Professor Pierre de Vos, a well-known legal scholar and public commentator wrote an opinion piece for the Daily Maverick titled "Why free speech fundamentalists are undermining the case for free speech". Despite the title, the Prof fails to properly analyze freedom of speech in a theoretical sense and, moreover, employs a legalistic argument to prove his points. A theoretical analysis of unfettered free speech should not be defined within constitutional grounds, it should be tested on other more universal principles as well.
Prof. de Vos quotes Beatrice Evelyn Hall's immortal quote "I disapprove of what you say, but I will defend to the death your right to say it" and states that no person truly holds that view. The Professor seems unaware that the quote refers to a belief rather than a behaviour. Whilst I doubt anyone will actively seek to be executed for another's speech, the important question is whether one views are compatible with the quote. Many liberals (in the classical sense) actively promote freedom of speech without needing to be killed to demonstrate that. This is not controversial.
History is littered with example of individuals who were killed for free speech to promote ideas that are completely mainstream today.
William Tyndale was executed for translating the Bible to English, gay Ugandans are thrown into prison for disseminating pro-gay literature, communists (or purported communists) were imprisoned under McCarthyism for literature that promoted communism, Steve Biko was imprisoned and ultimately killed for literature defending democratic principles of legal representation. I am positive that Professor De Vos would agree that the examples I have listed are egregious assaults on human rights. Yet, they are examples where freedom of speech was suppressed and people were killed for ideas, people were jailed and executed for what they said.
The crux of the Professor's opinion piece rests on only two examples, racist speech and defamatory speech. This is an incredible narrow lens through which free speech should be examined. Whilst I do appreciate why he narrowed his focus (it's the only argument he can make to infer legalistic context), it is woefully inadequate to be a reasonable opinion on freedom of speech.
The Prof makes the argument that racist speech can "inflict severe emotional harm on those targeted". Within the context of racism, I agree with him, racist speech can invoke emotional harm. But, my retort would be, so what? Emotional harm is not defined in the Prof's piece and the definition of 'emotional harm' is so broad and vague that it can included a multitude of things that are not related to free speech. People are emotionally harmed by seeing collisions on the highway, beheading videos on the internet, a speech by President Zuma or an opinion piece by the Prof himself. Many behaviours and actions cause emotional harm, but we aren't going to ban Leon Schuster movies for that, despite having all the negative stereotypes of black people in each one. The argument that emotional harm is a reason to limit racist speech is completely unreasonable and fundamentally illiberal. Moreover, there is a patronizing inference that some people are more harmed by speech than others. I do not believe it is the Prof's decision to decide on what harms different racial groups.
The Prof then delves into his forte, spouting sections of various legislative acts that support his position. As I have mentioned, free speech and the arguments surrounding it should not only be based within a legalistic framework, important values and concepts are not necessarily legal but may be in fact illegal (such as homosexuality in Uganda). The homosexuals who write and print literature for their cause are acting illegally, the legal framework of Uganda is an obstruction to their emancipation. Legal arguments about free speech are to narrowly focused to bear relevance in this instance. While he is (probably) correct when he lists legislation, it says very little about the concept of free speech as a universal principle.
The Prof concludes by saying "What we do not need is a completely ahistorical debate centered on empty and false on an empty and false slogan about defending to death the right of speech that is not constitutionally protected and already regulated by the law."
With the fear of sounding repetitive, I have already demonstrated that the statement about defending speech, even dying if required, is not a literal argument but one of belief. My life is more important than the speech of an Islamic hate preacher but I will support their right to spout hate and will actively fight against the censorship the Prof craves.
The lens of history is also not a reason to ban speech, it once again restricts the concept of free speech to geography as opposed to universal principles of freedom. Many struggle veterans fought against apartheid to actively discredit the state. They used letters, radio signals, pamphlets and posters as a means to communicate their message. The state tried to obstruct the flow of information with some success but the message was received globally. I am certain that some struggle veterans would be appalled that speech is under threat today merely because the some of the victims has changed.
In conclusion, the Professor has attempted to contextualize free speech within a legal and moral framework that fits his views. He seems to believe that some (black) people should not be the 'victims' of free speech. He has completely misunderstood the quote from which his opinion piece flowed. Whilst I do believe that people who spout racial epithets can be punished by being dismissed from their positions, we will not defeat prejudice by making it illegal, on the contrary, it will fester and grow because bigots will see themselves as martyrs. Let racists speaks their minds and lets use our freedom of speech to call them buffoons and bigots. It is a fair trade.