The Dying Light: Freedom of Speech is Fading Fast

Written by: Nic Haussamer

In an Oxford Union debate entitled Freedom of Speech and the Right to Offend, Peter Hitchens (brother of the late Christopher Hitchens) had this to say:

“…what the offensive person has actually said is seldom very important. It is what the offended person believes him to have said that counts, and this is the process into which we are rapidly entering as a society. We are moving towards a strange dictatorship of rage, where any approved group or any approved person’s fury is sufficient to trigger cause for the denial of platforms, for the ostracism of one kind of another of that person – in effect, for the silencing of those people, and the suppression of their opinions. This is a sinister development.”

In South Africa, the described ‘dictatorship of rage’ may well become the law of the land in the near future, backed by the full force of the State – unless, for example, our courts strike it down. I am referring, of course, to the proposed Prevention and Combating of Hate Crimes and Hate Speech Bill.

What the Bill says, and what it means for us

Johan van der Merwe has already touched on the legal aspects of the Bill, but I think it’s worth going over some important points here.

Section 4(1)(a) of the Bill states the following:

Any person who intentionally, by means of any communication whatsoever, communicates to one or more persons in a manner that –
(i) advocates hatred towards any other person or group of persons; or
(ii) is threatening, abusive or insulting towards any other person or group of persons,
and which demonstrates a clear intention, having regard to all the circumstances, to –
(aa) incite others to harm any person or group of persons, whether or not such
person or group of persons is harmed; or
(bb) stir up violence against, or bring into contempt or ridicule, any person or group of persons,
based on race, gender, sex, which includes intersex, ethnic or social origin, colour, sexual orientation, religion, belief, culture, language, birth, disability, HIV status, nationality, gender identity, albinism or occupation or trade, is guilty of the offence of hate speech. [Emphasis added]

Perhaps the most disturbing part of the text is that insult and ‘ridicule’ have been woven in between serious and genuine crimes – such as acts of violence and intimidation – thereby granting these things equal significance.

The Bill goes on to say in section 4(1)(c):

Any person who intentionally, in any manner whatsoever, displays any material or makes available any material which is capable of being communicated and which constitutes hate speech as contemplated in paragraph (a), which is accessible by or directed at a specific person who can be considered to be a victim of hate speech, is guilty of an offence. [Emphasis added]

If the Bill is enacted, this would mean that instead of being laughable, a person’s declaration of “I’m offended!” in response to anything you have said might be cause for major concern. The primary reason for this concern is the prescription of sentences in section 6(3): someone found guilty of ‘hate speech’ can be fined, imprisoned for up to 3 years, or both, in the case of a first offence. Subsequent convictions can earn the ‘heinous’ perpetrator additional fines, and up to 10 years in prison.

Consider the example of an actuary and an accountant having lunch – the accountant tells a joke: “actuaries are those who didn’t have the personality to become accountants.”

“I’m offended!” responds the actuary, who promptly presses charges. On the grounds of ridicule on the basis of occupation or trade, the accountant spends 3 years in jail for their thought crime hate speech.

Consider another example of the memes that have been doing the rounds on social media that deliberately mock the idea of there being more than two genders. The creator of the meme would be guilty of ‘hate speech’. Everyone who shared the meme, being party to this ‘crime’, is guilty as well – just read section 4(2).

An anaemic excuse that has been used elsewhere is likely to be used to defend the Bill:

Of course the government won’t use the law for such silly things!

in response to which it is completely reasonable to say: even if today’s government does not use it as such, who can say that future governments won’t? The legal framework allows for precisely that sort of action.

Moreover, even if such ‘small’ matters are not brought before our courts, there is always the possibility of the present government exploiting the provisions of the Bill to achieve political ends – in light of South Africa’s current political landscape, this cannot be ruled out.

The state of free speech in South Africa

Disregarding the proposed Bill for the moment, free speech has long been a fickle right in South Africa: fickle, because the Constitution does not really guarantee it.

Section 36 of the Constitution allows for the limitation of the rights in the Bill of Rights to be restricted, if such limitation is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors…” Not only are terms like ‘dignity’, ‘equality’ and ‘freedom’ nebulous, seldom properly defined, and taken to mean different things by different people (including judges), but the ‘relevant factors’ constitute a Pandora’s box in their own right (one which is not clearly limited by the text of the Constitution).

To put it plainly – as my colleague Martin van Staden has said – anyone with a good lawyer can have your rights taken away.

If that is the current legal status of free speech, then the hate speech Bill would only further entrench the ability of the State to forcibly shut people up.

What is the role of the State in human interaction?

In his article, Johan van der Merwe states that the “goal of the legislature is honourable, and even morally sound.” That is perhaps too generous a reading of the Bill and the intentions behind it. Contrary to what he suggests, the Bill is not an otherwise good piece of legislation that unfortunately happens to overstep the boundaries a bit; it is a legal and a moral aberration.

South Africa’s history is eminently one of State control over individuals’ social (and economic) interactions. This is certainly true of Apartheid, which was a system of State co-ordinated social engineering on a grand scale. This is also true of many laws and regulations that exist today.

One of the premises underlying the hate speech Bill is that there is a legitimate role for government in influencing or controlling how people interact, and regulating their conduct beyond what is appropriate. In South Africa, this premise goes largely unchallenged; in fact, it is often wholeheartedly embraced.

Would it be nice if, generally, people got along well? Undoubtedly. Should the State get involved? Certainly not.

The appropriate role of the State is to ensure that people and their property are protected. This means that physical violence and threats of violence (which often include intimidation) must be dealt with by the police and the courts.

This also means that besides threats of violence, just about everything else is on the table as far as permissible speech goes.

In returning to the Bill, then, the best remedy would be to scratch the whole thing off.

As concerning as the Bill is, perhaps more worrying is the broader culture of labelling people’s views as intolerable ‘-isms’ and ‘phobias’, simply because people find those views to be disagreeable. It is from this sort of social climate from which a ‘dictatorship of rage’ emerges. Thus, to return once more to the wisdom of Peter Hitchens,

“When you start believing that the opinions of other people are a pathology, then you are in the beginning stage that leads to the secret police and the gulags.”

Nic Haussamer is a Rational Standard contributor.