David Saks
Associate Director
South African Jewish Board of Deputies
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Dear David Saks

The FXI thanks the South African Jewish Board of Deputies (SAJBD) for your letter dated 27 November 2006. The fact that the contents of this letter have been discussed by the FXI's governing structure, the Executive Committee, attests to the seriousness with which we take the complaint. This letter therefore represents the official position of the FXI Executive Committee to your letter, and not the position of a few individuals who you feel may be using the FXI 'as a propaganda vehicle by those with a transparently pro-Islamist and anti-Israel (as well as a general anti-Western) agenda'.

The SAJBD's letter, combined with a letter campaign to media editors and to the FXI, is a thinly-disguised attempt to intimidate the FXI into not taking a principled position against repression and censorship in relation to the Israeli/ Palestinian conflict, as we have done in relation to numerous other repressive contexts around the world.

Put more bluntly, we see this as an attempt to bully the FXI into submission for daring to criticize bodies like the South African Jewish Board of Deputies and the SA Jewish Report when they act in a censorious manner.  Many others have been subjected to such bullying, and when such bullying has broken out into open threats, the SAJBD has consistently refused to take a principled stance on such threats.

The fact that there have been so many statements made by the FXI on the censorship peddled by bodies such as yours has a simple explanation: they are an indication of the consistently censorious conduct of your institution, and those who hide behind your institution. We need to state loudly and clearly: we will not be bullied.

Now onto the specifics of your letter.

The strategic direction of the FXI

The FXI is independent of any government or political party. As a Non-Governmental Organisation (NGO), we are devoted to fighting for and defending freedom of expression. Our attempts at doing so are done without fear or favour and we often find ourselves in the position of defending an individual or organisation on one day and severely criticising the same on the next. We are driven by our principled commitment to freedom of expression and by our particular mandate.

Having said that, and emerging out of the anti-apartheid movement, we read freedom of expression with our context and history in mind. We recognise that freedom of expression is heavily mediated by power and politics. So in interpreting this mandate, we have taken a strategic decision to support particularly the freedom of expression of poor communities and to prioritise marginalised communities who are resisting censorship, repression, colonial occupation, racism and sexism. This is because it is in these communities or sections of our populations where the bulk of freedom of expression problems generally lie. It is also in these communities where the solutions to these problems lie.

It is for this reason that the bulk of our work in South Africa and beyond is with poor and marginalized peoples' movements, as they are the most threatened in terms of their free expression rights. It is for this reason that we tend to focus on protecting and advancing the more popular and unmediated forms of expression - especially the right to demonstrate - as it is these forms of expression that are the most accessible to poor people, whose voices are often marginalized in the mainstream media.

What does this strategic direction mean in reality? It means that the FXI will direct its resources and its time mainly towards those cases that involve poor and marginalized people. It does not mean that we will refuse cases that involve the rich and powerful: in fact, we have defended the free expression rights of people as diverse as Dan Roodt and Ronnie Kasrils. However, we will not prioritise these cases. The powerful and the rich generally have the resources at their disposal to defend their rights themselves; the people who we are most concerned about are those who don't.

The point is that the existence of such a strategic direction does not automatically mean a violation of the FXI's mandate; it merely means a particular focus of that mandate.

We also have no problem with taking principled positions against political and economic policies that generate censorship, something that other freedom of expression organizations may shy away from. This particular 'take' can be attributed to our roots. Struggling for freedom of expression in South African in the past meant taking a principled position against apartheid, because it was apartheid that gave rise to censorship of the media, the banning of gatherings, etc. Similarly, we cannot take a pro-freedom of expression position without taking a position against any ideology or power structure that is used to justify the denial of rights (including the right to freedom of expression) of people.

It is true that we are critical of the highly censorious nature of the George Bush administration, which has exported censorship and repression to many parts of the world as part of its expansionist agenda. We are critical, for example, of the US military’s bombing of the offices of Al-Jazeera. If this makes us anti-American and anti-Western, then so be it. The fact that the tide is turning against the Bush administration within the United States - partly because of his increasingly unpopular and censorious foreign policies - suggests that even the average voter could be guilty of the same charge.

