Free Speech General Politics

The disappeared ANCWL post on Zapiro

Earlier today, the ANC Women’s League released a rant about the latest Zapiro cartoon, which I won’t reproduce here for fear of being shot. But the rant has now disappeared from their website, although you can read Jackson Mthembu’s (typically reflective) opinion if you like. I happened to have a browser page open to the rant, so it’s posted below. I took the liberty of making a couple of corrections to it.

ANCWL condemns latest Zapiro excuse for satire

6 July 2012

The ANCWL condemns in the strongest possible terms the disgusting and completely distasteful depiction of the President in the latest Zapiro cartoon. David Jonathan Shapiro has taken his attempts at satire too far. He clearly does not understand the reasons for the public outcry over “The Spear” and why it was hurtful to so many people. The cartoon is an insult to those who suffered under the indignity of Aapartheid and a slap in the face to real efforts for advancing the social cohesion of our fragile society. Shapiro is showing his disregard for the healing process which is currently underway in South Africa after the divisive era before democracy.

The furore created by “The Spear” is a clear indication that we still have a long way to go. The Zapiro cartoons rely on their shock value to make an impact, but by calling the President of this great nation a “dick” is unacceptable and the WL would like to know who the we he is referring to in the cartoon actually is, as the majority of the population who voted for the PresidentANC clearly did not think this of Zuma. This cartoon is a clear attempt to fuel divisions in our society and should be condemned by all proud South Africans, regardless of race or political affiliation.

The right to freedom of expression is a right enshrined in the Cconstitution, a constitution pioneered by the Multi-party Negotiating Process and Constitutional AssemblyANC, however this right is not absolute and one must always remember a founding principale of our constitution is the right to human dignity, which was denied to so many during apartheid. The cartoon like the painting before it, is a violation of the President`s right to dignity and an insult to the people of South Africa. It serves no public interest whatsoever and was clearly just an attempt to insult and defame the President further.

Zapiro has gone from being a sometimes controversial, yet relevant satirist to a sensationalist arbiter of attentionseeking properagandaer released purely for its shock appeal, and serves absolutely no purpose in society. DavidJonathan Shapiro has declared a hatred for South Africans with this insult to the President, of not only the ANC but the entire country. This disturbing cartoon was released the day the President will be addressing a massive delegation of women from across all sectors of society who are deeply disgusted by this terrible portrayal of our country’ies President.

Issued By:
Troy Martens (on behalf of the ANCWL)
ANC Women`s League National Spokeswoman

Contact: 078 120 9880
e-mail: [email protected]

Troy Martens
ANC Women`s League National Spokesperson
078 120 9880
011 376 1055
[email protected]

P.S. A (somewhat) corrected version of the statement has now been released. ANCWL CONDEMNS LASTEST ZAPIRO EXCUSE FOR SATIRE

Free Speech Morality Politics

Did the #Zumaspear bullies win?

Here’s Ferial Haffajee explaining why she took the decision to remove images of Zuma’s Spear from the City Press website. Peter Bruce, editor of Business Day, said (on Twitter) that he would never have published it in the first place (on grounds of taste). That I can understand, and even agree with – an editor makes choices as to the character of their publication, and it would be a legitimate choice to never display this painting. (Today, Bruce argued that Haffajee should remove the painting.)

Zuma’s Spear is not obviously in the public interest, it reveals nothing we don’t already know, and it certainly always seemed likely to offend – perhaps for little gain. And causing offence just for the sake of doing so is not (to my mind, at least) a laudable action.

But Haffajee published a photograph of the painting in the course of covering the Murray exhibition – it was one of many paintings reproduced in the City Press. I’d imagine that she knew it would cause offence, even though she indicates (in the first link, above) that she had no idea the rage would be this extreme. She should be free to do so, just as Murray should be free to paint disrespectful images of the President. Having said that, I’d previously argued that the freedom to do something doesn’t necessarily mean that it’s the right thing to do.

Once one has “done it”, though, you’ve chosen to take a stand. In this case, a stand for free speech, and a stand that entails asserting that differences in cultural sensitivities and norms are subject to a Constitutional override which allows for us to offend each other through artworks such as Murray’s. And here’s the problem regarding the decision to take the painting down: it’s impossible, now that that choice has been made, to separate the possibility of it being premised on cultural sensitivity (which can often be a good thing, even though it’s sometimes not), or whether it’s simply another instance of allowing the hypersensitive to win the argument, simply because they shout louder than everyone else, or threaten you with violence.

City Press staff have received death threats. Religious idiots have called for the artist to be stoned. So now, as much as Haffajee was perhaps mistaken in ever choosing to run that image, her self-described “olive branch” is (in part, and perhaps in large part) a reaction to intimidation, and fear of reprisal. Some have asked about the apparent inconsistency of the Goodman Gallery (under different ownership, note) refusing to display an earlier Murray work (pictured above), and Haffajee’s previous decision to not run content that Muslims would find offensive. But  note what’s happened – the inconsistency has been resolved.

