Propagating speech that wounds, that fuels and legitimises bigotry, and that labels certain people unworthy of the protection of the law, should face legal sanction, writes Melanie Judge.
Eight years ago, the South African Human Rights
Commission (SAHRC) received an unprecedented volume of public complaints of
hate speech against an article penned by former ambassador and then journalist
Jon Qwelane. This public outcry sparked litigation that continues to today. In August
2017 the Equality Court found that Qwelane's
article, published in 2008 in the Sunday Sun and titled "Call me names,
but gay is NOT okay", constitutes homophobic hate speech.
In his judgment, Judge Dimpheletse Moshidi found that Qwelane's words amount to hate speech as contemplated in Section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act, also known as the Equality Act. He stated that "the offending statements are hurtful and harmful and have the potential of inciting harm towards the LGBTI community, and plainly propagate hatred towards them".
The court also dismissed, with costs, Qwelane's defence which challenged the constitutionality of the hate speech provision of the Equality Act. This finding is the target of Qwelane's present appeal, heard this week before the Supreme Court of Appeal in Bloemfontein.
It is worth a reminder that the speech in question concerns support for former Zimbabwean president Robert Mugabe's homophobic views; saying that being gay is unnatural; and comparing same-sex marriage to people having sex with animals. Qwelane also opined that gay and lesbian equality should be removed from the Constitution. He even dared the SAHRC to seek an apology from him for these utterances.
At the heart of the case lies the meaning and power of Section 10(1) of the Equality Act, the provision against hate speech. Read disjunctively, this section prohibits certain speech if it is based on a prohibited ground of discrimination in the Constitution and if it can be reasonably construed to demonstrate a clear intention to be hurtful, to be harmful, to incite harm, or to promote or propagate hatred.
Fast forward from 2008 to 2019 and hate speech has increasingly been spotlighted in social and legal debate. Centrally, this is about the limits of free speech and where, as a society, we should draw the line. These debates come at a time when we are witnessing a steady mobilisation of metaphors of violence in political rhetoric. It is simultaneously a time of heightened public and legal accountability for the damaging effects of speech, in particular racist speech. The weaponisation of speech to undermine political opponents, or to prop up racial, national and gendered supremacies, is gaining traction the world over. From El Paso to Johannesburg, hate speech cannot be disentangled from its violent consequences.
Those who hold a more fundamentalist position on freedom of speech frequently overlook power differentials that make it possible for certain rather than other people to utter harmful words. Such differentials also determine how and on whom those words land. Lest we forget that hateful language underpinned the justification for apartheid's treatment of black people as inferior to white people. We are not to forget the link between speech and action – as seen in genocide, ethnic cleansing and in racist, xenophobic and homophobic attacks. Speech is always present.
It is when hate speech is wielded by those with structural power and privilege that it does most damage. This is no surprise, for speech gives discriminatory action its rationale. For this reason, and as the Psychological Society of South Africa (PsySSA) has argued as a friend of the court in the Qwelane matter, the role of psychological harm on both the individual and the collective must be given the significance it deserves when considering whether words and expressions constitute hate speech.
Seeking protection for speech based on the right to freedom of expression in Section 16 of the Constitution is critical to an open, democratic society. But this freedom is also subject to limitation. More specifically, the line must be drawn when speech denies the dignity and equality of others, based on their race, gender, sexuality or other prohibited grounds.
The pitting of freedom of speech of some against dignity and equality for those who bear the brunt of their speech, is what Section 10 enables us to balance. In interpreting speech in context, this allows its harmful effects to be taken into account. As PsySSA has consistently argued, the court needs to consider the contextual and historical factors in which the impact of speech is manifest.
The intention implicit in Qwelane's article, and his relentless pursuit of it, must be read against the content and meaning of the speech he seeks to defend. Language that assaults and denigrates certain people, creates the conditions for prejudice-motivated violence against them. Ours is a context in which people who don't conform to dominant sexual and gender roles are verbally and physically attacked and, in extreme cases, raped and murdered.
Gays and lesbians who can express their sexuality and gender free from violence and discrimination are far more likely to be able to exercise free speech. The freedom of a young lesbian to speak back without fear of reprisal at those who might taunt her on the streets or at school, is what makes freedom of speech real.
Qwelane's appeal has nothing to do with expanding the possibilities of free speech for those who are most unable to exercise this right. As a member of the political elite, Qwelane now has yet another opportunity to defend his harmful speech. In contrast, the many LGBTI people who are most affected by it will largely remain voiceless in court proceedings. For this reason, the submissions of PsySSA, which give expert evidence on the impacts of Qwelane's speech are so critical to the case and the interpretation of Section 10.
Propagating speech that wounds, that fuels and legitimises bigotry, and that labels certain people unworthy of the protection of the law, should face legal sanction. Most importantly, it should signal an alarm when such speech increasingly becomes the basis for public debate and contestation, and for leadership itself.
- Judge is an executive member of the Sexuality and Gender Division of the Psychological Society of South Africa, and adjunct associate professor at the University of Cape Town. PsySSA is represented in the Qwelane matter by Webber Wentzel and its counsel, Adv Kate Hofmeyr, Adv Danie Smit, Adv Carol Steinberg and Adv Hasina Cassim.