Regulating Race-Related Expression: Outlining a conceptual framework
Discussions about issues relating to race are often marred by little awareness of some of the more important differences between different forms of race-related expression. This conflation of concepts tends to generate much unnecessary disagreement on important practical and policy-related issues.
Of course, many practical disagreements are the result of differences between the basic principles of morality and ethics to which people subscribe. In these cases, conceptual clarity will often be helpless. Many of our deeply-felt political disputes relating to, for example, freedom of expression, harmful words and deeds and visions of what constitutes a good life, are by nature beyond consensus. This is one of the principal reasons that we have elections—to resolve these disputes. But, we can at least try to ensure that when we do argue about these essentially contestable issues, we share an understanding of the terms of debate. Then, we can ensure that we not talking past each other, and we can focus on arguing about what really matters.
With this in mind, I try to do three things in this three-part brief. First, I distinguish three forms of race-related expression: hate-speech, racism and hatred. Second, I outline how the Constitution deals with efforts to regulate each form of expression. Third, I consider four hypothetical examples of race-related expression, for the sake of illustrating the conceptual framework outlined in Part I of this brief, and suggesting how each might be regulated in a manner that is consistent with the points made in Part II of this brief.
Part I: Distinguishing three forms of race-related expression
In this first part of the brief, I try to identify some important similarities and differences between three forms of race-related expression, namely, hate-speech, racism and hatred.
Hate speech: Section 16(2)(c) of the Constitution says that the right to freedom of expression does not extend to ‘advocacy of hatred that is based on race . . . and that constitutes incitement to cause harm’. This section is commonly referred to as the ‘hate-speech’ clause. Some of the problems with many discussions about race-related expression stem from the fact that this term—hate-speech—is misleading. On its face, it is both over-inclusive and under-inclusive.
Hate-speech is not about hatred as such; at least in the sense of having an intense dislike or loathing of someone or something. It does not require feelings of a particular type. It is often accompanied by a feeling of hate, but not always. As I explain in Part III, it may be accompanied fondness, love or pity. Rather, it is concerned with how people think that others, by virtue of an inalienable characteristic that they possess, like race or ethnicity, should be treated. It is about speech that is grounded in the idea that some people, because of these characteristics, do not deserve the treatment that every person is otherwise entitled simply by virtue of being human—that is, to simplify a great deal, a denial of the idea that they are entitled to the rights and subject to the duties contained in the Constitution.
The word ‘speech’ suggests that ideas about how others should be treated must be spoken or otherwise expressed in words. This is a mistake. Hate-speech may take the form of pictures, posters, deeds or practices, none of which need entail the use of words. Rather, what is required is the tangible manifestation of the idea of essential inequality in a way that enables others to understand it. There must be communication between people of the idea. Private thoughts cannot constitute hate-speech. It has to be made public. In the language of section 16(2)(c), there must be ‘advocacy’ of the idea.
These two points reveal a third way in which the term ‘hate-speech’ misleads. Expression or advocacy of the idea of essential inequality is not sufficient for a word or deed to qualify as hate-speech. It must also, expressly or impliedly, entail a call for other people to treat a person or group of persons in a way that is consistent with their allegedly unequal status. In the words of section 16(2)(c), advocacy of the idea must be such that it ‘constitutes incitement to cause harm’.
To summarise: Hate-speech is characterised by the public expression of the idea that some person or group is not worthy of the treatment to which everyone is entitled by virtue of their status as human beings, and is a call for the actions of others to reflect or be consistent with the allegedly unequal status of this person or group.
This definition illustrates that hate-speech does not necessarily entail a call for violence. This is why section 16(2)(c) refers to ‘harm’, rather than ‘violence’, which is used in section 16(2)(b). The harm of this form of race-related expression is in the dissemination of ideas that, if internalised by members of a community, would result in the treatment of others in a way that is inconsistent with their nature as equal, rational, dignity-bearing beings.
Racism: Hate-speech obviously can be based on race—section 16(2)(c) says as much. But, is racism always hate-speech? The answer to this question depends on how we understand or define racism.
A common definition of racism (which I think is essentially correct) characterises it as any action that is inspired or motivated by principles, values or reasons that are grounded on the idea that a particular race is inferior to another, in circumstances where the actor is subjectively aware of the fact that his principles, values or reasons are grounded on this idea. There are three important points to note about this definition. First, only actions (words or deeds) can be racist. Second, actions must be inspired or motivated by the idea of racial superiority. Third, the actor must be subjectively aware of the fact that his actions are inspired or motivated by this idea.
