The “Ham Sandwich”: NZ Hate Speech Law Changes & US v Concorde Management – Lawfare and Experts

Graham Hill's picture
Submitted by Graham Hill on Sun, 2020-05-10 03:49

In Mid-March as Covid-19 was imminent, our Minster of Justice, Andrew Little, stated that the ‘hate speech’ legislation was to be brought forward. Ideas for legislative change have existed since 2017 on. The impetus is owing to 15 March 2019 Mosque shootings. On one hand, amending sections 61 and 131 of the Human Rights Act 1993, to capture religious discrimination with the statutory present tests, and the objective approach Wall v Fairfax New Zealand Ltd [2018] NZHC 104, is not controversial. On the other hand ‘Hate crime’ offences on the English model of the Public Order Act 1986 (UK) are.

But contrary to earlier statements in 2018 and 2019 on the need for open discussion, public debate and data (on hate crimes), the senior Clerisy of the Ministry and the Human Rights Commission deemed that this not be done with public consultation. No public consultation is on the grounds, according to the Chief Executive Officer of the Ministry, of not wanting matters “derailed.” The plebs sordida and their public interest is such a tiresome bother. It is an attitude, which is elitist and paternalistic that has been seen gurgling away in Brexit debate from ‘remainers’ in the UK. Chris Trotter in his article on The Daily Blog 21 February 2020 wisely puts it: “Building trust and amity between peoples is achieved by starting conversations- not by shutting them down.”

“Derailment” can be read as a euphemism for precluding either ‘disagreement’ or a process tested by transparency or “there might be protests”, also known as the right of assembly. The approach savours of bias or predetermination with UK deference to “experts, which can also be a rhetorical device to forestall debate and contestability. In Court cases expert testimony is invariably met by opposing expert testimony.

Experts and their opinions are not politically value free, nor is there one “EXPERT” position and experts are not should not be an unimpeachable moral force beyond public scrutiny when it comes to policy implementation which is political. The “weighing” that the Ministry says it is involved in is not a public service issue- they are not moral guardians- but a matter of political judgment. If dissent and questioning is excluded and policy that emerges that becomes law then we are no longer part of the Demos. The example of Stalin’s infamous Tromfir Lysenko is a warning of expert infallibility once on top politically. One expert the HRC has consulted with, and who is not above criticism, is an activist with biases and who is not legally qualified. This is not to derogate from her social work expertise but it does not make her, with the risk of “expertise slippage” an expert on New Zealand jurisprudence.

The Ministry’s approach is a State Nanny ‘Master Class in Maternalism’ and the short form paternalistic message is: “We know what is best for the ‘Common Good’” and “ We won’t hear a word against it.” The takeaway is debate is forestalled and avoided as the moral Clerisy, as shrinking violets, might find the “discussion”, the “conversation”, disharmonious and of horrid disagreement and thus hateful. The risk of the UK model of the Public Order Act 1986 is its extension to deal with dissent by arming police and prosecutors.

Worse, the door is closed to robust and frank discussion on hate crimes, especially those determining what speech is hateful leading to the risk of politically weaponising state agencies to curate, cleanse or shut down an opinion that is not welcome. Do we really want imposed the jurisprudential mess that the UK Public Order Act 1986 type of legislation entails? Should the Human Rights Commission (the Chief Commissioner’s political orientation is known as pointed out by Shallom Kiwi in an article on 8 October 2018) and the Ministry of Justice be determining behind closed doors rather than proposing what is to be captured or not ? Is internal debate of real efficacy, free from careerists mindful of promotion and subject to employment law duties that may not speak up or be free from internal departmental group think? Presently, the outcome of the Ministerial “chinwag” does not appear from my inquiries and research to be heading to a Select Committee. The US DoJ has been shown to have a political orientation which has been deployed in gross prosecutorial over reach, so we should look at recent US events.

Meanwhile in March, in a republic ‘far far away’ political speech prosecutions were faltering. Another Justice Department was digging itself out of the mire, as ours may be digging into one, which it thinks is achieved by precluding public debate. The US Department of Justice in taking out the Mueller /Rosenstein trash, by filing a memorandum in Court seeking the dismissal of two of its Russian Collusion Bot/Troll farming cases against two Russian corporations (US v Concorde Marketing and Consulting LLC and Concorde Catering LLC) which lay in a raft of cases. In face saving, the prosecution professed that there was no longer any point in the litigation and blamed the defendant for playing with the system.

