South African Court Bans Bible Burning

Judge Sita Kolbe of the South Gauteng High Court (Johannesburg) issued an interdict on Friday against a planned Bible burning by businessman and law student Mohammed Vawda.  Vawda said his plan had nothing to do with Christianity; instead, he said he planned the burning because he was angry about Florida pastor Terry Jones's plan to burn Qurans today.  The Christian Science Monitor reports here.

Lawyer Yasmin Omar, the attorney for a group called Scholars for Truth, which brought the case, said that "Judge Kolbe ruled that freedom of expression is not unlimited if one exercises freedom of expression that is harmful to others." 

Article 16 of the South African Constitution reads:

(1) Everyone has the right to freedom of expression, which includes -

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to -

(a) propaganda for war;

(b) incitement of imminent violence; and

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

(Emphasis added.)

Compare the approach in Section 16(2)(c) to the Supreme Court's approach in R.A.V. v. City of St. Paul, a cross burning case.  There, the Supreme Court overturned this local ordinance:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

Justice Scalia wrote for five justices that this ordinance was a content-based restriction on speech, even as a sub-class of otherwise proscribable speech, and thus invalid:

Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics.  Those who wish to use "fighting words" in connection with other ideas--to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality--are not covered.  The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.

In practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination.  Displays containing some words--odious racial epithets, for example--would be prohibited to proponents of all views.  But "fighting words" that do not themselves invoke race, color, creed, religion, or gender--aspersions upon a person's mother, for example--would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc. tolerance and equality, but could not be used by that speaker's opponent.  One could hold up a sign saying, for example, that all "anti-Catholic bigots" are misbegotten; but not that all "papists" are, for that would insult and provoke violence "on the basis of religion."  St. Paul has no authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules.

Section 16(2)(c) wouldn't withstand scrutiny as a local ordinance under R.A.V. But in the end, the result under the U.S. Constitution may not be that different: Pastor Jones might've been prevented from burning the Qurans under at least two different theories. 

First, consider Virginia v. Black, which upheld a content-neutral law prohibiting cross burning "with an intent to intimidate a person or group of persons."  Under this approach, a local government could ban Quran burning by adopting a neutral law with an intent to intimidate any persons.

Moreover, under R.A.V. Jones could be prohibited by even a content-based ordinance designed to address the secondary effects of his "speech."  Again, Scalia in R.A.V.:

Another valid basis for according differential treatment to even a content defined subclass of proscribable speech is that the subclass happens to be associated with particular "secondary effects" of the speech, so that the regulation is justified without reference to the content of the . . . speech."  A state could, for example, permit all obscene live performances except those involving minors.  Moreover, since words can in some circumstances violate laws directed not against speech but against conduct . . . a particular content based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. . . .  Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.

(Citations omitted.)  In Jones's case, the local ordinance requiring a permit for burning is an example.  Jones was denied such the permit--a restriction on his action that apparently had nothing to do with his "speech" and was designed to promote other government interests. 

Thus while the approach may be different here, the result might have been the same.

SDS