Quote of the week

Subsequent to the above an incident occurred at HLOPHE JP’s residence in Pinelands – not where SALIE-HLOPHE J resides – involving the third party. The incident occurred during recess. SALIE-HLOPHE J was at his residence. She called me, disclosed certain information – which I elect not to set out herein – and also told me that there was an electricity outage at her house. She asked me to go to her house to attend to her daughters for safety reasons. I went to her home. She later arrived at her house. HLOPHE JP’s bodyguard drove her vehicle and another driver followed in a second vehicle. SALIE-HLOPHE J was clearly distressed and in pain. She asked me to take her to hospital and explained to me in graphic detail what had transpired at HLOPHE JP’s house. Her hand, it appears, was injured during an altercation.

Goliath DJP
Complaint against Judge President John Hlophe
28 November 2017

“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

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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.

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