In the case of offending the religious, a pre-emptive decision was made that the situation was too volatile, and the physical threats too real, to ever run the offensive material. Haffajee and the Goodman Gallery made the mistake of thinking that our democracy could handle some robust debate around cultural norms, freedom of speech, and whether it’s okay to show disrespect for the President. The reactions to this (by those offended) ended up being entirely consistent, and have forced a consistency in response by those who caused the offence. I guess they’ve all learnt their lesson now – Haffajee and the Gallery now know of yet another topic that isn’t open to debate, and others have learned that it remains true that you can win arguments by threatening violence.

I realise that Haffajee had a difficult choice, both in running the painting and in retracting it. And I can understand why she chose to remove it from the website. An extract from her explanation reads as follows:

I hope we are not crafting a society where we consign artists to still life’s and the deep symbolism of repressed artists like China’s Ai Weiwei in China. A society where we consign journalism to a free expression constrained by the limits of fear. This week society began the path of setting its mores on how we treat presidents in art and journalism; what is acceptable and what is not.

This could be interpreted in various ways – let’s hope that in noting how we’ve begun to set these mores, she realises the role this explanation will play in doing so. I’m sure she does, and that she (and all of us) will continue to probe the boundaries of free expression in light of cultural (including religious) sensitivities – rather than allow the latter to gradually swallow the former. Removing the painting was motivated in large part by threats, and to some extent by wanting to make a contribution to nation-building. Those who issued the threats – including Zuma, Mthembu et al, should think carefully about the nation they’re helping to build through bullying others into silence.

Daily Maverick Free Speech Morality Politics

Zuma’s Spear and egalitarian anti-racism

As submitted to Daily Maverick

On Sunday, Zama Ndlovu (@jozigoddess) tweeted “I do hope someone will write something about how whiteness should look at that piece of ‘art’. To be fair and stuff.” I’d hope that nobody does, just as nobody should write about how “blackness” should look at Brett Murray’s “The Spear”. Because both approaches would be prescriptive in dictating that it’s race which should determine one’s attitude to dignity, and which sorts of harms should be taken seriously by our courts.

It’s too late, of course – many pieces were published over the weekend by writers of various races, with some of the writers explicitly foregrounding their blackness or the putative blackness of their analysis. More important, perhaps, is that they foregrounded the whiteness of the artist – and the whiteness of thinking that it’s permissible to depict Jacob Zuma with his penis hanging out of his trousers.

This is the crux of the controversy. Not only freedom of artistic expression competing with a Constitutional right to dignity, but the clash of cultural norms that Murray’s painting has highlighted. As with Yiull Damaso’s painting of Mandela’s autopsy, those who think it inappropriate to depict Zuma’s penis talk about disrespect, and appeal to the communitarian perspective that holds that we are responsible for upholding each others’ dignity. Those who think the painting permissible tend towards the more liberal perspective, arguing that we don’t have the right to not be offended.

These responses are not reliably correlated with race – black columnists have been among those arguing that Zuma has presented himself as a philanderer, and therefore that he shouldn’t be surprised if we end up perceiving and depicting him as one. But I haven’t seen a white columnist arguing that The Spear is insensitive enough to merit an urgent interdict for its removal from the Goodman Gallery and the City Press.

The absence of this sort of critique from white writers feeds into the narrative of racism, whereby Murray’s painting becomes emblematic of a colonial gaze, where black men are savages, ruled by their passions rather than by intellect. That sort of reaction, though, is sometimes self-serving and inconsistent. I can’t dispute that it’s sometimes a justified reaction – there are surely instances of artists and writers who have the view that whiteness has some sort of monopoly on sophistication, with blackness representing some form of primitivism.

But the demand for us to respect cultural preference in these matters is self-serving in the sense that it forestalls any possible debate or reflection on the merits of the artwork. Not the merits in terms of quality and originality, which are a separate matter, but the merits in terms of the discomfort and self-reflection the artwork could inspire. The easiest way to justify poor arguments or mistaken ideas is to refuse to discuss them – and if it is a mistaken idea that presidents, parents, or people in general merit protection from these sorts of insults, playing the race card or the culture card serves to rule that discussion out of order.

Then, the reaction is inconsistent because it frequently expresses a prejudice of its own. Instead of defending the dignity of anyone, from an egalitarian anti-racist or anti-sexist perspective, we mostly hear silence when a Jackson Mthembu or Marius Fransman says abusive things about Helen Zille or Lindiwe Mazibuko. Or, for that matter, when Mazibuko is called a “housenigger”, or Zille is threatened with rape on Twitter – both of which occurred last week (but not for the first time) in social media chatter during the march on Cosatu House.

Is this because they can deal with it, where Zuma cannot? Or because they’ve earned it, where he has not? An answer to either question will expose deep prejudice on the part of those who think these things – so, better not to think about it. Or is it simply the case that because Zille and Mazibuko aren’t of a communitarian mindset themselves, this cultural norm of defending each other against insult doesn’t apply in their favour?

If the latter is the unconscious motivation for this inconsistency in what results in outrage and what doesn’t, we can ask a follow-up question: exactly which categories of human does identity politics grant special protection to, and on what grounds is this discrimination justified? I’m not talking about recognising that certain groups of people might have certain sorts of sensitivities – that they do, and sometimes for very good reason – but rather about whether we’re comfortable with certain sensitivities receiving preferential treatment in law or public opinion.

