On 25 February 2019, the Nelson Mandela Foundation (NMF) announced that it had lodged an application with the Equality Court – the specialised court created to hear cases brought under the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) – to declare the gratuitous displays of the old official flag of apartheid South Africa to constitute hate speech, unfair discrimination and harassment based on race.

“For the Foundation it is time to acknowledge that the old flag is a symbol of what was a crime against humanity and that its gratuitous public display celebrates that crime and humiliates everyone who fought against it, especially black South Africans,” it said.

Such an order would effectively ban the public display of the old South African flag without a “genuine journalistic, academic, or artistic purpose in the public interest”.

The minority rights lobby group AfriForum is cited as the respondent in the application. It argues that prohibiting display of the flag would infringe on the Constitutionally-protected right to freedom of expression. It has also raised procedural points, including that the prohibition on hate speech in Equality Act specifically refers to words, rather than images or symbols.

Joining the case in support of the NMF is the South African Human Rights Commission (HRC), which seeks to neutralise AfriForum’s second objection by asking the Equality Court to order amendments to Equality Act to include symbols such as flags.

It is common, at this point in an article defending free speech, to quote that icon of Enlightenment thinking, Voltaire. There’s only one problem. Voltaire’s famous line, “I disapprove of what you say, but I will defend to the death your right to say it,” is apocryphal. So is a similar sentence he reputedly wrote to an abbot, M. Le Riche: “I detest what you write, but I would give my life to make it possible for you to continue to write.”

Let’s instead turn to Salman Rushdie, who wrote, “What is freedom of expression? Without the freedom to offend, it ceases to exist.”

Or John Stuart Mill in On Liberty, back in 1859: “It’s strange that men should admit the validity of the arguments for free discussion, but object to their being ‘pushed to an extreme’, not seeing that unless the reasons are good for an extreme case they aren’t good for any case.”

Or Stephen Fry. After discovering graves of his family in a Jewish graveyard to have been desecrated, he told Christopher Hitchens in a debate: “It’s now very common to hear people say, ‘I’m rather offended by that’, as if that gives them certain rights. It’s no more than a whine. It has no meaning, it has no purpose, it has no reason to be respected as a phrase. ‘I’m offended by that.’ Well, so fucking what?”

Let’s not beat about the bush. The old South African flag is offensive to many. It is a potent reminder of an unjust and oppressive regime which violated the human rights of millions of South Africans, based on nothing more substantial than their skin colour. It causes emotional pain and distress in many victims of Apartheid.

When Nelson Mandela died, I examined my feelings about that flag in a long, very personal article. I used to hate that flag, but since the advent of the new, democratic South Africa, it has lost its power for me, and I feel it is no longer worth hating. Although I still strongly disapprove of displaying it, it is now a symbol of a defeated regime.

As Kanthan Pillay, the leader of the Capitalist Party of South Africa (ZACP) recently said in a live stream: “The old South African flag, for me, my reaction is to laugh, and I look at people who are waving the old South African flag and I say guys, you lost and we won, so that’s cool, I can live with that.”

The case before the court does not involve an actual display of the old flag by AfriForum. It arises merely out of a difference of opinion between Sello Hatang, the chief executive of the NMF, and Kallie Kriel, the CEO of AfriForum, over whether displaying the old South African flag is protected by the Constitution’s freedom of expression clause. The NMF considers this a question of law that requires a declaratory order. AfriForum will likely argue that the matter is moot, since it seeks no redress that will have a practical result on any of the parties to the case.

In response to AfriForum’s claim that the flag does not constitute “words” as per the law, and that the Equality Court has already ruled that “words” do not refer to images or non-verbal communication, the HRC joined with the NMF as second applicant. It explicitly conceded AfriForum’s claim as true, but asked the court to declare the hate speech clause in the Equality Act to be unconstitutional and invalid because it restricts the type of expression that may be considered hate speech to words only.

This is a pretty ironic argument to make, since the more common criticism of that section of the law is that it dramatically broadens the grounds upon which expression may be considered hate speech.

Whereas the Constitution specifies only the grounds of race, ethnicity, gender or religion, Equality Act adds sex, pregnancy, marital status, social origin, colour, sexual orientation, age, disability, conscience, belief, culture, language and birth to the list. It further adds any other grounds that similarly perpetuates systemic disadvantage, undermines human dignity, or adversely affects the equal enjoyment of a person’s rights and freedoms.

Whereas the Constitution prohibits advocacy of hatred that constitutes incitement to cause harm, Equality Act extends this to include words that are merely hurtful.

Yes, the hate speech clause of Equality Act is probably unconstitutional, but not on the grounds advanced by the HRC. AfriForum argues against the HRC’s grounds for believing that the clause is unconstitutional, but does not make its own argument for the unconstitutionality of the hate speech clause.

The applicants also claim that in addition to hate speech, the waving of the old South African flag constitutes discrimination based on race, as well as harrassment. The NMF makes a good case that the flag is generally displayed to express support for for the racist regime that the majority (even of white people) rejected in the early 1990s, and that has widely been recognised as a crime against humanity.

