FREEDOM OF EXPRESSION (FREEDOM OF SPEECH)

January 1, 2013 by Dr Rajiv Desai

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FREEDOM OF EXPRESSION (FREEDOM OF SPEECH)

Caveat:

Please do read my articles on ‘Internet censorship’, ‘Science of Religion’ and ‘Torture’ whereby I have discussed freedom of expression on internet, blasphemy & sacred texts and clash of moral duties respectively. The reason for writing an entire article on ‘Freedom of Expression’ is to respond to an attempt made by Indian media to block my article ‘Hybrid Smile’ on my facebook page. Here I have discussed in depth the scope of freedom of expression and the limitations of freedom of expression. In order to make the article vibrant and inclusive, I have taken liberty to include views of some which may sound offensive to some community or some leaders or some people. I do not agree with some of the views of others posted in this article but for the sake of freedom of expression, I have allowed those views to be heard. The idea is debate & discussion and not suppression & irreverence. I offer unconditional apology to anybody hurt by this article no matter whether they have read the article or offended by mere hearsay.

Prologue:

The Indian Emergency of 26 June 1975 – 21 March 1977 was a 21-month period, when President, upon request by Prime Minister, declared a state of emergency under Article 352 of the Constitution of India; effectively rule by decree, suspending elections and civil liberties. The Government used police forces across the country to arrest thousands of protestors and opposition leaders. The Supreme Court upheld the state’s plea for power to detain a person without the necessity of informing him of the reasons/grounds of his arrest or, to suspend his personal liberties. The right to freedom of expression was automatically suspended. I was 14 years old at that time and I remember ordinary Indian citizens praising emergency as trains were running on time and work was being done efficiently in government offices. Nobody was bothered about freedom of expression. This is especially shocking as India got independence from British rule in 1947. The lack of respect for freedom of expression continues in India even in 2013 as numerous innocents were arrested by police for making comments on facebook and twitter. My educational comments on internet were repeatedly blocked by Indian media curtailing my right to freedom of expression granted to me by Indian constitution and not one Indian citizen protested against curbing of my right to freedom of expression by media. The country, the people and the culture that does not respect freedom of expression is unlikely to progress, develop and prosper. No, this is not an empty rhetoric or anti-India campaign but as you read the article, you will see the importance of freedom of expression.

It’s about Freedom, not just Freedom of Speech:

The Government of India wants to dictate once more what people should know and what information is okay for people to handle. It routinely blocks websites, prohibits or limits the use of mobile text messages, and is also threatening to block Twitter altogether. The Government’s repression of the people is an old habit and it should not evoke any surprise or comment. Yet the fight for freedom of speech and expression is too important to life and liberty that one should not give up merely because one has been on a losing streak for centuries. We, the people, have to win that battle if we have to win the war for freedom. The cornerstone of a democracy is an informed citizenry, if the notion of a democracy has to have any meaning that is internally consistent. If those who ultimately are in charge of determining how society is going to be ordered are not informed, then the result would be disastrous. Let’s be very clear that in a democracy, ultimate power rests with the people and not the Government which is granted its legitimacy by the people. Unlike an authoritarian system where the people are ruled by a small gang of powerful overlords, a democracy is by definition rule by the people. A democracy cannot function if the people are prevented from knowing what’s relevant for proper decision making. India is not free today any more than it was under the British Raj. India is under British Raj II. India’s lack of freedom of expression is one very important component of this new Raj. The Government’s haste in repressing social media more than anything else reveals its desperation. This is actually a good sign and tells us that there is still hope for India. When the Government is afraid of people, the people are most likely winning the war. Indians still have a chance at real freedom, something that has eluded them for so long. Social media might create social capital India needs for freedom. Freedom is not the natural state of mankind. It is a rare and wonderful achievement. It will take an understanding of what freedom is, of where the dangers to freedom come from. It will take the courage to act on that understanding if we are not only to preserve the freedoms that we have, but to realize the full potential of a truly free society.

The figure below depicts how freedom is linked to liberty, right, responsibility and will.

The foundation of Wiki-leaks by Julian Assange, the issue of blasphemous caricatures, the removal of General Stanley McChrystal by US President Barack Obama, the infiltration in privacy of the Royal couple of Kate Middleton and William Charles by a French magazine while they were on a private holiday and most recently, the release of an anti-Islamic video that has brought a wave of protests and dissent in the world – regardless of different severity levels, all have one feature in common, the use and abuse of freedom of expression. The situation is both critical and distressing not only because of the unrest and uproar that it has caused, but also because it has raised many eyebrows across the world, probing the effectiveness, justification and practicality of the principles on which contemporary liberal value system rests. Is there a need to revisit the laws that govern the state of affairs in a liberal political and social setting? Are the much boast-about values prevailing in liberal and developed half of the world just an illusion or a mirage for other halves, which are nice to be disseminated and preached but impractical and self contradicting?

What are the limits of individual freedom in a civilized society? Should we tolerate unlimited freedom of speech, no matter how offensive the views expressed? Can the state ever be justified in interfering with what consenting adults choose to do in private? When, if ever, is coercion acceptable? Are all laws obstacles to freedom, or are they the very condition of achieving it? Should we sometimes force people to be free, or is that a contradiction in terms? These are serious questions. They’re not merely abstract puzzles for philosophers to ponder in comfortable armchairs. They are the sorts of issues that people are prepared to die for. Even if you choose to ignore them, the way other people answer these questions will impinge on your life. To live in a society requires all kinds of co-operation. Usually this means curbing some of our more selfish desires in order to accommodate other people’s interests. That is an element of the human situation. Given that our desires often conflict, it would be impossible for us to live in a society which imposed no limits whatsoever on what we do. It would be absurd to argue that we should all have complete license to do whatever takes our fancy no matter who is affected by our actions.

The graph below shows that the percentage of free countries has grown and the percentage of not free countries has declined from 1972 to 2009. So globally freedom is on the rise.

A man told his grandson: “A terrible fight is going on inside me — a fight between two wolves. One is evil, and represents hate, anger, arrogance, intolerance, and superiority. The other is good, and represents joy, peace, love, tolerance understanding, humility, kindness, empathy, generosity, and compassion. This same fight is going on inside you, inside every other person too.” The grandson then asked: “Which wolf will win?” The old man replied simply: “The one you feed.” There are still wars, conflicts and so many problems in all over the world and the only solution is learning to live together and in peace. All human beings are born free and equal in dignity and rights. Nobody can choose his nationality or his religion as he is born in a particular nation and a particular religion. Yes, he can change his nationality or religion as he grows up but nonetheless whatever rights and freedoms he is entitled to; is basically given because he is a human being. However if you are an American citizen, you enjoy far more freedom than a Saudi citizen because different countries and different cultures have different approach to freedom even though they apply to the same human species. I want to find out which approach to freedom is better for humanity.

Let me go through quotable quotes of noble and great souls:

I am not truly free if I am taking away someone else’s freedom, just as surely as I am not free when my freedom is taken from me.

Nelson Mandela

I want freedom for the full expression of my personality.

Mahatma Gandhi

In Evelyn Beatrice Hall’s biography of Voltaire, she coined the following phrase to illustrate Voltaire’s beliefs: “I disapprove of what you say, but I will defend to the death your right to say it.” Hall’s quote is frequently cited to describe the principle of freedom of speech.

If liberty means anything at all, it means the right to tell people what they do not want to hear.

George Orwell

Dissent is the highest form of patriotism.

Thomas Jefferson

All censorships exist to prevent anyone from challenging current conceptions and existing institutions. All progress is initiated by challenging current conceptions, and executed by supplanting existing institutions. Consequently, the first condition of progress is the removal of censorship.

George Bernard Shaw

We can never be sure that the opinion we are endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.

John Stuart Mill

Censorship reflects a society’s lack of confidence in itself.

Potter Stewart

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Whenever they burn books, they will, in the end, burn human beings.

Heinrich Heine

Liberty is always dangerous, but it is the safest thing we have.

Harry Emerson Fosdick

An enemy who tells the truth we need to hear [and are able to hear] contributes infinitely more to our improvement than a friend who deludes us, or flatters.

Louis-N Fortin

It is better to debate a question without settling it, than to settle a question without debating it.

Joseph Joubert

The last taboo of mankind, avoiding forbidden and dangerous thoughts, must be removed. There are no illegitimate thoughts.

Theodore Reik

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Freedom:

The Oxford dictionary defines freedom as “the power or right to act, speak, or think as one wants.”

There are three types of freedom. The first type of freedom is the physical freedom, which is to be able to move from place to place. The second is the political freedom, which is freedom from dictatorships, tyrannies and abusive governments. The third type of freedom is the mental and spiritual freedom, freedom from the restrictions that prevent and keep us from following our mind to wherever it is able to take us. All people are entitled to freedom of speech, association, assembly, religion, and movement. The additional freedom goals articulated by US President Franklin D. Roosevelt on January 6, 1941 that people “everywhere in the world” ought to enjoy included freedom from want and freedom from fear. His inclusion of the latter two freedoms went beyond the traditional US Constitutional values protected by its First Amendment, and endorsed a right to economic security and an internationalist view of foreign policy.

Freedom means many things to different people. Prof. Fears breaks it down into three separate components to better quantify its meaning:

1. National freedom:

It is the freedom of an entity, a nation, or a tribe, to be independent of any foreign domination or control.

2. Political freedom:

It is the freedom to vote and to choose your own officials, the right to say what you want in political discussions, to govern yourself under the laws that you give yourselves.

3. Individual freedom:

It is the freedom to believe whatever you choose and live as you choose as long as you harm no one else.

These three freedoms are not mutually inclusive. Example – North Korea has national freedom but no political or individual freedom. Same was true for Hitler’s Third Reich. The Roman Empire did not have national and political freedom but had enormous individual freedom. Throughout history nations have been willing to give up political and individual freedom to protect themselves against foreign intrusion or invasion. America has achieved a remarkable and unique intermingling of all three freedoms. But in doing so, it has given us the illusion that the rest of the world also wants our kind of freedom. While many nations have successfully followed America’s democratic model, history shows many civilizations have chosen otherwise. Today, there’s South America and Africa, where authoritarian rule consistently trumps the rule of freedom in many nations. And there’s China, one of the world’s oldest civilizations. They’ve never even tried freedom. And then there’s the Middle East. Since the beginning, the Middle East has been a crucible of conflict. “Freedom is a very difficult plant to grow in the Middle East. The Egyptian language has no word for freedom,” the professor tells us.

The distinction between Rights and Freedoms:

Now for the important matter of the distinction between rights and freedoms. Of late, there has been a proliferation of rights. There’s the right to information, right to employment, right to food, right to education, and so on. Somehow people start thinking that the expansion of rights enhances freedom but in fact it is the opposite: the expansion of rights actually reduces our freedom. To make the idea concrete let’s take an example. What is the “right to education” as it is being applied in India? If means that someone claiming that right is entitled to education without having to pay for it. But since education is not something that drops out of the skies for free, someone has to pay for it. Thus one person’s right to getting “free” education imposes a corresponding burden on another, a burden imposed by the government through coercion. That is a reduction, not an enhancement of freedom. In India, many government hospitals give free treatment to poor patients but ultimately who pays? The hard working taxpaying class who themselves may never visit government hospital. So right to health care is fulfilled by taking money from others who might have used the same money for their own good. So someone’s right is fulfilled by restricting another’s freedom. The more “rights” that the government confers on selected groups (minorities, disadvantages or socially backward), the more it tramples on the freedoms of citizens.

Positive and negative freedom:

In a ground-breaking lecture, the philosopher and historian of ideas Isaiah Berlin (1909–97) argued that there are two basic types of freedom which have been defended by philosophers and political theorists: negative freedom and positive freedom. Within each category there is scope for quite a wide range of positions; but most theories of freedom fit quite comfortably into one category or the other. Berlin’s article is important for three reasons. First, it provides a useful distinction between these two types of freedom. Secondly, it makes a case for the view that theories of positive freedom have often been used as instruments of oppression. Thirdly, by describing the incompatibility of various fundamental human aims in life, it suggests a reason why we put such a high value on freedom. For our purposes, the most important feature is the first, the distinction between the two types of freedom: negative and positive. The concept of negative freedom centers on freedom from interference. Positive freedom is a more difficult notion to grasp than negative. Put simply it is freedom to do something rather than freedom from interference. Negative freedom is simply a matter of the number and kind of options that lie open for you and their relevance for your life; it is a matter of what you aren’t prevented from doing; the doors that lie unlocked. Positive freedom, in contrast, is a matter of what you can actually do. All sorts of doors may be open, giving you a large amount of negative freedom, and yet you might find that there are still obstacles to taking full advantage of your opportunities. One of the main claims that Berlin makes in ‘Two Concepts of Liberty’ is a historical one. It is that positive theories of freedom, or perversions of them, have been more frequently used as instruments of oppression than have negative ones. These positive theories typically rely on a split between a ‘higher’ and a ‘lower’ self, or between a ‘rational’ and an ‘empirical’ self as Berlin sometimes puts it. Coercion is justified on the grounds that it leads to a realization of the aims of the higher or rational self, even if the lower, everyday, empirical self opposes the coercion with all its might. The final humiliation in such a situation is to be told that, despite appearances, what is going on is not coercion, since it actually increases your freedom. In other words, Berlin believes that positive theories of freedom have historically been used to justify some kinds of oppression and that it is a relatively short step from saying that freedom involves self-mastery to the justification of all kinds of state interference in the lives of individuals on the grounds that, in Rousseau’s words, it can, in some circumstances, be right to be ‘forced to be free’. ‘Freedom’ can mean many different things; the word can have a powerful emotive force. We’re concerned here with political freedom. Positive freedom is a more difficult notion to grasp than negative. Put simply it is freedom to do something rather than freedom from interference. Berlin sometimes talks of positive liberty in terms of the question ‘Who is master?’ I want to be in control of my life, but there may, for example, be internal obstacles to my living the way I really want to. Here we might talk of my increasing my freedom (in the positive sense) by overcoming my less rational desires.

One way to get clear on this distinction is to think about the relationship between rights and duties. If Smith has a right then Jones has a duty. Understanding what different kinds of duties Jones might have is one way to understand what kinds of rights Smith might have. We’ll call negative rights the kind of rights which impose on others a negative duty, a duty not to do anything, a duty of noninterference. If I have a right of this sort all you have to do to respect that right is refrain from blocking me. Negative rights are sometimes called liberties. Now we’ll call positive rights the kind of rights which impose on others a positive duty, a duty to provide or act in a certain way. If I have a right of this sort, you respect it by complying. Positive rights are also sometimes called entitlements. So my right to a lottery ticket or a steak is a negative right. No one can properly interfere with my efforts to acquire these through trade. Freedom of speech is another example of a negative right. I cannot be arrested for speaking out. The right of criminal suspects to an attorney is a positive right. One will be provided. One interesting feature of negative rights is that they don’t conflict and we can all respect everyone else’s liberties all the time. We simply have to refrain from using force to make people do our bidding.

Rights considered negative rights may include civil and political rights such as freedom of speech, private property, freedom from violent crime, freedom of worship, habeas corpus, a fair trial, freedom from slavery etc. Rights considered positive rights, as initially proposed in 1979 by the Czech jurist Karel Vasak, may include other civil and political rights such as police protection of person & property and the right to counsel, as well as economic, social and cultural rights such as food, housing, public education, employment, national security, military, health care, social security, and a minimum standard of living. In the “three generations” account of human rights, negative rights are often associated with the first generation of rights, while positive rights are associated with the second and third generations.

Some philosophers disagree that the negative-positive rights distinction is useful or valid. Presumably, if a person has positive rights it implies that other people have positive duties (to take certain actions); whereas negative rights imply that others have negative duties (to avoid certain other actions). Philosopher Henry Shue is skeptical; he believes that all rights (regardless of whether they seem more “negative” or “positive”) requires both kinds of duties at once. In other words, Shue says that honoring a right will require avoidance (a “negative” duty) but also protective or reparative actions (“positive” duties). The negative positive distinction may be a matter of emphasis; it is therefore unhelpful to describe any right as though it requires only one of the two types of duties. If health care is a negative right, then the state has an obligation to keep people from preventing me from getting health care and discriminating against me. If health care’s a positive right, then the state has an obligation to provide it for me.

Gerald MacCallum also challenged Isaiah Berlin’s view in an article in which he claimed that there is just one concept of freedom, not two, and that the idea that there are two concepts introduces confusion about what is really at stake. The single concept of freedom that MacCallum puts forward as a replacement for Berlin’s two concepts is ‘triadic’. All these means is that it has three parts. The three parts are as follows: freedom is always freedom for someone; it is also freedom from some possible constraint; and it is freedom to do (or not do) something. MacCallum believes that in any discussion of freedom, we should be able to fill in the details for each of the three parts. When one of the parts seems to be missing this is simply because it is implicit in the context. So, for example, any discussion of freedom of speech will, implicitly or explicitly, refer to some person or persons who are or are not constrained to make some sort of public statement. What MacCallum is doing is arguing that there is a simpler and more useful concept of freedom available than the two concepts set out by Berlin. This simpler concept embodies aspects of both the negative and the positive concepts of freedom described by Berlin. However, Berlin has responded to this criticism by pointing out that there are important cases in which freedom is at issue which cannot be fitted into this three part concept of freedom. Berlin has provided several counter-examples to MacCallum’s point.

History of freedom of speech:

Since ancient times, man has attached great importance to his fundamental right of expression. He regarded this right as his proud possession. He defended this right with all his might. If necessary, he even laid down his life to uphold this precious right. History is replete with examples of thousands of men, women, intellectuals, philosophers, artists, writers, politicians, etc, having fought and sacrificed their lives for the sake of this freedom.

In ancient times, Socrates was accused of misleading and corrupting the young men of Athens by spreading the gospel of truth and his famous dialectical method for acquiring knowledge. Socrates sacrificed his life by drinking hemlock for the sake of his freedom of expression.

Galileo, a scientist, declared on the basis of research and study that the Earth is not the centre of universe and that it revolves around the Sun and not vice versa. But Galileo had to face a lot of persecution for expressing a view which went counter to the popular belief of the church at that time.

During the medieval ages, the scholastic church establishment did not allow the airing of non-conformist ideas. Those who had the courage to express what they felt, were accused of blasphemy and awarded deterrent punishments like stoning to death, death by drowning in a river or burning alive.

It is thought that ancient Athens’ democratic ideology of free speech may have emerged in the late 6th or early 5th century BC. Two of the most cherished values of the Roman Republic were freedom of religion and freedom of speech. Before the invention of the printing press a writing, once created, could only be physically multiplied by the highly laborious and error-prone process of manual copying out. No elaborate system of censorship and control over scribes existed, who were scattered across monasteries and their works rarely caused wider controversy. Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information. The origins of copyright law in most European countries lie in efforts by the Roman Catholic Church and governments to regulate and control the output of printers.

The Index Expurgatorius is the most famous and long lasting example of “bad books” catalogues issued by the Roman Catholic Church, which assumed responsibility to control thoughts and opinions, and suppressed views that went against its doctrines. The Index Expurgatorius was administered by the Roman Inquisition, but enforced by local government authorities, and went through 300 editions. Amongst others it banned or censored books written by Rene Descartes, Giordano Bruno, Galileo Galilei, David Hume, John Locke, Daniel Defoe, Jean-Jacques Rousseau and Voltaire. While governments and church encouraged printing in many ways because it allowed for the dissemination of Bibles and government information, works of dissent and criticism could also circulate rapidly. As a consequence, governments established controls over printers across Europe, requiring them to have official licenses to trade and produce books. The notion that the expression of dissent or subversive views should be tolerated, not censured or punished by law, developed alongside the rise of printing and the press. Milton made an impassioned plea for freedom of expression and toleration of falsehood, stating: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” By defining the scope of freedom of expression and of “harmful” speech Milton argued against the principle of pre-censorship and in favor of tolerance for a wide range of views. As the “menace” of printing spread, governments established centralized control mechanism. The French crown repressed printing and the printer Etienne Dolet was burned at the stake in 1546. By the second half of the 17th century philosophers on the European continent like Baruch Spinoza and Pierre Bayle developed ideas encompassing a more universal aspect freedom of speech and toleration than the early English philosophers. By the 18th century the idea of freedom of speech was being discussed by thinkers all over the Western world, especially by French philosophers like Denis Diderot, Baron d’Holbach and Claude Adrien Helvétius. The idea began to be incorporated in political theory both in theory as well as practice; the first state edict in history proclaiming complete freedom of speech was the one issued December 4, 1770 in Denmark-Norway during the regency of Johann Friedrich Struensee. However Struensee himself imposed some minor limitations to this edict in October 7, 1771, and it was even further limited after the fall of Struensee with legislation introduced in 1773, although censorship was not reintroduced. By the second half of the 17th century philosophers on the European continent like Baruch Spinoza and Pierre Bayle developed ideas encompassing a more universal aspect freedom of speech and toleration than the early English philosophers. By the 18th century the idea of freedom of speech was being discussed by thinkers all over the Western world, especially by French philosophers like Denis Diderot, Baron d’Holbach and Claude Adrien Helvétius. John Stuart Mill (1806–1873) argued that without human freedom there can be no progress in science, law or politics, which according to Mill required free discussion of opinion. Mill’s On Liberty, published in 1859 became a classic defense of the right to freedom of expression. Mill argued that truth drives out falsity, therefore the free expression of ideas, true or false, should not be feared. Truth is not stable or fixed, but evolves with time. Mill argued that much of what we once considered true has turned out false. Therefore views should not be prohibited for their apparent falsity. Mill also argued that free discussion is necessary to prevent the “deep slumber of a decided opinion”. Discussion would drive the onwards march of truth and by considering false views the basis of true views could be re-affirmed. Furthermore, Mill argued that an opinion only carries intrinsic value to the owner of that opinion, thus silencing the expression of that opinion is an injustice to a basic human right. For Mill, the only instance in which speech can be justifiably suppressed is in order to prevent harm from a clear and direct threat. Neither economic or moral implications, nor the speakers own well-being would justify suppression of speech. In Evelyn Beatrice Hall’s biography of Voltaire, she coined the following phrase to illustrate Voltaire’s beliefs: “I disapprove of what you say, but I will defend to the death your right to say it.” Hall’s quote is frequently cited to describe the principle of freedom of speech.

Timeline: a history of free speech:

399BC Socrates speaks to jury at his trial: ‘If you offered to let me off this time on condition I am not any longer to speak my mind… I should say to you, “Men of Athens, I shall obey the Gods rather than you.”

1215 Magna Carta, wrung from the unwilling King John by his rebellious barons, is signed. It will later be regarded as the cornerstone of liberty in England.

1516 The Education of a Christian Prince by Erasmus. ‘In a free state, tongues too should be free.’

1633 Galileo Galilei hauled before the Inquisition after claiming the sun does not revolve around the earth.

1644 ‘Areopagitica’, a pamphlet by the poet John Milton, argues against restrictions of freedom of the press. ‘He who destroys a good book, kills reason itself.’

1689 Bill of Rights grants ‘freedom of speech in Parliament’ after James II is overthrown and William and Mary installed as co-rulers.

1770 Voltaire writes in a letter: ‘Monsieur l’abbé, I detest what you write, but I would give my life to make it possible for you to continue to write.’

1789 ‘The Declaration of the Rights of Man’, a fundamental document of the French Revolution, provides for freedom of speech.

1791 The First Amendment of the US Bill of Rights guarantees four freedoms: of religion, speech, the press and the right to assemble.

1859 ‘On Liberty’, an essay by the philosopher John Stuart Mill, argues for toleration and individuality. ‘If any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility.’

1859 On the Origin of Species, by Charles Darwin, expounds the theory of natural selection. TH Huxley publicly defends Darwin against religious fundamentalists.

1929 Justice Oliver Wendell Holmes, of the US Supreme Court, outlines his belief in free speech: ‘The principle of free thought is not free thought for those who agree with us but freedom for the thought we hate.’

1948 The Universal Declaration of Human Rights is adopted virtually unanimously by the UN General Assembly. It urges member nations to promote human, civil, economic and social rights, including freedom of expression and religion.

1958 Two Concepts of Liberty, by Isaiah Berlin, identifies negative liberty as an absence or lack of impediments, obstacles or coercion, as distinct from positive liberty (self-mastery and the presence of conditions for freedom).

1960 After a trial at Old Bailey, Penguin wins the right to publish D H Lawrence’s sexually explicit novel, Lady Chatterley’s Lover.

1962 One Day In the Life of Ivan Denisovich by Solzhenitsyn describes life in a labor camp during Stalin’s era. Solzhenitsyn is exiled in 1974.

1989 Iranian leader Ayatollah Khomeini issues a fatwa against Salman Rushdie over the ‘blasphemous’ content of his novel, The Satanic Verses. The fatwa is lifted in 1998.

1992 In Manufacturing Consent, Noam Chomsky points out: ‘Goebbels was in favor of free speech for views he liked. So was Stalin. If you’re in favor of free speech, then you’re in favor of freedom of speech precisely for views you despise.’

2001 In the wake of 9/11, the Patriot Act gives the US government new powers to investigate individuals suspected of being a threat, raising fears for civil liberties.

2002 Nigerian journalist Isioma Daniel incenses Muslims by writing about the Prophet Mohammed and Miss World, provoking riots which leave more than 200 dead.

2004 Dutch film maker Theo van Gogh is killed after release of his movie about violence against women in Islamic societies.

2005 The Serious Organized Crime and Police Act bans protest without permit within 1km of the British Parliament.

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What is considered “speech?”

The broad term “speech” can include verbal, nonverbal, visual, and symbolic expressions. For example, in 1969, the American Supreme Court found that high school students could wear symbolic black arm bands in protest of the Vietnam War as part of their freedom of speech rights.

Freedom of speech:

Based on John Milton’s arguments, freedom of speech is understood as a multi-faceted right that includes not only the right to express, or disseminate, information and ideas, but three further distinct aspects:

the right to seek information and ideas;
the right to receive information and ideas;
the right to impart information and ideas.

International, regional and national standards also recognize that freedom of speech, as the freedom of expression, includes any medium, be it orally, in written, in print, through the Internet or through art forms. This means that the protection of freedom of speech as a right includes not only the content, but also the means of expression. In other words, freedom of speech and freedom of expression could be synonymous with each other, even though there are subtle differences between them.

Definition of freedom of expression:

Freedom of speech is the political right to communicate one’s opinions and ideas. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used. Technically not the same, but they’re pretty much used interchangeably. Expression can cover what you wear, etc, while speech covers verbal speech as well as written and published communication. Freedom of speech means one can express his/her mind through ‘words’ only, while freedom of Expression means one can express his/her mind through verbal as well as non verbal means such as placards, rallying, processions, strike, picketing. Freedom of expression is broader. For instance, if a gay bookstore opened up in a small town, the residents might protest — this would not violate freedom of speech. But if the result of the protests was that the bookstore was closed, you certainly could say that freedom of expression had been trampled, even if freedom of speech had not (especially as a matter of law). In practice, the right to freedom of speech is not absolute in any country and the right is commonly subject to limitations, as with libel, slander, obscenity, sedition (including, for example inciting ethnic hatred), copyright violation, revelation of information that is classified or otherwise.

