⒈ Summary Of Gay Williams The Wrongfulness

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Summary Of Gay Williams The Wrongfulness

Transaction Publishers. New York: Oxford Summary Of Gay Williams The Wrongfulness Press. The ugly laws : disability in public [Online-Ausg. Schweik 1 May The Daily News. Therefore, Summary Of Gay Williams The Wrongfulness this count, Summary Of Gay Williams The Wrongfulness 10 limits section 16 of the Constitution, and a Summary Of Gay Williams The Wrongfulness analysis Eponyms In Medical Terminology required. University of Southern California.

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In essence, this is the corollary of our substantive equality demands that flow from the Constitution. The purpose of hate speech regulation in South Africa is inextricably linked to our constitutional object of healing the injustices of the past and establishing a more egalitarian society. This is done by curtailing speech which is part and parcel of the system of subordination of vulnerable and marginalised groups in South Africa. Regulating hate speech: international law perspectives.

Section of the Constitution mandates us to, when interpreting legislation, prefer reasonable interpretation that is consistent with international law over any alternative interpretation that is inconsistent with it. These include: i the prevailing social and political context; ii the status of the speaker in relation to the audience; iii the existence of a clear intent to incite; iv the content and form of the speech; v the extent and reach of the speech; and vi the real likelihood and imminence of harm.

It failed to acknowledge that in Canada and Germany, hate speech is criminalised, [] whereas here hate speech is regulated through civil remedies in the Equality Act. Civil sanctions and remedies should also be considered, including pecuniary and non-pecuniary damages, along with the right of correction and the right of reply. The only caveat is that we must be ever mindful that in Canada, hate speech is criminalised. An analysis of comparative foreign law must take into account that:. Depending on the country and its history and culture, the standard vacillates between more or less speech-protection. This is an important insight when considering how each jurisdiction aims to reconcile the tension between freedom of expression and hate speech.

We are able, however, to discern general features in broad strokes that are common across various jurisdictions. Various jurisdictions provided useful submissions on this score and in summary, free speech is generally constrained by prohibitions on hate speech and various forms of hurtful and harmful speech. The remedial character of section 10 1. In my view, it is plainly an objective standard that requires a reasonable person test.

Because the objective test of the reasonable reader is to be applied, it is the effect of the text, not the intention of the author, that is assessed. It is consistent with our jurisprudence concerning similar issues. An objective normative reasonable person test was accepted by this Court, albeit in a different context, in Mamabolo. In Le Roux , this Court held that, in order to determine whether expression was defamatory—. In accordance with this objective test the criterion is what meaning the reasonable reader of ordinary intelligence would attribute to the statement.

In applying this test it is accepted that the reasonable reader would understand the statement in its context and that [they] would have had regard not only to what is expressly stated but also to what is implied. In Whatcott, the Supreme Court of Canada underscored the effects of hate speech, not the intent, and notes that systemic discrimination tends to be more widespread than intentional discrimination. However, when plugging in an abstract reasonable person test in order to construe the meaning of alleged hate speech, courts ought to be mindful of our diverse and dynamic society and not inadvertently reify prejudices.

I therefore endorse those decisions of the Equality Court that have reached a finding that the test is objective. This is therefore a neutral factor. On a disjunctive reading, section 10 would prohibit mere private communication which could reasonably be construed to demonstrate a clear intention to be hurtful — this is an overly extensive and impermissible infringement of freedom of expression.

It is well established that the prohibition of hate speech is not aimed at merely offensive speech, but that offensive speech is protected by freedom of expression. This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimisation and rejection that risks causing discrimination or other harmful effects. That reading is thus called for. This approach also advances a contextual and purposive interpretation. Furthermore, and critically, a disjunctive reading would render the impugned section unconstitutional, since merely hurtful speech, with no element of hatred or incitement, could for example constitute prohibited hate speech.

This would be an impermissible infringement of freedom of expression as it would bar speech that disturbs, offends and shocks. The parties and the amici proffered an array of interpretations. According to international treaties, this form of incitement is not restricted to physical violence, as it also refers to the incitement of discrimination and hatred. Our Constitution requires that we not only be reactive to incidences or systems of unfair discrimination, but also pre-emptive. We need to act after the damage has occurred where so required, but, importantly, we are also required to act to ensure that it does not occur.

