When your free speech causes real psychological harm, whose rights win?

Is singing protest disorderly behaviour?

Among freedom of speech court cases in Aotearoa New Zealand, Brooker v Police stands out. The facts of this case, as recorded by the Supreme Court, are that Brooker believed a particular police officer acted unlawfully towards him. So he protested outside of the police officer’s home one morning, with a sign saying “no more bogus warrants” and singing accompanied by guitar. The songs contain words such as “safer communities together”. Brooker timed his protest knowing the police officer had a night shift and would be off-duty in the morning. The off-duty police officer, in response, called the police instead. On-duty police came and arrested Brooker. Later, Brooker was charged with disorderly behaviour under the Summary Offences Act and was convicted. This happened in 2003.

The case ended up in the Supreme Court, and in 2007, the court ruled that “disorderly behaviour” should be interpreted narrowly so to preserve a person’s right to free speech. So the court decided that Brooker’s right to free speech, namely to protest, is important enough that a disorderly behaviour charge cannot be used to stop him. Thus the court quashed his conviction. A win for free speech protections, some may say.

However, let me supply a bit more context: the particular police officer was a woman. Brooker was a man. It is not clear exactly how Brooker came to know the address of the woman officer. The woman officer testified in court that Brooker’s mere presence intimidated her. It should be clear to us, especially in the post-Me Too era, that Brooker’s behaviour was a particular kind of toxic masculinity. The stalking alone would raise alarm, but the singing made it worse: its unorthodox nature made Brooker look even more unpredictable and therefore dangerous, whereas a straightforward protest with a sign would raise less alarm. It is not clear in this particular case if Brooker also chose to protest against her formally through the Independent Police Conduct Authority, only that he protested in a way that would make any woman worry about her safety, regardless of his intentions. And in general, this safety concern is justified: as the 2020/2021 New Zealand Crime and Victims Survey shows, having a low feeling of safety correlates to an increased risk of actually being a victim.

Free speech and harm

The court only dealt with interpreting what “disorderly behaviour” in our law means. However, given the further context, there is a further moral and political question: should Brooker have been allowed to use his right to free speech to undermine the right to safety of the woman officer? The more general question is: when right to free speech undermines the right to safety, which right “wins”? Or if there is no outright win, how to balance those rights? Let’s look at laws on free speech and safety protection first.

Our law protects freedom of speech singularly in the New Zealand Bill of Rights Act (NZBORA) section 14. On the other hand, the right to life and security in NZBORA does not extend to the kind of physical security most women are concerned about in everyday life, or the kind that for example the Muslim community worries about, especially in light of the Christchurch terrorist attack. Of course, criminal laws such as the Crimes Act and the Land and Transport Act outlaw a variety behaviour threatening physical safety, from murder to drunk-driving to anything in between. This diffused nature is a problem in itself: it makes it easy for certain safety-endangering behaviour to slip through the patchwork of laws, because it is either permitted or insufficiently prohibited.

One particular kind of unsafe behaviour that is not sufficiently prohibited by law, in my view, is behaviour that is psychologically harmful, rather than merely physically harmful. This is the kind of psychological harm women have to suffer every time they walk down a dark street, because of a real threat of random physical attack against them. This is the kind of psychological harm the Muslim community has to endure, knowing that just being in public risks random abuses – as documented by the Royal Commission of Inquiry. This is the kind of psychological harm the LGBTQIA+ community has to endure, knowing that just being LGBTQIA+ increases the risk of being a victim. This is the kind of psychological harm that the woman officer had to suffer because of Brooker’s protest. When you are living in fear, and your fear is justified, you are being harmed, psychologically.

I can imagine someone would question whether the right to be safe is as fundamental as free speech. Given the recent debate about law and order, I think it is fair to say that it is, even if our laws do not straightforwardly recognise it as such.

It is instructive that the law and order debate happened on the heels of the free speech debate posed by Posie Parker – yet many politicians on the right did not see the connection. I think most of us agree that free speech is fundamentally important to our society, but when free speech threatens safety, something has to give. It is also instructive that the anniversary of the Christchurch terrorist attack last month was remembered with barely a whisper from most politicians regarding the Muslim community and how they can be better protected – though Golriz Ghahraman was a notable exception (in the interests of disclosure, I’m a Green Party member). Already, the Labour government has shelved a plan for meagre hate speech law reform. Selective blindness cuts across political spectrum, but let us set that aside for the moment.

So when one fundamental right clashes with another, what happens? How should the law strike the right balance between two fundamental rights?

Connecting freedom with equality

Before I attempt to answer the question, I think it is essential to recognise that there is an even more fundamental idea behind both the right to free speech and the right to be safe – and that’s that we should be free to live our own life as we see fit. That is why we should be free to express ourselves in speech. That is also why, for example, we should be able to marry whoever we choose. And so on.

The limit of my freedom to live my life as I see fit is when my own freedom interferes with other people’s freedom. Given that we are equal, my own freedom should not trump your freedom. So Brooker’s freedom to protest stopped when his right to free speech interfered with the woman officer’s freedom from harm, when her right to be safe was infringed. This is not an original position.

There are two typical responses to this argument. First, a classic free speech advocate like academic David Bromell counters by saying that there is no safety concern because speech like Brooker’s will only cause hurt feelings. Effectively the free speech advocate is saying “grow a thicker skin, and the safety concern will go away”. I think I have presented sufficient evidence to show that this position is simply factually incorrect.

The second response is giving up and saying, in effect, “it is what it is”. When the Muslim community is telling us that the lack of hate speech law reform is threatening their safety, when women, LGBTQIA+ and the disability community say the proposed hate speech law reform would not protect them from harm, and Parliament chooses to do nothing, what does that say about us? It says some people’s freedom to speak trumps other people’s freedom from harm.