Why the hate speech provisions may be unconstitutional

One should be careful not to endorse legislation merely because it is being used in one case against one person whom one may not like very much. It is always better to look in a principled manner at legislation and to ask whether the legislation is good or bad for our democracy and whether the legislation passes constitutional muster. This is why I believe it is important to look critically at the hate speech provision in section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

Such a critical evaluation will reveal that there are serious questions about the constitutionality of the hate speech provision. In fact, I suspect that the provision is unconstitutional and hope that it will be challenged by someone (Julius are you there?), so that it can be declared invalid by the Constitutional Court. Here are the reasons for this view.

The hate speech provision in PEPUDA has to be tested against section 16(1) of the Constitution. This section guarantees the right to freedom of expression for everyone and includes (but is not restricted to) the freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.

This freedom is qualified in section 16(2) of the Constitution which states that freedom of expression “does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

This means that if Parliament passed a law that prohibits criticism of the President or sets up an elaborate system for the registration of newspapers to try and prevent the flourishing of a free press or prohibits artists from displaying works of art of women embracing, this will contravene the guarantee of freedom of expression and will almost certainly not be justifiable in terms of the limitation clause.

It also means that if Parliament passed a law prohibiting hate speech in accordance with section 16(2), such a provision will not be protected by the Constitution and will thus be constitutionally valid. But what happens if Parliament prohibits hate speech in a manner that is far broader than that envisaged by section 16(2)? That provision will then infringe on the right to freedom of expression set out in section 16(1) and the legal question would be whether the provision was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as set out in the limitations clause in section 36 of the Constitution.

It is clear that section 10 of PEPUDA prohibits hate speech in terms far broader than that envisaged by section 16(2) and it thus infringes on the right to freedom of expression set out in section 16(1). This is because section 10 – read with section 12 of PEPUDA – states that:

no one may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred…. Provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution, is not precluded by this section.

This section is far broader than the section 16(2) exception because it includes speech based on any prohibited ground — not only the grounds of race ethnicity, gender or religion as stipulated in section 16(2). Speech targeting a person based on his or her sexual orientation, pregnancy, marital status, age, disability, conscience, belief, culture, language and birth may therefore also constitute hate speech in terms of the PEPUDA definition.

Secondly, the section does not only prohibit speech that “advocates hatred… and that constitutes incitement to cause harm”. Instead, any speech that can “reasonably be construed to have a clear intention to be hurtful” to any person because that person belongs to one of the listed groups will constitute hate speech.

This means, depending on the context, it may potentially be unlawful to refer to homosexuals as “moffies” (as Fred Kumalo did last weekend in the Sunday Times) or to tell a person that he or she is a pervert and will burn in hell because he or she is gay. Calling someone a “kaffir” or a “Boer” could constitute hate speech as well. When a religious person tells an atheist that he or she has been condemned by God to burn in hell this could also potentially constitute hate speech. If an atheist tells a religious person that he or she is a fool for believing in God or that the God he or she believes in is a cruel and heartless one, or that God is in any case dead, this could constitute hate speech.

Telling a 10 year old that he or she is wet behind the ears and still needs to grow up could constitute hate speech. Telling someone that their home language is ugly or was the language of the oppressor could constitute hate speech. Telling a polygamist that polygamy was a backward and oppressive cultural practice and that he was an oppressor of woman for indulging in polygamy could constitute hate speech. Telling someone that members from his or her ethnic group are lazy, cunning, dishonest or greedy could constitute hate speech.

The list is endless.

As long as one could show on reasonable grounds that there was an intention to be hurtful to a person because he or she belonged to one of the listed groups, the speech would be prohibited. This would depend on the context, but one can imagine that in millions of conversations across South Africa every year people say things about one another based on their attributes or characteristics with the intention to hurt their feelings. Section 10 potentially prohibits all such statements. The definition is therefore so broad that it severely infringes on our rights to freedom of religion and conscience. It also has the potential to severely limit  the expression of political and deeply held personal views.

This is so absurdly broad that it is difficult to see how the Constitutional Court would find that the hate speech provision is nevertheless justifiable in terms of the limitation clause. The limit placed on personal freedom and on the vigorous exchange of ideas so far outweigh the harm that would be caused by the “hurtful” speech, that it could not be said to be justifiable.

This does not mean that PEPUDA could not include a hate speech provision along the lines of section 16(2)(c). It does mean that the current provision is far too broad and is probably unconstitutional.

The current provision is also bad on policy grounds. In a vibrant democracy which respects difference and diversity — also diversity of opinion — it would be dangerous to ban all speech that could be construed as intending to be hurtful to another person merely because of that person’s race, sex, sexual orientation, religion, language, ethnicity, culture or age. Some of us remember all too well how the apartheid government tried to censor our thoughts and our speech. Do we really want to go back to a situation where we are so scared to express our deeply and sincerely held and honest opinions that we shut up because we fear we might be found guilty of hate speech?

I, for one, would not want that.

So, anyone who happens to know Julius Malema, please tell him he should not try to defend himself before the Equality Court regarding his “Kill the Boer” statement. Instead he should challenge the constitutionality of section 10 of PEPUDA and argue that the section is so broad that it could not possibly pass constitutional muster. That way something good might still come out of this mad distraction.

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