A victory for freedom of speech

Comment on this story


IOL DA sms 547.JPG

INDEPENDENT NEWSPAPERS

DA supporters picketed outside the Johannesburg High Court as the party defended itself against the ANCs objection to its sending out SMSes implying the president stole public money. Picture: Motshwari Mofokeng

The danger of courts policing criticism and dialogue outweighs the desire of individuals not to be offended, says Eusebius McKaiser.

Johannesburg - I don’t think it’s reasonable to interpret the public protector’s report on Nkandla as implying “Zuma stole your money”. But, despite holding this view, I want to explain why, nevertheless, I think the high court was right to uphold the DA’s legal entitlement to send an SMS to voters containing exactly that message.

The heart of the court’s reasoning is that it is fair comment to interpret the public protector’s report as effectively showing Zuma stole from us.

In coming to this conclusion, the court relied on some case law that had previously established the concept of fair comment by giving wide meaning to it, so as to promote debate and the dissemination of different views in society.

The most authoritative citation is from the Robert McBride case, where a newspaper’s right to describe McBride as a murderer was at issue. The court rejected the idea that the word “murderer” must have only a legal meaning or that unless someone has a standing conviction for murder, they cannot be called a murderer.

Relying on a 1917 case, the Constitutional Court defined the parameters of fair comment as follows: “The criticism sought to be protected need not ‘commend itself’ to the court. Nor need it be ‘impartial or well-balanced’. In fact, ‘fair’ in the defence merely means the opinion must be one which a fair person, however extreme, might honestly hold, even if the views are extravagant, exaggerated or even prejudiced.”

The comment need be fair only in the sense that, objectively speaking, it qualifies “as an honest, genuine (though possibly exaggerated or prejudiced) expression of opinion relevant to the facts upon which it was based, and not disclosing malice.”

Given this case law, it is quite straightforward – the judge didn’t make an obvious legal mistake. If there’s a problem here, it must be in the case law, which has to be followed as a matter of good judicial practice. So blame Justice Edwin Cameron if you don’t like the scope of what counts as fair comment, as he penned that judgment. Don’t blame Acting Judge Mike Hellens!

Except you might want to think about the McBride judgment carefully before criticising the precedent it set. I think it was an excellent judgment.

The reality is that courts should not become censorship boards and police the marketplace of ideas. The danger of courts keenly policing robust criticism and dialogue outweighs the desire of individuals not to be offended or hurt, in general.

But the law isn’t unfair. Hate speech and speech that defames are illegal. But in the application of these general restrictions on free speech, I think it is healthy for courts to be cautious about limiting speech. We fought hard for a public arena where we don’t have to self-censor or be censored willy-nilly by judicial or quasi-judicial bodies.

And, as the free speech argument goes, there is value not just in the dissemination of truths, but frankly also in allowing the airing of falsehoods.

Truths about the world are good if they are placed in the public space because they help citizens to make evidence-based decisions about their lives, about the government of the day and about the political choices they face.

But even falsehoods, if you think about it, should be allowed into the marketplace of ideas.

Someone, unless the general quality of discourse is really bad, will defeat a falsehood publicly, either in debate in a town hall, on radio, around the braai, or in a stadium where you hold a political rally and make fun of political opponents. It’s a chance to set the record straight, a chance to demonstrate what is really true.

That, for me, is the philosophical foundation of Justice Cameron’s McBride case. Which brings me back to the DA’s SMS. I think the SMS is misleading.

The report on Nkandla makes it clear, in my subjective reading of it, that President Zuma acted unethically, at least in the sense that he is culpably ignorant about the details of what happened at his own house.

Worse, the report makes clear it was not total ignorance, and that at times he was informed of some of the goings-on. That reinforces the ethical failure of his not having asked further questions.

But here’s the bottom-line: Unlike a thief who intentionally and illegally steals your property, the president (unpalatably but merely) benefited unfairly. I don’t think it’s grammatically, legally or ethically correct to say Zuma stole from us on the basis of the Nkandla report.

But I still support the court’s decision to uphold the DA’s right to send out that SMS. I do so because of the importance of limiting legal interference with the right to free speech, including ridiculous speech.

The ANC should have fought this battle not in the legal courts, but in the court of public opinion. Its failure to do so says a lot about its lack of confidence to protect Zuma successfully in public from the DA’s interpretation of him as a thief.

