By way of disclosure, I also regard him as a friend, and he was kind enough to write a blurb for my and Caleb Lack’s 2016 book, Critical Reasoning, Science and Pseudoscience. Despite these connections, this note on the book is unsolicited, and entirely sincere.
Vicki Momberg was today sentenced to serve three years in prison (with one year suspended), after being found guilty on four counts of crimen injuria relating to multiple racial slurs she uttered towards black police officers and others on November 3, 2016.
As far as I can determine, crimen injuria is a crime in South Africa, but not anywhere else. It describes serious impairments of the dignity of others, and racist speech can easily be seen as counting as such, at least under certain circumstances.
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.
Following a brief period of goodwill over Christmas and New Year celebrations – where the goodwill was likely just people being distracted rather than benevolence – South Africa’s court of social media has resumed operations.
It’s difficult to know when calling people out becomes persecution or “witch hunt”, and I’ve no doubt that some of you think that it’s permissible, or even obligatory, to condemn racist tweets or Facebook posts in the strongest terms.
Some of you might also think that any attempt to contextualise the offensive statements somehow excuses them. It’s true that providing context can be a means of evading blame, or excusing someone else from rightful blame.
While I would have wanted to submit comment to Independent Media’s panel on what to do about abusive speech on newspaper comment sections, I somehow missed the call for submissions.
Now that their report is out, and on the understanding that this is a continuing conversation, I’ve offered a few comments on the panel’s recommendations – and the underlying issues – below.
TheMediaOnline’s summary of the panel’s findings seems comprehensive and accurate enough to simply quote, instead of doing the work of summarising them myself:
In the interests of freedom of expression, it is desirable to host online comments
However, the constitutional rights of readers and members of the public should not be infringed by such comments
It would be preferable to moderate comments prior to their publication online
Online platforms should be staffed with suitably qualified personnel
If effective pre-moderation cannot be undertaken for any particular reason, Independent should consider closing its comments section
Independent Media should develop guidelines to define unacceptable speech, which take into account legal and ethical considerations, but should not amount to censorship of differing viewpoints
I’ll not be addressing those points sequentially, and might not even get around to addressing all of them. But the free speech issue is one that does have to be addressed, if only to emphasis an important distinction.
A commitment to free expression makes it desirable, rather than necessary, to host online comments. In other words, even if you shut comments down entirely, you are not violating anyone’s right to free expression.
The right to free expression means that you’re not barred from saying something. It does not mean being required to provide you with the platform on which to say it. So, for as long as you can make your point on your own blog, Facebook, Twitter or wherever, your rights are not being violated.
Your opportunities are being circumscribed, yes, but a private entity like a media house has no legal or moral obligation to provide you with an opportunity to comment. In fact, an overall commitment to free expression might mean exactly barring some people from commenting, in the grounds that they provide a chilling effect on the comments of others.
A practical example: if you wanted to have a comment-section discussion on what it’s like to be black and poor in Cape Town, you’d naturally get fewer people who are black and poor commenting if you also allowed white racists to comment.
More problematically: you might also get fewer black and poor people commenting if you simply allowed rich people to comment, in that the target audience might feel some measure of alienation or of being typecast or misunderstood.
I use these examples not to recommend these sort of constraints on comment spaces, but in furtherance of the general point that specific restrictions on who can comment where might, in certain instances, enhance freedom overall. The point is that freedom of expression in the aggregate can sometimes be served by restricting limited instances of free expression.
Legality vs. tone/character
The right to free expression and the extent to which it is (or isn’t) violated is a separate matter from the tone or character of a website. As soon as you allow comments at all, you’re encouraging the formation of some sort of community, and with that comes goals as to what the character of that community should be.
What this means is that even if something is not legally proscribed, you might nevertheless want to prevent it from being said. The Independent report makes much play of the right to dignity in the Constitution, but I’d rather not rest on that, because even if you think the Constitution has it wrong on things like hate speech and dignity, you could still justify restrictions on some speech on your news portal.
You could justify them simply via wanting to have a certain level of discourse on your platform, where you hold characteristic X to be non-conducive to that. X could be excessive sarcasm, or whatever – for example, I didn’t publish a comment the other day simply because it was overly pedantic and argumentative, and added no value to the conversation.