That, in turn, demonstrates the potential harm contained in the article. That there is no requirement for a causal connection is clear from the Equality Act itself. This reveals that, even on an overall conjunctive reading, it may be sufficient to demonstrate harm, absent incitement of harm. Thus, the section postulates prohibiting expression that either harms or evokes a reasonable apprehension of harm to the target group. And it is consonant with international law and comparative foreign law. Attaching a literal interpretation to these words would not achieve the objects of the provision.

To communicate assumes the conveyance of ideas. Words in and of themselves are otherwise meaningless. A purposive interpretation of this sort is undoubtedly required. I hasten to acknowledge that their jurisprudence must be understood in view of the fact that section of the Canadian Criminal Code extends to private conversations. It is nonetheless useful to consider it with that caveat in mind. The speech must expose the target group to hatred and be likely to perpetuate negative stereotyping and unfair discrimination. It is improbable that most private conversations will have this effect.

Therefore, true hate speech presupposes a public dissemination of some sort, [] or at the very least it cannot be conveyed in mere private communications. And this restrictive interpretation is justified on the basis of the eusdem generis canon of construction of the same kind, class, or nature : when general words follow specific words in a statute in which several items have been enumerated, the general words are construed to embrace only objects similar in nature to the objects enumerated by the preceding specific words of the statute. Just how can you be sexually attracted to another man? One of these days you are going to want to marry an animal.

This interpretation makes sense in the context of the wide — and not individualised — dissemination that the section requires. Indeed, the words are a necessary component of section 10, if it is to cover what is required by section 16 2 of the Constitution. The proviso in section However, the High Court reasoned that because it is inextricably linked to section 10 through the proviso, a case may be made that it bears consideration. In view of the conclusion that I reach below in respect of section 10 1 a , however, I do not deem it necessary to decide this point.

Since the constitutional challenge is based on two overarching attacks, I will consider the issues in terms of whether the impugned provision violates the Bill of Rights, and whether it is vague. Bill of Rights challenges: limitation of section He founds this claim on a number of words and phrases, which he submits make section 10 1 impermissibly overbroad. In considering this Bill of Rights challenge, there must first be a determination of whether they go beyond what is envisioned in section 16 of the Constitution, thereby limiting the right.

The prohibited grounds. Sexual orientation. This means that the prohibited ground of sexual orientation is enough to found a case of hate speech based on section 10 1 of the Equality Act, but it goes beyond the limitations of free speech that are constitutionally allowed in section 16 2. Therefore, it is clear that the inclusion of this ground is a limitation of section 16 1 beyond what is permitted in section 16 2. This requires a justification analysis on this ground. In the High Court this issue was not considered in any detail. That Court noted the broadness of the prohibited grounds, but undertook no further analysis.

This presents a potential conundrum, inasmuch as no evidence was led concerning the other grounds, nor has there been any reasoned decision in respect of them in either the High Court or the Supreme Court of Appeal. There are well-grounded fears that their inclusion may impermissibly encroach upon the right to freedom of expression. Some of the amici make insightful submissions in this regard.

Adding analogous grounds. It must be emphasised that various thresholds must be cleared in order for grounds to constitute analogous grounds for the purposes of section 1 of the Equality Act. These thresholds resonate with the very purpose of combating hate speech through legislative regulation. As was articulated in Whatcott :. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eye of the majority, reducing their social standing and acceptance within society. Provisions prohibiting hate speech can be contrasted with our law around unfair discrimination. This is based on past experiences, historic suffering or systemic disadvantage.

As a result, in the unfair discrimination scenario, the onus shifts onto the respondent to show that discrimination on a listed ground is not unfair. In this regard, listed grounds differ from analogous grounds, where unfairness must be shown. It is necessary to reiterate the provisions of section 1 b :. What the specified grounds have in common is that they have been used or misused in the past both in South Africa and elsewhere to categorise, marginalise and often oppress persons who have had, or who have been associated with, these attributes or characteristics. These grounds have the potential, to demean persons by denying them their inherent humanity and dignity.