So, we take positions both on the symptoms and causes of censorship, even if it means taking on some of the most powerful forces in the world today.

It is also true that we believe that the character of the Israeli state has been overwhelmingly repressive and has consistently denied the right to freedom of expression to Palestinian people especially. According to various United Nations resolutions and the Geneva Conventions, Palestinians are fighting a just war against an illegal occupation of their land and against the violation of their rights under international law. It is therefore impossible to take a principled stand for freedom of expression without taking a principled stand against the repression meted out by the Israeli state against people struggling against occupation and for a peaceful resolution of the Palestinian/ Israeli conflict. To support freedom of expression is to support a democratic solution to the national question in Israel/ Palestine, a solution that will also guarantee the human rights – including the right to free expression of all the people of the region.

We note that Jewish people who dissent against the official positions of SAJBD and other pro-Zionist organizations on Israel have been subjected to harassment, intimidation and even threats. This is a direct result of intolerance within sections of the Jewish community; intolerance that we deplore.

This is not to say that there is not intolerance within the Muslim community. Clearly there is. Ironically enough, two of the individuals you have the most problems with - Salim Vally and Na'eem Jeenah - have been extremely vocal about such intolerance. Unbeknown to and / or unacknowledged by you, they have fought against this within the Muslim community for decades. Jeenah in particular, has stood by and supported (and continues to do so) two of the Muslim individuals you mentioned: Professors Ebrahim Moosa and Farid Esack. This support has been unwavering through the worst period of attacks against and attempts to silence them and other progressives within the Muslim community. (Esack, incidentally, has not emigrated and former Justice and Transport Minister Dullah Omar, who you also mentioned, also did not emigrate but died in South Africa. Further, both Moosa and Esack detest the term "moderate Muslims" and both have expressed shock that their names would be used by you in this cavalier manner to further your arguments and your conspiracy theory.)

We also do not believe that Palestinians (and their supporters internationally) are blameless on issues of censorship and censorious behaviour. Where it exists, we deplore attacks on freedom of expression from that quarter too. We are fully aware that there is much to be condemned in the conduct of those Palestinian elements who behave in ways that undermine human rights, free speech and open debate.

But to use these points to prevent us from identifying the primary source of intolerance - namely the highly censorious pro-Israel lobby - is tantamount to 'blaming the victim'.

We see no contradiction between calling ourselves independent, and espousing this position. Perhaps you do, but just as our position comes from our anti-apartheid background, so too does your perception come from your particular background.

Another policy position that is germane to this response is our position on hate speech. According to this position, we endorse the definition of hate speech as defined in the South African Constitution, namely that hate speech is advocacy of hatred based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. So we part ways with the extremely broad definitions of hate speech contained in international instruments like ICCPR and CERD, and do not seek to amend the Constitution to change the definition. Our further policy position is that the notion of 'incitement to cause harm' must be narrowed to refer to physical harm only. This policy decision has been taken to prevent abuse of the hate speech exception in s.16 of the Constitution, to censor legitimate speech.

We know that many do not agree with this position on hate speech, but that does not stop us from advocating it. That is what we do: we are an advocacy organization.

What needs to be interrogated now is whether we have applied these policy positions inconsistently.

The historical incidents

SAJBD makes reference to a number of historical events, to 'prove' the FXI's bias. You make reference to our statements on the Shimon Peres incident, which occurred at Wits University in 2002. You portray the FXI as being grossly one-sided on the matter, by not referring to harassment of people who wished to attend the lecture. Needless to say, the events referred to here are contested; one merely needs to consult the letters column of the Mail and Guardian from this time or the Mail & Guardian editorial on the incident to establish this. Unpacking precisely what happened would be a separate letter in its own right.

Most tellingly, though, is that you do not refer to the ultimate outcome of this incident. In September 2002, the Johannesburg Magistrate's Court decided to drop all charges against Vally and 16 others for protests against Peres. Vally was charged with contravening the Regulation of Gatherings Act, resisting arrest and the obstruction of justice. If SAJBD's version of events is the right one, and Vally and the others were arrested for valid reasons, then why did none of the charges stick? In fact, we are made to understand that the then-Vice Chancellor of Wits (who was also denied entrance onto the campus) apologised to Vally for the manner in which he was prevented from accessing his office and manhandled by the police, reportedly at the behest of your supporters.

