A free primer on free speech
The connotations of free speech may be obvious to many but there still appears to be much confusion—deliberate or otherwise—on its meaning and ramifications on social media. Ritual platitudes to freedom to expression have sadly become a tool for the intolerant and the masters of false equivalence to question criticism it self. A primer on free speech may be useful to some. Hence.
First, as understood legally, free speech refers to the government’s ability to control expression using the coercive powers vested in it. For instance, the widely admired First amendment of the US constitution prohibits the State thusly,
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Despite some initial hiccups, the US Supreme Court has interpreted it liberally widening the gamut of what constitutes free speech. In its landmark judgment in Brandenburg vs Ohio, it ruled that government can’t punish speech unless it is likely to lead to an immediate ‘lawless action.’ In multiple other cases including where popular opinion may have been against a literal application of the first amendment, the Court has sided with an expansive definition of free speech. And despite the sharply divided polity, it is significant how conservatives & liberals have collaborated to safeguard speech from the State.
In India, free speech is much more legally restricted. Militating against the liberal instincts of Ambedkar’s constitution, India’s first amendment described what it claims to be reasonable restrictions on free speech. As many legal scholars have persuasively argued, these restrictions are so vaguely worded that they afford a virtual carte blanche to the State to restrict any speech it deems problematic. The Indian jurisprudence over the last seventy years has been a struggle against the restrictive aspects of the first amendment where a often conservative Supreme Court has largely sided with the State except for some rare victories.
Nevertheless, what this admittedly limited discussion should emphasize is that free speech discourse refers almost exclusively to restrictions imposed by the State. Speech which is legally permissible without falling foul of constitutional restrictions imposed on multiple latitudes ranging from morality to public order.
Only the State enjoys the coercive power–legally speaking–to limit speech. And fighting back against that power within the bounds of imposed by Constitution & legal interpretations, is what truly constitutes the fight for speech. This battle is an ongoing one which is unlikely to be resolved in the near future for reasons ranging from international politics to shifting social norms.
But as this argument continues—and one hopes that the jurisprudence will always move towards greater freedom–it affords us an opportunity to define what is NOT a part of the free speech debate. Few points.
- Criticizing speech is not anti-free speech. Questioning Kanhaiya Kumar’s now famous articulation at the JNU campus is perfectly compatible within the norms of free speech. Indeed, upholding the right to express views one fundamentally disagrees with is the highest expression of free speech.
- On similar lines, questioning Jhanvi Behal’s criticism of Kanhaiya Kumar is not a violation of open expression either. Free speech advocates believe in questioning anything & everything; they just don’t want the State to define its limits. Much as it may surprise the Gods of false equivalence, free speech *extremists* retain the right to criticize expression.
- As a corollary, Jhanvi Behal is equally entitled to ignore her critics. They have no more right to control her speech as she has to regulate their criticism.
- Free speech is not the equivalent to ideal or nice speech. Offensive speech is what really tests liberal democracies. For instance, criticizing Gods & Prophets—whether Mohammad or Durga—is the very essence of freedom of expression. If everyone agrees with your point—Sachin Tendulkar is one of the greatest ever—there would be no debate on free speech or its supposed limits. Defending the likes of Kamlesh Tiwari—and it is here the Indian liberals fall terribly short—is the fundamental understanding of free speech. And that equally extends to those who believe that Durga was a sex worker. If you can’t defend the right to express the first, it is impossible to genuinely defend the latter as well. That is an exceedingly hard task but that is precisely the reason why beyond its few true worshippers, speech remains that highfalutin book which everyone pretends to love but very few have bothered to read.
- Blocking someone on social media is a perfectly legitimate expression of free speech. Much as all of us wish otherwise—no one is obliged to listen to our speech. You affirm your right to free expression by articulating what you believe; you equally exercise that right by refusing to participate in its expression.
- No one is obliged to provide the space for you to amplify your opinions. For instance, if a news channel refuses to invite contrarian voices to its studios, it is a perfectly legitimate expression of its free speech. Now, one may judge them for refusing to provide a platform for diverse views but they are no more affronting your free speech rights as one is not by refusing to reading this piece.
- Bottomline: You are not obliged to listen to me; I am not obliged to listen to you. All we are supposed to follow—if we truly believe in freedom of expression —is to strongly refute the States’ demand to define its limits. Or in other words, defend vigorously speech one fundamentally finds unpalatable because in that revolt lies the secret of our own freedom.
In short, free speech is a battle against the States’ power to control expression. Admittedly that is true only in a fully functional democracies which constitutionally guarantee speech. Much too often, free speech is curtailed by marauding mobs who challenge the States’ monopolistic expression on violence. And that is especially true in India which remains a Republic in progress. Nevertheless, those who believe in the Indian Republic & its liberal articulation would continue to demand it do better to protect freedom of expression without worrying about political discussions and advantages.
And without confusing—for narrow partisan reasons—what this fundamental & the most magnificent of human rights truly means.