Do people understand freedom of speech? (On Mnet ‘firing’ Gareth Cliff.)

Here’s what I’ve learned from the past few days of social media debate regarding Gareth Cliff: it’s true that people don’t really share the same understanding of free speech at all.

Furthermore, even though I think my (and as far as I can tell, his) conception of it is the correct one, it’s partly the assumption of that correctness – rather than an argument for it – that leads to all the trouble on Twitter.

Because when your understanding of “free speech” entails people feeling like their dignity is being trampled upon, it’s understandable that you’ll appear callous above all else (especially on Twitter) when defending that understanding.

So, I’m going to try to explain what I mean by free and hate speech, as briefly as possible, but also with links to previous columns which can hopefully fill in some blanks.

First, what did Gareth Cliff say? Here’s the tweet (you’ll note that I adjust its meaning in an important way, in my first paragraph above):

That links to a poll by Roman Cabanac, in which we learn that 62% of respondents want racist social media posts to be criminalised. One immediate point is that there’s a pedantic escape-route available here, which is to insist that Cliff (and/or Cabanac) was making a general point, rather than referring to Penny Sparrow.

I’ll not take that escape-route, as it’s highly likely they were, and that they were is a reasonable assumption to make in light of the fact that the Sparrow case was what everyone was talking about.

So, in context, Cliff can be read as saying that people wanting to criminalise Penny Sparrow’s post shows that they don’t really understand free speech at all.

Why might he believe this, and why do I believe that this demonstrates either confusion about what free speech entails, or radically different conceptions of it? In short, because of how some people regard Penny Sparrow as having uttered hate speech, and others thinking she didn’t.

What is hate speech?

S16 BoR

On a purely legalistic view (which has serious demerits as well as advantages, as I’ll explain shortly), the Constitutional definition above would not, in my view, entail Sparrow’s remarks being hate speech.

This is because of the important “and” in 16(2)(c), as I understand “incitement to cause harm” as being directly exhorting people to cause harm, rather than saying things that might aggravate them enough to lead them to cause harm.

Of course it’s hateful speech, though, and merits unqualified condemnation (which Cliff also offered). Then, it’s also true that our Equality Act (PEPUDA) has a weaker definition, as I discuss in this piece on Floyd Shivambu versus Carien du Plessis (where I argue that Shivambu wasn’t guilty of hate speech, just as Mcebo Dlamini was not either in his expression of admiration for Hitler).

But as T.O. Molefe noted in a conversation on Twitter earlier today, there is still need for plenty of case law to decide how to balance these definitions of hate speech with other relevant issues like the Constitutional right to dignity. And this is where the limitations of the law become relevant.

The tweet that got (is getting) me around 200 responses, including some (ironically) racist abuse, said this:

That remark is based on my reading of the law, which would regard Sparrow’s remark as hateful, but not hate speech. There’s a limitation in relying on the law, or a legalistic view, in that doing so might appear to have little sympathy for those who feel deeply offended by Sparrow.

But, there would also be a limitation (or rather, inadequacy) in the law if it were to weaken the Constitutional reading, and end up calling Sparrow’s remarks “hate speech”, or more generally if it criminalised racist comments in general.

Here’s why: laws protecting free speech are there precisely to protect speech that we don’t like. If it was only legally permissible to say things we already agree with, then we can neither expose ourselves to our own errors, nor learn about what other people think and develop the arguments to respond to their erroneous thinking.

The criminalisation of racist speech aims at a worthy goal, and one which I endorse fully, but sacrifices another worthy goal along the way. I’ll not rehash the whole argument here, but instead direct you to an earlier post specifically dealing with freedom of speech.

All I’ll add to that is to note that the bar for things like hate speech and criminalisation needs to be very high, which is presumably why the drafters of the Constitution set such strict conditions (with limitations on rights allowed for the purposes of preserving values such as dignity, as outlined in S16 of the Bill of Rights).

Once you depart from those conditions, the judgement call becomes even more subjective – who gets to decide what’s offensive? Who gets to decide what’s sufficiently offensive to be illegal? “The courts” is the glib answer, but what if we’re living in a state that has values the people no longer agree with?

The point is, the high bar set by the Constitution is because we don’t know what we want to be able to say in the future, so any generalised or strong restriction on freedom of speech is, in principle, a dangerous move.

The price we pay for that freedom, of course, is that we are subjected to speech that offends us. And, that “being subjected to” is a burden carried far more by some than by others, which is why it can be so offensive when Cliff (or myself) makes the point.

