However, the marketplace of ideas does not account for an unequal society where some members have more privilege in getting to speak their thoughts, as well as to be taken seriously by the rest of society. If these folks get to speak their truth, and are heard by others, they are often the most likely to face retribution for using their right to free speech and expression. This severely compromises the marketplace of ideas from accurately representing the United States as a whole, and only allows room for those with large amounts of privilege. In addition to silencing minorities and women from the democratic process, hate speech is traumatic in and of itself, and can cause psychological damage to these folks.
While the United States protects the right to liberty, the right to human dignity is absent from both the United States Constitution and a landmark Supreme Court case. Many other Western countries cite the right to human dignity as a reason to ban hate speech. In addition to Austria, almost every other developed nation has laws that prohibit the use of hate speech, including most of the European Union, Germany, Great Britain, Canada, Australia, and South Africa.
It will be important for U. Interestingly enough, the United Nations UN , of which the United States is a member, also has adopted a free speech clause. In , the UN adopted the International Convention on the Elimination of all Forms of Racial Discrimination, or the first international treaty that directly deals with hate speech. The treaty distinguished four different aspects of hate speech: the dissemination of ideas based on racial superiority, the dissemination of ideas based on racial hatred, the incitement to racial discrimination, and the incitement to acts of racially motivated violence.
While the United States signed the UN treaty over 50 years ago, the federal government nor any individual state in the U. Citizens of the United States of America are promised the rights of freedom of speech, expression, and liberty.
8. The Ethics of Human Dignity and Freedom of Expression
This leaves a glaring opportunity for the the legislative or judicial branch of the U. If you want a picture to show with your comment, go get a gravatar. Media Ethics: Cases and Moral Reasoning 10th ed. New York: Routledge. Cohen-Almagor, R. Fackler Eds. Cresskill: Hampton Press, Inc. Commission on Freedom of the Press. A Free and Responsible Press.
Chicago: University of Chicago Press. Descartes, R.
J Lafleur, Trans. Indianapolis: Bobbs-Merrill. Do-Dinh, P. Confucius and Chinese Humanism.
The Cambridge Handbook of Human Dignity. Dworkin, R. Justice for Hedgehogs. El-Nawawy, M. Los Angeles: Figueroa Press. Exum, A. Media Development, 2 , 30— Figenschou, T. Fisher, A. Keeble Eds. Suffolk: Abramis Academic Publishing. Fleischacker, S.
The Ethics of Culture. Ithaca: Cornell University Press.
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Gadamer, H. On the Scope and Function of Hermeneutical Reflection. Continuum, 8 , 77— Truth and Method J. G Marshall, Trans. London: Continuum International. Herz, M.
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Al Jazeera. Huusko, J. Kant, I. Groundwork of the Metaphysics of Morals trans: Gregor, M. Original Publication Nevertheless, the starting point is of particular significance. The Appellate Division banned the Gallo edition of the gramophone record of Jesus Christ Superstar in on the grounds of its being offensive to the religious convictions of Christians. Magersfontein was, before the s, rejected purely on the grounds of being offensive to public morals and in certain respects, offensive to the religious convictions or feelings of the Christian section of the population. In the Cape Supreme Court banned the novel Kennis van die Aand , finding it to be offensive to the religious convictions or feelings of the Christian section of the population.
The Publications Appeal Board in , in spite of its open-minded approach in other respects, found The Last Temptation of Christ to be offensive to the religious convictions or feelings of the Christian section of the population. The Films and Publications Board, acting under the new Act, held that the film in its video and DVD forms did not amount to hate speech and regarded the film, in any case, as bona fide drama in terms of Schedule 10 of the Act in The reason for the denial of a certificate for cinema distribution was that anonymous threats were received from some agitators, stating that they would attack theatres where the film was screened.
Free Speech Is Central to Our Dignity as Humans
Had the said denial been considered on review, I have no doubt that it would have been held to have been ultra vires. The restrictions that were placed on expression were not only a denial of democracy itself, but also exacerbated the impact of the systemic violations of other fundamental human rights in South Africa. South Africa is not alone in its recognition of the right to freedom of expression and its importance to a democratic society. The right has been described as one of the essential foundations of a democratic society; one of the basic conditions for its progress and for the development of every one of its members.
