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12 Auckland U. L. Rev. 71 (2006)
Truth, Civility, and Religious Battlegrounds: The Contest between Religious Vilification Laws and Freedom of Expression

handle is hein.journals/auck12 and id is 75 raw text is: Truth, Civility, and Religious Battlegrounds:
The Contest Between Religious Vilification Laws and
Freedom of Expression
JOEL HARRISON*
I INTRODUCTION
As part of the response to the Court of Appeal's decision in Living Word Distributors
Ltd v Human Rights Action Group Inc Wellington,' the New Zealand government
announced a general inquiry into hate speech in August 2004.2 Public awareness of
the inquiry was heightened as vocal debate and outrage was raised over the
desecration of Jewish cemeteries, the sending of offensive letters to Muslim
communities, and the barring of Holocaust denier David Irving's entry into the
country.3 While the Human Rights Commission advocated extension of the grounds
of criminal vilification beyond racial groups,4 the overwhelming majority of
submissions were opposed to implementing a new, general hate speech law, leading
Chairwoman Yates to label the inquiry, despite the importance of the subject, a little
luxury.5 In other jurisdictions however, prohibition of religious vilification now has
the force of law. This article looks at two instances: the Racial and Religious
Tolerance Act 2001 (Victoria, Australia) and the Canadian Criminal Code.6 These
Acts prohibit inciting one's audience to hatred on the basis of a person's religion. In
doing so, the Acts adopt two propositions. First, the argument that hate speech
insidiously corrupts listeners by reinforcing a narrative that denigrates the self-worth
of minorities, and secondly, the view that such speech should be prohibited in order to
recognise the infliction of psychological harm on the target group.7   Prohibition
* BA/LLB(Hons); Judge's Clerk, Court of Appeal of New Zealand. My thanks go to Professor Paul
Rishworth for supervising the dissertation on which this article is based and for his thought-provoking
lectures. Thank you also to Eesvan Krishnan, Nicholas Whittington, and Kate Gillies for their helpful
comments on earlier drafts.
' [2000] 3 NZLR 570 (CA) (Living Word). In Living Word the Court ruled that the Film and
Literature Board of Review had erred in law when banning two religious videos expressing
unfavourable views on homosexuality.
2Have Your Say: Inquiry into Hate Speech (2004) House of Representatives <http://www.clerk.
[arliament.govt.nz/programme/committees/submissions/gahatenq.htm> (at 15 August 2006).
See Saxton, Where to draw the line on hate-speech law, New Zealand Herald, (Auckland, New
Zealand, 22 October 2004). Available from <http://www.nzherald.co.nz/print.cfm?objectid=3602837>
(at 8 January 2006); Cowards in our midst The Dominion Post (Wellington, New Zealand, 16
September 2004) 4. All websites accessed at 15 August 2006 unless otherwise stated.
4 Submission to the Government Administration Committee into the Inquiry into Hate Speech (NZ)
(2005) Human Rights Commission [2.22]. Available from  <http://www.hrc.co.nz/homeihrc/
newsandissues/submissiontotheinquiryintohatespeech.php>. Sections 61 and 131 of the Human Rights
Act 1993 already prohibit racially motivated hate speech.
5 Murphy, We need no law to define 'hate' speech, New Zealand Herald, (Auckland, New Zealand,
19 March 2005). Available from <http://www.nzherald.co.nz/print.cfm?objectid=10116130> (at 8
January 2006).
6 Reference will also be made to some of the controversies surrounding the introduction of the Racial
and Religious Hatred Bill (UK) (now the Racial and Religious Hatred Act 2006 (UK)).
' See especially the influential article of Matsuda, Public Response to Racist Speech: Considering the
Victim's Story (1988-1989) 87 Mich L Rev 2320. See also Delgado and Yun, Pressure Valves and
Bloodied Chickens: An Analysis of Paternalistic Objections to Hate Speech Regulation (1994) 82 Cal

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