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.
When somebody expresses unpopular, shockingly bigoted or other incendiary views on social media or elsewhere and the inevitable backlash follows, there are always people who caution that the resultant outcry threatens the freedom of expression of the wrongdoer. The same thing happened after Helen Zille tweeted about her admiration for aspects of colonialism. The problem is that this argument is based on a rather crude and uninformed view of the nature of free speech in a democracy.
I was not going to write about Helen Zille’s tweets in which she argued that colonialism was not only negative because it brought South Africa health care, piped water, roads and an independent judiciary. (Zille might not have been aware that it was only after the end of colonialism and with the advent of democracy that a fully independent judiciary was established in South Africa.)
It is not only because others had already written incisively and thoughtfully about the matter that I was not sure it had any value to add my two cents worth. Nor that the attitude reflected in the tweets are so lacking in basic humanity or any recognition of the devastating consequences of colonialism, that I was worried I would just restate the bleeding obvious. It is also that the tweets are clearly irrational, literally making no sense to me, as they are premised on the untenable (racist) assumption that colonised countries would not have developed without being colonised and exploited.
But then I read in Die Son tabloid (tagline: “Die Son Sien Alles” – “The Sun Sees Everything”) that “traditional liberals” in the Democratic Alliance (DA) were warning that harsh action by the party against Zille would signal that freedom of thought was now taboo in the DA. And this morning I was sent an opinion piece written by Ferial Haffajee (“editor-at-large” of Huffington Post) in which she made a similar argument, arguing that Zille should not be fired.
Haffajee’s piece first acknowledges that Zille’s tweets were offensive and “stupid” and in violation of DA party policy, but continues to argue that Zille should not be fired because of the tweets. Just like the “traditional liberals” quoted in Die Son she seems to equate harsh action against Zille with an attack on freedom of thought and opinion, stating:
In this week, I’ve noticed an instinct to censor speech, opinion and expression in our land that, as a journalist, I find deeply troubling. Our Constitution has set clear parameters for when free speech can be curtailed. These are on hate speech […], incitement to war and violence. The limitation clause states: ‘The right in subsection (1) (to free expression) does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm’.
Zille’s tweets did not amount to hate speech, argued Haffajee, and in any event, a decision about what amounts to hate speech “belongs in the courts and not on Twitter or in other public lynch spots where the instinct to censor is sometimes overwhelming”. She then continues:
In a new generation of leaders in politics, the media and in government, I see an inability or unwillingness to debate into the ground ideas with which you differ. It is as if the idea or the thought itself must die. All that will do is have an increasingly silencing effect and take the huge discussions about the past and the future that we have into the confines of our different echo chambers when what our society needs is the ambient ventilation of those sentiments.
There is a lot going on in these paragraphs, but I am not sure much of it gestures towards a coherent, thoughtful or informed argument. I only have space to address some of the questions I have about the argument presented by Haffajee.
First things first. Haffajee is mistaken that the Constitution regulates (or “limits”) certain forms of speech, including hate speech. It does no such thing. What it does is to say that certain forms of speech are not protected by the Constitution, which means any restriction imposed on such speech would not infringe on freedom of expression at all as it would not be considered “expression” for the purposes of free speech.
Hate speech is regulated (or “limited” in Haffajee’s words) by section 10 (read with section 12) of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). PEPUDA imposes a far more drastic limitation on speech than the section quoted by Haffajee. It includes speech that could reasonably be construed as having the intention to be hurtful to a group based on their race, sex, gender, sexual orientation, religion and the like.
Second, it is unclear why harsh criticism of Zille on Twitter or her firing by the DA would amount to censorship. Neither the criticism (nor any move to fire her) would prohibit her from continuing to express her views forcefully on all the platforms that her social status and political position give her access to. (Even if she is fired she will draw a handsome pension, so she is not economically dependent on her job.)
No law limits her ability to speak. Unless one believes that one has a right to say whatever one wishes without having to face any consequences for what one says (clearly an untenable proposition), it is not clear why one would contend that free expression is implicated here. Zille remains free to say and write what she wants – as long as she remains within the limits of the law.
No one has an absolute right to say exactly what they wish without facing criticism or adverse consequences as a result of that speech. Even at a University where academics enjoy a considerable amount of freedom to say what we want (which is very different from a political party with its party discipline and rigid rules), I cannot imagine there will not be consequences if I started telling my students that the Holocaust was an excellent solution for a serious problem which only dear Adolf knew how to address properly.
In fact, despite the harsh criticism and despite the threat of being fired by the DA, Zille has continued to dig herself deeper and deeper into her own political grave by “explaining” and “justifying” her tweets. The criticism and the threat of firing has had no effect on her ability and willingness to speak (and speak, and speak, and speak). In fact, it has elicited a torrent of words from her mouth and pen.
