If you think there’s an easy answer on the whole Lauren Southern/Stefan Molyneux saga, law professor Andrew Geddis reckons you probably haven’t thought about it hard enough.

Up until about a week ago, I and most of New Zealand hadn’t the faintest clue who Lauren Southern or Stefan Molyneux were. Having better things to do than mine the seamier veins of the internet, I still haven’t really engaged in any depth with this pair of Canadian alt-right provocateurs’ “message” (such as they have one beyond “let’s make a buck from owning the libs”).  

However, following Auckland Live’s decision to cancel their booking of the Auckland Council-owned Bruce Mason Centre for a speaking event – a decision that Mayor Phil Goff had a big hand in – it seems like everyone is required to have an opinion on them and their right to perform before a paying crowd.

So, Mayor Goff thinks they “spout racist nonsense” and shouldn’t be allowed to use council property to do so. Winston Peters thinks Goff was wrong and that they should have been allowed to speak as originally planned. Simon Bridges thinks that Goff was “entitled” to do what he did, but the pair still should be allowed to visit NZ and speak someplace else. Various other MPs also took to twitter to give their views.

(For the sake of clarity, Southern and Molyneux haven’t been barred from entering New Zealand. After the venue cancellation was announced, the event’s promoter quickly pulled the plug on their Auckland visit.)

And now it seems the High Court will have to form its opinion of the issue, with news that the “Free Speech Coalition” plans to seek a judicial review of the decision to cancel the booking. That elevates the matter from being a mere point of passionate Twitter debate to something a little more meaningful.

Let’s start by acknowledging that the little I know of their views and how they express them makes me pretty sure that The Spinoff’s readership would not be a particularly sympathetic audience for their message. They certainly wouldn’t be welcome at any dinner party I might hold.

But that’s not the test that the court will apply, nor should it apply, when deciding if some public expression ought to be allowed. And if you think an “only people Andrew would like to have dinner with may speak in public” test is an appropriate one, just note that I probably wouldn’t want to have dinner with you either.

What test should instead be used for dividing allowable from not-allowable speech? That’s a hard question, and anyone who says there’s an easy and clear answer to it also isn’t someone I want to have dinner with. Here, as I see them, are the issues that will have to be worked through by the court.

First of all, the council can’t escape this particular problem by arguing that Southern and Molyneux’s rights haven’t really been affected. Mayor Goff’s claim “[it’s] my right, and councils’ right, to deny them a venue” to speak in simply isn’t correct if he means that he can pick and choose at will which speakers may use council-owned property for expressive purposes.

At the risk of lapsing into legalese, the council’s actions when hiring out its venues to speakers are captured by both the NZ Bill of Rights Act 1990 and the Human Rights Act 1993. Those enactments prevent the council from making venue hiring decisions (including cancellations) that “unjustifiably limit” freedom of expression, or that discriminate on the basis of political opinion. Auckland Live – the council’s company that manages the venues – can’t then contract out of those legal obligations.

Consequently, Mayor Goff’s decision (put into practice by Auckland Live) most likely will be found to be unlawful unless there is some sort of “demonstrably justified” reason for preventing Southern and Molyneux from speaking at the council’s venue. Does any such reason exist?

Well, in its statement on the matter, Auckland Live pointed to “security concerns around the health and safety of presenters, staff and patrons” for the cancellation. And, yes, there were promises from Auckland Peace Action that Southern and Molyneux would be “confront[ed] in the streets”, including “blockade[d] entry to their speaking venue.” And, yes, Auckland Live has legislatively imposed health and safety obligations to its staff and those using its premises.

But protest actions at controversial events are hardly unprecedented. For example, in May of this year Auckland Peace Action (peacefully) protested outside of the Israel Day event held at the council-owned Silo Park. Should the mere threat of a protest then have been grounds for Mayor Goff and the council’s Panuku Development organisation to pull the Jewish community’s right to use that space? What if Auckland Peace Action decides that having the Miss Auckland 2018 competition at the Bruce Mason Centre is so great an affront to women that it must be stopped?

For such are the dangers in allowing the threat of an angry mob to be a sufficient reason to take away a person’s right to speak. Granting such a “heckler’s veto” actually incentivises violent responses to things you disagree with – if you want to shut someone up, then simply make a big enough fuss about the fact that they get to speak.

So, in a decision that ironically involved the now-spokesperson for Auckland Peace Action, Valarie Morse, the Supreme Court had this to say about what is expected of those exposed to speech with which they disagree:

[64] … A reasonable person, in a context involving freedom of expression or another right guaranteed by the New Zealand Bill of Rights Act, must surely be a person who is sensitive to such values and displays tolerance for the rights of the person whose behaviour is in question. In other words, the hypothetical reasonable person (of the kind affected) is one who takes a balanced, rights-sensitive view, conscious of the requirements of s 5 of that Act and therefore is not unreasonably moved to wounded feelings or real anger, resentment, disgust or outrage, particularly when confronted by a protester.

It is not right, therefore, to say that it is justifiable to prevent speech that provokes an outraged or even violent response. Rather, such responses have themselves to be justified, in that the speaker’s message goes beyond what an appropriately tolerant citizen of our democracy ought to have to put up with.

Which is where, I think, we get to the real issue at hand. Mayor Goff, and I’m guessing lots of people reading this, argue that there simply isn’t any requirement to have to tolerate Southern and Molyneux’s proclivity to “attack people on the basis of their faith and ethnicity and … set out deliberately to provoke them.” Such “racist hate speech” altogether falls outside of the sphere of acceptable public discourse.

It seems to me that the courts reaction to this claim will rely on two things.

First, just how bad are the things that Southern and Molyneux go around saying? As I said at the outset, I haven’t spent much time looking into this for myself. But accounts are that they have a pretty racisty-vibe about them (as well as being transphobic and generally awful). And it is true that Southern has been excluded from the United Kingdom (but not criminally charged) for her anti-Muslim actions there.

(But then again, the United Kingdom also indicated that Edward Snowdon would be refused entry should he ever try and travel there. So, can we use “not welcome in the UK” as a reliable test for whether or not a person’s views should be allowed to be heard in this country?)

Second, even if it turns out that Southern and Molyneux’s past statements and behaviour put them within at least spitting distance of being actual Nazis, should that fact be enough to say it is legitimate to silence them? Well, as we saw with the High Court’s ruling earlier this year on Al Nisbet’s terrible, terrible cartoons, our law sets a pretty high threshold for finding that some offensive speech rises to the level of prohibited “hate speech”.

But then, look who that threshold gets set by. It’s perhaps all too easy to proclaim the general need for tolerance and acceptance of “offence” by others when you’re in a privileged and protected social position. For, as Saziah Bashir wrote for Radio NZ’s website; “While some may be able to engage with the likes of Southern on a detached, academic discussion, her views and her actions are actually physically and emotionally harmful.”

Should we as a society then impose such asymmetric costs; requiring some social groups to repeatedly carry an especial burden in order to produce the asserted benefits that a “robust and uninhibited” free speech culture is alleged to produce? But, if we are going to mark out some social groups as requiring greater protection from the effects of speech, how do we do so and who gets to decide just who they are? And how do we stop such protection from expanding to capture expression that we might think ought to be allowed? For example, is there a legal test that would protect Muslims from invidious attacks by the likes of Southern and Molyneux yet would not also risk banning the public display of “Piss Christ”?

Like I said, these are not easy questions to answer. I’m not one hundred percent certain what the answers should be in Southern and Molyneux’s case. And I think anyone who sees it as a simple one for the court to resolve probably hasn’t thought about it hard enough.

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