Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
22 July 2020

Invoking free expression to avoid debate: the case of the former reality TV personality and David Icke

Earlier this week a former reality TV personality, who now hosts a programme on ENCA, created a stir when he announced that David Icke would appear on his show. Icke is an anti-Semite and conspiracy theorist who claims to believe, among other things, that an inter-dimensional race of reptilian beings called the Archons have hijacked the earth and are stopping humanity from realising its true potential, and that the British royal family are shape-shifting lizards. As is so often the case, the controversy quickly morphed into a wrong-headed argument about freedom of expression, diverting attention from the ethical accountability of the host.

In his 1994 book There Is No Such Thing as Free Speech and It’s a Good Thing, Too, Stanley Fish argued that neo-conservatives often use “sacred abstractions” such as “freedom of expression” to present their partisan political commitments “as a universal imperative, as a call to moral arms so perspicuous that only the irrational or the godless (two categories often conflated) could refuse it”.

In this view, the “sacred abstraction” of freedom of expression is used to shield individuals from the consequences of their own (ideologically driven) beliefs and actions. As if by magic, politics is made to disappear, replaced by the chanting of the high-minded quasi-religious slogans associated with the unconditional support for the idea of freedom of expression. The point is not that censorship is acceptable or that freedom of expression is not valuable, but that the latter is often used to obscure political sympathies and to avoid meaningful discussion about the very issue in whose name the right is being invoked.

Freedom of expression is not the only sacred abstraction deployed in this way. Think of the argument that the removal of the statues of slave owners, colonisers and a variety of assorted racist, will erase history, thus allowing defenders of the history and culture (of which these statues remain powerful symbols) not to have to admit to, or defend, the fact that they are defending, or is sympathetic to, this history and culture. Similarly, Afriforum can pretend that their defence of the apartheid flag is not a defence of apartheid or a nostalgic yearning for a return to the past, but rather a defence of the sacred abstraction of freedom of expression.

The use of “sacred abstractions” to shield individuals from criticism and from the consequences of their actions is, of course, not limited to neo-conservatives. But the unsophisticated deployment of a caricatured version of freedom of expression does seem to find particular favour with people on the right of the political spectrum. The “discussion” on Twitter (by which I mean shouting) sparked by the decision to host David Icke on an ENCA programme, illustrates this point nicely. It is impossible to address all the misconceptions (as I see it) relied on by the defenders of the former reality TV personality’s decision to invite Icke, so I will touch on only a few here.

When Giulietta Talevi, Money editor at the Financial Mail, was criticised for appearing on the same programme (but in a different segment) as David Icke, she responded as follows: “And, though I don’t agree with the man at all, I totally agree with a platform that airs all voices, however abhorrent. And @GarethCliff is doing his job by interrogating them/us.” While many people believe that they hold this view, it is my contention that none of them actually do.

This is really a self-evident point, which is why it is so strange that so many people still believe that they believe this. All that is required to substantiate my argument, is to identify a specific example of a person that you would never give a platform to. My example is the following: imagine you lived in Rwanda in early 1994 and you were asked whether you supported the appearance of Leon Mugesera, a politician who described Tutsis as “cockroaches” and called for their extermination, on a local television programme. If you answered yes, you are a monster. If you answered no, you cannot claim that you believe in platforming all voices.

But just to be safe, I provide another example. Would you support a decision by the former reality TV personality to interview Andre Slade about his belief – expressed in an Equality Court case – that the Bible classifies black people as animals? If you do, you believe debating whether some people are human is a meaningful activity, and that would make you a monster. If you do not, then you cannot claim to believe that all people should be given a platform.

We will, of course, all draw the line differently when deciding on who should not be given a platform, but we all have a line beyond which we will not be prepared to go. But admitting this will require you to justify why you draw the line where you draw it. And if you have to justify your decision, it will, in turn, reveal something about your world view, ethical principles, and ideology, which you might prefer to remain hidden, and which you may fear would be difficult to defend. (What is revealed is not your support for the person being given a platform, but what kinds of bigotry you are prepared to legitimise.) Better then for some rather to shout: “free speech”!