* Eusebius McKaiser is the author of Could I Vote DA? A Voter’s Dilemma, available at bookstores nationwide.

** The views expressed here are not necessarily those of Independent Newspapers.

The Star


sign up
 
 

Comment Guidelines



  1. Please read our comment guidelines.
  2. Login and register, if you haven’ t already.
  3. Write your comment in the block below and click (Post As)
  4. Has a comment offended you? Hover your mouse over the comment and wait until a small triangle appears on the right-hand side. Click triangle () and select "Flag as inappropriate". Our moderators will take action if need be.

     

Newspaper Subscriptions
Lvit2C
I'm a 29 year old woman looking to meet men between the ages of 27 and 39.
View Profile
This_is_m3
I'm a 45 year old woman looking to meet men between the ages of 45 and 50.
View Profile
supe24
I'm a 34 year old woman looking to meet men between the ages of 35 and 65.
View Profile
Athena
I'm a 37 year old woman looking to meet men between the ages of 37 and 45.
View Profile
Lemoenbloeisel
I'm a 35 year old woman looking to meet men between the ages of 30 and 45.
View Profile
Gem31
I'm a 24 year old woman looking to meet men between the ages of 25 and 35.
View Profile
LOVINGLIFE417
I'm a 45 year old woman looking to meet men between the ages of 43 and 50.
View Profile
_Alwayssmiling
I'm a 30 year old woman looking to meet men between the ages of 30 and 41.
View Profile
noirsette
I'm a 38 year old woman looking to meet men between the ages of 37 and 45.
View Profile
Stiletto1
I'm a 53 year old woman looking to meet men between the ages of 47 and 57.
View Profile
SkyLark67
I'm a 47 year old woman looking to meet men between the ages of 45 and 55.
View Profile
Lady66
I'm a 48 year old woman looking to meet men between the ages of 47 and 55.
View Profile
Sparkie92
I'm a 22 year old woman looking to meet men between the ages of 22 and 29.
View Profile
AM1234
I'm a 41 year old woman looking to meet men between the ages of 38 and 46.
View Profile
Believer001
I'm a 30 year old woman looking to meet men between the ages of 32 and 40.
View Profile
Diena_van_die_Eike
I'm a 49 year old woman looking to meet men between the ages of 49 and 62.
View Profile
lookingsexy200
I'm a 36 year old woman looking to meet men between the ages of 34 and 45.
View Profile
Sugababe
I'm a 41 year old woman looking to meet men between the ages of 32 and 42.
View Profile
blom788
I'm a 25 year old woman looking to meet men between the ages of 25 and 35.
View Profile
AmaJ
I'm a 44 year old woman looking to meet men between the ages of 42 and 50.
View Profile
AGX
I'm a 36 year old woman looking to meet men between the ages of 35 and 44.
View Profile
GWTFT
I'm a 41 year old woman looking to meet men between the ages of 40 and 48.
View Profile
Graciousheart
I'm a 47 year old woman looking to meet men between the ages of 44 and 56.
View Profile
MonaLisa100
I'm a 45 year old woman looking to meet men between the ages of 40 and 50.
View Profile
00butterflygirl00
I'm a 30 year old woman looking to meet men between the ages of 28 and 36.
View Profile
brokenheart2_cnb
I'm a 42 year old woman looking to meet men between the ages of 35 and 45.
View Profile
blondgirl
I'm a 57 year old woman looking to meet men between the ages of 53 and 60.
View Profile
itu22
I'm a 22 year old woman looking to meet men between the ages of 25 and 37.
View Profile
AMy_303
I'm a 39 year old woman looking to meet men between the ages of 35 and 45.
View Profile
KarooBoereMeisie
I'm a 34 year old woman looking to meet men between the ages of 30 and 40.
View Profile
Ja9
I'm a 26 year old woman looking to meet men between the ages of 26 and 36.
View Profile
dreamsoftly
I'm a 49 year old woman looking to meet men between the ages of 47 and 58.
View Profile
pesin15
I'm a 38 year old woman looking to meet men between the ages of 18 and 100.
View Profile
Juliet8
I'm a 50 year old woman looking to meet men between the ages of 45 and 65.
View Profile
chicky582
I'm a 25 year old woman looking to meet men between the ages of 25 and 30.
