Case No: 2008/05 SABC1 - Incitement to Imminent Violence - Song - "Get Out"

W Spies (Complainant)
vs

SABC1 (Respondent)

Tribunal: Prof Kobus van Rooyen SC (Chairperson), Prof Henning Viljoen, Prof Sunette Lötter, Mr Brian Makeketa, Ms Zali Mbombo, Dr Lynda Gilfillan

For Complainant: The Complainant in Person

For Respondent: Mr Fakir Hassen, Manager: Broadcast Compliance, Accompanied by Ms Veronica Barnard, Compliance Officer

SUMMARY

The SABC broadcast a video clip of a song, "Get Out", by a singer and his group known as Zubz. A complaint was lodged with the Registrar claiming that the Broadcasting Code had been contravened in that the song amounted to a contravention of clause 16.3 of the Broadcasting Code.

The Tribunal left the question open as to whether the song amounted to hate speech. It limited its inquiry to the question whether it amounted to "incitement to imminent violence", which is prohibited by the Constitution of the RSA and the Broadcasting Code.

The Tribunal stated that artists are usually afforded special leeway with regard to freedom of expression. This would apply to hip hop (also known as rap) songs, an artistic genre that frequently reflects "ghetto" anger and tensions, and where the language and images are often harsh and shocking. Hip hop lyrics are perceived by some as promoting violence, as well as promiscuity and drug use, and also of being misogynistic. Certain forms of hip hop music are also highly politicized and militant. The song, "Get Out" by the rap/hip hop singer Zubz, clearly falls into the latter category, as is clear from lyrics such as "Tell the oppressor get out/And tell my people fight ... I'm gonna get this panga to your neck/Take what is mine today and I'll rob you tomorrow ... grab the gun ... Power to the people, It's time we take it back."

Held that had this song been part of a larger dramatic work, the dramatic or documentary merit of the whole might have put the militant song into a different perspective. On its own, the overwhelming effect of the song is not purely aesthetic. Its dominant effect is that of militancy and violent threats.

Held that even if the song had no artistic value, it could still be permissible in terms of freedom of speech to broadcast it on the airwaves, provided it did not incite to imminent violence.

Held that although the song contains a few words which could be regarded as not inciting imminent violence, the general effect is one of an urgent call to action: The lyrics urge not only to "get out or we will kill", but also "tell my people fight", with machine gun sounds in the background (the latter are heard on three occasions, altogether). Likewise, "I'll blind you with heat quick" and "I'm gonna get this panga to your neck" and "tell my people fight" and "the future's in our hands right now in our grasp" and " now it's time to turn the tables" and "it's time we take it back" and "tell the oppressor get out[,] Tell my people fight".

Held that although the Tribunal has noted that the song is currently only broadcast after 01:00, the test is an objective one: is the threat that of imminent violence? The reaction of the viewer or the time of the broadcast is irrelevant in law. The Tribunal is convinced that the song as broadcast incites to imminent violence. The song threatens imminent violence and is, accordingly, prohibited by the Broadcasting Code for broadcasting.

Order In 2007 a complaint was received regarding the same song, and the Registrar referred the matter to adjudication. The adjudicator was only asked to address whether the song amounted to hate speech. The matter of incitement to imminent violence was not part of the brief. The adjudicator advised that the song should not be broadcast when many young children are part of the audience. In that sense, the SABC was bona fide when broadcasting the song only after midnight. No sanction is, accordingly, imposed.

It should be noted that the commercial distribution of the DVD, or other recordings of the song, are not limited by this order. That is a matter for the Films and Publications Board to decide upon after a complaint is lodged. The order of the BCCSA only relates to the airwaves.

The complaint was upheld. No sanction was imposed as a result of the bona fides of the SABC in regard to the broadcast.

JUDGMENT

JCW VAN ROOYEN

[1] The SABC broadcast an audio-visual clip of a song, "Get Out", by a singer and his group called Zubz. A complaint was lodged with the Registrar claiming that the Broadcasting Code had been contravened in that the song amounted to a contravention of clause 16.3 of the Broadcasting Code. As a matter of procedure, it should be noted that it is not the performers of the song who are involved in this matter, but the SABC as broadcaster. The BCCSA has no jurisdiction over performers whose songs are broadcast.

[2] The SABC responded as follows: "The song in question aims to highlight the views of people who are still identifying with the old attitudes of the past and not playing a role in working towards a common future for all. The artist is trying to raise the concerns about people oppressing others and how this will not be tolerated, referring to such issues as slavery, rape and other criminal concerns. The music video is not intended to cause any harm or grief to any person, culture or religion. We believe that there has been no contravention of the Code."