When racism is understood in this way, it becomes clear that whilst many forms of racism will qualify as hate-speech, not all racist acts will qualify. This is because racism and race-based hate-speech do no share precisely the same formal features. Let me explain.
There are at least two ways in which a racist action might not also constitute hate-speech. Both relate to the requirement of incitement, albeit in different ways. First, although racism is always public—in the sense that it relates to, or affects others—it is not always accompanied by an express or implied call for others to treat the members of a racial group in a way that is inconsistent with their humanity. Some of the most insidious forms of racism are only ever witnessed by the immediate parties; [1] sometimes only by the racist herself. It is in part the private nature of these forms of racism that makes them so dangerous, but it is equally their private nature that means that they do not qualify as hate-speech.
Second, it is possible that certain forms of racist expression might not entail any call for others to treat the members of a group in a way that is inconsistent with their status as dignity-bearing agents. Whilst perhaps difficult to imagine, such cases are possible—I provide a possible example in Part III—so we must be aware of the possibility that a racist act that is broadcast to the world might not expressly or impliedly incite others to treat the members of the race group in this way. Establishing the meaning of any particular racist expression, therefore, will always be crucial when we try to determine whether it is also hate-speech.
Hatred: It is unlikely that any two people reading this brief will share precisely the same ideas, values, beliefs, culture, traditions, etc. Depending on how central any of these are to your conception of the good life, the disagreement might inspire anything ranging from amusement to coordinated and passionate criticism of others. Think, for example, of the virulent campaign against smokers; or the often hateful and sometimes intolerant criticism of Japan for its hunting of whales and dolphins.
The above definitions of hate-speech and racism illustrate why the expression of hatred relating to the ideas or the practices of others—even when these ideas or practices strongly correlate with race—will not necessarily constitute hate-speech and will not necessarily be racist.
A person might express the fact that they hate what others think or do, or that they loathe people who act in certain ways. Their expression might be offensive, hurtful or intolerant. Without more, though, this negative appraisal of others does not constitute hate-speech. Similarly, the expression of hatred is not necessarily racist, even if all the people who hold the hated idea, value or belief, or practise the hated tradition or culture, are of the same race. Let me explain.
Appraisal of this kind is not necessarily racist, nor is it necessarily hate-speech, because it is directed at the ideas or actions of others. It is not directed at their status as humans. It is possible to appraise another in this negative way, but still recognise them as deserving of the respect to which all people are entitled by virtue of being human. Our thoughts and actions are not products of inalienable features that we possess. Criticism of them does not necessarily entail a denial of the humanity of the person or people who hold these ideas or act in these ways. Only if the expression is premised on the idea that the members of a race group only hold these ideas or act in this way because they belong to this group, might it be racist or constitute hate-speech.
[1] It was pointed out to me by Rachel Robinson that in one-on-one communications of this nature, the requirement of incitement might be satisfied if the speaker intends the person subject to his racist speech to treat herself in a way that is less than human. If incitement includes treatment or harm that arises in this way, then quasi-private racist expressions of this nature could constitute hate-speech.
Part II: Judging and regulating race-related expression
If the conceptual distinctions that were drawn in Part I between hate-speech, racism and hatred are correct, whilst each form of race-related expression is similar to the others in important ways, there are also important differences. These forms of expression can overlap—that is, the presence of one will often mean the presence of another or even both. So, racism will often qualify as hate-speech, and it will often be expression of hated. Hate-speech will often be racist and it will often represent hate. And, expression of hatred will often be racist and constitute hate-speech.
Race-related expression
As this diagram illustrates, there might be overlap between these forms of expression, but this will not always be the case. This is an important point for at least two reasons.
First, the differences between these forms of expression bear on the relative moral culpability of the hate-speaker, the racist and the hater. Whilst racism and hate-speech are both morally wrong, they are wrong in different ways. The former harms the immediate victims of the racist. The latter, however, harms the community. Hatred, by contrast, is not necessarily wrong. Just as it is permissible—normal, even—to hate a murderer or paedophile, there are some values or practices that it is legitimate to hate (see the example in Part III). Whilst it is up for debate whether such feelings are appropriate in a given case, nothing is intrinsically wrong about them. Racism and hate-speech, however, are always morally wrong.
