Letshwiti B Tutwane
If you think you got problems in your life, wait for a moment. Spare a thought for the 45th President of the United States, Mr Donald John Trump. Following the publication of an opinion piece in the New York Times on September 5, the billionaire-businessman-cum President has had a difficult time trying to figure out who the author might be and tried to pressurise the New York Times to unmask him/her. In what one publication termed ‘a scavenger hunt of sorts’ the president even asked his Attorney-General to formally search for this troublesome civil servant identified in the media as ‘a senior official in the Trump administration’. This is because he views this article as a security breach. Interesting! Sounds familiar-reminds me of incidents in our own jurisdiction here. In Africa, the word national security means just anything. The meaning that it assumes depends on designation by the leaders. In Botswana of the early 1990s, it included publishing of a government savingram on salary negotiations. This got the then Mmegi senior reporter Prof. Malema and his editor Titus Mbuya into trouble. They were only saved by the High Court which threw out the matter on account of the Attorney-General not giving his consent for the prosecution to proceed. In terms of our National Security Act, the duo faced a maximum 30 years in jail. In present day Botswana, national security entails refusing to answer parliamentary questions or media questions on grounds of national security. Perhaps I should write another piece explaining what is and what is not a national security issue.
You see with the Americans, my concern is that they are different. America is not Africa. Americans have a rich tradition of freedom of expression and amazing tolerance for such. The First Amendment is ferociously guarded by the country’s state courts and the Supreme Court. Even the most obnoxious of speech is often protected, including hate speech. I could not imagine more caustic abuse and humiliation than the one piled on Reverend Jerry Falwell by Hustler Magazine in 1983. In a unanimous decision, the panel of judges led by Justice William Rehnquist overturned the $200 000 award for the pastor (by a lower court) and said it was within the ambit of the First Amendment to have him in a parody making love to his mother.
Hustler, the pornographic magazine had parodied Falwell in a purported first sexual experience as a drunken child engaged in incestuous encounter with his mother in an outhouse. Falwell was a well-known religious conservative and founder of the Moral Majority, a political advocacy group. He was also the founder of Liberty University, a Christian school. In his judgement, Rehnquist said offensive, emotionally wounding speech was acceptable under the First Amendment: ‘Falwell would have us find that a state's interest in protecting public figures from emotional distress is sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. This we decline to do’. The judge continued, “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern,” Rehnquist found. “The fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection.”
It is for this reason that even most hate/racist speech is allowed in America. According to a leading freedom of expression scholar, Prof. Eric Barendt (2005), ‘however unpleasant and offensive the content of racist speech, it forms part of political speech or to use the term of a prominent First Amendment theorist, ‘public discourse’.
That is why I was taken aback by President Trump’s attempt to force the newspaper to reveal the author of the article. This is tantamount to revealing a source of news in a story. It is interesting to know what this anonymous writer had said about the Trump White House. He/she had said that he/she was part of a popular resistance to protect America from the President’s actions which were ‘detrimental to the health of our republic’. Sounding Republican, the author was frustrated by the President’s departure from Republican values and amoral actions:
‘The root of the problem is the president’s amorality. Anyone who works with him knows he is not moored to any discernible first principles that guide his decision making’. He/she continued: ‘Although he was elected as a Republican, the president shows little affinity for ideals long espoused by conservatives: free minds, free markets and free people. At best, he has invoked these ideals in scripted settings. At worst, he has attacked them outright’. I do not find this to be particularly offensive. It is just typical criticism of a government that can happen anywhere in the world. In America it has no prospect of success either as a national security breach or a freedom of speech issue. To ask the Attorney-General to look into is also bizarre. But it would not be unconstitutional to limit freedom of speech on national security grounds in a proper case.
On a different note, when you compare this criticism of Trump with the abuse that Falwell suffered, it pales into nothing. But you got to put it in the context of what I said earlier. President Trump has many problems. He is in a position that President Zuma was in a few months back. He is facing illimitable problems from all fronts: the press, the Muller investigation, Attorney-Generals from various US states, frosty relations with a lot of US allies (EU countries and NATO), and of course the Democrats. It will take him a miracle to survive.
In most democracies globally journalists are not expected to reveal their sources. Journalism is constitutionally protected as an extension of the right to freedom of expression. It is only in very exceptional circumstances that a court will ask a journalist to reveal sources. Journalists have a duty to protect sources. Without sources there is no news. Journalists do not write fiction. They write facts. Facts come from sources and some of these sources work in government. They hate the rot that they see and must be protected. A government that does things right fears no journalist. President Trump is giving necessary armour to repressive African governments to ramp up their attacks on the media. Of course I am not saying journalists are always right. They can annoy. They can mess up big time. But we need them and let us deal with them legally and fairly.