BEFORE THE BROADCASTING MONITORING and COMPLAINTS COMMISSION of SOUTH AFRICA
In Re: South Africa Jewish Board of Deputies vs. Radio 786
Stanley Cohen & Associates, LLC
119 Avenue D, Fifth Floor
New York, NY10009
October 30 2012
South African law and regulation in the form of 2(a) of the Code of Conduct for Broadcasting Services, contained in Schedule 1 of the Independent Broadcasting Authority Act of 1993 as originally enacted1; as notationally severed by the Court in Islamic Unity Convention v. Independent Broadcasting Authorities2002 (4) SA 294(cc)22; or the new regulations regarding the Code of Conduct for Broadcasting Service Licensees promulgated pursuant to Section 54 of the Electronic Communications Act of 20053 would not withstand a facial constitutional challenge in the United States. As content and viewpoint based prohibitions of political speech, the statutes and regulations violate the freedom of expression guaranteed by the First Amendment of the U.S. Constitution4 as interpreted by the United States Supreme Court. U.S. Const. amend. I. Moreover, in all of their iterations, the South African laws and regulations suffer from being overbroad and vague.
This brief will analyze the South African statutes and regulations as if they were enacted in the United States. Theories underlying freedom of expression jurisprudence and the application of those theories by the United States Supreme Court will be explored.
It is a relatively easy task to apply American First Amendment jurisprudence to strike down South African statutes and regulations which seek on their face and as applied to restrict public, political discourse. It is a more challenging – and more important – task to show why this tribunal ought to be guided by the American experience and follow American precedent. Section 1 of the brief will review pertinent American precedent and apply those precedents to the statute,regulations and the speech at issue. Section 2 will explore the theoretical underpinnings of American First Amendment jurisprudence and show that those theories have critical application in South Africa.
The statutory and regulatory scheme at issue would not survive even cursory constitutional review in the United States because it is unabashedly – textually and in application – NOT content or viewpoint neutral. The First Amendment is not an absolute ban on governmental restriction of speech. To be sure, there are important interpretive nuances in how the First Amendment has been applied to specific situations. One point however is crystal clear – in matters of public concern the government may not regulate speech based on its content and more importantly based on the viewpoint of the speaker.See, e.g., R.A.V. v. City of St. Paul. Minn., 505 U.S. 377 (1992)5; Regan v. Time, 468 U.S. 641 (1984).In America, there are no “grand truths” protected by governmental sanctions. And there is certainly no governmentally proscribed historical “fact” unassailable by scholars and crackpots alike. See, e.g., Freedom of Speech and Holocaust Denial, 8 Cardozo L. Rev. 559, 566-72 (1986-87) (comments by Prof. Alan Dershowitz).6
If American precedent were followed this is an easy and straightforward case. The statute and regulations are impermissible because they restrict speech based on expressive content and the viewpoint of the speaker. The broadcast in question is challenged because it expressed the speaker’s analysis of a historical event. The speaker did not incite imminent violence; the speaker did not disturb the peace. To be sure, the broadcast in question may have caused pain to some who heard it. But insult and outrage alone are insufficient grounds to permit the government to limit speech under existing American precedent or, as here, to punish after the fact a radio station which aired such a show.
I. FIRST AMENDMENT PRECEDENT
The central question here, as in every First Amendment case, is whether, and to what extent, speech is constitutionally protected from government restriction and regulation. The 1998 radio program at issue featured the interview of two speakers addressing the issue of Zionism and Israel. An historian, Dr. Jakob Zaki was questioned about the development of Zionism as a political theory and practice within a broad historical context with emphasis on South Africa’s role in that development. Additionally, Imam Achmat Qasim spoke about the Islamic imperative to reject Zionism and dismantle the Zionist state. The broadcast of the remarks of both Dr. Zaki and Imam Qasim is challenged as a violation of several statutes and regulations restricting certain speech in radio broadcasts. In a detailed exegesis of the development of Zionist political thought, Dr. Zaki spoke about the holocaust. Because those remarks are at the core of the complaint againstRadio 786 it is important to quote them in full and in context.
INTERVIEWER: A quick word on the holocaust guilt syndrome, how that is played up a lot and yet nobody is able to feel guilty about the atrocities in Palestine.
DR. ZAKI: I’m glad you brought up the subject of the holocaust. Holocaust is a fairly recent term coined by Elie Wiesel in America; before that it used to be called the “final solution.” If we take the Yad Vashem Memorial in Jerusalem, which is a memorial to the holocaust where all the names of the victims are preserved, visited ceremonially by Tony Blair just a week ago, even they have not been able to come up with more than 1,000,000 and a few thousand names, so I would like to ask where are those 6,000,000 Jews that the Germans were alleged to have gassed? Even if 1,000,000 died or were killed during the Second World War, this is a very shocking thing, but this has to be set against other losses in the war, like for instance the million German civilians who perished under the allied terror bombing of Germany. It’s a fact not generally known that more people died in Hamburg in one night than died in Britain as a consequence of air-raids in all the six years of the war. If more people died in Hamburg in one night than died in Britain in six years, imagine how many must have died during the bombing Dresden and yet these things are never mentioned, whereas the sufferings of the Jews we are reminded of them constantly by the media, in the newspapers, on the radio, on the television, by Hollywood, by Stephen Spielberg, I ask myself what is the evidence for this?
In 1945 when the concentration camps were liberated, can we go back to concentration camps. The German didn’t invent concentration camps, concentration camps were invented by the British during the Boer War and the purpose of a concentration camp was to concentrate the potentially hostile elements of the population. In other words, the British purpose in setting up the concentration camps in South Africa was to prevent the women on the Boer farms helping the Boer soldiers who were fighting the British in the veld. Similarly during the Second World War, all those elements that could be hostile to the German occupation were concentrated in these camps, not just Jews but socialists, communists, homosexuals in fact anybody that was opposed to the policies of the Third Reich. So the Jews were not unique in their suffering and its camps were places, they were brutal labor camps and anybody who alleges anything else is lying, but they were Germany’s answer, these camps which were vast industrial complexes employing hundreds of thousands of people were Germany’s economic answer to the vast industrial complexes of the mid-west because when America with its industrial might entered the Second World War the final result was not in any doubt.
Germany did not have DDT, DDT is an American invention and the Americans were not going to release it to the Germans during the war even as an humanitarian gesture. The great problem with the concentration camps was typhus and typhus is spread by lice. So I accept that one million, one million plus Jews died during the Second World War, but I dispute the fact that they were murdered, that they were killed by gassing. These people died like the other people in the camps from infectious diseases, from epidemic diseases, particularly typhus.
Imam Qasim did not present an historical analysis of Zionism. Instead, he condemned Zionism and spoke of the Muslim obligation to dismantle the Zionist state. Again, the Imam’s words must be analyzed in their full context.
INTERVIEWER: Let us hear what Imam Achmat Qasim, who is the Chairman of the Islamic Unity Convention and Qibla, what he has to say about Zionism and Israel.
IMAM ACHMAT KALSIM: If you are Muslim you cannot divorce yourself from the struggle between the weak and the strong, the powerful and the powerless, the just and the unjust. So Islam then is not necessarily a political leader, secular or religious, but Islam condemns Zionism for all the crimes and injustice committed against the Palestinians, the neighboring territories and the Ummah…. Generally. Islam demands that every injustice perpetrated against the innocent, be undone. This imposes an obligation on all Muslims to rise up against the Zionist entity in order to eradicate it.
