Introduction

It seems almost axiomatic that anything as obscene as "hate speech" - speech which insults, abuses and demeans, or incites to violence, hostility, discrimination or expresses hatred, ill-will, venom and similar evilly-tainted emotions generally based on national or ethnic origin, race, colour, descent or religion - should be banned and punished by the imposition of stiff penalties. We in South Africa, a country which through the policy of apartheid raised the level of hate speech to a fine art, should surely now incorporate in a new Constitution principles that will prevent a resurgence of that evil, dehumanising policy by prohibiting the use of language which upholds or propagates it. One can pursue this trend of thought for quite some while and come up with reason after reason for the banning of hate speech.

So, why should one bother to bring out a book which contains the extensive thinking and arguments of many of the best brains in the world for and against banning hate speech when the solution is so patently clear?

The answer is, of course, that the issue is not at all clear, but extremely complicated and it concerns a fundamental human right, the freedom of people to express themselves. Some people argue that this is the most important of all rights that human beings claim and that it is only extinguished by death. So fundamental a right requires the greatest care in its preservation and its protection, and we South Africans have come to cherish that view after enduring the long years when freedom was trampled on and denied. The Freedom of Expression Institute was formed to help safeguard that right. Its objects are to fight for and defend freedom of expression, to oppose all forms of censorship and to fight for the right of access to information. As part of these broad objectives it opposes any limitations on freedom imposed at the instance of the state or civil society which constitute censorship. So thus, the argument whether curbs should be placed on hate speech? The argument against a ban on hate speech derives from the concept that, no matter how abhorrent the content of the statements may be, freedom of expression is being denied. A fundamental right is being taken away or seriously limited. And the question is then raised: is hate speech directed at groups, individuals or institutions more harmful and injurious to the victims than the damage done by restricting an important freedom?

This in essence is the theme of many of the discussions in Between Speech and Silence which illuminates the contradictions between freedom of expression and limitations on speech and between free expression and the silencing of people by affronts to their dignity and well-being.

Many of us in the Freedom of Expression Institute believe that once freedom of expression is limited or curbed to serve a particular purpose, the principle that there shall be freedom of expression has been shattered. It then becomes only a matter of time before a zealot for some other cause finds grounds for yet another curb. But it may not need a zealot, merely an opportunistic politician.

And so the process is extended. Restriction follows restriction until freedom of expression has been whittled away to such an extent that there is precious little of it left and people find themselves prevented from reading or listening to ideas and concepts which not only enrich their lives but enable them to exercise the power to discriminate between what they like and dislike.

They will have given up - or had taken away from them - one of the fundamental talents bestowed on human beings, the ability to evaluate the full range of human communication whether in print, in moving pictures, sound either in the spoken word or music and decide for oneself whether one wants to continue receiving the communication or turn it off.

We believe that the right to fundamental freedom of expression carries with it the responsibility that one must uphold it or allow oneself to become enslaved to the thoughts and decision-making of others. This concept enjoins one to insist on making one's own choices and to seek the maximum access to freedom of expression; it is based on the fact that no one else should be allowed to make decisions for the individual.

Proponents of this school of thought believe that a state-imposed ban on hate speech means that a person has voluntarily given up to the government the power to decide what is hate speech, to define it in whatever way the government feels it would suit its purpose, and that means its political purpose. The theme of hate speech is so vast that it means the government can ban anything. That includes uncomplimentary references to race or ethnicity, which could extend to those famous jokes about the Jew, the German and the Briton, or the Irishman, Scotsman and Englishman, or the Russian, the Negro and the Chinese. It also means uncomplimentary references to physical characteristics or exhortations to beat up certain classes of people. The legislation that goes with such restrictions invariably contains clauses that specify the likelihood of fomenting or inciting racial hatred, violence, etc., which provides scope for wide-ranging restriction not only on what people say but on what they may say.

The result is a huge gap in one's knowledge of what is going on in one's community or society generally. People will no longer know what other people are saying about each other or the reasons for their dislikes. The ban will not stop hatred; it will merely chase it underground where it will fester and grow. But not having access to what people are saying means that a community or a society would have lost the ability to try to find ways of dealing with this unwelcome manifestation.

