FXI: ‘We are Not Mindless Bubble-Heads’

‘We are independent, but we also have views. We are not mindless bubble-heads’ protested Jane Duncan of the Freedom of Expression Institute (FXI) in her response to a list of questions sent to her by the man who triggered this saga and regular IAS reader Anthony Posner. She has graciously given permission to publish their correspondence on this blog.

Ms Duncan’s claims notwithstanding, the FXI is anything but independent or objective. It has demonstrated an erratic defence of ‘freedom of speech’ in South Africa usually to promote their Leftist (and possibly Islamist) agenda. Thus for example the FXI argued for the censorship of the Mohammed cartoons in South Africa (by editors not the courts), regarding them as hate speech. But at the same time, they support ‘the right’ of people to deny the Holocaust.

Further confirmation of their rabid anti-Zionist/anti-Western world view can be found in the complete Press Release on the Kasrils-SAJR saga now published on their website. Ms Duncan concludes by stating that

‘If a government Minister can be treated in such a censorious manner, then we wonder what chance ordinary members of the Jewish community have to be heard if they voice dissent against the Israeli state's policies of forced colonial occupation of Palestinian land.

But Ms Duncan is not the only member of the FXI with a biased view of the Israeli-Arab conflict. A reader has brought to my attention that one Na’eem Jeenah is the head of the FXI’s access to information programme. Jeenah is a major player in the pro-Palestinian lobby in South Africa. I encourage readers to check out his blog. Interestingly in an article there on Zionism he too promotes the Israel-behaves-like-the-Nazis libel.

I can say for sure that when it comes to the Arab-Israeli conflict, the FXI is certainly not independent. But on the question of them being ‘mindless bubble-heads’, I will leave that for you to decide.

Note:
In her correspondence with Posner, Duncan mentions that she has been following the latest Kasrils saga on this blog with ‘great interest’. She writes ‘in time, I may even become a fan! Unfortunately, at the moment time does not permit me to respond to many of the issues raised …’

I am glad Ms Duncan is an IAS reader (fan or no fan) and would invite her to comment on this blog in her personal or professional capacity whenever she wishes. IAS is committed to debating all issues about the Arab-Israeli conflict out in the public space.

Comments

[Jack Bloom]

The disgraceful selectivity of FXI is that they actually endorsed the disruption of Shimon Peres's speech at the Wits campus when he visited here for the World Summit on Sustainable Development.

By what right do they now charge in like a self-appointed press ombudsman in bullying a private Jewish community newspaper? In how many other instances have they done this? Would they assist if we asked for right of reply in the rabid Muslim press?

Frankly, their double standards stinks of antisemitism.

[mike]

Jack do you have a press statement or news report that can show that the FXI did in fact support the silencing of Peres? We would be happy to publish another article on that.

I suggest we put your theory to the test. Lets get Salmon Rushdie to submit an article to the Lenasia Sun are see what happens.

[pro bono]

In the hope that Ms Duncan is still reading this blog despite her very busy days filled with acting as the protector of the SA Constitution's free speech provision, I would like to point out something most disturbing....at least most disturbing to a student of the law....

The FXI has, on its own initiative narrowed the Constitutional understanding of hate speech...for it is not, as Ms Duncan blithely and simplistically puts it, limited to incitement to cause physical harm. Indeed, the South African Constitutional Court has canvassed and approved of the Canadian approach which understands harm as including psychological harm. This I may add has been discussed but not yet tested...

Thus, while perhaps her and her organizations analysis may be correct on their misplaced understanding of our Constitution, it is not necessarily so on the understanding of the Constitution adopted by our Constitutional Court. This especially so given the Court's almost constant emphasis on the all inclusive concept of human dignity, which surely the Court would extend to cover the dignity of a people being compared to their murderers?

Indeed, Ms Duncan, despite your protestations otherwise, it seems to me that you and your organization have acted in a very court like manner….deciding just which constitutional jurisprudence you will base your decisions upon….Don't we all love those Kangaroo Courts?

[THE DICTATOR / EMBITTERED CORRESPONDENT ETC]

THIS IS A COPY OF MY LAST EMAIL TO JANE DUNCAN:

"I would have thought that any freedom of expression campaigner, worth her salt, would have jumped at the opportunity to debate on the supernatural blog.

Why on earth are you giving it a second thought?

This is the moment you have been waiting for!

You have, after all, been reading the blog....

.....well, you can now jolly well WRITE for it!

Dont refrain, Jane.

Our freedom is at stake!

You owe it to South Africa( + the poor worldwide)

regards,

THE DICTATOR / EMBITTERED CORRESPONDENT ETC."

