History, Nightmares & Freedom of Expression

​BY JOSHUA HOVSHA

​​Constitutional matters [trends & prospects]

exploring issues related to the constitution, democracy & the south african jewish community

In this article Joshua Hovsha explores how our historical and political backgrounds determine our response to freedom of expression and our approach to hate speech.  

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The past is never dead. It’s not even past.
– William Faulkner​

​“Penny Sparrow has written more legislation than I ever will.” A friend and prominent member of civil society jested the other week. We were working through the latest draft of the Hate Crimes Bill. A Bill which has taken ten years to reach parliament. A Bill which has become contentious after very broad hate speech provisions were added. Provisions only added after Penny Sparrow’s racist comments elicited unprecedented outrage in January 2016.
 
The public outcry following Sparrow’s racist remarks has become a turning point in our political discourse, along with university protests, calls for land expropriation, and daily debates over who can lay claim to the experience of racism and persecution.

​"... two and a half decades into democratic rule South African Jews find themselves uncertain over how to approach a long history of persecution coupled with a recent history of privilege."

Frustration is often expressed in terms of perceived double standards over who is charged and who is not.  
 
Harsh sentences against some may allow for temporary satisfaction. These punishments will not in and of themselves redress the wrong committed against other victims, nor will they fix the societal ills of racism and discrimination. ​

A jewish dimension 

​Approaching these already highly complex issues may be all the more vexing for the South African Jewish community.
 
The process by which Jewish people gained their mainstream acceptance or “whiteness” in the USA and Europe is an ongoing debate. When New York Times Magazine writer, Emily Bazelon penned an article examining the concept of ‘whiteness’, in June 2018 she received a litany of abuse including online death threats with pictures of her home and car identified for attack. The offense? How could Bazelon speak about ‘whiteness’ when she as a Jewish woman was not ‘white’. Since the election of Donald Trump previous assumptions of Jewish ‘whiteness’ in the US have been challenged by white nationalists. This has become increasingly evident with white nationalist groups gaining increasing media attention.

"Since the election of Donald Trump previous assumptions of Jewish ‘whiteness’ in the US
have been challenged by white nationalists." 

In South Africa the process was more certain. In an Apartheid regime obsessed with category, a decision had to be made about Jewish identity. In a ‘black’ majority country, in an attempt to inflate the number of ‘white’ South Africans, our faith was seen as less important a factor than the hue of our skin. The result was that, as an ethnic grouping, Jews were spared from the suffering of Apartheid. Not only that, our whiteness ensured us a privileged status.
 
The fall-out is that two and a half decades into democratic rule South African Jews find themselves uncertain over how to approach a long history of persecution coupled with a recent history of privilege. Approaching the rage and frustration around us is all the more difficult a process. The following observations might yet help us on this journey.

the costs of hatred are higher for some, than others

On 1 January 2018 Noxolo Xakeka was stabbed to death for being a lesbian. Her murder brought the number of open cases for LGBTQI violent crimes to twelve in the Western Cape alone. Four of the cases were of murder, while the other eight cases included rape or serious assault.
 
Five weeks later on 8 February the Hate Crimes Working Group (HCWG) released a report on the nature of Hate Crimes in South Africa. Conducted over five years through intensive monitoring and interviews, the study is the most in-depth view of hate crimes in South Africa to date. Unsurprisingly, the study found that the dangers of hatred are most pronounced in the form of xenophobia, and attacks against LGBTQI+ individuals.
 
Among ethnic and religious groups, the study noted a pronounced targeting of the relatively small Jewish community of South Africa. Yet not all hatred manifests in the same form.

"... no society allows for completely unfettered freedom of expression. "

In post-Apartheid South Africa, the Jewish community has engaged in a number of battles against antisemitism. As recently as 29 June 2018, the South African Jewish Board of Deputies (SAJBD) laid charges against three individuals for “antisemitic hate speech.” The charges were laid exactly a year after the Equality Court in Johannesburg ruled that antisemitic statements made by COSATU spokesman Bongani Masuku in 2008 amounted to hate speech under the Equality Act.
 
Other SAJBD legal battles include opposing statements made by public officials such as ANC Western Cape leader Marius Fransman in 2013, as well as a lengthy battle with Radio 786 over comments of Holocaust denial and conspiracy theories made on its airwaves.
 
Xenophobia, Homophobia and Transphobia all carry life and death ramifications in South Africa. In contrast, attacks on the Jewish community have been limited to speech and not deeds. 
 
This is not to dismiss the lived experience of those who have faced antisemitism. Rather we must acknowledge that the stakes of hatred differ radically depending upon who the target happens to be within South Africa. ​

There are no blank canvases in history

​Since Plato, political theorists have used ideal models to depict their vision of how society should govern. However, constitutions do not emerge out of thin air; they arrive at a certain point and respond to real forces.
 
 Jean-Jacques Rousseau’s the Social Contract of 1762 stands out as one of the most important works in political theory. Yet, ten years later Rousseau was willing to make considerable changes to his model. The reason was simple, he was now working on a proposal for a new government in Poland, which had to take pre-existing realities into account. Rousseau was no longer working with a blank canvas.
 