These cases, along with Lt General Flynn’s case- which was perched on the rocks of abuse of process and miscarriage of justice until withdrawn on 7 May 2020 - were part of the “legal fruit salad’ political narrative” to fan public opinion on Russian collusion by Mr Trump. But the factual ducks were not in line- no collusion for one, no offence or duty for another- and the politicising of legal process was been undone by the legal process norms. The cases, along with ‘Bridgegate’ (Kelly v US no 18-1059 decision of the US Supreme Court on 7 May 2020 in favour of the appellants Ms Kelly and Mr Boroni,) have been ones of an indictment looking for a crime.

In Concorde there is a view that the indictments were laid because it was not expected there would be a defence and that would result in non-contested default decisions. The companies were outside the jurisdictional and there was no possibility of extradition. But the two companies played a stunning blinder by instructing Washington DC Counsel, Mr Dublier who has un-footed the prosecution on the basis of there being ‘no cause’ along with the fact that the principal company was not incorporated at the material time, which either shows opportunism or incompetence by the prosecution.

There is more “The special counsel appears to have forgotten to explain how foreign political speech broke U.S law”.

Mr Dublier has let fly a quiver of barbs of ridicule at the prosecution. Significantly, in calling the bluff, he tripped procedural obligations on the part of the prosecution to disclose the evidence against the defendants. The procedural squeeze has helped crunch the case, because the prosecution did not want to disclose or it couldn’t.

‘Weaponising’ the criminal justice system over a political statement for political purposes was misconceived because legal processes and outcomes are not political ones. Both have a differing teloi. This an ongoing shortcoming in present US politics as expounded by Democrats such as former prosecutor Adam Schiff (D-CA) that having a hearing and prosecuting is an answer to political issues. It is tunnel thinking.

The prosecutor’s game in Concorde was not within the ambit of the ‘Justice Game’ which runs on its own terms. The Court “docket” has as its terminus, a trial. Litigation, as the late Sir Ivor Richardson once said “is not a bus you can get on and off at will.” Andrew McCarthy, a former prosecutor, and writer for the National Review, has said,’ if you are going to lay the charge you better be prepared to go to trial.’

The prosecution had its bluff of gaming the parties, and the Court system, well and truly called. McCarthy’s view is that the “indictment [was] more a political statement than a charging instrument.” Adding, “The indictment was political theatre never meant to be tried in court. More than an investigation, the Mueller probe was the wellspring of a political narrative.” We all expect the justice system, imperfect as it may be from time to time, to be politically neutral and strive for impartiality. It is seems, once it is weaponised it might not be a very big leap to entities like the Gestapo, the NKVD/ KGB and the Stasi, and one that deftly ensnares defendants such as Lt Gen Flynn

US v Concorde management is about Free Political Speech On line.

The Concorde Management case is about Russian“ troll farming” from the Russian Internet Research Agency involving the release of bots and anonymous posts onto Face Book and other social media that was critical of Hillary Clinton in her 2016 bid for President.

Yet the importance for present purposes is that Concorde has underpinning it the question of free political speech. Can the government shut down, and cleanse the polity, of free speech emanating from off shore which the DoJ prosecutor’s deemed as ones “sowing discord” and were “divisive” ( does this mean disagreement, controversial, unpalatable or hateful?)? Adam Mill in the Federalist (2018) saw that the DoJ was trying to “control manage and curate political ideas from abroad” to its narrative of what is acceptable.

When pressed the prosecution could not identify what law had been broken. The court ordered that the DoJ needed to show that there was duty for foreign opinion to seek the permission, as sentinel gateways, of the DoJ and the FEC (Federal Election Commission) before it was posted on line. Absent a duty there was no case. The idea of a state gateway filter of opinion of what politically a prosecutor doesn’t like and disagrees with inherently divisive and divisiveness is a matter of partisan perception. China curates incoming opinion in a similar way. The fact is that any post, Mill says, for either Mrs Clinton or Mr Trump, given present polarisation in US politics, would be divisive. Yet, it was the criticism of Mrs Clinton not Mr Trump that gave rise to the prosecutions. The Town Square was being shielded for one but not the other. The Judge in the event considered that the ‘sowing of discord’ was not illegal.