[THE DICTATOR / EMBITTERED CORRESPONDENT ETC]

THIS IS A COPY OF PRIOR CORRESPONDENCE WITH JANE DUNCAN.

From: "Jane Duncan"
Date: 21 November 2006 7:58:28 PM
To: "ANTHONY POSNER"
Subject: RE: JEWISH REPORT

Dear Anthony Posner,

In response to your questions.

(1) Did the FXI meet or contact Geoff Sifrin before reaching a decision in the case?

No we did not, but I think you are aware of that already. But there again, we did not meet with Ronnie Kasrils either, but I do not see you asking that question. I wonder why not, if your underlying concern is the principle of 'hear, and then decide'.
The question that may then arise, then, is on what basis did we form our comment? Well, we commented on the basis of the paperwork that was available to us, which included the following:
• Your original article
• Ronnie Kasrils's response to your questions
• The Jewish Report editorial
• Kasrils's open letter of response.

In our view this paperwork was sufficient to form a view on the matter, which is what we did. The reasons for not running Kasril's statement are clearly spelt out in Sifrin's editorial; it is not as though we had to battle to understand the paper's reasons. If the reasons were not clear, then there could have been a basis for having canvassed Sifrin's views first. On the contrary, the issues were crystal clear.

(2) How much time was Geoff Sifrin given to make his submission on behalf of The Jewish Report to the FXI?

See response to question 1.

(3) What internal process was taken at the FXI before a decision was reached in the case?

I find this a difficult question to answer, as this (and in fact all your questions) point to a fundamental misapprehension of what the FXI is. We are not a quasi-judicial complaints body that hears cases and then reaches a judgement (like a tribunal or an ombudsman); we are an advocacy organisation that defends freedom of expression on the basis of its mandate and the policy positions taken by the Executive Committee, flowing from the constitution. By our very nature, we take positions, and are geared to taking particularly quick decisions when approached by the media for comment.

So how do we take positions? The Executive Committee takes a decision on a matter of policy. Matters of policy include issues like hate speech, pornography, defamation, etc etc. The decision that would be most relevant to this particular case is hate speech. Our position in this regard is that we endorse the definition of hate speech as defined in the South African Constitution, namely that hate speech is advocacy of hatred based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. So we part ways with the extremely broad definitions of hate speech contained in international instruments like ICCPR and CERD, and do not seek to amend the Constitution to change the definition. Our further policy position is that the notion of 'incitement to cause harm' must be narrowed to refer to physical harm only. This policy decision has been taken to prevent abuse of the hate speech exception in s.16 of the Constitution, to censor legitimate speech. The FXI office then operationalises this policy decision, within the framework of the mandate given to the office by the Constitution (which is available on our website).

One of the ways in which we do that is to comment in the media on allegations made by particular groups on what constitutes hate speech. If the interpretation is overly censorious, in that it does not meet the objective test of 'incitement to cause [physical] harm', then we oppose something being labelled hate speech. The Jewish Report case is one such case.

As mentioned above, as the office we make a judgement call about whether there is sufficient information to comment on an issue, within the framework of the policy. If there is not, then we will either canvass the parties concerned or refuse to comment. This is a process we engage in on a daily basis, on a range of different issues. We may be called on to comment on a spread of issues up to twenty times a week, so our processes are geared towards quick responses.

In this case, we decided to comment but did not feel the need to canvass the parties through meetings as the 'voices' of the parties concerned were heard 'adequately' through the various correspondences. So for the purposes of forming the view reflected in the press statement, all sides were taken into account, and therefore we did 'hear, and then decide'.

What you really seem to be complaining about is that we did not ask you/ Jewish Report for our opinion. But there again, we did not contact Ronnie Kasrils and ask him for our opinion either. We will not do that; such behaviour would undermine our independence (and yes, we are independent, but we also have views. We are not mindless bubble-heads).

(4) Are the minutes of any internal FXI meeting with regard to The Jewish Report open to public scrutiny?

It should be evident from the above that there were no internal meetings on this particular case, so there are no minutes to scrutinise. But, once again, the basis for your question seems to flow from your misapprehension of what we are as an organisation. There was no need to have an internal meeting, as the policy on hate speech that guides our work is set, and all the relevant issues are contained in the correspondence/ articles. The Executive Committee policy position on hate speech is reflected above.

(5) Is there a right of appeal after the FXI reaches a decision?

Again, it is difficult to fathom this question as we are not a quasi-judicial body. Again, we are an advocacy organisation; we advocate particular views (and in this case, a particular view on hate speech).

