The right to free speech should not ignore the pain of hurt

28 August 2016 - 02:00 By Kerry Williams

Jon Qwelane's 2008 anti-gay diatribe goes before court tomorrow in a test case for the limits of freedom of expressionThe right to freedom of expression is often abused, usually by those with power and privilege. Men, white people, straight people, often unconsciously and with the best intentions, invoke it to protect blinkered and hurtful views.Words that hurt other people's feelings. Women, black people and LGBT people are hurt and paralysed by these views.The law is not good at acknowledging feelings. Feelings are emotions; emotions are for the weak. The "reasonable man" should be able to withstand critique and not succumb to insult.story_article_left1A case going to trial in the High Court in Johannesburg tomorrow will test if freedom of expression should ride roughshod over how words make people feel. In 2008 Jon Qwelane wrote an article in the Sunday Sun headlined "Call me names, but gay is not OK".In it he supported Robert Mugabe's views on gay people; said that being gay was unnatural; and compared same-sex marriage to people marrying (read: having sex with) animals.He argued that gay and lesbian equality should be removed from the constitution, and provoked the South African Human Rights Commission into seeking an apology from him.The commission lodged a hate speech and harassment complaint under the Promotion of Equality and Prevention of Unfair Discrimination Act. Qwelane responded by invoking his right to freedom of expression and challenging the constitutional validity of the hate speech and harassment provisions, thus pitting expression against feelings. Words against hurt.The equality act allows a complaint if words are hurtful. Section 10 states that certain speech is prohibited if it is based on a prohibited ground of discrimination in the constitution and reasonably demonstrates an intention to "(a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred". If such words are spoken, the complainant has an opportunity for civil recourse against the speaker.There are no criminal consequences for the speaker; instead, he or she may be ordered, for example, to apologise, to attend diversity training or to enter into a facilitated dialogue with the complainant. These remedies are aimed at ensuring there is engagement and that equality is promoted and dignity is protected.The equality act is nuanced and balances the interest we have in encouraging open and frank expression with ensuring that this expression does not become a tool to ratchet individuals or hammer social cohesion. There is great public good that comes through the compulsory engagement envisaged in the remedies in the act. The act includes a reference to hurtful speech being hate speech. Where there is hurt there is often also harm Those who speak the words cannot avoid the consequences of their speech and those who hear the words have an opportunity to express their anger and pain.The prohibition of words that are hurtful in section 10 of the equality act is at the centre of the Qwelane matter. He believes the act is constitutionally flawed as a result of this prohibition.The Psychological Society of South Africa disagrees and has intervened as a friend of the court to lead expert evidence on the effects of hurtful speech, which include not only psychological damage but also enabling an environment where violence becomes socially acceptable.The hurtful speech has harmful emotional consequences which impinge upon human dignity; it is a manifestation of harmful attitudes and it alienates, excludes and marginalises vulnerable people.This case has taken eight years to get to court, but the delay has only made it all the more pertinent. Almost every week there is another incident of racist behaviour, from Matthew Theunissen to Penny Sparrow.story_article_right2As the Psychological Society of South Africa puts it, the role of psychological or communal harm which causes societal marginalisation or rupture of the body politic is not given the significance it deserves when considering whether certain words and expressions are hate speech.The social media racist outbursts are easy to judge as hurtful (at the very least). Sparrow has, for example, been fined R150, 000 by the Equality Court and I can only hope that Theunissen is being similarly pursued. More complex, and interesting in terms of how to think about hurt, was Brett Murray's portrayal of a naked Zuma in The Spear, which was exhibited at the Goodman Gallery in 2012.Leaving aside the importance of artistic freedom of expression, Murray was also a privileged white man portraying a naked older black man in a country in which black people have been systematically dehumanised for 400 years.The portrayal of naked bodies often signifies abuse - the power is in the portrayal and the body, the person, is vulnerable. It is gazed at and can do nothing to counter that gaze.Nakedness, especially that of an elder, becomes a visual representation of the indignity that black people have experienced. As a result, The Spear catalysed a response filled with anger and pain.Justice Malala explained it perfectly when he considered why Advocate Gcina Malindi cried in court when presenting argument on behalf of Zuma that the painting be removed. Malala said: "I cannot escape the raw and real pain and hurt that Malindi's breakdown in court underlined ... There is a hurt that is still not processed.There is a pain so infinitely deep and huge that the Truth and Reconciliation Commission has done virtually nothing to assuage it ... What has hurt most for me, therefore, has been the sheer failure to appreciate the monumental nature of these slurs by many in the white community." Courts should dig deeper to understand the hurt that the equality act is intended to counteract Malindi's tears point to the importance of taking hurt seriously. His tears were the precursor to the current articulation of black pain and rage and the importance of vocally and visibly "outing" the most subtle and pernicious forms of discrimination.Section 10 of the equality act rightly includes a reference to hurtful speech being hate speech. Where there is hurt there is often also harm - psychological or emotional harm which damages individuals and the community.As a result of this type of speech, individuals have personal struggles to overcome their feelings of inadequacy and society unblinkingly marginalises the targeted group, rupturing social cohesion. Neither of these outcomes contributes to the public good.The law should protect individuals from serious emotional harm and courts should dig deeper to understand the hurt that the equality act is intended to counteract. In the Qwelane case, LGBT people were hurt by his words - they caused individual hurt and communal harm and contributed to marginalising this community at a time when there were already high levels of violence directed at black lesbians.Where words are spoken in this context and have this sort of effect, then speaking them should have consequences.•Williams is a partner at Webber Wentzel and attorney for the Psychological Society of South Africa..

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