A disturbing if not noxious feature was that the initiating of a prosecution for the political criticism of a candidate was that it could not provide detail of the law being relied on. For Adam Mill this was “troubling.” It savours of the “whiff” of ‘law-fare’ deployed by a weaponised DoJ to resolve adverse political content for “its” candidate. As John Stuart Mill says in On Liberty (1859), a dominant opinion (discourse) does not readily accept a minority one. It is likely to view a critical differing opinion as divisive and disharmonious. The US departments of state such as the DoJ (and its FBI) have been acculturated and subject to the long periods of Democratic rule along with the Presidency. The Democrat Presidency – and Obama was unabashedly progressive- appoints senior executives and staff selection will flow from that as like recruits like. A political view point has been inculcated and embedded in the executive wing as the dominant discourse, and has become a political bias.
The FBI in Flynn’s case has manifested bias in its prosecution. In Concorde it was the critical speech about Clinton that was bad, divisive and discordant but it was okay for Trump.

Adam Mill contends that the more divisive and controversial that speech is the more relevant it is. For him the source does not matter. It was known that the Russians would interfere and did interfere. The Guardian (14/10 2017) noted that the Russians used social media to “attack the social fabric” along the sensitive lines of race gender class and religion. Both Messrs Clapper and Comey have acknowledged that Mr Putin did not like Mrs Clinton.

The Russian aim was to sow discord and destabilise the country along existing divisions rather than on party lines. Mill, in a form of argument rejecting state paternalism, says “We are free citizens and can decide whose speech and claims of foreigners have merit or not.” Adding, political speech is best dealt with by open refutation and debate not by prosecution because that puts decision making as to what is unacceptable speech into the hands of the DoJ.

It is not for politically motivated prosecution and departments of state (e.g. our DoJ and HRC) to cleanse and sanitise the polity of what it thinks is unacceptable or discordant speech. That decision is a political decision and is inherently divisive. Two devices have been deployed to side step undesired contrary opinion. First is the idea that the state, in neutralising disagreement and opinion, does so by the charade of “the experts” or ‘the science’. Neither of which alters the character of a political comment nor compromises its value. It is simply a rhetorical appeal to the fallacy of “higher authority” to deflect contradiction. The other, in the name of therapeutic politics- as seen in the well-meaning slogan ‘be Kind’ which is to put off, circumscribe, displace contestability and open argument by dissolving them into a solution of euphemisms such as ‘civility’ ‘caring’ and ‘Be Kind’. But the corollary is that it may easily suffer slippage and define , pejoratively, ‘disagreement’, ‘divisiveness’ and ‘disharmony of ideas “ as heresy and then the moral sledge hammer, “hate .”

Hate speech is a foremost a political concept. Its use in political discourse involves a sleight of hand to gain assent. Hate is a morally thus politically loaded word and can be deployed manipulatively by garnering support on it as a subject and then plugging-on an object where support for the subject will carry over to the whatever the designated object is. The Free Speech Coalition, in its 31 March 2019 Press Release over stated matters on legislative over reach, except where it was obliquely referring to the Public Order Act 1986 (UK), but on the term hate it put the position extremely well:

The term ‘hate speech’ is deliberately extreme. It has been designed to prejudice discussion. It exploits the decency of ordinary people. How could anyone not oppose ‘hate’? But as defined legally it generally means something that could upset someone. Overseas examples often just give authorities the ability to say ‘it means what they say they want it to mean from time to time’. Recently, in Britain their version of the law was used to bring criminal charges against an elderly woman who refused to use a transgender man’s preferred designation as a woman and insisted on referring to him as a man who wanted to use women’s toilets.

The US example of “law fare” to shut down speech is ominous as is our government declining public debate on disharmonious speech. I see the UK Public Order Act 1986 as a parallel to be used in the same way to promote law fare. The UK experience of shutting down criticism of trans gender pronouns has more the look of punishing heresy. State coercion can be very heavy handed.

Hate speech, as an extreme and loaded moral term censors (and leads to self-censorship) language and impinges on other protected rights by risk of prosecution for upset. If the definition of harm and upset was to extend to discord disharmony we would seem to be on a slippery political slope towards one a particular political outlook that holds social relations are based on oppressors and oppression and is fuelled by identify politics.

