Defeat
for Traditional Enemies of Free Speech in
Africa Professor
Stephen Sniegoski (Washington) Absolved of Hate
Speech Crime (South Africa) by Sniegoski YES, my presentation of the neocons as the
driving force for the Iraq war brought about the
charge of "hate speech" in the new, democratic
South Africa. In March
[2003], I made
a presentation on this taboo subject in a radio
interview for the South African national FM radio
station SAfm, which is part of the South African
Broadcasting Corporation. An apparent Jewish gentleman, Dr. Cohen,
charged that not only was my radio presentation
anti-Semitic but that a search of the Internet
showed that my presentation had "firm root in
previous anti-Semitic hate-speech." (Boy, I guess
all my stuff on the Web can really get me in
trouble!) The South African court (Broadcasting Complaints
Commission of South Africa) ultimately rejected the
charge of "hate speech" and ruled that if the
complainant's argument to prohibit my presentation
were accepted, this "would spell the end of freedom
of expression in South Africa." And I think this is
exactly what was sought regarding the airing of
anything that might seem the least bit negative
regarding Jews. Here is the summary of the case [repeated
in full below]: "Interview with professor of history on
his theory that pro-Israel Jewish right-wingers
influenced the USA to wage war on Iraq.
Complaint that interview constituted hate speech
against Jewish people. Tribunal found that
interview and theory not of such inflammatory
nature as to exceed the bounds of tolerance.
Tribunal also found that there was no incitement
to cause harm. Second point of complaint that
there was imbalance in the programme because
broadcaster failed to air opposing view.
Tribunal found on the facts that an invitation
was extended to the Jewish Board of Deputies but
the Board failed to put forward its view. Offer
by broadcaster to present an opposing point of
view not accepted by representatives of Jewish
viewpoint who set conditions, unacceptable to
the broadcaster, for participation in programme.
No contravention of Code. The complaint was
dismissed." I might add that I have never presented myself
as a "professor." Somehow, those South Africans
seem to be under the impression that people with
Ph.D.'s in history automatically become college
professors. Maybe South Africa is a utopia for
historians; in the good old USA I've been told I
was lucky to get a job answering the telephone. I
also have never claimed to be from New York. But
from Africa maybe New York and Washington seem the
same. I might also add that the host of the radio
program, Eric Miyeni, was shortly thereafter
fired. Probably just coincidental., you know, sort
of like those few US congressfolk who dare to buck
the Zionist lobby quickly becoming
ex-congressfolk. The South African radio
station said it was simply an issue of money. But
there were intimations that he was removed because
he was too controversial. "The presenter (Eric Miyeni) has been
hauled before the Broadcasting Complaints
Commission of South Africa (BCCSA) for his
reckless statements during his four months on
air." [source] Well, sorry about that Eric. If he needed support, I could vouch for the fact
that I did all the talking in our interview. But
then again, he didn't refute my claims. And he did
invite me, after all. And what I had to say was
"controversial." Also, there does not now appear to
be a transcript of my presentation at the
SAFM web site. Guess it was tossed down the
memory hole.
[source:] Case No: 2003/13 SABC (SAFM) - Eric Miyeni
Show - Hate Speech Dr Y Cohen (Complainant)vs SABC (SAFM) (Respondent) Tribunal: Prof Kobus van Rooyen
SC (Chairperson)
Mr Ratha Mokgoatlheng (Deputy Chairperson),
Prof Willem de Klerk,
Prof Sunette Lötter,
Prof Henning Viljoen For Complainant: The Complainant did not
attend For Respondent: Ms Dorothy van Tonder,
Manager: Broadcast Compliance, Policy and
Regulatory Affairs SUMMARY Interview with professor of history on his
theory that pro-Israel Jewish right-wingers
influenced the USA to wage war on Iraq. Complaint
that interview constituted hate speech against
Jewish people. Tribunal found that interview and
theory not of such inflammatory nature as to exceed
the bounds of tolerance. Tribunal also found that
there was no incitement to cause harm. Second point of complaint that there was
imbalance in the programme because broadcaster
failed to air opposing view. Tribunal found on the
facts that an invitation was extended to the Jewish
Board of Deputies but the Board failed to put
forward its view. Offer by broadcaster to present an opposing
point of view not accepted by
representatives of Jewish
viewpoint who set conditions, unacceptable to the
broadcaster, for participation in programme.
