You Want Free Speech?

“You want free speech? Let's see you acknowledge a man whose words make your blood boil, who's standing centre stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.”

Words so eloquently spoken by Michael Douglas in the movie The American President and noble sentiments indeed! The right to freedom of expression is one of the cornerstones of every democracy and protected under section 16 of our own Constitution. So too, however, under section 10, is everyone’s right to dignity and to have it respected and protected. So how do we achieve that equilibrium? Where do we draw the line?

It is an issue our courts have for long been grappling with and recently brought to the fore by the SCA in the case of former ambassador to Uganda, Jon Qwelane, who penned an indisputably offensive column in which he adopted a very anti-gay stance, calling for a revision of laws which allow same-sex marriages because, as he put it, "at this rate, how soon before some idiot demands to marry an animal".

The SA Human Rights Commission took action against him on the basis that his comments amounted to hate speech when taking the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) into account. Qwelane fired back claiming that relevant provisions of PEPUDA were too broad and vague and thus unconstitutional. The commission succeeded, the court found that the comments did indeed amount to hate speech, and Qwelane was ordered to apologise. Not to be so quickly thwarted, however, he took his plight up with the SCA on appeal and it approached things somewhat differently.

While certainly expressing its displeasure at the provocative, bigoted and unapologetic conduct of Qwelane, the SCA found that the provisions of PEPUDA that dealt with concepts such as the “intention to be hurtful/harmful” etc. were so vague and broad so as to be barely intelligible and completely unsuitable in the role of guiding the conduct of an average person. It ruled that the relevant section of PEPUDA was unconstitutional, giving lawmakers 18 months to rectify it.

Whilst there are still many layers to this complex issue and certainly mixed reactions to the judgment, it, and the narrower interpretation adopted, arguably must be welcomed. A clearer understanding of specifically where (and why) that line is drawn is necessary. And a very important consideration in any functioning democracy, is that nobody can enjoy a legal right not to be offended. Impossible!

That’s not to say that there shouldn’t be repercussions for those out there (including the trolls) that choose to publish offensive and bigoted comments. They justifiably run the risk of losing their jobs, breaching their contracts, facing the condemnation of and ostracism from society and so on. Remember, when we are talking about the limitation of freedom of expression, we are generally referring to state sanction and censorship, not public disapproval and protest. Take the Grantleigh school “demonic art” debacle for instance. In reaction to Pastor Anderson’s stance and the consequential public condemnation of the display, many decried what they perceived as an attack on freedom of expression. That reaction, however, misses the point that, just like the school and the artist, Anderson had every right to express his views and call for peaceful protest and boycott as did those citizens who publicly supported him. When the authorities get involved, however, we risk treading the very slippery slope and unwelcome return of Apartheid-style censorship.

Regarding the trolls and particularly those that seek to insult and spread discord under the cowardly veil of online anonymity, there is no obligation on the Silicon Valley Superpowers (or anyone else) to provide them with the platform and loudspeaker. Perhaps something they should take heed of and look to remedy! As the actor Sacha Baron Cohen brilliantly articulated in a speech recently, “freedom of speech is not freedom of reach”.

At the end of the day, there are no easy answers apart perhaps from an embracing of the principles of “ubuntu” and tolerance to guide us in this country as we continue to navigate these tricky waters of our fledgling democracy.

Contributor: Michael Browning (Managing Director)

E-mail: mikeb@tmj.co.za

Tel: 033 341 9100