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The criminalisation of hate speech
Scope and Theoretical Underpinnings In order to consider whether hate speech should be criminalised, I have considered it imperative to approach the matter with an open-ended objective; that is, by not foreclosing on the possibility for alternative legal or quasi-legal responses to the problem of hate speech. The reason for this is that philosophically I do not believe that all fundamental social or historical problems can only be addressed effectively, or mainly, through criminal sanctions. There are situations where criminal sanctions may be most desirable and appropriate. Other situations may be more effectively addressed through other forms of civil or non-criminal legal measures. A combination of both criminal and civil legal responses is yet another appropriate alternative. What I shall argue therefore is that there appears to me to be four alternative routes we could take in responding to hate speech:
In my conclusion I will suggest that any state and/or society measures meant to control or regulate hate speech ought to be narrowly but strategically conceived and should combine limited criminal sanctions with civil, legal and quasi-legal measures. As a professional academic and scholar, I cherish academic freedom, an important component part of freedoms of belief and opinion which are recognised in the Interim Constitution. Belief and opinion are the materials of which the freedom of expression is made. In one of the recent cases decided in the Witwatersrand Local Division of the Supreme Court which interpreted the freedom of expression and speech in the Interim Constitution, the judge asserted "the primacy of the freedom of speech" and claimed that it is "the freedom upon which all others depend".
I will not comment on this apparent contradiction in the views of our judges as to which rights ought to occupy the leading position in our society today. It suffices for the moment to say that my philosophical orientations, obviously shaped by my experiences and intellectual learning, lead me to start from the premise that no freedom or right or duty, however important it may be, should have an inherent priority over others, freedoms of expression and speech included. I therefore differ with those who take as their point of departure the presumption that freedom of speech and expression necessarily and always has priority over other rights, freedom and duties in a free and democratic society in which human rights prevails. I have held the view against a priori ranking of rights and freedoms for sometime now,
I will approach the main body of this contribution by first making a very brief reflection on personal encounters I have had with what I regard as hate speech of both a racial and political character. This is followed by a look at South Africa's immediate history and what some expert commentators have defined as hate speech. The last part of the contribution will focus on challenges of constitutionalism in the new South Africa and the implications this has for hate speech. Feminist legal theory, at least as represented in a contribution by Balkin,
In sharing my encounters with what I regard as racist and political hate speech I therefore do so based on legitimate theory of law and legal analysis. It is not meant simply to evoke emotions for emotion's sake, although emotions and life experiences of legal interpreters and the subjects of the law - offenders and victims - may be regarded as legitimate and necessary ingredients in "objective" legal analysis, and interpretation. Acting Judge Sydney Kentridge recently observed that "it is not easy to avoid the influence of one's personal intellectual and moral preconceptions"
I will start with the racist encounters. One day in broad day light in late August or early September 1978 I was about to cross Massachusetts Avenue in Cambridge, Massachusetts in the United States of America. I had a briefcase full of books and papers, as I was then preparing for PhD comprehensive exams for the faculty of the Fletcher School of Law and Diplomacy - oral exams taken in some universities in the United States of America prior to formal registration of research proposals for doctoral degrees. I was crossing Massachusetts Avenue on my way to a law library at Harvard Law School. A long car - and vehicles in the United States of America in those days were really long and wide - came speeding along the road. It slowed down as it came close to me. I had stopped by the side of the road to let it pass so I did not understand why it had slowed down. In a split second, a bottle came flying directly towards me from the open window of the car. As I realised the danger, I jumped to the side to avoid being hit. A barrage of shouts of "Nigger, Nigger!" was thrown at me. I had barely avoided contact with the flying bottle. The "Nigger, Nigger" hit me harder than the bottle would have done. I then noticed that the men in the car were white. They sped away as I looked frantically for any sold object, a stone, to smash them with. My failure to get something to throw at them annoyed me even more. I was mad with myself for not being able to amount an effective counter attack. I had not recorded the number plate of the car - although this was useless because as a black person in a white-dominated racist society I was very much aware that the law did not care about "Niggers". At least not in their enforcement. From that moment until two weeks later when I left the United States of America, having completed that leg of my studies, I ensured that my briefcase was half-full with small rocks wherever I went. I was highly charged and ready for violent reaction if anyone dared abuse me on account of my race. Since nothing of the sort