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01 Mar 2019 00:00
Graphic: John McCann
I am generally not in favour of banning stuff. Bans run against my liberal intuitions and we should ideally have more freedom rather than less.
Whoever wants to ban a particular speech act or item must bear the political, legal and ethical burden — a heavy burden — of explaining why the proposed ban is justified in light of salient facts.
But I am also not in favour of shoddy arguments against banning.
Ernst Roets, AfriForum’s deputy chief executive, told me this past week that the central premise of their legal case against the Nelson Mandela Foundation is that South Africa’s commitment to free speech requires of us not to ban the flag. He supplements this major premise with some minor ones, and claims that there would be a backlash against banning. In other words, progressive people who do not hoist the flag may, out of anger against its banning, suddenly display it.
He concludes his case by saying that states should never deal with phenomena such as racism by banning symbols, including symbols of hatred — he concedes that the flag is such a symbol for most people — but rather by allowing organisations such as his to engage, say, their members about issues of race, democracy and generally being good citizens who coexist productively with their fellow South Africans.
These arguments are not cogent. First, the only right in South African law that can never be limited is the right to dignity. All other rights — and the moral principles and values they are derived from — can be limited, provided that it can be justified in accordance with the limitations test set out in section 36 of the Bill of Rights, supplemented by a body of case law that has, over the years, developed our jurisprudence on limitations of rights.
Even the most foundational values such as freedom and equality can be limited, so it is certainly not odd in law to posit the limitation of particular civil and political rights. This means AfriForum cannot simply rehash arguments about why free speech, at the level of generality, matters to us. That is trite, and no doubt the Nelson Mandela Foundation will — and should — concede that, at the level of generality, free speech, and speech rights as a cluster of political rights, matters enormously to the health of our liberal democracy.
But it is a red herring to trot out these general arguments. The real contention is about whether the limitation can be justified in terms of the limitations test. Arguably, it can. Roets himself provides the material in this regard. He concedes that the old South African flag is, for most of us, an expression of hatred and triggers hurtful memories of past discrimination under apartheid, which was, like Nazism, a crime against humanity.
An open and democratic society has an interest in reducing that kind of hatred. If banning this symbol can help to reduce racial tensions, then banning the symbol could be said to serve a legitimate state and constitutional purpose.
Things take a turn for the worse for AfriForum at this stage of the dialectic. Roets tells me that he does not know one single person who displays the flag, and certainly none of his organisation’s members do. He also tells me that his members are committed to bringing about an antiracist society.
Here’s the problem. If Roets thinks that, in practice, almost no one in South Africa displays the flag, then where is the case for the backlash he is conjuring up? What is the negative and onerous practical effect of banning? Surely none.
You can only be royally pissed off about this item being banned if you are in the habit of at least sometimes flying it. But, if we believe Roets, then this proposed ban from the Nelson Mandela Foundation is as frivolous as banning, say, the Loch Ness Monster.
The conclusion for Roets, by his own reasoning, should be that the ban is pointless rather than harmful. But if the ban is not harmful, why should the court be persuaded that it is an unconstitutional proposal? Roets is tripping over his own premises.
AfriForum also cannot sustain a hypothetical scenario it sketches that turns out to be, in fact, a gigantic insult to white people generally and to their members specifically. If the members of AfriForum are as progressive and as committed to an antiracist society as Roets sheepishly agreed with me they are, then why should we believe that people committed to equality, racial harmony and not promoting expressions of hatred triggering for victims of colonialism and apartheid will suddenly change their progressive political views just because of a court decision to ban a symbol they do not display?
Holocaust denialism is not legal in parts of Western Europe and yet many of us often look to those democracies in the Global North as exemplars of liberalism. Many of those democracies are now in deep trouble, but not on account of their decades-old laws that outlawed symbols of hatred.
I wonder whether Roets would also argue that Nazi symbols should be allowed in those societies or whether his free speech advocacy is specific to the case of nostalgia for the old South African flag.
The only way there can be a backlash, if AfriForum loses the case, is if, secretly, AfriForum members aren’t deeply committed to eliminating expressions of hatred in our public spaces — or they secretly do enjoy hoisting the flag.
No one who is deeply committed to progressive racial politics will give up their commitments to those principles and values so easily. If anything, a ban of the old South African flag might simply help us to discover who was lying when they claimed to be committed to an antiracist South Africa. So whichever way you examine AfriForum’s claims, its arguments for opposing the Nelson Mandela Foundation fail.
Yet, despite the poor arguments from AfriForum, I am uncomfortable with the proposed ban because some of the language in the laws being relied on is dangerously vague, including words such as “hurtful”. We need to have thick skins in the public sphere when we perform speech acts that may evoke hurtful feelings.
To take an adjacent debate, many religious people often experience “hurtful” feelings when I mock their religious beliefs. Should I be banned from expressing my agnostic feelings? Should the law, alternatively, police my tone while not banning my right to express my views about religion?
This is dangerous territory, and perhaps we need not only to debate the old South African flag, but also the entire legal architecture that is informing the dispute.
Obviously in a diverse society there will not be consensus about where to draw the line. But that should not stop us from debating, continually, whether existing laws are sensible. The Nelson Mandela Foundation might win this case, but part of the win may be the result of some poorly drafted laws — and being on the right side of the public sentiment — which judges are alive to even if they do not always explicitly concede this in their judgments.
All of these legal, moral and political issues must be opened up for close public contestation. And that contestation must itself be celebrated as a healthy rehearsal of the very speech rights that are frequently the subject of the disagreements between us.
Read more from Eusebius McKaiser
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