When held to the purifying flames of common sense, the interpretation of the word ‘harm’ quickly turns to ash.
A fake blog post proposing that white men be stripped of their voting and property rights “might be landing a blow among many other blows”, AfriForum has argued.
In April, researcher Marius Roodt wrote a blog post for HuffPost SA’s voices section titled Could It Be Time To Deny White Men The Franchise?, under the pseudonym Shelley Garland, a supposed masters student of philosophy.
On Monday, the SA Press Council’s appeal’s panel heard an appeal against Press Ombudsman Johan Retief’s ruling that the article amounted to hate speech and discrimination.
The blog argued that revoking white men’s right to vote or their property rights could have prevented the election of US President Donald Trump and the Brexit referendum – in which United Kingdom residents voted to leave the European Union.
It was published without the author’s identity being verified and was found by the press council to be discriminatory and denigratory and amounted to hate speech, a ruling that set a dangerous precedent for the rest of the industry.
In a hearing about whether there was unfair discrimination or incitement of hatred towards white men, three white male lawyers argued for and against it, with starkly different views.
Acting for AfriForum, attorney Mark Oppenheimer made the claims in former Huffington Post editor Verashni Pillay’s appeal of the hate speech and discrimination finding by the press ombudsman against the publication on Monday.
Pillay resigned from Huffington Post shortly after publishing an editorial about the blog, in which she defended the assertion that white men still hold disproportionate economic and social power.
Citing public comments by Black First Land First (BLF) member Lindsay Maasdorp, in which he calls on white people to be destroyed, and Economic Freedom Fighters (EFF) leader Julius Malema calling for the disruption of white privilege, Oppenheimer said the fake blog would add to a groundswell of anti-white sentiment.
“This article will be one among many which contribute to a climate where one day we may see their [white men’s] property and voting rights being taken away. This article contributes to that. It might be landing a blow amongst many other blows,” Oppenheimer said.
“We can’t make an assessment that this article on its own would lead to land being taken away or white people being pulled out of queues, but it undoubtedly contributes to that idea.”
Pillay’s lawyer Ben Winks argued that even if Garland was a real person, the contents of the article could still not be considered hate speech or discrimination against white men, as it was protected by the right to freedom of expression in the Constitution.
“Is it suppressing material facts? Is it misleading readers? It clearly is not. The right to free speech includes the right to be wrong and the right to be foolish,” Winks said at the hearing.
“In publishing this blog, it is not for the editor to police the academic cogency of the argument. What the Constitution calls on the press to do, is to give a platform of diverse views,” he added.
Media Monitoring Africa (MMA) and the South African National Editors Forum (Sanef) also applied to be friends of the court on Pillay’s side, as they believed the finding of hate speech could have far-reaching implications.
Advocate Steven Budlender, arguing for MMA and Sanef, said Retief’s findings of hate speech were incorrect because he did not test whether the blog advocates hatred, there is proven incitement and that incitement to cause harm is also evident.
Budlender asked the appeals panel to set out a clear and narrow definition of hate speech in the future, as describing the article as such should be a carefully considered decision.
“When we tick the box of hate speech, it means that it loses all constitutional protection. We have to be extremely careful when putting it in that box. That’s why con court consistently applied a very narrow approach. When this tribunal interprets section 16 of constitution must be very narrow,” Budlender said.
Budlender also bemoaned AfriForum’s reliance on “speculative harm”, and the absence of jurisprudence in the rights group’s argument.
“Our law says that you don’t censor speech based on speculative harms. If that is true about censoring speech, it must apply equally about freedom of expression. An incitement means incitement to cause harm. If it’s not going to cause harm in a for-see-able period, it can’t conceivably be constituted as harm,” Budlender continued.
AfriForum said that the blog could not be dismissed as a spoof or satire, based on Pillay’s editorial that followed its publication.
The appeal panel’s chairperson Judge Bernard Ngoepe reserved judgment, which is expected this week.