The second reason why the distinctions between these three forms of race-related expression are important is that they are relevant to how, if at all, they can be legitimately regulated by law. In the rest of this part of the brief, I outline the standards to which the Constitution would hold any law that tries to regulate each form of expression.
Hate-speech: Hate-speech entails an incitement to cause harm, that is, a call to others to treat the members of a group in a way that is inconsistent with their basic humanity. It is an intentional wrong. Like any action committed with the intention to cause harm, it is liable to some kind of regulation. Conceptually speaking, therefore, nothing precludes criminal regulation of this expression.
Under the Constitution, hate-speech is not protected by the right to freedom of expression. Any effort to justify its criminal regulation, therefore, will not have to justify the limitation of the right. As a general matter, I think that the nature of hate-speech is such that under our Constitution some form of criminal regulation would probably be valid.
Whether a particular law is constitutional, though, will turn on various considerations: (a) the nature and extent of the harm that is incited by the particular type of hate-speech (see the first two examples in Part III); (b) the nature and extent of the punishment imposed on the offender; (c) the relation between the punishment and the purpose of imposing the punishment, that is, whether the punishment is effective in achieving its purpose; and (d) whether there are less restrictive means to achieve this purpose (like those contained in Promotion of Equality and the Prevention of Unfair Discrimination Act, 2000 (‘PEPUDA’), such as civil liability or apology, or perhaps even an education programme of some kind).
Racism: Racism that is not also hate-speech might take many forms, like discrimination or racially derogatory slurs. Discrimination and slurs that do not constitute an incitement to cause harm will not be hate-speech. But, they might still be harmful. If so, the racist is liable for her actions—socially, legally, or perhaps to the dictates of her own conscience.
Determining whether criminal regulation of this form of race-related expression is constitutional will require an evaluation of considerations (a)-(d) referred to above. Since this expression does not entail hate-speech, however, it is protected by the constitutional right to freedom of expression. This does not mean that it cannot be regulated. All rights can be limited, provided doing so is reasonable and justifiable. Rather, it means that relative to hate-speech, criminal regulation of this form of racism will be more difficult to justify.
Even when the regulation of race-related expression is reasonable and justifiable, there is a discussion to be had about how we should ideally go about regulating it. The courts do not have the authority to determine the precise contours of any legislative response to hate-speech and racism, so we must democratically decide what approach to these two kinds of wrong is practically and morally desirable. Just as there are disputes about how we should deal with the perpetrators of other wrongs—thieves, rapists, fraudsters and drug dealers—there will be legitimate disputes about how we should deal with people who are guilty of hate-speech or racism. Once we reach some kind of shared understanding of the nature of hate-speech and racism, we can then have this debate—that is, we can have the debate that really matters.
Hatred: Lastly, what about race-related expression that is avowedly an expression of hatred, but is not racist and does not constitute hate-speech?
Reasonable people hold different and conflicting values, ideas and beliefs. These differences often bear on practical questions—that is, on what we should so—which means political and social interaction is essentially conflict-ridden. Sometimes, a disagreement about some or other issue will be so central to a person’s view about how people should live their lives that they will intensely dislike those who hold different views or act in ways that are inconsistent with their view. Sometimes they will express their intense distaste for the ideas, values and practices of others in a way that we might call an expression of hatred. Sometimes this expression will be good, even necessary. Sometimes it will not be good, in which case others will hopefully defend the criticised idea, practice or person.
Provided truly heart-felt appraisal of this nature is consistent with the recognition of the humanity of others—that is, provided it does not constitute hate-speech and is not racist—the scope for legitimate regulation of such expression is narrow. Outside of exceptional circumstances, like war, laws that purport to criminalise race-related expression of this nature will be unconstitutional. The passionate, emotional and vituperative criticism of the beliefs, values, ideas, practices, traditions and cultures of others is the essence of politics, ethics and morality. To criminalise it is tantamount to criminalising an essential feature of our humanity.
Further, aside from defamation—speech that harms the reputation or dignity of a person—most efforts to regulate civilly expression of this type will also be unconstitutional. Whilst this regulation is thought to be legally permissible, it is important to note that it is a defence to such a claim to point to the fact that the speech is true and in the public interest. When the subject of the criticism is an idea or practice that affects others, criticism will always be in the public interest. Imposing civil sanctions on people who passionately criticise and condemn ideas and practices of this nature would have the effect of undermining our humanity as such.
