Jaideep A Prabhu
A Free Speech Primer
This article originally appeared in centreright.in. CRI content has now been subsumed in swarajyamag.com. The views expressed here are personal and do not necessarily reflect those of the editors of swarajyamag.com

In August 2012, the Bodo-Muslim violence that had been plaguing Assam over the previous three weeks boiled over and went national. Riots erupted in Bombay, Lucknow, Kanpur, and other cities across India. Malicious text messages and tweets sent in the tense atmosphere allegedly triggered an exodus of residents of northeastern India from the southern cities of Hyderabad and Bangalore. In an attempt to curb the panic, the Government of India (GoI) attempted to block websites and shut down or temporarily disable twitter accounts that were, again, alleged to be responsible for spreading the threatening text messages. Shockingly, the move to censor the internet and free speech was met with approval from many in India’s commentariat and the mainstream media. Newspapers carried articles condemning social media as irresponsible and filled with hate-mongers. Using the excuse of “enforcing public order,” the GoI engaged in a sloppy vendetta against voices critical of its policies in the past, catching even those working to dispel rumours in the wide net the Ministry of Communications & Information Technology (MICT) had cast.

Then there was this blog post, that tried to turn Benjamin Franklin’s famous quote

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety

on its head. While the article quotes for almost its entirety another blog post, the essential thrust of the author(s) is, “Sorry to disappoint you but it doesn’t mean what it seems to say. In fact, it means the opposite.” This is patently false – for one, Franklin’s words have been adopted by firearms lobbyists and civil liberties activists as well as those who would wish to censor free speech. Clearly, this is not a binary case of a commonly perceived meaning and its opposite. Secondly, Benjamin Franklin’s sentiments on this issue can be gauged from other incidences and utterances we have of his. For example, he is also attributed with the quote, “Sell not virtue to purchase wealth, nor Liberty to purchase power,” which appeared in the 1738 edition of Poor Richard’s Almanack. We should also remember that the original quote in question was repeated several times during the Revolutionary War (such as during the Conference in February 1775) by not only Benjamin Franklin but also other American founding fathers to mean what is commonly understood, that liberty ought not be traded for safety.

It is also important to note the exact context of what Franklin said in the much ballyhooed November 1755 Pennsylvania Assembly. The Seven Years War had broken out in Europe and the French had coaxed some Native American tribes to break their friendship with the British and declare war on them. Due to pressures back home, the British Crown was not able to fortify the frontier against the unexpected switching of sides by the Native Americans, and defence was left to the local people. In the Pennsylvania Assembly when Franklin spoke the words in question, there were two currents. One was the issue of the Quakers’ refusal to do violence. Given a fairly large Quaker presence in the territory and their control over the legislature, Franklin had to cajole the Assembly into accepting the notion of a militia. The other issue was notion of taxing the proprietary, which the Governor had consistently vetoed. In this complex situation, Franklin’s famous quote could be easily interpreted as a comment on taxation, the Quakers’ right to their religious convictions, or something else. Given this propensity to be taken out of context, Franklin’s previous and later paraphrases of the phrase must be the guide (as they indicate Franklin’s ideology over a long period of time), and they clearly hold the commonly held understanding that essential liberty should not be sacrificed to secure temporary safety.

In any case, Franklin is the lesser of my concern (though his reputation did seem to need some rescuing) and freedom of speech is, a concept that seems equally alien to the GoI and India’s commentariat. The gold standard for free speech is undoubtedly the Brandenburg v. Ohio case of 1969. In 1964, Clarence Brandenburg, a Ku Klux Klan (KKK) leader in Ohio, invited a reporter to cover a Klan rally. At this rally, words such as “nigger” and “Jew” were uttered with racist intent. A speech was given which accused the US president, its Congress, and the Supreme Court of oppressing the “white, Caucasian race,” and advocated vengeance. As per the existing laws, Brandenburg was arrested and charged with “advocat[ing]…the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and for “voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” The Ohio courts tried, convicted, and sentenced Brandenburg to a $1,000 fine and a prison term of one to ten years.

The US Supreme Court, however, overturned their decisions, arguing, “the mere abstract teaching…of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.” Any law which does not distinguish between the two would impinge upon free speech, the court said (decision was per curiam). Justice Douglas added a caveat, reminding how the notion of “clear and present danger” was first applied to the first amendment in the context of World War I (Schenck v. United States). However, in the case of another dissident, Abrams v. United States, Judge Holmes had declared, “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country.” Judge Douglas further warned that the bogey of  “clear and present danger” can be manipulated easily to crush “[t]he fundamental right of free men to strive for better conditions through new legislation and new institutions” by argument and discourse even in time of war. Critically, he declared, “Though I doubt if the ‘clear and present danger’ test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace” (emphasis added). Judge Douglas adds Judge Holmes’ famous dissent in Gitlow v. New York to his caveat,

Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason.