Freedom of expression is a broader term than freedom of speech. It comprises freedom of speech, of the press, of association, of assembly and petition. Some forms of artistic expression are also protected under the right to freedom of expression, including: painting, music, poetry, motion pictures, dramatic works, radio and television entertainment, drawings, and engravings. The right to freedom of expression is particularly important for media, which plays a special role as the bearer of the general right to freedom of expression for all. However, freedom of the press is not necessarily enabling freedom of speech.

Everyone has the right to freedom of expression meaning you have the right to hold your own opinions and to express them freely without anybody’s interference (including government), which includes-

(a) Freedom of the press and other media including television and radio broadcasting;

(b) Freedom to receive or impart information;

(c) Freedom of artistic creativity;

(d) Academic freedom and freedom of scientific research;

(e) Freedom to publish articles, books or leaflet;

(f) Freedom to communicate on internet;

(g) Freedom to protest peacefully.

The words “freedom of speech and expression” must be broadly constructed to include the freedom to circulate one’s views by words of mouth or in writing or through audiovisual instrumentalities. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one’s idea through any communicable medium or visible representation, such as gesture, signs, and the like. It therefore includes the right to propagate one’s views through the print media or through any other communication channel e.g. the radio and the television. Freedom of speech is the heart of democracy, and the ability to express one’s beliefs is essential to human rights and our character. It is not only found in media but also culture, thought and intellectual inquiry. Freedom of expression is a universal human right. It is not the prerogative of the politician. It is not the privilege of the journalist. It should not be the casualty of their skirmishes nor regarded as a matter of little importance to anyone else. Freedom of expression is fundamental to a democratic society.

The freedom of speech is regarded as the first condition of liberty. It occupies a preferred and important position in the hierarchy of the liberty, it is truly said about the freedom of speech that it is the mother of all other liberties. In modern time it is widely accepted that the right to freedom of speech is the essence of free society and it must be safeguarded at all time. The first principle of a free society is an untrammeled flow of words in an open forum. Liberty to express opinions and ideas without hindrance, and especially without fear of punishment plays significant role in the development of vibrant developed society and ultimately for the enlightened state. It is one of the most important fundamental liberties guaranteed against state suppression or regulation.

Examples of effective campaigns against freedom of expression are the Soviet suppression of genetics research in favor of a theory known as Lysenkoism, the book burning campaigns of Nazi Germany, the Slovakian law to sentence anyone who denies Armenian genocide up to 5 years in prison, the radical anti-intellectualism enforced in Cambodia under Pol Pot, the strict limits on freedom of expression imposed by the Communist governments of the Peoples Republic of China and Cuba or by right wing authoritarian dictatorships such as those of Augusto Pinochet in Chile and Francisco Franco in Spain.

Relationship to other rights:

Freedom of expression is a complex right. This is because freedom of expression is not absolute and carries with it special duties and responsibilities and thus it may “be subject to certain restrictions, but these shall only be such as are provided by law and are necessary. It is complex because it protects both the right of the speaker and the right of the listener”. These two sides of the same right may sometimes be opposing and making difficult to be reconciled. These two rights sometimes are at a tension because it is not always easy to find right balance between rights to dignity, safety, and privacy. Most limits are based on these tensions. The right to freedom of speech and expression is closely related to other rights, and may be limited when conflicting with other rights. The right to freedom of expression is also related to the right to a fair trial and court proceeding which may limit access to the search for information or determine the opportunity and means in which freedom of expression is manifested within court proceedings. As a general principle freedom of expression may not limit the right to privacy, as well as the honor and reputation of others. However greater latitude is given when criticism of public figures is involved. The right to freedom of expression is particularly important for media, which plays a special role as the bearer of the general right to freedom of expression for all. However, freedom of the press is not necessarily enabling freedom of speech. Judith Lichtenberg has outlined conditions in which freedom of the press may constrain freedom of speech, for example where the media suppresses information or stifles the diversity of voices inherent in freedom of speech. Lichtenberg argues that freedom of the press is simply a form of property right summed up by the principle “no money, no voice”.

I will put forward two landmark court judgments having different approach to freedom of expression:

The case of Whitney v. California was a landmark in the realm of free speech. It is perhaps best noted for Justice Louis Brandeis’ concurrence, which many scholars have lauded as perhaps the greatest defense of freedom of speech ever written by a member of the high court. Justice Brandeis wrote:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law–the argument of force in its worst form.

An alternative viewpoint, which strongly supports freedom of speech, while recognizing the need for limits, was written by Justice Louis Brandeis in Whitney v. California (1927):

Although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required to protect the State from destruction or from serious injury, political, economic or moral….To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced…No danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.

Indian leaders and media please read there two judgments. Learn why developed countries are developed and why India is a developing country. Learn how to become developed. There should be no shame in learning from superior thoughts as civilizations have evolved by practicing superior thoughts. 5000 years ago, India had a superior civilization with freedom of expression as a cornerstone, be it Ramayana or Mahabharata but recently everything is degenerated right from imposition of emergency in 1975 to crackdown on social media. When you crush freedom of expression, you transgress into hypocrisy, falsehood and pseudo-intellectualism. That is what India has become. By repeating that India is the second fastest growing economy worldwide million times, you cannot become Japan or Germany even though at the end of the second world war, Japan and Germany were worst than India economically. Do not crush freedom of expression under pretext of protection from being offended as one third of your population live below poverty line and millions go to sleep hungry and yet you are not offended by it.

82 per cent of Australians think freedom of speech is more important than the right not to be offended:

A new poll has found that 82% of Australians think protecting freedom of speech is more important than protecting people from being offended. The poll conducted for the Institute of Public Affairs by Galaxy Research surveyed 1052 people across the country. The poll question was:

In your opinion, which of these two options is the most important? That the government protects the right to free speech, or that people are protected from being offended?

Right to free speech 82%

Protection from being offended 15%

Don’t know 3%

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Types of speech:

Core political speech:

This is the most highly guarded form of speech because of its purely expressive nature and importance to a functional republic. Restrictions placed upon core political speech must weather strict scrutiny analysis or they will be struck down. The primary exception to this rule would be within the context of the electoral process, whereby the American Supreme Court has ruled that suffrage or standing for political office as a candidate are not political speech and thus can be subjected to significant regulations; such restrictions have been upheld in the Buckley v. Valeo case.

Commercial speech:

Not wholly outside the protection of the First Amendment is speech motivated by profit. Such speech still has expressive value although it is being uttered in a marketplace ordinarily regulated by the state. Restrictions of commercial speech are subject to a four-element intermediate scrutiny. (Central Hudson Gas & Electric Corp. v. Public Service Commission) A June 2011 case casts doubt upon whether this category exists any more, or if it has been folded into the main category of speech. (Sorrell v. IMS Health) Commercial speech is that which is aimed at quickly separating a sucker from their money. Examples include panhandling, telemarketing (if not at commonsense hours), toxic products (if no health warnings about potential hazards are listed), lawyer advertising (ambulance chasing), and false advertising (such as airlines promoting one rate and charging you another).

Expressive conduct:

While freedom of expression by non-speech means is commonly thought to be protected under the First Amendment, the American Supreme Court has only recently taken this view. As late as 1968 (United States v. O’Brien) the Supreme Court stated that regulating non-speech can justify limitations on speech. The Court carried this distinction between speech and expression through the early part of the 1980s (Clark v. C.C.N.V., 1984). It was not until the flag-burning cases of 1989 (Texas v. Johnson) and 1990 (United States v. Eichman), that the Supreme Court accepted that non-speech means applied to freedom of expression and freedom of speech.

Symbolic speech:

Symbolic speech is a legal term in United States law used to describe actions that purposefully and discernibly convey a particular message or statement to those viewing it. Symbolic speech is distinguished from pure speech, which is the communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea.

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The right to freedom of expression is recognized as a human right under Article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR states that “everyone shall have the right to hold opinions without interference” and “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”. Article 19 goes on to say that the exercise of these rights carries “special duties and responsibilities” and may “therefore be subject to certain restrictions” when necessary “for respect of the rights or reputation of others” or “for the protection of national security or of public order, or of public health or morals”.

Article 18 of the Universal Declaration of Human Rights of the United Nations (1948) states:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. This right is closely linked to the right to free expression and the right to free association as depicted in the figure below.

Eighteen years later the Declaration became a convention, which became binding and had an enforcement mechanism. The International Covenant on Civil and Political Rights (ICCPR) was adopted by the United Nations in 1976 and extends the specific protection to religion in Article 18. In 1981 this Covenant was further amplified in The UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief. This Declaration sets out in considerable detail what the international community regards as basic standards for the protection of religious freedom. This Covenant did not become a convention, however, because the international community was unable to agree on issues such as the freedom to change religion. For example, Islamic nations do not consider this to be a part of religious freedom. That is why “apostasy,” or conversion from Islam, can result in the death penalty in some countries. The reason for this impasse is not due to the desire of these nations to be ornery, but lies in a fundamentally different approach to human rights, one that the individualistic West finds difficult to understand and accept. The following diagram may help to illustrate the difference.

This split into individual versus community rights is often interpreted in terms of liberalism and conservatism. The spit actually occurs between Western individualism and the rest of the world. Even this statement needs a further qualification, since not everyone in the West is individualistic when it comes to human rights. Unfortunately, human rights have been interpreted in an individualistic way for a long time, especially in the Anglo-Saxon world. Even the United Nation’s documents governing human rights have sometimes been interpreted in this way. Thus one can understand the frustration of Muslims when it comes to a fundamental aspect of their beliefs and for their unwillingness to budge when it comes to further interpretations of these rights, especially when it comes to religious freedom. The clash of right to freedom of expression with other rights is discussed later on.

Freedom of speech is an intrinsic feature of any genuine democracy. The right to freedom of expression is crucial in a democracy – information and ideas help to inform political debate and are essential to public accountability and transparency in government. For a democratic system to function, people have to be able to form their own ideas. One must be able to receive and impart many different ideas and information, reflecting many different perspectives, before being able to see the truth. That is why freedom of expression is so fundamental. It is essential to the functioning of our pluralist society. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfillment. Freedom of expression is recognized as a human right in international and regional human rights law. The right is enshrined in Article 19 of the International Covenant on Civil and Political Rights, and article 19 of the Universal Declaration of Human Rights, in Article 10 of the European Convention on Human Rights, in Article 13 of the American Convention on Human Rights and in Article 9 of the African Charter on Human and Peoples’ Rights. I will focus on article 10 of the European Convention on Human rights, as this is one of the most widely cited and used sources of human rights law.

Article 10 of the European Convention on Human Rights provides that:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This includes the right to communicate and to express oneself in any medium, including through words, pictures, images and actions (including through public protest and demonstrations). This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. The type of expression protected includes:

Political expression (including comment on matters of general public interest);

Artistic expression; and

Commercial expression, particularly when it also raises matters of legitimate public debate and concern.

For obvious reasons political expression is given particular precedence and protection. Artistic expression – vital for fostering individual fulfillment and the development of ideas – is also robustly protected. To ensure that free expression and debate is possible, there must be protection for elements of a free press, including protection of journalistic sources. The right to free expression would be meaningless if it only protected certain types of expression – so (subject to certain limitations) the right will protect both popular and unpopular expression, including speech that might shock others. Interferences on free expression usually involve restrictions on publication; penalties for publication (such as criminalizing speech or awarding damages); requiring journalists to reveal their sources; imposing disciplinary measures or confiscating material.

2.The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The Convention is enforced by the European Court of Human Rights. In recognizing that freedom of expression is a necessary value in a democratic society, the Court has tried to confer a wide scope to the concept. In the Handyside case, the Court held that the freedom of expression is applicable, not only to information or ideas that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb: such are the demands of pluralism, tolerance and broadmindedness, without which there is no democratic society.

WikiLeaks:

WikiLeaks is an international, online, self-described not-for-profit organization publishing submissions of secret information, news leaks, and classified media from anonymous news sources and whistleblowers. Its website, launched in 2006 under the Sunshine Press organization, claimed a database of more than 1.2 million documents within a year of its launch. Julian Assange, an Australian Internet activist, is generally described as its founder, editor-in-chief, and director. The group has released a number of significant documents which have become front-page news items. The WikiLeaks website says their goal is “to bring important news and information to the public… One of our most important activities is to publish original source material alongside our news stories so readers and historians alike can see evidence of the truth. Another of the organization’s goals is to ensure that whistleblowers and journalists are not jailed for emailing sensitive or classified documents. The online “drop box” was designed to “provide an innovative, secure and anonymous way for sources to leak information to our journalists.” In an interview on The Colbert Report, Assange discussed the limit to the freedom of speech, saying, “it is not an ultimate freedom; however free speech is what regulates government and regulates law. That is why in the US Constitution the Bill of Rights says that Congress is to make no such law abridging the freedom of the press. It is to take the rights of the press outside the rights of the law because those rights are superior to the law because in fact they create the law. Every constitution, every bit of legislation is derived from the flow of information. Similarly every government is elected as a result of people understanding things”. Although Hillary Clinton refused to comment on specific reports, she claimed that the leaks “put people’s lives in danger” and “threatens national security.” Former United States Secretary of Defense Robert Gates commented, “Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.”

It is Ecuador’s decision to grant diplomatic asylum to its founder, Julian Assange, who is now living in the Ecuadorean Embassy in London. He is facing rape charges in Sweden. The case against WikiLeaks founder Julian Assange stems from two one-night stands in Sweden that one of the women involved says “had been consensual from the start but had eventually turned into abuse”. Assange apparently did not wear condom. Swedish law considers unprotected sex as rape. Swedish authorities have traveled to other countries to conduct interrogations when needed, and the WikiLeaks founder has made clear his willingness to be questioned in London. Moreover, the Ecuadorean government made a direct offer to Sweden to allow Mr. Assange to be interviewed within Ecuador’s embassy. In both instances, Sweden refused. Mr. Assange has also committed to traveling to Sweden immediately if the Swedish government pledges that it will not extradite him to the United States. Swedish officials have shown no interest in exploring this proposal, and Foreign Minister Carl Bildt recently told a legal adviser to Mr. Assange and WikiLeaks unequivocally that Sweden would not make such a pledge. The British government would also have the right under the relevant treaty to prevent Mr. Assange’s extradition to the United States from Sweden, and has also refused to pledge that it would use this power. Ecuador’s attempts to facilitate that arrangement with both governments were rejected. Taken together, the British and Swedish governments’ actions suggest to us that their real agenda is to get Mr. Assange to Sweden. Because of treaty and other considerations, he probably could be more easily extradited from there to the United States to face charges. If Mr. Assange is extradited to the United States, the consequences will reverberate for years around the world. Mr. Assange is not an American citizen, and none of his actions have taken place on American soil. If the United States can prosecute a journalist in these circumstances, the governments of Russia or China could, by the same logic, demand that foreign reporters anywhere on earth be extradited for violating their laws. The setting of such a precedent should deeply concern everyone, admirers of WikiLeaks or not.

What Amnesty International is doing:

Throughout the world individuals face harassment and imprisonment as a result of exercising their right to freedom of expression. Everyone has the right to seek, receive and impart information and ideas without fear or interference. This right is important for the personal development and dignity of every individual and is vital for the fulfillment of other human rights. Freedom of expression has always been a core part of Amnesty International’s work and is closely linked to the right to hold opinions and the right to freedom of thought, conscience and religion. Amnesty International has campaigned on behalf of thousands of prisoners of conscience – people who are imprisoned because of their political, religious or other conscientiously held beliefs, ethnic origin, sex, color, language, national or social origin, economic status, birth, sexual orientation or other status. Amnesty International supports and protects those who speak up and express their opinions openly and freely around the world. They do a lot of work particularly with those who speak out to defend human rights for example:

Journalists exposing human rights violations.
Community workers teaching human rights education.
Trade unionists defending workers’ rights.
Women working for the promotion of reproductive rights.
Environmentalists highlighting the impact of development projects on indigenous peoples land rights.

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Freedom of thought:

Freedom of thought (also called the freedom of conscience or ideas) is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others’ viewpoints. It is different from and not to be confused with the concept of freedom of speech or expression. The obvious impediment to censoring thought is that it is impossible to know with certainty what another person is thinking, and harder to regulate it. However, freedom of expression can be limited through censorship, arrests, book burning, or propaganda, and this tends to discourage freedom of thought.

Intellectual freedom:

Intellectual freedom is the right to freedom of thought and of expression of thought. The modern concept of intellectual freedom developed out of an opposition to book censorship. It is promoted by several professions and movements. These entities include, among others, librarianship, education, and the Free Software Movement.

What is Freedom of Press?

Freedom of the press or freedom of the media is the freedom of communication and expression through mediums including various electronic media and published materials. While such freedom mostly implies the absence of interference from an overreaching state, its preservation may be sought through constitutional or other legal protections. The prime purpose of the free press guarantee is regarded as creating a fourth institution outside the government as an additional check on the three official branches:-
• Executive.
• Legislative.
• Judiciary

The picture below depicts media as a pillar of democracy.

Historically, the media have been organs of the people against feudal oppression. In Europe, the media played a major role in transforming a feudal society into a modern one. The print media played a role in preparing for, and during, the British, American and French Revolutions. The print media were used by writers such as Rousseau, Voltaire, Thomas Paine, Junius and John Wilkes in the people’s fight against feudalism and despotism. Everyone knows of the great stir created by Thomas Paine’s pamphlet ‘Common Sense’ during the American Revolution, or of the letters of Junius during the reign of the despotic George III. The media became powerful tools in the hands of the people then because they could not express themselves through the established organs of power: those organs were in the hands of feudal and despotic rulers. Hence, the people had to create new organs that would serve them. It is for this reason that that the print media became known as the Fourth Estate. In Europe and America, they represented the voice of the future, in contrast to the feudal or despotic organs that wanted to preserve the status quo in society. In the 20th century, other types of media emerged: radio, television and the Internet (social media).

It is the primary function of the press to provide comprehensive and objective information on all aspects of the country’s social, economic and political life. The press serves as a power to check on government officials and as a mean for keeping the elected representatives responsible to the people whom they were elected to serve. The freedom of Press has to be protected no doubt but at the same time, the freedom of individual even in the press also to be protected and any attempt to encroach on the freedom of any individual by press ought to be prevented. The ideal situation is that the press should have the self monitoring of their acts / behaviors while dealing with the freedom of individuals in the matters of the public interest. But an exception has to be carried out to this rule, that is, the name of a female who has victim of sexual assault, kidnapping, abduction, or a like offence should not be published in the Press. Also, if the wrong information is published then the reputation of the individual will be violated.

Worldwide press freedom index:

Every year, Reporters Without Borders (RWB) establishes a ranking of countries in terms of their freedom of the press. The Worldwide press freedom index list is based on responses to surveys sent to journalists that are members of partner organizations of the RWB, as well as related specialists such as researchers, jurists and human rights activists. The survey asks questions about direct attacks on journalists and the media as well as other indirect sources of pressure against the free press, such as non-governmental groups. RWB is careful to note that the index only deals with press freedom, and does not measure the quality of journalism.

The figure below shows press freedom index in 2010:

According to Reporters Without Borders, more than a third of the world’s people live in countries where there is no press freedom. Overwhelmingly, these people live in countries where there is no system of democracy or where there are serious deficiencies in the democratic process. Freedom of the press is an extremely problematic problem/concept for most non-democratic systems of government since, in the modern age, strict control of access to information is critical to the existence of most non-democratic governments and their associated control systems and security apparatus. To this end, most non-democratic societies employ state-run news organizations to promote the propaganda critical to maintaining an existing political power base and suppress (often very brutally, through the use of police, military, or intelligence agencies) any significant attempts by the media or individual journalists to challenge the approved “government line” on contentious issues. In such countries, journalists operating on the fringes of what is deemed to be acceptable will very often find themselves the subject of considerable intimidation by agents of the state. This can range from simple threats to their professional careers (firing, professional blacklisting) to death threats, kidnapping, torture, and assassination. In 2011-2012, the countries where press was the most free were Finland and Norway followed by Estonia, Netherlands, Austria, Iceland, and Luxembourg. The country with the least degree of press freedom was Eritrea, followed by North Korea, Turkmenistan, Syria, Iran, and China.

Reporters without Borders’ report gives indication that countries with controlled feudal structure, monarchy or dictatorship have worst environment for journalists. All these findings suit best to describe the hostile environs for Pakistani journalists in the discharge of their duties. All these systems have one common organ of the state to ‘function’, which is the role of clandestine organizations which make the real difference. In the case of Pakistan, it is the Inter Services Intelligence (ISI) agency, which is state-within-the state and its every act is described to be aimed at protecting the much maligned ‘national interest’. ISI’s role in torturing and abusing Pakistani journalists is an open secret and its unscrupulous spies trample the rights of journalists with impunity. More often than not, even the governments find themselves helpless before these ‘protectors of the national interest’ as they can form or dismantle the elected governments. No wonder Pakistan made her alliance with Saudi Arabia, China and Iran against war on media journalists.

The importance of freedom of speech in the newspaper industry:

The reason that freedom of speech is important in the newspaper industry is that newspapers play an important role in keeping the people informed. If somebody had the ability to control what the newspapers were allowed to write it would be impossible to have a properly functioning democracy. In order for people to be able to vote for their leaders they have to know what they are doing when they are in office. This cannot happen if what is published in the media is being controlled by the government. There is a reason that in countries where there are not free elections there is almost never a free press. These governments depend on the ability to control the information that the people get in order to maintain power. If the people were to learn the truth about what the government were doing they would in most cases never tolerate it. This would likely lead to the government being overthrown. A free press is a critical part of a democratic society. All countries that have properly functioning democracies also have a free press, or at least a relatively free press.

Many developing nations struggling for democracy and good governance do not support freedom of the press. For instance, while democratic elections are being held in countries such as Pakistan, Nigeria and Russia, the media in these countries is often restricted or controlled by government censorship, begging the question: How democratic are they really? Its one thing to get a democratic system, which in itself varies from one country to another, depending on the peoples’ orientation, and its another thing to get free press. In fact, in most democracies, especially in developing economies, the political class is afraid of free media because that would question their negative intents and even worsened by their ownership of media outfits. Equally, supposed press freedom does not guarantee honest election, but it helps in building transparency for those in leadership who want to play a clean card for posterity to judge. But ultimately what guarantees invariable press freedom is the ability of the citizens to take advantage of this ‘press freedom’ to air their views and judiciary to stand upright in the interpretation of associated laws. So, press freedom may not achieve much if the people are not in support of the contents of such a freedom charter. Of course, media play an enviable role in good governance, unfortunately media itself lacks such good governance within, which most at times centers on the ability of funds to manage or own a media, which is not farfetched when put side by side with the saying that “he who pays the piper, dictates the tunes.” The entire society needs re-orientation to choose on what is good and public good from what is personal and selfishness.

With great power comes great responsibility:

In the current scenario the media has got a vast reach throughout India which is their power but have they acted upon it responsibly? To some extent yes, they have played a pivotal role in exposing certain scams and raising issues for the benefit of the common citizen. But now, with the expansion of this sector and the introduction of so many new players, this has become more of a business rather than a medium for the public to raise their outcry against injustice. The media is more concerned about their TRP’s rather than raising the outcry of the people. Although it is a fundamental right to maintain the freedom the press but a necessary amendment is required to ensure that this right is not misused for somebody’s vested interests, one’s vested interest may turn into a night mare for others. The media is a public resource which should be used to inform the citizens about what is happening in the country and raise issues that are bothering the common man, acting as a medium to raise the outcry of the common man to the higher authorities so that corrective action is taken rather than informing them about the trivial issues concerned to anyone.

24 X 7 Culture of Indian media:

The 24 X 7 culture has given rise to urgency of breaking news every 5 minutes and the real issues have gone into background. The objectivity has been lost and the space has been hogged by film stars, cricketers, businessmen, corporate scandals etc. Social issues like national integration, casteism, poverty, religious orthodoxy, social injustice, juvenile delinquency, gender disparity etc have taken backseat and most of the channels just indulge in lip-service on these issues. The accountability of media is the utmost need of the hour as it is the most powerful pillar, among the four, of any country. The reasons that make media vulnerable to yellow journalism, unethical practices and corruption are myriad. Firstly, there are politicians, businessmen, lobbyists, etc who are using it as ghost writer. Secondly, there are hundreds of news channels which run 24X7 and want sensational news to keep their TRP’s high all the time and so cater to false news as well as dramatization of trivial issues. Thirdly the recent cases of paid news and journalists acting as power brokers (neera radia case) have cast a shadow on some media houses and these transgressions would have to be avoided through self-regulation of media rather than government intervention. Much more disturbing aspect is control of media by corporates and vested interests. There are cases of one-sided and prejudiced reports especially true of business channels where consistent favorable reporting can help a virtually-unknown company in successful IPO’s. Same is true for channels run by political parties which are generally used as an instrument of vendetta politics. Considering this, the freedom of media becomes an important question to ponder over. There are indeed reasonable restrictions in Indian constitution which can be applied by government but the need is of self-evaluation and self-restraint. There has to be utmost care exercised when matters like Ayodhya, riots, charges on leaders, bureaucrats, judges, reservation, poverty, government policy are discussed. In a country like India, there will always be pressure groups but the media has to act as a voice of the poor and ostracized who are victims of the government (and social) institutions. The need to generate more revenue out of the media channels, magazines, newspapers have made them typical business enterprises where profit & loss matters more than the quality of reporting. Even though some of the media houses have been able to maintain the quality and objectivity in reporting (The Hindu Group is top among them), most of them have just gone into a herd mentality. The time has come for the media persons to become more accountable and responsible to their nation which is laden with corruption and malpractices in all spheres of life.

Censorship:

Traditionally censorship often defined as “the suppression of free speech”. The right to free speech is the right to express any expression in public, and the corresponding right to experience anybody’s expressions in public, without being pressured, denied access, arrested, or otherwise punished by anyone, subject to fairly well-understood exceptions like libel, slander etc. Censorship is the act of changing a message, including the act of deletion, between the sender and the receiver, without the sender’s and receiver’s consent and knowledge. In terms of the communication model, censorship occurs when somebody interrupts or interferes with the medium such that a message is tampered with while traveling from the sender to the receiver. The ways of combating suppression of free speech and censorship must also differ. Censorship is primarily technological, and thus technological answers may be found to prevent censorship, though making it politically or legally unacceptable can work. Suppression of free speech, on the other hand, is primarily political and legal, and in order to truly win the battle for free speech, political and legal power will need to be brought to bear.

