Wednesday, April 17, 2013

Bigotry, "offensive language", and freedom of speech

The Herald reports that an Eketahuna man has been convicted and fined for "offensive language" for subjecting a gay couple to homophobic abuse on the town's main street. The comments - calling the victims "a poofter" and alleging that they had Aids - are an appalling example of bigotry. But contrary to the judge, this is not sufficient to warrant a criminal conviction.

In 2007, the Supreme Court ruled in Brooker v. Police [PDF] that the offence of disorderly behaviour was not about its insult to the values of "right-thinking" New Zealanders, but about whether it actually disrupted public order - that is, whether it seriously interferes with the "ordinary and customary use" of an area. In 2011 in Valerie Morse v. Police [PDF] they applied the same thinking to the charge of offensive behaviour, finding that it was not about giving offence, but about aggression and threat which (again) interfered with the use of public space. Together, these rulings raised the bar on the traditional public order offences, requiring that there basically be a real risk of starting a riot in order to justify interference with the BORA-affirmed right to freedom of expression.

While the Eketahuna bigot appears to have been charged under s4(1)(b) or (c) (relating to "threatening or insulting", "indecent or obscene", or just plain offensive words) rather than s4(1)(a) (relating to disorderly or offensive behaviour), the same principle surely applies. The law is not about protecting people from being offended in public, but about preventing breaches of the peace. Whether a breach of the peace is likely depends on exactly what is said: direct threats and intimidation are likely to be seen as disruptive, as they directly interfere with people's right to peaceably go about their business without fear of violence. But in a society which respects freedom of speech, mere insults are not enough. When insulted, "reasonable" New Zealanders are expected to respond with words or defamation lawyers, not violence (as the absence of any provocation defence for assault makes clear).

To be fair, the judge acknowledged this dependence on public order in their comments, but then flubbed it:

Judge Hastings said under the Bill of Rights, everyone has the right to freedom of expression but that was "not absolute" and was subject to reasonable limits. He said for the offence Strange was accused of committing to be upheld, it was necessary to establish that at the time, the place and in the manner of using the words, public order would have been disturbed.

That, the judge said, was "very clearly" the case.

"The words you used were offensive and homophobic and, as such, undermined the simple values New Zealand cherishes. They were used in the middle of the day in a public street and would have disturbed the public order of Eketahuna on that day."

But the issue isn't whether those insults offended against kiwi values of tolerance (they certainly do), but whether they were such that they would have driven the victims from the street or caused a riot. And that simply does not seem to be the case. The judge has misapplied the law, and entered a false conviction. It should be appealed and overturned.