View Profile
Verlore13
I'm a 27 year old woman looking to meet men between the ages of 25 and 32.
View Profile
Jasmayn
I'm a 56 year old woman looking to meet men between the ages of 55 and 65.
View Profile
Chanex
I'm a 20 year old woman looking to meet men between the ages of 23 and 26.
View Profile
Comet43
I'm a 43 year old woman looking to meet men between the ages of 40 and 54.
View Profile
mystiqueZN
I'm a 29 year old woman looking to meet men between the ages of 27 and 45.
View Profile
JustLooking69
I'm a 56 year old woman looking to meet men between the ages of 50 and 60.
View Profile
lenQ313
I'm a 19 year old woman looking to meet men between the ages of 22 and 28.
View Profile
Stella143
I'm a 35 year old woman looking to meet men between the ages of 34 and 45.
View Profile
ddb65
I'm a 49 year old woman looking to meet men between the ages of 50 and 62.
View Profile
Kwarenina
I'm a 47 year old woman looking to meet men between the ages of 42 and 52.
View Profile
Viv42
I'm a 42 year old woman looking to meet men between the ages of 38 and 55.
View Profile
ioio
I'm a 37 year old woman looking to meet men between the ages of 35 and 45.
View Profile
Tamtam31
I'm a 31 year old woman looking to meet men between the ages of 30 and 45.
View Profile
Natz79
I'm a 35 year old woman looking to meet men between the ages of 30 and 45.
View Profile
Kosmos075
I'm a 39 year old woman looking to meet men between the ages of 35 and 55.
View Profile
iamclassy
I'm a 43 year old woman looking to meet men between the ages of 50 and 62.
View Profile
love_passionately
I'm a 43 year old woman looking to meet men between the ages of 45 and 55.
View Profile
ContagiousLaughter
I'm a 41 year old woman looking to meet men between the ages of 37 and 44.
View Profile
Pretty_Nerd
I'm a 28 year old woman looking to meet men between the ages of 30 and 37.
View Profile
Grace62
I'm a 33 year old woman looking to meet men between the ages of 33 and 42.
View Profile
bluemon
I'm a 30 year old woman looking to meet men between the ages of 30 and 45.
View Profile
Anzell
I'm a 24 year old woman looking to meet men between the ages of 25 and 35.
View Profile
Belind4_M
I'm a 19 year old woman looking to meet men between the ages of 19 and 30.
View Profile
HoopvolleToekoms
I'm a 32 year old woman looking to meet men between the ages of 32 and 39.
View Profile
LuckyCharm_440
I'm a 29 year old woman looking to meet men between the ages of 29 and 40.
View Profile
Mianli
I'm a 31 year old woman looking to meet men between the ages of 32 and 45.
View Profile
OneWay
I'm a 39 year old woman looking to meet men between the ages of 35 and 47.
View Profile
Gem24
I'm a 24 year old woman looking to meet men between the ages of 25 and 40.
View Profile
Lulu_101
I'm a 36 year old woman looking to meet men between the ages of 38 and 45.
View Profile
Fordfiest1
I'm a 42 year old woman looking to meet men between the ages of 35 and 50.
View Profile
FancyFace32
I'm a 32 year old woman looking to meet men between the ages of 37 and 58.
View Profile
CC82
I'm a 32 year old woman looking to meet men between the ages of 30 and 45.
View Profile
veldmuis007
I'm a 33 year old woman looking to meet men between the ages of 28 and 35.
View Profile
SKY248
I'm a 52 year old woman looking to meet men between the ages of 44 and 52.
View Profile
MustLoveDogz
I'm a 33 year old woman looking to meet men between the ages of 33 and 43.
View Profile
butterflykisses14
I'm a 30 year old woman looking to meet men between the ages of 31 and 51.
View Profile
KiTella
I'm a 31 year old woman looking to meet men between the ages of 29 and 42.
View Profile
spangled_sparrow
I'm a 50 year old woman looking to meet men between the ages of 45 and 55.
View Profile
KissFromARose
I'm a 58 year old woman looking to meet men between the ages of 55 and 64.
View Profile
thrillsandfrills
I'm a 40 year old woman looking to meet men between the ages of 41 and 45.
View Profile
Bizkit2808
I'm a 38 year old woman looking to meet men between the ages of 25 and 45.
View Profile