I don’t know how whiteness should look at Murray’s painting. But I do know that I could imagine a person being offended by a similar portrayal of their father. And I do know that a black person might not object in the slightest to Zuma being disrespected by this painting, because of the belief that Zuma has done little to merit that level of respect. Among this range of responses, though, it’s unclear whether we’re acting out of principle, out of prejudice, or out of reaction to prejudice – whether perceived or actual.

Zuma can by all means test, in court, whether Murray’s aesthetics and cultural norms should bow to his. For Zuma to win, though, would require demonstrating that his dignity has actually been impaired, and not just that his feelings were hurt. And I don’t know about you, but I already had the impression that Zuma was a rather sexual creature. Not because of some identity politics claptrap, but simply because he has “four wives, two exes and 22 children by ten different women”, as The Economist succinctly put it.

As for the painting itself, of course it’s disrespectful – I’d imagine that’s the point of the painting. You might think the painting in unacceptably bad taste, but your aesthetic preferences and cultural norms are of no more consequence than anyone else’s – at least in theory. In this case, where the ANC has joined Zuma’s case as second applicant, it seems that theory will soon (and, again) be tested – leaving us with one more reason to respect them both less.

Free Speech Politics

Zuma’s Spear and the distractions of “culture”

An op-ed first published in the print edition of the Cape Argus, 22 May 2012

It’s always a mistake to think any particular source a reliable barometer of South African opinion. Each of them represents a self-selected audience, and evolve in ways that tend towards privileging certain voices, and certain points of view. Which is all just as well, because the conversations that have taken place on social media, and especially Twitter, over the past few days are cause for deep despair regarding cross-cultural communication in South Africa.

The conversation that’s dominated social media, radio, and the opinion pages of our newspapers is of course Brett Murray’s painting “The Spear”, which features a stylised image of President Jacob Zuma. More crucially, Zuma’s penis features rather prominently, in that Murray has chosen to depict a quite honourable member.

The Economist carried a column on The Spear which contained mention of Zuma’s “four wives, two exes and 22 children by ten different women”, and these simple facts could easily account for why an artist might think it appropriate to depict the President’s penis, regardless of the artistic merit in doing so. His public persona is already sexualised, in that he’s provided us with evidence of a sexual appetite.

Some might think that and artwork pointing this out is juvenile or in bad taste. But even if so, these would be reasons to not want the painting on your own wall, rather than thinking the painting should not be allowed to hang on anyone wall. The latter, more conservative reaction is premised on arguments about cultural norms, and the inappropriateness of depicting Jacob Zuma in this fashion.

The responses I received when posting that sentence from The Economist on Twitter made this cultural divide rather stark: from being accused of “negrophobia” for not also mentioning that King David had many wives, to being accused of inconsistency in not being a “pristine virgin” myself, it rapidly became clear that even though we know that Zuma is no stranger to sex, we aren’t allowed to talk about it.

At least, someone from my putative “culture” isn’t allowed to talk about it. For culture, we should of course read “race” here, because Tselane Tambo and Mondli Makhanya do seem to have permission to talk about it. And we can derive a simple, but very important lesson from this – no individual should be assumed to speak from or represent any particular “culture”, and that we are free to determine our individual point of view without being hamstrung by the cultural identity that others assign to us.

There is no “we” that has “a culture”, except to the extent that we choose to self-identify as members of it. The notion of “we” is itself something flexible, pragmatic and entirely contingent on circumstance. It is an accident of geography and politics, and massively open to abuse – especially when an audience pre-selects for a speaker which culture they happen to represent.

Arguments about the merits of individual cases get lost in the noise of identity politics, and the fact that identity politics is itself usually mere noise also gets lost. If it is true that it’s culturally inappropriate to depict Zuma’s penis (as I believe it is), why is that where the line gets drawn in terms of the sorts of cultural norms we respect?

Because the same culture contains elements that we (most of us, I hope) no longer want to respect, like homophobia and a patriarchy that is sometimes difficult to distinguish from misogyny. To put it simply, if we should respect Zuma’s wishes here, why should we not respect Patekile Holomisa’s views when he claims that gays and lesbians are enemies of their culture, and why should we not be silent when the Traditional Courts Bill tries to legislate a retrograde and sexist set of legal structures?

We’re not silent in these cases because we recognise that a monolithic interpretation of “culture” doesn’t address the reality of a contested political and moral landscape, and because we’ve decided to mutually address South Africa’s challenges through discussion and negotiation, framed by the liberties secured in 1994. Our Bill of Rights respects culture, yes, but it frees us to think outside of it also.

The relevant manner in which it frees us is through guarantees of free speech and free thought, including via artistic expression. Any one of us might not like Murray’s painting, and might think him grossly insensitive for painting it. We have that option, just as he has the option to ignore whatever offense might be caused in creating and exhibiting the artwork.

If one of these sets of options is to win out over others, it can’t do so through asserting cultural privilege. Cultural norms can be an explanation for why one feels offended, but they can’t serve as an argument for why others should feel constrained by the offense that you feel. The only sorts of freedoms (in terms of speech) worth taking seriously have to allow for harms to be caused, because it is often the harmful truths that the powerful don’t want us to hear.

Cultural norms can also be an explanation for why certain responses to The Spear are wrong for a different reason, in that they revel in Zuma’s discomfort. It’s undeniable that some of the responses to Murray’s painting have viewed the painting through a colonial gaze, where black men are savages, ruled by their passions rather than by intellect.