Since the constitutional scope for the legitimate regulation of hate-speech, racism and hatred varies, it is essential that any discussion about the civil and/or criminal regulation of race-related expression appreciates the more important differences between these forms of expression. Only if we share an understanding of these differences can we begin to argue meaningfully about what matters—that is, about how to combat socially, politically and legally the different ways in which all race-related wrongs manifest in our society.
Part III: Some examples of race-related expression
Part I and Part II were mostly theoretical. In this final part, I will illustrate by way of four examples the conceptual distinctions drawn in Part I. The examples, hopefully, demonstrate why the distinctions matter when determining how to hold people to account for race-related wrongs. The examples do not exhaust the different combinations that hate-speech, racism and hatred can take—individually or together, there are seven combinations—but they hopefully make clearer the concepts discussed in Part I, and give context to the regulatory issues outlined in Part II.
Hate-speech that is racist and an expression of hatred: Imagine the Grand Wizard of the Klu Klux Klan publishes a letter overflowing with passionate hate. In it, he calls on all white people to burn crosses on various streets in South Carolina. Predominantly African-Americans live on these streets. Cross-burning is a symbolic act that is used to threaten African-Americans. It aims to create a climate of fear and exclusion. The letter, it seems clear to me, is a call to treat a race-group in a manner that is inconsistent with their humanity. On the definitions outlined in Part I, this expression is hate-speech and racist. It is also an expression of hatred. In my view, it would be constitutionally permissible for the legislature to pass a law imposing some kind of criminal sanction on any actor who published a letter of this kind.
Hate-speech that is not racist or an expression of hatred: On a late-night television show, a young comedian tells a joke. His goal is to demonstrate the absurdity of the idea that some races are superior to others. The way he does this is by parodying racists—by pretending that he believes what he is saying. For those who know his routine, it is clear that he is not hateful, racist or calling on others to treat a race group in a way that is not consistent with their humanity. The subtlety of his act, though, means that someone who just happens to switch on the TV might reasonably understand him as in fact calling on others to treat the identified race group in this way.
Provided he foresaw the possibility that a viewer might reasonably understand his joke in this way, he will be guilty of hate-speech. This will be the case in spite of the fact that his motive was to ridicule racism. He is guilty even though he is not racist and his joke was not racist. This is because race-based expression qualifies as hate-speech if it the actor intends to incite others to cause harm. As many will know, following the Pistorius trial, intention can be present even when the actor does not desire a particular outcome. Motive and intention are different. Legally speaking, it is sufficient if he foresaw the possibility that someone would understand him in this way, and reconciles himself with this fact. In this example, he knew that someone in his audience might reasonably not understand the joke and take him to mean that they should actually treat others as less than human.
This example illustrates the importance of distinguishing between hate-speech and racism. Whilst the Grand Wizard and the comedian are both guilty of hate-speech, most people would reject the idea that they have committed the same wrong. Unlike the recklessly told joke, the letter of the Grand Wizard is racist and an expression of hatred. The comedian may be liable to punishment—he did, after all, foresee the possibility that some people might take his joke seriously and act on it—but it would be unjust if the law did not distinguish between these two cases.
Racist, but not hate-speech or an expression of hatred: A young man who is travelling by himself arrives late at night at a bed and breakfast. The only person there is the owner. She refuses to rent him a room, despite the fact that all of the rooms are available. The reason she refuses to rent him a room is that he is Indian. She has been taught that Indian men are prone to sexually assault white women. She does not think that they are evil. She does not hate them. She actually pities them, for she thinks that they often cannot help themselves. But, because of the way they are born, she thinks that they are inherently dangerous. Since it is late and there is nobody around, she is not willing to ‘run the risk’ of renting him a room. So, she tells him that the rooms are occupied, and wishes him well on his travels. He departs none the wiser.
In this example, the owner is guilty of racism. Her actions are motivated by the idea that Indian men by nature are prone to sexually assaulting white women—that is, by the idea that the male members of this race group often cannot act in a way that we ordinarily expect of male human beings.
Though racist, her actions do not constitute hate-speech. This is for one, but perhaps two, reasons.
First, in this example, the owner did not communicate to anyone her belief that Indian men by nature are prone to assault white women. In the language of section 16(2)(c) of the Constitution, her racist action did not entail an incitement to cause harm to Indian men.
