Seymour should consult some American judges to avoid being denounced as a bully who speaks in inflammatory code

In case you missed it, the Speaker of the House of Representatives, Trevor Mallard, reckons Act  leader David Seymour is a bully.

The Speaker spoke on TV One’s Breakfast yesterday after publication of the review which found bullying is widespread in Parliament.

Interviewer John Campbell couldn’t resist dragging Seymour into considerations:  he asked if it had been bullying or robustness, when Seymour described Green MP Golriz Ghahraman as “a real menace to freedom in this country.”  

Mallard replied:

“In my opinion it did step over the line.  Its not a breach of privilege because it didn’t happen in the House. It’s not a criminal offence but I think it showed poor judgement….”

Campbell:  “Do you think it was bullying?”

Mallard:  “Ah, yes…”

Seymour’s remarks about Ghahraman – for readers keen to ascertain what Mallard regards as bullying – were expressed in an interview with Sean Plunket on Magic Afternoons (you can hear it here)   At issue was censorship and “hate speech“.

Ghahraman was criticised during the Magic discussion on the strength of her call for tougher laws around hate speech.  She wants to protect religious groups, gender and the Rainbow community.

Newspaper columnist Donna Miles-Mojab picked up on what Seymour said and demanded he apologise to Ghahraman. 

According to Miles-Mojab, Seymour’s mention of a “menace” to freedom – when deciphered by those who know how to look for the real meaning of what people say – was Islamophobic.

The Islamophobic trope coded in Seymour’s comment about Green MP Golriz Ghahraman may not be obvious to ordinary Kiwis, but for some it is a strong reinforcement of a familiar narrative that says Muslims “hate our freedom”. 

The column challenged Seymour:

Why not offer a rebuttal to her arguments instead of accusing her of being “a real menace to freedom in this country”?

If the Act leader responds to this challenge, Point of Order has some suggestions to help him muster a robust argument (although we can’t guarantee it will avoid Mallard’s bullying test).

For starters, he could delve into why there is no “hate speech” exception to the First Amendment in the USA.

Point of Order dug up this article,  which says most expression one might identify as “hate speech” is protected by the First Amendment in the United States and cannot lawfully be censored, punished, or unduly burdened by the government.

For the interests of the administrators at Massey, this includes public colleges and universities.

The article was found on the website of an organisation, FIRE, which defends American liberties on behalf of thousands of students and faculty on US campuses.  It concentrates on four areas: freedom of speech and expression; religious liberty and freedom of association; freedom of conscience; and due process and legal equality on campus.

The article says:

The Supreme Court of the United States has repeatedly rejected government attempts to prohibit or punish “hate speech.” Instead, the Court has come to identify within the First Amendment a broad guarantee of “freedom for the thought that we hate,” as Justice Oliver Wendell Holmes described the concept in a 1929 dissent.

It references a 2011 ruling in which Chief Justice John Roberts argued why even hurtful speech on public issues should be protected “to ensure that we do not stifle public debate”.

In other words, the First Amendment recognises that the government cannot regulate “hate speech” without inevitably silencing the dissent and dialogue that democracy requires. Instead, we as citizens possess the power to most effectively answer hateful speech—whether through debate, protest, questioning, laughter, silence, or simply walking away.

The article says banning “hate speech” without restricting political speech is prohibitively difficult because of the target’s inherent subjectivity. Each American will have a different understanding of exactly what expression should lose First Amendment protection as “hate speech.”

One citizen’s hateful screed is another’s religious text; one citizen’s slur is another’s term of endearment; or, as the Court put it, “one man’s vulgarity is another’s lyric.” As a result, crafting a generally applicable definition of “hate speech” is all but impossible without silencing someone’s “legitimate” speech.

It is hard to come up with a workable definition of “hate speech”, too, because it is a moving target.  This makes a workable definition still more elusive.

Conceptions of what constitutes “hate” do not remain stable over time. As ideas gain or lose acceptance, political movements advance or recede, and social commitments strengthen or erode, notions of what is unacceptably “hateful” change, too.

Today’s majority viewpoint should not be allowed to foreclose that of tomorrow. For example, thirty years ago, the Board of Regents of Texas A & M University sought to deny recognition to a gay student organization because its board believed that  “[s]o-called ‘gay’ activities run diabolically counter to the traditions and standards of Texas A & M.” At the time, the Board may have voiced the majority view, which found the gay students’ speech to be beyond the pale. Today, the opposite characterization might be true.

Inevitably, the article in FIRE references Justice Louis Brandeis.  He argued that the American founders believed  prohibiting “evil counsels”—what today we might call “hate speech”—would backfire.

On another site where American freedoms are defended, we learn that Justice Louis Brandeis articulated the American idea of freedom of speech many decades before the Supreme Court began expanding the rights of expression under the First Amendment.

Some of his ideas have become critical justifications for safeguarding freedom of speech even under the most challenging conditions.

• He tied the values of freedom of expression to the beliefs and actions of the founding generation—“those who won our independence believed…”
• He argued that “public discussion is a political duty”—that a sovereign people required freedom of speech and press to govern themselves, “a fundamental principle of the American government.”
• He asserted the value of counter-speech rather than censorship of ideas that we don’t like—“the fitting remedy for evil counsels is good ones.”
• He recognized that dissenters must be protected—that “occasional tyrannies of governing majorities” required protection for speech and assembly.
• He urged that speech advocating change not be punished unless it threatened imminent lawless action.   

His championship of free speech is encapsulated in these sentences from an oft-cited judgement:

“Those who won our independence believed that the final end of the state was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary.

“They valued liberty both as an end and as a means.

“They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.”

The words “menace to freedom” are splendidly embedded in those sentences.

Further on, Justice Brandeis argued:

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.  

Powerful words.   If Seymour had expressed himself as eloquently as that, when interviewed on Magic Afternoons, how would his critics have responded?