In defence of Section 16(2) of the Constitution: A reply to David Saks
18 July 2016
In a comment published on politicsweb last week, David Saks, an Associate Director of the South African Jewish Board of Deputies (“SAJBD”), replied to two articles   published by the Helen Suzman Foundation. These articles were responding to a proposal by the SAJBD, submitted to the Constitutional Review Committee (“CRC”), to amend section 16(2) of the Constitution. This section lists three exceptions to the right to freedom of expression codified in section 16(1).
I am grateful that Mr. Saks took the time to read and respond to my articles. From the start, though, it is revealed that he misunderstands my position. Throughout his comment, he also avoids addressing most of my substantive arguments. This is unfortunate, for it represents a missed opportunity for the SAJBD to engage on important issues. That said, Mr. Saks make certain observations and advances particular claims that cannot go unanswered.
Let me quickly dispose of a peripheral issue. Mr. Saks suggests that I am a ‘civil libertarian’. This is a mistake. Freedom of expression is not an absolute right. Morally speaking, it is not legitimate to afford legal protection to speech that encourages violent, barbarous or otherwise nihilistic action. In the two articles to which Mr. Saks is replying, this is made quite clear. It is unfortunate that my position and consequently my arguments are at such an early stage of his comment mischaracterised in this way. Indeed, this move allows him to advance the SAJBD proposal without actually having to deal with the arguments made against this proposal.
This clarification aside, let me now turn to the more important, substantive issues.
As Mr. Saks observes, the SAJBD proposal to the CRC advances two arguments for amending the Constitution. First, they argue that section 16(2)(c) only applies to speech advocating hatred on the basis of race, ethnicity, gender or religion, and constitutes ‘direct incitement’ to cause harm. Second, they argue that this section requires that harm be ‘explicitly advocated’.
As I explained in the first of my articles, these arguments are premised on a misunderstanding of the nature of section 16(2). The Constitution does not require the direct incitement of harm, nor does it require that this harm be explicitly advocated. Since the SAJBBD proposal is based on these faulty premises, I argued, this is sufficient grounds to reject it.
In his comment, Mr. Saks does not address my arguments about the scope of section 16(2). Instead, he refers to the infamous Penny Sparrow and Velaphi Khumalo incidents, suggesting that these illustrate the need to amend the Constitution. They do not. Racist, public utterances of this type are not protected by the Constitution. Nor would calls to ‘kill the Boer’ or rallying cries calling for the ‘annihilation of the White Devil’ be protected by the Constitution. It is explained why in my article, and elsewhere. As such, Mr. Saks’ method of argument-by-example fails—such is the danger of substituting narrative for interpretation and conceptual analysis.
In their proposal to the CRC, the examples used by the SAJBD to make their case for amending the Constitution are not drawn from personal experience. In his comment, however, Mr. Saks touches on their difficulties in having hate speech prosecuted. We are informed of awful assertions that “Jews nurse an inveterate hatred of gentiles, are of a fundamentally corrupt and immoral nature and unscrupulously manipulate global events to the detriment of humanity as a whole”, and we are told of vile claims that there is such a thing as “intrinsic Jewish evil”.
As I write, it is just after 02h00. News is emerging about a terrorist attack in Nice. At least 60 people are dead. I write a bit more. It is now 03h15. 77 people are dead. A while later I fall sleep. When I awake, it is 08h35, and 84 people are dead. This reply will be published after the weekend. In the days in between, more might die.
Reading about the experiences of the SAJBD, whilst dozens of families and friends are only starting to mourn, is truly harrowing. We must never forget that it is in an attempt, vain or otherwise, to stifle violent, barbarous and nihilistic actions of this nature that hate-speech laws are often introduced. It is tragedies like this that make Mr. Saks’ examples so potent, so argumentatively powerful.
It is vital, however, to understand why it is that hate-speech, as contemplated by the Constitution (and properly understood), is not protected expression.
The reason we do not afford it protection is not because assertions of the type referred to by Mr. Saks are factually inaccurate, offensive and hateful. It is not because these statements make one’s skin crawl, one’s blood boil, and one’s heart ache.
