Recent circulation of the draft “prohibition of hate speech” bill makes it appropriate to ask whether the potential harm of allowing hate speech outweighs the harm likely to result from prohibiting it. The answer is essentially a tussle between the right to freedom of expression and the right to equality, and lies in a balancing act that weighs up these competing rights.
The philosophical starting point in defence of free speech is usually that it assists in the discovery of the truth. The metaphor adopted for thinking about the truth-seeking rationale is the “marketplace of ideas”. In this marketplace, citizens meet as equals and no idea is suppressed. The purpose of the marketplace is to enable wise decisions to be made for the general good, based on a hearing of all viewpoints. If relevant information is not heard, the truth will not emerge.
The “slippery slope” argument, also in favour of free speech, states that even extremist speech should be protected. If not, the core of free speech is threatened. This is the view of the philosophers referred to as “civil libertarians”. They believe that while hate speech is of concern, it can only be prohibited where there is a “clear and present” danger of violence, analogous to shouting “Fire!” in a crowded theatre.
It is my view that the serious flaws in these arguments work in favour of the right to equality and legislating against hate speech.
For a start, democracies that respect equality accept that legislation and government regulation are required to protect the vulnerable. To (ab)use freedom of expression to permit disadvantaged or vulnerable groups to be harmed misunderstands the proper role of government and free speech. Governments must speak on behalf of those who cannot be heard; to facilitate the expression of their ideas and promote their interests.
Secondly, the way civil libertarians use the truth rationale pushes the claim too far. Where speakers deliberately misrepresent the truth, the “truth rationale” is not a persuasive reason to protect the speech. For example, the opinions of ardent racists that advocate that a particular race is superior to another based on scientific, religious or other grounds cannot be said to contribute to truth-seeking. While these forms of extremist speech may be of value in educating the population about issues such as bigotry and racism, it is far from clear that an open confrontation with racist hate speech in the marketplace leads to a richer belief in the truth. It is more likely that the opposite result occurs. If one looks to other areas where the primary objective is pursuit of truth, the marketplace is not the model used. In criminal law for example, speech is recognised as being important to learning the truth, but so is its potential to undermine the truth.
The marketplace also assumes unhindered access, where all citizens have the opportunity to communicate and be heard. The reality is that the mass media “owns” the skills, language, and techniques necessary to address people, and there will be some who do not have access or are illiterate. So the “marketplace” is now distorted.
Another argument against such legislation is that words are capable of more than one meaning, and that the imprecise use of words to describe a criminal offence may result in inconsistent application of the law. Of course, although open-ended words such as “reasonable” and “harm” may create opportunities for abuse, they are the starting points to principled approaches in many areas of law.
Ultimately, the draft bill on prohibiting hate speech is currently too broad and in parts goes beyond what is constitutionally permissible. But it is a start. Hate speech has to be limited because, if it isn’t, immeasurable harm results. The only issue is where to draw the line.
Reggie Manyakara is a candidate attorney with Rosin Wright Rosengarten, a firm specialising in entertainment and media law based in Johannesburg.