Quote of the week
Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
“Rejecting the free marketplace of ideas: a value-based conception of the limits of free speech” vol. 33 (2017) South African Journal on Human Rights 359-379
The robust protection of freedom of expression is not well-served by the assumption that the regulation of free expression may never take into account the content of the expression being regulated. The assumption fails to acknowledge that some forms of expression are far more valuable and in need of protection in a democracy than others. It also fails to acknowledge that some forms of expression threaten democracy and the dignity of those who live in it. The idea of a content neutral approach to the protection of freedom of expression should, therefore, be rejected as it is not useful for the effective protection of freedom of expression in a democracy that respects human dignity and diversity. To the extent that free expression is believed to operate in a free marketplace of ideas, it furthermore fails to identify (and may even mask) some of the most pressing threats posed to a thriving free expression culture. Instead, turning to the South African Bill of Rights – with its general limitation clause – will provide for a far more nuanced and effective approach to the possible limitation of free expression, provided that certain important safeguards are put in place. The article therefore argues that we should reject the metaphor of the free marketplace of ideas and should, instead, turn to the idea that freedom of expression’s protection depends to some extent at least on whether it advances, protects or reflects the values that form part of the ‘objective normative value system’ embodied in the South African Constitution. The article concludes by arguing that the problems raised by the metaphor of free marketplace of ideas can at least partly be addressed by reimagining freedom of expression as a right that places not only negative obligations on the state to refrain from interfering with the right of individuals to receive and impart information and ideas, but also as a right that places positive obligations on the state to take steps progressively to extend the ability of individuals to receive and impart ideas and to access a more diverse array of information and ideas.
