Knowledge 2.0.
28 March 2017 00:19 (South Africa)
Opinionista Pierre de Vos

Freedom of expression is not black and white

  • 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.

The decision by News24 to turn off the comments option on the majority of the articles published on its website elicited much criticism. One of the arguments advanced by those criticising the decision was that it amounted to censorship and infringed on their right to freedom of expression. But this criticism is based on a simplistic and erroneous view of freedom of expression. No court in South Africa will agree with this view. This is why.

The right to freedom of expression is far more complicated and nuanced than many people would like to admit. There is an intuitive attraction to the argument that the right to free expression is absolute; the notion that “I will die defending your right to say whatever you wish no matter how offensive or destructive it may be”. It is for this reason that many people think they believe it constitutes impermissible censorship whenever anyone makes it more difficult for anybody to have their opinion heard.

Of course, nobody actually believes this to be true – even when they think they do. We all engage in and support actions that limit the opportunity for others to have their opinions heard. Some of us go to court to get Julius Malema to stop singing what we believe is the song called Kill the Boer, Kill the Farmer. Others march to an art gallery to protest against a painting that shows the president with his penis hanging out. Others get very upset when they are called an idiot or a racist and demand a retraction.

When someone refuses to invite a colleague to her birthday party because she thinks the colleague is a crushing bore (admit it, all of us who work with others have such a colleague), she is denying her colleague the opportunity to bore her other guests with her inane chatter. When a publisher declines to publish the manuscript of a completely nutty and anti-Semitic conspiracy theorist who argues that the world is run by a Jewish money mafia, the publisher is denying that person the opportunity to have his views widely disseminated.

When a lecturer denies a student the opportunity to use the lecture time to canvass votes for her Student Representative Council election campaign he is limiting the opportunity of that student to have her views heard by the class. And when the owner of an art gallery declines to exhibit the paintings of an artist because the work depicts racist, sexist or homophobic stereotypes or because it is even more kitsch than the kitschiest painting ever produced by Vladimir Tretchikoff (see the illustration of The Dying Swan below), that gallery owner is limiting the opportunity of the artist to have his work viewed by (and sold to) the wider public.

pierre-de-vos-trechikoff.jpg

Yet, I am not sure even the most ardent free speech activist will argue that the people in the examples referred to above are engaging in impermissible censorship and are infringing on the free speech rights of those who were denied the opportunity to communicate their views or artistic ideas to a wider audience.

There are two reasons for this.

The first is that when we judge whether the right to freedom of expression is being infringed or not, we take heed of the nature and extent of the limitation. The more drastic the limitation, the more likely we are to judge it constitutionally problematic. A law that prohibits certain forms of expression (and imposes a criminal sanction to enforce the prohibition) is far more likely to be judged to be an impermissible infringement of the right to freedom of expression than a decision by a private individual not to provide a boring colleague with a platform to natter on at a dinner party.

The more drastic the limitation on the freedom of an individual to impart and receive information, the more likely it will be judged to be an impermissible limitation on the right to freedom of expression

This is why a decision by News24 not to automatically allow people to comment on the articles published on its website can hardly be said to be a dramatic and unjustifiable infringement of anyone’s right to freedom of expression. There is no law that prohibits the public from creating their own blogs to comment on the articles published on News24. We do not live in China either, which means the state does not block citizens from accessing Facebook and Twitter and any member of the public is therefore free to comment on News24 articles on these social media platforms.

Of course, the scaling down of the News24 comments section does have a marginal impact on freedom of expression in the sense that fewer people will probably comment on News24 stories and these comments will probably be read by fewer people. But given the fact that in an inherently unequal world it is in any event impossible for every person to have his or her opinions widely circulated, and given the fact that many of those who had access to the News24 comments section have other ways to express their opinions, the impact on freedom of expression can, at best, be said to be marginal and inconsequential.

