HATE-MOTIVATED VIOLENCE: IS IT LINKED TO HATEFUL EXPRESSION?

Abstract

In 1996, the late Prof JMT Labuschagne wrote an article dealing with the limits of freedom of speech and hate speech (“Menseregtelike en Strafregtelike Bekamping van Groepsidentiteitmatige Krenking en Geweld” 1996 De Jure 23). He discussed freedom of expression and hate speech in the United States of America, various European countries, South Africa and also within the context of international law. He subsequently discussed the idea of updating his thoughts, taking into consideration the influence of the Constitution of the Republic of South Africa, 1996 and the Promotion of Equality and Prevention of Unfair Discrimination Act (4 of 2000, commonly referred to as the “Discrimination Act”). Sadly, he never got around to doing so. Since his 1996 article, much development has taken place in this field including the introduction of the 2004 Draft Prohibition of Hate Speech Bill. The events of 11 September 2001 in the USA and the 2005 bombings in London (and other similar attacks all over the world) have increased intolerance and suspicion between people from different races and religions manyfold. Immediately following the London bombings, it was reported that religious hate crime (that is, attacks targeting England’s Muslim community) had increased by nearly 600% (“Religious Hate Crime Up 600%” 2005-08-02
21:14 SA http://www.news24.com visited 2 Aug 2005). Hate speech is regarded as an exception to freedom of speech/expression. The notion of freedom of expression has been discussed at length by various South African writers (Johannessen “A Critical View of the Constitutional Hate Speech Provision: Section 16” 1997 SAJHR 136; Devenish “Freedom of Expression: The ‘Marketplace’ of Ideas”
1995 TSAR 442; Carpenter “Fundamental Rights: Is There a Pecking Order?” 1995 Codicillus 27; Johannessen “Freedom of Expression and Information in the New South African Constitution and Its Compatibility with International Standards” 1995 SAJHR 216; Van Rooyen “Censorship in a Future South Africa: A Legal Perspective” 1994 De Jure 283; Nesser “Hate Speech in the New South Africa: Constitutional Considerations for a Land Recovering from Decades of Racial Repression and Violence” 1994 SAJHR 336; and Marcus “Freedom of Expression Under the Constitution” 1994 SAJHR 140). This note briefly touches on some aspects relating to freedom
of expression and hate speech and also explores the (rather newly discovered) notion of hate crime. It asks the question whether there is any connection between hate speech and hate crime.