Zille vs. Haffajee on hate speech and the Economic Freedom Fighters

Before we talk about what the law says, we should talk and think about what sort of society we hope for the law to help create. The law is always going to be an imperfect tool for managing millions of often selfish, confused, partisan, and otherwise compromised humans.

So when talking about liberal values such as free speech, it is legitimate to ask whether past, current or future formulations of laws governing the value in question do the job optimally, rather than to simply appeal to them as the end-points of an argument.

Continue reading “Zille vs. Haffajee on hate speech and the Economic Freedom Fighters”

Freedom of speech doesn’t come with a guaranteed audience

Originally published in the Daily Maverick

Phumlani-Mfeka-e1369903581366-250x250During one of Dara Ó Briain’s stand-up shows, he ridicules the way that panel discussions sometimes include lunatic views “for balance” (watch the clip below). His target in this skit is homeopathy and pseudoscience more broadly, but the general point he makes is that we aren’t obliged to offer a platform to any opposing view, no matter how entitled the holder of that view might be to believing what they do.

We can distinguish between your moral right to believing in something, rights to free expression of that belief, and then any obligations that others might have to listen to or even publish that belief. Crucially, defenders of free speech are not inconsistent in refusing to entertain any given view – they would need to actually attempt to stop you from expressing it.

What this means is that censorship, or violations of your freedom of expression, would typically only be something that a government could do. But when we speak of controversial things in the media – for example racism – there seems to be a view that not publishing racist rants constitutes censorship.

The City Press generated a debate on exactly this issue last week, when they chose to publish an anti-Indian screed by Phumlani Mfeka in which he reminds Indian citizens that they have never been comrades, and that they should “realise that Africans in this province [KZN] do not regard Indians as their brethren and thus the ticking time bomb of a deadly confrontation between the two communities is inevitable”.

Some of us were quick to denounce the publication of this piece as an instance of editorial failure, for reasons that I hope to make clear here. I also want to argue that refusing to publish a piece such as the one in question violates nobody’s rights to free expression, and is certainly no betrayal of your covenant with readers.

To start at the end: a newspaper can’t be obliged to publish everything. Someone on Twitter told me that “media must reflect all opinion to allow rebuttal”, but this is quite clearly nonsensical. If all opinions must be included, all publications would need to be infinite in length (and could never in fact go to print, since you’d have to spend an infinity looking for the nth variation of any given opinion).

Secondly, that view is nonsensical because editorial decisions to include or exclude content are are made all the time, for various reasons. One piece might be cut due to space considerations, another because it’s dated, and yet another because it’s too poorly written. And then, we can also choose to not publish something because it’s rubbish.

In whose view is it rubbish, I imagine some asking? The editor’s view is the answer – for that is his or her job. The editor has a certain vision for what the newspaper should carry, and for what sorts of ideals or ideas it is intended to highlight. Neither the City Press – nor, fortunately, most of our newspapers – carries horoscopes. Yet we would not humour an astrologer’s claims that his (I use the masculine because I’m reminded of Primedia’s CapeTalk567, who give stargazer Rod Suskin a full hour every week) right to free speech is being violated as a result.

So the City Press could have chosen to not publish the piece in question, without violating anyone’s rights. While it’s true that we sometimes want to hear what the racists are saying – both as a safeguard against soporific versions of the Rainbow Nation narrative, and in order to expose and rebut them, no particular newspaper is obliged to give space to particular types of bigotry.

Choosing to include content like this signals either inconsistency (why anti-Indian racism, and not homophobia, blasphemy, or articles advocating incest – they all raise “debate”, after all) or a willingness to enter the tabloid space, where you stop pretending to have editorial standards at all, and just pander to sensation.

The column has become a springboard for debate, in that we’ve already seen responses from the editor, Ferial Haffajee, and others. But while debate can be constructive and even sometimes necessary, let’s not make the mistake of assuming that it’s always any of these, nor that you can’t have this debate without publishing the likes of Mfeka.

