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.