Why hate speech and hurtful comments aren’t the same thing

MARTIN VAN STADEN

As John Stuart Mill put it, “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.” The liberty to express oneself, even and especially if that expression doesn’t receive buy-in from the masses or the elite, is fundamental to any free society.

The Constitution is clear about when the state may, and importantly when it may not, prohibit offensive expression. Prohibition applies only when hatred is being advocated on the basis of race, ethnicity, gender, or religion, and when that advocacy amounts to incitement to cause harm. If bigoted expression does not tick every box of this definition, it cannot be prohibited as hate speech. The Constitution thus brilliantly balances freedom of expression – a fundamental human liberty – with the necessity to pre-empt the infringement of individual rights that follow from expressions of hate speech.

Neither the Holocaust, the apartheid system, nor the genocide in Rwanda fell out of thin air. These crimes against humanity were preceded by years of advocacy of hatred based on immutable characteristics, and often included calls to action to cause real harm. Society has an interest in ensuring violence-inspiring expressions are nipped in the bud before they develop into atrocities.

In other words, incitement – a call to action – is necessary, and it must be aimed at causing harm. When conceptualising harm, we must guard against a threshold so low that any offensiveness amounts to “emotional” or “psychological” harm. Instead, the harm must ideally be material or tangible – something we can perceive – like physical or financial harm.

If we are truly to take hate speech seriously, we must adhere, strictly, to the Constitution’s precepts, and not bend the meaning of hate speech so that expressions that simply offend or insult us, or hurt our feelings deeply, are similarly prohibited. Advocate Mark Oppenheimer calls this latter category “hurtful speech” as opposed to hate speech, and this means the speech is condemnable and detestable, but not prohibitable.

When we throw the accusation of “hate speech” at all instances of bigotry, we dilute its meaning and, in some respects, cry wolf. We might then create a situation where, in the future, when real hate speech is developing toward an atrocity, our pleas for assistance fall on deaf ears.

The recent case in the Equality Court between the Nelson Mandela Foundation and AfriForum is an example of hate speech not being taken seriously. This is the case in which display of the old South African flag for so-called “gratuitous” purposes was said to be enough to constitute hate speech.

The Constitution’s protection of freedom of expression was almost entirely ignored in the judgement. It didn’t have proper regard to whether there were actually, in the facts before the court, advocacy (as opposed to mere expression), whether that advocacy was of hatred (as opposed to some other deep-seated emotional disposition), and whether there was incitement to cause harm (as opposed to no incitement, or incitement to cause something other than harm).

In essence, what the Equality Court concluded, was that any expression that is not made “in the public interest” for journalistic, artistic, or academic purposes, and which to most people is hurtful or offensive, amounts to hate speech. The dominant perception of the old flag, according to the Equality Court, is that it stands for white supremacy, and this was enough to establish hate speech.

This precedent infringes not only on constitutional freedom of expression, but devalues the concept of hate speech in the public discourse.

The Rule of Law Project of the Free Market Foundation was in the Constitutional Court as an amicus curiae (friend of the court) in the case between the Human Rights Commission and Bongani Masuku, who is alleged to have made anti-Semitic remarks. In Masuku’s case, his expression did amount, as far as we are concerned, to hate speech as contemplated in the Constitution. But our interest in the case is a principled one.

We are asking the Constitutional Court to read the Equality Act’s definition of hate speech as compliant with that of the Constitution. Others, like the Nelson Mandela Foundation, advocate that the Act be used to punish expression that is merely hurtful. As constitutionalists, however, we insist that incitement to cause harm be present. With judgement reserved, we await the court’s conclusion. We are hopeful that the court will take hate speech seriously.

• Martin van Staden is head of legal policy at the Free Market Foundation, and is pursuing a Master of Laws degree at the University of Pretoria. He is author of ‘The Constitution and the Rule of Law: An Introduction (2019)’.