However, these arguments take no account of the harm done by hate speech, the affront to one's dignity, the diminution of one's self-esteem and the hurt to one's persona. The view here is that unless hate speech is banned, people can be verbally assaulted without recourse to justice or compensation. Unless there is a curb, people may attack others in the foulest and most despicable terms without being punished and without recourse to damages for the victim. This situation would not be tolerated were a person to be physically mauled: there would be an arrest, a trial and punishment and recourse of the victim to a court for reparation for the injuries and harm inflicted. So, why should not the same procedures be available to the person who is verbally assaulted?

The issue is further complicated by President Nelson Mandela having signed the International Covenant on Civil and Political Rights (ICCPR) which outlaws "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence" as well as the International Convention on the Elimination of all forms of Racial Discrimination (CERD) which has the same intent. Though South Africa's parliament has still to ratify them, the fact that our Head of State has endorsed them has increased the difficulties faced by those who do not want these curbs visited on freedom of expression. The Constitutional Assembly which is currently considering a final version of a Constitution for South Africa (to replace the Interim Constitution which took the country through to democratic rule) is grappling with proposals that the sentiments contained in these covenants should be included. The temptation to ban hate speech is overwhelming and the members of that assembly have included proposals for curbs in the first public draft of the new Constitution.

The principles applying to the treatment of hate speech do not alter as one moves to pornography, another subject which causes many members of the public to rush to empower the state to impose restrictions on the ground that such material is undesirable. Again the government is being given the power to define what is pornography and people are surrendering another precious freedom. They are also surrendering their right to make use of their own critical faculties to decide what is pornography and what they find acceptable and what they don't. They are also giving power to the state to decide for others who may not enjoy pornography. Inevitably, the terminology in the banning legislation has to be vague and so pornography becomes undesirable, a classification which before long can become the politically undesirable. The scope to censor becomes attractively wide and all-pervasive.

However, as with hate speech, what protection is there for people who do not wish to be confronted with pornography when out shopping or who do not want their minor children to have access to it. The Freedom of Expression Institute believes that such people should exert their right to insist that cafes and shops in their neighbourhood do not sell such material or that it is placed in a special section of the shop so that there is no confrontation and children are excluded from those areas. Book and magazine seller CNA (Central News Agency) has announced a code for porn publications which means it will sell certain types of soft porn but not hard porn and will insist on certain measures so that these publications are not readily available to the young or those people who are affronted by this material. It has done this because of the protests of its customers.

The Freedom of Expression Institute believes that this is the correct manner to deal with porn. The public tells the sellers that unless steps are taken to regulate the manner in which these publications are sold, the shop will be shunned.

The Institute makes the important point that the material is not banned by some faceless governmental committee but dealt with intelligently by the community and the seller. Those who don't want to be confronted by porn are satisfied and those that want to read such material have access to it.

To aid thinking about these concepts, the Freedom of Expression Institute (FXI) held a conference at which a wide range of people from many walks of life examined them and related issues. Several of the people who attended the conference were consulted by Professor Kobus van Rooyen, SC, chairman of the task group appointed by the Minister of the Interior, Dr Mangosuthu Buthelezi, to investigate the Publications Act and to suggest ways of bringing it into line with South Africa's Interim Constitution, or to scrap it and replace it with more appropriate legislation. In any event the old legislation has been scrapped and a new law proposed.

Though the Freedom of Expression Institute has taken issue on some of the contents of the proposed new law, as FXI executive member Connie Molusi noted when he opened the conference, members of the Institute are not unanimous on how to treat pornography and hate speech. There are within the FXI, he said, people who feel extremely uncomfortable with the availability of pornography and hate speech and believe controls should be applied. Molusi said he was making the point to disabuse people at the conference and elsewhere of the notion that the FXI was a lobbyist for porn and hate speech. "What we are in agreement about is the defence of freedom of expression," he said.

