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. 

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Should the use of racist, ageist or sexist slurs against members of a perceived privileged group be employed on behalf of another group? Should  ‘punching up’ be considered a necessary means to reach a noble goal? 

I argue that this tactic, even if employed with the best intentions, is wrong and dangerous. And it can provoke a response that leaves society worse off. I will do this by talking a little about my own experiences of growing up as a member of a minority group in New Zealand. In a follow-up article, I suggest some better alternatives to ‘punching up’.

The changing face of racism

As a part Asian growing up in New Zealand in the 1980s I experienced plenty of racism. It was overt, and involved physical and verbal abuse. I am proud of my heritage but there were certainly times where, had I been able, I would have gladly erased the Japaneseness from my physical appearance. I couldn’t control that, but I did insist that my mother stop putting (delicious) Japanese food in my lunchbox! By the the time the 1990s rolled around, I no longer felt the desire or the need to hide my ethnicity. New Zealand was becoming much more multicultural, and intolerance was receding. Don’t get me wrong, I still encountered overt racism, ignorant statements, faux pas, and an abundance of things that I could have rolled my eyes at, but my experience of everyday life in NZ was becoming much more positive. I no longer viewed my Japanese heritage as a badge of shame. One might say that this is all part of growing up. The taunts and physical attacks of the playground give way to maturity and decency, in the main.

In the 2020s, things have changed again. Discussions of race are everywhere, but this change has not entirely been for the better. Strangely, I have caught myself feeling tempted to exaggerate my minority status, not out of pride, but for protection.

The reason is simple: some of the people who are championing support for minorities are actually making things less safe, less open, and potentially more dangerous for the minorities they claim to be lifting up. The primary reason is an intimidatory tactic designed to shut down discussion and debate. 

This tactic? Deploying what I call the pejorative bomb. 

What is a pejorative bomb? In part, it is old-fashioned name-calling, of the type I and many minorities have experienced, but it is aimed at the majority, accusing them for instance of being racist.

Let me first explain something about name-calling. Many people fear being called names. Bullies who use this tactic are clever: they know exactly how to hit you where it hurts and it is challenging to fight back against this type of behaviour. Growing up, I had to regularly endure pejorative references to my ethnicity. I couldn’t do much about that as my ethnicity was something I had no control over.

But what I am calling pejorative bombs are different. A pejorative bomb uses the tactics of the bully, but it is being used as a way of shutting down debate by attacking someone’s physical attributes: age, sex or ethnicity. An example is the term ‘pale, stale, male’, to pejoratively dismiss the views of an older white man.

Indeed, I am struck by the increase in the casual use of terms like racist, white supremacist, old white male, and colonist, to name a few, by educated adults who see themselves as supporting minorities. They use these terms as a way to shut down or even preemptively kill off discussion. Often these pejorative bombs are being mouthed by people who are themselves white. 

Having spent a chunk of my formative years dealing with bullies, and having had to think about race my entire life, I can tell you that the latter requires careful, considered thinking and reading. The former? Well I can spot a bully from a mile away. Believing one has the moral high ground and that this justifies acting like a bully still makes you a bully.

What our aversion to being labelled racist reveals about society

Why is this type of insult so effective at silencing people? 

Ironically, it works because so few people are genuinely racist.  Hence people genuinely fear being labelled racist. This is a big change: once upon a time, stating this fact when one was on the receiving end of racist slurs had zero effect. It was simply laughed off because it meant nothing to the perpetrator. The insult works today precisely because so few people harbour genuinely racist views any longer. Instead, most people are mortified to be associated with such views. Granted, people do put their foot in it from time to time, but their intent is most often not to insult. There are of course still people out there who are genuinely racist, but our society has improved enormously on matters of race in my lifetime.

Calling people racist works so well because, for someone who is white, it’s the ultimate insult: denying it is as futile as not responding – the fact has been stated, leaving it pinned on you as a badge of shame. The strategy being employed here is so effective at shutting down debate that it in turn clears the way for change to be pushed through by fiat. When wielded by people with influence, change can be pushed through even if we don’t agree, because the majority feels intimidated. That’s crafty, and in the worst instances where it is used, it is a tool for antidemocratic change.

The pernicious effects of name calling

This brings us to the unintended consequences. My concern is that open, reasoned, and frank discussion and debate are becoming more difficult because of this nefarious strain of bullying. This has two impacts. First, it actually makes it harder for minorities to hold diverse views. Instead, we are all being coerced into conforming to a specific set of views that a particular group demands we hold. 

Even worse, agitating on behalf of minorities risks making minorities the focus of a future backlash.

Working out how to get along in a multicultural milieu despite our differences is a difficult problem that requires careful thought. Working out how to improve society is also difficult. It requires challenging conversations and listening to a diverse range of views; some enticing solutions may actually be bigger problems in disguise. The discussion we need is not happening, in part because of the use of the bully’s approach to shutting down diverse opinions. 

It is one of the strangest ironies that shutting down diverse opinions is being championed in the name of promoting diversity. Witness the rise of the slur, ‘race traitor’, a peculiar concept that refers to a person of a particular race who is deemed to hold an opinion that is contrary to what someone else expects someone of that race to hold. This is a terrible stereotype of racial groups as necessarily uniform in thought, a caricature that a group of people should think the same on the basis of something as biologically meaningless as their skin colour.

That the term race traitor has been used by alt-right white supremacists and by left-wing ‘antiracists’ alike illustrates that such groups are intolerant of diversity of opinion, and underscores the tribal nature of such movements: if you are not with us you are against us. 

Both usages appear disturbingly alike, but let’s think about this for a moment.

Society largely views white supremacists with ridicule, but I fear that the New Racists will give them a new lease of life: the frequent, and frequently unwarranted, pejorative attacks on white people who are not racists, but not ardent antiracists, can engender a counter position: people can get fed up, their hearts can harden towards the minorities that the vocal antiracists purport to be in support of. These people don’t necessarily become racists, but if an antiracist can decide it is justified to call someone a race traitor, well, anything is possible. 

The direction we are heading seems astonishing to me and other minority ethnic academics like Dr. Melissa Derby. In an excellent article on the late Martin Luther King, she reminds us of one of his most seminal insights. King said, “We must learn to live together as brothers or perish together as fools”. It’s high time we heeded that advice.

The header image for this article was taken from Unsplash (https://unsplash.com/photos/KflQqYcFknk).

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