Sosialemeis2
I'm a 28 year old woman looking to meet men between the ages of 35 and 46.
View Profile
xine_414
I'm a 28 year old woman looking to meet men between the ages of 25 and 35.
View Profile
TLCfree2bmex3
I'm a 33 year old woman looking to meet men between the ages of 32 and 39.
View Profile
Isolabelle
I'm a 38 year old woman looking to meet men between the ages of 25 and 45.
View Profile
voelkos
I'm a 54 year old woman looking to meet men between the ages of 45 and 56.
View Profile
Liefterdiefter
I'm a 48 year old woman looking to meet men between the ages of 45 and 63.
View Profile
Ldp123
I'm a 43 year old woman looking to meet men between the ages of 44 and 58.
View Profile
Poppielap007
I'm a 23 year old woman looking to meet men between the ages of 25 and 29.
View Profile
HottFoxx
I'm a 46 year old woman looking to meet men between the ages of 40 and 55.
View Profile
Wonderer_0202
I'm a 42 year old woman looking to meet men between the ages of 40 and 52.
View Profile
Bubblegumskunk
I'm a 40 year old woman looking to meet men between the ages of 35 and 43.
View Profile
Charms1203
I'm a 39 year old woman looking to meet men between the ages of 35 and 55.
View Profile
Dreamer1987
I'm a 27 year old woman looking to meet men between the ages of 25 and 35.
View Profile
Boulderhopper
I'm a 44 year old woman looking to meet men between the ages of 38 and 50.
View Profile
AngelBabe1
I'm a 27 year old woman looking to meet men between the ages of 25 and 39.
View Profile
kim2702
I'm a 46 year old woman looking to meet men between the ages of 38 and 50.
View Profile
Elyn1980
I'm a 34 year old woman looking to meet men between the ages of 35 and 42.
View Profile
DaffodilTulip
I'm a 48 year old woman looking to meet men between the ages of 40 and 50.
View Profile
Bella_11
I'm a 33 year old woman looking to meet men between the ages of 30 and 45.
View Profile
DelightfullyTipsy
I'm a 38 year old woman looking to meet men between the ages of 30 and 38.
View Profile
Smarag
I'm a 20 year old woman looking to meet men between the ages of 22 and 30.
View Profile
PhoenixLin
I'm a 32 year old woman looking to meet men between the ages of 25 and 42.
View Profile
Lizzzzz
I'm a 28 year old woman looking to meet men between the ages of 28 and 35.
View Profile
Apalis23
I'm a 50 year old man looking to meet women between the ages of 39 and 48.
View Profile
Stream_Net
I'm a 32 year old man looking to meet women between the ages of 24 and 33.
View Profile
OldGoat4400
I'm a 53 year old man looking to meet women between the ages of 35 and 48.
View Profile
Marley77
I'm a 37 year old man looking to meet women between the ages of 28 and 35.
View Profile
TheRisingSun
I'm a 41 year old man looking to meet women between the ages of 25 and 40.
View Profile
niemandsland
I'm a 30 year old man looking to meet men between the ages of 28 and 45.
View Profile
Glorious_Quest
I'm a 45 year old man looking to meet women between the ages of 32 and 45.
View Profile
Btt76
I'm a 38 year old man looking to meet women between the ages of 25 and 42.
View Profile
DJStarglance
I'm a 51 year old man looking to meet women between the ages of 18 and 100.
View Profile
MAX_33
I'm a 55 year old man looking to meet women between the ages of 33 and 53.
View Profile
LoveFriendFirst123
I'm a 56 year old man looking to meet women between the ages of 50 and 72.
View Profile
koolstoof55
I'm a 59 year old man looking to meet women between the ages of 45 and 63.
View Profile
marcj4u
I'm a 48 year old man looking to meet women between the ages of 25 and 50.
View Profile
Holomig
I'm a 37 year old man looking to meet women between the ages of 28 and 36.
View Profile
annns
I'm a 51 year old man looking to meet women between the ages of 48 and 56.
View Profile
Soulsearcher72
I'm a 42 year old man looking to meet women between the ages of 35 and 45.
View Profile
drurie
I'm a 66 year old man looking to meet women between the ages of 60 and 66.
View Profile
Geard1977
I'm a 37 year old man looking to meet women between the ages of 27 and 38.
View Profile
AJK1110
