The case against hate speech laws
- Ivo Vegter
- 18 Apr 2016 09:27 (South Africa)
A proposed Prevention and Combatting of Hate Crimes and Hate Speech Bill is soon to be tabled in Parliament. According to a report in TimesLIVE, deputy justice minister John Jeffery believes “events earlier this year highlighted the need for it”.
Those “events” can only refer to the cases of Penny Sparrow and Chris Hart, in January. Both led to public witch hunts against them, and their repudiation by present or former employers.
Sparrow, an unemployed estate agent, ranted on Facebook about “baboons” littering the beaches to which she evidently feels entitled. Her statement was clearly racist. In fact, there has been legal precedent for holding that “baboon” is a racist epithet going back almost 20 years. Various courts have ruled that its use is actionable under section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act – known as the Equality Act for short. Whatever the law, the statement was deeply offensive, even if she did not recognise it as such. It is perfectly right for employers to shun her, the newspapers to excoriate her, and society to ostracise her.
The case of Chris Hart is far more complicated. While a comment of his was taken in isolation to imply racism on his part, this is not at all clear from the longer argument of which it was a part. It seems surprising that someone who has never expressed any racial animus would suddenly intend to offend someone on racial grounds. Jacques Rousseau gave a nuanced take on whether or not Hart was guilty of anything other than careless phrasing.
Either way, these are flimsy grounds on which to base an act of Parliament. It may be a modern trend to get easily offended, and to believe that the government ought to protect one from being offended, but if the state had to step in every time someone gave offence, we’d be living in an awfully oppressive police state. Nobody would open their mouths, for fear someone might take offence and report them to the authorities.
The wording of the bill is not yet known, but according to the TimesLIVE report, “Jeffery says it provides that any person who intentionally advocated hatred of any other person in a way that incited others to harm such person or group of persons‚ whether or not such person or group of persons was harmed‚ was guilty of the offence of hate speech.”
This follows the phrasing of the Constitution, which is fairly clear on the limitations on freedom of speech:
16. Freedom of expression
1. Everyone has the right to freedom of expression, which includes:
a. Freedom of the press and other media;
b. Freedom to receive or impart information or ideas;
c. Freedom of artistic creativity; and
d. Academic freedom and freedom of scientific research.
2. The right in subsection (1) does not extend to:
a. Propaganda for war;
b. Incitement of imminent violence; or
c. Advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
The important qualification in this clause is that hate speech must also constitute incitement to cause harm. If it does not, it is protected speech. Hart certainly did not incite harm. He did not advocate hatred either, for that matter. Sparrow’s comment was hateful, but she did not cause or incite physical harm. Perhaps she caused emotional harm, but one would have to take her comments mighty personally to make such a claim in a court of law.
Reportedly, Jeffery said: “We are confident that this will address some of the vitriolic comments we see so often on social media and online.”
Well, I’m not so sure. Insults do not incite harm. Racial epithets do not incite harm. Racism in general doesn’t. There is a difference between mere prejudice – racism, sexism, homophobia, religious intolerance – and actual hate speech.
In fact, the existing common law offence of crimen injuria goes further than how Jeffery phrased the new hate speech bill, if you think about it. According to the SAPS, crimen injuria consists of unlawfully and intentionally impairing the dignity or privacy of another person.
The crime of crimen injuria, and the Equality Act cases that set a precedent for civil action against those who call people “baboons”, all involve identifiable victims, unlike the new hate speech bill, which criminalises speech even if it applies only generally to groups of people.
The Equality Act’s definition of hate speech that creates grounds for civil action is broader, however. Section 10 says:
10 Prohibition of hate speech
(1) Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to –
(a) be hurtful;
(b) be harmful or to incite harm;
(c) promote or propagate hatred.
(2) Without prejudice to any remedies of a civil nature under this act, the court may, in accordance with section 21 (2) (n) and where appropriate, refer any case dealing with the publication, advocacy, propagation or communication of hate speech as contemplated in subsection (1), to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation.
“Prohibited grounds” are defined as:
(a) Race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; or
(b) Any other ground where discrimination based on that other ground-
(i) Causes or perpetuates systemic disadvantage;
(ii) Undermines human dignity; or
(iii) Adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a);
This casts a much wider net – and is much more vague – than the constitutional provision; so much so that it may well be struck down if it ever came before the Constitutional Court.
