SHARE
Candle flame out

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.

Many memes (such as this one) mocking current conceptions of gender have emerged on social media.

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?

National Assembly (Wikipedia | Kaihsu Tai)

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.

SEE ALSO: 7 Reasons Why Apartheid Was Not ‘Capitalist’ by Martin van Staden

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.”

  • Rory Short

    Morality and integrity come from inside a person, they cannot be imposed from outside. The only thing that society can do is to try to prevent people who lack morality and integrity from threatening, or perpetrating, violence on others.

  • Harald Sitta

    1. This bill invites every professional Sissie to feeeeeeeeeel violated. An open door for chicanery and frivolous law suits is wide opened. 2. It is an invitation to moral discrimination and legal criminalization aimed at the usual suspects being the whites, the rich, the privileged and so on with the other usual suspects being able to maraud around. 3. All films of billy wilder would fall under this bill. Questions ?

    • Vicky Moriarty

      Billy Wilder was a great director and an even better screenwriter. His films are exclusively white, so that alone is probably a criminal offence.

      • Harald Sitta

        White, born in Vienna, Jewish, American, Hollywood white monopoly fiilm industry &&&&&

        • Vicky

          I said white instead of Jewish, because most all of the actors in his films are gentile. What is your favourite Wilder film? Mine is Double Indemnity.

          • Biloko

            The Producers – definitely not only the best Billy Wilder film, but the best comedy film EVER! Of course, under such a bill, the director, the actors and the filmographers would soon find themselves in prison, as there is something for every sensitive flower to complain about! How silly, when one could simply laughing one’s head off !

          • Vicky

            The Producers is a MEL BROOKS/GENE WILDER film, not a Billy Wilder film. Forget about the fickle flowers… Any “hate speak victims” Even “victims” of slurs/historical revisionism should have NO legal basis to enforce their “rights”. No one has the right to not be offended. Even if that offence includes words starting with the 11th and 14th letters of the English alphabet.

          • Harald Sitta

            “n” .. all right but “p” ??

          • Steven van Staden

            Flowers thrive in compost (what the Americans call ‘dirt’). Our most virulent and rampant weeds are too feeble-rooted to tolerate it.

          • Harald Sitta

            “One two three” with James Cagney and Horst Buchholz

          • Vicky

            That one is also great. Cagney’s gangster films are fantastic. Trump WON, the era of Political Correctness is over. Except in Africa where we are a few centuries behind.

          • Harald Sitta

            Not yet but a wonderful step forward. With some courage we also can make SA Great again!

          • Vicky

            We need to remove power from our viciously anti-free speech, anti-free market Constitutional Court first.

  • Steven van Staden

    It is ominous that since support for the ANC has begun to crumble in the wake of unprecedented widespread criticism, this Bill violating freedom of expression, under the cunning guise of hate speech, rears its terrifying Medusa-head. Even more worrying is that the citizenry seem generally to be taken in by the misnomer ‘hate speech’ – which right-minded people will naturally be inclined to condemn – and fail to realise the implications of many of the terms that violate the very basic right to legitimate freedom of expression on which liberal democracy absolutely depends.

    It is not ‘hate speech’ to call a spade a spade or a thug and thug, but in terms of some of the clauses in the proposed Bill, such statement of fact would pose such risk of prosecution that freedom of speech would be effectively violated.

    If a venal, corrupt, incompetent political party were to be described as such, clauses in the proposed Bill have it that such description could justifiably be construed as insulting or bringing the party into disrepute, whereas in fact it is the characteristic or behaviour of the party that brings disrepute or insult, not the description or criticism which is accurate and pertinent.

    • Nasdaq7

      Jail someone for 10 years.

    • Vicky

      I am banned from Politicsweb.

      • Steven van Staden

        I’m interested to know more. My email address is: stevenvanstadenthecloisters@gmail.com

        • Vicky

          About what?

          • Steven van Staden

            If you were banned from Politicsweb for expressing that opinion, then I give up trying to understand the meaning of freedom of expression.

          • Vicky

            I have just published a remark, check it out and see if it’s up to scratch.

        • Vicky

          I think I was banned for saying that Mandela is my least favourite post 94 President. It might be a minority opinion in liberal circles, but among right wing people and white expats it is a commonly held opinion.

  • Vicky Moriarty

    “fickle, because the Constitution does not really guarantee it.” Thank You! Thank You! Thank You for this sentence. I have been waiting a long time on this site for someone to mention this.

  • Biloko

    If this bill goes through as it stands, thousands of cartoonists will be bereft of their trade … and the world will be a poorer and sadder place.

    • Vicky

      You can still find Ben Garrison cartoons on his Twitter, but then again he lives in the free world.