There is often a complex relationship between these grounds. In some cases, they relate to immutable biological attributes or characteristics, in some to the associational life of humans, in some to the intellectual, expressive and religious dimensions of humanity and in some cases to a combination of one or more of these features. The temptation to force them into neatly self-contained categories should be resisted. The extended prohibited grounds are narrowly crafted to fulfil the purpose of the hate speech prohibition.

Accordingly, I conclude that the limitation is proportionate in an open and democratic society. The challenge based on a limitation of section 16 of the Constitution must therefore fail. Furthermore, the term is clearly broader than what is envisioned in section 16, which focuses on war, violence and hatred, and not merely speech that hurts. Therefore, on this count, section 10 limits section 16 of the Constitution, and a justification analysis is required. Therefore, that takes us directly to the justification analysis. The importance of the right to freedom of expression on the one hand and the importance of the purpose of the limitation of that right, namely to protect the equally important rights to equality and dignity by way of prohibiting hate speech, have been expounded.

So too, the nature and extent of the limitation and the relation between the limitation and its purpose. If speech that is merely hurtful is considered hate speech, this sets the bar rather low. It is an extensive limitation. The prohibition of hurtful speech would certainly serve to protect the rights to dignity and equality of hate speech victims. However, hurtful speech does not necessarily seek to spread hatred against a person because of their membership of a particular group, and it is that which is being targeted by section 10 of the Equality Act. Therefore, the relationship between the limitation and its purpose is not proportionate.

However, as this Court held in Economic Freedom Fighters :. The standard is reasonableness. And in any event, in theory less restrictive means can almost invariably be imagined without necessarily precluding a finding of justification under the section. It is but one of the enumerated considerations which have to be weighed in conjunction with one another, and with any others that may be relevant. The justification analysis must begin in the same way: the importance of the right to freedom of expression — as explored above — must be considered, and the limitation of this right in the case of hate speech remains central to the protection of the rights to dignity and equality.

However, the prohibition of hate speech based on sexual orientation is entirely proportional to its purpose. Less restrictive means of achieving this purpose have not been suggested, and are in fact inconceivable. If it is, it would be contrary to the rule of law, and would therefore violate section 1 c of the Constitution. It requires that laws must be written in a clear and accessible manner. What is required is reasonable certainty and not perfect lucidity. The doctrine of vagueness does not require absolute certainty of laws. The law must indicate with reasonable certainty to those who are bound by it what is required of them so that they may regulate their conduct accordingly.

Impermissibly vague provisions violate the rule of law, a founding value of our Constitution. If more than one meaning is reasonably plausible, the one resulting in constitutional compliance must be chosen. But if the interpretation that emerges from the wording and context results in constitutional invalidity a court has to make a finding of unconstitutionality. The fact that a constitutionally compliant interpretation cannot reasonably be given to it, does not necessarily lead to vagueness. A finding of vagueness based on a perceived inability to interpret the provision would in any event also result in constitutional invalidity. And an interpretation that renders the provision meaningless would lead nowhere.

It would be futile. It erodes the ability of ordinary citizens to exercise their agency and autonomy when they express themselves. It undermines the norm-changing impact of the law; and undermines the deterrent goal of hate speech prohibitions. What bears consideration next are the specific challenges presented by the impugned provision in respect of vagueness. Does the impugned provision suffer from vagueness? However, they all present problems. In particular, it is not clear whether there is any difference in their meaning or whether one is a component of the other. Put differently, words cannot intrinsically cause physical harm. Substantively they appear to mean the same thing. Intricate semantic contortions are required to reach separate meanings in them, and even then, the attainment of separate meanings seems to be a bridge too far.

It falls foul of the caution expressed in Islamic Unity :. Whilst this process might assist in determining whether particular expression can be regarded as hate speech, I fail to see how its meaning can coincide with that of the impugned clause on any reasonable interpretation, without being unduly strained. On a conjunctive reading the threshold will naturally be elevated by the requirements in the other paragraphs, but the paragraphs will then suffer from superfluity. The section cannot, as it were, be expected to pull itself up by its bootstraps. There is no need to have both. However, due to the conjunctive reading, [] a claimant would have to show that in addition to being emotionally harmed, she was also hurt.

