Flags and threats: A liberal rumination on the limits of free expression

21 August 2023

Julius Malema did it again – he threatened genocidal violence as a crowd cheered him on. Somewhere, a hypothetical Oom Frikkie also displayed the 1928 South African flag on the back of his bakkie again. Are these two phenomena akin? What should be the limits of freedom of expression?
 
There is widespread debate in liberal circles about what the limits of freedom of expression are – or should be. While social democrats (anything ‘offensive’) and conservatives (anything ‘degenerate’) are quite generous about where and how expression can be limited, liberals want to maximise the space for the open exchange of ideas, including ideas that are unpleasant or hurtful. If anything, liberals tend to be divided between free-speech absolutists and those who draw the line at threats of force.
 
Terence Corrigan of the Institute of Race Relations, in a letter to Business Day, writes that South Africa should be cautious ‘against calling for prosecution or for the banning of’ Malema’s words. Corrigan notes that free expression’s importance necessitates that one should err on the side of leaving it unmolested by government. This is also why the IRR, writes Corrigan, opposes calls for banning the old flag.
 
My colleague at the Free Market Foundation, Zakhele Mthembu, in turn, writes on the ManPatria website that the only coherent approach to expression is absolute freedom. He, too, draws an equivalence between the 1928 flag and Malema’s words: both are forms of expression, and defining one as being unlike the other is arbitrary.

All expression, including threats of force, should be allowed in a free society. ‘Justice and truth necessitate that unless actual force is used against a party, no legal sanction should arise. Not perceived future force stemming from the superpower of “instigation” but rather actual inhibition of action,’ argues Mthembu.
 
As a liberal, or ‘libertarian’ (for American readers) myself, I fall into the category of prohibiting speech that amounts to a sincere threat of force. Although I believe in significantly more free expression than my social democratic and conservative counterparts, I am by no means an absolutist.
 
Aggressive force
 
The notion of ‘hate speech’ is unhelpful in determining where the liberty to express oneself begins or ends. That speech might be hateful or even hurtful seems irrelevant. People are, and must be, free to offend one another to their hearts’ content.
 
What I submit to be relevant is whether the speech threatens aggressive force.
 
While some might say the term speaks for itself, it is necessary to qualify that ‘aggressive force’ would never include ‘defensive force’ or the threat thereof, even if the defensive force is, for example, pre-emptive. And aggressive threats in this context means a threat against the life, liberty, or property of a person.
 
Symbolising or portraying or representing aggressive force, too, is not a threat of aggression. Waving a communist flag, a Nazi version of the swastika, a black pride or white pride or antifa flag, even if those ideologies seem to ‘approve of’ violence, is not itself a threat of aggression. Only if the representation unequivocally contains a threat of aggression – a clear call to action – can it be regarded as such.
 
The flag and the chant
  
The 1928 flag of South Africa can never amount to a threat of aggressive force and must therefore always be allowed as far as the state is concerned. The genocidal rhetoric of Julius Malema is, however, by its very nature threatening.
 
That the Equality Court deems the old flag to be hate speech and Malema’s rhetoric not to be, further solidifies the unhelpfulness of this categorisation of expression. The only question should be: does the expression threaten (including of course, inciting) force?
 
If the 1928 flag had the words ‘kill the non-whites’ inscribed on it, I would treat it the same way as the genocidal chant, but it does not have that. While the flag does seem coercive to many, its meaning is necessarily ambiguous, and it will mean different things to different people. There is no ‘objective’ meaning of the old flag.
 
‘Kill the Boer’, on the other hand, is not an equivocal or debatable phrase. The call to action is clearly formulated. The chant does have a history, naturally, but the mere existence of context is insufficient to compel a different conclusion.
 
If the American Patriots, during their Revolutionary War, sung a song, ‘Rape Pro-Monarchy Whores,’ the song’s context would have failed entirely to come to the assistance of the song’s ostensible legitimacy in 2023.
 
Songs of liberation, of liberty, and of shedding the yoke of oppression, are one thing (hence why many South African struggle songs and chants are perfectly unobjectionable). Songs of murder on the basis of ethnicity (referring to the Boer-Afrikaner ethnicity) or even, on a narrower interpretation, occupation (referring to the farming profession), are quite another, especially if they are not consciously satirical or comedic.
 
