Banned by 9 major religions and counting
19 August 2017 02:01 (South Africa)
Opinionista Pierre de Vos

Tough luck, Mr Hofmeyr

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

Steve Hofmeyr and his supporters claim that a puppet called Chester Missing has infringed on his right to freedom of expression by challenging his racist statements and by challenging his sponsors for supporting his racism. They do not seem to understand that your right to freedom of expression does not always give you a right to freedom from the consequences of your expression.

The protection of freedom of expression is a prerequisite for the proper functioning of a democracy. When the state or individuals use the law to suppress the free flow of ideas and information needed to make informed political choices, the quality of the democracy is diminished. We are then forced to make partially informed or uninformed decisions about whether to vote and if we vote for whom to vote.

A world in which books, movies or songs are banned; comedians are censored; prophets, artists, writers or poets jailed; academics gagged; critical voices silenced; or cultural conformity imposed through court orders or threats of violence is a world in which the human dignity of every person is not respected. This is so because our agency as human beings is diminished when we do not have at least the possibility of being exposed to life-changing forms of artistic, religious or intellectual expression.

The problem with these lofty-sounding principles is that not all forms of expression have equal value. But it is difficult to distinguish between forms of expression that enhance democratic debate and enrich our lives, and forms of expression that have little or no value or harm people and sabotage democratic debate.

For this reason people who are strong supporters of freedom of expression often claim to endorse the view (attributed to Voltaire) that “I may disapprove of what you say, but I will defend to the death your right to say it”.

Underlying this view is the assumption that we cannot trust anyone or any institution to decide impartially and fairly what types of expression are worthy, enriching and democracy-enhancing, and what types of expression have little or no value. We therefore need to protect all types of speech in the hope that democratic deliberation in the so-called “free marketplace of ideas” will help us to establish the “truth” about a matter.

But if you scratch below the surface you soon realise that this view of freedom of expression is false. The degree of support we offer for the right to free expression of others depends partly on whether we believe the expression has value or not; whether it forms part of a legitimate debate or whether the speech is so objectionable that it extends beyond what we are prepared to defend.

We accord different value to different types of expression and grant different levels of protection to the expression depending on the value we attach to it. We value some forms of expression so much that we actively promote it and jealously guard the space within which it can be expressed. We attach little or no value to other forms of expression and do not mind if these ideas are not given wide publicity. Other forms of expression – inciting people to commit mass murder, or child pornography, for example – are so objectionable that we have no problem in having these ideas suppressed.

We may claim to be prepared to defend all views to the death, but we lie when we do so. We all tolerate different kinds of expression to different degrees depending on our political and ethical commitments. While we may defend some views vigorously, we will defend other views more tentatively while we will be prepared to have other views censored entirely.

Let us look at a few examples to illustrate this point.

Very few South Africans will vigorously defend and actively seek to provide a platform for the views of paedophiles who argue for the legalisation of sex with young children. This is so because as a society we have decided that adults who force children to have sex with them harm those children – we do not need further debate on the issue to decide whether this is true or not.

While some of us might, at a push, defend the right of paedophiles to state their views without being arrested or censored, few of us will not object if we discover Pick ‘n Pay or Landrover is sponsoring the paedophile’s activities. Those who claim that the right to free speech of the paedophile is being infringed by those who ask sharp questions of Pick ‘n Pay and Landrover for sponsoring the paedophile, will reveal that they believe reasoned debate about the value of paedophilia is possible and desirable.

Similarly, in a democratic society based on the value of human dignity and equality the views of a racist, sexist or homophobe might similarly be legally tolerated while also not actively being promoted or accepted. This is because most of us do not believe that there are two valid sides to the argument. If you are a bigot who believes that black people are inferior to white people most of us think your belief has no value in a democracy – arguing about it would only give credence to the bigotry.

This means that those who object to targeting Pick & Pay and Landrover for sponsoring Hofmeyr are saying that while they might not agree entirely with Hofmeyr they are relatively tolerant of racism and bigotry and believe that there is a valid argument to be made in support of the contention that black people are inferior to white people. This is a political and ethical choice (in my view a despicable choice, it must be said) which implicates Hofmeyr’s defenders in tolerance of bigotry.