If the definition of hate speech remains true to the constitutional wording, at least it clearly delineates and limits the crime. If, however, it follows the wording in the Equality Act, we’re on far more subjective territory.
Whether or not someone feels offended or hurt by a statement is very much dependent on how they view the statement and whether they take it personally. This may depend on the status – in terms of credibility, celebrity or power – of the offender. Frankly, if we were to get offended any time some idiot posts some idiocy on an internet forum, we’d spend our lives being outraged.
Every one of us gets called names. Many of us are protected groups under the Constitution – whether on grounds of religion, culture, language, race, disability or sexual orientation – and have been offended by something someone said about our group. But that does not mean that those utterings should be criminal, to be suppressed by the full force of the state.
Perhaps we have forgotten how governments and political leaders abuse the power to suppress speech.
Americans used to blackball people they suspected of being communist sympathisers, in an effort to prevent people from undermining or even questioning the political status quo. This gave rise to McCarthyism, the name given to witch hunts in which people were accused of subversion or treason on very flimsy grounds. This ruined lives and careers.
The Soviets used to make people disappear for criticising the state, government leaders, or the communist system. Millions spent their lives in corrective labour camps known as the Gulags. Aleksandr Solzhenitsyn, the Nobel Prize-winning author of the book that exposed them, had to defect in order to get his work published. The book, The Gulag Archipelago, is now a prescribed text in Russian schools.
The apartheid government used to silence, ban, torture, jail and kill people who insulted or undermined it. Perceived slights against a group were not criminalised to offer redress. They were criminalised in order to deepen divisions.
Islamic extremism is an even clearer example of how claims of being offended can create deep and even violent divisions. Some groups have latched on to any perceived slight – like a Youtube video or a cartoon in a foreign newspaper – to justify violent retaliation against entire nations.
If being hurtful is to be the standard for criminal convition, I’d wager every single one of us could be found guilty by a sufficiently motivated court.
According to Jeffery, this bill would be “one of the major building blocks in building a society free of hate crimes and prejudice”.
Outlawing hate crimes is one thing. But outlawing prejudice is, on its face, absurd. We all have prejudices. Expressing those prejudices may be hurtful, insensitive, or wrong, but should everything that is wrong really be a crime to be prosecuted?
Some of us were actively indoctrinated with prejudices, both positive and negative. When you’ve spent the first 20 or more years of your life being indoctrinated, it takes a profound personal effort to fight against this. For many people, it is a psychological hurdle too far. In a way, criminalising prejudice would make the victims of child abuse guilty.
This is not only true among whites as it pertains to blacks. It is also true for blacks as it pertains to whites, or any race towards each other. There are many people who harbour animosity towards whites, because of the years of apartheid oppression they suffered. Such animosity, however justified, is itself a case of prejudice and not infrequently leads to statements that can be construed as hurtful. Conversely, I still on occasion get called “baas”, by poor, uneducated or rural people. I cringe and feel awful about it, but if anything demonstrates the psychological depth of a lifetime of indoctrination, that does.
Surely, we want many different cultures to live together harmoniously after a long period of conflict. This goal will not be advanced by using force against those who carelessly, stupidly, or even with the intent to be hurtful, express their prejudices in public. The heavy hand of the law should be reserved for people who act on those prejudices in ways that materially infringe upon the rights of another.
It does not take violence to counter prejudice, and the force of the state is, implicitly, violent. (Try resisting arrest, if you don’t believe me.) Violence will do nothing to remove a person’s prejudice, and can only deepen divisions by turning them into a martyr for like-minded people or whipping up self-righteous vengeance.
The civilised way to undermine and remove prejudice is a superior argument. If you cannot beat a racist, a sexist, or a homophobe in open debate, you have no business advocating laws against them. Conversely, if your opinion can only be imposed by the use of force, you’re implicitly admitting that it isn’t justifiable by rational argument.
If every perceived wrong in society is to be solved by force, then what does freedom even mean? Did people fight for freedom, just so we can once again subject our every word and action to the scrutiny of government? Did people die for freedom just so we can give powerful bureaucrats vague and subjective laws with which to prosecute us?
The African-American political philosopher Thomas Sowell perhaps said it best: “When your response to everything that is wrong with the world is to say, ‘there ought to be a law’, you are saying that you hold freedom very cheap.” DM
Correction: Penny Sparrow used the word "monkeys", not "baboons". My apologies. It is doubtful judges would view the word any differently, however.