Q&A with New PEN SA Board Member Pierre de Vos

PEN SA extends a warm welcome to Pierre de Vos, who has joined the PEN South Africa Board. Prof De Vos is the Claude Leon Foundation Chair in Constitutional Governance and teaches in the area of Constitution al Law. He has a B Comm (Law), LLB and LLM (cum laude) from the University of Stellenbosch, an LLM from Columbia University in New York, and an LLD from the University of Western Cape. In addition to his new position at PEN SA, Prof de Vos is the chairperson of the Board of the Aids Legal Network and is a board member of Triangle Project. He writes a Blog on social and political issues from a constitutional law perspective, which is widely read and quoted.

By way of introduction to our members, PEN SA staff asked Prof de Vos a number of questions relating to his future work at PEN, and the current state of freedom of expression in South Africa.

PEN SA: What attracted you to join the Board of PEN SA?

PdV: The simple answer is that I was asked to join. But I agreed to join because I have a particular interest in freedom of expression and have been encouraged by signs that PEN was moving away from a simplistic view of freedom of expression and was moving to embrace a more nuanced and complex understanding of this right, while taking a principled stand against many forms of censorship in South Africa and elsewhere on our continent.

PEN SA: An obvious question perhaps, but what do you hope to accomplish during your tenure on the Board?

PdV: I hope to make a modest contribution to assist PEN members and its Board to think through some of the more difficult questions that arise when there is a tension between the right to freedom of expression and other rights and interests.

PEN SA: What do you find are the most common misconceptions about the way freedom of speech and expression legally operate in South Africa?

PdV: I think that there are at least three misconceptions about the right to freedom of expression.

First, some people often argue that freedom of expression should be protected at any cost, regardless of the content of the expression. This is conceptually problematic way of viewing freedom of expression. Expression is often regulated based on the content of the expression. The law prohibits child pornography, and allows for the censure of defamatory statements. Moreover, I would be surprised if you were successful in arguing that the University should allow a lecturer to teach students that the Holocaust never happened, that some groups are intellectually or morally inferior to others, or that the democratic state should be violently overthrown.

Second, I think it is wrong to argue that there is a free marketplace of ideas and that “good” forms of expression will eventually win out over “bad” forms of expression. There is no free marketplace of ideas because the market in ideas is not one in which everyone has equal power to express their views or to have those views heard or taken seriously.

Lastly, I find the idea that the state is the only or greatest threat to free expression a bit quaint. Private actors (Google, Facebook, and others) have a huge influence on which ideas we have access and are popularised and pose a substantial threat to the free flow of important information.

PEN SA: Are their any cases in particular that you are concerned about at the moment, with regard to freedom of speech and expression? 

PdV: The decision of the Appeals Tribunal of the Film and Publication Board to classify the movie Inxeba (The Wound) as pornography is a particularly egregious form of state censorship partly influenced by homophobia. I also worry about the manner in which the internet (and companies like Google and Facebook) facilitate the circulation of fake news, which threatens the quality of our democracy.

PEN SA: Are there any developments that give you reason to be encouraged about freedom of speech and expression in SA? 

PdV: Civil society is very active in South Africa and there is a variety of electronic and print media outlets which report robustly on political, social and economic issues. Although the media is rather urban-centred and often fail to report on the problems faced by poor people living in rural areas (a real worry), there is much to be thankful for.

PEN SA: What are you reading right now?

PdV: I just finished reading Ryk Hatting’s Huilboek, a beautifully idiosyncratic book by an author who passed away shortly after publication and after his book won a major Afrikaans literary prize. I am currently reading two books. First, Pajtim Statovci’s My Cat Yugoslavia, is a delightfully bizarre book about refugees and displacement, a talking cat and online cruising (among other things). Second, I am also dipping into the Selected Poems: 1954-1998  of Tomas Tranströmer, a poet whose work I just discovered.