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Putting a handle on hate: Hate speech, the media and the new constitution
by Hein le Roux
With such emotive issues as property rights, mother-tongue education and worker lockouts dominating debates around the New Constitution, it is hardly surprising that a new clause outlawing so-called hate speech has slipped in largely unnoticed. Yet, this small provision has potentially large consequences, because it affects that most fundamental of all democratic rights...Freedom of Speech.
One settler, one bullet. Harmless struggle rhetoric, or a dangerous incitement to violence? In August 1993, a mob of black youths attacked and brutally killed American Fulbright scholar Amy Biehl in a Cape Town township. During the subsequent court case, supporters of the accused chanted this and similar slogans outside the courtroom, prompting questions about whether such slogans may have played a role in the murder.
More recently, Israeli Prime Minister Yitzhak Rabin was assassinated by Jewish extremist Yigal Amir. The event sparked off a heated debate about the role inflammatory rhetoric may have played in inspiring the assassination. Soon afterwards, Rabin’s successor, Shimon Peres, told his cabinet: "We must not hesitate to use all means at our disposal against people indulging in incitement - the instigators and those who pull the trigger."
South Africa and Israel have much in common: chiefly a deeply divided society where violence has become a way of life. Like Peres, the writers of our New Constitution have seen fit to take measures curbing hate speech. Thus academic, scientific, creative, and press freedom is guaranteed - when it does not constitute "propaganda for war", "incitement of imminent violence" or "advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm." By this definition, Peter Mokaba’s infamous Kill the Boer, kill the farmer chant could be legally silenced.
The inclusion of these limitations has naturally had libertarians, journalists and other political cynics up in arms. In a Sunday Times article entitled "Freedom of Speech becomes a mirage" (March 17,1996), executive director of the Freedom of Expression Institute, Jeanette Minnie, wrote: "This attempted solution to dealing with the downside of free speech, in our view, is to indulge in classic censorship." A month later, Sunday Times editor Ken Owen compared the new clause with section 54(2) of the old Internal Security Act, which was widely used to suppress opponents of the apartheid regime. It defined as subversive anyone who "causes, encourages or foments feelings of hostility between different population groups of the republic or attempts to do so."
The writers of the new constitution must have had a specific goal in mind by including the hate speech clause. There are commonly two types of argument in favour of the constitutional ban on hate speech - one is pragmatic, the other ethical.
Pragmatists have a utilitarian bent, arguing that the physical costs - in monetary and economic terms - of keeping different groups apart and eventually repairing damage when they meet, are too high to allow hate speech to be uttered freely. They argue further that a constant underlying threat of violence between "hating" groups can undermine social stability and affect economic production. Thus the ban on hate speech is essentially an attempt at damage control.
Ethicists focus on the individual
harms caused by hate speech, arguing that by allowing absolute freedom of expression,
other fundamental human rights such as dignity and the right to personal safety are
violated. This argument becomes all the more pertinent when one considers that
historically, most forms of hate speech contain an underlying threat of physical violence;
racial or sexual name-calling is often merely a prelude to violence. Thus hate speech
awakens fear in people, and violates their dignity, and this is something citizens of a
democracy should not have to be subjected to.
According to Prof. Lourens du Plessis - civil law lecturer at Stellenbosch University and chairman of the committee which put together the Interim Constitution’s Bill of Rights - practical considerations were "decisive for the inclusion" of the hate speech clause in the new document. It is hard to disagree with this move, because we live in a deeply divided and volatile society. The last thing South Africa needs is large-scale racial conflict.
Yet freedom of speech, seen by many to be the most fundamental of all democratic rights, can now be suspended under certain conditions in the name of democracy. Where does this leave the South African press?
"I don’t think the mainstream press could do something to violate the hate speech principle," says Prof. Du Plessis. Indeed, when one has a closer look at the formulation of the clause [section 16 (2) (c)], it becomes hard to imagine a situation in which the mainstream South African press could be guilty of hate speech as defined by the Constitution - "advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm."
While "advocacy of hatred" on its own is fairly vague and therefore open to broad interpretation, the "harm" qualifier narrows the whole concept somewhat. The words "incitement to cause harm" seem to imply physical action or violence, and it becomes difficult to imagine a major local newspaper firing up its readers to go out and wreak havoc after denigrating members of a certain race group. Besides, how many editors would care to risk the wrath of their owners by expressing such opinions?
There are some problematic cases, of course. A letter from an extremist member of the public could easily meet the hate criteria. Similarly, a verbatim report of a speech or meeting at which hate speech was uttered could fall foul of the law. However, one imagines that any possible restrictions on press freedom would be limited to editorial content.
It may seem this argument relies a great deal on good faith, but not without reason. The election procedure for judges of the constitutional court should ensure that it doesn’t become just another government department: while the State President pretty much has a free hand at electing the President and Deputy President of the Court, the other nine members are appointed by the President from a list prepared by the Judicial Service Commission. This list has only three names more than the number of vacancies. If the State President is unhappy about the choice of candidates, the Commission must prepare another list, from which the missing judges must be appointed.
The hate speech clause, while seeming to hold little threat for the mainstream South African press, certainly threatens the existence of extreme left and right-wing publications and newsletters. Deputy Director of the Centre for Applied Legal Studies at Wits, Shadrach B. Gutto, writes that "the object of the law against the propagation of hate speech in general is to express society’s collective disapproval of racism or sexism in general, as the case may be, and to discourage those who propagate such ideas publicly." While many people share this view, others argue that such publications and the opinions expressed in them have a right to exist, and should exist.
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There’s the "Free Market of Ideas" theory, introduced by J.S.Mill, which - in the words of the famous American jurist Oliver Wendell Holmes - is "the power of the thought to get itself accepted in the competition of the market." Although this theory is idealistic and has lost credibility with the advent of mass communications, it sums up an important principle: if there is only one truth, how will we be able to tell it apart from lies?
Another objection is based on principle: in a democracy compliance with majority decisions implies that everyone has had the opportunity to state their case. Can one really expect extremists to toe the democratic line if they have not had a chance to exercise their other democratic rights? Is an election fair unless everyone has had a say? Perhaps the most commonly heard and compelling argument against the restriction of hate speech is that free speech is the democratic right upon which all others rest. Free flow of information is absolutely essential for democracy so that the population can keep a check on tyrannical government, and - theoretically, at least - make informed decisions about government (This is one of the roles the printed media usually ascribes itself).
It is argued further that any exception to this principle violates the sanctity of the right and sets harmful precedents - once an exception has been made, others can follow because the right is no longer "sacred."
The dilemma of modern democracy is eloquently summed up by American political theorist Ronald Dworkin: "Strong conviction is suddenly challenged not only by freedom’s oldest enemies - the despots and ruling thieves who fear it - but also by new enemies, who claim to speak for justice, not tyranny, and who point to other values we respect, including self-determination, equality, and freedom from racial hatred and prejudice, as reasons why the right to free speech should now be demoted to a much lower grade of urgency and importance" (own emphasis).
Ultimately, most South African journalists and editors will probably side with Dworkin, seeing the inclusion of a hate speech clause in the New Constitution as a potential threat. Despite the apparent safeguard of an independent constitutional court and a fairly narrow definition of hate speech, there are no guarantees. Words are slippery and their meanings are often constituted in the minds of people. According to Prof. Du Plessis the formulation of the clause is still "vague, and because it’s vague, it’s dangerous."
Speaking of vague... has anyone seen the statute of limitations (section 36) lately?
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