Just How far Can One Express Own Self Through Speech Without Being Seen To Be Invasive Of Another’s Right of Expression Through Deeds. The Supreme Court On Hate Speech.

On the front page of The Sunday Times, Dec 1 2019 flashed an article titled Top Court Blasts SA’s Laws On Hate Speech in which article the decision delivered by the Supreme Court on Friday the 29th of November 2019 was briefly discussed. Without having looked at the judgment a few things does come to one’s mind and the title to his article is but one of the issues that comes to mind.

In my previous articles I have overly said We Live In Interesting Jurisprudential Times and in a number of my articles I conclude by stating that Even When Laws Are Written They Ought Not Remain Unchanged and those expressions become more apt after reading The Sunday Times article referred to above.

The decision of the SCA brings to the fore the need to amend written law (which I have always said, ought not remain unchanged and this is to be done as part of the delicate exercise of balancing the competing interest at hand. Applying this to the facts of the case at hand the interests desiring of balancing is that of the LGBTQI + community of openly exercising and expressing their sexual preference by deed on the one hand and the interest of Jon Qwelane (and the late Robert Gabriel Mugabe) of openly expressing their revulsion to gayism and lesbianism by speech. Just how far one can express own-self without being said to be invasive of another’s right to freedom of sexual expression and preference can never be easy and the legislature and indeed the courts often find themselves in a quagmire.

In the year 2011 while I was plying my trade at one top law firm in the Republic of Zimbabwe I wrote an article based on an article by Rick Garlikov titled The Concept of Tolerance: Privacy, Role-Model Influence, and the Tolerance Wars the contents of which bear repeating here in view of the recent Supreme Court decision referred to above.

One of the new social catchwords is "tolerance", and since there is wide social disagreement about what sorts of behaviors ought to be tolerated, it may be prudent to embark on a discussion about the word "tolerance" implies in the contexts in which it is being used in social policy discussions these days. That might help channel some of the current disagreements into more productive discussions, because to call someone else intolerant just because they don't believe as you do, is not helpful, and may itself not even be tolerant behavior.

Very critically, those who argue for greater tolerance often seem to want it to apply to everything except disagreement with them.

To say one ought to tolerate or accept certain behavior in others, even though one might not wish to behave that way oneself, or even though one might think it would be wrong for oneself to behave that way, normally to argue that the behavior under consideration is not objectively wrong or, if so, is not terribly wrong, but is either merely a matter of taste, perspective, interpretation, preference, difference of opinion, or, if wrong at all, is not so bad as would be the discord over it. To tolerate behavior is to permit it or to put up with it or to allow or to accept it (in some limited sense of acceptance) even though one disapproves of it or thinks it is distasteful or wrong.

Therefore it is not helpful to accuse someone of intolerance who thinks you are arguing for acceptance of a behavior s/he believes is wrong, and sufficiently bad to reject, even if that causes discord. They can merely turn the accusal around to say you are too permissive or have no sense of morality or decency as in the above "declensions". It is mere name-calling either way. 

The problem is, of course, that we don't disagree about the importance of tolerance; we disagree about what ought to be tolerated. And that is because we disagree about what is right and wrong and, sometimes, about which wrongs are worse than others. For example at the personal level, one might tolerate a 4 year-old's choice of clothing for a given day, or a teenager's choice of date, not because one approves of the choice, but because voicing such disapproval might cause more harm than good. So one tolerates the choice even though one might disapprove of it or wish it were different. However, if we think a choice of outfits is totally inappropriate for, say a wedding, or if we think a particular person may be totally unsuitable for dating a minor child, we might say tolerance is inappropriate in such a case, and would itself be wrong, even if it provokes deep disappointment, anger, or a quarrel.

The telling case is, of course, that people don't tend to preach tolerance for murder or embezzlement of their money. So it is not everything which one should be tolerant of. And, of course, one doesn't need to preach tolerance for charity, kindness, honesty or any other virtues; it would be strange to say they should only be "tolerated". Tolerance is about the things we don't prefer or approve but which are not so egregious that they require being forbidden or eliminated.

Hence, arguments about tolerating other religions or certain practices of other religions are not really about the need for tolerance in general, but they are arguments to the effect that a given religious practice is not really so bad that it needs to be prohibited or its adherents put at a disadvantage (by the state). Arguments about tolerating homosexuality or homosexuals, really simply are claims there is nothing wrong with permitting homosexuality, or with permitting homosexuals to, say, teach school.

So the real issues are not about whether someone or some group should be more "tolerant" but whether the behavior or characteristic is one that deserves to be tolerated or whether it is so wrong or so bad that it ought not to be tolerated. To argue for tolerance is to imply or to assume that the behavior or characteristic in question is either right or at least acceptable in the first place. But that is not necessarily a correct or reasonable assumption to make. It is particularly not usually reasonable to expect the person who disagrees with you about tolerating a behavior to agree with you that the behavior is acceptable or right in the first place. Most likely his/her assumption is that it is definitely not. That is why s/he does not think tolerance is an appropriate response to it. 

Change is upon us, and unless we and unless we adapt with it, the discomfort will be akin to that of suit on a growing young-men whose seams will inevitably burst.

Once again even when laws be written, they ought not remain unchanged. 

ADV I MURERIWA
+27 71 151 9000, advmureriwa@yahoo.com
MURERIWA LAW CHAMBERS, PRETORIA.