As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Gareth van Onselen, the DA’s “executive director of special projects” (scary title, dude!), is morally outraged at the manner in which various editors and “media pundits” have responded to the DA’s decision to punish Sowetan journalist, Anna Majavu. The DA removed Majavu from its mailing list because the “DA had no further comment for this journalist” who had been writing damaging stories about the DA.
In a scathing piece, brimming with moral outrage, Van Onselen has taken on the various DA critics, arguing that moral outrage is almost always “unprincipled”.
In fact, he went further. Quoting British moral philosopher, AC Grayling, he suggested that “what moral outrage always aims at is censorship”. Van Onselen at first argues that the expression of moral outrage is always a bad thing as “its consequences are often absurdly undemocratic”. The dangers of moral outrage are severe because:
good and bad become absolutes. Murder and offence are elevated to the same moral standing. Ambiguity is banished and, with it, human nature. It is divisive, the kind of attitude that generates ‘us versus them’ thinking and, make no mistake, that kind of absolutism is the foundation on which authoritarianism is built.
Perhaps realising that he is implicating himself and the party he serves in censorship and authoritarianism (after all, the piece he has written and almost all the press releases of the DA lambasting the ANC for its various sins are filled with moral outrage), he then seems to contradict himself by stating that it is:
possible to be rightfully outraged at some moral injustice, but in order that it is distinguished from the unthinking self-righteous anger identified above, such an expression must be grounded in a set of values against which the subject of that outrage is gauged. Detached from those values, the ‘moral’ part of ‘moral outrage’ is lost and all that remains it outrage”. It is the latter of those two types of outrage to which Grayling refers and which, sadly, is prevalent in South Africa today.
In other words, when Van Onselen and the DA express moral outrage it is grounded in a set of values and therefore acceptable. When the DA expresses moral outrage it never results in “us versus them” thinking – except in the polluted and deranged minds of the DA critics who scandalously and in an utterly unprincipled manner express outrage at the DA’s alleged “us versus them” attitude contained in the “Stop Zuma” and “Fight Back” campaigns. But when critics of the DA express moral outrage this is never grounded in a set of principles (liberal or otherwise) and thus necessarily amounts to censorship (of the DA) and therefore inevitably deteriorates into authoritarianism.
To sum up: according to Van Onselen, DA = good; DA critics = evil; DA = not absolutist; DA critics = absolutist. Yeah, not logical, I know. I guess all that pent up moral outrage must have clouded old Gareth’s ability to construct a logical argument. (Gareth, why don’t you start a Blog – it’s a great place to express moral outrage!)
The argument – as far as I can follow it – is that the DA’s critics are unprincipled because the DA has a right not to communicate with a journalist. If the DA, according to its own criteria (which one assumes Van Onselen believes are objectively applied to the DA by the DA – an idea the DA would have been morally outraged by if expressed by the ANC), decides that a journalist is not fair to it, it may express its displeasure by cutting off contact with that journalist. The DA’s critics are arguing that the DA does not have this right. This is undemocratic. In fact, according to Van Onselen’s logic, this leads to an autocracy. Why is it, asks Van Onselen, that at no point has any one given any consideration to the possibility that Anna Majavu is, in fact, biased? Instead they all assume the DA is in the wrong.
(Incidentally, on this last point Van Onselen contradicts himself because later in his piece he points out that I did ask whether Majavu was biased by focusing on the story which preceded the move by the DA to remove Majavu from its mailing list. Van Onselen studiously avoids addressing the fact that at the time he had told a big whopper by claiming the press Ombudsman had found in favour of the DA in that case when – on the salient points – it had found in favour of Majavu. He also claims that this particular case had little to do with the move by the DA – despite the fact that Majavu just happened to have been removed from the DA list on the day the DA submitted a complaint to the Press Ombudsman about the particular story. Appartently this is a sheer co-incidence. I guess there will be a few people who believe this claim.)
Which brings me to the heart of the matter, namely whether criticism of the DA was based on any discernable principle or on a set of values. My claim is that the criticism was based on the values of freedom of expression and democratic pluralism in an open and democratic society and on the principle that powerful political players must not act in a way that will have a chilling effect on press freedom.
First, the claim that criticism of the DA amounts to censorship, is not sustainable. This is an old trick used by politicians to avoid criticism: conflating criticism with censorship. Most of us who criticised the DA stated that we thought the DA was wrong. I, for one, never argued that the DA had no constitutional or legal right to punish Majavu. The DA has every right to take a journalist off its mailing list or to refuse to comment when that journalist contacts it. The rest of us had every right to criticise the DA for its action. This is not censorship or authoritarianism: it’s actually called democracy. The DA should try it some time.
An example: Van Onselen has the right to make racist remarks as this is not unconstitutional or illegal in South Africa. I have the right to criticise him for making racist remarks. When I do, I am not censoring him, I am expressing my opinion which is at the heart of my right to exercise my freedom of expression. Even if I criticise the racist remark in a way that amounts to the expression of “moral outrage”, it is still my right to level such criticism. Van Onselen suggests that if he made a racist remark and I expressed moral outrage about it, I would be censoring him and would be encouraging authoritarianism.