It may be so that harmful communication is always hurtful. For that reason, its inclusion in section 10 1 results in the section suffering from vagueness and it is thus unconstitutional. It thus does not pass constitutional muster. However, this does not render the entire provision unconstitutional. It is possible to excise the constitutionally offensive part from the rest of the provision. There is a further obligation to grant effective remedies. The possible severance of this invalid part of the provision bears consideration.

This article incorporates public domain material from this U. S government document. State, 9 Or. Board of Education of District of Columbia , F. New Eng. Archived from the original on 24 July Duggar, published March 12, ". Archived from the original on 14 May July Court of Appeals for the Ninth Circuit Sieling, Sr. Frank A. American Psychiatric Association ed. Retrieved April 23, Psychiatric News. May 18, August 15, Retrieved August 16, Friedman February 17, Sociology in a Changing World 9th ed. Cengage learning. Kneeland and Carol A. Schweik 1 May Retrieved May 3, July 27, Retrieved August 3, Encyclopedia of Childhood and Adolescence. Temple University Press. Plainview Herald.

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SSRN December Psychol Rep. Am J Law Med. New Hampshire. Retrieved June 12, Mental and Physical Disability Law Reporter. Bio-Science Laboratories, Cal. Supreme Court of Alaska. This appeal raises the question of whether the superior court has the authority to order the sterilization of a mental incompetent upon petition by the incompetent's legal guardian.

We conclude that the superior court, as a court of general jurisdiction, does have the authority to entertain and act upon such a petition. The advocates of the proposed operation bear the heavy burden of proving by clear and convincing evidence that sterilization is in the best interests of the incompetent. City Limits. A sterilization is medically essential if clearly necessary, in the opinion of experts, to preserve the life or physical or mental health of the mentally retarded person.

The term "medically essential" is reasonably precise and provides protection from abuses prevalent in this area in the past. The term also avoids confusion as to whose interests are to be considered. It is not the welfare of society, or the convenience or peace of mind of parents or guardians that these standards are intended to protect. In some circumstances, the possibility of pregnancy, if supported by sufficient evidence that it would threaten the physical or mental health of the person and that no less intrusive means of birth control would prove safe and effective, could justify granting a petition for sterilization as medically essential.

Lynchburg Training School and Hospital , F. American Civil Liberties Union. Retrieved January 13, The Project filed Poe v. Lynchburg Training School on behalf of 8, women involuntarily sterilized by a state mental institution in Virginia. In a settlement reached in , the state agreed to inform the women about what had been done to them and to help them get counseling and medical treatment. Office of the Circuit Executive.

We find more persuasive the view expressed in most recent decisions that a court of general jurisdiction which has powers of equity over incompetents and their guardians, such as the Probate Court, has the power to hear and adjudicate petitions such as the one in the case at bar. In utilizing the doctrine of substituted judgment, this court seeks to maintain the integrity of the incompetent person by giving the individual a forum in which his or her rights may be exercised.

The court dons "the mental mantle of the incompetent" and substitutes itself as nearly as possible for the individual in the decision-making process. Sortini , 31 Cal. Jannol Tort Stories — Student Papers from — Archived from the original doc on February 21, Retrieved March 28, Montgomery General Hosp. Court of Appeals of Maryland. Retrieved June 15, We conclude, therefore, that as to incompetent minors circuit courts, acting in pursuance of their inherent parens patriae authority, have subject matter jurisdiction to consider a petition for an order authorizing a guardian to consent to the sterilization of an incompetent minor.

November 5, The Associated Press. Washington Post. This, of course, would result in hemorrhaging and infection, and possibly death. Legal Issues in School Health Services. Hall , Ga. Code Ann. Retrieved January 9, Retrenchment in the American welfare state : the Reagan and Clinton administrations in comparative perspective. Berlin: Lit Verlag. February 12, PMID — via jamanetwork. Policy Studies Journal 15 4 , — Freeman , F. Halderman , U. The officers in the unit have carried Tasers since shortly after the death of Eleanor Bumpurs, a disturbed, obese woman who was shotgunned to death by an officer in her apartment after she escaped a restraint and brandished a knife.

