Gay rant: What turns free speech into hate speech?
Qwelane's appeal raises debate about freedom of speech
Former ambassador Jon Qwelane has been given leave to appeal a high court judgment forcing him to apologise to the gay and lesbian community for what a high court judge ruled was hate speech.
The 10-year saga over his comments comparing gay marriage to bestiality is of interest to lawyers and proponents of free speech because it addresses the contradictions in South African law over the definition of hate speech.
Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, often referred to as the Equality Act, states that hate speech can be considered something “hurtful” or “harmful”.But the constitution protects offensive and hurtful speech, unless it incites harm or violence. Section 16 states: Everyone has the right to freedom of expression, but advocacy of hatred that is based on race, ethnicity, gender or religion is not permitted if it “constitutes incitement to cause harm”.
The legal saga began 10 years ago when, in 2008, Qwelane wrote a deeply offensive column in the Sunday Sun titled: “Call me names, but gay is not ok”.
He compared being gay with bestiality, and the column was illustrated by a cartoon of a man marrying a goat.
Qwelane argued that politicians needed “the balls to rewrite the constitution” regarding the legalisation of same-sex marriages because “at this rate, how soon before some idiot demands to ‘marry’ an animal, and argues that his constitution ‘allows’ it?”
The South African Human Rights Commission received 350 complaints about his column and took Qwelane to the Equality Court.
In 2011, the Equality Court ruled that he needed to write an apology to gay and lesbian people and pay R100,000 to a charity of their choice.
But in 2013, Qwelane decided to argue that the Equality Act, under which he was found guilty of hate speech, was unconstitutional.
He argued that the Equality Court ruling that his hurtful comments were hate speech constituted an “unreasonable and unjustifiable” limit on his freedom of expression as enshrined in the constitution.In September 2017, the Johannesburg High Court found his speech was hate speech and was harmful to the gay and lesbian community, who often face violence and threats to their lives.
This judgment was criticised as an attack on free speech.Advocacy group Freedom of Religion SA advocate Nadine Badenhorst said that, while Qwelane’s words were offensive, the high court ruling that harmful speech was hate speech set a “dangerous” precedent.
She wrote: “The Qwelane judgment has dire implications and sets a very dangerous precedent for freedom of speech. This includes the ability of all persons to freely and without fear of punishment, express their moral, philosophical or religious beliefs on issues that are potentially controversial. While many would agree that what Qwelane has said is (potentially deeply) offensive, that in itself does not make it hate speech.”
She added that hate speech is narrowly defined in the constitution as “the advocacy of hatred ... that constitutes incitement to violence”.The Qwelane judgment puts the cat among the pigeons because it stretches the definition of hate speech (in terms of the Equality Act) to speech that is potentially hurtful and harmful.Badenhorst said this would confuse ordinary people who may make hurtful comments.
“Apart from the chilling effect on freedom of speech, it blurs the boundary between free speech and ‘hate speech’, and makes it impossible for the ordinary person to know whether their speech is protected or not.”
Despite severe congestive heart failure and breathing difficulties, as outlined in the court papers, Qwelane has decided to take the matter all the way to the Supreme Court of Appeal.
‘Interest of justice’
Qwelane’s 10-year court battle comes as parliament is debating a new bill defining hate speech and adding criminal sanctions for the offence, which is now only punished with a fine.
In granting him leave to appeal, Judge Dan Moshidi wrote that it was in the “interests of justice” that the interpretation of the Equality Act’s definition of hate speech is addressed. He also ruled that the case included “complex and controversial” issues.
A month before the Qwelane judgment the press ombudsman appeals committee was asked to decide whether a controversial blog on the Huffington Post, arguing that white men should lose the right to vote, was hate speech.
The same issues around freedom of speech were aired and a completely different ruling was made. The committee found that the blog did not incite violence as defined in the constitution, and that “discriminatory speech is not necessarily hate speech”.But with two contradictory rulings in a matter of weeks, analysts said the law on what hate speech was just wasn’t clear.
Christine Botha, legal officer at the Centre for Constitutional Rights, writing on News 24, said the Qwelane and ombudsman rulings contradicted each other, leaving lawyers with mixed messages.
“The Qwelane matter specifically justified the hate speech provisions in the Equality Act, which is much broader. These two rulings, although distinct, appear to outline different boundaries to the concept of hate speech, and leave one with very little guidance.”
In granting leave to appeal his ruling, Moshidi found that “a level of certainty” about the constitutionality of the Equality Act’s definition of hate speech was needed. The appeal courts may offer this.