Then you refer to another statement in 2002, when the FXI condemned the fact that SAJBD approached the Broadcast Complaints Commission of South Africa (BCCSA) to request a prior ban on the flighting of John Pilger's documentary 'Palestine is Still the Issue'. We would be most interested to know whether your organization corrected its original oversight of failing to condemn threats against 3^rd Degree's producer, Debra Patta (and thereby implicitly endorsing them). These attempts were precisely as were described in our statement at the time: aggressive. Your focus on the strong language of the statement diverts all-important attention away from the key issue, namely that these were flagrant attempts at censorship on the part of SAJBD (that were rightly rejected by the BCCSA), and unnamed individuals.

Then you make reference to the death threats against Ronnie Kasrils and state, almost as a throw away line, 'of course, if Mr. Kasrils did receive death threats because of his views, that is unacceptable and it should be condemned'. Then condemn these threats, Mr. Saks, even if your condemnation is four years too late!

Onto the FXI's support for Radio 786 in its hate speech case, brought by the SAJBD. You are factually incorrect to state that the FXI released a statement on the matter. What we did was comment to the media when we were phoned. One comment, made by Na'eem Jeenah, led to correspondence on the matter between the Institute's Executive Director, Jane Duncan, and yourself. So your assertion that we released a statement commenting in a narrow fashion, hence trivializing the issue, has no basis in fact. In fact, in hindsight, we probably have been remiss in not releasing a statement on the case, but that point would probably have passed you by, as it does not fit neatly into your bias and conspiracy theory.

You complain about the fact that the FXI narrowed the SAJBD's complaint down to holocaust denial. In the letter to you, Duncan noted that Jeenah made it perfectly clear in the interview that he had not had an opportunity to review the judgement, and quite frankly, this was not a problem. The station in question (Voice of the Cape) in any event wanted to focus on this aspect of the matter. The FXI is called on all the time to comment on breaking stories on a daily basis, and if all organisations had to wait for judgements to come out, and to be read and analysed in all instances, newsmaking would grind to a halt. In this correspondence, it was noted that this was not an argument in favour of ill-informed commentary, merely recognition of the realities of commentary, which generally involve a preliminary comment, and then a fuller analysis once the judgement is on the table. Providing there are no significant errors of fact in the statement made, the bona fides of preliminary comments should stand, even if they focus on a particular aspect of the judgement.

Duncan went on to state:

'I am also struggling to understand what turns on the 'lack of context' in which the matter of holocaust denial was raised. Is it that holocaust denial is much more odious because it was allegedly said in the context of other anti-Jewish statements? In this regard, we take as our point of departure the statement made by the Judge in the Skokie case, that '...the result we have reached is dictated by the fundamental proposition that if these civil rights are to remain vital for all, they must protect not only those society deems acceptable, but also those whose ideas it quite justifiably rejects and despises'. As Laurence Tribe put it in the 'Son of Sam' judgement, 'If the constitution forces government to allow…people to march, speak, and write in favour of peace, brotherhood, and justice, then it must also require government to allow them to advocate hatred, racism and genocide'. This is the price of having freedom of expression; one has to take the good with the bad, in the interests of ensuring that the former will prevail over the latter once thorough public debate has taken place'.

If this is the approach we adopt, then actually very little turns on the 'lack of context' you allege, because even if holocaust denial was placed in the context you describe, a society that values freedom of expression would allow the totality of these sentiments to be expressed. The test that we would use is whether the programme constituted incitement to cause harm (and in this regard we refer to physical harm, which must be imminent). We are very aware of the fact that a number of bodies in South Africa do not interpret 'hate speech' as strictly as we do, but the definition of hate speech in itself is a subject of contestation. So we are never caught by surprise if our views differ from bodies like the BMCC; in fact, we are concerned about the over-broad interpretation of hate speech being developed by these bodies, as Na'eem pointed out. Was there any imminent physical harm that would have flowed from the broadcast? We suspect not. Granted, many may have found the broadcast offensive, and even racist, but that is not the test we would use to proscribe speech.'