‘Kill the Boer’ is a sincere expression of a threat of force.
 
It should not be required to link any specific murder with Malema’s call to action. If it is required to link a specific murder with a call to action before a call to action itself becomes a legitimate ground for defensive action, would imply that pre-emptive defensive force is illegitimate until one’s life, liberty, or property has in fact already been harmed. The threat of murder should be – and in many other legal contexts, is – sufficient.
 
Pre-emptive defence
 
Indeed, it is unfair to only allow defence against coercion once that coercion has become physically manifested. Often, reacting only when the force becomes physical is too late.
 
If an assailant enters a room and with all sincerity tells John Doe that he, the assailant, is now going to stab Doe to death, then Doe is under absolutely no obligation to wait until the assailant has in fact begun stabbing him. Why must he place his own life in such perilous danger? The expressed threat by the assailant is more than adequate for Doe to take immediate, lethal action in response.
 
It would make no difference, in my view, if the assailant told Doe that he would stab Doe to death next week, or next month, or next year. While ‘imminence’ is not irrelevant, I do not think it can, on its own, vest or divest Doe of the natural right to defend himself. Imminence might simply mitigate the intensity of the kind of action Doe may take – for instance, a police report and arrest, versus an immediate act of self-help.
 
Would this have a chilling effect on freedom of expression? Would people become overly cautious about words and deeds that might be interpreted as threats of force?
One can only hope.
 
The liberal insistence on security of life, liberty, and property, is not meant to be a throat-clearing exercise. If one’s life, liberty, or property is threatened, the one doing the threatening should be placing themselves at risk of some kind of coercive punishment. The battle of ideas is only possible if all the sides of the battle respect the rules of the marketplace of ideas.
 
If one or more sides reject the very notion that they need to engage in reasoned argument, and regard coercion as a legitimate means to achieve their ends, then they are no longer participants in the battle of ideas, and actual, defensive violence may (and must) be used to neutralise them.
 
Additionally, we should not have to ‘convince’ anyone that our own lives and property should not be aggressively violated. All individuals are naturally entitled to take the safety of themselves and their assets from the uninvited interference of others, absolutely, for granted.
 
There is no inconsistency, then, between defending (something I would rather not do) the 1928 flag as a matter of free expression and condemning ‘Kill the Boer’ as a threat of force.
 
Regarding either as ‘hate speech’ is unconstructive, as the subjective presence or not of ‘hate’ in expression is largely irrelevant. The line between permissible and impermissible expression lies exclusively in the question of coercion: does the expression amount to a sincere threat of aggressive force?
 
If it does, then the expression is impermissible, and defensive force – for example, arrest and imprisonment – becomes justifiable.
 
Malema
 
Julius Malema has put it beyond any doubt that he may one day, depending on the political expediency of the moment, instigate a genocide against white South Africans in particular. It is true that the fact alone that he ‘might’ is no good basis upon which to take action, but we have now multiple times heard him give the instruction: ‘Kill the Boer.’
 
Additionally, when given the opportunity by Adv Mark Oppenheimer to clarify that he was not, in fact, open to calling for genocide, Malema instead doubled down. He explained that circumstances might well align in the future which would lead him to call for a white genocide.
 
The guy is unequivocal – there is no real room for theoretical deliberations about what the ‘actual’ meaning of his words are.
 
No South African needs to wait for Malema or the political climate to reach that point. The threat of aggressive force has already been made, and multiple victims already lie dead at the hands of those who undoubtedly heard the call to action.
 
What is left is for Malema to be neutralised as an assailant. Unfortunately, the Prevention and Combating of Hate Crimes and Hate Speech Bill is unlikely to play any productive role in this imperative.
 
Instead, the tried and tested common law is likely where the answer lies at the end of the day. The common law has long recognised the unlawful nature of threats of force, but like so many other institutions has made irrational and arbitrary exceptions for political speech. It is time to tidy up the contradictions of common law and restore the sanctity of individual freedom and property.
 
Julius Malema belongs in prison.

Martin van Staden is the Head of Policy at the Free Market Foundation. He is pursuing a doctorate in law at the University of Pretoria. For more information visit www.martinvanstaden.com.

This article was first published by Daily Friend on 10 August 2023