The Press Ombudsman received complaints regarding the piece by “Shelley Garland” published by the Huffington Post (who also asked him for comment), and his ruling on the matter was released yesterday.
The ruling is terrible, in both its reasoning and in its consequences.
It is terrible in its consequences first because the HuffPo’s editor, Verashi Pillay, was made to feel obliged to resign, and the career of a promising editor has now been interrupted. Despite her missteps (here, and in the Maimane case), and their severity, this incident should not have led to her resignation.
The Huffington Post was deceived, and Pillay revealed her sympathy with the content of the deceptive blog post in her defense of it. The blog post should never have been taken this seriously, but even once it was, all we should take away from this incident is a) that oversight regarding content should be strengthened; and b) that the HuffPo should be more honest about their ideological position, rather than pretending to aspire to neutrality.
But this was never a matter for the Ombud. It is perfectly permissible – and even desirable – for us to have the freedom to challenge moral and legal conventions, for example the idea of a universal franchise.
Free speech limitations cannot extend to enforcing groupthink, even in a country that has only recently achieved full democracy, and even though it was won at a terrible cost.
The ruling is also terrible in terms of the precedent it sets for what counts as “hate speech” in the media, which is where the Ombud’s poor reasoning is exposed.
I’ve said before that I’m not sure that “hate speech” should even exist as a legal justification for curtailing freedom of speech. But even if it should be, we need to be very careful to maintain a clear distinction between hate speech, which is illegal, and hateful speech, which – while unpleasant or even grossly offensive – is still permissible (whether or not it’s advisable).
It is that distinction (between hateful speech and hate speech) that has led to my defending the right to express various odious or offensive expressions over the years, whether from Zapiro, or Floyd Shivambu, or Shelley Garland.
If “hate speech” becomes “the things we don’t like to hear”, then free speech is fully at the mercy of political whim, or even worse, the prevailing mood of Twitter on that day.
In my comment on the Floyd Shivambu vs. Carien du Plessis case, I highlighted the conflict between how the Bill of Rights and the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) define “hate speech”.
While the Garland blog might constitute hate speech under the latter (though I don’t think it does), the Ombud’s ruling only refers to the former (as well as to the Press Code). The Ombud initially says:
This means that hate speech can be described:
· first and foremost, as material that amounts to propaganda for war, incitement of imminent violence, or advocacy of hatred that is based on race and gender (etc.), and that constitutes incitement to cause harm (Section 5.2); and
· as discriminatory or denigratory references to people’s race, gender, etc. (Section 5.1).
The first bullet is a verbatim quote from the Bill of Rights. As per a point I make in the Shivambu piece, the “and” that I’ve highlighted above is crucial. Calling for white men to lose their right to vote is not “incitement to cause harm” (even if it would be harmful to them to lose the vote).
It’s an expression of a view, and a motivation of a policy position. Some white men might even voluntarily endorse the policy position in question, finding the reasoning persuasive. It’s an incitement to debate, not an incitement to harm, and that debate could, in my view, quickly show the idea to be one that should be rejected. It’s not a view that we need to be protected from.
The Ombud later says
I accept that the text itself did not directly propagate violence – but if the actions it advocates were ever put into practice, they might well lead to just that.
If so, the fault would then be on those who perpetrated the violence. The only responsibility of the author – at least in terms of the Bill of Rights – is to avoid incitement of imminent violence, rather than some hypothetical consequence at some future point in time.
As for the second bullet, the error here becomes clear if we consider the full text of clause 5.1, and then below that, the Ombud’s commentary on it:
Except where it is strictly relevant to the matter reported and it is in the public interest to do so, the media shall avoid discriminatory or denigratory references to people’s race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth or other status, nor shall it refer to people’s status in a prejudicial or pejorative context.
I do not believe for one moment that such discriminatory and denigratory opinions can be described as being in the public interest – especially given this country’s history of its struggle for liberation. To disenfranchise a section of the population once again would indeed represent a huge step backwards – one that may have some serious unforeseen consequences.
Yes, to actually disenfranchise white men might well be a huge step backwards. But is talking about it not permissible? Furthermore, if it is true that white men are an impediment to that very same, and ongoing, struggle for liberation, why is talking about it not in the public interest?
Even if it’s false, as I believe it is, talking about it can still be in the public interest, given that we can ventilate the arguments and in doing so, demonstrate why it’s false.
So in short, I regard this ruling as demonstrating deep confusions about both public interest as well as hate speech. I’m furthermore astounded at the sensitivity of the complainants, who feel threatened enough by an opinion piece in an inconsequential online publication that they need to rush for legal protection.
Hateful or bigoted speech or stupidly offensive speech is not the same thing as hate speech, and it’s okay to talk about things that make you uncomfortable. Or, at least to let other people do so, if you’re too fragile to engage in those conversations yourself.
This ruling needs to be challenged. With Pillay having resigned, we can only hope that someone else steps up to do so. Because if nobody does – and with the Hate Speech Bill also on the horizon – we might soon find that the mere possibility of causing offense means that you’d be well-advised to not speak at all.
Unless, of course, you’re saying things that the State wants you to say.
Addendum, April 25 – the ruling is being appealed.
Also published on Medium.