Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
25 February 2020

On the wisdom of interviewing Carl Niehaus and why this has nothing to do with free speech

Much of what people think they know about freedom of expression and censorship is wrong. Relying on well-worn – but essentially empty – slogans, some people defend a version of freedom of expression that they themselves do not adhere to and that, in any case, would be impossible to implement. This is nicely illustrated by the reaction of some journalists to my criticism of a radio station for inviting self-confessed fraudster Carl Niehaus for an extended interview on one of its shows.

Over the past week media outlets carried a vast amount of “content” about FW de Klerk’s denial that apartheid was a crime against humanity. This is not the first time that De Klerk has made outrageous statements about apartheid, but it is the first time that for several days the media was flooded with news reports and opinion pieces condemning De Klerk’s denialism. As far as I can tell, most media outlets – rightly, in my view – did not attempt to “balance” the outrage about De Klerk’s denialism by giving substantial time and space to voices defending De Klerk.

Editors made an editorial decision to focus on the outrage about De Klerk’s words and to de-emphasise or ignore the voices of those defending De Klerk and his denialism. This is what editors do every day. Every decision on what stories to cover, which newsmakers or experts to interview, what angle to take with a story, and what opinion pieces to commission and who to ask to write them, shape what information viewers, listeners, and readers of a media outlet are presented with.

It is impossible for any news outlet to report on every potentially newsworthy event and it is also impossible to provide a platform for every single person who might believe they have something newsworthy to say. Editorial gatekeeping is therefore inevitable. But, for any credible news outlet targeting a specific audience, some editorial gatekeeping is also essential. This is why many news outlets in South Africa will seldom if ever carry an extended, sympathetic, interview with a rapist or murderer, why most outlets will think twice before inviting a right wing bigot to write a column about why we were all better off during apartheid, or why I have not seen any news outlet commissioning an opinion piece from a misogynist on why women are all sluts and are therefore themselves to blame for gender based violence.

Some of the gatekeeping will be based on the ethical and ideological commitments of the news outlet, some on how shocking and distasteful the particular editor or journalist finds the views under contention (which is why few news outlets provided a platform for De Klerk’s defenders), some based on an assessment of the news value of the piece, and some – sadly – also based on whether the particular piece is sensational enough to appeal to readers hunger for spectacle and scandal (which is why some media outlets give disproportionate space to the views of charlatans, demagogues, and chancers – even when there is little or no news value in their utterings).

Reasonable people (and even editors, reasonable or otherwise) will disagree about such editorial decisions, which is a good thing as it may arguably increase the diversity of news and opinion.

Chomsky might argue that this diversity of news and opinion tends to fall within a narrow band of news and opinion that are palatable to news editors and their audience, that traditional news outlets therefore assist to “manufacture consent” by carefully curating disagreement, and that the diversity of voices foregrounded by news outlets say more about the ideological and ethical commitments of editors than about their commitment to robust debate.

Honest editors and journalists will take responsibility for these – highly political – choices, which good editors and journalists will be able to justify in a principled manner. They will welcome an honest debate about media ethics and responsibilities, and will continue to reflect critically and relentlessly on the dangers and responsibilities that come with the gatekeep role they inevitably play. (That said, the power of editors have been radically weakened by social media where lies, bigotry, hate and – once in a while – an actual verifiable fact or interesting thought jostle for prominence.)

However, to argue – as some journalists did on Twitter after I criticised PowerFM for inviting Carl Niehaus to an extended interview – that it amounts to censorship to criticise the editorial choices of a media outlet is therefore misguided and uninformed.

Every day PowerFM (and every other media outlet) decides not to invite any number of political personalities, pundits, experts (or colourful charlatans pushing some or other political and personal agenda) on to one of its shows. Editors who make such decisions are not above criticism for their decisions (and should welcome the opportunity to account for their decisions when challenged to do so), but they are definitely not engaging in censorship.

