If baboons could talk … J.S. Mill on freedom of speech and the limits of racial discourse

Abstract

This paper seeks to analyse the potential conflict between non-discrimination and freedom of speech using the example of an article, written by the Vice Chancellor of a South African university, likening the behaviour of white South African men to baboons. J.S. Mill's argument for freedom of speech is juxtaposed with his (lesser known) argument on racial equality, and this paper questions if this is a contradiction in Mill's theory, or if pronouncements by those in ‘authority’ can constitute an instance of harmful action when the evolving jurisprudence on hate speech in South Africa is considered. The paper argues that legislation criminalising hate speech is likely to be ineffective, and that more deliberative methods of confronting issues of race and identity in South Africa are to be preferred. However, instances of inappropriate racial discourse can be dealt with using other, social, sanctions, as public figures in some instances have supererogatory duties that exceed their rights.

Notes

1. This quote is taken from Berlin's seminal 1958 essay, Two Concepts of Liberty, in which he cites Heine in support of the contention that the power of ideas and academic discourse are not be dismissed, but rather critically analysed and carefully employed (Berlin, 1969).

2. It is important to stress that the author is using this example because the article was greatly publicised and it is one that many people are likely to have either read or heard about. No doubt there are many other good examples that could have been used, and I do not want to create the impression that I am singling anyone out for special treatment, nor am I accusing Makgoba of hate speech.

3. Granted there are still societies today that strongly hold the view that women, if not inferior, are at least sufficiently different to justify allocating them specific limited roles in society. However, international human rights law in the form of CEDAW in particular, shows that the weight of opinion in the world today is firmly in favour of women's equality.

4. Another example of this is the ongoing clash between the TAC and Matthius Rath, who holds that ARV's are poison and that HIV/AIDS is better treated with vitamin therapy. Dr Rath's foundation's website and that of the TAC are both freely available and anyone can access both sides of this argument. However this example also generates questions about whether opinions such as Rath's—which according to TAC are so dangerous as to amount to a death sentence for people receiving treatment for HIV/AIDS—should actually be silenced or regulated.

5. It is curious that Mill regards this as an act, as in On Liberty we see him distinguishing between the expression of ideas and opinions, and actions, which in his view should only be curbed to prevent harm to someone else. Perhaps the distinction between speech and action was one that was to only emerge nearly a decade later when he and his wife were writing On Liberty.

6. Note that both elements must be present—both the advocacy of hatred and the incitement to do harm—for an expression to be regarded as hate speech, which is fairly stringent.

7. Commissioner Karthy Govender ruled on appeal on 15 July 2003 that the slogan ‘Kill the Farmer, Kill the Boer’ amounted to hate speech in a complaint brought by the Freedom Front. The BCCSA was asked to decide whether Mbongeni Ngema's Song AmaNdiya, which deals with racial tensions between blacks and Indians in KZN, amounted to hate speech. They recognised the protection extended to artistic expression by section 16(1) of the Constitution, but held that artistic expression can also ‘advocate hatred’ and that the emotional and psychological harm that the song invoked amounted to hate speech (see Van Wyk, 2002, pp. 19–20).

8. Thanks to Ina Botha at the Department of Justice and Constitutional Development for clarifying the status of the Bill as at June 2005.

9. As far as this author could establish, South Africa has signed but not (yet) ratified this Convention.

10. See www.mask.org.za

11. As this is a philosopher's example, it assumes that there are no alternatives available, such as public transport.