I'm a 59 year old man looking to meet women between the ages of 25 and 55.
View Profile
Romanticseb
I'm a 59 year old man looking to meet women between the ages of 45 and 57.
View Profile
Woody777
I'm a 50 year old man looking to meet women between the ages of 35 and 55.
View Profile
tigercat
I'm a 54 year old man looking to meet women between the ages of 22 and 54.
View Profile
Rumrun
I'm a 56 year old man looking to meet women between the ages of 44 and 56.
View Profile
cloudhopper
I'm a 56 year old man looking to meet women between the ages of 45 and 55.
View Profile
oth1982
I'm a 32 year old man looking to meet women between the ages of 18 and 100.
View Profile
Pete_1
I'm a 70 year old man looking to meet women between the ages of 55 and 65.
View Profile
matiekat
I'm a 66 year old man looking to meet women between the ages of 18 and 100.
View Profile
bellagio
I'm a 69 year old man looking to meet women between the ages of 55 and 65.
View Profile
Rebelinbluejeans
I'm a 62 year old man looking to meet women between the ages of 40 and 62.
View Profile
honeybush_ht
I'm a 55 year old man looking to meet women between the ages of 25 and 45.
View Profile
Rich_H
I'm a 48 year old man looking to meet women between the ages of 25 and 48.
View Profile
rio77
I'm a 56 year old man looking to meet women between the ages of 50 and 60.
View Profile
Ben_57
I'm a 57 year old man looking to meet women between the ages of 42 and 55.
View Profile
cornrlius205
I'm a 46 year old man looking to meet women between the ages of 30 and 50.
View Profile
Kent123
I'm a 54 year old man looking to meet women between the ages of 45 and 60.
View Profile
LEO1982
I'm a 32 year old man looking to meet women between the ages of 24 and 40.
View Profile
maybe_111
I'm a 41 year old man looking to meet women between the ages of 23 and 39.
View Profile
Rick1508
I'm a 49 year old man looking to meet women between the ages of 25 and 49.
View Profile
Breukes
I'm a 35 year old man looking to meet women between the ages of 26 and 35.
View Profile
Gster1
I'm a 64 year old man looking to meet women between the ages of 45 and 60.
View Profile
happymaker66
I'm a 48 year old man looking to meet women between the ages of 25 and 45.
View Profile
boersoekvrou14
I'm a 39 year old man looking to meet women between the ages of 30 and 42.
View Profile
QuietDreamer
I'm a 34 year old man looking to meet women between the ages of 25 and 35.
View Profile
WagOngeduldig
I'm a 41 year old man looking to meet women between the ages of 30 and 45.
View Profile
gentlebutcrazy
I'm a 58 year old man looking to meet women between the ages of 35 and 55.
View Profile
Salerno
I'm a 52 year old man looking to meet women between the ages of 35 and 50.
View Profile
Deipnosophist
I'm a 40 year old man looking to meet women between the ages of 18 and 100.
View Profile
Jurgy62
I'm a 52 year old man looking to meet women between the ages of 37 and 55.
View Profile
Fairtalk101
I'm a 46 year old man looking to meet women between the ages of 25 and 45.
View Profile
rossi46
I'm a 66 year old man looking to meet women between the ages of 55 and 65.
View Profile
50pluslooking
I'm a 56 year old man looking to meet women between the ages of 18 and 100.
View Profile
letslook
I'm a 46 year old man looking to meet women between the ages of 25 and 45.
View Profile
peyton515
I'm a 46 year old man looking to meet women between the ages of 36 and 46.
View Profile
waitingforgodot
I'm a 68 year old man looking to meet women between the ages of 53 and 60.
View Profile
TheDuke_99
I'm a 36 year old man looking to meet women between the ages of 28 and 42.
View Profile
sailor_X897
I'm a 54 year old man looking to meet women between the ages of 35 and 60.
View Profile
MysticKitesurfer
I'm a 43 year old man looking to meet women between the ages of 27 and 36.
View Profile
Espavo
I'm a 50 year old man looking to meet women between the ages of 30 and 48.
View Profile
LiveLifeAlways
I'm a 43 year old man looking to meet women between the ages of 33 and 41.
View Profile
BobTheExtremeBuilder