While we know that racism exists and is even fairly prevalent, it nevertheless comes in different degrees of sophistication. This is true for all views, and we – as editors, publishers or simply conversationalists – indicate what our minimum standards of coherence and sense are through which of those views we decide to engage with.

If there are sophisticated racists out there, and we imagine ourselves to be a sophisticated discussant, we’ll talk to them rather than to Hendrik Verwoerd. Likewise, we might discuss same-sex marriage with someone other than the leader of Westboro Baptist Church, and evolution with someone who at least agrees that the earth is more than 6000 years old.

What we might prefer not to do is talk to, or publish, views that are so simple-minded that the only function they can serve is as a springboard for ridicule (if you’re feeling uncharitable) or sympathy (if you’re not). This has no bearing on anyone’s right to hold that view, or your right to publish it.

But those rights don’t come with the obligation to publish. And as a superb recent essay by Mark Rowlands puts it, the reader has the right “to be completely uninterested in views that you find stupid or abhorrent”.

It is of course up to those who manage content to decide what to publish. But just as readers can and will ignore some views, it’s a small step from ignoring views to ignoring platforms for those views. The racist, misogynistic or homophobic trolls have enough places to congregate already – let’s not give them the City Press too?

City Press Editor-in-Chief, Ferial Haffajee, has subsequently commented on the reasoning behind publishing Mfeka’s piece.

The 2012 TB Davie lecture: Introductory remarks

On August 1, 2012, Ferial Haffajee delivered the 47th annual TB Davie Lecture at the University of Cape Town. As chair of the Academic Freedom Committee, I had the privilege of introducing her, and this is the text of my introductory remarks.

TB Davie led the university as Vice-Chancellor from 1948 until his death in 1955. He is remembered as a fearless defender of the principles of academic freedom. He championed this cause and the autonomy of the university, defining academic freedom as the university’s right to determine who shall be taught, who shall teach, what shall be taught and how it should be taught, without regard to any criterion except academic merit.

This legacy is honoured through the TB Davie memorial lecture series, beginning in 1959 with a lecture by former chief justice and UCT chancellor, Albert van de Sandt Centlivres, after whom a building adjacent to this one is named. In subsequent years, the lecture has been delivered by, among others, ZK Matthews, Walter Sisulu, Wole Soyinka, Kader Asmal and Frederik Van Zyl Slabbert.

When the Academic Freedom Committee invited Ferial Haffajee to deliver the 47th annual TB Davie Lecture, it was in the knowledge that we were inviting one of South Africa’s media luminaries. Her career started with an internship at what was then the Weekly Mail in 1991 – a publication at which she gained immediate exposure to the challenges of working in a medium where a desire to reveal and discuss matters in the public interest would frequently be met by powerful dissenting voices, requesting (and sometimes requiring) that you refrain from speaking.

After leaving the Weekly Mail, Ferial worked in radio as a producer and reporter at the SABC, before joining the Financial Mail as Political Editor, and later Managing Editor. In 2004, she rejoined what had by then become the Mail & Guardian, where she served as editor for 5 years. In 2009, she was appointed editor in chief at the City Press.

Throughout these 20-odd years, Ferial has been no stranger to controversy and having to fend off attempts at censorship. In 2005, the High Court barred the Mail & Guardian from publishing a story on the Oilgate scandal, detailing how the Imvume oil company had paid millions of taxpayers rands to the ANC. Just as the publication had done in the 1980’s, Ferial insisted on running the story, but with the banned segments blacked out.

In 2006, she published one of what became known as the Danish cartoons, to illustrate a story about the protests generated by the infamous depictions of the prophet Muhammad. Threats to both herself and her family resulted from this choice.

The committee knew all of this when inviting her to address us today. What we did not, and could not, have been aware of is just how appropriate a choice of speaker Ms Haffajee would end up being. I refer of course to the events of May this year, when Brett Murray’s painting The Spear was hung and then defaced at the Goodman Gallery, and published then later retracted by the City Press.

