Hate speech bill risks stifling democracy’s lifeblood — debate - Business Day

16 April 2018 – A decade and a half ago, Thomas Feyer, long-time letters editor on the New York Times, wrote a brief essay for the edification of readers on the winning formula for a publishable contribution — short, to the point — along with some thoughts on the objective of the enterprise as a whole.

Michael Morris

A decade and a half ago, Thomas Feyer, long-time letters editor on the New York Times, wrote a brief essay for the edification of readers on the winning formula for a publishable contribution — short, to the point — along with some thoughts on the objective of the enterprise as a whole.

Ideally, he wrote, "the letters page should be a forum for a variety of voices, and that means letting a lot of readers have a turn", the aim being "to stimulate discussion, not end it". Feyer might have been describing the essence of a free and open society. And it sounds simple enough. Who could object?

Many do, of course. Mainly the self-convinced who cannot risk conceding that they may be wrong or, out of ideological zeal, wouldn’t countenance the slightest concession to second thoughts in case it meant changing their minds.

SA is all too familiar with the historical, and enduring, costs of ideological fixity and the range of permissible ideas by which certainty in what is right is established.

Little has changed. Today, despite ourselves, we subsist in a stifling atmosphere of chronic, sometimes malicious, misrepresentation born of the ideological delusion that we are a country of mutually antagonistic racial blocs whose interests and sentiments are, by nature, at odds.

Contradicting this leaden orthodoxy can easily be, and often is, cast as racially hateful. Hence, no doubt, the partisan enthusiasm — ironically for a country of mostly moderate, considerate citizens who (our research consistently shows) are keener to work together in crafting a better future — for an imminent law in whose title the word "hate" appears twice. Advocacy of hatred is evil, and the Constitution protects us against it.

What is likely, however, is that the Prevention and Combating of Hate Crimes and Hate Speech Bill will bring SA closer to failing a fundamental test of freedom conceived nearly 90 years ago and still as vivid today.

The 1929 US Supreme Court appearance of implacable Hungarian pacifist Rosika Schwimmer (denied citizenship for refusing to swear to take up arms to defend her adopted home) elicited a lasting yardstick of freedom in the memorable dissenting opinion by Justice Oliver Wendell Holmes, a Union soldier in the Civil War, thrice wounded, and a man not warm to pacifism. There was no principle, Holmes declared, "that more imperatively calls for attachment than ... the principle of free thought, not free thought for those who agree with us but freedom for the thought that we hate".

Writing in 2004, Hungarian-born Feyer of the New York Times recalled coming to the US with his parents — "survivors of Nazism and refugees from communism" — in 1957. Unlike Schwimmer, the Feyers became American citizens. But it’s fair to surmise that Schwimmer (she remained stateless although she lived in the US all her life) would have applauded Feyer for writing: "Perhaps unsurprisingly, my core belief … is that healthy, informed debate is the lifeblood of a strong democracy."

And a strong democracy cannot be inoffensive; nodding unanimity — or what novelist Martin Amis hinted at in calling out the "slovenly and unexamined freedoms" of the late 20th century — comes at a cost. To check free thinking is to wreck the intellectual mechanism central to testing truths.

Our CEO, Frans Cronje, wrote earlier in 2018 of "the fallacious arguments that underpin SA’s policy malaise ... the fallacies that empowerment policy as currently practised is the only effective strategy for ensuring meaningful black economic participation, that current levels of labour market regulation are in the best interests of the poor, that giving more power to officials will finally solve problems of access to high-quality schools and that the property clauses of the Constitution are to blame for the dearth of black commercial farmers".

This is where stimulating the discussion rather than ending it comes down to earth with a bump. Because, while polling shows that most South Africans want better policies that will demonstrably improve their lot, it is sobering that, in Cronje’s estimation, "in the end it may be the fallacies and the grip they exercise that will perhaps prove the most formidable obstacle to policy reform of all".

• Morris is head of media at the South African Institute of Race Relations.

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