This post follows on from here.
What about the Stacey case? There seems to be a stark difference between his actions and those of Malema, in that Stacey did not seem to be trying to spread an idea or influence others to carry out any action themselves. We may, following Yong, describe Stacey’s hate speech as ‘targeted vilification’1 as he was directly addressing those he was stigmatising on the basis of their race. Unlike in the Malema case, it does not seem as though there is any clear case of incitement. Rather, his words were hurtful or offensive to both those he was abusing, and other onlookers. His conviction was for a “racially-aggravated public order offence”, but since his comments were directed at only a small number of people (and only became widely-seen as a result of those offended by it reproducing his remarks) it does not seem that, aside from merely causing offence, his remarks caused any indirect harm.
So some hate speech is not harmful unless we consider offending others to be a kind of harm. Plausibly it is not as bad a harm as the kind in Malema’s case. The problem with Malema’s hate speech was not that it hurt people’s feelings but that it was deemed to incite violence. With cases like Stacey’s in mind, do we want to have a state prohibition on offending others, or is that going too far? Joel Feinberg suggests that we do. He proposes an ‘offence principle’ that, in a similar way to Mill’s ‘harm principle’ justifies the state in restricting expression based on the offence it causes. For Mill at least, this is over-stepping the mark:
“Much might be said on the impossibility of fixing where these supposed bounds are to be placed; for if the test be offence to those whose opinion is attacked, I think experience testifies that this offence is given whenever the attack is telling and powerful, and that every opponent who pushes them hard, and whom they find it difficult to answer, appears to them, if he shows any strong feeling on the subject, an intemperate opponent.”2
Of course, Mill’s worry does not seem to apply to acts of expression like Stacey’s. It is not that his attack was ‘telling and powerful’ or that it was ‘difficult to answer’ that was the reason why offence was taken. I think that those offended by his remarks were more than justified in being so. That said, Mill does highlight an important problem with the idea that we should legislate against hate speech on the basis of offence. This problem is that offence is something that varies strongly depending on our own prejudices, belief systems, general outlooks and so on. I may be offended by something considered by many to be wholly benign. If we decide that some kinds of offence, i.e. the sort that Stacey caused, are worth restricting, then we are prejudicing the feelings of some over those of others. Offence is a subjective emotion, and it is difficult to set boundaries between the kinds of offence that are acceptable (assuming Feinberg’s principle) and those that are not. Mill’s example above contains an example of offence that intuitively we would not want to regulate. Yet I do not think that it is proper to claim that taking offence in that way is ‘wrong’, given the subjectivity of offence, and so I do not see that offence is a reason to restrict certain acts of expression.
1 Yong, C., (2011) “Does Freedom of Speech Include Hate Speech?” Res Publica 17 (4):394.
2 Mill, J.S., (2008), On Liberty and Other Essays. Oxford: OUP pp. 59-60