Defending free speech is not always value neutral.

The same principle applies to those who deny the Holocaust or argue that the Nazis did a great job by exterminating six million Jews. As a society we have decided that there is no value in debating whether the Holocaust occurred or whether the mass murder of the Jews was a good idea. Why debate something that is so obviously evil – it will just give credence to the disproved and harmful views of a few lunatics? We may or may not criminalise Holocaust denial, but few of us are going to champion the rights of denialists to make money out of their hatred and bigotry from sponsorships by private companies.

Some forms of expression – expression that is defamatory or contains hate speech, for example – are also regulated by law. Few if any of those who say they will defend to death your right to have your say have ever defended to the death the right of everyone to defame others or to incite violence against them.

These examples illustrate that we tolerate or protect different types of expression to different degrees. Our Constitution protects speech (apart from narrowly defined forms of hate speech), which means it would seldom be constitutionally valid to use the law to censor or suppress expression. That is why no one has used the law to censor Hofmeyr’s racism.

But there is a huge difference between using the law (with the full might of the state behind it) to silence someone and for private individuals to challenge the speaker and those who support him or her financially or otherwise about their views.

When the speech is of a kind that has little or no value for the democracy (and I contend that racism and bigotry has little value for a democracy), it may be tolerated without being accepted and promoted. When a large company accepts and promotes such bigotry and racism, that company should therefore not be surprised if it is called out about it and pressurised to stop its support for speech that is both bigoted and racist.

There is another reason why those who claim to be prepared to defend to death the right of everyone to say what he or she wishes, are talking nonsense. This is because the “free marketplace of ideas” – on which this notion depends – is of course a ridiculous fiction. Not all views are treated equally in any society or by anyone and none of us give all views a fair and equal chance to be heard.

The free marketplace of ideas is not only a fiction because as a society we have already judged some types of expression as worthless or positively harmful and therefore not worthy of protection or worthy of only minimal protection. It is also a fiction because there cannot be free and fair competition of ideas in a capitalist society.

Ideas can only compete freely with each other if people are exposed equitably to these ideas and are given a fair opportunity to consider them. But many worthy (and many not so worthy) ideas are not given a fair opportunity to be heard because these ideas threaten the status quo or is considered harmful to society.

How often have you heard the views of a paedophile arguing in favour of sex with small children broadcast on television? Not that often, I would guess, because the “market” has decided to censor those ideas because they are viewed as harmful to society.

Moreover, where those who distribute information (via radio, television, in the print media, or on internet websites) have a vested interest in retaining the status quo they will seldom promote ideas that challenge the status quo. And for commercial reasons, the media often tone down criticism of their advertisers or of the politicians and political parties their customers support. Financial considerations play an important role in determining what ideas we are exposed to and in what way we are exposed to these ideas.

Think about this: Pick ‘n Pay is not going to allow you to take up position in one of its stores to tell customers that Pick ‘n Pay must be boycotted because it supports an Afrikaans music festival where a racist “artist” (I use the word expansively) will be performing. And will the local shopping centre in Sandton allow the Economic Freedom Fighters to hold a rally in its food court to drum up support for the next election? I suspect not.

Those who defend Hofmeyr on the basis that by targeting his sponsors we are censoring him, are really saying we are distorting the free marketplace of ideas. We are exploiting the fact that big companies want to make a profit in order to limit the extent to which bigoted and racist views are given a platform in the marketplace.

This is a nonsense argument as there is no free marketplace of ideas to start with. A company supports an “artist” because it believes the sponsorship will enhance its brand. It will never support ideas – say the ideas in support of paedophilia – that it knows will harm its brand. By alerting the company to the damage caused to its brand by its support for bigotry, we are helping it to make the kinds of choices it makes every day. Besides, no one has a right to make a profit out of his or her bigotry and racism. I have checked the Constitution and can confirm that no such right is contained in it.

So, tough luck, Mr Hofmeyr. The more racist nonsense you talk, the less likely it is that you will retain any sponsors, and the more likely it is that you will not be invited to appear at festivals. If you want to make money out of your bigotry, you might have to record another karaoke CD. I am sure there are still some sad people out there who support you and will buy your records. DM

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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