Freedom of speech and censorship are often phrased as opposite sides of a continuum that balance personal freedom with societal duty. Famous as a battle-ground between Left and Right in the United States, the United Kingdom and elsewhere, issues of free speech are often championed by human rights organizations around the world seeking to support those fighting against repressive regimes (examples include Aung San Suu Kyi, Vaclav Havel, and Lech Walesa). The Pentagon Papers (1971) in the United States were the collected criticisms of the United States strategy during the Vietnam War. Distributed widely to newspapers, they were published despite attempts by the government to suppress their publication. Galileo’s dialogue concerning the Two Chief World Systems, Ptolemaic & Copernican was prohibited by the Catholic Church until 1835 containing, as it did, the heretical doctrine that the earth rotated about the sun. Other books of note which have been banned include Voltaire’s Candide (US 1930), Thomas Paine’s Rights of Man (UK 1792), Jack London’s Call of the Wild (Italy 1929), Anna Sewell’s Black Beauty (South Africa 1955), E for Ecstasy (Australia 1994), Ernst Zündel’s Did Six Million Really Die? (Canada 1980). In 1925 in the state of Tennessee USA, John Scopes was convicted for teaching Darwin’s Origin of Species. John Locke’s philosophical Essay Concerning Human Understanding was expressly forbidden to be taught at Oxford University in 1701. The issue is one of much contemporary interest in the developed world, where new technologies have opened up unprecedented access to materials which governments could previously keep censored in a relatively efficient way – pornography, bomb manufacturing instructions etc. have become available on the world-wide web. In general, however, the issue tends to fall into categories of book censorship, speech censorship, video censorship, newspaper censorship, and political expression of one description or another.

Religious censorship:

Religious censorship is a form of censorship where freedom of expression is controlled or limited using religious authority or on the basis of the teachings of the religion. Religious censorship is defined as the act of suppressing views that are contrary of those of an organized religion. It is usually performed on the grounds of blasphemy, heresy, sacrilege or impiety – the censored work being viewed as obscene, challenging a dogma, or violating a religious taboo. Defending against these charges is often difficult as some religious traditions permit only the religious authorities (clergy) to interpret doctrine and the interpretation is usually dogmatic. This form of censorship has a long history and is practiced in many societies and by many religions. Examples include the condemnation of Salman Rushdie’s novel The Satanic Verses by Iranian leader Ayatollah Ruhollah Khomeini and literary work of Taslima Nasrin by Fundamentalist Islam ; Scientific theories of biological evolution by Fundamentalist Islam, Fundamentalist Christianity, Hareidi Jews…

Chilling effect:

In a legal context, a chilling effect is the inhibition or discouragement of the legitimate exercise of a constitutional right by the threat of legal sanction. The right that is most often described as being suppressed by a chilling effect is the right to free speech. A chilling effect may be caused by legal actions such as the passing of a law, the decision of a court, or the threat of a lawsuit; any legal action that would cause people to hesitate to exercise a legitimate right (freedom of speech or otherwise) for fear of legal repercussions. When that fear is brought about by the threat of a libel lawsuit, it is called libel chill. In United States and Canadian law, the term chilling effects refers to the stifling effect that vague or excessively broad laws may have on legitimate speech activity. Recognition that a law may allow for a chilling effect as a vehicle for political libel or vexatious litigation provides motivation to change such defamation laws, and therefore prevent censorship and the suppression of free speech.

Prior restraint:

Prior restraint (also referred to as prior censorship or pre-publication censorship) is censorship imposed, usually by a government, on expression before the expression actually takes place. An alternative is to allow the expression to take place and to take appropriate action afterward, if the expression is found to violate the law, regulations, or other rules. Prior restraints are synonymous with censorship, and represent one of the most onerous infringements on freedom of expression. William Blackstone defines “Freedom of Press” as the right to be free from prior restraints. Chinese authorities employ several different types of prior restraints over the citizens of China in order to ensure that the Communist Party is able to silence critics and maintain direct editorial control over political information and news reporting. Prior restraint can be effected in a number of ways. For example, the exhibition of works of art or a movie may require a license from a government authority (sometimes referred to a classification board or censorship board) before it can be published, and the failure or refusal to grant a license is a form of censorship as is the revoking of a license. It can also take the form of a legal injunction or government order prohibiting the publication of a specific document or subject. It is widely accepted that publication of information affecting national security, particularly in wartime, may be restricted, even when there are laws that protect freedom of expression. In many cases invocation of national security is controversial, with opponents of suppression arguing that government errors and embarrassment are being covered up. Other forms of restrictions on expression (such as suits for libel, slander, defamation, or actions for criminal libel) generally involve punishment only after the offending material has been published. While such punishment might lead to a chilling effect, legal commentators argue that at least such actions do not directly impoverish the marketplace of ideas. Prior restraint, on the other hand, takes an idea or material completely out of the market place. Thus it is often considered to be the most extreme form of censorship.

Heckler’s veto:

A heckler’s veto occurs when an acting party’s right to freedom of speech is curtailed or restricted by the government in order to prevent a reacting party’s behavior. It is a controversial legal position taken by law enforcement officers based on an alleged right to restrict freedom of speech where such expression may create disorder or provoke violence. The common example is that of demonstrators (reacting party) getting violent due to a speech (given by the acting party) and that speech must be terminated in order to preserve the peace. The best known case involving the heckler’s veto is probably Feiner v. New York, handed down by the Supreme Court in 1951. Chief Justice Fred M. Vinson, writing for the majority, held that police officers acted within their power in arresting a speaker if the arrest was “motivated solely by a proper concern for the preservation of order and protection of the general welfare.”

Political correctness:

Political correctness (adjectivally politically correct) is a term which denotes language, ideas, policies, and behavior seen as seeking to minimize social and institutional offense in occupational, gender, racial, cultural, sexual orientation, certain other religions, beliefs or ideologies, disability, and age-related contexts, and as purported by the term, doing so to an excessive extent. In current usage, the term is primarily pejorative.

Examples of language commonly referred to as “politically correct” include:

1.”Intellectually disabled” in place of “Retarded” and other terms

2.”African American” in place of “Black,” “Negro” and other terms

3.”Native American” (United States)/”First Nations” (Canada) in place of “Indian”

4.”Caucasian” in place of “White”, and other terms such as the more scientifically correct “Caucasoid”

5.”Gender-neutral” terms such as “firefighter” in place of “fireman,” police officer in place of policeman.

6.Terms relating to lack of various common human abilities, such as “visually impaired” or “hearing impaired” in place of “blind” or “deaf”

7.”Holiday”, “winter” or “festive” in place of “Christmas”

Who decides what is offensive? Why is calling someone black, disabled, gay a crime when calling others bald, fat etc is not? Political correctness is also a form of censorship. Freedom of expression can also be stifled without institutional interference when majority views become so widely accepted that the entire culture represses dissenting views. For this reason, some condemn political correctness as a form of limiting freedom of expression. Although political correctness aims to give minority views equal representation, the majority view itself can be politically correct; for example, college student Max Karson was arrested following the Virginia Tech shootings for politically incorrect comments that authorities saw as sympathetic to the killer. He made a statement in a classroom at the University of Colorado that he was “angry about all kinds of things from the fluorescent light bulbs to the unpainted walls, and it made him angry enough to kill people.” Max Karson was arrested for making “threatening” comments in a women’s-studies course during an in-class discussion on a day following the massacre at Virginia Tech. Students explained that Karson was admittedly angry about the ‘mindless droves’ on campus and that Max started talking about the faults of the ‘institution’ and how someone could be driven to kill 32 people because of the injustices of universities. Karson’s arrest raised important questions regarding freedom of speech and whether or not it applies in times of tragedy. Should free speech be so free?

Speech code:

A speech code is any rule or regulation that limits, restricts, or bans speech beyond the strict legal limitations upon freedom of speech or press found in the legal definitions of harassment, slander, libel, and fighting words. Such codes are common in the workplace, in universities, and in private organizations. There are two distinct reasons given for the implementation of speech codes, most often given in the context of higher education institutions. First, to protect vulnerable students from threatening, truly harassing speech that amounts to ‘fighting words,’ which are not protected by the First Amendment. The second reason is more abstract, leaving room for argument both for and against the reason. Second are linked to a broader ideological agenda designed to foster an egalitarian vision of social justice. Because many institutions hold such a view in their mission statements, the justification for a policy in line with the views of the institution comes quite naturally. However, opponents of speech codes often maintain that any restriction on speech is a violation of the First Amendment.

Freedom of information:

Freedom of information is an extension of freedom of speech where the medium of expression is the Internet. Freedom of information may also refer to the right to privacy in the context of the Internet and information technology. As with the right to freedom of expression, the right to privacy is a recognized human right and freedom of information acts as an extension to this right. Freedom of information may also concern censorship in an information technology context, i.e. the ability to access Web content, without censorship or restrictions.

Right to Information in India:

The right to know, receive and impart information has been recognized within the right to freedom of speech and expression. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. The right to know has, however, not yet extended to the extent of invalidating sections of Official Secrets Act which prohibits disclosure of certain official documents. Even, Right to Information Act-2005, which specially talks about peoples’ right to ask information from Government official, prohibits discloser of certain documents under u/s 8 of the Act. These exceptions are generally the grounds of reasonable restrictions over freedom of speech and expression under Article 19(1) of Constitution of India. One can conclude that right to information is nothing but one small limb of right of speech and expression.

Free speech zones:

Free speech zones are areas set aside in public places for political activists to exercise their right of free speech in the United States. The First Amendment to the United States Constitution states that “Congress shall make no law… abridging… the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The existence of free speech zones is based on U.S. court decisions stipulating that the government may regulate the time, place, and manner—but not content—of expression. A free speech zone is more restrictive than an exclusion zone. Civil liberties advocates argue that Free Speech Zones are used as a form of censorship and public relations management to conceal the existence of popular opposition from the mass public and elected officials. There is much controversy surrounding the creation of these areas — the mere existence of such zones is offensive to some people, who maintain that the First Amendment to the United States Constitution makes the entire country an unrestricted free speech zone.

Freedom of Expression and Anonymity:

Every individual has the right to freedom of expression, which includes the right to speak, read, and communicate anonymously, and which includes the right of individuals to use circumvention technology and anonymity tools. Throughout history individuals have been writing in anonymous or pseudonymous ways. Anonymous and pseudonymous expression allows individuals to express unpopular opinions, honest observations, and otherwise unheard complaints. On the Internet, every individual can communicate online without connecting their online identities with their offline identities. Individuals may decide to communicate anonymously out of concern about political or economic retribution, harassment, or even threats to their lives. Whistleblowers report news that companies and governments would prefer to suppress; human rights workers struggle against repressive governments; parents try to create a safe way for children to explore; victims of domestic violence attempt to rebuild their lives where abusers cannot follow. Opposition parties, victims of violence, persons with HIV/AIDS, dissidents, and survivors of abuse can use the Internet to share sensitive and personal information anonymously without fear of harm. For all of these people, securing anonymity can be a matter of life or death. In the United States, the Supreme Court has ruled that the right to speak anonymously is protected by the First Amendment. The Supreme Court has held that: “Anonymity is a shield from the tyranny of the majority,” that “exemplifies the purpose” of the First Amendment: “to protect unpopular individuals from retaliation…at the hand of an intolerant society.” It further said, courts must “be vigilant and guard against undue hindrances to political conversations and the exchange of ideas.” This vigilant review “must be undertaken and analyzed on a case-by-case basis,” where the court’s “guiding principle is a result based on a meaningful analysis and a proper balancing of the equities and rights at issue.” That review must take place whether the speech in question takes the form of political pamphlets or Internet postings. U.S. courts have also recognized that: “People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one’s mind without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate.” The policies underlying these opinions provide best practices which are also embodied within the Universal Declaration of Human Rights. Unfortunately some countries have adopted national legal frameworks that undermine protection of anonymity and their citizens’ freedom of expression. For instance, in South Korea, the government has sought cooperation with Internet Service Providers (providers of blogs, and social media) to develop real-name systems for their users since 2003, thereby eliminating anonymity. In Saudi Arabia, the media has reported that the government will require all online newspapers and bloggers to register with the Ministry of Culture & Information and to obtain a license, valid for up to three years. Recently, the media has reported that the Saudi government will ban all blogging without a license. Although not required by law, a similar trend can be discerned in the terms of service adopted by some Internet media services in the U.S.. For instance, Facebook’s Terms of Service require that Facebook users provide their real names and information. This practice creates serious risks particularly for dissidents and human rights workers using their names on Facebook in authoritarian regimes. This creates a double negative effect: if Facebook’s Terms of Service are violated, Facebook can disable an individual’s account, shutting down a key avenue for political discourse.

Copy right and freedom of speech:

Copyright is the most important aspect of the intellectual property. Copyright means an intangible incorporeal right, granted to the author or originator of certain literary, artistic, dramatic and musical production. Copyright gives rise to a form of property that can be dealt with just as with any other property and which can be assigned, mortgaged and licensed. Copyright is exclusive right of the author to derive economic benefits from his writing, performance or creative work. The copyright law provides an incentive to creative activity. Copyright law cannot be viewed as an obstruction or restriction on the freedom of expression, because the freedom is available to his own views and views of others also, but not to express views of others as his own. Copyright is confined to the expression of ideas and does not extend to the ideas themselves. The original author must be protected, but at the same time, that creative work or ideas in that creative work as expressed cannot be held of imprison for all the time. If ideas are restricted, the society cannot advance. So a compromise is worked out so that the proprietorship given to the author was restricted to a period, for example 16 years or during the lifetime of the author. The copyright law and freedom of expression are not mutually exclusive but copyright law is an extension of right to freedom of expression, which means that if an individual has freedom of speech & expression, that person will naturally get a right to protect that intellectual work as a property which he discovered or invented using his freedom of thought & expression.

The impact of expanding copyrights reaches a spectrum of existing fundamental legal rights: freedom of expression, freedom of the press, freedom of thought, intellectual freedom, and more are all harmed by such a dramatic shift in the traditional balance of rights. Historically, when society was primarily an agricultural economy, the key ingredient to wealth and development was ownership and use of land. When society moved into an industrial era, the key to wealth and development shifted to ownership and use of capital. Now as we move into an information society, access to knowledge is the key factor for continued development and wealth on a personal and national level. Just as human bodies require food and medicine for good health, our minds require knowledge to function and develop. Technology promises the unprecedented opportunity to disseminate information and foster collaboration that will dramatically expand human knowledge and social development. But only if we do not allow the technology to be crippled first by an over-reaction of industries rooted in the past. The free speech guarantee in the United Nations Universal Declaration of Human Rights, although adopted by the UN General Assembly in 1948, speaks directly to the Internet age: Article 19 guarantees that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.” This universal guarantee to freedom of expression is not limited to speech only in analogue media, but rather explicitly, “… in any media and regardless of frontiers.” While proponents of limiting freedom of expression guarantees argue that “digital is different,” and traditional rights must be sacrificed to protect private property rights, the Universal Declaration of Human Rights has already answered that digital is no different and that our traditional rights are meant to continue with us into a digital environment.

Internet, intellectual properly and freedom of expression:

As we enter an information age, the rules governing the use and dissemination of information become increasingly important. Clashes between fundamental freedom of expression guarantees and intellectual property rights are upsetting the traditional balance struck between creators and the public. Nineteen international scholars, experts and human rights activists met to explore the antagonistic relationship between Intellectual Property (IP) and the rights to freedom of expression and information. This conversation is timely if not overdue, as governments are increasingly using the pretext of IP protection to place unjustified restrictions on the exercise of Freedom of Expression, particularly on the Internet. Article 19 believes that increasing the profile of the human rights perspective in debates on IP law and policy is essential to protecting Freedom of expression, particularly in the digital environment. It was suggested that IP could be viewed as a “human right” to the extent that it complements other human rights, such as Freedom of expression. Copyright is often justified on terms that it is essential for incentivising creativity and that it is an “engine” of free speech – this argument needs further exploration, as it shows that the two rights may sometimes be complementary. Article 19 is familiar with a strategy focused on complementarity, as the Camden Principles promoted a similar approach to advocate that the right to equality and right to Freedom of expression were mutually reinforcing rather than contradictory. Similarly, we need a “social value” approach to viewing IP as a human right, i.e. the greater the social value behind the IP protection, the more weight it would have in a rights “balancing” exercise.

Myths of intellectual property rights:

One of the most common misunderstandings regarding intellectual property rights, particularly copyright, is that the actual creators are the main beneficiaries of the grant. In reality, it is the large companies that employ creators and then strip them of their copyright through contracts who actually benefit from the grant society intended as a reward for authors. This important misunderstanding is no accident. Misleading “romantic notions of authorship” are systematically spun by the companies who stand in the shoes of creators to justify the generous monopoly right rewarded to them. Another major myth regarding “intellectual property” protection is that it is the same as more traditional forms of property such as personal property or real estate. But this conflation of intellectual property is grossly misleading and harmful. Copying another’s intellectual creation does not end the owner’s right to make use of the original. Intellectual property rights are created only as a means to encourage further creativity for the ultimate benefit of all society, while more traditional forms of property rights are designed to protect the personal and private interests of their owners. This crucial distinction can be seen when considering that one’s house is not intended to pass into the public domain at some time; nor does anyone have a fair use right to borrow another’s car. Intellectual property is intended to have ownership “holes”, to be imperfect in its control, while real or personal property are more absolute in the their grants to owners. Another significant myth often promoted by the copyright-extremists is that without copyright protection, creativity would cease. This claim ignores history. The concept of copyright was created only recently, within the last few centuries. Many of the greatest works ever created were inspired outside of the business model of copyright’s pay-per-copy system. Mozart, Shakespeare, Sun Tzu all created without economic incentive from this particular business model. The Internet, the human genome project, Free and Open Source Software development, and with great humility my website www.drrajivdesaimd.com are modern examples that have been created outside of this one particular business model. So it is a simple fact that much can be and has been created without the goal of securing a copyright and we should not be too wedded to the idea that it is the only, or even the best, way of encouraging innovation and further creativity.

Right to privacy:

The need for privacy is deep-rooted in human beings. In its essential form, privacy is based on the notion of personal integrity and dignity. However, this is also hard to define with any agreed precision – in different contexts it embraces the right to freedom of thought and conscience, the right to be alone, the right to control one’s own body, the right to protect your reputation, the right to a family life, the right to a sexuality of your own definition. In addition these meanings vary from context to context. Despite its ubiquity there is no one definition of privacy that is universally understood in the same way. Privacy in the modern world has two dimensions – firstly, issues to do with the identity of a person and secondly, the way their personal information is handled. There is a tension between the right to freedom of expression – in particular the media’s exercise of the right – and the right to privacy. Freedom of expression, whether exercised by individuals or by the media, and the ability to exercise it, is an essential feature of any open, liberal and democratic society. It is only through exercising free expression that societies can sustain real democratic accountability. However the right to freedom of expression is not unlimited and it can be qualified to protect the rights and freedoms of others. It is a delicate balance to decide where the boundary between free expression and privacy lies but one the courts are used to negotiating.

In the twentieth century international legal standards defined privacy as a human right. The Universal Declaration of Human Rights (UDHR), 1948, contained the first attempt to protect privacy as a distinct human right. Article 12 of the UDHR provides that: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

The importance of privacy and its relationship to reputation can be illustrated by the case of Campbell v MGN21 where it was states that private information are “something worth protecting as an aspect of human autonomy and dignity”. What is public information rather than private is often apparent. When it is not, the test to apply is whether a reasonable man being put in the shoes of the defendant would find the publication of the information to be highly offensive. Information of a private nature is protected by Article 8 of the European Convention on Human Rights and Fundamental Freedoms which conflicts directly with Article 10 of the same convention. Section 12 of the Human Rights Act 1998 states that particular regard ought to be paid to Article 10 and freedom of expression which might suggest that Article 10 should be given priority. Nonetheless Art 10(2) qualifies freedom of expression and: “Resolution 1165 of the Parliamentary Assembly of the Council of Europe (1998), para 11, pointed out, they are neither absolute not in any hierarchical order, since they are of equal value in a democratic society.” Thus it can be said that neither the right to privacy nor the right to freedom of speech and expression is to be given automatic priority. When these two rights conflict, as with the qualified defense, the test of public interest is applied to determine which prevails, that is, is it in the public interest to infringe the privacy of an individual. Privacy may be of particular importance to persons who attract public attention. Although they may constantly court publicity, this does not waive their right to privacy as: “A person may attract or even seek publicity about some aspects of his or her life without creating any public interest in the publication of personal information about other matters.” However, judges need to be careful not to unduly weigh the scale in favor of privacy to the detriment of the freedom of expression as: “One reason why press freedom is so important is that we need newspapers to sell in order to ensure that we still have newspapers at all.”

Every human being should have a right to privacy. If we wish to keep any detail about ourselves secret, we should have the right to do so. Legal or illegal, moral or immoral, if we don’t want some piece of data to be public knowledge, the right to privacy is paramount. We wave this right as soon as we tell anyone our secret. Whether it is a family member, a close friend, a stranger, or everyone on Facebook, the secret is no longer ours to keep. By telling the person that secret, we have given them the right to maintain the secret, or to pass it on or publish it however they deem fit. We can request that they keep the secret, but we cannot demand it. However, that person still has the same right to privacy that we originally had. If only two of us know the secret, we both have the right to protect that secret. No-one should be able to forcibly take that secret from us without our consent. Once a sufficient number of people know the secret, the probability that their collective privacy will be greater than the right to gossip approaches zero. “Private knowledge” v/s “public knowledge” is not a binary distinction. One person knowing our secret does not make the secret “public.” However, it means that we no longer have the soul ability to keep it private. The other side of the coin is the responsibility to protect individual privacy. Many professional and government organizations have access to individual data about us that we may want to keep secret. Our doctors, nurses, and medical staff, our accountants and lawyers, our banks, tax agencies, and passport authorities, our driver’s license, health care, and motor vehicle registries all have access to data that they require, but we have the right to protect. They are responsible for protecting that individual data on our behalf. If they fail, data becomes public that should not be public. Once data is made public, the right to publish that data trumps the right to privacy. This is freedom of speech. Any individual or organization who has access to data has the right to publish the data. The right to free speech does not trump the right to privacy; however, once privacy has been given up, the right to free speech is stronger.

Is Julian Assange doing anything morally superior to News of the World when they tapped politicians’ phones, or Sky News when they ‘accidentally’ left a microphone on Gordon Brown? Or perhaps they are all defenders of free speech? When we all found out the extent to which News of the World had been tapping phones, no-one seriously claimed national security could be damaged by overhearing John Prescott or Prince Harry’s private messages (although it’s not unarguable). National security or even personal embarrassment was never really the point. The issue was the right to privacy. Yes, Julian Assange should have the right to speak his mind. No-one is saying he should be banned from expressing his opinions on any public figures, or interviewing them, or taking them to task if they break the law. But the right to free speech stops when it becomes an illegal invasion of privacy, just like the right to freedom of expression stops at my right to video my neighbor across the street undressing and sticks it on the internet. It is claimed, rather perversely, that preventing newspapers from printing lurid stories about celebrities’ extra-marital sexual liaisons is a violation of the ‘right to free speech’, the absurd implication being that steps currently taken by courts to protect the privacy of private individuals and their families puts England within a hair’s breadth of becoming a soviet-style dictatorship haunted by the specter of ‘censorship’.

Murderers’ Right to “Privacy” v/s Freedom of Speech:

Wolfgang Werlé and Manfred Lauber became infamous for killing a German actor in 1990. Now they are suing to force Wikipedia to forget them…. German courts allow the suppression of a criminal’s name in news accounts once he has paid his debt to society ….Now the lawyer for murderers Werlé and Lauber, in suits in German courts, is demanding that the Wikimedia Foundation, the American organization that runs Wikipedia, do the same with the English-language version of the article. In an earlier court judgment, revealing Briscoe’s identity eleven years after his crime, the court said, served no “public purpose” and was not “of legitimate public interest”; there was no “reason whatsoever” for it. The plaintiff was “rehabilitated” and had “paid his debt to society.” “We, as right-thinking members of society, should permit him to continue in the path of rectitude rather than throw him back into a life of shame or crime” by revealing his past. “Ideally, Briscoe’s neighbors should recognize his present worth and forget his past life of shame. But men are not so divine as to forgive the past trespasses of others, and plaintiff therefore endeavored to reveal as little as possible of his past life.” However the California Supreme Court’s 2004 decision (Gates v. Discovery Communications, Inc.), and the Supreme Court decisions on which it’s based, are a victory for free speech. And to the extent that they are a defeat for “privacy” under such circumstances, they are a defeat for a form of privacy that the law ought not recognize — a putative right to stop people from telling the truth about what you’ve done. On the balance, people have a right to know criminal past of an individual even if it infringes on his privacy and even if he has paid his debt to the society.

Free Speech v/s Right to Privacy in a rape case:

Suppose that media published the name of a Rape Victim who didn’t want..?

Right to privacy dominates over right to free speech because despite the changes in society over the last 50 years, for many people rape carries a stigma. Too many people still assume the woman must have ‘asked for it’, some see her as ‘damaged goods’ and therefore not fit for marriage etc. I wish this was the distant past we were talking about, but it’s not. Hence, because material damage can be caused to someone in this instance by having their name revealed, right to privacy trumps free speech.

The European Court of Human Rights (ECHR) in Strasbourg has delivered two important Grand Chamber judgments on the law relating to privacy and freedom of expression. In Axel Springer AG v Germany and Von Hannover v Germany (No. 2), the ECHR has held that the media’s right to publish the stories and photographs at issue outweighed the subjects’ rights to privacy. In reaching this view, the Court expressly recognized the essential role played by the press in a democratic society, and the importance of journalistic freedom.

Telephone tapping vis-à-vis privacy and freedom of speech:

Indian Supreme Court has held that telephone tapping is an invasion of right to privacy. Also when two persons are having conversation with each other, both are exercising the freedom of speech and mutually exchanging ideas. Telephone tapping is a violation of this freedom of speech too. So the court has laid down the guideline that telephone tapping can be done by the order of home secretary. My telephone was tapped by NDTV but till today, neither they have apologized to me in private nor expressed regret in public. The arrogance of Indian media makes them above law.

Freedom of speech and democracy:

One of the most notable proponents of the link between freedom of speech and democracy is Alexander Meiklejohn. He argues that the concept of democracy is that of self-government by the people. For such a system to work, an informed electorate is necessary. In order to be appropriately knowledgeable, there must be no constraints on the free flow of information and ideas. According to Meiklejohn, democracy will not be true to its essential ideal if those in power are able to manipulate the electorate by withholding information and stifling criticism. Meiklejohn acknowledges that the desire to manipulate opinion can stem from the motive of seeking to benefit society. However, he argues, choosing manipulation negates, in its means, the democratic ideal.

