In late July, South African politician Julius Malema, “commander-in-chief” of the left-wing Economic Freedom Fighters (EFF) party, led a stadium packed with over 96,000 supporters in a chant that featured words like “shoot to kill” and “kill the Boer, the [white] farmer.” The almost exclusively black crowd followed Malema’s lead as he pointed his finger in the air, mimicking the sound of guns discharging. 

After Twitter/X Chief Executive Elon Musk, who was born in South Africa, expressed concern about the rhetoric expressed at the rally, America’s progressive media closed ranks around Malema. Outlets that regularly lecture Americans about the harms of “hate speech,” or the need to curtail the First Amendment for anti-discrimination purposes, rushed to downplay the incident and to deflect blame away from its instigators.

The New York Times described the chant as “one of many battle cries of the anti-apartheid movement that remain a defining feature of the country’s political culture,” citing “veterans and historians” who claimed that its message should not be taken literally. The Washington Post warned that right-wing extremists were seizing upon Malema’s rhetoric to push the narrative of white genocide. 

“South African white rights activists have found an audience among the American far right, whose members see a bizarre parable for the fate that may await them in South African Whites’ supposed vulnerability to the predations of hostile Blacks and neglect by a Black-majority government,” Post columnist Ishann Tharoor wrote. 

Anti-Defamation League (ADL) Chief Executive Jonathan Greenblatt released a statement echoing the press, saying baseless claims about “white genocide … have been used to excuse hate, to justify harassment, and to rationalize violence.” 

All of these apologists for Malema argued that the “Shoot the Boer” chants originated as merely a symbolic instrument of protest. Assuming that is true, these words take on a different flavor when uttered by a political leader who once said, “We have not called for the killing of white people at least for now—I can’t guarantee the future.” It should also matter that, instead of being a fringe group, the EFF is in fact the third-largest party in South Africa—and that EFF leadership has praised former Zimbabwean President Robert Mugabe, who oversaw the violent seizure of white-owned farmland. 

One also wonders why the Rainbow Nation’s justice system, which prohibits speech that could “incite harm” or “propagate hatred” against groups based on protected characteristics like race, gender, and disability status, has yet to impose meaningful sanctions on Malema. In 2022, the Gauteng Division of the High Court in Johannesburg ruled that saying “Shoot the Boer” was not hate speech, a fact The Washington Post invoked to quell Malema’s “white nationalist” detractors. 

To understand Malema’s impunity, as well as the eagerness on the part of sympathetic journalists to paint him as another harmless advocate for racial justice, one must first look to a time when he was banned from chanting “Shoot the Boer.” In 2010, AfriForum, a nonprofit group representing the interests of white Afrikaners, brought suit against Malema, then president of the African National Congress Youth League (ANCYL), for chanting “Shoot the Boer” in public. 

After examining media coverage of “Shoot the Boer,” High Court Judge Colin Lamont concluded that “a section of society was outraged by the fact the song had been sung and sung repeatedly.” Therefore, while several of the incidents in question involved Malema performing in front of like-minded persons who may have understood it to mean the symbolic destruction of apartheid, “The target group of white Afrikaners,” who presumably disagreed with his interpretation, “must be treated as being the audience even although it was not physically present at the rallies.”

The chant thus satisfied the “hurtful” element outlined in South Africa’s Equality Act, which reads, “no person may publish, propagate, advocate, or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred.” 

Without disputing the wisdom of using media reports and expert opinions as proxies for the collective sentiments of a “target group”—a problem inherent to hate speech laws—one might ask why anyone should care even if Afrikaners were indeed hurt. Did Lamont not admit that several commentators had written that “society must never be seen to be oversensitive about white fears at the expense of black aspirations”?

As for whether the hurt was reasonably felt, Lamont answered in the affirmative. “Primarily the way in which the [apartheid] regime could be destroyed was by injuring the proponents of the regime … namely the white South African Afrikaans-speaking members of the community.” 

