Freedom to offend?

In the wake of the Charlie Hebdo shootings, much has been written about the importance of freedom of speech. And many here in New Zealand have waxed lyrical about just how much freedom of speech we have here. It’s enshrined in s14 of our Bill of Rights Act, which states that:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

“Free speech includes the right to offend others and the right of others to denounce you in equally offensive terms,” trumpets a Dominion Post editorial. Which is all very well in principle, but is that really true in practice in New Zealand?

Not so much, apparently.

Lets take a look at at s4 of the Summary Offences Act 1981. Section 4(a) makes it a criminal offence to, within view of any public place, behave in an offensive manner. Likewise, s4(b) criminalises someone who in any public place, addresses any words to any person intending to insult or offend that person.

Of course, s4 of the Summary Offences Act must, where possible, be interpreted in a way consistent with our right to freedom of expression. So what is one to make of last year’s case involving the Queenstown police constable who was convicted of using offensive or insulting language, after she racially abused a Malaysian taxi driver?

Constable Jenny McNee, while pissed as a chook, told a taxi driver to:

“Fuck off to India, you come here and get all the Kiwi jobs. Eat your fucking curry and fuck off to India. This is a Kiwi job.”

Now that’s certainly a fairly offensive and insulting thing to say to a guy who’s just trying to earn a living. In addition to her getting his nationality wrong. Should it be a criminal act though? In my opinion, certainly not. Individual concepts of what is offensive or insulting are frighteningly diverse. Make a derogatory comment about Lorde to one of her devoted fans and you’ll see what I mean…

If “[f]ree speech includes the right to offend others”, then s4 of the Summary Offences Act needs to be drastically rewritten. In the meantime, the idea of a blanket freedom to offend is somewhat hyperbolic…

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