[3] The transcript of the song, which is performed in typical hip hop style, reads as follows:

"Get Out
Tell the oppressor get out/
And tell my people fight/
For real you need to watch out/
Because you...feel the gun blast (machine gun sounds)/
You know you really need to watch out/
Because that condescending tone you drop when you talk to me could get your head blown serious/
Don't mistake my kindness for weakness just like your forefathers/
I'll blind you with heat quick[1] /
Understand I'm gonna get this panga to your neck/
Take what is mine today and I'll rob you tomorrow/
Take my time it's payback/
Tell my people fight/
And tell the oppressor get out/
‘Caus I know my rights/
You need to watch out/
Tell his ass to get out/
‘Caus we hate to fight/
....like corner pit bulls you make us bite/
The uninvited guest, we embraced him and placed..../
Now it's time to get out ‘cause he violated/
We gave him power and our people he annihilated/
Give him the warning and grab the gun/
Make sure that it's done right/
There's no denying the past/
But the future's in our hands right now in our grasp/
Listen, they got the best of us before/
Now it's time to turn the tables so we settle up the score/
It's for the brave living, the hate taken, the raped women, the slave labour/
The sustenance of every African is of true wealth on black man's land/
There needs to be a precedent set/If freedom is ours why is there no evidence yet?/
If the majority vote, why do minority rule?/
Why they don't teach knowledge in the college or schools?/
I'll tell you why,/
It's about power held by the greedy and controlled by the cowards/
Well I've got a message to all the fake jacks/
Power to the people, It's time we take it back/
Tell the oppressor get out/
Tell my people fight/Cause I know my rights/
It's not all white people that's racist/
And not all white people perpetuate the imbalance/
So not all white people need to be addressed."

[4] Clause 16.3 of the Broadcasting Code, which repeats the wording of section 16(2) of the Constitution of the Republic of South Africa, provides as follows: 

Licensees shall not broadcast material which, judged within context, amounts to (a) propaganda for war; (b) incitement of imminent violence; or (c) the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

[5] Clause 17 provides for an exception to clause 16 and reads as follows:

The abovementioned prohibitions shall not apply to - 

a bona fide scientific, documentary, dramatic, artistic, or religious broadcast, which judged within context, is of such nature;

 scientific, documentary, dramatic, artistic, or religious broadcast, which judged within context, is of such nature;

broadcasts which amount to discussion, argument or opinion on a matter pertaining to religion, belief or conscience; or

broadcasts which amount to a bona fide discussion, argument or opinion on a matter of public interest.

[6] A crucial question is whether the broadcast of the song is guaranteed by the fundamental right to freedom of expression, which includes the right to artistic creativity. This right may, in accordance with section 36 of the Constitution of the Republic, only be limited where the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account, inter alia, several relevant factors which are set out in the section. The right is also directly limited by section 16(2) of the Constitution of the Republic of South Africa. 

[7] Freedom of speech must be awarded a generous interpretation and be fully invoked at the outset when testing the facts against clause 16.3 of the Broadcasting Code[2]. In Islamic Unity Convention v The Independent Broadcasting Authority and Others, [3] Langa DCJ (as he then was) convincingly contrasted the current state of freedom of expression with that of the restrictive past, as follows:

"Notwithstanding the fact that the right to freedom of expression and speech has always been recognized in the South African common law, we have recently emerged from a severely restrictive past where expression, especially political and artistic expression, was extensively circumscribed by various legislative enactments. The restrictions that were placed on expression were not only a denial of democracy itself, but also exacerbated the impact of the systemic violations of other fundamental human rights in South Africa. Those restrictions would be incompatible with South Africa's present commitment to a society based on a ‘constitutionally protected culture of openness and democracy and universal human rights for South Africans of all ages, classes and colours'.

South Africa is not alone in its recognition of the right to freedom of expression and its importance to a democratic society. The right has been described as one of the essential foundations of a democratic society; one of the basic conditions for its progress and for the development of every one of its members . . . As such it is protected in almost every international human rights instrument. In Handyside v The United Kingdom[4] the European Court of Human Rights pointed out that this approach to the right to freedom of expression is "applicable not only to ‘information' or ‘ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that which there is no ‘democratic society'."

The pluralism and broadmindedness that is central to an open and democratic society can, however, be undermined by speech which seriously threatens democratic pluralism itself. Section 1 of the Constitution declares that South Africa is founded on the values of ‘human dignity, the achievement of equality and the advancement of human rights and freedoms' Thus, open and democratic societies permit reasonable proscription of activity and expression that pose a real and substantial threat to such values and to the constitutional order itself. Many societies also accept limits on free speech in order to protect the fairness of trials. Speech of an inflammatory or unduly abusive kind may be restricted so as to guarantee free and fair elections in a tranquil atmosphere." (my emphasis in italics and most footnotes omitted).