Eric Barendt has called this defense of free speech on the grounds of democracy “probably the most attractive and certainly the most fashionable free speech theory in modern Western democracies”. Thomas I. Emerson expanded on this defense when he argued that freedom of speech helps to provide a balance between stability and change. Freedom of speech acts as a “safety valve” to let off steam when people might otherwise be bent on revolution. He argues that “The principle of open discussion is a method of achieving a more adaptable and at the same time more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus.” Emerson furthermore maintains that “Opposition serves a vital social function in offsetting or ameliorating (the) normal process of bureaucratic decay.” Research undertaken by the Worldwide Governance Indicators project at the World Bank, indicates that freedom of speech, and the process of accountability that follows it, have a significant impact in the quality of governance of a country. “Voice and Accountability” within a country, defined as “the extent to which a country’s citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and free media” is one of the six dimensions of governance that the Worldwide Governance Indicators measure for more than 200 countries.

Freedom of speech is a basic human right and an essential component of any democracy. It is this freedom that enables citizens to exchange views and information, to protest against injustice, to influence the public discourse, and to criticize the actions of the government. As such, freedom of speech represents a necessary condition for the informed and effective political participation of a country’s citizenry. Restrictions on free speech cause harm to democratic life and stands in contradiction to the fundamental principles of democracy – that government should impose no more than the necessary minimum of restrictions on individuals, especially regarding their basic rights. The safeguarding of free speech is especially critical for defending the rights of minority groups. Minorities often suffer from limited political influence and limited access to the corridors of power, and so the arena of public expression is where they are best able to give voice to their positions, to protest, and to influence public opinion.

Freedom of speech is arguably the most precious gift of democracy. Democracy nurtures freedom of speech of its citizens. Citizens, in turn, safeguard democracy by voicing their protest against each and every violation of democratic rights of people. Evolution of democracy is nothing but a history of the extension of the right of freedom of speech from the limited group of privileged citizens to the universal right of every citizen granted by democratic regimes of the world. It should not be forgotten that the slaves had no franchise and freedom of speech till the 19th century and women got franchise and democratic rights only in the twentieth century in many democratic countries including Great Britain. Extent of freedom of speech can very well be considered the index of true spirit of democracy in a country. Freedom to air one’s view is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death knell to democracy and would help usher in autocracy or dictatorship. The modern communication mediums advance public interest by informing the public of the events and development that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy. Therefore, in any setup more so in a democratic setup, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon.

There is a bankruptcy of the notion of an Asian-Western divide over the principle of freedom of expression. Instead, there is clear convergence. This is not to say that there is consensus among people. Controversies continue to rage over how to guarantee people’s rights to freedom of expression while minimizing harmful effects of that freedom. However, these debates are probably as profound and passionate within each country and region — whether Asian or Western — as they are between regions or civilizations. There are some key ideas that cut across national boundaries.

1. First, it is clear to most that freedom of expression is not only an individual right but also an essential ingredient for societal progress. It is vital for development. The new global economic competition requires education systems that nurture open and creative minds — inconceivable without freedom of opinion and expression. It is also indispensable for democracy. Governments cannot be truly accountable to the people without the scrutiny of independent media.

2. Second, no freedom is absolute. It is legitimate to require the individual’s freedom of expression to be exercised in ways that take into account the rights of other individuals as well as the public interest. People have a right to protect their private lives and their reputations, and there is no right to incite hatred or violence. International standards allow restrictions on speech to uphold public order, public morality and national security.

3. Third, however, such restrictions are frequently misused by governments to suppress legitimate speech and protest. Around the world, journalists, bloggers, artists and others continue to be victimized for their work. Any restriction on expression should pass three tests. It should be based on law rather than arbitrary action. It should also serve aims that are recognized internationally as legitimate — which do not include the need to protect the position of those in power. Finally, any interference with freedom of expression must be necessary and proportionate, unlike the all too common tendency of authorities to engage in overkill.

4. Fourth, there is a global trend to combat governmental secrecy by guaranteeing access to citizens to official information. More and more countries in Asia as elsewhere are instituting freedom of information laws. The “right to know” supports transparency and good governance, and counters official corruption. Such laws have been introduced recently in Bangladesh and Indonesia. Even Britain, from which some countries’ secrecy laws came, has embraced the principle of open and transparent government.

5. Fifth, there is growing awareness of the limitations of the free market and the profit motive in providing the amount and quality of information and ideas that society needs. The dominance of media corporations needs to be balanced with government policies in support of media diversity, including independent public service media and alternative grassroots media.

6. Finally, there is recognition that freedom of expression does not mean removing the state from the equation. Quite the contrary: The state is needed to uphold the rule of law. In many parts of the world, including in Asia, government censorship is not the only or even the most serious threat to media workers and artists. Unpopular but legitimate speech is routinely attacked by non-government interests — including angry mobs — that go beyond vigorous complaint and use violent means to silence those with whom they disagree.

With the crumbling of the last major bastion of totalitarianism in Russia and China, most of the world has accepted liberal democratic system. Experience of civil liberties has whetted the appetite for greater freedom and transparency. Wherever people are taking initiative to liberate themselves from repressive political order, they are getting moral support of the people of free countries. It is hoped that proliferation of human rights and freedom of speech will reinforce the liberty of man throughout the world.

Extent of freedom of expression in America:

The First Amendment protects people in the public forum, allowing them to make statements that perhaps the majority might find offensive. The public forum is a place for the exchange of ideas, even if one doesn’t agree. Some examples of that are the burning of the US flag, Nazi marchers in Jewish neighborhoods, the KKK marching through black neighborhoods, and most recently, the free speech by members of a church who holds that all US servicemen who are killed are the result of the sins of the US. That really stretched the bounds for many. I quote a court judgment. From the decision: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and–as it did here–inflict great pain,” Chief Justice Roberts wrote in the decision. “On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation, we have chosen a different course–to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” I salute American Supreme Court. However, despite the constitutional guarantee of free speech in the United States, legal systems have not treated freedom of speech as absolute. Among the more obvious restrictions on the freedom to say just what one likes where one likes are laws regulating incitement, sedition, defamation, slander and libel, blasphemy, the expression of racial hatred, and conspiracy. The liberal tradition has generally defended freedom of the sort of speech which does not violate others’ rights or lead to predictable and avoidable harm, but it has been fierce in that defense because a free interchange of ideas is seen as an essential ingredient of democracy and resistance to tyranny, and as an important agent of improvement.

Largest democracy India and freedom of expression:

Article 19(1) (a) of Indian Constitution says that all citizens have the right to freedom of speech and expression. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one’s idea through any communicable medium or visible representation, such as gesture, signs, and the like. This expression connotes also publication and thus the freedom of press is included in this category. Free propagation of ideas is the necessary objective and this may be done on the platform or through the press. This propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value. The freedom of speech and expression includes liberty to propagate not one’s views only. It also includes the right to propagate or publish the views of other people; otherwise this freedom would not include the freedom of press.

Grounds of Restrictions:

Clause (2) of Article 19 contains the grounds on which restrictions on the freedom of speech and expression can be imposed: –
1) Security of State: Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of security of State. The term “security of state” refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of State.

2) Friendly relations with foreign states: This ground was added by the constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may jeopardize the maintenance of good relations between India, and that state. No similar provision is present in any other Constitution of the world. It is to be noted that member of the commonwealth including Pakistan is not a “foreign state” for the purposes of this Constitution. The result is that freedom of speech and expression cannot be restricted on the ground that the matter is adverse to Pakistan.

3) Public Order: This ground was added by the Constitution (First Amendment) Act. ‘Public order’ is an expression of wide connotation and signifies “that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established.”

4) Decency or morality: The words ‘morality or decency’ are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fix standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place.

5) Contempt of Court: Restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court.

6) Defamation: A statement, which injures a man’s reputation, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt.

7) Incitement to an offence: This ground was also added by the constitution (First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit offence. The word ‘offence’ is defined as any act or omission made punishable by law for the time being in force.

8) Sedition: As understood by English law, sedition embraces all those practices whether by words, or writing which are calculated to disturb the tranquility of the State and lead ignorant person to subvert the government. It should be noted that the sedition is not mentioned in clause (2) of Art.19 as one of the grounds on which restrictions on freedom of speech and expression may be imposed.

Let me start with few examples of suppression of freedom of expression in India:

Shaheen Dhada, a young girl went through a nightmarish ordeal in police custody along with her friend Renu Srinivasan who had “liked” her post on Facebook. These young girls from Palghar were arrested recently for disagreeing with the bandh (general strike) and a shutdown of Mumbai city effected because of the demise of Bal Thackeray, chief of Shiv Sena, a political party. These young girls disagreed through their post on the ensuing bandh after Thackeray’s death, complaining over how it had impacted on the normal pace of life in the city, which was brought to a virtual standstill on the day he was cremated with full state honors. They were arrested under Section 66A of the IT Act as well as other sections of the IPC on the basis of a Facebook post. Retired Supreme Court Justice Markandey Katju says every freedom is subject to “reasonable restrictions in the public interest.” But he says in the case of Dhada, her post actually underscores a Supreme Court ruling that bringing a city to a standstill is illegal. “You can mourn a death in whichever way you want, but you can’t bring a whole city to a stoppage. So what this girl wrote was in consonance with the verdict of the Supreme Court — nothing illegal,” Katju says. Attempts are being made, of course, to blame the local police and the complainant for such a heavy-handed action. The Maharashtra government has suspended two policemen who carried out the arrest for booking Shaheen and her friend under “wrong sections”. The judge who granted bail to the two girls has also been transferred. However, all this is missing the point. This complaint and the complainant would not have a leg to stand on if it were not for the vagueness of the IT Rules. The basic tenet of any rule is that it should be precise in terms of the scope and action of the crime that it is to deter and punish. Failing that, laws will always be subject to interpretative action and overreach by vested interests and frivolous complainants. It is precisely in this area that the IT rules fail. They are vague and it’s not clear who they intend to punish; this can lead to tremendous amounts of discretionary power being handed to complainants and the often inexperienced policing authorities. Given this, they represent a serious risk to Indian democracy and are now widely perceived as intimidation of citizens and entrepreneurs by the government, established political and business interests and religious and cultural bigots. They are also violative of the constitutional rights of the freedom of speech and expression of internet users in the country. To cite such one example of their ambiguity, they do not define the term ‘grossly harmful’. The dangers about the likely use of discretionary powers has been highlighted by US Supreme Court judge Harry A Blackmun who said: “By placing discretion in the hands of an official to grant or deny a license, such a statute creates a threat of censorship that by its very existence chills free speech.” Therefore, there is no doubt in my mind, as in the minds of millions of young countrymen and women, that these rules need to be changed and reframed.

There is an oppressive climate of intolerance towards dissent and free speech in West Bengal. In an act of crude censorship, the government removed several newspapers from over 2,480 public libraries that it runs, aids or sponsors. The police have arrested two people, including a professor from Jadavpur University, for allegedly defaming Chief Minister Mamata Banerjee through a cartoon they posted on a social networking site. These are blatant acts of authoritarianism that mock at constitutional values and freedoms and deserve to be condemned. The decision to purge the public library system of most mass circulation Bengali dailies and English language newspapers reflects a deep-seated contempt for democratic values. This has been done, ironically, under the guise of developing free thinking among readers. Materials should not be excluded because of the origin, background, or views of those contributing to their creation; it is the right of readers to have access to all shades of opinion. Specifically, nothing should be excluded because of partisan or doctrinal disapproval.

In a separate event, Aseem Trivedi, a cartoonist, was hauled in on charges of sedition, a grave offence against the state listed under Section 124A of the Indian Penal Code of 1860 which entails the maximum punishment of life imprisonment. The cartoonist had caricatured some prominent Indian symbols of democracy, like the parliament building and the national Ashoka emblem of four Asiatic lions standing back to back. Through his cartoons Aseem attempted to draw attention to the malaise of corruption. Legal experts feel he may have insulted the national symbols but his actions in no way seemed to attract the draconian provision of sedition. In the case of Aseem Trivedi, the Advocate General of Maharashtra, Darius Khambatta admitted before the High court of Bombay that the leveling of sedition charges against Aseem was a “bonafide knee-jerk reaction” by the police. Even though sedition charge is dropped, he is facing criminal charge under Section 66 A of Information Technology Act and Section 2 of Prevention of Insults to Nation Honour Act. I am willing to publish Aseem Trivedi’s cartoons but even I can face similar criminal charge. You see, I had faced three false criminal charges in past which consumed enormous time for acquittal. Another criminal charge at this time would destroy whatever creativity & talent I possess even though eventually I will get acquittal after many years. So I am waiting for courts to acquit Aseem Trivedi and then I will publish his cartoons in this article. This example shows that freedom of expression is greatly curtailed in India. Had I been living in any western democracy, I would have published all these cartoons today in my website.

Targeting authors, artists:

Rushdie, whose novel “The Satanic Verses” was banned in India in 1988, was forced to cancel appearances at the Jaipur Literature Festival after threats of violence from Muslim groups and a warning about a possible assassination attempt — information he said was probably fabricated by authorities to keep him away. Wary of alienating Muslim voters in ongoing state elections, not a single Indian politician spoke out in favor of Rushdie’s right to be heard. The release of the book by Bangladeshi author Taslima Nasreen was canceled in Kolkata after Muslims protested. India’s most celebrated artist in modern times, Muqbool Fida Hussein, took up Qatari citizenship after he gained notoriety in 1996 when pieces that he had painted in the 70s were reprinted in a Hindi magazine. Initially 8 cases were filed against him which eventually escalated to a large number of cases (about 900 or so) spread throughout the country.

Targeting social media:

The most shocking episode for advocates of freedom of expression has been the government’s attempt to muzzle Facebook and Google — and prosecute the companies’ executives — for content posted on their sites deemed to be offensive. “Like China, we can block all such Web sites,” warned the judge hearing the case in the Delhi High Court. The government cites images insulting to one or another of India’s religions, content it says could provoke unrest. It is up to social media sites, the government says, to manually screen and censor all potentially offensive content or face prosecution. “No freedom can be absolute,” said the chairman of the Press Council of India, Justice Markandey Katju. “The hold of religion is very strong in India, and you have to respect that. You can’t go insulting people.” Katju’s concerns are perhaps understandable in a country whose birth was scarred by the mass murder of Hindus and Muslims at the time of independence in 1947. But the effect, critics say, is to give the mob the power of veto and take away a fundamental right in a free society: the right to offend others.

India too is struggling to cling to freedom of speech:

The publication of an article criticizing Islam in a Calcutta newspaper caused outrage among the city’s Muslims, but editors must defend freedom of speech. The editor and publisher of an Indian newspaper have been arrested on charges of “outraging religious feelings” after they reproduced an article published in a London newspaper. Calcutta’s 133-year-old English daily The Statesman reprinted Johann Hari’s Why should I respect these oppressive religions? from the Independent, which caused outrage among a section of the city’s significant Muslim population. In particular, they objected to a derogatory remark made about Prophet Muhammad. Angry protesters clashed with police outside the newspaper’s offices (which has Calcutta’s largest mosque right in front of it), bringing the city centre to a standstill. Peace returned only after the arrest of the editor Ravindra Kumar and publisher Anand Sinha, who were subsequently released on bail. Press regulation is almost nonexistent in India. Newspapers and television channels routinely get away with libelous and erroneous reports and journalists generally consider themselves above the law. But along with the pitfalls of excessive power being corruptive, this system at least ensures a fearless media that can campaign to reopen old murder cases conveniently buried to protect the powerful and force police commissioners to step down over the handling of a murder/suicide case (campaigns by a Delhi-based TV channel and a Calcutta-based newspaper respectively). Then why draw the line only at issues to do with religion? The Statesman editor stands by his decision to publish the piece though he clarifies that it did not intend to “defame any religion” or “provoke societal tension”. The paper also makes it clear that it would rather “cease publication” than fail to “provide space to all viewpoints, even contentious ones”.

Artists, scholars and academicians, all in unison are asking one question. “Are we staying in a democratic country? What has happened to our constitutional right of freedom of speech? Is drawing a mere cartoon can bring charges as serious as sedition against a person?”

In a landmark judgment of the case Maneka Gandhi v. Union of India, the Supreme Court held that the freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also. In Romesh Thapar v. State of Madras, Patanjali Shastri, CJ observed: “Freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.” The Supreme Court observed in Union of India v. Assn. for Democratic Reforms: “One sided information, disinformation, misinformation and non information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions”. In Indian Express v. Union of India, it has been held that the press plays a very significant role in the democratic machinery. The courts have duty to uphold the freedom of press and invalidate all laws and administrative actions that abridge that freedom.

India certainly allows more freedom of expression than countries like Iraq, Malaysia, Afghanistan, China and North Korea. But the two organizations that rank press freedom, an important indicator of free expression in any society, has consistently ranked India lower than you might expect. India doesn’t even make the top 50 in Freedom House’s Freedom of the Press 2011 ranking: it comes in at number 77, along with Bulgaria and East Timor, behind South Africa, South Korea and Lithuania. Reporters Sans Frontiers ranks India even lower on its press freedom index for 2010. The country is at number 122, below Congo, Indonesia and Nepal. Why should the largest democracy in the world have such a low ranking about freedom of expression? Does that mean that Indians are too emotional to tolerate offensive speech thereby compromising rationality?

Communism, China and free speech:

Freedom of information, speech and the press is firmly rooted in the structures of modern western democratic thought. With limited restrictions, every capitalist democracy has legal provisions protecting these rights. Communism, as a primarily economic system, is much quieter on the issue of individual human rights. Two conflicting positions on these freedoms arise with analysis of communist theory. The first is an argument against individual freedoms. In a communist society, the individual’s best interests are indistinguishable from the society’s best interest. Thus, the idea of an individual freedom is incompatible with a communist ideology. The only reason to hold individual speech and information rights would be to better the society, a condition which would likely be met only in certain instances rather than across time, making the default a lack of freedom. On the other hand, the idea of perfect equality in communism argues for a right of expression and press. Since each individual is equally important, each should have an equally valid point of view. Indeed, Marx defended the right to a freedom of the press, arguing in 1842 that restrictions, like censorship were instituted by the bourgeois elite. He claimed censorship is a tool of the powerful to oppress the powerless. Thus, on the balance, it seems communist theory is compatible with freedoms of speech, information and protest, but it is far from a fundamental right such as it is under democracy and individual-centered ethics systems like that of Kant and Locke. Freedom of information should only be granted when communist society as a whole is likely to benefit. Modern day China, more than almost any other country in the world, severely restricts its citizens freedom of speech and expression. Oddly enough, Article 35 of the current Chinese constitution, written in 1982, stipulates “Citizens of the PRC have freedom of speech, publication, assembly, association, procession and demonstration.” Up to the advent of the internet, the Chinese government had been able to successfully curtail this freedom in nearly all its physical manifestations. China has a tightly controlled traditional media, China forces all published information to be from official sources and to be vetted through the state. This internet usage boom presents a variety of new challenges to a government adept at censoring traditional media types. The internet is much more vast than the physical realm controlled by China. It is not susceptible to the traditional local control structure relying on dedicated neighborhood party leaders to enforce edicts from the centralized government. Furthermore, the barriers to traditional information distribution of geography, money, and access to printing machinery, are no longer an issue in a digital realm where a cell phone or a few cents can buy time on the internet and allow anyone to blog their opinions. China has responded with a vast centralized censorship program (read my article on internet censorship). According to Mao Zedong, power comes through the barrel of a gun. These days, however, it is more likely to come through the barrel of a pen – or the sensors on a keyboard. The conflict between the world’s biggest censor and an array of journalists, bloggers and dissidents has been remarkable.

Religious theocracy and freedom of expression: Freedom of the Press- Saudi Arabia:

1. The media environment in Saudi Arabia is among the most repressive in the Arab world. The basic law does not guarantee press freedom and condemns any defamation of religious beliefs. Article 39 of the law, in reference to freedom of expression, states that “all acts that foster sedition or division or harm the state’s security and its public relations or detract from man’s dignity and rights shall be prohibited.”

2. Freedom of expression is subject to strict guidelines imposed by a range of additional laws. There is no freedom of information legislation. The Law of Printed Materials and Publication allows censorship of nearly all types of media, affecting printing presses, bookstores, film, television, radio, and the local offices of foreign news outlets. Under the law, authors must submit manuscripts to the Ministry of Interior for approval before publication.

3. All newspapers must obtain licenses from the government, and a media outlet can be legally banned or temporarily suspended if it is deemed to promote “mischief and discord.” The Ministry of Culture and Information (MCI) holds authority to appoint and dismiss senior editors, and provide guidelines on coverage of controversial matters.

4. MCI had closed down the Jeddah and Riyadh offices of the Lebanese Broadcasting Corporation (LBC), alleging that it had violated media policy. LBC had aired a program in which a man related his sexual experiences in the country. The man and three friends who accompanied him on the show were arrested, sentenced to prison terms, and given lashes according to Sharia (Islamic law). The court also sentenced LBC journalist Rosanna al-Yami to 60 lashes and a two-year travel ban, but the king waived the lashes several days later.

5. All journalists must register with the MCI, and foreign journalists face visa obstacles and restrictions on their movement. Both local and foreign publications are often banned, censored, or delayed.

6. Journalists who offend authorities can face fines, detention, interrogation, dismissal, and harassment. As a result, self-censorship is widespread, and media outlets often avoid criticizing the royal family, Islam, or religious authorities. However, there were isolated instances during 2009 in which the government did not punish journalists for critical reporting.

7. Harassment of journalists through legal means is more common than physical harassment.

8. The government owns and operates all domestic broadcast media, and content is heavily censored. Most privately owned print media are connected to the government or royal family, which exert control through means including the approval or rejection of new editors.

9. Although satellite dishes are considered illegal, millions of them are reportedly used to access foreign programming, and there have been no government crackdowns on the practice.

10. Bribery and a culture of giving gifts to journalists are widespread. The gifts can include small items, larger purchases, or various favors and concessions.

11. About 38 percent of the population used internet in 2009, but the government heavily censors internet traffic. Legal access to the internet is only available through the government. A 2001 cabinet resolution prohibits internet users from publishing or obtaining content that is “contrary to the state or its system.” The authorities continue to block blogs, websites, and pages on the Twitter that comment on political, social, religious, and human rights issues. In July 2009, prominent blogger Raafat al-Ghanem was arrested and detained for criticizing the Committee for the Propagation of Virtue and Prevention of Vice. He had also supported the blogger Laitaibi and writer Khaled Omair, who were arrested in early 2009 after organizing a Riyadh protest against an Israeli military campaign in Gaza.

As you can see from above paragraphs that democracy and freedom of expression are complementary to each other and as you go to communist state or theocratic state, freedom of expression is curtailed to support a non-democratic state. The corollary is that in order to have a better democracy, freedom of expression must be promoted more vigorously. If India wants to advance its democracy, allow more freedom of expression.

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Whose interest does free speech serve?

1. The speaker’s interest in communicating ideas & information: right from self fulfillment & development to participation in political process, speaker’s interests are served. When publisher disseminate book, his interest may be commercial gain. When politician makes a claim, he may want to improve his standing.

2. The audience interest in receiving ideas & information: restriction in free flow of information affects audience in making informed choice and participates in political process. Free speech and free information flow will reveal content of government files to people to make government work transparently and fairly. Free information about commercial product will enlighten consumers about pricing and quality rather than misled by advertisement.

3. Public interest: Free speech in general is beneficial to community (barring few exceptions) even if only selected audience had received free speech.

Why free speech be protected?

1. Importance of discovering truth: free speech and open discussion leads to discovery of truth. If restrictions on free speech are tolerated, society prevents the ascertainment and publications of accurate facts and valuable information.

2. Free speech is an aspect of self-fulfillment: free speech is an integral aspect of each individual’s right to self development and fulfillment. Restrictions on what we say and write, or to hear and read, inhibit our personality and growth.

3. Free speech ensures citizen’s right to participate in democracy: the final end of democratic state is to make men free to develop their faculties; and that in its government; the deliberate forces would prevail upon the arbitrary. Freedom of speech is indispensable for spread of political truth and free public discussion is a political duty.

4. Suspicion of government: history is full of attempts by governments and Roman Catholic Church to suppress free speech. They have often outlawed speech that eventually made accurate claims and widely accepted even by the same authority which suppressed it in the first place.

