20 Expression Gilbert Marcus Derek Spitz 20.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (a) The structure of analysis . . . . . . . . . . . . . . . . . . . . . . (b) The drafting history of s 15 . . . . . . . . . . . . . . . . . . . . . (c) The impact of s 15(1) on existing law . . . . . . . . . . . . . . . (d) Section 16 of the final Constitution . . . . . . . . . . . . . . . . . (e) Freedom of speech in Parliament and the provincial legislatures . 20.2 The value of freedom of speech and expression . . . . . . . . . . . . . (a) Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) The search for truth through free exchange of ideas . . . . . . . . (c) Individual self-fulfilment and autonomy . . . . . . . . . . . . . . (d) The necessary conditions of self-government: the political process rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (e) The South African historical context . . . . . . . . . . . . . . . . 20.3 A bifurcated guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . (a) Political core and protected periphery . . . . . . . . . . . . . . . (b) The meaning of ‘free and fair political activity’ . . . . . . . . . . 20.4 Comparison with relevant international and domestic instruments . . . (a) Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) Comparison with the First Amendment to the Constitution of the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) Comparison with s 2(b) of the Canadian Charter of Rights and Freedoms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d) Comparison with art 21 of the Constitution of Namibia . . . . . . 20.5 The application of s 15(1) . . . . . . . . . . . . . . . . . . . . . . . . (a) Every person . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) Common-law rules invoked in private disputes . . . . . . . . . . . [REVISION SERVICE 5, 1999] . . . . . . . . . . . . . . . . . . . . Page 20--1 20--1 20--2 20--3 20--4 20--5 20--5 20--5 20--7 20--7 . . 20--8 . . 20--9 . . 20--10 . . 20--10 . 20--10A . . 20--11 . . 20--11 . . 20--12 . . 20--13 . . 20--14 . . 20--15 . . 20--15 . 20--16A 20--i CONSTITUTIONAL LAW OF SOUTH AFRICA 20.6 The meaning of the guarantee . . . . . . . . . . . . . . . . . . . . . . . (a) Freedom of speech and expression . . . . . . . . . . . . . . . . . . (b) Freedom of the press and other media . . . . . . . . . . . . . . . . (c) Freedom of artistic creativity . . . . . . . . . . . . . . . . . . . . . (d) Section 15(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.7 Limitations upon s 15(1) . . . . . . . . . . . . . . . . . . . . . . . . . . (a) Prior restraints . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) Time, place and manner restrictions . . . . . . . . . . . . . . . . . 20.8 The substance of freedom of speech and expression . . . . . . . . . . . (a) Political expression and state security . . . . . . . . . . . . . . . . (b) Defamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) Contempt of court and access to court . . . . . . . . . . . . . . . . (i) Scandalizing the court . . . . . . . . . . . . . . . . . . . . . (ii) Contempt and the right to a fair trial . . . . . . . . . . . . . . (iii) Access to courts . . . . . . . . . . . . . . . . . . . . . . . . (d) Sexually explicit expression . . . . . . . . . . . . . . . . . . . . . (e) Hate propaganda . . . . . . . . . . . . . . . . . . . . . . . . . . . (f) Commercial expression . . . . . . . . . . . . . . . . . . . . . . . . (g) Picketing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (h) Access to public property . . . . . . . . . . . . . . . . . . . . . . . (i) Access to private property . . . . . . . . . . . . . . . . . . . . . . 20.9 Freedom of expression in terms of s 16 of the final Constitution . . . . . (a) The differences between IC s 15 and FC s 16 . . . . . . . . . . . . (b) The structure of freedom of expression analysis under the final Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) The application of FC s 16 . . . . . . . . . . . . . . . . . . . . . . (d) The enumerated exclusions in FC s 16(2) . . . . . . . . . . . . . . (i) Propaganda for war . . . . . . . . . . . . . . . . . . . . . . . (ii) Incitement of imminent violence . . . . . . . . . . . . . . . . (iii) Advocacy of hatred that constitutes incitement to cause harm 20--ii Page . 20--17 . 20--17 . 20--19 . 20--22 . 20--24 . 20--25 . 20--25 . 20--27 . 20--28 . 20--28 . 20--31 20--38A 20--38A . 20--40 . 20--42 . 20--44 . 20--47 . 20--50 . 20--53 . 20--54 . 20--55 . 20--57 . 20--57 . . . . . . 20--59 20--60 20--60 20--61 20--62 20--62 [REVISION SERVICE 5, 1999] EXPRESSION 20.1 INTRODUCTION Section 15, which protects freedom of speech and expression, provides: ‘(1) Every person shall have the right to freedom of speech and expression which shall include freedom of the press and other media, and the freedom of artistic creativity and scientific research. (2) All media financed by or under the control of the state shall be regulated in a manner which ensures impartiality and the expression of a diversity of opinion.’ (a) The structure of analysis REVISION SERVICE 2, 1998 1The right to freedom of speech and expression, like the other fundamental rights which are guaranteed by Chapter 3 of the Constitution, is not absolute. The exercise of the right to freedom of expression is made subject to the provisions of s 33(1), the limitation clause. Those limitations upon free expression which satisfy the standards of justification set out in s 33(1) will therefore survive constitutional scrutiny. Judicial review of any purported limitation of the right to freedom of speech and expression will involve a ‘two-stage’ approach.1 At the first stage of the inquiry the courts will have to determine whether the expressive activity in question falls within the ambit of s 15 and, if so, whether such expressive activity has been restricted or limited. The party alleging that there has been a violation of the right to freedom of expression must demonstrate that there has indeed been a restriction of constitutionally protected expressive activity. The inquiry into ambit will depend upon the development by our courts of a value-based or purposive definition of s 15 to determine whether the activity in question furthers the values which underpin the guarantee of freedom of expression. In order to demonstrate that protected expressive activity has been restricted it is submitted that either an intention to limit expression or a limiting effect on expression will be sufficient. Even in the absence of an intention to limit expressive activity a prima facie violation of s 15 can nevertheless be established if it can be shown that the effect of a statute, rule of common law, or executive act is to limit expressive activity.2 Thus, if the expressive activity at issue falls within the ambit of s 15, and if there has been a restriction of such activity, then there has been a prima facie infringement of the right to freedom of expression. The second stage of the inquiry is necessary only if the prima facie infringement has been demonstrated. At this stage the courts will consider whether the prima facie infringement constitutes a justifiable limitation upon the exercise of the constitutional guarantee.3 Different standards of justification will apply, depending on the nature of the expressive 1 S v Zuma & others 1995 (2) SA 642 (CC) at 654G, 1995 (4) BCLR 401 (CC); S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) para 100. For elaboration of the two-stage structure of constitutional analysis, see above, Kentridge & Spitz ‘Interpretation’ § 11.10 and Woolman ‘Limitation’ §§ 12.1, 12.2. 2 See e g R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 (SCC) at 350; Irwin Toy Ltd v Quebec (A-G) (1989) 58 DLR (4th) 577 (SCC) at 610--11 (either an unconstitutional purpose or an unconstitutional effect may invalidate legislation which limits the freedom of expression); see also In re Munhumeso & others 1995 (1) SA 551 (ZS) at 561D--E, 1995 (2) BCLR 125 (ZS); Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation 1996 (1) SA 847 (ZS) at 861H--J. 3 For consideration of the nature of the limitation clause inquiry, see above, Woolman ‘Limitation’ §§ 12.1, 12.2 and 12.6. [REVISION SERVICE 2, 1998] 20--1 CONSTITUTIONAL LAW OF SOUTH AFRICA activity in question. Where expression relates to free and fair political activity, any limitation must be reasonable and necessary, as well as justifiable in an open and democratic society based on freedom and equality, if it is to survive judicial scrutiny. In addition, the limitation may not negate the essential content of s 15. Where the expression does not relate to free and fair political activity, any limitation must be reasonable (but not necessary) as well as satisfying the other requirements of s 33(1). In this manner political expression is afforded greater constitutional protection than non-political expression. Consequently, freedom of expression jurisprudence will develop a political core and a protected periphery.1 If a particular limitation of protected expression cannot be justified in accordance with the requirements of the limitation clause, then there has been an unconstitutional violation of the right to freedom of expression.2 Conversely, if the limitation satisfies the standards of justification, then the statute, rule of law, or executive act is not unconstitutional, notwithstanding the fact that it limits the exercise of the s 15 right. (b) The drafting history of s 15 2 s a matter of interpretive principle, it is inadvisable to ground the enterprise of constitutional A interpretation upon a search for an elusive drafters’ intention.3 The brief account of the drafting history of s 15 which follows provides contextual background, but ought not to form the foundation for interpretation of the guarantee. The Progress Reports of the Technical Committee on Fundamental Rights During the Transition provide limited assistance in ascertaining the purpose of the guarantee itself and the reasons behind particular linguistic choices.4 The several reports of the Technical Committee and the minutes of the Ad Hoc Committee meetings contain little in the way of substantive commentary upon s 15 and do not form a complete record of discussions which must have taken place during the process of drafting the clause.5 As the First Progress Report of the Technical Committee makes clear,6 ‘freedom of speech and expression which shall include freedom of the press and other media’ is considered to be one of the essential rights and freedoms which required accommodation during the transition period. Some indication that the drafters were motivated by the values and 1 D Spitz ‘Eschewing Silence Coerced by Law: The Political Core and Protected Periphery of Freedom of Expression’ (1994) 10 SAJHR 301. 2 On the effect of a finding of unconstitutionality, see above, Klaaren ‘Judicial Remedies’ § 9.5. 3 For consideration of the proper approach to constitutional interpretation, including a comparison between constitutional and statutory interpretation, and a critique of the search for original intention, see above, Kentridge & Spitz ‘Interpretation’ §§ 11.4 and 11.7--11.9. See also G Marcus ‘Interpreting the Chapter on Fundamental Rights’ (1994) 10 SAJHR 92; D Davis ‘Democracy ---- Its Influence upon the Process of Constitutional Interpretation’ (1994) 10 SAJHR 103; Davis, Chaskalson & De Waal ‘Democracy and Constitutionalism: The Role of Constitutional Interpretation’ in Van Wyk et al (eds) Rights and Constitutionalism: The New South African Legal Order (1994) 1. 4 L Johannessen ‘Freedom of Expression and Information in the New South African Constitution and its Compatibility with International Standards’ (1994) 10 SAJHR 216 at 225. 5 Johannessen ‘Freedom of Expression and Information’ 224--5. 6 14 May 1993. 20--2 [REVISION SERVICE 2, 1998] EXPRESSION imperatives of a well-functioning political process is reflected in the Second Progress Report, where freedom of expression is classified as one of the rights directly concerned with the transitional political process.1 A brief explanatory note to the Fourth Progress Report offers some insight into the Technical Committee’s understanding of freedom of expression. The note provides that freedom of expression ‘includes the right to gather information preparatory to its expression. The right to freedom of speech and expression, when read together with the equality clause, may include the notion of equal and equivalent use of State-supported electronic media.’2 3 his note is of interest for two reasons. First, it suggests that although access to information T held by the state is separately enshrined in s 23 of the Chapter, the right to receive information is also an integral part of the right of freedom of expression and may operate in wider contexts than those envisaged by s 23.3 Secondly, the note suggests that a completely laissez-faire attitude to expression may come into conflict with the right to equality enshrined in s 8. The harmonious development of both rights, at least in the arena of publicly owned media, may impose affirmative obligations on the state. This relationship between freedom of expression and equality apparently found textual recognition in the Tenth Progress Report, which added to the freedom of expression clause the following: ‘All media financed by or under the control of the State shall be regulated in a manner which ensures the expression of a diversity of opinion.’4 In final form, as embodied in s 15(2) of Chapter 3, the words ‘impartiality and’ have been inserted after the words ‘manner which ensures’. Finally, and without explanation, the Tenth Progress Report adds to the text of s 15(1) the phrase ‘and the freedom of artistic creativity and scientific research’. In its final form, therefore, freedom of the press and other media, artistic creativity, and scientific research are singled out for explicit enumeration, and perhaps for special protection. (c) The impact of s 15(1) on existing law At present both criminal and civil law regulate the exercise of free speech and expression. Numerous statutory provisions and common-law rules regulate, restrict, or limit speech and expression. The guarantee contained in s 15(1) makes it possible to subject to constitutional 1 21 May 1993. As part of the process of removing unnecessary restraints upon political debate the Abolition of Restrictions on Free Political Activity Act 206 of 1993 was passed and came into effect on 28 January 1994. The Act repealed s 47(2)(c), (d) and (e) of the Publications Act 42 of 1974, which had placed various restrictions upon political expression. 2 3 June 1993. 3 In Virginia State Board of Pharmacy v Virginia Citizens Consumer Council 425 US 748 (1975) at 762 the US Supreme Court recognized a right to receive information as part of the freedom of speech. And in Richmond Newspapers, Inc v Virginia 448 US 555 (1980) the First Amendment was interpreted to include a right of access to information, at least in the context of criminal trials. 4 5 October 1993. [REVISION SERVICE 2, 1998] 20--3 CONSTITUTIONAL LAW OF SOUTH AFRICA scrutiny those statutory provisions1 and common-law rules2 which impact upon freedom of expression. (d) Section 16 of the final Constitution 4 he Constitution of the Republic of South Africa, Act 108 of 1996 (‘the final Constitution’, T or FC) came into effect on 4 February 1997. All proceedings which were pending before a court before 4 February 1997 must be disposed of as if the final Constitution had not been enacted, unless the interests of justice require otherwise.3 In general, therefore, freedom of expression issues which are raised in matters which were pending before 4 February 1997 will be determined with reference to s 15 of the interim Constitution (IC). Section 16 of FC Chapter 2 embodies the new guarantee of freedom of expression. Freedom of expression issues which arise in matters which were not pending prior to 4 February 1997 will be governed by FC s 16. This provision differs, in important respects, from the guarantee of freedom of expression embodied in IC s 15. 1 The following list is not exhaustive but provides examples of certain statutes which may now be scrutinized for their consistency with freedom of speech and expression: the Public Safety Act 3 of 1953; the Criminal Procedure Act 56 of 1955 (s 319(3), dealing with statutory perjury); the Riotous Assemblies Act 17 of 1956 (in particular s 17 (incitement to public violence)); the Defence Act 44 of 1957 (in particular s 101 (empowering the State President to censor postal, telegraphic, telephonic or radio communications); s 118 (prohibiting the improper disclosure of defence-related information); s 119 (prohibiting the taking of photographs or making of sketches of military premises); the Police Act 7 of 1958 (s 27A); the Post Office Act 44 of 1958; the Trespass Act 6 of 1959; the Correctional Services Act 8 of 1959 (s 44(1)(e) and (g)); the Trade Marks Act 62 of 1963; the Armaments Development and Production Act 57 of 1968 (in particular s 11A (prohibiting disclosure of certain information)); the National Supplies Procurement Act 89 of 1970; the Companies Act 61 of 1973 (in particular s 417 and various disclosure requirements); the Petroleum Products Act 120 of 1977; the Copyright Act 98 of 1978; the National Key Points Act 102 of 1980; the Intimidation Act 72 of 1982 (s 1A); the Internal Security Act 74 of 1982 (in particular s 4(1) (permitting the declaration of certain organizations as unlawful) and ss 13(1) and 54 (governing terrorism and related offences)); the Protection of Information Act 84 of 1982; the Nuclear Energy Act 92 of 1982; the Nuclear Energy Act 131 of 1993 (s 69); the Regulation of Gatherings Act 205 of 1993 (in particular s 3 (the notice requirement); s 5 (the power of prohibition); s 7 (demonstrations in the vicinity of courts)); the Films and Publications Act 65 of 1996. For a detailed consideration of the statutory regulation of expressive conduct, see K Stuart The Newspaperman’s Guide to the Law 5 ed (1990). 2 Our courts have not yet determined the extent to which common-law rules will be subject to constitutional scrutiny. It is relatively uncontroversial that Chapter 3 will apply to common-law rules regulating public relationships. It is suggested below, § 20.5(b) and above, Woolman ‘Application’ § 10.4, that common-law rules regulating private relationships are equally subject to constitutional scrutiny. Examples of common-law rules which may constitute infringements of the constitutional right to freedom of expression include the following: the crime of sedition, i e of gathering with intent (not necessarily hostile) to defy or subvert the authority of the state (see e g S v Twala & others 1979 (3) SA 864 (T) at 869G--H; S v Zwane & others (1) 1987 (4) SA 369 (W) at 374 (violence or forcible conduct is not an essential element of the offence)); the crime of treason (S v Hogan 1983 (2) SA 46 (W) at 57C (the overt act necessary for treason can manifest itself in perfectly legal behaviour); S v Mayekiso & others 1988 (4) SA 738 (W) at 751D (violence, actual or contemplated, against the state is not a necessary element of the crime of treason); S v Zwane & others 1989 (3) SA 253 (W) at 256J--257B (hostile intent distinguishes treason from sedition and should not be confused with motive); S v Banda & others 1990 (3) SA 466 (B) (any overt act accompanied by the requisite hostile intent is sufficient)); the common-law rules of defamation and injuria (see below, § 20.8(b)); the common law of trespass (see Hefer v Van Greuning 1979 (4) SA 952 (A) (the owner of land is entitled to sue for trespass under the actio legis Aquilia)); and the principles governing unlawful competition (see below, § 20.8(f)). 3 Section 17 of FC Schedule 6. 20--4 [REVISION SERVICE 2, 1998] EXPRESSION FC s 16, which protects freedom of expression, provides: ‘(1) Everyone has the right to freedom of expression, which includes ---(a) freedom of the press and other media; (b) freedom to receive and impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research. (2) The right in subsection (1) does not extend to ---(a) propaganda for war; (b) incitement of imminent violence; (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.’ REVISION SERVICE 5, 1999 5 Some of the analysis of freedom of expression contained in this chapter depends on the specific wording of IC s 15. Much of the analysis, however, does not depend on the specific language of the guarantee and is therefore of equal application to both IC s 15 and FC s 16. We have decided to deal with FC s 16 in a separate section at the end of this chapter. We have done so in order to retain the coherence of the existing analysis, because IC s 15 will retain its relevance for some time to come, and so as to enable the reader to have convenient reference to FC s 16 in a single section. Consequently we identify, in § 20.9 below, the important differences between IC s 15 and FC s 16. In reading the earlier sections of this chapter readers are advised to bear in mind the differences considered below in § 20.9. Readers are therefore referred to § 20.9 for consideration of the guarantee of freedom of expression as it is formulated in the text of the final Constitution. (e) Freedom of speech in Parliament and the provincial legislatures Both the interim Constitution and the final Constitution confer special protection on freedom of speech in Parliament1 and the provincial legislatures.2 This topic is discussed elsewhere in this volume.3 20.2 THE VALUE OF FREEDOM OF SPEECH AND EXPRESSION (a) Generally In most democratic societies freedom of expression is recognized as being absolutely central to democracy. Nevertheless, in no country is freedom of expression absolute. The outcome of disputes turning on the guarantee of free expression will depend upon the value the courts are prepared to place on freedom of expression and the extent to which they will be inclined to subordinate other rights and interests to free expression. Rights of free expression will have to be weighed against many other claims, including the rights to equality, dignity, privacy, political campaigning, fair trial, economic activity, workplace democracy, and property. 1 IC s 55(2) and FC ss 58(1)(a) and 71(1)(a). 2 IC s 135(2) and FC s 117(1)(a). 3 See above, Chaskalson & Klaaren ‘National Government’ § 3.3(i)(i). [REVISION SERVICE 5, 1999] 20--5 CONSTITUTIONAL LAW OF SOUTH AFRICA The commitment to freedom of expression is founded on the often inarticulate premise that expression is more deserving of immunity from governmental regulation than are other forms of social practice. Freedom of expression is viewed as being central to the enterprise of open democracy.1 6 In its first judgment dealing with freedom of expression a unanimous Constitutional Court articulated the values underlying the guarantee of freedom of expression in the following way: ‘Freedom of expression lies at the heart of democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.’2 The court recognized that freedom of expression is one of a ‘web of mutually supporting rights’ closely related to freedom of religion, belief and opinion, the right to dignity, the right to freedom of association, the right to vote and to stand for public office and the right to assembly. ‘These rights taken together protect the rights of individuals not only individually to form and express opinions, of whatever nature, but to establish associations and groups of like-minded people to foster and propagate such opinions. The rights implicitly recognise the importance, both for a democratic society and for individuals personally, of the ability to form and express opinions, whether individually or collectively, even where those views are controversial. The corollary of the freedom of expression and its related rights is tolerance by society of different views. Tolerance, of course, does not require approbation of a particular view. In essence, it requires the acceptance of the public airing of disagreements and the refusal to silence unpopular views.’3 1 See e g S v Turrell & others 1972 (1) SA 248 (C) at 256G (‘Freedom of speech and freedom of assembly are part of the democratic rights of every citizen of the Republic and Parliament guards these rights jealously for they are part of the very foundations upon which Parliament itself rests.’); Mandela v Falati 1995 (1) SA 251 (W) at 259F, 1994 (4) BCLR 1 (W) at 8E--F (‘In a free society all freedoms are important, but they are not all equally important. Political philosophers are agreed about the primacy of the freedom of speech. It is the freedom upon which all others depend; it is the freedom without which the others would not long endure.’); Gardener v Whitaker 1995 (2) SA 672 (E) at 687H--I, 1994 (5) BCLR 19 (E) at 33I--J (‘In democracies with guarantees of fundamental rights the right to free speech and expression has found general acceptance, but its content has not been free of controversy.’); In re Munhumeso & others 1995 (1) SA 551 (ZS) at 557C--D, 1995 (2) BCLR 125 (ZS) (‘The importance attaching to the exercise of the right to freedom of expression and freedom of assembly must never be underestimated. They lie at the foundation of a democratic society and are ‘‘one of the basic conditions for its progress and for the development of every man’’, per European Court of Human Rights in Handyside v United Kingdom (1976) 1 EHRR 737 at para 49.’); Palko v Connecticut 302 US 319 (1937) at 326--7 (‘freedom of thought and speech . . . is the matrix, the indispensable condition of nearly every other form of freedom’); Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd (1986) 33 DLR (4th) 174 (SCC) at 174 (‘Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.’). See also New York Times v Sullivan 376 US 254 at 269--71, 84 SCt 710 (1964); Whitney v California 274 US 357 at 375--6, 47 SCt 641 (1927) (Brandeis J concurring). 2 South African National Defence Union v Minister of Defence & another 1999 (4) SA 469 (CC), 1999 (6) BCLR 615 (CC) at para 7. 3 At para 8. 20--6 [REVISION SERVICE 5, 1999] EXPRESSION Definable clusters of substantive values and normative commitments have been articulated in democratic societies in order to justify the commitment to freedom of expression and also to draw its limits.1 Although the set of values which underpins freedom of expression is not closed, the most widely shared freedom of expression values believed to underlie an open and democratic society are the search for truth through the free exchange of ideas, the pursuit of individual autonomy and self-fulfilment, and the demands of the political process.2 Most other goals and values which are furthered by protecting speech and expression may be understood as elaborations of these well-known values. 6A 1 For more detailed consideration of the philosophy of freedom of expression in the United States, see Tribe American Constitutional Law 2 ed (1988) 785--9; Stone et al Constitutional Law (1986) 931--8; Emerson The System of Freedom of Expression (1970). For a brief consideration of the values underpinning freedom of expression in Canada, see Hogg Constitutional Law of Canada 3 ed (1993) sec 40.4. See also Greenawalt ‘Free Speech in the United States and Canada’ (1992) 55 Law and Contemporary Problems 5. Contributions to the developing debate in South Africa include Van der Westhuizen ‘Freedom of Expression’ in Van Wyk, Dugard, De Villiers & Davis (eds) Rights and Constitutionalism (1994) 264; Meyerson ‘ ‘‘No Platform for Racists’’: What Should the View of Those on the Left Be?’ (1990) 6 SAJHR 394; Suttner ‘Freedom of Speech’ (1990) 6 SAJHR 372; Sachs ‘Towards a Bill of Rights in a Democratic South Africa’ (1990) 6 SAJHR 13. 2 See e g Irwin Toy Ltd v Quebec (A-G) (1989) 58 DLR (4th) 577 (SCC) at 612 (‘(1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfilment and human flourishing ought to be cultivated’); Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation 1996 (1) SA 847 (ZS) at 856F--G, 857C--858D. [REVISION SERVICE 5, 1999] 20--6A 6B EXPRESSION (b) The search for truth through free exchange of ideas REVISION SERVICE 2, 1998 The argument that it is necessary to protect expression in order to foster the discovery of truth has a classical liberal pedigree in the work of John Milton1 and John Stuart Mill,2 as well as a more modern idiom.3 The imperfections of human knowledge and the fallibility of judgment require a sceptical approach to accepted orthodoxy.4 The suppression of unfavourable arguments and opinions in an assertion of infallibility may frequently mean the suppression of truth. The search for truth requires openness to competing or opposing opinions. Continuing criticism ensures that received opinion remains open to development, revision and change. Restricting dissident knowledge and opinion impoverishes the search for truth. For these reasons distinguishing between the constitutional protection afforded to ideas on the basis of their truth or falsity is illegitimate.5 Dissident opinion, false propositions, and even those ideas which appear to have been fully and finally discredited may be highly valuable and require constitutional protection.6 7 The search-for-truth rationale has also been articulated in terms of the famous, if controversial, ‘marketplace of ideas’ metaphor, which suggests that truth will emerge out of the free competition of ideas. According to this view, ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market’.7 While there may be real truth in the notion that competition assists the discovery of truth, markets are also known to fail and to require corrective state intervention.8 (c) Individual self-fulfilment and autonomy Democratic societies have placed a high value on ensuring the conditions under which individuals may develop their capacities, participate in their own self-definition, and exercise independent judgment as to the meaning and content of the good life. The development of individual autonomy and the value placed upon self-fulfilment require that a range of 1 A Speech for the Liberty of Unlicensed Printing (1644). 2 On Liberty (1859). 3 See e g Gardener v Whitaker 1995 (2) SA 672 (E) at 687I--J, 1994 (5) BCLR 19 (E) at 34A (the advancement of knowledge and truth is a fundamental value underlying freedom of expression). 4 See e g Meyerson ‘ ‘‘No Platform for Racists’’ ’ at 397--8 (arguing that, while conservative thought often relies upon ‘revealed truth and the infallibility of authority’, progressives require ‘truth by demonstration’). 5 New York Times v Sullivan 376 US 254 at 271 (1964). 6 Handyside v The United Kingdom [1976] 1 EHRR 737 at 754 (freedom of expression is also applicable to ideas ‘that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism and broadmindedness without which there is ‘‘no democratic society’’.’). See also R v Keegstra [1990] 3 SCR 697 at 729, 3 CRR (2d) 193 (freedom of expression extends to all expression, ‘however unpopular, distasteful or contrary to the mainstream’). 7 Abrams v United States 250 US 616 at 630, 40 SCt 17 (1919) (Holmes J dissenting). See also Mandela v Falati 1995 (1) SA 251 (W) at 259E, 1994 (4) BCLR 1 (W) at 8D (referring with approval to the role of the marketplace of ideas in a free society). 8 For criticism of the marketplace of ideas metaphor, see e g Ingber ‘The Marketplace of Ideas: A Legitimizing Myth’ (1984) Duke LJ 1 (like commodity markets, the marketplace of ideas is subject to market failure and requires corrective state intervention); Van der Westhuizen ‘Freedom of Expression’ 268 (the ‘marketplace of ideas’ metaphor risks the consequence that ‘false and malicious propaganda could thus be allowed to go very far and to result in much harm before its fallacy is exposed by the mechanisms of a supposedly free market’); Suttner ‘Freedom of Speech’ 372. [REVISION SERVICE 2, 1998] 20--7 CONSTITUTIONAL LAW OF SOUTH AFRICA expressive activities, wider than those related to ensuring the integrity of the political process, enjoy constitutional protection.1 Freedom of expression permits the exercise of fundamental creative capacities and therefore nurtures self-respect and autonomous self-determination. Nevertheless, in order to qualify for protection expression which furthers self-fulfilment must contain a communicative purpose in order to distinguish it from other self-fulfilling activity, such as economic activity, which is not accorded constitutional protection on the basis of freedom of expression.2 (d) The necessary conditions of self-government: the political process rationale 8 he exercise of democratic self-government, both in its direct and representative forms, T requires of the citizenry the capacity to make informed judgments about the manner in which they are to be governed. Extensive and participatory debate in turn requires free and open access to all available and relevant ideas and policies.3 Any defensible democratic political process sustains and is regulated by the protection of expression.4 In order to secure and protect a functional and well-regulated political process constitutional protection ought to be extended beyond discussions of government policy to embrace philosophical, literary, artistic and scientific forms of expression. These activities further the democratic process primarily through the contribution they make to the formation of an informed citizenry.5 Integral to a political process justification for freedom of expression are two functional arguments. First, freedom of expression is a check upon the abuse of power and a form of resistance to totalitarian control.6 Secondly, social stability is furthered by freedom of expression, 1 See e g Gardener v Whitaker 1995 (2) SA 672 (E) at 687I--J, 1994 (5) BCLR 19 (E) at 34A (‘the free development of an individual’s intellect, interests, tastes and personality’ is a fundamental value underlying freedom of expression); Woods v Minister of Justice, Legal and Parliamentary Affairs 1995 (1) SA 707 (ZS), 1995 (1) BCLR 56 (ZS) (holding that the guarantee of freedom of expression prevents the state from restricting the number of letters which prisoners serving terms of life imprisonment may write and receive). 