Introduction
On Friday, 10 June 2016, the South African Jewish Board of Deputies (“the SAJBD”) made a submission to the Constitutional Review Committee. Amongst other things, they have proposed an amendment to section 16(2) of the Constitution. This subsection provides exceptions to the right to freedom of expression that is codified in section 16(1) of the Constitution.
This two-part brief is a critical response to this proposed amendment.
In short, the proposal is based on a misunderstanding of section 16(2) of the Constitution. This is sufficient grounds to reject it outright. Moreover, if the proposal is accepted, it will limit the right to free expression in unacceptable ways. It will lay the foundation for yet greater censorship and suppression of unpopular ideas, and it will push us still further towards authoritarian forms of political rule and social control.
The SAJBD proposal must be rejected. But, in doing so, we must reassert our freedom to harm, offend and even hate other people. So, after explaining why the submission is flawed in Part I of this brief, I provide in Part II a partial defense of these basic human freedoms.
Part I: A reply to the South African Jewish Board of Deputies
In its current form, section 16(2) of the Constitution says that the right to freedom of expression in section 16(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.
According the SAJBD, section 16(2) “takes an overly-narrow approach when it comes to defining and identifying proscribed forms of expression”. It says that “advocacy of hatred on the grounds listed would be proscribed only when it is coupled with incitement to cause harm.” It goes on to say that this “definition does not take into account the realities of how damaging racist hate speech is in and of itself, even though in most cases, such offensive discourse does not actually involve direct incitement to cause harm”. Finally, it argues that “the mere airing of racist or other unacceptable views in the public realm results in harm, even when harm is not explicitly advocated.”
On the basis of these arguments, it proposes that section 16(2) be amended so that subsection (1) does not extend to:
(a) propaganda for war;
(b) incitement to cause harm, including advocating violence against persons or their property;
(c) advocacy of hatred that is based on race, ethnicity, gender or religion.
As it stands, section 16 of the Constitution protects incitement to cause harm and the advocacy of hatred. More is required. The incitement to cause harm must be imminent and the harm incited must be violent. As regards the advocacy of hatred, it is only when it also constitutes incitement to cause harm (violent, or in some other form) that it is not protected expression. If the SAJBD proposal were to be accepted, the Constitution would not protect expression that: (i) constitutes incitement to cause any kind of harm to person or property; (ii) advocates hatred that is based on race, ethnicity, gender or religion, but has no actual consequences.
Earlier this year, a brief titled ‘Regulating Race-Related Expression: Outlining a Conceptual Framework’ was published by the HSF, distinguishing three forms of race-related expression: hate-speech, racism and hatred. It was explained that the term “hate-speech”, which is meant to refer to section 16(2)(c) of the Constitution, is misleading in at least three ways:
1. Hate-speech is not about hatred as such; at least in the sense of having an intense dislike or loathing of someone. It can be accompanied by this feeling, but it may be accompanied by love, pity or some other feeling. Rather, hate-speech is concerned with how people think others, by virtue of some immutable characteristic they possess, should be treated. Further, it is speech grounded in the idea that some people, because of these characteristics, do not deserve the treatment that every person is entitled by virtue of being human.
2. The word ‘speech’ suggests that ideas about how others should be treated must be spoken or expressed in words. Hate-speech, though, may take the form of pictures, posters, deeds, practices, etc, none of which need entail the use of words. What is required is the tangible manifestation of the idea of essential inequality. This idea must be communicated, such that it is made public to others. There must be advocacy of this idea.
3. Expression or advocacy of the idea of essential inequality is not sufficient. It must also, expressly or impliedly, entail a call for others to treat a person or group in a way that is consistent with their allegedly unequal status. In other words, the advocacy must constitute incitement to cause harm. Because incitement is required, hate-speech is an intentional wrong. For the wrong to be intentional, it is sufficient if a person foresees the possibility that their action will cause harm, but still goes ahead with their action. It is not necessary that the actor be motivated by the resulting harm.
In summary: Hate-speech is characterised by the public expression of the idea that some person or group, because of an immutable characteristic they possess, is not worthy of the basic treatment to which everyone is entitled by virtue of being human, with the intention that others will alter their behaviour in a way that reflects the allegedly unequal status of this person or group.
When this is understood, it becomes clear that the SAJBD’s concern that section 16(2) “does not take into account the realities of how damaging racist hate speech is in and of itself, even though in most cases, such offensive discourse does not actually involve direct incitement to cause harm”, is conceptually confused. There is no need for “direct incitement”, assuming the SAJBD means by this that the expression must be motivated by a desire to cause harm. So, “mere airing” of racist ideas can sometimes constitute hate-speech. Nor is there a constitutional requirement for the harm to be “explicitly advocated”. Expression can take many forms. If the idea of essential inequality is in some way communicated to others—say, if the idea that a particular race group is in some way essentially inferior to another is published on social media—the requirement of “advocacy” will be satisfied.
Since this conceptual confusion forms the basis of the proposed amendment, this is grounds for its rejection. It is grounds for the rejection of the proposal because there is no need to amend the Constitution in order to cover the types of cases that concern the SAJBD. But, there is a deeper problem with the proposal.
The problem is captured in its criticism of “offensive discourse”, “unacceptable views”, “anger” and “hurt”, and the wish to remove from the protective ambit of section 16(1) of the Constitution all expression that incites harm and all advocacy of hatred based on race, ethnicity, gender or religion. Given the recent popularity of efforts to restrict expression—at home and abroad—Part II will defend our freedom to harm, outline the value and necessity of offending others, and make a case for the legitimacy of hatred.
