The unpublished column that got a reply

After a conversation with me about an (ironically) unpublished column of mine, Phillip de Wet wrote what amounted to a reply, which was published here. I wrote the column early in March, before the Equality Court judgement involving Julius Malema. I wholeheartedly agree with the newly appointed Sunday Times editor, Ray Hartley, on that ruling: Hate speech ruling against Malema a blow to free expression.

Since his column was, in effect, a response, I thought it worth publishing my original column here. Is it provocative? Yes. Will it rile up people who don’t read past the headline? Probably. Does it condone hate speech? Not at all. But there’s a long way between disapproving of speech and asking the government to ban it.

Why Holocaust denial should be legal

Because an ideal, a thought, once caused the Holocaust, and remains deeply offensive to all reasonable people, expressing it is now illegal. This is dangerous.

Laws against hate speech rob a society of essential liberty. If offensive speech is not protected, what is the point of protecting speech at all? Who needs protection for speech with which everyone agrees?

Take, for example, laws that forbid what is known as “holocaust denial”. This takes many forms, from questioning the numbers of deaths in Nazi death camps, to denying that the Nazis did anything wrong at all.

Such ideas are, by all accounts, factually wrong. Moreover, they are deeply offensive not only to survivors of the Holocaust, but to all reasonable people who despise oppression and murder. Despite their offensive nature, however, expressing them should be legal.

Let’s consider some more cases.

Even if you overlook the suffering of poverty and starvation, and count only direct deaths resulting from incarceration, torture, and executions, Stalin killed more people than Hitler did. One does not have to have suffered under the yoke of Stalinism to consider the communist ideology that drove him reprehensible and dangerous. Stalin was not an anomaly who misunderstood communism. History has shown time and again that if you impose a system in which people are required to work for the benefit of others, the only logical consequence must be coercion, imposed by state violence. Dictatorship and revolutionary “purges” are natural consequences of the communist ideal.

Would you ban communism?

Some people believe that lesbianism is a deviant condition which can be “cured” by introducing misguided souls to intercourse with men. As a consequence, women get raped just for being lesbian. This crime is truly awful. It is more than just discrimination on the basis of sexual orientation. It violates every standard of decency. The crime should be punished severely by society.

However, should it be illegal to express the deluded opinion that encourages the crime?

Some people believe that their religion is the only true religion, and that their god has commanded them to convert others, by force if necessary. Non-believers who refuse to repent and follow religious strictures may be punished by ostracism or even death. This view is current in parts of the Muslim world, and is not unknown to history in other religions either. Remember the fear, surprise, ruthless efficiency, fanatical devotion to the pope, and all the other attributes of the Spanish Inquisition.

Should the state ban Christianity? Islam?

Blasphemy is deeply offensive to many millions of people. It has been criminalised in many societies throughout history, and even into modern times.

Should blasphemy be a crime? And if religious doctrine holds that the Earth is the centre of the universe and man was created from dust, should we declare our Galileos and our Darwins to be blasphemous for expressing unpopular and offensive ideas?

Many people would be inconsistent in their answers to these questions. This raises the question: is there a line where freedom of expression ends, and criminal speech begins?

I could not draw such a line. Could you? Can anyone?

Is advocacy of violence a bad thing? Well, that depends. Is it wrong to denounce religion in general, or a particular manifestation of it? Is it wrong to preach a religion when some consider it to be intolerant, backward, offensive or outright dangerous? Is it wrong to claim homosexuality is sinful, a physical or psychological deviance, when your perfectly legal religion says it is? Is it wrong to advocate communism or socialism? Is it wrong to denounce fascism? Or to advocate it?

Offensive speech is often worthy of our contempt. But isn’t it even more contemptible to jail someone for expressing a thought, an idea, however offensive it might seem?
John Stuart Mill, in his 1859 treatise On Liberty, wrote: “We can never be sure that the opinion we are endeavouring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.”

He elaborated: “The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collusion with error.”

The only form of censorship that is morally justifiable is the right not to listen. Have you ever heard someone say, “That should be banned, because it might be harmful to me?”

If a questionable book or speech or idea prompts someone to commit a criminal act, surely the crime is already prohibited and punishable? How can you hold someone responsible for expressing an idea that may or may not, depending on interpretation, have led someone else to commit a crime, when that person was free to make up his own mind?

There is a temptation to argue that the crime might have been prevented, and if it was not, that it is too late to act against the criminal after the fact. But in what conception of liberty does one punish someone before a crime has been committed (or one can be certain that it is imminent)? Where do you draw the line in that case?

The only person whom society can be sure will not commit a crime is a dead person – or, equivalently, a man in chains. Would we agree to incarcerate a poor man because he might steal, or an angry man because he might commit assault, or a lonely man because he might rape? So why punish a deluded man for speaking delusions, on the flimsy premise that someone might hear him, believe him, and act upon the delusional thought? That way lies a nightmare of Orwellian proportions.

Noam Chomsky once said: “If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.”

Why protect inoffensive speech, after all? Denying the right to express a thought, however offensive, takes us into dangerous territory where authoritarianism and fascism take root.

Our constitution forbids, among other forms of expression, hate speech and advocacy of war. Is it wrong to express hateful views about hateful people? Is it wrong to call for war to defend one’s own country, or come to the aid of an allied victim of aggression?

Who is to say what constitutes hateful speech or warmongering? A government?

Governments – most particularly authoritarian regimes that in fact practice censorship – have been guilty of permitting and promoting the most awful ideas of all. Apartheid, for example, was declared noble and good by a government. Advocating discrimination, theft, assault or even murder against Jews, or intellectuals, or capitalists, or Christians, or heathens, or homosexuals, have all been condoned at one time or another by governments.

So who then? Society?

Anyone is, of course, free to denounce Holocaust denial, racism, warmongering, advocacy of crime, or any other ideas that seem offensive and wrong to their mind. As Mill explained, countering bad ideas with good ones is the path to progress and wisdom.

However, social censorship can be just as dangerous and corrosive as government censorship. Self-censorship creates a stultifying atmosphere in which ideas that do not conform to the norms and ideals of majority opinion are suppressed. It imposes strictures of political correctness, in which mindless optimism becomes the only acceptable form of expression. It makes ideas – and the media – servants of the political aims of society, and ultimately of government itself. It rejects critical thought by denouncing it as unpatriotic, negative, anti-social, or injurious to whatever political notions are in vogue at a particular time. Ultimately, it suborns speech to the dictatorship of the proletariat no less than if it had been suppressed by an authoritarian government.

Criminalising offensive speech – even in the hope of preventing consequent crimes – sacrifices an essential liberty of society. Worse, since it cannot suppress the unspoken idea that underlies the expression, it purchases only an illusion of safety.

Instead of making victims and oppressed saints out of those who hold offensive views, they should be encouraged to express them. Creating laws that suppress offensive ideas not only causes them to fester in secrecy, but it creates the perception of credibility. If the idea is false, why would society lack the confidence and conviction to counter them in the broad light of day?

Let people speak their minds, and let their ideas stand or fall in the open. Let the encounter with reason, logic and moral conviction remove the poisonous sting of hate speech.