Controlling Anti-Gay Hate Speech in New Zealand: The Living Word Case from beginning to end

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 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.