21. On the day in question Mr Masuku was speaking to students who included both Jewish Zionists and Palestinian supporters. There appeared to already have been noted tension between these two groups. Therefore by Mr Masuku making those remarks he surely intended to incite violence and hatred that was already potentially imminent amongst these two groups. COSATU members of Palestinian supporters present at this rally could easily have been incited to hate, and even attack their Jewish counterparts. This is exactly what Section 16(2) of the Constitution seeks to prevent.
22. Mr Masuku’s heated statements made amidst an already tense audience appeared to advocate hatred against Jews and all other supporters of Israel. This is inciting violence based on religion, an area which freedom of expression does not protect.
23. Mr Masuku in his response to the allegations put to him by the South African Human Rights Commission, states that he was heckled by what he refers to “as a particular section of the audience – most of whom seemed to be members of the South African Union of Jewish Students”. This statement leave little doubt that the references made by him referred to Jews.
24. The statement that “it will be hell” for any group of students, taken in its proper context is intimidatory and threatening. It is conveyed as a warning to the effect that should one support Israel, one would suffer harm. Harm for the purposes of Section 16(2), as confirmed in the Freedom Front decision is wider than mere physical harm.
25. In responding to the allegations relating to the emails sent by him, Mr Masuku fails to deal with the context in which he used the words “…whether Jew or whomsoever does so, must not just be encouraged but forced to leave…” These words in effect come across that unless South Africans agree with his views they should be forced to leave South Africa.
26. In view of the content of the speech made and emails sent by Mr Masuku it is clear that the expressions amount to the advocacy of hatred and thus would not fall under the protection of Section 16(1) of the Constitution.
27. The comments and statements made are of an extreme nature that advocate and imply that the Jewish and Israeli community are to be despised, scorned, ridiculed and thus subjecting them to ill-treatment on the basis of their religious affiliation. A prima facie case of hate speech is clearly established as the statements and comments by Mr. Masuku are offensive and unpalatable to society.
28. In light of the above, the Commission hereby finds that the statements made by Mr. Bongani Masuku amounts to hate speech.
In terms of this ruling's impact on Masuku's Britain trip, reports are mixed. It is possible Masuku has been dropped from the program at Leeds University. But it also looks like Masuku is not being disavowed entirely, and in fact is and remains in Britain as a guest of the UCU itself, not BRICUP.
The HRC merely ordered Mr. Masuku to apologize to the Board of Deputies, and the Board expressed hope that it would be able to secure that apology without resorting to litigation. I went to bed last night without any reaction from Mr. Masuku and his affiliated organizations, but I was skeptical they'd comply (or at best, would give a Fatima Hajaig style one) -- though I thought there might be some chance Masuku would come under pressure from COSATU to mitigate the embarrassment. Alas, if this press released from the Palestine Solidarity Committee (purporting to speak on behalf of Masuku and COSATU) is any indication, it looks like we're headed to the courts on this one.
In that vein, I have several observations. The first is that I'm very nervous. I'm generally a cynic of the judiciary's ability to stand up and protect beleaguered minorities in the face of powerful institutional actors, and as I noted when these remarks first came out, COSATU's membership outstrips the number of South African Jews by nearly a factor of 30. It is particularly easy to justify such majoritarianism when one can falsely cast the marginalized group as hyper-powerful -- my law review comment focuses on how this has been the preferred argument of American courts seeking to deny equal rights to gay and lesbian claimants. Jews are, of course, particularly vulnerable to this move. The fusion of law and morality -- whereby courts are considered legitimate arbiters of not just legal/illegal, but right and wrong -- raises the stakes of these sorts of complaints dramatically. It is devastating to lose them, and I'm not optimistic about winning. Where the law is indeterminate (as it is here), and the facts malleable (as they are here), minorities tend to lose.
Second, if we are going to win in front of the courts,* there will need to be a full-court press against the fulcrum of Masuku's defense -- that he was attacking "Zionists", not Jews, and thus his statements are categorically insulated from being anti-Semitism. As it happens, I think the case can be resolved without even going there, as at several points Masuku made clear that his target was Jews, not "Zionists" (in one of my favorite caveats of all time, the PSC itself could only say that "in the main" his remarks were not directed at Jews qua Jews). Mr. Masuku persistently singled out Jews as particularly worthy of inhumane treatment, including "harm" and hellish lives. Moreover, for Jews the baseline presumption was that they were worthy of this treatment (with affirmative steps needed to demonstrate that they should be respected as human beings), whereas non-Jews, presumably, had to affirmatively include themselves in the category of Zionists in order to be rendered worthy of scorn. Finally, Mr. Masuku implied that Jews were not real South Africans -- they "come all the way from wherever they come from to tell us where and how to march, they can do that in their own country, not here." But since I suspect that Masuku is going to try and predicate his defense on the firewall argument between anti-Zionism and anti-Semitism, it's probably going to be tough to avoid.
