On Wednesday evening, political openness and freedom of expression in South Africa’s political environment gained a signal victory in a hearing to test the authority of the SABC to withdraw a controversial political campaign ad. The Complaints and Compliance Committee (CCC) of SA’s Independent Communications Authority, ICASA, ruled the DA’s controversial election ad, “Ayisafani”, the one that features Gauteng premier candidate Mmusi Maimane and that accuses Zuma and his administration of numerous public policy failures, including the charge that the nation’s police force has unfairly killed citizens – must be returned to the air with immediate effect. The public broadcaster had earlier this week removed the ad from its broadcasts, arguing that it effectively would serve as an incitement to public disorder.

Watch: DA’s “Ayisafani” ad

During the two-day-hearing, the SABC had been unable to document any proof that members of the public had complained about the ad’s contents, that the ad was contrary to the Advertising Standards Authority’s code of conduct, or that it had been a personal attack on Jacob Zuma. While the party and the SABC’s legal teams are still supposed to meet later on this issue, in the meantime, there is an “in-principle decision. . . that in the interim the SABC will give an undertaking that the advertisements would be flighted.”

Previously, the SABC’s first lawyer had argued the SABC’s editorial committee had decided to kill the adverts because the content had violated the broadcaster’s code for reporting on the nation’s political parties and that it posed a threat of violence. After the announcement that the SABC would again broadcast the DA’s ads, the CCC chairman, Wandile Tutani, told media, “We see no reason why we should quarrel with this arrangement. . . We will meet when we meet.”

For most people watching this latest development, the conclusion was inescapable – unfettered political expression in South Africa has received a significant boost in the run-up to the national election next month. Moreover, this has come in the midst of a whole series of other events that have unsettled the ANC and opened up the country’s political system in ways that might well have been unimaginable only two years earlier.

Several new, and very aggressive political parties – most especially the Economic Freedom Fighters – are pushing for public support and visibility in the public space. In addition, COSATU, the main national labour federation, a group that has been a deep repository of heft for the ANC, is now in the midst of severe infighting – with the possibility that NUMSA, one of its most powerful affiliates, may even work against its erstwhile alliance partners – the SACP and ANC. And then, most recently, a number of long-time ANC and communist party stalwarts launched their effort earlier this week to encourage would-have-been ANC voters to either support a smaller party in opposition – or even to turn in spoiled ballot papers as a symbol of disapproval for the way the ANC and its leader have become caught in the cover-up of the Nkandla scandal, among other scandals.

Will all this Sturm und Drang prevent the ANC from returning to the position of majority party next month? That is clearly very unlikely. But real cracks in the old, familiar, reliable landscape of South Africa’s political order are showing – and they are unlikely to be papered over successfully, no matter what the party insiders attempt to achieve. And with this victory over the SABC’s efforts to control the public space, as long as the opposition parties have the cash to buy ad space, the political fighting seems likely to get even more intense until 7 May dawns.

Back in 1964, President Lyndon Johnson was battling Senator Barry Goldwater for the presidency in that year’s election. One of the advertising agencies working for the Democrats put together a television campaign ad that revolutionised the texture of American campaign advertising. The ripples from that ad are with us still.

Watch: “Daisy’ attack ad from 1964 US presidential election

Ultimately, while this ad was only shown one time on national television (as a result of some strenuous public criticism about its content), nevertheless, it fundamentally changed the nature of political advertising on television. In the process, it opened the floodgates for every kind of creative attack against one politician on behalf of another one. (Voters always say that they hate negative attack ads, but surveys usually show that the charges contained in such negative campaigning often are the very reasons why voters behave as they do once they enter in the voting booth – as they remember the content of those attack ads.) While Facebook and YouTube were still a long way off into the future, millions saw at least a portion of the ad on television news programs, heard about it on radio, or read about its texture and content in newspapers – and then discussed it with co-workers, friends and family.

In trying to cement the image of Barry Goldwater as a dangerous right wing zealot and hot head, this commercial showed a cloyingly sweet small girl counting the petals of a daisy as she plucks them off one by one. The scene then segued to a nuclear test countdown as film footage of an actual nuclear blast replaces the child. As the ad wraps up, Lyndon Johnson has a voiceover that speaks to the need for sober, serious leadership in the dangerous nuclear age. Point made, and along with Goldwater’s own more extravagant, politically troublesome comments, the Republican challenger was fatally painted as some kind of a wild, gunslinger, eager to pick a dangerous fight with the Russians. Goldwater lost in a landslide. (Of course the irony was that Lyndon Johnson then presided over a massive troop build-up in Vietnam that ultimately cost him a favourable place in American political history – despite his considerable achievements in civil rights legislation and anti-poverty efforts.)

