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
11 January 2016

Why free speech fundamentalists are undermining the case for free speech

Free speech absolutists – people who claim to support the right of others to say whatever they wish, no matter what the content of the speech or how damaging its effects on individuals or groups – are endangering the protection of the right to free speech with their demonstrably false, fundamentalist, views. If only for pragmatic reasons, they should reconsider their position.

I have tried to explain on several occasions why I believe Beatrice Evelyn Hall’s slogan about Voltaire’ attitude towards free speech – “I disapprove of what you say, but I will defend to the death your right to say it” – is conceptually muddled and why it does not reflect the actual views any person holds on the right to free speech.

No rational person could possibly defend to the death the right of others to say whatever they wish – regardless of how true or false the statement is, or what the consequences of the speech may be.

Two examples will suffice to illustrate this obvious point.

First, few people would defend to the death the right of others to make demonstrably false defamatory statements about others. Will you defend to death the right of an opponent falsely to claim that you are a rapist, a murderer or a child molester? I won’t.

One of the reasons why overtly racist speech is so problematic is because it makes  demonstrably false defamatory claims about an entire group of people based on their race. Instead of calling an innocent person a child rapist, the racist speaker does the equivalent by defaming an entire group of people and does so for no other reason than because of their race.

Second, few people would defend to death the right of others to incite violence against a person or a group. Will you defend to death the right of an opponent to exhort his or her followers to rape or kill you? I won’t.

One of the reasons why overtly racist speech is problematic is because it harms those targeted. The harm may be physical and direct or it may be indirect: if I propagate the absurd notion that some people are not fully human because of their race, I am creating an atmosphere in which some would consider it unproblematic to assault or kill members of that group. Racist speech can also inflict severe emotional harm on those targeted – especially in a world in which the dignity and worth of the targeted group is systematically undermined because of structural racism, sexism or homophobia.

When you claim that you will defend to death the rights of others to say whatever they wish, you are almost certainly lying (often both to yourself and to others).

As a matter of principle and as a matter of fact, the actual choice confronting us when we have to consider the protection of free speech is not whether it should be protected absolutely or not protected at all. The choice is about which types of harmful speech the law should limit and what the extent of that limitation should be.

When we try to find answers for these difficult questions we would do well to recall that speech is not harmful merely because it makes us uncomfortable, we disagree with it or we do not like the person who uttered the speech. At the same time, we would also do well to recall that we may not be best placed to judge whether speech that targets a specific group to which we do not belong directly harms the members of that group and what the extent of this harm might be.

But the problem with the Voltaire-shouting free speech advocates is not only that the position they hold is demonstrably false and incoherent. The position is also incompatible with our Constitution and our law and potentially strategically catastrophic. Fundamentalism has a tendency to breed counter-fundamentalism.

When somebody defends the right of Penny Sparrow to say what she wishes (while indicating that they disapprove of her racism), that person is defending speech that is almost certainly not protected by the Constitution and definitely regulated by the Promotion of Equality and Prevention of Unfair Discrimination Act.

Section 16(1) of the Constitution protects all speech not explicitly excluded by section 16(2). This protected speech includes child pornography, defamatory speech and racist speech that does not amount to the type of speech set out in section 16(2). (Of course, speech protected by s 16(1) can be limited by any law of general application which complies with the requirements of the limitation clause in section 36. The Constitutional Court thus had no problem in De Reuck v Director of Public Prosecutions to find that the criminalisation of child pornography in section 27(1) of the Films and Publication Act was justifiable in terms of the limitation clause.)

Section 16(2) itself does not regulate speech. It merely defines which speech is entirely excluded from constitutional protection. It is for the legislature to regulate speech it believes to be harmful and for the court to decide whether the regulated speech falls within section 16(2). If it does fall within the ambit of section 16(2) then the limitation will automatically be constitutionally valid as the speech will be unprotected.  If not, the question will be whether the limitation is justifiable in terms of the limitation clause.

Section 16(2) states that the right to freedom of expression protected in section 16(1) does not extend to: (a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

In several opinions the South African Human Rights Commission – following Canadian Supreme Court jurisprudence – found that the harm envisaged by section 16(2)(c) went beyond physical harm to include serious emotional harm. It thus argued that speech that constitute incitement to inflict serious emotional harm on a group because of their race, ethnicity, gender or religion could constitute hate speech excluded from constitutional protection.

If this is correct, the kind of hate speech uttered by Penny Sparrow would constitute speech entirely unprotected by s 16 of the Constitution. Any and every limitation of it would thus be constitutionally valid. Only a person who is uninformed about constitutional law would therefore unequivocally claim that Penny Sparrow has a constitutional right to say what she did.

Of course, there is no question that what Penny Sparrow said infringed on section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act and that if she is taken to the Equality Court she would be found guilty of hate speech. Once again, to claim otherwise is misguided and uninformed.

But I would contend that even for entirely pragmatic reasons it would be unwise to defend the rights of others to engage in harmful speech that is probably not constitutionally protected and clearly legally restricted.

When you invoke an important constitutional right (free speech) to defend the indefensible, you run the risk of discrediting the right itself in the minds of most South Africans. If you make the false claim that Penny Sparrow’s racist speech is constitutionally protected free speech, you are delegitimising the protection of free speech. If the right to free speech protects this kind of speech, many reasonable South Africans might say, then we cannot support this right.

Moreover, when you overstate the case for free speech and advance a fundamentalist position on free speech (one, as I have tried to show, that is not conceptually coherent), you open up the space for opportunists to pass legislation to limit speech that may be of some value to individuals or to society as a whole.

As a general rule powerful people do not like the right to freedom of expression because it has the potential to empower those without political, economic and social power to have a real say in the democratic process. They tend to want to limit speech. This can be done indirectly by controlling the news and opinion platforms – Chomsky’s idea of “manufacturing consent” comes to mind – or directly by placing legal limits on speech that threaten their political or financial interests.

In a political environment in which some proponents of free speech refuse to admit that some forms of speech are extremely harmful and of little or no value and shout slogans about defending to the death the rights of others to say whatever they wish, it becomes much easier for unscrupulous actors to justify their self-serving moves to censor speech that threaten their political and social interests.

The absolutist position on free speech is therefore not only immoral and conceptually incoherent. It is also politically unwise. It sets up a false dichotomy – either you protect all speech absolutely or you do not protect it at all – and implies that one must choose one position or the other. Given South Africa’s history of racist social and economic oppression and exclusion and given the tremendous emotional impact of racist speech, most South Africans will not choose to support the position of the fundamentalists.

Difficult questions arise when we consider where the limits of free speech should be drawn. Reasonable people can differ about exactly which speech should be limited and how it should be limited. This is the real debate we should be having in South Africa. What we do not need is a completely ahistorical debate centred on an empty and false slogan about defending to death the right of speech that is not constitutionally protected and are already regulated by the law.

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