This article was originally published on MSU International Law Review: Legal Forum

New Zealand is a country known for being friendly towards civil liberties and personal freedoms.[1] This includes the freedom of speech, which, although more limited than in the US, is still quite broad in New Zealand.[2] “The New Zealand Bill of Rights Act 1990 (NZBORA) is one of several statutes that form part of New Zealand’s constitution . . . Section 14 provides protection for ‘freedom of expression,’ stating that ‘[e]veryone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind.’”[3] However, “the rights contained in the NZBORA ‘may be subject . . . to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’”[4] Additionally, courts cannot strike down or “otherwise decide not to apply a provision of another law by reason only of its inconsistency with any provision in the NZBORA,” but courts are supposed to interpret laws in a manner consistent with the NZBORA.[5] One notable restriction on the freedom of speech are laws prohibiting and criminalizing hate speech and punishing people who promote hate.[6] New Zealand can also ban books and documents that are deemed hate speech.[7] Even though freedom of speech is very broad in New Zealand, it is not as broad in practice as it appears on paper.[8]

Tragically, on March 15, 2019, Brenton Tarrant attacked two mosques in Christchurch, New Zealand, shooting about 100 people, killing fifty-one.[9] The shooter survived and is awaiting trial on several dozen charges including fifty-one murder charges as well as terrorism charges.[10] It is believed that he would have continued with his attack if he had not been apprehended by police about half an hour after his attack began.[11] Unfortunately, Tarrant live-streamed part of the attack on Facebook.[12] He also posted a seventy-four-page manifesto, full of racist rhetoric and falsehoods, before he began his attack.[13]

This terroristic act was clearly an act of bigotry perpetrated by a disturbed and racist man intent on spreading hatred and causing terror.[14] However, New Zealand’s response to this senseless act of violence has had severe and undesirable consequences for civil liberties such as the freedom of speech.[15]

It must be recognized that, while there is no arguing that the contents the manifesto are disturbing and hateful, the document can provide insights into what caused this senseless tragedy.[16] Additionally, banning it will reduce transparency and cause people to form conspiracy theories.[17] Prohibiting people from viewing it will also likely only serve to increase interest in the document.[18]

Yet, New Zealand’s Department of Internal Affairs has classified the manifesto as “objectionable.”[19] New Zealand also has “a law that forbids dissemination or possession of material depicting extreme violence and terrorism” and “a human rights law that forbids incitement of racial disharmony.”[20] The legal significance of these facts is that New Zealand has banned possession and distribution of the manifesto and the video of the shooting and has threated to imprison people for possessing and distributing it.[21] These are not hollow threats.[22] New Zealand has already arrested people and is seeking to impose lengthy prison sentences.[23]

One such example is Phillip Arps.[24] Arps is a business owner and a self-confessed white nationalist.[25] Even though he was not directly involved in the attack, he shared the video on social media and made some controversial statements.[26] He was convicted and received twenty-one months in prison, although he could have received up to twenty-eight years behind bars.[27] Now, it must be confessed that Arps is not the most sympathetic character and his behavior ought not to be condoned by society, but should it really be criminalized?[28] After all, even though Arps certainly isn’t a role model and is not praiseworthy, he is going to spend nearly two years in prison simply for having highly controversial and bigoted opinions and sharing a video of someone else committing a crime on the internet — a crime which was receiving worldwide attention at the time and was arguably newsworthy.[29] Should the government really lock people up for posts they make on social media?

Now, this is not to say that social media platforms can’t and shouldn’t police the content that gets posted to their platforms, but should the government really be bringing their police powers down upon those who make potentially hateful comments or who share content produced by others?[30] After all, what is objectionable is often vague and open to interpretation, and even though it can’t honestly be argued that this video and manifesto don’t meet most definitions of objectionable, having the government decide what is and isn’t objectionable and allowable is a dangerous proposition and a slippery slope.[31] It bears asking, is punishing those who share the video and manifesto really worth the potential harm to the civil liberties of all citizens of New Zealand?