Even when News24 allowed comments on most of its articles, only a small group of South Africans had the requisite resources (regular access to the internet; a passable command of English; time and energy; the outrage disdain and hatred seemingly required for the task) to comment on these articles.

Which alerts us to the fact that even in a country where there are very few legal limits on free expression, there is not ever a truly free flow of information as not all members of the public are equally free to have their voices heard or to access the views of others.

Moreover, almost all media outlets in South Africa (including the SABC) have an urban and middle class bias. This is not because members of the media get together late at night over glasses of cheap wine or bottles of Carling Black Label (although I am told they often do get together in this way) to conspire over how to censor or present the news. Instead, this occurs partly because media outlets need to make money and have limited resources to report the full spectrum of news and opinion. Additionally, every journalist brings his or her own life experiences, assumptions and concerns to the job, which influence which stories are reported and how these stories are reported.

A second reason why few people would be troubled by the limitations on freedom of expression I highlighted in the examples above, is that none of us value all forms of expression equally. I know of no person who values all forms of expression equally and believes that all forms of expression must be protected equally.

Here it is important to note that the South African Constitutional Court identified two important functions of the right to freedom of expression in a democracy. In South African National Defence Union v Minister of Defence and Another the court held that freedom of expression: “lies at the heart of a democracy. It is valuable for many reasons, including its instrumental functions as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally.”

In other words, expression is especially valuable when it contributes to democratic dialogue and when it enriches an individual’s life by exposing him or her to information, ideas, art and entertainment that help him or her to make meaningful life choices. (Sadly, far too few people realise the degree to which their lives will be enriched by reading novels.) The more likely the expression is to fulfil one of these functions, the more problematic it will be to discourage the production and consumption of these forms of expression.

Of course, reasonable people may well differ sharply about which forms of expression are more valuable and which less valuable and there will never be consensus about this in any free and diverse society – which is why it is only in extreme cases that it would be permissible for a democratic state to place an outright ban on any form of expression. However, no one could plausibly argue that all forms of expression are equally valuable and equally in need of protection.

For example, personally I do not think there is much value in works of art or novels that endorse and perpetuate racist, sexist and homophobic stereotypes. While I would not endorse a law that prohibits individual artists from producing such works of art, I would have no problem with a decision by an art gallery (or a university) not to acquire or display such works of art in its public spaces. After all, there is sometimes a huge difference between what one has a right to do (make art that perpetuates boring and obnoxious stereotypes) and what the right thing is to do (not to be a complete asshole).

I am sure some of the individuals who commented may disagree, but whenever I made the mistake of dipping into it I found the comments section on News24 of very little value. It seldom contained information or insights that would enrich the life of even a half-sane person by exposing him or her to provocative, brave, nuanced, intellectually challenging, strange or surprising opinions or analysis. Nor did it often enhance democratic dialogue by creating a space where people could argue in any meaningful way about South Africa’s political or economic future.

Instead, the News24 comments section provided a platform to a small group of embittered and angry (if only half-literate) racists, sexists, homophobes and bigots of every imaginable stripe to vomit a stream of invective onto the screen while being very pleased with themselves for doing so.

It is exactly because the limitation on free expression is so marginal and the value of the expression so slight, that no court will ever find that the decision not to allow comments on most News24 articles constituted an impermissible infringement on the right to freedom of expression.

Which does not mean that those whose life only had meaning because they could express their prejudices on News24’s website, are now silenced. Far from it. If they have no other option, they would at least be welcome to post comments on the Facebook page of Afrikaans 'singer' Sunette Bridges, whose songs – ironically – are the audio equivalent of the worst Tretchikoff paintings. 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.

Get overnight news and latest Daily Maverick articles





Do Not Miss

Daily Maverick has suspended comments on the site. Until the interwebs figures out a better way to deal with the naughty kids in the class, the space for your comments is on our Facebook page and the Twitterverse.

Alternatively, you are welcome to send a letter to the editor.