Hate speech: Should Constitution be amended to ban it?

DAVID BILCHITZ

These words are extremely apposite in light of a number of disgraceful racist utterances on social media that has ignited anger and stoked the flames of racial division in our country.

In light of several of these incidents, the government has proposed stricter regulations and penalties for speech that involves hate and prejudice including considering the criminalisation thereof. The current hate speech clause (section 16(2)) in the South African Constitution indicates that the right to freedom of expression does not include protection for the “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

In a recent submission, the South African Jewish Board of Deputies (SAJBD) has put forward a proposal to the Constitutional Review Committee of the National Assembly to amend this clause.

The SAJBD argues that the “incitement to cause harm” and “advocacy of hatred” components should be separated: this would mean that any speech that advocates hatred could potentially be prohibited without the need for it also to constitute incitement to cause harm.

This proposal raises the question as to why have a clause relating to hate speech in the Constitution? Clearly all constitutional democracies must value free speech highly. Yet, the Canadian Supreme Court clearly articulated certain strong reasons why it is justifiable to prohibit hate speech when it was faced with a case of a school teacher spewing vile anti-Semitic stereotypes (Keegstra).

It stated that the reasons for such a clause are two-fold. First, hate speech causes an effect in the targeted individuals or groups: the judges found that “[i]t is indisputable that the emotional damage caused by words may be of grave psychological and social consequence”.

Hate speech thus causes the targets of the hate often to feel humiliated and degraded, leading to a sense of insecurity and alienation from the society as well as responses of deep anger and resentment.

Secondly, hate speech has an effect on society: even if people generally reject these messages on a rational level, they often affect people’s attitudes across the society more subtly and perniciously. This speech can also attract people to the cause of hate and also cause serious discord between people in a society exposing fault-lines and sewing division.

In light of South Africa’s painful history, it is clear that both these types of harm are created by hate speech. It also, in our context, harms the delicate process of healing and reconciliation that still needs to take place.

This indeed provides strong reasons for the SAJBD’s submission. When discussing recent regulations on student protests, I initially was also of the view that there was no place for advocacy of hatred on university campuses and an incitement dimension was not necessary. A colleague of mine, however, persuaded me against the wisdom of such a position.

She raised the problem that the concept of “advocacy of hatred” alone contains an inherent subjectivity. For instance, if someone provides a detailed critique or perhaps satirical cartoon about Jewish religious doctrines, could particularly sensitive religious people not see that as advocating hatred against Jews?

Moreover, in more fraught political debates such as around Israel/Palestine, would someone justifying Israel’s response in the 2014 conflict in Gaza be guilty of advocating hatred against Palestinians?

Could someone advocating for a boycott of Israel automatically be regarded as advocating hatred against Jews? Shouldn’t all these discussions be allowed in a society that values free speech?

The problem is that the boundaries of the concept of “advocacy of hatred’ are unclear: if it comes to include everything some members of a group find distressing, freedom of expression will be severely curtailed.

The ‘incitement to cause harm’ component narrows the category of what constitutes hate speech and adds an objective dimension to the test. Harm has been understood in courts to include not only physical harm but also emotional and psychological harm. As such, this additional dimension can help to ensure a balance is attained between protecting free speech and preventing the harms attendant upon hate speech.

There is an additional reason why I do not think the SAJBD’s submission is desirable. The fundamental rights sections of the Constitution represent a broad societal agreement on central values which was reached after hard-fought negotiations across the political divides of South Africa in the 1990s.

Generally we should leave the South African Bill of Rights alone without amending it as opening up the Bill of Rights for amendment is a risky enterprise. The reasons are clear: at a particularly fragile time, doing so may open up fault-lines in society and affect the still shaky foundations of the détente reached in the constitutional negotiation process. 

It is also important to recognise the limits of law-making in this sphere. Law can make an important statement about the unacceptability of hate speech and, already, significant provisions exist in equality legislation for remedies in this regard.

At the same time, there is an overemphasis in South Africa on legal solutions without engaging with wider social strategies. The recent launch of an Anti-Racism Network of South Africa with over 80 civil society organisations is a heartening initiative which seeks to utilise advocacy, research and education to help address and eradicate racism. This wider societal approach is key in addressing other forms of prejudice too, such as sexism, xenophobia and homophobia. Ultimately, it is the responsibility of all of us to make it clear that hate speech and prejudice of any kind is socially unacceptable and has no part to play in the South Africa of the future.

David Bilchitz is Professor of Fundamental Rights and Constitutional Law at the University of Johannesburg