On November 21, 2012 Al-Ummah, a Libyan newspaper, published a list entitled “The Black List of the Judiciary.” The list, provided to the newspaper by an unnamed source, contained the names of 87 judges and prosecutors who, it alleged, took bribes and had other underhanded earnings. The list further accused the 87 of loyalty to the ousted regime of Muammar Gaddafi.

While such a list seems like a phenomenal starting point for purging the judiciary of corruption as the country transitions to democracy, it would instead the be paper’s editor who would feel the list’s wrath.

According to a Human Rights Watch (HRW) report released Friday, the list resulted in the conviction of the paper’s editor, Amara al-Khatabi for criminal defamation. The conviction carries with it a sentence of five years in prison, all for publishing a list of allegedly corrupt members of the judiciary.

In addition to the sentence, the process by which it was obtained is rife with irregularities. The HRW report says he was arrested nearly a month after the article ran and spent six months in pre-trial detention.

The sentencing took place after his detention but neither he, nor his lawyer attended the hearing because his lawyer was under the impression that violent clashes in Tripoli would prevent the trial from taking place. He was informed of the verdict when it was delivered to his home nearly a year after the article ran.

Even the law under which al-Khatabi was prosecuted, a near-blanket protection of organs of the state from criticism, is a remnant of the Gaddafi regime that the country had ousted and is working to move past.

The ease of this particular case does not mean that the line between absolutism and practical limitation on free speech is an easy one to draw.

Absolutism and Practicality

In one of the most misquoted American Supreme Court quotations of history, Justice Oliver Wendell Holmes wrote that even the most ardent free speech protectors “would not protect a man in falsely shouting fire in a theater and causing a panic.”

Across the continent from Libya, South Africa is currently in the midst of its own battle, attempting to find a working limitation that allows for both freedom and democracy and excludes hate and incitement from the public discourse.

Jon Qwelane, South Africa’s former ambassador to Uganda,penned an article in the Sunday Sun entitled “Call me names, but gay is NOT okay…” in 2008, when he was serving as a columnist for the paper. In the piece, Qwelane likens gay marriage (which is legal in South Africa) to bestiality with a cartoon showing a man marrying a goat.

The article’s substantive contents are similar, beginning with a soliloquy on “the rapid degradation of values and traditions” that includes “men kissing other men in public, walking holding hands and shamelessly flaunting what are misleadingly termed their ‘lifestyle’ and ‘sexual preferences’” and only gaining steam.

Needless to say, the column was met with outrage. In a country where gay marriage is legal but there is a lack of societal acceptance of homosexuality, this touched on hot button issue. The column also caught the attention of the South African Human Rights Commission, the body tasked with identifying and punishing hate speech under a law known as the Equality Act.

The SAHRC fined Qwelane for the column and demanded an apology, a common punishment in such cases. Qwelane refused, and has since mounted a legal campaign in Johannesburg’s High Court that seems destined for the country’s Constitutional Court.

Hate Speech Definition

Qwelane’s lawyer, Andrew Boerner, summed up their argument, saying “ the definition of hate speech in the Equality Act goes further than the Constitution, and is thus unconstitutional,” according to the Mail and the Guardian.

Setting aside any perfectly appropriate and visceral reactions to such hate-filled rhetoric, the controversy provides a long-overdue opportunity for the Constitutional Court to determine the limits of free speech, with regards to hate speech.

As Philip de Wet, an editor from the Mail and the Guardian put it, the case “promise[s] to finally bring before the courts a complex set of arguments about the difference between hate speech and hurtful speech, and the nature of harassment,” something that will undoubtedly have tremendous implications on the future of freedom in South Africa.

It is not easy to draw lines on fundamental freedoms. They require complex balancing acts, that both allow for a fundamentally free society and protect individuals from tarnished reputations, incited hatred or violence and simple, malicious lies.

When it comes to freedom of speech, it is often necessary to make clear-eyed assessments about the potential impact of limiting speech that average listeners find blood curdling.

Even countries with robust legal histories and tremendous protections continue to struggle with where to put these lines. Libyan lawmakers and judges must understand that even as, South Africa, the continent’s bellwether on fundamental freedoms, truggles where to put that line, it cannot allow for the prosecution of an editor for printing newsworthy allegations from a confidential source.

Where to restrict free speech is not an easy question, but whether or not to imprison an editor for doing his job is.

 

Andrew Friedman is a human rights attorney and consultant who works and writes on legal reform and constitutional law with an emphasis on Africa. He can be reached via email at afriedm2@gmail.com or via twitter @AndrewBFriedman.