Third, (some may find this argument troublesome – until you pile on the examples to illustrate that they too hold the same view), I believe some ideas or thoughts (which do not amount to hate speech as defined by PEPUDA) are in fact so loathsome, harmful or dangerous that there is nothing wrong with us attempting to obliterate the specific idea or thought by harshly and persistently criticising, mocking and ridiculing it. (The real argument is almost always about which ideas are this loathsome and thus unworthy of protection – we tend to disagree about this, as the defenders of Zille’s loathsome tweets nicely demonstrate.)
If I were to promote the idea that true inner peace only comes by having regular sex with toddlers, I cannot imagine that there will be many people who would bemoan the silencing effect on my freedom of speech caused by Twitter outrage or by me being fired from UCT.
But, maybe this example is too easy as it involves advocacy to harm children. Let us use an example – which although very different – might be viewed by many as of the same scale as the statement made by Zille. Imagine I enthusiastically cheered on the attack on the World Trade Centre in New York, arguing either that it was an inside job done by the CIA, or arguing that all Republican, Trump-voting, Americans deserve to die in any case because they are all scum who must be exterminated.
Once again, many of the very same people who argue that taking harsh action against Helen Zille will extinguish freedom of thought or expression, will support harsh action against me for promoting such ideas. The reason is simple: they will believe that this is not something that a reasonable person with any decency could possibly say and would find any demand that we discuss the merits of my argument insulting and degrading; a demand to legitimise the argument which could not possibly have any legitimacy in a world where the dignity of people are respected.
We are all sometimes confronted by statements or opinions that we find so outrageous, so indecent, so devoid of any merit and so humiliating, that we see no use in engaging in an argument about them.
The problem here is that by invoking freedom of expression in the Zille saga one is deliberately or inadvertently attempting to stop or mute the argument about Zille’s moral turpitude and about the appropriate consequences that she should face for this moral turpitude. Freedom of expression is thus invoked against itself; it is invoked to try and avoid or soften the very robust debate that the person invoking freedom of expression is purporting to defend and champion and to protect the person who engaged in vile speech from the consequences of his or her statement.
Lastly, I find the suggestion that harsh criticism of certain forms of speech on social media (and demands that the person who uttered the speech face consequences) amounts to censorship (perhaps by a lynch mob), rather odd and conceptually incoherent.
If you buy the traditional liberal argument that we must allow free speech to flourish in the “free marketplace of ideas”, which will eventually allow the best ideas or the “truth” to prevail (which Haffajee seems to do), it makes no sense to complain that some forms of free speech amount to censorship because the speech is allegedly presented viciously, simplistically, in an ignorant manner, with a lack of nuance or on a platform where many people who tend to agree with one another express their views in a vitriolic manner (what Haffajee calls “public lynch spots”).
The “free marketplace of ideas” rationale for free speech is criticised on at least two grounds. First, there is no guarantee that the best arguments (or even the “truth” – whatever that may be) will emerge from robust discussion of an issue by all concerned. Bad or harmful ideas are just as likely to emerge triumphant than good and wise ideas. Second, the “free marketplace of ideas” must be a fiction because not everyone in society has equal access to platforms where discussion takes place, so no such free marketplace exists.
The latter remains true today, but to the extent that more people have access to social media, more people are now able to take part in public discussions and arguments. More people are also heard and sometimes even listened to by governing elites. Social media provides a platform for a diversity of voices which previously were seldom raised and seldom noticed by elites.
If this is correct, the “public lynch spots” (social media) Haffajee complains of actually enhance freedom of expression, not diminish it. I wonder if her complaint is not that people with whom she disagrees, who express views in ways she finds impolite or threatening of her peace of mind or her opinions, are now – because of access to social media platforms – also able to take part in the robust, sometimes vicious, exchanges of ideas or tireless punting of their own obsessions – just like journalists have long been able to do.
Perhaps the complaint is not that there is censorship, but instead that there is too much speech; too much speech of the “wrong” kind, expressed in the “wrong” way by the “wrong” kind of people, pursuing the “wrong” political objectives?
I am not saying that some people (of all political persuasions) on social media cannot be merciless, vindictive, callous, dishonest and cruel. Many often are. (One has to be a saint not to lose one’s marbles on social media from time to time and not to lash out at some or other person perceived as nasty, bigoted or ignorant.) But some people have always been guilty of this – long before social media came along.
The difference is that social, economic, political and/or racial elites had pretty much a monopoly on being merciless, vindictive, callous, dishonest and cruel, as they were the ones who were provided with a platform and whose voices were heard and listened to. Now that the space in which contestation occurs is (slightly) more democratic, some fragile elites cry censorship.
It would be worthy to campaign for more informed, nuanced, critical, honest and generous engagement on social media. But, in my view, whether the engagements are kind or vicious, informed or ignorant, cruel or thoughtful, is neither here nor there from a free speech perspective.BACK TO TOP