Free speech at its best stirring people to anger

I feel like I am about to walk in no-man’s-land on the Eastern Front in Ukraine, knowing that both sides have planted minefields.

The anxiety is due to this week’s topic, in which I endeavour to discuss transgender and politicians who think journalists are something nasty on their shoe. I just know that what I am about to say will annoy one group or the other, or possibly both.

The transgender matter arises from a Broadcasting Standards Authority decision over an interview RNZ’s Kim Hill had with British academic Dr Kathleen Stock, an outspoken critic of gender transition.

The politicians with what look like excremental views on journalists are probably too great to number but two come to mind: Auckland mayor Wayne Brown and Florida governor Ron DeSantis.

How do these disparate topics come together in a Tuesday Commentary? Both involve a clash of rights.

Last week the BSA issued its decision on two complaints brought against RNZ over the Stock interview. Neither was upheld, although there was a minority view that would have upheld part of the claim. You will find the decision here: https://www.bsa.govt.nz/decisions/all-decisions/philipa-adam-and-johnny-crawford-and-complainants-radio-new-zealand-ltd-2022-067-27-february-2023/

The decision is noteworthy for two reasons.

It broke new ground by recognising transgender people as a distinct section of the community to which the BSA’s discrimination standard could apply.

It also presented a carefully reasoned argument that weighs potential harm to that group against freedom of expression that includes a right to articulate views that are subject to widespread criticism. It is a timely reminder that the legitimate test of harm must jump a high bar.

Kim Hill’s Saturday Morning interview with Stock was long – 50 minutes – and followed publication of a book by the former Professor of Philosophy at the University of Sussex entitled Material Girls. The book argues those who transition from the sexual category they were born into are living “an immersive fiction”. Stock resigned from her position after a student campaign accusing her of transphobia.

In the RNZ interview Stock made a number of claims that Hill challenged and many of them had me shaking my head in disbelief. Nonetheless, the BSA decision found that Stock was entitled to her opinions. It went further, invoking the spirit of John Milton’s famous challenge: “Let her and falsehood grapple; who ever knew truth put to the worse, in a free and open encounter?”

The complainants alleged the broadcast breached the discrimination and denigration, accuracy, balance and violence standards. Not quite a full bag but citing half the standards on which the authority judges content shows a strong determination to suppress the sort of views that Stock holds…and which cost her job in the United Kingdom.

This sort of determination to reduce issues to a single, unassailable narrative is disturbing and, ultimately, detrimental. It robs society of its ability to undertake critical analysis of social and cultural developments that shape and change civilisations. Worse, it skews concepts of toleration.

The conclusion reached by Michael Walzer in his essay On Toleration points to how we should perceive conflicting views: “…the point of toleration is not, and never was, to abolish ‘us’ and ‘them’ (and certainly not to abolish ‘me’) but to ensure their continuing peaceful coexistence and interaction.”

We cannot achieve that by conferring universal legitimacy on one worldview by preventing the expression of alternatives. In a free society, people are allowed to judge for themselves and form a worldview with which they are comfortable, even if the majority think it nonsensical.

Nor can we legitimise an incremental version of suppression. There is a fundamental difference between choosing to use particular words and phrases (to, say, reflect a more inclusive outlook), and denying others the right not to follow the example.

Human relationships are based on how we perceive each other. Your outlook and the way you express yourself affect my judgement of you. My reactions alter the way you perceive me. If I disagree with your outlook, I may hold you in lower regard and you may do the same to me. The waft and weave of society is to accept each other’s right to be as they are. Like fashion, the pattern and style of the fabric of society changes over time by common agreement.

I acknowledge there are limits to what society regards as acceptable. Those limits are well articulated by Stanley Fish’s essay There’s no such thing as free speech, and it’s a good thing, too (https://web.english.upenn.edu/~cavitch/pdf-library/Fish_FreeSpeech.pdf). Basically, the limits are determined by the harm that speech might cause, and I am persuaded by John Stuart Mills’ “prevention of harm to others” principle in his essay On Liberty and by Jeremy Waldron’s concept of speech harm as an assault on dignity (set out in his book The Harm in Hate Speech).

I am not persuaded by people who equate offence with harm. Nor, it seems, is the BSA. In one of the most persuasive sections of its decision, it cites a December 2022 Supreme Court decision relating to the cancellation in 2018 of a Bruce Mason Theatre booking for ‘alt-right’ commentators Stefan Molyneux and Lauren Southern.

As a regulator, our role is to objectively weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast, having regard to current community norms and values. In doing so we recognise, as the Supreme Court has recently, that ‘a function of free speech under our system of government is to invite dispute’, indeed, it may ‘best serve its high purpose… when it stirs people to anger.’ When determining complaints, we must be careful not to mistake anger that may be caused by a broadcast for a reason to restrict the right to freedom of expression.

It seems, however, that some people are more readily provoked to anger than others.

Auckland mayor provoked a cyclone in a teacup last week when he told a writer for The Spinoff: “Don’t fucking come and talk to me…” A council spokesman said Brown did not know he was talking to a journalist (strongly disputed by The Spinoff). So I might have brushed that off as crossed wires were it not for the fact that the mayor has been accumulating both a range of colourful expressions and a marked reluctance to expose himself to journalists’ questions.

He is not the only politician who is averse to being questioned. In the United States, potential Republican presidential hopeful Ron DeSantis is what the New York Times describes as “a sulfurous critic of the news media” who has all but shunned one-on-one interviews with mainstream political reporters, opting instead to talk to right-wing pundits.

He recently made an exception to participate in a lengthy interview with The Times of London. What wasn’t lost on the New York Times was the fact that Rupert Murdoch owns both The Times and the company about to publish DeSantis’ memoir.

The attitude of the likes of Brown and DeSantis toward journalists raises another freedom issue: the right to know.

In an age when politicians can directly engage with the public through websites and social media, do they have any obligation to engage with intermediaries in the news media?

I would argue strongly that they do.

Digital engagement is almost always on the politicians’ terms or what their communications staff (they would tell you ‘spin doctor’ is so yesterday) judge is in their employers’ best interests.

That may be a luxury available to leaders in the private sector but it is not one that can legitimately be claimed by elected representatives or by the organisations they control as proxies of the public.

National and local politicians in this country are not accountable to the public only once every three years. They are elected on a triennial cycle but their accountability endures throughout their term of office. And that means being open to interrogation.

They are held to account by reporters’ questions, not by soft media releases or chatty engagements on social media. Subject areas they may prefer not to traverse and answers to questions that media releases conveniently fail to address are part and parcel of the public’s right to know.

Communications staff can perform useful functions but they must not be substitutes for one-on-one interviews with the person ultimately responsible for decision-making on the public’s behalf. Sadly, a culture has developed that distances the people’s representatives from the people’s watchdogs.