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Sunday, August 16, 2026

Roger Partridge: Harmed by harm - How a word is swallowing freedom


Last month, ten organisations representing New Zealand’s ethnic, faith and multicultural communities delivered what they called an election message to the political parties: commit to new hate speech laws before New Zealanders vote. The Green Party committed to implementing the recommendations of the Royal Commission of Inquiry into the 2019 Christchurch mosque attacks, including extending the incitement provisions and the prohibited grounds of discrimination in the Human Rights Act to cover religion. Labour said it was considering “legislative settings” and would announce its position “in due course.” ACT, the smaller party in the governing coalition, said the existing law was adequate. National, the senior party in that coalition, said it did not support legislating against hate speech, pointing instead to its Peace and Harmony Accord with community leaders.

The provocation that triggered the call was real. Brian Tamaki, leader of the Pentecostal Destiny Church, had taken to social media to call for New Zealand to be “purged” of Hindus, Sikhs and Muslims, and to ask why, if churches were being burned in India, mosques and temples should not burn here. Communities that heard those words were entitled to be afraid. Some of them buried their dead after March 15.

By Tamaki’s own account, police have since revoked his firearms licence, having decided he is no longer a fit and proper person to hold one. Whether his words also crossed the line the law properly draws is a question for the criminal law of incitement. The harder question is what the political parties are now being asked to sign up to. And that question turns on a single word: harm.

In the debate over when society may restrict individual conduct – what people may say, publish, think and do – no concept has been more central to the liberal tradition. And it is being quietly redefined in ways that would have astonished the man who gave it its modern meaning.

In a recent essay, What Free Speech Is For, I argued that free speech is not a philosophical luxury but the error-correction mechanism of open societies – the institutional arrangement that lets us discover when the authorities are wrong. But that essay left a question unanswered: if free speech matters so much, what justifies restricting it?

What Mill actually said

In 1859, John Stuart Mill published On Liberty, which contains one of the most consequential sentences in the history of political philosophy: “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”

This sentence – the harm principle – drew a line. On one side stood the vast domain of individual freedom: thought, speech, association, lifestyle, belief. On the other stood the narrow domain in which society could legitimately coerce.

Mill was not writing in a vacuum. He was arguing against the dominant view of his age – that society was entitled to suppress conduct it found immoral, dangerous, or offensive, even when no one was concretely injured. Sabbatarian laws forbade work and amusement on Sunday because the majority’s religion demanded rest. Obscenity prosecutions targeted material that upset sensibilities. Sodomy laws criminalised private conduct between consenting adults. Blasphemy laws punished speech that wounded religious feeling.

Each time, the justification was the same: your behaviour harms us because it offends values we hold sacred. Mill’s radical move was to tell the majority that its disapproval, however sincere, was not sufficient grounds for coercion. Feeling offended is not the same as being harmed. The distinction matters because, without it, there is no liberty at all – only the permission of the majority, revocable at any time.

Joel Feinberg, the legal philosopher who wrote a definitive analysis of the harm principle in his four-volume Moral Limits of the Criminal Law, later gave Mill’s distinction its sharpest form. Harm is a setback to a person’s interests – their body, property, liberty, reputation, opportunities or capacities. Offence, however intense, is not harm in this sense, because it does not diminish the offended person’s capacity to live and act. The person who is offended by an opinion they dislike retains every freedom they had before hearing it. The person who is silenced does not.

Mill’s line does not shelter speech that incites violence – burn this building, drive out these people. Incitement sits squarely on the harm side, and inciting others to commit a crime is itself a crime. If Tamaki’s words meet that standard, the Crimes Act reaches them today.

The Human Rights Act goes further, prohibiting speech that excites hostility against groups – but only on the grounds of colour, race and ethnic or national origins. And there sits the gap the ten organisations want to close. Religion is not on the list. Hindus and Muslims, as such, fall outside provisions that would catch the same words aimed at Chinese or Māori New Zealanders.

Why the law drew the line where it did

Mill’s restriction was not merely philosophical. Even while the criminal law kept the moral offences Mill opposed, the English common law of civil injury had built a parallel discipline through centuries of practical experience. The common law’s reasoning illuminates why the restriction matters.

The first reason is epistemic – a problem of what courts can know. Once you allow subjective distress to trigger the power of the state, there is no principled stopping point. My offence at your opinion is real – I genuinely feel it – but it depends entirely on my beliefs, sensitivities, and expectations, which are infinitely variable. A legal standard built on subjective response empowers the most sensitive claimant. This is not a hypothetical concern. It is the historical norm. Blasphemy laws, sedition laws, lèse-majesté – all rested on the “harm” that dissent caused to feelings, social order, or sacred values. Mill had these examples before him. We have them still.