Freedom of expression and transparency: two sides of one coin:

Freedom of expression and transparency are both essential parts of a healthy democracy. Freedom of expression can be defined as the liberty to express opinions, regardless of their truth and falsity, and transparency as the enforceable right of access to documented facts. It should be clear though, that the concept of freedom of expression enshrines much more than merely the freedom to express one’s opinion. It is generally regarded that the freedom to hold opinions and the freedom of information, are sub-categories of the freedom of expression. There is undeniably a link. Freedom of speech traditionally covers the right to communicate information and ideas, but both article 19 of the Covenant on civil and political rights and article 10 of the Convention on Human Rights are to be interpreted in a broader sense. The freedom expressed in those articles does not merely encompass the right to express one’s opinion. They both guarantee the right to receive and impart information and ideas, the two main subjects of protection. Moreover, there is an emphasis on ideas, rather than information. The right to know as an aspect of freedom of speech has a long and respectable ancestry and several authors also support the idea that freedom of speech implements the freedom of access to information. Seeking information is essential for finding the truth, which is in turn essential for collective decision-making in a democratic society. P. Bayne also favors the idea that the right to freedom of information might be a dimension of the freedom of speech. Access to information is transparency. Freedom of information essentially entails the right to know. The legislation concerning freedom of information contains rules which guarantee access to documents, mainly in relation to documents from governmental institutions. A request can be made for government-held data, to be received freely or at a minimal cost, and this process is subject to restrictions that differ from country to country. In a modern democracy, access to public information is essential for citizens to be properly informed. The majority of public information is in the hands of the state, formed, collected and processed using public resources, which makes it a public possession. In the Lingens case, the European Court stated that the public’s right to know is an inherent element of informed political debate, which is crucial to genuine democracy. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society. The European Court of Human rights has also made clear that the Convention’s protection of freedom of expression rests in significant measure on the public’s right to know. The European Court also ruled that this right to receive information “basically prohibits a government from restricting a person from receiving information that others may wish or may be willing to impart to him.” However, freedom of information does not mean the brute access to information alone, such as documents or records in whatever form. When making a claim for transparency, these claims have to be couched in the right to know, as a democratic right. Certain difficulties arise here, since it must be defined what democracy accepts as justifiable and unjustifiable claims. Access to documents will be denied when compelling public or private interests are at stake. According to T.Emerson, there are two essential limitations on the right to know. These are, on the one hand, the right of privacy, and, on the other hand, the right not to know. Nowadays, there are still different approaches towards this issue. Often, the Courts balance both rights: the interest of the public’s right to know is being weighed against the interests of the individual in maintaining his privacy. The drawbacks are obvious: the test is vague and the results are unpredictable. In a different approach, both freedoms are being considered as being on one line. Privacy and freedom of information do not necessarily have to constitute opposites; they can also complement each other. Individuals have the right to know so they can form opinions and ideas, especially when the information held back contains data about their own personal life. In our modern society, an important limitation on the right to know is the cost of implementing this freedom. Imposing a duty on the government or any other authority to provide information it did not want to disclose would increase the risk of leaks and unreasonable use of information. Most countries have implemented a Freedom of Information Act and as already mentioned before, there are only few countries which do not possess a full access-to-government-held-information law. The right of access to information is now well established in international, European and national law and practice. Although in the past, freedom of information was not as established a right as freedom of expression, it has developed significantly throughout the years. Courts around the world have similarly determined that the right to receive information, including information held by the government, is a central and separate element of the freedom of expression. Especially article 10 of the European Convention of Human Rights has undergone a major evolution towards the recognition of granting a right to general access to state-held information. Freedom of information, similar to freedom of expression, has been recognized as an intrinsic right to a genuine democracy. It provides openness, transparency and accountability. Access to information also ensures that every citizen is able to participate politically, in a properly-informed way. These are considered today as essential qualities of a good representative government. It seems that the prevailing ‘veil of secrecy’ in the past on government-held-information in the UK, has been replaced by an ‘open government’ principle. Official information is now to be made available unless there are good reasons, set out in legislation, for withholding these documents. It is now clear that both freedom of expression and freedom of information are necessary values of a democratic society. Both concepts have been implemented in national laws as well as in international laws. They are essential foundations and basic conditions for the progress of the democracy and each individual’s self-fulfillment. A good example is the freedom of the press in contemporary society. The press guarantees both freedom of expression and freedom of information at the same time, which serves the purpose of a democratic control of institutions. Readers of newspapers and magazines receive information, even if they did not search for any information in particular. People with information or ideas have the right to publish that information, so the information or ideas can be imparted. This should happen regardless of frontiers. Freedom of expression and freedom of information are complementary. The right to know fits readily into the whole system of freedom of expression. Not everyone agrees on the extent in which freedom of expression would cover freedom of information. Barendti for example argues that the right to privacy is a much better legal basis for upholding positive information rights. The majority of judicial doctrine and legislature, in particular the recent case law of the ECHR seem to head in the other direction. Both rights are not only key to an effective democratic government, they are also vital to the effective functioning of each other. It was T. Emerson who best described the system. He stated that freedom of information constitutes two sides of a coin. On the one hand, there is the right to receive information, with on the other hand, the right of access to information. Together both rights constitute the reverse side of the right to communicate. The whole coin consists of only one piece, freedom of expression. This comparison still stands in our modern society even though freedom of information is now a more independent right then it was in the past. He also considers that the right to know essentially serves for our personal self-fulfillment, and that is also what freedom of speech serves for.

Functions of freedom of expression:

On a more practical plane, freedom of speech serves many functions. One of its most important functions is that decision-making at all levels is preceded by discussion and consideration of a representative range of views. A decision made after adequate consultation is likely to be a better one which less imperfectly mirrors the opinions, interests and needs of all concerned, than a decision taken with little or no consultation. Thus freedom of speech is important at all levels in society. Yet it is most important for government. A government which does not know what the people feel and think is in a dangerous position. The government that muzzles free speech runs a risk of destroying the creative instincts of its people. Freedom of speech is also important to governments because when criticisms of a government are freely voiced, the government has the opportunity to respond to answer unfair comments and criticisms about its actions. On the other hand, when freedom of speech is restricted, rumors, unfair criticisms, comments and downright falsehoods are circulated by word of mouth. These have a habit of spreading across the length and breadth of the country through conversation and surreptitiously circulated writings. The government is in no position to answer these views, because they are not publicly stated. It is in a government’s interest to have criticisms in the public arena where it can answer its critics and correct its mistakes. The government generally has access to electronic and printing communication far in excess of individuals and groups. It is able to present its view only if the opposing views are in the open and known. Finally, the freedom of speech is the single most important political right of citizens, although private property is required for its operation. Without free speech no political action is possible and no resistance to injustice and oppression is possible. Without free speech elections would have no meaning at all. Policies of contestants become known to the public and become responsive to public opinion only by virtue of free speech. Between elections the freely expressed opinions of citizens help restrain oppressive rule. Without this freedom it is futile to expect political freedom or consequently economic freedom. The sine qua non of a democratic society is the freedom of speech.

Freedom of expression has many purposes to serve:-

1. It helps an individual to attain self-fulfillment

2. It assists in the discovery of truth

3. It strengthens the capacity of an individual in participating in decision making

4. It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change
5) All members of society would be able to form their own beliefs and communicate them freely to others.

Other purposes and benefits of freedom of expression are as follows:

There are many reasons why proponents of freedom of expression care so much about it. While there are myriad of opinions concerning freedom of expression, at the core of the matter there is a consensus that countries and their people can only truly progress and develop if there are free and open outlets of expression. Also, on a psychological level, it has been argued that need to express ourselves is a universal human condition—and we humans have been expressing ourselves for a very long time.

One of the reasons for not suppressing speech is that free speech is a safety valve. Just as the ancient Romans eventually learned that executing Christians did not suppress Christianity, we today should learn that forbidding people to talk about certain topics does not encourage stability. It only creates martyrs. Punishing people for speech does not discourage the speech; it only drives it underground, and encourages conspiracy. In the battle for public order, free speech is the ally, not the enemy.

In a democracy freedom of speech is a valuable individual right. For progress there must be freedom to speak, freedom to write, freedom to criticize, and freedom to dissent. Unless there is freedom, ideas cannot grow, and in the transition period India and other underdeveloped countries are going through, modern ideas are extremely important.

Even if one person wishes to express an opinion different from the opinion of the whole society, he should be allowed to do so. Sometimes, even the whole society can be wrong as it was when Socrates, Christ and Galileo gave their individual opinions. Later on, it was proved that they were right whereas their opponents were wrong.

Freedom of speech has become a powerful instrument of reform and grievance redressal in most parts of the world. Satellite television has provided worldwide access to the suppressed and repressed people of the world to voice their sufferings and grievance.

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Freedom of free speech and expression is a vital freedom in a democracy. Genuine criticism and dissent also is an essential constituent of this freedom.

The relationship between free speech and creativity, and between free speech and education are discussed later on.

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Limitations of freedom of speech:

I am, indeed, free to say what I like, but the state and other individuals can sometimes make that freedom more or less costly to exercise. This leads to the conclusion that we can attempt to regulate speech, but we cannot prevent it if a person is undeterred by the threat of sanction. The issue, therefore, boils down to assessing how cumbersome we wish to make it for people to say certain things. The best way to resolve the problem is to ignore the question of whether or not it is legitimate to attach penalties to some forms of speech. I have already suggested that all societies do (correctly) place some limits on free speech. If the reader doubts this, it might be worth reconsidering what life would be like with no prohibitions on libelous statements, child pornography, advertising content, and releasing state secrets. The list could go on. The real problem we face is deciding where to place the limits and try to find some possible solutions to this dilemma.

The absence of free speech regulation will create a chaotic society where some individuals will libel and spout some of the most irrational things thereby reversing the course of social evolution. Free speech could be an effective tool in promoting social evolution only if it is tailored and limited to positive criticism, but in this narrow restriction it losses the meaning of being free and thus ceases to be free speech. Freedom of speech for it to be completely free will also give credence to groups that hide under its tenets to promote fascism, racism, terrorism and everything considered offensive to other groups of individuals. If everyone were so well educated from infancy, everyone will be so sophisticated, so wise and so disciplined that there will be no need to regulate free speech. For uneducated populations, false news spreads like wild fire and where there are few options to verify allegations before any harm is done, the legitimacy of free speech seems almost unfounded.

Extreme Libertarian position on freedom of speech:

Orthodox Liberal position on freedom of speech:

Shouting fire in a crowded theater:

“Shouting fire in a crowded theater” is a popular metaphor and frequent paraphrasing of Oliver Wendell Holmes, Jr.’s opinion in the United States Supreme Court case Schenck v. United States in 1919. The quote is used as an example of speech which is claimed to serve no conceivable useful purpose and is extremely and imminently dangerous. The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. 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. People have indeed falsely shouted “Fire!” in crowded public venues and caused panics on numerous occasions, such as at the Royal Surrey Gardens Music Hall (London) in 1856, in Harlem in 1884, and in the Italian Hall disaster of 1913, which left 73 dead.

When we come to consider whether free speech should be restricted, we should take into account four factors:

The content of the expression
The manner of expression
The intentions of the speaker
The circumstances

Restrictions:

Although you have the freedom to express your views and beliefs, you have a duty to behave responsibly and to respect other people’s rights. Public authorities may restrict your right to freedom of expression if they can show that their action has a proper basis in law, and is necessary and ‘proportionate’ in order to:

protect national security, territorial integrity or public safety
prevent disorder or crime
protect health or morals
protect the rights and reputations of other people
prevent the disclosure of information received in confidence
maintain the authority and impartiality of the judiciary.

It may be permissible to restrict your freedom of expression if, for example, you express views that encourage racial or religious hatred.

What are you ‘not’ allowed to say?

Although the vast majority of speech is protected under the First Amendment in the U.S., there are some important exceptions, which mean that certain types of speech may be restricted by the government and civil actions may be based upon them. The main exceptions to free speech protection include:

Defamation (includes libel and slander): discussed in greater depth below.
Obscenity: The American Supreme Court test for obscenity is as follows: (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Fighting words: As defined by the Supreme Court, fighting words are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”
Causing panic: The classic example of speech causing panic is someone yelling “Fire!” in a crowded movie theater. Speech may be suppressed where a reasonable person would know that his speech is likely to cause panic and/or harm to others.
Incitement to crime: Speech that spurs another to commit a crime.
Sedition: Speech that advocates unlawful conduct against the government or the violent overthrow of the government.

The government also has the right to restrict speech in order to promote a “compelling government interest,” such as national security. This standard is extraordinarily strict and hard to prove, making it a rather narrow exception to free speech.

What about hate speech?

Hate speech is speech that targets a person or group of people based on race, ethnicity, gender, age, religion, sexual orientation, disability, or other distinction. Hate speech is, outside the law, communication that vilifies a person or a group on the basis of one or more characteristics. In law, hate speech is any speech, gesture or conduct, writing, or display which is forbidden because it may incite violence or prejudicial action against or by a protected individual or group, or because it disparages or intimidates a protected individual or group. The law may identify a protected individual or a protected group by disability, ethnicity, gender, gender identity, nationality, religion, race, sexual orientation, or other characteristic. Hate speech is protected by the First Amendment right to free speech in the U.S. Unless a particular instance of hate speech falls under one of the exceptions to free speech listed above, it cannot be constitutionally suppressed by the government. Critics have argued that the term “hate speech” is a modern example of Newspeak, used to silence critics of social policies that have been poorly implemented in a rush to appear politically correct.

Where do we draw the line between free speech and hate speech?

Winning the fight for justice requires that you change the minds of those who disagree with you — or at least of the undecided. When the debate is passionate and increasingly divisive — Muslim mosques, gay marriage, abortion, immigration — what are the proper rules of engagement? How can you be true to yourself and your most strongly held beliefs, while respecting those who vehemently disagree with you? Where legal lines may provide protection, they may not promote conversation or meaningful dialogue.

The context of speech:

There is a real problem in identifying what kind of act speech is. Stanley Fish says: “If freedom of speech is to make any sense… speech must be declared not to be a species of action, or to be a special form of action lacking the aspects of action that cause it to be the object of regulation. On this view, speech holds no power to harm anyone. This is a very narrow conception both of what can cause harm, and of what constitutes harm. By discounting emotional and psychological pain from the realm of harm, physical pain is constructed as the only legitimate form of harm. This view is not realistic: we all know that it hurts to be the subject of a cruel comment, and verbal abuse is recognized as harm. Speech certainly is an action that can cause harm. Fish agrees: “Speech always seems to be crossing the line into action, where it becomes, at least potentially, consequential.” Therefore, if speech can cause harm, then speech must be considered a type of action requiring regulation. No speech act occurs outside of a particular context. Stanley Fish says: “arguments that support freedom of speech only gets their purchase by first imagining speech as occurring in no context whatsoever, and then stripping particular speech acts of the properties conferred on them by contexts. Allow me to break this statement down. Those who defend freedom of expression first assume that speech happens in a vacuum, free from situational context. The idea is that when a person speaks, she speaks her own ideas, and that should not be controlled. She should be free to speak her mind without worrying what others will think about it. This is erroneous on two counts: first, she does not speak from a place that is context-free. Every life has its own context, and every speaker brings that context to her speech. Second, in order for speech to have meaning, someone has to hear it. The person who listens to speech is also affected by the context of his life. The second part of Fish’s statement refers to what happens when speech enters into context. I say a sentence, and because of the context in which I say it, or the context in which someone hears it, meaning attaches to the sentence. Proponents of freedom of expression would try to strip away that meaning. This argument is somewhat confused: it argues that context is unwittingly conferred onto an act of speech, rather than considering that context motivates that act.

The disadvantaged/underprivileged group:

Freedom is a delicate balance. A society can only support an individual’s rights so long as that individual does not infringe on the rights of another. In regards to hate speech, it is hard to understand why one person’s (or group’s) right to freedom of expression should trump the right of a group not to have hateful things said about them. Why should the rights of the haters be held above those of the victims of hate speech? Societies that tolerate hate speech institutionalize that form of violence. It is true that hate speech can target both disadvantaged and privileged groups in society, and individuals deserve protection from these threats. However, words of hatred spoken against a person who is socially privileged does not serve to support systems of oppression that already exist against them. Socially privileged groups are not in the same socio-political/economic position as disadvantaged groups: the relation of power that constitutes oppression serves to advance socially privileged groups while simultaneously squashing socially disadvantaged groups. Those who are harmed by such oppression deserve protection and support as society works to undo and disentangle the interlocking systems that have created situations in which disadvantaged people are trapped between the proverbial rock and a hard place. Western society has been built on the backs of disadvantaged people, and they are still paying the price today because of pervasive beliefs involved in racism, sexism, heterosexism, etc. Hate speech, when aimed at the socially privileged, is as harmful as a dent in a suit of armour. For a disadvantaged group, it is a kick in the teeth while they’re already down.

By 1791, when the First Amendment was ratified, the idea of “freedom of speech” was sufficiently entrenched that it became the primary language of the amendment, with “freedom of the press” being added to ensure that written and printed as well as oral communication was protected: “Congress shall make no law … abridging the freedom of speech, or of the press.” Still, the focus both in law and in political discussion at the time was on printed political argument, whether in newspapers or the kinds of tracts distributed by men like Thomas Paine. A modern legal test of the legitimacy of proposed restrictions on freedom of speech was stated in the opinion by Oliver Wendell Holmes, Jr. in Schenk v. U.S. (1919): a restriction is legitimate only if the speech in question poses a clear and present danger i.e., a risk or threat to safety or to other public interests that is serious and imminent. The most important manifestation of this transfer started in the late 1960s, when the Supreme Court with some consistency recognized the right of speakers in the “public forum” to articulate ideas that not only were in opposition to established military and political authority but also were highly likely to offend unwilling listeners or viewers. In the late 1960s and early 1970s, the Court protected with some frequency those who desecrated the American flag, who displayed offensive language, such as obscene words on an article of clothing, and who conveyed messages often as likely to be harmful as they were offensive. Operating on the assumption that underregulation of even harmful speech was the only way in an imperfect world to protect against the overregulation of harmless speech; the Court went from the protection of Vietnam protesters to the protection of the speech of groups such as the Ku Klux Klan. Indeed, it was the Klan case of Brandenburg v. Ohio that in 1969 established the current extraordinarily strict understanding of the Holmesian idea of “clear and present danger.” Speech leading to violence or other unlawful activities can be restricted only if the ensuing lawless activity is likely to be “imminent” and even then only if the speaker has explicitly urged that activity. By 1977 it was considered an “easy case” when the U.S. Court of Appeals for the Seventh Circuit, sitting in Chicago, upheld the right of the American Nazi party to march in a community (Skokie, Illinois) heavily populated by Holocaust survivors, a decision the Supreme Court refused to review. In recent decades speech controversies in the United States have involved, among other issues, whether and how “hate speech” directed at racial or other groups can be suppressed and what limitations may be imposed on speech in an attempt to combat sexual harassment. The definition of speech itself has been broadened to encompass “symbolic speech,” which consists of actions that express opinions; thus, U.S. courts have held that burning the American flag as a protest is protected speech.

Free speech and violence:

The power of speech defines us as human beings. Language enables us to negotiate our differences in ways not available to most animals. Yet throughout history this power has been used to animate us to kill other members of our own species. Even the most outspoken advocates of free speech therefore recognize that there should be limits to how far we can allow words and images to incite to violence. The difficulties begin when it comes to working out where the limits should be. An extreme case of speech inciting violence is Radio Télévision Libre des Mille Collines in Rwanda, which encouraged murderous gangs of Hutus to kill some 800,000 Tutsis (and moderate Hutus) by repeatedly calling over the airwaves for a “final war” to “exterminate the cockroaches”. Even if you think, in the American first amendment tradition, that we should in principle be free to describe other groups of people as “cockroaches”, you will still conclude that this should have been stopped. The violence was intended, likely and imminent.

Free speech and violence can be grouped in two parts:

1. We do not make threats of violence.

2. We do not allow, accept or yield to violent intimidation.

These are two sides of the same coin. If you yield to one threat of violence, you encourage another.

Against the assassin’s veto:

The literature on free speech contains the now old-fashioned concept of the heckler’s veto. If hecklers at a meeting are allowed to shout too loud and long, they deny the speaker his or her right to speak. These days, we see more of the assassin’s veto. Individuals or groups send this simple message: “If you say that, we will kill you.” Sometimes they keep their promise. Hundreds of women and men around the world have been murdered simply for things they have said – writers about the Mafia, critics and satirists of several religions and regimes, dissidents, cartoonists, publishers, novelists and investigative journalists. Many more walk in fear of one of the many variants of the assassin’s veto.

Intimidation and appeasement:

We have as much of a duty to resist threats of violence as we do to refrain from making them. In this respect, many so-called free countries have done very badly in recent years. Again and again, they have appeased explicit or implicit threats of violence – sometimes in the name of “respect” for religion, “community cohesion”, “public order” or “multiculturalism” – rather than combating them with all the force of the law and the determination of a united society.

Courage and solidarity:

To resist violent intimidation requires the full rigor of the law. It requires the police to protect those under threat, rather than telling them to shut up. It also needs the courage of exceptional individuals who have risked and sometimes given their lives for free expression: people like the Russian journalist Anna Politkovskaya; the governor of Punjab, Salmaan Taseer; the Turkish-Armenian journalist Hrant Dink; and the Brazilian environmental activist Chico Mendes. We cannot begin to list them all, but please do add names here by posting your comments below this article, with an explanation of why you believe they belong on this honor roll.

Obscenity:

In the 1973 Miller v. California decision, the Court established three conditions that must be present if a work is to be deemed “legally obscene.” It must 1) appeal to the average person’s prurient (shameful, morbid) interest in sex; 2) depict sexual conduct in a “patently offensive way” as defined by community standards; and 3) taken as a whole, lack serious literary, artistic, political or scientific value. Attempts to apply the “Miller test” have demonstrated the impossibility of formulating a precise definition of obscenity. Justice Potter Stewart once delivered a famous one-liner on the subject: “I know it when I see it.” But the fact is, the obscenity exception to the First Amendment is highly subjective and practically invites government abuse.

Religion and freedom of expression:

In 2002 the Nigerian journalist Isioma Daniel infuriates Muslims by writing about the Prophet Mohammed and Miss World. In consequent riots more than 200 people were killed. More recent, in 2004, the Dutch filmmaker Theo Van Gogh was killed after the release of his movie about violence against women in Islamic societies.

Blasphemy and freedom of expression:

Blasphemy is the act of insulting or showing contempt or lack of reverence for a religious deity or the irreverence towards religious or holy persons or things. Some countries have laws to punish blasphemy, while others have laws to give recourse to those who are offended by blasphemy. Those laws may discourage blasphemy as a matter of blasphemous libel, vilification of religion, religious insult, or hate speech. This has sparked debate of freedom of speech v/s religious sentiments. Does freedom of speech gives license to hurt sentiments of people who believe in their faith and get offended by it? Does being believer in one’s own faith give license to threaten anyone? On the other hand, blasphemy laws are stifling free expression worldwide. As a recent Pew Forum study reveals, blasphemy laws are widespread, with laws penalizing blasphemy, apostasy, or defamation of religion (including religious “hate speech”) present in 94 countries. While in most countries, laws criminalizing certain types of speech apply to the Internet, some countries have recently crafted specific laws to ban or criminalize online expressions of blasphemy. Still others have cracked down on online speech using existing laws. The issue of freedom of speech versus blasphemy cannot be seen in isolation from the role of religion as a source of political power in some societies. In such a society, to blaspheme is to threaten not only a religion, but also the entire political power order of the society, and hence, the official punishments (and popular responses to blasphemy) tend to be more severe and violent.

Let us first see various incidents where people were killed or death threats were either made or people were dragged to court because of hurt of religious sentiments:

1) M. F. Hussein :

He drew nude paintings of hindu god and goddess in late 70s but controversy erupted in early 90s. VHP and right wing group cried foul and M F Hussein was dragged to the court. His house was attacked by bajrang dal and art works were vandalised. His london exhibition was forced to be called off due to protest. Later M. F. Hussein took citizenship of Qatar.

2) Salman Rushdie:

He wrote satanic verses which created major outrage in Muslim world. Ayatollah Ruhollah Khomeini issued fatwa for executing salman rushdie. Some attempts to kill him have been made unsuccessfully. Twice bombs exploded prematurely killing attackers and salman rushdie survived. While salman has survived few people associated with the book have been killed. Japanese translator of the book was stabbed to death in 1991, while Italian translator too was stabbed but he survived the attempt

3) Taslima Nasrin:

Taslim nasrin is a doctor turned author who sparked controversy by her book. She has been critical of Islam in particular and religion is general. She was forced to leave Bangladesh and lived in exile before entering India. Hard-line Muslim groups in India opposed her stay. She was even almost physically attacked by Hyderabad based political party workers. She was later shifted to secret location and finally she moved to Europe.

4) Danish Cartoon:

The Jyllands-Posten Muhammad cartoons controversy began after 12 editorial cartoons, most of which depicted the Islamic prophet Muhammad, were published in the Danish newspaper Jyllands-Posten on 30 September 2005. The newspaper announced that this publication was an attempt to contribute to the debate regarding criticism of Islam and self-censorship. Muslim groups in Denmark complained and the issue eventually led to worldwide protests. After the issue received prominent media attention in some Islamic countries, Muslims held protests across the world in late January and early February 2006, some of which escalated into violence resulting in a total of more than 100 reported deaths, attacks on a number of Danish and other European diplomatic missions, attacks on churches and Christians, and a major international boycott. Various groups responded by endorsing the Danish policies, including “Buy Danish” campaigns and other displays of support. Danish Prime Minister Anders Fogh Rasmussen described the controversy as Denmark’s worst international crisis since World War II. Critics of the cartoons described them as Islamophobic, racist, or baiting and blasphemous to people of the Islamic faith, possibly intended to humiliate a Danish minority, or were a manifestation of ignorance about the history of Western imperialism. Supporters generally said that the publication of the cartoons was a legitimate exercise of the right of free speech whatever the validity of the expression itself and/or that it was important to be able to openly and frankly discuss Islam without fear. The controversy ignited a considerable debate regarding the limits of freedom of expression, religious tolerance, and the relationship of Muslim minorities with their broader societies in the West, as well as between the Islamic World in general and the West. Attempt to kill the cartoonist was discovered, owing to which cartoonist is under police protection.

5) Van Gogh:

A severe critic of Islam, Van Gogh was murdered by Mohammed Bouyeri. Van was shot eight times and stabbed twice. Van was Dutch film director, film producer, columnist, author and actor. Van Gogh worked with Somali-born writer Ayaan Hirsi Ali to produce the film Submission, which was critical of the treatment of women in Islam.

What is offensive and what is not offensive differs from person to person. M. F. Hussein painting might not be offensive for those who don’t prescribe to Hindu religion, it might not be offensive for some Hindus too but it was offensive for many Hindus. Same way if you are not Muslim, cartoon of Muhammad or draw Muhammad day is not offensive but it might be offensive for many Muslims. What is offensive is subjective matter. As leading lyricist javed akhtar said that he does not find taslima’s comments offensive but someone might have found it offensive but does that gives them right to threaten taslima? Would they get right to burnt her alive?

Things have reached the point where even a perceived slight to the name “Allah” can lead to violence. A simple Turkish bartender, Oğuz Atak, had the name “Allah” tattooed on his shoulder; in 1997 he was shot dead for defiling God’s name. Less drastic but similar cases included the protest against a dress with Arabic letters shown by Claudia Schiffer in Paris (the fashion-house withdrew the dress from its collection), and several cases of protest against shoe brands in Bangladesh and elsewhere because they allegedly defiled the name Allah by having it (or any of its many derivatives in personal names, such as `Abdallah) imprinted on something as lowly as a shoe. Even more bizarre was a case in the United States, where threatened by a global Muslim boycott, the sports-apparel firm Nike agreed not only to recall 38,000 pairs of shoes bearing a logo that some Muslims claimed resembled the Arabic spelling of the word “Allah,” but also to apologize for the incident, provide “sensitivity training” on Islam for all Nike employees, and donate $50,000 to an Islamic school in the United States. Some Arab intellectuals complain that their culture has still not produced a Voltaire. But the truth seems rather to be that there are quite a few Arab (and Iranian, Turkish, etc.) Voltaires, only they are working under more difficult circumstances than the French satirist: some of them are in exile, many are being very cautious, and the others have been silenced for good.

Incorporate religious sensitivities in freedom of expression:

Freedom of expression includes freedom of religion. Religious sensitivities are part of the freedom of expression as well. If a person opposes to the burning of a Bible or Quran, that is them expressing themselves through a religion. We all hold our own religious beliefs, so why should we be offended when others do? Freedom of expression and religious sensitivities are not mutually exclusive. Most of these problems could be easily solved if people would use common sense, and show a little respect. It is easily possible to disagree with someone’s religious preference without being nasty and insulting. It’s not what is said, but how it is said. Treating others the way we want to be treated would make it possible for people to express themselves freely, and not insult others.