The incitement provisions in s 131 tend to the politically neutral and have an objective test Prosecution requires, as a safe guard, the Attorney –General’s consent under s 132. But it still falls on the agency concerned and prosecutorial discretion to get to the Attorney- General. Complaints related to the comment “pale, male [immutable characteristics] and stale” while made to the HRC, and from a Google search, do not seem to have gone far unless dealt with in mediation. The lack of published outcome is unsatisfactory. I suspect that those who complained were making a point about consistency and as Attorney General Barr has said of the Flynn case “There's only one standard of justice.” Partiality of law is a recipe for social instability.

Without open discussion or details on the ambit of any change to the legislation or even if a new Act on the lines of the UK Public Order Act 1986 is unknown. Hate crime on the UK model is a fraught concept and open to abuse politically. The present Human Rights’ Commissioner, while academically qualified and experienced, has come from the UK, a former UK Labour Party Candidate and was a pro-Corbyn candidate. He prima facie is an ‘expert’ with political colours.

Freedom of speech relates to freedom of conscience and thus thought. We have already had incidence of Police in New Zealand inquiring of people’s thoughts in 2019 and it is not for prosecutors to lay politically oriented charges.

The legal battles and prosecution, which carries stigma and life consequences, are bad enough. Not everyone has access to justice despite the fiction that we do to clear ones name. The weighing of concerns is difficult. The difficulty rather points to the need for open debate is required, and not in camera chinwags with experts and public servants. By not airing the issues even at the risk of disagreement and not getting assent of the Demos is a more of an evil. To proceed otherwise is to commit a Rousseauan error.

Graham Hill MA (Hons), llB (Hons)
Nelson, 10 May 2020

This is true

Lindsay Perigo's picture

We must disenfranchise the ignorant, illiterate and malicious. That probably means setting the voting age at 50 and confining the vote to men. Silly wimmin-things could perhaps make it as honorary men. There wouldn't be many. These hideous fry-quackers are for the most part irredeemable. It's tempting to say they should stay in the kitchen and bedroom, but even that is allowing them too much. The fact that even now these hormonal horrors are in charge of breeding is an affront to civilisation. Then, when confronted with new human lives within their womb, they insist on the right to kill those lives. This is unimaginably horrible. Science must find a way of taking wimmin out of the equation. I mean, just look at Jihadi Jacinda!! That thing is able to breed, and wield power over the rest of us as well??!!



Mr_Lineberry's picture

Did I just hit a home run! Hahahaha!

In a classic example of what I was meaning, the judge in the Flynn case has said "go f**k yourself - and what are you going to do about it?"

Shocking but not surprising to anyone who lives in the real world. So many naïve little poppets - and I think Graham Hill is one of those- confuse "should" and the rulebook, with those who simply ignore whatever they disagree with, knowing you can't do a thing about it.

Get used to it folks, you ain't seen nothing yet!

You need to work from the premise that non labour/green voters and voices have NO rights any longer, and you can't go wrong. Afterall who is there to complain to?


Mr_Lineberry's picture

Know, but I am inclined to think all that will simply be ignored - you get glib one liners and told "never mind, eh" - and it will be acceptable.

Anyone who thinks there is a "omg! I ignored the rights of hateful people I don't like and therefore I did a very bad thing" attitude by Judges is kinda ....'naive'

Reply to Mr Lineberry

Graham Hill's picture

An issue which I have also written on is to consider what underpins, philosophically, a person's or group's, notions of free speech. Support of John Milton and John Stuart Smith's ideas or a series of neoliberal freedom from's? One needs to work out what the underpinning is.

Freedom of speech also comes with a corollary to listen sci.l section 14 of NZBORA is to be paired with s 27 (natural justice right to be heard).


Mr_Lineberry's picture

what is the bet a National/Act government will unhesitatingly implement these laws?

The days of freedom have long since departed in NZ and nobody particularly cares; even the free speech coalition outfit can't be bothered posting anything on their website.

The glib one liner "why do you want to say hateful things?" - (why are you such a meanie?) - will be all that matters before long; expect Judges to start asking the question in 2022

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