Efforts to shut down hate speech risk harming the very people they’re designed to protect, says a US activist and writer.
When Wellington City councillor Nīkau Wi Neera learnt that a conference featuring Brian Tamaki and other speakers critical of transgender rights was being held at the capital’s new convention centre, he quickly took to social media, writing that the “Unsilenced” summit organised by Inflection Point NZ was “utterly unwelcome”. It would traumatise the trans and queer community, he wrote, and he and his colleagues would do everything to prevent it.
Wi Neera (Ngāti Toarangatira, Kāi Tahu) hoped that a health and safety assessment under way would determine that a protest against last month’s event could pose a risk to convention centre staff, justifying its cancellation.
A few weeks before the conference, a free speech panel at Te Herenga Waka – Victoria University of Wellington was postponed because of protests about the alleged right-wing political views of two of the panellists. An editorial in the student newspaper Salient argued that because the event was to be held in the university’s hub, where people might overhear it while they were moving between classes, the university was placing its students in danger. “If something harmful or hateful is said – even if it’s fact-checked and shut down immediately afterwards – it can’t be unsaid, ever.”
Whether health and safety should be grounds for censorship is an increasingly divisive question. Free speech advocates see it as an excuse for activists and ideologues to shut down speech they simply don’t like. But for an increasing number of minority groups and social justice advocates, some forms of speech are clearly hate speech and they create a culture of hostility towards vulnerable minorities that can lead directly to physical violence. How can we tell the difference between legitimate complaints of hate speech and opportunistic attacks on legitimate speech?
US activist, journalist and author Jonathan Rauch refers to the anti-hate-speech camp as “kindly inquisitors”. In his book of the same name, he argues that they’re ultimately harming the minorities they hope to protect. A contributing writer to The Atlantic and a senior research fellow at Washington’s Brookings Institution – often described as the world’s most influential think tank – Rauch was a pivotal figure in America’s gay marriage debate: “I’m a member of the three most oppressed minorities in history,” he told the Listener: “gays, Jews, atheists – the trifecta.” He visited New Zealand as a guest of the Free Speech Union, whose chief executive, Jonathan Ayling, was one of the potentially harmful voices on the Victoria University panel.
Rauch published Kindly Inquisitors in 1993 but it has enjoyed a resurgence in recent years as free speech became a polarising political issue. “No social principle is more foolish and dangerous than the rapidly rising notion that hurtful words and ideas are a form of violence or torture and that their perpetrators should be treated accordingly,” Rauch wrote. “That notion leads to the criminalisation of criticism and the empowerment of authorities to regulate it.”
Free speech wins
When Rauch was born in 1960, the society around him was virulently, violently homophobic. Gay men were routinely subjected to assault, sometimes murder, and these crimes were rarely punished. It was a low-key terrorist campaign tacitly endorsed by society, Rauch claims.
During the 1950s, American psychologist Evelyn Hooker conducted a series of experiments to test the mental health of gay men. She carried out standardised psychological tests across groups of homo- and heterosexual men and asked independent experts to conduct blind evaluations of the results. They failed to find discrepancies between the two groups. Hooker’s findings went against the overwhelming scientific consensus of her time, suggesting something deeply offensive to her society: that homosexuality was natural and normal. But over time, her findings were accepted by her field and her research contributed to the removal of homosexuality from the American Psychological Association’s canonical Diagnostic and Statistical Manual of Mental Disorders, aka the DSM.
That happened in 1974. In 2010, Rauch married his partner, Michael, at a ceremony in the district of Columbia. By 2022, a large majority of Americans supported same-sex marriage. It was an astonishing social transformation and he believes it was made possible by the norms and institutions organised around the constitution of freedom. “It was an example of science’s most unique strength: its ability to self-correct.” And it was work that could not have been published if speech was limited on the grounds of social harm and minimising offence.
Rauch compares the social progress made via science and open debate with the history of the use of speech laws to harass minorities. When the UK adopted hate-speech provisions in 1965, the first conviction was a black man who cursed a white police officer; when a Canadian court found in favour of the restriction of pornography, the precedent was immediately used to shut down Canada’s oldest gay bookstore. “All around the world, authorities quite uncoincidentally find that ‘hateful’ and ‘unsafe’ speech is speech that is critical of them.”
