Speech can be harmful. You can face criminal prosecution for speech that threatens or incites violence, for blackmail or extortion, or for fraud and misrepresentation. Our libel law effectively recognizes injury to reputation as a form of harm.
The current law does not, however, seek to penalise or restrict all harmful speech. The political mood in some parts of our country seems to regard this as a problem. Local government organizations and universities, for example, have introduced codes of conduct that prohibit speech that causes harm. Sometimes this is qualified as speech that causes harm to vulnerable groups.
Who could object? For those in favour of restrictions on harmful speech, the answer seems to be that only people who actually want to cause harm (or are heedless to the harm they cause) would object. And of course, those would be pretty nasty people, who should face penalties, such as denial of access to public facilities, education or employment. And maybe they should face the sanction of the law too, as implied by the government’s proposal in 2021 to broaden the definition of hate speech. That proposal has now been shelved, but the government is proceeding with plans to regulate online content in the interests of reducing the risk of harm, even though current law already contains provisions against online bullying and dissemination of illegal material such as child sexual abuse content.
In fact, some even say that restrictions against harmful speech are necessary in order to maintain the conditions of open debate and democracy. How can people engage in a debate if speech that harms them is given free rein? They thus appear to accept much of the case for free speech as repeatedly advanced by successive generations of advocates, from J.S. Mill to Jonathan Rauch, Karl Popper to Jacob Mchangama: that free speech is essential to personal liberty, that knowledge advances through contestation and critique, that the possibility of progress requires allowing critiques of policy and law, and that those who lack material power are especially reliant on robust protections for free speech.
Can we have all that, without accepting speech that causes harm, particularly harm to vulnerable groups? It is an appealing proposition. ‘The bliss of freedom enjoyed by those who have power should never mean the right to cause pain to those who are comparatively powerless. And no one’s exercise of free speech should make another feel less free.’ The words of the late Dr Moana Jackson reverberate widely.
Threats, denigration and a lack of respect for the truth rapidly undermine civic discourse and create a toxic atmosphere of political polarization and worse. But is a civility norm the equivalent of one that penalises harmful speech?
Both rest on some underlying shared understanding of what is civil and what is harmful. But harm is a much more expansive notion. It is not just that the experience of harm is subjective. One could say the same of civility. Different cultures have strikingly different rules of civil conduct. Most New Zealanders are pretty rude if judged by the standards of cultures that require a great deal of deference to age or social status, where failing to use honorifics and speech markers that reinforce status differences can cause offence.
Hearing the words that your spouse no longer wishes to remain married to you, for example, is likely to cause significant harm. ‘Broken heart syndrome’ is a physical response to emotional distress. Pain itself – as captured by neuroimaging – is multidimensional and includes emotional state, anticipation and expectations of pain. Sexual and social rejection is harmful and can cause lasting damage.
And yet most of us – at least those of us outside the incel community – will recognize that we all have the right to reject unwanted sexual advances and to move away from friendships and relationships. And we have that right even if asserting our boundaries causes non-trivial harm to those we reject or whose wishes conflict with ours.
These examples are not far removed from the contentious issues that we now see triggering code of conduct complaints or other moves to shut down speech. In 2021, complaints of ‘harm’ were used to prevent discussion of upcoming legislation at council-owned community facilities. In this case, the ‘harmful’ discussion was one that featured objections to legislation that would allow any individual to change the sex recorded on their birth certificate simply by making a declaration. It took a High Court ruling to overturn one Council’s refusal to allow use of its premises for discussion of the bill before parliament. While the law has now passed (despite most public submissions being opposed to it), the issue is one that continues to generate controversy. The definition of what is a woman may be one that tears apart the British Labour Party, with accusations of harm and hate speech regularly made against those who wish to stick to a definition based on biological sex.
The issue here is not simply that we live at a time when conflicting views about what is a woman generate rage and anxiety. The issue is that we live at a time when many people regard certain beliefs to be harmful, no matter how politely the heretical belief is expressed. If debate itself is harmful, there is no acceptable way to say that humans cannot change sex or that, for some purposes, sex rather than gender identity is what matters.
Opinions that run counter to the current establishment orthodoxy are frequently condemned as harmful in themselves, no matter how they are expressed. Take a heretical stance on the status of the Treaty of Waitangi, the relationship between mātauranga Māori and science, the limits of religious freedom, or the conflicts between individual liberty and the needs of people with disabilities.. and see the accusations of racism, bigotry and ‘able-ism’ flow in.
Such denunciations can be seen as ‘pejorative bombs’ – a way of shutting down debate. This is not conducive to rational discussion of conflicting rights and views; but an open society can live with people calling each other names and passing judgement on the morals of others. We should encourage civil expression, particularly in workplaces and educational establishments (where rules against bullying and harassment should curtail certain types of personal denunciation), but ultimately the right to launch ‘pejorative bombs’ falls within an individual’s free speech rights, subject only to limitations of the current law against libel, threats of violence or incitement to violence.
The more serious damage comes from trying to prevent the expression of ‘harmful’ views. I admit to some scepticism as to whether any actual harm is caused by heretical opinions on the constitutional status of the Treaty of Waitangi or whether ‘woman’ is a category that anyone can freely identify into. But I can accept that some people really do feel harmed by hearing things they don’t like, and if they feel harmed then possibly they have indeed been harmed, depending on the measure one uses. Either way, it is impossible to maintain an environment conducive to free expression if debate become bogged down in attempts to prove, or disprove, the harmfulness of speech.
Everything comes with a trade-off. Some speech can indeed cause harm, but the price of trying to restrict harmful speech beyond the current limits set by law is too high.
If we coerce dissenters into silence because their views are harmful, we will no longer live in a society that seeks to advance knowledge and resolve differences through reasoned debate.