By Jeremy de Beer
“The Holocaust did not start with gas chambers, it started with words…[and] words have led to the worst atrocities humankind has committed,” began Adv. Wim Trengove SC in a presentation to the Rhodes School of Journalism. Trengove, who fancies himself a “freedom of expression disciple” explained that because of the power of words, “there has to be some restraint on hate speech.” While the Constitution may protect freedom of expression, it also protects the right to dignity, which is primarily what is infringed by hate speech.
“What I have found to be the most compelling argument in favour of restriction on hate speech is not only the notion that the dignity of all has to be respected, but is ultimately a freedom of expression argument,” explained Trengove. The gist of Trengove’s argument is that if you don’t restrain hate speech, people become alienated if maligned and in that way, people are silenced because they become marginalised so that ultimately, if hate speech is not restrained, some weaker groups in society are silenced. Trengove therefore believes that the restriction of hate speech is one of the necessary conditions for proper freedom of expression for all.
The problem arises in defining hate speech. Trengove noted that he does not have the solution, but would try to address some of the attempts that have been made. Broadly, hate speech can be defined as “any speech where people are demeaned for what they are rather than what they do,” explained Trengove. But what about statements like “atheists go to hell” and “homosexuals are not welcome in our church”? Should people not be able to say these things? These statements illustrate that it is difficult to capture a definition of hate speech. Trengove explained that speech is often acceptable or not depending on the power relations between the speaker and the person being spoken to, and so the definition of hate speech must therefore be cognisant of power relations to prevent it from overprotecting the powerful, or under-protecting the weak. Trengove elaborated on this point by explaining that if you were to make a statement about white men at Rhodes, it would be very different to making a statement about homosexuals at Rhodes as the one group is more socially powerful than the other.
When examining the current status of hate speech law, one must look at the Promotion of Equality and Prevention of Unfair Discrimination Act (The Equality Act) and s 16 of the Constitution. The constitutional definition of hate speech is very narrow as s 16(2) provides that freedom of expression does not extend to advocacy of hatred based on race, religion, gender, or ethnicity (as well as propaganda for war and incitement of imminent violence, but these are not “true hate speech” according to Trengove). Section 16 thus creates the default rule that all speech is protected with narrow exceptions. Any other limitations on freedom of expression would therefore need to pass the constitutional limitations analysis which, in short, provides that the limitation of rights must be reasonable and justifiable in an open and democratic society. The Equality Act on the other hand is what Trengove calls “a hopeless attempt to define hate speech.”
Section 10 of the Equality Act defines hate speech as words that could reasonably be construed to be hurtful, harmful (or to incite harm), or promote hated. As such, what it prohibits is not speech that is intended to be harmful but speech that could be reasonably construed to demonstrate harmful intention. Trengove focussed specifically on the prohibition of “harmful” speech as this has been criticised as being far too wide. “I have no doubt that that would be held to be unconstitutional if a coherent challenge were to be brought to it,” he remarked.
The Equality Act may not be the only legislation to protect against hate speech in the future however. We are currently still waiting on the Hate Speech Bill which is a “prohibition that is well meaning, but so exhaustive that it would be open to challenge for being too wide,” according to Trengove. Until the Bill passes the constitutional muster however, we can only speculate and wait in anticipation while the legal status of hate speech remains fundamentally flawed.