Rauch argues that the central mission of the “kindly inquisitors” – wiping out bias and hate – is impossible, and that their means of accomplishing these goals are self-defeating. “In practice, eliminating prejudice through central authority means eliminating all but one prejudice – that of whoever is most politically powerful.”
And when we assume ourselves to be correct about some burning moral issue, we’re overlooking one of the more tragic aspects of the human condition: our tendency to be wrong about just about everything.
Bugs in the system
A bat and a ball cost $110. The bat costs $100 more than the ball. How much does the ball cost? Your intuitive answer – if you haven’t encountered this puzzle before – is probably $10, and it is incorrect. The question was designed by the psychologist Shane Frederick to demonstrate the phenomenon of cognitive bias: systemic bugs in human cognition. All of us make mistakes in comprehension and judgment all the time – not because we’re stupid or have bad values, but because our brains are evolved systems and they have persistent flaws. (In the above equation, the ball is $5).
Cognitive psychologists have documented over 100 different forms of human bias. Among the most conspicuous are confirmation bias: we believe new information that reinforces our existing beliefs and discount information that challenges them. Groupthink compels us to go with social acceptance and group harmony over upsetting the status quo by challenging its assumptions. Nobel Prize-winning psychologist Daniel Kahneman, who carried out much of the fundamental work in this field, cited overconfidence bias – excessive belief in our own knowledge, judgment and abilities – as the most significant and persistent form of bias. It “leads governments to believe that wars are quickly winnable and capital projects will come in on budget despite statistics predicting exactly the opposite,” he told the Guardian.
Rauch’s most recent book, 2021′s The Constitution of Knowledge, argues that liberal, “reality-based” communities such as science, journalism and law are frameworks that compensate for this universal human trait of constantly being wrong while loudly insisting we’re definitely right. They create social networks around institutions and norms in which claims about reality can be formally tested, verified and discarded if found to be untrue. He quotes philosopher David Hull, who wrote, “One of the strengths of science is that it does not require that scientists be unbiased, only that different scientists have different biases.”
There are two principles at the heart of Rauch’s reality-based community. The first is fallibilism: no one ever gets the final say on any topic. A statement counts as knowledge “only if it can be debunked, in principle, and only insofar as it withstands attempts to debunk it”. The second is empiricism: no one has personal authority. “You may claim that a statement has been established as knowledge only insofar as the method used to check it gives the same result regardless of the identity of the checker, and regardless of the source of the statement.”
Communities that follow these principles are constantly arguing with themselves but they’re working through their disagreements, holding each other accountable for their errors. Such communities function as decentralised hive minds, a kind of anthology intelligence staggeringly more creative and insightful than any individual or centrally organised system. The constitution of knowledge currently deploys millions of minds around the planet, solving countless problems. For Rauch, the wealth creation and technological progress of the past 200 years are driven by reality-based communities.
Today, he believes, there are two clear and present dangers to the institutions that rely on them. The first are the kindly inquisitors but the second – more ominous – threat is posed by the torrent of disinformation drowning out most social media discourse, spilling out into the real world and eroding the foundations of the reality-based systems.
Against reality itself
In February 2018, Steve Bannon, Donald Trump’s adviser and campaign strategist and a key figure on the populist right, explained his communications strategy to journalist Michael Lewis: “The Democrats don’t matter. The real opposition is the media. And the way to deal with them is to flood the zone with shit.”
Disinformation is the attack on free speech associated with the modern right (although during our 2023 election campaign, it was Labour accused of spreading misinformation over claims National would “cut free public transport for disabled Kiwis” and “sack all the teachers”). For Rauch, it is a more insidious attack than the kindly inquisitors. Instead of restricting speech, trolls like Bannon want to drown it out. Censors and propagandists want us to believe their ideology: disinformation trolls don’t want anyone to believe anything; their tactic “scatters so much bad information, and casts so many aspersions on so many sources of information, that people throw up their hands and say, ‘They’re all a pack of liars.’”
It’s an old tactic but it’s been supercharged by social media. Good science and good journalism are expensive, while the cost of manufacturing and spreading disinformation online is close to zero. “By insisting that all the fact checkers and hypothesis testers out there are phonies, trolls discredit the very possibility of a socially validated reality, and open the door to tribal knowledge, personal knowledge, partisan knowledge and other manifestations of epistemic anarchy,” says Rauch.