To wrap up (before a brief postscript on Mnet and Cliff), this is why I opened the post with the observation that we have different understanding of free speech. According to my reading of the law, Sparrow’s comments are (very likely) to not be hate speech. According to many people’s understanding of free speech, they were.

According to some (many, judging by my Twitter mentions), defending free speech means endorsing the content of that speech. That strikes me as absurd also, and completely wrong.

To re-state something I said earlier: the value of free speech is precisely that it protects speech we don’t want to hear. If we don’t do that, we’ll end up only being able to share opinions everyone already agrees with.

Postscript: On Mnet and Cliff

Mnet have issued a rather peculiar statement on why Gareth Cliff’s contract wasn’t renewed, while Somizi Mhlongo was retained after having been accused of uttering hate speech himself (for the record, Mhlongo’s comments – quoted here – don’t seem at all offensive to me, never mind possibly being “hate speech”).

It’s peculiar for various reasons. First, it holds him accountable to a social media policy (which I can’t find) that seems to have been implemented in retrospect, which seems unfair.

Second, Cliff’s tweet is not in itself hate speech on any definition, even though it can be read (plausibly, as noted above) as defending someone else uttering what is (arguably, as noted above) hate speech.

Third, and most problematically, it demonstrates a complete lack of awareness of all the issues discussed above, in that it says “Penny Sparrows comments were hateful. Hate speech is not applicable with regard to freedom of speech.”

The second sentence does not follow from the first at all, unless one assumes that all debates regarding the Constitutional definition of hate speech, quoted above, have already been settled. Mnet should surely be able to afford better lawyers, and better PR spokespersons.

Mnet will surely find themselves in a tricky legal position, if Cliff decides to challenge their decision, as he seems likely to do. Both for the reasons outlined immediately above, and also because it seems that a verbal contract was offered, and that he was therefore effectively fired, rather than simply not having had his contract renewed.

Of course, letting Cliff go was likely a commercial decision above all else. And, I have no problem with that (especially given that I’ve never watched Idols).

But a better way of doing that would perhaps have been to say something like “Gareth Cliff has a history of making controversial statements that don’t align with our brand values, etc.”, rather than appealing to this very tenuous claim that he defended hateful speech.

Many folk on Twitter have asked me: “Why did Cliff apologise then?” Well, maybe he now thinks he was wrong (which wouldn’t make him right, now). Maybe he was trying to save his job, or maybe he was trying to stem the tide of criticism on Twitter.

You’d have to ask him, but whatever the answer is, it will remain true that one can defend the idea of freedom of speech without condoning or excusing the attitudes of people who say offensive things.

Yes, this conception of free speech might be faulty. But it’s faulty reasoning to take your disagreement as to defining the limits of free speech as revealing that someone else shares racist (or other) sentiments expressed via free speech.

P.S. On the legal issues regarding restricting racist speech, here’s Prof. Pierre de Vos.

  • T.O. Molefe

    Thanks for this. A quick but I think important point:

    That some are, as you say, made to carry a greater burden for the principle of free speech than others is the source of the conflict here, not the value of free speech in the abstract. Even I won’t disagree that free speech has value. But if how the abstract concept manifests in my life is that I and others like me end up disproportionately ‘being subjected to’ views that offend, like racist, sexist, homophobic, etc, speech—because our society is unequal (and I don’t just mean economically), non-homogenous and segregated—then it is perfectly reasonable to question the value of free speech as a concept in my life. Replying to this by saying I must grit my teeth and bear it (or ‘grow a thicker skin’ or ‘develop a higher sense of self worth’) for the sake of us all is unjust.

    • Agreed, it’s certainly unjust towards you (and many other analogous people). I’m not at all oblivious to that, and think it a tragedy. The question (which I can ask from relative comfort) is what our best route is to minimising that unjustness in the long term. I think free speech does that, even as it entails disproportionate harms in the short term. And of course, I could be wrong.

      • Ludovico

        But also, it is precisely those without power that free speech is meant to protect. It doesn’t exist because some white guy thought it might be useful in protecting his racist speech; it was largely a response to hundreds of years of hateful violence against persecuted religious minorities. Inequality is why it is important, not why it has limits.

  • pws69

    I believe both you and Cliff are right. The law is supposed to be clear. If the law as it stands says it is not hate speech, then it isn’t, irrespective of the fact that what was said is hateFUL, hurtful, insulting, derogatory, immoral, or socially unacceptable.

    What should happen is that the law is modified accordingly, but not to the point that legitimate free speech is criminalised, as has happened in Zim where saying anything that the powers that be believe is insulting to Mugabe is instant jail, irrespective of whether it is true or not. There is a fine line between protection and oppression. Let’s hope the government gets it right, or we all suffer, including those clamouring for more “action”.

