Testing the limits of free speech

June 8th, 2009

A recent cartoon in the New Yorker had a mother talking seriously to her daughter: “Words,” she said, “have the potential to do real harm and cause real pain. Let me tell you some of the most useful ones.”

It is certainly an appropriate time to be asking about the limits of free speech, and the right of people to use words and phrases which hurt others, and which may upset their sense of dignity.

- Premier Helen Zille’s sharp remarks about President Jacob Zuma’s sex-life raised a stir. Nobody questioned the accuracy of what she said, which in fact went no further than things said by a number of newspaper commentators, but there was clearly a view that it was disrespectful of a newly elected president.
- The response to this from MK veterans, who threatened to make the Western Cape ungovernable, has also raised questions about the appropriateness of threatening of violence and disruption in a democracy and the lack of respect for an opposition leader.
- President Zuma is suing the cartoonist Zapiro for his depiction of him during and after his rape trial. The cartoon which drew the most ire was Zapiro’s down of Zuma about to molest a woman representing justice, as she is held done by his colleagues in the ruling alliance. It was a shocking image, a cartoon which took one’s breath away, and it infuriated many people. But what seems to irritate some people even more is the showerhead Zapiro attached to Zuma’s head to remind us all of his courtroom faux pas when he said that he took a shower after sex to prevent contracting Aids.
- ANC spokesperson Jessie Duarte is on record as saying, “Exerting the highest possible punitive measure is important to ensure that the person who is stamping on someone else’s dignity knows this is not okay. It is not okay to continue to draw Jacob Zuma with a shower coming out of his head and depicting him as a rapist when he is not a racist.” She is not saying she does not like or approve of this depiction, that she would like him to remove it, she is saying that it is not acceptable. These are tough words with a threatening undertone and are likely to have a seriously chilling effect. When you are speaking on behalf of the ruling party in this way, you are delimitating what the government would like to see and not see in the public arena.
- During the election campaign, youth leader Julius Malema said some outrageous things which challenged many people’s notions of what was decent public disourse.
- And of course this was a week in which the public broadcaster could not bring itself to carry a documentary which asked questions about satire and its place in our society, let alone actually carry such satire.

These incidents raise important questions about what kind of political debate we want to have in this society, what level of rhetoric we can withstand given the tragedies of our history, the newness of our democracy and the ongoing battle to defeat this country’s racial heritage. More than that, it raises central questions about what kind of society we want to have: is it one of furious and angry debate and exchange, or one of genteel discussion with very clear rules and limits? Is it one where the dignity of person and office is of paramount importance, or one where we feel free to rib and mock and even denigrate people who hold high office? We need to ask, when does provocative, challenging and vigorous language and imagery cross over into harmful and dangerous behaviour? When does a person command respect and when do they lose it?

Let me start by saying that our constitution is quite clear on what the limits of expression are. Free speech and media freedom are explicitly protected unless it is hate speech, and hate speech is narrowly defined as well. It must jeopardise public order through incitement of violence.

What is less clear is when this right clashes with an individual’s right to dignity and privacy and the courts will have to balance these things against each other.

But I am not here just to make a legal argument. For I think that we also have to ask ourselves what kind of society we want and what kind of public debate do we want. We cannot just ask what kind of language and imagery is legal, but also have to ask if it is appropriate and desirable, whether it contributes to or detracts from democracy. It may be legal to depict Zuma as a rapist, but is it fair and is it desirable? Does it contribute or harm our national political discourse? Does it strengthen or weaken our democracy? Those are ethical and moral, rather than legal questions.

I want to deal with these questions by considering two of the best-known cases which have tested our notion of tolerance, globally and locally, and which stand in interesting contrast to each other.

The first was the famous Danish cartoons of the Prophet Muhamed. You will recall that a Danish cartoonist deliberately and provocatively caricatured Mohamed in a way that was almost certain to offend religious Moslems. Indeed it did, leading to violence, loss of lives and accusations and counter-accusations of a lack of tolerance.

On the face of it, those cartoons were clearly undesirable: they provoked pain and hurt and even death. But was the cartoonist to blame for this, or those who could not tolerate the cartoonists views and who resorted to angry violence to sort it out?

There was no room here for peaceful disagreement, for each party to allow that they had different views of Muhamad and that these could live side by side. That is the result of the notion of blasphemy, which does not allow for any criticism or disrespect for holy figures. It is not a question of whether the cartoons crossed the line, as the line prohibits any such depiction of Muhamad.