The Islamic position leaves no alternative for the Zionist state but to be dismantled and destroyed and its wealth confiscated to pay off its liabilities. This obligation is a collective obligation. It’s a Fard Khifayah Defence of the Ummah…., that is of every single piece of earth over which the banner of the Islamic state has been raised, is Jihad. Allah commands all Muslims to avail themselves of all means and instruments of force to overwhelm the enemy and bring the war to a speedy end. Dismantling the Zionist lives or property, I’d like to re-emphasize this. Dismantling the Zionist State does not necessarily mean the destruction of Jewish lives or property, such destruction is, however, a necessary evil in case Zionist forces resist the dismantling or the seizure of the State of Israel. It is an Islamic principle that aggression and injustice must be met head-on. Excesses, however, is absolutely forbidden.
Islam commands Muslims never ever to transgress, never to go beyond the termination of injustice. Once the injustice has been eliminated then peace must emanate from that. We cannot them demand revenge once justice is in place. The injustice perpetrated by Zionism is so complex, so compounded and so grave, so iniquitous that there is practically no means of stopping or undoing it without a violent war in which the Zionist army, the State and all its public institutions will have to be destroyed. Islam does not, will not, compromise on Zionism or with Zionism, this must be taught to every single Jew in the world first and then to the rest of humanity.
The South African Jewish Board of Deputies (hereinafter, “SAJBOD”)challenge of the remarks of Dr. Zaki and Imam Qasim implicates two distinct, but related strains of First Amendment analysis. As speech regarding issues of considerable public interest, the remarks of both speakers would be presumptively protected by the First Amendment of the United States Constitution.
On this point a recent United States District Court decision is instructive. Indeed, American Freedom Defense Initiative7 v. M.T.A.8provides particular insight into how the South African “hate speech” regulatory scheme would fare in the United States.No. 11 Civ. 6774(PAE), 2012 WL 2958178 (S.D.N.Y. July 20, 2012) aff’d No. 11 Civ. 6774(PAE) 2012 WL 3756270, at *1 (making permanent the preliminary injunction in favor of American Freedom on July 20). Ironically, at issue in American Freedom was an offensive anti-Muslim advertisement and the question of whether a Government-run transit authority could refuse the ad on the ground that it “demean[ed] an individual or group on account of race, color, religion, national origin, ancestry, gender, age, disability, or sexual orientation.” (M.T.A. 1997 Advertising Standards) Id., at *3.
The advertisement at issue in American Freedom paraphrased Ayn Rand and stated, “In any war between the civilized man and the savage, support the civilized man. Support Israel; Defeat Jihad.” Id., at *5. The district court determined that, read in context, the ad equated Muslims with savages and on that basis ruled that it ran afoul of the government’s anti-demeaning standard.Id., at *17-18. Nevertheless the court held that enforcement of the MTA’s advertising standards violated the First Amendment because it was not content neutral Id., at *18. And though the ad was a paid advertisement, the court nonetheless found it to be “not only protected speech [but] – core political speech.” Id., at *17. In noting that the ad expressed a pro-Israel perspective on the Israeli/Palestinian conflict in the Middle East, and implicitly calls for a pro-Israel U.S. foreign policy with regard to the conflict [Id., at *8] the Court applied the highest level of First Amendment scrutiny to the MTA regulation. In siding with American Freedom the court rejected the notion the restrictions were “necessary to serve a compelling state interest and [were] narrowly drawn to achieve that end.” Id., at *16 (citingPeck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 626 (2d Cir. 2005)).
Consistent with several Supreme Court decisions, the district court concluded that the regulation’s content based discrimination required that it be struck down.Am. Freedom, at *18. In so doing the court reasoned:
“Thus, MTA’s standard permits ads that demean individuals or groups based on a host of circumstances and characteristics including place of residence, personal history, education, occupation or employment, physical characteristics (other than disability), political affiliation, union membership, point of view or behavior” … “To Illustrate the point concretely, under MTA’s no-demeaning standard, an advertiser willing to pay for the privilege is today at liberty to place a demeaning ad on the side or back of a city bus that states any of the following: ‘Southerners are bigots’9; ‘Upper West Siders are elitist snobs’;10 ‘Fat people are slobs’; ‘Blondes are bimbos’; ‘Lawyers are sleazebags’; or ‘The store clerks at Gristedes11 are rude and lazy.’ The regulation also does not prohibit an ad that expresses: ‘Democrats are communists’; ‘Republicans are heartless’; or ‘Tea Party adherents are barbaric’;12 The standard would also countenance an ad that argues: ‘Proponents [or opponents] of the new health care law are brain-damaged.’ Strikingly, as MTA conceded at argument, its no-demeaning standard currently permits a bus ad even to target an individual private citizen for abuse in the most vile of terms. For example: ‘John Doe is a child-abuser’; ‘Jane Doe runs a Ponzi scheme13’; or ‘My neighbors, the Does, are horrible parents.’” Id., at *17.
The South African hate speech regulation would obviously fail under the same analysis because only “advocacy of hatred that is based on race, ethnicity, religion or gender” is restricted. Advocacy of hatred based on disability, political affiliation or sexual orientation is not restricted. As drafted, the government regulation impermissibly allows one viewpoint while necessarily restricting another. Any such preferential treatment could not withstand First Amendment scrutiny under well-settled law in the United States.
Only if the speech fell within one of the narrowly drawn exceptions would it lose First Amendment protection and therefore be susceptible to government restriction or regulation. No such exception can be found in the matter before this tribunal. Dr. Zaki’s comments were a provocative challenge to a particular interpretation of history. Those remarks were themselves challenged on the ground that they denied or minimized the holocaust and thereby necessarily caused harm to persons who believe the holocaust occurred and occurred just as determined in the Nuremberg Trials, not long after the end of World War II.14Government regulation of historical analysis is so fundamentally foreign to First Amendment jurisprudence in the United States it is difficult to cite any American precedent or to place Dr. Zaki’s comments within an established exception to First Amendment protection. Indeed, international reaction to the recent defaming film “Innocence of Muslims” focuses on this precise point. To the many calls for the American government to simply ban the film, U.S. Secretary of State Clinton responded,
Now, I know it is hard for some people to understand why the United States cannot or does not just prevent these kinds of reprehensible videos from ever seeing the light of day. Now, I would note that in today’s world with today’s technologies that is impossible. But even if it were possible, our country does have a long tradition of free expression, which is enshrined in our Constitution and our law, and we do not stop individual citizens from expressing their views no matter how distasteful they may be. There are, of course, different views around the world about the outer limits of free speech and free expression, but there should be no debate about the simple proposition that violence in response to speech is not acceptable. We all, whether we are leaders in government, leaders in civil society or religious leaders, must draw the line at violence.15 And any responsible leader should be standing up now and drawing that line.
