As to permissible limitations of the freedom, Section 61(5) mentions incitement
of violence, advocacy of hatred, malicious injury to a person’s reputation or
dignity and malicious breach of privacy, as grounds on the basis of which
freedom of expression could be limited.
The limitation clause in various constitutions has been abused to stifle all
opinions and ideas considered to be contrary to the views of those who hold
power in the society. This runs contrary to how freedom of expression should
be exercised as it is now well established that in a democracy an unpopular
minority view of what is true or right should not be smothered by a
majoritarian view of that which is true or right. If that is allowed, then freedom
of expression will be an illusion. Room for expression of diverse points of view
is of the highest importance, not only for those who espouse a cause or
position and then defend it, but also for those who hear and pass judgment on
that defence.
The belief that an opinion is false, or in any other way detestable, cannot be
grounds for its suppression.32 When speech or some form of artistic expression
such as a play or concert is prevented from taking place or concluding by
disruptive protest, the effect is just as surely an attack on freedom of speech or
artistic expression as the deliberate suppression or prohibition of a speaker or
artist by authorities. At the same time, however, the rights of free expression
enjoyed by speakers or performers do not negate the rights of free expression of
those who would protest the speech or performance.33
It is unpopular ideas, or ideas that the mainstream would like to ignore, that
must be debated.34 The US court in Hustler Magazine and Another v Falwell
was of the view that there is no such thing as a false idea. Further that “if it is
the speaker’s opinion that gives offense, that consequence is a reason for
32Freedom
of
Speech
and
Artistic
Expression,
http://spg.umich.edu/sites/default/files/601X01_0.PDF
33 http://spg.umich.edu/sites/default/files/601X01_0.PDF
34 In Re Munhumeso and Ors 1994 (1) ZLR 49 (SC)at 57F
University
of
Michigan
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