Free speech and rugged individualism

In the fiasco surrounding the painting of President Jacob Zuma’s genitals, we witness a narrative suggesting universal assumptions about the proper scope of freedom of speech (including satire and art). Freedom of speech is not a technical conception with a fixed content unrelated to time, place and circumstances. It involves competing fundamental values, such as human dignity and the creation of community (particularly in a nascent democracy).

The largely one-sided approach, offered in our media, relays a message derived primarily from jurisprudence which emanates from common-law jurisdictions, particularly in the US.

This view draws inspiration from a particular strain of the common law with assumptions of rugged individualism. It places utmost emphasis on the rights of individuals to say (or in this case paint) what they please.

At the other end is the German example, which balances freedom of speech against human dignity and communitarian values.

Other countries and tribunals (such as the European Court of Human Rights) adopt a middle approach. The proper ambit of free speech is contested.

Countries reconcile these competing values in different ways, depending on their culture, history and a myriad other factors.

The social contract in the US (and many common-law jurisdictions) produced constitutions which partake almost exclusively of negative rights.

With few exceptions, these constitutions do not apply to private action. Neither do they mandate the protection of human dignity. In the German approach, human dignity triumphs over freedom of speech.

Our constitution similarly emphasises human dignity, positive and negative rights, and rights that apply to private relationships. Like Germany, we share a history of an authoritarian past where human dignity was undermined.

Absent from the one-sided and fevered instantaneous analysis is any justification that substantiates why the US or popular common-law approach (which places its thumb in a maximalist fashion on speech) should apply to our constitution. The concept of ubuntu has been ignored in the conversation.

Our constitution, like Germany’s, is contractarian and communitarian. Freedom of speech should be informed by our history and an understanding of rights and responsibilities.

This requires balancing the rights of the individual against human dignity and the effects of speech on the community. Dislike for the president and his habits, or disapproval of the ruling party, cannot inform the way human dignity is approached.

For example, in the Mephiso case, the German Constitutional Court had to deal with a satirical novel about a Nazi collaborator who had since died.

The court recognised that even a Nazi who had died had human dignity, which the state needed to protect. The court reasoned artistic freedom needed to be balanced against the individual’s right to societal respect and esteem.

In the political satire case, the German Constitutional Court held a caricature that cast a politician as a sexually active pig copulating with another pig in judicial robes, while it constituted art within the meaning of the constitution, it also offended human dignity.

This approach sounds remarkably similar to ubuntu. The US approach in the Hustler case, involving similar circumstances, adopted the contrary approach.

The US conception of rights, with its emphasis on rugged individualism, does not embrace the language of human dignity, nor is it concerned about fostering community.

The German Constitutional Court also held society was more than an aggregation of isolated individuals motivated by self-interest and a desire to manipulate one another for purely personal ends. The court said individual autonomy did not triumph over the social good.

Dignity – while requiring the protection of the personality and freedom of the individual – must also promote the good of family relationships, participation, community, and stability.

The court said the constitution was created not only for individuals acting alone, but for an organic association of persons expressing their will to live a common social, political, economic and moral life, grounded in the overwhelming ethical principle that human beings must always be treated as ends, never as means.

Some journalists consider themselves to be glorious freedom fighters, who defend the cause of the constitution.

We do not want to create a heckler’s veto that stifles speech. However, when commentators borrow across national lines, they must do so with an appropriate understanding of the legal culture that gave rise to a particular legal theory.

Social facts and events have to be viewed in terms of the interaction between groups, and their social, political and historical environment.

Each legal culture has a unique cadence. Our Constitutional Court has proclaimed ubuntu to mean a human being is not an isolated individual, but operates in community with others.

Even if someone argues human dignity or the creation of a community does not triumph over freedom of speech, our history should at least inform us that when rights clash, there should be a balancing of competing interests.

Instead of adopting an absolute approach, the conversation should be about appropriate balancing.

In most democracies, there is greater protection of speech when the party involved is a public figure.

However, as the German Constitutional Court observed in the Strauss case, politicians do not lose their dignity or honour just because they ran for public office.

Journalists (according to most definitions they are public figures) who defend the Zuma painting might not mind a picture of their mother’s genitals displayed in public.

Others may consider it obscene. Even in the US, the bastion of individualism, according to the Miller standard its supreme court affirmed the test for obscenity is a community standard determined by a jury.

SA adopted the TRC (which violated significant norms of international law from which there could be no derogation) to jettison the past. Satire and art has no talismanic quality that allows the undermining of someone’s dignity.

Our democracy would benefit from a conversation that does not adopt a fundamentalist approach, replicating US individualism into our law.

Otherwise, given our context, there will be no winning. There will only be degrees of losing.

n Motala is law professor at Howard University School of Law