by Michael Swain (FOR SA Executive Director)

It is a sad day for democracy and the fundamental right of freedom of speech and expression when the State decides to legislate what is (or is not) acceptable speech, and further prescribes criminal sanctions in the form of fines and jail time for those who may be found guilty or breaking the nebulous and undefined boundaries they prescribe.  This is exactly the situation we are facing following the recent publication of the Hate Crimes and Hate Speech Bill, on which comments and submissions are due Tuesday, 31 January 2017.

While the apparent and commendable intention of the Bill is to help redress incidents of racism and xenophobia, it is concerning that it significantly extends the scope of “hate speech” while at the same time lowering the threshold of what will qualify as “hate speech”.  Section 4(1) of the Bill defines “hate speech” as speech that is “threatening, abusive or insultingand which has the potential to “bring into contempt or ridicule”.  All of the aforementioned terms are undefined in the Bill, which leaves the Bill wide open to multiple interpretations and unfair applications.

It is true that Freedom of Speech must have some limitations – and it does.  The laws against defamation mean that you cannot say or write something untrue that will damage another person’s reputation. Our laws also do not allow you standing up in a crowded theatre and shouting “Fire!” when the lights go down, and then claiming innocence of any injuries caused in the subsequent stampede for the exits.  We also have the common law crime of crimen injuria (willful injury to dignity) and the Equality Act, which provide ample legal sanctions against “hate speech” and it was under these very laws that Penny Sparrow was recently sanctioned for her racist remarks.

However, and most importantly in our current context, the South African Constitution clearly recognises the value of Freedom of Speech by narrowly defining “hate speech”.  Section 16(2)(c) limits “hate speech” to speech that amounts to “an advocacy of hatred … that constitutes incitement to cause harm”.  In terms of South African case law, the question of whether speech in fact “advocates hatred” and further “incites harm” (both elements of which need to be present in order to qualify as “hate speech”), is an objective enquiry.  It asks whether a reasonable person, assessing the “advocacy of hatred” within the particular context, would objectively conclude that there was a real likelihood that the speech in question would cause harm.  Although not yet properly tested at a Constitutional Court level, it is likely that if someone advocates “Kill the farmer, kill the Boer” and then encourages the audience to “Go now and burn, loot and pillage their farms”, this would constitute “hate speech” because both these elements are fulfilled.

“Grace Bible Church” incident

The recent incident at Grace Bible Church is a great illustration of the way our Constitutional rights can live in harmony.  To give a brief re-cap of the events, well know TV Idols judge Somizi Mhlongo walked out of a Sunday service at Grace Bible Church when the visiting pastor, while addressing various behaviours that the Bible identifies as “sinful”, said that homosexual acts were “unnatural”.  The position of the Church, subsequently clarified in a media statement, is that homosexuals are welcome to attend their services and that they do not discriminate against them in any way.  However, the Church equally affirmed that it adheres to the traditional Biblical position that marriage (and sexual relations) are reserved for a man and a woman in a monogamous, lifetime relationship.

In this instance, the Church was simply exercising its right to Freedom of Religion in terms of the South Africa Constitution (section 15).  In a nutshell, these can be described as (i) the right to have a belief (ii) the right to express that belief publicly and (iii) the right to manifest that belief by worship and practise, teaching and dissemination.  Specifically, in the Constitutional Court case of National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others, Judge Sachs held that “persons who for reasons of religious or other belief disagree with or condemn homosexual conduct are free to hold and articulate such beliefs.”

Mr Mhlongo equally has the right to believe whatever he wants, and to say what it is he believes or does not believe.  He therefore exercised those rights by voting with his feet and by taking to social media to express his offence with the message at Grace Bible Church. Mr Mhlongo further has the constitutional right to choose for himself which church or other religious gathering, he chooses to attend or associate with. If he cannot associate himself with the religious convictions and beliefs of Grace Bible Church, he has every right to choose another church or gathering that believes differently.

While Mr Mhlongo may not agree with or like what was preached (or indeed the Church’s position on homosexual relationships) – that does not make it “hate speech”.  It is important to note that while the Constitution protects us from the negative effects of “hate speech”, it does not grant us the right not to be offended.  Freedom of Speech is by definition offensive, since it is there to allow for robust debate and a range of opinions to be expressed.  It is not there to ensure that the current status quo of political correctness is protected, nor is it there to create “safe spaces” where any speech that is potentially offensive is banned.  On the contrary, our Constitution recognises that we live in a pluralistic society where people hold diverse beliefs and views on matters, and which further guarantees that we are all free to express our views, openly and without fear of punishment.

The “price tag” of this freedom is that we need to be willing to tolerate views that are different to our own – even views that we may find to be personally offensive, disturbing or shocking. George Orwell once famously said: “If liberty means anything at all, it means the right to tell people what they don’t want to hear!” This is what free speech in a truly free society really means. Without the freedom to offend, free speech and free thoughts cannot truly exist.

Hate speech laws are therefore very illiberal and also potentially very dangerous. In the words of former US Federal Judge Michael McConnell. “Speech is constitutionally protected – not because we doubt the speech [may] inflict harm, but because we fear censorship more.” Thus, even in a context where people may ‘misuse’ their right to free speech (or even use it to offend), this is a risk that open and democratic societies must take.

By contrast, the focus of the impact of “hate speech” in terms of the current Bill is completely subjective, centering on the feelings and perceptions of the “victim”. As such, it is in conflict with (and in contrast to) established case law, and it will in all likelihood be abused by an array of activists who are completely intolerant of viewpoints that conflict with their current version of political correctness.

No doubt, some people will think that the change of law proposed by the Bill is a good thing because it will shut down bigots and other “haters”.  However, the whole purpose of protecting Freedom of Speech is to ensure that people are free to express opinions that may not be popular and may even be found by some to be deeply offensive.  If we are not careful and alert, we are in danger of seeing one of the most-hard won freedoms being swept away in the stroke of a pen.

The Hate Crimes and Hate Speech Bill can be viewed at http://forsa.org.za/document-library/ (scroll down to and click on “Hate Speech Bill”).

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