The second reason is institutional. The common law drew its own map of actionable harm. The old torts protected interests you could see, touch or measure. Trespass to the person – assault, battery, false imprisonment – protected the body and the liberty to move. Trespass to land and to goods protected property. Nuisance protected the use and enjoyment of land against a neighbour’s smoke, noise and stench. Negligence, the great nineteenth-century latecomer, compensated physical injury and property damage caused by carelessness.

What the common law would not do was compensate distress alone. A plaintiff who suffered shock could recover only for a recognisable psychiatric illness; grief, anger and humiliation were not enough. There was no tort of insult. The judges were not indifferent to feelings. They understood that feelings could not ground a workable legal standard.

Defamation is the apparent exception. Reputation cannot be seen or touched. And because the interest was intangible, the law hedged the action with constraints. Truth is an absolute defence. Honest opinion is protected. The standard is objective – what a reasonable person would understand, not what the most sensitive listener felt. The common law would venture beyond body and property only where the harm could still be demonstrated and tested.

The same logic explains why the law declines to enforce social lies and bare promises. If I tell you I will come to dinner and do not appear, you may be genuinely hurt. If I flatter your cooking and you discover I was insincere, you may feel betrayed. But the law does not touch these cases because enforcing them would require courts to police the authenticity of every social interaction – an enterprise that would be simultaneously impossible and tyrannical.

Contract law makes the same point from the other direction. Promises are legally enforceable – but only when they meet strict formal requirements: offer, acceptance, consideration, intention to create legal relations. Without the formality, every broken lunch date is a lawsuit.

The third reason is that whoever controls the definition of harm controls the boundaries of permissible behaviour. In a regime of expanded harm, that power flows to institutional gatekeepers – HR departments, university administrators, platform moderators, regulatory bodies – who face a predictable pressure: the cost of ignoring a harm claim is immediate and visible, while the cost of upholding one wrongly is diffuse and invisible.

The expanding circle of harm

Over the past two decades, the concept of harm has undergone a transformation that Mill would not have recognised. The psychologist Nick Haslam identified the phenomenon in a landmark 2016 paper. He called it “concept creep.” Haslam documented how psychological concepts including abuse, bullying, trauma, and prejudice have expanded in two directions simultaneously – downward to encompass less severe instances, and outward to encompass new and qualitatively different phenomena.

A concept once tied to identifiable setbacks – to body, property, liberty or reputation – took in psychological distress, then offence, then the feeling of being “unsafe,” then exposure to ideas that might “normalise” attitudes that might eventually contribute to a culture in which harm becomes more likely. Each expansion may have seemed reasonable in isolation. Together, they shifted the object of the law’s concern from what is done to a person to how a person feels about what is said.

New Zealand’s own statute book records the shift. In 2015, Parliament passed the Harmful Digital Communications Act, which defines harm as “serious emotional distress” and makes causing it by online post a crime carrying up to two years in prison. The Act is hedged – the distress must be serious, intended, and such as would harm an ordinary reasonable person in the victim’s position – and it was aimed at a real mischief, the online tormenting of identifiable individuals. But the criminal law’s measure of harm had become how a communication made its recipient feel. Six years later, the incitement proposals asked Parliament to go further still – from distress caused to a named person to attitudes “normalised” against a group.

Why would legislators draft this way? Jonathan Haidt and Greg Lukianoff, in The Coddling of the American Mind, traced how a generation arrived at university having been taught that emotional discomfort is a form of danger, and how universities built administrative machinery to eliminate it. The sociologists Bradley Campbell and Jason Manning describe the deeper shift: from a dignity culture, in which slights were met with a thick skin, to a victimhood culture, in which the claim to have been harmed confers moral authority – and so creates a standing incentive to widen what harm means.

This is not to say that the harms identified by activists are always imaginary. Racial abuse is real. Sexual harassment is real. The psychological toll of persistent hostility is real. The question is not whether harm exists, but whether the expanded concept can serve as the basis for restricting other people’s freedom.

In 2024, Victoria University of Wellington postponed a panel discussion on free speech after student objections that the presence of one panellist – a free speech campaigner – made the event unsafe. That is where the expanded concept leads: hearing opinions you disagree with becomes injury, and the presence of the wrong person becomes danger.

The moral police return

The irony of the present campaign is that the expanded harm concept now deployed in the name of vulnerable communities replicates the structure of the tradition it claims to oppose.