happened within the two weeks, I was forced to throw away the rocks as I entered the transport to the airport. The question which remained in my head which still contributes to informing and influencing my reasoning and judgment on matters of racism and freedom of expression and speech, is whether a conduct such as that of the offending white thugs should find absolute protection, if not encouragement, in the law of freedom of expression or whether such conduct should be discouraged in and through the law. However sympathetic to freedom of speech and expression, including the freedom of belief and thought, I seem invariably to end with the conclusion that no civilised society ought to categorise the behaviour such as I experienced as requiring encouragement under the umbrella of democracy or human rights. Democracy and human rights are not about deliberate use of ideas through expression directed at hurting the feelings of others or trying to put them down to keep them from enjoying basic rights and freedoms of equality and dignity. The second example of my experience with verbal racist abuse - which, with numerous other encounters - lead me to a similar conclusion as the one I have presented above occurred more recently, in February 1994. This time it was in the University of Lund in Sweden, where I was a human rights research scholar between 1990 and early 1994. I had earned my doctorate on the subject of human rights at the University in 1993 and had just accepted an appointment to my present academic position at the Law School and Centre for Applied Legal Studies at Wits. In other words, I was busy finalising my stay in Sweden and was packing my limited earthly belongings. One night in February 1994 I left my office at 22h00 and was walking to the train station to catch a night train to Uppsala via Stockholm. As I approached the station, two white men appeared. By the way they carried themselves, they appeared to have been under the influence of some alcohol. They slowed down. As I approached them, they started shouting the equivalent of "Nigger" in Swedish. My adrenalin rose and I felt warm blood rushing through my body. I was enraged and without much reflection or consideration that I was alone and could be lynched by them and those who may join them, I confronted the two men face to face and called them stupid and ignorant. I expected them to attack back. Instead they walked off and only when they were some safe distance away from where the confrontation had occurred did they resume their "Nigger" abuses. I reflected on the incident and realised that had the two thugs dared to abuse me in my face or to attempt a physical confrontation, there could probably have been serious physical harm to myself or to one or both of them. The amount of energy and determination that swelled in me at the moment of confrontation needed only a slight push to generate an explosion. Again, like the encounter in the United States of America in 1978, I was incensed. Here I was walking peacefully and without provoking anyone, and yet I was being subjected to unsolicited abuse and humiliation. I knew there were laws against such racist attacks but would the legal system really respond adequately to punish the thugs and to do something to heal my hurt? Having concluded that the implementation of the law had not shown a tendency to deal effectively with racist attacks both by punishing the offenders and healing the hurt suffered by the victims, I simply walked to the train and had difficulty sleeping. Now, on to political hate speech. Between 1979 and 1982 there was a build up of tension between the government of Kenya and a small section of academics at the University of Nairobi whom were labelled as "radical". I happened to be included in this group. As state repression against all forms of democratic expression increased throughout the country, sections of the university and some religious formations remained the islands of pre-democracy opinion. The minority democratic voices were quickly painted as "Communists" and "Marxists" and were targeted for sustained persecution. The press, both state controlled and private, formed part of the anti-democracy crusade. Ironically, the press at that time justified its campaign to silence those who did not wish to join the political mainstream of the day by relying on freedom of the press! It reached a point where those of us who did not wish to follow or sing praises to the autocratic leaders were accused by the press of importing arms and storing them at the university with a view to engaging the state militarily - a felony punishable by death in the Kenyan legal system. We were also accused of inciting students and the general public to violence. This is also a very serious criminal offence in the Kenyan law. In an attempt to defend ourselves in public within the framework of the legal institutions - which unfortunately had become willing tools of the executive - we instituted civil legal action against the publisher of the Weekly Review, a well-known paper which is greatly admired by liberals. Our case was declared unsuccessful on technical grounds, the judge having taken the liberty to use the occasion to take judicial notice that troublemakers like ourselves had to expect the kind of press attack as we had been subjected to.
An example of another experience I had with the press, where the press used "freedom of the press" as a cover for silencing progressive critical voices was in Zimbabwe in 1986. Having accused the university academics who were critical of some state authoritarian tendencies of all sorts of crimes, The Herald newspaper carried several editorials, one of which urged the government to act firmly and resolutely by "clipping the wings" of those who were painted as radical academics.