Giulietta Talevi also Tweeted in her own defence: “David Icke is clearly as mad as a balloon. And repugnant to boot. But you know what, it’s @GarethCliff’s show and he can have who the fuck he pleases on it.” This is the opposite view from the one expressed by critics of no-platforming, who argue that it infringes on freedom of expression if an institution or event (broadcaster, radio station, University, book festival, professional organisation) refuses to host a specific person or changes its mind and disinvites a person.  Curiously, some defenders of free expression support both positions simultaneously, which does not appear to be coherent.

Strictly speaking the claim made by Giulietta Talevim is not correct as the former reality TV personality is not free to have anyone he pleases on the show. First, he is constrained by the brief given to him by the broadcaster hosting the show. If he strays from this brief, he will be fired. Second, like any other broadcaster, ENCA has to adhere to its licencing conditions which constrains who could be invited. Third, the law of defamation and hate speech also constrains his choices. Fourth, the host of a current affairs programme is supposed to be constrained by the basic rules of journalism, editorial judgment and ethics. Applying these rules would preclude the platforming of  individuals merely for the purpose of reality television-like spectacle. (All these considerations are seemingly absent from the decision to invite Icke).

But potentially the most crucial constraint – which an appeal to freedom of expression attempts to obscure – is the constraint imposed by the (not really free) marketplace. If your choices as programme host leads to severe criticism and protest, the inability to attract credible interviewees, and the withdrawal of  advertising, your programme will be cancelled. The reality TV personality has probably calculated that there are enough viewers who are interested in spectacle and showboating – as Jerry Springer demonstrated so spectacularly, at the cost of at least one person’s life – to justify this kind of invitation. There may also be a calculation that the platforming of someone like Icke will boost ratings.

Of course, the most astute way to minimise the impact of this constraint and to avoid accountability for one’s journalistic choices, is to invoke freedom of expression and to pretend that the performance of freedom of expression (and not the content of the expression) is the only thing that matters.

This does not mean that freedom of expression concerns are necessarily absent from decisions on who to platform and who not. But the matter is slightly more complicated than the sloganeers imagine. Let me explain.

In some contexts, refusing to platform someone would raise serious freedom of expression concerns, while in other context it would not. If SABC news refused to platform someone because she is an opposition politician, or queer, or an atheist, or critical of the SABC, it would be a serious freedom of expression matter. This is because the SABC is the public broadcaster, has a statutory mandate to provide a diversity of views and inform and entertain the public, and is by far the most influential and widely consumed source of news in South Africa.

A decision by SABC news not to platform a person for non-journalistic reasons would arguably limit the right of everyone’s freedom of expression, as it would deprive millions of South Africans of their freedom to receive potentially meaningful information. But this does not give individuals the unqualified right to be platformed on the SABC news as the corporation also has a duty to exercise editorial discretion to meet its statutory obligations and the minimum journalistic standards. If it exercises this discretion badly, it would not normally implicate freedom of expression. In such a case people will rightly criticise the SABC news, but criticism should then rightly be focused on what really matters – the actual editorial decision.

For similar reasons, “private” companies like Facebook and Twitter present a special problem. Although these companies are private, their platforms fulfil a quasi-public function in the modern age and decisions by these companies to block individual users may, in some instances, limit the rights of those users and the rights of others who will be deprived of their right to receive information. (To illustrate, to suspending Donald Trump’s Twitter account will limit his freedom of expression – and that of his followers – in quite a fundamental manner.)

A claim that the suspension of an account by Facebook or Twitter will never raise freedom of expression concerns would therefore be difficult to sustain. But while the suspension of an account may in some circumstances limit the right to freedom of expression, this limitation may be justified by law or by other considerations.

The situation will be different when a University, a book festival, or your local pensioners current affairs club decides to no-platform a specific speaker. The impact of these decisions will be minimal – on the condition that the speaker has access to other widely accessible platforms – and it would therefore be rather difficult to argue that the refusal amounts to censorship. This does not mean that the decision of such an institution is not open to robust criticism. It just means that it should not be sufficient to cloak the criticism in the sacred abstractions of free speech; the criticism will actually have to engage with the question of why it is important that this particular speaker with these particular views should or should not be platformed by a specific institution.

So, the next time an individual defends the platforming of some or other bigot, conspiracy theorist or medical charlatan (to name but a few), be aware that the this individual may invoke freedom of expression to avoid having to talk about why the views of the bigot, conspiracy theorist or medical charlatan, are valuable or worth discussing or debating.

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