The David Bullard column that lost him his spot in the Sunday Times is full of racist rhetoric, writes Franny Rabkin in The Weekender. But it probably stops just short of hate speech, as defined in the constitution. While it does advocate hatred, it is probably not intended to incite harm. As such it is protected by the free speech provision – but Bullard is not protected from its consequences, such as being fired.
IT IS a bitter pill to swallow. Just a few days before we commemorated the assassination of Chris Hani, we had to accept that one of the freedoms he died for was David BullardÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s right to produce the column he did last week in the Sunday Times.
When we protect the right to freedom of expression, we protect even the Bullards of this world. Freedom of expression, our Constitutional Court has said, ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œ lies at the heart of a democracyÃƒÂ¢Ã¢â€šÂ¬Ã‚Â.
The right is seen as key ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œfor many reasons, including its instrumental functions as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truthÃƒÂ¢Ã¢â€šÂ¬Ã‚Â.
But what are we protecting here?
A proper deconstruction of all the negative stereotypes Bullard drew on and all the superiority notions he took as given, could fill a doctoral thesis.
First, his article is historically flawed. Gold mining hadnÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢t been discovered? Rubbish! DoesnÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢t he know of the magnificent gold statues of Great Zimbabwe that Cecil Rhodes melted down into ingots?
Then, he feeds into all the colonial discourse which would have Africa as a place without a history, without development and without agency. If the Chinese arrived in Africa today, they would find exactly the same thing Jan van Riebeeck did in 1652.
BullardÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s reference to a ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œsimple tribesmanÃƒÂ¢Ã¢â€šÂ¬Ã‚Â is an uncomfortable echo of a Nigel Bruce editorial in the Financial Mail a decade ago which spoke of the ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œsurly tribesman with his thumb in the soup and his eye on the clock ÃƒÂ¢Ã¢â€šÂ¬Ã‚Â.
And what of the reference to ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œethnic cleansingÃƒÂ¢Ã¢â€šÂ¬Ã‚Â, as something that happens every so often because, of course, blacks are really just a bunch of savages who kill each other for a lark.
And black people donÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢t love their children the way whites do. So when one dies, they can always have another. One child is the same as the next because blacks arenÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢t human at all.
If this is satire, I doubt Chris Hani would have laughed.
There are some forms of expression which are not protected by the constitution. Among these, is what is colloquially called ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œhate speechÃƒÂ¢Ã¢â€šÂ¬Ã‚Â, defined in the constitution as ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œadvocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm ÃƒÂ¢Ã¢â€šÂ¬Ã‚Â.
BullardÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s article undoubtedly advocates hatred on the basis of race. But is it incitement to cause harm?
The Constitutional Court has not, yet, decided a case on this precise aspect of the right to freedom of expression. BullardÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s column is right on the knifeÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s edge, but it probably was not meant to cause harm. Because freedom of expression is such a fundamental right, we define it broadly and we define anything which would fall outside the scope of its protection narrowly.
But the right to have and express your views, as given by our constitution, does not impose on anyone the obligation to provide you with a platform to air those views.
EveryoneÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s right to freedom of expression is protected by the constitution. But not everyone gets a column in the Sunday Times. The theory behind the right is that people are entitled to compete as equals in the ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œmarketplace of ideasÃƒÂ¢Ã¢â€šÂ¬Ã‚Â, the best ideas triumph and get you columns.
The right to freedom of expression also does not protect you from the consequences your utterances may have, when people reject your views. Or fire you.
The constitution (provided it is not hate speech) allows anyone to express racist, homophobic, antisemitic or sexist views. But it also allows anyone else not to like it.
What BullardÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s column does do is fine-tune our racism radars. What he said so crudely and openly, many say more subtly.
He has ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Â probably unintentionally ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Â done us a favour by stating the racist proposition so starkly.
Extracts for BullardÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s column
# They live in single-storey huts arranged to catch most of the dayÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s sunshine and their animals are kept nearby.
# Every so often a child goes missing from the village, eaten either by a hungry lion or a crocodile. The family mourn for a week or so, and then have another child.
# Huge metal ships land on the coast and big metal flying birds are sent to explore the sparsely pop ulated hinterland. They are full of men from a place called ChinaÃƒÂ¢Ã¢â€šÂ¬Ã‚Â¦. Suddenly the indigenous popula tion realise what they have been missing all along: someone to blame. At last their prayers have been answered.
* This piece first appeared in the Weekender on 12 April 2008.