The Court of Appeals has thrown out an attempt to overturn a ruling that an Auckland Council-owned venue was within its rights when it cancelled a talk by alt right figures Lauren Southern and Stefan Molyneux. Though the controversy over the duo’s visit happened well before the Christchurch massacre, writes Andrew Geddis, the spectre of the shootings was never far from this case.

Once upon a time two alt right Canadian grifters called Lauren Southern and Stefan Molyneux were busy making money through getting anxious white people to pay them to stoke their fears about their place in a rapidly changing world. Having hoovered cash out of Australia’s rubes through a paid speaking tour, they set their sights on doing the same in Auckland. But when Regional Facilities Auckland (RFA) – the Auckland Council-owned company running the venue that they planned to use – received promises of disruptive protests, it got cold feet and pulled the booking. Whereupon a newly minted group called “The Free Speech Coalition” took the matter to court.

At the time this all took place back in 2018, I wrote a typically hand-wringing piece about how difficult the whole issue was. Sure, Southern and Molyneux propound some pretty ugly views, but free speech isn’t there just for people that say things we like to hear. And while health and safety is a valid concern for venue operators, using it as an reason to bar controversial speakers can allow those strongly opposed to such ideas to effectively “veto” their expression. So, from a chin-stroking perspective of “just how do we balance all these troubling issues?”, the Southern and Molyneux case seemed to have it all.

Then, in March 2019, the Christchurch Mosque Atrocities happened, and suddenly shit became all too real. Because it became undeniable that the sort of things Southern and Molyneux were saying as a means of bleeding cash from the credulous have actual consequences. The Christchurch terrorist’s manifesto was entitled “The Great Replacement” – the same name as a curiously now-deleted YouTube video posted by Southern. He had found the content of Molyneux’s podcast and YouTube channel so valuable that he donated money to them. Those facts don’t prove that Southern and Molyneux individually and directly inspired the Christchurch terrorist to carry out his evil actions. But the royal commission into the terror attacks did note:

“We are also satisfied that when the individual came to live in New Zealand on 17 August 2017, it was with a fully developed terrorist ideology based on his adoption of the Great Replacement theory and his associated beliefs that immigration, particularly by Muslim migrants, into western countries is an existential threat to western society and that the appropriate response (at least for him) was violence.”

This fully developed terrorist ideology didn’t just pop out of nowhere. The royal commission charts how it was developed in a predominantly online ecosystem that nourished the Christchurch shooter’s mixed sense of grievance and grandiosity. An ecosystem that Southern and Molyneux both helped to flourish and profited from. Which then makes their attempts to bring their message to the public theatres of Auckland a lot more than a purely abstract academic exercise in rights-balancing.

That’s the background against which I think we should read the Court of Appeal’s just released decision upholding RFA’s original decision to cancel Southern and Molyneux’s talk. It’s a background that the Court itself never refers to, because it wasn’t directly relevant to the legal arguments before it. Those essentially revolved around two matters: did RFA have to consider rights of free expression and association before deciding to cancel the event; and if so, did RFA’s safety concerns regarding potential protests provide a good enough reason to override those rights.

The Court thankfully overturned the earlier High Court decision on the first point, ruling that a council-owned company in the business of providing public places for free expression to take place ought to have to consider freedom of expression when doing so (duh!). And on the second, it essentially laid blame at the feet of the company bringing Southern and Molyneux to Auckland for not giving the council-owned company enough information and time to properly work through the security issues raised by the event.

As such, in strict legal terms the content of Southern and Molyneux’s views and their real-world consequences weren’t at issue in the case. And yet, judges are human beings and the law they declare doesn’t emerge from a vacuum. The societal context it exists in now includes a recognition that ideas like those espoused by Southern and Molyneux can directly inspire someone to pick up guns and murder 51 strangers and try to murder another 40. That recognition inevitably is going to influence, even if unconsciously, assessments over things like whether it is “reasonable” for the Auckland Council-owned company to decide that protest threats make it too unsafe to allow Southern and Molyneux to speak without asking the company bringing them to New Zealand how they could help alleviate any such concerns.

It also will lie in the background of other legal challenges that we as a society are going to face in the next few months. Questions about how we ought to amend our “hate speech” regulations. Assessments of the adequacy of our anti-terror laws. Decisions as to whether censorship powers should be used to remove more potentially terror-inspiring material from the public sphere. These are all things we may have decided one way before Christchurch happened. But then, Christchurch happened.