However, the fact that these racist reactions exist cannot mean that any argument in favour of the rights of the Goodman Gallery to hang the painting are racist. It’s not necessarily Zuma’s “blackness” or “Zulu-ness” that motivates the mockery – it’s also quite plausibly (for some) the fact that they perceive him as a philanderer, who happens to be our President (and further, happens to be black and Zulu). To some extent, Zuma has created this perception with his multiple wives and children, and it should come as no surprise that his critics will exploit this perception, no matter how insensitive doing so might be.

Daily Maverick Free Speech Politics

Freedom of (hate) speech

As published in Daily Maverick

George Orwell’s novel Nineteen Eighty-Four introduced the fictional language of Newspeak, promoted by the state in order to make “thoughtcrime” impossible. Newspeak was intended to do so by eliminating words describing freedom or rebellion. If you can’t speak a word, the thinking went, you’d eventually not be able to imagine the concept that word might denote.

Newspeak, in other words, is a mechanism for controlling thought. And for all the harms that hearing hateful words can cause, we should be wary of responding to this problem in a way that allows us to imagine that people don’t have hateful thoughts, simply because we don’t allow those thoughts to be expressed.

There’s no question that South Africa’s recent flurry of conversation around hate speech, sparked by Jessica Leandra dos Santos and Tshidi Thamane, is partly premised on the fact that their words caused significant distress to some. Given our country’s history of racial oppression – and the present in which it still lingers – it would also be naive to imagine that hate speech is something to simply shrug off.

It’s also true that it’s easier for me to question whether hate speech should be legally proscribed, in that I can’t imagine any speech act as being capable of causing me significant harm. Just as the harms of the oppressed linger, the benefits and privilege of the oppressor also do, leaving few or no wounds for others to poke at if you’re a middle-class white male.

But those who, like Samantha Vice, argue that the privileged should be silent on these issues are wrong. And those who think it appropriate to refer dos Santos’ and Tshidi’s racist speech to the Human Rights Commission are perhaps also wrong. Not because it’s untrue that the words were harmful, but because there’s nothing the HRC can do in these cases besides satisfy our desire for retribution.

The satisfaction of those desires allows for a feeling that we’re taking a stand, and potentially making a difference by influencing those who have racist thoughts. But in the instance of dos Santos, the retribution and the potential for influencing her thoughts was already present in the mass outcry and activism directed at her employers and sponsors, who have subsequently deserted her. This is as it should be.

When you go a step further, prohibiting hate speech directed at a group (as opposed to crimen injuria, which entails seriously impairing the dignity of another individual), you give the state the authority to influence not only what we say, but also what we think. This is because you can’t think about the content and the motivations behind such speech, nor try to persuade those who have such motivations, without knowing who they are.

As I’ve previously argued, knowing who they are requires letting them speak even though what they say will sometimes be hurtful. As soon as they have spoken, we should of course speak louder, telling them that they’re wrong and that their attitudes are shameful. We shouldn’t employ them, nor invite them to dinner parties. We can refrain from doing these things because we know who they are.

Alongside this exercise of social re-engineering, another form of social change could occur. Not the caricatured view often attributed to advocates of free speech which entails asking people to “simply get over it” when it comes to hateful speech, but rather the development of the social consensus and underlying arguments that allow for us to explain why we are right and they are wrong. Hate speech might continue to be offensive, yes, but it might cease to be quite as traumatic if we openly debate it.

When hate speech is legally proscribed, the motive of enhancing equality and human dignity can be complicated by a measure of paternalism. The paternalism exists in the implicit assertion that you’re not allowed to hear certain things because you’re not equipped to deal with them. One can ask how people will ever become so equipped when those who utter racist speech are locked in a soundproofed room.

This question can be asked without condoning the speech in question, and without any disagreement as to the fact that racist speech should be punished. A deeper question is how we should punish, and whether we do so any more effectively through law than through social opprobrium.

A deeper question still is how we reconcile the value of free speech with other competing values. It’s not at all obvious that free speech should always win this contest, though I do think it should be given a head start. Our country is not a liberal democracy in the sense of respecting individual autonomy as a greater good than all others. But even so, we can and should continue to question the terms on which we want these values to compete, and whether ruling certain views out of order simply rigs the game in favour of one orthodox point of view.

The orthodoxy in question is a more subtle one than anti-racism, which I would hope to be an orthodox view. Instead, it’s the orthodoxy that entails instinctive outrage – sometimes even groupthink – where instead of debating something we simply censor it. Treating free speech as a value at least equal to others doesn’t necessarily impede those other values. But treating it as subservient might well do so, in limiting the range of conversations we might learn something from.

Daily Maverick Free Speech Morality Religion

Icasa’s poor reasons for TopTV decision

As submitted to the Daily Maverick.

In 1983, MacKinnon and Andrea Dworkin drafted an ordinance restricting pornography which was briefly adopted by the Indianapolis legislature before being declared unconstitutional. Much of the language defining pornography in this ordinance can also be found in ICASA’s “Reasons” document (pdf) explaining why On Digital Media (ODM, trading as Top TV) were refused permission to add three pornographic channels to their product line.

