The advent of a lawyer membership scheme for the Free Speech Union is a timely occasion for a quick think about the empirical basis for the claim of an erosion of freedom of speech in the profession.
It’s true the Law Society supported increasing the groups of people protected by discrimination and hate speech laws, which I read as support to ensure consistency within a legal scheme that presently offers selective protection to some groups but not others. I do not read its submission as supporting a lowered threshold. To the contrary, near the start of the submission the Law Society said this:
2.2 The right to freedom of speech is an important right, protected by the New Zealand Bill of Rights Act 1990 (BORA). The Law Society stresses the need for vigilance in safeguarding this right and that any limitation on it must be demonstrably justified as reasonable in a free and democratic society.
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2.4 There is a need to be very cautious about deploying the criminal law in this context, and it requires evidence of harm of sufficient magnitude to justify doing so. This means policy- makers need to consider, in relation to each of the grounds of discrimination in the Human Rights Act 1993, whether there is a basis for carrying that ground across to the hate speech provisions in section 61 (and the new Crimes Act provision to replace section 131).
Then there is the Hardie case, a decision about natural justice that keeps being mistaken for a case about freedom of speech. Upon receiving an anonymous complaint about emails that two lawyers sent between themselves, the Standards Committee determined to take no further action because doing so would be “disproportionate to the public interest in pursuing the investigation further” (at [32]). The lawyers’ (justified and upheld) right to be aggrieved at an adverse comment to which they had not had a chance to respond seems to have overshadowed the fact the Standards Committee’s response to the complaint was to end the complaint process before it even had to consider a substantive determination, on the grounds the complaint did not justify troubling the parties further.
These things are against a background of the Lawyers and Conveyancers Disciplinary Tribunal reminding the profession and the public that “[t]he remedy for ill-conceived speech is more speech, not enforced silence”, and that “freedom of expression must be jealously guarded and that lawyers, within limits, must not be fearful of saying unpopular things. If that were to occur, they might be dampened or restricted in their role in advancing the democratic rights of their clients” (Nelson Standards Committee v Grey [2023] NZLCDT 33 at [1] and [54]).
They are also reinforced by the cavalcade of opinion pieces about values, judicial activism and our Supreme Court earlier this year. Hesitancy on the part of lawyers to share unpopular views was not a vice on display. So numerous were the editorials that, even now, neither fish nor chip in this country wants for wrapping.
Vigilance for freedom of speech is a good thing. The profession should not be complacent. And any new group of lawyers is to be welcomed.
The trick is not bursting in to a room full of pilates instructors wielding a defibrillator.
Strictly obiter 