In an era of shifting sensitivities, the debate rages on: should offensive and hate speech find refuge under the shield of free speech? David Matthews delves into the essence of democracy, revealing why unrestrained free expression remains vital, even as the fine line between preserving liberal principles and curbing harmful rhetoric is scrutinised.
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What are the rational limits of free speech?
By David Matthews*
Should offensive and hate speech be permitted, covered by the legal protection of the freedom of speech, or should they be forbidden? What, if any, are the rational limits to the freedom of speech in a democracy? The answers to these questions are important to the survival of liberal democracy.
Democracy only exists in the West today because the population as a whole has collectively come to agree on certain political principles concerning government. These liberal principles were formulated in the 18th century in reaction to the perpetual subjugation of the majority of the population by one or the other authoritarian minority, which was how human society had always been organised previously. The liberal principles, in turn, were premised upon the profound democratic conception of the moral and political equality of all citizens.
It was recognised that the individualâs freedom could not be secured against those who, for their own ends, sought moral and political authority over others, unless certain inalienable political freedoms or rights were regarded as inherent in every individual, under law. These individual political rights, which cost nobody anything, were, among others, the right to the freedom of thought, belief, religion, speech, association, movement, assembly, property, and liberty. They finally gave the people, as a whole, the moral authority required to resist those predatory minorities that invariably sought their subjugation.
Read more: Andrew Kenny: âKill the boerâ and the complexities of free speech
The democratic state, representative of all the people, is based upon the possession of these rights by each and every citizen. Most importantly, the rights are deemed by reason to be inherent in each person, and not derived from the state. This concept lies at the very heart of democracy. For if human rights are deemed to derive from the state, they are at the disposal of whomever controls the state. Further, having the sole right to use force in a democracy, the state itself potentially presents a threat to the freedom of its individual members. It, above all, is therefore expected to both observe and protect the political rights of each of its citizens, both in law and in spirit.
Because each political right guaranteed by a democratic state is deemed to be inherent in each individual, no individual right recorded in the legal relationship between state and citizens may be curtailed or qualified by the state. Any change or amendment would have to be acceptable to each and every citizen to be legitimate in terms of democratic principle. For this reason alone, offensive or hate speech may not in any way be restricted in a true democracy. To do so would be instantly to transform a genuine democracy into a quasi-democracy, as in fact happened, largely uncommented on, in the West in 2020 during the Covid-19 pandemic, when the people were forbidden to leave their homes or assemble, âfor the greater goodâ. Such is the mindless way back to minority authoritarianism.
Furthermore, if the state were free to change or amend the individualâs right to free speech in any way, simply because a group of individuals thought this desirable, then the state would presumably be free to do so in respect of any or all of the basic political rights. This license would obviously be the end of democracy. Anyone who advocates limits to the freedom of speech, either deliberately seeks to undermine democracy, or is presumably unaware of the reasoning underlying the principles upon which the concept of democracy is based.
Regarding hate speech that advocates physical violence, the real problem lies with the presence in a democratic society of the person who advocates it, rather than with the principle of free speech. A democracy is supposedly a civilised society in which it is commonly understood that there is no room for violence. For a democratic society to alter one of its fundamental principles because of the primitive threats of violence by someone who is clearly not a democrat would be insane.
Libel and slander, as offensive as they are, are tolerated in a democracy under the principle of free speech, but, being socially unacceptable, are actionable in law by the person or persons who believe that they have been offended against. Hate speech advocating violence is no less socially unacceptable, and should equally be actionable in law. If the law fails to deal with such a matter appropriately, then it is the law that needs attention, not a fundamental democratic freedom.
*David Matthews is an author and Cape Town-based BizNews community member
Read also:
- FORSAâs Ellerbeck: ANCâs proposed censorship law not about âHate Speechâ, but to criminalise âSpeechâ elites âHateâ
- Jay Naidoo: Suppression of freedom of speech â a path to tyranny. It injures and kills.
- James Myburgh unpacks the âKill the Boerâ discourse: Musk, Malema and South African society
