Issues in free speech and censorship

By: Mohammad Asad Khan

M.Phil (Philosophy)

Abstract
In the recent past, we have seen a lot of cases in which there has been an apparent conflict
between free speech and groups in the society. This conflict has sometimes escalated to
violence and has caused a stir in the social fabric of the nation. While no sane mind will deny
that people should not be offended carelessly, when it comes to legal strictures we have to
be careful. Keeping in mind the legal maxim “nullums crimen sine iniuria” (no crime without
injury) we can ask some questions. Should the state prohibit offensive speech? What is the
definition of offensive and hurtful speech? How do we toe the line between legality and
morality? In this paper I will try to take a brief survey of the problem.

What is the problem?

Article 19(1) of the constitution of India assures that “ all citizens shall have the right to
freedom of speech and expression.” The right to freedom of expression is one of the basic
rights granted by almost all constitutions of the democratic nations. Freedom of speech is
not just an optional right granted as a luxury to some elites of the country rather it is a basic
fundamental right which is the necessary condition for any functioning democracy where
decisions are not enforced from above but enacted as laws by an informed and deliberating
public. A democracy is an open dialogue between the people and the elites in power so that
the ruling elites should be in touch with the public needs and demands and there is regular
tranfer of authority. Thus heavy censorship would tend to insulate the political authority
from the masses. As decisions are the result of public deliberation there must be open
discussion and easy accessibility of information. So that that the concerned people can get
involved and put pressure on their governments.

In this paper I will be using the word speech and expression interchangeably unless
specified. Free speech is an essential part of the democratic setup. Governments working in
secrecy is not what a democracy can afford. Any secretive act must already be specified in
the constitution like national security, intelligence, military secrets etc. Knowledge which is
essential to the working of governance cannot be relegated to officials and elites. A
kingdom, oligarchy, feudal set-up, dictatorship etc. can do away with freedom of expression
and survive but a democracy cannot. But is speech and expression limited to government
affairs and not to other fields like art, music, literature, drama, television, etc?
Here we come to a broader understanding of this right. In a free society, people are not measured
by the government but the government is measured by the people. By this I mean that the standard
for judging the government is the happiness of the people and not vice versa. Freedom of the
individual is an essential right. But the problem arises when we have conflicting interests
arising when one party uses its freedom of speech to hurt other party or one’s right would
be limiting the other’s right. Here an important distinction created by J. S. Mill would be
very useful. For Mill, humans have a absolute right to anything unless they interfere in other
person’s right to do the same. This can be understood as the Kantian principle of
universalizability as well. But a lot of consideration of the social context has to be taken in
account if we have to implement the principle in practice. What kind of practices would be
considered interefering in a given culture? What kind of language is obscene or vulgar in a
given culture? Is hurting somebody’s honour doing them a real harm? These and many
questions are troublesome to say the least. Libel, obscene language in public, pornography,
hate speech etc are some of the contentious issues regarding free speech. We will deal with
them one by one.

Libel
Can slandering somebody in public be a form of limiting somebody’s right? It may be so in many
situations. For example if a journalist slanders a politician in a newspaper or channel , that politician
might lose the chance of being elected anytime soon due to the false public image about him. But
can we put legal constraints in advance? Wouldn’t that be like putting everyone in house arrest
because they might eventually kill each other? One thing is sure, we have to take risks with free
people. We cannot treat others as children. The government must not be allowed to treat its citizens
paternalistically. Thus too many legal restraints would not be a good thing to have. In any open and
free society, the government must trust its citizens. Too much government restrictions would result
in red-tapism and hypocrisy. If a journalist has to take permission before publishing even the
smallest piece of news, we can expect corruption and red-tapism. And if the normal citizens are not
free to say what they feel and think like, if they have to worry about what the authorities would say
all the time, we can never expect free exchange of ideas in a society. All we will get is hypocrisy;
people believing something in private and expressing another thing in public.