(my emphasis in italics and most footnotes omitted). 

The Constitutional Court held that section 16 (2) of the Constitution of the Republic of South Africa placed an absolute limit on freedom of speech. That section 36 would, nevertheless, also place further limits on freedom of expression is, however, also true. Thus, child pornography and the unreasonable[5] infringement of dignity (which includes a person's reputation and privacy)[6]would not be protected.

[8] The Films and Publications Act 1996 and the Broadcasting Code both state the general rule: when a film, judged within context, includes propaganda for war, incitement to imminent violence or the advocacy of hatred based on religion, which constitutes incitement to cause harm, it amounts to a contravention of the Act or Code. It is only when such advocacy is found to be the case that the exemptions of bona fide drama, et cetera, become operational. From the language of the Act and the Code one might conclude that, even if a film or broadcast amounts to propaganda for war, or incitement to imminent violence or the advocacy of hatred based, for example, on race, it would be exempt if found to amount to, for example, bona fide drama. This literal approach to the Act and Code is not compatible with the Constitution: if material amounts to propaganda for war, incitement to imminent violence or the advocacy of hatred, the fundamental right to freedom of expression is not protected.[7] Artistic creativity and scientific research are also protected by the fundamental right of freedom of expression, and must be considered in an integrated manner as part of the first question as to whether what is adjudicated is protected by the fundamental right. However, if the result of this integrated approach is that the material nevertheless amounts to propaganda for war, incitement to imminent violence or the advocacy of hatred, then the fundamental right has been overstepped.

[9] It is of interest to the present case to note that, as was held by the Constitutional Court in De Reuck v The Director of Public Prosecutions and Others,[8] a contextual approach must be followed when considering material. The Ministerial Task Group, which advised the Minister of Home Affairs on the new Films and Publications Act and drafted the new Act,[9] also emphasized this approach in its 1994 report, and an emphasis on "context" is clearly present in the Act. Parliament's attempt in 1999 to exclude considerations regarding context when dealing with child pornography, was rejected by the Constitutional Court in De Reuck. The approach to the definition of child pornography in De Reuck also clearly illustrates an integrated approach to the matter: if the material, judged as a whole, elicits in the reasonable viewer an appreciation of its aesthetic value, section 27 (ban on possession of child pornography) does not apply. It is also of interest to note that this Tribunal, in its approach to the film, The Story of "O", directly posed the question as to whether it amounts to bona fide drama. That the first question to be posed in freedom of expression cases is whether the freedom permits the expression of certain problematic material, is also clear from the judgment of Moseneke DCJ in the Laugh It Off Promotions [10] judgment of the Constitutional Court. Ultimately, everything depends on context: if a film contains incitement to imminent violence or the advocacy of hatred, the question remains as to whether such speech is contextually justifiable. Thus, a film on the history and relevance of militant rap might be saved by the documentary nature of the film, judged as a whole. If, however, the overall effect of a film, judged as a whole, is that incitement to imminent violence or the advocacy of hatred is approved or justified, the limits would be overstepped.

[10] The subjective intention of the producer is not relevant in determining whether the work is a bona fide artistic or documentary production[11].Bona fides relates to the question as to whether the song as performed by the group is indeed, according to objective standards, a genuine artistic or documentary creation[12]. The reaction of the audience is irrelevant: if there is incitement, that is the end of the inquiry - see S v Nkosiyana [13]where Holmes JA states that "an inciter is one who reaches and seeks to influence the mind of another", a test which excludes the reaction of the person who is sought to be incited. Although the learned Judge of Appeal said this within the context of a criminal prosecution, I am of the opinion that it is equally applicable to incitement in clause 16. 3 of the Broadcasting Code. The limitation of the fundamental right to freedom of speech in these circumstances, has been held to be justified by Langa DP (as he then was) in the Islamic Unity Convention judgmen t[14] of the Constitutional Court. 

[11] Television, with its audio-visual impact, is an extremely strong medium in reaching the public. For this purpose, it utilizes the airwaves, which are res publicae, and are regulated in terms of legislation or by way of, for example, the BCCSA which is a judicial body constituted by the National Association of Broadcasters in terms of section 56 of the Independent Broadcasting Authority Act 1993 and now, section 54(3) of the Electronic Communications Act 2005. O'Regan J has also emphasized t he role of the media within a democracy in Khumalo & Others v Holomisa:[15]

In a democratic society . . . the mass media play a role of undeniable importance. They bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture. As primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigour, courage, integrity and responsibility. The manner in which the media carry out their constitutional mandate will have a significant impact on the development of our democratic society. If the media are scrupulous and reliable in the performance of their constitutional obligations, they will invigorate and strengthen our fledgling democracy. If they vacillate in the performance of their duties, the constitutional goals will be imperilled. The Constitution thus asserts and protects the media in the performance of their obligations to the broader society, principally through the provisions of s 16 [of the Constitution].