This ordinance defined pornography as the “graphic sexually explicit subordination of women through pictures and/or words”. The tests for whether or not a item was pornographic included “women are presented dehumanized as sexual object, things, or commodities”, “women are presented as sexual objects experiencing sexual pleasure in rape, incest, or other sexual assaults”, and women being presented in “positions of sexual submission, servility, or display”.

ICASA accept the MacKinnon definition uncritically, much like their entire argument accepts various normative moral claims uncritically. In fact, you might struggle to find a more clear example of a regulator having its work done for it by remote-control, whether via the selective retreating of contested arguments from the likes of MacKinnon or by the latter day moral hysteria of the Christian Action Network (who have previously accused the Cape Times and the Cape Argus of censorship when those papers refused to publish obituaries for the 900 000 South African babies killed by abortion).

Many of the problems with ICASA’s reasoning were skewered in Ivo Vegter’s column on this topic and also my previous column on Multichoice’s similar experience, so won’t be repeated here. Suffice it to say that their argument is still premised on every young person being an expert in both psychological manipulation of his parents, and perhaps also a master hacker of set-top boxes (but one who mysteriously seems to never have heard of the Internet and the pornography available there).

He’d need to be all these things to a) persuade an adult to subscribe, pay the monthly fees, and reveal the two independent pin codes and b) crack those two pin codes if necessary. I checked the sums with the mathematician John Allen Paulos, who confirmed that there are 10 000 possible combinations of one 4-digit pin code, and 100 000 000 combinations for two pin codes. Parents would in other words have to stay away for months, if not years, for children to be able to guess the pin numbers in question. To put it another way, you would be seven times more likely to guess the Lotto numbers than to guess these two pin codes.

The 17-page Reasons document concludes with a summary of its three reasons for refusing the application. First, “the right of women to equality and human dignity overrides the Applicant’s right to freedom of expression, as well as the rights of viewers to receive pornography on television in the home. The Authority holds this view because it regards the consumption of pornography as one contributing factor, amongst others, to the normalisation of violence against women in South Africa”.

While it’s true that the Authority holds this view, the document fails to explain why this is the case. The data they present on sexual offences certainly show a high incidence, but certainly not an increase in the period reported on (2003-2011) – if anything, they show a slight decrease. The data might of course be poor, but that’s the Authority’s problem to resolve if they want to make the connection between pornography and sexual violence.

Oddly, though, ICASA seems reluctant to make that connection despite using it in their conclusion. “The Authority is not saying that there is a direct causal relationship between the consumption of pornography and violent sexual crimes against women. … However, consumption of pornography may contribute to the incidence of rape by making it more likely that those who are already inclined to rape may feel validated by seeing women as sexual objects to actually rape, thereby increasing the overall incidence of rape”.

This thinking is utterly disingenuous, or entirely circular. I suspect the latter, as the document is riddled with phrases like “probable consequences” and “harmful effects” – the seeds of a moral panic are in other words widely planted. The point here is that either pornography does cause these effects, or it does not, or we don’t know. We’ve got some reason to suspect that it doesn’t (and, in fact, better evidence to suggest that it decreases sexual violence), but let’s assume – as ICASA does – that the “empirical evidence for this is not conclusive”.

In other words, we are being told that we should limit it just in case, on the precautionary principle. But unless we have reasons to suspect that pornography validates the perception of women as sexual objects more than Baywatch (for example) does, we also need to prevent the screening of Baywatch. Which is to say, the data needs to support the banning of pornography to prevent this decision from being based purely on an established moral conservatism.

This brings us to the second of the three reasons, namely that ODM “misconstrued the objections to its application as moral or religious grounds rather than as serious stakeholder engagement on constitutional or legal grounds”. The grounds referred, broadly speaking, are rights to equality and dignity. And again, if only consenting adults have access to this material and it cannot be shown to lead to increased sexual violence, the argument makes its case only by saying something to the effect of “pornography undermines equality and dignity because pornography undermines equality and dignity”.

As Margot St. James observed in response to the MacKinnon ordinance, “I’m against the censorship … [one] line that worried me tremendously was, `Pornography represents women as whores by nature.’ Well, what’s wrong with that? I’m a bad girl. I like being a bad girl. I like my whore status. I have control and power over men, in private certainly, and now also in my public life”.

Whether ICASA disapproves of these women or not, they feel empowered through pornography. And while we do have to balance the right to free expression against harms, evidence of such harms is necessary to override the presumption favouring freedom. (For those who want to retort that pornography isn’t a free speech issue, note that ICASA frames it as such, which legitimates a response on those same grounds.)

The second of the three reasons also includes an aside on ODM’s failure to participate in the public hearing. Earlier in the document, this is described as “inexplicable”, and ICASA laments how they “did not receive a courtesy” of being informed that ODM were planning on missing “such a golden opportunity”. The language, in other words, is fairly smug and not exactly impartial in tone. More relevant here though is that only the merit of the case should decide the issue. While ODM certainly erred in not being there to respond, this shouldn’t act as a reason for rejecting their application. Citing it as one seems to confuse making an impartial judgement on a case with teaching a moral lesson to ODM.