Judge Douglas acknowledged that the standard had so far been “whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger,” but found it unsatisfactory. Looking at the history of US Supreme Court cases, Judge Douglas found the “clear and present danger” a cause for concern. He wrote, “the threats were often loud, but always puny, and made serious only by judges so wedded to the status quo that critical analysis made them nervous.” Instead, Judge Douglas opined that it was hate action that ought to be regulated, not hate speech. In his own words, “The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.” The classic example of someone yelling, “Fire!” in a crowded theatre is speech “brigaded with action” inseparably and the action can indeed be prosecuted. Denying even “clear and present danger,” Judge Douglas makes a strong stand in defence of the “sanctuary of belief and conscience,” as he calls it.

The Brandenburg v. Ohio ruling is understandably the Holy Grail of free speech activists. It rejects John Stuart Mill’s harm principle (advocated by others, not Mill) because if one were to truly measure harm, a lot of political and religious speech would have to be banned, along with pornography, some advertising and editorials, and hate speech. This would put undue burden on any community’s freedom, assuming that harm could indeed be proven in the first place. Brandenburg v. Ohio also rejects Joel Feinberg’s offence principle as well. Essentially, Feinberg argues that the harm principle sets the bar too high and society should be mindful of the psychological damage caused by words. While Feinberg does not advocate a ban on books or movies because it is easy to avoid them, he does argue against permitting hate speech. For one, Feinberg argues that such speech is against the underlying values of liberal democracies (labelling some groups as superior and others as inferior), and secondly, it is uncomfortable due to its nature to single out individuals or groups. The most obvious problem with this is that people get offended at different things owing to their disposition and backgrounds, and the randomness of emotions makes it difficult to legislate on “hurt sentiments.”

It has also been argued that speech should have value and cannot be accepted without limits. However, this goes against the spirit of democracies which usually allow governments clearly enumerated powers and responsibilities and retains everything else with the people. In other words, a legal code must specifically state what is not allowed rather than what is. Thus, it is not the state’s concern whether an individual’s speech has value or not. The Brandenburg v. Ohio decision draws that line not at speech but action, allowing unlimited free speech but regulating the more tangible actions that might arise from any such speech.

No doubt, an argument will be made that India is not the United States and lofty Anglo-Saxon principles may not be applicable to India or may not be required in Indian society. This is, also without doubt, the most asinine of arguments. Firstly, it can also be argued, perhaps a tad flippantly, that India is not China or Saudi Arabia either, and a restriction of free speech is simply unpalatable. Secondly, an attempt to hide behind Indian culture is cowardice – freedom, like honour, loyalty, or love, is a value that transcends language or culture, and Indian kingdoms knew of it as well as others. To reject this is not only inaccurate, but it is also to accept orientalist depictions of Indian kings as despots.

To bring all this to the events that unfolded in India in the second half of August 2012 – the blocking of websites and twitter accounts in order to “curb the hate speech being propagated by social media” – it ought to be clear by now that it is utterly immoral. Unfortunately, it is not illegal to ban expression in India: the first amendment, in a marked contrast to the United States’ first amendment, limits the freedom of expression. “Reasonable restrictions” may be placed on free speech in regard to

  1. the interests of the sovereignty and integrity of India
  2. the security of the State
  3. friendly relations with foreign States
  4. public order, decency or morality
  5. or in relation to contempt of court, defamation
  6. or incitement to an offence

Nonetheless, one would hope that the evidentiary standards of Dennis v. United States (Schenck v. United States was a wartime incident) were applied: “whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” The GoI has acted without reasonable proof that activity on social media did indeed precipitate a breakdown in public order. Furthermore, such action would have to be taken on specific individuals and cannot be a blanket ban on an entire medium of communication and expression. Even if it is conceded that the GoI targetted specific individuals and did not attempt a blanket ban on certain groups or sites, we return to the question of specific proof of link between the blocked websites and twitter accounts and the actual violence.

If India intends to remain a stable, secular democracy and prosper, its government cannot interfere in the rights of its citizens to voice dissatisfaction. If willing, there is much India can learn from the experience of Europe and the United States, in what to emulate and also in what to avoid. Deeds are actionable, words should not be. India needs to strengthen its implementation of laws and weaken its political influence over its bureaucrats and officers. Otherwise, there is little to stop it from becoming, to paraphrase James Hacker (Yes, Minister), a TPLAC – Tin-Pot Little Asian Country.