When Victorian moralists suppressed obscenity, they argued that certain material harmed public morals and that exposure to it damaged the social fabric. When contemporary activists suppress speech, they argue that certain viewpoints harm vulnerable groups and that exposure to them damages the social fabric. The content has changed – identity-based dignity rather than Christian morality – but the structure recurs: your expression harms me because it offends values I hold sacred, and that entitles me to suppress it.

The obvious objection is that the direction of power differs. Victorian moralists were a majority silencing dissenters. Today’s campaigners seek protection for minorities against a majority-culture demagogue. It is a fair objection. But speech restrictions have a habit of landing on people their promoters never intended. Among the first people jailed for incitement under Britain’s Race Relations Act 1965 – a law passed to protect Black Britons – was the Black power activist Michael X.

New Zealand has flirted with this experiment before. In 2019, Parliament repealed the crime of blasphemous libel – an archaic offence, long fallen into disuse, that punished speech wounding religious feeling. Two years later, the same Labour government proposed new incitement laws built on the Royal Commission’s formula – speech intended to “maintain or normalise” hatred, punishable by up to three years in prison. The proposals reached far beyond incitement to violence, into the territory of opinion, ridicule and insult.

More than 19,000 submissions later, the government retreated to a single change – adding religious belief to the protected grounds – then withdrew even that bill in early 2023 and referred the whole question to the Law Commission. In 2024, the incoming government instructed the Commission to stop the work. Nothing was enacted. The ten organisations are right that successive governments have put the issue in the too-hard basket. That is the grievance behind their pre-election message.

How far the law can safely go

Under Mill’s principle, the burden falls on the person seeking to restrict liberty: you must demonstrate concrete harm to others. Under the expanded principle, the burden falls on the person seeking to exercise liberty: you must demonstrate that no one will feel harmed. The first standard is demanding but workable. The second is impossible to meet, because someone, somewhere, will always claim injury.

Feinberg was no absolutist. The second volume of his work defends a narrow offence principle of its own: conduct so profoundly offensive that people cannot reasonably avoid it might, he argued, be regulated. But every element of his test was a constraint – the offence had to be serious by the standards of almost anyone, unavoidable, and not reasonably borne. None of the formulations on offer since 2021 would pass his test.

What, then, of the narrowest version of the demand – extending the existing incitement provisions, objective thresholds intact, to religious groups? Discrimination on the ground of religious belief – in hiring, housing, education and services – has been unlawful since 1993, and harassment is actionable under both the Human Rights Act and the Employment Relations Act. Those provisions restrict freedom too – of contract, of association – and like every restriction on freedom they stand or fall on their results. But the harm they answer to is at least the concrete kind: a job denied, a flat refused, a setback to an identifiable person that a tribunal can test. The demand now on the table is different in kind. It concerns what may be said about a group.

It should be rejected, for two reasons.

The first is the difference between what a person is and what a person believes. Race is not a proposition. Religion is, among other things, a body of propositions – about God, morality, the standing of women, the fate of unbelievers. Citizens of a free society must remain free to dispute, hold those propositions in contempt – and even ridicule them.

A law against exciting hostility towards believers will not, in practice, stay on its side of the line between believers and beliefs. Finland shows where the line gives way. In March, its Supreme Court convicted Päivi Räsänen – a member of parliament and former interior minister – of agitation against a minority group, for a booklet on sexual ethics she had written for her church in 2004. Two lower courts had unanimously acquitted her. The Supreme Court divided three to two. The court acknowledged the booklet contained no incitement to violence, fined her, and ordered the offending statements removed from public access and destroyed. That is why New Zealand’s 2022 bill was rightly attacked, from the moment it appeared, as blasphemy by the back door.

The second reason is what today’s courts would make of it. The offence of inciting racial disharmony has been on the statute book since 1971. In that half-century it has produced one successful prosecution – of a neo-Nazi pamphleteer, in 1977 – and none at all under the Human Rights Act that carried the offence forward in 1993. But that record belongs to an earlier judicial temper. Finland’s courts have already shown what a modern bench does with an offence built on distress. Britain’s did the same two decades earlier, upholding a street preacher’s conviction for an insulting placard.

Between now and the election, each party will be asked whether it supports new hate speech laws. The better question comes first: what do you mean by harm? If the answer is incitement to violence, the Crimes Act already forbids it, and Tamaki faces having his words tested against it.

But if harm means anything that makes a community feel hated, the party is not proposing to protect New Zealanders from violence at all. It is offering a blank cheque drawn on other people’s liberty, payable to whoever can most convincingly perform distress. New Zealand repealed its blasphemy law in 2019. It should not vote a new one in.

Roger Partridge is chairman and a co-founder of The New Zealand Initiative and is a senior member of its research team. He led law firm Bell Gully as executive chairman from 2007 to 2014. This article was first published HERE

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