This speech is not protected because it shares a common feature: the denial of the basic humanity of Jewish people. It denies their humanity because it rests on the explicit or implicit premise that Jews by nature cannot act in the ways that we otherwise expect of human beings: they hate certain groups because they are Jews; they are corrupt and immoral because they are Jews; they selfishly pursue their interests to the detriment of others because they are Jews; and they are evil because they are Jews. If this speech is accompanied by an intention that others act in a manner that is consistent with this idea of essential inequality—as is likely to have been the case—it is hate-speech.
We are told by Mr. Saks that expression of this nature has been found to be protected by section 16(1) of the Constitution. If so, it is likely that the relevant courts got it wrong. Judges sometimes make mistakes. This is one of the reasons we have a hierarchy of courts, so that injustices of this kind can be minimised. Of course, even after exhausting the appeal process, the best judges can still make mistakes. This is inevitable, with all civil and criminal matters. Laws and legal systems are by nature imperfect.
Perhaps understandably unwilling to accept this reality, the SAJBD proposes that we exclude from the protective ambit of the freedom of expression speech that incites any kind of harm to people or property; and speech which advocates hatred that is based on race, ethnicity, gender or religion, but is not accompanied by the incitement to cause harm. In the second of my articles, it is explained why the adoption of this approach would be morally catastrophic. If the arguments there appear ‘alarmist’, this is because what the SAJBD proposes is alarming. Contrary to the imputation of Mr. Saks, the arguments were sober, serious and certainly not sarcastic. Unfortunately, he does not try to answer them at all.
Before concluding, it is perhaps necessary to develop a point that I made in the first of the two pieces written in response to the SAJBD proposal.
In that piece, I explained that expression of the idea that some people by nature lack the qualities essential to being human is not sufficient for it to fall outside of the protection of section 16(1) of the Constitution. It must also, expressly or impliedly, entail a call for others to treat these people in a way consistent with their allegedly unequal status. It is this call for action that constitutes the ‘incitement’ referred to in section 16(2)(c).
Both in that piece and elsewhere, I explained that by requiring incitement the Constitution makes fault an essential element of hate-speech. It is an intentional wrong. To satisfy this requirement—that is, for expression not to be protected—it is not necessary that the actor be motivated by some resulting harm, or have this harm as a direct aim. Our law is not that demanding. It is sufficient if they foresee the possibility that their speech will cause harm, but go ahead nonetheless.
Understanding this is important for at least two reasons. First, many concerns about section 16(2) arise from a failure to grasp fully some of the concepts that constitute it—including the requirement of incitement. With a better understanding of these concepts, many such concerns will fall away. This is what my examination of those examples relating to Ms. Sparrow, Mr. Khumalo and anti-Semitic speech, attempted to demonstrate—public, reckless and racist expression of this kind is not protected by section 16(1) of the Constitution.
Second, many people are pushing for greater regulation of speech contemplated by section 16(2) of the Constitution. I have written before about some of the considerations that would have to be taken into account if we were to choose to do so. For present purposes, what must be appreciated is that if the SAJBD proposal were to be adopted, fault would no longer be a requirement for the exclusion of certain kinds of speech from constitutional protection. This change might pave the way for civil and criminal liability for speech in circumstances where a person did not intend harm. It may even make room for liability if the actor was not negligent, that is, if they acted reasonably.
Laws imposing liability in these circumstances would not just be morally wrong, they would also be inconsistent with the jurisprudence of our Constitutional Court, and they would be contrary to the spirit and structure of our Constitution.
It is understandable that the SAJBD is frustrated. But, the problems that they face, and the difficulties that confront us as a community, arise not from the Constitution. Of course, the Constitution is not a panacea. No community committed to liberal constitutional democracy can rid itself of conflict, pain, disagreement and disappointment. We will always have to tolerate—endure with fortitude—those vices that exist wherever virtue is prized.
For law-makers, striking the right balance is difficult. But, when it comes to freedom of expression, our constitutional drafters did a fine job. The SAJBD must be careful not to undermine the delicate balance that they struck. Rather than serve us, their proposal to amend the Constitution may leave us in ruin.
I urge them to withdraw it.
Matthew Kruger is Legal Researcher at the Helen Suzman Foundation.
This article first appeared as an HSF Brief.