Planned amendments to the Film and Publications Act reflect a 'bad nationalist' project which seeks to control artistic expression, writes the FXI's Jane Duncan. Not only would the planned amendments subject the media to pre-publication censorship, but artists would have to police themselves too, to prevent anything seen as harmful.

Jane Duncan of the Freedom of Expression Institute writes:

Next month, the Parliamentary Portfolio Committee on Home Affairs will hear public representations on the Film and Publications Amendment Bill, which will amend the original 1996 Act. Ostensibly, the amendments are being introduced to curb the easy availability of pornography, especially child pornography.

Presumably, the Department of Home Affairs is going to change the Bill after last year's storm of criticism, when media organisations objected to amendments removing the long-standing exemption of the media from the purview of the Act. This removal would result in the media being subjected to pre-publication censorship by the Film and Publications Board, in violation of their editorial freedom.

While it remains to be seen whether the Department has addressed these specific concerns, it is doubtful whether the overall moral conservatism of the amendments will change without a bigger fight for free expression. Writers and artists should be especially worried; in fact, everyone who recognizes the dangers of what could be called 'bad nationalism' taking root in South Africa should be concerned about this Bill.

Bad nationalism advocates the protection of family and national values, based on the doctrine of neo-liberal, free market fundamentalism. Pornography and other controversial forms of speech are portrayed as a threat to these values. It is an inherently repressive ideology that mobilises ethnic, religious or racial identities to ensure the rise to power of particular elites, and the muzzling of dissenters as the 'enemy within'. It views creative expression as inherently subversive, and as something to be controlled in case it leads to moral decay.

The dangers of bad nationalism are reflected in a call, made by the Chairperson of the Parliamentary Portfolio Committee on Home Affairs, Patrick Chauke, for Parliament to pass a law that would 'protect our nation, our people' from the onslaught of pornography. Reportedly, Chauke commented that if the Committee banned pornography in the media, and the Constitutional Court declared the Bill unconstitutional, then 'one should perhaps consider amending the Constitution'.

This call is extremely dangerous, and should be seen in the context of other calls made last year by pro-death penalty and anti-gay marriage groups to amend the Constitution. Public displays of homophobia and regressive ethno-nationalism by former Deputy-President Jacob Zuma and his supporters are also of concern, and it is unsurprising that he is now beginning to court the white right-wing. These are all indicators of a growing conservative nationalist politics in South Africa. At some stage in the future, if these different threads were knit together into a single political programme, then South Africa could be in serious trouble.

Such bad nationalism swept the war-mongering George Bush back into office in America. This political current is captured in the platform of the US-based Traditional Values Coalition, which defines traditional values as those based on the Bible, and include protecting the right to life and opposing abortion, ensuring fidelity in marriage and abstinence before marriage, opposing homosexuality and pornography, and promoting patriotism underpinned by a political commitment to neo-liberalism. In terms of this world-view, sex is private and is meant for procreation, not pleasure; this desire to control sexuality informs their anti-pornography position, not an inherent concern about harm. In America, this political movement has created a theocracy by stealth.

Conveniently, for political conservatives, pornography is responsible for the war on women and children, not neo-liberalism. Perversely, the very neo-liberal state that unleashed this war must now rush to their protection. Such is the case in South Africa, where the Bill seeks to make controversial material subject to government scrutiny on a similar basis. This is in spite of the fact that numerous Courts have held that adult discourse cannot be dumbed down to make it acceptable for children: to do so would amount to ‘burning down the house to roast the pig’.

A pro-censorship political project has been on the cards for some time now, with changes being made to the Act in 1999, and again in 2004. The manner in which the Act’s objectives have been expanded is telling. The Board’s objective in 1996 was to regulate the distribution of certain films and publications. The Board recognized that adults had the right to access offensive material, as long as it did not spill out into public spaces. In 1999, the creation, production, and possession of certain materials were included in the objectives. Now the objectives were changed once again in the 2006 amendment to include the outlawing of much offensive material, in a thinly-disguised attempt to reinstate morality as the basis for publications control.

The original Act made a clear distinction between publications and films. The former – which included artworks – would generally not be classified unless a complaint was received. Art would be subject to an artistic exemption. All films had to be submitted for classification, as film was considered a more pervasive medium. The rationale for this distinction was that the written word generally contained inherent artistic merit, and therefore should be considered 'innocent until proven guilty'.

Now, in terms of the Bill, all material falling foul of the offending classifications – including material portraying hate speech, sexual conduct, propaganda for war and incitement to imminent violence – must be submitted. So writers and artists will be required to police themselves, submit potentially offensive material and effectively ask for a 'licence to create'; if they do not, they will be guilty of a crime. The classification committee will then decide whether to grant the work an artistic exemption.

There are no artistic exemptions for works that contain visual presentations, descriptions, or representations of child abuse, propaganda for war and incitement to imminent violence. Hate speech has an artistic exemption, but the definition of hate speech is so broad that potentially, any controversial speech could fall foul of this provision, which bodes ill for political speech. Given that much contemporary avant-garde art is inherently transgressive, creative expression could be stopped in its tracks.

The right of any person who stands to be affected by a decision of the Board, to appeal, has also been removed, which undermines the basic principle of administrative justice.

The Board’s (relative) independence has also been eroded, effectively making it a government body. The cumulative effect of these changes are that government will have control over the most controversial aspects of public discourse, which could include everything from pornography and art, to pamphlets protesting about poor service delivery. Unless these bigger issues are addressed in the debate about the Bill, they may creep through into the law untouched. It is therefore important that the media fight for freedom of expression in its broadest sense, not just for media freedom.

Censorship is antithetical to freedom, and freedom should be the basis on which the South African nation is built. However, we should not protect pornography – as opposed to erotica – because it is a ‘public good’. Clearly it is not, as much of it is based on the eroticisation of inequality. But we need to oppose its banning as a simplistic solution, because this drive is buoyed by form of politics that will ban everything in its path, if given the chance.

* Jane Duncan is the Executive Director of the Freedom of Expression Institute. An edited version of this article appeared in the Sunday Independent on 8 April 2007