But, since apartheid had fallen, Lamont reasoned that “Shoot the Boer” could only be construed as a gratuitous call for violence, which ought to be proscribed because the constitutional order was meant to promote reconciliation. “The re-adjustment of society required individuals of the groups to reprogram themselves and their conduct,” Judge Lamont wrote.

Malema’s side argued in response that one should not assume apartheid is gone for good. It is desirable, if not necessary, to chant “Shoot the Boer” because “the regime lives on in the form of the untransformed person who holds benefits conferred upon him by the regime and which he has not relinquished,” Malema’s lawyers argued. If inequities persist, reconciliation requires whites to tolerate “Shoot the Boer” and other forms of Black catharsis.

When AfriForum sued Malema again in 2020 for chanting “Shoot the Boer,” the political ground had changed and the High Court held in favor of Malema. Judge Lamont’s ruling no longer applied, because it banned “Shoot the Boer” on the basis that it was subjectively hurtful to whites, whereas the 2020 Constitutional Court case Qwelane v. South African Human Rights Commission had invalidated the “hurtful” element in the Equality Act. The section now prohibits speech “that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred.”

The judge in the 2020 case, Edwin Molahlehi, concurred with Malema and his expert witness, both of whom insisted that blacks understood “Shoot the Boer” to be merely a symbolic protest against inequality, not literal hate speech. Molahlehi noted that Qwelane had established an objective test for whether an expression “could reasonably be construed to demonstrate a clear intention” to promote hatred, one that “considers the facts and circumstances surrounding the expression, and not mere inferences or assumptions that are made by the targeted group.” 

In other words, as long as it is reasonable to consider the “facts and circumstances” of South Africa—namely the lingering effects of apartheid—it does not matter that whites might perceive “Shoot the Boer” to be hate speech.

Having failed to prove the chant was hateful, Molahlehi also found a lack of evidence supporting an intent to harm. This was despite Malema testifying that “a revolutionary is a walking killing machine,” and that he would not hesitate to kill in defense of his people. Molahlehi’s analysis focused on his judgment that the specific harm alleged—the racially-motivated attacks on white farmers—could not have resulted from Malema’s rendition of “Shoot the Boer.”

But if the High Court were consistent in its reasoning, it would not have banned displaying the apartheid-era South African flag on the grounds that any negative feeling elicited by the flag is prima facie evidence of harmful intent. The same court that excused “Shoot the Boer” ruled the act of displaying the old flag could have no other intent “than to provoke and hurt, harm and promote and propagate hatred by stimulating those very negative feelings and at the same time damaging (harming) our feeling of oneness as South Africans?”

Such is the double standard of hate speech laws. Some must perform the impossible feat of exploring the deepest recesses of the human mind in order to tie speech to harm, while others may assert harm, however speculative, on behalf of entire groups whose members have little in common but for their skin color. Claremont Institute scholar Arthur Milikh wrote that this disparity can only make sense in a system that implicitly divides society into oppressor and oppressed: 

If the liberation of oppressed groups comes to depend on disrupting or undermining the power of the oppressor, then ‘hate speech’ toward the latter is ipso facto encouraged. … An ‘angry, hateful poem by a person from a historically subjugated group’ should be interpreted as ‘a victim’s struggle for self-identity in response to racism.’

As Molahlehi’s ruling suggests, “Shoot the Boer” is acceptable to chant as long as one can reasonably assume blacks still languish under systemic racism. Such a notion has to be reasonable in perpetuity, otherwise the entire South African constitution, which aims to uplift historically disadvantaged groups, would be redundant. However noble his attempt a decade ago at adopting a race-neutral approach to hate speech regulation, Judge Lamont forgot that the “re-adjustment of society” would never require the oppressed “to reprogram themselves and their conduct” in ways that hinder their eternal struggle against oppression.

As the American left embraces censorship in the name of fighting “hate,” it should be forced, for the sake of consistency, to apologize for allies like Malema who are themselves guilty of hate speech. South Africa dispels any illusion that members of “marginalized communities” can ever be held accountable when phrases like “racism is prejudice plus power” leap from progressive academia to become the law of the land.