How do we fight back against the kindly inquisitors and the disinformation trolls? He believes the institutions of the reality-based community need to recommit to their missions and values: open and free debate in pursuit of the search for knowledge and identification of truth.
He can’t speak about New Zealand but he believes that in the US, there’s a grain of truth in the critiques of left-wing bias in the media, ideological capture at universities, dubious methodologies and conclusions in modern science. One of the reasons the Free Speech Union invited Rauch to Aotearoa is its concern about the state of free speech in New Zealand academia. It sees the postponement of Victoria’s free speech panel as a symptom of a deeper dysfunction.
“If universities are rackets, merely imposing some opinions on everyone else or pursuing someone’s political agenda, then the constitution of knowledge is a racket, too,” says Rauch.
Protest & counter protest
The gleaming new Tākina Wellington Convention and Exhibition Centre is an excellent place to hold a controversial event. It fronts directly on to a busy road, forcing protesters to gather on the desolate and windswept forecourt outside Te Papa.
Councillor Nīkau Wi Neera was unsuccessful in preventing Inflection Point’s summit, so the morning of the conference, a sizeable crowd of protesters huddled together in the icy sunlight, a cheerful sea of blue hair and N95 masks waving trans-pride flags and free-Palestine signs. Across the road, a handful of attendees staged a tiny counterprotest: a mixture of Māori and Pasifika men in dark suits, black T-shirts and wraparound sunglasses and a handful of older Pākehā women with short spiky hair and T-shirts reading “Lesbian resistance”.
The event was mostly non-confrontational. A trans activist tried to squirt sewage at Brian Tamaki as he entered the venue but a bodyguard brought him down on the steps. The lesbian resistance approached the protest line and waved a flag reading “Lesbians don’t have penises”. Members of the different groups shouted at each other across the road, exercising their rights to free speech. But the wind and the traffic drowned it all out and no one heard anything.
Faith-based call
Current legislation covering hate speech is incoherent, argues the Islamic federation.
During the 2010s, different Islamic community groups, most notably the Islamic Women’s Council and the Federation of Islamic Associations of New Zealand (FIANZ), made repeated attempts to engage the government and public sector about the growing threat of violent extremism.
One of their requests was that the Human Rights Act, passed in 1993, be updated to include religious faith as a criteria for protection from hate speech, alongside race and ethnicity. The warnings and requests were ignored. After the Christchurch mosque attacks in 2019, the Islamic community was solemnly promised the legal changes it sought, but an amendment bill was abandoned by Labour in February 2023.
A report written by FIANZ spokesperson Abdur Razzaq in April argues against the absurdity of the status quo. New Zealand has had hate-speech legislation since the early 1990s and no one objected that colour, race, ethnic and national origin were covered, wrote Razzaq. “However, when 51 innocent Muslims are made shaheed [martyred] they do not want faith to be included in the safety list. This raises profound questions of foggy reasoning and confused prejudice.”
For Razzaq, the current legislative framework is incoherent. The Summary Offences Act and the Broadcasting Act contain provisions for religious faith as protected categories, alongside race, colour and ethnicity. The Royal Commission into the Christchurch terror attacks (as outlined in “Inciting Confusion”, page 19) recommended adding religion to the list of protected categories in our hate-speech laws and adding new hate-motivated offences to the Summary Offences and Crimes acts.
The police provide regular reports on hate-motivated incidents. Religion/faith is the third most common hate complaint reported, (behind sexual orientation and, by far the largest, race). Muslim/Islam is the most common form of faith targeted. “In the midst of a hate-motived crime pandemic against Muslims in NZ, there is still no legislative hate-speech safety net,” says Razzaq.
He is not impressed by arguments that we enjoy unrestricted free speech and that this vital freedom will be taken away by amending the hate-speech laws. He cites the many existing limits that restrict free speech in ways no one seems to regard as controversial: defamation, fraudulent claims, obscenity, threats, incitement. (Many media experts regard current laws around name suppression for convicted criminals as the most outrageous violation of free speech.)
Razzaq also notes that of 76 nations classified as functioning democracies, 64 have hate-speech legislation – including New Zealand. Ours was introduced by National. He notes: “The political party that passed the Human Rights Act in 1993 with the explicit clauses related to hate speech is now opposed to the same hate-speech laws.”
To read more, see Why NZ’s promised hate-speech law reforms are yet to appear, five years on.