pity, because it names the exact danger his proposal creates: rule by whoever currently holds the pen that writes the definitions. And if anyone has a righteous tone it is Wilson.

Anticipating the replies

Three counter-arguments will be made to all of this, and it is worth disposing of them in advance.

First: the existing law is weaker than it looks. Wilson’s defenders will say that New Zealand’s provisions against inciting racial disharmony — section 61 and section 131 of the Human Rights Act — carry a famously high threshold, that section 131 requires the Attorney-General’s consent to prosecute, and that it has been successfully invoked roughly once in half a century.

All true, and all beside the point. The provision that matters for Tamaki is not the racial disharmony law; it is the ordinary criminal law of incitement. Urging that buildings be burned is soliciting arson. Urging that communities be driven out is, depending on the facts, threatening behaviour or incitement to offences against the person.

None of this needs a hate speech statute, none of it needs the Attorney-General’s blessing, and none of it turns on proving anything about group hatred — only on proving that a man publicly encouraged crimes.

If the police consider the evidential threshold unmet, then the same conduct would sit even further below the threshold of a vaguer, more contested hate speech offence, whose every prosecution would be a constitutional carnival.

And if the objection is that section 131’s bar is too high — that we should be able to punish speech that falls short of encouraging any crime — then the objector should say so plainly, because that is the actual proposal: criminalising expression that incites no offence. Dressed in Tamaki’s clothes it sounds modest. Stated honestly, it is not.

Second: the Royal Commission recommended it. The Royal Commission of Inquiry into the Christchurch attack did indeed recommend strengthening hate speech law, and the recommendation deserves to be treated with the seriousness the occasion demands.

But a recommendation is an argument, not a trump card, and this one has two problems.

The first is that nothing in the Commission’s own findings suggests a hate speech statute would have impeded the terrorist, who radicalised largely offshore and online, planned in secrecy, and broke a dozen existing laws on his way to the mosque. Legislating in the name of a tragedy a law would not have prevented is memorial politics, not policy.

The second is that the recommendation was tested — twice. Two successive governments, one of them a Labour government with an absolute majority and every political incentive to honour the Commission’s work, put proposals forward, watched them collapse under scrutiny, and abandoned them.

The drafts could not answer the elementary questions: which words, decided by whom, against what defence. That was not a failure of nerve, whatever Wilson may think. It was the discovery, in real time, that the thing could not be drafted — which brings us to the third reply.

Third: the British mess is bad drafting, not a bad idea. The most sophisticated response to the overseas record — the tweet prosecutions, the joke trials, the tens of thousands of “non-crime hate incidents” logged against citizens by English police, the immediate deluge of complaints under Scotland’s Hate Crime Act, a good many aimed at the politicians who passed it — is that these are defects of particular statutes, avoidable with careful drafting.

But at some point a pattern stops being coincidence. Jurisdiction after jurisdiction, drafting tradition after drafting tradition, arrives at the same place, because the failure is not in the drafting but in the task.

“Hatred” is not a fact that can be defined into precision; it is a judgement about meaning, tone and intent, which means every enforcement decision is a discretionary reading of contested words — made first by a constable, then by a prosecutor, then by a court, each applying the standards of their moment. New Zealand’s own attempts died precisely because no one could write the definition that would catch Tamaki but spare the cartoonist, the preacher, the gender-critical feminist, the anti-colonial activist.

The claim that we, uniquely, will draft our way past a problem that has defeated everyone else is not an argument. It is exceptionalism on stilts — and it asks the sceptic to accept the risk while the drafter accepts the credit.

A final word on the company he keeps in the piece. Wilson lavishes praise on his fellow panellists, notably Anjum Rahman — humbling to share a platform with, he says. Ms Rahman’s experience of hatred is real and her testimony deserves respect.

But it is worth observing that Wilson’s admiration flows exclusively toward those who share his conclusion, and that Rahman holds a leading governance position at InternetNZ — one of the institutions that shapes how New Zealanders’ online speech is administered. When the people most convinced that speech needs policing are also seated closest to the machinery that could police it, that is not a reassurance. It is the case for scepticism, stated in personnel form.

Tamaki’s rhetoric is vile, and if it crossed into incitement the existing law should be applied to him without flinching. That is the whole answer to Wilson’s title question, and it required no new statute, no sneering, and no @r$ehole in the first sentence.

David Harvey is a former District Court Judge and Mastermind champion, as well as an award winning writer who blogs at the substack site A Halflings View - Where this article was sourced