The Spear highlighted various fractures and absurdities in South African society. One absurdity, for me at least, was in hearing a sitting Minister of Education call for the destruction of an artwork. Another was the inconsistency between the near-complete silence from social media pundits as well as government spokespersons when members of the political opposition are racially slurred or crudely insulted, and the contrast between this and the outrage generated by the alleged lack of respect shown by this painting, and the publication of it. A morality that appears to be selective is difficult to fathom, and sometimes difficult to respect.

For some, it was of course always absurd that an act of satire could be this divisive, this inflammatory. For others, the lack of sympathy or understanding for the outrage was the real absurdity – and a real travesty of decency. In South Africa, these fractures are sometimes quite shallow beneath the surface. A key question is of course how to deal with them. Another key question is how one gets – and perhaps stays – in a position to be able to address them, and at what cost.

Academic freedom and media freedom are natural bedfellows, perhaps most obviously because of the symbiosis between a media revealing things that might benefit from academic study, and through academic activity frequently being newsworthy. But more crucial, perhaps, is media freedom simply as a barometer of a country’s freedom more generally.

In a 2009 interview, Ferial said “Until just over a year ago, I was singing that we enjoyed world-class media freedom, especially compared to some other African countries such as the Democratic Republic of Congo, where four radio journalists were murdered last year, or Ethiopia, where all independent journalists are in jail or exile. But the ratcheting up of rhetoric against journalists since Polokwane is very, very dangerous. There is a fundamental philosophical difference between how the ANC perceives media freedom and how we journalists see it.”

Explaining her decision to withdraw The Spear from the City Press website earlier this year, she remarked “I hope we are not crafting 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.”

Expression is at most partly free when one is afraid to speak. Arguably, it’s not at all free. Demands for silence on the grounds of culture, tradition or offences to dignity can sometimes be self-serving in that they forestall much possible debate or reflection on the merits of an artwork or speech act. 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 simply to refuse to discuss them – and if it is a mistaken idea that presidents, for example, merit special protection from these sorts of insults, playing the race card or the culture card serves to rule that discussion out of order, leaving us unable to discuss those ideas.

It’s easy to agree that a painting like The Spear is disrespectful – I’d imagine that’s part of the point. 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.

Many of you might share my hope that we can learn to deal with insults without feeling the need for protection from the courts, or from a Film and Publications Board which exhibits a very dubious moral authority in listing a known homophobic organisation as a “useful link” on its website.

I have this hope because it remains true that any restrictions on free speech on the basis of offence or slights to dignity threaten to put us on an unprincipled and very slippery slope. These sorts of things are perhaps easier for some of us to believe, and say, than it is for others. But it’s also true that some of us have easier access to the courts than others do.

Absolute freedom, including the freedom to offend, is usually not the only value at issue in contestations such as these. It is sometimes the case that one might be free to speak, but chose not to exercise that freedom – or simply, to regret having done so because the harms seem to far be outweighing any possible benefits, making absolute principles difficult to defend. As someone who experienced these dilemmas at first hand, we look forward to hearing Ferial Haffajee’s thoughts on creeping censorship, and the spearing of freedom.

You can download the audio of Ferial’s talk via this UCT page.

Previous posts on The Spear:

Little evidence of integrity at the Film and Publications Board

As submitted to the Daily Maverick

When the Minister of Higher Education calls for a painting to be “destroyed for good”, it’s difficult to not be reminded of Ray Bradbury’s “Fahrenheit 451”. In case you’re unfamiliar with the book, the title describes the temperature at which paper auto-ignites, and the plot addresses the burning of books as a method for suppressing dissenting ideas.

Framed as a method of thought-control, the destruction or censorship of paintings and books should horrify all of us who hope to live in a free society. So instead of framing it in those terms, why not instead make a case based on “protecting the children”? After all, who but a moral monster would be opposed to protecting children?

