Week in Review

A book defending free speech rejected for fear of hate speech

The claim a New Zealand academic’s latest book has been banned may be a little over-egged, but a publisher’s interpretation of international hate speech laws is an interesting example of the current global tensions between free speech and hate speech. Laura Walters reports on why this matters for New Zealand.

When New Zealand’s censors (temporarily) banned Ted Dawe's Into the River a few years back, the nation split into two groups: those who had read the book erupted in outrage over the censorship of what was at the time described by Stuff as a ‘racy teen novel’; those who hadn’t read it rushed to satisfy their curiosity in the fear they might soon miss out for good.

At our core, we've been conditioned to throw our weight heartily behind the central principle of free speech.

But for many, things are no longer black and white. This has become apparent as the country embarks on a discussion about the state of our hate speech laws, and Kiwis struggle to find a balance between protecting free speech and protecting against hate speech in a post-March 15 New Zealand.

Therefore, a blog post from well-known Otago University emeritus professor of political studies and former Alliance candidate, James Flynn, stating his latest book on freedom of speech and critical debate had been banned, immediately piqued ReadingRoom's interest.

“Clearly you have no intention of promoting racism but intent can be irrelevant."

In the post, Flynn said his UK publisher, Emerald Press, would not be proceeding with publication due to the risk of reaction and legal challenge.

In a letter to Flynn, publishing director Tony Roche said the company sought external legal advice, and decided the book could be seen to incite racial hatred and stir up religious hatred under United Kingdom law.

“Clearly you have no intention of promoting racism but intent can be irrelevant."

For example, one test is merely whether it is "likely" that racial hatred could be stirred up as a result of the work, Roche said.

This was difficult given the potential for circulation of the more controversial passages of the manuscript online, without the wider intellectual context of the work as a whole and to a very broad audience - in a manner beyond the publisher's control - represented a material legal risk.

Emerald’s Roche also said there were instances in the manuscript where the actions, conversations and behaviour of identifiable people, at specific colleges, were discussed in detail.

Given the sensitivity of the issues, there was the potential for “serious harm to Emerald’s reputation and the significant possibility of legal action”, the letter said.

This is probably the point to add the disclaimer that this analysis piece is in no way an endorsement or value judgment on the contents of the book - Newsroom hasn't read the book, or been able to reach Flynn to source a copy. Rather a look at why this example should interest Kiwis engaged in the current tensions between free speech and hate speech.

“Censorship requires a nexus of governmental authority. Private publishers are free to discriminate and reconsider as often as they like. Such bias may not reflect well on private publishers but it is not a civil rights infringement."

Flynn has invited other publishers to pick up his manuscript, but believes for all intents and purposes it had been banned, and so changed the title, from: In Defense of Free Speech: The University as Censor, to A Banned Book: Free speech and Universities.

The idea the book is banned may well be an overreach, and the post does come across a bit "peevish" - a position stated by some of the commenters on Flynn’s blog post.

Some pointed out a single publisher’s refusal to print did not amount to banning or censorship.

“Censorship requires a nexus of governmental authority. Private publishers are free to discriminate and reconsider as often as they like. Such bias may not reflect well on private publishers but it is not a civil rights infringement....

“At worst, one could possibly say it was blacklisted but that would require showing refusals and collusion from several publishers.”

But others disagreed, saying this was a significant example of censorship for both New Zealand, and the UK.

AUT history professor Paul Moon told Newsroom publishers were generally risk-averse, and others would follow suit. Essentially, this book would not be picked up by a publishing house, he said.

This was not just a business decision made by a private company, it was an example of the UK's hate speech law censoring writing and discussion, Moon said.

Similar to a speed limit, the law acted as a deterrent, but when laws were vague - as this was - the “halo effect” was far-reaching - people were much more hesitant to approach the limit, because they didn’t know what it was.

Unsurprisingly, ACT’s David Seymour made many of the same points in support of free speech.

Suppressing free speech for fear of legal action was not the way to address society’s ills, or have mature discussions, Seymour said.

In his view, this form of censoring was becoming “insidious”. He added that he agreed with Flynn that universities should be the place to have free and robust discussions.

Instead, the chancellors of New Zealand’s universities were “gutless wonders”, he said.

Official Information Act requests sent to all New Zealand universities at the end of last year by Newsroom, a la BBC, showed there was no surge in censorship of speakers, books or course material.

But there have been some pretty high-profile, and poor, decisions made by them in the past year.

First there was the public de-platforming of former National Party leader Don Brash by Massey University, then there was AUT’s decision to scrap a Tiananmen Square event after the Chinese Consulate asked it to.

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”

This plays out against a backdrop of a constant rumbling about the state of free speech in New Zealand.

Justice Minister Andrew Little is carrying out a review of hate speech law; mulling a move similar to the UK, where the weight is not put on the intent of the person doing the speaking, but the reaction of those who hear what they say.

Recent months have also seen the Justice Select Committee repeatedly discuss free speech when considering petitions, including one on de-platforming, and another on banning conversion therapy.

And it's become a common thread through a range of social discussions.

This may be straying far from the topic of a single so-called banned book, but it’s intertwined with the country’s current apprehension on the topic.

Kiwis like the idea of the value, but feel squeamish about where the line is drawn, and about anything that could encourage or contribute to another event similar to March 15.

So whether Flynn has over-egged the book ban in his blog post is irrelevant, as is the book’s content - to a point.

What matters is it is another important case study in figuring out where New Zealand sits on these core freedoms.

The line is confusing and often shifting - while Flynn’s book is a no-go in the UK, Amazon.co.uk is selling the paperback edition of Mein Kampf for the low, low price of £8.99.

But it's important to have the discussion. And in the end, settle on the point where Kiwis are safe, but free.

At the end of his book, Flynn quotes George Orwell’s original preface to Animal Farm, which was rejected by Faber and Faber for being too critical of Stalin: “If liberty means anything at all, it means the right to tell people what they do not want to hear.”