U.S. President Obama at the UN vis-à-vis anti-Islam movie & freedom of expression:

The annual U.N. gathering came just days after a chain reaction of ferocious protests in Muslim countries against a video on YouTube insulting Islam. Reaction to the video led to the deaths, at last count, of more than 50 people. So, the hateful video and the mass violence became an inescapable topic at the United Nations. The emir of Qatar, Sheikh Hamad bin Khalifa al-Thani, noted he “firmly” believes in free expression, explaining, “freedom should not cross reasonable limits and become a tool to hurt and insult the dignity of others and of religions and faiths and sacred beliefs as we have seen lately, which regrettably led to the killing of innocent people who have not committed any crime.” He thus blamed the film, rather than those who committed the killings. In the view of some Arab and Muslim leaders, the time has come to draft new international rules limiting free expression for the sake of preventing insults to religions. Condemning “mindless violence” over the anti-Islam movie, US President Barack Obama has said that the US could not ban the controversial video under the First Amendment law of the Constitution – which protects freedom of speech – in his address at the 67th session of the UN General Assembly. However, terming the sacrilegious video “crude and disgusting”, the president reiterated that the US government had nothing to do with the movie and insisted that there was no speech that justified violence. “We are home to Muslims who worship across our country. We not only respect the freedom of religion – we have laws that protect individuals from being harmed because of how they look or what they believe. We understand why people take offense to this video because millions of our citizens are among them,” he told UN General Assembly. The US president said that while they could not ban the video under the First Amendment law of the Constitution, there was no speech that justified mindless violence. “Here in the United States, countless publications provoke offence. Like me, the majority of Americans are Christian, and yet we do not ban blasphemy against our most sacred beliefs.” Obama also warned that in 2012 “when anyone with a cell phone can spread offensive views around the world with the click of a button, the notion that we can control the flow of information is obsolete. “The question, then, is how we respond. And on this we must agree: there is no speech that justifies mindless violence. There are no words that excuse the killing of innocents.” Obama said at the UN “The future must not belong to those who slander the prophet of Islam. Yet to be credible, those who condemn that slander must also condemn the hate we see when the image of Jesus Christ is desecrated, churches are destroyed, or the Holocaust is denied. Let us condemn incitement against Sufi Muslims, and Shiite pilgrims. It is time to heed the words of Gandhi: ‘Intolerance is itself a form of violence and an obstacle to the growth of a true democratic spirit.’ Together, we must work towards a world where we are strengthened by our differences, and not defined by them. That is what America embodies, and that is the vision we will support.”

Double standards of free speech vis-à-vis religion:

The right to free speech, expression or thought is incomplete if it prohibits individuals from offending someone, just because that someone has a low threshold for tolerating criticism. In India, there’s an unwritten rule that enables you to enjoy your individual freedom only as long as you absolutely, and I mean absolutely desist from writing, saying or expressing anything remotely blasphemous against Sonia Gandhi or Prophet Muhammad and Jesus. Everything else is acceptable. Under this rule, it is perfectly legitimate, even desirable, to call Baba Ramdev a quack for claiming to cure ailments with alternative medicines and Yoga, but it amounts to “promoting enmity between communities” if a Hindu calls Jesus Christ a quack for claiming to cure ailments with his bare hands. Since the fundamental principle of Islam is that there is no God but Allah, it is socially acceptable for Muslims to address Gods/Goddesses as false Gods because these rules were made by Allah. Since the concept of false gods is mandated by the Quran, God’s own words, it can never be considered bigotry; it’s just the ultimate truth. However, it suddenly becomes unpalatable and communally insensitive if God forbid a Hindu says there are many Gods & Goddesses and Allah is not one of them, nor is Muhammad his messenger. So one can see double standards for freedom of speech vis-à-vis prophets and political leaders. Consequently politically correct culture is cultivated where it is deemed outrageous to even question Muhammad, Jesus or for that matter Sonia’s conduct. Suppressing individual liberties creates a race to the bottom. India being a secular state, I can understand that Hindu majority must be sensitive towards religious minorities but appeasement of minorities for vote bank purpose and thereby crushing freedom of expression to please minorities is not true secularism. True secularism means a Hindu must respect Islam & Christianity; a Muslim must respect Hinduism & Christianity; and a Christian must respect Hinduism & Islam. Unfortunately, no true secularism exists in India and freedom of expression is often curtailed to maintain so called ‘communal harmony’.

Unwritten societal agreements between communities vis-à-vis freedom of expression:

Free speech is a fundamental human right and a central tenet of democracy. Or is it? Reactions to the Danish cartoon controversy reveal strong divergences about what the right to free speech entails. When a major Danish daily in a country notorious for its fierce anti-Muslim public rhetoric decides to publish caricatures of the prophet Mohammed, with the stated purpose to demonstrate the Danish freedom of expression, it must either not have understood that the purpose would be perceived quite differently by Denmark’s already battered Muslims – or it must have had a different purpose. Whatever might have been the case, what was demonstrated was not the strength of Danish freedom of expression, but its weakness. The written laws that formally constitute freedom of expression in a democratic society are only the tip of the iceberg of unwritten social and cultural agreements between the citizens of that society on what they can express publicly in one context or another. When we claim the right to say anything wherever and whenever, we claim a right that cannot be put into practice, because if it were it would undo itself. Those who systematically exercised this right with the intention of creating misunderstanding and non-understanding would systematically chip away at the ground of those using it with the intention of being understood. Freedom of expression that can be used for the systematic production of non-understanding will eventually render itself useless. Thus, another unwritten condition for the existence of freedom of expression is the continuous practice of tuning and adjustment among actors in the public sphere on how public expression may be perceived and understood. What may a vicar preach in church? What may a tabloid print on its posters? What may a daily newspaper write about Muslims and Islam? Freedom of expression without common public spheres and common informal agreements will, as in Denmark, produce and intensify social and cultural conflicts. When citizens are unable to talk to with each other, or see no need to do so, they will increasingly talk against each other, and thereby will increasingly misunderstand and mistrust each other. Freedom of expression will thus be rendered useless for the kind of public discourse that is the oxygen of democracy. The main challenge to the freedom of expression is currently not external censorship or controls. No one can effectively prevent anyone from saying what they want to anyone anywhere in any context. The main challenge to the freedom of expression is the lack of informal controls and agreements, a result of the rapid division of our societies into separate public spheres that no longer communicate with each other, and that therefore cannot work out any informal agreements about how public expressions might or might not be understood. The increasing technical possibility to turn our backs to each other, to disconnect from the unwritten agreements of our societies, and to connect to any agreement in any society anywhere, is here to stay. The democratic necessity of a political vision that compels us not to do so has been instructively demonstrated by the Danish caricatures and their aftermath.

Does blasphemy merely exist to prevent exposure of worthlessness of religion by freedom of speech?

Who, after all, will be authorized to define “blasphemy”? Does anything that offends any religious sensibilities qualify as “blasphemy”? Will a critical mass of objections be seen as legitimate grounds for silencing critics of religious doctrine, scholarly inquiry into their origins, skeptical analysis of superstition and faith, iconoclasm, or mockery of religious claims, symbols, assertions, and shibboleths? If freedom of religion, conscience and speech are to mean anything, religious doctrines, symbols and assertions must be open to inquiry, criticism and, indeed, ridicule. Otherwise, the human thought process will be shut down by force of law in order to protect the sensibilities of the superstitious, and free inquiry into the most central issues facing humanity since the birth of the species will be effectively foreclosed. These calls reflect a paranoid worldview that is widespread among Muslims that their religion is under some kind of global assault. If so—because Islam is spreading faster than almost any other religion—it’s an odd kind of siege. In reality, Islam is thriving in its countries of origin and spreading quickly into the West. What this idea really bespeaks is a terror that most faiths contain at their core: that serious, skeptical, dispassionate evaluation of their specific claims will reveal them to be indefensible, hollow and easily debunked. Embracing modernity requires tolerating such fears without demanding the enforcement of religious orthodoxy, even of an ecumenical variety, through the power of the state.

I quote myself from my own article ‘The science of religion’ published in this website in 2011:

The Bible, the Quran or any other religious scripture will at best give the principles and not the prescription for their adherents in a particular place. It is up to the people of a particular milieu to apply these principles to their present circumstances and time. But instead, people are coerced to apply these principles as if they are still living in previous millennium under pretext that God’s words cannot change and any change would be blasphemy. The tendency to turn human judgments into divine commands makes religion one of the most dangerous forces in the world. If God indeed exists and created this universe, then, there cannot be a Hindu god, a Muslim god or a Christian god and therefore all religions must indeed lead to the same goal and the apparent contradiction seen in various phrases of the same sacred text or between different sacred texts would mean that these religious texts were created by humans and not the words of God, because by definition, God is above contradiction. So if a religious person deviated from the words in a sacred text, it would not be a blasphemy as long as he respects the God because these words were human indeed and therefore not infallible.

Final arguments on blasphemy vis-à-vis freedom of expression:

Like everything in the world, religion is something specific; it has a nature. And part of its nature is that it demands absolute devotion to God and unconditional obedience to His will. What then of the right to free speech? Does religion provide a viable foundation for freedom of expression? For instance, are books or cartoons mocking the Creator in order? The question is absurd. Thanks to the Renaissance and the Enlightenment, religionists in the West today do not take religion as seriously as did their forebears; they do not call for blasphemers to be stoned to death or burned at the stake. But western religionists today do call for censorship—of television, radio, the Internet, video games, and so on—and they are making headway in their efforts. On the premises of religion, there is no right to free speech; there is only the “right” to say what is permitted by “God.” This conclusion follows logically not only from the content of religion, but also, and more fundamentally, from its method—that is, from the means by which its content is “known” to be “true.” Faith is the acceptance of ideas in the absence of evidence and in defiance of logic. In biblical terms, it is “the assurance of things hoped for, the conviction of things not seen.” Faith is the only way to “know” of God’s existence, laws, or desires, because there is no evidence for them. There is no science or logic to religion. God is purported to be beyond nature (i.e., “supernatural”) and thus beyond rational comprehension. The moment we utter the name of God we leave the level of scientific thinking and enter the realm of the ineffable. Such a step is one which we cannot take scientifically, since it transcends the boundaries of all that is given. . . . Every religious act and judgment involves the acceptance of the ineffable, the acknowledgement of the inconceivable. . . . The ineffable is that aspect of reality which by its very nature lies beyond our comprehension, and is acknowledged by the mind to be beyond the scope of the mind. To know the truths of religion, one must give up one’s mind, accept the ineffable, and acknowledge the inconceivable. In a word, one must reject reason. There was a time when westerners were unable to criticize religion or “offend God” for fear of punishment or death; it is called the Dark Ages. To lose our freedom to speak our minds would be the end of peaceful civilization and the beginning of a new, darker Dark Age—one in which the Church would have at its disposal highly advanced eavesdropping technology. The tenets of religion are incompatible with the right to free speech. The only way to mix the two in one’s mind is to take neither of them seriously. But not taking religion seriously does not change what religion is or says or means. And not taking freedom of speech seriously does not alter the fact that it is a fundamental requirement of human life. The right to free speech is the recognition of the fact that in order for people to live together peacefully, they must be free to express their thoughts—regardless of what others think, feel, or “just believe.” If I have to choose between religion and freedom of expression, I will choose freedom of expression because if I fail to challenge the growing threat to freedom of speech at the most fundamental level, I will lose the freedom to express my ideas—which means, I will lose my ability to live as civilized human being and also lose my creativity. The progression of human civilization depends on expression of new ideas (however unpopular) and this can be achieved only by freedom of expression. The difference between religion and civilization is freedom of expression. In order to have a developed civilization, you need growth of freedom of expression. In order to have growth of religion, you need to curtail freedom of expression. Freedom of expression leads to free debates and free debates lead to reason. You need reason for growth of civilization but reason will challenge religion as religion is based on dogma & faith, both survive in the absence of reason. So curtailment of freedom of expression is a pre-requisite for growth of religion and blasphemy is a weapon to destroy freedom of expression to crush reason.

Freedom of expression and public order:

Indian constitution stipulates maintenance of public order as one of the grounds of free speech restrictions. Public order is something more than ordinary maintenance of law and order. ‘Public order’ is synonymous with public peace, safety and tranquility. The test for determining whether an act affects law and order or public order is to see whether the act leads to the disturbances of the current of life of the community so as to amount to a disturbance of the public order or whether it affects merely an individual being the tranquility of the society undisturbed. Anything that disturbs public tranquility or public peace disturbs public order. Thus communal disturbances and strikes promoted with the sole object of causing unrest among workmen are offences against public order. Public order thus implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Public order also includes public safety. Thus creating internal disorder or rebellion would affect public order and public safety. But mere criticism of government does not necessarily disturb public order. In its external aspect ‘public safety’ means protection of the country from foreign aggression. Under public order the State would be entitled to prevent propaganda for a state of war with India. The words ‘in the interest of public order’ includes not only such utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a law punishing utterances made with the deliberate intention to hurt the religious feelings of any class of persons is promulgated because it imposes a restriction on the right of free speech in the interest of public order since such speech or writing has the tendency to create public disorder even if in some case those activities may not actually lead to a breach of peace. But there must be reasonable and proper nexus or relationship between the restrictions and the achievements of public order.

Freedom of expression has often been limited in the name of “public order”. In Britain, as I document elsewhere on this article, provisions of the Public Order Act have been used to curb forms of expression that should arguably be allowed. The 1986 version of this act criminalizes threatening, abusive or insulting words or behavior, or disorderly behavior “within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”. Just “likely to be”; the intention to cause such distress does not need to proved. Even if a prosecution does not result, police invoke these broadly worded powers to make arrests, or threaten to do so. And that’s just in Britain. Elsewhere, “public order” can mean whatever the current power holders want it to mean. Morality, sometimes called public morality or morals, is even more difficult to pin down. Norms on things like obscenity, dress or sexual conduct vary enormously, with both time and place. They are not even the same across one country at the same time. In relation to pornography, the US Supreme Court has consistently emphasized that the average person must find the material offensive under “contemporary community standards”. But it further insists that this depends on the community in question. What may be tame in the Castro district of San Francisco is outrageous in a religious, conservative small town in Iowa. The court therefore suggests that individual states should make these calls. Yet the effect of the internet is to knock holes through all those traditional frontiers between communities, generations and states. So who decides? On what basis?

Freedom of expression and terrorism:

In several leading western democracies, the response to the terrorist attacks of 11 September 2001, and the subsequent bombings of Madrid and London, saw curbs to freedom of expression in the name of national security and public safety. In the US, these were informed by the idea – or metaphor – of the “war on terror”. “War” or “national emergency” has, in many times and places, been held to justify restrictions that would not be acceptable in peacetime. But who decides what a war, what an emergency is? Swaziland has had a “state of emergency” for more than 38 years. Egypt had a “state of emergency” from 1981 until 2011. It was partially, but by no means completely lifted by the country’s military rulers in early 2012.

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Counter-terror laws potentially criminalize free expression:

The government has a duty to protect people from terrorist threats but laws introduced in recent years to prevent terrorism may be interpreted in ways which restrict legitimate forms of protest, political expression and other activities such as journalism and photography.

Defamation, slander and libel:

Defamation—also called calumny, vilification, traducement, slander (for transitory statements), and libel (for written, broadcast, or otherwise published words)—is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, religion, or nation a negative or inferior image. This can be also any disparaging statement made by one person about another, which is communicated or published, whether true or false, depending on legal state. In Common Law it is usually a requirement that this claim be false and that the publication is communicated to someone other than the person defamed (the claimant). The fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published. If the offending material is published in some fleeting form, as by spoken words or sounds, sign language, gestures and the like, then this is slander. Libel is defined as defamation by written or printed words, pictures, or in any form other than by spoken words or gestures. Defamation laws may come into tension with freedom of speech, leading to censorship or chilling effects where publishers fear lawsuits. Article 10 of the European Convention on Human Rights permits restrictions on freedom of speech when necessary to protect the reputation or rights of others. Jurisdictions resolve this tension in different ways, in particular in determining where the burden of proof lies when unfounded allegations are made. The power of the internet to disseminate comment, which may include malicious comment, has brought a new focus to the issue.

Why defamation:

One of the most important aspect of any individual is his/her good reputation – something crucial to their ability to function in society. Some philosophers have argued in the past that destroying a person’s reputation is worse than theft, because whilst we can usually re-acquire material goods with relative ease, a ruined reputation is often irreparable, and the damage done to the wrongdoer’s reputation is often or even usually out of proportion to the wrong done.

Absolute freedom to do and say as one pleases cannot exist in society. Sooner or later, society exerts pressure on individuals to curtail their freedoms for the good of all. Indeed, one can say that civilization, particularly western civilization, with its holding the individual in high value, is a study in how individual freedoms are balanced against the needs of the group. The tradeoffs protecting the individual as much as possible from harm by others either intentionally or unintentionally, but negligently committed, obviously requires the individual to refrain from engaging in behavior that causes harm to others. Words, in addition to sticks and stones, can hurt you, particularly where you are dependent upon others for so much in society. Unless one elects to become a hermit and reject all of the benefits of society, one must necessarily surrender some freedom, and assume responsibility for one’s actions. The common law of defamation, tempered by the First Amendment, is an on-going process of balancing the rights of the individual, on the one hand, with the needs of society, on the other. As with other areas of the law, the law of defamation will continue to evolve and adjust to changing social and technological realities.

How to prove libel:

There are several ways a person must go about proving that libel has taken place. For example, in the United States, first, the person must prove that the statement was false. Second, the person must prove that the statement caused harm. Third, the person must prove that the statement was made without adequate research into the truthfulness of the statement.

Criminal defamation:

Many nations have criminal penalties for defamation in some situations, and different conditions for determining whether an offense has occurred. There is a broader consensus against laws that criminalize defamation. Human rights organizations, and other organizations such as the Council of Europe and Organization for Security and Co-operation in Europe, have campaigned against strict defamation laws that criminalize defamation. The European Court of Human Rights has placed restrictions on criminal libel laws because of the freedom of expression provisions of the European Convention on Human Rights. One notable case was Lingens v. Austria (1986).The United Nations Commission on Human Rights ruled in 2012 that the criminalization of libel violates Freedom of expression and is inconsistent with Article 19 of the International Covenant on Civil and Political Rights.

Defenses against defamation:

Even if a statement is defamatory, there are circumstances in which such statements are permissible in law. For example, truth: In many legal systems, adverse public statements about legal citizens presented as fact must be proven false to be defamatory, truth cannot be defamation. Another important aspect of defamation is the difference between fact and opinion. Statements made as “facts” are frequently actionable defamation. Statements of opinion or pure opinion are not actionable. In some systems, however, notably the Philippines, truth alone is not a defense. Other defenses include privilege, statement in good faith etc.

Anything that injures a person’s reputation can be defamatory. If a comment brings a person into contempt, disrepute or ridicule, it is likely to be defamatory.

1. You tell your friends that the boss is unfair. That’s slander of the boss.

2. You write a letter to the newspaper saying a politician is corrupt. That’s libel of the politician, even if it’s not published.

3. You say on television that a building was badly designed. That’s libel due to the imputation that the architect is professionally incompetent, even if you didn’t mention any names.

4. You sell a book that contains defamatory material. That’s spreading of defamation.

The fact is, nearly everyone makes defamatory statements almost every day. Only very rarely does someone use the law of defamation against such statements.

Avoid defamation:

Writers can learn simple steps to avoid triggering defamation threats and actions. The most important rule is to state the facts, not the conclusion. Let readers draw their own conclusions.

1. Instead of saying “The politician is corrupt,” it is safer to say “The politician failed to reply to my letter” or “The politician received a payment of $100,000 from the developer.”

2. Instead of saying “The chemical is hazardous,” it is safer to say “The chemical in sufficient quantities can cause nerve damage.”

3. Instead of saying, “There has been a cover-up,” it is safer to say “The police never finalized their inquiry and the file has remained dormant for nine years.”

Media power & defamation:

One of the best responses to defamatory comments is a careful rebuttal. If people who make defamatory comments are shown to have gotten their facts wrong, they will lose credibility. But this only works if people have roughly the same capacity to broadcast their views. Only a few people own or manage a newspaper or television station. Therefore it is difficult to rebut prominent defamatory statements made in the mass media. Free speech is not much use in the face of media power. The media, especially television news channels, are in a rat race today to get maximum eyeballs. In this pursuit, they sensationalize the information and do not verify their sources, thus leaving an impact on the credibility of the institution of press. Unfortunately, news content is lost in the business of breaking news. There are cases where people’s reputations have been destroyed by media attacks. Defamation law doesn’t provide a satisfactory remedy. Apologies are usually too late and too little to restore reputation, and monetary pay-outs do little for reputation. Most media organizations avoid making retractions. Sometimes they will defend a defamation case and pay out lots of money rather than openly admit being wrong. Media owners have resisted law reforms that would require retractions of equal prominence to defamatory stories. I have been a victim of defamation by Indian newspapers who published rubbish against me in relation to problems pertaining to my personal life and I could do nothing.

Careful rebuttal on internet:

Read my comments on facebook. There is no privacy setting. Anybody can post his/her view below my view. So internet does give a space for rebuttal as opposed to print/electronic media. This is the greatest advantage of social media over traditional media. Freedom of expression is one way traffic in traditional media (press/TV/radio) but on internet, freedom of expression is two way traffic.

Harms of defamation laws:

Defamation law doesn’t work well to protect reputations. It prevents the dialogue and debate necessary to seek the truth. More speech and more writing is the answer to the problem rather than defamation law, which discourages speech and writing and suppresses even information that probably wouldn’t be found defamatory if it went to court. Published statements — including libelous ones — are open, available to be criticized and refuted. The worst part of defamation law is its chilling effect on free speech. The most effective penalty for telling lies and untruths is loss of credibility. Systems of communication should be set up so that people take responsibility for their statements, have the opportunity to make corrections and apologies, and lose credibility if they are repeatedly exposed as untrustworthy. Defamation law, with its reliance on complex and costly court actions for a tiny fraction of cases, doesn’t work. The law of defamation is supposed to protect people’s reputations from unfair attack. In practice its main effect is to hinder free speech and protect powerful people from scrutiny. In practice, the structure of the court system and the media serve the powerful while doing little to protect the reputation of ordinary people. They undermine the open dialogue needed in a democracy. Defamation actions and threats to sue for defamation are often used to try to silence those who criticize people with money and power.

Freedom of speech and sycophancy:

The Greek word for sycophancy is sykophantes. It suggests someone who brings all kinds of charges and proves none. It is the practice of sycophants to bring charges against those who have done no wrong. For these they would gain most profit. In this context the word entails false accusation, malicious prosecution, and abuse of legal process for mischievous or fraudulent purpose.

Sycophancy can be understood in three dimensions:

1. Obsequious flattery; servility
2. False accusation; calumniation; tale bearing
3. The Character or characteristics of a sycophant

A nation of sheep is bred by sycophants. The sycophants are more a danger to our society because they create failure while the critics point the way to human progress and understanding. Critics not sycophants will lead us away from dead ends to the reality of the nation we desperately need. Harry Truman who said: “I want people around me who will tell me the truth, who will tell me the truth as they see it. You cannot operate and manager effectively if you have people around you on the pedestal and tell you everything you do is right because that in practice it can’t be possible”. In India, freedom of expression means flattery and sycophancy. I remember one Indian politician said, “India is Indira and Indira is India”. He was eulogizing the late Indian PM Indira Gandhi. No wonder the largest democracy has miles to go before it achieves true freedom of expression. In the 20th Century Noam Chomsky states that: “If you believe in freedom of speech, you believe in freedom of speech for views you don’t like. Stalin and Hitler, for example, were dictators in favor of freedom of speech for views they liked only. If you’re in favor of freedom of speech, that means you’re in favor of freedom of speech precisely for views you despise.”

Freedom of speech, comedy and humor:

Comic works characteristically expose pomposity and smug self-deception, and undermine dull and inhuman mores. By toppling those authorities comedy encourages us to understand what is masked by rigorous, somber approaches to human behavior. The problem is the virtual certainty that unrestrained comedy will give specific offence and produce outraged reaction from individuals and groups sooner or later. Some comedians will claim that there is both a right and a necessity to offend. Rowan Atkinson in commenting on the schedule in the UK Serious Organized Crime and Police Bill of 2004 that sought to outlaw speech, publication or performance that would incite religious or racial hatred, claimed that ‘the right to offend is far more important than any right not to be offended’. (Left and Happold, 2004) Roy ‘Chubby’ Brown, a performer whose material is seldom if ever broadcast, but whose live performances are a tumultuous rally of powerful feelings that cannot usually be given voice, sings a song (not a very good song, but a significant one) called The Right to Offend. Andy Medhurst says of him that his importance is that ‘He gives a voice to people who don’t have one. He sticks up two fingers at the liberal-progressive consensus, and stands up for the white, predominantly northern working class.’ (Arnot, 2007) The Italian comedian Sabina Guzzanti, threatened with prosecution in 2008 for insulting the Pope, argued that ‘I believe that in a democracy there is no right not to be offended. I think that anyone ought to be free to say whatever he or she likes at any moment.’ (Hooper, 2008).

Comedy is just as much a concern of librarians as is the scientific literature. Even where comedy is the source of passionate dispute, as was the case with the Danish cartoons, the librarian still has a basic professional duty to assure that legally published material is available to those who might wish to consult it. Of course, there would be a big difference between keeping a copy of an offending document on file for free consultation and displaying it publicly on the walls of the library, or on its web pages. Somewhere between the two, the librarian can strike a decent balance without either abandoning the principle of free access to information or gratuitously giving offence to either an individual or a group within the community.

The apparent suicide of the London nurse who was on the receiving end of the joke played by two Australian DJs is deeply sad. One can only feel very sorry for the family. What is remarkable, however, is the backlash against the two idiotic jokers. Certainly, the joke was silly and possibly tasteless. But was it really sufficient in and of itself to provoke a suicide? Still, the backlash is an interesting sign that the world is surely becoming an odd place. The internet and reality TV have provided tremendous opportunities for ill-mannered utterances and the glorification of the crude and the trivial. Society seems to be moving throughout the world towards a position where freedom of speech is becoming highly tenuous because such freedom is predicated on the right to offend, to disagree, to be different — the three mortal sins of the public square. When one reads that the authorities apparently contemplated starting an investigation to establish whether the Australian DJs should face legal action, one wonders exactly what law they could be deemed to have broken. Making a funny phone call? Speaking in cod English accents to fool the listener? Being silly radio DJs? Behaving insensitively? Free speech is under attack on all fronts and incidents like the hoax call to the hospital in London can be leveraged to set bad legal precedents and even pass bad laws. They certainly give insight into the gravitational pull of wider society on such matters as freedom of speech. When the comedians are under fire, it can only be a matter of time before they come for the religious ministers – the funny ones first.