I must admit to be somewhat bewildered by this notion of blasphemy. It seems to me that holy figures, and the Almighty in partcular, can look after themselves; they are not so weak and vulnerable that they cannot take a bit of ribbing.

But it was the context of the cartoons which was all-important. What made me uncomfortable was the realisation that the cartoonist was ridiculing the weak. They came at a time when Muslims felt persecuted and picked on for their religion and the association of them and their beliefs with violence and terrorism. This was particularly true in Europe and there were particular sensitivities arising from the way Muslims became the dangerous “other” in public consciousness. The cartoons seemed to reinforce a crude and dangerous view of Islam and its adherents in a way that was quite unhealthy and even dangerous. In my view, neither the cartoonist nor those who used it to promote violent responses came out of this well.

The second case I want to consider was one I have already raised: Zapiro’s depiction of soon-to-be-president Zuma raping justice, or rather a white, feminine representation of justice.

Here Zapiro is taking on a person who has chosen public life and the accountability and exposure which goes with it. It is a person who has power and seeks more, someone putting himself forward for election. And such a person is a fit and proper target for cartooning, someone who might expect for satirists to try and take down a notch or two.

At the time, I wrote that I did not like the cartoon and found it quite distasteful, but I would defend Zapiro’s right to draw and publish it. His job is to provoke us, to make us think again about things, to challenge assumptions, to take a dig at figures of power and authority - and the cartoon did this very effectively, there can be little doubt. It got us all talking, and that is not a bad thing.

The big difference, I believe, is that when words and images are used as weapons, it is very different to deploy them in going after the weak and vulnerable, and reinforcing dangerous stereotypes around them, from poking fun at the rich and powerful.

It is striking to me that laws which protect dignity and privacy are almost always used to protect the powerful, and not those who most need this protection. When does an ordinary person get to sue a newspaper for invading their privacy, or for using a photograph which is invasive and hurtful? On the other hand, how often is it used by ministers who are criticised and large corporations and companies who are subjected to scrutiny.

My lawyer friends tell me that the law has to apply equally to everyone, and laws on privacy and dignity have to also protect the rich and powerful. My problem is not that it protects them but it so seldom protects those who are most vulnerable.

One has to bear in mind why we have freedom of expression. It is not because we like it, or it is a nice-to-have. It is because it is seen to serve democracy. And it does so in two ways: it is a part of ensuring we have an informed citizenry equipped to make decisions within the democracy; and it is seen to allow for the media and other institutions to play a watchdog function – to temper the power of the state and those who control it by subjecting them to public scrutiny. In other words, we have freedom of expression to serve the public good.

So, when we infringe on someone’s dignity, as Zapiro probably did, or we invade someone’s privacy, as the media does when it reports on Zuma’s marriages, it is justified on the basis that there is an over-riding public good. The value to society of knowing these things about those to whom we give power and authority is greater than the value of their dignity and privacy – that is the decision we are making.

So the question one has to ask is, when the Danish cartoonist drew offensive pictures of Mohamed, did it serve the public goo?. I think it is clear that, having led to death and destruction, it did not.

When Zapiro draws a shower above Zuma’s head to remind us of the foolishness of something he said in the past and to highlight the vulnerability of our leadership, is it serving the public good? I believe so. Jesse Duarte may be right that it is not altogether fair, and it certainly is undignified, but it may still serve the public good.

At the end of the day, therefore, when we as journalists invade people’s space and challenge their dignity, I believe that is the question we have to ask and answer: does it clearly and unequivocally serve a greater public good? Sometimes – in fact, quite often – the answer is not as clear as in the two examples I have given. Sometimes it is harder to answer that question. The fact is that once you have an open society, you have to put up with an awful lot that can be ugly, unpleasant, intrusive, distasteful and even harmful. It can include pornography, celebrity gossip and such-like. The cost of free expression is real, and we should not hide that fact.

Then I believe we have to remind ourselves of this: what is more harmful, what is more dangerous: a society with too much openness, where there are infringements of privacy and dignity, where there is, for example, pornography which degades women; or a society with too little openness, where there is less scrutiny of public officials and much less of a watchdog function played by media and other non-governmental institutions.

I think it is clear, from what we have seen in many countries, including our own, that secrecy destroys democracy; openness and freedom of expression carriy a price, but it is a price that is worth paying.

*This talk was delivered at Beit Emmanuel, May 29, 2009

Entry Filed under: Anton Harber, Media regulation