Dear Gareth Cliff, freedom of speech has limitations

Gareth Cliff, a prominent South African media personality and an Idols judge, was fired last week by M-Net. He tweeted “people really don’t understand free speech at all”, in response to the outrage over Penny Sparrow’s Facebook post in which she called black beachgoers monkeys.

By referring to Sparrow’s incontrovertibly racist rant as “free speech”, was Cliff, by extension, necessarily endorsing the content of her comment or was he simply saying one has the right to free expression, regardless of whether one uses it to please or to offend?

One of the dominant interpretations on Twitter so far is that a racist Facebook post cannot necessarily qualify as “free speech” and Cliff, by referring it to as such, is himself racist. M-Net said Cliff was not racist, but they let him go anyway. He has since apologised for being an “ass”.

Let us be frank. M-Net, despite its social media policy prohibiting racist public utterances by its employees, would not have sacked Cliff if there had not been a public outcry over his interpretation of freedom of speech in relation to Sparrow. The channel was not reacting to Cliff’s views on the subject per se but to the “public’s” anger. Without that, M-Net would have kept Cliff on and Idols would have continued without a hitch.

The argument that M-Net is principled by firing Cliff is fundamentally flawed. The controversy he caused would have led to a boycott and disturbed the smooth functioning of a commercial enterprise. M-Net is protecting itself as a brand and lynching Cliff as it cowardly runs for cover.

Sparrow is a quintessential racist who, like all racists, roots her argument in empirically flawed ground. Ubunono (cleanliness) is a norm in black African culture and littering is an abnormality.

Sparrow had little interest in exercising her right as a free South African citizen to protest about littering. If that was her intention, she would have just made this point and then taken the matter up with the nearest municipality, which, as an estate agent, she would have found easy to do.

Sparrow, failing to realise how she was badly brainwashed ideologically by apartheid about white spaces versus black spaces of living and leisure, simply disapproves of black people in white spaces. Her long, detailed Facebook post with a monkey reference was built on unbridled prejudice.

But was it hate speech?

There is no formal definition of hate speech in South Africa by which we can appraise her racist rant. The Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) are two pieces of legislation we can turn to here.

The Constitution is clear that freedom of expression cannot enlist, among other things, “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm”.

However offended I am by Sparrow, she did not “incite” anyone else to cause black people harm. She just made a grotesquely stupid racist comment.

But her white supremacist rant did violate section 10(1) of the Equality Act, which stipulates that no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds against any person that can reasonably be construed to demonstrate a clear intention to a) be hurtful; b) be harmful or incite harm; c) promote or propagate hatred.

The question then is whether Cliff can call her post “free speech”?

My argument is that he cannot, which can be reasonably sustained within the provisions of the Equality Act. The right to freedom of expression does not offer sufficient protection in this regard and Cliff may have grounds to appeal his axing and sue.

Let’s take this argument from the New York Times’ editorial board in relation to Charlie Hebdo, the French magazine that publishes graphic satire of politicians and religions, whether Catholic, Jewish or Muslim, and whose offices were attacked by terrorists a year ago: “There is no question that images ridiculing religion, however offensive they may be to believers, qualify as protected free speech in the United States and most Western democracies.”

What Cliff was then arguing, and he did not help himself at all in the court of public opinion, was that there is no question that speeches ridiculing a racial group, however offensive they may be to that racial group, qualify as protected free speech in South Africa.

Like all South African citizens, Cliff has a right to freedom of expression. In short, he has a fundamental right to hold opinions and to impart and receive ideas and information. This fundamental right is protected by the Constitution, specifically section 16 of the Bill of Rights. One may not always differ or agree with his views, but he nonetheless has a right to express them. What Cliff cannot do, though, is to call fundamentally illegal acts “freedom of expression”.

Dr Musawenkosi W Ndlovu is a senior lecturer in media studies at the University of Cape Town and a Mandela Mellon Fellow in the WEB Du Bois Institute at Harvard University

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