The final reason notes that the government has already “limited citizens’ rights to freedom of expression with regard to the consumption of pornography by law. Accordingly, the Authority sees no reason to expand access to pornography on the airwaves into the home”. For a regulatory body that proudly asserts that it is “regarded as pro-active rather than re-active”, this is an odd thing to cite as a reason. They had the opportunity – even if they ended up not taking it – to assert that current limitations are too severe. Instead, this appeal to precedent (and authority) seems to indicate the same intention to justify a foregone conclusion discussed in respect of the other two reasons.

Of course pornography can change the social landscape, and I’m even persuaded that it can do so negatively. Naomi Wolf is quite persuasive in arguing that pornography may be responsible for “deadening male libido in relation to real women, and leading men to see fewer and fewer women as ‘porn-worthy’”. If you agree, you should be free to choose to not subscribe to pornography channels. But you’re no longer free to make that choice – it’s been decided for you that you don’t have that option, and also that you’re not capable of keeping a pin number safe from your children.

P.S.: This FreakoStats post, crunching some porn-related numbers, is well worth reading.

Daily Maverick Free Speech Morality Religion

The South African Charter on Religious Rights and Freedoms

Originally published in Daily Maverick.

While lacking the high-profile support and marketing opportunities that Primedia and others lent to the Bill of Responsibilities, there’s another document doing the rounds that is even more wrong-headed – if such a thing is at all possible. It’s called the “South African Charter of Religious Rights and Freedoms”, and according to one of its drafters, Rassie Malherbe, is intended to “flesh out the right to freedom of religion in the Constitution”.

This fleshing-out is apparently required due to the fact that “constitutional rights are described in cryptic, vague and general terms” (pdf). Sections 9, 15, 31, 185 and 186 seem fairly clear to me, and when read in conjunction with sections 10 and 12 of the Promotion of Equality and Prevention of Unfair Discrimination Act, it’s quite difficult to understand how religious belief could be better protected.

Of course, I’m assuming that religious beliefs should be treated as merely one form of belief competing with others on the ostensibly level playing-field provided by an impartial state. As matters stand, I’m already a candidate for appearing before the Equality Court for communicating words “that could reasonably be construed to demonstrate a clear intention to be hurtful” when speaking of religion.

Churches already enjoy preferential treatment from the taxman, while non-theistic organisations do not. The religious voice carries a disproportionate weight in debates around whether TopTV can screen pornography. On a more trivial note, for those who suffer from unpredictable thirsts for alcohol or who struggle to plan ahead, moral standards set by religion dictate the terms of liquor licences. One could go on, but the upshot of these facts is that many claims for religion requiring more protection are tenuous at best.

More worryingly, these sorts of charters have a history of allowing for discrimination against the non-religious, rather than simply proving equal protection for all. The UN resolutions on “Combating Defamation of Religions” that have made regular (and sometimes successful) appearances before various UN commissions and councils bear notable similarity to blasphemy laws such as those enforced in Ireland.

Under such laws it’s not only the case that you can (somehow) defame an idea or ideology rather than a person, but you can also go to jail for doing so. Presumably, the South African Charter would hope for such a future also. One of its clauses (6.4) states: “Every person has the right to religious dignity, which includes not to be victimised, ridiculed or slandered on the ground of their faith, religion, convictions or religious activities. No person may advocate hatred that is based on religion, and that constitutes incitement to violence or to cause physical harm.”

While the second sentence of the clause quoted above might be controversial for some, it’s nevertheless already entrenched in the Bill of Rights and Equality Act. So the Charter adds no protection by repeating it, assuming the Charter becomes law as intended by its drafters. But to demand protection from victimisation or ridicule is surely a step too far, especially when read in conjunction with something like 2.2: “Every person has the right to have their convictions reasonably accommodated”.

If reasonable accommodation comes to mean immunity from criticism – which it certainly could, with a broad notion like “victimisation” being very much an eye-of-the-beholder sort of thing – it would only be the religious that truly enjoy the rights to freedom of thought and expression afforded to us in the Bill of Rights. Those who want to express negative sentiment with regard to religion (and other categories like culture, which are also included) are of course not victimised as a result of having these protections withheld.

It goes further, as these things often tend to. On the grounds of religious belief, you can refuse to deliver “certain services, including medical or related (including pharmaceutical) services or procedures” (2.3b). And “no person may be subjected to any form of force or indoctrination that may destroy, change or compromise their religion, beliefs or worldview” (2.5) – but the same would of course not apply to that kid in the classroom who has doubts that women were magicked into existence from the rib of a man.

Furthermore, the state, including the judiciary, must “respect the authority of every religious institution over its own affairs” (9.3), and parents “may withdraw their children from school activities or programs inconsistent with their religious or philosophical convictions” (7.1). For a document that’s drafted partly in response to constitutional rights that are allegedly “cryptic, vague and general”, you’d hope for some more specificity in this charter. There is little to none of that, and I’ve only highlighted six of the thirteen clauses that are obviously problematic.

At the launch of this charter in October 2010, Deputy Chief Justice Dikgang Moseneke stopped short of endorsing it, saying that it might one day be a matter before the Constitutional Court. He nevertheless welcomed the initiative, and it seems likely that our new Chief Justice would be similarly inclined. As yet, though, there’s been little progress, and the charter has yet to be presented to even a parliamentary committee. But there are signs of life – a January article in Beeld spoke of it in positive terms, and callers to Radio Sonder Grense later that month seemed particularly enthused.

