The violent protests, triggered in more than 20 Muslim countries by a video produced in the United States insulting Islam, have led to a re-evaluation of interpretations of the principle of freedom of speech and expression in many countries. In this situation the South African Constitution with its Bill of Rights has much to teach the world.
The US, itself, has a legal instrument in place to manage freedom of speech and expression so as to protect public interest, order and safety. But neither the US government nor American civil society has chosen to make use of this legal instrument.
The South African Constitution with the Bill of Rights contained in Chapter 2 is recognised as one of the world's more liberal frameworks for the protection of freedom of speech and expression.
Under the heading 'Freedom of Expression' the Constitution makes specific provision in Section 16 of the Bill of Rights for:
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
In subsection 2 of the same clause it is, however ,also stated that this right does not extend to:
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
It is under these provisions that civil liberty organisations such as AfriForum could take the then leader of the ANC Youth League, Julius Malema to court over the singing of the song “Kill the Boer”. There was also the possibility of invoking these clauses to prosecute Malema for some of his pronouncements during the recent unrest at several mines.
Thus the South African freedom of expression regime ensures a balance between the freedom of individuals or groups and the rights of other groups and broader society.
An article on freedom of expression in Wikipedia says of the South African situation that “South Africa is probably the most liberal in granting freedom of speech. However, in light of South Africa's racial and discriminatory history, particularly the apartheid era, the Constitution of the Republic of South Africa of 1996 precludes expression that is tantamount to the advocacy of hatred based on some listed grounds. Freedom of speech and expression are both protected and limited ...”
Although the First Amendment of the US Constitution does not
place any limitations on the freedom of speech and/or expression, there are solid legal grounds for action if the way in which it is used by any individual or group can be deemed to be harmful.
In a landmark US supreme court hearing in Shenck v. United States in 1919, the action of an anti-war activist, who produced and distributed leaflets to discourage men from enlisting, the court did not afford him protection under the First Amendment.
The court ruled that the “most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic”.
It was argued that the “question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
The violence provoked across the globe by the recent video, “Innocence of Muslims”, in which a number of people, including eight South Africans and an American ambassador, lost their lives, surely constitutes “clear and present danger”. It also brought about a “substantive evil” that the US government has a right and probably an obligation to prevent.
Why the precedent set by the 1919 judgement has not been used by either the US government or civil society organisations to bring to book the producers of the video and people like pastor Terry Jones, who in March last year threatened a public burning of copies of the Qur'an, can only be guessed at.
In the case of the US administration it is probably that such action does not suit its political and geopolitical agendas.