An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
The hateful racist comments posted on social media by one Penny Sparrow sparked yet another “debate” in South Africa about the wisdom of criminalising racist speech. Unfortunately, such “debates” seldom amount to more than the shouting of conceptually incoherent slogans by people who wrongly believe they are advancing principled and clear arguments.
When somebody engages in racist, sexist or homophobic speech, various human rights – especially the right to free speech – are often invoked in an attempt to turn attention away from the content of what was said. This allows the person invoking the right to free speech to avoid dealing with the structural racism, sexism or homophobia which produced the circumstances that made it possible for bigots to believe that they were entitled to think and say what they did.
What should have been a discussion about prejudice, hate and bigotry (about its origins, its persistence and how we could eradicate it) is suddenly turned into an issue of respect for human rights. We are implored to avert our eyes from that prejudice and bigotry and to focus on the principle of the need to respect the right to freedom of expression.
“I do not agree with the racism, sexism or homophobia of X,” we hear, “but X has the right to express his or her opinion. Once we place limits on the exercise of speech by attacking that speech too vigorously or by placing some legal limits on it, we descend on a slippery slope into censorship and authoritarianism.”
Superficially, this is an attractive argument.
The protection of the right to freedom of expression is of vital importance for a democracy to thrive. If our right to engage in robust discussion and debate about political and social issues is curtailed, we lose some of our ability to form independent opinions. Our ability to think critically about the world we live in is diminished and it becomes ever more difficult to make meaningful and real political choices.
Moreover, where novels and movies are censored and the content of magazines, the internet and newspapers subjected to state control, we lose some of the ability to explore our desires and dreams, to discover for ourselves how we wish to live and love; in short, we lose some of the ability to decide who we are and how we wish to live. When that happens our dignity is catastrophically impaired because we lose some of our agency.
But, not all forms of speech make any contribution to democratic debate or enhance our personal well-being. In fact, some forms of expression harm individuals or groups with no discernible benefit for society, for individuals or for our democracy.
This is why our law places limits on our right to defame others; why it is a criminal offence to incite others to commit crimes or to commit fraud by lying to others in order to benefit from it; why section 89(2)(c) of the Electoral Act precludes any registered political party or candidate from publishing any “false information” with the intention of influencing the conduct or outcome of an election; why the Equality Act regulates hate speech; why it is a criminal offence to make false statement to SARS.
Perhaps unaware that the law already criminalises or otherwise limits various types of speech – as it does in any democracy – free speech fundamentalists argue that we dare not regulate or criminalise racist, sexist or homophobic speech because “where will we draw the line”.
Anxiety about “where to draw the line” is well-founded. Those with power and privilege will always be tempted to limit freedom of expression to protect themselves or their financial interests.
For example, politicians may wish to pass laws to criminalise criticism of themselves or to stop anyone from mocking or laughing at them – despite the fact that this will inhibit democratic contestation.
Large corporations may donate large sums of money to politicians to get them to pass laws to protect those corporations from exposure for exploiting their workers or polluting the environment – despite the fact that such censorship may be catastrophic for ordinary citizens.
But just because it is difficult to decide where to draw the line, does not mean that no line should be drawn. As many different types of speech are already regulated or even criminalised, it is also nonsensical to argue that we should not regulate or even criminalise freedom of expression because of a slippery slope argument.
I can think of only two honest arguments against the regulation or criminalisation of racist, sexist or homophobic speech.
The first argument is that you do not consider racist, sexist or homophobic speech to be harmful or that you consider it at best only to be a minor harm. You may believe that it is perfectly fine to think and say racist, sexist and homophobic things because you see nothing wrong with racism, sexism or homophobia.
“What’s the fuss,” proponents of this view might say. “Racist, sexist or homophobic speech aimed at diminishing the dignity of others is a valid form of political speech as it helps to assert the power of the social and economically powerful over the marginalised and the vulnerable.”
In a constitutional democracy based on values of human dignity, equality and freedom, there can be no space for such an argument and it is unnecessary to engage with it further.
More convincing is the second argument, namely that racism, sexism and homophobia are deeply embedded in our society and can only be uprooted if it it is challenged, confronted and exposed. This can only be done, so the argument goes, if racists, sexists and homophobes remain free to spew their vitriol. Penny Sparrow’s racism would never have been exposed and challenged if she had been prohibited from expressing her racism.
It is true that racist, sexist or homophobic speech is a symptom of prejudice, seldom its cause. Its circulation on social media and elsewhere reflects far larger structural problems with our society, in which hatred and bigotry is so deeply embedded.
A strategic – but not principled – question is whether the criminalisation of bigoted speech will help to address and eradicate this structural racism, sexism and homophobia, or whether it would merely suppress it.
I think reasonable people can differ on this point. But let me construct an argument in favour of the criminalisation of racist, sexist and homophobic speech.
In doing so I am well-aware that difficult legal questions will arise as to how we will define racist, sexist and homophobic speech. Legal definitions would always run the risk of also encompassing speech that criticise or expose racists, sexists and homophobes.
But if we assume for the moment that it is possible to define racist, sexist and homophobic speech precisely and narrowly enough to catch only the speech of the bigots and to avoid limiting the speech of those who challenge bigotry, one could make a good argument for the criminalisation of such speech.
First, we use the criminal law to protect individuals and society at large against harm. Murder, rape, theft, fraud, corruption and robbery are all criminally prohibited to protect individuals and society against the harm that results from such actions. Note that crimes like corruption and fraud need not be shown to be harmful to a single individual: the harm can be to society as a whole.
Racist, sexist or homophobic speech (as verbal manifestations of racism, sexism or homophobia) harms the group targeted (by attacking and/or denying members of the group’s sense of self-worth and by promoting or further entrenching hatred against the group and disregarding their inherent dignity).
Such speech also harm society as a whole as it entrenches or perpetuates suspicion, fear and hatred. It makes it more difficult to establish social solidarity between people and eventually demeans us all.
But the criminal law is important not only because it prohibits harmful acts and punishes those who engage in such acts. It is also important because it helps to establish and promote societal norms. Even when a law is not vigorously enforced it can therefore play a role in teaching individuals how to behave by signalling what behaviour society as a whole believes to be beyond the pale.
I concede that difficult practical questions may arise about the ability of the state effectively to prosecute and punish individuals who are guilty of racist, sexist or homophobic speech. The same is often said of, say, marital rape. That does not mean that as a society based on human dignity, equality and freedom, we will not criminalise marital rape, exactly because the criminalisation provides both an immediate mechanism to hold perpetrators to account while also playing a more symbolic role in signalling the society’s abhorrence of the acts of the perpetrator.
Of course, criminalising racism, sexism or homophobia on its own will only address the symptoms of a much larger and structural problem in society. It would be a mistake to think that we have addressed the widespread prevalence of racism, sexism and homophobia when we have criminalised racist, sexist or homophobic speech.
Much more thought, reflection and eventually decisive action from all of us are required to begin to address the more fundamental problem. What I am asking here is whether the criminalisation of speech that promote racism, sexism and homophobia would not be a tiny first step to do so.BACK TO TOP