But ever since the “daisy” ad was aired, there has been virtually nothing to stop other American political candidates, special interests or lobbying groups from placing equally contentious commercials – or even more aggressive ones. A particularly noteworthy example was the so-called “Harry and Louise” ads for a coalition of health insurance providers, the National Insurance Association of America (NIAA), during the early days of Bill Clinton’s presidency.

Designed to connect viscerally with peoples’ fears about the proposed new national health care system, even as many traditional health care plans were undergoing some heavy-duty reconstruction because of market-related pressures, Harry and Louise portrayed two totally average Americans, and the roles were delivered by actors who managed to pack more angst into their respective roles than should actually be allowed on a television screen.

They delivered this in a series of faux-amateur vignettes as they wrestled with the iniquities of arcane, insanely risky health reform measures while trying to deal with their monthly household bills, sitting at the kitchen table. In succeeding months, following the success of the first ad, the NIAA released a series of increasingly clever variations on the theme and helping instil a bout of national paranoia; this even though the commercials were not even released specifically in connection with electing or defeating a particular political candidate.

Now, of course, the placing of a political commercial on television is just the start of things. For the sponsors, hopefully the ad gets redistributed via social media, sometimes by campaign organisers, sometimes by sympathetic organisations, and often, too, by ordinary individuals who feel strongly about an issue or a candidate. One recent version of this process was the commercial recorded by actor Samuel L Jackson on behalf of the Obama re-election effort in 2012. Given its particularly lurid language, there was no way it was even going to get on television, but millions watched it on YouTube and other Internet-based channels – and then it received much additional second-hand publicity because of its street-smart style and strong message.

But for Americans, the laws governing political advertising primarily relate to questions of funding, rather than concerns over content. The First Amendment protections on free speech are the operative point here. As the Canadian think tank, the Centre for Law and Democracy, explained in its 2012 report, designed to clarify the American campaign advertising environment for non-Americans, “One of the more permissive regulatory systems among established democracies is found in the United States, where paid advertising is deeply ingrained in the political culture. The United States’ electoral laws do not place firm limits on campaign spending, or on the amount of advertising a candidate or party can purchase.”

“Instead, campaign regulations in the United States target fundraising by placing limitations on how and how much individuals can give, and by barring corporations from directly supporting candidates. However, while supporters and corporations are limited in the cash that they can give directly to candidates, there is an increasing tendency to make an end-run around these rules by channeling money through third party political action committees (called Super PACs). These Super PACs can accept unlimited contributions from individuals or corporations with little transparency or oversight, and face almost no restrictions as long as they formally operate at arm’s length from the candidate they support.”

The center went on to note in its report, “Direct regulation of the media in the United States consists primarily of the “equal time rule”, which requires radio and television stations and Cable networks to treat legally qualified candidates equally in allocating airtime. If a station sells or gives a block of airtime to one candidate, it must offer the same amount of airtime, with the same audience size, to all other candidates at the same rate. If the other candidates cannot afford this rate, the media outlet is under no obligation to give them airtime. There are exceptions to this rule for newscasts, news interviews, documentaries and on-the-spot news events, which are allowed to cover candidates without regard to these restrictions.”

Of course, over the past several years, several controversial split Supreme Court rulings, divided 5-4 among the justices, have changed the landscape over restrictions on corporate contributions to candidates and the establishment of those so-called Section 527 issue advocacy groups. As a result, campaign financing has increasingly become rather more of being a super-rich man’s game. Increasingly, individuals like billionaire Sheldon Adelson and the two Koch brothers have been setting up mechanisms to channel seriously large volumes of cash to champion their favoured causes or issues. This has come as a preferred method of political influence for many, rather than supporting a specific candidate with contributions – even if the distinction is increasingly becoming one that is a distinction without much of a difference.

But, as long as the cash is there to pay for the placement on the air, restrictions on content are largely absent in the American system. In fact, increasingly, most nations around the world have statements in their constitutions or legal systems that officially protect freedom of speech for the media and political figures. However, that has not always served as a barrier preventing the arrest, detention or political banning that has been the fate of many politicians – or the closure of media houses on grounds that they have been undermining national security or stability. DM

Read more:

• Center for Law and Democracy: Regulation of Paid Political Advertising – a survey

• DA’s ‘banned’ election ads to return to SABC at Business Day

• Administering and Enforcing Federal Campaign Financing Laws at the Federal Elections Commission website

• Clinton-Era ‘Harry and Louise’ Campaign Was Harbinger of Today’s Health-Care Mess — Spots Also a Testament to Power of Political Advertising at Ad Age

Photo: DA’s Mmusi Maimane in the Ayisafani ad.