Second, though racist, she does not necessarily think that Indian men are undeserving of the treatment to which people are entitled by virtue of being human. The tendency to rape, she might think, is a fact that we must live with—perhaps in a way similar to how we have to live with the apparent fact that men, because of higher levels of testosterone, are more prone to aggression. Her false belief does not necessarily mean that she thinks that this class of men should not be afforded the basic rights and be subject to the basic duties that she and other people have. On the other hand, is her contingent refusal to do business with him inconsistent with a basic recognition of his humanity? [1] I am not sure. As I said in the Part I, conceptual analysis is often helpless in resolving these types of issues. In such cases, I think that we have to have regard to moral considerations. [2]
Further, as she pities the male members of this race group, it is conceivable that she does not harbour ill feelings towards them. If so, her racist deed might not take a hateful form. In declining him a room, she in fact told him that they were all booked, thereafter wishing him well on his travels. After all, it is conceivable that she would like to get to know him, but that believes she just cannot take the risk in the circumstances. There is no necessary connection between her racism and feelings of hate towards the subject of her racism.
In a case like this, I believe that criminal regulation would not be justified. She is obviously wrong in what she thinks, and her actions harm others. Thus, some kind of social response is warranted. The criminal law, however, is a blunt instrument. It is unlikely that time in prison will tackle the root of the problem, which is her pernicious and false belief about Indian men. Further, a significant stigma attaches to persons convicted of crimes, relative to persons held civilly liable. Although there is value in society signalling its disapproval of her wrong, we should be slow to attach the criminal label to people like her—that is, to racists who are not guilty of hate-speech and do not express their racism in a hateful way.
In cases like this, I think that some kind of civil remedy—like those provided for in PEPUDA—would be appropriate. Fines, apologies, and education programmes would all be more suitable than criminal punishment when dealing with racism of this kind.
Speech expressing hatred, but not hate-speech or racist: For the last example, imagine that the People for the Ethical Treatment of Animals (‘PETA’) hold a rally in Cape Town. At this rally, its members passionately condemn shechita—the slaughtering of animals for food according to Jewish dietary laws. They argue that we have various duties regarding the treatment of animals. One duty is to never cause an animal unnecessary harm. Shechita, they claim, causes the animal unnecessary distress and pain. For this reason, they call all shochetim (the person who kills the animal) torturers, and they say that everyone who demands that animals be killed in this way have morally defective characters.
These statements and accusations will be offensive and hurtful to many. This expression may even be characterised as expression of hatred. But, it is not racist. Whilst the targets of the expression will primarily be Jewish, they are being criticised not because of an inalienable characteristic that they possess. They are being criticised—they are hated by PETA—because of what they do, not because of some feature that they possess without choice. The reason that they are criticised in such vituperative terms, in fact, is because PETA thinks that shochtetim and people who wish to eat animals killed in this way are responsible moral agents. As humans, they should know and do better. The basis of their race-related expression of hatred, therefore, is in fact antithetical to the central idea of racism, which is that people of a particular race group are less than human.
For similar reasons, this speech does not constitute hate-speech. Whilst PETA might call for the ostracism and punishment of the members of this group, this is not because these people have some or other inalienable characteristic. Rather, it is because of what they choose to do; because of how they treat animals. The condemnation of the members of this group, therefore, is premised on the idea that they are human. As humans, we are entitled to treatment that is consistent with their basic humanity, but they are also obliged to conform to certain duties. In this example, it is alleged that they are failing to conform to these duties.
In cases of this nature, criminal regulation would not be justified. Constitutionally-speaking, the most restrictive form that regulation could legitimately take would be civil. For example, if it turned out that the suffering of animals is negligible when shechita is performed correctly, PETA’s claims would be false. If it could be established that the members of the group suffered damage to their reputation as a result of these expressions, they might be able to sue PETA for defamation. Outside of this kind of remedy, however, I do not think it would be legitimate to impose civil sanctions on people who express criticism of this nature.
[1] It is contingent because if it was not late at night and there were other people around she might have rented him a room.
[2] If this example does not work, then perhaps another example might, such as our choice of friends, lovers or partners. When it comes to the regulation of racist actions of this type, a great deal will turn on what rights and duties people are in fact entitled to simply by virtue of being human. It may be that the basic, or minimum, standard of treatment to which people are entitled would prohibit the owner’s treatment of the young traveller in this way, but not our selection of friends. If so, the public expression of the owner’s beliefs might constitute hate-speech, but announcing one’s friendship preferences does not. Thus, an important question when deciding how to regulate race-related expression is how rich or demanding our conception of this treatment should be. Once again, I owe this insight to Rachel Robinson.
Matthew Kruger
Legal Researcher
matthew@hsf.org.za