No matter how scandalous or dubious its content,there was no attempt by the United States government to ban the film. Nor was there any attempt by those who were offended, even outraged, by it to seek judicial prohibition againstits publication or to punish its creators or distributors (for example, YouTube) after its release. Indeed, any attempt to censor the film or to prohibit its release no matter how offensive or disturbing its content, whether by the government or a private citizen would simply have failed under well settled U. S. law.16
Perhaps, in analyzing the speech in the instant case, the closest analytical framework under First Amendment jurisprudence is the “fighting words” exception first recognized by the Supreme Court in the 1942 case of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) and the “call to action” exception best demonstrated by Brandenburg v. Ohio, 395 U.S. 444 (1969).As will be developed below, Dr. Zaki’s remarks do not fit comfortably within the fighting words exception and, in the end, even if they did, the South African regulatory scheme still fails because it is not content and viewpoint neutral. Additionally, Imam Qasim’s remarks would not qualify as “fighting words” but should instead be analyzed under the “call to action” exception to First Amendment protection. As will be explored below, the Imam’s remarks fail both prongs of the Brandenburg standard and would be considered protected speech by American standards.
Dr. Zaki/Fighting Words
SAJBOD suggests that the questioning of the fact of the holocaust or even challenging the details of the holocaust are so patently false and cause such harm that they should be denied free speech protection because, in essence, they constitute fighting words. The fighting words exception to First Amendment protection was first articulated by the United States Supreme Court in a case where the speaker shouted an epithet at a police officer in a face-to-face encounter. In Chaplinksy, a riot broke out on a city street after citizens complained to law enforcement that Chaplinsky was handing out religious literature and “denouncing all religion as a ‘racket.’” 315 U.S. at 569-70. Once the riot began, Chaplinsky screamed at a responding officer that he was “a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” Id. at 569. Having been convicted of disturbing the peace, Chaplinsky’s First Amendment defense was rejected by the Supreme Court on the ground that his speech amounted to ‘fighting words’ and was thus unworthy of constitutional protection Id. at 573-74.17
Research reveals no case in the United States where the doctrine has been applied to historical analysis and no case where the speech was as remote as here in a radio broadcast. Indeed, it is hard to find any case where the fighting words exception has been used to justify restriction on expression. According to the Supreme Court, the speech must be valueless (racial or religious name calling) and must reasonably invoke an immediate response (face-to-face confrontation).Id. at 572. Thus, in Gooding v. Wilson the Court rejected a ‘fighting words’ statute as overbroad because it was not limited to face-to-face encounters. 405 U.S. 518, 528 (1972). Indeed, neither factor is present in Dr. Zaki’s remarks in the radio interview. Though the Professor’s remarks may have been obnoxious to some, and baseless to others, nevertheless they were made in a scholarly presentation and not hurled as a racial or ethnic invective. Moreover, the remarks were not made during a volatile face-to-face confrontation with the Complainants or, for that matter, anyone else.
Fifty years after deciding Chaplinsky, the U.S. Supreme Court considered a local ordinance construed to prohibit fighting words, but only those fighting words based upon race, color, creed, religion, or gender. See R.A.V. v. City of St. Paul 505 U.S. 391 (1992). In striking down the ordinance, the Court reasoned that its fatal flaw lay in its incorporation of a content-based distinction, noting that the text of the ordinance specifically distinguished among fighting words on the basis of their subject matter: only fighting words concerning “race, color, creed, religion, or gender” were forbidden.Id. at 391. The Supreme Court concluded that the ordinance impermissibly discriminated between different viewpoints: it effectively prohibited racist and sexist fighting words, while allowing all others.Id. at 391-92. In a sharp rebuke to efforts to regulate content based speech, the Court noted that “government may not regulate [speech] based on hostility–or favoritism–towards the underlying message expressed”; it may not suppress or handicap “particular ideas.”Id. at 386,394. Yet that is precisely what SAJBOD would have this tribunal do in the matter pending before it.
The reasoning in R.A.V. mirrors the Court’s reasoning with regard to the regulation of pornography. For, example, in American Booksellers Ass’n v. Hudnut, the Supreme Court affirmed the United States Court of Appeals for the Seventh Circuit18 which had invalidated an Indianapolis anti-pornography ordinance that had declared pornography to be a prohibited form of sex discrimination.771 F.2d 323, 334 (7th Cir. 1985), aff’dmem., 475 U.S. 1001 (1986). The ordinance defined pornography as “the graphic sexually explicit subordination of women,” that depicted women in specified sexually subservient postures. Am. Booksellers, 771 F.2d at 324.The constitutional infirmity for the Seventh Circuit in Hudnut and the Supreme Court in R.A.V., were both viewpoint discrimination. That is to say, the ordinance in Hudnut, made sexually explicit speech portraying women as equal lawful; but the same sexually explicit speech portraying women as subordinate as unlawful.Am. Booksellers, 771 F.2d at 325. In other words, because the ordinance “establishe[d] an ‘approved’ view” of women and of sexual relations and punished all others it was constitutionally invalid. Id.at 328. As noted by the Court, it has long been at the core of First Amendment values that “the state my not ordain preferred viewpoints in this way. [Indeed] The Constitution forbids the state to declare one perspective right and [to] silence opponents.”Id. at 325.
The presumption against viewpoint discrimination is not limited to cases of racist and sexist expression. For example, the Supreme Court has employed the same presumption to strike down laws restricting expression that discredited the military and to invalidate flag-burning statutes.See, e.g.,Schacht v. United States, 398 U.S. 58, 67 (1970) (military); Kingsley Int’l Pictures Corp. v. Regents, 360 U.S. 684, 688 (1959) (adultery); Texas v. Johnson, 491 U.S. 397, 416-17 (1989) (flag-burning); United States v. Eichman, 496 U.S. 310, 317-18 (1990) (same).
R.A.V. is constitutionally important not merely because it continued a long line of precedent invalidating statutes that either on their face or in application favored one viewpoint over another. R.A.V. is important because the Supreme Court applied the viewpoint discrimination doctrine even in an area of otherwise wholly unprotected speech – namely, fighting words.Thus, R.A.V. limited Chaplinksy’s reach by holding that while government may proscribe and punish fighting words it may not do so to favor one point of view over another. R.A.V., 505 U.S. at 396. This issue served as the main sticking point between the majority and dissent in R.A.V.19 and is critical to understanding the Court’s subsequent decision in Virginia v. Black.See, e.g., R.A.V., 505 U.S. at 398-403; (White, J., concurring in the result but not the majority opinion that the presumption against viewpoint discrimination mandated invalidation of the statute on the view that the presumption failed to operate in spheres of unprotected speech); id. at 415-16 (Blackmun, J., concurring on same ground as White, J.) id. at 433-36 (Stevens, J., concurring on the view that the ordinance incorporated no viewpoint-based distinction).
In Black, decided ten years after R.A.V., the Supreme Court made the distinction clear. The Court upheld a statute that prohibited “cross burning with intent to intimidate” because the statute did not single out expression directed at any specific group. Virginia v. Black, 538 U.S. 343, 347-48 (2003). In doing so, the Court went to great lengths to explain that cross burning occupies an infamous place in American history and has historically been used as an intimidation device. Id. at 352-57. Nevertheless, the Court rejected the statutory provision that stated public cross burning “shall be prima facie evidence of an intent to intimidate” on the ground that such a rule could trample on the free expression rights of someone who chooses to burn a cross for some reason other than to intimidate. Id. at 364-65.
