Steve Hofmeyr and the right to speak: take is a good as you give it!

2014-11-07 04:14

The best part of being a South African is not our history. If anything, our history is a sordid mess. The best thing about being a South African is what our history has produced: a nation committed to values and rights through a legally enforceable constitution.

One such right is the freedom to speak. Section 16 of the Constitution provides that, “Everyone has the right to freedom of expression, which includes freedom to receive or impart information or ideas.”

Section 16(2) carves out “incitement of imminent violence” and “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm,” among other things, from the right to free speech.

Free speech, although not novel, was only introduced with democracy in 1994. But, what are the bounds of free speech? Could someone invoke this democratic right to speak, for example, against democracy? Could someone invoke free speech to advocate for a return to apartheid?

The problem with value-based rights is that there are hard cases where the answer is not in the black letter. A good example of a hard case is Steve Hofmeyr’s recent comments about blacks and apartheid.

Hofmeyr is right-wing celebrity. He is known for covering popular songs in Afrikaans. On 23 October Hofmeyr mischievously tweeted that: “Sorry to offend but in my books Blacks were the architects of apartheid. Go figure.”

This is a startling sentiment and it, rightfully, led to public furore. A lot of people weighed to call Hofmeyr a bigot. Comedian Conrad Koch and his celebrity puppet, Chester Missing, took the fight to Hofmeyr, calling for his sponsors to drop him. One sponsor withdrew and another has since released a statement clarifying its relationship with Hofmeyr.

Hofmeyr insists that the public rebuke is an infringement of his right to free speech. Unsurprisingly, the Institute of Race Relations and its head, Dr Frans Cronje, agree that the campaign against Hofmeyr amounts to “silencing”.

Cronje tweeted that: “By all means challenge [Steve Hofmeyr’s] ideas. But trying to silence him sets dangerous precedent. If he remains free to speak so will you.”

Cronje continued: “Too often the supposed defenders of a free and open society are its greatest threats. Being offended is part of living in a free society.”

And: “If [Hofmeyr] is silenced because some don't like what he says then what is to stop the State one day silencing all unpopular voices?”

This is plainly wrong. Cronje is wrong to pretend that this is an easy case. Apartheid was a brutal system and blaming victims of apartheid for apartheid is deeply offensive. In fact, Hofmeyr knew that his statement was offensive; he began his tweet with: “Sorry to offend.”

Perhaps more important, Cronje is wrong to suggest that free speech has no civil consequences. Yes, in a constitutional democracy such as South Africa, it would be unconstitutional for the State to gag free speech. However, we must distinguish the vertical right to free speech (as between the individual and the state) from the horizontal right to free speech (as between individuals).

While we should be very sceptical of any measures by government to limit free speech, the same is not true for individuals.

If you say something offensive, be ready to take the backlash. The reason for this is simple: there isn't a way to prevent free speech save for court gag orders and arrest warrants.

Steve Hofmeyr took to court seeking a gag order against Koch. This is ironic because Hofmeyr is ultimately saying, “I have the right to say something offensive but the State, through the courts, must gag Koch from saying something offensive against me.” This is nonsensical.

I have not seen the order but eNCA reports that it “prevents Koch from threatening, harassing, or making defamatory statements against Hofmeyr. He was also not allowed to tag him on social media websites like Twitter or mention him in television and radio interviews.”

Such an order is truly bizarre and, in my view, plainly unconstitutional. The Bill of Rights is binding on courts and they too do not have the power to limit free speech arbitrarily. If Hofmeyr feels injured by Koch’s statements, he should sue for damages. Such an order is also a limitation on freedom of press! It is truly unfathomable!

Hofmeyr holds views that I find repulsive, and I imagine most South African would agree. He parades around accusing the government and black South Africans of genocide. He can do this, and I have to tolerate it, because the Constitution guarantees his right to express himself and impart ideas. But, he must be ready to take it as good as he gives it.

If he has a right to make stupid and offensive statements in public, we, who are offended by him, have the right to call for sponsors to drop him. This is not an infringement but an exercise of free speech!

News24 Voices Terms & Conditions.


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