Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
15 April 2008

On free speech and the firing of David Bullard

A few months ago I got rather hot under the collar on this Blog about the firing of Rapport columnist, Deon Maas, for writing a column in which he wrote that Satanism was a religion like any other and that it was therefore constitutionally entitled to the same kind of protection as any other religion.

Why then do I feel no need to come to the defense of Sunday Times columnist David Bullard who was fired last week after writing a racist column in which he ridiculed black South Africans? After all, in my previous Blog post about Maas I wrote:

It is also sad and a bit frightening that the newspaper [Rapport] caved in so easily while piously claiming it supported the notion of freedom of speech…. Can freedom of the press be undermined so easily by citizen activism?

What would happen if ANC activists started a similar campaign against Mondli Makanya from the Sunday Times? Will they have the same clout to convince its owners to fire him for “commercial reasons”? Or will the proprietors of the Sunday Times have a bit more of a backbone than those at Rapport? Troubling thought indeed.

Some relatively thoughtful people have defended Bullard and have criticised the Sunday Times for firing the crusty old columnist, arguing that while his column was obnoxious or even racist, a big newspaper like the Sunday Times has a duty to publish a wide variety of opinions which do exist out there. After all, what Bullard wrote in his rather tedious piece is nothing that many whining whites do not say in private at dinner parties and around the braaivleis fire.

Should human rights lawyers therefore also defend Bullard on the basis that his freedom of speech has been infringed – regardless of whether we agree with his opinion or think it is entertaining or not?

I think not.

But how do I get myself out of the potential contradiction of having criticised Rapport while I support the Sunday Times? Am I just an sycophantic whitey fart trying to ingratiate myself with the black elite?

Well, that is for the readers of this Blog to decide, but I personally do think there is a fundamental difference between the two columnists and what they had to say and I do not think that there was anything wrong with firing Bullard.

This is because – like the Constitutional Court – I adhere to a contextual and not an absolutist notion of freedom of expression. I do not think the guarantee of freedom of expression requires us always to allow all voices in any kind of publication, merely for the sake of having a diversity of views available to us. We should look at the context and ask whether we as a society would be impoverished if a specific publication bans a specific point of view.

Freedom of expression is guaranteed, said the Constitutional Court, because it is required for us to make decisions about how we want to be ruled and as such it is a cornerstone of democracy. It is however also protected because without a free flow of information we will not be exposed to the wide spectrum of views that will allow us to decide for ourselves who we are and how we want to live, and thus our human dignity will potentially be infringed if unpopular or even bizarre views are suppressed.

It is true that David Bullard’s freedom of expression was curtailed because he was denied the platform given by the Sunday Times, and to that extent his views are being repressed. But his views are unfortunately not surprising, very thought provoking or bizarre. What he did in his column was merely to repeat and therefore to reinforce the prejudices and stereotypes of a certain kind of rich white South African.

Being deprived of his views in the Sunday Times will not affect our human dignity and will not deny us the opportunity to decide for ourselves who we are and how we want to live. If we are white and upper-middle class, we can easily accept any dinner party invitation to hear the same drivel spoken – although it will not be as fluently expressed. And most black South Africans are well acquainted with the reactionary views of people like Bullard, so they themselves will not really be any the poorer for not hearing him rant and rave.

Maas, on the other hand, told the readers of Rapport things they did not know or did not want to hear and was fired for that very reason.

Of course, Maas was also writing in support of the values of tolerance and diversity contained in the Constitution, while Bullard was taking a stance in which he often challenged the values on which our constitutional democracy is supposedly built.

I would be vehemently opposed to any move to ban speech like that uttered by Bullard. People should be free to say almost anything – even racists things – because if they are not allowed to speak their minds they will still think these thoughts and it would be more difficult to challenge and confront such thoughts and words.

But for the Sunday Times to fire a columnist that merely regurgitate the reactionary and well known prejudices of some of the newspaper’s readers, seem like a move that should be congratulated – not condemned.

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