Current

By Dario Milo

A few weeks ago, a University of Cape Town sociology student Chumani Maxwele, 25, was jogging when President Jacob Zuma and his "blue lights" police protection brigade passed him. The student was arrested by members of the brigade and held at Mowbray police station for nearly 24 hours on charges of crimen injuria and resisting arrest. There are conflicting versions of what happened. According to the student, he was merely waving the convoy on. The police saw things differently: the police ministry's spokesman, Zweli Mnisi, reportedly stated that Maxwele pointed his middle finger at the president's brigade and that this gesture is synonymous with swearing and showing disrespect. Maxwele announced this week that he is suing the police for damages.

Whatever the truth in this saga, one issue of crucial constitutional significance that it raises is whether it is a legitimate form of protest in a democracy for citizens to express their disrespect for the government or the president by making a rude gesture. In other words, if a citizen shows Zuma the middle finger, is that conduct protected under the constitutional right to freedom of expression?

Some guidance in regard to how offensive political speech ought to be treated in a constitutional democracy is provided by the US Supreme Court. In 1971, in Cohen v California, one of its most famous cased dealing with free speech, the court grappled with whether the conviction of Cohen for violating a provision of the Californian penal code was constitutional. Paul Robert Cohen had been convicted for wearing a jacket bearing the words "F*** the Draft" while in a municipal court building in 1968. Cohen testified that he wore the jacket to illustrate the depth of his feelings against the Vietnam war and the drafting of young men t serve in the army.

The first problem that the Supreme Court had with Cohen's conviction was that he was being punished for expressing his political views, not for any harmful conduct. This is an important point. It is one thing for a citizen who wishes to express his dissatisfaction with the president to give him the middle finger while standing at some distance from him, and quite another for that same citizen to throw a punch at him, as recently happened to Italian prime minister Silvio Berlusconi, or a shoe, as happened to former US president George W Bush at the end of 2008. This latter type of conduct is clearly a threat to the security of the president and is punishable, even though it is also classified as a form of expression.

The second significant point from the Cohen case is the court's ruling that the vulgarity of Cohen's expression should not in and of itself be prohibited: "That the air may at times seem filled with verbal cacophony is … not a sign of weakness but of strength". The court continued: "While the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric … The Constitution leaves these matters of taste and style largely to the individual".

In a later decision, the Supreme Court expanded on this logic. Hustler v Falwell concerned a parody published in the soft pornographic magazine Hustler, about a public figure, the famous televangelist Jerry Falwell. The headline of the parody was: "Jerry Falwell talks about his first time." The Supreme Court drew parallels in principle between the vulgar parody before it and a number of famous political cartoons, such as the cartoon portraying former president George Washington as an ass. The court accepted that the Hustler parody was "at best a distant cousin of [these] political cartoons … and a rather poor relation at that", but reaffirmed the importance in a democracy of freedom of expression about public figures. The First amendment to the US constitution did not, in other words, permit distinctions to be drawn between crude political speech and other forms of political speech that society might find more palatable. The lesson here is that we are on a slippery slope when we begin censoring certain types of political expression depending on whether that expression is, in our opinion, offensive or not. It is not a big leap from punishing a rude gesture targeted at the president in the form of peaceful protest, to censoring hard-hitting political cartoons, such as Zapiro's famous "rape of justice" series, which portray the president as raping Lady Justice.

The US jurisprudence is particularly instructive for analysing the constitutionality of insult laws which criminalise statements that disrespect the head of state. These types of laws are common in many countries around the world. To our credit, South Africa has no such laws. And if they were to be legislated, they would be offensive to freedom of expression. Such laws strike at the heart of what it means to be a constitutional democracy: the right of the governed to criticise their leaders, even if they choose to do so in crude but non-violent forms.