[1] Eleanor Ainge Roy, World’s first Pastafarian wedding takes place in New Zealand, The Guardian (Apr. 17, 2016), https://www.theguardian.com/world/2016/apr/18/worlds-first-pastafarian-wedding-takes-place-in-new-zealand.

[2] Duncan Webb, There are many limits on free speech in New Zealand, Stuff, (Sept. 6, 2018), https://www.stuff.co.nz/the-press/opinion/106836656/there-are-many-limits-on-free-speech-in-new-zealand.

[3] Limits on Freedom of Expression: New Zealand, Library of Congress, (June 26, 2019), https://www.loc.gov/law/help/freedom-expression/newzealand.php.

[4] Id.

[5] Id.

[6] Tracey Cormack, Freedom of speech vs Hate speech, New Zealand Law Society, (Apr. 4, 2019), https://www.lawsociety.org.nz/practice-resources/practice-areas/human-rights/freedom-of-speech-vs-hate-speech.

[7] Id.

[8] Id.

[9] Turkish citizen hurt in Christchurch attacks dies, NZ death toll at 51: Minister, CNA (May 2, 2019 11:01 PM), https://www.channelnewsasia.com/news/world/christchurch-terror-attack-new-zealand-death-toll-new-11497782.

[10] Sam Sherwood, Man accused of Christchurch mosque shootings pleads not guilty to 51 murder charges, Stuff, (June 14, 2019), https://www.stuff.co.nz/national/christchurch-shooting/113473357/terror-accused-pleads-not-guilty-to-murder-charges.

[11] New Zealand Mosque Shooting: Prime Minister Promises Gun Law Reform, NPR, (Mar. 15, 2019, 12:48 PM ET), https://www.npr.org/2019/03/15/703718075/one-of-new-zealand-s-darkest-days-shooting-at-mosques-kills-at-least-49 (this source was updated after original publication).

[12] Id.

[13] Id.

[14] Id.

[15] Damien Cave, New Zealand Bans the Christchurch Suspect’s Manifesto, NY Times, (Mar. 22, 2019), https://www.nytimes.com/2019/03/22/world/asia/new-zealand-christchurch-shooter-manifesto.html.

[16] Nick Perry, New Zealand debates free speech after ban of accused mosque shooter’s manifesto, USA Today, (Mar. 24, 2019, 10:01 PM ET), https://www.usatoday.com/story/news/world/2019/03/24/new-zealand-mosque-shootings-free-speech-debate-manifesto-ban/3264886002/.

[17] Id.

[18] Id.

[19] Damien Cave, New Zealand Bans the Christchurch Suspect’s Manifesto, NY Times, (Mar. 22, 2019), https://www.nytimes.com/2019/03/22/world/asia/new-zealand-christchurch-shooter-manifesto.html. David Shanks, who is New Zealand’s top censor, stated, “‘There is an important distinction to be made between “hate speech,” which may be rejected by many right-thinking people but which is legal to express, and this type of publication, which is deliberately constructed to inspire further murder and terrorism.’” Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Tim Cushing, New Zealand Man Gets 21 Months In Prison For Sharing Footage Of The Christchurch Shooting, Tech Dirt, (June 19, 2019), https://www.techdirt.com/articles/20190618/15074842424/new-zealand-man-gets-21-months-prison-sharing-footage-christchurch-shooting.shtml.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Olivia Solon, Six months after Christchurch shootings, videos of attack are still on Facebook, NBC News, Sept. 20, 2019 1:58 PM UTC), https://www.nbcnews.com/tech/tech-news/six-months-after-christchurch-shootings-videos-attack-are-still-facebook-n1056691.

[31] Laura Walters, A book defending free speech rejected for fear of hate speech, Newsroom, (Sept. 26, 2019), https://www.newsroom.co.nz/@readingroom/2019/09/26/828890/a-book-defending-free-speech-rejected-for-fear-of-hate-speech.

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