Be that as it may, you are welcome to write to the Executive Committee, Mabalane Mfundisi, if you feel aggrieved by the FXI statement. But, you would need to prove that the statement violated the Executive Committee's policy on hate speech for there to be a real case for the Committee to consider; so you would need to prove that the policy has been mis-applied. I am confident that this is not the case, but in the interests of fairness, transparency and accountability, your are welcome to make the argument to the Executive Committee via the Chairperson.

I don' think you will get very far if you wish to change the FXI's view on hate speech, but it is your good democratic right to try. We believe in protecting the space for argument and counter-argument, unlike the Jewish Report.

If the newspaper feels that the comparison of aspects of Zionism with aspects of Nazism is reprehensible, then the way to deal with these grievances is to fight them out in the public space, not prevent the fight from happening in the first place. The South African Constitutional Court supports this approach and has found that it is not enough to protect 'good speech', but downright offensive speech must be protected too, in the interests of reaching the truth.

If you feel that the Jewish Report has been given a rough ride in the media on this issue, then you are also welcome to contact the relevant complaints mechanisms (the Press Ombudsman in the case of the print media and the Broadcast Complaints Commission in the case of the broadcast media). I see the internal ombudsman of the Mail and Guardian has been contacted already. All these mechanisms are available to you if you feel that the Jewish Report has not been given the opportunity to state its case properly. Please let me know if you need any contact details of the above mentioned individuals or bodies.

By the way, I have been reading all the comments on the supernatural blog with great interest. In time, I may even become a fan! Unfortunately, at the moment time does not permit me to respond to many of the issues raised, but we would strongly encourage the Goethe Institute to write the article to put its view across, even if it is a repetition of what has already been said. Not to do so may create the impression that they have become shy of commenting on the issue for fear of further criticism: a form of self-censorship. So who wins the bet?

Please feel free to post this message on the blog. When we correspond on such matters, we consider all correspondence to be in the public domain.

Best regards,

Jane Duncan

PS. With respect to the cartoons you wanted me to send to Ronnie Kasrils. Please send them yourself. I am not your secretary.

[mike]

Anthony, did you really send that? My favourite line is don’t refrain Jane. It should be a bumper sticker or something.

[THE DICTATOR / EMBITTERED CORRESPONDENT ETC]

Mike,

Yes, I did send it to Jane Duncan but I haven't received a reply. Quite surprising really, when you take into account the fact that she believes so strongly in freedom of expression. She even heads an institute(FXI) dedicated to it!

Moreover, she wrote that she might become a fan of the Supernatural blog.... so it can't be that she doesnt like us.

I'm scratching my head trying to figure this one out.

I realize that I don't always totally understand what some women say ....perhaps thats why I'm confused?

Could it possibly be, (I know this might sound meshuggah), that the points raised on Supernatural, may have frightened her off??

Or maybe she is too busy "running" The FXI ?

You see Mike... it is relatively easy for Jane to write "turgid political babble." Anybody who has been to university could have acquired the dialectical tools to do that. But it is quite another thing to argue, in depth, with Supernatural bloggers.

If you are producing bumper stickers, the following might go down well with confused blondes>

"I AM NOT A BUBBLEHEAD!"

[shal]

mike

Dont hold your breath waiting for Jack Bloom to give you press statements and news reports about FXI endorsing the "disruption of Peres' speech at Wits". You see, Bloom is a liar! He lies - very well. So he really has no evidence to give you to prove his lie.

1. There was no speech of Peres at Wits during the WSSD that was disrupted - by ANYONE.

2. Hence, the FXI could not have endorsed something that is non-existent, could it?

The only "disruption" at Wits related to Peres speech there was the police and security of the SAJBD violently preventing students and staff from entering the Education campus, students and staff being beaten up, shot with rubber bullets, watter-cannoned, arrested, etc - at the behest of the SAJBD. These victims, btw, were nowhere near where Peres was speaking.

Liar Bloom is at it again. Jackie, after this, how can we trust anything else you or your party have to say?

[mike]

Shal, I must disagree with you. I actually attended the Shimon Peres talk at Wits Campus. As I drove in, my car was shaken and banged on by angry protesters carry pictures of dead Palestinians. I was called a bloody thirsty Zionist murder. If it were not for the police, we would have been seriously injured by the angry mob. On leaving the venue, I had bottles thrown at my head. The people at the talk were extremely frightened.

I understand that you view this event like most other events in this conflict from a different perspective. The irreconcilability of our diverse narratives is at the heart of why peace is so hard to achieve. Perhaps all we can hope is that each is able to empathise with the others feeling of being victimised.

On the issue of Jack Bloom being a liar, he is certainly more capable than I of defending himself. But as I see it your accusation does not hold true in this case.