In Support of Limitations on the Freedom of Expression

This week the equity court in South Africa will hear its first human rights trial for anti-Semitic behaviour in post apartheid South Africa.

Gerhard Barkhuis admits painting the Nazi flag, complete with a large Swastika, on a prominent wall facing the entrance to the home of his Jewish neighbour Yaron Fishman just outside White River in Mpumalanga. The phrase 'spiteful bastards' has also been spray-painted onto the wall in Hebrew alongside the Swastika, as part of a graffiti wall Barkhuis claims he is creating to commemorate the pain caused by political strife. The garish symbols have, however, outraged the Fishman family and the SA Jewish Board of Deputies, which both asked the SA Human Rights Commission (SAHRC) to investigate. "We are investigating a case of hate speech, the first involving anti-Semitic sentiments in the province. When the case is presented to the Equity Court this week, it will be the first trial on an anti-Semitic matter in post apartheid South Africa," said SAHRC operations director Tselo Thipanyane.

The 'artist' is adamant that the SA constitution guarantees his freedom of expression and that his Jewish neighbour misinterpreted his artwork as a personal attack. Yeah right!

"I painted these images because I lived through the trauma of apartheid, and the liberation struggle. My graffiti wall is supposed to reflect and comment on the pain caused by all political strife," he insisted, before breaking down and crying. "To say I am specifically targeting Fishman is lies, all lies. Claims that I am a Nazi or fascist are heartbreaking and are tearing my family apart."

I support the sanctity of an individual's right to express his opinions but freedom of expression has its limitations which are grounded in the other freedoms that a liberal democracy provides. Most radicals from the left or right tend to see civil society principles in isolation of each other, when the reality is far more complicated than that. You see, it's a trade off of competing principles and you can't just select "free speech" ahead of other democratic principles without considering the impact the selection has on those other principles. My argument below is based on a Standford Encyclopedia of Philosophy article supporting limitations on freedom of expression. (van Mill, David, "Freedom of Speech", The Stanford Encyclopedia of Philosophy (Winter 2002 Edition), Edward N. Zalta (ed.))

The topic of free speech is one of the most contentious issues in a liberal society. The controversy surrounding free speech can be a measure for how much a society values free speech because only when it is valued do limitations placed upon it become controversial. Limitations on free speech stem from the Harm and Offence principles, that is "the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm or offence to others" (On Liberty, J. M. Mill, 1978). Repeated instances of hate speech do more than express ideas or dissent; rather, hate speech often promotes and results in fear, intimidation, and harassment of individuals (wiki).

Pure unadulterated free speech should never be the goal. Basic human rights involve restrictions placed upon the actions of people in order to protect the rights of others. Speech and expression, like other human interactions, need to have restraints in order to protect the rights of other people.

Barkhuis probably does have the right to create his Nazi style artwork as long as he keeps it with his private domain. But he didn't keep it private. He paraded it in a way that could have been avoided. It was his choice to openly display the work that has caused an offence to a specifically targeted group of people. He used offensive and "fighting words" to provoke people who are prevented by law from using a "fighting response". The offence is therefore profound enough to allow for prohibition.

People in a democracy should not defend a person's right to hate speech. To brand some citizens as inferior to others on the grounds of race, religion, or sexual orientation is inconsistent with the fundamentals of a liberal democracy. When freedom of expression is no longer viewed in isolation of other values we can begin to realise that restrictions are needed.

In the end we are left with a common economic trade off. Do you value the right to free speech (including hate speech) more than you value other democratic principles such as equality, privacy, security, and the prevention of harm? We are not dealing with free speech in isolation; we are dealing with free speech as a competing principle in a set of many other important principles. You need to deal with controversies surrounding free speech on a case by case basis, always asking if the right to free speech is supporting or undermining our basic values.

(Hat tip: Derikboy)

Comments

[KJ]

Great point made. I think the fact that the freedom of expression is never dealt with in isolation is crucial and is nearly always overlooked. Freedom of expression should never be used as a justification for hate speech when such principle clashes take place.

[Daniella Douglas]

I think that what Mr Barkhuis had done was extremely wrong.Painting a huge swastika on the wall oppisite you'r "Jewish" neighbor and writing "spiteful bastards" in Hebrew is definately hate speech.That is something that you just DO NOT do.

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People in a democracy should not defend a person's right to hate speech. To brand some citizens as inferior to others on the grounds of race, religion, or sexual orientation is inconsistent with the fundamentals of a liberal democracy. When freedom of expression is no longer viewed in isolation of other values we can begin to realise that restrictions are needed.

[aaron-rodgers-jersey]

I do agree with you.

[matthew-stafford-jersey]

This sounds like a rousing good time. I've recently been interested in learning effective ways to proselytize the masses. Will the baked goods you're planning on bringing be unleavened? Also, will we have the option of grape juice along side the wine? Count me in if you are planning to cover all the most important points between Genesis and Lijiticus?
Blessings to you my dear and Amen!