The importance of R.A.V. and Black cannot be overstated. Both cases dealt with cross burning, an act which brings to mind for most Americans racial hatred, KKK20 rallies and lynchings. It is some of the most racially charged expression and it is expression that causes emotional anxiety and pain to a large portion of American society – certainly African Americans – but Catholics and Jews as well.21 The degree of pain or insult or outrage felt by the listener to a given statement may play a part in determining whether particular expression qualifies as fighting words “which by their very utterance inflict injury or tend to incite an immediate breach of peace,” but it may play no part in a judicial determination of whether a statute is invalid when it favors one viewpoint over another. SeeChaplinsky, 315 U.S. at 572; R.A.V., 505 U.S. at 391. This point was once again recently borne out in the Supreme Court’s opinion in Snyder v. Phelps where an offensive public demonstration (opposing gays in the military) at the funeral of a fallen soldier was upheld as protected speech. 131 S. Ct. 1207, 1220-21 (2011).22In rejecting the soldier’s family’s claim to civil damages the Court stated, “As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”Id. at 1220.
SAJBOD suggests that even if Dr. Zaki’s speech does not constitute fighting words, it could in any event be restricted under a group libel theory, even in the United States. The only issue of group libel considered by the Supreme Court dates back some 60 years to its decision in Beauharnais v. Illinoiswhere the Court upheld a conviction for criminal libel and recognized for the first and only time a theory of group defamation. 343 U.S. 250, 266 (1952). In Beauharnais, a white supremacist, had distributed a leaflet accusing blacksof rape, robbery and other violent crimes. Id. at 252. Although Beauharnais had urged whites to unite and protect themselves against the evils he attributed to blacks, the Court held it did not need to address whether he had posed a “clear and present danger” of violence in light of the fact that his libelous speech was unprotected. Id. at 266.
Beauharnais has never been explicitly overruled by the Supreme Court but lower courts and scholars alike cast serious doubt on its continued efficacy. See Michael J. Polelle, Racial and Ethnic Group Defamation: A Speech-Friendly Proposal, 23 B.C. Third World L.J. 213, 253-54 (2003). Most believe it has been thoroughly undermined by subsequent decisions. See id. The dissenting opinions in Beauharnais attacked the Court’s majority rationale by stressing that both the libel and the “fighting words” exceptions to free speech involved utterances addressed to individuals, and were hence unlikely to have any significant impact on public debate. See Beauharnais, 343 U.S. at 272 (Black, J., dissenting); id. at 298-301 (Jackson, J., dissenting). In contrast, group libel was a public, not private, matter and its prohibition would inhibit public debate. See id. at 301.
In his dissent, Justice Douglas expressed concern with the tension between libel laws and First Amendment values. Id. at 287. He criticized the majority opinion because, in his view, it “represents a philosophy at war with the First Amendment–a constitutional interpretation which puts free speech under the legislative thumb.” Id.Yet Douglas was concerned about more than just upholding free-speech values to protect the integrity of the First Amendment–Douglas was specifically concerned with the fate of minorities under a regime of limited free speech. Id. at 286-87. He could not have been more clear, “Today a white man stands convicted for protesting in unseemly language against our decisions invalidating restrictive covenants. Tomorrow a Negro will be hailed before a court for denouncing lynch law . . . .”Id. at 286 (Douglas, J., dissenting).Douglas concluded his dissent by stating that the majority opinion “is a warning to every minority that when the Constitution guarantees free speech it does not mean what it says.” Id. at 287.
The difference between Douglas’ dissent and Frankfurter’s majority is dramatic. They both were concerned about the rights of minorities. Frankfurter focused on the importance of protecting the group itself from slander, and Douglas focused on the need for free speech to protect the interests of individual minorities. Surprisingly to most, Frankfurter won (a bare five justice majority) but his group rights theory did not catch on. In fact, the Illinois legislature repealed its group libel statute only years after it was upheld by the Supreme Court. Ill. Rev. Stat. ch. 38 § 471 (repealed 1969).
Justice Frankfurter’s justification of group libel statutes was foreclosed by the development of First Amendment protections in the libel context, best shown by the Supreme Court’s decision in New York Times v. Sullivan where the Court struck down a libel claim because it violated the First Amendment. 376 U.S. 254, 264-65 (1964). The Supreme Court held that it would violate the First Amendment for “a good-faith critic of government (to) be penalized for his criticism.”See Anthony Lewis, New York Times v. Sullivan Reconsidered: Time to Return to “The Central Meaning of the First Amendment,” 83 Colum. L. Rev. 603 (April 1983).
In the early through mid-twentieth century, the Supreme Court carved out and developed an exception to First Amendment protection for speech that incites violence. The culmination of that line of reasoning was Brandenburg v. Ohio where the Court stated that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of violation of law except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.395 U.S. at 447; emphasis supplied.
The test to define whether‘advocacy’ or ‘incitement’ speech enjoys First Amendment protection has evolved over the last century. The “bad tendency” test that dominated the pre-World War I era was later overturned by the “clear and present danger” test that, in turn, was later replaced by the “imminent lawless action” test. See David M. Rabban, Free Speech in its Forgotten Years 16 (Arthur McEvoy & Christopher Tomlins eds., 1997) (bad tendency test); see also Patterson v. Colorado, 205 U.S. 454, 462-63 (1907) (bad tendency test); Schenck v. United States, 249 U.S. 47, 52 (1919) (clear and present danger test); Brandenburg, 395 U.S. at 447 (imminent lawless action test).
Reliance on the “bad tendency” test is most clearly illustrated by Patterson v. Colorado.See 205 U.S. at 462-63 (stating that if the speech or publication “tends” to “obstruct the administration of justice” that the speech is not protected). In Patterson,Thomas M. Patterson, a Senator from Colorado, owned and edited newspapers in his home state. See People ex rel. Attorney General v. New-Times Publ’g Co., 84 P. 912, 916, 919 (Colo. 1906) aff’d sub nom.;Patterson v. Colorado, 205 U.S. 454 (1907). In his editorials, cartoons, and letters, he accused various judges of acting as tools of the utility corporations, which controlled the Republican Party.New-Times, 84 P. at 913-14. Having been convicted of obstruction, Patterson ultimately appealed to the Supreme Court, arguing that it constituted a violation of his First Amendment rights.Patterson, 205 U.S. at 458, 462. The Court, in an opinion authored by Justice Oliver Wendell Holmes, Jr., rejected Patterson’s claim stating that the First Amendment prevents all “previous restraints upon publications[,]” but allows “the subsequent punishment of such as may be deemed contrary to the public welfare.”Id. at 462 (quoting Commonwealth v. Blanding, 3 Pick. 304, 313-14 (Mass. 1825); Respublica v. Oswald, 1 Dall. 319, 325 (Pa. 1788). Patterson’s “bad tendency” gave way to the less deferential “clear and present danger” test first developed by the Court in the World War I era case of Schenck v. United States, 249 U.S. at 52. Charles Schenck was convicted for distributing 15,000 leaflets to young men of draft age, advocating opposition to the draft. Id. at 48-50.In a unanimous decision, the Court held that Schenck’s conviction was constitutional. Id. at 53. Justice Holmes, writing for the Court, stated that “[t]he question in every case is whether the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”Id. at 52.
