Sustaining free speech, confronting hate

The protests that have exploded around the world as a consequence of the Israel/Hamas conflict have brought to the fore the debate about whether there are limits to free speech.

As the director of the Free Speech Union of South Africa (FSU SA), I am of the view that marches should not be banned because of the hate speech, antisemitism and racism that has been expressed by marches over the past few weeks.

The FSU SA believes that the only limitation that there should be on free speech is the limitation set out in Section 16(2) of the Constitution. The relevant provision is section 16(2), which provides that the right to freedom of expression 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.

(Our underlining)

However, subsequent legislation – the Promotion of Equality and Prevention of Unfair Discrimination Act – and proposed legislation (the Prevention and Combating of Hate Crimes and Hate Speech Bill) go beyond this.

Section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Pepuda) provides:

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.”

(Our underlining)

‘Prohibited grounds’ referred to in section 10(1), are defined in section 1(xxii) of PEPUDA and include:

(a) race, gender, sex, pregnancy, marital status. ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience. belief, 15 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).

The Constitutional Court, in the unanimous judgment of Qwelane v South African Human Rights Commission and Another [2021] ZACC 22, found that to determine whether speech is hate speech, an objective standard must be used –the reasonable person test.

The Court also found the word ‘hurtful’ to be vague and unjustifiably infringed the right to freedom of expression. The rest of the provision remained constitutionally compliant. The Court found that Qwelane had used hate speech.

The FSU SA also submitted to the Portfolio Committee on Justice and Correctional Services on the Prevention and Combating of Hate Crimes and Hate Speech Bill, 2018 [B9B-2018] which intends to make hate speech a crime, that the constitutional grounds should be limited, to ensure that freedom of speech is limited as little as possible.

We believe that both the Bill and Pepuda go beyond the constitutional text, which is ultimately authoritative.

The Bill was passed by the National Assembly in March this year and sent to the NCOP for consideration. The NCOP approved the legislation on Wednesday, but has sent the Bill back to the Portfolio Committee on Justice to consider some proposed amendments.

Notwithstanding that our arguments did not find favour regarding imposing the least possible limitations on free speech, FSU SA believes that the protests have supported our position for not tampering with free speech for the following reasons:

1. However hateful speech may be, it is better to know what people think and express in words, than not to know. Ignorance can only mean that we may be ignorant about serious threats to society and can’t confront them if not forewarned.
2. It is difficult to counter hate speech with law, whether civilly (Pepuda) or – even more so – criminally (the Bill). To the extent that legal action can be applied, it is usually against individual citizens with no significant practical consequence for society at large. As a result, large crowds are much more likely to get away with hate speech because the police are seldom in a position to do anything while trying to monitor and control a crowd. As we have seen, it is usually the much smaller protest groups that face dispersal or sanction.
3. We shouldn’t complicate our lives: usually people who spew hate speech commit ordinary crimes at the same time. It may be malicious damage to property, assault (threatened or actual), or contravention of a law that proscribes a group as terrorist, and so on. Usually, video evidence can help to build a case.

In such circumstances, it is far better to arrest and charge individuals or groups as and when they commit a “normal” crime. Racism or hate can then form a part of the argument for aggravation in sentencing. It is not perfect by any means, and doesn’t necessarily deal with hate speech directly.

However, there are a variety of other ways that hate speech can be exposed and condemned. Opponents of hate speech need to be more creative than the racists.