Perhaps most troubling, last week the Commonwealth Advisory Bureau issued an invitation for applications to write a paper on the right to religious freedom and belief in Commonwealth countries, in order to inform the proposed Commonwealth Charter. In this invitation, the South African charter is highlighted as an example of best practice. So even if it never reaches our parliament, there’s now a chance that other parts of the world will have the sensibilities of Malherbe and others imposed on them.

There’s no question that we need to tolerate diverse and dissenting views, and I’m sympathetic to the reality of many religious people feeling persecuted or victimised for their beliefs. Some instances of such victimisation are clearly unjust and immoral – but they are also usually already illegal and not meriting further legislation. This is part of the point of a broadly secular set of laws: that once we start creating special protections for one interest group, we have no principle by which to refuse doing so for all others.

Instead, ideas compete on their merits within a framework that attempts to give everyone an equal chance to air their views. Charters like this one hark back to a world in which a default privilege was afforded to the dominant view, and where that dominant view was a religious one. While that view is still dominant in this country as in many others, that dominance results at least in part from peoples choices and their freedom to make those choices. Let’s not entertain the nonsense that this freedom is threatened to such an extent that it can – or needs to – be protected through granting one view the sorts of protections all others lack.

Daily Maverick Free Speech Politics


As submitted to Daily Maverick.

It’s sometimes difficult to escape the feeling that we’re living under the tyranny of the perpetually indignant. Taking the time to think things through and developing a measured response to some hot-button issue is a luxury we’re infrequently allowed. Not only do media outlets thrive on sensation, but readers are also often eager to be the first to express outrage at some new conspiracy, malfeasance or instance of ineptitude.

And so those hot-button issues can get generated out of thin air, then recycled and amplified in the echo-chamber of Twitter and other social media. Last week, Twitter itself became the latest subject of hysterical misinterpretation when they announced their new policies for blocking tweets. As of January 26, tweets (or Twitter accounts) can be blocked on a country-by-country basis rather than globally, as was the case before software refinements made selective blocking possible.

The Forbes’ headline “Twitter commits social suicide” summed up many of the responses, which made accusations of charges of censorship and complicity in killing free speech trend under the hashtag #TwitterBlackout. Some even suggested that the once-plucky underdog had now sold out, and was caving to the (purported) illiberal demands of their new investor, Saudi Prince Al-Waleed bin Talal.

But bin Talal only purchased a 3% stake in Twitter, and we have no evidence that he has any interest in dictating policy. We also have no evidence that Twitter’s policy change is a bad thing for free speech. In fact the opposite seems a far more plausible reading, which makes it more the shame that most of the indignant seem to not have bothered to read the policy itself.

It is not the case that Twitter will be monitoring your delight at having found your car keys (in the last place you looked!) or your #occupation of some patch of suburban scrubland. Any blocking (or censorship, for that is what it amounts to) will be reactive rather than proactive, where a party with legal grounds for requesting a takedown of tweets or an account lodges an application with Twitter to do so.

This has always been Twitter’s policy. For example, evidenced claims by film studios of copyright infringement have led to tweets being deleted. The difference between the old policy and the new is that, instead of those tweets being deleted globally, they will only be blocked in the country where that tweet violated the law. If you tweet some pro-Nazi sentiment in Germany (where doing so is illegal), Germans won’t be able to see the tweet but the rest of the world will.

In other words, more people can now see the tweet than was the case before. And if you’re planning a revolution on Twitter, you could always tell your fellow Bolsheviks to simply follow Twitter’s own instructions for changing your country settings to “worldwide”, thereby allowing you to see any tweets, no matter how repressive your situation might be.

What’s more, users in countries where tweets have been blocked will be able to see that something or someone has been blocked. And here Twitter has again done its best to increase rather than decrease transparency, by committing to posting the details of who requested the censorship at Chilling Effects. The “Streisand effect” shows us how exposing attempts at censorship will tend to increase the dissemination of the undesirable material – here made easy not only by changing your Twitter settings, but also by the fact that the same undesirable material, if originating outside the censoring country, will not be blocked by Twitter.

In short, then, Twitter has done nothing to increase the likelihood or frequency of censorship, but instead attempted to obey the laws pertaining in certain jurisdictions without affecting information flow in others. It’s a positive move, and is being conducted in a fully transparent and defensible way. On balance, there’s good reason to suppose it could result in increased protection of free speech.

But for the #TwitterBlackout crowd, evidence takes a back-seat to indignation. Some indignation is of course justified – it shouldn’t be the case that governments attempt to censor speech (arguably, outside of some narrowly-defined cases). That they do so is not Twitter’s fault, and there is nothing that Twitter can do about it. Taking a stand against censorship by refusing to obey local laws would simply result in the complete unavailability of the service, as is the case in China.

Us advocates of free speech, and those campaigning for other causes, can forget that our idealised version of the world collides with the real worlds of politics and pragmatism. It’s not Twitter’s job to share your or my ideological commitments, and to run the risk of being shut down in more places than only China. Here, it’s governments that are censoring, and Twitter is doing is best to minimise the effects of that censorship while spreading its global reach for the sake of profit. That’s their job.

