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March 25, 2013 | by  | in Opinion |
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Laying down the Law – Prosser-Stan: The Limit of Free Speech in New Zealand

Over the summer, New Zealand First MP Richard Prosser attracted criticism from around the world when in a column in Investigate magazine he commented that “Misogynist troglodytes from Wogistan are threatening our way of life and security of travel in the name of their stone-age religion”. Turned out Prosser was butt-hurt at having his pocketknife confiscated by an airport security guard. The general gist of his argument seemed to be that, if Muslim men were not allowed to fly, that would leave him free to carry as many dangerous implements on aircrafts as he wants.

Aside from being evidence of the bizarre machinations of Richard Prosser’s mind, the incident also brings into question the legal limits of free speech in New Zealand. Prosser’s comments clearly crossed the line into bigoted and just plain stupid, but were they illegal?

Free speech is one of the key political rights covered by the New Zealand Bill of Rights Act 1991 (BORA). But rights aren’t absolute— most people agree that my rights end where your rights begin. So, even though punching is a form of expression, I’m not free to walk up to the Vice-Chancellor and punch him in the face if I’m unhappy with him.

How does this apply to speech? Is there a point at which speech can become so hateful that it encroaches on others’ rights to live a life free from prejudice and fear of violence? While that’s a tricky philosophical question in itself, New Zealand law has its own answer. Sections 61 and 131 of the Human Rights Act 1993 make it unlawful to use words that are threatening, abusive or insulting, and likely to excite hostility against or bring into contempt any group of people on the ground of the colour, race, or ethnic or national origins of that group of persons.

Prosser’s comments are obviously insulting. They don’t, however, single out a group of people on the ground of colour, race, or ethnicity. No, “Muslim” is not an ethnicity.

It’s also reasonably clear that Prosser’s comments fail to meet the standard of “likely to excite hostility against or bring into contempt any group of people”. If anything, his comments bring him into contempt. The comments are not seriously likely to increase hostility against “Muslim-looking men”. This is a high standard to meet, reflecting the importance of the right to freedom of expression.

Remember, just because you can say it without breaking the law, doesn’t mean you’re not a douche.

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