As many on this blog know, I am hold a near absolutist view of free speech that has led me to long criticize hate speech laws around the world. We are seeing a steady expansion of criminalized speech, often under ill-defined or highly subjective standards. That is why a recent decision of a court in Cape Town caught my eye. A controversial art display inSouth African National Gallery entitled Fuck White People was reviewed by the Cape Town Magistrate. The court declared that the display, including both art, tee-shirts, and other items was not hate speech. I am always relieved when free speech prevails over criminalization. However, there is still uncertainty over the standard. Because the artist invoked the struggle of Albert Luthuli and Nelson Mandela, the campaign was deemed non-hateful speech. Would that have been the same result is an Afrikaner printed works and tee-shirts with the same message about Black people? Again, the point is not to disagree with the ruling. The point is that speech regulation often rests on uncertain and shifting standards.
What is curious about the court’s logic (I would have preferred a higher court decision striking down the criminalization of speech) is that the artist, Dean Hutton, has made it clear that she is speaking to all white people:
We are individuals first, with little to no collective responsibility for actively dismantling the systems that keep us white. Being white is a construct which we have too heavily invested in emotionally and spiritually, and which asks us to turn a blind eye to oppressive behaviour that continues to destroy our humxnity. It is too easy to blame racism on the “bad whites” and give ourselves a cookie for good behaviour but every single one of us profits from white privilege and, until we actively deal with systemic racism, with both everyday and extraordinary action, identifying as white to the exclusion of our humxnity will continue to be problematic. The discomfort of feeling racialised in spaces, to honestly ask ourselves if we belong, or how we achieve belonging, is a very necessary part of unlearning oppressive behaviour.
The stated purpose behind the art is also directed at the intolerance generally of white people — not just the intolerance shown to blacks. Hutton ties the art to what she views as a white hatred for transexual people like herself:
I have a dropbox folder entitled “White People Made Visible” filled with hundreds of dehumxnising, threatening and hurtful comments about my fat, queer body. My body has always been a site for white violence and today I have had to seek legal help to apply for an interdict against people who want to hurt me, and to destroy creative works which make them uncomfortable. My body presents outside of gender-binaries, people are confused by that and it’s online where I experience the most hateful transphobia. I have been made into a monster, people on those sites refer to me with a dehumxnised “it”. To them I am a waste of white skin, a traitor to my race and for that I am disallowed any right to humxn dignity.
So what is the standard for hate speech in South Africa? The law itself is chillingly broad and ill-defined:
The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 :
[N]o person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to―
-
be hurtful;
-
be harmful or to incite harm;
-
promote or propagate hatred
To be harmful or “promote” hatred is so vague as to allow the most arbitrary applications. You end up, as in this case, distinguishing between profane attacks on races as either elevating political statements or racist screeds. There is an alternative. It is called free speech where you let good speech drown out bad speech. That is why this is the right decision for the wrong reason.
While this Was not a nice thing to say, I value free speech more.