Needless to say, you do not refer to this correspondence.

Now onto the Danish cartoon controversy. As with the Radio 786 case, we did not release a statement on the matter: so your comment that 'no official statement condemning the decision of the Johannesburg High Court proscribing the publication of the cartoons was issued by the FXI', is correct.

Why was this the case? The story broke on a Saturday, at lunchtime. The Sunday papers, which were on deadline, began to phone. Then the radio stations began to phone. Once the story broke, the FXI was inundated with calls for comment, and for the next few days was occupied permanently with commenting on the issue. In fact, in an assessment of the media coverage after the story died down, we calculated that in a period of three days, two staffers of the FXI were approached for interviews 35 times. We would have undertaken many more, but simply could not cope with the demand.

So you are correct, we did not issue a statement, simply because we were too busy commenting. By the time we stopped, the release of a statement would have been purely for historical record purposes with very little news value, as we had been canvassed so heavily already.

It is interesting to note that while you quote Mr. Jeenah (who drew the ire of the Muslim community for emphasising our objection to the application for and the granting of the interdict) on the issue, you do not take note of Ms. Duncan's statements.  One quote is as follows:

Jane Duncan, of the Freedom of Expression Institute, said the organisation was concerned that the judge had adopted an overbroad interpretation of what constituted hate speech.

"If the constitutional clause around hate speech is interpreted too broadly, a variety of forms of expression that different social groups find offensive could be censored unduly on the grounds of hate speech," she said. (Cape Times, 6 February 2006).

There are numerous other such statements that can be quoted, but all this is a matter of public record. In fact, if our line on the matter was so lukewarm, then why did one reader write the following to the Mail and Guardian:

Freedom of Expression Institute director Jane Duncan’s statement that the court order violates freedom of expression is highly simplistic. The cartoons have to be seen as part of an imperialist and racist move against Islam and Muslims because of their rightful defensive militancy. -- Ebrahim Harvey, Cape Town

A useful contrast is the statement made to the Mail and Guardian on the Jewish Report issue.

The Jewish Report makes reference to ‘deeply offensive statements’ made by Kasrils and then refers to his piece as ‘hate speech’. Clearly, the newspaper misunderstands what hate speech means. Hate speech is not simply hateful speech and it is certainly not offensive speech. The crucial element of incitement to cause harm must be present for any speech to be regarded as hate speech. Incitement means calling on people to engage in harmful actions; the call to action must be unambiguous. Likening certain policing or military measures that the Israeli state uses to Nazi measures does not meet this objective test. So the assertion by the Jewish Report that this aspect of Kasril’s piece “certainly would qualify as hate speech” is, quite simply, wrong…As an organisation that defends free speech and freedom of the media, we are becoming increasingly tired of the “hate speech” exception in our constitution being misinterpreted and misused by institutions like the Jewish Report to stifle what they consider to be disagreeable speech.

Duncan again repeated this position at the South African Human Rights Commission seminar you referred to.

The question that arises from this contrast is: have we as an organization applied our policy position on hate speech inconsistently? We think not. You may not agree with our interpretation of the Constitution, but that is your democratic right.

Once again, on this issue, SAJBD has failed to take a principled position on censorship by the Jewish Report of Ronnie Kasrils, which implies that your institution endorses such censorship; something that must not be lost in this imbroglio.

Rather, what the above events prove is that the pro-Israeli lobby generally, and SAJBD specifically, have established a firm trend towards censorship.

With regard to the case of the cancelled Pogrund-Salem tour, we must say that, firstly, the FXI cannot be held responsible for anything said or done by former executive members of the organisation. Mr Vally’s views are his own and he expresses them as he sees fit without needing to consult the FXI on how he does so. Secondly, unlike in the case of the censoring of Ronnie Kasrils by the South African Jewish Report, no media approached us for a statement on the Pogrund-Salem tour and hence the lack of any comment from us in the media.