As constitutions respond to historical forces, so too do the rights which they protect. The protection of freedom of expression lies at the very heart of democratic rule, finding reference in a litany of key human rights declarations and treaties.

"In 1977 The National Socialist Party of America announced that it would march through the small town of Skokie, Illionois ... where one in one in six residents were Holocaust survivors or were directly related to one." 

Yet, no society allows for completely unfettered freedom of expression. The appropriate limits on freedom of expression are a particular concern rooted in time and place, defined by a specific history and context. ​

Historical trauma often dictates our approach to rights

In James Joyce’s Ulysses, the character Stephen Dedalus describes history as “a nightmare from which I am trying to awake.” This serves as an apt metaphor for our approach to the past.
 
On framing legal orders, we are often at the brink of having just awoken with a start from an unacceptable past or present and compromises will be made in constructing a new legal order. The balances which we make will often depend upon the nightmare from which we are trying to awake.
 
In the case of the USA, the nightmare was British rule under King George III and the experience of “taxation without representation”. A primary concern for the crafters of the US Constitution was outlining a system to defend against potential tyranny. The US Constitutional order is thus fundamentally directed towards the protection of individuals from state interference.
 
It is thus unsurprising that the First Amendment to the US Constitution provides far ranging protection of freedom of expression.
 
This can result in situations of deep discomfort. In 1977 The National Socialist Party of America announced that it would march through the small town of Skokie, Illionois. Nazi symbols were to be carried in a town with a significant Jewish community, where one in one in six residents were Holocaust survivors or were directly related to one. Yet, the Supreme Court held that freedom of expression should not be restricted and the march took place.
 
We were reminded of this cost yet again last August, as marchers carrying both Nazi and Confederate flags chanted “Jews will not replace us” at a demonstration in Charlottesville, Virginia.
 
Yet, the tension between freedom of expression and public interest takes on a different form when the historic nightmare changes. 

Trauma can emerge from within

​In the case of Germany, the nightmare was not of outside tyranny, but of having succumbed to the temptation of Nazi Totalitarianism.

​Contemporary Germany may be seen as the product of serious historical reckoning. The question asked again and again is how the Weimar Republic could have been kept together and stopped the rise of the Nazi Party.
 
At the heart of the German constitution is a commitment to human dignity as the paramount guiding principle. The vital interest in preserving human dignity is made clear by Germany’s severe restrictions upon hate speech.
 
Moreover, a specific crime of Holocaust denial is delineated in Article 130(3) of Germany’s Criminal Code, which outlines a penalty up to five years in prison or a monetary fine, for those who “publicly or in an assembly approve, deny, or trivialise” the Holocaust.
 
The German approach holds great relevance for South Africa as a model for balancing competing claims in light of a past marked by systemic crimes against humanity. 

Reconciliation is incomplete

​In South Africa we know too well the nightmare which our constitution sought to redress.
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On the one hand, the expansive restrictions placed upon freedom of expression and freedom of the press during the Apartheid years remain rooted in collective memory. As such, media freedom and the rights of citizens to express dissent remain pivotal to modern South Africa’s democratic character. However, this same character reflects an even greater collective experience of the continuous attacks on human life and dignity under Apartheid. As such, dignity and equality are core organizing principles in our Constitutional order.

"This is a moment where our voice and the inherited history of Jewish trauma
can play ​a significant role in a national debate."

Yet even a perfect constitution cannot guarantee societal unity and true reconciliation. Following the Penny Sparrow saga one phrase came to prominence: “South Africa’s racial dilemma is what happens when forgiveness is granted before the crime is acknowledged.”
 
This is a heavy statement to make. We have incredible museums, monuments and more. We even have Nelson Mandela on all of our bank notes. Yet something is still amiss. It may be that we are living in a bad dream as two and half decades into our democratic order we have only just begun to grapple with our past.
 
As that Hate Crimes Bill enters parliament together with its Hate Speech provisions we need to think seriously about whether we can legislate our way out of having a much-needed societal conversation. 

There can be a unique role for Jewish experience in this debate

In 27 February of this year, the Nelson Mandela Foundation applied to the Equality Court in Johannesburg for an order declaring gratuitous displays of the official flag of apartheid South Africa to be classified as hate speech. Afriforum has come forward to oppose the application.
 
In the upcoming legal debate, both parties are expected to make use of comparisons to the Nazi Swastika, which carries a weight on our collective memory beyond virtually all other images. The use of Nazi symbols for propaganda or incitement is prohibited in many countries including Germany, Russia, France, Brazil, Lithuania and Austria.
 
The outcome of this case will impact the very definition of what is hate speech. This will have ramifications for the Jewish community and communal organizations seeking to prosecute the use of such symbols targeting South African Jews.
 
When it comes to accounting for the effect of such symbols, we should prepare to listen as parties to this dispute refer to Jewish collective experience. This is a moment where our voice and the inherited history of Jewish trauma can play a significant role in a national debate.
 
As we prepare first to listen and then to speak, we should remember that if history is a nightmare, it is a strange one. 

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Joshua Hovsha completed his Masters Degrees in Political Science at Wits and in International Law at Trinity College Dublin. He has worked at the Helen Suzman Foundation and served as Executive Director of the Cape Jewish Board of Deputies.