  • mark

    nice post. but we as coloureds and blacks know exactly what racists call us. ka***, hotnot…… and monkey. it comes from a place of hate. so u can spin as you want we know what is meant when we all called monkeys. next thing we going to hear how its ok as long as its true. ie blacks are dumb, lazy, murderous. all you need to do is read the comments on forums to see what some white people really think of us, when they have anonymity.

    • I’m not spinning that. Agreed that it comes from a place of hate, and that it’s unacceptable. The question raised here is what we should do about it.

  • Claudius Gey van Pittius

    Thank you for your post. I found it pleasing to read. For one easy to read and to understand. No unnecessary jargon. Right at the end you mentioned an interesting question that was posed to you: Why did Cliff apologise? Cliff did apologize but we must listen carefully hear what he apologize for. As I heard it the apology was not for his tweet but rather his bad timing. If we are referring to the same recording.

    As a Life Coach and a NLP Practitioner I train people a presupposition: “The meaning of your communication is in the response you get.” Now this is not a legal definition but rather a social guideline but a guideline that force people to think before they start playing “Keyboard Cowboy”.

    I agree with you that under the current laws and constitution speech such as Sparrow’s and 1000’s of other is not hate speech but something need to be done. It reflect directly to our country’s moral fiber.

  • ND

    Thanks for a well reasoned and cogent piece (as is always the case, I ought to add).

    A topic you touch on, and one which I think warrants further discussion, is the balance between free speech and the right to dignity. The latter is hard to measure, and one which is open to abuse. One might argue that, as a result of historic (and persisting) inequalities, the pain felt by some is more legitimate, but who can judge that objectively? Does that experience of pain change as circumstances change? JZ wields immense political and economic power, but has claimed a number of times that his dignity was impugned. Would a working class white South African be allowed to make the claim that a statement was hurtful to her, under any circumstance? At an absurd extreme, if member of the Taliban claimed that an argument for atheism is an affront to his dignity, should we prevent it being discussed?

    There doesn’t exist a homogeneous, equal society anywhere where everyone would have the same reaction to every experience, and there will never be. Someone will always be able to claim offence, and probably make a (genuine) case as to why they are more offended than someone else. However, even if we could perfectly determine what speech is hurtful and prevent it to protect those who are offended, would that level of paternalism not in itself undermine the dignity of the offended? Are we not then saying to the aggrieved that they are not able to think about what upsets them, and hence they require protection? My naive optimism exists in the hope all human beings have the capacity to engage critically, beyond our initial emotional responses.

    • I’d not say that the pain felt by some is more legitimate, but instead that some are more likely to be put in painful situations, or to experience pain. Anyone’s pain matters on some level – the issue here is that structural racism means some (like me) get to be largely free of certain forms of pain, while black South Africans (not just SA, of course) are not. I think this can be known objectively, even though – as you say – individual pain is subjective.

      From there, I think we can say, for example, that if I were to claim “pain” as a result of some imagined instance of say, “reverse racism”, it’s far easier to say that I’m being hypersensitive or unreasonable, perhaps valuing my own interests too highly when compared to the national interest, etc. So we’d have a harder time claiming that this should result in some policy shift.

      Likewise, on a spectrum ranging from powerless to powerful, we’d expect Zuma to be less susceptible to some insults than a desperately poor mother of 5 in a township. This is where – as I mention in the interview linked at the end of my previous post on Penny Sparrow and the like – the concept of positive liberty is important, at least in my analysis. Liberals tend to focus on negative liberties – freedoms *from* interference, i.e. you can’t stop me from speaking. Berlin (in “Two Conceptions of Liberty”) argues that we can’t forget about the things that (sticking with free speech) make speech possible – education, time to think, food, etc. Having a right to free speech makes no difference to those who are more concerned about the next meal.

      So yes, in theory, we all have the capacity to not invest our personal self-worth or dignity in the actions or speech of others. In theory, it’s indeed deeply paternalist to protect some from what they “should be able to deal with”, or will “learn to deal with” through exposure. In practice, that’s not the case.

      The question is how we get to the theoretical state. For some, it’s the almost Darwinian stance of exposing people to these harms, allowing them to develop the arguments to rebut them, and the self-confidence to not be harmed by them. For others, some balance is suggested, whereby we outlaw certain forms of obviously hurtful speech that seems to provide little value (hate speech is one example). Where that balance is struck is obviously a matter for debate.

      Another debate is whether we do this through the law at all, or through social censure (Mill is worth reading on this). In SA, I don’t see enough citizens doing their job in this respect, so fear that – as non-ideal as it might be – the law is our best recourse.

