Vicki Momberg was today sentenced to serve three years in prison (with one year suspended), after being found guilty on four counts of crimen injuria relating to multiple racial slurs she uttered towards black police officers and others on November 3, 2016.
As far as I can determine, crimen injuria is a crime in South Africa, but not anywhere else. It describes serious impairments of the dignity of others, and racist speech can easily be seen as counting as such, at least under certain circumstances.
By the “circumstances” point I simply mean to say that while my uttering a racial slur at President Ramaphosa would be rude, perhaps offensive and certainly racist, it’s unlikely to seriously impair his dignity, due to my relative insignificance in relation to him. By contrast, doing the same to an impoverished black man on the street would more likely do so.
You might not think that the crimen injuria offence should exist in law, and you might not think that hate speech provisions should either. (I don’t think that either of them should ultimately exist, but see good reason for them existing now, because I regard them as two of the mechanisms by which we can best reach that ultimate goal.
Another distraction is whether they both need to exist, and the subjectivity by which they are or can be applied. These are problems for all laws, and if you’re a pragmatist like I am, you recognise that mistakes can be made in application, but so long as we’re improving things on aggregate, we can tolerate those while tinkering with the laws and implementation of them in order to make improvements.
Last week, I argued that Mark Meechan should not have been convicted of a hate crime for training his girlfriend’s dog to do a Nazi salute. The argument rested strongly on the context in which that incident occurred, and the same is true here. In his case, nobody needed to be harmed. But in the Momberg case, harm was virtually guaranteed.
If you are a liberal, or even simply well-acquainted with the philosophy of liberalism and free speech, you’d likely have encountered J.S. Mill’s “harm principle”. A (very crude) summary of it is that unless we are preventing harm to others, we have no right to interfere in the actions of others.
The harm principle is invoked in many restrictions on free speech, such as in laws relating to slander or libel. Now, it’s true that Mill was more concerned with the “offence principle” when it comes to free speech, asking us to separate merely “hurting people’s feelings” from actually causing them harm.
Unkind or abusive words are harmful in a subjective sense, he might say, and you can always choose to ignore the words of the abuser – they would not cause “necessary and/or immediate harms”, by contrast to a situation in which I lock you in a room with no escape, and subject you to endless racist tirades.
A final bit of overly-simplified background on his defence of free speech: it is a value worth defending against almost all objections because it’s our best route to truth. We expose errors and the people who believe them, we discover our own errors, and in the hurly-burly of argument, we learn to better defend our case for what is (probably/hopefully) right.
I mostly support his conception of free speech (you can search here on Synapses for “free speech” – there must be dozens of related pieces), and this is part of the reason why I find our proposed Hate Crimes Bill objectionable.
So, while I wouldn’t support someone landing up in jail for one racial slur, and probably not for five, at some number I’d find myself thinking that the point has been made, your free speech has been given its breathing-room, and that the rest of us have ample material to work with in telling you how wrong and odious you are.
In the Momberg case, she apparently used “the k-word” 48 times, to Constable David Mkhondo and various other black civil servants who were simply trying to help her.
And here’s a key thing about the context: their job was to help her. Even leaving aside the structural inequalities of South Africa, and the fact that our racist history makes these things all the more hurtful, they didn’t have a choice but to listen to her.
Walking away and not helping her would have made them criminally liable for not doing their jobs. So, back to my point about captive audiences, above: that is what they were, and that (black) captive audience was put in a position of subservience to a white woman, because they were asked to do a job for her while being demeaned, repeatedly.
“Free speech” doesn’t excuse that, except if you’re an absolutist about it (which I’m not). I’m fully aware of the dangers of applying a principle in a non-absolutist sense, mostly that you can end up setting the bar for what counts as offence lower and lower, until you end up criminalising just about anything.
But as the continuum fallacy reminds us, the fact that we can’t find an exact point at which speech becomes sufficiently harmful to proscribe doesn’t mean that there are not clear cases of sufficiently harmful speech on the one end, and entirely innocuous speech on the other.
Momberg was rightly censured for her speech. I don’t know if the sentence was the correct one, and I can’t guarantee that this won’t serve to create momentum on a slippery slope to excessive restrictions on free speech.
But I’d rather take those risks, and help refine the arguments by which we muddle through these dilemmas, than to endorse a conception of free speech that means we should tolerate anything at all.
Also published on Medium.