Hate speech and legal overreach in South Africa

The South African Hate Crimes and Hate Speech Bill has been published for comment, and members of the public have until December 1 to have their say. Here are four broad areas of possible concern regarding this Bill.

The intentions motivating the draft South African Hate Crimes and Hate Speech Bill are – as far as I can tell – entirely noble, but perhaps not entirely sound.

If you don’t know about the Bill, you can read Justice Minister Michael Masutha’s justification for it on Daily Maverick, in which he says that:

It will provide additional tools to investigators and prosecutors to hold the perpetrators of hate crimes accountable and provide a means to monitor efforts and trends in addressing hate crimes.

Continue reading “Hate speech and legal overreach in South Africa”

Brief notes on a crisis: #FeesMustFall

The University of Cape Town’s Senate met this morning. I had to leave at 12:15, but the meeting – which started at 10:00 – had up until that point merely confirmed what we all know is the case: that there are no easy answers, and very little agreement on how to proceed.

What agreement there was consisted of a general consensus that we’d like to be able to teach, and that students would like to be able to learn. Teaching and learning are obviously core business for a university, and why most of us are there, so agreement on this is no surprise.

At least two things stand in the way of resuming these activities: first, students who want to have various demands met before the university can re-open; and second, students and staff who will not tolerate re-opening under certain conditions (in particular, where re-opening is accompanied by the presence of private security and/or police).

Both of these constraints put us in a difficult – arguably impossible – position, unless one or both of these extreme positions is amenable to compromise. (Intermediate positions of course exist, but as is often the case in debates such as these, they tend not to dominate the conversation.)

As far as the student demands go, some things are not within our (“our” being the universities) power to grant, and even to significantly influence. Free tertiary education is the most obvious example here, in that because universities rely on state funding for (roughly) 40% of their income, it would take state intervention to make this possible.

Today’s annoucement by the Presidency, of a Ministerial task-team to advise on how to resolve the crisis in higher education,  might ordinarily be thought to be a positive step. But given that the task-team doesn’t even include the Minister of Finance, and given that the task-team was announced within hours of a summons being issued to the current Ministe of Finance to appear in court on charges of fraud, we’d be naive to think that the state will commit to free tertiary education anytime soon.

On this topic, one could of course engage with the question of whether they in fact should do so, in any case. That level of expenditure means that less is spent elsewhere, for example in primary or secondary education, or in healthcare. It does not detract from your sympathy for students struggling with fee debt, or struggling to be able to afford to get into university, to make the point that investment of this sort requires trade-offs, and that higher education is not the obvious place to allocate the funds required.

On the question of staff and students who are reluctant, or who refuse, to teach and learn on a “militarised” campus, one thing that increasingly bothers me is that it seems a basic requirement of being a constitutionalist that you’re willing to see the Constitution defended, and even enforced.

This means defending the rule of law, and even if you think it a Constitutional violation that some don’t have access to higher education, if the universities can’t do anything about that, they should surely at least defend the rights of those who do currently benefit from that access (while doing one’s utmost to broaden that access).

The problem with police and private security is of course twofold: the optics are terrible, particulary so in a country with our history. And second, the possibility of poor training and over-reaction make it possible, or even likely, that students with entirely legitimate grievances will be harmed.

Those two problems should – in an ideal world – never mean that violence on the part of protesters is condoned. But I do think it legitimate to ask whether we have a public order police system, or a private security force, who are able to uphold the law, and to restrict or preclude lawlessness while allowing for lawful protest.

I make this last point simply to illustrate a key distinction that I don’t see expressed often enough, and that is the distinction between the principle of law enforcement being desirable (by whichever of police or private security), and the pragmatic reality of whether this can be done without even worse consequences ensuing.

A government that was credible might well have a police force that was trusted, which means that the average citizen (in this case, mainly university staff and students) would support their endeavors to enforce the rule of law. We don’t have such a government.

And on the other side of the argument, for as much as academics argue that they cannot teach under conditions in which uniformed and armed people stroll around campus, the consequences of not teaching at all are pretty unpleasant also, and include wasted fees, productive researchers fleeing the country, the possibility of crises in various sectors (such as healthcare) that depend on a pipeline of graduates, and secondary school-leavers who are left in limbo.

