Clarity about ‘hate speech’

SUPREME COURT OF APPEAL

terms of the Equality Act. Masuku was ordered to apologise unconditionally “to the Jewish community”.

Section 16 of the constitution excludes from freedom of expression advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm. To be an unprotected form of speech, the statements must be aimed at a group based on their race, ethnicity, gender or religion and must incite harm.

As the SCA pointed out, the Equality Act, on the face of it, appears to have a broader definition of hate speech. Apart from significantly broadening the groups that are protected from hateful statements, the Act prohibits speech that could reasonably be understood not only to “be harmful or incite harm or promote or propagate hatred”, but also “to be hurtful”.

This is cause for concern, the SCA said this week, precisely because the right to freedom of expression is fundamental to a democracy and should not lightly be limited.

It referred to a Constitutional Court statement of 2016 that involved Fees Must Fall student activists. “A court should not be hasty to conclude that because language is angry in tone or conveys hostility, it is therefore to be characterised as hate speech. Even if it has overtones of race and ethnicity,” the Constitutional Court wrote.

The Equality Court said, because Masuku aimed some of his comments at “Zionists”, and because most people who are likely to support Zionism, are Jewish, the statements were in fact directed at people of the Jewish religion or ethnicity.

Masuku said this was not the case: his statements were directed at the State of Israel. The court found that Masuku’s speech never became anything more than a political statement in support of Palestine. While it may have been offensive and hurtful, it did not incite harm.

“The fact that a particular expression may be hurtful of people’s feelings, or wounding, distasteful, politically inflammatory or downright offensive, does not exclude it from protection,” the court said. – Republished from Groundup.org.za

We must target them.