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Controlling Anti-Gay Hate Speech in New Zealand the Living Word Case from Beginning to End

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Controlling Anti-Gay Hate Speech in New Zealand the Living Word Case from Beginning to End Controlling Anti-gay Hate Speech in New Zealand The Living Word Case from beginning to end by Calum Bennachie A thesis Submitted to the Victoria University of Wellington in fulfilment of the requirements for the degree of Doctor of Philosophy in Education Victoria University of Wellington 2009 ii Abstract This thesis explores the two attempts to control hate speech against the lesbian, gay and bisexual communities in New Zealand. It argues that freedom of speech is not absolute and there are methods to control it for the good of society. The thesis examined the primary documents, regarding Living Word, tracing the history of that attempt to control the hatred generated by these videos. It examines what happened during that period and how discourse developed, and provides recommendations for future consideration. I argue the videos in question form part of the continuum of discourse surrounding sexual orientation, and inform, and are informed by, the discourse surrounding homosexuality in wider society. Seen as being at one end of the spectrum of that discourse, they encourage discrimination and hatred against members of the non-heterosexual communities, and may therefore be regarded as hate speech. There is little in New Zealand that addresses hate speech against these communities. There have been two attempts to control this type of hate speech. The first was regarding Paul Cameron’s Exposing the AIDS Scandal (1988) before the Indecent Publications Tribunal, seeking to have the publication ruled indecent as it held gay men and people living with AIDS as inherently inferior to other people, and it demeaned and degraded them. This attempt failed as the Tribunal held that the invective was not concentrated enough to be classed as hate speech. It did, however, provide a definition of hate speech that can be developed in New Zealand law. The second was the case known as the Living Word case, after the appellant. This complaint to the Office of Film and Literature Classification was laid by the Human Rights Action Group (Wellington) against AIDS: What you haven’t been told (1989) and Gay Rights/Special Rights: Inside the homosexual agenda (1993). The videos represent lesbians, gay men, bisexuals and transgender people, and people living with HIV/AIDS, as inferior to other people by reason of their iii sexuality or HIV status, and degrades, demeans and dehumanises them. Therefore, a classification of objectionable was sought. The Office held the videos to be hateful, but felt that those communities were strong enough to withstand the assault these videos made. On appeal to the Film and Literature Board of Review, the Board concluded the video did treat members of those communities as lesser people, and did degrade, demean and dehumanise them and classified the videos as objectionable. The New Zealand distributors of the videos, Living Word Distributors, appealed to the High Court, which dismissed the appeal. Living Word then appealed to the Court of Appeal, seeking to narrow the gateway of material that could be censored and on the grounds the classification interfered with their freedom of speech. The Court of Appeal overturned the earlier decisions, narrowed the gateway of material that could be censored, and remitted the videos back to the Film and Literature Board of Review. The study concluded that hate speech is, in terms of the Films, Videos and Publications Classification Act, injurious to the public good, and ought to be able to be classified. iv Acknowledgements As I have completed this thesis, and having discussed the issues raised within it with a number of people, academic and non-academic, my thoughts and ideas have modulated over time, perhaps becoming more concrete than when the case first came up in 1995. Although I still believe hate speech is something that needs to be controlled, my reasons for seeking that control have changed. Although still concerned about the violence hate speech causes to individuals, I now take a more broad based approach. Among the people I have discussed this with over the years is David Herkt who, while he comes from almost diametrically opposed position, has always been able to put that position well. In doing so, he has allowed me to see flaws in earlier thinking that helped it develop into what, I hope, is a stronger position. I would like to thank the original members of the Human Rights Action Group (Wellington), in particular the late Sister Paula Brettkelly who gave advice on a range of human rights issues, and was involved with the Group until her employment with the Human Rights Commission. To Jeremy, Steve, and Sarah and Jon, and to the others, thank you for your help, and for putting up with me at the meetings we held. I would like to thank my flatmates over the years who have had the patience to put up with me cluttering up the house with files and folders, and also my employer for giving me time off to complete the work required. Finally I would like to thank the staff at Gender Studies at Victoria University, particularly my supervisors, Alison Laurie and Prue Hyman, and, from time to time, Lesley Hall. Their insights and input have been welcomed. v Table of Contents Abstract ............................................................................................................... ii Acknowledgements ........................................................................................... iv Table of Illustrations ......................................................................................... vii Table of Abbreviations ................................................................................... viii Chapter 1: Introduction ....................................................................................... 1 Organisation of the thesis ....................................................................... 3 Chapter 2: Terms and definitions ....................................................................... 6 Freedom of Speech ................................................................................. 6 Marketplace of ideas ............................................................................... 8 Hatred ..................................................................................................... 9 “Degraded”, “dehumanised”, “demeaned”, “hostility”, “contempt”, “disharmony” and “harassment” ........................................................... 10 Gay, lesbian, bisexual, transgender, homosexual, LGBT, and sexual orientation. ............................................................................................ 11 Community ........................................................................................... 12 Human Rights Action Group, (Wellington) ......................................... 13 Hate literature, hate speech ................................................................... 13 “Injurious to the public good” .............................................................. 15 Harm minimisation ............................................................................... 19 Social justice ......................................................................................... 21 “Special Rights” .................................................................................... 23 The “Vox Deus” argument ................................................................... 25 Chapter 3: Literature Review ........................................................................... 27 Chapter 4: Methodology ................................................................................... 34 My status as an insider .......................................................................... 41 Chapter 5: Homosexuality and Censorship in New Zealand to 1993 ............... 45 Chapter 6: The debates around the Human Rights Bill 1992 ........................... 71 Chapter 7: Hate crimes and the Sentencing and Parole Reform Bill 2001 ..... 105 Chapter 8: History of the control of anti gay speech in New Zealand ........... 115 Paul Cameron ...................................................................................... 119 Parkinson and the IPT ......................................................................... 123 vi Chapter 9: The Initial Complaint to the Office of Film and Literature Classification .................................................................................................. 144 Submissions on AIDS: What you haven’t been told .......................... 146 Submissions on Gay Rights/Special Rights ........................................ 149 Subsequent events: .............................................................................. 159 Wellington .......................................................................................................... 159 Christchurch ...................................................................................................... 165 Hamilton ............................................................................................................ 170 Chapter 10: Board of Review ......................................................................... 175 Chapter 11: The High Court ........................................................................... 201 Chapter 12: The Court of Appeal ................................................................... 220 Chapter 13: The Parliamentary Route ............................................................ 245 Films, Videos, and Publications Classification (Prohibition
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