Finally, let’s not fool ourselves regarding what open campuses – but ones under heavy security – look and feel like. It’s possible to pretend that it’s business as usual, but if you’re teaching to a half-empty class of demoralised students (some of whom might even believe that they shouldn’t be there in the first place, because being there is a betrayal of a cause), and if you are yourself demoralised, and increasingly alienated from your place of work, it’s difficult to imagine that effective teaching and learning is going on in any event.

There are no answers here, sorry. But the more I see people people saying some version of “it’s easy, just teargas them” or “it’s easy, just make education free”, the more I want to make the simple point that, well, it’s not that simple.

Free speech versus fake news

Fake news is a problem, and it’s one that reveals how gullible and uncritical many human beings are. But the solution to bad speech is still that we allow for more and better speech, rather than deferring our obligation to be critical consumers of information to some external regulator.

Let’s assume that we – as a species – are not as smart as some of us think we are. I think that this is true (even if sometimes overstated), and that realising that it’s true allows us to accept that sometimes, we don’t know what’s best for us.

Recognising that we are irrational choosers doesn’t tell us how to solve the problem. My post, linked above, makes the case that we should accept that “nudges” or “benign paternalism” are acceptable. But you could object that even if we don’t know what’s best for us, we’re still better at knowing our own wants and desires than anyone else could be. Continue reading “Free speech versus fake news”

Obesity: The Post-Mortem and “gratuitous fat-shaming”

BBC3’s “Obesity: The Post-Mortem” has been criticised for “fat-shaming”. But can you shame someone who isn’t identified – and is it necessarily shaming in general to show the physical consequences of obesity?

The Doctor and I recently watched “Obesity: The Post-Mortem”, a BBC3 recording of the autopsy of a 17 stone (108kg) woman. Unless you have access to BBC’s iPlayer, you’ll not be able to watch it (legally), and I imagine many of you wouldn’t want to in any event.

But even if you can’t watch it, you can nevertheless engage with the point made in her post on the show, where the Doctor says that there’s a difference between something being uncomfortable or unpleasant, and it being offensive. I agree, and want to expand on that point here. Continue reading “Obesity: The Post-Mortem and “gratuitous fat-shaming””

Gigaba should have allowed Anderson in

Minister Malusi Gigaba has refused permission for the homophobic pastor Steven Anderson to enter the country. Was his decision the correct one, or even a consistent one – or was this a victory of populism over principle?

Our commitment to free speech is tested by speech that offends us, not by speech we agree with. This does not necessarily entail allowing all speech: it’s possible to take the pragmatic view that while we’d ideally want all speech to be permissible, it might be the case that in some contexts, the risks of violence (or other negative consequences) are too great.

I’m not going to repeat the standard arguments in favour of freedom of speech here (previous defences of the principle can be found in this column on Kuli Roberts, this one on Gareth Cliff, or this one on more general issues to do with “thoughtcrime” and hate speech).

On this pragmatic reasoning, one might ask how we most efficiently nudge ourselves into a world where all speech is allowed, even as those who utter hateful speech pay some other price (for example, widespread opprobrium) for doing so?

Continue reading “Gigaba should have allowed Anderson in”

Academic freedom at the University of Cape Town

The Academics Union at UCT recently organised a panel discussion on academic freedom, following the dis-invitation of Flemming Rose earlier this year. This is a neatened-up version of my opening remarks.

The Academics Union at UCT recently organised a panel discussion on academic freedom at UCT, following the dis-invitation of Flemming Rose as the TB Davie Memoral speaker.

The text below was my opening statement at that panel discussion. There are obviously many other issues that could be addressed, and we were asked to limit our contributions to five minutes, so what follows is of necessity restricted in scope. Continue reading “Academic freedom at the University of Cape Town”

Dealing with “unintentional racism”

It’s possible to cause harm without intending to do so. But in a context of deep structural inequalities, some harms become more easy to anticipate than others – and it’s an index of our moral character how we work on anticipating and avoiding those harms.

Eusebius McKaiser invited me onto his radio show to talk about intentions and their role in assigning praise and blame, or more broadly, in determining the moral status of speech and action. You can listen to the podcast of the conversation, and/or read further if you’re interested in a fuller description of my views on the topic. Continue reading “Dealing with “unintentional racism””