The clear and present danger standard held sway, sometimes tenuously, through the anti-communist 1950’s23 until it was supplanted in Brandenburg by the “imminent lawless action” test, which continues to prevail today.SeeDennis v. United States, 341 U.S. 494 (1951); Brandenburg, 395 U.S. at 447-49.Some suggest that with Brandenburg, the Court “combined significant aspects of several previous First Amendment cases into a single, high standard of protection for all speech, even speech advocating violation of the law.”David Goldberger, Protecting Speech We Hate, 32 Litigation 40, 42 (2006).
Its unanimous 1969 decision in Brandenburg, the Supreme Court set aside a Ku Klux Klan leader’s criminal conviction on the ground that his remarks were protected by the First Amendment. 395 U.S. at 448-49. The leader had staged a rally for several television reporters where he made derogatory remarks against blacks and Jews suggesting that the government should return blacks to Africa and Jews to Israel. Id. at 445-46. Importantly for First Amendment purposes, the speaker stated that if the blacks and Jews did not leave, the Klan would take matters into their own hands to force the removal. Id. at 446. The Court ruled that the mere advocacy of violence did not forfeit First Amendment protection. Id. at 449. Instead, the Court stated that speech lost such protection only if it incited imminent lawless activity and was likely to produce such activity. Id. at 448-49. No such claim can be made in the matter before this tribunal.
Imam Qasim’s comments are remarkably similar to the protected speech in Brandenburg. Like the speaker in Brandenburg, even if Imam Qasim’s remarks were interpreted as advocating violence, they cannot be interpreted to incite imminent lawlessness. Indeed, the Imam specifically said, “I’d like to re-emphasize this. Dismantling the Zionist State does not necessarily mean the destruction of Jewish lives and property. Such destruction is, however, a necessary evil in case Zionist forces resist the dismantling or the seizure of the State of Israel.” Like Brandenburg, the Imam’s comments simply lack the requisite imminence to satisfy the Brandenburg test under U.S. law. Moreover, the likelihood of lawlessness resulting from the Imam’s speech is clearly lacking on this record. In the 14 years since the Imam’s speech, SAJBOD can point to no instances of lawlessness attributed to his remarks.
II. FIRST AMENDMENT THEORY
The rulings in the individual cases cited above seem harsh, even extreme, to some. They have been criticized by liberal democracies and totalitarian regimes alike. First Amendment jurisprudence must be viewed not as a collection of unrelated holdings but as an imperfect striving by the American people through its courts to achieve the goals contemplated by our founders: limited government, stable democracy and individual fulfillment. Each of these goals have been articulated and analyzed by the Supreme Court and legal scholars. They lie at the heart of First Amendment jurisprudence and taken together suggest a powerful argument that South Africa should adopt the American approach to freedom of expression, to provide meaning and direction to the values that were at the core of its own revolution some eighteen years ago.24
The First Amendment is not worded as a grant of freedom by the government to the governed; nor is it a burden placed on government to protect the governed’ freedom; it is instead an express limitation on the power of government to interfere with freedom held by the governed. This notion sometimes referred to as “libertarian” or “negative freedom,” has its roots in the Natural Law and limited government theories of John Locke.25 It is a textual difference so obvious that its fundamental importance is many times overlooked. One cannot overstate the theoretical and philosophical difference between a state that affords its people rights and a state where those rights pre-exist the state and are protected from government interference by the Constitution. The difference is practical as well as theoretical. The structure and text of the First Amendment places the burden squarely on the government to justify any interference or limitation on expression. In the United States, it is never up to the speaker to justify his speech; it is always the burden of government to justify any attempt to restrict expression.
The libertarian theory underlying the First Amendment yields another practical result. In systems where rights are afforded by the government to the governed, those rights are more easily subordinated to other interests of the government or other freedoms which are also afforded to the governed. In the present context, this is seen in the explicit “balancing” of one person’s freedom of expression with another’s right to one’s dignity. There is more than balancing of First Amendment rights against other rights in the American jurisprudence. Indeed, one could argue that there is no balancing at all. Instead, in every case, there is an analysis of the importance of the speech being restricted, an analysis of the government’s countervailing interest and, most importantly, an analysis of the nexus between achieving the government’s countervailing interest and the impact on expression. Where the First Amendment is implicated, the Government’s benign, even noble intentions are never dispositive; it is the means to achieve those intentions that are critical. See Johnson, 491 U.S. at 418 (invalidating a law prohibiting the desecration of the American flag, Court stated, “it is not the State’s ends, but its means, to which we object”). It is this last critical component of the analysis that is absent in situations where the speaker claims a right to free expression and an objector claims a right to dignity. Unless the government is held to account for all restrictions of speech – which the libertarian model guarantees – the Court is left with an incomplete analytical framework; simply weighing against one another the abstractions of expression versus dignity. See Jean-Francois Flauss, The European Court of Human Rights and the Freedom of Expression, 84 Ind. L.J. 809 (2009) (analysis of the inadequacies of Court directed balancing).
The deeply engrained American distrust of and desire to limit government is reflected in another critical aspect of First Amendment doctrine. The core requirement of viewpoint neutrality discussed above stems from a fundamental belief that the governed are far more capable than the government of distinguishing truth from falsehood and that the government’s role is not to regulate the content of the marketplace but to ensure it remains open to all ideas. A government that is empowered to insist today that an historical event happened in a particular way can insist tomorrow that it happened differently or did not happen at all. Governments lie. Governments get it wrong. Only a robust clash of ideas in an open debate has any hope of exposing Government lies and missteps. To turn a familiar phrase around; the cure for government lies is not more government; the cure is open, robust debate.
The American approach to the regulation of hate speech has been consistent. From the initial arguments in the 1940’s to the present, the United States has resisted international efforts to restrict freedom of expression in the name of anti-discrimination or human dignity statutes.26The United States feared such restrictions would be used by totalitarian regimes to stifle criticism of the government.27Recent events in Moscow suggest that the American concerns were not misplaced. When the young women of the alternative rock band Pussy Riot criticized Russian President Putin in a performance from inside the main Orthodox Church in Moscow, most believed they were guilty of simple trespass or disturbing the peace. Instead, they were convicted and sentenced to long prison terms based on the hooliganism statute, one iteration of Moscow’s hate speech laws. Pussy Riot Members Jailed for Two Years for Hooliganism, BBC News (Aug. 17, 2012, 13:46 ET), http://www.bbb.co.uk/news/world-europe-19297373.
Government cannot be trusted; government gets it wrong; the power of government must be narrowly circumscribed. One scarcely needs to make that point in South Africa.
Marketplace of Ideas/Search for Truth
“Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple, who ever knew Truth put to the worse in a free open encounter?”John Milton, Milton’s Areopagitica: A Speech for the Liberty of Unlicensed Printing 65 (T.G. Osborn 1973).
Open, robust debate has long been a crucial liberty recognized by the philosophical forefathers of the American Constitution and protected by America’s founders. The marketplace of ideas metaphor was introduced into Supreme Court doctrine by Justice Holmes in his 1919 dissent in Abrams v. United States where he said society’s ultimate good “is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
The marketplace metaphor is routinely used by the Supreme Court in the resolution of free-expression cases. Justices have used it to protect expression in virtually every area of First Amendment jurisprudence: prior restraint, libel, invasion of privacy, pornography, access, advertising, picketing, expressive conduct, broadcasting, and cable regulation. The Court has repeatedly said the primary purpose of the First Amendment is to protect an uninhibited marketplace where differing ideas can clash.
