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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." |