Sjoe, and he also claims to be a liberal.
Apparently we are not allowed to express an opinion about the actions of the DA – unless that opinion is based on a principle which the DA agrees with. To me this attitude sounds rather authoritarian, but I guess Van Onselen will say that I am not allowed to express that opinion either because it amounts to unprincipled moral outrage (not based on a set of DA values) which by its very nature leads to authoritarianism.
Second, although Van Onselen cannot see this, an important principle is in fact at stake here. The DA is not a private entity – like a book club or a knitting society. The DA is a political party which, in terms of our Constitution, plays an important role in our democracy, representing opposition voters and taking part in the legislative process and in the oversight of the executive. It competes for our votes during elections and governs the Western Cape and the City of Cape Town.
Although not as powerful as the ANC, it exercises considerable power – both the hard power of office and the soft power associated with its influence on the political discourse and importance for the media in selling newspapers. Not reporting on the DA would be like not reporting on Julius Malema: the sales of a newspaper will suffer. The DA is therefore not a helpless victim of the media, but a powerful co-player in the media game.
As is the case with the ANC, it is important that the media scrutinise the actions of the DA and that a wide array of news outlets report on the actions of the DA from their various perspectives. Some media outlets will be broadly supportive of the DA and others will be more critical. If the DA believes the reporting has breached any law or code it can take the matter up with the Press Ombudsman or the courts. If it believes that the reporting is unfair, it has a right to say so. For example, when a finding is made that a DA councillor had shot at black children and then laughed about it and this is reported by the media, the DA can complain that the media had reported this fact at all. After all, it is not used to be at the receiving end of such negative – if true – reporting.
The relationship of the media to big political parties is complex. Political parties want to use the media to provide good publicity about themselves and to assist them with their propaganda so that voters would like their party and would vote for it. The various media outlets want to remain in the good books of the political party because it needs to cultivate contacts in that party who can feed it with juicy information about the internal workings of the party (which is a staple of news reporting) and gossip and criticism of the opposition parties. At the same time the media has a duty to expose wrongdoing by members of a political party and to report on matters which really place that party in a bad light.
Where a political party like the DA “protests” against the reporting of a particular journalist by removing her from a list and in effect, suggesting that it would refuse to engage with that journalist, this has a potentially chilling effect on journalists in general. Such a move is intended to send a message to journalists that the DA will take steps against a journalist who consistently give it bad publicity. The message is that journalists who deal with the DA better beware. “Don’t f*!ck with us because we will cut you off!”
If a journalist writes articles – even if these are essentially true – that embarrasses the DA, the party might take steps to break off contact with that journalist. This is a kind of punishment. In the bigger scheme, removing someone from the DA’s mailing list is a very slight punishment. (Some would argue it is a kind of reward.) But the principle is clear: “This time we only removed you from our mailing list, but next time we might make sure that no-one in the DA speaks to you and we might cut you off from sources inside the party which you may need to report properly about the party or about politics in general.” As US Supreme Court case law makes clear, the threat of taking action against the media can itself have a chilling effect on the exercise of freedom of expression by the media.
The action against a journalist therefore sets a precedent. It suggests that if the DA (as opposed to an independent body like the Press Ombudsman or the courts) has decided that you are biased against the DA, the DA reserves the right to punish you – even if at first the punishment will be mild. It is not unlawful or unconstitutional for the DA to do this. It is, however, unprincipled and wrong. It is essentially aimed at intimidating journalists in general: Cross us, says the DA, and who knows what actions we will take against you to ensure that your sources of information inside the DA dry up. We reserve a right to take action against journalists whom we do not like.
The liberal mantra about freedom of expression is that: “I do not agree with what you write but I will defend to death your right to write it”. The DA has adopted an illiberal mantra which states: “You can write what you like but if we do not like what you write about US we will not defend you. In fact, we will try and make your job more difficult and we will take steps to make sure that you do not write about us or write about us as little as possible. We will do this because we can.”
Put differently the DA is saying that it has a right to refuse to engage with a journalist. They are correct, of course. No one can force the DA to engage with a journalist. But having a right and exercising the right is not the same thing as being right and acting in a principled and ethically correct manner. (As I said: One has a right to be a racist, but it is never right to be a racist.)
In my view, when political parties refuse to engage with journalists whom they do not like, they are acting in a way that threatens press freedom. No journalist wants to be cut out of the loop. If a party uses its considerable power over the media (as journalists depend on political parties for information and comment) to cut pesky journalists out of the loop, chances are that other journalists will self-censor so that they will remain in the good books of the party. The casualty of all of this is, of course, freedom of expression – the very freedom of expression that the DA claims to revere.
In my book that is hypocritical. Gareth, on the other hand, will probably claim that I am expressing unprincipled moral outrage and that I am therefore censoring the DA and acting like an authoritarian. You decide who is right.BACK TO TOP