Becoming Justice Blackmun. Page An incompetent developmentally disabled woman has no less interest in a satisfying or fulfilling life free from the burdens of an unwanted pregnancy than does her competent sister. Our conclusion that section , subdivision d , is constitutionally overbroad, and may not be invoked to deny the probate court authority to grant a conservator the power to consent to sterilization in those cases in which no less intrusive method of contraception is available to a severely retarded conservatee, does not open the way to unrestricted approval of applications for additional powers. Wainwright , U. United States Congress. October 16, Arline, U. Judgment Law". State professor put disability on college curriculum".

The San Francisco Chronicle. General Assembly of Virginia. Retrieved February 6, Hate Crime Statistics, Archived from the original on January 14, National Gay and Lesbian Task Force. State , N. App "The trial court incorrectly required clear and convincing evidence that a life threatening situation existed. The proper standard of proof requires clear and convincing evidence that the judicially appointed guardian brought the petition for sterilization in good faith and the sterilization is in the best interest of the incompetent adult.

Moe, N. Implicit in our holding in In re A. Zebley , U. Equal Employment Opportunity Commission, U. Disabled World. New York: The Guilford Press. Retrieved January 10, Retrieved 23 December McAndrews Law Firm. The record is replete with the adverse impact of a pregnancy on C. Therefore, the trial judge was correct that C. Psychiatry and the Law. Archived from the original PDF on Retrieved 10 December Associated Press. February 11, The Columbia Tribune. Michigan Supreme Court. Accordingly, we hold that the probate court has jurisdiction to hear an application by a guardian for authorization to consent to an extraordinary procedure under M.

Haworth Press. Retrieved February 17, Commonwealth of Virginia". Retrieved 10 December Associated Press. February 11, The Columbia Tribune. Michigan Supreme Court. Accordingly, we hold that the probate court has jurisdiction to hear an application by a guardian for authorization to consent to an extraordinary procedure under M. Haworth Press. Retrieved February 17, Commonwealth of Virginia". Retrieved 31 May June 4, Estelle, page 2". Williams , U. Supreme Court Media Oyez, article title Atkins v. Tech Law Journal. Retrieved 25 May April 29, Federal Register published May 3, The Campaign for Mental Health Reform. Archived from the original on July 31, Michael T. Inclusion Daily Express. Retrieved 22 February Retrieved 9 March October 30, Retrieved September 12, Paul Revere Life Ins.

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State of Idaho. Retrieved January 5, Revised Code of Washington. State of Washington. Washington State Superintendent of Public Instruction. Illinois Appellate Court. First, the party seeking sterilization may demonstrate by clear and convincing evidence that the ward, if competent, would have wished to be sterilized and would not have objected to the chosen method of sterilization. If the party seeking sterilization can meet this burden after all procedures have been followed and all relevant evidence has been taken into account, then the court may issue an order authorizing sterilization of the ward. The party opposing sterilization can attempt to produce clear and convincing evidence that if the ward were competent, she either 1 would not have wished to be sterilized if she could have foreseen her current situation, or 2 would not have consented to the chosen method of sterilization.

Otherwise, the petition must be denied. October 27, Retrieved — via National Archives. Archived from the original PDF on February 15, Washington Times. Chicago Sun-Times. Mother Jones. September 28, University of Iowa. State Bar of Wisconsin. NBC News. Stewart " ". The New Civil Rights Movement. The Rock River Times. Ability Chicago. April 4, Retrieved May 29th, The Legal Center. Fox News. June 28, The National Law Review.

Retrieved 23 September Retrieved 31 January Department of Justice. Retrieved April 25, No party requested this measure, none of the attendant procedural requirements has been met, and the judge appears to have simply produced the requirement out of thin air. We vacate that portion of the order requiring Moe to undergo an abortion. We remand the case for a proper evidentiary inquiry and decision on the issue of substituted judgment. Retrieved January 22, University of Southern California. Retrieved 21 January May 28, Maria B. Retrieved January 14, January 18, Archived from the original on February 16, Retrieved January 20, January 17, January 26, Retrieved January 28, February 21, Retrieved March 5, March 20, Retrieved March 20, April 23, California Civil Code Section Retrieved May 1, Retrieved 29 April April 25, November 4, Retrieved November 9, Florida docket number ".

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