The kind of fallout we have seen from social media racism is not new. What
may be new is the intensity of public incredulity that such abhorrent racial
hatred can be harboured 20 years after the Truth and Reconciliation Commission commenced its work. We are now resigned to the realisation that exposing the suffering inflicted on black bodies and spirits under a system designed to perpetuate white privilege at all costs, was not enough to awaken compassion in the hearts of the heirs to apartheid’s legacy.
Many feel that compulsion can achieve what compassion has not, so they support the government’s drive to ensure that acts of racism and promoting apartheid are criminalised and punishable by imprisonment. Free speech fundamentalists balk at this, insisting that we must “tolerate intolerance”, that the antidote for racist speech is simply a robust antiracist reply, and that the Constitution enshrines the right to freedom of expression so fully that it protects all speech that does not incite violence.
Yes, the Constitution does say that. But it also says that any right may be limited by laws that are reasonable and justifiable in a democratic society, and it accords human dignity and equality special priority in the complex exercise of balancing competing rights. Parliament passed such a law in 2000: the Promotion of Equality and Prevention of Unfair Discrimination Act.
It prohibits speech that is deliberately harmful, hurtful or hateful to persons of another race (hate speech), as well as speech propounding racial superiority or exclusivity (discriminatory speech), and equips equality courts with wide powers to remedy racist speech through civil orders, including substantial fines.
Parliament was entitled, and obliged, to pass this law. And Parliament would arguably be entitled (as commanded by the International Convention on the Elimination of All Forms of Racial Discrimination) to pass a law criminalising “all dissemination of ideas based on racial superiority or hatred”. But, just because Parliament can pass such a law, doesn’t mean it should. Through laws we, as society, entrust the state with coercive power to regulate our behaviour.
We have to do this whenever it would be impossible, inadequate or inappropriate for us to pool our private financial and social power to achieve the same result. But each time we entrust the state with more power, we create the risk that it may be misused or misunderstood. This is particularly so when the behaviour being regulated is speech, for which the boundaries between “good” and “bad” behaviour are elusive or even subjective (especially in a political, social or cultural – as opposed to commercial – context).
For example, in 2011, deciding a complaint by AfriForum against Julius Malema, then president of the ANC Youth League, an equality court mistook its powers to include banning “all persons in society” from ever singing or reciting the lyrics of the struggle song, Dubul’ iBhunu (Shoot the Boer). At least, however, equality court proceedings are civil in nature, so they are controlled by the parties, who are free to reconcile and resolve their complaint amicably (as AfriForum and Malema ultimately did at the appeal stage).
Criminal proceedings, on the other hand, belong strictly to the state. Political, social and cultural confrontations, waged through words, do not easily lend themselves to resolution through the forensic crucible of criminal prosecution. Hard questions would have to be asked and answered about proof and punishment. (Is this tweet racist? Does retweeting it constitute criminal complicity? How many years in prison for posting this on Facebook? For sharing it? For liking it?)
The conveyor belt of police, prosecutors, courts and correctional boards will not be sufficiently equipped to answer them. By legislating limits on speech, we invite the state into the contested terrain of ideas and interpretation, where its clunky intervention may in fact stifle the confrontation of entrenched racist views.
It should be for society, not the state, to scrutinise the intention and interpretation of hurtful speech expressed by any individual – be it a tweet, a painting, a song, a column or a cartoon. Of course it is possible, and essential, to challenge and change behaviour, including speech, by drawing lines in the sand. But it does not follow that they should be drawn by the law, especially criminal law, which does not draw lines in sand but in stone.
February 2016
When we entrust the state with more power we create the risk it may be misused
Ben Wicks, an attorney with Herbet Smith Freehills SA LLP, on racism and freedom of speech
So far it has been a rough year for racists, serving some tough lessons about what not to say on social media. Many now call for the law to draw a firmer line against racism. But where? And more importantly: why?
The kind of fallout we have seen from social media racism is not new. What
may be new is the intensity of public incredulity that such abhorrent racial
hatred can be harboured 20 years after the Truth and Reconciliation Commission commenced its work. We are now resigned to the realisation that exposing the suffering inflicted on black bodies and spirits under a system designed to perpetuate white privilege at all costs, was not enough to awaken compassion in the hearts of the heirs to apartheid’s legacy.
Many feel that compulsion can achieve what compassion has not, so they support the government’s drive to ensure that acts of racism and promoting apartheid are criminalised and punishable by imprisonment. Free speech fundamentalists balk at this, insisting that we must “tolerate intolerance”, that the antidote for racist speech is simply a robust antiracist reply, and that the Constitution enshrines the right to freedom of expression so fully that it protects all speech that does not incite violence.
Yes, the Constitution does say that. But it also says that any right may be limited by laws that are reasonable and justifiable in a democratic society, and it accords human dignity and equality special priority in the complex exercise of balancing competing rights. Parliament passed such a law in 2000: the Promotion of Equality and Prevention of Unfair Discrimination Act.
It prohibits speech that is deliberately harmful, hurtful or hateful to persons of another race (hate speech), as well as speech propounding racial superiority or exclusivity (discriminatory speech), and equips equality courts with wide powers to remedy racist speech through civil orders, including substantial fines.
Parliament was entitled, and obliged, to pass this law. And Parliament would arguably be entitled (as commanded by the International Convention on the Elimination of All Forms of Racial Discrimination) to pass a law criminalising “all dissemination of ideas based on racial superiority or hatred”. But, just because Parliament can pass such a law, doesn’t mean it should. Through laws we, as society, entrust the state with coercive power to regulate our behaviour.
We have to do this whenever it would be impossible, inadequate or inappropriate for us to pool our private financial and social power to achieve the same result. But each time we entrust the state with more power, we create the risk that it may be misused or misunderstood. This is particularly so when the behaviour being regulated is speech, for which the boundaries between “good” and “bad” behaviour are elusive or even subjective (especially in a political, social or cultural – as opposed to commercial – context).
For example, in 2011, deciding a complaint by AfriForum against Julius Malema, then president of the ANC Youth League, an equality court mistook its powers to include banning “all persons in society” from ever singing or reciting the lyrics of the struggle song, Dubul’ iBhunu (Shoot the Boer). At least, however, equality court proceedings are civil in nature, so they are controlled by the parties, who are free to reconcile and resolve their complaint amicably (as AfriForum and Malema ultimately did at the appeal stage).
Criminal proceedings, on the other hand, belong strictly to the state. Political, social and cultural confrontations, waged through words, do not easily lend themselves to resolution through the forensic crucible of criminal prosecution. Hard questions would have to be asked and answered about proof and punishment. (Is this tweet racist? Does retweeting it constitute criminal complicity? How many years in prison for posting this on Facebook? For sharing it? For liking it?)
The conveyor belt of police, prosecutors, courts and correctional boards will not be sufficiently equipped to answer them. By legislating limits on speech, we invite the state into the contested terrain of ideas and interpretation, where its clunky intervention may in fact stifle the confrontation of entrenched racist views.
It should be for society, not the state, to scrutinise the intention and interpretation of hurtful speech expressed by any individual – be it a tweet, a painting, a song, a column or a cartoon. Of course it is possible, and essential, to challenge and change behaviour, including speech, by drawing lines in the sand. But it does not follow that they should be drawn by the law, especially criminal law, which does not draw lines in sand but in stone.