With the decision of Cricket SA to force all Protea players to “take the knee” and Quinton de Kock’s stance not to bend, the issues of free speech and the right of individual dissent now spillover from the Twittersphere to the playing fields. But the issues at the heart of this have a long history, here and across the world.
In the early 1980s, SA was not the ideal place in which to engage in debates about free speech, for the principal reason there was little allowed.
Kelsey Stuart, doyen of media lawyers of the time, memorably defined editing a newspaper during apartheid as akin to “walking through a minefield blindfolded”.
It was very easy to detonate an explosion by falling foul of the emergency rule of the time, which proscribed all manner of free expression and personal liberty. And many, from shuttered newspapers to detained journalists, were grizzly exhibits for the perils of expressing opinion contra the stifling party line dictated by a regime at war with its own citizens and out of kilter with the precepts of 20th-century democracy.
There were, however, enclaves of exception to the muzzle of the state: parliament, while hardly representative, allowed opposition politicians to probe the state clampdown; brave, maverick journals such as the Weekly Mail and Vrye Weekblad published detail of state-sanctioned terror; and English-speaking universities were islands of nonconformity and often radical opinion.
It was at one of these islands, Johannesburg’s Wits University, where I had been a student and later a lecturer in law, that I found myself learning some interesting lessons in prosecuting an agenda in favour of free speech.
In early 1983, doubtless seized by a desire to educate and entertain, the Law Students’ Council hosted a debate on the topic: “Do Nazis have a right to free speech?”
The evening commenced with a documentary movie on the infamous Skokie march by the American Nazi Party in Illinois in 1977. The far-right-wingers decided this small, largely Jewish town, populated by many survivors of the Holocaust, was the ideal ground zero. It would test the US Constitution’s promise — embedded in the first amendment — that “Congress shall make no law abridging the right of free speech … or the right of the people peaceably to assemble”.
In addition to the sensitivity of place and issue, what lifted the Skokie march into international prominence was that the impeccably liberal American Civil Liberties Union (ACLU) and its Jewish lawyer, David Goldberger, decided to defend the rights of the American Nazi Party to march, much to the outrage of many ACLU board members.
Back at Wits, I decided to argue the Goldberger position for two reasons: first, I strongly believed then, as now, that “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us, but freedom for the thought that we hate”. That famous dissenting view was offered in 1929 by justice Oliver Wendell Holmes in United States v Schwimmer.
My second reason was an eye on the future. With my audience that evening, I had no idea when the dark night of apartheid would end. But what would replace it was also far from clear. And quite how open the new SA would be for dissenting opinions was also occluded. After all, Wits and the University of Cape Town (UCT), both apparent and rare bastions of free speech at the time, would soon see fit to cancel the lectures of visiting Irish academic and politician Conor Cruise O’Brien who dared defy the academic boycott of SA. But the seeds for this clampdown on contrarian views had already sprouted in both places. Today it is pervasive and enjoys the title of “deplatforming”.
I did not reckon on my audience or my opponent that night, however. Arguing the contrary position was a young student, David Unterhalter. I discovered that evening what lawyers and judges would soon encounter and what the Judicial Service Commission (JSC) more recently clearly feared: Unterhalter could persuasively and cogently argue from first principles and advance with persuasiveness a position that every principle must yield to other imperatives, from the sensibility and sensitivity of the community to the weighing of other principles, such as hate speech. He won the audience vote that evening. The ACLU also eventually lost the case on behalf of the American Nazi Party.
However, when South Africans came around, some 10 years later, to writing their own constitution, the drafters took a midpoint between unfettered free speech, which it offered in section 16(1), and its limitation in 16(2). But even the limitation was carefully circumscribed. In the brave new world of our democracy, the limits of free speech would only be allowed if the expression involved “propaganda for war; incitement of imminent violence; advocacy of hatred that is based on race, gender, or religion, and that constitutes incitement to cause harm”.
Note the double limitation on the restriction: free speech is only disallowed when it advocates hatred and such hate speech could result in harmful conduct.
On the South African test, the Skokie march would likely be disallowed. But what clearly is constitutional is the now controversial Gareth Cliff Burning Platform interview which aired on Thursday. This latest eruption occurred just six days before the Cricket South Africa saga underlined its salience.
There is at least one reason to be grateful for the attention the interview received. It inserted a spark of interest into a thuddingly dull local election campaign. Beyond that, it offered more questions than answers for a country in trouble, indeed imperilled, and far adrift from its constitutional moorings, so hopefully anchored back in 1996.
The Cliff interview featured DA leader John Steenhuisen and Mudzuli Rakhivhane, a representative of the One South Africa movement. Steenhuisen’s outfit is fielding 4,392 candidates in Monday’s poll; the One SA Movement has no direct candidates, but is backing, apparently, 300 independents. Quite what these two politicians were doing in the same debate was somewhat unclear, but on the basis that minority views should be aired, no harm done.
But a great deal of harm was done beyond the “burning platform” when Cliff, who specialises in controversial and abrasive comment, dismissed Rakhivhane’s daily experiences of racism as “unimportant and irrelevant”. This in the context of polls indicating that, for most South Africans, racism was a 4% concern vs 96% of black South Africans who cited jobs, education and crime as the most “burning” issues.
Cliff was roasted on social media, though not, for once, by the government, and platform sponsor Nando’s pulled its sponsorship after a Twitter feeding frenzy of real and faux outrage ensued.
Steenhuisen was also singed, but his offence was nothing he said, since he offered no opinion on the exchange. It was his apparent facial expression and/or failure to intervene which led to his denouncement. Quite extraordinary, though whether it moves one vote one way or another must be open to doubt.
Cliff in turn was accused by some commentators of not allowing his interviewee a “safe space in which to share her experiences”.
But the real controversy has now moved on. Nando’s, acting like a big bank in a crisis, adopted the adage, “If you are going to panic, make sure you panic first”, and decided withdrawal was the best form of valour.
Nando’s will also have to abandon its cheeky chappie and irreverent brave-chick posture featured in its hitherto edgy adverts.
In the Daily Maverick, Kabiso Kgobisa-Ngcaba, with whom I work professionally, accused the grilled-chicken purveyor of perpetrating an ‘‘unworthy act of corporate cowardice from a normally bold brand”.
On Politicsweb, Phumlani Majozi, a senior fellow at African Liberty, headlined his opinion piece “Shame on Nando’s” for falling captive to “cancel culture”. He added Cliff to his list of “my national heroes”. Appeasement, then, clearly comes with its own price tag.
Of course, Nando’s is a private-enterprise company, quite entitled to advance or withdraw its sponsorships as it determines in its commercial interests, which it no doubt carefully weighed before it defunded The Burning Platform.
But the incineration of the public space is another matter entirely. Since I cut my free-speech teeth in the cauldron of Wits University debates a long time ago, I found a recent update of how universities, with other bastions of civil society, should position themselves in the treacherous waters of demanded conformity, stifling political correctness and the new right not to be offended.
In 2016, Robert Zimmer was president of the University of Chicago, situated not far from the site of the Skokie march.
He wrote a welcome letter to new students there couched with a warning: “Our commitment to academic freedom means we do not … cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual ‘safe spaces’ where individuals can retreat from ideas and perspectives at odds with their own.”
This sort of intellectual toughness is one reason Zimmer’s university has produced no fewer than 90 Nobel prize-winners in its storied history.
The example might be worth emulating if we want to build a country of new achievers, not just a roll-call of victims.
Leon, a former leader of the opposition, now chairs Resolve Communications.
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