Exploring the constitutional definition of hate speech

The Prevention and Combating of Hate Crime and Hate Speech Bill is likely to become law during 2019. This bill and recent controversy surrounding the likes of Johann Rupert and Andile Mngxitama raises the age-old question about what the limits of freedom of expression, if any, should be. First, however, we should determine what the Constitution already allows, which is what this article will do.

The first draft of the bill elicited much controversy during 2017 when it provided – essentially – for the criminalisation of ordinary, everyday insults and conversation. For instance, it would have prohibited the use of insulting language that brings someone into contempt on the basis of their profession or beliefs. As a result, calling politicians “thieving liars” or calling people who believe the earth is flat “stupid”, could potentially have landed you in jail for up to five years.

Not only is there no room for such a law in a constitutional democracy that takes freedom seriously, but the law itself was grossly in contravention of the Constitution.

Section 16(2)(c) of the Constitution allows anti-hate speech legislation to criminalise only the “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”. The bill would have criminalised insults, not only advocacy of hatred, and would have done so based on seventeen grounds rather than the constitutionally listed four. Whether there was incitement to cause harm would also have been irrelevant.

Rightly, that version of the bill was scrapped and replaced by the second draft which is currently open for public comment.

The second draft of the bill is superior to the first but is not without its own problems. It defines hate speech as advocacy, publication, propagation, or communication that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm or promote hatred. The bill, thus, still criminalises the intentional advocacy of hatred without the incitement of harm, which is unconstitutional. The bill also still provides for far more grounds of hate speech than the four listed in the Constitution.

What, then, does your constitutional right to freedom of expression consist of, as regards hate speech?

The first thing to realise is that nobody has a right to not be offended. All manner of things are offensive to all manner of people for all manner of reasons. Our subjective tastes and standards should not dictate what public policy regarding the freedom to express oneself should be. Freedom is more important than subjective sensibilities and tastes and would be meaningless if we could say to others only those things that were inoffensive.

The Constitution, thankfully, takes cognisance of this state of affairs.

Constitutionally, this is what you may not do:

1. Advocate;

2. hatred;

3. based on race / ethnicity / gender / religion;

4. which amounts to incitement;

5. to cause harm.

In other words, to fall foul of the Constitution, you need to satisfy five requirements.

Your expression must amount to advocacy. Merely expressing a hateful opinion, whether in private or in public, is still constitutionally protected.

Your advocacy must be advocacy of hatred. Advocating discriminatory treatment, no matter how distasteful or inconsistent with the spirit of the Constitution this might be, is constitutionally protected. You might well, and probably will, fall foul of the equality provision – section 9 – which prohibits discriminatory treatment, if you act in accordance with this advocacy of discrimination; but the advocacy itself is protected.

The hatred you are advocating must be based on race, ethnicity, gender or religion. Advocating hatred based on occupation (against lawyers, politicians), language (against Afrikaans, Zulu), or nationality (against Zimbabweans, Americans) is constitutionally protected. Here, again, one might fall foul of section 9 if your protected advocacy of hatred amounts to discrimination.

The hatred you are advocating on these four grounds must constitute or amount to incitement. Advocating hatred, even based on the four listed grounds, like race or religion, is constitutionally protected if there is no call to action.

The incitement must be incitement to cause harm. This is perhaps the most contentious element of the constitutional hate speech definition, as “harm” might include emotional harm in addition to physical harm. This debate, however, is too wide-ranging for this article. If your advocacy of hatred based on a listed ground constitutes incitement to do something that is not harmful, it is constitutionally protected.

Whatever falls foul of the above is thus hate speech and can rightly be prohibited by legislation. If, however, one engages in hateful expression that complies with the constitutional protections, it is merely hateful speech, and legal. Whether Andile Mngxitama’s or Johann Rupert’s latest utterances are hate speech, hateful speech, or neither, is up to the attentive reader to decide.

The picture I have drawn above discounts the existence of laws like crimen injuria, the Promotion of Equality and Prevention of Unfair Discrimination Act, and the Films and Publications Act, all of which, I believe, are largely unconstitutional for their prohibition of expression that is, in fact, constitutionally protected. This article purely explored the constitutional position.

There is never a good reason for hateful speech but exercising one’s freedom should not require justification. A free society is one where even hateful people can freely be hateful. Were this not the case, everyone’s freedom would suffer, because freedom is either universal or non-existent. The constitutional definition of hate speech brilliantly weaves this reality into the necessity to ensure social cohesion.

Martin van Staden is Legal Researcher at the Free Market Foundation and is pursuing a Master of Laws from the University of Pretoria.