  • Daniel

    I’m not sure I fully understand the argument against criminalizing racism or rather, specifically removing the requirement for incitement to classify “advocacy of hatred that is based on race, ethnicity, gender or religion” as hate speech.

    >“Once you depart from those conditions, the judgement call becomes even more subjective – who gets to decide what’s offensive? Who gets to decide what’s sufficiently >offensive to be illegal? “

    Well, we’re in the same position now with the current constitutional definition: who gets to decide whether something constitutes incitement to cause harm? Identifying “Advocacy of hatred that is based on race, ethnicity, gender or religion” is no more subjective than identifying incitement.

    >“ laws protecting free speech are there precisely to protect speech that we don’t like. If it was only legally permissible to say things we already agree with, then we can >neither expose ourselves to our own errors, nor learn about what other people think and develop the arguments to respond to their erroneous thinking.”

    I think the time has passed where there are benefits to developing arguments against racist thinking. I seriously doubt that engaging with such people will produce any benefit. However, allowing hateful speech is producing harm to society. Openly debating issues lends them some legitimacy even when there is none. We are beyond debating equality.

    >“we don’t know what we want to be able to say in the future”

    If future society has descended into one where we want to be able to say hateful things based on race, something has gone terribly wrong. You seem to advocate (sorry if I am misrepresenting you) for allowing a present harm to society (you may argue this) to prevent some imagined future harm. I think we can all appreciate the need for freedom of expression. I guess I just fail to see how specifically criminalizing “advocacy of hatred that is based on race, ethnicity, gender or religion” necessarily impinges on freedom of expression more broadly than that?

    • I regard incitement to cause harm as less subjective – even if there’s still subjectivity at play. Just saying you don’t like someone (or some class of people) versus calling for them to be harmed are different things. The confounder here is of course the issue of emotional harm, and its presence in the Equality Act.

      How do we know the time has passed for engaging in argument on these things? You think it has, and I accept that view – there are many people who I consider not worth engaging with, in the sense that nobody can or will learn anything. But that’s a different issue to accepting a legal framework which assumes that lack of possibility. It’s a balancing game, and you’re right that it’s possible that I’m erring on one side of the balance, but should be erring on the other.

      Allowing hateful speech (not “hate speech”, because of the legal issues discussed above) doesn’t lend it legitimacy, in my view. It tells us who the enemy is, that they’re still around, and reminds us not to be complacent. Having said that, as you’ll see in my comment to T.O. Molefe below, I’m acutely aware that the burdens here are disproportionately felt, which makes me question my conclusion.

      The general argument allowing for the possibility of saying harmful things tracks back to Mill, and is too detailed to recount here. I spell some of it out in one of the links above. But the issue is not that I want to preserve the right to say hateful things – the issue is that my view is that allowing for the freedom to say hateful things is a better strategy for eliminating hateful attitudes (in the long term) than restricting such speech is.

      • Daniel

        Thanks for taking the time to comment.

        “my view is that allowing for the freedom to say hateful things is a better strategy for eliminating hateful attitudes (in the long term) than restricting such speech is”

        Forgive my ignorance, but is there good evidence to support this? It may not be a fair analogy, but I can’t help but imagine a medication with well-defined negative side effects where we only have good reason to think that it should help with a larger problem (though this is debatable). Would we ever encourage someone to swallow that pill? Sure, a randomised control trial is not on the cards here, but we should at least be pretty damn confident, shouldn’t we?

        • No, I don’t think there’s strong evidence. I suppose one could try some sort of sociological comparison between say, the USA – with no hate speech laws whatsoever – and the effects of that with some other countries, but the results would of course be easy to dispute as disanalogous in various ways.

          The root of the argument here is a value-commitment, more than the data. I’m sympathetic to the idea that freedom is a valuable good, where our default presumption should be “more is better”, and the burden of proof falls on those who want to restrict it. Second, the argument in the bit you quote above is of course a very truncated version of Mill’s argument in “On Liberty”, which is again not data-driven, but I think still compelling.

          In your pill analogy, as here, a key issue is how we value the respective harms/benefits. But a second issue – and where the analogy fails – is that the harms of the harmful pill are presumably unavoidable. In this case, there’s no logically necessary reason why speech should harm. It’s a contingent fact, which can change. Put that against the basic presumption (which you can of course reject) that freedom is a good, and we have the argument.

          (And where I depart from free speech “fundamentalists” is that I’m perfectly happy to accept the possibility that in certain situations, the good of free speech needs to (in some way, for some time, etc.) be sacrificed for other goods, like dignity.