Mail & Guardian: How do you draw the boundaries on the limits of free speech?
Kate O’ Regan: What is important to realise is that there are limits to free speech. We need only remember the classic American example of shouting fire in a crowded theatre to see why these limits are essential. In the processof drawing these limits we have to rely not only on the Constitution but also on rigorous and open public debate. We are seeing this kind of debate in the UK in the wake of the phone hacking scandal, where individuals and organisations appear to have overstepped the boundaries. We also do not need to go far to see what happens when the right to free speech is restricted. One of the main reasons we value free speech is that there is an intrinsic link between free speech and democracy. In a democracy it is access to information that allows citizens to make informed choices and it is often because of this that authoritarian regimes clamp down on free speech early on.
M&G: How is free speech being undermined in SA at present?
KOR: There are examples of people trying to dominate the conversation through rhetoric rather than answering key questionsm, and to some extent the press needs to take responsibility to ensure it promotes careful reasoned debate. The unfortunate reality is that abusive speech often sells newspapers, which provides a reason for the media to provide a platform for destructive speech. This is an issue that the media needs to consider on an ongoing basis.
M&G: How important is the Constitution in determining the limits of free speech?
KOR: Rights do impose responsibilities and recently we have seen a string of interesting decisions from the Constitutional Court on the limits of people’s right to speech. South Africa is a very open and audible society and we constantly have to establish where the boundaries of free speech are and what the responsibilities of speech entail. Luckily our Constitution is well worded and this provides some of the guidance that is needed in this respect.However, we shouldn’t only rely on litigation to define the boundaries. People need to assert their own views. The current Right2Know campaign is an example of this.
Justice Kate O’ Regan served as a Constitutional Court Judge from 1994 to 2009