I'm a 47 year old man looking to meet women between the ages of 25 and 47.
View Profile
deeptime
I'm a 53 year old man looking to meet women between the ages of 48 and 58.
View Profile
Bushbaby210
I'm a 27 year old man looking to meet women between the ages of 21 and 35.
View Profile
Kenfisha123
I'm a 49 year old man looking to meet women between the ages of 35 and 55.
View Profile
IceDad66
I'm a 48 year old man looking to meet women between the ages of 35 and 45.
View Profile
CapeLover
I'm a 49 year old man looking to meet women between the ages of 41 and 50.
View Profile
Travelbug_222
I'm a 76 year old man looking to meet women between the ages of 45 and 60.
View Profile
Double_N
I'm a 41 year old man looking to meet men between the ages of 25 and 50.
View Profile
skyandsand
I'm a 31 year old man looking to meet women between the ages of 25 and 35.
View Profile
Jazdaboss
I'm a 26 year old man looking to meet women between the ages of 25 and 45.
View Profile
GenuineJ
I'm a 64 year old man looking to meet women between the ages of 48 and 64.
View Profile
Yinyani
I'm a 57 year old man looking to meet women between the ages of 25 and 55.
View Profile
oldschool_romantic
I'm a 26 year old man looking to meet women between the ages of 19 and 31.
View Profile
umustbsomewhere
I'm a 61 year old man looking to meet women between the ages of 45 and 55.
View Profile
Eugene053
I'm a 54 year old man looking to meet women between the ages of 25 and 45.
View Profile
TheRealPeterPan
I'm a 35 year old man looking to meet women between the ages of 28 and 35.
View Profile
JustJve99
I'm a 47 year old man looking to meet women between the ages of 40 and 45.
View Profile
virgo5
I'm a 62 year old man looking to meet women between the ages of 45 and 65.
View Profile
B_B_B
I'm a 43 year old man looking to meet women between the ages of 18 and 45.
View Profile
Free_Spirited
I'm a 45 year old man looking to meet women between the ages of 32 and 42.
View Profile
philip_unplugged514
I'm a 62 year old man looking to meet women between the ages of 50 and 65.
View Profile
WanderingShadow
I'm a 39 year old man looking to meet women between the ages of 20 and 40.
View Profile
JONGKEREL
I'm a 62 year old man looking to meet women between the ages of 49 and 55.
View Profile
Boereman
I'm a 52 year old man looking to meet women between the ages of 40 and 52.
View Profile
srchinluv
I'm a 52 year old man looking to meet women between the ages of 46 and 65.
View Profile
MOOLMAN
I'm a 56 year old man looking to meet women between the ages of 48 and 62.
View Profile
big_guy_soft_heart
I'm a 43 year old man looking to meet women between the ages of 30 and 42.
View Profile
MF__802
I'm a 38 year old man looking to meet women between the ages of 20 and 40.
View Profile
Belligerent69
I'm a 45 year old man looking to meet women between the ages of 35 and 44.
View Profile
ch_nb
I'm a 28 year old man looking to meet women between the ages of 18 and 45.
View Profile
Kawa1000
I'm a 49 year old man looking to meet women between the ages of 40 and 50.
View Profile
Liefasb
I'm a 63 year old man looking to meet women between the ages of 50 and 60.
View Profile
earthwormjim1968
I'm a 46 year old man looking to meet women between the ages of 40 and 48.
View Profile
Summerstorm_007
I'm a 60 year old man looking to meet women between the ages of 48 and 58.
View Profile
DoctorSpin
I'm a 41 year old man looking to meet women between the ages of 30 and 45.
View Profile
arew
I'm a 49 year old man looking to meet women between the ages of 30 and 55.
View Profile
Stressfree
I'm a 58 year old man looking to meet women between the ages of 42 and 52.
View Profile
WieEnWaar
I'm a 63 year old man looking to meet women between the ages of 50 and 62.
View Profile
Carden
I'm a 32 year old man looking to meet women between the ages of 24 and 30.
View Profile
saks001
I'm a 61 year old man looking to meet women between the ages of 47 and 59.
View Profile
Lifechanger_7
I'm a 25 year old man looking to meet women between the ages of 18 and 30.
View Profile

Business Directory