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28 November 2015 13:02 (South Africa)
Opinionista Jacques Rousseau

Freedom of speech; oh, perish the thought

  • Jacques Rousseau
While the outrage at racist speech is appropriate and justified, we shouldn’t forgot that legal censure is only one option for dealing with hateful speech – and that it might not be our best option.

George Orwell’s novel Nineteen Eighty-Four introduced the fictional language of Newspeak, promoted by the state to make “thoughtcrime” impossible. Newspeak was intended to do so by eliminating words describing freedom or rebellion. If you can’t speak a word, the thinking went, you’d eventually not be able to imagine the concept that word might denote.

Newspeak, in other words, is a mechanism for controlling thought. And for all the harms that hearing hateful words can cause, we should be wary of responding to this problem in a way that allows us to imagine that people don’t have hateful thoughts, simply because we don’t allow those thoughts to be expressed.

There’s no question that South Africa’s recent flurry of conversation around hate speech, sparked by Jessica Leandra dos Santos and Tshidi Thamane, is partly premised on the fact that their words caused significant distress to some. Given our country’s history of racial oppression – and the present in which it still lingers – it would also be naïve to imagine that hate speech is something to simply shrug off.

It’s also true that it’s easier for me to question whether hate speech should be legally proscribed, in that I can’t imagine any speech act as being capable of causing me significant harm. Just as the harms of the oppressed linger, the benefits and privilege of the oppressor also do, leaving few or no wounds for others to poke at if you’re a middle-class white male.

But those who, like Samantha Vice, argue that the privileged should be silent on these issues are wrong. And those who think it appropriate to refer Dos Santos' and Tshidi’s racist speech to the Human Rights Commission are perhaps also wrong. Not because it’s untrue that the words were harmful, but because there’s nothing the HRC can do in these cases besides satisfy our desire for retribution.

The satisfaction of those desires allows for a feeling that we’re taking a stand, and potentially making a difference by influencing those who have racist thoughts. But in the instance of Dos Santos, the retribution and the potential for influencing her thoughts was already present in the mass outcry and activism directed at her employers and sponsors, who have subsequently deserted her. This is as it should be.

When you go a step further, prohibiting hate speech directed at a group (as opposed to crimen injuria, which entails seriously impairing the dignity of another individual), you give the state the authority to influence not only what we say, but also what we think. This is because you can’t think about the content and the motivations behind such speech, nor try to persuade those who have such motivations, without knowing who they are.

As I’ve previously argued, knowing who they are requires letting them speak even though what they say will sometimes be hurtful. As soon as they have spoken, we should of course speak louder, telling them that they’re wrong and that their attitudes are shameful. We shouldn’t employ them, nor invite them to dinner parties. We can refrain from doing these things because we know who they are.

Alongside this exercise of social re-engineering, another form of social change could occur. Not the caricatured view often attributed to advocates of free speech which entails asking people to “simply get over it” when it comes to hateful speech, but rather the development of the social consensus and underlying arguments that allow for us to explain why we are right and they are wrong. Hate speech might continue to be offensive, yes, but it might cease to be quite as traumatic if we openly debate it.

When hate speech is legally proscribed, the motive of enhancing equality and human dignity can be complicated by a measure of paternalism. The paternalism exists in the implicit assertion that you’re not allowed to hear certain things because you’re not equipped to deal with them. One can ask how people will ever become so equipped when those who utter racist speech are locked in a soundproofed room.

This question can be asked without condoning the speech in question, and without any disagreement as to the fact that racist speech should be punished. A deeper question is how we should punish, and whether we do so any more effectively through law than through social opprobrium.

A deeper question still is how we reconcile the value of free speech with other competing values. It’s not at all obvious that free speech should always win this contest, though I do think it should be given a head start. Our country is not a liberal democracy in the sense of respecting individual autonomy as a greater good than all others. But even so, we can and should continue to question the terms on which we want these values to compete, and whether ruling certain views out of order simply rigs the game in favour of one orthodox point of view.

The orthodoxy in question is a more subtle one than anti-racism, which I would hope to be an orthodox view. Instead, it’s the orthodoxy that entails instinctive outrage – sometimes even groupthink – where instead of debating something we simply censor it. Treating free speech as a value at least equal to others doesn’t necessarily impede those other values. But treating it as subservient might well do so, in limiting the range of conversations from which we might learn something. DM

  • Jacques Rousseau

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