New technologies such as the Internet (please read my article on internet censorship on this website):

It offer unprecedented opportunities to promote freedom of expression and information. Action by the authorities to limit the spread of harmful or illegal content through the use of these technologies should be carefully designed to ensure that any measures taken do not inhibit the enormous positive potential of these technologies. The application of rules designed for other media, such as the print or broadcast sectors, may not be appropriate for the internet. Obviously, limitations on such technologies will be a fine balancing act between defending the freedom of expression and information and ensuring protection from abuses e.g. spread of child pornography.

Internet speech:

In a 9-0 decision, the American Supreme Court extended the full protection of the First Amendment to the Internet in Reno v. ACLU, a decision which struck down portions of the 1996 Communications Decency Act, a law that prohibited “indecent” online communication (that is, non-obscene material protected by the First Amendment). The court’s decision extended the same Constitutional protections given to books, magazines, films, and spoken expression to materials published on the Internet. Congress tried a second time to regulate the content of the Internet with the Child Online Protection Act (COPA). The Court again ruled that any limitations on the internet were unconstitutional in American Civil Liberties Union v. Ashcroft (2002).

Social media and freedom of expression:

Social media and social networks are a fantastic way to get people to express themselves. Whether it be via a Facebook status, writing on walls, Twitter updates, photos you share, these are all extensions of you and your personality. They help portray your interests, your views and help show people who you are. They offer a platform for you to be yourself, to be creative, to be who you want to be and most importantly, have an audience for all of this. Unlike in the real world, where social etiquette and manners can sometimes seem restrictive and limiting, people feel they have a greater sense of freedom of expression and/or of speech when using online networks. Of course, content is monitored and can be removed, but with millions of users on sites such as Facebook and Twitter, even YouTube, not every single status, photo or comment can be watched, evaluated and completely controlled. This has arguable lead to a rise in expressions, feelings and ideas from people who may otherwise find it hard to portray themselves how they would like in person and face to face with others. Essentially, social media has changed the way we are able to communicate and behave, not only in groups and society, but with each other. Social media is a gift. It can be used to make or break a business. It can also make or break a person. The truth is, the moral problems about freedom and expression in real life can now be applied to the virtual world. Whether we like it or not, or even agree with it, it’s liberal enough to be good for people to express themselves and find themselves. It’s also liberal enough to provide a soap box for less appropriate beliefs.

Positive aspects of communication via social media on internet:

1. For people who find it difficult to interact with others in person, the Internet gives them a great way of communicating and not having to feel self conscious or nervous. Everyone has a right to say what they think and feel and so this is a good way for those less confident to make their stand. It provides a level playing field if you like. The power of the re-tweet or Like buttons should not be scowled at. When someone feels happy and comfortable, they can express themselves more eloquently and possibly even gain themselves a wide audience which they may otherwise have found difficult to achieve. Why stand in front of hundreds of people and talk if you find that hard, when you can sit at home behind a screen and write about your topics and still get the audience? This means that the story or a view of a shy individual can reach a larger audience than it might if they were stood up in front of audience.

2. Whether it is personal or business, such as marketing, you can get your news and views out there. Arguably, it is just as, or even more effective, than a conference room.

3. Social media can help you be yourself and invoke confidence to those who need it. This is because you do not have to face personal and intimate criticism or nerves as you do not have to see anyone who may be critical about you. Written comments can inspire healthy debate as you have time to compose yourself, whereas, people criticizing you in person can be difficult, cause you to panic and cause you to be defensive. Everyone deserves to have confidence in themselves and their beliefs, and networking can help inspire and educate people in this.

Negative aspects of communication via social media on internet:

1. People with more fundamental or perhaps morally questionable views than an average can cause stirs and discomfort. Now, people have the right to believe in what they want but when they express these more extreme views, or attack other people (sexism, racism for example), that offense can be taken and problems begin. For Example, the man behind the recent attacks in Norway used Twitter to send out his views on the world before he carried out the attacks. Maybe more regulation is needed to help police more extreme views.

2. On a personal aspect, social media can be used for internet bullying and victimizing. It gives people the opportunity to upset and gossip 24/7. Online bullying is a serious problem and should not be over looked or dismissed. The victims of bullying at school for example, like to go home and escape, not sign into their computer to be faced with more endless hurtful words.

Private ownership of free speech on social media:

The truth is, what your freedom of speech is and where it applies is actually very simple, but our understanding of it has been distorted, mostly because people use “free speech” as a weapon where it doesn’t apply, and often as a shield to hide behind when they’re being criticized. Even so, free speech has never been a more valuable right, especially on the internet, where governments, companies, and individuals all try to control their image and what people say about them. Today, most of us turn to the internet because the tools are free and available: Twitter, Facebook, Reddit, newspapers, blogs with comment sections, forums, they all offer one-click methods for us to speak our minds. However, when you leave a comment on a company’s Facebook page, post to a Reddit thread, or tweet your grievances, you’re speaking in privately owned spaces. This means you should have no expectation that your speech is somehow protected beyond that service’s terms of use. That said, when it comes to freedom of speech on the internet, there are two truths that are almost universal:

1. Most spaces on the internet are privately owned, and have no obligation to allow you to speak freely in their space. Whether its Facebook removing content that violates its own terms of service, a blog owner deleting a comment they find offensive, or a big company deleting user posts from its Facebook page, your speech may be censored, but you have no first amendment right to free speech in those places.

2. Most companies know it’s in their own best interest to allow you to speak freely on their platforms. When you hear any company say “we support/stand for freedom of speech,” what they really mean is that by honoring your freedom of speech, they know they can successfully build a community, attract users, attract views, attract advertisers, and make money. They may truly value free speech, don’t get me wrong, and most companies know that success means taking the bad with the good, but that doesn’t make it your right to freedom of expression. They just know it’s in their best interest to say they value it, and act accordingly. My facebook comments were censored by American & Indian media. Why? Who are they to judge what I say? Why didn’t they take legal actions against me? Why facebook owners were dancing on the tunes of media? Both facebook and media must answer these questions.

Remember above paragraph when you speak on the internet. While Reddit or Twitter or facebook may feel like the new “public square,” they aren’t. This means your speech is not constitutionally protected unless specified in the terms of use for that service, and those can change at the whim of the service or platform provider. Plus, governments know that they can lean on companies to change their rules (see SOPA, PIPA, and ACTA) and restrict private speech as well (see Twitter working with local governments to censor objectionable material,) regardless of whether they can do it in public. Plus, social media can dance as per tunes of traditional media—my comments are a classical example. All isn’t lost though—some speech is protected, and there are places where you can say what you choose.

Free speech, social media and tragedy:

On Friday December 14, 2012; a gunman opened fire at a suburban elementary school in Connecticut killing at least 26 people including 20 children between the ages of 6 and 7 in the one of the worst mass shootings in US history. In the light of that Connecticut State Police spokesman Lt. J. Paul Vance commented about “misinformation.” In a news conference Dec. 16, he said that anyone who posts misleading information online on social media sites about the Newtown case would be “investigated, statewide and federally, and prosecution will take place when people perpetrating this information are identified.” But what kind of precedent does it set if the government gets to determine what is “misinformation”? For starters, government is frequently the source of lies and obfuscation at every level — and not just in places like Russia, China and North Korea. Think of the official response to the terrorist attack on the U.S. consulate in Benghazi that killed Libyan Ambassador Christopher Stevens and three others in September. According to the Obama administration, an anti-Muslim video incited the violence, which officials knew immediately was not the case. We already know what happened after Lt. Vance spoke. Social media website Facebook suspended accounts of those whose versions of the Newtown massacre did not match the government one, officially because users violated company policies but more likely to avert criminal prosecution. Facebook is a public company and can set its own user rules, but its actions are a reminder of how little it takes to diminish free speech, which is constantly under threat. Lt. Vance, no doubt, through his remarks wanted to protect the families of the victims from emotional harm and prevent new violence from spinning off of the mass shooting at Sandy Hook Elementary School. But for him to claim that the government alone is in charge of information on Newtown and for a major corporation like Facebook to capitulate show how easy it is for government to control speech. Those targeted could sue, but how many people have the money or time to defend themselves appropriately? Our system depends on those in power respecting the rights of the governed. When that breaks down, it is not only the people targeted who suffer, but all of us in the form of more self-censorship by private individuals and businesses. Freedom of speech must be extended even as we mourn.

Digital rights:

The term digital rights describe the human rights that allow individuals to access, use, create, and publish digital media or to access and use computers, other electronic devices, or communications networks. The term is particularly related to the protection and realization of existing rights, such as the right to privacy or freedom of expression, in the context of new digital technologies, especially the Internet. Internet access is recognized as a right by the laws of several countries.

Free Speech in the age of YouTube: the age of private speech controller:

Companies are usually accountable to no one but their shareholders. Internet companies are a different breed. Because they traffic in speech — rather than, say, corn syrup or warplanes — they make decisions every day about what kind of expression is allowed where. And occasionally they come under pressure to explain how they decide, on whose laws and values they rely, and how they distinguish between toxic speech that must be taken down and that which can remain. The storm over an incendiary anti-Islamic video posted on YouTube has stirred fresh debate on these issues. Google, which owns YouTube, restricted access to the video in Egypt and Libya, after the killing of a United States ambassador and three other Americans. Then, it pulled the plug on the video in five other countries, where the content violated local laws. Some countries blocked YouTube altogether, though that didn’t stop the bloodshed: in Pakistan, where elections are to be scheduled soon, riots left a death toll of 19. The company pointed to its internal edicts to explain why it rebuffed calls to take down the video altogether. It did not meet its definition of hate speech, YouTube said, and so it allowed the video to stay up on the Web. It didn’t say very much more. That explanation revealed not only the challenges that confront companies like Google but also how opaque they can be in explaining their verdicts on what can be said on their platforms. Google, Facebook and Twitter receive hundreds of thousands of complaints about content every week. We are just awakening to the need for some scrutiny or oversight or public attention to the decisions of the most powerful private speech controllers. Google was right to selectively restrict access to the crude anti-Islam video in light of the extraordinary violence that broke out. But the public deserved to know more about how private firms made those decisions in the first place, every day, all over the world. After all, they are settling the case of law, just as courts do in sovereign countries. The European Court of Human Rights in Strasbourg ruled that “restriction of Internet access without a strict legal framework regulating the scope of the ban and affording the guarantee of judicial review to prevent possible abuses amounts to a violation of freedom of expression.”

Children’s Rights and Freedom of Expression:

Children discover, evolve and blossom in the freedom of expression. The most important kind of freedom parents need to give their child is the freedom of expression. It is this freedom to express their feelings and thoughts that will give them the confidence to interact with the world and build relationships in life. May it be joy or anger, love or hate- let your child express both positive and negative emotions.

The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice. (Convention on the Rights of the Child, Art. 13) Freedom of expression is rarely part of children’s rights advocacy – at least as a stand-alone issue – yet it is critical for the realization of all children’s right. In fact, this right is a good marker for gauging perceptions of children in any society, because the extent to which children are able to express their opinions and feelings can show how much they are recognized as rights holders. And if children are restricted from holding or expressing opinions, or from receiving information through the media (subject to certain, limited, exceptions), how can they describe the ways in which their rights are being respected, fulfilled and respected, or, on the other hand, infringed? There are situations in which children’s right to freedom of expression may be restricted. For example, there is international concern about children’s access to harmful material on the internet, or to websites through which children may be placed in danger.

How freedom of expression improves your child:

Expressing enhances communication skills:

Encourage and respect your child’s decisions, his choice, his opinions, his viewpoint so that he talks without any reservations. This way he’ll develop confidence to express in front of others, which may be in a debate or in a group of friends.

Expressing leads to better results:

Questions answer lots of doubts. So if your child questions a decision you have made, don’t take it as denial of your authority. Listen to the alternative he gives, explain him logically and reach the best solution.

Expressing improves relationships:

Freedom will encourage your child to express his real emotions. This space will give your child the courage to tell you what has hurt him, thus giving you an opportunity to clear misunderstandings and strengthen your bond with him.

Expressing releases tension:

Don’t curb your child’s aggressiveness, otherwise he’ll either become more aggressive or subdued or nurse feelings of hatred. Do tell your child that what language is unacceptable and anger doesn’t have to be expressed in action.

Expressing builds self-esteem:

With freedom to express, the child feels important, valued and loved. It gives him the satisfaction that he is respected and understood. This will enhance not only his self-confidence but also increase the respect he has for you.

Which is more important for children: freedom of expression or formal correctness?

This is not an “either-or” question. Children should be free to express themselves but at the same time be taught how to do it politely and without aggression, without offending others. You can say whatever you want, what matters is how you say it.

Freedom of expression in school:

Educating for citizenship includes teaching students about the value of free speech in a democratic society. In a country that treasures — indeed depends on — freedom of expression, citizens will sometimes hear offensive, even hateful, speech. The fact that some speech deeply upsets, offends or angers some citizens is not a justification for banning or limiting the speech. Outside the school context, it is settled law that “absent … narrow circumstances … the burden normally falls upon the viewer to avoid further bombardment of his sensibilities by averting his eyes.” The extent to which this principle applies in the school context is somewhat unsettled. In general, a listener is free to avoid hateful speech, to turn away, and, of course, to respond and to challenge it. But listeners may not insist that government silence the speech. While government cannot silence such speech, it is, as a general matter, free to condemn it. These principles need to be applied with some modification in schools, because students are at different ages and stages of development, and are required to attend classes and other activities and often cannot easily turn away. The skill of listening to speech with which one profoundly disagrees nevertheless remains an essential element of preparation for democratic citizenship. Teachers and school officials, because of the special places of power and influence they occupy, need to exercise special care in responding to controversial speech so that they do not either coerce or silence dissenters. Neither can they abdicate their responsibility to protect other students, or to convey the school’s own views.

Child Pornography and Freedom of Expression:

The European Court considered for the first time the vexed question of the criminalization of child pornography and its compatibility with freedom of expression. The issue before the Court was whether the conviction of an artist for including child pornography in an art exhibition violated the right to freedom of expression under Article 10 of the European Convention. The Court stated that artists exercising freedom of expression are subject to duties and responsibilities, although the Court will look at the artistic work in question and the context of its exhibition. The Court accepted that the criminalization of child pornography was based on the interests of protecting children from sexual abuse, their privacy rights, and also moral considerations. The Court stressed that the freedom of expression must be adequately balanced with the countervailing interests as per social needs. The Court concluded that the interference with freedom of expression was proportionate to the legitimate aim pursued. The Supreme Court of the United States considers child pornography involving actual minors as unprotected speech outside the protection of the First Amendment.

Freedom of expression and artistry:

Art, Literature & Entertainment media are the main sources of a society’s reflection. A person with an extra ordinary blend of talent, aptitude, attitude and coverage usually becomes a celebrity ‘Artist’ as a painter, writer or performer. When an artist makes a public display of his artistic talent or put forth a literary work as an expression of insight, it should be a creative venture for a productive proposition. Every creative person has a moral, social and legal responsibility towards his artistic work and its absorbers. But when artists step out of the fundamentally permissible limits to freedom of speech & expression, breaking the social barriers, even they are at the disposal of criticism, censorship and comments. In one’s own personal space and privacy, what-so-ever an artist narrates or depicts, it is his/her pleasure and freedom. But when it comes to exhibition of work to public, every artist needs to be cautious about their expressions and exposures because consciousness of the society serves as the watch guard. From the light of controversies put forth by renowned artists, let us have a quick thought over the margin of the Freedom of Expression of celebrities in a multicultural society. Should an artist, whomsoever he/she might be, have the sense of social responsibility not to provoke the religious sentiments or to disrupt the communal harmony through his artistic creations, exposed to public? People burn books, defile statues, ransack cinema halls, organise strikes or resort to other forms of violent protest to express their disagreement over the artistic freedom of someone or the other. This social disorder forces Governments, irrespective of their hue and colour, to proscribe books, ban movies and censor the flow of ideas. The situation is so bad that at times even the intelligentsia resorts to self-censorship. The ongoing controversy over Salman Rushdie (and also the late MF Husain) should enable us, especially the opinion-makers, to reflect on the larger issue. True, there is a lot of politics, double standards and moving of goal posts. Some seek cheap publicity through such controversies. But whether one agrees with them or not, a section of the population feels offended by artistic work. Perhaps they never read them or understood them incorrectly; they may even be completely wrong in their assessment. Address their concerns, if possible enlighten them. But don’t condemn them by calling them publicity seekers or backward in mentality or hypocrites or fundamentalists. The issue is neither their conservatism nor anti-modernity, it is cultural specificity; each one feels offended by some yet at the same time embraces the other. How do you square the circle? Between the two extreme views (one of absolute and unfettered freedom and the other of absolute restriction based on censorship and controls), we have to find a line which has balance of convenience, even if not the ideal, so that we can ensure maximum social harmony with minimum interference in artistic freedom. It is towards this end that I suggested self-restraint as the method, wherein the artist himself acts as any prudent artist would act in the given situation. I am sure there are thousands of ways to express one’s creativity and ideas without hurting other normal people’s sentiments.

Censorship of art:

Whether in ancient Rome or in the modern United States, censorship has existed in every society at every age. Art that challenges the strongly held beliefs of any society – whether those be political, ideological, religious, or otherwise – causes offense and creates pressure for censorship. At the same time, almost every society has found value in the existence of visual art. What limitations on censorship should be made for the sake of artist value, or more broadly freedom of expression? “Artistic merit” and “offensiveness” are nebulous concepts lacking in objectivity, shifting with the tastes of society at any given time. Yet the value of art to society, both positive and negative, cannot be doubted. In modern American society, with its heterogeneous tastes, the tension between the two concepts becomes especially vivid. Given the divergent and unpredictable tastes of society, the fact that destroying a work permanently removes it from future generations, and considering censorship’s dreadful history, the decision to censor is one appropriately made with caution. But neither can it be said that a work should never be censored, for art can and does cause offense, and even a society as diverse as America will find consensus at the extremes. Rather, striking the appropriate balance calls ultimately for good judgment. In making this judgment, what is the appropriate role of the law and the courts? Those who think of the law as purely objective will desire the courts to either forbid all governmental interference with art, or to themselves abstain from interfering with political decisions on art. But these approaches place legal purity above reality, and make the impossible attempt to divorce law from its social context. The problem of relativism that inheres in the balance between artistic merit and offensiveness in fact exists in every legal controversy. The necessary public respect for our courts is unlikely to be undermined by a cautious display of good judgment, even if the judgment is inherently subjective and involves art causing offense to elements of our society.

Freedom of expression and creativity:

Creativity is the ability to think beyond the obvious. Many governments restrict the artistic works of the creative minds. Creativity originates in a free mind. Hence, creative artists must be given the freedom to express their ideas without any restrictions. Time and again, creative artists like Michaelangelo, Picasso, M.F. Hussein, Shakespeare etc. have made artistic works which gave a social message. Right from sculptures to paintings, books to drama and movies, all these artistic works have reflected the contemporary social issues of different eras. Creative works help to create social awareness by giving a social message. Nonetheless, innovative works makes people realize things in a peaceful way and peep into their own conscience. It helps to raise issues and criticize the wrong doings of the governments. For instance, Bangladeshi writer Taslima Nasrin was accused of acting against the government, just because she raised a social issue. This type of approach is a hurdle in promoting creative minds. In addition, creativity also gives aesthetic charm. Unfortunately, many governments restrict the artists. Frank Zappa once said, “Mind is like a parachute, it doesn’t work if it’s not open.” Restrictions would just curb the innovative ideas of the artists and would limit their brains. Like the media, artists should also be given the freedom to express their ideas freely. However, artists should also know not to hurt the sentiments of the people. Many artists have been involved in controversies because of hurting the religious or social beliefs of the common people. Artists should have self-awareness not to create vulgar, hurtful or useless works which do not serve any purpose. I firmly believe that artists should be given the freedom of expression. Mind cannot work when it is chained in boundaries. Imagination is at its best when the mind is relaxed and free from the fear of government or any restrictive laws.

Creativity flourishes when freedom of speech is openly permitted. Creativity and freedom of speech go hand in hand because one can’t exist without the other. When both these factors are present the sky is the limit for development. With creativity, many new disciplines and forms of education can be established which can be useful to arouse the human mind. However, without freedom of speech, creativity cannot exist. In countries where authoritarian rule such as dictatorships dominate, people are not permitted to think outside the box. For example, the current issue of Tibet being controlled by China is of top concern of many nations because it has no political freedoms or rights to a nationalized education system. Similarly in many Islamic nations such as Iraq and Pakistan, stringent rules have been in place to prevent outside influence and only enforce the philosophy and culture of the ruling class. Similarly under the dictatorship of Fidel Castro, many Christian holidays were not made public holidays because Castro wanted to only honor the indigenous people and the roots of the country. On the other hand consider situations where creativity flourished under freedom of speech. The Industrial Revolution of the early 1900s in the US and Europe was successful due to freedom of speech. During the industrial revolution, many new advances in technology took place that promoted economic development. For instance, the telephone became a very powerful tool for long distance communication that replaced the analogous telegram. Also, transport became far more efficient with the coining of the steam engine, which allowed naval expeditions and even warfare possible. Other notable inventions included the incandescent lamp by Thomas Edison, airplane by the Wright brothers, and the automobile by Henry T Ford. All these inventions were made possible because, people are more open to new ideas. All in all, creativity flourishes only when freedom of speech is available and when restrictions are applied this creativity is lost. This is evident in the rise of the US as a superpower due to the freedom of speech which fueled the Industrial Revolution. However, authoritarian governed nations have restricted freedom of speech thus most of society lives in obsolete and impoverished conditions. Also no new technology is available and the common man can not relate or become aware of what is happening around them. Thus freedom of speech is very essential and necessary for creativity to flourish.

Creative people think outside the box. They don’t blindly accept the status quo (unless of course, the status quo makes sense). This ‘out of box’ thinking comes from freedom of thoughts & expression and therefore freedom of expression is the basis for creativity. When you are conforming to some standard, you just don’t feel like you can be yourself and that stifles your creative juices. How is anyone expected to come up with creative solutions to complex problems under conformity? Non-conforming thoughts & speech under umbrella of right of freedom of speech does enhance creativity. The ability to think and to speak are the two abilities that distinguish humans from lower species. To me, the denial of these two basic freedoms is denial of our existence as humans. As long as conditions are repressive, thought processes cannot function normally.

Freedom of expression and education:

Education is worthless without freedom of speech. Education without freedom of speech creates “parrots and sheep”. Education’s worth increases as freedoms are expanded in the areas of technology, health, employment, education systems, infrastructure and curricula. Free speech adds to an educated society. A person can read anything they want to know more about without limitations. You have access to books, magazines, newspapers, TV, radio, and the Internet. You can learn as much as you want and become as informed as you are interested in becoming. Without free speech, you only have access to those materials that the government wants you to see, as in North Korea where access to the Internet for most citizens is denied. Therefore, it is a closed society and learning & improvement are limited.

The English liberal thinker John Stuart Mill’s view:

In his ‘Essay on Liberty’, J.S. Mill, the English political philosopher, advanced the view that there should be no limitations on the freedom of expression of one’s opinion and ideas. He declared that even if there are ten cranks, we should not limit their free opinion because it is just likely that one out of ten cranks might turn out to be a genius.

Our confidence that some opinion is false cannot justify suppressing the expression of that view, as this implies not only that we are confidence of being right, but that we are infallible. We are all fallible, not just individuals, but also governments and societies. This argument from fallibility claims that we do not always know the truth about morality and religion, even when we think we do. A censor may make two objections. First, we may surely claim enough knowledge, and confidence in it, to justify censoring certain expressions of opinion. For example, can’t we be completely confident that racism is wrong, and therefore that expressions of racism may be censored without any danger that we shall ‘lose the truth’? Second, claiming this degree of confidence is to assume our infallibility. Every time we act we must act on what we believe to be true. It would be cowardice to allow false and unethical opinions expression just because we ‘may’ be wrong. Mill’s response is that there is nothing wrong with certainty. But if we have it, it must and can only rest of the freedom of expression itself. To develop and defend our points of view, to correct our opinions and weigh their value, we need free discussion. The only reason we have to think that our belief is true is that no one has shown it is false, although there is every opportunity to make the argument. We cannot be sure that our belief is true if we prevent opposing beliefs from being expressed and discussed. But still, should we not censor those opinions that we think are, not false, but dangerous to society? Mill makes two responses. First, the belief that an opinion is dangerous can be disputed – as above, we cannot be certain that the view is in fact dangerous to society unless we allow free debate on the matter. But for this, we must allow the ‘dangerous’ view to be discussed, and cannot censor it. Second, if the view to be censored is true, then the view that opposes it must be false. Many people argue that no belief that is false can, in the end, be useful. So it is never in the best interests of society to defend a false belief against the ‘dangerous’ truth. Though the silenced opinion be an error, it may, and very commonly does, contain a portion of the truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. John Stuart Mill argued that “…there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.” Mill argues that the fullest liberty of expression is required to push arguments to their logical limits, rather than the limits of social embarrassment.

According to Mill, there are two major clauses to free speech. The Harm Principle and The Offense Principle. The first is valid (examples of use include hate speech, incitement of violence and making death threats) and the second is not (examples of use include blasphemy, criticizing an ideology, supporting an ideology/religion). Mill introduced what is known as the harm principle, in placing the following limitation on free expression: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” According to the Freedom Forum Organization, legal systems, and society at large, recognize limits on the freedom of speech, particularly when freedom of speech conflicts with other values or rights. Limitations to freedom of speech may follow the “harm principle” or the “offense principle”, for example in the case of pornography, or hate speech. Limitations to freedom of speech may occur through legal sanction or social disapprobation, or both. This is the foundation of logic and reason over which we can build an appropriately malleable legal structure. Without such a logical framework, the ambiguity is a tool of oppression.

In a liberal society, we have found that the harm principle provides reasons for limiting free speech when doing so prevents direct harm to rights. This means that very few speech acts should be prohibited. The offense principle has a wider reach than the harm principle, but it still recommends very limited intervention in the realm of free speech. All forms of speech that are found to be offensive but easily avoidable should go unpunished. This means that all forms of pornography and most forms of hate speech will escape punishment. If this argument is acceptable, it seems only logical that we should extend it to other forms of behavior. Public nudity, for example, causes offense to some people, but most of us find it at most a bit embarrassing, and it is avoided by a simple turn of the head. The same goes with nudity, sex, and coarse language on television. Neither the harm nor the offense principles as outlined by Mill support criminalizing bigamy or drug use, nor the enforcement of seat belts, crash helmets and the like. Some argue that speech can be limited for the sake of other liberal values, particularly the concern for democratic equality; the claim is not that speech should always lose out when it clashes with other fundamental principles that underpin modern liberal democracies, but that it should not be automatically privileged. To extend prohibitions on speech and other actions beyond this point requires an argument for a form of legal paternalism that suggests the state should decide what is acceptable for the safety and moral instruction of citizens, even if it means limiting actions that do not cause harm or unavoidable offense to others. It is up to the reader to decide if one of these positions is persuasive. It has certainly been the practice of most societies, even liberal-democratic ones, to impose some paternalistic restrictions on behavior and to limit speech because it causes offense.

