SAIFAC Webinar: Reconciling Freedom of Speech in South Africa with Equality, Dignity, and Human Freedom in the Long Shadow of Apartheid
DATE: 11 MAY 2022
TIME: 17h30—19h00 South African time (GMT+2)
RSVP: naomi@saifac.org.za
Connect with this link to join Zoom Meeting: https://us02web.zoom.us/j/84652994716?pwd=a3ludFQ4cnJ1V2dpdUwwdWlTdlBCQT09
About the speaker:
Ronald J. Krotoszynski, Jr. is the John S. Stone Chair, Director of Faculty Research, and Professor of Law at the University of Alabama School of Law. Krotoszynski is the author of several books including: Privacy Revisited: A Global Perspective on the Right to Be Left Alone (Oxford University Press 2016) and Reclaiming The Petition Clause: Seditious Libel, "Offensive" Protest, and the Right to Petition the Government for a Redress of Grievances (Yale University Press 2012). His most recent book is The Disappearing First Amendment (Cambridge University Press 2019).
About the event:
Professor Krotoszynski will explore the relevance - and irrelevance - of constitutional text to safeguarding expressive freedoms (including the freedoms of speech, assembly, petition, and association), with particular attention to the Constitutional Court of South Africa's (CCSA) consistent practice of reading down national laws that restrict hate speech (most recently in its Masuku and Qwelane decisions).
Despite a clear textual mandate in Section 16 that permits -- and arguably requires -- Parliament to proscribe hate speech, South African courts, including but not limited to the CCSA, consistently seek to balance the nation's commitment to equality, dignity and human freedom (the 1996 Constitution's apex human rights values) with a serious and meaningful commitment to a process of public debate that, in Justice William J. Brennan, Jr.'s iconic turn of phrase, is "robust, uninhibited, and wide-open." The constitutional text strongly suggests that the elected branches of government should enjoy very broad discretion to regulate, and even to ban, hate speech. Yet, the legal reality in South Africa is considerably more complex.
The CCSA, in conjunction with the lower South African courts, have not simply green lighted hate speech regulations, but instead have worked carefully, diligently, and systematically to ensure that even hyperbolic political speech enjoys meaningful constitutional protection. This phenomenon probably relates, at least in part, to the National Party's persistent and aggressive use of ersatz hate speech regulations to attempt to silence core political speech during the apartheid era. This fraught history of the use of hate speech regulations as a means of distorting the process of democratic deliberation exerts a powerful effect today on how South African courts will read and enforce Section 10 of the Equality Act.
Many South Africans, including a great many judges, view content- and viewpoint-based government speech regulations quite skeptically -- even if such legal rules are well-intentioned and designed to promote dignity, equality, and freedom. This important socio-legal reality has a more powerful effect on free speech law in contemporary South Africa than the constitutional text's express exclusion of hate speech from protection. In sum, South Africa -- like the United States, Australia, Israel, and the United Kingdom -- provides an example of a polity in which courts and culture, rather than formal legal text, prefigure the scope and vibrancy of expressive freedoms.
Krotoszynski's research on South African hate speech regulations relates to a forthcoming book project, Free Speech as Civic Structure: A Comparative Analysis of How Courts and Culture -- Not Constitutional Text -- Shape the Freedom of Speech (forthcoming Oxford University Press 2023).