No contravention of Code. The complaint was
dismissed. JUDGMENT HP Viljoen [1] On Friday 7 March
2003 at 14:30 the Respondent broadcast an interview
with a certain Professor Sniegoski, a history
professor from New York. Eric Miyeni of SAfm
conducted the interview. The topic of discussion
was some probable reasons for the impending war by
the United Sates of America on Iraq. At the time of the interview the war had not
commenced yet. The interviewer's interest in this
topic was roused by a paper written by the said
Prof Sniegoski titled "War on Iraq: Conceived in
Israel". The interview was a recorded one and comprised a
few questions put by the interviewer and for the
rest the said professor expounded on the theory
that he developed in his paper. [2] Prof
Sniegoski's theory, in short, is that a group of
people, whom he calls neo-conservative rightwing
Zionists, is able to influence the Bush
administration to the extent that the USA would
wage a war against Iraq, but the country that would
really profit from the war would be Israel whose
security interests would improve through all this. He rejects the popular theory that the USA would
be waging war against Iraq for its oil and also the
humanitarian theory that the United States wants to
save the Iraqis from their dictator. [3] This interview and the theory expounded by Prof
Sniegoski upset the Complainant. He lodged a
complaint and submitted written argument of some 6
pages together with an appendix of 11 pages to the
BCCSA. The complaint by Dr Cohen can be summarized
in his own words as follows: - "At its purest form, taken to its logical
conclusion, Prof Sniegoski's theory is no
different than all the other reincarnations of
the myth of the Jew as a war monger. It is
simply the same argument modified to fit current
circumstances and as such constitutes
hate-speech."
- and "My complaint before the Board of the
BCCSA is not that Prof Sniegoski is an
anti-Semite. Rather, my complaint is against
SAfm for allowing such a
person to express his views. That such
views were expressed unopposed is even worse."
- and "Even a rudimentary internet research
should have alerted SAfm as to the problematic
nature of his views. Not problematic because
they are controversial but because of their firm
root in previous anti-Semitic hate-speech."
[4]
From these excerpts it can be gleaned that there
are basically two points of complaint before this
Tribunal: (a) that the theory of and statements by
Prof Sniegoski during the interview constitute hate
speech (in contravention of section 16(2) of the
South African Constitution, 1996); and (b) that the
Respondent failed to present opposing points of
view in a programme in which controversial issues
of public importance were discussed (in
contravention of clause 36.1 of the (new) Code of
Conduct of the BCCSA which, by the way, came into
operation on the very same day of the broadcast
complained of). Hate Speech [5] The so-called hate speech clause is one of the
limitations imposed on freedom of expression in
section 16(2) of the Constitution and is stated as
follows: The right in subsection (1)(the right
to freedom of expression) does not extend to -
(a) . (b) . (c) advocacy of hatred that is based
on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.
[6] On quite a few occasions, this Tribunal has had
the opportunity to decide on complaints regarding
broadcasts dealing with what we could call the
Middle Eastern conflict. The support by the USA for
the State of Israel in its conflict with the
Palestinians within and other neighbouring Arab
states beyond its borders, is a popular topic for
discussion in programmes that deal with
controversial issues of public importance. A recent such complaint concerned the
documentary by John Pilger, "Palestine is still the
issue" and the debate that immediately followed the
broadcast of the documentary. See J Shoot, EMETSA
and Others vs e-tv, Case No:08/2003. [7] The conflict between Israel and the Palestinians
has been the subject of debate for a very long
time, especially since the start of the latest
intifada of the Palestinians against the Jews. With the direct military involvement of the USA
in a country (Iraq) not far from Israel, the
interest has moved from the more localised
Israeli/Palestinian conflict to the regionalised
Middle Eastern conflict. It is not surprising that the theorists and
commentators have found a role for Israel to play
in the conflict with Iraq if the importance of
Israel in the Middle East is taken into account.
This theory is not new. Prof Sniegoski says in his interview: "I don't
claim that I'm original in my thesis at all; other
people have said the same thing". The question is whether Prof Sniegoski's
statements constitute hate speech. [8] In a
case decided by this Tribunal, Human Rights
Commission of SA v SABC and reported in 2003 BCLR
92 (BCCSA), the test for hate speech in a broadcast
was laid down as being an objective one. This means that the norm that we have to apply
is not the subjective view of any of the
Commissioners on this Tribunal or of any other
person, but what the reasonable listener would not
tolerate. Taking into account that the reasonable
listener of this programme would be a more serious,
informed adult than the average listener, we think
that such listeners would realise that this is but
one theory on the reasons for the war against Iraq
and would not accept this as the ultimate truth. We
find that there is nothing of such inflammatory
nature in what was said, that it exceeds the bounds
of tolerance. [9] Section 16(2)(c) of the Constitution has a
second requirement that has to be met before a
finding of hate speech can be made: the broadcast
must also incite to harm. Degradation was found to
be an element of the requirement to incite to harm
in the Human Rights Commission case, quoted above. After carefully studying the transcript of the
interview, it is clear to us that the interview was
in the nature of a popular-academic discourse and
definitely not in the nature of political speech,
with the intention to arouse peoples' emotions. Any reasonably informed listener would know that
in all wars the self-interest of the attacking
state is usually the motivation for such war. If
the theory is that some pro-Israeli right-wingers
in the Bush administration, in promoting the
interests of Israel, was able to influence the USA
to the extent that the last mentioned was willing
to start with military action, we find nothing
degrading therein of the Israelis as a race or
ethnic group. We fail to find any incitement to cause harm in
the interview complained of. Failure to present an
opposing viewpoint [10] The second point of
complaint, as we understand it, is that there was
lack of balance in the broadcast. Clause 36.1 of
the Code of Conduct that we apply, reads: In
presenting a programme in which controversial
issues of public importance are discussed, a
licensee shall make reasonable efforts to fairly
present opposing points of view either in the same
programme or in a subsequent programme forming part
of the same series of programmes presented within a
reasonable period of time of the original broadcast
and within substantially the same time slot.