[12] One of the aims of democracy is to put an end to violent conflict. The democratic ideal is that stability should be sought through non-violent means. The Rule of Law is also a necessary ingredient of such a society - see section 1 of the Constitution of the RSA. Dominance through the barrel of a gun, or by means of oppression in relationships, whether the latter are (for example) of a domestic, racial or religious nature, is taboo within a democracy. Section 12 of the Constitution of the Republic protects the individual and, of necessity, the public, against violence. This section provides, inter alia, that "everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources." Section 16(2)(b) of the Constitution of the Republic of South Africa, accordingly, prohibits freedom of speech, in any form, which incites to imminent violence. This prohibition is included in clause 16.3 of the Broadcasting Code.

[13] Artists are usually afforded special leeway with regard to freedom of expression. This would apply to hip hop (also known as rap) songs, an artistic genre that frequently reflects "ghetto" anger and tensions, and where the language and images are often harsh and shocking. The lyrics are perceived by some as promoting violence, as well as promiscuity and drug use, and also of being misogynistic. Certain forms of hip hop music are also highly politicized and militant. The song, "Get Out" by the rap/hip hop singer Zubz, clearly falls into the latter category, as is evident from lyrics such as "Tell the oppressor get out/And tell my people fight ... I'm gonna get this panga to your neck/Take what is mine today and I'll rob you tomorrow ... grab the gun ... Power to the people, It's time we take it back."

[14] Had this song been part of a larger dramatic work, the dramatic or documentary merit of the whole might have placed the militant lyrics into perspective. On its own, however, the overwhelming effect of the song is neither purely aesthetic nor documentary. Its dominant effect is that of militancy and violent threats. Even if it were to be accepted that the performance of the song has some aesthetic effect, the latter effect is not strong enough to save the song, as was the case in this Tribunal's judgment concerning The Story of ‘O'. [16]

[15] The Tribunal has decided not to venture into the question whether hatred is indeed advocated against white people to the extent that it incites to harm. Such a finding should only be made in unequivocal cases; otherwise it might be perceived as unreasonably limiting the right to express political ideas. In the light of the conclusion which has been reached, it is not necessary to decide this issue.

[16] The alternative question is whether the song incites to imminent violence in terms of clause 16. This context is one where the democratic freedoms of all citizens, and not merely a ruling minority group, are defended. The song does indeed make out a case for a violent solution. The opening words are "tell the people get out and tell my people fight...because you...feel the gun blast" (with machine gun sounds in the background). Other examples are to be found in "I'll blind you with heat quick", "gonna get this panga to your neck", "I'll rob you tomorrow", "tell my people fight", "give him the warning and grab the gun", "tell my people fight".

[17] The final question is, however, whether the threatened violence is "imminent", as lause 16.3 of the Code and section 16(2)(b) of the Constitution require. The inclusion of the word "imminent" was undoubtedly influenced by the "fighting words doctrine" of the US Supreme Court. In Chaplinsky v New Hampshire [17] Chaplinsky, a Jehovah's Witness, told a New Hampshire town marshal, who was attempting to prevent him from preaching, that he was a "God-damned racketeer" and "a damned fascist", and was arrested. The Court upheld the arrest and said:

"There are well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libellous, and the insulting or ‘fighting words', those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." 

[18] After Chaplinsky the Court continued to uphold the doctrine, but it is clear that it has also gradually narrowed the grounds on which the doctrine would be applied. Thus, in Brandenburg v Ohio[18] the right of the Ku Klux Klan to publicly call for the expulsion of African Americans and Jews from the United States, and the right to suggest the desirability of violence (in veiled but unmistakable terms) were upheld, unless the speech was intended to cause violence and had a high likelihood of imminently producing such an effect. The words used by the Klansmen illustrate how far the US Constitution allowed them to go: they said that "It's possible that there might have to be some revengeance taken," that the "nigger should be returned to Africa, the Jew returned to Israel" that we should "[bury] the niggers", as well as other equally offensive statements. The Court required that before a State could prohibit such language, it must amount to "advocacy which is directed at inciting or producing imminent lawless action and is likely to incite or produce such action". The Court held that the conduct of the Ku Klux Klan had not gone that far. Also, in Street v New York, [19] the Court overturned a statute prohibiting flag burning and verbally abusing the flag. In Cohen v California [20] it was held that it was permissible for Cohen to wear a jacket that said "Fuck the draft", since there had been no personal abuse. In R.A.V. v City of St Paul [21] the Supreme Court struck down an ordinance which, in its view, limited speech which fell within one of the articulated disfavoured topics. This was regarded as content-based discrimination and the ordinance was accordingly invalidated. The case dealt with the validity of a prosecution of several teenagers who burnt a cross on an African-American's lawn. [22]

