In the late 1960s the American Civil Liberties Union (ACLU) controversially supported the freedom of speech of Clarence Brandenburg, who had called for “revengeance” against blacks and Jewish people. Again in 1978 the ACLU defended the right of neo-Nazis to march in Skokie, Illinois, which housed a high number of Holocaust survivors.
Why would a civil rights organisation back Nazis’ rights? It took the view that the silencing of one side would chill free speech and compromise the free market of ideas. If you compromised on the principle for deplorables, you would have less success defending the rights of progressives, the ACLU argued.
The Brandenburg case led to what is called the Brandenburg test for free speech, when the US Supreme Court overturned his conviction saying that “abstract advocacy of force”, however repulsive, was protected by the first amendment to their constitution.
It was the same Brandenburg test that later led the court to strike down the conviction of an anti-war protestor who had shouted, “We’ll take the f***ing streets later”. Such a generic call did not amount to incitement, the court said.
Had it let the Brandenburg case go, the latter case would have been less likely to succeed. It was an important demonstration of the value of a principled position to protect free expression, no matter the content.
This, of course, reflects the US’s absolutist view of free expression. Our constitution is different, balancing free speech against other rights such as the right to dignity and privacy.
But the ACLU’s approach came to mind this week when I thought about the high court case over whether the gratuitous waving of the old SA flag was hate speech. The Nelson Mandela Foundation (NMF) won a ruling in the equality court that it was hate speech when the flag was used at a 2017 AfriForum rally against farm murders. AfriForum appealed, saying it had no truck with the apartheid flag and had asked its followers not to wave it, but the banning was a bad precedent that compromised free speech and assembly.
I am with the NMF in hoping never to see it again outside of a museum, history book or Zapiro cartoon. But the point is not how much one dislikes it. The Constitutional Court has made it clear that it will not ban speech that is offensive, upsetting or provocative, but only that which is clearly hate speech. It has to “demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred”.
The NMF’s lawyers argued that “displaying [the flag] demonstrates a clear intention to promote white supremacy, and is thus hate speech”. The Human Rights Commission’s lawyers said: “People who gratuitously wave the old flag send a message that they celebrate and yearn for the days of racist apartheid ... It is a profound insult to the dignity and self-esteem of all black people to tell them, in a very visceral and public manner, that the speaker yearns for the days when they were oppressed and demeaned.”
Uncontestable. I can see the pressing need to confront apartheid nostalgia and denial. But the ACLU’s experience reminds us that we have to ensure we don’t set precedents that may come back and bite us. My concern is that we are steadily widening the definition of hate speech.
The Equality Act said hate speech could be hurtful and not just harmful, a wider definition. The draft Hate Crimes & Hate Speech Bill threatens to widen it further and threatens jail sentences for hate speech. At the parliamentary hearings into this bill earlier this week there were many groups wanting to widen the definition to take in their special concerns.
Fortunately, the Constitutional Court puts a brake on this. But we have to imagine that one day we might have a populist government that will use such laws to go after its enemies, accusing them of fermenting conflict and division. We have to remind ourselves that although we must act to counter racism and prejudice, the freedom to speak out is fundamental to fixing our society and economy, and we must minimise any restriction on it.
Interestingly, we had a display of the value of free speech this week in another flag fight. It was our freedom to speak out — sometimes rudely — that penetrated the arrogance of politicians proposing to spend R22m on a flagpole in a land of poverty.
We must tread carefully when it comes to restricting speech. We must do what we must to balance it against the right to dignity, but guard against definition creep.
• Harber is executive director of the Campaign for Free Expression and Caxton professor of journalism at Wits University.
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