He pointed out the dilemma between using freedom of expression to advocate distasteful opinions or to convey distorted or false information. He quoted comments from University of Essex Law Professor Kevin Boyle, a founding director of the British human rights organisation, Article XIX, in Sandra Coliver's excellent book, Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination:

"If the weight on the balance favour free speech, is the metaphor of balance appropriate? The actual position, it can be argued, is that two human rights are in conflict: the freedom to advocate distasteful opinions or to convey distorted or false information and the conflicting right not to be a victim of discrimination and prejudice. On that analysis, to prefer freedom of expression is not to prefer the countervailing freedom from discrimination. One right is subordinate to the other. The balance metaphor, however, can be justified if some speech on some occasions is restrained and on such occasion the right to be free from discrimination is preferred to the free speech principle. There is also a need to offer coherent justifications for which right is preferred in particular circumstances or else, from the standpoint of freedom of expression, there is a risk that limitation will encroach the point where the right itself is threatened."1

Molusi said he shared the view that to point out that there are circumstances in which other interests should win out over freedom of expression is not inconsistent with a strong commitment to the value of freedom of expression. Equally to argue that the law should not interfere with certain kinds of anti-social speech or insulting and denigrating publication does not mean that free speech advocates are indifferent to the rights of racial or religious groups or minorities. On the contrary, they strongly believe that freedom of expression is a vital right in the struggle to defeat discrimination, bigotry and intolerance.

These difficulties are fleshed out by Ursula Owen, for the last two years editor of the London-based Index on Censorship, who writes that she finds questions around freedom of expression in relation to hate speech and pornography particularly difficult. She agonises as she explores the contradiction expounded by Ronald Dworkin that if free speech is to be defended as a universal human right, then there is also a need "to defend the right of bigots and thugs to wear swastikas or white hoods and to sell hatred". Her two years' editorship gives her ample scope for reflecting on the full range of arguments for and against restrictions on speech, but despite it all, she announces, somewhat triumphantly, it has left her "something of a libertarian".

Under the heading of "A Feminist Critique of Pornography", Joanne Fedler, lecturer in the School of Law at the University of the Witwatersrand, grapples with her ambivalence towards pornography which she describes as not "totally anti-pornography in a blunt all-encompassing apocalyptic way like Horace van Rensburg (former South African ambassador to the Transkei) and thus pro-censorship" nor "completely pro-pornography or anti-censorship in an everything-under-the sun should be protected under the rubric of freedom of expression".

She writes that she cannot endorse these two polar extremes on the pornography and censorship issues and so she tries to forge a middle-path that extracts what is valuable from both these positions and suggests that they provide useful insights into the way pornography ought to be dealt with in South Africa. Insightful with blends of black humour and cynicism, she probes many of the aspects of the pornography trade, from its slaves to its profit-makers, making the point that censorship does not remove material, merely hides it, and concludes that the strongest argument against censorship is that it will result in further erosion of womens' autonomy and privacy. Her approach is unashamedly a study of pornography, with only a sidelong glance at the effects of censorship, but she feels it is sufficient to reach a valid conclusion.

From here it is but a short step to pick up on Professor Frederick Schauer, Frank Stanton Professor of the First Amendment at the John F Kennedy School of Government at Harvard University, who points out that the effect of the American approach helps to create an environment in which the availability of sexually explicit materials is essentially unlimited. Schauer writes that the American constitutional approach treats truly hard-core pornography as outside the constitutional protection of freedom of speech and the press. American law has traditionally made unlawful the sale or distribution of obscene material. Much of the work of the Supreme Court has consequently been to define "obscenity", the current definition of which dates from 1973. It holds that material cannot be found to be legally obscene unless it appeals to the "prurient interest", is patently offensive to contemporary community standards and lacks "serious literary, artistic, political or scientific value". Existing First Amendment doctrine had thus produced a law of obscenity that is so narrow that it has virtually eliminated obscenity prosecutions.

Johannesburg advocate Gilbert Marcus moves from pornography to hate speech, giving a perspective of incitement to hatred in Southern African and the legal responses to it in Zimbabwe, Namibia and South Africa. He chooses these three countries because they share a similar historical heritage of white minority rule characterised by the systematic and often brutal repression of basic rights and liberties ultimately followed by a negotiated settlement.