Daily Maverick Free Speech Religion

The privilege in not finding things offensive

As submitted to the Daily Maverick.

It’s easy to forget that arguments in favour of unfettered free speech often come from positions of privilege. That privilege could be economic, social or educational, but whatever its origin, the result can be a bewilderment at the thought that anybody could find mere words offensive enough to censure.

I’ve made this sort of case before, defending various people and a wide range of utterances – from Floyd Shivambu and Kuli Roberts to Annelie Botes. A consistent thread in those columns has been that we learn nothing by silencing odious voices – that it’s only through being exposed to opinions that make us uncomfortable that we develop defences against them.

Again, it’s easy for some of us to say these sorts of things. It’s easy for me. For others it’s less so, especially if you might have been subjected to years or generations of abuse. So the idealism of a position – mine, broadly speaking – which entails hoping that society will at some point grow up and learn to deal with offence can easily seem rather smug – not to mention condescending.

However, it remains paternalistic to impose constraints on what we’re allowed to read and hear when those constraints are intended to protect us from offence. We don’t have the right to be shielded from all potential offence, even if there may be cases where the offence is simply gratuitous rather than potentially instructive (even if not instructive to the target of the offensive claim, then to the wider audience that is exposed to it).

But conclusions regarding whether a particular case intends gratuitous offence or not are subjective ones, also complicated by the emotive nature of many such cases. A recent case involved an Advertising Standards Authority (ASA) decision against River’s Church, who were instructed to take a billboard down following a complaint by Eugene Gerber.

Gerber is reported as saying that the “billboard offends him as an atheist as he does not consider his existence to be an accident. Secondly, the depiction of a man with an empty head communicates that atheists are stupid”. In comments to an article addressing the judgement and the apparent contradiction of an atheist (where atheists often defend their right to offend the religious), Gerber clarified his motivation for the complaint, saying:

During our darker apartheid years, it was ultimately the reaction and pressure from the international community that allowed us to move into a democratic society. And now, as our free speech rights are dying a slow death in South Africa, we once again need the world to take note and join our outcry.

So one atheist in South Africa gets a Christian billboard taken down, and blogs all over the world (atheist and Christian alike) are up in arms about my infringement on free speech. Yet, about a month ago, a Christian had a television commercial taken off air for exactly the same reason, and not even a peep on the internet about free speech. My options were simple, impede on their free speech but the get the message out there that our country needs help, or let them have their billboard and sit back and watch free speech decline. The latter was simply unacceptable.

So as long as their [sic] are people out there who voice the concern at me being able to have a billboard removed, I think I made the right choice. Hopefully the next headline you read is ‘Atheist tries in vain to have billboard removed’.

Limiting free speech for the sake of protecting it is certainly counter-intuitive, yet not obviously mistaken. Gerber could have been attempting to highlight how easily claims of being offended can result in limitations on freedom of speech, thus gesturing at a broader, perhaps systemic problem. But the evidence for this motivation is sketchy – not only because examples of these sorts of limiting moves are easy to find, but also because he appears to be wrong about the facts.

Assuming that the television commercial Gerber is referring to is Unilever’s Axe Excite advertisement, featuring “super-hot angels crashing to Earth” then smashing their halos in order to (presumably) be able to “know” the man wearing the deodorant in question, it’s simply not true that this ASA decision went unnoticed. My browser bookmarks include five newspaper articles and three blog posts – most of them explicitly concerned with whether the ASA was being overly sensitive towards claims of offence.

Just as with the Axe advertisement, one can ask whether the River’s Church billboard was sufficiently offensive to merit censure. While these are subjective judgements, a broader question is whether the ASA should even be placed in a position of needing to make them – especially if they are placed in this position by those who regularly protest the hypersensitivity of others to criticism.

The ASA ruling on the billboard was at least consistent with the Axe ruling. But if a depiction of an atheist having an “empty head” (itself a subjective reading – I’d be happy to entertain the charitable possibility that this image depicts a head lacking in certain beliefs) or believing that they are accidents now meets a threshold of unacceptable offence, then that threshold is far too low.

Regulation of advertisements that make false claims is certainly merited. But in this case, as a colleague (and atheist) pointed out, many of us might know as fact that we are accidents. As for having empty heads, well, as Psalm 14.1 reminds us “The fool says in his heart, ‘There is no God.’” If a billboard isn’t allowed to call unbelievers fools (on the uncharitable, and more plausible reading), would Gerber now have us petitioning for the Bible to be withdrawn from sale, or edited to remove content offensive to atheists?

Gerber’s complaint to the ASA was hypersensitive and misguided, in that it serves to undermine free speech arguments in more typical cases involving things like blasphemy. But as I’ve indicated, some feel better equipped to shrug off insults than others, and cases like these are thin ends of very thick wedges. Speech (and advertisements are of course a complicated example of speech) can create a climate of hostility, serving as propaganda for encouraging negative attitudes towards certain groups.

I do still hope that we can learn to deal with these insults without feeling the need to run to the courts or the ASA for protection. It remains true that any restrictions on free speech on the basis of offence put us on an unprincipled and very slippery slope. And, as I’ve argued before, freedom to cause offence doesn’t mean that it’s the right thing for us to do. Somehow, though, I wish we could find a mechanism to shut some people up – but only the deserving ones, of course.