Ruling by Press Ombudsman, Joe Thloloe, in the matter of Lesbian, gay, bisexual and transgender community vs Sunday Sun, July 29 2008

The office of the Press Ombudsman received nearly 1 000 complaints against the Sunday Sun for publishing a column on July 20, 2008 by Jon Qwelane under the headline Call me names, but gay is NOT okay.

The Joburg Gay Pride Festival, for example, described the column as "a piece that amounts to hate speech".

The board of the festival also argues that the column "compares homosexual relations to relations between animal and man, and this means that the writer equates homosexuality with bestiality."

The board says comment such as Qwelane's could incite violence against lesbian, gay, bisexual and transgender (LGBT) South Africans.

Analysis

Section 2.4 of the Complaints Procedures provides that "the Ombudsman may, if it is reasonable not to hear the parties, decide the matter on the papers. That is the route I have decided to take because the volume of the complaints and the public outcry call for speed in resolving this matter.

The thrust of the column is a call for a revision of the country's constitution to take away the rights that gays and lesbians have won in the new South Africa.

This is the same type of debate as those on the death penalty and on proportional representation. Debates about amendments to the constitution are protected under the freedom of speech clauses of the constitution. Qwelane has the right to call for amendments.

Hate speech?

In the process of arguing for the amendments he proposes, Qwelane does not hide his "serious reservations" about the homosexual "lifestyle and sexual orientation." 

He does go further to put down gay and lesbian people. He writes about "the rapid degradation of values and traditions by the so-called liberal influences of nowadays...." Even though he blames "liberal influences of nowadays for the degradation, the structure of the sentence tells the reader that for Qwelane this degradation is demonstrated in "men kissing other men in public, walking holding hands and shamelessly flaunting what are misleadingly termed their ‘lifestyle and sexual preferences'".

At another point Qwelane wonders "what it is these people have against the natural order of things".

Do these comments constitute hate speech?

The SA constitution says the right to freedom of speech does not extend to "advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm'.

In this column Qwelane does not advocate hatred but merely states his views on homosexuality and is not calling for the harming of gays and lesbians.

It is robust language but not hate speech, as pointed out by Gender Equality Commissioner Yvette Abrahams in a letter published in Sunday Sun, "Qwelane stops just short of what would be considered hate speech under the law".

Section 2.1 of the Press Code, however, states: ‘The press should avoid discriminatory or denigratory references to people's race, colour, ethnicity, religion, gender, sexual orientation or preference, physical or mental disability or illness, or age."

Qwelane moves from calling for an amendment to the constitution to expressing contempt for gays and lesbians and thus making denigratory references to them.

Bestiality

Does Qwelane equate homosexuality with bestiality? A careful reading tells me that he is not: What he does say is that after allowing gay marriages it will not be long before we legalise bestiality. He is not equating the two, but placing them on different rungs on a ladder, with bestiality lower. By implication however he is placing heterosexuality higher.

The underlying meaning is that gays and lesbians are a lower breed and the column thus disparages them.

This part of the column and the cartoon are also in breach of Section 2.1 of the Code.

Violence

Can the column lead to violence against gays and lesbians?

To me it appears most unlikely. There is nothing in the column that incites hatred and calls for the harming of homosexuals.

Columnists are protected by the constitution for as long as their comments don't propagate war, incite imminent violence and advocate hatred that constitutes incitement to cause harm. Qwelane was well within the law but fell foul of the Press Code.

Sunday Sun

To the credit of the newspaper, it responded to the outcry with a poster about the lashing that Qwelane got from readers, a prominent flag on its front page about JQ taking a beating and a page of letters from angry readers condemning him and the newspaper. It still fell short of apologising.

In an editorial, Sunday Sun publisher Deon du Plessis argues: "Let Qwelane speak...as he did last week. Let those who disagree also speak...as they do this week. Hopefully we'll learn more about each other along the way."

These are noble sentiments in defence of freedom of speech, but there are rules of public debate that have to be followed, especially in the press.

Finding

Sunday Sun is in breach of Section 2.1 of the South African Press Code on three counts:

• Publishing denigratory references to people's sexual orientation in the column by Qwelane;
• Implying that homosexuals are a lower breed than heterosexuals; and
• In the cartoon accompanying the column, which was also disparaging of homosexuals.

Sanction

The newspaper has already gone a long way to making amends for its offence. I will however rule that it complete the amends by publishing an appropriate apology, which will be provided by the Ombudsman's office.

Appeal

Within seven days of receipt of this decision, any of the parties may apply for leave to appeal to the chairperson of the Press Appeals Panel, Judge Ralph Zulman, and the grounds of appeal shall be fully set out.

Joe Thloloe

Press Ombudsman

Issued by the Press Council July 29 2008