Freedom of speech: The old flag is the first domino

Ernst van Zyl says legislation should not be used to protect people from speech or symbols that are merely offensive

Freedom of speech: The old flag is the first domino

24 May 2022

AfriForum’s appeal against the banning of the old South African flag by the Equality Court has once again sparked a heated public debate on freedom of speech. Some slyly dilute this fundamental debate into a simple battle between inhuman, callous apartheid apologists, who want to wave the old flag again, and sympathetic, compassionate human rights crusaders, who want to save people from an evil flag. However, this underhanded rhetorical tactic in debates over freedom of speech is as old as this debate itself.

Debates about freedom of speech are inherently controversial in nature, seeing as the right to freedom of speech is entrenched precisely to protect speech that some people or governments may find offensive or speech that they may not like. If freedom of speech only protected speech that was popular or speech that everyone liked, then it would not have required any protection in the Constitution in the first place.

The Constitution specifically provides for limits on freedom of speech by means of hate speech, which must include incitement to violence as a core component to qualify as such. This distinction between hate speech and offensive speech or symbols must always be considered in this debate. Because there is a vast difference, it is intellectually poor, or even dishonest, to equate the case over the old flag with the case over the singing of Kill the Boer. The song falls squarely within the definition of hate speech, while the old flag must be crammed into it with creative intellectual gymnastics.

Your right to freedom of speech enables you and others to defend your other rights when they are threatened. Freedom of speech is therefore crucial, seeing as without it, you will have to fight for your other rights without a voice.

You stop the rising tide trying to erode freedom of speech by building dam walls where the waves are hitting, rather than fleeing to the higher ground of less controversial matters. If you do not initially take a strong stand in the most controversial issues and rather shrink back, then you lose that ground, which then automatically elevates the second most controversial issue to the status of most controversial. Soon you have fallen back so far, that there are no less controversial matters to flee to, and then all our other rights drown in silence.

Legislation should not be used to protect people from speech or symbols that are merely offensive, because the spectrum of what different people may find offensive is almost endless. I have no personal love for the old flag, but I understand that if the government is given the power to ban symbols that I do not feel strongly about, it is only a matter of time before they start banning symbols that are precious to me. When the first domino tilts, those in the back of the row can start shaking in their boots. To believe that the banning of controversial symbols that offend will stop at the old flag is like believing in 2020 that the lockdown would last only 21 days.

George Washington said, "If freedom of speech is taken away, then we can be led dumb and silent like sheep to the slaughter." History teaches us that those rights we bought with blood and tears are not expropriated overnight, but rather are slowly and insidiously chipped away at piece by piece. When the state plunges its cold claws into the symbols you love, it's already too late. We must therefore be careful not to write off those who warn about a leak in the ship just because the leak is not on our side.

Ernst van Zyl is a Campaign Officer for strategy and content at AfriForum. He has a master’s degree in Political Science (Cum Laude) from Stellenbosch University. Ernst is co-presenter of the Podlitiek podcast, presents the Afrikaans podcast In alle Ernst and has a channel for political analysis and interviews on YouTube. Ernst usually posts on Twitter and YouTube under his alias Conscious Caracal.