This is not yet another column about Zuma’s Spear, but rather an attempt to highlight the creeping threat to liberty exemplified in Nzimande’s statement about The Spear, as well as the Film and Publication Board’s (FPB) decision to classify (images of) the painting as 16N. That the former hasn’t attracted significant outrage is a surprise, because even though Nzimande might well have been speaking as the leader of the Communist Party, he also happens to be the man who oversees the country’s higher education system.

As one of the thousands of academics whose professional lives are influenced by this man’s judgement, I have cause to be concerned about a statement like this. As do all of us, not simply through being invested in the country’s future, but because it’s a stark distillation of the level of cynical manipulation of voters that some in the ruling party are willing to deploy. It’s not simply inappropriate for a Minister of Education to call for the destruction of artworks – it’s a complete abrogation of his responsibilities.

But seeing as those he reports to happen to be sympathetic to that view, we should of course expect no censure, apology or retraction. Meanwhile, if the FPB could have their way, images of Murray’s painting would be scrubbed from the Internet lest some under-16 (or sensitive adult) happens to come across it. The danger is of course real, in the sense that a Google search for “South African art” might well highlight the offensive image in question.

The FPB will be engaging with Internet service providers and search engines to “enforce this decision going forward”, which could well mean the dusting off of the Internet and Cell Phone Pornography Bill, Malusi Gigaba’s plan to enforce the moral standards of a few right-wing Christian organisations on all of us. One of the organisations consulted in the drafting of that Bill was the Family Policy Institute (FPI), headed by Errol Naidoo.

You might remember Naidoo from his call to boycott Woolworths for their decision to take Christian magazines off their newsstands (the profitability of a private company obviously being subservient to Naidoo’s interpretation of God’s wishes). Or, perhaps you’d recall his involvement in blocking both Multichoice and TopTV from screening adult content.

But in case all of those campaigns happen to coincide with your preferences, we’re also talking about the person who called the Civil Unions Act a “grossly negligent act of Parliament”, and whose monthly newsletters rarely fail to mention the immoral and unnatural scourge of homosexuality, and the complicity of the “liberal media” in obscuring the imminent downfall of civilization that will be precipitated by consenting adults in their bedrooms.

The reason Naidoo and the FPI are relevant to the discussion around the FPB’s decision to classify The Spear is that the FPB statement laments the “suggestions made that have sought to question the integrity and independence of the FPB”. I’d hope that in this instance, integrity would include being guided by the spirit and letter of the Bill of Rights in matters such as freedom of sexual preference and orientation.

But this hope seems somewhat unfounded when you look at the FPB’s website. On their home page, you’ll find a sidebar element headed “Useful Links” – but you’ll only find one link there, and that link is to the Family Policy Institute. In case my objection is not entirely clear, I’m not making the claim that religion (or Christianity in particular) can have nothing useful to say in matters of morality or in decisions regarding what children should be exposed to.

The claim is instead that the FBP is endorsing an organisation, and a man, who is a proud homophobe, and who has repeatedly demonstrated that his views on sexuality in general seem to be plucked straight from the pages of Leviticus. To describe this link as “useful” seems somewhat at odds with integrity, at least as I understand it.

Perhaps there’s a more innocent explanation, namely that the FPB has no idea who or what they are endorsing. If this is the case, we have no less cause to question their competence in effectively performing the task of deciding what to classify and how to do so. Incompetence – at least from the perspective of those who wish to view artworks or movies – is hardly more reassuring than significant lapses in judgement.

So it’s not just that the FPB have made a ruling that’s likely to survive even internal appeal processes, never mind court challenges. The issue is also that the chilling of free speech or artistic expression can happen by degrees, and can be disguised by the motivation of “protecting the children”. Because, framed in those terms, who would dare complain? If you do complain – at least once protecting the children is understood in the terms of folk like Naidoo – you might as well confess to being a paedophile.

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.