[19] Although the song "Get Out" contains a few phrases which could be regarded as not inciting to imminent violence, the general effect is one of an urgent call to action: it is not just "get out or we will kill", but "tell my people fight", with machine gun sounds in the background (these sounds are heard on three occasions). Likewise "I'll blind you with heat quick" and "I'm gonna get this panga to your neck" and "tell my people fight" and "the future's in our hands right now in our grasp" and "now it's time to turn the tables" and "it's time we take it back" and "tell the oppressor get out, tell my people fight".

[20] The Tribunal has noted that the song is currently only broadcast after 01:00. However, the test is an objective one: is the threat that of imminent violence? As pointed out above with reference to Appellate Division authority, it is irrelevant what the reaction of the listeners or viewers is, or what the time of the broadcast is. If the song threatens imminent violence, it is prohibited by the Constitution of the Republic and by the Broadcasting Code. The Tribunal is convinced that this is the case.

[21] In 2007 a complaint as to the song was received, and the Registrar referred the matter to adjudication. The adjudicator was only asked to address whether the song amounted to hate speech. The matter of incitement to imminent violence was not part of the brief. The adjudicator did not arrive at a finding of hate speech, but advised that the song should not be broadcast when many young children are part of the audience. Although this Tribunal is not bound by that adjudication, which was at the first level of adjudication, the SABC was bona fide when, after that, it broadcast the song only after midnight. No sanction is, accordingly imposed. 

[22] In the result, the audio-visual presentation of the song as performed by the group Zubz, is held to have amounted to incitement to imminent violence and as having been in breach of the Broadcasting Code.

The mere audio broadcast of the song was not before this Tribunal and the question should, in law, be left open as to whether that would also amount to a contravention of the Code. It is, however, unlikely that the same conclusion would not have been reached had the song without the visuals been broadcast.

It should be noted that the commercial distribution of the DVD or other recordings of the song are not limited by this finding. That is a matter for the Films and Publications Board to decide upon once a complaint is lodged.

The complaint is upheld. No sanction is imposed.

JCW VAN ROOYEN SC

Commissioners Viljoen, Lötter, Makeketa, Maziya and Gilfillan concurred.

FOOTNOTES:
[1] "Heat" is a reference to a firearm, the Tribunal was told.  In Ghetto-slan the phrase "packing heat" us used to describe a person wearing a firearm.
[2] Laugh It Off Promotions CC v SAB International (Finance) BV t/a Sabmark International (Freedom of Expression Institute as Amicus Curiae) 2006 (1) SA 144 (CC).
[3] (supra) at paragraph [27].
[4] (1976) 1 EHRR 737 at 754.
[5] To summarize the various specific exclusions of protection of free speech in this regards.
[6] 2002 (5) SA 40 (CC) at paras [22]-[24]. 
[7] See Islamic Unity Convention v The Independent Broadcasting Authority and Others (supra).
[8] 2004(1) SA 406 (CC) at para [32].
[9]Its report was published on 3 March 1994 by the Government Printer Pretoria and can be read on the website of the BCCSA under "Annual Reviews"
[10] Supra.
[11] See De Reuck v Director of Public Prosecutions, WLD and Others 2004(1) SA 406 (CC) at para [32].
[12] See Publications Control Board v Central News Agency Ltd 1977 (1) SA 717(A).
[13] 1966 SA 655 (A) at 659 per Holmed AJ.
[14] Supra.
[15] 2002 (5) SA 40 (CC) at paras [22]-[24].
[16] Brett and Griffiths v e-tv, Case No: 38/2006.
[17] 315 US 568 (1942).
[18] 395 US 444 (1969).
[19] 394 US 576 (1969).
[20] 403 US 15 (1971).
[21] 112 S. Ct 2538 (1992).
[22] Compare Floyd Abrams (ed Jane Duncan) Between Speech and Silence (1996) 152 and 1992 Villanova Law Review 743; 1993 Israel Year Book 85.

This is the text of a judgment by the Broadcasting Complaints Commission of South Africa April 2008