The Star Late Edition
New law is self-defeating
THE RIGHT to remain silent is a cornerstone characteristic of any righteous system of law, where individuals are allowed to refrain from incriminating themselves not only in the presence of a court, but also in the eyes of society.
In a free society, you can decide to speak, thus opening yourself up to ridicule and rebuttal, or you can decide not to speak, which is a safer but often less fulfilling option.
The minister of justice and the cabinet recently unveiled the dreaded new Prevention and Combating of Hate Crimes and Hate Speech Bill, apparently in response to the spate of racist social media posts made earlier this year.
The bill is every bit as bad as proponents of individual liberty thought it would be.
For instance, section 4(1)(a)(ii)(bb) states that if you intentionally insult someone based on his or her belief or occupation, you have committed a crime for which you can spend up to three years (10 years if you are caught doing it again) in a South African prison.
In other words – and it is important for you to realise the implications of this – if you post on my Facebook wall, “Martin, you lawyers are blood-sucking parasites, and I think nobody should make use of your services”, you have committed a crime.
You have (i) intentionally (section 4(1) (a)) (ii) insulted (section 4(1)(a)(ii)) me, with the intention to (iii) bring legal professionals into contempt (section 4(1)(a)(ii)(bb)).
Furthermore, the fact that it can be considered hate speech to ridicule someone for their beliefs under this same provision is at odds with the narrowest and most limited understanding of freedom of expression.
Indeed, the bill is self-defeating, because by the very nature of this prohibition, we are hypothetically no longer allowed to ridicule or “bring into contempt” the very group of persons this bill is aimed against, namely racists and bigots.
For, indeed, being a racist is to believe in the superiority of one race over another, or to discriminate based on race.
But the bill, quite clearly, says we must not ridicule people based on their beliefs.
This is simply the most atrocious provision in a bill that is rife with other atrocious provisions, such as the state’s obligation to help people complain about this nonsense conception of hate speech, in section 9(2)(c).
There is no doubt in my mind that this bill will not survive its inevitable journey through the South African court system. And if it does survive, the bill is the least of our concerns, for then it will be our judges who have become the latest victims of so-called state capture.
Former US Libertarian Party presidential candidate Austin Petersen made the point quite clearly during his campaign, that it is not popular – or even very satisfying – to come to the defence of racists, sexists, homophobes and other bigots.
But, like it or not, these intellectual cretins in our society are rights-bearing individuals, who not only have constitutionally guaranteed freedoms against state tyranny, but also natural rights to think and believe whatever they want, no matter how questionable those beliefs are.
Friedrich von Hayek wrote in his essay “The Case for Freedom” that “freedom necessarily means that many things will be done which we do not like. Our faith in freedom does not rest on the foreseeable results in particular circumstances but on the belief that it will, on balance, release more forces for the good than for the bad”.
The oft-quoted John Stuart Mill – one of the intellectual fathers of the modern-day “right to free speech” which exists across the world – also wrote in his seminal On Liberty: “If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.”
He also writes: “I deny the right of the people to exercise such coercion, either by themselves or by their government. The power itself is illegitimate. The best government has no more title to it than the worst.”
We are not being friends of bigots by opposing this monstrous bill. The opinions of bigots must see the light of day for us to be able to identify them as bigots. We will not only be doing ourselves a disservice by making our society less transparent, but we will also be potentially creating a false sense of virtue. For, indeed, as Frank Meyer once remarked, “unless men are free to be vicious, they cannot be virtuous”.