Whatever opinions one may have about hate speech in general, it is always useful to draw some distinctions between political hate speech and other types, such as racist or sexist hate speeches. I accept that in holding resolutely and militantly to some political philosophies and ideas one is likely, and ought really to be prepared, to face resolute opposition from those who hold opposite philosophies and ideas. Confrontation of competing political ideas is what life is made of. The problem arises when a group - especially one in power - uses or urges the use of state or other institutional power to silence critics or those who hold opposing viewpoints. It is made even worse when the means advocated is one that directly violates fundamental rights and freedoms of others. The matter demands even greater scrutiny when the press which claims press freedom, freedom of expression, thought and belief is party to deliberate schemes directed at causing physical or psychological harm to those they do not agree with. Robust criticism, yes. Agitation to cause harm and hurt I fail to support. The press can be either a tool of and for repression and authoritarianism or an instrument for the defence and promotion of democratic values and human rights. We must be able to make the distinction. The apartheid legacy of abuse of the law under the guise of criminalising hate speech.The colonial and apartheid regimes in the pre-1994 national democratic, or liberation, elections systematically abused and misused the law to silence opposition to colonial and racial domination. The misuse of law was so much so that the legal and constitutional history of the country has been labelled by Supreme Court
"Its importance must also be assessed in historical context. The South Africa of old had strict censorship laws [which are, in some instances, still on the statute book] which were vigorously enforced in respect of political, cultural and purely individual expression [which is not, perhaps, the case today]. It also had stringent security laws which restricted the free reporting of events in the press and authorised the banning, not only of publications, but also of specific individuals, with the result of effectively silencing those persons and their works."13 One of the contributors to this book, Gilbert Marcus, is reputed to be one of the leading legal experts in the country on the subject of freedom of expression and speech at this moment. His writings on the subject provide a fairly accurate and detailed description and critique of the laws and practice regarding the history of official emasculation of freedom of expression, especially through censorship, since the 1920s.
Marcus traces the genesis of the intensive legal suppression of expression of opposition to white colonial rule to the Native Administration Act of 1927.
From the analyses by the various commentators mentioned above on these colonial and apartheid laws, it clearly emerges that the official defenders of racism and anti-Communism in the past employed a three-pronged legal strategy in criminalising dissent: by banning and restricting the production or distribution of dissenting speech and expression; by deliberately generating and propagating hateful disinformation and misinformation via the education system; and encouraging the propagation of harmful racist and anticommunist ideas and opinions, provided the same was directed against black people and their so-called "Communist" supporters. It was a deliberate strategy by those in power, or those who perceived themselves as being in power, to dehumanise and keep the disempowered powerless and servile. It was a strategy for the protection and promotion of inequality and domination. It was a power game. I wish to emphasize the issues of inequality and domination as they constitute aspects of the central forces behind the colonial and apartheid laws that suppressed particular kinds of expression and speech. There seems to be some superficiality in the manner some critiques of apartheid have interpreted those laws. The laws were not, as they appear to depict, directed against all types of speech and expression. They were very purposive and focused. They had very clear objectives. This distinction needs to be made because failure to do so easily leads to conclusions like what is required in the future is blanket legal encouragement of all forms of expression, even those directed at promoting racism, sexism and all manner of harmful speech and expression, or those purposely meant to or whose effect is to further the ends of domination and the promotion of inequality and hostility between various groupings in society. I shall attempt to clarify the point I am making here in the remainder of the paper. But, before we proceed to examine the implications the new constitutional order has for hate speech which hurts the victims, which are provocative, which are directed at lowering the dignity of the victims, which are directed at domination and promotion of inequality, it is important to point out that apartheid colonialism and its laws that promoted racism, under the guise of criminalising hate speech, was acknowledged under international law to constitute a crime, a human rights crime generally
The challenges of Constitutionalism and human rights in the new South Africa and legal responses to the problems of hate speech.Those rights and freedoms guaranteed in the new Constitution - and those that will no doubt be central to the final Constitution presently under preparation - necessarily means that there are corresponding duties and obligations on the state, individuals and society as a whole, whether these are specifically stated or not, as recently reaffirmed by the Constitutional Court in the "death penalty" case. Judges Ackermann, Kentridge and Langa emphasized this relationship between rights, freedoms and duties in their separate judgments.
A commentator on the issue of hate speech and the new Constitution has appropriately pointed out that the guaranteed freedom of speech and expression under section 15 of the Constitution is to be balanced with other guaranteed rights and freedoms, particularly the equality clause (section 8) and the human dignity clause (section 10).
The environmental provision may not appear to be readily applicable but it is quite relevant to this point if we conceive the environment broadly to include the social aspects of the environment. Socially hostile environments, as are likely to be caused by unrestrained hate speech, greatly undermine equality and dignity of the victims. Sexual harassment jurisprudence has helped to highlight the detrimental and harmful nature of social environments to women victims.
"For the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity...."
As we develop our local jurisprudence on constitutional and human rights law on the basis of the Constitution, it becomes imperative to encourage a holistic approach to reading an interpretation of the Constitution. Individual sections of the Constitution help to isolate and highlight particular concerns, but they cannot be properly understood in themselves or by narrow approaches and interpretation that fail to take account of relevant other sections in the Constitutional document. Apart from the holistic interpretation of the constitutional provisions, with due regard to relevant international and comparative law as is specifically required by the Interim Constitution,
"Article 20: 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial and religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."