[11] There is substance in the argument by the Jewish
Board of Deputies that the presenter did not go to
any lengths to maintain a balance by asking
critical questions. Evidence was placed before the
Tribunal that the [South
African] Jewish Board of Deputies
[SAJBOD]
complained to the SABC after the broadcast of the
interview, on the same day, namely 7 March. The Board was then invited to participate in
Eric Miyeni's show on 13 March. Their response was
that they would consider participating,
provided they could have a
meeting with Eric beforehand to discuss what should
be said on the programme. This condition was contrary to SABC policy and
the Board was informed that this condition was not
acceptable to the Corporation. In reaction to this,
the Board declined the invitation. We were informed that the SABC sent an e-mail to
the Jewish Board of Deputies on 17 March in which
the invitation to participate in Eric's programme
was repeated. The evidence is that the Board did
not respond to this invitation. [12] The Complainant was at pains to inform us that
he is not a member of the Jewish Board of Deputies.
The Board is the obvious choice in South Africa for
a spokesperson to put forward the Jewish viewpoint
in public discussions on controversial matters like
these. It would not have been the first time that
they would have participated in public debate over
the air. There was no legal duty on the Respondent to
invite the Complainant or any other individual
Jewish person to put forward an opposing viewpoint
on the programme. From the above we conclude that
the Respondent made all reasonable efforts to
present an opposing point of view in a subsequent
programme, but that the Jewish Board of Deputies
declined the invitation. [13] In correspondence between this Commission and
the Jewish Board of Deputies, their objection to
participating in a subsequent programme on this
matter is stated, inter alia, as follows: "We in fact regarded it as impudent and
opportunistic of Mr Miyeni to effectively seek
to dodge the substance of our complaint
regarding his conduct by simply inviting us onto
his show. He would have been well aware that in
such an atmosphere it would not have been
possible to properly present our case against
him personally and instead the Board would have
been put into a position in which it would be
required to refute scurrilous anti-Jewish
conspiracy theories. Effectively, therefore, it
would not be Mr Miyeni but the Jewish people
that would be publicly put on trial."
[14] We cannot agree with this argument. First of
all, the broadcaster is entitled to make and
implement its own policy regarding discussion
programmes of this nature. As long as it complies
with the provisions of the Broadcasting Code, this
Tribunal cannot interfere with the policy. Secondly, it is not clear on what ground the
Board predicts that it would be the Jewish people
that would be publicly put on trial, should it
participate on such a programme. This, to our mind,
would be the democratic way for the Board to put
forward its view and to convince the listeners that
Prof Sniegoski's opinion is wrong. We believe that
the Board let a golden opportunity slip through its
fingers. [15] We finally have to deal with the Complainant's
argument to the effect that by inviting the Jewish
Board of Deputies to put forward their argument,
an image of legitimacy
is projected on Prof Sniegoski's views. He argues further that the interview had already
done damage (to the Jewish cause, we presume),
damage that will not disappear by airing an
opposing view. This, to our minds, is a
self-defeating argument. The very essence of
freedom of expression is to allow everyone to
express his or her opinion. In this sense
everyone's opinion is "legitimate". How can the views of Prof Sniegoski be exposed
as being "illegitimate" (as the Complainant
apparently wishes to achieve) if no opposing
viewpoint is allowed to be aired? As to the
complaint about the "damage" done: this can only be
undone by allowing opposing viewpoints to be aired. Should the Complainant's argument be correct, we
should never allow arguments to be aired so as to
oppose viewpoints that are shocking, disturbing or
unpopular. This, according to the Complainant,
would lend legitimacy to such viewpoints. This
argument, if accepted, would spell the end of
freedom of expression in South Africa. The complaint is, accordingly, dismissed. HP Viljoen 20 October 2003 The Chairperson, together with Commissioners
Mokgoathleng, De Klerk and Lötter concurred
with the judgment. 
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