2 Hogg Constitutional Law of Canada sec 40.4. See also Bork ‘Neutral Principles and Some First Amendment Problems’ (1971) 47 Indiana LJ 1 at 25 (there are no neutral grounds, on the basis of the self-fulfilment rationale, for protecting speech-acts above other self-fulfilling activities). 3 Meiklejohn Free Speech and its Relation to Self-government (1948); Roth v United States 354 US 476 at 484, 77 SCt 1304 (1957) (referring to the need for ‘unfettered interchange of ideas for the bringing about of political and social changes desired by the people’). 4 This argument from democracy is adverted to by Froneman J in Gardener v Whitaker 1995 (2) SA 672 (E) at 687H--I, 1994 (5) BCLR 19 (E) at 33J--34A. 5 Meiklejohn ‘The First Amendment is an Absolute’ (1961) Supreme Court Review 245. See also below, § 20.3(b). 6 See e g Blasi ‘The Checking Value in First Amendment Theory’ 1977 American Bar Foundation Research Journal 521; New York Times v Sullivan 376 US 254, 84 SCt 710 (1964); Kalven ‘The New York Times Case: A Note on the Central Meaning of the First Amendment’ (1964) Supreme Court Review 191 (seditious libel is an impossible concept in a democracy and fundamental criticism of the state is at the core of freedom of expression); Rubenfeld ‘The Right to Privacy’ (1989) 102 Harvard LR 737 (freedom of expression is a crucial form of resistance to disciplinary power enabling individuals to frustrate or roll back creeping totalitarianism). See also Mandela v Falati 1995 (1) SA 251 (W) at 260C--D, 1994 (4) BCLR 1 (W) at 9B--C (‘It is a matter of the most fundamental importance that . . . criticism [of politicians] should be free, open, robust and even unrestrained. This is because of the inordinate power and influence which is wielded by politicians, and the seductive influence which these attributes have upon corrupt men and women. The most appalling crimes have been committed by politicians because their baseness and perversity was hidden from public scrutiny.’); Government of the Republic of South Africa v ‘Sunday Times’ Newspaper & another 1995 (2) SA 221 (T) at 227I--228A, 1995 (2) BCLR 182 (T) at 188G--H; Indian Express Newspapers (Bombay) v Union of India (1985) 2 SCR 287 (what is at stake is the people’s right to know); Lingens v Austria, Judgment of 8 July 1986, Series A No 103, (1986) 8 EHRR 407 (political defamation). 20--8 [REVISION SERVICE 2, 1998] EXPRESSION permitting the articulation of dissent and offering a method of working through social conflict instead of acting it out in a destructive manner.1 (e) The South African historical context 9 egard to the history of our society does not necessarily generate freedom of expression R values additional to those considered above. Nevertheless, it does serve to inflect the process of constitutional interpretation, the content of ‘speech and expression’, and the nature of justifiable limitations upon s 15(1) in a particular manner.2 One approach to historical context is to suggest that political activity was not inhibited by the citizenry but by state repression. On the basis of this historical understanding it has been suggested that the drafters of the Constitution sought, by means of s 15(1), exclusively to combat the evil of state repression of expression, and, accordingly, that Chapter 3 is exclusively of vertical application.3 It is undeniable that censorship laws and security legislation were the primary vehicles for restricting expression. However, the effects of such repression permeated the entire social and political life of the society, distorting political, cultural and also purely individual expression.4 Censorship, moreover, has a far wider reach than state repression.5 Freedom of expression ought properly to be understood as integral to the transformation not merely from state repression to democracy but from an authoritarian culture to one of justification, openness, and accountability.6 Our historical context does not provide justification for the doctrine of vertical application. In the context of Namibia the essential role of freedom of speech in ridding that country of apartheid and its attendant consequences has been recognized.7 This recognition is of even greater application in the South African context. 1 Whitney v California 274 US 357 at 375, 47 SCt 641 (1927) (Brandeis J concurring) (suppressing expression substitutes force for rational discussion and reduces society’s ability to adjust to change); Stromberg v California 283 US 359 at 369, 51 SCt 532 (1931) (reflecting upon the importance of ‘free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic’). See also In re Munhumeso & others 1995 (1) SA 551 (ZS) at 557E--F, 1995 (2) BCLR 125 (ZS) (in addition to other purposes, freedom of expression ‘provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change’). 2 Van der Westhuizen ‘Freedom of Expression’ 273 (‘Today we strive for equality and freedom, openness, reconciliation, and tolerance, and aim to become a truly exemplary democracy in Africa and the world. In doing so we are conscious of a history of denial of these values, of race discrimination, sexism, an obsession with secrecy in the face of perceived onslaughts, and state censorship aimed not only at preserving white minority rule but also at enforcing the morality of a small group by the instrument of the law.’). 3 De Klerk v Du Plessis 1995 (2) SA 40 (T) at 50D, 1994 (6) BCLR 124 (T) at 132I (concluding on the basis, in part, of this account of the historical context, that the bill of rights in general, and s 15(1) in particular, apply vertically only). 4 As noted in Gardener v Whitaker 1995 (2) SA 672 (E) at 688A--C, 1994 (5) BCLR 19 (E) at 34B--D. 5 Marcus ‘The Wider Reaches of Censorship’ (1985) 1 SAJHR 69. 6 Mureinik ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 SAJHR 31 at 32; cited with approval in Khala v Minister of Safety and Security 1994 (4) SA 218 (W) at 223E--H, 1994 (2) BCLR 89 (W) at 93E--G and Qozeleni v Minister of Law and Order & another 1994 (3) SA 625 (E) at 634B--C, 1994 (1) BCLR 75 (E) at 80G--H. 7 Kauesa v Minister of Home Affairs & others 1996 (4) SA 965 (NmS) at 982J. [REVISION SERVICE 2, 1998] 20--9 CONSTITUTIONAL LAW OF SOUTH AFRICA 20.3 A BIFURCATED GUARANTEE (a) Political core and protected periphery Expression which ‘relates to free and fair political activity’ enjoys a higher level of constitutional protection than other non-political forms of expression.1 The structure of Chapter 3 therefore elevates political process arguments over other rationales for protecting speech and expression by requiring a heightened level of judicial scrutiny of restrictions upon political expression.2 10 In adopting the ‘reasonable’ and ‘reasonable and necessary’ distinction in s 33(1), and in applying to freedom of expression a political principle of differentiation, our commitment to freedom of expression acquires a distinctive constitutional colour by making textually explicit what has been judicially developed elsewhere.3 As a consequence, in part, of the structure of the text our freedom of expression jurisprudence will develop a core of high-value political expression and a protected periphery of lower-value expression.4 Attributing meaning to the phrase ‘free and fair political activity’ in connection with freedom of expression will involve our courts in defining the scope of the political process rationale underpinning s 15.5 1 Section 33(1)(bb) provides that any limitation to ‘a right entrenched in s 15 . . ., in so far as such right relates to free and fair political activity, shall, in addition to being reasonable as required in paragraph (a)(i), also be necessary.’ As O’Regan J points out in S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 339: ‘The requirement of reasonableness and justifiability . . . clearly envisages a less stringent constitutional standard than does the requirement of necessity.’ 2 For a persuasive example of an interpretive project which advocates a two-tier theory of the First Amendment on the basis of a political principle of differentiation, see Sunstein The Partial Constitution (1993) 236--9. Without the advantage of the explicit textual materials of our Constitution, Professor Sunstein argues that free speech jurisprudence may best be understood and most fruitfully developed on the basis of a political approach which views political speech as residing at the core of the guarantee. 3 Section 1 of the Canadian Charter, by contrast, does not distinguish between different levels of protection to be afforded to different forms of expression. See also Irwin Toy Ltd v Quebec (A-G) (1986) 32 DLR (4th) 641 (Que CA) at 652 (‘It is not for the court to accord more prestige to political, artistic or cultural expression than to commercial expression, or to find that the nature and scope of one is greater than that of another since the Charter makes no such distinction.’). But see Rocket v Royal College of Dental Surgeons of Ontario (1990) 71 DLR (4th) 68 (SCC) at 78: ‘While the Canadian approach does not apply special tests to restrictions on commercial expression [as opposed e g to political expression], our method of analysis does permit a sensitive, case-oriented approach to the determination of their constitutionality. Placing the conflicting values in their factual and social context when performing the s 1 [limitation clause] analysis permits the courts to have regard to the special features of the expression in question. As Wilson J notes in Edmonton Journal v Alberta (A-G) (1989) 64 DLR (4th) 577 . . ., not all expression is equally worthy of protection. Nor are all infringements of free expression equally serious.’ This judicial development of a core and a periphery of protected expression is referred to in RJR-MacDonald Inc v Canada (A-G) (1995) 127 DLR (4th) 1 (SCC) at 53--6, 31 CRR (2d) 189 at 270--2. 4 Spitz ‘Eschewing Silence Coerced by Law: The Political Core and Protected Periphery of Freedom of Expression’ (1994) 10 SAJHR 301. 5 The scope and meaning ascribed to ‘free and fair political activity’ may vary depending upon the particular fundamental right which has been invoked. 20--10 [REVISION SERVICE 2, 1998] EXPRESSION (b) The meaning of ‘free and fair political activity’ The scope of the political process rationale and the meaning assigned to ‘free and fair political activity’ will be the focus of important jurisprudential debate. A narrow view of self-government, which would recognize the resonance of the above phrase most strongly in the arena of electoral and policy-making activities, would seek to confine the meaning of ‘free and fair political activity’ to the requirements of universal suffrage.1 A narrow understanding of the political process rationale would also provide the requisite jurisprudential device for judges who presuppose a vertical application of Chapter 3 and who are reluctant to trench too deeply on the powers of the legislature. The narrower the definition, the greater the degree of judicial deference to the legislature. 10A A wider view of the political process rationale, by contrast, would extend the scope of ‘free and fair political activity’ beyond the narrow confines of electoral activity and social policy debates. It would argue that ‘voting is merely the external expression of a wide and diverse number of activities by which citizens attempt to meet the responsibilities of making judgments, which the freedom to govern lays upon them’, that the imperatives of selfgovernment require that ‘voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is assumed to express’. Consequently, all forms of thought and expression ‘within the range of human communications from which the voter derives the knowledge, intelligence, sensitivity to human values’ would form part of the political process rationale,2 and would relate to free and fair political activity, qualifying, in consequence, for maximum constitutional protection. A generous approach to the scope of ‘free and fair political activity’ does not mean that all expressive activity which generates political effects qualifies for maximum constitutional protection. If expression was evaluated simply on the basis of its political effects, the principle of differentiation set out in s 33(1)(bb) would be eviscerated since all expression may be said to have political effects. In defining the scope of ‘free and fair political activity’ a purposive interpretation is co-extensive with a liberal and generous approach. For several reasons a wide and generous definition of ‘free and fair political activity’ is to be preferred in crafting the legitimate scope of the political process rationale and in circumscribing the core of freedom of expression.3 1 This approach would rely on certain early formulations of the political process rationale which suggested that freedom of expression could be deduced from the principles of universal suffrage. See Meiklejohn Free Speech and its Relation to Self-government (1948) 39; Bork ‘Neutral Principles’ 26--8 (only speech that is explicitly political ought to qualify for First Amendment protection). 2 Meiklejohn ‘The First Amendment is an Absolute’ (1961) Supreme Court Review 245 at 255--7. 3 Our courts may be guided by Justice Brandeis’ famous concurring opinion in Whitney v California 274 US 357 at 375, 47 SCt 641 (1927): ‘Those who won our independence . . . valued liberty both as an end and as a means . . . They believed that freedom to think as you will and speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty . . . Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law ---- the argument of force in its worst form.’ [REVISION SERVICE 2, 1998] 20--10A 10B EXPRESSION ORIGINAL SERVICE, 1996 First, many expressive activities do indeed reproduce and alter both the form and content of the deliberative processes of political life. Secondly, many forms of discourse, extending far beyond the confines of legislative policy and electoral practice, play an important educative role in shaping the type of citizens who may constructively participate in democratic self-governance. The daily life of politics rests, in other words, on a broad array of communicative activities. If these are not adequately protected, the political process would soon ossify. Thirdly, our collective fallibility suggests that in order to secure and to safeguard a well-functioning democratic process it is necessary to provide a large breathing space for political speech. It may be necessary to overprotect high-value speech in order to reduce the risk of narrow line-drawing by the majoritarian institutions of state, which would not be susceptible of easy correction through the ordinary political process.1 11 One plausible approach to defining political expression would be to treat, as related to free and fair political activity, expression which is both intended and received as a contribution to public deliberation about some issue.2 Application of this test would not require an inquiry into subjective motivation. An objective standard, based upon reasonable inference, is likely to suffice. Taken together, a requirement of political purpose and political reception avoids the unacceptably wide-ranging consequences of a ‘political effects’ test while affording generous protection to political expression at the core of the guarantee.3 20.4 COMPARISON WITH RELEVANT INTERNATIONAL AND DOMESTIC INSTRUMENTS (a) Generally Section 35(1) enjoins our courts, when interpreting the provisions of Chapter 3, to ‘have regard to public international law applicable to the protection of the rights entrenched in this Chapter’4 and permits them to ‘have regard to comparable foreign case law’.5 A rich body of freedom of expression jurisprudence has been developed in the United States. Provided that adequate attention is paid to the structural differences between the First Amendment and our Chapter 3, US case law will be of great value in developing substantive areas of freedom of expression doctrine under s 15. Although the Canadian Charter does not apply where common-law rules are invoked in disputes between purely private parties,6 structural parallels as well as the currency of 1 See Sunstein Partial Constitution 238--43. 2 See Sunstein Partial Constitution 236. 3 See Sunstein Partial Constitution 241: ‘For purposes of the Constitution, the question is whether the speech is intended and received as a contribution to political deliberation, not whether it has political effects or sources.’ 4 Relevant provisions in international instruments include: art 19 of the Universal Declaration of Human Rights; art 19 of the International Covenant on Civil and Political Rights; art 10 of the European Convention on Human Rights; art 9 of the African Charter on Human and Peoples’ Rights; arts 13 and 14 of the American Convention on Human Rights. 5 Relevant freedom of expression provisions in domestic instruments include the First Amendment to the US Constitution; s 2(b) of the Canadian Charter of Rights and Freedoms; art 5 of the German Basic Law; art 21 of the Constitution of Namibia; art 19 of the Constitution of India; art 6 of the Constitution of Ireland. 6 Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd (1986) 33 DLR (4th) 174 (SCC). [ORIGINAL SERVICE, 1996] 20--11 CONSTITUTIONAL LAW OF SOUTH AFRICA freedom of expression decisions under the Charter make Canadian jurisprudence an important point of reference. Freedom of speech decisions under international law will also prove useful. (b) Comparison with the First Amendment to the Constitution of the United States In the United States freedom of speech is protected by the First Amendment to the Constitution, which provides that ‘Congress shall make no law . . . abridging the freedom of speech, or of the press’.1 12 While the First Amendment guarantees freedom of ‘speech’, s 15(1) protects both ‘speech and expression’. Section 15(1) therefore embraces within its ambit a wider range of expressive activities than does the First Amendment.2 Unlike s 15, which is subject to the limitation clause, the First Amendment is cast in absolute terms and is not subject to textual limitation. The impossibility and undesirability of a completely absolutist guarantee has meant that justifiable limitations upon freedom of speech have had to be fashioned by US courts on the basis of implied constitutional purpose and structure. A great deal of interpretive energy was initially focused on applying normative arguments primarily as principles of categorical exclusion at the threshold of the guarantee. Thus a bright line was drawn between protected and unprotected speech. Speech which fell within the ambit of the guarantee enjoyed near absolute protection, while speech outside this ambit ---- fighting words, obscenity, defamation and commercial speech ---- was originally considered to form ‘no essential part of any exposition of ideas’.3 Consequently, relatively large classes of speech were defined as ‘non-speech’ and received no constitutional protection at all. More recently, and without an explicit textual warrant, the US Supreme Court has developed doctrines which afford some constitutional protection to all the classes of speech considered above, except obscenity.4 1 For analysis of and commentary on freedom of speech under the First Amendment, see Tribe American Constitutional Law 785--1062; Stone et al (eds) Constitutional Law 925--1361. 2 The US Supreme Court has interpreted ‘speech’ under the First Amendment to include symbolic speech, such as certain forms of expression consisting of solely non-verbal actions. See e g Stromberg v California 283 US 359, 51 SCt 532 (1931) (holding unconstitutional a state statute prohibiting the display of a red flag as a symbol of opposition to organized government); Texas v Johnson 491 US 397, 109 SCt 2533 (1989) (holding unconstitutional a Texas statute prohibiting desecration of the national flag). Nevertheless, US courts have occasionally resorted to a controversial and ideologically laden distinction between ‘pure’ speech, which is entitled to full protection, and ‘speech plus conduct’, which is more easily regulable. Thus certain forms of political protest have been denied full First Amendment protection on the grounds that the expression at issue was mixed with conduct. See e g Cox v Louisiana 379 US 559, 85 SCt 476 (1965) (refusing First Amendment protection to a peaceful picket across the street from a courthouse on the grounds that the expression was not ‘free speech alone’). The inclusion of ‘speech and expression’ in s 15(1) prevents resort to comparable distinctions in South Africa. Symbolic speech will clearly be protected as a form of expression. 3 Chaplinsky v New Hampshire 315 US 568 at 571--2, 62 SCt 766 (1942). 4 Cohen v California 403 US 15, 91 SCt 1780 (1971) (profane slogan on jacket protected); New York Times v Sullivan 376 US 254, 84 SCt 710 (1964) (false and defamatory statement protected); Virginia State Board of Pharmacy v Virginia Citizens Consumer Council 425 US 748, 96 SCt 1817 (1976) (commercial advertising protected). See also Hogg Constitutional Law of Canada sec 40.4n25. 20--12 [ORIGINAL SERVICE, 1996] EXPRESSION (c) Comparison with s 2(b) of the Canadian Charter of Rights and Freedoms Sections 1 and 2(b) of the Canadian Charter of Rights and Freedoms provide: ‘1. The Canadian Charter of Rights and Freedoms guarantees the rights set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 2. Everyone has the following fundamental freedoms: ... (b) freedom of thought, belief, opinion, and expression, including the freedom of the press and other media of communication.’1 REVISION SERVICE 2, 1998 13 Section 2(b) of the Canadian Charter groups together ‘thought, belief, opinion, and expression’. By contrast, s 15(1) of our interim Constitution confines itself to ‘speech and expression’, while Chapter 3 protects ‘thought, belief and opinion’ separately as part of the guarantee of freedom of religion in s 14(1). While speech and expression enjoy the highest level of constitutional protection only in so far as they relate to ‘free and fair political activity’, thought, belief and opinion enjoy maximum constitutional protection regardless of their content.2 This split between speech and expression, on the one hand, and thought, belief and opinion, on the other, is arbitrary and anomalous.3 Since even totalitarian regimes cannot regulate thought, belief and opinion, little is likely to turn on their omission from s 15(1) provided that ss 14(1) and 15 are judicially interpreted to avoid absurdity. Alternatively, this arbitrariness can be remedied when the final Constitution is drafted. Section 15(2) has no parallel in the Canadian Charter. It serves to emphasize the affirmative obligations cast upon the state in enhancing the quality of public debate and furthering the interests of democratic government. Section 15(2) may constitute an internal limitation on s 15(1).4 The Canadian limitation clause, s 1 of the Canadian Charter, provides a single standard of justification5 for all limitations upon freedom of expression. All expression falling within the ambit of s 2(b) is afforded the same level of constitutional protection regardless of its content.6 The absence of a principle of differentiation has been the source of some difficulty in Canadian freedom of expression jurisprudence. Canadian courts have struggled to establish principled guidelines for determining how much protection to afford different forms of 1 For analysis of and commentary on s 2(b) of the Canadian Charter, see Hogg Constitutional Law of Canada sec 40; Beaudoin & Ratushny (eds) The Canadian Charter of Rights and Freedoms 2 ed (1989) ch 6. 2 Section 33(1)(aa). 3 Mureinik ‘A Bridge to Where? Introducing the Interim Bill of Rights’ 34: ‘Freedom of speech and expression merge seamlessly with those freedoms [of thought, belief and opinion], and it is difficult to see why a line should be drawn between them, or how it can be. What is the point of protecting freedom of thought if one is unfree to speak one’s thoughts? And is opinion really being protected if it cannot be expressed?’ 4 For a discussion of internal limitations, see above, Woolman ‘Limitation’ § 12.2(b). 5 See R v Oakes (1986) 26 DLR (4th) 200; Hogg Constitutional Law of Canada sec 35.3. 6 See e g Irwin Toy Ltd v Quebec (A-G) (1989) 58 DLR (4th) 577 (SCC). This structure resembles that of art 10 of the European Convention on Human Rights, which contains no distinction between political and non-political expression. Article 10(1) establishes the contours of the guarantee. Article 10(2) sets out the nature of justifiable limitations, which must be narrowly construed. See Sieghart The International Law of Human Rights (1983) 35, 91. [REVISION SERVICE 2, 1998] 20--13 CONSTITUTIONAL LAW OF SOUTH AFRICA expression.1 A bifurcated guarantee based upon a distinction between political core and protected periphery avoids this difficulty. Political expression, because of its foundational role in protecting and developing an open and democratic society, must be jealously protected by our courts. Non-political expression does not require the same level of constitutional protection. (d) Comparison with art 21 of the Constitution of Namibia Article 21(1) of the Constitution of Namibia provides that: ‘All persons shall have the right to: (a) Freedom of speech and expression, which shall include the freedom of the press and other media; (b) Freedom of thought, conscience and belief, which shall include academic freedom in institutions of higher learning . . ..’ Article 21(2) provides that the fundamental freedoms in art 21(1) 14 ‘shall be exercised subject to the law of Namibia, in so far as such law imposes reasonable restrictions on the exercise of the rights and freedoms conferred by the said sub-article, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of Namibia, national security, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence’. In Kauesa v Minister of Home Affairs & others the Namibia Supreme Court held that art 21(1)(a) guaranteed the right to freedom of speech and expression, while art 21(2)(b) imposed limitations on that right so as not to interfere with the rights and freedoms of others. A limitation on the exercise of a right has to be reasonable, necessary in a democratic society, and required in the interests of one or more of the objects listed in art 21(2).2 The onus of justifying a limitation on freedom of speech and expression is on the party who seeks to limit the right.3 The court also held that limitations to rights should be strictly interpreted so that individuals were not unnecessarily deprived of the enjoyment of their rights.4 1 See e g Irwin Toy Ltd v Quebec (A-G) (1989) 58 DLR (4th) 577 (SCC) at 624--30. Irwin Toy was concerned with the question of whether a statutory prohibition upon commercial advertising directed towards children constituted a reasonable limit on the right to freedom of expression. The Supreme Court of Canada was required to determine how strictly to interpret the second leg of the Canadian limitation clause test which had been set out in R v Oakes (1986) 26 DLR (4th) 200, namely the requirement that a limitation of a Charter right ‘impair as little as possible’ the exercise of the right in question. The Canadian court’s efforts to answer this question and to grapple with the proper scope of judicial review are abstract and formalistic, and consequently unpredictable. Note that the relationship between this ‘minimal impairment’ test and the problem of judicial review is adverted to by Chaskalson P in S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) at para 107. For arguments in favour of the textual specification of different levels of judicial scrutiny in accordance with a political principle of differentiation, see Spitz ‘Eschewing Silence Coerced by Law’ (1994) 10 SAJHR 301 at 313--15; Woolman ‘Riding the Push-Me Pull-You: Constructing a Test that Reconciles the Conflicting Interests which Animate the Limitations Clause’ (1994) 10 SAJHR 60 at 66--7. See also above, Woolman ‘Limitation’ § 12.6. 2 1996 (4) SA 965 (NmS) at 976A--D. 3 At 979J--980B. 4 At 980F--H. 20--14 [REVISION SERVICE 2, 1998] EXPRESSION REVISION SERVICE 5, 1999 The structure of the Namibian guarantee of freedom of speech and expression is therefore similar to the structure of the guarantee under both the interim and final Constitutions. There are two important differences. First, all limitations on freedom of speech under the Constitution of Namibia must be justified according to the standard of necessity. Under the interim Constitution, by contrast, only limitations on freedom of expression which relate to free and fair political activity must satisfy the test of ‘necessity’. Other limitations on expression must be reasonable, but need not be necessary. Under the final Constitution no explicit textual distinction is drawn between the level of justification applicable to different types of expression. All limitations on free expression must be justified according to the standard of reasonableness. Secondly, art 21(2) of the Constitution of Namibia expressly enumerates the objects which any permissible limitation is required to serve.1 By contrast, neither IC s 33(1) nor FC s 36 enumerates the permissible objects of any limitation of fundamental rights. 20.5 THE APPLICATION OF SECTION 15(1) 15 question of the reach of Chapter 3 generally is considered in detail in a separate chapter.2 The Three issues, however, must be considered here. First, which natural persons are protected? Secondly, do juristic persons enjoy the freedom of speech and expression? Thirdly, may s 15(1) be invoked in disputes between private parties where the cause of action is based upon a rule of the common law? (a) Every person Section 15(1) extends freedom of expression to ‘every person’. In our view, therefore, government employees ---- including members of the SA Police Service and National Defence Force ---- and civil servants, such as teachers, will enjoy the benefits of freedom of expression.3 In South African National Defence Union v Minister of Defence & another4 the Constitutional Court held that members of the armed forces do not forfeit their rights to freedom of expression. The case concerned a prohibition on members of the Defence Force from participating in any ‘act of public protest’.5 The prohibited conduct covered a wide range of activity including attendance at any meeting whose purpose was to criticize or support any government policy or action, whether it be the South African Government 1 The court in Kauesa v Minister of Home Affairs & others suggested at 979C--D, without deciding, that criteria other than those enumerated in art 21(2) may form the basis for a restriction on the protected right. 2 See above, Woolman ‘Application’ § 10.3--10.4. 3 See, for example, Kauesa v Minister of Home Affairs & others 1996 (4) SA 965 (NmS) (police); Vereinigung Demokratischer Soldaten Österreichs and Gubi v Austria Judgment of 19 December 1994, Series A No 302, (1994) 20 EHRR 56 at para 36 (military servicemen); Vogt v Germany Judgment of 26 September 1995, Series A No 323 (permanent civil servant and teacher); Ross v New Brunswick School District No 15 (1996) 133 DLR (4th) 1 (SCC) (teacher). 4 1999 (4) SA 469 (CC), 1999 (6) BCLR 615 (CC). 5 An ‘act of public protest’ was defined in s 126B(4) of the Defence Act 44 of 1957 in a 255-word definition which, according to O’Regan J, defied simplification. [REVISION SERVICE 5, 1999] 20--15 CONSTITUTIONAL LAW OF SOUTH AFRICA or another government or the policy or action of any public authority or parastatal organization, whether South African or otherwise. It also covered attendance at any meeting to demonstrate public or private support for or opposition to any principle, demand or interest, whether public or private. The court held that the prohibition clearly curtailed the right to hear and express opinions on a wide range of issues whether in public or at private gatherings. While accepting that it was important that members of the Defence Force ‘act in a manner which encourages confidence and trust in their dispassionate observation of their duties’, the scope of the prohibition suggested ‘that members of the Defence Force are not entitled to form, air and hear opinions on matters of public interest and concern’. The Constitutional Court stated that a conception of the Defence Force which suggested that ‘enrolment in the Defence Force requires a detachment from the interests and activities of ordinary society and of ordinary citizens’ cannot be correct. Members of the Defence Force ‘remain part of our society, with obligations and rights of citizenship’. The prohibition in question could not be justified ‘by reference to the need to ensure that uniformed military personnel do not engage in politically partisan conduct’.1 16 Juristic persons may invoke the protection of s 15(1) ‘where, and to the extent that, the nature of the rights permits’.2 ‘[F]reedom of the press and other media’ is explicitly protected by s 15(1). Since the press almost always has juristic personality, it is clear that these juristic persons may invoke s 15(1). A contrary view would eviscerate the freedom of the press. This does not compel the conclusion that all juristic persons will enjoy s 15(1) rights in every instance. A purposive interpretation of s 15(1) suggests that the press and other media are afforded explicit constitutional protection precisely because of the crucial role they perform in furthering the values which underpin the guarantee.3 Companies and close corporations can and do speak and express themselves. In general, therefore, it would appear that the nature of the right to freedom of speech and expression permits application to juristic persons such as corporations.4 While not free of doubt, it is submitted that a principled approach to s 15(1) would focus on the nature and value of the speech itself, and not on the identity of the speaker.5 1 At paras 11--13. 2 Section 7(3). 3 See e g Government of the Republic of South Africa v ‘Sunday Times’ Newspaper & another 1995 (2) SA 221 (T) at 227I--228F, 1995 (2) BCLR 182 (T) at 188G--189D. 4 See, for example, Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation 1996 (1) SA 847 (ZS) at 854I--J. 5 See e g First National Bank v Bellotti 435 US 765 at 777, 98 SCt 1407 (1978): ‘The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.’ See also Tribe American Constitutional Law 795: ‘Speaker-based restrictions on speech may amount to impermissible censorship of the flow of ideas and information regarding the relevant set of listeners even if the speakers subject to restriction cannot complain that their rights as speakers have been violated.’ 20--16 [REVISION SERVICE 5, 1999] EXPRESSION (b) Common-law rules invoked in private disputes The vexed question as to whether the common law was subject to direct constitutional attack in a private dispute under the interim Constitution was authoritatively settled in Du Plessis v De Klerk.1 A divided Constitutional Court held that the Constititution may not be invoked directly in a dispute between private parties concerning a rule of common law. This did not mean, however, that the common law was beyond constitutional scrutiny. The court held that s 35(3) of the Constitution, which enjoined all courts to develop the common law in accordance with the ‘spirit, purport and objects’ of the Chapter on Fundamental Rights, permitted the ‘indirect application’ of the Constitution to rules of common law. Section 35(3) ‘ensures that the values embodied in Chapter 3 will permeate the common law in all its aspects, including private litigation’.2 The task of developing the common law was one which fell on all courts, including the Appellate Division. The role of the Constitutional Court was limited. It had to ‘ensure that the provisions of s 35(3) in relation, inter alia, to the development of the common law are properly interpreted and applied, otherwise it is not discharging its duty properly in relation to the enforcement of the provisions of the Constitution’. Hence the Constitutional Court had jurisdiction ‘to determine what the ‘‘spirit, purport and objects’’ of Chapter 3 were and to ensure that, in developing the common law, the other courts had ‘‘due regard’’ thereto’.3 16A 1 Du Plessis & others v De Klerk & another 1996 (3) SA 850 (CC), 1996 (6) BCLR 658 (CC). See also above, Woolman ‘Application’ § 10.3. 2 Per Kentridge AJ in Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (6) BCLR 658 (CC) at para 60. 3 Per Kentridge AJ in Du Plessis v De Klerk (supra) at para 63. [REVISION SERVICE 5, 1999] 20--16A 16B EXPRESSION 20.6 THE MEANING OF THE GUARANTEE (a) Freedom of speech and expression REVISION SERVICE 3, 1998 The inclusion of both ‘speech and expression’ in the language of s 15(1) makes it clear that 17 constitutional protection is afforded to a wider range of activities which convey meaning than the purely verbal articulation of ideas. Symbolic speech, including acts intended to convey an idea, such as flag-burning,1 wearing a symbolic armband,2 and even nude dancing,3 have been held, in US jurisprudence, to fall within the meaning of ‘free speech’. Since ‘expression’ is wider than ‘speech’, such expressive conduct would clearly fall within the ambit of s 15(1).4 There is also, it is submitted, no room for a constitutional distinction between ‘pure speech’ and ‘speech mixed with conduct’ ---- both forms of expressive activity would qualify for s 15(1) protection. The guarantee protects not only the freedom to express oneself but also the means of that expression. A restriction upon or interference with the means of communication, whatever form it may take, abridges the guarantee. A monopoly over operating a mobile cellular telephone service therefore infringes freedom of expression.5 Nevertheless, because all human activity embodies expressive dimensions, a purely literal definition of ‘expression’ would be too wide. Section 15(1) is not self-defining and must be given content through interpretation. There are at least two possible approaches to this task. One method of defining the ambit of ‘freedom of speech and expression’ would begin with the literal meaning of the words and would apply a content-neutral approach to determining whether particular expressive conduct falls within the guarantee. The Canadian courts have favoured content-neutrality. According to this approach, it would be illegitimate to distinguish, at the threshold of the right itself, between forms of expressive conduct on the basis of their content. To the extent that content-based distinctions are permissible, it is only in the narrow context of evaluating whether the expressive conduct in question ‘relates to free and fair political activity’ under the limitation clause. At the first stage of the analysis, however, ‘speech and expression’ ought to be broadly defined so that ‘activity is expressive if it attempts to convey meaning’.6 Consequently, the content of a statement cannot deprive 1 See Texas v Johnson 491 US 397, 109 SCt 2533 (1989) (Texas statute criminalizing desecration of the national flag unconstitutional). 2 See Tinker v Des Moines Independent Community School District 393 US 503, 89 SCt 733 (1969) (prohibition upon school students wearing black armbands to protest the Vietnam conflict violates their rights to free expression). 3 See Schad v Borough of Mount Ephraim 452 US 61, 101 SCt 2176 (1981). 4 In In re Chikweche 1995 (4) SA 284 (ZS), 1995 (4) BCLR 533 (ZS) the Supreme Court of Zimbabwe held that the refusal of the High Court to allow a follower of the Rastafarian movement to take the oath of admission as a legal practitioner on the grounds that he was wearing his hair in ‘dreadlocks’ violated the applicant’s right to freedom of conscience. In light of this conclusion it became unnecessary for the court to decide whether the applicant’s right to freedom of expression was also infringed. Nevertheless, Gubbay CJ considered and acknowledged that the wearing of dreadlocks was a form of symbolic expression of a Rastafarian religious and philosophical world outlook (at 287F--289I). 5 Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation 1996 (1) SA 847 (ZS) at 858D--E, 860B--D; Autronic AG v Switzerland (1990) 12 EHRR 485. But see South African Post Office Ltd v Van Rensburg & another 1998 (1) SA 796 (E), a failed attempt to apply the ratio of Retrofit in a challenge to the postal service monopoly enjoyed by the South African Post Office. 6 Irwin Toy Ltd v Quebec (A-G) (1989) 58 DLR (4th) 577 (SCC) at 606. [REVISION SERVICE 3, 1998] 20--17 CONSTITUTIONAL LAW OF SOUTH AFRICA it of constitutional protection, no matter how offensive it may be.1 ‘If the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee.’2 This does not mean that all activity which attempts to convey meaning is absolutely protected. Rather, a content-neutral approach means that as long as the activity attempts to convey meaning it falls within the ambit of s 15(1). Any limitation of such expressive conduct must therefore satisfy the standards of justification set out in the limitation clause. According to this approach, the definition of ‘expression’ turns upon the presence or absence of a communicative purpose. What falls outside the ambit of freedom of expression is therefore that which is ‘purely physical and does not convey or attempt to convey meaning’.3 Consequently, violent expression such as assault would generally fall outside s 15(1).4 The content-neutral approach sets a low threshold which expressive conduct must satisfy in order to qualify for constitutional protection. Almost all the analysis is therefore located within the limitation clause inquiry. For example, commercial advertising and fraudulent misrepresentation would both fall within the ambit of s 15(1) and the focus of the inquiry would concern limitations of such expressive conduct. 18 The content-neutral approach has certain advantages. It reduces the scope for value-based exclusions of forms of expression at the threshold of the right. It extends protection very broadly over almost all forms of expressive conduct. It reduces the burden of establishing a prima facie infringement of s 15(1) because it requires applicants to demonstrate no more than that the expressive conduct at issue constituted an attempt to convey meaning, and that such conduct has been restricted. It stays close to the common-sense meaning of ‘speech and expression’ and avoids the paradoxical results of a process which would define certain forms of expressive conduct as ‘non-speech’. On its face, it would appear to protect a wider array of expressive conduct. A second possible approach, which might be called the definitional approach, would invoke a higher threshold at the first stage of the analysis. This approach would point to the language used in both s 33(1), where limitations are at issue, and in s 35(1), which enjoins our courts to interpret the provisions of Chapter 3 in a manner ‘which shall promote the values which underlie an open and democratic society based on freedom and equality’. It would suggest that this reiteration of language would be superfluous unless the injunction contained in s 35(1) were applied to define the boundaries of ‘freedom of speech and expression’. Thus ‘freedom of speech and expression’ would acquire meaning through an interpretive process which excavates the values underpinning the guarantee. Giving content to s 15(1) is therefore also an exercise in demarcating the ambit of the right. If any form of expression is to be denied constitutional protection altogether, then such a decision would have to be justified on the basis that the expressive activity in question plays no role in furthering any of the values which underpin the guarantee. 1 R v Keegstra [1990] 3 SCR 697, 3 CRR (2d) 193. 2 Irwin Toy v Quebec (A-G) at 606--7. 3 Irwin Toy v Quebec (A-G) at 607. 4 This is the position in Canada. See Irwin Toy v Quebec (A-G) at 606--7. 20--18 [REVISION SERVICE 3, 1998] EXPRESSION REVISION SERVICE 5, 1999 19 The definitional approach would exclude from the protection of s 15(1) certain expressive activities, notwithstanding the fact that they attempt to convey meaning, on the grounds that such activities further none of the values which underpin freedom of expression. These activities would not qualify for constitutional protection at all, and their restriction would not require justification in terms of the limitation clause. Thus, for example, while commercial expression would fall within the ambit of the guarantee on the grounds, at least, that it furthered the values of individual self-fulfilment and autonomy and perhaps the search for truth, fraudulent misrepresentation might not qualify for protection at all. The advantages of the definitional approach are that it generates a principled debate as to the values furthered by particular forms of expressive conduct before embarking on the more ad hoc, pragmatic and unpredictable task of balancing expressive interests with other interests. In setting a higher threshold at the first stage of analysis it avoids burdening the courts with frivolous litigation and seeks to ensure that s 15(1) is not interpreted in a manner which extends protection to conduct beyond the purpose of the right.1 If an overgenerous definition of ambit extends protection to expressive activities which are outside the purpose of the guarantee, the courts will endeavour to uphold legislation limiting such activities, even at the risk of weakening the standards of justification set out in the limitation clause.2 If, for example, commercial advertising and fraudulent misrepresentation were afforded the same degree of constitutional protection, the danger is that the effort to uphold almost all regulation of the latter might end up by weakening the standard of justification applied to the former, so that all forms of expression at the periphery of the guarantee would become too easily regulable.3 The definitional approach bears its own risk, namely that too many classes of expressive activity will be denied protection altogether. The wider latitude for judicial value-judgments may grant licence to the courts to exclude valuable expression from constitutional protection. This risk may be reduced, but not eradicated, provided the values underpinning freedom of expression are generously elaborated. (b) Freedom of the press and other media 20 Freedom of the press is a necessary concomitant of freedom of expression.4 An important part of freedom of the press is the right to report on matters of public interest, however 1 For further discussion of the advantages of a definitional approach at the first stage of constitutional analysis, see above, Woolman ‘Limitations’ § 12.2 and Kentridge & Spitz ‘Interpretation’ § 11.10. 2 See Hogg Constitutional Law of Canada sec 33.7(b): ‘Freedom of expression may be the most obvious example of the connection between the scope of a right and the stringency of s 1 justification. It is obvious that any attempt to regulate political debate should have to face a stringent standard of justification under s 1. But if the court decides, as it seems to have done, that every communicative act, no matter how trivial, false or harmful, enjoys constitutional protection, then it is inevitable that the court will relax the standard of s 1 justification in order to accommodate laws that are generally approved.’ 3 See Hogg Constitutional Law of Canada sec 35.3. 4 Free Press of Namibia (Pty) Ltd v Cabinet for the Interim Government of South West Africa 1987 (1) SA 614 (SWA) at 623G: ‘If freedom of speech is to have any significance in a democratic country, its concomitant, freedom of the press, must be recognised because it is only by reaching a large number of people and rallying their support that their freedoms can be utilised for the benefit of society.’ See also G Marcus ‘Freedom of Expression Under the Constitution’ (1994) 10 SAJHR 140 at 141. [REVISION SERVICE 5, 1999] 20--19 CONSTITUTIONAL LAW OF SOUTH AFRICA controversial or offensive, without inappropriate interference by the courts.1 Nevertheless, the specific textual enumeration of the press and other media in s 15(1) signals the importance which the guarantee ascribes to the role of these institutions in protecting and contributing to an open and democratic society.2 In Holomisa v Argus Newspapers Ltd Cameron J gave explicit recognition to the independent guarantee of the press in s 15(1): ‘In a system of democracy dedicated to openness and accountability, as ours is, the especially important role of the media, both publicly and privately owned, must in my view be recognized. The success of our constitutional venture depends upon robust criticism of the exercise of power. This requires alert and critical citizens. But strong and independent newspapers, journals and broadcast media are needed also, if those criticisms are to be effectively voiced, and if they are to be informed with the factual content and critical perspectives that investigative journalism may provide . . . It is for this very reason that the Constitution recognizes the especial importance and role of the media in nurturing and strengthening our democracy. This recognition is obvious in s 15(1), which expressly states that freedom of speech and expression ‘‘shall include freedom of the press and other media’’.’3 1 See, for example, Jersild v Denmark, Judgment of 23 September 1994, (1995) 19 EHRR 1. Jersild’s case arose out of a decision by the Danish National Television to broadcast, in its news and current affairs programme, an interview with members of a youth group which articulated extremist and racist views including support for eugenics and apartheid. The interviewer and the editor intended the programme to be informative and to stimulate public awareness of the existence of and dangers posed by the group. The interviewer and editor were subsequently charged and convicted of complicity in making racist statements public. The convictions were upheld on appeal, the court finding that their freedom of expression did not outweigh the legitimate interest in protecting minority groups against racist propaganda. The European Court of Human Rights, however, held that the convictions violated the right to freedom of expression protected by Article 10 of the ECHR and concluded that the infringement was not necessary in a democratic society and was therefore not justified. The judgment of the court made clear that it found no value in the racially offensive speech itself, which would not have been protected by Article 10. However, the focus of the decision was on the rights of the media to publish matters of public interest, including racially insulting speech, in the exercise of journalistic responsibility for a news broadcast. Consequently, the matter was decided on the basis of principles of press freedom, including the right to impart and receive information and ideas on matters of public interest, and not on principles prohibiting hate speech under the UN Convention on the Elimination of All Forms of Racial Discrimination (as would have been the case if the applicants had been the members of the youth group itself). For a more complete analysis of Jersild’s case and its implications for South African free speech jurisprudence, see L Johannessen ‘Judgment of the European Court of Human Rights, 23 September 1994: Jersild v Denmark’ (1995) 11 SAJHR 123. 2 Government of the Republic of South Africa v ‘Sunday Times’ Newspaper & another 1995 (2) SA 221 (T) at 227I--228A, 1995 (2) BCLR 182 (T) at 188G--H: ‘The role of the press is in the front line of the battle to maintain democracy. It is the function of the press in a democratic society to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators. The press must reveal dishonest mal- and inept administration. It must also contribute to the exchange of ideas already alluded to. It must advance communication between the governed and those who govern. The press must act as the watchdog of the governed.’ 3 1996 (2) SA 588 (W) at 608J--609D. While recognizing the independent guarantee of the press, the court nevertheless rejected the contention that the section conveyed special protection upon journalists. At 610C--D Cameron J stated: ‘It does not follow, however, from the special constitutional recognition of the importance of media freedom, or from the extraordinary responsibilities the media consequently carry, that journalists enjoy special constitutional immunity beyond that accorded ordinary citizens.’ 20--20 [REVISION SERVICE 5, 1999] EXPRESSION 20A This passage was cited with approval by the Supreme Court of Appeal in National Media Ltd & others v Bogoshi.1 This decision expressly recognizes ‘the democratic imperative that the common good is best served by the free flow of information and the task of the media in the process’.2 Similarly, if this language is not to be redundant, the organized media might be entitled to greater s 15(1) protection than are other members of the public.3 Recognition of the role 1 1998 (4) SA 1196 (SCA), 1999 (1) BCLR 1 (SCA). 2 At 1210H. 3 Neither US nor Canadian jurisprudence has yet formally attributed independent constitutional significance to similar ‘press clauses’ in their constitutional instruments. Nevertheless, one member of the US Supreme Court, Justice Stewart, has taken the view that the press clause does indeed have independent constitutional significance. See Stewart (1975) 26 Hastings LJ 631 at 633--4 (stating that the purpose of the press clause was ‘to create a fourth institution outside the government as an additional check on the three official branches’). [REVISION SERVICE 5, 1999] 20--20A 20B EXPRESSION of the media in furthering the values which underpin freedom of expression may translate into an independent, constitutionally protected position in comparison with other juristic persons, and possibly also in comparison with natural persons. REVISION SERVICE 2, 1998 21 Such independent constitutional significance might find concrete doctrinal expression in constitutional or statutory rules creating a journalistic privilege in respect of governmental demands for information, including the disclosure of sources, from the media.1 The press clause in s 15(1) may also afford the media a distinct right of access to information within the government’s possession or control in order to ensure public supervision of the operations of government. Unlike s 23, which requires a demonstration that the information at issue ‘is required for the exercise or protection’ of a particular right,2 s 15(1) may, without further demonstration, already embody an implicit right of access to information as a necessary precondition for the exercise of the freedom of expression. The organized media are most favourably positioned to assert and make use of such a s 15(1) right in addition to but distinct from the s 23 right.3 Prior restraints upon media publication where matters of public interest 1 In Nel v Le Roux 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) the validity of s 205 of the Criminal Procedure Act 51 of 1977, which compels persons to reveal information in relation to suspected offences, was upheld. This section has frequently been used to compel journalists to reveal their sources of information. It permits witnesses, however, to refuse to answer any question provided they have a ‘just excuse’ for such refusal. The court expressly left open the question as to what constitutes a just excuse and stated that previous decisions on this question might have to be reconsidered in the light of the constitutional guarantees. There is accordingly scope for the argument that the refusal by a journalist to reveal sources may constitute a ‘just excuse’ in appropriate circumstances. It is submitted that where the disclosure of sources would unjustifiably infringe the freedom of the press, reliance on this right would constitute a ‘just excuse’. The recent decision of the European Court of Human Rights in Goodwin v United Kingdom, Judgment of 27 March 1996, (1996) 1 BHRC 37 (ECt HR) offers support for this argument. In Goodwin a journalist was ordered by a domestic court to disclose the source of certain information on the grounds that disclosure was necessary ‘in the interests of justice’. The journalist’s appeal against the order was dismissed by the Court of Appeal and this decision was confirmed by the House of Lords. After refusing to comply with the order, the journalist was held to be in contempt of court and was fined. He complained to the European Commission of Human Rights (which referred the case to the European Court of Human Rights) that the disclosure order violated his freedom of expression as protected by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The majority of the European Court of Human Rights held that a court order requiring a journalist to reveal his source of information and the fine imposed on him for refusing to do so violated the journalist’s right to freedom of expression. The majority further held that the violation could not be justified as being necessary in a democratic society because there was no reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means used to achieve that aim. The court emphasized at 95e that the ‘protection of journalistic sources is one of the basic conditions of press freedom.’ But see Branzburg v Hayes 408 US 665, 92 SCt 2646 (1972) (there is no journalistic qualified privilege to refuse to disclose the identities of confidential sources or the information received from them in grand jury proceedings or criminal trials); Zurcher v Stanford Daily 436 US 547, 98 SCt 1970 (1978) (rejecting qualified privilege by holding that there is no need to depart from ordinary rules governing ex parte search warrants where the premises of a newspaper were to be searched); CBC v Lessard [1991] 3 SCR 421, 67 CCC (3d) 517; CBC v NB [1991] 3 SCR 459, 85 DLR (4th) 57 (the issuing of search warrants to police to obtain television footage of a crime from premises of television station is not a violation of s 2(b) of the Canadian Charter). 2 See below, Klaaren ‘Access to Information’ § 24.3. 3 See e g Richmond Newspapers, Inc v Virginia 448 US 555, 100 SCt 2814 (1980) (absent an overriding governmental interest the First Amendment requires that criminal trials must be open to the public; in his concurring opinion Brennan J suggested that this is just one instance of a general First Amendment right of access to information about governmental operations). See also Edmonton Journal v Alberta (A-G) [1989] 2 SCR 1326 at 1337, 64 DLR (4th) 577 (freedom of the press also includes the right of the press and the public to be present in court). But see New Brunswick Broadcasting Co v Nova Scotia [1993] 1 SCR 319 (ban on television cameras in legislative chamber part of parliamentary privilege and not subject to Charter). [REVISION SERVICE 2, 1998] 20--21 CONSTITUTIONAL LAW OF SOUTH AFRICA are concerned may be rendered presumptively unconstitutional.1 Gag orders and sub judice rules prohibiting the press from publishing certain types of information about trials before they have commenced may be unconstitutional.2 22 The centerpiece of post-apartheid regulation of the broadcast media is the Independent Broadcasting Act.3 The statutory scheme regulates, inter alia, the granting of broadcast signal licences to public, private and community broadcasters. Various limitations apply to the granting of private broadcast licences. The first set of limitations relates to questions of ownership and control. Foreign control of private broadcasters is restricted;4 the number of licences which may be held by one person in the television and radio sectors of the industry is limited, as is cross-media control of private broadcasting.5 The second set of limitations may be described as content-based. These include a prohibition on granting licences to political parties;6 requirements for minimum local content;7 provisions regulating the manner of presenting news, comment and issues of public importance;8 and the monitoring of programme content by the Broadcasting Monitoring Committee.9 Both the control and content limitations raise s 15(1) issues. Constitutional scrutiny will clearly require the balancing of property rights, equality, and freedom of expression under s 33(1). (c) Freedom of artistic creativity The freedom of artistic creativity is clearly implicit in the general guarantee of freedom of expression. Nevertheless, perhaps because of our history of draconian censorship of the arts, artistic creativity has received specific textual enumeration. One commentator has suggested that it is possible to infer from the specific mention of ‘artistic creativity’ that modes of expression ‘which cannot readily be described as ‘‘speech’’ could be specifically protected as artistic creativity . . . Matter which would otherwise not seem to qualify for constitutional protection because of its content may indeed be protected within the context of artistic creativity and scientific research if the nature and the manner of presentation thereof merit such a conclusion.’10 Viewed from this perspective, the specific mention of artistic creativity offers a safeguard against too narrow an interpretation of the meaning of ‘speech and expression’. 1 Mandela v Falati 1995 (1) SA 251 (W), 1994 (4) BCLR 1 (W); Government of the Republic of South Africa v ‘Sunday Times’ Newspaper & another 1995 (2) SA 221 (T), 1995 (2) BCLR 182 (T); Near v Minnesota 283 US 697, 51 SCt 625 (1931); New York Times Co v US 403 US 713, 91 SCt 2140 (1971). 2 The US position is stated in Nebraska Press Association v Stuart 427 US 539, 96 SCt 2791 (1976) (gag orders are almost never constitutionally permissible because they violate the First Amendment). See also Edmonton Journal v Alberta [1989] 2 SCR 1326, 64 DLR (4th) 577 (statutory prohibition on press reporting of matrimonial litigation violates s 2(b) and is not a reasonable limit; courts must be open to public scrutiny and to public criticism of their operation). But see R v Canadian Newspapers Co [1988] 1 SCR 122 (statute making provision for issuing of court orders prohibiting media disclosure of the identity of complainants in sexual assault cases is a justifiable limitation of freedom of the press). 3 4 Act 153 of 1993. Section 48 of Act 153 of 1993. 5 6 Sections 49 and 50 respectively. Section 51. 7 8 Section 53. Schedule 1 of the Act. 9 Section 62. 10 Van der Westhuizen ‘Freedom of Expression’ in Rights and Constitutionalism 286. As Van der Westhuizen points out, the protection of ‘artistic creativity’ as opposed to ‘works of art’ suggests that experimental and unsuccessful attempts at producing art will enjoy protection. 20--22 [REVISION SERVICE 2, 1998] EXPRESSION 23 It is notoriously difficult to produce a satisfactory definition of ‘art’ and, by extension, of ‘artistic creativity’.1 A wide definition of ‘artistic creativity’ is necessary as a safeguard against censorship because ‘neither the government nor private pressure groups should be able to mandate standards of content or taste’.2 The advantage of a broad definition of ‘artistic creativity’ is that it reduces the danger of judges having to decide whether something is indeed art for purposes of constitutional protection. The wider the definition, however, the more one is compelled to determine the appropriate level of constitutional protection on a case-by-case basis. In other words, it becomes increasingly difficult to contend that ‘artistic creativity’, as a category or class of expressive conduct, ‘relates to free and fair political activity’ and therefore enjoys maximum constitutional protection. Artistic creativity is valuable not only for its contribution to the political process but also because of the role it plays in furthering individual self-fulfilment, autonomy, and dignity. The level of scrutiny afforded to particular forms of artistic creativity will have to be determined by assessing the extent to which particular works of art relate to free and fair political activity. The case-by-case approach would acknowledge that artistic expression frequently embodies the most radical challenges to orthodox values, is very often a reflection upon political life and society, and may impact significantly upon the values and character of the members of society and upon the nature of the culture they inhabit. In short, it may be accepted that artistic expression can contribute, in fundamental ways, to the formation of a democratic citizenry and consequently to the furtherance of the fundamental political values underpinning s 15(1). Furthermore, artistic expression which attracts a regulatory impulse will often embody valuable political dimensions. 1 As the US Supreme Court has noted, ‘one man’s vulgarity may be another’s lyric’: Cohen v California 403 US 15 at 25, 91 SCt 1780 (1971). 2 Heins Sex, Sin and Blasphemy: A Guide to America’s Censorship Wars (1993) 4--5: ‘[Artistic expression] should include books, movies, painting, posters, sexy dancing, street theatre, graffiti, comics, television, music videos ---anything produced by creative imagination, from Shakespeare to sitcoms, from opera to rock. Freedom of expression may mean that we have to tolerate some art that is offensive, insulting, outrageous, or just plain bad. But it’s a small price to pay for the liberty and diversity that form the foundation of a free society.’ [REVISION SERVICE 2, 1998] 20--23 CONSTITUTIONAL LAW OF SOUTH AFRICA Nevertheless, one might be sceptical about the competence of judges to engage in such a process of neutral line-drawing between political and non-political artistic expression. One might also be concerned that courts will draw inadequately protective lines in this area. It should be remembered, however, that the search for political meaning would not be a pretext for regulation, but its purpose would be to extend greater protection. The remaining dangers may be minimized in two ways. First, our courts ought to adopt a wide and generous understanding of free and fair political activity when determining whether particular works of art qualify for the higher or lower level of protection.1 We submit that artistic creativity which embodies characteristics of social commentary relates to free and fair political activity.2 Secondly, the specific mention of ‘artistic creativity’ in s 15(1) enables the courts to develop a constitutional presumption in favour of maximum constitutional protection for artistic creativity. On analogy with the First Amendment doctrine of the presumptive unconstitutionality of prior restraints,3 a rebuttable presumption that artistic creativity relates to free and fair political activity might provide both the necessary flexibility of a case-by-case approach and extensive protection for artistic creativity.4 (d) Section 15(2) 24 affirmative obligations imposed by s 15(2) operate both in the interests of equality of The access and of substance, and aim to enhance the quality of public discourse.5 Privately funded or controlled media are not subject to s 15(2). The section may operate as a specific internal limitation upon s 15(1) rights because it places constraints upon the use of state media.6 The inclusion of s 15(2) reflects a ‘more than ordinary level of concern to enrich and unshackle public debate’ and to ‘cultivate an ethic of persuasion’.7 It also recognizes that the marketplace of ideas, like most markets, is subject to market distortions and even failure. Section 15(2) offers a partial corrective to the tendency for free expression to become a function of economic and political power. It conceives the relationship between the government of the day and the state-financed or -controlled media in terms of the rights and obligations of trustees or custodians on behalf of the general public, and not on the model of 1 See Sunstein Partial Constitution 242: ‘We might include materials that would not, in a world with perfect prosecutors and judges, receive protection ---- simply because without such protection, people in positions of authority will, in our world, draw lines in a way too threatening to the system of free expression.’ 2 For a more detailed elaboration of these arguments, see Sunstein Partial Constitution 240 and 244. 3 See below, § 20.7(a). 4 The status of primary picketing, as a class of category of expressive conduct, raises similar difficulties of classification. Are our courts to recognize the structural role of picketing in the institutional fabric of our society and, on this basis, to conclude that the entire class of expressive conduct relates to free and fair political activity and qualifies for the highest level of protection? Alternatively, is the level of protection afforded to primary picketing to be a function of the substance or content of particular pickets, considered on a case-by-case basis? Whenever particular classes of expressive conduct are placed in issue the principled nature of classification and generalization will compete with the countervailing flexibility of individualized decisions. In these situations too, constitutional presumptions may offer a via media. 5 For consideration of the relationship between freedom of expression and the Independent Broadcasting Act 153 of 1993, see Wendland ‘Tightroping Freedom of Expression and Broadcasting Regulations: The New Bill of Rights and the Independent Broadcasting Act 1993’ (1994) 10 SAJHR 280. 6 For consideration of the effect of internal limitations upon the structure of constitutional litigation, see above, Woolman ‘Limitation’ § 12.2(b). 7 Mureinik ‘A Bridge To Where?’ (1994) 10 SAJHR 31 at 35. 20--24 [REVISION SERVICE 2, 1998] EXPRESSION private ownership. Defensible regulation of state media to enhance the quality of public discourse requires careful consideration and articulation in a statutory scheme. Case-by-case constitutional consideration is necessary to ensure that regulation does indeed ensure impartiality and diversity. 20.7 LIMITATIONS UPON SECTION 15(1) 25 this section we discuss the major jurisprudential devices which have been used to limit In freedom of speech and expression. (a) Prior restraints Prior restraints impose restrictions upon expression before it enters the public domain. Such restraints may be contrasted with systems of subsequent punishment, either by criminal or civil sanction. The conventional antipathy to prior restraints upon expression is rooted in the abhorrence of the old English licensing system, which required prior approval before publication. There are two primary forms of prior restraint: licensing or permit schemes which subject expression to prior authorization,1 and government orders or court interdicts prohibiting certain exercises of speech and expression. A number of powerful objections have been raised to the employment of prior restraints upon speech and expression. First, prior restraints replace speech with state sanctioned silence. Secondly, and with particular reference to interdicts upon expression, the very personalized quality of prior restraints has a chilling effect both upon individuals who are brought under the gaze of a judicial censor and also upon other potential speakers who may be moved to self-censorship.2 Thirdly, interdicting expression is a form of abstract adjudication. Prior to publication courts might be engaged in guesswork and may enjoin more expression than is necessary because of overcautious or incorrect assessments of hypothetical harms. Fourthly, affording adequate protection to expression, particularly political expression, ought to involve placing as many hurdles as possible in the path of regulation. Prior restraints have the opposite effect. Fifthly, violation of the terms of an interdict is punishable with criminal contempt. The collateral bar rule means that an individual charged with contempt for having violated an injunction may not raise as a defence to his or her conduct the unconstitutionality of the original order.3 A person 1 See e g Lovell v Griffin 303 US 444, 58 SCt 660 (1938) (a city ordinance prohibiting the distribution of literature of any kind, at any place, and in any manner, without a permit from the City Manager, strikes at the very foundation of freedom of the press by subjecting it to licence and censorship). See also Freedman v Maryland 380 US 51, 85 SCt 734 (1965) (on the standards necessary to safeguard the constitutionality of a licensing system in relation to film censorship). See also, in the African context, Re Munhumeso & others 1995 (1) SA 551 (ZS); Mulundika v The People (1996) 1 BHRC 199 (Sup Ct Zambia) (requirement to obtain prior permission for public gatherings infringes the freedom of speech and assembly). 2 See Kalven ‘Even When a Nation is at War’ (1971) Harvard LR 3; Blasi ‘Towards a Theory of Prior Restraint: The Central Linkage’ (1981) 66 Minnesota LR 11. 3 GTE Sylvania v Consumers Union 445 US 375 at 380, 100 SCt 1194 (1980); Walker v City of Birmingham 338 US 307 at 321, 87 SCt 1824 (1967) (invoking the collateral bar rule to uphold contempt convictions for violations of temporary restraining orders prohibiting expression). For invocation in South Africa of a doctrine comparable with the collateral bar rule, see Culverwell v Beira 1992 (4) SA 490 (W) at 493--4 (all orders of this court, whether correctly or incorrectly granted, have to be obeyed until they are properly set aside; respondents may not defy court orders contending that they believed such orders to be wrong; the resultant chaos is not difficult to imagine). [REVISION SERVICE 2, 1998] 20--25 CONSTITUTIONAL LAW OF SOUTH AFRICA who believes that a statutory limitation of expression was unconstitutional would be in a position to express him- or herself in the knowledge that the constitutionality of the statute may be challenged if subsequent punishment should ensue. The violation of an interdict, by contrast, carries an effective elimination of arguments regarding the constitutionality of its issue. The chilling effect upon expression is potentially immense. 26 The view that restraints upon speech are especially burdensome has led, in First Amendment jurisprudence, to the rule that prior judicial restraints are presumptively unconstitutional and can seldom be justified.1 In certain limited circumstances, however, a prior restraint may survive scrutiny.2 Nevertheless, the plurality of justices in the New York Times case3 makes clear that even national security interests will not justify a judicial prior restraint upon expression unless the state can prove that publication would result in direct, immediate and irreparable damage to the nation and its people.4 Some South African courts have begun to accept the doctrine that prior restraints upon speech are presumptively unconstitutional. In Mandela v Falati5 the court discharged an interim interdict against the holding of a press conference by the respondent at which, according to the applicant, defamatory statements would be published. In Government of the Republic of South Africa v ‘Sunday Times’ Newspaper6 the government sought an interdict preventing the publication of the findings of a commission of inquiry into the award of a State tender for textured vegetable products. The applicant based its argument upon a governmental regulation which prohibited publication of the findings of a commission of inquiry until the State President had released the commission’s report for publication. The Sunday Times challenged the constitutional validity of this regulation as infringing s 15(1). In dismissing the application Joffe J concluded, with 1 Near v Minnesota 283 US 697, 51 SCt 625 (1930) (a state statute permitting the government to enjoin as a public nuisance any malicious, scandalous or defamatory newspaper or periodical constitutes an unconstitutional prior restraint which is of the essence of censorship); New York Times Co v United States 403 US 713, 91 SCt 2140 (1971) (any system of prior restraints upon expression bears a heavy presumption against constitutional validity and the government carries a heavy burden of showing justification for the imposition of such a restraint); Nebraska Press Association v Stuart 427 US 539, 96 SCt 2791 (1976) (a court order prohibiting the reporting of the existence or nature of any confessions or other information implicating an accused murderer is an unconstitutional prior restraint on reporting news about crime). 2 Near v Minnesota 283 US 697 at 714--16, 51 SCt 625 (1930) (highly exceptional circumstances may justify a prior restraint, for example, to prevent publication of sailing dates of transports or the number and location of troops, when a nation is at war). It may be that in the context of invasions of rights to privacy which do not implicate matters of public interest the presumption against prior restraints on expression will be weaker and that some such restraints may be saved by s 33(1). In Canada prior restraints have occasionally been upheld. See e g Re Southam and The Queen (No 2) (1986) 53 OR (2d) 663 (CA); R v Canadian Newspapers Co [1988] 1 SCR 122. See also Hogg Constitutional Law of Canada sec 40.6(a). 3 Better known as the ‘Pentagon Papers’ case. 4 New York Times Co v United States 403 US 713 at 730, 91 SCt 2140 (1971) (Stewart J, joined by White J, concurring). In the concurring formulation of Brennan J at 726--7: ‘Only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of transports already at sea can support even the issuance of a temporary restraining order.’ But see US v Progressive Inc 467 FSupp 990 (WD Wis 1979) (Federal Court in Wisconsin holding that interdict on publication of information about the manufacture of an H-bomb not unconstitutional). In the Progressive case it appears that the magnitude of the potential harm, should it eventuate, allowed the court to weaken the requirement that such harm also be imminent. 5 1995 (1) SA 251 (W) at 259G--260D, 1994 (4) BCLR 1 (W) at 8G--9C. 6 1995 (2) SA 221 (T), 1995 (2) BCLR 182 (T). 20--26 [REVISION SERVICE 2, 1998] EXPRESSION reference to First Amendment doctrine, that the regulation in question constituted a prior restraint. He rejected the applicant’s contention that irreparable harm would result from publication without consent, finding it to be speculative and without foundation. The court concluded that there were no circumstances present in the case that would justify a prior restraint.1 (b) Time, place and manner restrictions REVISION SERVICE 3, 1998 Instead of regulating the content of speech or expression, time, place and manner restrictions 27 regulate the context in which speech and expression take place. These regulations are therefore content-neutral: they do not regulate speech because of its content, but do so in order to achieve other objectives. Where such content-neutral regulations are subjected to scrutiny on the grounds that they infringe s 15(1) our courts will balance the competing interests of governmental regulation for purposes unrelated to the content of the expression, on the one hand, with the interests of the speaker in disseminating a message, on the other. This balancing of interests will take place under the limitation clause. In America the US Supreme Court has developed a set of rules which such regulations must satisfy if they are to pass constitutional muster. Content-neutral regulations must be justified without reference to the content of the regulated speech.2 Furthermore, the provisions in question must be ‘narrowly tailored to serve a significant government interest’.3 The ‘narrowly tailored’ requirement does not require the state to choose the least restrictive or least intrusive means of achieving its objective, but imposes an obligation that the means--end fit must be close, and the means chosen must not be ‘substantially broader than necessary to achieve the government’s interest’.4 Finally, time, place and manner restrictions must also leave open ample alternative channels of communication.5 Canadian jurisprudence also distinguishes between content-based and content-neutral restrictions upon expression. Under the Canadian limitation clause the courts will, in assessing the state’s interest in regulation, consider the extent to which the state legitimately seeks to control the consequences of expressive activity on public property. When balancing 1 Government of the Republic of South Africa v ‘Sunday Times’ Newspaper & another 1995 (2) SA 221 (T) at 229A--J, 1995 (2) BCLR 182 (T) at 189H--190G. 2 See e g US v Grace 461 US 171 at 177, 103 SCt 1702 (1983) (although content-neutral, a statutory prohibition on the display of any flag or banner on the grounds of the Supreme Court was nevertheless unconstitutional because it prevented speech on public sidewalks in front of the court, which are traditionally places open for expressive activity). 3 Clarke v Community for Creative Non-Violence 468 US 288, 104 SCt 3065 (1984) (a national ban on sleeping in public parks does not violate First Amendment rights of demonstrators seeking to dramatize plight of the homeless because such expressive interest is outweighed by governmental interest in maintaining city parks in attractive and intact condition and the ban furthers this interest); Grayned v Rockford 408 US 104, 92 SCt 2294 (1972) (upholding validity of ordinance which barred noisy demonstrations on streets abutting schools while classes were in session). But see Schneider v State 308 US 147, 60 SCt 142 (1939) (purpose of keeping streets clean insufficient to justify ban on all public distribution of handbills). Depending upon the circumstances, a significant government interest might include, for example, traffic safety, sanitation, public peace and order, noise control, and personal privacy. 4 Ward v Rock Against Racism 491 US 781, 109 SCt 2746 (1989) (New York City requirement that performers use only city-provided sound equipment to cut down on complaints by citizens that rock concerts in city parks were too loud was upheld despite the availability of less restrictive means of solving the problem). 5 Metromedia, Inc v San Diego 453 US 490, 101 SCt 2882 (1981) (a ban on all billboards containing non-commercial messages was struck down in part because it did not leave open adequate alternative channels). But see Cox v New Hampshire 312 US 569, 61 SCt 762 (1941) (upholding an ordinance requiring parade permits where official discretion was limited exclusively to considerations of time, place and manner). [REVISION SERVICE 3, 1998] 20--27 CONSTITUTIONAL LAW OF SOUTH AFRICA the interests at stake the courts consider the suitability of the location for effective communication of the message; the symbolic significance of the property in question; the availability of other public arenas for dissemination of expression; the effect on the applicant of being denied the opportunity to disseminate the message in the form and in the time and place asserted.1 20.8 THE SUBSTANCE OF FREEDOM OF SPEECH AND EXPRESSION (a) Political expression and state security 28 have already noted that the structure of Chapter 3 affords special protection to political We expression, and we have argued that a wide and generous definition of ‘free and fair political activity’ is required in order to protect such high-value expression at the core of s 15(1).2 Prior restraints upon political expression must satisfy the highest level of justification to pass constitutional muster. Other prohibitions upon political expression, in particular the pillars of the statutory regime of censorship and secrecy, ss 4 and 5 of the Protection of Information Act,3 the Internal Security Act,4 s 178 of the Defence Act,5 and the common-law criminalization of expression under the rubric of treason and sedition,6 are unlikely to survive constitutional scrutiny.7 Subversive advocacy, that is expression advocating the overthrow of the state, often by violent means, is political expression at the core of s 15(1). It provides symptomatic evidence of deep social conflict and dissatisfaction and often contains valuable outlines for desirable reform. This conjunction of high-value expression with potentially great danger often calls forth a regulatory impulse which itself carries the danger of long-term damage to our developing democratic institutions. US courts have developed the ‘clear and present danger’ test to protect subversive advocacy. This test provides that ‘the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing 1 Committee for the Commonwealth of Canada v Canada (1991) 77 DLR (4th) 385 (McLachlin J). For further consideration of time, place and manner restriction on expression, see below, Woolman ‘Assembly’ § 21.4(b). 2 3 See above, § 20.3. Act 84 of 1982. 4 Act 74 of 1982. Many of the other statutes listed above, 20-4n1 restrict information and expression in relation to defence and state security. Such statutes clearly limit free political expression. If these restrictions are to survive constitutional scrutiny, it will have to be demonstrated that they are both reasonable and necessary in an open and democratic society. 5 Act 44 of 1957. 6 Cf R v Sekhonyana 1998 (5) BCLR 640 (Les) at 651I--652C, where the Lesotho High Court concluded (without any apparent reasons) that the Sedition Proclamation 44 of 1938 (Les) was a constitutionally permissible limitation of freedom of expression. For the reasons set out in this section, it is submitted that Sekhonyana was wrongly decided. 7 With regard to the regulation of speech and expression critical or even defamatory of the government, see Kalven ‘The New York Times Case: A Note on the Central Meaning of the First Amendment’ (1964) Supreme Court Review 191 at 205: ‘Political freedom ends when government can use its powers and its courts to silence its critics. My point is not the tepid one that there should be leeway for criticism of the government. It is rather that defamation of the government is an impossible notion for a democracy. In brief, I suggest that the presence or absence in the law of the concept of seditious libel defines the society.’ See also Hector v Attorney-General of Antigua and Barbados (1991) LRC (Const) 237 (PC), [1990] 2 All ER 103 (PC), [1990] 2 AC 312 (PC) (striking down a statutory provision making it an offence to publish matter which would undermine public confidence in the conduct of public affairs). 20--28 [REVISION SERVICE 3, 1998] EXPRESSION imminent lawless action and is likely to incite or produce such action’.1 This test provides a valuable distinction between advocacy and incitement, affording constitutional protection to the former. The teaching of abstract doctrine is therefore protected. And even in the context of expression which would fall within the meaning of ‘incitement’, the clear and present danger test imports a requirement that before such speech may be regulated the state must satisfy the courts that lawless action is indeed imminent; the mere possibility of harm is insufficient to justify regulation. 29 Our common law does not distinguish between advocacy and incitement.2 The Appellate Division has adopted a very wide formulation of ‘incitement’ so that ‘the decisive question in each case is whether the accused reached and sought to influence the mind of the other person towards the commission of a crime’.3 This definition is certainly wide enough to embrace advocacy, including the teaching of abstract doctrine. Moreover, our law specifically does not require that incitement be accompanied by imminent lawless action before it may be prescribed.4 These common-law rules would not survive constitutional scrutiny under US jurisprudence. Although the clear and present danger test is admirably protective, it is deficient in one important respect: it does not define, with sufficient precision, the nature of the harms or threats which might justify regulation. ‘Imminent lawless action’5 or ‘the probability of serious injury to the state’6 may be too vague to provide sufficient protection. Furthermore, and in light of s 34, which provides for derogation from the fundamental rights contained in Chapter 3 in cases of emergency, it is necessary to specify precisely the nature of the harm and the nature of the circumstances, if any, that might, short of invoking the provisions of s 34, justify the regulation of subversive political expression.7 1 Brandenburg v Ohio 395 US 444, 89 SCt 1827 (1969). The first formulation of the test was by Holmes J in Schenck v United States 249 US 47 at 52, 39 SCt 247 (1919): ‘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. It is a question of proximity and degree.’ The formulation was developed by Holmes J in Abrams v United States 250 US 616 at 628, 40 SCt 17 (1919): ‘[T]here must be a present danger of immediate evil or an intent to bring it about . . . Congress certainly cannot forbid all effort to change the mind of the country.’ See also Whitney v California 274 US 357 at 378, 47 SCt 641 (1927) (Brandeis J dissenting). Van der Westhuizen points out that the clear and present danger doctrine is not unknown in South Africa and has often been raised before the Publications Appeal Board. See Van der Westhuizen ‘Freedom of Expression’ 278. For a summary of the development of the clear and present danger doctrine, see Marcus ‘Freedom of Expression Under the Constitution’ 145--6; Van der Westhuizen ‘Freedom of Expression’ 278--80. 2 See e g R v Sibiya 1957 (1) SA 248 (T). 3 S v Nkosiyana & another 1966 (4) SA 655 (A) at 658H: ‘[A]n inciter is one who reaches and seeks to influence the mind of another to the commission of a crime. The machinations of criminal ingenuity being legion, the approach to the other’s mind may take various forms, such as suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading, or the arousal of cupidity. The list is not exhaustive.’ 4 Nkosiyana at 659B: ‘[T]here may be an incitement irrespective of the responsiveness, real or feigned, or the unresponsiveness, of the person sought to be so influenced.’ 5 The Brandenburg formulation. 6 Whitney v California 274 US 357 at 378, 47 SCt 641 (1927). 7 Rawls Political Liberalism (1993) 353--5: ‘Free political speech cannot be restricted unless it can be reasonably argued from the specific nature of the present situation that there exists a constitutional crisis in which democratic institutions cannot work effectively and their procedures for dealing with emergencies cannot operate . . . A constitutional crisis must exist requiring the more or less temporary suspension of democratic political institutions, solely for the sake of preserving these institutions and other basic liberties.’ [REVISION SERVICE 3, 1998] 20--29 CONSTITUTIONAL LAW OF SOUTH AFRICA 30 In a democratic society, of course, the vast majority of political expression will relate to matters of public importance or concern, and will further values at the core of the guarantee of freedom of expression without threatening state security.1 Such political expression will enjoy significant protection.2 In Kauesa v Minister of Home Affairs & others,3 for example, the Supreme Court of Namibia invalidated a regulation which made it an offence for a member of the police force to comment ‘unfavourably in public upon the administration of the force or any other Government Department’. The court acknowledged the need to balance the interests of the citizen (who was a serving member of the Namibian Police) in commenting upon the lack of affirmative action in the force with the needs of the police force in maintaining discipline, efficiency and obedience.4 The court held that the regulation was not a justifiable limitation on freedom of speech because the extent of the limitation was not ascertainable, the regulation was not rationally connected with its objective but was arbitrary and unfair, its objective being ‘obscured by its overbreadth’, and it was not proportional to the objective of maintaining discipline in the police force.5 Moreover, the court emphasized that the right to freedom of speech and expression ‘cannot be frustrated by mere indiscretions of a speaker’. What was important was to examine whether the speech at issue furthered the purpose of the right itself.6 1 The relationship between freedom of expression and state security has been considered by the European Court of Human Rights in several important judgements. See, for example, The Observer and the Guardian v United Kingdom, Judgment of 26 November 1991, Series A No 216, (1992) 14 EHRR 153; The Sunday Times v United Kingdom (No 2), Judgment of 26 November 1991, Series A No 217, (1992) 14 EHRR 229 (better known as the Spycatcher cases); Vereniging Weekblad ‘Bluf’v The Netherlands, Judgment of 9 February 1995, Series A No 306-A, (1995) 20 EHRR 189. 2 But see Mutasa v Makombe NO 1998 (1) SA 397 (ZS), where the Zimbabwean Supreme Court upheld a reprimand imposed by Parliament on one of its members as a punishment for contempt of Parliament. The contempt was committed when the applicant, at a meeting outside Parliament, publicly criticized the calibre of unnamed members of Parliament and suggested that much of what took place in Parliament had become ‘meaningless’. The decision turned on the wording of s 20(2)(b)(iii) of the Zimbabwean Constitution, which excluded from the protection of freedom of expression, laws made for the purpose of ‘maintaining the authority and independence of . . . Parliament’. The Powers and Privileges of Parliament Act, which conferred on Parliament the jurisdiction to punish contempts of Parliament, was held to be such a law, and the case was accordingly treated as one falling outside the ambit of the constitutional protection of freedom of expression. 3 1996 (4) SA 965 (NmS). 4 At 985B. 5 At 979H, 980H--I. See also Vereinigung Demokratischer Soldaten Österriechs and Gubi v Austria, Judgment of 19 December 1994, Series A No 302, (1994) 20 EHRR 56 (the European Court of Human Rights recognized that preserving order in the armed forces was a legitimate aim. However, a refusal by the Ministry of Defence to distribute a particular journal, critical of the military, in the barracks (although the Ministry distributed other journals at its own expense) and an order that the second applicant (a soldier) cease distribution of the journal were held to be disproportionate to the legitimate aim. This was so particularly because the editions of the journal concerned did not call into question the duty of obedience or the purpose of service in the armed forces); Vogt v Germany, Judgment of 26 September 1995, Series A No 323 (a teacher and civil servant who had engaged in various political activities on behalf of the German Communist Party was dismissed from her employment for failure to comply with her duty of political loyalty. The European Court of Human Rights considered the balance to be struck between freedom of expression and the legitimate interests of the state in requiring civil servants to be loyal towards the Constitution. The court held that the dismissal of the teacher was a severe sanction which had not been demonstrated to be necessary. It was therefore disproportionate to the state’s legitimate aim.). 6 At 982G. 20--30 [REVISION SERVICE 3, 1998] EXPRESSION (b) Defamation REVISION SERVICE 5, 1999 Until recently the common-law rules of defamation placed severe restrictions on freedom of expression and the press.1 The press was held strictly liable for the publication of defamatory matter.2 The courts refused to afford the press any special privileges in reporting matter which may be defamatory.3 All defendants were burdened with a full onus and not merely an evidentiary burden when proving defences which negative unlawfulness.4 Finally, the ‘public interest’ was defined narrowly.5 Several of these rules have been subjected to both reconsideration and challenge under the Constitution. 31 United States constitutional doctrines developed in New York Times Co v Sullivan6 and its progeny prohibit liability without fault. These rules require that before public officials and public figures7 may recover damages for defamation they must prove that defamatory matter was published with actual malice, that is in the knowledge of its falsehood or with reckless disregard as to whether such matter was true or false.8 And in Rosenbloom v Metromedia, Inc9 the US Supreme Court shifted the focus of inquiry from the nature of the plaintiff to the nature of the speech at issue. The court held that the rules set out in the Sullivan case apply regardless of whether the plaintiff is a public or private figure as long as the allegedly libelous statements were made about a matter of public or general interest.10 This approach is at odds with the common-law rules relating to onus in respect of defences going to unlawfulness.11 1 Certain long-standing principles of the common law were held to have been wrongly decided by the recent decision of the Supreme Court of Appeal in National Media Ltd & others v Bogoshi 1998 (4) SA 1196 (SCA), 1999 (1) BCLR 1 (SCA), discussed in more detail below. 2 Pakendorf en andere v De Flamingh 1982 (3) SA 146 (A). 3 Neethling v Du Preez & others 1994 (1) SA 708 (A). 4 Neethling v Du Preez 1994 (1) SA 708 (A). 5 Financial Mail (Pty) Ltd & others v Sage Holdings Ltd & another 1993 (2) SA 451 (A). 6 376 US 254, 84 SCt 710 (1963). 7 Curtis Pubishing Co v Butts 388 US 130, 87 SCt 1975 (1967). 8 See also Gertz v Robert Welch Inc 418 US 323 at 340, 94 SCt 2997 (1974) (allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties; the First Amendment requires that we protect some falsehood in order to protect speech that matters: Powell J). 9 403 US 29, 91 SCt 1811 (1971). 10 Marshall J dissented in the Rosenbloom case at 79 on the grounds that all human events were arguably of public interest, and that the courts were not competent to judge ‘what information is relevant to self-government’. This dissent was later accepted in the Gertz case, and the majority decision in the Rosenbloom case was not followed. Nevertheless, whatever its fate in the US, the focus by courts on the nature of the discussion and communication at issue, and the relation of such speech to public interest, comports well with the structure of the guarantee in our Constitution. Our courts are explicitly enjoined to evaluate expression on the basis of its relation to free and fair political activity. 11 See e g Philadelphia Newspapers Inc v Hepps 475 US 767, 106 SCt 1558 (1986): the plaintiff has the onus not merely of demonstrating falsity but also of proving fault; the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern. [REVISION SERVICE 5, 1999] 20--31 CONSTITUTIONAL LAW OF SOUTH AFRICA We have already noted the incompatibility of seditious libel with an open and democratic society, and have discussed the political process imperatives which provide important underpinnings for s 15(1).1 These factors enable us to suggest that certain categorical exclusions may be constitutionally developed. Thus the common-law rule that the state does not have an action for damages arising from defamation will remain unchanged.2 Notwithstanding difficulties of definition, the interests of democracy will be greatly enhanced by a constitutional rule which overturns Argus Printing and Publishing Co Ltd v Inkatha Freedom Party,3 and which consequently prevents political parties from bringing actions for defamation. Furthermore, we suggest that public officials including judicial officers should not be permitted to sue for damages for defamation in the absence of convincing proof that the matter was published with actual malice in the sense defined in New York Times Co v Sullivan.4 32 In Du Plessis & others v De Klerk & another5 the Constitutional Court expressly refrained from giving any indication as to how the law of defamation might be developed in the light of the spirit, purport and objects of Chapter 3 of the Constitution. The court contented itself with observing that ‘in the development of the common law of defamation a multitude of choices is available’.6 It was not, however, within the powers of the Constitutional Court ‘to choose between competing versions of the common law, all of which may be consistent with the Constitution. That choice on appeal is for the Appellate Division, at least in the first place.’7 Precisely how the common law should develop is now a matter of competing decisions in the Supreme Court. The major constitutional challenges to the common-law rules of defamation all occurred before the landmark decision of the Supreme Court of Appeal in National Media Ltd & others v Bogoshi.8 Hence the provincial division decisions all proceed from an assumption as to the state of the common law which has now been held to be erroneous.9 In Gardener v Whitaker10 the court considered the impact of s 15(1) on the onus of proof in defamation cases. Froneman J concluded that the common-law rules of defamation were subject to constitutional scrutiny in the light of their impact upon freedom of speech 1 See above, §§ 20.8(a) and 20.2(d). See also Lingens v Austria, Judgment of 8 July 1986, Series A No 103, (1986) 8 EHRR 407 (private prosecution for criminal defamation brought by Austrian Chancellor against publisher who had accused him of protecting former members of the Nazi SS held to be an unjustifiable violation of freedom of expression). 2 Die Spoorbond v SAR 1946 AD 999. 3 1992 (3) SA 579 (A) (political parties are entitled to bring actions for defamation). 4 376 US 254, 84 SCt 710 (1964). On this basis decisions such as Argus Printing & Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A) would, by reason of the constitutional guarantee of freedom of expression, no longer reflect the state of our law. 5 1996 (3) SA 850 (CC), 1996 (6) BCLR 658 (CC). 6 Per Kentridge AJ at para 58. 7 This was the standpoint of the unanimous judgment in Gardener v Whitaker1996 (6) BCLR 775 (CC) at para 16. 8 1998 (4) SA 1196 (SCA), 1999 (1) BCLR 1 (SCA). 9 The most significant features of National Media Ltd & others v Bogoshi (supra) are the conclusion that at common law the media are not strictly liable for the publication of defamatory matter and the availability to the media of the defence of ‘reasonable publication’. See generally J Burchell ‘Media Freedom of Expression Scores as Strict Liability Receives the Red Card: National Media Ltd & others v Bogoshi’ (1999) 116 SALJ 1. 10 1995 (2) SA 672 (E), 1994 (5) BCLR 19 (E). 20--32 [REVISION SERVICE 5, 1999] EXPRESSION and expression.1 The court concluded that the case presented a ‘clash between the fundamental right of free speech and expression, on the one hand, and the right to a good name or reputation (as part of the fundamental right to human dignity), on the other’. Contrary to the position at common law in terms of which a defendant raising common-law defences of justification, privilege and fair comment bears a full onus of proof,2 the court held that the Constitution had brought about a fundamental change. The plaintiff ‘now bears the onus of showing that the defendant’s speech or statement is, for example, false; not in the public interest; not protected by privilege; unfair comment, and the like’.3 32A 1 When the matter went on appeal to the Constitutional Court the only issue was whether or not the Constitutional Court or the Appellate Division had jurisdiction to develop the common law in terms of s 35(3). The Constitutional Court, however, noted that it was ‘not altogether easy to discern whether, in reaching his conclusion on the constitutional issues which he himself had raised, the judge was applying s 15 of the Constitution . . . directly horizontally as between private parties, or whether he was merely having due regard to the ‘‘spirit, purport and objects’’ of Chapter 3, in terms of s 35(3)’. The court concluded that he was doing the latter. The judge was ‘balancing one fundamental right (dignity, including reputation) against another (freedom of speech) and developing (or altering) a common-law rule in a manner which in his opinion struck the correct balance.’ See Gardener v Whitaker 1996 (6) BCLR 775 (CC) at para 9. 2 Neethling v Du Preez & others; Neethling v The Weekly Mail & others 1994 (1) SA 708 (A). 3 Gardener v Whitaker 1995 (2) SA 672 (E), 1994 (5) BCLR 19 (E) at 691F--I (SA). [REVISION SERVICE 5, 1999] 20--32A 32B EXPRESSION REVISION SERVICE 2, 1998 33 The most significant development of the common law of defamation in the light of the ‘spirit, purport and objects’ of Chapter 3 of the Constitution is the judgment of Cameron J in Holomisa v Argus Newspapers Ltd.1 In that case the plaintiff was the Deputy Minister of Environmental Affairs, who, prior to the coming into operation of the Constitution, was the military ruler of Transkei. He issued summons for defamation in August 1994 in respect of an article published in The Star on 27 May 1993 in which it was alleged that he was ‘directly involved’ in the infiltration into South Africa of a ‘hit squad’ with the aim of ‘killing whites’. An exception was taken to the particulars of claim, invoking s 15 of the Constitution. The court approached the matter on the basis that s 35(3) required a reconsideration of the traditional common-law rules of defamation. The court was confronted, however, with a divergent array of possibilities for developing the common law in the light of the constitutional guarantee. The excipient contended for the approach adopted by the US Supreme Court in New York Times Co v Sullivan.2 The rule adopted by the US Supreme Court in New York Times Co v Sullivan, it should be emphasized, did not present the extreme end of the spectrum of possible approaches. The minority in New York Times Co v Sullivan, although concurring in the result, would have gone further. They would have held that in cases involving the defamation of public officials, the defendants have ‘an absolute, unconditional constitutional right to publish’.3 Another possibility, which by agreement was also embraced within the terms of the exception, was that offered by the majority of the Australian High Court in Theophanous v Herald & Weekly Times Ltd.4 In that case a bare majority held that the implied guarantee of freedom of communication in the Commonwealth Constitution (which has no Bill of Rights) justified the striking down of provisions of the common law of defamation which restricted debate about public and governmental affairs and political matters. The court adopted a rule permitting the publication of false defamatory statements in circumstances where it was reasonable to do so. At the other end of the spectrum was the decision of the Supreme Court of Canada in Hill v Church of Scientology of Toronto.5 This decision, characterized by Cameron J as having adopted a ‘more conservative approach to the question of adapting common-law values to constitutional norms’,6 held that the Canadian Charter merely represented a ‘re-statement of the fundamental values which guide and shape our democratic society and our legal system’.7 Confronted with these options, Cameron J rejected the rule in New York Times Co v Sullivan and opted for an approach more in accordance with the High Court of Australia in Theophanous. He formulated the rule thus: ‘The approach of the plurality in the High Court of Australia in Theophanous seems to me to offer a persausive precedent for resolving . . . the clash between . . . rivalling values. That resolution, it seems to me, lies in affording constitutional protection to one who exercises his or her right of free speech by publishing even false defamatory statements in the area of ‘‘free and fair political activity’’, unless the plaintiff shows that the publisher acted unreasonably. In such a case, the publisher would forfeit entitlement to the constitutional protection. The reasonableness standard offers a powerful tool for resolving the difficulties inherent in protecting reputation while at the same time giving recognition to the role the Constitution accords free speech and expression. It will not be reasonable to publish most untrue statements of fact. Only 1 1996 (2) SA 588 (W). 3 Per Justice Black (Justice Douglas concurring) at 293. 5 (1995) 126 DLR (4th) 129. 7 2 376 US 254. 4 (1994) 124 ALR 1 (HC). 6 Holomisa’s case (supra) at 604E. Hill v Church of Scientology of Toronto (supra) at para 92. [REVISION SERVICE 2, 1998] 20--33 CONSTITUTIONAL LAW OF SOUTH AFRICA due enquiry and the application of reasonable care will mark such conduct out for protection. A further valuable feature of the reasonableness standard is that, as the plurality pointed out in Theophanous’s case, ‘‘reasonableness is a concept with which the law is familiar’’.’1 34 In a brief judgment in Hall v Welz & others2 Conradie J agreed with Cameron J in Holomisa v Argus Newspapers Ltd that the interim Constitution valued free and fair political activity very highly. The judge said that ‘the law of defamation should be shaped to encourage free and fair political activity’.3 However, Conradie J understood the decision in Holomisa’s case to apply ‘only to participants in political activity in South Africa’.4 The judge was not persuaded that the common-law rules of defamation had not survived the test of the interim Constitution ‘where an ordinary citizen is concerned’.5 We submit that Hall v Welz misinterprets the rule in Holomisa’s case and also the relevant provisions of the interim Constitution. As was clearly recognized in Holomisa’s case,6 IC s 15(1) read with IC s 33(1)(bb) focuses attention on the nature of the speech or expression at issue and its relation to ‘free and fair political activity’. The appropriate level of constitutional protection depends in the first instance on the nature of the speech itself, and not on whether the plaintiff is a participant in political activity or an ordinary citizen. In Rivett-Carnac v Wiggins7 Davis AJ applied IC s 35(3) and held that the test for determining what constitutes defamatory material has itself been affected by the principles embodied in the interim Constitution. It is important, said the judge, not to equate robust criticism with defamatory material.8 Whether a statement lowers the plaintiff in the estimation of reasonable members of the community (and therefore amounts to an actionable defamation) must now be assessed in the context of a post-constitutional community: ‘The community must be construed as one which is interested and concerned with transparency and deliberation and which, unlike its counterpart during the authoritarian past, is interested in debate and such information which is required for debate. The reasonable reader is prepared to draw a distinction between a robust exchange of views and material which goes further and damages a person’s reputation and dignity. The potential for conflicts between parties must be resolved so as to promote openness and transparency while protecting dignity and privacy.’9 1 Holomisa’s case (supra) at 617C--E. At 618E Cameron J concluded that a ‘defamatory statement which relates to free and fair political activity is constitutionally protected, even if false, unless the plaintiff shows that, in all the circumstances of its publication, it was unreasonably made’. 2 3 1996 (4) SA 1070 (C). At 1072F. 4 5 At 1072C--D. At 1072G. 6 Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 609G--I, 617C--D, 619G, 620A--B. 7 8 1997 (3) SA 80 (C), 1997 (4) BCLR 562 (C). At 91B--C. 9 At 89J--90B. Davis AJ’s judgment is also important because it recognizes the obligations imposed by IC s 35(3) on every court. The judge said at 86E--F that consideration of common-law rules and their development, if necessary, so as to render them congruent with constitutional principles is ‘mandatory for every court’. What is required, Davis AJ held, is a ‘form of constitutional audit’ which involves a ‘careful examination of the existing principles which underpin the common-law rules and a comparison thereof with the key principles of the Constitution’ (at 87E). Davis AJ’s consideration of the impact of IC s 35(3) is not, however, entirely satisfactory. It is open to misunderstanding and is apt to confuse. In Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) Cameron J held (at 603G) that what is required by the directive in IC s 35(3) is ‘the fundamental reconsideration of any common-law rule that trenches on a fundamental rights guarantee’. At 87F--G Davis AJ referred with approval to precisely this passage from Holomisa’s case. However, at 87D, and immediately before his endorsement of the approach adopted in Holomisa’s case, Davis AJ asserted that the interim Constitution ‘could never have envisaged such a fundamental rejection of precedent so as to empower an individual Judge to overturn decades of precedent developed by the [continued on page 20--35] 20--34 [REVISION SERVICE 2, 1998] EXPRESSION REVISION SERVICE 3, 1998 34A Possibly the most interesting judgment to build on Holomisa v Argus is that of Thirion J in Buthelezi v South African Broadcasting Corporation.1 In this case the plaintiff was the Minister of Home Affairs. His complaint related to a radio broadcast in which his name was linked with certain evidence being heard in a murder trial in the Durban Supreme Court. Again, exceptions were taken to the particulars of claim as not disclosing a cause of action based upon the guarantee of freedom of expression in the interim Constitution. The court accepted the basic proposition that the interim Constitution ‘introduces the indirect application of the fundamental rights provisions to private law’. The court stated further: ‘If therefore this court, in developing the law of defamation so as to make it conform to the spirit, purport and objects of the fundamental rights provisions, were to depart from decisions which ante-date the coming into operation of the Constitution, it would not offend against the stare decisis rule.’2 The court then proceeded to consider the correctness of the Holomisa decision. In one respect it developed the law further, and in another adopted a more restrictive approach. Thirion J stated: ‘The test as formulated by Cameron J seems to me to have but limited utility. It applies only to statements related to ‘‘free and fair political activity’’. There are, however, defamatory statements which would be equally deserving of protection, even though they do not relate to free and fair political activity. For example, a statement relating to a fraudulent manipulation of the stock market might be of greater public concern that one relating to ‘‘free and fair political activity’’. The manner in which the affairs of public companies are conducted is, generally speaking, a matter of public concern. In my view the law of defamation could best be developed along incremental lines . . . if the concept of ‘‘public interest’’ as it is understood in the law of defamation were to be broadened or replaced by the concept of ‘‘public concern’’ (Philadelphia Newspapers Inc v Hepps 475 US 767 (1986)), and if the requirement that the defamatory statement has to be true, were to be replaced by the requirement that the defendant should have taken reasonable steps to ascertain whether it is true or false.’3 With regard to the onus of proof, however, the court rejected the approach in Holomisa’s case and followed the plurality in Theophanous, holding that ‘it would be for the defendant to allege and prove circumstances which made it reasonable for the defendant to publish the defamatory statement’.4 1 1997 (12) BCLR 1733 (D). 2 At 1738J. 3 At 1740A--C. 4 At 1744G. [REVISION SERVICE 3, 1998] 20--34A 34B EXPRESSION REVISION SERVICE 5, 1999 35 Three Supreme Court judgments stand out in marked contrast to those discussed above. In both Bogoshi v National Media Ltd & others1 (at first instance) and Potgieter en ’n ander v Kilian2 it was held that the Constitution has left the common-law rules of defamation essentially unaffected. In the first of these two cases Eloff JP, in an extremely short and largely unmotivated judgment, assumed that s 35(3) permitted him to develop the common law of defamation in the light of the Constitution. He concluded, however, that the common law struck an appropriate balance between freedom of expression and the right to reputation.3 The decision in Potgieter v Kilian concludes that the Constitution has no ‘horizontal’ application in a dispute between private parties concerning the law of defamation. The judgment, however, makes no reference at all to the application of s 35(3) to the development of the common law in the light of the spirit, purport and objects of the Chapter on Fundamental Rights. It is respectfully submitted, however, that the decision is plainly wrong for reasons which have nothing to do with the Constitution. The appellants in this case were respectively the Sheriff and Deputy Sheriff of Vryheid. The appellants had obtained a rule nisi prohibiting the respondent from instructing any newspaper or magazine to publish a document or any other report referring to an incident involving the respondent and the appellants. The rule nisi was discharged by the magistrate, whereupon the appellants appealed to the Supreme Court. What was at issue, therefore, was whether or not the magistrate ought to have discharged the interim interdict. The matter was conducted before the magistrate entirely by way of affidavit evidence.4 There is no mention in the judgment of the Supreme Court of the special rules, fashioned over the last sixty years, relating to interdicts in defamation cases. In 1931 Greenberg J (as he then was) in Heilbron v Blignaut 5 laid down the rule that ‘if the injury which is sought to be restrained is said to be a defamation then [the applicant] is not entitled to the intervention of the court by way of interdict, unless it is clear that the defendant has no defence. Thus if the defendant sets up that he can prove truth and public benefit, the court is not entitled to disregard his statement on oath to that effect, because if his statements were true it would be a defence, and the basis of the claim for an interdict is that an actionable wrong, i e conduct for which there is no defence in law, is about to be committed.’6 Appellate Division’. This assertion was entirely unnecessary to the decision reached. In Rivett-Carnac’s case Davis AJ was doing no more than re-interpreting the content of the test for determining what constitutes a defamatory statement. A rule of common law may, however, trench on a fundamental right in a manner which is not amenable to mere ‘interpretation’. That rule may require ‘development’, even far-reaching development, in order to render it congruent with constitutional principles. We submit that the process of ‘interpretation’ referred to in IC s 35(3) is similar to the process of reading down envisaged by the presumption of constitutionality in IC s 35(2). In certain circumstances, by contrast, ‘development’ of the common law may necessitate a process similar to the striking down of a statutory provision. As Davis AJ himself recognized, IC s 35(3) extends to all courts the jurisdiction to interpret and develop the common law in accordance with constitutional principles. However, his incompletely reasoned invocation of precedent may mislead other courts into construing the directive embodied in IC s 35(3), and the jurisdiction it affords, as merely permissive or optional. 1 1996 (3) SA 78 (W), now overruled in National Media Ltd & others v Bogoshi 1998 (4) SA 1196 (SCA), 1999 (1) BCLR 1 (SCA). 2 1996 (2) SA 276 (N), 1995 (11) BCLR 1498 (N). 3 Cameron J in Holomisa v Argus Newspapers Ltd (supra) alludes to the judgment of Eloff JP in Bogoshi, stating at 620D--E that it was evident that his judgment was in conflict with that of Eloff JP, but considered it fairest to let the disputed issues take their further course, if any. It is submitted that this was simply a polite way for Cameron J to indicate that he considered the judgment of Eloff JP to be clearly wrong. 4 5 At 287F--G. 1931 WLD 167. 6 At 169. [REVISION SERVICE 5, 1999] 20--35 CONSTITUTIONAL LAW OF SOUTH AFRICA What precisely is required to ‘set up’ a defence on affidavit has been considered in subsequent decisions.1 Instead of applying the well-established common-law rules concerning interdicts in defamation cases,2 the court, it is submitted, conducted what amounted to a defamation trial on affidavit. This approach was entirely misconceived. In any event, the court appears to have been sidetracked by the debate on ‘horizontality’ and failed to consider whether IC s 35(3) enjoined the court to consider the development of the common law in the light of the Constitution. 36 In McNally v M and G Media Limited & others3 Du Plessis J dismissed exceptions taken to the plaintiff’s particulars of claim. The plaintiff was an Attorney-General who had instituted an action for damages on the basis of defamation. The facts of the case rendered reconsideration of the common-law rules of defamation in light of constitutional values particularly appropriate. The defendant had sought to develop the common law by introducing into it the rule formulated in New York Times Co v Sullivan4 or to introduce a negligence test as the appropriate standard of culpability, and to contend that the onus to prove unlawfulness rested with the plaintiff. Du Plessis J recognized that the strict liability principle laid down in Pakendorf en andere v De Flamingh5 needs reconsideration in light of the constitutional emphasis on the importance of freedom of speech in the context of free and fair political activity. Nevertheless, the judge dismissed the exceptions. He pointed out that the submissions advanced on behalf of the defendant were contrary to Appellate Division authority. He declined to undertake a reconsideration of those authorities and concluded that IC s 35(3) did not entitle him to depart from those precedents.6 It is respectfully submitted that the effect of this conclusion is significantly to eviscerate the role which IC s 35(3) is designed to play in ensuring consistency between the common law and constitutional values. Furthermore, it pays no or insufficient attention to specific injunctions by the Constitutional Court. That court has recognized that IC s 35(3) means that points of law, including the common law, hitherto regarded as settled, now stand to be re-evaluated, including by the Supreme Court.7 Kentridge AJ, writing for a unanimous court, has said in a different but equally apposite context that ‘[e]ven if a rapid resort to this court were convenient that would not relieve the judge from making his own decision on a constitutional issue within his jurisdiction. The jurisdiction conferred on judges of the provincial and local divisions of the Supreme Court under section 101(3) is not an optional 1 See, for example, Buthelezi v Poorter & others 1974 (4) SA 831 (W). Cf Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A) at 466F--G. 2 The validity of these rules was reaffirmed by the Appellate Division in Hix Networking Technologies v System Publishers & others 1997 (1) SA 391 (A). In the Hix case Plewman JA emphasized at 402C that attempts to restrain publication must be approached with caution and that the importance of freedom of speech should generally be considered where the balance of convenience is determined. 3 1997 (4) SA 267 (W), 1997 (6) BCLR 818 (W). 4 376 US 254 (1964). 5 1982 (3) SA 146 (A). 6 McNally v M & G Media Limited & others 1997 (4) SA 267 (W) at 275H--276F, 1997 (6) BCLR 818 (W) at 824B--825G. 7 See Bernstein v Bester 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at paras 59--64; Nel v Le Roux NO & others 1996 (3) SA 562 (CC), 1996 (4) BCLR 592 (CC) at paras 8--9, 18. 20--36 [REVISION SERVICE 5, 1999] EXPRESSION jurisdiction. The jurisdiction was conferred in order to be exercised.’1 The same judge also recognized that IC s 35(3) ‘may in some instances require the Supreme Court to give a new turn to a branch of the common law’.2 It is submitted not only that the Supreme Court has a role to play in the process of re-evaluation but a constitutional obligation to play that role. 37 These cases were all decided before the decision of the Supreme Court of Appeal in National Media Ltd & others v Bogoshi.3 In this case the Supreme Court of Appeal reconsidered a rule enunciated 16 years earlier that the editor, owner, printer and publisher of a newspaper was strictly liable for the publication of defamatory matter. It held that the decision to this effect in Pakendorf en andere v De Flamingh 4 did not correctly reflect the position at common law: ‘If we recognise, as we must, the democratic imperative that the common good is best served by the free flow of information and the task of the media in the process, it must be clear that strict liability cannot be defended and should have been rejected in Pakendorf. Much has been written about the ‘‘chilling’’ effect of defamation actions but nothing can be more chilling than the prospect of being mulcted in damages for even the slightest error.’5 In reaching this conclusion the court recognized the ‘right’ and ‘vital function’ of the press ‘to make available to the community information and criticism about every aspect of public, political, social and economic activity and thus to contribute to the formation of public opinion. . . . The press and the rest of the media provide the means by which useful, and sometimes vital, information about the daily affairs of the nation is conveyed to its citizens ---- from the highest to the lowest ranks.’6 The court recognized, for the first time, a defence of reasonable publication. This permits the press to publish false defamatory statements of fact if, in all the circumstances of the case, it is found to be reasonable. Protection is only afforded to the publication of material in which the public has an interest, that is, which it is in the public interest to make known, as distinct from material which is merely interesting to the public.7 The court laid down certain guidelines for the determination of whether it is reasonable to publish particular facts in a particular way and at a particular time. These guidelines include the nature, extent and tone of the allegations, bearing in mind that greater latitude is usually allowed in respect of political discussion and that ‘the tone in which a newspaper article is written, or the way in which it is presented, sometimes provides additional, and perhaps unnecessary, sting.’ The court stated further that ‘what will also figure prominently is the nature of the information on which the allegations were based and the reliability of their source, as well as the steps taken to verify the information’.8 In reaching this conclusion the court considered the approach adopted by Cameron J in Holomisa v Argus Newspapers Ltd and Thirion J in Buthelezi v South African Broadcasting Corporation. As 1 S v Zuma & others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 10. 2 Du Plessis & others v De Klerk & another 1996 (3) SA 850 (CC) at para 65 (Kentridge AJ); para 87 (Mahomed DP). 3 1998 (4) SA 1196 (SCA), 1999 (1) BCLR 1 (SCA). 4 1982 (3) SA 146 (A). 5 Per Hefer JA at 1210H. The court held that Pakendorf was clearly wrong and must be overruled (at 1211B--C. 6 At 1209I--J. 7 At 1212B--C. 8 At 1212H--I. [REVISION SERVICE 5, 1999] 20--37 CONSTITUTIONAL LAW OF SOUTH AFRICA indicated above, these cases sought to develop the common law of defamation in accordance with the spirit, purport and objects of the Constitution. The Supreme Court of Appeal, however, expressly reached its conclusions without any revision of the common law. Hefer JA emphasized that he had ‘not sought to revise the common law conformably to the values of the interim Constitution’ but had ‘done no more than to hold that this Court stated a common-law principle wrongly in Pakendorf’.1 Notwithstanding this conclusion, the court recognized that its statement of the position at common law required an examination of its constitutional compatibility by reason of s 35(3) of the interim Constitution. In this process, the court differed from Cameron J on the question of the onus of proof and supported the traditional common-law position (as endorsed by Thirion J) that the onus rested upon the defendant to justify the lawfulness of the publication.2 38 National Media Ltd v Bogoshi does not represent a development of the common law in the light of the Constitution. It is merely a statement of the position at common law which the Supreme Court of Appeal has held to be compatible with IC s 35(3). It must be emphasized, however, that since the matter was decided under the interim Constitution, no direct challenge to any rule of common law was possible. Under the final Constitution, however, with its wider reach, it seems clear that common-law rules of defamation, even in a dispute between private parties, are subject to direct constitutional challenge. This means, therefore, that the position as stated by the Supreme Court of Appeal is not necessarily the last word. There is no reason in principle precluding further development of the common law pursuant to the injunction contained in FC s 39(2) or direct constitutional attack on existing rules of common law. The decision of Cameron J is a significant advance on the restrictive rules of the common law. In one respect the judgment of Cameron J goes further than New York Times Co v Sullivan. In order to avoid what he perceived to be difficulties in determining who is or is not a public official or figure Cameron J focused instead on the nature of the speech. Provided the speech falls within the realm of ‘free and fair political activity’ it attracts constitutional protection in the form of the rule he formulated. Moreover, although it was unnecessary for the purposes of his judgment to determine whether the rule he formulated applies to defamation unrelated to political activity, he considered that ‘as a matter of principle’ there was ‘much to be said for the view that those who complain of injury to the right to reputation should be in no better position than those who complain of the breach of any other right’.3 Of particular significance is Cameron J’s assertion of the relationship between free expression and democracy: ‘In a system of democracy dedicated to openness and accountability, as ours is, the especially important role of the media, both publicly and privately owned, must in my view be recognized. The success of our constitutional venture depends upon robust criticism of the exercise of power. This requires alert and critical citizens. But strong and independent newspapers, journals and 1 At 1216E. 2 For a critical assessment of National Media Ltd & others v Bogoshi, see J Burchell ‘Media Freedom of Expression Scores as Strict Liability Receives the Red Card: National Media Ltd v Bogoshi’ (1999) 116 SALJ 1 and J R Midgley ‘Media Liability for Defamation’ (1999) 116 SALJ 211. 3 Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) at 611E--F. 20--38 [REVISION SERVICE 5, 1999] EXPRESSION broadcast media are needed also, if those criticisms are to be effectively voiced, and if they are to be informed with the factual content and critical perspectives that investigative journalism may provide.’1 38A It is respectfully submitted that, welcome though the judgment of Cameron J undoubtedly is, there remains a substantial case to be made for the adoption of the rule in New York Times Co v Sullivan. That rule, in our submission, strikes the appropriate balance when it comes to criticism of public officials and to expression which relates to free and fair political activity. (c) Contempt of court and access to court The contempt of court sanction has been used primarily in two contexts: against expressive conduct which violates the dignity or authority of the court, and against expression which prejudices the right to a fair trial.2 (i) Scandalizing the court 38 Contempt for scandalizing the court has been defined as being committed ‘by the publication either in writing or verbally of allegations calculated to bring Judges, magistrates or the administration of justice through the courts generally, into contempt, or unjustly to cast suspicion upon the administration of justice.’3 The offence of contempt is, in this context, a sanction for impairments of the dignity of the court, and has been described as an injuria publica.4 Our pre-constitutional common law contains at least one expression of caution against resorting too readily to the contempt in facie curiae sanction.5 Where contempt is invoked to protect the dignity and authority of the courts the underlying principles are similar to those which would underpin actions by the state for defamation. Where the dignity and authority of the courts is at issue, as opposed to different and broader concerns about protecting the effective administration of justice, the injuria publica resembles those rules of common law which criminalize speech which is critical of or challenges state authority. When contempt is invoked to protect the dignity of the courts we submit that what is really at work is no less than a regime of punishment for sedition. 1 At 608J--609B. 2 A sanction for contempt may also operate to protect the dignity of and respect for other institutions, such as Parliament. In Mutasa v Makombe NO 1997 (6) BCLR 841 (ZS) at 848G--J the Supreme Court of Zimbabwe held that ‘any abridgement of the freedom of expression that permits this legislative body to commit its members for contempt must be regarded as reasonably justifiable in a democratic society’. 3 Joubert (ed) LAWSA vol 6 para 201, cited with approval in Argus Printing & Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A) at 29D--E. Note that in the Esselen case the concepts of defamation and contempt by scandalizing the court are considered in relation to their possible overlap. 4 Attorney-General v Crockett 1911 TPD 893 at 911--12, cited with approval in Ivger (Pty) Ltd v Engelbrecht & another 1980 (4) SA 81 (T) at 84A--D. One may perceive in the notion of an injuria publica echoes of the offence of seditious libel. 5 S v Nel 1991 (1) SA 730 (A) at 749G--H. [REVISION SERVICE 5, 1999] 20--38A CONSTITUTIONAL LAW OF SOUTH AFRICA 38BIt has been held that justice is not a cloistered virtue and that respectful even though outspoken criticism is permissible.1 Nevertheless, in drawing the line between mere criticism of the administration of justice, which is not contempt, and violating the dignity or authority of the courts, which is,2 our common law would criminalize expressive conduct which imputes corrupt or improper or dishonest motives or conduct to a judge in the discharge of his or her official duties; or which reflects on the administration of justice in an improper or scandalous manner;3 or which lowers the authority of the court or unfairly or improperly criticizes the court in relation to terminated proceedings or generally;4 or which scandalizes the court by imputing bias, partiality or improper motives to a judge or the courts;5 or which is calculated to bring into contempt a judicial officer in his or her judicial capacity.6 We submit that the offence of contempt by scandalizing the court implicates concerns at the very core of freedom of expression; it reflects the workings of a regime of authority, not a culture of justification, and undermines the values of an open and democratic society. To the extent that the purpose of this form of contempt is ‘to protect ‘‘the fount of justice’’ ’7 the means chosen are not proportional to the objective and trench too deeply on freedom of expression. Contempt by scandalizing the court is unlikely to constitute a justifiable limit 1 R v Torch Printing & Publishing Company (Pty) Ltd & others 1956 (1) SA 815 (C) at 821 (citing Ambard v Attorney-General of Trinidad and Tobago [1936] 1 All ER 704 (PC) at 709). 2 S v Gibson NO & others 1979 (4) SA 115 (D) at 121. 3 In re Phelan (1877) Kotzé 5. 4 R v Torch Printing & Publishing Company (Pty) Ltd & others 1956 (1) SA 815 (C). 5 R v Hardy 1904 NLR 359; S v Van Niekerk 1972 (3) SA 711 (A). 6 S v Olivier 1964 (3) SA 660 (N). 7 Argus Printing & Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A) at 29. 20--38B [REVISION SERVICE 5, 1999] EXPRESSION upon freedom of speech and expression.1 An enforced silence solely in the name of preserving the dignity of the Bench would probably engender resentment, suspicion and contempt much more than it would enhance respect.2 REVISION SERVICE 2, 1998 39 The Constitutional Court does not possess any inherent jurisdiction.3 Surprisingly, however, the court appeared to invoke a contempt jurisdiction in a particularly unfortunate manner in the case of Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others.4 In the midst of litigation the third applicant in the case, Mr Pieter Marais, was reported in the newspapers as having made a speech to the effect that the Western Cape government had an outstanding chance of winning the case in the Constitutional Court as long as the judgment was not going to be a political one (‘as die uitspraak nie ’n politieke een gaan wees nie’). This report was drawn to the attention of the court by counsel for the respondents. It was contended that the imputation of bias and judicial dishonesty to the court if it were to find for the respondents was plain. It was submitted that the reported statement constituted a serious contempt of court whether on the basis of a contempt tending to prejudice the outcome of a case or one scandalizing the court. In dealing with this issue Chaskalson P reproduced the authorities relied upon by counsel for the respondents5 and Attorney-General v Times Newspapers Ltd.6 After observing that it went without saying that the court had not been influenced in any way by the press report, Chaskalson P considered that the report ‘undermines not only this court but constitutionalism itself, of which this court is a guardian. Having regard to the high political office held by the third applicant, the consequences of a statement impugning the integrity of this court might have been particularly harmful. All citizens are free to attend court, to listen to proceedings, to comment on them and on the judgments given and to criticize such judgments, even vigorously, where it is appropriate to do so, but it is irresponsible to make unfounded statements which impugn the integrity of the court. I leave the matter there.’7 1 See e g R v Kopyto (1987) 62 OR (2d) 449 (CA). The only effect of a statement critical of the judicial system was its general tendency to lower the reputation and authority of the court, since the statement was made after the conclusion of judicial proceedings; the common-law contempt of scandalizing the court has not survived the adoption of the Canadian Charter; criticism of the courts, however unrestrained, made after a decision has been rendered, is constitutionally protected expression, and a law attempting to restrict such criticism cannot not be justified under the limitation clause. See also Pennenkamp v Florida 328 US 331, 66 SCt 1029 (1946) (overturning convictions for contempt by publication: articles critical of local judges’ reliance on ‘legal technicalities’ to turn criminals loose are constitutionally protected speech); Craig v Harney 331 US 367, 67 SCt 1249 (1947); Landmark Communications, Inc v Virginia 435 US 829, 98 SCt 1535 (1978) (attacks on a judge’s integrity or criticism of the administration of justice generally are not punishable by contempt; protection of a judge’s reputation is not a strong enough interest to justify suppression of free expression). 2 Bridges v California 314 US 252, 62 SCt 190 (1941) (disrespect for the judiciary is not a sufficiently serious substantive evil that would justify censorship; the clear and present danger test developed in the subversive advocacy context applied: there must be a clear and present danger of interference with the administration of justice: the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished). 3 In Du Plessis & others v De Klerk & another 1996 (3) SA 850 (CC), 1996 (5) BCLR 658 (CC) Kentridge AJ stated at para 52 that the Constitutional Court’s jurisdiction derives only from s 98: ‘unlike the Supreme Court of the United States, the Australian High Court or the Supreme Court of Namibia, it has no inherent or general jurisdiction’. 4 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC). 5 Joubert (ed) The Law of South Africa vol 6 para 200; Hunt South African Criminal Law and Procedure vol II 2 ed (1982) at 199--204 6 7 [1973] 3 All ER 54 (HL). At para 122. [REVISION SERVICE 2, 1998] 20--39 CONSTITUTIONAL LAW OF SOUTH AFRICA It is respectfully submitted that this issue was unsatisfactorily dealt with in a number of respects. First, the court invoked what amounted to a summary procedure and imposed what amounted to a conviction, albeit unattended by any sanction, notwithstanding the fact that no formal charges had been preferred. Even at common law this procedure has been deprecated.1 Of particular significance, however, was the uncritical attitude adopted by the court concerning the existing common-law authorities relating to contempt of court. It is submitted that the test for contempt at common law is substantially at odds with the guarantee of freedom of expression. The reference by the court to the decision in the House of Lords in Attorney-General v Times Newspapers Ltd is particularly unfortunate. That decision was overruled by the European Court of Human Rights.2 Given the nature of its decisions, it is inevitable that the Constitutional Court will attract criticism which will often be foolish and misguided. It would be unfortunate if the speech of would-be critics of the court was chilled into an uneasy silence out of a fear of contempt proceedings. 40 The Constitutional Court has now been vested with statutory power to deal with contempt. Section 9 of the Constitutional Court Complementary Act3 provides: ‘9 (1) Any person who ---(a) during the sitting of the Court, wilfully insults any member of the Court or any officer of the Court present at the sitting, or who wilfully hinders or obstructs any member of the Court or any officer thereof in the exercise of his or her powers or the performance of his or her duties; (b) wilfully interrupts the proceedings of the Court or otherwise misbehaves himself or herself in the place where the sitting of the Court is held; or (c) does anything calculated improperly to influence the Court in respect of any matter being or to be considered by the Court, may by order of the Court, be removed and detained in custody until the rising of the Court. (2) Removal and detention in terms of sub-section (1) shall not preclude the prosecution in a court of law of the person concerned on a charge of contempt of court.’ Although the obvious purpose of this jurisdiction is to deal with disruptions in facie curiae, s 9(1)(c) is capable of being applied to criticism of the court or its members. (ii) Contempt and the right to a fair trial Another form of contempt which relates to freedom of expression concerns prejudice to the right to a fair trial. ‘The ratio of the crime of contempt is based on the broad principle that . . . it is necessary in the interests of the State to safeguard the purity of the administration of justice.’4 The common-law test, in relation to a fair trial, is defined as whether ‘the statement or document in issue tends to prejudice or interfere with the administration of justice in a pending proceeding’.5 It is questionable whether this test would survive constitutional 1 2 3 4 5 See S v Nel 1991 (1) SA 730 (A). Sunday Times v The United Kingdom 2 EHRR 245. The authorities are discussed in the section below. Act 13 of 1995. Ivger (Pty) Ltd v Engelbrecht & another 1980 (4) SA 81 (T) at 85F. S v Van Niekerk 1972 (3) SA 711 (A) at 724H. See also S v Harber & another 1988 (3) SA 396 (A) at 419D--422H. 20--40 [REVISION SERVICE 2, 1998] EXPRESSION challenge.1 Before expression may be restricted on the grounds that it may prejudice the right to a fair trial, the US Supreme Court has required proof that the expression constitutes a clear and present danger of interference with the administration of justice.2 41 The Canadian Supreme Court has emphasized that a common-law discretion to order a publication ban must be formulated to reflect the principles of the Canadian Charter. In Dagenais v Canadian Broadcasting Corp3 the Supreme Court of Canada held that the pre-Charter rules governing publication bans had inappropriately emphasized the right to a fair trial over the free expression interests of those affected by the ban. It held that a publication ban in the interests of a fair trial is permissible only when the ban is necessary to prevent real and substantial risk to the fairness of the trial because reasonably available alternative measures will not prevent the risk, and the salutary effects of the ban outweigh the deleterious effects to the freedom of expression of those effected by the ban. The court emphasized that the objective of a publication ban is ‘to prevent real and substantial risks of trial unfairness ---- publication bans are not available as protection against remote and speculative dangers’.4 1 Marcus ‘Freedom of Expression under the Constitution’ (1994) 10 SAJHR 140 at 145. As Marcus points out, the decision of the European Court of Human Rights in Sunday Times v The United Kingdom 2 EHRR 245 is more protective of expression than our common-law test in relation to contempt. See also Marcus ‘Afterword: Freedom of Speech and the Administration of Justice ---- Recent Developments’ in Van Niekerk The Cloistered Virtue (1987) 378--85; Cleaver ‘Ruling Without Reasons: Contempt of Court and the Sub Judice Rule’ (1993) 110 SALJ 530; Van der Westhuizen ‘Freedom of Expression’ 286--7. 2 See e g Bridges v California 314 US 252, 62 SCt 190 (1941); Wood v Georgia 370 US 375, 82 SCt 1364 (1962) (contempt citation for news release by sheriff ridiculing on-going grand jury investigation into alleged vote-buying held to be an unconstitutional violation of freedom of speech; clear and present danger test applied); Cox Broadcasting Corp v Cohn 420 US 469, 95 SCt 1029 (1975) (matters transpiring in open court and information released to the public in official court records are by that fact alone made public and no penalty may be imposed for publicizing them); Nebraska Press Association v Stuart 427 US 539, 96 SCt 2791 (1976) (a court order prohibiting reporting in order to ensure a fair trial was struck down because it constituted a prior restraint; the harms alleged were too speculative; there were alternative means short of an order restraining all publication, for reducing the harmful effects of publicity, such as a change of venue, postponement, a careful voir dire of jurors panelled, and sequestration of jurors ---- the case has come to stand for the proposition that ‘gag orders’ designed to protect the right to a fair trial will almost never be constitutional); Landmark Communications, Inc v Virginia 435 US 829, 98 SCt 1535 (1978) (subsequent punishment for violation of statute forbidding release of information about investigation of judicial conduct violates First Amendment). Cf Gentile v State Bar of Nevada 115 LEd 2d 888, 111 SCt 2720 (1991) (state may constitutionally prevent legal representative from making a statement that would have a substantial likelihood of materially prejudicing an adjudicative proceeding). 3 (1995) 120 DLR (4th) 12 (SCC), 25 CRR (2d) 1 (SCC). The Supreme Court of Canada invalidated a publication ban ordered by a trial judge restraining the applicant from broadcasting a fictional programme concerning sexual and physical abuse of children in an orphanage by members of a lay division of brothers until the completion of a criminal trial of four respondents who were members of a Catholic religious order and who had been charged with physical and sexual abuse of children. 4 At 39f. The court set out the following guidelines at 47f--48c for future application of the common-law rule for publication bans: (a) at the motion for the ban the judge should give the media standing (if sought); (b) the judge should, where possible, review the publication at issue; (c) the party seeking the ban bears the burden of proving that the proposed ban is necessary, in that it relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure, that the ban is as limited in scope as possible, and there is proportionality between the salutary and deleterious effects of the ban; (d) the judge must consider all other options besides the ban and must find that there is no reasonable and effective alternative available; (e) the judge must consider all possible ways to limit the ban and must limit it as much as possible; (f) the judge must ensure proportionality between its positive and negative effects. [REVISION SERVICE 2, 1998] 20--41 CONSTITUTIONAL LAW OF SOUTH AFRICA The summary procedure available to punish contempt without first affording the person the opportunity to be heard has been criticized at common law,1 and may be an unconstitutional infringement of ss 22 and 25(3) of Chapter 3.2 (iii) Access to courts 42 related topic concerns the extent to which s 15(1) affords a right of access to judicial A proceedings to the public and the media. In this context the freedom of expression and of the press may also conflict with the right to a fair trial. At common law the public has, in general, a right of access to judicial proceedings.3 Section 16 of the Supreme Court Act4 provides that all proceedings take place in open court unless the court orders otherwise. In certain circumstances, however, the public may be excluded and the proceedings may be held in camera.5 Access to courts may be inherent in the freedom of speech and expression,6 as well being a component of the right of access to information protected by s 23,7 and 1 S v Nel 1991 (1) SA 730 (A) at 749I--750C. 2 See e g In re Muskwe 1993 (2) SA 514 (ZH) (the right to be tried by an independent and impartial tribunal enshrined by s 18 of the Constitution of Zimbabwe is denied where same judicial officer at whom the alleged contemptuous conduct was directed presides at the contempt proceedings). 3 R v Maharaj 1960 (4) SA 256 (N); Financial Mail (Pty) Ltd v Registrar of Insurance 1966 (2) SA 219 (W) at 221 (in general the civil court never closes its doors to the public). 4 Act 59 of 1959. 5 For example, s 153(1) of the Criminal Procedure Act permits the presiding officer in judicial proceedings to direct that a criminal trial be held in camera if it is in the interest of the security of the state or of good order, public morals or the administration of justice, while s 153(3) empowers a judicial officer to hold a criminal trial in camera where the offence relates to indecency or extortion. See also, in the context of Commissions, s 4 of the Commissions Act 8 of 1947, which empowers the chairman of a commission to exclude persons whose presence is ‘not necessary or desireable’. In the context of courts martial s 78(3) of the Military Discipline Code, which is Schedule 1 to the Defence Act 44 of 1957, provides for in camera proceedings on grounds of good order or public morals or the administration of justice or for reasons of security. Where there is a reasonable probability of prejudice arising from particular evidence a witness may testify behind closed doors. See also S v Leepile 1986 (2) SA 346 (W); S v Pastoors 1986 (4) SA 222 (W). 6 See e g Cox Broadcasting Corp v Cohn 420 US 469, 95 SCt 1029 (1975) (broadcasting the name of a rape victim protected expression where such information was learned from a reading of the public documents); Landmark Communications, Inc v Virginia 435 US 829, 98 SCt 1535 (1978) (First Amendment protection afforded to newspaper accurately reporting that a particular judge was under investigation by judicial review commission in violation of state statute making it a crime to breach confidentiality of the commission’s proceedings); Government of the Republic of South Africa v ‘Sunday Times’ Newspaper & another 1995 (2) SA 221 (T), 1995 (2) BCLR 182 (T) (interdict against publication sought on the basis of confidentiality provisions in respect of commission’s proceedings; interdict refused as a prior restraint); Richmond Newspapers, Inc v Virginia 448 US 555, 100 SCt 2814 (1980) (public has First Amendment right of access to judicial proceedings, and ability of judges to resort to in camera proceedings severely curtailed) followed in S v Leepile & others (4) 1986 (3) SA 661 (W) and Botha v Minister van Wet en Orde en andere 1990 (3) SA 937 (W) at 941B--J. See also Edmonton Journal v Alberta [1989] 2 SCR 1326, 64 DLR (4th) 577 (statutory prohibition on reporting on matrimonial litigation violates freedom of expression right of public to scrutinize and criticize operation of courts, and statutory ban wider than necessary to safeguard individual privacy). Cf Re Southam and the Queen (No 2) (1986) 53 OR (2d) 663 (CA) (statutory provision empowering judge, in exercise of discretion, to exclude press from attendance at trials of young offenders upheld as reasonable limit upon s 2(b); however, non-discretionary absolute ban would not survive); Canadian Newspapers Co v Canada (A-G) [1988] 2 SCR 122, 52 DLR (4th) 690 (a mandatory ban on publication of the names of complainants in sexual assault cases violates s 2(b), but constitutes a reasonable limit in furthering the interest in having complaints reported by protecting the identities of complainants). 7 See below, Klaaren ‘Access to Information’ § 24.3. 20--42 [REVISION SERVICE 2, 1998] EXPRESSION a separately protected right under s 22. Restrictions upon the publication of judicial proceedings may also limit s 15(1).1 Although certain restrictions on access may be reasonable, this will no longer be assumed. Such restrictions will require justification through a balancing of the various interests at stake. 43 The leading Canadian decision in the area of public access to criminal proceedings is Canadian Broadcasting Corporation v New Brunswick (Attorney-General).2 On application by the state, and with the consent of the accused, the trial judge had excluded the public and the media from parts of a sentencing hearing. The judge had made the order in terms of a statutory provision which provided that proceedings against an accused shall be held in open court. But the statute empowered a judicial officer, if he or she ‘is of the opinion that it is in the interests of public morals, the maintenance of order or the proper administration of justice to exclude all or any members of the public from the court room for all or part of the proceedings . . .’. A broadcaster brought an application for judicial review of the order, claiming that the statute infringed the guarantee of freedom of expression. Because the order had been made in the interests of the ‘proper administration of justice’, the constitutionality of the other grounds for exclusion of the public and the media, namely public morals and the maintenance of order, were not considered by the Supreme Court of Canada. The court held that the statute infringed the freedom of expression because its purpose was to restrict expressive activity and the free flow of ideas and information. It said that freedom of expression protects the freedom of the press to comment on the courts as an essential aspect of a democratic society and the freedom of listeners to obtain information that allows public criticism of the courts. Any competing considerations had to be considered under the limitation clause of the Canadian Charter. The court then held that protecting the proper administration of justice was a pressing and substantial objective, that there was a rational connection between this objective and the discretionary power afforded to judicial officers to exclude the public when necessary in the interests of the proper administration of justice, that the discretion would serve to impair the right as little as possible, and that a disproportionate order could be corrected by judicial review. The statute was consequently saved as a reasonable and justifiable limit on the freedom of expression. This, however, did not end the inquiry and the court then considered the manner in which the discretion had to be exercised. In order for an order excluding the public and the media from attendance to pass constitutional scrutiny the court insisted on compliance with strict requirements. In exercising his or her discretion the judge must conclude that the particular order is necessary, that there are no reasonable and effective alternatives, that the order is as limited as possible, and that its salutary effects are proportionate to its deleterious effects. The Supreme Court of Canada also emphasized that the burden of displacing the general rule of openness lay on 1 See e g s 8(3) of the Child Care Act 74 of 1983, which prohibits publication without authorization by the presiding officer of information relating to proceedings in a children’s court which may reveal the identity of any child; clause 3(3) of Schedule 1 to the Independent Broadcasting Act 153 of 1993, which, as part of the Code of Conduct to which licensees must adhere, provides that the identities of rape victims and other victims of sexual violence shall not be divulged without the prior consent of the victim concerned. 2 (1996) 139 DLR (4th) 385 (SCC). [REVISION SERVICE 2, 1998] 20--43 CONSTITUTIONAL LAW OF SOUTH AFRICA the party making the application and that there must be a sufficient evidentiary basis for the exercise of a judicial discretion. On the facts of the case the court found that the requirements had not been satisfied and that the discretion had been improperly exercised. The exclusion order was quashed and the media and the public were granted access to the transcript of the in camera proceedings. 44 An important statutory limitation to the right of public access to judicial proceedings was introduced in 1993 by the insertion of a new s 170A in the Criminal Procedure Act 51 of 1977.1 The section enables the court to appoint a competent person as an ‘intermediary’ where it appears to the court that any witness under the age of 18 years would be exposed to undue mental stress or suffering if he testifies at such proceedings.2 Where the court appoints an intermediary it may direct that the witness give evidence at any place ‘which is so situated that any person whose presence may upset that witness, is outside the sight and hearing of that witness’.3 The constitutional validity of this section was considered by a Full Bench of the Eastern Cape Division of the Supreme Court in K v The Regional Magistrate NO & others.4 The court considered that the constitutional entitlement to a public trial ‘ensures that secret trials employed by totalitarian states will not be tolerated under the Constitution: but it does not guarantee the right of the accused and the witness to be physically present in the same room’.5 The court found that the section did not violate the accused’s right to a public trial ‘merely because the complainant gives evidence in a separate room’. Moreover, the provision did not result in the infringement of any other constitutional right of an accused person to a fair trial. The court observed that ‘a proper balance between the protection of a child witness and the rights of the accused to a fair trial can . . . be achieved by permitting the witness to testify in congenial surroundings and out of sight of the accused’.6 (d) Sexually explicit expression A variety of statutes and common-law rules regulate or prohibit expression which is ‘indecent or obscene’.7 In finding the Indecent or Obscene Photographic Matter Act to be unconstitutional the majority of the Constitutional Court confined their finding to a violation of the 1 The section was inserted by s 3 of the Criminal Law Amendment Act 135 of 1991 and came into operation on 30 July 1993. 2 Section 170A(1). 3 Section 170A(3)(b). 4 1996 (1) SACR 434 (E), 1996 (3) BCLR 402 (SE). The parties consented to the jurisdiction of the Supreme Court in terms of s 101(6) of the Constitution. 5 At 447c (SACR). 6 At 448d--e (SACR). 7 The two principle statutes in terms of which censorship was effected in the realm of indecency and obscenity were the Publications Act 42 of 1974 and the now invalid Indecent or Obscene Photographic Matter Act 37 of 1967. The Publications Act has been repealed and replaced by the Films and Publications Act 65 of 1996, Other statutes, however, also touch upon the subject. Section 19(6) of the Sexual Offences Act 23 of 1957 and s 160(d)(i) of the Liquor Act 27 of 1989 have been applied to various forms of ‘adult entertainment’. At common law the offence of public indecency comprises unlawfully, intentionally and publicly performing an act which tends to deprave or corrupt the morals of others or which outrages the public sense of decency. See, for example, S v W 1975 (3) SA 841 (T); S v K 1983 (1) SA 65 (C). 20--44 [REVISION SERVICE 2, 1998] EXPRESSION right to privacy guaranteed in s 13 of the Constitution.1 Section 2 of the Act prohibited the possession of ‘indecent or obscene photographic matter’, which was defined to include photographic matter ‘depicting, displaying, exhibiting, manifesting, portraying or representing sexual intercourse, licentiousness, lust, homosexuality, lesbianism, masturbation, sexual assault, rape, sodomy, masochism, sadism, sexual bestiality or anything of a like nature’. Didcott J, speaking on behalf of the majority, found that the prohibition on the possession of such material constituted an invasion of personal privacy. He stated that the invasion was aggravated ‘by the preposterous definition of ‘‘indecent or obscene photographic matter’’ ’. The evil of the statute was its overbreadth. Didcott J observed that ‘so widely has it been framed that it covers, for instance, reproductions of not a few famous works of art, ancient and modern, that are publicly displayed and can readily be viewed in major galleries of the world’.2 45 The constitutional validity of the Publications Act 42 of 1974 has been argued in the Constitutional Court.3 However, the Act was repealed by the Films and Publications Act 65 of 1996 prior to the court delivering its judgment. Consequently the court, stating that a declarator is a discretionary remedy, concluded that the questions raised were academic and declined to grant a declaratory order. US jurisprudence attempts to draw a line between sexually explicit expression and obscenity, and affords no constitutional protection to the latter where it has no redeeming social importance.4 The US Supreme Court has concluded that nude dancing is protected expressive conduct at the outer perimeter of the First Amendment and is not obscene.5 The state interests purportedly served by banning the sale and display of obscene materials include responding to evidence of a link between obscenity and the commission of sex crimes, preventing decline in the quality of life and the tone of commerce in city centers, and upholding the general moral tone of society.6 The following forms of expression have been 1 Case & another v Minister of Safety and Security & others 1996 (3) SA 617 (CC), 1996 (5) BCLR 609 (CC). In her minority judgment Mokgoro J concurred with the majority that s 2 of the Act infringed the right to privacy. In addition, however, the judge held that the impugned provision also unjustifiably infringed s 15(1) of the Constitution. Mokgoro J held that sexually explicit expression was protected by the guarantee of freedom of expression. Moreover, she concluded that the freedom of expression includes the right to ‘receive, hold and consume expression transmitted by others’: Case (supra) at para 25. Consequently, the possession of sexually explicit material enjoyed protection under s 15(1). For comment on the court’s decision, see N Smith ‘Policing Pornography’ (1997) 13 SAJHR 292. 2 At para 91. 3 JT Publishing (Pty) Ltd v Minister of Safety and Security & others 1997 (3) SA 514 (CC), 1996 (12) BCLR 1599 (CC). 4 Roth v US 354 US 476, 77 SCt 1304 (1957) (Brennan J: First Amendment jurisprudence affords no constitutional protection to obscenity which is utterly without redeeming social importance, and consequently not within the area of constitutionally protected speech or press, but First Amendment concerns must and do limit the acceptable definition of obscenity); Miller v California 413 US 15, 93 SCt 2607 (1973) (material may be banned as obscene if (i) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; and (ii) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and (iii) the work, taken as a whole, lacks serious literary, artistic, political or scientific value.) 5 Barnes v Glen Theatre, Inc 115 LEd 2d 504, 111 SCt 2456 (1991). 6 Paris Adult Theatre I v Slaton 413 US 49, 93 SCt 2628 (1973). For a critique of the validity of these state interests, and a more general discussion of obscenity, see Tribe American Constitutional Law 904--28. [REVISION SERVICE 2, 1998] 20--45 CONSTITUTIONAL LAW OF SOUTH AFRICA banned as being obscene in the United States: representations of children engaged in sexual conduct1 and the private possession of child pornography.2 However, the private possession3 and mailing4 of other obscene material is protected. 46 The definition of obscenity has been subject to criticism on the grounds that it is difficult to apply in practice, unstable, and even unintelligible.5 Attempts to define pornography for constitutional purposes have been even less successful.6 In what will become a landmark judgment on the impact of regulation of the Internet on freedom of expression, the US Supreme Court invalidated the Communications Decency Act, which sought to protect minors from harmful (because ‘obscene’ or ‘indecent’) materials on the Internet. In Reno v American Civil Liberties Union7 the majority of the court held that the statutory phrases ‘indecent transmission’ and ‘patently offensive display’ abridged the freedom of speech. The impugned provisions could not be analysed as a form of time, place and manner regulation8 because they were a content-based blanket restriction on speech. Although the court recognized that the government has a legitimate interest in protecting minors from potentially harmful materials, it concluded that the impugned provisions, in light of their vagueness and breadth, were not narrowly tailored to this legitimate end. Instead, they suppressed a large amount of speech which adults were constitutionally entitled to receive.9 It was also important that Congress had not made detailed legislative findings and that less restrictive alternatives were available in the form of user-based software which would enable parents to prevent their children from accessing material which they believed was inappropriate. Recent debates about the regulation of certain forms of sexually explicit expression seek to locate pornography in the context of violence against women. Such arguments attempt to demonstrate a causal link between pornography and sexual harm, and to suggest that the graphic, sexually explicit subordination of women undermines equality 1 2 3 4 5 6 New York v Ferber 458 US 747, 102 SCt 3348 (1982). Osborne v Ohio 495 US 103, 110 SCt 1691 (1990). Stanley v Georgia 394 US 557, 89 SCt 1243 (1969). US v Reidel 402 US 351, 91 SCt 1410 (1971). See e g Tribe American Constitutional Law at 904--28. The Oxford English Dictionary defines pornography as ‘description of the life, manners, etc of prostitutes; hence, the expression or suggestion of obscene or unchaste subjects in literature or art’. See e g Jacobellis v Ohio 378 US 184 at 197, 84 SCt 1676 (1964) (Stewart J concurring: conceding that he may never be able to describe the ‘hard-core pornography,’ which could constitutionally be banned under the Roth test, but observing that ‘I know it when I see it, and the motion picture involved in this case is not that’). As Heins points out in Sex, Sin, and Blasphemy: A Guide to America’s Censorship Wars (1993) 139, ‘the term ‘‘pornography’’ . . . embraces a wide range of written and pictorial aphrodisiacs’. 7 No 96-511. Unreported judgment, decided 26 June 1997. 8 On time, place and manner restrictions on expression, see above, § 20.7(b). 9 In his judgment Stevens J recognized that the universe of cyberspace included ‘the vast democratic fora of the Internet’. The vagueness of the statute was of particular concern. The Act sought to regulate speech on the basis of its content, with obvious ‘chilling effects’ upon speech. It was also a criminal statute with penalties including up to two years of imprisonment. 20--46 [REVISION SERVICE 2, 1998] EXPRESSION constitutes a form of gender discrimination and may constitute a form of group defamation or hate speech.1 47 In 1983 two US feminists, Catherine MacKinnon and Andrea Dworkin, drafted a model antipornography ordinance defining pornography as, inter alia, ‘the graphic sexually explicit subordination of women, whether in pictures or in words’. The ordinance was implemented in Minneapolis, Minnesota and Indianapolis, Indiana, but faced an immediate and successful constitutional challenge.2 Canadian jurisprudence has also been concerned with the threat posed to freedom of expression by attempts to prohibit representations of explicit sexual activity on the grounds of obscenity.3 (e) Hate propaganda Hate propaganda may be defined broadly as expressive conduct which insults a racial or ethnic group, whether by suggesting inferiority or by effecting exclusion.4 This definition would include both the virulent personal epithet and political speeches, tracts or other media 1 See e g Itzin (ed) Pornography. Women Violence and Civil Liberties. A Radical New View (1992); Lahey ‘The Charter and Pornography’ in Weiler & Elliot (eds) Litigating the Values of a Nation (1986) 265. A useful exposition of the debate, together with references for further reading, is contained in Van der Westhuizen ‘Freedom of Expression’ 283--5. See also Hogg Constitutional Law of Canada sec 40.11: ‘On this basis, what is offensive about pornography is not the explicit portrayal of sex, nor the flouting of conventional morality, but rather the reinforcement of discrimination against women . . . Even on this basis, laws banning pornography raise major problems of definition and create risks of the serious suppression of ideas. However, the advancement of the value of equality does constitute a far more important objective than the protection of conventional morality, and greatly strengthens the argument that can be made for s 1 [limitation clause] justification.’ For a rejection of arguments for restricting pornography because it subordinates women, see Heins Sex, Sin, and Blasphemy 137--64. 2 American Booksellers Assoc, Inc v Hudnut 771 F2d 323 (7th Cir 1985), aff’d 475 US 1001 (1986) (striking down the ordinance as an impermissible content-based regulation of speech that violated the First Amendment and amounted to a form of thought control). It should be noted that the ordinance was vigorously opposed in an amicus brief filed with the court by a coalition of anti-censorship feminist scholars and activists. See Heins Sex, Sin, and Blasphemy 160. 3 The leading Canadian case in this area is R v Butler (1992) 89 DLR (4th) 449 (SCC). The operator of a sex shop was charged under the Canadian Criminal Code with the sale and possession for sale of obscene material. ‘Obscenity’ was deemed under the Code to be ‘any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely crime, horror, cruelty and violence . . ..’ In challenging the constitutionality of the statutory provisions, the accused invoked s 2(b) of the Canadian Charter. The Supreme Court of Canada unanimously held that the statutory provisions infringed s 2(b) because they were clearly content-based restrictions of expression. In determining whether the restrictions were justifiable in terms of the limitation clause the court had first to consider whether the definition of ‘obscenity’ in the Code was not so vague that it failed to satisfy the threshold requirement that any limitation of a Charter right be ‘prescribed by law’. The court had regard to judicial decisions interpreting ‘obscenity’ to refer not to prevailing morality but to appreciable social harms, particularly to women. Only by ‘reading in’ what Hogg refers to as the judicial ‘gloss of harmfulness’ (Constitutional Law of Canada sec 40.11) was the definition of ‘obscenity’ precise enough to contain an intelligible standard and consequently to qualify as a ‘law’ for purposes of the limitation clause. Finally, the court held that the restrictions were justifiable because they did not prohibit sexually explicit material that was not accompanied by violence or degradation, did not effect the private possession of obscene materials, and did not impact upon sexually explicit expression which was required by the ‘internal necessities’ of a serious work of art. 4 Neisser ‘Hate Speech in the New South Africa: Constitutional Considerations for a Land Recovering from Decades of Racial Repression and Violence’ (1994) 10 SAJHR 336 at 337. The article contains useful references to US literature on hate speech (at 336n1). [REVISION SERVICE 2, 1998] 20--47 CONSTITUTIONAL LAW OF SOUTH AFRICA propaganda addressed to the public more generally.1 A narrower definition would view hate propaganda as expression which constitutes an incitement, particularly to racial hatred.2 48 For over 60 years South Africa has had statutory provisions which criminalize the fomenting of racial hostility.3 Section 62 of the Internal Security Act4 prohibited the causing, encouragement or fomenting of feelings of hostility between different population groups. The section was repealed by s 14(2) of the Regulation of Gatherings Act 205 of 1993, which will come into effect on a date to be proclaimed.5 Section 8(5) of Act 205 of 1993 contains a new racial hostility clause, which provides that ‘no person present at or participating in a gathering or demonstration shall by way of banner, placard, speech or singing or in any other manner incite hatred of other persons or any group of other persons on account of differences in culture, race, sex, language or religion’. This provision accords with the narrower definition of hate propaganda, prohibiting such expression only in the context of incitement. This is one arena in which the conflict between freedom of expression and dignity and equality will play itself out against the background of the constitutional commitment to reconciliation. The contribution of hate propaganda to political debate will have to be balanced against the ways in which such expression deters participation in public life, offends human dignity, and consequently undermines equality.6 The need to prevent incitement of racial hatred is widely recognized in international instruments.7 In the leading Canadian hate speech case of R v Keegstra8 the defendant had been found guilty of violating the hate propaganda prohibitions of the Canadian Criminal 1 Neisser ‘Hate Speech in the New South Africa’ 337. 2 See Coliver (ed) Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination (1992). For arguments against regulation of hate propaganda, see e g A Borovoy When Freedoms Collide (1988) at 40--53; Neier Defending My Enemy (1979). 3 For a history of such laws, see Marcus ‘Racial Hostility: The South African Experience’ in Coliver Striking a Balance 208--22. 4 Act 74 of 1982. 5 Section 47(2)(c) and (d) of the Publications Act 42 of 1974 also made it possible to prohibit expression which brought any section of the inhabitants of the Republic into ridicule or contempt or which is harmful to relations between any section of the inhabitants of the Republic. These subsections were repealed in the interests of free and fair political activity by the Abolition of Restrictions on Free Political Activity Act 206 of 1993. 6 For examples of recent contributions to the debate around hate speech in South Africa, see Meyerson ‘ ‘‘No Platform for Racists’’: What Should the View of Those on the Left Be?’ (1990) 6 SAJHR 394; Cockrell ‘ ‘‘No Platform for Racists’’. Some Dogmatism Regarding the ‘‘Limits of Tolerance’’ ’ (1991) 7 SAJHR 339; Van der Westhuizen ‘Freedom of Expression’ 274--8 (‘To prohibit hate speech or propaganda mainly because it brings a population ‘‘into ridicule or contempt’’ or because it is offensive to individuals or groups seems unreasonably vague and restrictive. On the other hand, to require the advocacy of racial hatred to be intended or directed to invite or produce imminent violence, lawless action, or other similar harm as well as the likelihood of in fact producing such harm would be ineffective. To prohibit hate speech when it is intended to undermine or destroy the underlying values justifying the protection of freedom of expression, namely the democratic process, the free and equal co-existence of human beings and the enhancement of knowledge and exchange of ideas is not unreasonable or unjustifiable in a democratic society based on freedom and equality’ (at 277, emphasis in original).) 7 See e g art 20 of the International Covenant on Civil and Political Rights; art 4 of the International Convention on the Elimination of All Forms of Racial Discrimination. See also Jersild v Denmark, Judgment of 23 September 1994, Series A No 298, (1995) 19 EHRR 1 (on the distinction between hate speech itself, which is not protected, and publication of such speech by journalists in the course of a news broadcast, which is protected). See also L Johannessen ‘Jersild v Denmark’ (1995) 11 SAJHR 123. 8 [1990] 3 SCR 697, 3 CRR (2d) 193. 20--48 [REVISION SERVICE 2, 1998] EXPRESSION Code for teaching that the Holocaust did not occur. A bare majority of the Supreme Court of Canada held that hate propaganda was protected under s 2(b) because the guarantee of freedom of expression covered all messages ‘however unpopular, distasteful or contrary to the mainstream’.1 In accordance with this content-neutral approach the scope of s 2(b) could not be narrowed by considering the impact of competing Charter rights such as equality, at the first stage of the analysis. Nevertheless, in taking account of competing values at the limitation clause stage of the inquiry, the majority upheld the impugned statutory provisions as being demonstrably justified in a free and democratic society.2 49 Under the First Amendment, by contrast, hate propaganda and group defamation almost certainly enjoy full constitutional protection, except where such expression amounts to ‘fighting words’.3 In RAV v City of St Paul 4 the US Supreme Court held that a hate speech statute violated the requirement of content-neutrality and, therefore, violated freedom of speech. Several teenagers had burned a cross inside the yard of a black family living across the street. They were charged under a St Paul hate speech ordinance.5 The court was unanimous in holding that the statute on its face violated the First Amendment. The majority concluded that the statute could not stand because it was impermissibly content-based, prohibiting otherwise permitted speech solely on the basis of the subjects the speech addressed. The minority concluded that the statute was unconstitutional because it was overbroad. In their view it reached words which not only tend to incite a breach of the peace, and which may be constitutionally prescribed under the fighting words doctrine of Chaplinsky v New Hampshire,6 but also words which merely hurt feelings, albeit feelings based on 1 R v Keegstra at 729. 2 But cf R v Zundel [1992] 2 SCR 731, 95 DLR (4th) 202 (accused charged with spreading false news by publishing a pamphlet claiming that the Holocaust was a fraud; the criminal offence of spreading false news violates s 2(b); the doctrine of content-neutrality protects falsehoods as well as truths; furthermore, the false-news offence could not be justified under s 1). As Hogg Constitutional Law of Canada sec 40.9 points out, the difference in outcome relates to the fact that the hate-propaganda law in Keegstra was specifically aimed at wilful promotion of racial hatred, whereas the false-news law in Zundel was overbroad. See also Ross v New Brunswick School District No 15 (1996) 133 DLR (4th) 1 (SCC), 35 CRR (2d) 1 (SCC), where the Supreme Court of Canada upheld as a reasonable and justifiable limit on freedom of expression a board of inquiry order removing from the classroom a teacher who had published anti-Jewish writings outside the classroom. However, the court invalidated an order prohibiting the teacher’s anti-Jewish writings while employed in a non-teaching position. The court held that this order was unjustified because it did not minimally impair the teacher’s freedom of expression. The latter order was severed from the former order, which survived independently. 3 In Beauharnais v Illinois 343 US 350, 72 SCt 725 (1952) a 5--4 majority recognised an action for group defamation without requiring proof of a clear and present danger of breach of the peace. Although never explicitly overruled, certain commentators suggest that the Beauharnais case is probably no longer good law in light of New York Times v Sullivan 376 US 254, 84 SCt 710 (1964) and its progeny. See also Collins v Smith 578 F2d 1197 (7th Cir 1978) (even speech which undeniably causes psychic pain to listeners may not be suppressed where the pain derives from the content of the speech itself; consequently, a local ordinance designed to neutralize a march by an American Nazi group through Skokie, Illinois, a community with many Holocaust survivors, was held unconstitutional on the grounds that the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers). 4 505 US 377, 112 SCt 2538 (1992). 5 The ordinance provided that ‘whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, colour, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanour’. 6 315 US 568, 62 SCt 766 (1942). [REVISION SERVICE 2, 1998] 20--49 CONSTITUTIONAL LAW OF SOUTH AFRICA race, colour or creed, which may not be prohibited. The minority approach therefore points to a distinction between fighting words or the incitement of racial hostility, the ‘hurled epithet’ situation, on the one hand, and hate propaganda, the racist discourse, on the other. Although regulation of the former might pass constitutional muster, the latter would enjoy protection as a contribution, however distasteful, to public debate. The status of hate propaganda under s 15(1) raises certain difficulties. If it can be shown that hate speech furthers the values underpinning freedom of expression, before recourse is had to considering other constitutional rights and guarantees such as dignity and equality, then the limitation clause will be the major focus of analysis.1 If our courts adopt a doctrine of content-neutrality, as the Canadian courts have done, then hate propaganda, whether in the form of the inciting epithet or the propagandistic tract, will fall within s 15(1) and justifiable limitations will require consideration on a case-by-case basis. 50 Our bifurcated guarantee creates a particularly acute dilemma where hate speech is concerned.2 The difficulty with regulating hate speech is that it relates, more often than not, to politics. The propagandistic tract, no matter how hateful, will usually be intended and received as a contribution to political deliberation. Often the same may be said about hurled racial epithets, although it may be possible to argue that such expression carries insufficient propositional content to qualify as an utterance which is intended to be and is received as ‘political’. Since political expression is afforded maximum protection, hate propaganda may be extremely difficult to regulate. We submit that restrictions upon fighting words as forms of incitement will be more easily justified under s 33(1) than would restrictions upon racist propaganda. (f) Commercial expression Commercial expression has been defined as speech which proposes a commercial transaction.3 This area of expression relates primarily to commercial advertising of goods or services for profit, but is wide enough to include expression in the context of unlawful competition, including disparagement and economic trade boycotts. Most, but not all, commercial expression is at some remove from the core of freedom of expression4 and is 1 For an approach which would define the ambit of the right itself by recourse to the values underpinning it, and then determine whether hate speech would fall within the ambit of freedom of expression, see Neisser ‘Hate Speech in the New South Africa’ 345--8. Neisser argues that artistic, scientific and political expression involving racial invective does indeed further the values underpinning the guarantee, but that the hurled racial epithet may fall outside the ambit of the section, as furthering no speech-related values. 2 See Sunstein Partial Constitution 244 (the hardest case for a theory of freedom of expression which explicitly grants primacy to political speech is hate speech). 3 Central Hudson Gas & Electric v Public Services Commission 447 US 557 at 562, 100 SCt 2343 (1980). 4 See, for example, RJR-MacDonald Inc v Canada (AG) (1995) 127 DLR (4th) 1 (SCC) at 53--6, 31 CRR (2d) 189 at 270--2. 20--50 [REVISION SERVICE 2, 1998] EXPRESSION best located within the protected periphery of the guarantee.1 In America a reduced level of constitutional protection is extended to commercial expression. The test for valid statutory regulation of commercial advertising is set out in Central Hudson Gas v Public Services Commission.2 REVISION SERVICE 5, 1999 51 The leading Canadian case analysing commercial expression is Irwin Toy Ltd v Quebec (A-G).3 The Canadian Charter both adopts a content-neutral approach to defining expression and affords no greater protection to political, artistic or cultural expression than to commercial expression. Consequently, commercial expression is within the ambit of s 2(b). The Supreme Court of Canada held, in Irwin Toy, that a statutory prohibition on all advertising directed at children under 13 years of age reflected a governmental purpose to control or restrict the intent to convey meaning; that is, the statute was a content-based regulation.4 Notwithstanding the prima facie infringement of s 2(b), the majority upheld the statutory prohibition as a reasonable limitation. In RJR-MacDonald Inc v Canada (A-G)5 the Supreme Court of Canada unanimously held that federal legislation prohibiting the advertising of tobacco products infringed freedom of expression. A bare majority of the court held that both the ban on the advertising and promotion of tobacco products, and the requirement to place unattributed health 1 In Virginia State Board of Pharmacy v Virginia Citizens Consumer Council 425 US 748 at 762, 96 SCt 1817 (1976) the US Supreme Court for the first time extended First Amendment protection to pure commercial advertising which did no more than propose a commercial transaction at a particular price. In reaching its conclusion the court took the view that the dissemination of commercial information through advertising performs important public interest functions of ensuring the free flow of information indispensable to proper resource allocation in a free market. Thus after Virginia State Board of Pharmacy the state may not regulate truthful commercial information about entirely lawful activities solely because it fears the harm that would result from the impact of the information upon its recipients. See e g Linmark Associates Inc v Willingboro 431 US 85, 97 SCt 1614 (1977) (the state may not decide that the ignorance of its citizens is preferable to the free flow of truthful information: a prohibition on the display of ‘For Sale’ and ‘Sold’ signs on city real estate in order to prevent white flight could not be upheld because the town had failed to demonstrate that the ordinance was necessary to achieve the objective of stable, racially integrated housing); Carey v Population Services International 431 US 768, 97 SCt 2010 (1977) (a state prohibition on advertising contraceptives is unconstitutional). But see Posadas de Puerto Rico Association v Tourism Company of Puerto Rico 478 US 328, 106 SCt 2968 (1986) (since the state has the power to ban harmful activities and products it has the lesser power to ban advertising of such products). Note that US jurisprudence affords no constitutional protection to false or misleading commercial speech. 2 447 US 557, 100 SCt 2343 (1980). Provided that the commercial speech concerns lawful activity which is neither false, deceptive or misleading, regulation of such speech will be upheld if the governmental interest in regulating the commercial speech is substantial, if the regulation directly advances that governmental interest, and if it does so in a manner that is no more extensive than necessary to serve the governmental interest. This last leg of the test was diluted in Edenfield v Fane 123 LEd 2d 543, 113 SCt 1792 (1993) so that the means chosen need no longer be necessary but must now be ‘tailored in a reasonable manner’ to serve the governmental interest. However, in 44 Liquormart Inc v Rhode Island 134 LEd 2d 711 (1996) the US Supreme Court invalidated Rhode Island’s complete ban on liquor price advertising. There was no agreement as to the proper standard for determining the validity of the liquor price advertising ban. Nevertheless, the court was unanimous in holding that a total ban on truthful, non-misleading price advertising about a lawful product violated the First Amendment. 3 (1989) 58 DLR (4th) 577 (SCC). 4 Irwin Toy Ltd v Quebec (A-G) at 610--11 (holding furthermore that either an unconstitutional purpose or an unconstitutional effect might invalidate legislation). 5 (1995) 127 DLR (4th) 1 (SCC), 31 CRR (2d) 189. [REVISION SERVICE 5, 1999] 20--51 CONSTITUTIONAL LAW OF SOUTH AFRICA warnings on tobacco packages could not be justified under the limitation clause of the Canadian Charter.1 52 In a decision which has ramifications beyond the field of commercial expression the Zimbabwe Supreme Court considered whether the monopoly held by the Posts and Telecommunications Corporation over the operation of public telecommunications services and its consequential inability under law to license the applicant to become a provider of a mobile cellular telephone service violated freedom of expression. In Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation2 a unanimous court held that the monopoly granted to the Corporation hindered the right of everyone to freedom of expression by restricting or interfering with the means of expression.3 The infringement could not be justified under the limitation clause because the legislative objectives were not sufficiently important to warrant infringing the right, there was no rational connection between the monopoly and the stated objectives, and the monopoly was not the least drastic means of attaining the stated objectives.4 In reaching this conclusion the court noted that it is the effect of the monopoly, and not its purpose, which was decisive,5 and that it was irrelevant to the determination of the case that the applicant’s predominant motivation lay in prospective financial gain and not so much in the desire to vindicate the right of freedom of expression.6 In South African Post Office Ltd v Van Rensburg & another7 the court rejected an attempt by the respondent to apply the ratio of Retrofit in a challenge to the postal service monopoly enjoyed by the South African Post Office. Lang AJ distinguished Retrofit on the facts by pointing to the absence of evidence which suggested that the postal service monopoly in South Africa interfered with freedom of expression to the extent that the telephone service monopoly had in Zimbabwe. In particular, the respondent had not alleged that the South African public postal service was failing to perform its statutory mandate.8 Another obvious basis of distinction between the two cases was the fact that the South African legislation does not create an absolute monopoly, but effectively authorizes the Minister of Posts and Telecommunications to license private postal services where this is in the public interest.9 An appeal against this decision failed.10 1 The case provides a comprehensive analysis of the considerations raised by restrictions on commercial expression. Nevertheless, comparable litigation under our Constitution would not necessarily lead to the same result. In part this is because of the slender majority in the Supreme Court of Canada. More important, much of the Canadian analysis concerned the question whether or not the legislation amounted to a minimal impairment of the exercise of freedom of expression, which is a sine qua non of justification under the Canadian limitation clause. It is, however, only one factor among several which must be considered under IC s 33(1) and FC s 36. 2 1996 (1) SA 847 (ZS). 3 At 860C. 4 At 862E--866A. 5 At 861H--J. 6 At 854G, 856C. 7 1998 (1) SA 796 (E). 8 At 809H--810F. 9 See s 90A of the Post Office Act 44 of 1958. This point was discussed in the judgment in the context of a challenge based on the right to freedom of trade, occupation and profession, but was not used by Lang AJ as a basis for distinguishing Retrofit. Compare the consideration of freedom of trade, occupation and profession at 804H--806B of the judgment with that of freedom of expression at 809B--810F. 10 Van Rensburg v South African Post Office Ltd 1998 (10) BCLR 1307 (E). 20--52 [REVISION SERVICE 5, 1999] EXPRESSION REVISION SERVICE 3, 1998 52A The Advertising Standards Authority is an independent body set up by the advertising industry to ensure lawful, honest and informative advertising in South Africa. The object of its Code of Advertising Practice is to regulate commercial advertising and to deal with complaints from the public and from members.1 Its provisions may limit s 15(1). Various South African statutes prohibit commercial expression that is false or misleading.2 If false or misleading commercial advertising qualifies for constitutional protection, the above statutory provisions will require justification under s 33(1). 1 Section 57 of the Independent Broadcasting Authority Act 153 of 1993 requires that all broadcasting licensees adhere to the Code of Advertising Practice determined by the Advertising Standards Authority. It is accordingly submitted that the Code has the status of delegated legislation and may accordingly be tested against the dictates of the Constitution. 2 See e g ss 6 and 7 of the Merchandise Marks Act 17 of 1941 (prohibiting false and forged trade marks, and false trade descriptions); s 18(2) of the Medicines and Related Substances Control Act 101 of 1965 (advertisement must comply with prescribed requirements); s 5 of the Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972; ss 37 and 39 of the Trade Metrology Act 77 of 1973; s 33 of the Plant Improvement Act 53 of 1976; s 9(1) of the Trade Practices Act 76 of 1976; s 28 of the Livestock Improvement Act 25 of 1977. [REVISION SERVICE 3, 1998] 20--52A 52B EXPRESSION REVISION SERVICE 2, 1998 The common law of unlawful competition limits commercial expression in various respects.1 Wrongfulness is an element of the delict of unlawful competition. It is determined in light of the boni mores of society. Consequently, s 15(1) is likely to have an effect upon the rules of unlawful competition either indirectly through s 35(3) of the Chapter, or directly if Chapter 3 applies to the common law in suits between private parties. Truthful comparative advertising, which may already be lawful at common law,2 is likely to enjoy constitutional protection. 53 The regulation of advertising by the professions either by statute or through selfregulation by professional codes of conduct may now require justification under the limitation clause.3 Similarly, if s 15(1) includes within its ambit the right not to speak,4 compelled speech in the form of mandatory health warnings on tobacco5 and alcohol products and the listing of ingredients on product labels may also limit freedom of expression and require justification.6 (g) Picketing Picketing obviously involves expressive conduct and qualifies for protection under s 15(1).7 The inquiry under our limitation clause will turn upon the relation between the picketing and free and fair political activity. Where the content of the picket is political it will obviously qualify for maximum protection. Certain forms of labour picketing will probably relate, as a class of expressive activity, to free and fair political activity. To the extent that our courts 1 See e g Ebrahim v Twala & others 1951 (2) SA 490 (W) (direct infringement by harassing competitor’s customers, employees or suppliers); Geary & Son Ltd v Gove 1964 (1) SA 434 (A) at 441 (unlawful competition where defendant knowingly, by word or conduct or both, makes a false misrepresentation); Dun & Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Pty) Ltd 1968 (1) SA 209 (C) (direct infringement of rival’s goodwill by publishing injurious falsehoods about competitor’s business); Brian Boswell Circus (Pty) Ltd & another v Boswell-Wilkie Circus 1985 (4) SA 466 (A) (indirect infringement of goodwill by passing off); Schultz v Butt 1986 (3) SA 667 (A) (where there are no countervailing public interests, copying of design is unfair competition). 2 Post Newspapers (Pty) Ltd v World Printing & Publishing Co Ltd 1970 (1) SA 454 (W). 3 On regulation of advertising by the professions in the US and Canada see e g Ohralik v State Bar Association 436 US 447, 98 SCt 1912 (1978) (the state may prohibit contingency fee solicitation from accident victims in hospital and at home); In re Primus 436 US 412, 98 SCt 1892 (1978) (ACLU solicitation letters offering free legal services in public interest litigation protected as being in furtherance of attorney’s political goals); Edenfield v Fane 123 LEd 2d 543, 113 SCt 1792 (1993) (limited in-person solicitation by accountants permitted); Griffin v College of Dental Surgeons (1989) 64 DLR (4th) 652 (BCCA) (limitation on advertising by dentists infringes s 2(b), but constitutes reasonable limit in the interests of ensuring professional standards of competency and ethics); Rocket v Royal College of Dental Surgeons of Ontario (1990) 71 DLR (4th) 68 (SCC) (overbroad restrictions on advertising by dentists not reasonable limit); Prostitution Reference [1990] 1 SCR 1123 (prostitution lawful in Canada; statute criminalizing communication in a public place for purpose of engaging in prostitution violates s 2(b), but constitutes a reasonable limit). 4 See e g Podlas v Cohen NO & others 1994 (4) SA 662 (T), 1994 (3) BCLR 137 (T) (arguably accepting that freedom of expression includes the right not to speak). 5 See e g RJR-MacDonald Inc v Canada (A-G) (1995) 127 DLR (4th) 1 (SCC), 31 CRR (2d) 189. 6 For a discussion of Canadian doctrine, see Hogg Constitutional Law of Canada sec 40.7(c). 7 In the Canadian context see Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery (1986) 3 DLR (4th) 174 (SCC) at 105 (obiter dictum: recognizing the element of expression in picketing); BCGEU v BC [1988] SCR 214 (an ex parte injunction issued by a judge on his own motion prohibited picketing the courts; the injunction was held to infringe s 2(b) but to constitute a reasonable limit in the interests of unimpeded access to the courts). [REVISION SERVICE 2, 1998] 20--53 CONSTITUTIONAL LAW OF SOUTH AFRICA view the nature of industrial relations, and the conflicting interests of workers and employers, as being fundamental to the political fabric of our society, justifiable limitations on labour picketing will have to be both reasonable and necessary.1 Alternatively, if our courts adopt a case-by-case approach based on the subject-matter of any particular labour picket, reasonable time, place and manner restrictions on picketing will be upheld. Picketing may also be assimilated to commercial expression.2 54 Secondary picketing will probably be analysed in the same manner, except that because such picketing impacts upon third parties who are not immediate parties to the dispute, the requirements of reasonable limitation will probably be more easily satisfied than in case of primary picketing.3 (h) Access to public property In order to exercise their rights to freedom of expression and assembly individuals and collectivities often require the use of public property. Although Chapter 3 protects freedom of assembly4 separately from expression, our common law treats freedom of assembly as a component of freedom of expression.5 In America freedom of assembly is treated as an adjunct of freedom of expression, and access to public property is governed by the ‘public forum’ doctrine.6 The focus upon classifying the nature of the forum, instead of balancing the interests at stake, has been criticized on the grounds that it confuses the issues, is too easily manipulable, and occasionally artificial.7 Canadian jurisprudence attempts to avoid the public forum doctrine in evaluating the right to expression on public property. Canadian courts endeavour to balance the interests without resort to labelling the forum where expression takes place. Thus in 1 See e g Thornhill v Alabama 310 US 88, 60 SCt 736 (1940) (picketing is protected because discussion of conditions in industry and the causes of labour disputes is indispensable to popular government). But see International Brotherhood of Teamsters v Vogt 354 US 284, 77 SCt 1166 (1957) (the court may enjoin peaceful picketing which prevents the legislature from enforcing some public policy). 