Bill criminalising hate speech may protect racists, sexists and homophobes

The criminalisation of individual harmful acts of bigotry will almost certainly not end racism and racial exploitation, sexism and patriarchy, homophobia and heteronormative marginalisation. But will the adoption of the draft Prevention and Combatting of Hate Crimes and Hate Speech Bill nevertheless have a modest impact for the better? And what about the argument that the hate speech provision as it is currently formulated in the Bill will have a chilling effect on robust political debate?

The criminal law is not a particularly effective way to deal with structural inequality and exploitation or with its morbid symptoms. Unless the material and symbolic conditions which perpetuate racial exploitation, patriarchy and heteronormative marginalisation are eradicated (something criminal law provisions can hardly be expected to do), our society will not be rid of racism, sexism and homophobia.

Bemoaning the fact that many South Africans get obsessed with specific “events” of racism (like Penny Sparrow’s racist outburst), instead of focusing on the structural issues that produce such events, and arguing that it might be better to shift from speaking of “racism” to speaking of “white supremacy”, University of Pretoria academic Joel Modiri, wrote in a Daily Maverick column last year that:

white supremacy must be understood more broadly as a political, economic and cultural system in which: (1) whites overwhelmingly control and have access to social power and material resources; (2) conscious and unconscious notions of white superiority (“whites are better than the rest”) and white entitlement (“whites deserve better than the rest”) are widespread, held mostly by whites but also by Blacks and (3) relations and images of white dominance and Black subordination are re-enacted daily across a wide array of institutions, spaces, platforms, media and social settings – both private and public, inter-subjective and structural.

Criminalising specific “events of racism”, Modiri argued, would do little to dismantle the political, economic and cultural system described above. Comparable (but of course not identical) arguments could be made about the dismantling of patriarchy or heteronormative culture.

I broadly align myself with this view. However, this does not mean that the adoption of the Prevention and Combatting of Hate Crimes and Hate Speech Bill might not in the long term have a modest, but limited, positive impact, unsettling – to some degree at least – the relations of power and domination Modiri spoke of.

This is because the criminal law is not only useful because it prohibits certain acts. It sends a signal that, as a society, we find certain actions so abhorrent that we are prepared to criminalise and punish it. Criminal sanction can therefore be norm-setting and could ideally influence behaviours and attitudes for the better.

Section 3 of the Bill is a case in point. It states that where the commissioning of a crime already recognised by our law is motivated on the basis of that person’s “prejudice, bias or intolerance towards the victim of the hate crime in question” because of one or more listed characteristics or perceived characteristics of the victim or his or her family member, that person commits a hate crime. The listed characteristics include: race; gender; sex, which includes intersex; sexual orientation; religion; belief; culture; disability; HIV status; nationality; gender identity; albinism; or occupation or trade.

Where a person is convicted of a hate crime this may allow the presiding officer to impose a heavier sentence on the perpetrator than would otherwise have been the case. The section thus sends a signal that – as a society – we abhor prejudice, bias and intolerance based on race, gender or gender identity, sexual orientation or the like.

I have previously written that, in principle, it is entirely possible to draft a constitutionally compliant legal provision that criminalises certain forms of hate speech. Passing such a provision may also make political sense for the governing party as it will be seen as responding to the outrage in society about individual “events” of racism, and of other forms of bigotry.

Unfortunately, section 4 of the current version of the Bill, which aims to criminalise certain forms of speech defined as “hate speech”, is almost certainly overbroad and hence unconstitutional. Section 16(1) of the Constitution guarantees for everyone the right to freedom of expression, while section 16(2) provides for a narrow set of exclusions of speech that is not protected by the Constitution. Section 4 clearly goes beyond the exclusions contained in section 16(2) and therefore infringes on section 16(1).

The hate speech provision in the draft Bill contains 4 distinct requirements that must be met before a person could be found guilty of hate speech.