The Federasie van Afrikaanse Kultuurvereniginge (FAK, or Federation of Afrikaans Cultural Associations), which joined the case as Amicus Curiae (Friend of the Court), disputes that this is the only meaning that can be read into the flag, arguing that it was originally created to symbolise not racial oppression, but reconciliation and unity between English- and Afrikaans-speaking South Africans.

AfriForum makes several further procedural claims. It questions whether the Equality Court has the power to rule in this matter, since the law empowers it to rule on unfair discrimination, hate speech or harrassment that has taken place, but the relief sought by the applicants involves conduct that has not yet taken place.

It also argues that the Equality Court is a statutory court that only has the powers conferred to it by the law that created it. Specifically, it does not have the powers of a High Court, and a High Court has ruled as much. Since only a High Court can hear questions of constitutionality, the Equality Court does not have the power to decide on the HRC’s application to have a section of the Equality Act declared unconstitutional.

It further notes the precedent that declaratory orders cannot be made merely on the basis of a dispute, or on abstract, academic or hypothetical points, but can only be founded upon an actual infringement. The NMF does refer to vague media reports in late 2017 that someone, somewhere, displayed the old South African flag at a protest about farm murders, but this is clearly not an infringement on the part of the respondent, AfriForum.

Though I am admittedly not a lawyer, these procedural claims seem to me to be fairly strong, and might well dispose of the case entirely.

In case they don’t, however, AfriForum also lined up eight substantive arguments against the claims of the NMF and HRC.

Among them is the fact that the Equality Court has ruled that the hate speech clause in the Equality Act must be read conjuctively, to prohibit words that are hurtful and are harmful or incite harm, and promote or propagate hatred. It specifically held that previous rulings that favoured a disjunctive reading (with or in place of and) are “with respect, clearly wrong”.

It is not clear that waving the old South African flag, besides causing deep offence, would likely cause substantive harm.

It also argues that not all cases of “gratuitous display” of the flag necessarily constitute hate speech, nor do all cases necessarily constitute harrassment or unfair discrimination. That means that instead of pre-judging the general case, individual cases should be judged, retrospectively, on their own merits.

Prohibiting the gratuitous display of the flag also sets a precedent for other symbols. It is arguable – and indeed AfriForum argues – that the British flag, the ANC flag and the SA Communist Party’s flag could all fall foul of the same reasoning the NMF seeks to apply to the old South African flag. After all, the British Empire was a thoroughly racist enterprise, the ANC conducted an armed struggle which included attacks against civilians whose only crime was being white, and the hammer and sickle glorifies an ideology that has the blood of at least 100 million people on its hands.

Joburg Pride, a gay rights organisation, joined the case as Amicus Curiae to declare that they agree with the NMF and HRC, and do not consider such a precedent to be a threat to the rainbow pride flag, even though many people, motivated by religious conservatism, would consider it to be offensive or even harmful.

I think they’re wrong. As the Catholic priest Martin Niemöller wrote in pre-war Germany:

First they came for the communists, and I did not speak out –
Because I was not a communist.

Then they came for the trade unionists, and I did not speak out –
Because I was not a trade unionist.

Then they came for the Jews, and I did not speak out –
Because I was not a Jew.

Then they came for me –
and there was no one left to speak for me.

Back in 2002, the same HRC that now proposes prohibiting the display of the old South African flag published a discussion document on freedom of expression in which it said the following:

“The strong condemnation and public shaming attendant on these forms of speech, ensures that we do not resort to a knee-jerk response of demanding that free expression be curtailed, but rather we encourage a constructive debate around these issues, and allow the values of our Constitutional democracy to shine through. We can express our confidence in our growing Constitutional democracy, and trust that society’s moral outrage will be correctly placed, as was evident in the public debates around all of these complaints before the SAHRC. The SAHRC may set the tone of these debates by issuing press statements condemning them and placing them firmly within the context of inappropriate speech for a democratic society.”

In this case, I fear HRC have gone back on that principle, and finds itself on the wrong side of the argument. Although the old South African flag is indeed deeply offensive to many people, and those who display it may well be motivated by racism or nostalgia for Apartheid, its display should not be prohibited by law.

It would set a dangerous precedent. It violates the ideal of freedom in the Constitution, and it is not necessary to protect the ideals of equality and human dignity that the Constitution gives equal status.

We don’t need laws to protect speech with which everyone agrees. We need laws that protect offensive and intolerable speech, speech that is on the fringes of public debate, because that is the speech that challenges the status quo and is most likely to be censored or suppressed for doing so.

If we start to prohibit offensive speech, we’re on a slippery slope towards laws against criticising politicians or insulting the president, or laws prohibiting certain ideological speech because it offends people with different beliefs.

The civilised way to counter hatred and prejudice is with tolerance and a superior argument. It is not hard to defeat a racist, a sexist, or a homophobe in open debate, and it is not hard to denounce or ostracise them. Nothing ought to be illegal merely because it offends people.

Freedom of expression is about protecting disagreeable opinions, so that they can be fought not with force, but with more free speech.