Freedom of Expression and Religion in Secular Society

Last week in our bulletin, Fr. Chris Clohessy presented an excellent discussion on hate speech and the limits to our freedom of expression. For this week’s bulletin, I wanted to explore this theme further and ask the following question: ‘What role does freedom of expression play in our ability to practice religion in a secular society?’

Freedom of expression is vital to the practice of religion in South Africa. Our Constitution stipulates that everyone has the right to freedom of conscience, religion, thought, belief and opinion (section 15). This means that we are free to believe in the important tenets of our chosen faith. It also protects our ability to practice this faith in the public sphere, in accordance with the other provisions of the Constitution. Our Constitution also gives us the right to express our beliefs in public (section 16). However, as Fr. Clohessy rightly points out, there are limits to this expression. The Constitution prohibits ‘incitement of imminent violence’ or ‘advocacy of hatred’ that is based on a list of prohibited grounds, and that ‘constitutes incitement to cause harm’. So, in effect, we can express any aspect of our chosen faith in public so long as we are not inciting violence or advocating hatred. Furthermore, if evangelisation is an important aspect to our faith, freedom of expression provides a platform for us to discuss our faith in the public sphere. So far so good. But what about speech that does not incite violence nor advocates hatred, but which offends? Legislation in South Africa expands the definition of hate speech in the Constitution, and includes under hate speech any speech that is propagated with the clear intention to ‘be hurtful’ to others. Hate speech is perhaps easy to identify, but what about hurtful speech? The term ‘hurtful’ can be very subjective, and may provide numerous challenges to the  well-meaning theist. For instance, if the person of faith wanted to express his or her opinion that the way members of the wider community are living was sinful or unethical from the perspective of their faith, would that speech be considered hurtful? If so, is the person of faith prohibited from expressing these held beliefs in public? If this is the correct way of reading the legislation, it may be the case that it restricts the freedom of expression of the theist too radically.

Evangelisation means that the person of faith should be challenging society to live in accordance with better ethical codes. If freedom of expression is limited by what citizens may or may not find hurtful, this limitation may be denying faiths in South Africa the ability to enter into public discourse concerning the common good. This example illustrates how important a broad interpretation of freedom of expression can be. Apart from the constitutional imperatives not to incite violence or advocate hatred, freedom of expression should allow persons of faith to confidently express their beliefs in the public sphere.

Rev. Grant Tungay SJ
LL.B. (UCT), LL.M. (Wits), B.A.(Hons) (Heythrop), S.T.B. (Centre Sèvres)

Rev. Grant Tungay SJ is a lawyer by training, he left a career in law to join the Jesuits. He specialised in human rights law and has done volunteer work at the SA Human Rights Commission and also worked as an intern for the Centre of Applied Legal Studies at WITS. He worked at the Jesuit Institute South Africa for a few years in the area of social justice and is interested in the overlap between law, social justice and spirituality. After completing his theological studies in Paris he is currently finishing his second-cycle in theology in Nairobi, Kenya.

g.tungay@jesuitinstitute.org.za
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