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Free speech is costly

Freedom of expression is one of the cornerstones of our nascent constitutional democracy, and it is unquestionably a principle worth defending.

South Africa’s media as we know it, both good and bad, certainly wouldn’t exist without it.

Unfortunately, people like Steve Hofmeyr (and other folks who thankfully no longer have a chance to abuse entire populations in their columns) are also a big part of South African society, and will be with us for some time.

If you’ve ever spent any time on any social networking site then you know when the Hofmeyrs of this world get a hold of the idea of free speech, they invoke it illogically and more often than not, improperly, like a small child that’s just learned a naughty word.

Even with the white tears, pushback, insults and liberal hand-wringing – the free speech standards of face to face interaction are finally being applied online, thankfully.

But those that are angrily confused as to why they receive online backlash or lose their livelihoods as columnists or estate agents forget crucial facts about freedom of expression in South Africa.

Section 16 of the Constitution of South Africa contains detailed provisions with regard to freedom of expression, stating: “Everyone has the right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.”

There’s a misguided notion that as the supreme law of the land, the Constitution allows absolute freedom of expression. It doesn’t.

Section 16 contains the following limitation to freedom of expression: “The right in subsection (1) does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm…”

In addition to the section 16 limitation, there is also section 36 of the Constitution, which allows for the limitation of all rights – provided it is done by a law of general application and is justifiable in an open and democratic society based on constitutional values. For example the Equality Act, Broad Based Economic Empowerment (BBEEE) Act and Preferential Procurement Policy Framework Act (PPPFA). 

It is excruciatingly simple and bears repeating: no matter who you are, if you spew hate speech, incite imminent violence or spew propaganda for war, you will find no refuge in the Constitution – whether you are speaking in person, a telephonic conversation, via email, on Twitter, Facebook messages, Instagram or YouTube comments or even the pages of Rapport

Yet when any move is made to quell the publication of hate speech, screaming and gnashing of teeth and cries of “Censorship!” “What about freedom of speech?” can be heard.

Back in June 2017, writer-at-large for the Guardian US, Steven W. Thrasher argued in The Guardian how free speech is often an insincere and dishonest framing device, with racial and ethnic minorities’ speech less likely to be protected. 

Why is it that when Verashni Pillay as then editor of the HuffPo allowed a spuriously constructed blog post about the disenfranchisement of white men, she was pilloried and fired yet nary a soul defended her or the right to free speech instead focusing only on how hurt white men were?

Recently when News24 published a virulently racist blog post about Michael Holding’s partner, Adriaan Basson didn’t find himself cashing in his UIF. How about Waldimar Pelser the editor-in-chief of Rapport when he published Hofmeyr’s piece? He hasn’t resigned. Why is that?

Those of us who are routinely called “bitch” or “kaffir” – and threatened with sexual violence, unemployment, physical violence (certain group of fans at a certain rugby stadium, I’m looking at you), eviction and death – have a much harder time accessing or invoking the right of “free speech”.

Free speech as it stands means something else for those who are not white, well-heeled, heterosexual men.

When it comes to protecting the speech of people who are most vulnerable to being intimidated into silence – like black people in South Africa – conservative, right-wing quarters of our society either are suspiciously quiet or drive further intimidation with wildly negative or false responses or co-ordinated campaigns such as that intended to strip Tumi Morake of her position.

Free speech as a component of freedom of expression is a vital part of a free society. Shouting racist slurs on or offline at people is not. You aren’t entitled to free, unlimited access to Facebook’s servers or column inches in a right to reply. Just because someone somewhere had a dim-witted idea about black people, or women, or eugenics or God knows what else doesn’t mean they’re entitled to a platform to reach more people with their hate in the name of “free speech”.

EDITORIAL: Hofmeyr? Seriously?

It is time to stop assuming good faith in the free speech debate. Editors and publishers also have greater responsibilities than people who work outside of newsrooms

Freedom of expression, especially speech in South Africa, has been weaponised. Capitulating to the demands of those who publish racist bile in the name of debate will have far-reaching consequences. In a democratic society, mass media plays a role of undeniable importance. It bears an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture. 

As agents of the dissemination of information and ideas, we have, inevitably, extremely powerful institutions and a constitutional duty to act responsibly and with integrity. The manner in which the media carries out its constitutional mandate has a significant impact on the development and growth of our democratic society. If the media is scrupulous and reliable in the performance of its constitutional obligations, there will be an invigoration and strengthening of our fledgling democracy. But we ought to be discerning of whom and what we afford a platform. If we vacillate in the performance of these duties, the constitutional principles that underpin our fledgling democracy will be imperilled.

READ MORE: Daring to be black in a white space

This is where the Paradox of Tolerance, a concept coined by philosopher Karl Popper, comes into play. Put simply, we should tolerate everything, except intolerance itself.

South Africa is in no danger of impoverishing the “marketplace of ideas” when bigoted and downright reason-deficient ideas do not receive more airtime. We don’t need to fight to amplify the voices of the already powerful.

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Kiri Rupiah
Kiri Rupiah is the online editor at the Mail & Guardian.

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