The same is to be found in the International Convention on the Elimination of all Forms of Racial Discrimination, although with a greater emphasis on hate speech fashioned for furthering ideas of inequality and domination of one group over another:
"Article 4 States condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination...." Given the above clear, but by no means generally known or understood, positions in international law and in the Constitution on issues relevant to freedom of speech and expression vis-a-vis hate speech, what then ought to be the appropriate legal approach in regulating free expression? In attempting to suggest what I consider to be a possible legal approach, I deem it necessary to be explicit here. The regulation of freedom of speech and expression in the emerging constitutional order based on human rights ought to be limited only to such speech and expression that is illegal under human rights-inspired international law and is strictly necessary to control harmful hate speech. It is appropriate that the regulation be regulation of abuse and not proper use of free speech and expression, however critical or robust it may be. In other words, regulations at the level suggested by Frank Michelman: “Regulations narrowly drawn to catch the clearest cases of racially vilifying and personally harassing speech”.
The object of these limited legally sanctioned regulations is that it ought not to be allowed to stifle the development and expression of thought and conscience. A nation or society is the poorer if it deliberately regulates free speech and expression to the point of dumbness. Contradictions and disagreement in society ought to be allowed wide margins to be articulated and expressed openly and without fear. It has been raised in the hate speech debate before that no law, however stringent, is able to eliminate racism - implying that it is a waste of effort to try and use the law to discourage those who are racists and wish to express their racism openly. I beg to differ. The object of the law against 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 and thought publicly. It is to discourage and limit, not to eliminate the belief or its practice entirely. After all, we have laws against deliberate homicide and theft, but these practices continue to exist. I am convinced that the existence of laws against these practices contributes to limiting the incidence of homicide and theft. Like others who have commented on the issue of political hate speech, the scope of protection to professional politicians or those who actively participate in politics, particularly those paid by public funds, ought to be even more narrowly defined than it may be to the rest of society.
Finally then, what am I proposing as the appropriate legal approach in confronting the problem of hate speech? Hate speech, as I have attempted to demonstrate, violates and undermines fundamental human rights of the victims, either individually or collectively. Section 7(4)(a) of the interim Constitution provides that “...when an infringement of or a threat to any right entrenched in this Chapter [Chapter 3] is alleged, any person .... [the victim]... shall be entitled to apply to a competent Court of Law for appropriate relief...”. “Appropriate relief” here suggests some form of civil law remedy which necessarily includes the declaration that a right has been violated and some corrective measure is needed. The latter may be in the form of restitution and/or reparation, or in some circumstances an appropriate apology from the offender(s) with an accompanying undertaking that the offender(s) shall not repeat the offending act or behaviour. Beyond this individual to individual or group to group remedy within the framework of the law,
What I have suggested here is, therefore, a legal response that combines civil and criminal law. It is also one that is not exclusively directed at punishing the offender without paying due regard to the victim. The form of punishment to the offender or appropriate remedy to the victim ought also to consider rehabilitation. This to me would be an appropriate approach to the protection and promotion of freedom of speech and expression which is sensitive to the whole body of human rights that we wish to form part of “the culture of human rights”. Such a “human rights culture” must also protect human dignity and ideals of equality. Such a “human rights culture” cannot be characterised by a legal order that allows some individuals and groups absolute freedom to torture or humiliate others and to create environments not conducive to good health and well-being of others. Notes1. Mandela v Falati 1994 (4)BCLR 1(W) per Van Schalkwyk at 8. 2. S v Makwanyane and Another 1995(6) BCLR 665 (CC) per Chaskalson P at 722-723, para 144. 3. per Kriegler J, Makwanyane, at 749 para 214 4. SBO Gutto Human and Peoples’ Rights for the Oppressed Lund University Press (1993) 403-4. This is also the internationally accepted approach as confirmed by the World Conference on Human Rights 14-25 June 1993 in the Vienna Declaration and Programme of Action Part 1 para 5. 