There is a great deal of debate about what Mill had in mind when he referred to harm; for the purposes of discussion, he will be taken to mean that an action has to directly and in the first instance invade the rights of a person. The limits on free speech will be very narrow because it is difficult to support the claim that most speech causes harm to the rights of others. Liberals find it difficult to defend free speech once it can be demonstrated that its practice does actually invade the rights of others. If we accept the argument based on the harm principle we need to ask “what types of speech, if any, cause harm?” Once we can answer this question, we have found the appropriate limits to free expression. The example Mill uses is in reference to corn dealers: he suggests that it is acceptable to claim that corn dealers starve the poor if such a view is expressed through the medium of the printed page. It is not acceptable to express the same view to an angry mob, ready to explode, that has gathered outside the house of the corn dealer. The difference between the two is that the latter is an expression “such as to constitute…a positive instigation to some mischievous act,”, namely, to place the rights, and possibly the life, of the corn dealer in danger. As Daniel Jacobson (2000) notes, it is important to remember that Mill will not sanction limits to free speech simply because someone is harmed by the statements of others. For example, the corn dealer may suffer severe financial hardship if he is accused of starving the poor. Mill distinguishes between legitimate and illegitimate harm, and it is only when speech causes a direct and clear violation of rights that it can be limited. The fact that Mill does not count accusations of starving the poor as causing illegitimate harm to the rights of corn dealers suggests he wished to apply the harm principle sparingly. Other examples where the harm principle may apply include libel laws, blackmail, advertising blatant untruths about commercial products, advertising dangerous products to children (e.g. cigarettes), and securing truth in contracts. In most of these cases, it is possible to make an argument that harm has been committed and that rights have been violated.

Mill has very strongly defended free speech; Mill tells us any doctrine should be allowed the light of day no matter how immoral it may seem to everyone else. And Mill does mean everyone: If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind. Such liberty should exist with every subject matter so that we have “absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral or theological”. Mill claims that the fullest liberty of expression is required to push our arguments to their logical limits, rather than the limits of social embarrassment. Such liberty of expression is necessary, he suggests, for the dignity of persons. I salute Mill.

Freedom of expression vis-à-vis opinion and action:

Freedom of speech is applicable in discussing ideas, including expressing opinions, but is not reason to allow things to be said (or done) beyond that, if society finds those things offensive. So freedom of speech…

…gives one the right to argue that murder is acceptable, but does not give them the right to murder.
…gives one the right to argue that abortion is okay, but does not give them the right to abort.
…gives one the right to argue that some people are inferior to others (such as racism), but does not give them to right to treat or speak of others as inferior.
…gives one the right to argue that swearing is acceptable, but does not give them the right to swear.
…gives one the right to argue that offensive works of art are acceptable, but does not give artists the right to produce or display offensive art.

I believe that not only opinion expressed in a speech but also action resulting from that speech should not be restricting freedom of speech as long as no clear and present danger of imminent harm to others exists. By harm I mean violence and not mere hurt feelings.

Does speaking truth override limits on free speech?

The right to free speech is important because one thing distinguishing man from lower animals is the fact that, in addition to being able (like animals) to communicate his feelings through inarticulate noises, he can also communicate his inner thoughts through articulate speech. One of our most basic human inclinations is towards the knowing of the truth, and this is why the right to free speech should be highly valued. But we must understand and use it correctly. Speech, like everything else, must be ordered correctly in relation to varied human goods. It is a common error to claim that the only good towards which speech must be ordered is the ‘true’ so that, provided one is not lying, it is permissible to say anything. The usual defense employed by tell-tales and gossips is, ‘But it is true!’ Let us imagine I am out walking and see a rather large gentleman lumbering towards me on the opposite side of the street. I cross the street and say, ‘Excuse me, but you are the fattest person I have ever seen’. It may be quite true, but we all realize, I think, that this does not make of it an acceptable remark in such circumstances! Or again, let us imagine that I am a teacher and I stand up in front of a class of five-year-old children and relate to them all the grisly details of the Jack the Ripper murders, complete with a PowerPoint presentation showing photos of mangled corpses. ‘I was only telling the truth’ is not likely to be a defense which will go down well with the school principal, enraged parents, or the child psychiatrists called upon to rectify the consequences of my mistake. Whilst it is always wrong to lie, it does not follow that it is therefore always right to speak truth indiscriminately. Speech must always be ordered to truth, but there are normally also other goods in relation to which it should be considered.

Can freedom of expression be absolute right?

People can use freedom of speech to incite riots which lead to destruction, injury, or even death. If someone claims to be plotting to kill the president, or overthrow the government, should freedom of speech be an excuse to let them go free? What if a person decides to share with the world that another has a venereal disease? If freedom of speech was an absolute right, then Psychologists, Medical Professionals, and Priests could share everything about their patients’ private lives, medical status, or sins that they have committed. If freedom of speech was not limited in some ways, people would not be able to have confidence in anyone. People could not share their secrets, or place faith in Doctors and Psychologists, thus producing a society in which the fear of freedom of speech eliminates the ability to freely speak. Freedom of speech as an absolute right would destroy individual Privacy, and enable people, who wish to cause harm, to do so freely.

When debating freedom of expression, advocates of censorship usually claim that freedom of expression is not an absolute right but has to be balanced against other rights, such as a right not to be offended. Frequently the argument for censorship is based on an extreme example where few would disagree with an existing restriction: surely, the leader of a criminal gang should be punished for ordering gang members to carry out a murder. He may not have done the deed himself –by ordering the crime he is merely expressing something—but he is clearly guilty. Surely, perjury should remain illegal. On one level it is merely a verbal statement, an expression, while in practice it can pervert the cause of justice. In countries which have bills of rights there is a basic statement of freedoms subject to permitted abridgment of such freedoms. Freedoms are restricted in the public interest on grounds of national security, to preserve public order, to protect public health, to maintain moral standards, to secure due recognition and respect for the rights and freedoms of others or to meet the just requirements of the general welfare of a democratic society. The United States Supreme Court has over the years qualified the rights in the constitution. Any statement of rights is not absolute and must of necessity be subject to limitations on the above lines. The right of free speech and expression does not extend to sedition, slander, defamation and obscenity. The reality that human rights are not absolute, and are subject to reasonable restrictions, does not mean that the rights can be arbitrarily curtailed according to legislative or bureaucratic discretion. The manner in which restrictions are to be determined and imposed, and the criteria which apply to the formulation of restrictions are crucial. If human rights are to be meaningful they cannot be subject to crude majoritarian dictates. What distinguishes a human right from any other right is that a human right is available to and enforceable by a minority, however small, even against the wishes of a majority. If human rights were to become subject to ordinary parliamentary control they would be no different from any other statutory right which parliament is free to confer and withdraw at its pleasure. The restriction of human rights is therefore a crucial and delicate question. They cannot be based on ideological perceptions of parliamentarians, bureaucrats or the Human Rights Commission but must be grounded on objectively ascertained and comprehended criteria.

Can sensitivities be ignored?

Many cultures, societies and countries, including in the West, have limits to freedom of speech and expression. Sensitivities cannot be entirely ignored. Across the world, many places of worship insist on a dress code. Some have dietary restrictions that prevent individuals from enjoying their favourite meals. Some of the popular fast food chains do not operate in Israel during Sabbath in deference to their Jewish customers; in other countries they go halal to meet the needs of their Muslim clientele. When it came to India, McDonalds changed its menu to suit Indian preferences. It makes commercial sense to respond to religious specificities, restrictions and sentiments. Then there are other cultural issues that limit the freedom of expression of an individual. In many Middle Eastern countries visible display of non-Islamic religions is unacceptable. In certain countries non-Muslims are prohibited from eating in public during the fasting month of Ramadan. Above all, depicting god or his prophet is unacceptable in Islam and even the most beautiful portrayal of Prophet Mohammed would be considered haram and hence punishable. Despite the proliferation of caste politics in India, abusing someone by his or her caste is punishable under the law of the land. Indeed, one cannot abuse anyone under the guise of freedom of speech. As the adage goes, your freedom ends where my nose begins. What do these limits, restrictions and curtailments of freedom tell us? Different societies have different ways of looking at things; often the same thing is viewed differently. In certain conditions, they are seen as artistic freedom and are defended unequivocally. In others, they are seen as a perversion and uncivilised. When the Danish cartoonist Kurt Westergaard caricatured the Prophet, it was considered by many European countries as an expression of his artistic freedom. Even those who disagreed with his act defended his right to express himself. Elsewhere, the same cartoons evoked riots and violence.

Balancing act:

A balance must be struck between the ability of individuals to be unrestricted in the free expression of thoughts and ideas, and the need to ensure that governments are able to efficiently carry out their function of administration, law and order, and preserving the rights of individuals vis-à-vis each other. Freedom is a two way corridor, it is taken and it is given. The famous phrase “My Freedom stops where yours starts” is the concept many have never understood. Freedom is never overrated if it is properly understood.

Everyone has a right to express themselves but where to stop expressing yourself should not be a matter of one’s own choice. It should be measured on decency, societal norms, and realization of ethics and morals as human beings. In the West, for example, you have freedom to drink alcohol but this freedom has rules too: you cannot openly drink in public places; you need to go to designated areas, like bars, pubs and restaurants to drink. You cannot drink and drive, if you do, it is illegal and you can lose your license and be suspended to drive for a long time and even be thrown in jail. You cannot drink after 2am even at designated drinking places. These are rules surrounding freedom. We need some kind of qualification to this freedom of expression law. As an old saying goes: “Your freedom ends where my nose begins”. The question is if someone’s freedom did not end for some reason and hit my nose, what should be my reaction? Do I go home with an injured nose? Do I tell them not to do it again? Or do I expand my freedom to their nose with equal force?

In societies where freedom is a central value in the societal structure, it is extremely essential to preserve, conserve and ensure its equal distribution, for one person’s liberty, because of its sensitive nature, could threaten or jeopardize the other’s freedom and potentially become his agony and suffering. For this purpose, effective laws are enforced and clear lines are drawn so as to keep check on freedom equilibrium and make sure that one’s freedom doesn’t poke into other’s nose and disturbs the equal distribution of freedom in the society. And if, for some reason, this freedom equilibrium gets disturbed, it can turn out to be exceedingly detrimental and harmful. The case gets worsened if this happens outside the ambit of individual freedom and infiltrates collective freedom as it is likely to result in anarchy, chaos, disturbance and unrest and in some cases, even war. For instance, cartelization and lobbying in business activity inhibit fair and perfect competition and hence, the chances of growth for smaller and less powerful businesses. Similarly, trade embargoes and other such discriminating measures ignite hatred and nurtures complexes of inferiority and mistreatment and feelings of nepotism among those who suffer them.

Level playing field:

Level playing field is a situation that is fair to all; a situation where everyone has the same opportunity. If we started off with a level playing field, everyone would have an equal chance. A level playing field is a concept about fairness, not that each player has an equal chance to succeed, but that they all play by the same set of rules.

Let us assume that pornography is covered by the ‘freedom of expression’. If the views presented by a sexist make it more difficult for their ‘victim’ to be heard and understood in society, then this is a more serious issue than mere offence. Some recent feminists have argued that the way women have been depicted in the culture generally, and more specifically in pornography, have made it more difficult for women’s views understood and taken seriously. Should this count as a ‘harm’ or should the sexist’s freedom of expression be protected? So one person’s freedom of expression might in fact undermine someone else’s. We could argue that the freedom of expression does not entail a right to be understood. Every idea must be allowed to heard, even if other ideas are misunderstood as a result. Yet, a positive acceptance is the requisite of a free society for other people’s viewpoint and relations. That tolerance doesn’t mean that one cannot criticize the wrong of it. Being a free individual, everyone has right to praise, or criticize the right/wrong he finds in others prospects, but that cannot be made mandatory or obligatory. Freedom to express is a fundamental right, and dignity is always earned, it cannot be begged as right. The political notion of such freedom is, every Individual has the same rights as everyone else has. That is, irrespective of his gender, class, philosophical, religious, racial, friendships, commercial associations and love relations, one will get equal treatment under the law as anybody else will get. This kind of tolerance is a pre-requisite of a free-society and it can be violated only by the use of force. Political inequity comprises of favoritism or prejudiced dealing with any group or person founded on any measure other than a person’s reverence for the rights of others. Cases of political intolerance are reservations and quotas, in education and jobs based on caste, creed, religion or gender; government taxes which are not fixed and favors the poor or rich; licensing or limitations of business ventures based on religion, gender or market share of a person.

I have already discussed that Internet scores over traditional media due to level playing field. If a defamatory article or news is published against me in print/electronic media, I have no recourse except court of law. On the other hand, internet allows me to express my displeasure and make public my side of the story.

Today’s “hate speech” becomes tomorrow’s enlightenment:

Free speech is dying in the western world. While most people still enjoy considerable freedom of expression, this right, once a near-absolute, has become less defined and less dependable for those espousing controversial social, political or religious views. The decline of free speech has come not from any single blow but rather from thousands of paper cuts of well-intentioned exceptions designed to maintain social harmony. Of course, free speech is often precisely about pissing off other people – challenging social taboos or political values. Such efforts focus not on the right to speak but on the possible reaction to speech – a fundamental change in the treatment of free speech in the West. The much-misconstrued statement of Justice Oliver Wendell Holmes that free speech does not give you the right to shout fire in a crowded theater is now being used to curtail speech that might provoke a violence-prone minority. Our entire society is being treated as a crowded theater, and talking about whole subjects is now akin to shouting ‘fire!’ The very right that laid the foundation for western civilization is increasingly viewed as a nuisance, if not a threat. Whether speech is deemed inflammatory or hateful or discriminatory or simply false, society is denying speech rights in the name of tolerance, enforcing mutual respect through categorical censorship. As in a troubled marriage, the west seems to be falling out of love with free speech. Unable to divorce ourselves from this defining right, we take refuge instead in an awkward and forced silence. Throughout history, it has often been the case that today’s “hate speech” becomes tomorrow’s enlightenment. Today’s “incitement” becomes tomorrow’s righteous subversion of unjust authority and flawed orthodoxies. Add to all that the ignoble tendency to object to – or even recognize the existence of – repression only when it affects one directly (it is indirect when writing about the inability of many passive, obedient western citizens to acknowledge the repression of their own governments because such citizens are never the ones targeted for repression), and it’s clear that the opposition to free expression is grounded in the worst of human attributes. In sum, it takes a staggering amount of hubris to believe you’re in any position to decide which ideas are so objectively and permanently wrong that they should be barred. It takes an equally staggering amount of childishness to want some central authority to protect you from ideas that you find upsetting. And it takes extreme historical ignorance not to realize that endorsing the maintenance of a list of prohibited ideas and then empowering authorities to enforce it will inevitably lead to abusive applications of that power and, sooner or later, will likely result in the suppression of your own ideas as well.

Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or farfetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like equivalent of a ‘spark in a powder keg’.”

“The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.” (Justice Harlan in Cohen v California 403 US 15 [1971])

Intelligent opinions and constructive criticisms should not be smothered, for such suppression can create an upsurge that is inimical to the government. As bloggers and even journalists, we must always remember that views that are inimical to the state, if given free scope, can spell disaster e.g. sowing the seeds of discord. History shows that in countries where restrictions were placed on such freedoms, the dictatorial regimes fell. This happened in India, Sri Lanka, Bangladesh, Pakistan etc. where the rulers insulated themselves against political criticism and this led to their death or downfall.

It is assumed that speech acts lead to physical acts. Thus pornography, hate speech and political polemic are causally linked to rape, hate crimes, and insurrection. Both scientific creationism and Holocaust denial have serious, and dangerous, hidden agendas. Deniers of the Nanjing Massacre believe that the Japanese did nothing wrong in the Second World War and continue to claim that it was a war of liberation against western colonialism – feeding Japanese militarism today. Holocaust deniers, in claiming that a Jewish conspiracy is responsible for the widespread belief that six million Jews were murdered by the Nazis, are closely allied to anti-Semitism and neo-Nazism. We should not allow such views the legitimacy which being debated gives them. The Counterpoint is that society is self-regulating. The link between speech acts and physical acts is a false one – people who commit hate crimes are likely to have read hate speech, people who commit sex crimes are likely to have watched pornography but not necessarily the other way around. Viewers of pornography and readers of hate speech are therefore not incited to commit anything they otherwise would not do. If the advocates of these views have hidden agendas, all the more reason to expose them in public. The fact that Holocaust denial leads to neo-Nazism will, for most people, be one more compelling argument against it; creationism’s necessarily literalistic approach to scripture can easily be shown to be ridiculous. Again, the truth has nothing to fear, and the evil implications of falsehood should not be covered up by refusing to engage with it.

As philosopher-professor Stanley Fish points out, “The only condition in which free speech would be realizable is if the speech didn’t mean anything. Free speech is speech that doesn’t mean anything. Once meaning, assertion and predication get into the act, the condition of freedom has already been lost because when you want speech to mean something; you don’t want to live in a world where people’s utterances are weightless — neither commit to anything, nor illuminate nor challenge you in any way. Once speech is offered for a reason it is necessarily, if only silently, negating all of the other reasons for which one might have spoken.”

In a democracy that stands by free speech, the best response to a bad book is a better book. So you have to wonder about the aims of a state that hasn’t, for two thirds of a century, made education – not just literacy – the cornerstone of their policy. A population that cannot read or write a better book, but is always up for a good riot, is a population at the mercy of a political class that delights in yanking its chain. The core debate that we have not properly had is: do we think that freedom of speech is a principle worth defending, with blood if need be? If so, the lines must be drawn, as American Supreme Court says, by “reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view”. That means, draw the lines in defense of risking offence, not in defense of being offended. The courts need to tell us more often, to get over it. We need steely law enforcement to make sure we do get over it. And we need to have non-violent tools with which to express our offendedness. Freedom of expression cannot be constrained when it comes to books and encouraged when it comes to violence incited due to that book. You cannot have it both ways.

Freedom of speech involves toleration of a great deal of nonsense, and even of matters which are in bad taste. There are those, among them notably Justice Douglas of the American Supreme Court, who have argued for near absolute freedom of speech and against the restrictions based on many of the common exceptions. In Roth v US 354 US 476 (1957) a case about obscenity, Justice Douglas said in dissent: “The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the Judge or jury thinks has an undesirable impact on thoughts but that is not shown to be part of unlawful action is drastically to curtail the First Amendment.” Similarly, in Australia, Robert Pullan has published a book (Guilty Secrets: Free Speech in Australia) in which he finds not only the obscenity laws but also the defamation and sedition laws so repugnant, he would throw them all out. But while it is thought that even the most open-minded people would draw the line somewhere (child pornography) it must also be recognized that there is an increasing tendency to argue that views based merely on bad taste and offensiveness to particular groups should be censored. Yet bad taste, discrimination and mere offensiveness to individuals are not grounds for restricting free speech. They have to be accepted as an unavoidable by-product of the advantages of freedom of speech. It must be realized that what constitutes bad taste or discrimination or offensiveness is to a very great extent subjective. The folly of the increasing practice, in recent times, of placing censorship powers in the hands of bureaucrats and tribunals is illustrated by the manner in which the works of authors like D H Lawrence were banned from sale. Even recently the Chief Commonwealth Film Censor banned a Brazilian film by Hector Babenco portraying the desperate hand-to-mouth existence of a Brazilian boy from being shown at the Sydney Film Festival on the grounds of child abuse, even though it was the first censoring since 1969 of a film entered for the Melbourne or Sydney Film Festivals. After an outcry from the directors of both Festivals, the ban was overruled by the Films Board of Review. The film, titled Pixote, was shown and voted the best film by the Film Festival subscribers.

What I say may seem outrageous and outré, but my purpose is to push the envelope of discourse to its outer limits on the theory that freedom of speech, like both mind and body requires vigorous exercise to remain healthy. Beyond this, the act of pushing the free speech envelope will embolden others to speak, and their acts of boldness reinforce the perception that free speech is tolerated, thereby increasing the probability that it will be. But as I embolden others to speak, so I embolden them to act; and in this way I help insure that free speech is more than a sounding gong or a tinkling symbol. Put another way, I hope to make the world safe for bigotry, i.e., safe for the opinions to which — in Ambrose Bierce’s words — others are intractably and vociferously opposed. But if I advocate free speech, I also advocate and impose upon myself the harshest and most demanding discipline on speech: I acknowledge my critics and call attention to their criticism, and I always respond seriously to any serious criticism they may offer. What this means is that I accept and impose the discipline of truth: If someone is right in their criticism, I have an obligation to acknowledge the error — publicly if possible; and with as stringent a discipline as this, I am forced to be careful in what I say. For all its stringency, however, this discipline offers some very distinct advantages: It ultimately disarms my critics — not infrequently turning them into friends — and continually reinforces my reputation among both friends and foes as one who is as intolerant of error in himself as he is intolerant of it in others, and as morally incorruptible as any man who walks the earth. By this means, then, I retain as enemies only the evil and the stupid; and these are those who would be my enemies no matter what. Thus my fights are few, easy and usually small, while my victories are often grand; and in the process I accomplish one of the most desired goals of any man anywhere — I can sleep at night.

I quote myself from my article on “Torture” posted in this website:

I assert that no moral duty is absolute, right from speaking truth to saving life. We do not want clash of moral duties but if that is inevitable, then the moral duty with larger significance would prevail at the cost of invalidating another moral duty with lesser significance. Lying is bad but if you lie to save an innocent life, it is morally fair. To save a life and to speak truth are both moral duties but if there is inevitable clash between them, then choose moral duty with larger significance.

In the same way, whenever there is clash between two human rights, the human right with greater significance must prevail; greater significance means greater public interest. The only right greater than right to freedom of expression is right to life. So in order to save innocent human lives, right to freedom of expression may be curtailed. But that does not mean that the state abdicates its own duty to save life by blaming free speech for inciting violence rather than maintaining law & order. Only if violence is imminent due to speech per se and the state is of the opinion that banning speech can save innocent lives, prevent injuries and prevent damage to property; the freedom of expression may be curtailed.

The right to speak one’s mind is the basic right from which everything else follows. To restrict it, is to deny truth. Even if what is said might not be true, at least we know what the other truly thinks. A marriage in which one partner cannot voice their feelings, however hurtful or frustrating, is an oppressive one. Society is no less dependent on freedom of speech for its health. There would be no progress in science had religious dogma triumphed. There would be no democracy if there was no right to speak truth to power. Freedom of expression is the cornerstone of equality. All subjugation, however minor or complicit, starts with this simple lack of correspondence: the servant who holds his tongue; the bureaucrat who nods to the mandarin; the wife who defers to her husband; and the love that dare not speak its name.

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The moral of the story:

1. Freedom of expression is a very valuable freedom. It lets you express your own thoughts & feelings, and show your beliefs & ideas.

2. Freedom of expression is the matrix, the indispensable condition of nearly every other form of freedom. Without it, other fundamental rights, including the right to vote, would wither and die.

3. Freedom of expression can be stifled when majority views become so widely accepted that the entire culture represses dissenting views, for example prosecution of Galileo, but eventually Galileo was proved to be right and the majority was wrong.

4. John Stuart Mill argued that without freedom of expression, there can be no progress in science, law or politics, all of which need free discussion of opinion.

5. The reason men are silenced is not because they speak falsely, but because they speak the truth. This is because if men speak falsehoods, their own words can be used against them; while if they speak truly, there is nothing which can be used against them — except force.

6. Underregulation of even harmful speech is the only way in an imperfect world to protect against the overregulation of harmless speech.

7. The freedom of expression is applicable, not only to information or ideas that are favorably received or regarded as inoffensive but also to those that offend, shock or disturb in order to cultivate pluralism, tolerance and broadmindedness in the society. Offendedness, shock and social embarrassment are an unavoidable by-product of the advantages of freedom of speech.

8. Throughout history, it has often been the case that today’s “hate speech” becomes tomorrow’s enlightenment. Today’s “incitement” becomes tomorrow’s righteous subversion of unjust authority and flawed orthodoxies. The freedom to offend is an integral element of the freedom of expression.

9. In a democracy that stands by free speech, best response to a bad book is a better book and not ban the bad book.

10. The law of defamation is supposed to protect people’s reputations from unfair attack. In practice its main effect is to hinder free speech and protect powerful people from scrutiny. Defamation actions and threats to sue for defamation are often used to try to silence those who criticize people with money and power.

11. In contemporary era, freedom of expression not only encompasses right to communicate or express information or idea but also encompasses right to access or receive information or idea; thereby severely restricting right to privacy.

12. It is a myth that copyright laws motivate creativity and therefore copyright laws must be used sparingly and judiciously to curtail freedom of expression as access to ideas is essential for development and enhancement of the society.

13. Democracy and freedom of expression are complementary to each other and therefore in order to have a better democracy, freedom of expression must be promoted more vigorously.

14.The only reason why America became superpower is because American people believe in freedom of expression more than rest of the world and more freedom of expression leads to more debate, better policies, better development and better governance.

15. Historical experiences show that on every occasion when freedom of expression was stifled, the innate ability of humans, the creativity was stymied. Creativity flourishes only when freedom of expression is available and when restrictions are applied this creativity is lost. The Industrial Revolution of the early 1900s in the US and Europe was successful due to freedom of expression.

16. Speech leading to violence or other unlawful activities can be restricted only if the ensuing lawless activity is likely to be “imminent” as a result of the speaker explicitly urging that activity. The state cannot abdicate its own duty to save lives under pretext that the speech is likely to cause violence and so ban it.

17. Child pornography is child sex abuse of a child depicted in it, and also leads to child sex abuse of other children, violation of child’s privacy rights and cultivating morally abhorrent culture. So child pornography does not come under the umbrella of right to freedom of expression.

18. Curtailment of freedom of expression is a pre-requisite for the growth of religion and blasphemy is a weapon to destroy freedom of expression to crush reason because reason will challenge dogma & faith, the basis of all religions.

19. Repeated rhetoric that freedom of expression is not an absolute right gives repressive forces a weapon to subvert freedom of expression under disguise of reasonable limits to it. Repeated use of the word “sensitivity” is the masquerade of fascist forces.

20. Freedom of expression is a cornerstone of equality. Any challenge to freedom of expression is an attempt to divide the society between masters & servants, between haves & have nots, between religiosity & atheism, between intelligent & stupid, between whites & blacks, between men & women, between prophets & common, and so on and so forth.

Dr. Rajiv Desai. MD.

January 1, 2013

Postscript:

Media is supposed to enhance freedom of expression but Indian media wants to destroy freedom of expression. Why? Because they have been lying. When you lie, you would like to crush the truth to prevent your lie from becoming uncovered.

I chose not to remain silent.

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