What you choose to restrict and why will be a policy matter for each media house to decide on for themselves, and I make the points above to encourage them to be guided by more than just the law when they deliberate on these matters.
The value of comments
The high-minded rhetoric around why we have comments online (free expression, debate etc.) – at least when it comes from the media houses themselves – is only part of the story, and to my mind a very small part of it.
The value that comments have for them is that eyeballs return to their pages, either to watch the slow-motion car crash of someone being schooled or trolled in comments, or to join in the fun themselves. Either way, you’re on my page rather than a competitors, and ad revenue might increase as a result.
And (we need data here) I’m intuitively completely disbelieving of the idea that there will be a significant difference in traffic if you switch from live, unmoderated commenting to some system that involves comments being posted after a delay of some sort. Of course a delay of days might have an impact, but I doubt that 12 hours or less would.
What to do?
The panel’s report recommends pre-publication moderation, where a) the commenters identity is known to the publisher, even if the comment appears anonymously; b) word-filters flag any potentially offensive comments (for containing words likely to correlate with abusive comments); and c) editorial oversight, where “trained and qualified” editors check the comments before publication.
Step (c) is onerous, and unduly so in not taking advantage of existing mechanisms for knowing who is likely to abuse comment sections and who not. But before I get to the disagreement, let me say where I agree.
Identity: I’m a big fan of people “owning” their opinions, and taking responsibility for them. To put it simply, the fear of reputational harm is one of the ways we are kept in check, and keep each other in check.
So I’m supportive of using the “letter to the editor” sort of model where possible – use your real names, which need to be verified in some fashion, unless there’s some compelling reason why you can’t (where the editor must decide on the merits of that reason, remembering, as I said above, that you have no right to comment).
Word-filters: You’ll perhaps get lots of false-positives here, so sifting through the stuff that’s flagged might involve more work than is necessary. But besides this potentially adding unnecessary overhead, I have no principled issue with it.
Editorial oversight: Making this the norm will be far too expensive and time-consuming (of course related issues, but manifesting as two separate problems). It would also be unnecessary, as we already have ways to crowdsource information regarding who can (in general) be trusted to not abuse comment sections.
For example, here on Synapses I use Disqus, as does IOL, Daily Maverick and the Mail&Guardian. I’ve set each post up with fully moderated comments, but I do have the option of specifying that any given commenter be automatically published without going into moderation.
Any of us who dip our toes into comment spaces online know the names of some regulars. Those regulars who are not abusive can be approved pre-publication. Yes, it will take some time and work to determine who is given this privilege, but in the long-run, it would save having to look at their comments each time.
Of course, you’d want some sort of policy for granting this privilege – say, for example, 5 non-abusive comments gives you that status, and the understanding is that it gets stripped from you once you abuse it.
The level of moderation required to afford people the privilege described above is rudimentary – interns, student journalists in university courses, bored college kids etc. could all do it for a nominal fee, and at the same time flag potentially abusive comments for the attention of a “real” editor.
All of the benefits listed in section 7.2 (page 33) of the report can be enjoyed once you have established this sort of “database” of approved commenters. If you wanted to be more liberal about it, and save even more time, someone with a high reputation score on Disqus can automatically be green-lighted.
One could even consider database of trustworthy commenters, shared across media houses that use the same commenting platform.
And as I said above, if someone sins, you simply delete them – here again, the community can be of assistance, in flagging things for an editor’s attention.
George Orwell’s novel Nineteen Eighty-Four introduced the fictional language of Newspeak, promoted by the state in order 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 naive 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 we might learn something from.
It’s easy to demonise those who disagree with us when discussing emotive topics like hydraulic fracturing, or the ongoing Equality Court case involving Afriforum and Julius Malema. But while it is sometimes true that sincerity takes a back seat to ideology or fanaticism – or even kickbacks from corporate lobbyists – it’s far more often the case that demonising an opposing point of view serves merely to reinforce your own confidence that you’re right and everyone else wrong.
The Equality Court has postponed the hate speech case against African National Congress Youth League spokesperson Floyd Shivambu. They should not however be hearing this case at all – regardless of the fact that Shivambu appears to be a sexist and a racist, and that his speech might be hurtful towards Carien du Plessis or other journalists he has targeted in the past.