As submitted to The Daily Maverick
Free speech is not the only value that democratic societies subscribe to. Nor does, or should, our commitment to free speech always have to trump competing values such as national security or personal dignity. But the principle of free speech nevertheless stands in need of exceptional, and exceptionally strong, counterarguments in cases where we are told that it is not permissible to broadcast or publish any particular point of view.
This commitment to an open marketplace of ideas rests on the belief that each person should have access to the points of view in circulation, so that he or she is able to exercise their right to moral independence by considering the ideas themselves. As Mill reminds us, compromising free speech costs us both the opportunity to hear things that are true, which can help to correct errors; and also to hear things that are false, where the truth is strengthened by “its collision with error”.
Besides the benefits involving promoting truth and undermining falsity, free speech – and in particular, a free press – provides a mechanism for holding power to account. If Lord Acton was right that power tends to corrupt even those who start out with good intentions, it is crucial that the media continues to be free to expose corruption and other evils, no matter who the perpetrators are.
But free expression can certainly cause harm. One such harm might be that one or more of your principles are offended, as seems to be the case with the ragtag collection of religious fun-damaging-mentalists who are advising Malusi Gigaba on his Quixotic plan to rid cellphones and the Internet of pornography. As I’ve argued previously, a commitment to free speech implies that we have the right to offend others, and it needs to be demonstrated that other, more significant, harms result from such expression before we can contemplate censorship.
Any secrets or forms of censorship are a threat to democracy, and can only be justified if we have compelling reason to believe that higher goals are served by these unpalatable means. In other words, the burden of proof is firmly on those who want to restrict access to information. This means that vague expressions of potential threats are not sufficient, and also that any proposed measures to combat these threats need to be as non-destructive to liberty as possible.
In the cases of both the Protection of Information Bill and of the proposed Media Tribunal, it is not at all clear that the measures are either warranted, or minimally invasive. The same is of course true of the Internet and Cell Phone Pornography Bill, and the rapid succession of suggestions of this nature cannot but cause concern to those of us committed to liberty.
The Protection of Information Bill is a concern, because its terms are so broad as to allow virtually anything to be kept secret. The Pornography Bill should worry us because it’s insanely impractical, and because it defines a national morality based on the views of those influenced by the ideas of ancient, illiterate goatherds. And now, the Media Tribunal, as if throwing millions of Rands into The New Age isn’t going to ensure enough pro-government press.
Of course, the Media Tribunal’s official purpose is not that of kowtowing to government – it’s simply going to correct various existing flaws in the media. President Jacob Zuma recently told us as much, explaining that the media does not mirror South African society, and is not in touch with what the majority of South Africans think and feel.
One plausible response to these ideas would be to ask “is that the media’s job, in any case?” Instead, one could argue that part of the role played by the media is that of shaping, rather than mirroring, South African society. It does so by introducing debates, exposing corruption, and generally doing all the things that make the political media so valuable. These tasks are often only possible when you’re not subject to external control, and would intuitively seem impossible when that external control is exerted by exactly the people you are reporting on.
There is therefore a structural problem with the idea of a tribunal, which relates to further entrenching a power asymmetry between the watchers and the watched. There are of course other problems too: The Gigaba example shows that we can’t trust individuals in government to be sensible moderators of debate, assuming they are willing to entertain debate in the first place.
This is not to say that the media is perfect, or that there’s nothing that can be improved about what is reported, and how it’s reported. But in almost all cases where the media is too quick to make accusations, the accused is someone who has the power to defend themselves. They could do this through publishing rebuttals or counter-claims, or otherwise they could take legal recourse, if appropriate.
It is not often the case that an “ordinary” citizen is maligned via the media. Far more typically, those citizens who are accused of some misdeed or other are wealthy or otherwise influential, or connected to others who are. What this means is that they have access to opportunities for rebuttal, and this is an opportunity often provided by the same free press that made the accusation in the first place. We can’t pre-judge who has the right to have both the first and the last – or in many cases the only – word on any given subject, as that would defeat the purpose of free speech.
A tribunal, in other words, is using a very blunt instrument to fix a quite subtle problem, and the unintended (hopefully) consequences might be severe. Some consequences are already known, and worrying: our press has been demoted from “free” to “partly free” in the 2010 Freedom House survey, leaving South Africa in 70th position internationally. The idea of a rainbow nation always seemed destined to become cliché – we just didn’t imagine it happening so soon.
Costs and benefits have to be weighed against each other. I’d far rather we have the means to enhance our lives, even if some of us use those means irresponsibly. One of those means is a free press. A key danger of these measures to limit the free flow of information is that they remove choices, and always protect those who already have power from having that power eroded.
Albert Camus tells us that “A free press can be good or bad, but, most certainly, without freedom a press will never be anything but bad”. The burden of proof remains on those who want to argue that censorship (however disguised) is the only way to ensure responsible reporting, and that case has yet to be made.