There is an interesting case of free speech out of South Africa where Chester Missing has been gagged from sending out any more tweets or messages criticizing singer Steve Hofmeyr. The court order is based on the country’s hate speech laws, a continuation of a trend where free speech is being curtailed under antidiscrimination or hate speech laws. What is a bit different in this case is that Chester is a dummy . . . a real dummy . . . like a puppet dummy.
Comedian Conrad Koch is a ventriloquist who uses Chester as his voice. The objectionable tweets came from the puppet’s twitter account. Yes, the dummy has a twitter account.
The problem began when Hofmeyr tweeted his objection of the actions of the ruling African National Congress and said that it was victimizing white South Africans. He then went on Facebook and asked “Apartheid was cruel, unfortunate and unsustainable, but WHAT inspired that maddening segregation?”
Apparently, Chester had enough and went to his own twitter account and accused Hofmeyr of racism and called for a boycott of his products and sponsors. That is when Hofmeyr went to court and obtained a court order barring the ventriloquist and his puppet from making any statements about him in public or on social media.
On its face, both tweets should be protected speech. Moreover, in the United States, constitutional and tort law offers more protection for speech directed as a public figure like Hofmeyr under New York Times v. Sullivan. That case also involved racist charges after the paper ran an ad referring to abuses of civil rights marchers and claimed that Martin Luther King had been arrested seven times. (He had been arrested 4 times). Although not mentioned, Montgomery Public Safety commissioner, L. B. Sullivan (shown in suit in the center), sued for defamation and punitive damages. He won under Alabama law in a highly dubious state preceding that awarded $500,000. Brennan saw civil liability as creating a chilling effect on reporters and their companies, resulting in self-censorship that is just as stifling as direct censorship. Imposing a high standard for proof of defamation, Brennan sought to give the free press “breathing space” to carry out its key function in our system. In his concurrence, Hugo Black stated: “The half-million-dollar verdict does give dramatic proof . . . that state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials. The factual background of this case emphasizes the imminence and enormity of that threat.”
The use of hate crime laws presents the same chilling effect on political and social commentary as well as journalism. Hofmeyr has every right to call the ANC racist and Chester has every right to call him racist. However, like many Western countries, aggrieved individuals can now go to the courts to seek to muzzle their critics.
We have previously discussed the alarming rollback on free speech rights in the West, particularly in France (here and here and here and here and here and here) and England ( here and here and here and here and here and here and here and here and here and here). Much of this trend is tied to the expansion of hate speech and non-discrimination laws. We have seen comedians targets with such court orders under this expanding and worrisome trend. (here and here).
The action in South Africa is based on a theory of hate speech. Such arguments have shown the fluid and ever expanding character of hate speech interpretations. The use of the law in a matter of obvious political speech captures the danger that free speech is facing around the world. If the South African courts allow this order to stand, there is more than one dummy in the case.