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.
Helen Zille regards herself as a liberal (in the European sense, so, in broad terms committed to values like individual liberty in the tradition of Mill, Locke and Berlin). It is thus unsurprising that her piece in News24 argues that free speech could be jeopardised by the court action involving the South African National Editors’ Forum (Sanef) and five journalists (including Haffajee) vs. the Economic Freedom Fighters (EFF).
Unsurprising, because the former group want to in essence silence the latter, or at least silence some of their speech, which would come at a cost to their freedom. Given that the speech in question (in summary, sustained and high-volume abuse on social media, often involving physical threats) does not satisfy the threshold for hate speech in our Bill of Rights, Zille thinks that Haffajee should simply put up with it instead of “whimpering” about it.
Zille also demonstrates that it’s possible to put up with online threats by recounting examples of abuse she has endured; tries to make a case for Haffajee being hypocritical in this case (because she was happy to prioritise free speech over harm when publishing images of Zuma’s Spear, an artwork by Brett Murray); and includes other argument threads related to the Shelley Garland hoaxing of Huffington Post, as well as the “grievance studies” hoax perpetrated by Lindsay, Boghossian, and Pluckrose.
I won’t address those two pieces in detail here, but will simply say that one person’s tolerance for abuse doesn’t serve to support any normative or legal standard that applies to everyone, and that even if Haffajee is a hypocrite, that would have no bearing on the argument as a whole, rather than simply relate to judgment of a person’s character.
What I want to say are the following three things. First, the court case is justified not by the Bill of Rights, but by the Promotion of Equality and Prevention of Unfair Discrimination Act. I wrote about the contradiction between this Act and our Constitution in 2011, and on this matter I agree entirely with Zille. There is a tension between them, and hopefully this case will expose that.
Second, it is not sufficient to cite traditional defences of free speech in an age of troll armies bringing threats – of entirely unknown seriousness – to you all day, every day. As I argued in the third section of this piece, Mill was speaking in a far more genteel age, where the people he was writing for were rather unlikely to be routinely abused at all, never mind in the volumes we experience today.
Third – and this is one thing that differentiates some versions of liberalism (in this case including mine) from others – is that it is easy to forget what motivates Mill in the first place. He was a radical in his time, being an early defender of both female emancipation and the abolition of slavery*, and his career – but more importantly, his liberalism – was fundamentally rooted in humanism.
I don’t know how to reconcile the value of free speech (which has tremendous and irreplaceable value) with other values such as dignity. But free speech, on my reading of Mill, was a tool to secure other, more important values. I have little doubt that if we could talk to him today, he’d say that allowing unchecked abuse of journalists on social media isn’t the sort of thing we should simply endure.
*(Yes, I know that he was a was a staunch supporter of colonialism, as well as having other views we can now recognise as flawed.)
P.S.: Recommended reading on liberalism and Mill: Adam Gopnik’s 2019 book A Thousand Small Sanities: The Moral Adventure of Liberalism.