Settlements in the three countries included mechanisms for the granting of amnesty to those who committed politically motivated crimes during the liberation struggle. In Zimbabwe, where the government inherited much of the legislation of the previous regime, there have, however, been few constitutional cases though a disturbing undercurrent of official intolerance and attempts to intimidate the media have become manifest. South Africa had a long history of maintaining laws prohibiting incitement to racial hostility but, writes Marcus, they have almost exclusively been invoked against anti-apartheid opponents of the government. Since liberation, no prosecutions have been initiated in South Africa against supporters of the Pan Africanist Congress who chanted the slogan, "One settler, one bullet", or against former African National Congress Youth League leader and now Member of Parliament Peter Mokaba who encouraged mass audiences to chant the slogan, "Kill the Boer, kill the farmer". Though all three countries are signatories to the International Covenant on Civil and Political Rights and all have laws which criminalise incitement to hostility, in practice there appears to be an unwillingness to use the "blunt instrument of the criminal law". He points out that the absence of prosecution, however, does not mean the absence of violation of the law. "Rather there appears to be a reluctance to prosecute, particularly during a transitional process in which racial issues continue to be integral to political debate," he writes.

"In all three countries the individual victim of an insult would enjoy a civil remedy in damages but this would be ineffective in cases of group defamation. The preoccupation in all three countries has been reconciliation and the impetus to create a new and just society. Prosecutions for racial insults have seldom been employed in striving towards that end."

Advancing an argument in favour of the restriction of hate speech, Professor Shadrack PO Gutto, of the University of the Witwatersrand Law School and Centre for Applied Legal Studies, quotes extensively from Marcus's observations that the several South African legal prohibitions on promoting feelings of hostility between "natives and Europeans" were instruments to silence the "natives" and the few "non-natives" who dared oppose racial segregation, oppression and marginalisation of the "natives". He does not believe all social or historical problems cannot be dealt with by criminal sanctions and he thus proposes four alternative routes in response to hate speech: to do nothing at all about it and justify that choice by advocating the absoluteness of freedom of expression; to limit legal measures to civil legal process only; to limit legal measures to criminal sanctions only; and to adopt a mixture of criminal and civil legal or quasi-legal measures.

Gutto describes incidents where he was the victim of racist encounters which enraged him. Strangely enough these were not in South Africa but in the United States, Sweden, Kenya and Zimbabwe. On the first two occasions he was the victim of imprecations hurled at him by racist thugs. In Kenya and Zimbabwe he was at the receiving end of strong-armed action by government.

He concludes that hate speech violates and undermines the fundamental human rights of the victims, either individually or collectively, and suggests as an appropriate approach to the promotion of free speech while being sensitive to human rights a legal response that combines civil and criminal law. It is not exclusively directed at punishing the offender without paying due regard to the victim and adding an element of rehabilitation. The "human rights culture" he visualises has to protect human dignity, ideals of equality and cannot allow individuals and groups absolute freedom to torture or humiliate others.

Justice J Sopinka of the Canadian Supreme Court explores the significant differences between American and Canadian attitudes to both pornography and hate speech. Despite the increasing public outrage at the proliferation of obscene material and hate propaganda and the urging in both countries for courts and lawmakers to crack down on the purveyors of filth and hate, society is divided on the desirability of imposing sanctions on the disseminators of obscenity and hate. Civil libertarians claimed enforcement violates the right to free speech while supporters of enforcement contends that free speech is limited and should exclude protection of both obscenity and hate speech. Both the United States and Canadian Supreme Courts places a broad and liberal construction on their freedom of speech constitutional enactments and acknowledges that the constitutions viewed protection as not absolute. In the United States obscenity does not receive constitutional protection and the courts hold that the appeal to prurient interest was the critical indicia of obscenity. The result is that freedom of speech usually triumphs over alleged "harm" to society which has become the yardstick in Canada.