Ironically, one of the most eloquent explanations of the First Amendment’s critical role in the search for truth was penned by none other than Justice Brandeis in his concurring opinion in Whitney v. California, 274 U.S. 357, 375 (Brandeis, J., concurring). The same Justice Brandeis is roundly excoriated by Dr. Zaki in his remarks critical of the rise of Zionism. Justice Brandeis’ words bear repeating:
Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.Id. at 375-76.
The metaphor has two critical components. One is openness – the marketplace must be open to all ideas – even false ideas. The second component is competition – the ideas in an open marketplace must “clash” and “grapple;” they must stand up to assault and prove their worthiness. Truth cannot be pampered, too delicate to be examined – truth must be tested, forged in the furnace of doubt and questioning.
Perhaps the notion of competition of ideas is best expressed by Professor Alan Dershowitz, an avowed Zionist but also a fierce defender of the First Amendment. In a conference on freedom of speech and holocaust denial Professor Dershowitz defended his view of the First Amendments’ critical role in limiting government and facilitating the search for truth.
I recently brought a lawsuit on behalf of a guy named Terzi, the head of the PLO, because the State Department would not allow me to debate him. I want to debate that guy because I want to kick his ass in a debate. I don’t want the State to deny me the right to beat him in a debate and I don’t want the State to deny me the anti-Holocausters in a debate. Freedom of Speech and Holocaust Denial, 8 Cardozo L. Rev. at 583.
Reading the transcript of the initial proceeding before this tribunal, one is struck with the similarities between SAJBOD’s self-assured pronouncements with respect to the fact and the details of the Holocaust and the words of the Catholic Church in its indictment of Galileo. Mr. Smith, on behalf of SAJBOD, stated to the tribunal without reservation that there is one truth about the holocaust – his. And to even debate the matter would give credence to the lie.
MR. SMITH: I need to just explain the significant of Holocaust denial. As I said you will hear later from Professor Shain that the Holocaust was and is one of the most world documented events in history a terrible, terrible tragedy. 100,000’s of survivors are still alive to give their testimony to the fact that the Jews were a killed as a result of deliberate policy of Nazi Germany. In fact Mr. Chairman I want to tell you that there’s a lady sitting behind me who is a survivor of the Holocaust and if the question of whether the Nazi’s killed Jews and gassed them is to be debated, which we will not do much as I wouldn’t like to, I would even proffer her in evidence. But we believe that to debate whether the Nazi’s killed the Jews, whether it was the deliberate policy or not gives credence to the lie. It gives it respectability. It gives it a certain basis for morality, in other words there are 2 sides to this question.
There aren’t 2 sides to that question Mr. Chairman. So for us to go on air and debate the un-debatable, would have just spread the calumny. Spread the lie and spread the hurt. We decided that we would rather explain to you, as I have just done in these past few minutes, why we did not accept the invitation to debate the issues of that broadcast. In addition that Mr. Chairman, although it’s several years ago now, it strikes me as very difficult to go onto a broadcast and say no, Jews are not liars and thieves… It’s a very difficult thing. It’s not the same thing as discussing Middle East issues, and if you note Mr. Chairman and it is extremely important that you understand this, that notwithstanding the heading to the talk, which says Zionism and other issues.
Not one single aspect of our complaint relates to Zionism or issues of the Middle East. We studiously avoided them although you may accept from me that we have very strong opinions against what was said, but nonetheless we did not want to say that there should be no debates or no freedom of expression on those issues, but when it came to maligning, hurting and causing harm to the Jewish people we felt that we had to bring this compliant and it was not a matter, which met itself for any kind of debate without giving credibility to that terrible lie.
This was exactly Galileo’s crime. He dared suggest that a central tenet of Christian cosmology – the Earth lies at the center of the universe – was factually untrue. Rather than allow debate of the point, the Church charged Galileo with heresy:
“We say, pronounce, sentence, and declare, that thou, the said Galileo, by the things deduced during this trial, and by thee confessed as above, hast rendered thyself vehemently suspected of heresy by this Holy Office, that is, of having believed and held a doctrine which is false, and contrary to the Holy Scriptures, to wit: that the Sun is the centre of the universe, and that it does not move from east to west, and that the Earth moves and is not the centre of the universe: and that an opinion may be held and defended as probable after having been declared and defined as contrary to Holy Scripture; and in consequence thou hast incurred all the censures and penalties of the Sacred Canons, and other Decrees both general and particular, against such offenders imposed and promulgated. “We order that by a public edict the book of DIALOGUES OF GALILEO GALILEI be prohibited.
Doug Linder, The Trial of Galileo (2002), available at http://law2.umkc.edu/faculty/projects/ftrials/galileo/galileoaccount.html
Galileo was forced to recount and abjure.
I have been judged vehemently suspected of heresy, that is, of having held and believed that the Sun is the centre of the universe and immoveable, and that the Earth is not the centre of the same, and that it does move.”
“Nevertheless, wishing to remove from the minds of your Eminences and all faithful Christians this vehement suspicion reasonably conceived against me, I abjure with sincere heart and unfeigned faith, I curse and detest the said errors and heresies, and generally all and every error and sect contrary to the Holy Catholic Church. And I swear that for the future I will neither say nor assert in speaking or writing such things as may bring upon me similar suspicion; and if I know any heretic, or one suspected of heresy, I will denounce him to this Holy Office, or to the Inquisitor and Ordinary of the place in which I may be.” Id.
In the end, the stifling of debate ruined Galileo but it did not change the truth. Id. No matter how harshly the Church insisted, and how sincerely Galileo abjured, the Earth is not the center of the universe. Do we suggest Professor Zaki is Galileo? Of course not. The point is that truth has a way of confounding even the most self-assured. And isn’t it truth we seek? Truth as an end in itself and truth to make us better people and help us build better governments. And don’t we honor those killed and those who survived by studying and debating this tragic complex history rather than turning it into unexplained myth, or worse, a simple cartoon?
Especially pertinent to the emerging democracy in South Africa is the self-governance rationale underpinning the First Amendment. This theory, championed by Alexander Meiklejohn in the mid-20th century, holds that only political discourse should enjoy First Amendment protection but that protection must be absolute. See Alexander Meiklejohn, Free Speech and its Relation to Self-Government (1st ed. 1948), http://digital.library.wisc.edu/1711.dl/UW.MeikFreeSp. Meiklejohn reasoned that in order for a citizen to truly be the ruler in a democracy he/she must be afforded access to all points of view on public matters. Id. The Supreme Court’s insistence on viewpoint neutrality can be traced directly to the self-governance theory.
Two variants to the limited government and self-government theories have taken root in post-Vietnam, post-Watergate America. Both hold that the First Amendment plays a critical stabilizing role in a diverse multicultural society. One theory concerns itself with the restraint on governmental excess, the other as a counter balance to radical change.
