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.
South Africa is not a country in which freedom of expression is much respected or understood. At the time when the controversy raged around Brett Murray’s painting, The Spear, many artists, commentators and defenders of Murray wrongly conflated the right to free expression with his (non-existent) right not to be criticised, while others wrongly claimed that the artist did not have the right to offend either them or the President. Now Prof Steven Friedman comes close to conflating criticism of the governing party’s intolerant reaction to a First National Bank (FNB) advertising campaign with censorship. If we want to understand freedom of expression we need to be able to differentiate between criticism and censorship. Unfortunately, Friedman does not seem capable of doing so.
Friedman rightly argues that if you attack a political party, it has a right to defend itself. But then he bizarrely states that those who accuse the ANC of bullying tactics towards FNB are, in effect, denying the ANC its right to free expression. In other words, a political party has a right to criticise its critics, but when critics respond to this criticism they are denying the political party the right to free speech. If I did not know any better I would have guessed that Friedman had smoked some of the good stuff before writing this muddled column.
There is a fundamental difference between disagreeing with others and silencing them. There is also a profound difference between censorship and arguing (rightly or wrongly) that another’s criticism reflects an intolerant attitude or a lack of respect for democratic discourse. By taking issue with how a political party is responding to criticism you are not silencing that political party: you are merely engaging in a frank debate about what you see as the deeply flawed values and assumptions underlying that party’s behaviour. You might be wrong in your analysis of the political party’s behaviour. But in a constitutional democracy you have a right to be wrong sometimes. And others have the right to point out why you are wrong. You are not denying a political party its right to enjoy freedom of expression merely because you accuse that party of behaving like a bully. To hold otherwise would be to prohibit anyone from challenging the powerful bullies in our society – all in the name of freedom of expression.
At the time of the heated contestation about The Spear I argued that while Brett Murray had every right to create the work of art, I thought the painting was both artistically bad and politically profoundly problematic. It borrowed — knowingly or not — from an archive of deeply offensive colonial depictions of naked black men to ridicule a current day black leader, turning The Spear into a work of colonial-inspired appropriation of black bodies.
By criticising the painting, I was not trying to censor Murray. Nor was I trying to limit his artistic freedom. He can paint what he likes and I would never support legislation that would limit this right. But we all have a right to express our opinion about The Spear and state why we like or dislike the painting and argue about the merits, if any, of our various opinions. And if you believe some of the criticism of The Spear was misplaced, self-serving or itself based on an undemocratic insistence that no one had a right to criticise or mock an elected politician, then you have the right to point that out too.
It would be different if I told Murray that he had no right to paint that picture and should be jailed for doing so, if I mobilised a group of people to try and force the artist or the gallery to take down the picture, or if I encouraged people to assault or kill the artist. When lively debate and critical engagement bleed into intimidation, hate speech and the abuse of power, we have reached the limits of freedom of expression.
In a democracy it is in this free space (in theory open to everyone) where artistic and political contestation is supposed to take place. This contestation will often be loud, messy and — it must be said — not entirely equal and fair. But it can only remain a contestation if people have a right to criticise others.
Because not all those taking part in the debate will have equal power, some voices will carry more weight than others, which can frustrate those who feel they are not heard and can lead to more violent forms of rhetoric or even violent protest action. Those who feel silenced will often try and shout louder (and in a more shrill tone) and, in extreme cases, will demand that the loudest voices be silenced.
The relative powers of those who speak depend on many factors, including the race, class and gender of the speaker and the actual political power enjoyed by the speaker. If you are poor and black and living in a rural village, your voice is probably not going to carry much weight in any national debate. However, if you are a leader of a large political party or a white middle class intellectual with quick access to the media (somebody like myself), you will probably not have a problem to be heard loud and clear.
It must be said that most South Africans – regardless of political affiliation — are not particularly tolerant of the views of others. They love it when you criticise those they oppose or hate, but launch ad hominem attacks and death threats against you if you criticise those they align themselves with. Sometimes, it feels to me, DA supporters are more intolerant of criticism than ANC supporters. But perhaps that is because many DA supporters speak from a position of relative power. When such intolerance (wrong as it is) stems from powerlessness, it is easy to understand. But often intolerance stems not from powerlessness but from arrogance, self-righteousness, power-hunger and anti-democratic tendencies.
Because many members of Afriforum do not like Julius Malema and because they feel guilty about the way in which they benefited (and continue to benefit) from racists exploitation and are fearful about the manner in which past injustices may be addressed, they demand the suppression of old struggle song — even when such songs are sung in contexts where they could not possibly encourage people to intimidate or attack any person or group. Because Blade Nzimande has not yet embraced the progressive freedoms protected in our Constitution (and perhaps because power has been more intoxicating to Nzimande than his fourth glass of wine) he demands the immediate destruction of a painting he finds obnoxious — even though that painting is not inciting violence or closing down the democratic space.
I agree with Steven Friedman that a political party (as opposed to the government of the day) has every right to angrily criticise an advert it disagrees with. I also agree that it was a spectacularly bad business decision of FNB to flight advertising material that had the potential to alienate the majority of its clients. In that sense, the bank did what all good capitalists would have done: they apologised for the “offensive” parts of the campaign to ensure that they do not alienate their customers.
However, Friedman is just dead wrong when he claims that criticism of the ANC’s response to the FNB advertising campaign denies the governing party its right to free speech. As far as I know, there was no court case trying to stop the ANC from criticising FNB. And as the ANC is the party of government, there was also no insistence that a law should be passed to prevent the ANC from trying to stop big companies like FNB from criticising it. Although it does not always act like it knows this, the ANC is also the governing party — with access to vast resources and control over the police and the criminal justice system — so there is no chance that the criticism of others will have a chilling effect on its right to free speech. Friedman’s claim that it would, suggest an incoherent conflation of criticism with censorship.
The fact of the matter is that the ANC did not merely criticise the FNB campaign. Some ANC and alliance leaders claimed that the FNB campaign was treasonous, that it represented an attack on the state and that it represented an attempt at regime change. As I pointed out before, these responses go far beyond a reasoned engagement with the FNB campaign and are based on the anti-democratic notion that any criticism of a political party who happens to have received the most votes at the last election is not only wrong, but also somehow treasonous. This criticism of FNB stems from an assumption that the governing party has a divine right to rule and this kind of criticism poses a threat to our democracy. Pointing this out does not infringe on the rights of anyone — no matter what Friedman might think.
Moreover, given the fact that the ANC is the party of government and given the conflation of party and state, the ANC speaks from a position of enormous political and economic power and influence. When it uses this power not to rebut unfair criticism aimed at it, but to try and intimidate its critics into silence by branding them national traitors, it is surely important to point this out and to challenge this intolerant and anti-democratic behaviour. When people do so, they are not silencing the ANC and can therefore not be said to robbing the ANC of its right to free expression.BACK TO TOP