Speech control laws in South Africa and around the world are sliding down a slippery slope to censorship. This is going to cause more harm than good.
After last year’s Constitutional Court ruling in Qwelane v South African Human Rights Commission and Another, it is no longer a criminal offence to publish, propagate, advocate or communicate words that are intended to be ‘hurtful’ to a person.
Which is great, because now I can call Qwelane a bigoted idiot.
The ConCourt said nothing about the fact that the remainder of clause 10 in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 is far broader than the Constitutional provision it is meant to give effect to.
That provision says that everyone has the right to freedom of expression, but that it does not extend to propaganda for war; or incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.
It remains a criminal offence to say something ‘harmful’, or to ‘incite harm’, or to ‘promote or propagate hatred’ on a much longer list of grounds: race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; or any other ground where discrimination based on that other ground causes or perpetuates systemic disadvantage, undermines human dignity, or adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on one of the aforementioned grounds.
And we have seen how broadly this clause has been applied, with people serving jail sentences merely for using bigoted slurs in angry rants.
The pending Prevention and Combating of Hate Crimes and Hate Speech Bill creates a duplicate crime, based on a slightly different but equally lengthy list of grounds: age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality, migrant or refugee status, race, religion, sex, which includes intersex or sexual orientation.
Backdoor for ‘hurtful’
What ‘harmful’ means is not defined in either the Equality Act or the Hate Crimes Bill, but the latter permits as evidence a ‘victim impact statement… which contains the physical, psychological, social, economic or any other consequences of the offence for the victim and his or her family member or associate’.
So by a backdoor, ‘hurtful’ will really be back on the table, since hurtful speech could be construed to cause psychological harm. Worse, you can be convicted of a crime merely on the basis that someone claims it caused them psychological harm, because whether it did is not objectively provable or disprovable.
Publicly mocking religious people, for example, is right out, and so is making fun of people over half-baked magical beliefs.
Criticising ‘toxic masculinity’ constitutes hate speech under this definition, because it might cause psychological trauma for members of particular cultures.
Making fun of the over-the-top campness or denouncing the crude public displays of some participants in Gay Pride parades would be verboten, even if you support gay demands for equal rights and non-discrimination, and even if you are gay yourself.
Global issue
Elsewhere, the UK government has tabled an Online Safety Bill, which also relies heavily on the notion of harm.
It defines harm as ‘psychological harm amounting to at least serious distress’, and wants to require internet platform companies to restrict content where there is, in some risk-assessor’s wise opinion, ‘real and substantial risk that it would cause harm to a likely audience’ (by Britain’s very prudish standards), where the sender ‘intended to cause harm to a likely audience’, and the sender has ‘no reasonable excuse for sending the message’.
So, calling the alt-right psychologically disturbed would be problematic. Telling anti-vaxxers that they have blood on their hands is a no-no. Insulting politicians? What constitutes a ‘reasonable excuse’?
The bill goes further by prohibiting sending information that the sender knows to be false and is intended to cause non-trivial psychological or physical harm to a likely audience.
And who is the arbiter of truth? Who is to say whether a particular sender knew their message to be false, whether they had intent to cause harm, or whether they’re up to speed on the latest bulletins from the Ministry of Truth?
Even the phrase ‘harmful to children’ is fraught with difficulty. There are likely significant differences in how parents view different kinds of content.
Some may consider gratuitous violence and glorification of guns to be extremely harmful, but aren’t particularly concerned with showing the human body or personal intimacy.
Others might believe that seeing an uncovered breast would corrupt their little one for life, while watching a violent vigilante on a mass-murder spree to avenge the death of his dog is just a little harmless fun.
Subjectivity
The danger lies not only in the fact that speech perceived as ‘harmful’ might very well be true or necessary, but that there is no objective way to determine whether harm has even occurred, or if it has, whether it was intended.
If, as would be the case under South Africa’s Hate Crimes Bill, harm can be retroactively established by means of a ‘victim impact statement’, we’re in very dangerous territory, where an action that might not appear to be criminal becomes criminal in retrospect, merely on the say-so of someone who, for whatever reason, feels aggrieved.
The definition of harm, or trauma, or distress, is not only entirely subjective, but it is also a moving target. It changes as social movements wax or wane. It isn’t even consistently applied, but tends to be claimed more often by people of a given political persuasion.
Is ‘cultural appropriation’ a signal that one appreciates the norms and customs of another culture, thereby strengthening inter-cultural ties, or a grave insult that traumatises those whose culture is being mimicked, and should therefore be a criminal offence?
Is merely mentioning a slur, in order to discuss its impact, a permissible subject of public debate, or is it an unforgivable affront to the usual targets of the slur, and therefore criminal?
We have seen many cases, especially on university campuses, where would-be speakers have been cancelled, or books have been banned, merely on the grounds that the ideas they embody might cause ‘psychological harm’ to students bereft of even the most rudimentary intellectual defences.
This is absolute nonsense. Even the most offensive content – think Mein Kampf or De Sade or eugenics texts – should be publicly available and publicly debatable.
Collective harm
That isn’t to say that information cannot cause real harm, or real trauma. It absolutely can. But that can never be sufficient grounds for prohibiting speech.
What constitutes individual harm or trauma is impossible to define. It is subjective, and criminalising something like ‘psychological harm’ is extremely vulnerable to abuse. Malicious actors will entrap innocent people under such laws.
Conversely, the collective harm to public discourse of letting government or private-sector censors restrict our access to information is far greater.
To put this in a more tangible perspective, it isn’t up to a government to determine what is true or false, or what is harmful and what is not.
If I don’t want to hear antivax nonsense, it is up to me to block antivaxxers. If I don’t want to hear Donald Trump, it is up to me not to follow him on social media.
If I don’t want to hear critical race theorists guilt-trip me about the colour of skin I was born with, it is up to me to block them.
If I don’t want to hear racism, it is up to me to block, or ignore, or debate, or insult, or belittle racists.
Unlike physical violence, speech can only harm us if we let ourselves be harmed. We should demand to be in control of what we listen to, lest we allow censors to determine what we may hear.
[Image: Michael Dziedzic on Unsplash]
The views of the writer are not necessarily the views of the Daily Friend or the IRR
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