5. JM Balkin “Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence” (1993) 103 Yale Law Journal 105-176. 6. Mari J Matsuda, “Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence the Last Reconstruction” (1991) 100 Yale Law Journal 1329-1407. 7. S v Zuma and Others 1995(2) SA 642 (CC) at 652I. 8. Gutto and Four Others v Ngweno and Three Others, High Court of Kenya, Civil Case No. 888 of 1981 (unreported). 9. The Herald (Harare) 3 November 1986. 10. “Academic Freedom and Human Rights Abuses in Africa” New York, Africa Watch, (1991) 129-130. 11. Froneman J in Qozeleni v Minister of Law and Order and Another 1994(3) SA 625(E), at 635B-C. 12. Kentridge AJ in Zuma supra note 7 at 652D-H. 13. In Gardener v Whitaker 1994(5) BCLR 19(E) at 34B-C. 14. See, for example, G Marcus, “The Wider Reaches of Censorship” (1985) 1 South African Journal on Human Rights 69; “Reasonable Censorship?” in H Corder (ed) Essay on Law and Social Practice in South Africa Juta (1988) 349-360; “Racial Hostility: the South African Experience”, in S Coliver (ed) Striking A Balance: Hate Speech, Freedom of Expression and Non-Discrimination Article 19 (1992) 208-222. 15. L. Johannessen, “Should Censorship of Racist Publications have a place in the New South Africa?” in S Coliver (ed), op cit note 15 at 223; C Mailer “The Media Regulations and the Ultra Vires Doctrine” in N Haysom and L Mangan (eds) Emergency Law Centre for Applied Legal Studies, Wits University (1987) 126-136. 16. D Meyerson, “No Platform for Racists”: What Should the View of those on the Left Be?” (1990) 6 South African Journal for Human Rights 394-398 at 394. 17. A Cockrell, “No Platform for Racists”: Some Dogmatism Regarding the Limits of Tolerance”, (1991) 7 South African Journal for Human Rights 339 at 339-340. 18. Act No 38 of 1927. 19. Marcus, “Racial Hostility: The South African Experience” op cit note 15, where he observes: “What is perhaps more surprising is that South Africa has had laws aimed at criminalizing the fomentation of racial hostility for over 60 years. It is ironic that such laws should exist in a country where government policy and practice, more than anything else, have been responsible for inflaming racial passions”. (at 209). 20. Act 44 of 1950. 21. Act 3 of 1953. 22. Act 83 of 1967. 23. Act 42 of 1974. 24. Act 74 of 1982. 25. International Convention of the Elimination of All Forms of Racial Discrimination, UN Gen. Ass. Res. 2106 A (XX) of December 21, 1965, Art.3 (The Convention entered into force on January 4, 1965). 26. International Convention on the Suppression and Punishment of the Crime of Apartheid, UN Gen. Ass. Res. 3068 (XXVIII), 1973 27. Makwanyane, supra note 3: Ackermann J at 732 para 171C; Kentridge AJ at 741 para 193F-G; and Langa J at 751 para 224. 28. E Neisser “Hate Speech in the new South Africa: Constitutional Considerations for a Land Recovering from Decades of Racial Repression and Violence” (1994) 10 South African Journal for Human Rights 336 at 352-353. 29. D Spitz “Eschewing Silence Coerced by Laws: The Political Core and Protected Periphery of Freedom of Expression” (1994) 10 South African Journal for Human Rights 301 at 323. 30. CA Mackinnon Sexual Harassment of Working Women Yale University Press (1979) 47. 31. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Gen. Ass. Res. 39/46 of 10 Dec 1984 (entered into force on 26 June 1987), Article 1(1). 32. The Constitution of South Africa Act 200 of 1993 Sections 35(1) and 231 (4). 33. UN Gen. Ass. Res. 2200 A (XXI) of 16 Dec 1966 (entered in force on 23 March 1976). 34. Op cit footnote 25, above. 35. F Michelman “Universities, Racist Speech and Democracy in America: An Essay for the ACLU” (1992) 27 Harvard Civil Rights - Civil Liberties Law Review, 339 at 344. 36. Op cit note 16. 37. Op cit note 17. 38. Marcus, “Racial Hostility: The South African Experience” op cit note 14 at 209 where he states: “Strangely, therefore, there appears to be a measure of consensus between the ANC and the South African government on the need to censor the propagation of racial hatred”. 39. K Lasson, “Racial Defamation As Free Speech: Abusing the First Amendment,”, 1985 17 Columbia Human Rights Law Review, 11 at 29; Van Schalkwyk J, stated in Mandela v Falati op cit note 1 at 9B: “... in general no politician should be permitted to silence his or her critics. It is a matter of the most fundamental importance that such criticism should be free, open, robust and even unrestrained. This is so because of the inordinate power and influence which is wielded by politicians, and the seductive influence which these attributes have upon corrupt men and women”. 40. The vertical (state to private persons relations) and horizontal (private persons to private persons relations) application of fundamental rights and freedoms recognised in the Constitution appear to be settled law for the moment - at least in defamation cases (Mandela v Falati and Gardener v Whitaker, supra notes 1 and 13 above.) 41. Section 7(4) of the Constitution. |
Introduction: