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Theories Rejected: The Framing of the Freedom of Expression
Section of the South African Constitution












By Thomas A. Schwartz
Associate Professor
School of Journalism and Communication
Ohio State University
Derby Hall 3074, 154 N. Oval Mall
Columbus, OH 43210
(614) 292-1006
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Paper submitted to the paper competition of the Law Division for possible presentation of the 2002 annual meeting of the Association for Education in Journalism and Mass Communication, Miami




Theories Rejected: The Framing of the Freedom of Expression
Section of the South African Constitution
        Classic libertarian orthodoxy situates the system of freedom of expression[1] at the center of a democratic society's ability to resolve civil conflict. "Freedom of expression is a method," Emerson (1972, p. 7) has explained, "of maintaining the precarious balance between healthy cleavage and necessary consensus." Even the most liberal democratic theorists concede, however, that unlimited constitutional protection of freedom of expression can jeopardize social stability. Once this stipulation is made, the key issues for a democracy become how constitutionally to provide for the kind and amount of freedom of expression that are required to achieve Emerson's "precarious balance."
        The seemingly endless debates over issues in freedom of expression have engaged the minds of the world's finest political philosophers. Their conclusions have influenced the provision for freedom of expression in the national constitution, the ultimate statement that a society makes on freedom of expression. Understanding these philosophies is important to understanding the constitutional law on freedom of expression.
        Another important level of analysis of this constitutional law, however, is directed at understanding the ideological context within which the law is made. Perhaps to state the obvious, constitutional conventions are organized by politicians with political agendas, and constitutions are products, like legislation, of of the political process of compromise. Cutting to the heart of the matter, Bogdanor (1988, p. 385) asserts: "Constitutional change is intimately linked with the rise and fall of political parties." In South Africa, the recent case in point, the "constitution is best understood," as Gloppen (1997, p. 4) observed, "from the perspective of the rivaling constitutional positions that stood against each other throughout the process and kneaded the constitution into its present shape."
        Even when framed in philosophy that purports to produce neutral principles of freedom of expression, original constitutional policy remains the product of compromise between ideologists (see, e.g., Barendt, 1985; Fish, 1999; Levy, 1985). Then, in order to understand the assumptions of a system's theory of freedom of expression, one should understand the ideologies and how they were compromised to produce the language in the constitution.[2]
        This paper is devoted to an examination of the starting and ending points for the debates over the content of the freedom of expression section of South Africa's Constitution. The actual deliberations of the Assembly that resulted in the freedom of expression section is a subject for research that is beyond the scope of this paper; but this paper will compare the freedom of expression policies promulgated in political party platforms at the beginning of the 1993-96 Constitutional Convention with Section 16-the section on freedom of expression in the final constitution, which took full effect in 1999.
        The paper concludes that Section 16 bears little resemblance to the freedom of expression policy of any of the seven political parties that participated in the convention, even though almost every party had a distinctive approach to designing a system of freedom of expression. Section 16 was the product of the political necessity of compromise between the ideological forces at work in the convention, not the product of a clear, singular vision for a progressive and modern democracy. The language of the final section reflects little of South Africa's special experience with freedom of expression.
        This paper is a case study in how a system of freedom of expression is instigated. South Africa's experience is an example of both how the infrastructure for civil discourse comes to be and of how a civil conflict is resolved. This analysis generates lessons about emerging democracy in Africa but has application in any constitutional democracy.
Background
        Many factors have and will continue to influence the system of freedom of expression that evolves in South Africa. Formally, the South African Constitutional Court, with the power of judicial review, has and will play an important role through the Court's judicature. In drafting the Constitution, the Constitutional Assembly consulted international conventions and foreign constitutions. Informally, and probably even more decisive as an influence, however, is the dramatic political and social experience of South Africa. An crucial chapter in that history is the deliberations over the freedom of expression section of the South African Constitution. Competing prescriptions for the country's system of freedom of expression were presented, attacked and defended during the Assembly's proceedings, and compromises were reached.
        For the purposes of this paper, the debate in South Africa over freedom of expression begins with the framing of the freedom of expression section of the provisional constitution of 1993. This section stated, in relevant part: "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." The ensuing deliberations concerned proposals to change the language of this section to coincide with the goals of the various political parties. This constitutional debate ends with Section 16 of the permanent constitution:

        16. (1) Everyone has the right to freedom of expression, which includes-
                (a) freedom of the press and other media;
                (b) freedom to receive or impart information;
                (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 to imminent violence; or
                (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
Of obvious significance is the addition of the second subsection, placing limits on the constitutional protection of freedom of expression. These limits are recommended by United Nations conventions. Although Subsection 2 is an important change, it actually masks the disparity among the Assembly's parties about what the Constitution should say about freedom of expression. A review of each party's position on the freedom of expression section at the time the constitutional convention began reveals these differences. These party positions are reviewed after each party's general political platform is presented to provide a broader sense of the ideology behind each position on the appropriate system of freedom of expression for South Africa.

Political Parties
        The South African Parliament elected in 1994 contained seven parties which were represented in the Constitutional Assembly, the Constitutional Committee, the Constitutional Committee Sub-Committee and theme committees, as well as various other deliberating bodies, in proportion to the number of seats the parties held in Parliament. The parties and their numbers of members in the 490-member Assembly were: the African National Congress (312), National Party (99), Inkatha Freedom Party (48), Democratic Party (14), Pan-Africanist Congress (10), Freedom Front (5), and African Christian Democratic Party (2) (Constitutional Assembly, 1994-95).
        African National Congress. The ANC, led by President Nelson Mandela, was founded in 1912 by Africans who sought peacefully to fight discriminatory legislation enacted by the Union of South Africa. The ANC became a popular multiracial organization. As political conditions worsened, black nationalists became ANC leaders who took the group underground as the primary liberation force. The ANC was banned in 1960, and its leaders either fled or were killed, imprisoned, banned or deported. In 1961, the ANC became aligned with the South African Communist Party, founded in 1921 by white working class revolutionaries. Trade unions, a major strength in the liberation movement, have had strong influence on the ANC, often through the SACP. The purpose of the ANC was to destroy the apartheid state and replace it with a "united, non-racial, non-sexist and democratic South Africa in which people shall govern and all shall enjoy equal rights (ANC, 1999)." Elements of liberalism, Africanism and socialism persist in the Party's leadership and membership (Sisk, 1995, pp. 149-58). The ANC's views toward freedom of expression we
re reflected in the 1988 constitutional guidelines and 1990 working draft of a bill of rights.
        The 25-point Constitutional Guidelines for a Democratic South Africa (1989) were organized into 10 sections, including a section called "A Bill of Rights and Affirmative Action," in which the ANC proposed that the future "democratic state shall guarantee the basic rights and freedoms, such as freedom of association, thought, worship and the press ... " subject to laws forbidding the "advocacy or practice of racism, fascism, nazism or the incitement of ethnic or regional exclusiveness or hatred."
        The Constitutional Committee appointed by the Party's Executive Committee generated in 1989 a "working draft" of a proposed Bill of Rights (Documents, 1989). Paragraph 1 of Article 4 averred that "There shall be freedom of thought, speech, expression and opinion, including a free press." Other articles provided for "freedom of association, including the right to form and join trade unions," "freedom of artistic activity and scientific enquiry, without censorship" and wide expression rights for trade unions. The draft constitution, however, also (1) commanded that the media "shall respect the right to reply," (2) protected citizens from "sexual harassment, abuse and violence," (3) created a duty for the media to "discourage sexual and other types of stereotyping" and a duty for "public and private bodies ... to prevent any form of incitement to racial, religious or linguistic hostility," and (4) enabled the state to pass laws "prohibiting the circulation or possession of materials
 which incite racial, ethnic, religious, gender or linguistic hatred, which provoke violence, or which insult, degrade, defame or encourage abuse of any racial, ethnic, religious, gender or linguistic group."
        In its first submission to the Constitutional Assembly, the ANC proposed that the section on freedom of expression in the provisional constitution be "reformulated to _ [remove] constitutional protection from racist, sexist or hate speeches calculated to cause hostility and acrimony, and, racial, ethnic or even religious antagonism and division." The ANC sought a Subsection 2: "Any speech, expression or advocacy of national, racial, ethnic, religious or other forms of hatred that constitutes incitement to racial, ethnic or gender discrimination, hostility or violence is forbidden."
        Despite denial of fundamental civil rights to black South Africans during apartheid, the ANC's long-standing political catechism to eradicate inequality understandably prompted a freedom of expression ideology that would qualify protection for hate expression.
        National Party. The NP, led by former President F.W. de Klerk, represented principally white moderates and conservatives. The party of apartheid, the NP reformed itself with a restrained agenda for the 1995 national elections. The NP favored a written bill of rights, including protection for freedom of expression and judicial independence, but the NP's primary emphasis was on decentralizing any new national government and providing guarantees for mandatory participation by minority parties-of which the NP was an example-in the executive branch of government (Sisk 1995, pp. 134-41). Still, the NP proposals for a Bill of Rights and freedom of expression section were full, largely driven by NP-initiated recommendations by the South African Law Commission dating to 1989 (du Plessis, 1995, p. 166).
        In Section 9, called "Political Rights," the Government's "Draft Charter of Fundamental Rights" said: "(1) Every person shall have the right to freedom of speech and other forms of expression, and the right to obtain and disseminate information. (2) Subsection (1) shall not preclude the registration and licensing of newspapers and other forms of communication" (Togni, 1994, p. 250).
        In its first submission, the NP (1995, pp. 1-4) otherwise supported the "broad and inclusive approach followed in drafting the provisional bill of rights." The right may be curbed to regulate hate, commercial and obscene expression, but this should be done through statute, as applied by courts when balancing freedom of expression against other rights, including "rights such as human dignity, privacy, fair trial, property, abuse of children."
        Unlike the ANC, which saw the bill of rights as a way to empower the disempowered, the NP viewed it as a tool to restrict the new ANC-led government from disempowering the propertied interests.
        Inkatha Freedom Party. Like the NP, the IFP, whose constituency was mostly rural Zulus in eastern South Africa, favored a loose federation form of government over a strong central government and constitutional insulation for traditional law and custom ("IFP Seeks," 1995, p. 2). The Party protested the refusal of the Assembly to submit some issues to international mediation by boycotting the Assembly deliberations beginning in April 1995. The IFP's involvement in the design of the Constitution consisted of submissions on various issues ("Towards a New Constitution," 1995, pp. 1, 3). The IFP favored protection of civil and political rights but was ambiguous about why or how they were to be protected (Sisk, 1995, pp. 144-149). Of the seven parties, only the IFP opposed the final Constitution (South African Press Association, 1996).
        Section 19 of the KwaZulu Natal Constitution, written by IFP leaders, protects "Freedom of Communication": "(a) All persons shall be free to express and communicate their thought in private and in public, in oral, written, visual or any other fashion, and to establish institutions for such a purpose. All forms of censorship or limitation on the contents of such communications shall be prohibited." Subsection b provides limited protection for commercial speech, Subsection c establishes a "time, place and manner" system of limitation on expression, and Subsection d protects a person from forced disclosure of "his or her ideology, creed, religious belief, or political opinions." Section 24, "Freedom of the Media," states:

Anyone has the right to publish and distribute printed materials. The press and the media of mass communication shall have the right to inform the public on matters of public interest provided that they do not publish erroneous information as a result of gross professional negligence or malice. The media have the duty to rectify all erroneous information they publish which damages the reputation of others.
Section 59, "Media of Mass Communication," permits "anyone" the "right to establish media" and requires state media to provide access to citizens and political parties (Togni, 1994, pp. 261, 263, 269).
        The IFP was more interested in preserving its territory of influence as an ethnic enclave than in dealing with the specifics of individual rights such as freedom of expression. The IFP's policies regarding freedom of expression were, on paper, relatively moderate.
        Democratic Party. The DP established a long tradition of white liberal opposition to the much larger group of conservative whites of the NP (Butler, Elphick & Welsch, 1987). Still, the DP represented a disproportionate share of political power since the Party's constituency included leaders of most of the largest businesses, the news media and major professions, such as intellectuals and lawyers. The DP's priorities in the Assembly were federalism, human rights and a strong and independent judiciary ("Keep It Liberal," 1995, pp. 9-10). The DP was the strongest Assembly advocate of protection for first-tier political rights, especially freedom of expression.
        The DP's initial submission was a spirited defense of an unqualified freedom of expression section, calling a "constitutional guarantee of free speech, in the widest possible terms, coupled with a strong injunction against state intervention in the press _ the minimum prerequisites for a creative, vibrant, open democracy in South Africa." The DP (1995) insisted that the regulation of commercial and hate expression could best be accomplished through the general limitations section. The DP added:

However, we urge that the constitution framers desist from the temptation of applying a wide basis of potential restrictions to free speech, however well-motivated such an intention might be. The lessons of our own past and the tortuous development of free expression in such a well-established democracy as the United States, for example, should serve as a necessary caution. In other words, free speech should be cherished and nurtured and is very easily chilled or subdued by excessive constitutional or judicial zeal.
        The news media, according to the DP, should have full constitutional protection in their exercise of press freedom. The DP argued that constitutional law should provide protection for parties in common law disputes, for example, the press when sued for libel, a purely common law matter in South Africa. Further, the DP maintained, freedom of expression of all kinds, not just political expression, should enjoy maximum protection in the Constitution. The DP argued that any constitutional provision permitting regulation of hate expression was dangerous because it "could be used as a weapon to wipe out dissent" (Theme Committee 4, 1995, item 5.4).
        Like property rights advocates in the United States, DP leaders viewed the Bill of Rights as a way to protect individual interests from government interference. The DP understood that a strong right of freedom of expression is one of the principal means that can be used to fend off official intrusion into the private sector.
        Pan Africanist Congress. ANC Africanists broke away to form the socialistic PAC when the ANC adopted a multiracial philosophy. A militant force during the liberation struggle, the PAC suffered from lack of leadership and organization in postapartheid South Africa. The PAC's major issue was land reform (Cooper, 1994, pp. 117-120). The Party favored a Bill of Rights, including a provision for freedom of expression, but opposed group or minority rights (Sisk, 1995, pp. 159-162).
        The PAC's first submission on freedom of expression was terse, suggesting that hate expression should be unprotected, but "strict controls of a paternalistic Apartheid State" on "obscene speech and pornography" are unnecessary (PAC, 1995). "Although there should be limits, they should be reasonable and flexible and most controls should be left to society's own conscience and standards." The PAC would permit advertising but its content should be subject to "reasonable limits" as "society develops its own standards and levels of tolerance." Except for the Party's exclusion of hate expression from any constitutional protection, this submission on freedom of expression suggests the PAC is among the most libertarian of the parties. On the other hand, the one-page submission is too brief to categorize.
        Freedom Front. The right-wing FF generally represented Afrikaners-at least some of whom were unapologetic about apartheid policies-seeking as much self-rule as might be politically possible in the new order. The FF favored a bill of rights and protection for freedom of expression, but emphasized protection for group rights more than the other parties ("Volkstaat High," 1995, pp. 6-7).
        The FF (1995, pp. 1-5) in its submission on freedom of expression quoted approvingly the European Convention on Human Rights as a basis for circumscribing freedom of expression on the grounds of national security, territorial integrity, public safety, prevention of disorder or crime, discouraging disclosure of confidential information and maintaining judicial integrity and authority. The FF also supported parts of the International Covenant on Civil and Political Rights that required freedom of expression to respect the right of reputation and states' abilities to protect public health and morals. Further, the FF desired legislation to regulate obscenity and commercial expression.
        The FF also wanted it made clear that constitutional protection for "artistic creativity and scientific research" should not be used as "pretexts for modes of expression that are obscene or offensive to the public generally or to any group in society with lawful aims." In addition, the FF wished to establish "an independent media commission" to regulate all public and private media to ensure their impartiality, diversity of opinion and maximum dissemination of news. The FF also sought another commission to study all laws regulating the media and recommend which ones should be repealed or retained.
        Nevertheless, the FF extolled the crucial place for freedom of expression in the new South Africa, devoting several pages of the Party's submission to the vital purpose of especially the press in a democracy. Still, a biased press, inspired by parties and other partisan interests, "may cause incalculable damage to society." Despite all of the risks the FF found associated with generous allowance for freedom of expression, the Party recommended that "the chapter on fundamental rights should contain only a brief statement of principle in support of the freedom of the press, as an important component of freedom of expression generally" because a bill of rights cannot  "spell out the details of this balance: it is the function of the courts to do so over the years in the course of their interpretation of the provisions of the bill of rights." The FF favored hate expression regulation, but no exclusion of its protection in the Section on freedom of expression.
        Contradicting all of its explicit and implicit suggestions for regulation of aspects of the right of freedom of expression, however, the FF concluded that the South African Parliament should be made incapable of regulating freedom of expression in any way, "not even in accordance with the provisions of a limitation clause in the bill of rights." The FF said its "motivation is that freedom of expression is one of the main pillars of a democracy, to be securely entrenched in the Constitution and not subject to erosion by subsequent ordinary legislation." If taken seriously, the FF's conclusion would position the Party as more supportive of freedom of expression than any other party. Given the FF's recommendations for regulating the press, however, the conclusion cannot be taken seriously.
        African Christian Democratic Party. The ACDP, a Christian fundamentalist party, maintained that the Bible should provide the philosophy for designing the constitutional democracy and Bill of Rights ("Supreme Laws," 1995, pp. 7-8). "The ACDP (1999) stands for "Christian principles, freedom of religion, an open market economy, family values, community empowerment and human rights in a federal system." The Party supported freedom of expression, but advocated severe limitations on what the ACDP saw as immoral, especially violent and pornographic, expression.
        The ACDP submission (1995) on freedom of expression underscored the Party's commitment to "God's divine plan" in drawing the new Constitution and Bill of Rights. To avoid what the Party saw as the decay of South African society resulting from unrestrained freedom of expression following apartheid rule, the ACDP called for regulation of dehumanizing pornography driven by "blatant economism." The ACDP, contending that censorship was inevitable and it should be handled responsibly, suggested that it be "based upon biblical values where the rules laid down for civil law and government is based in Christian morality."
        "We in the ACDP believes [sic] that freedom of expression should also include the right of censorship" or the regulation of "those expressions that can be classed as defamatory, obscene or profane, ... portrayals of the horrors of child abuse, pornographic liberties, sacrilegious activities, desecration of state symbols," and "abuse of the freedom of expression, whether it be hate speech, immoral 'acts' or obscenity" and pornography. Blaming so-called sexual liberation, including pornography, for the decline of morality in American society, the ACDP maintained that morality and decency should be the standards for determining the reach of freedom of expression in South Africa.

Four Positions on Free Expression
        Although all of them supported freedom of expression in the abstract, the seven parties, each one differing somewhat from the other, represented four general predilections toward (and ultimate conclusions about) freedom of expression, each a function of a larger ideology: (1) The liberal position, adopted by the DP, which sought primarily popular sovereignty, a free market economy, limited central and strong provincial government, and unqualified "negative" freedoms, particularly freedom of expression (Democratic Party Constitutional Policy, 1996; Sisk, 1995, pp. 141-43), (2) the consociational position adopted in modified forms by the NP, IFP and FF which sought a decentralized federation and a strong emphasis on collective rights with virtual disinterest in individual rights, including freedom of expression, (3) a moralistic position, adopted by the ACDP, which sought democratic government taking strong religious stands on all issues, including issues in freedom of expression,
and (4) a postmodern position, adopted by the ANC, which emphasized a large and strong central government and a balance between distributive justice, especially protection from inequality, and individual rights, including freedom of expression.
        The DP emphasized the good that freedom of expression can bring to society while the ACDP stressed the evil that freedom of expression can cause for South Africa. The ANC, with motivations distinct from each of the DP and ACDP, saw different goods and evils of freedom of expression. A dimension of the tension was the conflicting priorities of the values of equality for the ANC and PAC and freedom for the NP and DP (du Plessis, 1995, p. 169). The IFP, FF and, to a lesser extent, the NP found the issue of freedom of expression to be so incidental to their higher priorities that they offered little more than platitudes about it The result of the collision of these perspectives for constitutional provisions for freedom of expression, like the institutional and other choices made by the Constitutional Assembly, was a mixture of the ideological preferences of especially the dominant parties. The ANC and NP got less than they wanted in the Constitution generally and in the Bill of Right
s specifically, and the DP was somewhat successful in playing power broker between them (Sisk, 1995). Like debates over the Bill of Rights generally, the debates over the freedom of expression section were less contentious than they could have been.
        In the end, no party's platform could be said to resemble Section 16 of the permanent constitution. All of the parties praised freedom of expression as important to South African democracy, and none of the parties proposed an oppressive Soviet, developmental or other authoritarian system of freedom of expression. Yet the priorities on certain freedom of expression issues, evident in the preconvention platforms of the parties, were not realized in Section 16. The ANC's preconvention proposals harshly to regulate hate expression, including the mere possession of material insulting to virtually any group, were reduced to a moderate exclusion from constitutional protection of only hate expression that provably causes actual harm. The NP's hope to permit licensing of newspapers was doomed from the start of the Assembly proceedings. The DP's push for absolute protection for free expression probably helped to deter proposals by other parties for severe forms of regulation but failed in the face of the ANC's campaign to exclude protection for hate expression. The broad policy censorship of "immoral" expression advanced by the religious doctrines of the ACDP was readily rejected by the Assembly; even obscenity was not excloded from constitutional protection. Meeting a similar fate was the FF's plan to create a government commission to ensure that all public and private media content was impartial.
        Perhaps most interesting was the failure of the ANC, whose delegation numerically dominated the Constitutional Assembly, to realize the Party's policy goals for freedom of expression in Section 16. In their analysis of the South African constitutional deliberations more generally, Sisk (1995) and Gloppen (1997) suggest that the ANC underestimated the political acumen of the NP. Distracted by larger issues concerning how power would be entrenched in the new government, the ANC also was surprisingly out-maneuvered by the tiny DP delegation during aspects of the Assembly proceedings regarding freedom of expression. The result was a moderately libertarian constitutional section that features mainstream values embraced by the international community but not a constitutional provision that represents the special circumstances of freedom of expression in South Africa.
        There is no doubt that contemporary South Africa has a system of freedom of expression in place that far exceeds the former apartheid state's violent system for resolving civil conflict. The levels and types of South African freedom of expression are as vibrant as those in western democracies and easily surpass the systems in place in other African states. Case law enunciated by the South African Constitutional Court will refine and make distinctive the system born in the clashes between the political parties in the Constitutional Assembly.


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[1] The term "system of freedom of expression," which will be used throughout this paper, is borrowed from Thomas I. Emerson's classic work by that name on the system in the United States. He calls a system an "interrelated set of rights, principles, practices, and institutions" of freedom of expression that "has overall unity of purpose and operation" and accommodates other features of national life (Emerson, 1971, p. 2).  The term "theory" or "theories" of freedom of expression will be used almost interchangeably with "system." A theory may be of or part of a system of freedom of expression.
[2] This paper takes no position on the debates over originalism, textualism and interpretivism. Like the U.S. Constitution, the South African Constitution makes no explicit provision that when making constitutional policy, judicial bodies should attend to the intent of the constitutional framers. Like the U.S. Supreme Court, however, the South African Constitutional Court may find such discussions useful, if not dispositive, in its deliberation on certain issues.  This paper also takes no position on the debate over whether constitutions "matter." They may matter, in both pr0found and specific ways, but overall they probably matter less than  so many other social attributes of the respective nations that created the constitutions.  On this question, Andrews (1968, p. 22) wrote: "Not only are Constitutions often incomplete, they are often quite misleading." Finer (1979, p. 15) wrote: "Almost every state in the world today possesses a written constitution. Yet, the vast majority of
 these are either suspended, or brazenly dishonoured or--if neither of these--are constantly and ocntinually torn up to mnake room for news ones." Maddex (2995, p. ix) wrote: "Unfortnately, too many constitutions today are extremely ineffectual documents or outrightshams that try to mask unbridled dictatorships." On the U.S. First Amendment, Levy  (1995, p. 43) wrote: It "boldly stated if narrowly understood [by the framers]. The bold statement, not the narrow understanding, was written into fundamental law."