Nor does it amount to censorship when I criticise a media outlet for inviting a self-confessed liar and fraudster on a radio show, not to ask the said fraudster about his lies and fraud, but to speak about serious political matters on which any number of other people of the same political persuasion could have spoken with more credibility and without being laughed at. An editor with specific ideological views and ethical commitments may well believe it is an appropriate editorial decision to satisfy Niehaus’s need for publicity. I just happen to think the opposite.

Another argument about free expression that I find worryingly uninformed is that if a news outlet declines to invite a specific person for interviews because of his lack of credibility (for being an idiot, somebody called it), that media outlet embarks on a slippery slope that will lead to censoring of many important views. The truth is that if you are a journalist or an editor you do all your work on that slippery slope because every day you make judgments that either amplify or silence certain news and certain opinions. Sometimes the decision is bad, sometimes it is good. But you may only know in 20 years whether it was either.

If you are aware that you carry this responsibility, you will be better placed to exercise careful judgment and to be self-critical. If you pretend that as a journalist or editor your choices do not amplify or silence other voices and that you are there to let a thousand flowers bloom, you become potentially dangerous because you make those choices without reflecting on them or taking responsibility for them.

By far the most telling responses to my criticism of PowerFM was based on the often repeated but demonstrably false assumption at the heart of traditional conceptions of freedom of expression. It was argued that one should give “idiots a platform to be idiots”, that it is dangerous not to platform the voices of the dangerous and the crazy because such views will only be refuted if they are first aired, and if they are not, they will fester in dark corners.

This widely accepted view is based on the assumption that we should platform every conceivable kind of idea in the “free marketplace of ideas”, because in such a free marketplace the “good” ideas will ultimately defeat the “bad” ideas and will thus allow the “truth” eventually to triumph.

Individuals and institutions invo0ke this metaphor to evade responsibility for the choices they make every day when deciding to platform or promote specific views and not others. In the context of the media, it is premised on the demonstrably false claim that media outlets that support free expression never make decisions about whether to platform and promote specific views at least partly based on the content of that views.

The fact is, every media outlet mutes some voices because these views go beyond the “manufactured consent” within which that outlet operates. Which is why I suspect (using a random example) the Mail & Guardian is not going to publish one opinion piece after the other about how sinful and perverted same sex love is, and why Business Day will seldom if ever publish opinion pieces arguing that Public Protector Busisiwe Mkhwebane is a woman of the utmost integrity and honesty possession exceptional legal skills. (These two examples hint at my ambivalence about the role of the media in manufacturing consent – I would criticise either outlet if it did publish the kinds of pieces that I claim are absent from their pages, suggesting that manufactured consent is not always a bad thing.)

There are at least two other reasons why the metaphor of the free marketplace of ideas is based on a lie. But as I have written before about why there is no such thing as a free marketplace of ideas, I will focus here on the second assumption that “good” speech” will triumph over “bad” speech if all speech is allowed to flourish.

Holding on to this assumption – given the available evidence – looks like a kind of madness. Consider the original idiot called Donald Trump. Despite the avalanche of news reports and opinion pieces criticising Trump for his bigotry and lies, he was elected President of the United States and stands a good chance of getting re-elected in November.

Many of Trump’s supporters are prepared to follow him blindly, not despite that fact that he constantly lies and dissembles, but because he lies and dissembles and because people like me point out the lies.

Anyone who has spent any time on South African Twitter will also know that lies spread by some political leaders and their followers and other crackpots and crooks acquire a life of their own on that App, and that no degree of counter-speech is ever going to convince a sizeable number of the supporters of such people that the original lie was in fact a lie. The more one states the actual facts, the more this is used as proof that you are a member of a not so secret cabal spreading lies. In such contests the truth is entirely beside the point.

Freedom of expression is pivotal to facilitate democratic contestation and to help individuals achieve personal fulfilment. But if you take freedom of expression seriously, it is important to think more carefully and clearly about what this right entails, and about when it should and should not be invoked. It is also important that you do not use freedom of expression in a lazy way to try and avoid difficult discussions about the wisdom of controversial editorial choices.

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