Business Day column: Hate speech law may well curb all manner of freedoms

Beware — if the hateful hate speech bill is enacted, telling someone that they induce the episodic levator ani syndrome variant of proctalgia funaxal sacrococcygeal distress in your pubococcygeus could have you jailed for a whole three years.

In plain English, that amounts to calling someone a pain in the a**e. The fact that you stated an objective fact will be no defence. Under the hateful law, you will have to say “go to hell” so politely that hellish folk look forward to the journey.

You might wonder how legislators reconcile controlling your mouth with their proclivity for hate speech. Our beloved Constitution places them above laws they impose on us. The “parliamentary privilege” clause (58) says they “have freedom of speech in the Assembly and in its committees … and are not liable to civil or criminal proceedings, arrest, imprisonment or damages for anything that they have said [or revealed].” That is why Patricia de Lille (as MP) could, without adducing evidence, accuse ministers and ANC luminaries of being apartheid spies.

Do not expect the law to be applied even-handedly. Women, socialists, black people and liberals may be allowed in practice if not in law to insult men, bankers, white people and bureaucrats. Julius Malema, but not Steve Hofmeyr, may be allowed to call president Zuma a criminal.

Gareth Cliff says hate speech obsession entails a “hierarchy”. The extent to which you tick victimhood boxes is the extent to which you may spew hate speech. If you are a lesbian rape survivor, he says, you may insult men. If you are black, you may insult whites. But if you are a middle-aged, middle-class white man, racism, sexism, prejudice and bigotry will, he suggests, be read into everything you say. Chris Hart’s reputation and career, if not his life, were destroyed because, without suggesting race, he lamented ambiguously “a sense of entitlement and hatred towards minorities”.

Gwen Ngwenya produced a “list of quotes from high-profile black South Africans whose racial slurs did not elicit … outrage”. Lindiwe Sisulu called opposition leader Mmusi Maimane, a “hired native”. What would have ensued had Helen Zille called Malema a cockroach, which is what he called her? Anele Mda called Deidre Carter a “stupid, white token bitch”. Gauteng provincial government employee Velaphi Khumalo called on blacks to do to whites what “Hitler did to Jews”. A comprehensive list would, suggests Ngwenya, be long.

The hateful bill will, if enacted, probably be unconstitutional. According to the freedom of expression clause (16), everyone has “freedom of expression” including media, academic and artistic freedom, and freedom to receive or impart ideas. The only qualification is that it “does not extend to … propaganda for war, incitement of imminent violence, or advocacy of hatred … based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

The conjunctive “and” protects hate speech that does not incite harm. The bill’s objective is to ban what supposedly causes (as opposed to incites) harm, and redefines harm as feeling upset. Freedom of expression is arguably the most important freedom. Without it, defence of other freedoms is impossible.

Free expression has two sides: communication and reception. Most victims of censorship are not those who are muzzled but those deprived of what upsets draconian third parties. Extreme censorship of the kind proposed violates the rights of recipients at least as much as those of the communicators.

• Louw is executive director of Free Market Foundation 

This article was first published in Business Day on 15 February 2017
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