I have a term for it: Righteous prohibition.
I define that as the willing – or enforced – suppression of information because people believe it may have negative effects. It ranges from preventing a man from whipping up a lynch mob to neutralising a language because specifics may make a small number of people feel excluded.
All of which goes to show that the meanings of a word like ‘righteous’ ranges from undeniable good to the pinched features of pernicious political correctness.
It’s about time we had a good talk about righteous prohibition.
One reason we should talk is the imminent move by the Labour government to introduce a bill re-defining hate speech and the penalties for uttering or publishing it. Already the ACT Party has launched an anti hate speech law campaign. Its leader, David Seymour, wrote a letter to Justice Minister Kris Faafoi in which he said: “The nature of hate speech laws is inherently subjective and interpretations of what is and what is not threatening, abusive or insulting changes depending on context, time, and prior relationships among many other factors…This makes the nature of any state sanctions difficult to interpret and apply which, in turn, renders it more arbitrary than not when it is.”
Paraphrased, that means legislators are hard-pressed to draught laws that define hate speech in such a way that society is protected while its rights and freedoms are held intact.
Unfortunately, hate speech is what we want it to be. The devil is in the definition.
New Zealand politicians agree that freedom of expression is not an unbounded right. We have numerous laws that put boundaries on acceptable speech and some that simply serve the purposes of politicians themselves. I enumerated some of them in a short book titled Complacent Nation. However, beyond agreeing that there is no place in a civil society for hate speech such as the vituperative outpourings in the Christchurch mosque shooter’s ‘manifesto’, politicians have sharply divided views on where the ‘hatred’ in ‘hate speech’ ends. Seymour’s letter to Faafoi conceded that “the intention of bringing about a kinder world with more respectful public discourse is a noble one” but he disagreed on the means of achieving it.
We should not be surprised that the devil is in the definition. Hatred is such an open-ended word. The Concise Oxford Dictionarydefines it as ‘intense dislike’. The even smaller Collins Gem Dictionary says it is “extreme dislike” and “active ill-will”. Based on those definitions, I can hate racism but, apparently within the bounds of correct use of English, I can also hate sauteed calf’s liver.
The Cabinet paper promoting new legislation proposed a definition of hate speech as “intending to stir up, maintain or normalise hatred…through threatening, abusive or insulting communications, including inciting violence, made by any means”. Potentially, that is a wide embrace that lacks the limiting test of having to demonstrate harm.
The concept of harm is central to the hate speech laws in several countries and, frankly, it’s not a bad test. It traces back to 19thcentury utilitarian philosopher John Stuart Mill whose harm principle suggests people should be free to act however they wish unless their actions cause harm to somebody else.
That test is easy to reach when hate speech has, say, incited an assault or smashed window. It is more difficult in the absence of physical harm but by no means unachievable. New Zealand-born legal philosopher Jeremy Waldron characterises one of the harms in hate speech as an assault on dignity, on someone’s status as a member of society in good standing. I believe that is an excellent test for non-physical harm in hate speech.
When, as intended, the hate speech proposals are taken out for public feedback, I hope the argument for a harm test is strongly made. It should not be seen as watering down the proposed law or providing a loophole through which the unworthy can slither. Rather, it provides the check on power that hate speech laws must contain.
And existing checks on power are missing from the planned changes.
Faafoi proposes that hate speech as an offence be taken out of the Human Rights Act and put in the Crimes Act. The stated reason is to demonstrate the seriousness with which the matter is to be treated. It would also allow penalties to be increased to the point where trial by jury can be elected (a maximum of three years imprisonment is proposed). Under the present Human Rights Act law, the approval of the Attorney-General must be given for any prosecution. There is no mention in the Cabinet paper of the transfer of that section to the Crimes Act and, without it, no check on the power of Police to prosecute.
Also apparently missing from the proposed law is the current exemption that allows news media to report on those who are engaging in hate speech. It is vital that the public are aware when hate speech is being disseminated in their midst but, without an explicit exemption, there is a danger that media could be charged as accessories by reporting the fact.
So we need to talk about righteous prohibitions.
However, we also need to talk about them because our language is falling victim to the ‘righteous’ indignation of those who confuse offence with harm and take it upon themselves to be offended on behalf of others.
Journalists, for example, are being criticised for the use of language that may offend certain groups in society but which falls well short of Waldron’s assault on dignity.
The latest example to get me in hot water was a public service announcement on the rollout of the Covid-19 vaccine which stated: “Based on how the vaccine works, experts believe it is as safe for pregnant people as for everyone else.” I made the mistake of questioning why the announcement had used the word “people” instead of “women” and rashly pointed out what I thought were biological certitudes.
I was immediately taken to task for failing to acknowledge that ‘women’ would exclude those transitioning from female to male or those who identify as non-binary. None of the criticism, I have to say, appears to have come from members of the LGBTQ community. I’m sure, however, they were well-meaning people who felt they needed to uphold the interests of that community. And I was left thinking that prohibited speech must include any words that are not all-inclusive (for the avoidance of offence).
Is that why we are seeing an increasing number of media reports, particularly sourced from Police, that tell us that ‘a person’ has been killed/injured/assaulted/arrested? In my newspaper today, for example, I was told “A member of the public was taken to hospital after their car was hit by a driver fleeing police…” However, righteous prohibition doesn’t seem to have permeated the entire force. Alongside it was a Police-sourced story saying “A man [unnamed] has been charged with murder’ and another (similarly sourced) saying “A man has died after being injured…” Would the world stop turning if the first story had informed me whether the member of the public was a man or woman? Of course not, and there was no valid reason for not doing so, except that it wouldn’t be very PC.
I believe it was the result of our language becoming sterilised, as more and more develop what I might call idiomatic mysophobia or a pathological fear of the use of certain contaminating words in case someone might have their feelings hurt.
Saying ‘man’ or ‘woman’ does not amount to a harmful failure to acknowledge those who nominate another gender identity. Frankly there are far more serious forms of discrimination against those groups and individuals that should concern us.
It is entirely appropriate, for example, that the proposed changes would amend the prohibited grounds of discrimination under the Human Rights Act to include a separate ground of “gender, including gender identity and gender expression” and amend the ground of sex to explicitly include sex characteristics or intersex status. Those groups have for too long had to bear hate speech that met Waldron’s test of assault on dignity, to say nothing of incitement to actual harm.
It is equally appropriate for journalists to accept and report whatever gender the subject nominates. Last week, for example, actor Eddie Izzard reaffirmed the use of ‘she’ and ‘her’ as preferred pronouns. Good on her.
It’s also okay to talk about ‘pregnant women’.