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Since informed public opinion is the most potent of all restraints upon government abuses, the suppression or abridgment of free speech by such draconian measures as murder, imprisonment, and harassment cannot be regarded other than with grave concern, writes Hashim A. Ahmed (hashimahmed11@gmail.com), a macro-economic analyst for the Ethiopian government. The views expressed here are his own and do not represent those of the Ethiopian government or affiliated institutions.

Free speech and its boundaries

 

This past week saw two landmark events that are sure to ignite the age old debate on the boundaries of free expression. The same day the Minorities Minister of Pakistan was brutally gunned down for his objection to that country’s blasphemy laws, the United States Supreme Court justices in an 8 to 1 ruling opined that hate speech constitutes freedom of expression and as such must be afforded constitutional protection. 

History discloses that freedom of expression has long been humanity's perennial quest. According to Blackstone, it is the “liberty to lay what sentiment one pleases before the public without any restraints from censure” or fear of reprisal. It often finds its mediums either through the press in publications and broadcasts, or through more traditional means of oration, assemblies, writings, theatre, music, paintings, and sculptures that humanity has utilized since time immemorial.

Inspite of a long and illustrious tradition, expression was never regarded as an inalienable right for much of the world’s history. In fact, until the Enlightenment movement broke forth from the Middle Ages with its insistence on secular values and social contracts to protect them, any form of “unapproved” expression begat its risks. In 16th century Spain, Professor Fray Luis de Leon was dragged out of his classroom and imprisoned for four year for translating “Song of Solomon” into Spanish, one of the Old Testament books that the Church considered full of erotic lyrics for the masses to appreciate its spiritual allegory. William Tyndale was not as lucky. He was burned at the stake for a similar offense.           

The world has of course changed. Since Voltaire’s bold declaration that “I may not agree with what you have to say, but I will defend to the death your right to say it”, freedom of speech has come to be regarded as a universal right, protected in constitutional provisions of many countries except in emergencies when national security might be endangered. Despite its universal acceptance, what constitutes free speech is still contentious, with different countries applying different standards that in effect demarcate its boundaries. In some constitutions, there are so many qualifications and exceptions written into the bill of rights that the state of emergency provisions run several paragraphs, and sometimes several pages. These qualifications allow suspension of the provisions for freedom of expression and many other protected rights by simple declaration of a state of emergency.

There are certain emergency situations of course when almost everyone agrees that some restrictions, particularly on that of the press, are justified. That necessity becomes obvious to the common sense of the citizenry and we therefore then accept measures that would be unacceptable in ordinary circumstances. Should we, however, be surprised that emergencies are often declared under such constitutions and that they last sometimes for months and even years? For instance, Article 352 of the Indian constitution enabled the president, at the request of the then Prime-minister Indira Gandhi, to declare a state of emergency in June 1975 that lasted until December 1977. Restrictions were imposed on the press for more than two years, and journalists were subjected to fines and imprisonment for publishing anything that is likely to bring "hatred or contempt or excite disaffection toward the government and thereby cause or tend to cause public disorder." Similarly, several Arab countries also enforced some measure of emergency decrees that enabled their governments to arrest people without charge, detain prisoners indefinitely, limit freedom of expression and assembly, and maintain special security courts. Egypt’s Hosni Mubarak imposed emergency laws soon after coming to power that after 30 years are yet to be lifted, while Algeria’s emergency laws have been in enforce for nearly two decades.

Allowing for exceptions is prone to intolerable abuse, yet most people agree to some restrictions in some circumstances. The question then is what exactly should these limitations and circumstances be? Expression like every other freedom is balanced against the rights of others. In other words, you are at liberty to swing your arm in any direction you please provided it does not come within the proximity of my nose.

Explaining this delicate balance, the U.S. Supreme Court’s Chief Justice Holmes delivering the opinion of the Court in the 1919 Schenck v. United States case wrote, "...the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress [parliament] has a right to prevent. It is a question of proximity and degree."

Following the principles of its predecessors, the present Supreme Court ruled on Wednesday (March 2nd) that the constitutional provisions of free speech also protected those who spewed venom during protests at military funerals. In affording protection to searing and highly offensive hate speech, Chief Justice John G. Roberts Jr. wrote for the majority Justices that “debate on public issues should be robust, uninhibited and wide-open”.

While the Supreme Court’s decision in effect extended the boundaries of free speech in the United States, a tragic event halfway across the world was also redefining it through brute force. Pakistan’s Minister for Minorities, Shahbaz Bhatti was gunned down on the same day, the second senior official to be assassinated this year for opposing the country’s blasphemy law. Pakistan's blasphemy law sanctions the death penalty for insulting Islam or its Prophet Mohammad, and although no death sentence has ever been carried out and most convictions are thrown out on appeal, mobs have killed many accused of blasphemy. These extrajudicial killings are distressing because violence, rather than judicial processes, is in effect determining the boundaries of free speech by sanctioning against specific utterances and prohibiting any challenges of its consistency with the conception of liberty as historically conceived and in this case constitutionally guaranteed.

The Pakistani government’s justification for the law is security, where any expression deemed blasphemous is likely to instigate dissensions and even incite wars, thereby destabilizing the security of the state. Opponents argue for reform alleging that it is used to persecute Christians and other minorities that make up around two percent of that country’s population.

Irrespective of one’s position on this matter, very few would question that the security of the community life may be protected against incitement to acts of violence. Nor do I suggest that the constitutional guaranty of free expression protect anyone from an injunction against uttering words that may have all the effect of force against the security of the state, as an outright blasphemy in this case would. The contention here is that such laws are often too vague and indefinite to afford proper enforcement. When such laws are drafted, they should be precise and in the most unambiguous terms possible so that average individuals understand what is proscribed. Limits of their restrictions to particular times and circumstances must be defined, scope and extent clearly spelled out.

In conclusion, the predominant purpose of freedom of expression is to preserve an untrammeled flow of public information. To this end, challenges to the consistency and efficacy of laws that abrogate such freedoms often result in institutionalizing a democratic culture with room for vibrant and responsible press that shed more light on the public and business affairs of a nation than any other publicity instrument. Since informed public opinion is the most potent of all restraints upon government abuses, the suppression or abridgment of free speech by draconian acts of sheer terror cannot be regarded otherwise than with grave concern.

Ultimately, it is more freedom and not less that guarantees the security of the community life. Indeed, as the United States Supreme Court Justice Hughes when delivering the opinion of the court in the 1937 De Jones v. Oregon case eloquently put it, "The greater the importance of safeguarding the community from incitement to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government." 

By Hashim A. Ahmed

Hashim A. Ahmed, the author is a macro-economic analyst for the Ethiopian Government. The views expressed here do not necessarily represent those of the Ethiopian Government, affiliated institutions or individuals.

 
 
   
   
   
 
 
 

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