Having said that, we turn to the substantive issue of the cancellation of the tour. At the outset, we want to state that we believe that Messrs Pogrund and Salem have a definite constitutional right in South Africa to free speech and free expression. And those who want to hear them have the constitutional right to listen and not be prevented from doing so. We will defend these rights. We will also criticise anyone that would violently disrupt their or other meetings. We continue to maintain that freedom of speech extends even to odious speech and whatever criticism certain people have of the views of Pogrund and Salem, they still would not have the right to use violence to prevent the lecture tour from taking place.

However, the various allegations that have been made of Mr Vally having threatened the two speakers with violence are not borne out by the facts. Nowhere did Vally mention violent protests. He did say that were the lectures to take place, the PSC would protest outside the venues of the lectures. While we do support the right of the speakers to have their say, we are bound by our mandate to also support the right of people who do not agree with the speakers to protest outside the venue. That is their right to free expression. An example would be the case of an apartheid supporter who delivers a lecture extolling the supposed-virtues of apartheid. As odious as his views might be, we will support his right to express them. At the same time, we will also support the right of people who disagree to protest outside the venue in order to express their position that he is talking nonsense and is a bigot and to attempt, through the protest, to convince him of a different viewpoint. Both have rights and both rights must be protected – without allowing the one to infringe on the other.

Conclusion

The inference that the FXI has been taken over by radical extremists, and has therefore been led astray from its original mandate, is simply wrong. We have adopted the strategic direction mentioned above entirely on our own, without any external pressure, and because it makes sense. It is true that we employ, and have on our Executive Committee, members of various social movements. They were brought into the organization through fair, transparent and democratic processes, and were selected because of their ability to advance the FXI's strategic direction as an organization. But then again, there are other members who are not active in social movements. The FXI has decided to employ some of the best activist talent in the country, as fighting for freedom of expression requires experienced activists. To portray them as infiltrators of a previously impartial and objective organization is misconstrued. They are subject to the policies of the organization. To infiltrate means to enter by secret with a hidden agenda. The strategic decisions we have taken have been owned fully by the organization at all stages. It is an outcome of an elaborate strategic planning process over a number of years.

We know that many freedom of expression organizations would not take the positions that we do. In fact, we have been highly critical of the overly timid approach of some in our field. We are also aware that our approach may result in a serious backlash against the organization, on the part of those who accuse us of promoting a particular political agenda. We have chosen to take this risk.

In this regard it should be noted that we are called all kinds of names by all kinds of people. The fact that we are attacked by SAJBD for being a 'propaganda platform…for radical anti-Israel, anti-American and pro-Islamist viewpoints', shortly after having been attacked by another institution (the South African Broadcasting Corporation) for being right-wing, must mean that we are doing something right. Interestingly, we are often accused of being a mouthpiece for the Democratic Alliance. We are not swayed by labels.

We hope that there is room for a diversity of approaches in the freedom of expression field. We also believe that our approach to freedom of expression has opened lines of communications with communities whose freedom of expression problems would otherwise have not seen the light of day.

In fact, it is difficult not to conclude that SAJBD has become little more than a censorship board on matters concerning Israel. You and your supporters want to use threats and intimidation to stop any criticism of Israel and pro-Israeli supporters: an inherently censorious enterprise.  You have a long history of doing so, and the Board is clearly bothered by the fact that we have pointed that out over a long period of time. SAJBD has consistently failed to condemn incidents of intimidation and harassment for members of the media for printing material critical of Israel.

It should also be noted that the FXI has offered the Jewish Report an opinion piece on numerous issues related to these matters, with a specific focus on hate speech. This offer was rejected outright by the editor, on the basis that the original FXI statement on the Kasrils matter was 'hostile'. So much for constructive debate! It’s a pity, because we have seen comments around this issue on pro-Israeli blogs which make a good argument for the redefinition of hate speech. We might not agree with those views, but we think the debate needs to be had.

The intimidation campaign launched by yourselves are an inevitable consequence of speaking truth to power: often power will respond by attempting to bully those who do.

In closing, we must note that we hold no brief for censorship irrespective of which community, political party or any other interest group it comes from. To attempt to label us as supporters of Islamists, etc, is just plain silly.

Now who has a genuine case to answer?

Yours faithfully
Mabalane Mfundisi
Chairperson
084 505 8831