As such, it is protected in almost every international human rights instrument. The pluralism and broadmindedness that is central to an open and democratic society can, however, be undermined by speech which seriously threatens democratic pluralism itself. Many societies also accept limits on free speech in order to protect the fairness of trials. Speech of an inflammatory or unduly abusive kind may be restricted so as to guarantee free and fair elections in a tranquil atmosphere. Freedom of choice is an important facet of freedom of expression and is supported by the fundamental right to watch material, which includes even experimental drama.
The legal question is whether a reasonable person, in casu, a Christian, would tolerate another person watching a broadcast of a film from 23h15 onwards with due classification and not whether he or she would tolerate watching the film him— or herself. The subjective intention of the producer is not relevant in determining whether the work is a bona fide drama.
Of course, if the material itself advocates violence, that would place it in the category of hate speech. When Judge Jajbhay 21 interdicted newspapers from publishing cartoons of the prophet Mohamed, he based the interdict on the protection of the dignity of Muslims regarding their religious adherence to the teachings of the Prophet. There was, rightly, no reference to threats of possible violence in the conclusion reached by the Court, in spite of this aspect having been raised by the applicant in its papers before the Court.
The aspect of dignity will be dealt with in the next paragraphs.
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The Complainant argued that although this did not amount to hate speech, the words did offend him as Calvinist and deeply so. The attack was not, and was not understood as being, an attack against the complainant personally. It was an attack upon his language. Undoubtedly, the complainant found that to be hurtful and offensive in a general sense; but it did not, in relation to the person of the complainant, have that degrading, insulting or ignominious character which is a requisite of an injuria.
In our mixed society there are, apart from language, a number of areas, such as race, religion, colour and national feeling, in which an individual may be exceptionally sensitive to disparaging remarks and over the years there must unhappily have been innumerable instances in which an individual has felt himself affronted by offensive remarks in one or other of these areas.
The fact that it appears that there is not on record any case of a prosecution for criminal injuria arising out of such remarks, points strongly to the conclusion that conduct such as that now in question has never been regarded as supporting a criminal charge. Bearing in mind the past history of criminal administration in this country, the position seems to me to be correctly stated in Gardiner and Lansdown, S. Criminal Law and Procedure… that criminal injuria has a narrower denotation in this country than injuria had in the Roman-Dutch law, and that, even if conduct falls within the Roman-Dutch definition of injuria , the Courts of this country will not treat it as a criminal injury if it is not of a reprehensible character which in the interests of society should be punished, or if there has for a long period been a practice by which such conduct has been regarded as not constituting a contravention of the criminal law.
The first question was whether religion may also be accommodated under the dignity clause, that is clause 38 of the Broadcasting Code. Is clause 16, in its explicit protection against hate speech based on religion, not the only clause that protects religion? The BCCSA was not convinced that the invasion of dignity, within the context of the Broadcasting Code, was a constitutionally permissible limitation to speech that is regarded as offensive on religious grounds. Section 16 2 c of the Constitution explicitly states that hate speech based on religion is not permitted.
That is the only limit to free speech in the case of religion. If the infringement of the right to dignity were to be the test, recourse would always be had to this in unsuccessful complaints relating to hate speech. The unlawful infringement of the right to dignity could then be based on mere offensiveness to the complainant, without a hate speech component to it.
The infringement of the right to dignity alone is, however, not a sufficient ground to impose a limitation on offensive religious speech. At the heart of freedom of religion lies the right to express views that could be offensive to adherents of the faith that is being criticised or attacked. Although not fully discussed, the learned Judge does, however, also find that there was an advocacy of hatred and, combined with the infringement of the right to dignity, the Court, ultimately, in my view did base its conclusion on the advocacy of hatred as well as the infringement of the right to dignity.
Of course, it should then be accepted that the hate speech also constituted incitement to cause harm in terms of section 16 2 of the Constitution. Vitriolic, as it was to make this sweeping statement, it did not satisfy the requirement of propagation of hatred. Back to top It should be noted that both the BCCSA and Judge Nicholas left open the question whether there might not be cases where religion is so intertwined with dignity that the attack, judged as a whole, would ultimately infringe dignity, even from a legal perspective. In this sense, the law is always open to adapt to facts which, indeed, infringe dignity as protected by law.
Back to top I have known Andries van Aarde since his school days.
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