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Fayose’s advert: Offensive or hate speech?

I believe that what Fayose sought to achieve by innuendo was to scare people that given Buhari’s age, he could die in office – as…

I believe that what Fayose sought to achieve by innuendo was to scare people that given Buhari’s age, he could die in office – as did Murtala Mohammed, Sani Abacha and Umaru Yaradua.  The Fayose advert has succeeded in re-igniting the debate on hate speech in this campaign season.
My aim here is to interrogate the relationship between hate speech and offensive speech and show why extremely offensive speeches that shock and awe are protected in several mature democracies. I will then discuss how some countries have sought to deal with the question of hate speech and then proffer some solutions on how offensive/hate speech could be combated in Nigeria.
What is hate speech?
Hate speech employs discriminatory epithets to insult and stigmatize others on the bases of their race, ethnicity, gender, sexual orientation or other forms of group membership.  Offensive speech is often similarly defined and this is why the line between hate speech and offensive speech is very thin.
Another definition of hate speech is any speech, gesture, conduct, writing or display which could incite people to violence or prejudicial action. Here the key word is ‘Incite’. However defining hate speech in this manner creates its own problem because even the opinions we hold could be construed as an incitement.  As Justice Holmes put it in a landmark case in the USA, (Gitlow v New York [1925]), “Every idea is an incitement… The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result.”
Several scholars have tried to more precisely delineate when offensive speech crosses that fine line and becomes hate speech.  Susan Benesch, Director  of the Dangerous Speech Project and a Faculty Associate of the Berkman Centre for Internet and Society at Harvard University identified five key variables for determining  the ‘dangerousness’ of speech or when speech transmutes from offensive to hate speech: (1)The level of a speaker’s influence  (2)the grievances or fears of the audience (3) whether or not the speech act is understood as a call to violence, (4) the social and historical context, and  (5) the way in which the speech is disseminated.
For blogger John Fay: “hate speech” should be reserved for rather extreme cases-speech that explicitly calls, for example, for the physical injury or extermination of certain people. I will define hate speech as speech that has ‘clear and imminent danger’ of triggering violence.
What is clear from the above is that is not every offensive speech, no matter how much such speech shocks and awes, could be called hate speech.
A key question is why are people very eager to make a distinction between offensive and hate speech? The answer for this is that proponents of free speech believe that offensive speech, unlike hate speech, contributes to the vibrancy of the marketplace of ideas on which democracy itself rests.
There are at least four key arguments for justifying free speech, including offensive speech, in a democracy:
One, is the importance of discovering the truth by allowing ideas to compete freely in the marketplace of ideas. Two, free speech is regarded as an aspect of self-fulfilment. Three, it is also seen as indispensable for a citizen to participate effectively in a democracy. Four, there is the deep suspicion of government and a belief that only free speech can restrain the government from trampling on the rights of the citizens.
For the above reasons in America, even hate speech is a protected speech.  In the US law courts, ‘fighting words’ – which are categorically excluded from the protection of the First Amendment – are not that easy to separate from hate and offensive speeches which are protected speeches.
In several mature democracies, purveyors of extremely offensive or hate speeches such as the KKK in the US or the British National Party in the United Kingdom are not banned. The logic is to prevent the ideas they espouse from being driven underground and glamorized. They are allowed to express their shocking and offensive ideas so that such ideas could be drawn into the marketplace of ideas and outcompeted. In this way their purveyors are not turned into heroes and heroines but rather marginalized by right-thinking members of the society. In rare cases such ideas are challenged in court but banning such groups is often seen as more dangerous for the society – both from free speech perspectives and as a way of containing such groups and the offensive ideas they espouse.
Hate speech is prohibited by law in several jurisdictions such as Canada, France, the United Kingdom and South Africa.  In the UK,  under section 5 of its Public Order Act (POA),  Harry Taylor, an atheist who placed drawings satirizing Christianity and Islam in an airport prayer room, was convicted in April 2010 and given a six-month prison sentence. In South Africa, Julius Malema, the former ANC’s Youth League leader was in 2011 convicted of hate speech for promoting the song, “Kill the Boer”. In France, right-wing politician Jean Marie Le Pen, runner-up in the 2002 presidential election, was in 2005 convicted of inciting racial hatred for comments made to the French newspaper Le Monde in 2003 about the consequences of Muslim immigration in France.
Is hate speech less in countries that use the law to fight it?
This is debatable.  What is clear is that laws can sometimes exacerbate the problem. A good example of this is what happened in the Australian state of Victoria where a law banning incitement to religious hatred led to Christians and Muslims accusing each other of inciting hatred and bringing legal actions against each other which only served to further inflame community relations.
How should the government tackle the menace of hate and extremely offensive speeches? Should it follow the American model and believe that the ability to live with speeches that shock and awe should be a small price to pay for safeguarding free speech and that Nigerians should see it as part of the process of nurturing the culture of tolerance? Or should it follow the European and South African model that explicitly prohibit hate speech?
A starting point is to recognize that the line between extremely offensive and hate speech could be blurred. While proper hate speeches – those that pass the ‘clear and imminent danger’ test or have the five variables identified by Susan Benesch in measuring the dangerousness of a speech should be criminalized, my opinion is that we should use non-legal instruments to deal with extremely offensive speeches. There may for instance be a need to develop, in conjunction with critical organs of the society such as media owners and practitioners, a taxonomy of what constitutes hate speech and extremely offensive speeches. Media houses through their unions should incorporate these as part of good journalism practice and impose sanctions on erring members who publish or broadcast hate speech speeches.
 It is tempting to speculate on what will happen if Junaid Mohammed, Edwin Clark, Chudi Uwazurike, Gani Adams, Ango Abdullahi, Asari Dokubo, Ayo Oritsejeafor and others who have been associated with varying degrees of offensive speeches in the past are convicted of hate-speech.
This brings me back to the Ayo Fayose advert.  While the advert is certainly offensive, I do not consider it hate speech and I do not understand the hullaballoo about it – except the politics of occupying the moral high ground.  The advert by Fayose actually offers the APC a good opportunity for a smart counter narrative. For instance if the advert was meant to scare people about Buhari’s age it ended up achieving the opposite effect because the three leaders of Northern extraction whom Fayose identified as dying in office were relatively young, meaning according to the logic of the advert, that Jonathan is actually more likely to die in office than Buhari because of the closeness of his age to the ages of those who died in office.  
Again if the advert was to establish by innuendo that leaders of Northern extraction are likely to die in office, it also failed flat because there are several leaders of Northern extraction who ruled the country who are still alive and besides,  General Ironsi, an Igbo, also died in office.
APC strategists appear to be rather too reactive (after their success in re-inventing Buhari) and too prone to shout ‘foul’ in a bid to occupy the moral high ground. Parodies, caricatures and documentaries that shock and awe are part of campaigns anywhere in the world, which is why politics is called ‘the art of the possible’, and those who cannot take the heat are always advised to stay away from the kitchen.  
There is a very anti-Buhari documentary which is playing up the fear factor about Buhari, and which has been airing on some TV channels for some time now. That is legitimate in campaigns and appears to be effective.  Why has APC strategists’ not provided a counter narrative or created their own damaging documentary on Jonathan?
Adapted from a paper presented at a roundtable on hate speech organized by the Kukah Centre, Abuja, on 27 January 2015.

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