2 Hogg Constitutional Law of Canada sec 40.8: ‘Picketing is probably best regarded as a kind of commercial expression, since its main purpose is to encourage employees not to work and consumers not to buy. However, like other kinds of commercial expression, the picket line may also convey an implicit, or even explicit political message. Of course, under the broad definition of ‘‘expression’’ established by the Supreme Court of Canada, it does not matter whether the expression is characterized as commercial or political: both kinds are protected.’ Under our limitation clause, of course, a great deal may turn on whether labour picketing is classified as commercial or political expression. 3 See e g Giboney v Empire Storage and Ice Co 336 US 490, 69 SCt 684 (1949) (upholding a state ban on secondary picketing made illegal by state anti-trust laws); NLRB v Retail Store Employees Union et al 447 US 607, 100 SCt 2372 (1980) (upholding NLRB decision that secondary picketing is an unfair labour practice); Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery (1986) 3 DLR (4th) 174 (SCC) (obiter dictum: secondary picketing is protected expression, but the tort of inducing breach of contract is a reasonable limit to prevent the spread of industrial conflict to third parties). 4 Section 16 ‘Assembly, demonstration and petition’. See below, Woolman ‘Assembly’ ch 21. 5 S v Turrell & others 1972 (1) SA 248 (C). 6 Hague v CIO 307 US 496, 59 SCt 954 (1939). Citizens have guaranteed access to streets, parks and other public forums. Speech in such fora may only be regulated in content-neutral ways, and the government must demonstrate that restrictions on speech are narrow and necessary to serve a significant governmental interest. 7 See Tribe American Constitutional Law 989--97. 20--54 [REVISION SERVICE 2, 1998] EXPRESSION Committee for the Commonwealth of Canada v Canada1 the Supreme Court of Canada held that an airport manager’s prohibition on the distribution of political leaflets at the Montreal Airport violated freedom of expression and could not be saved under the limitation clause. Although the result was unanimous, the court divided into three camps in attempting to define the scope of freedom of expression.2 In Ramsden v Peterborough3 the Supreme Court of Canada struck down a municipal by-law prohibiting the placing of posters on any public property.4 55 In In re Munhumeso & others5 the Supreme Court of Zimbabwe was called upon to determine the constitutional validity of a statutory provision requiring the issue of a permit by a regulating authority prior to holding a public procession.6 In interpreting s 11 of the Constitution of Zimbabwe, which guarantees freedom of expression and assembly, the court noted that a procession, an assembly in motion, is a highly effective means of communication not provided by other media, stimulating public attention and discussion and bringing the public into direct contact with those expressing an opinion.7 The court was of the view that the impugned legislation infringed the freedoms of expression and assembly and that it did not prima facie constitute a justifiable limitation thereof. Consequently a rule nisi was issued calling upon the Minister of Home Affairs to show cause why the impugned legislation should not be declared unconstitutional. A different form of access to public property is dealt with by s 15(2). The section may grant individuals a constitutional right of access to the publicly owned media, at least where such access would implicate the concerns of impartiality and the expression of a diversity of opinion. (i) Access to private property To what extent may private property owners exercise their common-law right to determine what forms of expression are permissible on their property? Conversely, do speakers have any right to express themselves on private property without the consent of the owner? A blanket denial of access to all private forums at all times may unconstitutionally limit freedom of expression.8 In America the claims of private property owners have not always trumped the interests of free expression. Most litigation has concerned rights of access to private shopping malls 1 [1991] 1 SCR 139 (SCC), 77 DLR (4th) 385 (SCC). 2 For analysis of the three different approaches to expression on public property articulated in the Committee for the Commonwealth case, see Hogg Constitutional Law of Canada sec 40.12. See also S Woolman & J de Waal ‘Freedom of Assembly: Voting with Your Feet’ in Van Wyk, Dugard, De Villiers & Davis (eds) Rights and Constitutionalism (1994) 292 at 308--14. 3 [1993] SCR 1084, 106 DLR (4th) 233. 4 While the governmental interests in reducing litter, aesthetic blight and traffic hazards would have made some limitation upon postering justifiable, the complete ban failed the ‘least drastic means’ leg of the Canadian limitation clause test. 5 1995 (1) SA 551 (ZS), 1995 (2) BCLR 125 (ZS). 6 The statute empowered a regulating authority to issue directions for controlling public processions, required the issue of a permit before a procession may be conducted, and made it an offence to convene, direct or take part in a public procession for which a permit had not been obtained. 7 In re Munhumeso & others 1995 (1) SA 551 (ZS) at 557G--H, 1995 (2) BCLR 125 (ZS). 8 In Canada the non-application of the Charter to private action means that the guarantee of freedom of expression does not apply in the context of private property rights. See Hogg Constitutional Law of Canada sec 40.12. [REVISION SERVICE 2, 1998] 20--55 CONSTITUTIONAL LAW OF SOUTH AFRICA and the privately owned media. In Amalgamated Food Employees, Local 590 v Logan Valley Plaza1 the US Supreme Court held that a privately owned shopping centre was the functional equivalent of a public business district and that consequently the owner could not resort to state trespass laws to prohibit peaceful union picketing.2 This rule was subsequently narrowed,3 and then overruled in Hudgens v NLRB,4 where the court held that no citizen had a First Amendment right to free expression in a private shopping centre over the objection of the owner.5 It is submitted that the commitment to a well-functioning democratic process would support interpreting s 15(1) in a manner which granted rights of access to certain private property, including privately owned shopping centres. 56 Certain access claims in relation to privately owned media have been recognized in the US. No general First Amendment right of access to privately owned print media has yet been recognized.6 Nevertheless, the public has been granted certain access rights to privately owned broadcast media, in particular, according to the ‘fairness’ doctrine of the FCC, a right to reply to personal attacks and station editorials.7 The traditional basis for distinction between print and broadcast media is that the latter are limited by broadcast spectrum scarcity. This rationale, however, is open to doubt.8 A more secure foundation for a ‘fairness’ doctrine or a right to reply requirement would be in interpreting freedom of expression not merely as a negative right but as imposing positive obligations to further democratic self-government.9 It is submitted that s 15(2) should not be read as excluding by implication all access claims by members of the public to privately owned media. At present the Independent Broadcasting Authority Act specifically requires the equitable treatment of political parties during election periods. In this regard the Act grants a right of access in the form of a statutory right to reply.10 1 391 US 308, 88 SCt 1601 (1968). 2 The court cited Marsh v Alabama 326 US 501, 66 SCt 276 (1946) for the proposition that a company-owned town is equivalent to public property. 3 Lloyd Corp v Tanner 407 US 551, 92 SCt 2219 (1972) (only speech that relates to the operations of the shopping centre enjoys constitutional protection). 4 424 US 507, 96 SCt 1029 (1976). 5 But see Pruneyard Shopping Centre v Robins 447 US 74, 100 SCt 2035 (1980) (California’s wider interpretation of freedom of expression in its own constitution, which guaranteed access to shopping centres for speech, was upheld and determined not to violate the owner’s free speech rights nor to constitute a taking of property without compensation). 6 Miami Herald Publishing Co v Tornillo 418 US 241, 94 SCt 2831 (1974) (invalidating on the basis of the owner’s right to freedom of expression a ‘right to reply’ statute in respect of the print media). 7 See e g Red Lion Broadcasting Co v FCC 395 US 367 at 389--92, 89 SCt 1794 (1969): ‘A licence permits broadcasting, but the licensee has no constitutional right to be the one who holds the licence or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present the views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves . . . It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount . . . It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.’ 8 See Sunstein Partial Constitution 213--14; Van der Westhuizen ‘Freedom of Expression’ 289. 9 See e g Sunstein Partial Constitution 209--13. 10 Act 153 of 1993, s 61. Furthermore, while s 2(n) of the Act protects private broadcasters from undue interference, it also forms the platform for developing a more expansive fairness doctrine which might not be restricted to political parties during election periods. For a fuller discussion of the impact of the Independent Broadcasting Authority Act upon privately owned broadcasting media, see above, § 20.6(b). 20--56 [REVISION SERVICE 2, 1998] EXPRESSION 20.9 FREEDOM OF EXPRESSION IN TERMS OF SECTION 16 OF THE FINAL CONSTITUTION In this section we first highlight and examine the important differences between IC s 15 and FC s 16. We then consider the structure of freedom of expression analysis under the final Constitution and the application of the guarantee. Next we examine the meaning of FC s 16(2). (a) The differences between IC s 15 and FC s 16 There are at least five significant differences between the protection afforded freedom of expression under the interim Constitution and under the final Constitution. 57 First, IC s 15(1) read with IC s 33(1) formed an expressly bifurcated guarantee.1 By contrast, FC s 16(1) read with FC s 36 (the limitation clause) creates a uniform standard of justification and does not explicitly distinguish between different levels of constitutional protection afforded expression, depending upon its nature and content. However, the absence of an express distinction between a political core and protected periphery is unlikely to mean that all expression, regardless of its content, is treated the same for purposes of analysis under FC s 36. In practice, we submit, the courts will appropriately develop a judicial distinction between expression which forms part of the core of freedom of expression because it implicates directly the most important values which the guarantee is designed to protect, and expression which is at some remove from this core.2 The core values of freedom of expression will include ‘the search for political, artistic and scientific truth, the protection of individual autonomy and self-development and the promotion of public participation in the democratic process’.3 The distinction between core and periphery will have a real impact on the manner in which courts apply the factors listed as part of the limitation clause inquiry under FC s 36. How the various applicable factors are weighed, the rigour with which the requirements of the limitation clause are enforced, and the degree of judicial deference to the legislature will all be influenced by whether the expression at issue is close to or further from the core of the guarantee. A rigorous and searching scrutiny will be applied to restrictions on expression which relate to core values. A lower standard of justification will probably be applied to restrictions on expression which is at some remove from these core values. Secondly, FC s 16(1)(b) expressly includes the freedom to receive and impart information or ideas as part of the freedom of expression. IC s 15(1) was silent on this question, although one judge of the Constitutional Court was prepared to conclude that IC s 15(1) embraced the 1 See above, §§ 20.1(a); 20.3; 20.4(c); 20.6(c); 20.8(b) and (e). 2 In this respect, our freedom of expression jurisprudence is likely to share common features with Canadian freedom of expression jurisprudence. In the absence of an express content-based distinction between levels of protection afforded to expression, the Canadian courts have developed a distinction between expression at the core of the guarantee and that which is further removed from the core. This distinction has been an important factor, particularly when the justifiability of limitations on free expression has been at issue. See above, § 20.3(a) n 3 and cases there cited. See also R v Keegstra [1990] 3 SCR 697, 3 CRR (2d) 193 (SCC); Ross v New Brunswick School District No 15 (1996) 133 DLR (4th) 1 (SCC) at 35--6, 35 CRR 1; Canadian Broadcasting Corp v New Brunswick (Attorney-General) (1997) 139 DLR (4th) 385 (SCC) at 407--8. 3 RJR-MacDonald Inc v Canada (Attorney-General) (1995) 127 DLR (4th) 1 (SCC) at 54, 31 CRR (2d) 189. See also above, § 20.2. [REVISION SERVICE 2, 1998] 20--57 CONSTITUTIONAL LAW OF SOUTH AFRICA right to ‘receive, hold and consume the expression transmitted by others’.1 The wording of FC s 16(1)(b) thus endorses this conclusion. 58 Thirdly, although scientific research was considered under the interim Constitution to be part of free expression, academic freedom was not. It was protected, rather anomalously, under the freedom of religion, belief and opinion in IC s 14(1).2 This anomaly has now been rectified and FC s 16(1)(d) expressly protects academic freedom alongside the freedom of scientific research. Fourthly, the express guarantee of impartiality and diversity of opinion in media financed by or under the control of the state, protected by IC s 15(2), has been omitted from FC s 16. IC s 15(2) was considered to be not merely appropriate for the period of transition but to reflect a salutary effort to cultivate a culture of justification.3 It will now be left to legislation to ensure impartiality and diversity. The absence of a provision akin to IC s 15(2) is regrettable. Fifthly, and perhaps of greatest significance, FC s 16(2) contains a set of enumerated exclusions4 which were completely absent from IC s 15. These exclusions will alter both the structure and substance of freedom of expression analysis. Depending on how our courts treat the enumerated exclusions, their very enumeration may have a negative impact on the content of our jurisprudence. IC s 15 left it to the courts to determine whether to adopt a wholly content-neutral approach to the question of the meaning of ‘speech and expression’ for purposes of constitutional protection, or a definitional approach that would exclude certain categories of expressive activity from constitutional protection altogether.5 In FC s 16(2) the drafters have expressed their preference for a definitional approach in at least three areas of expressive activity: propaganda for war, incitement of imminent violence, and the advocacy of hatred based on various grounds where that advocacy constitutes an incitement to cause harm. Several implications flow from this choice. It strongly suggests that the proper approach to the interpretation of FC s 16 is to construe FC s 16(2) as exhaustively enumerating the only exclusions from FC s 16(1). Consequently we submit that all activity which attempts to convey meaning constitutes expressive activity6 which enjoys constitutional protection under FC s 16(1), unless that expression falls into one or more of the three categories of expressive activity set out in FC s 16(2). If it does, then the expression, even though it may attempt to convey meaning, may not enjoy constitutional protection under the freedom of expression guarantee. In short, the exclusions set out in FC s 16(2) are exhaustive of the forms of expressive activity which may be unprotected. 1 Case & another v Minister of Safety & Security & others 1996 (3) SA 617 (CC), 1996 (5) BCLR 609 (CC) at para 25. 2 See above, § 20.4(c). 3 See above, § 20.6(d). 4 Whether the term ‘enumerated exclusions’ is more accurate than either ‘internal limitations’ or ‘internal modifiers’ is a matter of the proper interpretation of the relationship between FC s 16(1) and s 16(2). This is dealt with below. 5 See above, § 20.6(a), where the differences between the content-neutral and definitional approaches were outlined and the advantages and disadvantages of each were considered. 6 See the definition of expression adopted by the Supreme Court of Canada in Irwin Toy Ltd v Quebec (Attorney-General) (1989) 58 DLR (4th) 577 (SCC) at 606, namely that ‘activity is expressive if it attempts to convey meaning’. See also above, § 20.6(a). 20--58 [REVISION SERVICE 2, 1998] EXPRESSION FC s 16(2) appears to be influenced by the definitional or categorical approach characteristic of some First Amendment analysis in the United States. However, whereas the First Amendment was cast in absolute terms and the courts then carved out certain categories of speech which did not qualify for its protection, our framers have done the carving by legislative and not judicial means. FC s 16(2) may serve to define three categorical exclusions from constitutional protection at the threshold of the right. This categorical approach is then combined with a general guarantee embodied in FC s 16(1) which is made subject to a single standard of justification under FC s 36. 59 In our submission the approach embodied in FC s 16(2) was unnecessary, given the existence of an overarching limitation clause. Each of the exclusions could have been the subject of justifiable limitation on a case-by-case basis in terms of FC s 36 analysis rather than on the basis of a priori exclusion which may preclude the courts from balancing the competing interests at stake in concrete factual situations. Unless the exclusions themselves are properly and narrowly interpreted, so as to accord individuals the full measure and enjoyment of the fundamental right,1 there is a danger that FC s 16(2) may dilute the scope and efficacy of FC s 16(1) and weaken the constitutional protection of freedom of expression. Furthermore, FC s 16(2) raises questions as to the party on whom the burden lies to demonstrate that the expression at issue does not enjoy constitutional protection because it is hit by one or more of the enumerated exclusions. In general, the party seeking to invoke the protection of a fundamental right bears the burden of showing that his or her conduct is protected by the right on which reliance is placed.2 We submit, however, that where categorical exclusions such as those embodied in FC s 16(2) are concerned, the party seeking the protection of FC s 16(1) should not be required to demonstrate that the expressive activity in question does not fall foul of FC s 16(2). That task should properly rest with the party seeking to rely on any of the exclusions. There are at least two minor differences between IC s 15 and FC s 16 of the Constitution. Whereas IC s 15(1) refers to the freedom of ‘speech and expression’, FC s 16(1) refers only to the freedom of ‘expression’. Since ‘expression’ is of broader definition and wider reach than ‘speech’, which relates primarily to the verbal articulation of ideas, nothing is likely to turn on this difference. IC s 15(1) extended its benefits to ‘every person’, while FC s 16(1) speaks of ‘everyone’. This linguistic distinction is also unlikely to have practical meaning. In particular it is unlikely to provide support for an argument that juristic persons do not enjoy the benefits of freedom of expression. (b) The structure of freedom of expression analysis under the final Constitution As we pointed out above, analysis of freedom of expression issues under the interim Constitution takes place in two stages.3 One of the effects of FC s 16(2) is to introduce a possible extra stage into the analysis under the final Constitution. The first issue to be decided in terms of FC s 16 is whether the expressive activity for which protection is sought is 1 See above, Kentridge & Spitz ‘Interpretation’ §§ 11.4 and 11.8. 2 See above, Kentridge & Spitz ‘Interpretation’ § 11.10(c). 3 See above, § 20.1(a). [REVISION SERVICE 2, 1998] 20--59 CONSTITUTIONAL LAW OF SOUTH AFRICA governed by one or more of the exclusions enumerated in FC s 16(2). This is a threshold question. If an FC s 16(2) exclusion applies, then, subject to what is suggested below, the inquiry may be at an end and the expression will not enjoy constitutional protection at all. Its restriction will not have to be justified in terms of the limitation clause. It is only if the expression in question is not hit by an FC s 16(2) exclusion that the analysis will proceed to the further stages. If the threshold is crossed, the analysis under FC s 16(1) read with FC s 36 will have the same structure as the two-stage inquiry under the interim Constitution. In the vast majority of cases it will be clear that none of the enumerated exclusions applies to the expression for which protection is sought. However, there will be cases where it will be difficult to determine whether or not FC s 16(2) applies. (c) The application of FC s 16 60 s 8 puts it beyond doubt that fundamental rights, including the right to freedom of FC expression, may be invoked in disputes between private parties which depend for their determination on rules of common law.1 (d) The enumerated exclusions in FC s 16(2) There are two possible approaches to the enumerated exclusions in FC s 16(2). On the first approach, FC s 16(2) insulates from constitutional scrutiny the regulation of propaganda for war, incitement of imminent violence, and advocacy of hatred that constitutes an incitement to cause harm. It decides in advance that an entire category of expression is not worthy of constitutional protection. Not only are these forms of expression deprived of constitutional protection altogether but the state is given a free hand in their regulation without having to conform to the standards of justification established by the limitation clause. In an important sense FC s 16(2) may be described as an ouster clause and a remnant of parliamentary sovereignty. It deprives the courts of jurisdiction to measure government action in this area against constitutional standards. If the court determines that the expression at issue is hit by one of the enumerated exclusions, it has no further jurisdiction to review the constitutionality of government conduct for conformity with the right to freedom of expression.2 For this reason alone the enumerated exclusions ought to be restrictively interpreted. There is another ground for adopting a restrictive interpretation: FC s 16(2) is a blunt instrument for the regulation of hate speech. FC s 16(1) is not absolute. The drafters could have chosen to regulate hate speech by carefully drawn and narrowly tailored legislation designed to satisfy the requirements of FC s 36. Instead, FC s 16(2) gives the state two opportunities to limit hate speech, first through the enumerated exclusions and, secondly, 1 See above, Woolman ‘Application’ ch 10. 2 See Johannessen ‘A Critical View of the Constitutional Hate Speech Provision’ (1997) 13 SAJHR 135 at 136 (‘This internal limitation removes an entire area of speech beyond the ambit of the right to freedom of expression and consequently from the ambit of constitutional scrutiny. Thus the section essentially grants constitutional immunity to Parliament . . .’); Govender ‘The Freedom of Speech’ (1997) 1 Human Rights and Constitutional Law Journal of Southern Africa 20. 20--60 [REVISION SERVICE 2, 1998] EXPRESSION if that fails, by recourse to FC s 36.1 In fact, there is a further tool available, at least with respect to propaganda for war. FC s 37 envisages and regulates the declaration of states of emergency and permits derogation, inter alia, from FC s 16 if the specified constitutional requirements are satisfied. FC s 16(2) therefore poses a potential threat to constitutional democracy. We submit that the role of the courts in a constitutional order compels them to exercise particular vigilance with respect to FC s 16(2) and jealously to guard the freedom of expression against government conduct which would be immune from scrutiny under FC ss 16(1) and 36. 61 There is a second possible approach to the enumerated exclusions under FC s 16(2). If one were to read the enumerated exclusions under FC s 16(2) as precluding any inquiry whatsoever into questions of justification, the inevitable consequence would be that FC s 36 does not enter the inquiry at all. It is arguable that those who drafted the clause intended no more than to identify certain categories of expression which may be limited by legislative enactment, but that any limitation would nevertheless have to pass the requirements of the limitations clause. FC s 16 is similar, although not identical, to IC s 26, dealing with the right to economic activity. In S v Lawrence & others2 Chaskalson P interpreted the interrelationship between IC s 26(1) and (2) as not excluding the operation of IC s 33. In our submission, a similar approach to FC s 16 would be desirable and may be available. On this approach, for example, it would be competent to challenge the constitutionality of a statute which, in simple terms, made it a criminal offence to propagate war if, for example, there was no scope for defences such as legitimate debate on matters of public importance. Absent such a defence, the kind of debate which took place in South Africa in 1939 concerning participation in World War II would be rendered criminal without recourse to constitutional protection. (i) Propaganda for war It will be extremely difficult for courts to give meaning to this phrase which, if used in an ordinary statute, would be open to attack on grounds of vagueness and overbreadth. It is submitted that the purpose of s 16(2)(a) cannot be to deprive of constitutional protection all non-official expression which advocates the use of military force against a foreign country, regardless of the circumstances surrounding that expression. We submit that the practical role of this provision will be extremely limited. There is little if anything which may require the invocation of FC s 16(2)(a) which would not be better achieved by recourse to FC s 16(2)(b), which at least has certain built in safeguards. 1 As Johannessen argues, FC s 16(2) is ‘unnecessary, over-broad and goes beyond even the requirements of international law’. While one may acknowledge the need to protect individuals and groups against racial oppression, FC s 16(2) is an inappropriate tool to satisfy this need. It fails ‘to incorporate safeguards against over-breadth and abuse’. Johannessen ‘A Critical View of the Constitutional Hate Speech Provision’ (1997) 13 SAJHR 135 at 136, 142. 2 1997 (4) SA 1176 (CC), 1997 (10) BCLR 1348 (CC). [REVISION SERVICE 2, 1998] 20--61 CONSTITUTIONAL LAW OF SOUTH AFRICA (ii) Incitement of imminent violence 62 Three requirements must be established before expression may fall foul of FC s 16(2)(b). First, the expression must itself amount to incitement.1 Secondly, the incitement must be of violence.2 Thirdly, the violence cannot merely be possible in the future; it must be imminent. FC s 16(2)(b) resembles the ‘clear and present danger’ test developed by US courts. That test restricted the power of the state to proscribe advocacy of the use of force or of law violation to those circumstances where such ‘advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’.3 The formulation contains both a subjective dimension and an objective dimension. There must be a subjective intention on the part of the speaker to incite, and an objective likelihood or probability that imminent lawless action will result. The combination of subjective intention and objective likelihood make the clear and present danger test admirably protective. However, the reference to ‘imminent lawless action’ is too broad.4 FC s 16(2)(b) remedies the latter weakness by specifying that the incitement must be of violence and not merely of any lawless action. Whether the section embodies the requirements of both subjective intent and objective probability is unclear. Clearly FC s 16(2)(b) is reasonably capable of bearing such an interpretation. In our view that interpretation would also most closely comport with the purpose of FC s 16 and the final Constitution as a whole. The strictest possible interpretation of FC s 16(2)(b) is preferable particularly because expression which falls foul of the exclusion may not be constitutionally protected and its regulation or prohibition may not be open to scrutiny for consistency with the limitation clause. We submit that only expression which the speaker subjectively intends to be an incitement to imminent violence and which objectively and in the prevailing circumstances does indeed incite imminent violence may be denied constitutional protection on the basis of FC s 16(2)(b). (iii) Advocacy of hatred that constitutes incitement to cause harm This exclusion applies only where the expression is based on race, ethnicity, gender or religion. The advocacy of hatred on other grounds which amounts to incitement will be subject to the normal two-stage analysis in terms of FC ss 16(1) and 36. Furthermore, the exclusion does not apply to the advocacy of hatred per se. Expression that advocates hatred must also constitute an incitement to cause harm. The drafters have therefore clearly distinguished between mere advocacy of hatred, on the one hand, and advocacy which amounts to incitement, on the other. For the reasons set out above5 we submit that the incitement requirement embodies both subjective and objective elements. 1 We point out above, § 20.8(a) that our common-law definition of ‘incitement’ is disconcertingly wide and does not distinguish between advocacy, including the teaching of abstract doctrine, and incitement. 2 FC s 16(2)(b) is limited to the incitement of ‘violence’. It is not a general exclusion of all forms of incitement of ‘imminent lawless action’. In this sense its precision provides meaningful protection against overbreadth. 3 See above, § 20.8(a), and especially Brandenburg v Ohio 395 US 444, 89 Sct 1827 (1969). 4 See above, § 20.8(a). 5 See above, § 20.9(c)(ii). 20--62 [REVISION SERVICE 2, 1998] EXPRESSION The Canadian Supreme Court has referred with approval to arguments which suggest that the harm at issue in the context of hate speech embraces not only physical harm but also psychological and social damage.1 However, these references are not persuasive precedent for the interpretation of FC s 16(2)(c). The Canadian freedom of expression guarantee contains no enumerated exclusions. Consequently, constitutional recognition of harms other than physical harms does not automatically and by definition deprive the expression concerned of all protection. In Canada recognition of the harms at issue is therefore relevant in locating hate speech at some distance from the core values of freedom of expression and as a factor to be considered during the limitation clause inquiry. 63 Where, by contrast, the question is whether the expression at issue qualifies for protection at all, the meaning of ‘harm’, in the constitutional sense, should be different. This is not to say that social and psychological harms caused by hate speech are not real harms which can and should be combatted. However, they may be combatted by legislation capable of satisfying the requirements of FC s 36. We intend to say no more than that for the purpose of defining the scope of the FC s 16(2)(c) exclusion, our courts should be wary of adopting or importing a wide definition of harm from a very different kind of constitutional analysis. Since FC s 16(2) deals with categorical exclusions we submit that it is preferable to confine the constitutionally significant harm under the hate speech exclusion to physical harm and to address other serious harms in the course of an inquiry under the limitation clause. It is therefore preferable to have regard to the approach of the US courts concerning those harms which are sufficient to deprive expression of constitutional protection altogether.2 Consistent with the generally restrictive approach which we have suggested is appropriate in interpreting FC s 16(2), we submit that ‘harm’ for purposes of FC s 16(2)(c) should be limited to mean physical harm only.3 1 R v Keegstra [1990] 3 SCR 697. 2 See, for example, Collins v Smith 578 F 2d 1197 (1978) (emotional and mental disturbance is insufficient to deprive speech of protection); Terminiello v Chicago 337 US 1 (speech that stirs anger and creates dissatisfaction if not deprived of protection). 3 For a contrary view, see Govender ‘The Freedom of Speech’ (1997) 1 Human Rights and Constitutional Law Journal of Southern Africa 20 at 23. [REVISION SERVICE 2, 1998] 20--63
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