Fortunately, it is also not that difficult to respond to. The poles of this debate should be pretty well accepted: criticism of Israel is not necessarily anti-Semitic, but sometimes it can be. To use two extreme examples: "Israel's bus system is horribly inefficient" is clearly not anti-Semitic, "The kike state must die!" clearly is. The question, of course, is where any given critique falls along the continuum. While it must be demonstrated that Mr. Masuku's words are anti-Semitic, he cannot respond simply be asserting the existence of a fictive firewall -- the words must be defended on merits.
We start with the observation that attacks on an institution or ideology affiliated with a given group of people, even if not all of those people identify with that entity, can still be a manifestation of racism or bigotry towards that group where the attack is designed to subordinate or deny the social or political equality of that group. So, despite the fact that not all Blacks support the NAACP (indeed, some find it quite risible), one can very easily imagine an attack on the NAACP that constituted racism if it expressed itself in a way that denied social or political equality to Black persons. Responding to a racism charge by saying, in effect, "I don't have any problem with
Mr. Masuku's remarks are analogous. First, as the commission found they were directed at the Jewish students in the audience, with the motive or at least knowledge of their likelihood to incite violence and hatred against them. While some Jews may not, in fact, held the views Mr. Masuku was condemning, the whole reason we are vigilant about hate speech is that the perpetrators of ethnic violence are rarely so discriminating in selecting their victims.
But the second and I think most important area in which Mr. Masuku's words were anti-Semitic is that they clearly sought to deny the political and social equality of Jews qua Jews, by imposing differential public obligations upon them. Elsewhere in the emails that Mr. Masuku sent, he informed his interlocutors that Jews had to "prove themselves reasonable and humane" -- the baseline assumption being that "we thought all of them are inhumane." Moreover, he established his belief that Jews, specifically, had to engage in particular vociferous speech acts in order to be seen as equals, not "hiding and silently consenting or grumbling under tables." If the do not do this, they cannot "expect us to regard them as human beings." Importantly, this obligation is cast as one on Jews, not people -- non-Jewish South Africans are not demanded to stake public, unambiguously anti-Israel positions as a condition of political equality.
As in Venezuela, the baseline presumption that Mr. Masuku is holding is that Jews are (to quote the commission's report) "to be despised, scorned, [and] ridiculed", and it is incumbent upon them to prove themselves worthy of dignified treatment. This, of course, is wholly at odds with what should be our baseline presumptions -- that we all deserve respect until we demonstrate otherwise.
The PSC is right to say this is an important test case. It is, of course, extremely important to preserve the space for political expression and debate over hotly contested issues. Yet, this can't be taken as a firewall without completely eviscerating hate speech laws entirely. Nearly all hate speech has a political bent to it, as the haters generally wish to impress the point that the despised group is bad for society and should be expunged. To allow that hatred to be shielded because it is making a political point is to allow nearly all forms of ethnic hatred (including pro-apartheid arguments, which, after all, were in defense of a political arrangement).
The case for aggressive enforcement of hate speech laws is strongest when the speech in question is being used to block the equal political participation of the victimized group. Representation-reinforcement remains, in my view, the strongest rationale for counter-majoritarian judicial maneuvers. Here, Mr. Masuku was explicitly demanding that the Jewish community, as Jews, adopt a very specific political program (expressed in a very specific way). If they did not, he advocated their dehumanization, making their lives "hell", and ultimately, their expulsion from the country -- and pledged that he had nearly 2 million workers at his disposal to back him up. If these threats go unpunished, it will simply be impossible for Jews to be considered equal members of the political community, as their sphere of political action will be circumscribed to the point of non-existence.
Mr. Masuku's words are a classic case of incitement and hateful speech directed at the Jewish people. The only question is whether, as a matter of law, we are willing to make a carve out to general hate speech principles to account for the cleansing power of anti-Zionism. The judiciary of South Africa should resist the temptation.
* I should say that, as is apparent, I am accepting the validity of hate speech proscriptions for the purpose of this post, as they are enshrined in South Africa's constitution. There are, of course, arguments against prohibiting hate speech, but given that the jurisdiction here unambiguously has those restrictions, I'm trying to parse out how they should be applied here.