In 1970, at the height of the Vietnam War era, Thomas Emerson postulated the theory that because freedom of speech allows people to “blow off steam” it provides a balance between stability and change in society – Emerson reasoned that people who have had full freedom to state their position and to persuade others will be more willing to accept decisions that go against them. Without free expression, the real problems of society may remain hidden and fester. So by suppressing reform, censorship may transform problems into a revolution.SeeThomas Emerson, Toward A General Theory of The First Amendment (1966); Thomas Emerson, The System of Freedom of Expression (1970).
In post-Watergate28 America, in 1977, Vincent Blasi theorized that the First Amendment allowed the media to play a critical watchdog role and therefore act as a check on governmental excess. Vincent Blasi, The Checking Value in First Amendment Theory, 1977 Am. B. Found. Res. J. 526, 538 (1977). He cautioned that “…abuse of official power is an especially serious evil . . .” to be avoided because government can use legitimized violence for its own end.Id.Because abuse of official power is so harmful and likely to occur, its prevention and containment are of paramount importance. Id. Because of the size and complexity of modern government, there is a need for well-financed, well-organized, professional critics of government—“the media.”Id.
Finally, there is the individual, as opposed to collective, goal of the First Amendment. This theory holds that individual realization of character and potential as a human being means the right to form your own beliefs/opinions and the right to express those beliefs/opinions. This underpinning of the First Amendment is critical in the present context because it is by far the closest to those aspirations underlying the anti-discrimination and the promotion of human dignity provisions of the South African Constitution.
Lee Bollinger, a leading proponent of this theory, maintains that free speech principles must protect not only speech which society deems acceptable but also speech which is despised by society. Lee Bollinger, The Tolerant Society: Freedom of Speech and Extreme Speech in America (Oxford Univ. Press 1986). Bollinger’s “tolerance theory” holds that freedom of expression is the central component of the creation of a tolerant pluralistic society. Id. Viewed in this light, hate speech is not a necessary evil or by-product of a free society; but rather it is central to a functioning First Amendment designed to facilitate a more tolerant society. In other words hate speech does not destroy tolerance; the allowance of hate speech promotes tolerance. See Stuart Chan, Hate Speech Bans: An Intolerant Response to Intolerance, 14 Trinity C.L. Rev 77 (2011) (giving a detailed exposition of this point).
It is important to keep in mind that at the core of this controversy are words: words spoken in a radio broadcast and words written in a series of statutes and regulations. Words convey thought; words have meaning; words are important. But words are not deeds. In the United States, hatred is tolerated – even hateful speech; violence is not. And violence fueled by hatred can be more severely punished. It would be wrong to conclude that America and Americans care less about collective equality and human dignity than they do about individual freedom of expression. Americans have concluded, and their jurisprudence reflects that human dignity and equality are not only not hampered by unrestricted expression but that those important goals can only be achieved by unrestricted expression.
It is equally wrong to conclude that the American model denies the pain caused by speech. Speech in need of First Amendment protection is by its very nature controversial—in other words, it insults and outrages some persons; in most cases, many. There is no question that the clash of ideas causes pain; the suppression of ideas causes greater harm.29
South Africa must find its own way. This tribunal may look to American jurisprudence, indeed it is specifically allowed to do so by Article 39 of the Bill of Rights. However, it is not for America, or Americans, to dictate the path. The reason to follow the American First Amendment jurisprudence is not because it has worked in the United States. The reason to follow the American approach is because it will work for South Africa, in a place and a land which not so long ago fought a revolution fueled often by speech viewed as unpopular or dangerous by those who clung to power.
No better articulation of this point can be found than the statement made by the Chairman of this Tribunal in the earlier proceeding:
CHAIRPERSON: But in contrast, in South Africa we have freedom of expression as exposed by Section 16 of the Constitution, and in fact in the very same matter, which came before the Constitutional Court involving the Board and the Islamic Unity Convention, the Constitutional Court was at pains to explain what freedom of expression stood for in South Africa, but read extracts from it (inaudible), it’s page 90 of that bundle that was handed to you. At paragraph 26 is says “this Court has held that freedom of expression is one of the web of mutually supporting rights in the Constitution. It is closely related to freedom of religion, belief and opinion, the right to dignity as well as the right to freedom of association, the right to vote and to stand for public office and the right to assembly. The rights simplicity recognize the importance, both for a democratic society and for individuals personally of the ability to form and express opinions, whether individually or collectively even where those views are controversial.
As to its relevance to a democratic State, the court has pointed out that freedom of expression lies at the heart of democracy. It is valuable for many reasons including its instrumental functions as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society in general. The Constitution recognizes that individuals in our society need to be able to hear, form and express opinion views freely on a wide range of matters.” And then it goes on to say (inaudible) it was also a Constitutional Court matter, it was said, “Freedom of expression especially when engaged in conjunction, which is accompanying fundamental freedoms, is of the utmost of importance in the kind of open and democratic society, the Constitution has set as our aspirational norm. Having regard to our recent past of thought control. Censorship and enforced conformity to governmental theories, freedom of expression, the free and open exchange of ideas is no less important than it is the United States of America. It could actually be contended with much force that a public interest in the open marketplace of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way. Therefore we should be particularly (inaudible) to outlaw any form of thought control, however respectably dressed.”
South Africa should not seek to limit controversial speech, even speech that is painful; as such speech is a necessary evil in a liberal democracy. Rather, South Africa should protect controversial speech as a way to build and strengthen a liberal democracy based on truths tested and found worthy.
1 Clause 2(a) of the Code of Conduct for Broadcasting Services, contained in Schedule 1 to the Independent Broadcasting Authority Act of 1993 at the time of enactment, provided in relevant part that: “Broadcasting licensees shall… not broadcast any material which is indecent or obscene or offensive to public morals or offensive to the religious convictions or feelings of any section of a population or likely to prejudice the safety of the State or the public order or relations between sections of the population.”
2 InIslamic Unity Convention v. Independent Broadcasting Authority 2002(4) SA 294 (CC), Clause 2(a) was declared to be inconsistent with section 16 of the Constitution and invalid to the extent that it prohibits the broadcasting of material that is “likely to prejudice relations between sections of the population.” The Court specifically declined to rule on the constitutionality of the remainder of Clause 2(a). The order was given retrospective effect to the date on which the Constitution came into force, namely prior to the date of the instant complaint. Taking into account the Court’s notional severance of Clause 2(a), the law would apply as follows for the purposes of this case: “Broadcasting licensees shall . . . not broadcast any material which is indecent or obscene or offensive to public morals or offensive to the religious convictions or feelings of any section of a population or likely to prejudice the safety of the State or the public order.”
3 The regulations regarding the Code of Conduct for Broadcasting Service Licensees issued in terms of section 54 of the Electronic Communications Act of 2005, provides in relevant part that: “3 Violence and hate speech: (1) Broadcasting services licensees must not broadcast material which, judged within context: (a) Contains Violence which does not play an integral role in developing the plot, character or theme of the material as a whole; or (b) Sanctions, promotes or glamorizes violence or unlawful conduct; (2) Broadcasting services licensees must not broadcast material which, judged within context, sanctions, promotes or glamorizes violence or unlawful conduct based on race, national or ethnic origin, color, religion, gender, sexual orientation, age, or mental or physical disability; (3) Broadcasting services licensees must not broadcast material which, judged within context, amounts to (a) propaganda for war; (b) incitement of imminent violence; (c) the advocacy of hatred that is based on race, ethnicity, religion or gender and that constitutes incitement to cause harm; (4) Exclusions: Regulation 3 does not apply to: (1) A broadcast which, judged within context, amounts to a bona fide scientific, documentary, dramatic, artistic or religious broadcast; (2) A broadcast which amounts to a discussion, argument or opinion on a matter pertaining to religion, belief or conscience; or (3) A broadcast which amounts to a bona fide discussion, argument or opinion on a matter of public interest.”
