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  • Thu, 19, Jul, 2018 - 5:00:AM

Free speech is designed to protect privilege

We need to talk about free speech. More specifically, who it protects and who it doesn’t. Human rights are a good thing, and free speech is incredibly important within our society. But there’s an inequality at the heart of how the right applies in practice. Legal scholars have been saying this for a long time, however the clear contradiction is evident without a law degree.

When we see our human rights laws being used to argue for people whose activities in Europe were supported by the ex-leader of the KKK, a lot of people think that the law is being applied incorrectly. Because rights were developed to protect against things like racism, right? Nope. Like a lot of our laws, they were developed to protect those who could afford the cost of going to court. Free speech in particular has a tumultuous history, most of which involves protecting privileged groups and minimising harms to oppressed groups.

Speech that I personally believe is discriminatory – like Nisbet’s cartoons, for example – is not ‘bad enough’ to justify a limit on the right. Despite the fact that discrimination could incite racism, which could harm deeply and pervasively. But when a wealthy person has had something slightly untrue said about them, defamation law kicks in and limits free speech to the point that the media can be sued millions for publication.

Free speech is a near-absolute right except for when a rich guy’s reputation is damaged. Or when someone wants to depict menstruation on the cover of a magazine. Arguments that free speech is an absolute right are used to allow hate speech to continue even when it harms people. But those same arguments about the absolute nature of the right do not apply when someone damages the reputation of a single person. The difference? One form of speech harms wealthy people who can afford to go to Court; the other form affects oppressed groups.

Free speech’s protection of privilege works something like this: a privileged person has a certain platform, from which they can attack other groups. Free speech laws protect that platform and deny that attacks from the platform are harmful enough. The alt-right Canadians, who have the money to hire a QC and effectively defend their ‘absolute right’, show how far that defence of hate speech can extend when free speech is rolled out.

If you ask me, it’s more important to protect oppressed groups from the negative effects of hate speech than it is to save wealthy people from damage to their reputation. But our law prefers the latter. Hate speech affects entire groups of people, but human rights generally apply to individuals, no matter how serious the harm of racism or sexism is to a group of people. But does that seem right? Is that how we want our law to apply?

For many years, free speech has been defended on the (liberal) basis that everyone should be able to contribute to the marketplace of ideas. But racism is not a valid contribution to that marketplace. Criticising wealthy people for columns in well-known media outlets, on the other hand, is, in my opinion, valid.

When rights don’t apply equally, as is the case with free speech, we can and should question them. The fact that someone on a platform of privilege, with money behind them, can punch down and use free speech to disadvantage and insult oppressed groups, but people like Renae Maihi risk a lawsuit if they speak out, is wrong. New Zealand needs to think deeply about what kind of speech we protect and why. 


  • Free Speech /
  • Human Rights /
  • Law /
  • Defamation /
  • Privilege /
  • Bias /
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