Can you legislate for good human behavior, or does proposing laws to imprison those who use racial slurs distract from actual progress?
Last week, the South African government proposed a draft law to criminalize hate speech. The proposed law would place a first time offender in jail for up to three years, while a repeat offender could be sent for up to ten years. Currently, South African law allows for hate speech to be dealt with as a civil issue; last month a judge ruled a man who used an epithet in an argument owed the insulated party 7,000 U.S dollars.
The incident that prompted the drafting of this law, in which a woman lashed out at black police officer with the word “kaffir”, a slur on par with the “n-word” in South Africa. A video taken of the incident has spread like wildfire on the internet and sparked condemnation from all elements of South African society. Of course, the proposed law also has portions of South Africa in a similar uproar.
The proposed law would define hate speech broadly, as: “direct or electronic communication that advocates hatred, incites violence or causes contempt or ridicule”. Critics of the law suggest that it will do little to curb racist sentiment while eroding the freedom of expression. The director of the Freedom of Expression Institute, Tusi Fokane, said of the proposed law: “You cannot legislate for good human behavior; you cannot legislate for social cohesion”.
But why does this idea trouble us so? What about the idea of Free Speech makes us uncomfortable with regulation of hate speech?
Most Americans are familiar with a Millsian idea of free speech. In his work "On Liberty", Mill proposed that the only limit to personal freedoms that can be justified is a restriction on activity which causes harm to others. This restriction is called, simply enough, the “harm principle”.
For Mill, as for many people, this means that the only speech that can be limited is that which would directly and immediately cause harm to others. An idea incorporated later into American law by the Supreme Court as the “clear and present danger” and the “imminent danger” standards.
Mill tied his idea of free speech to the Utilitarian notion of the greatest total happiness as a goal of the state. While some speech is false, misleading, or even detrimental to society, the banning of it would be worse. We are made happier in the long run, he supposes, by allowing objectionable speech in all instances where it causes no harm.
However, while America only tends to regulate speech that is an immediate danger to others, many other nations have laws that go further. Many countries in Europe have laws against denying the reality of the holocaust in public speech. Canada and several Western European nations already have hate speech listed as a criminal offense.
There is evidence that the use of hate speech causes real harm to the targeted groups. Work by the American author Mari J. Matsuda has argued that hate speech can cause “direct physical and emotional changes” in targeted groups. If this is the case, and the data suggests that it is, the “harm principle” would support the prohibition of hate speech. The idea that certain treatment can cause lasting harm to a group was the basis of the ruling in Brown vs. The Board of Education, with the court ruling that discrimination "generates a feeling of inferiority as to... status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”
The debate also raises old questions about power distribution in South Africa. Since the end of apartheid the ultra-majority black population has held political power. However, cultural and economic power remains in the hands of the less than 10% of the population that is white. Critics suggest that the law will not only do little to reduce prejudice, but may even divert attention from structural issues promoting racism across the country. Issues which go beyond the use of slurs.
South Africa is a country with deep-seated racial tensions, and the recent incident is but one of many similar events to plague the nation over the years. The recent discussion to limit free speech with regulations on hate speech has ironic echoes of the extreme social conservatism implemented to help enforce apartheid, for example: television has only been available there since 1976. The discussion of how free speech should be is relevant not only there but everywhere.