4 The First Amendment of the U.S. Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”U.S. Const. amend. I.
5 Case citations which reference to U.S. between volume and page numbers refer to decision of the highest court in the United States, the U.S. Supreme Court.
6See,generally, National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977) wherein a uniformed, brown-shirt neo-Nazi organization planned a march and rally in the Chicago suburb of Skokie, Illinois, known for a high population of Jewish families, including many Holocaust survivors. Initially a local court enjoined the neo-Nazi group from “[m]arching, walking or parading or otherwise displaying the swastika on or off their person; [d]istributing pamphlets or displaying any materials which incite or promote hatred against persons of Jewish faith or ancestry or hatred against persons of any faith or ancestry, race or religion.” Though the Village eventually agreed to grant a permit for the march it required a $350,000 insurance bond, effectively making the march impossible for the small group; ultimately, the U.S. Supreme Court ruled in favor of the neo-Nazis, holding the insurance bond unconstitutional as it abridged the group’s speech rights by placing an impossible pre-emptive cost burden on the group, thereupon affirming equal protection under the law even for the most despised of ideologies.
7 The American Freedom Defense Initiative was founded in 2010 and is an offshoot of “Stop Islamization of America,” an American far-right anti-Islam/anti-Muslim organization.
8 The Metropolitan Transit Authority is a massive government operated agency responsible for the daily public transportation of millions of New York City riders in the city’s subway and bus system.
9 Referring to the Southern states in the United States.
10 Referring to an area in upper New York City noted for liberal politics and its academic circles.
11 Referring to a nationwide chain of small super markets begun in New York City.
12Referring to a “populist,” political movement that has emerged in the United States over the last four years or so.
13 Referring to a fraudulent investment operation that pays returns to its investors from their own money paid by subsequent investors rather than from profit earned by the individual or organization running the operation.
14 The Nuremburg Trials were a series of military tribunals held by the Allied forces of WW II, most notable for the prosecution of prominent members of the political, military and economic leadership of Nazi Germany. Among other things, the trials made findings of fact with regard to the Holocaust.
15 After the video was released there were violent demonstrations in opposition to its depiction. Despite the predictable and some would say desired results the film and its release was, as noted by Secretary Clinton, nonetheless guaranteed under the First Amendment of the United States Constitution.
16 Parenthetically, it should be noted that only days after the video controversy erupted internationally, satirical cartoonspotentially defaming the Prophet were also published in France, fully protected under its free speech laws, despite the fact that many viewed them as a vile attack on an entire religion which caused significant pain and suffering to its adherents and could very well be viewed as an incitement to violence. SeeCharlie Hebdo, No. 1057,“Intouchables 2,” 19 September 2012.
17 As noted by the Supreme Court in Chaplinsky “fighting words” are words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” 315 US 568, 572 (1942). Such words are “so valueless and so harmful that government may prohibit them entirely without abridging the constitution.” Id.
18 In the United States judiciary, Circuit Courts of Appeal are intermediate courts which sit between the district and Supreme Courts.
19 The four Justices who refused to join the Court’s opinion also voted to invalidate the St. Paul ordinance, but only because of a concern about over breadth.
20The Ku Klux Klan, often abbreviated the KKK, and informally known as the Klan is the name of three distinct past and present far-right organizations in the United States which have advocated extremist reactionary “viewpoints” such as white supremacy, white nationalism, and anti-immigration and which has used threats, violence and murder at various times.
21 One is reminded of the enormous flaming cross that confronted Al Smith – the first Catholic to run for President – in 1928 while he campaigned in Oklahoma. See, Robert A. Slayton, Empire Statesman: The Rise and Redemption of Al Smith. Smith is famous for a quote that captures the American approach to free expression, “The best way to kill anything un-American is to drag it out into the open, because anything un-American cannot live in the sunlight.”
22Phelps concerned the Westboro Baptist Church, a Calivinist-Baptist denomination led by Pastor Fred Phelps, based in Topeka, Kansas, described by some human rights monitors as a “hate group.” WBC opposes homosexuality in America in the most virulent terms; since 2005, it has picketed at the funerals of U.S. soldiers, proclaiming that US military casualties in overseas wars are divine retribution for America’s tolerance of homosexuals, because (as their picketing signs declare “God Hates Fags”); in addition WBC has staged a world Koran-burning day; has demonstrated in favor of the heavy Chinese death toll following an earthquake in Sichuan, China; and has protested at the U.S. Holocaust Museum and other Jewish sites in Washington D.C., because “Jews Killed Jesus.” Each of these activities though offensive to some or perhaps many is nonetheless accorded full protection under the First Amendment.
23 Also known as the so-called McCarthy era in the United States, it is a period noted for wide spread use of reckless and unsubstantiated accusations of disloyalty, subversion and treason without proper regard for evidence, as well as demagogic attacks on the character or patriotism of political adversaries.
24 It is of course no mere coincidence that following the U.S. revolution the framers of the American Constitution exalted free speech above all other amendments by designating it as the First Amendment.
25 “The right to free speech is recognition that speech in itself is devoid of physical threats is not an initiation of force and does not warrant any retaliatory force. Many dictatorships and People’s States will outlaw certain types of speech as being dangerous or inflammatory against the will of people, but this censorship is just an evasion of reality – hoping that if a problem is ignored it will go away. Freedom of speech is required for liberty because without the freedom of speech, you cannot persuade others of what is right and what is wrong. Without the freedom to persuade others, only force can make people act in a particular way, It is an important check on government because it allows transgressions to be identified and fixed rather than hidden and perpetuated.” John Locke, The Second Treatise on Civil Government, 1690.
26 Refusing to be bound by any obligation to restrict individual freedom of speech, the United States ratified the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), but adopted a reservation to Article 4 which prohibits and criminalizes hate speech. Jean-Marie Kamatali, The U.S. First Amendment Freedom of Expression in Other Liberal Democracies and How Each Influenced the Development of International Law on Hate Speech, 36 Ohio N.U. L. Rev. 721, 733-34 (2010); 660 U.N.T.S. 195 (March 7, 1966), available at:
27 Eleanor Roosevelt, the wife of President Franklin Delano Roosevelt, the original Chair of the Commission on Human Rights, expressed opposition to the inclusion of any language in the Universal Declaration of Human Rights which would restrict freedom of speech. She warned that inclusion of restrictive provisions would be an “extremely dangerous” move, “since any criticism of public or religious authorities might all too easily be described as incitement to hatred and consequently prohibited.” Id. at 729-30.
28“Watergate” was a political scandal that occurred in the United States in the 1970’s as a result of the June 1972 break-in at the Democratic National Committee headquarters at the Watergate office complex in Washington, D.C. and the Nixon administration’s attempted cover-up of its involvement. The scandal eventually led to the resignation of President Richard Nixon in August of 1974.
29 “If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.” Noam Chomsky, American linguistics theorist and political intellectual.