05/07/2018 11:12 BST | Updated 05/07/2018 11:12 BST

OPINION: The Thin Line Between Practising One's Freedoms, And Infringing On Those Of Others

'People who value their own freedom must, in other words, equivalently value the freedom of others.'

Siphiwe Sibeko/ Reuters

Julius Malema was reckless in the extreme in accusing 'most Indians' of being racist — and was wholly within in his rights as a free man in a free society to say the things he did.

Siphiwe Sibeko / Reuters
Julius Malema.

This, in a nutshell, is the testing proposition of democratic liberty. Or is it? Engraved on a glass panel in the Institute of Race Relations' offices in Johannesburg is an aphorism for which the free world has one of its most ardent champions to thank.

George Orwell's observation reads: "If liberty means anything at all, it means the right to tell people what they do not want to hear."

No democrat would hesitate before applauding this sentiment.

But what do we say when Julius Malema claims this right? Must "what people do not want to hear" be the truth, before we claim that uttering it is a right under liberty?

And, if — rationally enough — what people do not want to hear is hurtful, divisive or offensive, can a speaker still claim a free-speech defence in saying it? Nearly 90 years ago, an ageing judge of the U.S. Supreme Court set down what has proved to be a lasting hardy measure in determining the valid reach of free speech.

Justice Oliver Wendell Holmes argued that there was no principle "that more imperatively calls for attachment than... the principle of free thought, not free thought for those who agree with us, but freedom for the thought that we hate".

Holmes' opinion was not popular at the time — his was a dissenting judgment in the 1929 case involving the implacable Hungarian pacifist Rosika Schwimmer, who was denied citizenship of the United States for refusing to swear to take up arms to defend her adopted home.

But Holmes' idea of defending "thought that we hate" cannot be ignored, as it continues to buttress an essential truth about free speech — that it is not and cannot be limited to an approved category of constructive, kindly or even rational opinion.

People who value their own freedom must, in other words, equivalently value the freedom of others. There are limits, of course — as there should be — and in our view, the South African constitution sets that limit with signal clarity.

It says in the plain language that characterises the whole document that "everyone has the right to freedom of expression", but that this right "does not extend to propaganda for war; incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender, or religion and that constitutes incitement to cause harm".

These qualifications almost certainly provide greater leeway than most South Africans appreciate, but also — and here lies the critical nature of free speech — the scope for argument. The argument, not permissibility, is the true expression of the freedom to speak.

Malema's sentiments remain dangerous, but the greater danger would lie in South Africans thinking such thoughts in private, and perhaps acting on them, without greater society having the chance to challenge them.

This means it is possible to acknowledge someone's right to speak — such as Mr Malema's — without being mistaken for being in agreement with what they say.

Over the past few weeks, I have said publicly that, for instance, Julius Malema is among South African politicians who, contrary to the interests of the people they are meant to serve, are far too willing to sow division and resentment through statements that seem intended to create hostility, that it is nothing short of reckless and insulting for any politician, or any South African, to cast doubt on the integrity of fellow citizens on the simplistic and imprecise basis of their racial origins, and that exploiting race in this way, as our apartheid experience showed, is reactionary and unwelcome, and comes at a high cost.

But I have also said that criminalising contentious — even wrong-headed — ideas would be to deny society the important opportunity of challenging and testing them and thus affirming its values, and that free speech should always be available as a defence of offensive ideas, because that is the nature of free societies.

When it comes to opinions, the law is not a very good instrument for getting people to think the "right" thoughts — especially where so much will always, and should, be arguable.

Julius Malema's casting aspersions on the character of people he knows only by their superficial appearance falls into a category too imprecise to have any point in a rational debate, but blunt enough to cause harm. This comes at the cost of squandering what our research at the Institute of Race Relations has shown to be great reserves of goodwill among all South Africans to help the country succeed.

Yet banishing such ugly or dangerous thinking risks consigning it not to oblivion, but to the dark and unseen spaces of society, where it incubates without resistance.

Siphiwe Sibeko / Reuters

A vigorous, civil debate — the kind of engagement British liberal Maajid Nawaz captures in his statement that "No idea is above scrutiny, and no people are beneath dignity" — is both possible and important, whether about race or any other difficult subject, without anyone having to denigrate others on the basis of their race.

Ironically, Julius Malema's potentially incendiary remarks about Indians have stimulated, by and large, exactly such a debate.

His sentiments remain dangerous, but the greater danger would lie in South Africans thinking such thoughts in private, and perhaps acting on them, without greater society having the chance to challenge them.

Morris is head of the media at the Institute of Race Relations (IRR), a think tank that promotes political and economic freedom. If you agree with what you have just read then click here or SMS your name to 32823.