The government might as well lock me up. But at least I'll have company. Because it might as well lock all of us up. The Julius Malema hate speech ruling by Judge Collins Lamont sets the alarming precedent that a person's speech, even if misunderstood, can be criminal.
Last week, as public debate raged over television and radio personality Darren Scott’s use of a racial slur in a moment of anger, he quickly intervened. “Dont (sic) try justify what I did. It was wrong, I know it, no matter what the circumstances. I am sorry that I offended so many, not just one.”
While I strongly condemn the use of racial slurs, as I wrote in a recent column, I commended him for his unabashed apology.
This prompted an immediate reaction from several people, accusing me in the most hateful terms of racism, and of condoning as a mere mistake the slur used by Scott.
Khadija Patel wrote in a column on Monday how Lindiwe Mazibuko of the Democratic Alliance met the same fate, when she wrote: “Some DJ uses The K-Word. A pop singer screws up national anthem. Is this what you choose to be outraged by, SA? Do we live in the same SA?”
She soon discovered that being misunderstood is easier than it appears. “Wow. A simple question about priorities causes some tweeple to unleash torrents of hate & ignorance,” she wrote, of an experience that exactly mirrored my own.
The experience left me embittered and depressed for days. Is this the non-racial South Africa of which we’ve all dreamed, and for which so many fought? A country in which misunderstandings – and perhaps even deliberate obtuseness – is enough to reignite racial divisions and animosity?
That racism remains an inflammatory issue is indisputable. That Malema intended to wound with his insistence on singing the old struggle song, “Shoot the boer,” is hard to dispute. And that it is no less hateful when a public figure in the ANC Youth League whips up racial division than it is when some unrepentant racist on the Afrikaans right wing does so is also clear.
Malema’s song was declared to be hate speech by Judge Collins Lamont, ruling in the Equality Court.
A reading of the Constitution shows that he cannot be faulted in legal terms. It is also hard to raise much sympathy for the little demagogue in the dock. However, banning speech is in principle problematic.
Hate speech should attract public opprobrium and condemnation, but ought to be aired in the open rather than festering underground, suppressed by the state. That makes it more visible, and hence easier to combat. Much more importantly, that removes the dangerous power of laws restricting freedom of speech, which are so easily and frequently abused by governments to stifle political dissent or cover up corruption.
However troubling the ruling is so far, it gets worse. If the Mail & Guardian’s reporting on the ruling is correct, Judge Lamont said how words are understood was more important than the intention of the speaker.
That means Lindiwe Mazibuko, I, and probably every single one of us, will someday be guilty of criminal speech. Who hasn’t been misunderstood, or challenged on grounds other than what had been intended?
This precedent is even more dangerous than merely suppressing speech the state considers to be objectionable. The right to free speech means little if it doesn’t protect the right to say things some people would rather not hear. It means nothing at all if it doesn’t even protect the right to say things that are merely misunderstood.
In his magnum opus, On Liberty, John Stuart Mill wrote: “The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”
As we remember the death of Steve Biko on 12 September 1977, which journalists Helen Zille (yes, that one) and Donald Woods exposed as having been caused not by a hunger strike, but by harsh beatings and torture at the hands of the Apartheid police state, it is worth remembering the title of his South African Student Organisation column until his banning in 1972: “I write what I like.”
Biko knew what George Bernard Shaw meant when he wrote: “Any journalist may publish an article, any demagogue may deliver a speech without giving notice to the government or obtaining its licence. The risk of such freedom is great; but as it is the price of our political liberty, we think it worth paying.”
As unpalatable as Julius Malema’s songs may be, we’ll pay a much higher price for suppressing them. DM
Star Wars was the first major film to be dubbed in Navajo.