Banning symbols doesn’t work

29 April 2019

In the coming week, the Nelson Mandela Foundation (NMF) will be in court to obtain an order that the “gratuitous display” of what is commonly referred to as the “old South African flag” should be declared hate speech. When the NMF uses the term “gratuitous display” they basically mean displays of the flag other than in the arts or for historical purposes, which means that an order in its favour would amount to a far-reaching ban on the display of the flag. The term “1928 flag” is more appropriate than “old South African flag” or “apartheid flag”, given that the flag was adopted already in 1928, twenty years before the National Party’s advent to power, and remained the official flag, even for a short while under Nelson Mandela.

To deny that the flag is offensive to the vast majority of people in South Africa would be bitterly naïve. However, to claim that the flag has to be banned based on the fact that it is offensive would put us on a dangerous slippery slope. This is because offensiveness alone cannot constitute hate speech.

AfriForum was dragged into this case by the NMF despite the fact that AfriForum does not display the flag at all and actively discourages its members from displaying the flag for political purposes. People pitching up with the flag at AfriForum events have been given the choice to put it away or to leave – and we have been criticised about this from the right. Despite the fact that AfriForum has no particular love for the flag, we have decided not to withdraw from the case but to oppose it on the grounds that the far-reaching ban that the NMF intends to achieve would be an unjustifiable breach of the right to freedom of expression.

Douglas Murray remarked that the problem with fighting for free speech is that you never quite get to do it on the grounds that you would have hoped for. It is never necessary to fight for free speech when people say that they agree with the president, that the government is doing a good job, or that we all need to love each other. The fight for free speech becomes important when people express themselves in ways that are controversial and when there is an attempt to silence them using state mechanisms. We would do well to remember the words of Nelson Mandela when he said that if you want to take away the freedoms of others, it merely shows that you are a prisoner of hatred yourself. This leaves us to conclude that the NMF’s stance would not have been approved by Mandela himself.

Research has found that the best way to combat hurtful speech is with effective counter-speech (such as AfriForum explaining to its members why they should not display the flag) and that banning symbols has never been an effective way to change people’s views. Also, banning symbols often leads to a backlash, where people who had no propensity to display the flag in the first place, might begin doing so in protest to whatever government is doing. Much like the communist flag under apartheid, the 1928 flag could potentially become a symbol of protest against a state that aims to oppress dissenting ideas. Even if you dislike the flag and even if whatever angers you about the South African government – be it service delivery, state capture or whatever – has nothing to do with the flag, you would be more inclined to use it to express your protest against the state, knowing that it is a way to attract attention because the state is actively trying to prevent people from displaying it.

The displaying a flag remains within the ambit of free speech, regardless of how offensive the flag is. The Constitutional argument is that free speech does not extend to propaganda for war, incitement to imminent violence or advocacy of hatred that is based on race, ethnicity, gender and religion, and (my emphasis) that constitutes an incitement to cause harm. To display a flag could be hurtful, but it is not an incitement to cause harm, because displaying a flag contains no call to action.

One would have thought that South Africa of all countries would have learned the lesson long ago that using the mechanisms of the state to oppress a particular expression is almost never a good idea, especially when that expression is not coupled with an incitement to cause harm. The most effective way to deal with such views has always been to engage in the battle of ideas, as opposed to simply preventing people by law from expressing them. The latter almost always results in unintended consequences.

Ernst Roets is Deputy CEO of AfriForum, 29 April 2019