Harm in this sense means material that predisposes persons to act in an anti-social manner. In the famous R v Butler case he divided pornography into three categories: explicit sex with violence (ruled obscene); explicit sex without violence but subjecting people to degrading and dehumanising treatment (obscene if the risk of harm was substantial); and explicit sex without violence that was neither dehumanising nor degrading (not obscene unless children were involved).

A side effect to the trial was dissension among feminists over the "harm" position. A Canadian womens' group supported the "harm" argument before the trial but afterwards some feminist groups in America attacked state censorship of pornography on the ground that it suffocated the environment in which women were free to explore ideas about sexuality.

Judge Sopinka, who is critical of the deference of the Canadian Supreme Court to the government on issues concerning free speech, points out that in a South African society riven by years of group conflict there might be an argument for social peace outweighing undesirable hate speech. On the other hand, the best approach might be to allow the rhetoric so that opposing forces get to know the enemy and can respond with full verbal force.

Floyd Abrams, a partner in the New York firm of Cahill, Gordon and Reindel, writes that despite the considerable pain with minimal societal benefit caused by hate speech, United States courts have fashioned a strong unique defence of it. This is in keeping with American practice in many fields where more legal protection was given to freedom of expression than is conceivable in most (probably all) other democratic countries. The basis for this is the concept that only by providing protection to all forms of valuable speech - whether a minority or majority position - could the public be assured of uninhibited, robust and wide-open debate. Hate speech is typically defended as the price society has determined it must pay to assure a system of free expression. Abrams believes there are five repeatedly expressed concerns at the heart of interpretations: the doctrine that legislation affecting speech might not be based on disapproval of its content; precedent where the "slippery slope" is real; prudence related to the historically proven reality that limitations have predominantly been used to suppress speech of minorities rather than to protect them; political culture in a country relatively unthreatened by social conflicts that may make hate speech regulation necessary; and the risk that racist speech might contain information which could be of great value later.

Abrams concludes that the theme common to the five factors is that the risks inherent in suppressing speech - even racist speech - tends to outweigh whatever gains may be thought to flow from the suppression of those views. The United States approach under the Constitution, at its very best, has generally been to risk the harm that speech might inflict to avoid the greater harm that the suppression of speech has so often caused.

The Task Group on Film and Publication Control set up by Home Affairs Minister Dr Mangosuthu Buthelezi to replace South Africa's notorious Publications Act of 1974 - under which more than 30,000 books were banned and untold bans and cuts made on films and videos as well as music and paintings - had access to much of the thinking outlined above in deciding how South Africa should treat freedom of expression. In discussing how the Task Group came to write a new Film and Publications Bill for South Africa, it is clear that the wide ranging American concepts propounded by Floyd Abrams and others had less of an influence on the group compared with the cautiously protective style of Canada. Group chairman Professor Kobus van Rooyen, SC, who is also head of the Department of Criminal Law at the University of Pretoria and chairperson of the Broadcasting Complaints Commission of South Africa and the South African Press Council, writes that the group considers that adults should have optimum freedom. Limitations should be well-reasoned and based on a compelling state interest in the protection of children from harm. The group concluded that administrative control should be on a national basis and not through provincial authorities because of the cost, that there should be classification of films, a structure based on complaints with appeals to a review board and the Supreme Court, prohibition of child pornography, explicit sex and violence, explicit sexual bestiality. However, exemptions under artistic, religious and literary works clauses are included. Distribution of sexually explicit material should be limited to adult premises.

The group left to parliament the decision whether the promotion of racial hatred should form part of the legislation because it felt its inclusion would politicise the new administrative structure. However, it has recommended the prohibition of material promoting religious hatred subject to certain exemptions.

It is sad that the group was not more adventurous. In reshaping the Publications Act, it had the opportunity of reshaping South Africa's right to freedom of speech in the most advanced terms, perhaps even setting new standards that would be the envy of the democratic world. The remarkably peaceful transformation of South Africa from brutal racist authoritarian state to clamorous democracy - in a way which the world has rightly marvelled at - suggests that in the sphere of the fundamental human right of freedom of expression and the regulation of pornography and hate speech the new nation has lost a great chance to be in the forefront again.