Weekend Nation
By: Vivian Kasunda
15 March 2025
The right to freedom of expression is a fundamental cornerstone of democratic societies, allowing individuals to express their thoughts, opinions, and beliefs without fear of retribution. Across Southern Africa, the right to freedom of expression is a Constitutional right, and it is safe to say that this progressive stance is a testament to the region’s commitment to upholding democratic values and principles.
While the region’s commitment is impressive, the right is, however, not absolute, and one of the most contentious issues surrounding freedom of expression, and in particular free speech, is hate speech. Hate speech, which encompasses language that incites hatred, violence, or discrimination towards individuals or groups based on specific characteristics, raises significantly difficult questions about free speech, social justice, and human rights.
On one hand, freedom of expression and speech must be protected to ensure that individuals can express their opinions and engage in public discourse.
But on the other hand, hate speech can have serious consequences, including inciting violence, perpetuating discrimination, and causing emotional distress.
So, where do we draw the line and how do we avoid protecting and enabling hate speech under the umbrella of free speech?
John Stuart Mill’s Harm Principle suggests that speech should only be restricted if it causes harm to others. Even though at face value, this principle seems reasonable, it does not solve the problem entirely.
In fact, it leaves us with more questions due to the limitations of this principle. For example, how do we define ‘harm’? Is it limited to physical harm, or does it also include emotional and psychological harm? How do we measure harm? But most importantly, who gets to decide what constitutes harm? These are only a few of the many questions that the harm principle poses.
It is evident that harm can be subjective and what one person considers harmful, the next might not. Other factors to consider are that one would also need to ascertain the context in which the speech has been made before it is termed hate speech
Hate speech can have serious consequences, including inciting violence, perpetuating discrimination, and causing emotional distress
and that the harm principle may not account for power imbalances, where certain groups or individuals may be more vulnerable to harm.
As we try to navigate and understand the relationship between hate speech and free speech, it is essential to recognise before anything that the two are not mutually exclusive and that they intersect and overlap at some point. It is for this reason that certain countries, institutions and platforms are drawn to censorship.
Censorship can be a double-edged sword, having both positive and negative consequences. On one hand good censorship can help prevent hate speech that often incites violence, discrimination and harm against marginalised communities.
However, on the other hand, bad censorship can be used to suppress legitimate speech hence potentially perpetuating inequality and discrimination. As such, finding a balance between protecting vulnerable groups from hate speech and preserving free speech is a crucial exercise.
Ultimately, the solution does not lie in censorship, but in fostering a culture of empathy, understanding and critical thinking where diverse perspectives can be shared, debated and challenged without fear of retribution or harm. It requires that we acknowledge the complexities of language and power dynamics, and demands that we listen attentively, engage critically and speak out against hate speech whenever it arises.
It is, therefore, essential that individuals are educated about the harm caused by hate speech and the need to promote inclusive and respectful public discourse, where everyone feels welcome and valued. Hate speech is not and can never become free speech.
The author is a lawyer with the Southern Africa Litigation Centre (SALC).