First, there has to be some form of intentional communication to one or more other persons. A communication includes any gesture (like showing somebody the middle finger or a fist); display; or written words or pictures (including cartoons or works of art); or communications on social media (like WhatsApp messages, SMS messages, or posts on Twitter or Facebook).

Second, the person must have made the statement in a manner that:

advocates hatred towards any other person or group of persons; or is threatening, abusive or insulting towards any other person or group of persons.

Here we focus on the nature of the communication. Not only statements that advocate hatred against another person or group or threatens them will comply with this requirement. Statements that are abusive or insulting towards another person or group will also comply. For example, a statement that homosexuals will burn in hell or a statement that white people stole the land, or the statement “Fuck White People” printed on T-shirts and contained in a recently produced work of art, could be viewed as insulting of gays and lesbians or of white people. It would therefore not be too difficult to meet this second requirement.

Third, the communication must demonstrate “a clear intention, having regard to all the circumstances”, to:

incite others to harm any person or group of persons, whether or not such person or group of persons is harmed; or stir up violence against, or bring into contempt or ridicule, any person or group of persons.

Here we focus on the intention of the person who made the communication. To determine the intention the context in which the communication occurred will be important. For example, where a character in a play incites other characters in the play to kill somebody, the requirement may not be met because in the context of a theatre production, it will be difficult to conclude that the playwright had the intention to speak through her characters to incite the audience to kill anyone.

But this section is potentially sweeping in its breadth, because communications intended to bring into contempt or to ridicule another person would also meet this third requirement.

For example, if I make fun of Steve Hofmeyr’s musical talent, I will almost certainly be viewed as having the intention to bring into contempt or to ridicule him. Or if I respond on Twitter to a white person being clueless about race, for example, by tweeting: “Oh dear, mediocre white privilege rearing its ugly head again: learn to read and think”, I could easily be found to have had the intention to bring into contempt or ridicule the person I responded to. (In the age of Trump, it is difficult to imagine that suggesting that somebody is not a reader does not show an intention to ridicule). Of course every comedian and cartoonist would also become suspect as it is part of their trade to ridicule individuals for the foolish things they say and do.

The extraordinarily broad scope of the draft provision is potentially limited by the last requirement, namely that the incitement to harm, or bring into contempt or ridicule must be 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.

This means, if I insult someone with the intention to ridicule him based on the fact that he is fat or bald or a Blue Bulls supporter, I will probably escape prosecution for hate speech. As my intention is not to ridicule a person because the person is black or white, a man or a woman, gay or straight, or some other ground listed in the section, my speech will not meet the last requirement of the test.

But I may well be prosecuted for hate speech for ridiculing Steve Hofmeyr’s musical talent because my statement will be based on his occupation or trade. Similarly, insulting a politician with the intention to ridicule her based on the fact that she is a politician will comply with section 4 as it currently stands. And it goes without saying that insulting a white person who says something ignorant about race in a way that shows you have the intention to ridicule that person based on his race will suddenly become a criminal offence.

It is important to note that the section does not focus primarily on the position and relative power and privilege of victim. It makes no distinction between a “victim” with social and economic power and one without. It makes no distinction between “victims” who have historically suffered from vilification, marginalisation, subjugation and violence (black people; women; gays and lesbians) and those who have not (white people; men; heterosexuals).

If passed in its current format, this is one crime which Afriforum’s new private prosecutions unit may well be able to prosecute successfully. And let’s face it, it is not as if Afriforum is going to go after white, heterosexual men, if it pursues such prosecutions.

Given the sweeping nature of section 4 – which clearly infringes on section 16 of the Constitution – and given the fact that the provision could be more narrowly tailored to avoid the potentially absurd consequences of criminalising a large chunks of what currently goes for banter or political argument on social media, I would be surprised if a court found this infringement was justified by the limitation clause contained in section 36.

Parliament therefore needs to reconsider the wording of section 4. If it does not amend the section, it may well – on balance – do more harm than good as it could be used by the privileged and the powerful to silence those who speak up about injustice and oppression.

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