My views re: Swamy, Rushdie, etc. – and commitment to (almost) absolute free speech

1.3My views re: Swamy, Rushdie, etc. – and commitment to (almost) absolute free speech

I've been asked on twitter whether I have defended Taslima Nasreen and Subramanian Swamy (Harvard incdnt).

Well, I may or may not comment on each and every case of disruption of free speech in India. Many of my comments I can't readily find (perhaps I commented on FB/ emails, etc.), but some examples, below

Do artists have license to abuse freedom of expression? (May 18, 2009)

Freedom of expression: a great challenge for India (August 17, 2010)

Raja Rammohun’s fight for freedom of expression in India (November 5, 2010)

The fundamental right to offend (April 14, 2011)

The few (but dangerous) mad Muslims of India and the TOOTHLESS Indian government (January 21, 2012) [contains a view on Rushdie]

Free speech is ABSOLUTE except for … (well, almost nothing) (October 8, 2011) [contains a view on Swamy]

Let’s not restrict hate speech, but ruthlessly curb direct threats of violence (June 23, 2012)

etc. And there was an extensive debate re: a play re: Ganesha in Melbourne.

Plus I've got an extensive section on free speech in The Discovery of Freedom.

1.4Freedom of expression: from my draft manuscript The Discovery of Freedom

But India never internalised this concept. Salman Rushdie’s Satanic Verses and many other books were banned; and the screening of Da Vinci Code prohibited. The government failed to protect Deepa Mehta during the making of her film, Water, and D.N.Jha similarly force to publish his book, The Myth of the Holy Cow, outside India.

I’m not suggesting absolute freedom of expression. Like all other freedoms, freedom of expression must be closely integrated with accountability. But since writing something against someone is merely an opinion, not a direct physical attack, the relevant accountability must be lower than accountability for physical violence. People can ignore writings they don’t agree with.

In the USA, as Glenn Greenwald has explained:

The government is absolutely barred by the Free Speech clause from punishing people even for advocating violence. That has been true since the Supreme Court’s unanimous 1969 decision in Brandenburg v. Ohio, which overturned the criminal conviction of a Ku Klux Klan leader who had publicly threatened violence against political officials in a speech.

The Supreme Court ruled that “except where such advocacy is directed to inciting or producing imminent lawless action” — such as inciting a mob to burn down a house or hiring a hit man — “the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force.”  [Source]

John Danford explains J.S. Mill’s views on freedom of speech in his book, thus:

What is most clearly outside the bounds of government regulation, according to Mill, is the realm of speech and opinion. The expression of mere opinions, Mill argues, can harm no one. The suppression of any point of view is unjustifiable because to suppress an opinion is to claim a monopoly on truth, which no one possesses. The power to control the expression of opinion, then, is illegitimate. “The best government has no more title to it than the worst,” Mill says. “lt is as noxious, or more noxious, when exerted in accordance with public opinion, than when in opposition to it. If all mankind minus one were of one opinion, and only one person were of the contrary opin­on, mankind would beno more justified in silencing that one person, than he, if he had the power, would be justi­fied in silencing mankind.”

It is not merely unjust to suppress opinions but also unwise or even dangerous, according to Mill. “The pecu­liar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a bene­fit, the clearer perception and livelier impression of truth, produced by its collision with error.” Thus there are two branches to his argument: “We can never be sure that the opinion we arc endeavoring to stifle is a false opinion; and if we were sure, stiffing it would be an evil still.”

Mill’s arguments for complete freedom of speech are probably the most famous portion of On Liberty, and are widely accepted in societies such as the United States, where the legal system in recent decades has refused to permit oven democratically elected legislatures to go very far in curtailing speech. including speech deemed offen­sive or obscene by a large majority. Of course, no freedom is absolutely without some limit, and, as Mill himself admitted, “even opinions lose their immunity when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard.” But of course speech in such a circumstance can readily he considered to be something other than mere words, and thus to fall into the category of action or conduct, which Mill concedes may be regu­lated by society.¹

Given the complexity of the issues involved, demarcating the boundaries of freedom of expression remains a challenge. Two examples can give us a sense of the difficulties involved.

Burning the national flag

Consider someone who, convinced that his freedoms have been trampled upon by the nation, burns the national flag in protest: doesn’t attack anyone, just burns the flag. Is that a crime? Certainly it is, in India. The Prevention of Insults to National Honour Act, 1971 provides for imprisonment of up to three years or fine, or both, for anyone who (in public view) mutilates, defaces, defiles, disfigures, destroys, tramples on, or otherwise brings the National Flag into ‘contempt’. I believe this law is incompatible with liberty.

I do not make this assertion lightly. I claim that the national flag must be defended with our own life. But on the other hand, no citizen will usually take the extreme step of burning the flag casually. Such an act signals that something is wrong. The nation should therefore investigate the cause of the unrest.

The US imparted a lesson in liberty to all nations when it ruled out the criminalisation of flag burning. In 2006, an amendment to the US Constitution was proposed to prohibit flag burning, but the US Senate rejected the amendment. Senator Daniel K. Inouye, who lost an arm in World War II, fighting for USA, said during the debate that that flag burning ‘is obscene, painful and unpatriotic’, … ‘[b]ut I believe Americans gave their lives in the many wars to make certain that all Americans have a right to express themselves – even those who harbor hateful thoughts.’²

Such commitment to freedom is uniquely American, it would appear. Hundreds of its own soldiers die in wars to protect the American flag, but the same soldiers who risk their lives insist on defending the right of their fellowmen to burn that flag. That is what they fight for. The national flag is subordinate to the claims of liberty.

Artistic license?

It has become fashionable for artists and writers, claiming artistic ‘license’, to insult Islam, Christianity, Hinduism and other religions. But they are wrong; they have no such license. While an analytic critique of a religion is perfectly legitimate, vilification and abuse is not. Artists are in no way special, in now way exempt from the laws of the land. Everyone’s liberty must be subject to the same standards of accountability. And so artists must exercise self-restraint.

But what about artists who don’t’ restrain themselves? Should we ban their work or kill them? Clearly not. Three things must happen in the free society:

• 
  As the saying goes, ‘sticks and stones may break my bones but words will never hurt me’. We must therefore learn to tolerate others’ opinions, no matter how tasteless. And if we don’t like a particular artist’s work, we don’t need to go out of the way to look for it. We must therefore foster forbearance, forgiveness; even a thick skin.
  
• 
  It is legitimate to take offence to some types of art but that offence can be resolved through a civil suit. The plaintiff can try to prove, for instance, that he tossed and turned and lost, say, five hours of sleep because of the offensive art. The court can then compensate the plaintiff for the lost sleep. Class-action suits could be pursued where a number of people feel offended.
  
• 
  But no matter what an artist does, violence against an artist can never be condoned. The law must punish violence against any artist; even stupid artists deserve the protection of the law.
  

True, there might be a few instances where a society could reasonably impose a generic ban on freedom of expression, such as banning nudity in public places on grounds of protecting common decency. However, situations of this sort could be resolved by demarcating separate areas for nudists. I’m not advocating this, but this is one way to deal with the problem. The goal must be to maximise liberty while minimising demonstrated, proven harm.