Thus we cannot have pre-conditions for speech. But should we have none? We know that in India
alleging that a woman has many sexual relations can hurt her future prospects substantially. She
may find it difficult to take a job, to marry, to have her kids into good school etc. Even if it is true that
she has many sexual relations, the person on the street has no right to know that as it is her privacy
that comes into play and the right to privacy is another crucial right. The intention may be very
important here. The law also keeps in mind the intention when prosecuting such cases. Public figures
must also be a bit more tough-skinned as it is basically part of their job profile to deal with criticism
and even unjust ones.
Obscene language
We all prefer being talked to in a civilized manner. But what if people start flouting the rules of such
basic courtesy? Do we have a right to being talked nicely? Well, we have a corresponding right not to
talk to such persons who talk disparagingly to us. We have a right to boycott them, never to talk to
them again and even asking our loved ones and friends to boycott them on a personal level. I think
society has that much power that it can bring such people to follow its norms. What about such
language in public sphere? Should we tolerate it on radio, tv, newspapers etc? We can take into
consideration that most readers or viewers may not like it, infact this may result in their rage and
anger. This fact itself deter the concerned media outlet to publish such language. But can we put in
place some legal restrictions? I am of the opinion that anger can be expressed without resorting to
obscene language and that our concern should be the encouragement of a civilised and wholesome
public discourse but this cannot be at the cost of limiting free speech and paternalistic treatment by
the state.

Pornography
Pornography is the visual, explicitly sexual depiction of the human body which is meant for
titillation. Public viewing of pornography has always been considered wrong as it may
involve unconsenting kids and it may psychologically harm them but what if the viewing is
just for fun by consenting adults? Some social scientists have considered public view of
pornography as public nuisance. It has been compared to defecating in the open. Defecating
is a perfectly fine activity which every healthy human being does and there is no shame
attached to it but it is better done alone. I may not enjoy the view of you doing it or enjoy
the smell of it. A certain society which is not used to very open sexual behaviours may argue
that open sexual activity does cause us harm as it obstructs us in our normal day to day
functioning. But is this is a good argument? Will not this kind of objection lead to censorship
of any kind of material that the general populace finds distasteful? Or should we distinguish
between reasonable and arbitrary objections? Where should we draw the line between
pornography and erotica i.e.; the artistic depiction of sexuality?

J. S. Mill gave an argument that we should not stop even unfashionable and unpopular
views from being said because there may be an element of truth even in them. It is also to
be noted that when a person begins to say something important, she may not be able to say
it perfectly in the first attempt. She may falter, fumble and go round the topic without
saying anything meaningful about it. But after an initial phase of mistakes the person will
eventually say something that may contain deep insight or be useful to us. I would make the
same case for artistic depictions. Even an artist may falter and say nonsense before coming
up with something priceless. We should bear with them. I don’t mean to say we should
encourage any nonsense but we can atleast let them have their try.
Hate Speech
There has been a lot of hue and cry about various political and social leaders making “hate
speeches”. I think most people will grant that hate is not a good emotion. Any civilized
society will not encourage hate. But there are always people in our societies who have pent
up anger over various issues. Now that anger may or may not be justified and we have a
right to disagree with them. But should we penalize them for it? I think the answer to hate
speech is to allow for more speech and not less speech.1 (p. 29)

Why do I say that? I think one reason is philosophical and the other pragmatic. The
philosophical reason is that there should be equality of retribution. If a person is using foul
language we should not resort to arms. Hate speech must be replied with more forceful
rhetoric and facts. It should be used to counter the hate-mongerer. The pragmatic reason is
that penalizing hate speech is actually counter productive. It increases hate and gives the
offender more ammunition. Thus both intellectually and pragmatically we have grounds that
hate speech should be allowed.

But there is a counter case to be made regarding the harmful effects of such speech. Mill
also gives the example of a leader who is standing in front of the house of a rich industrialist
and calling the industrialists worms and maggots in front of a huge mob. This speech can
seriously cause the mob to kill the industrialist. Crying “fire!” in a filled theatre can wreak
havoc for many people’s life. I think these cases should require a case by case analysis and if
it is found that some right of the victim has been seriously infringed, then action may be
taken against the offender. Only in such cases where rights of the other are harmed by
speech can legal action be justified.

Blasphemy
Blasphemy has often been called the “victimless” crime. But there have been cases in
recent history where blasphemy has been a hot topic. The people who believe blasphemy
should be curtailed argue that even though everyone may not have the faith of the believers
but still they should respect a deeply held belief. Reviling things held sacred by millions of
people is not a wise idea. But is that enough? So many people hold honour killings in high
esteem, many hold the practise of sati in esteem and worship the sati goddess. Should we
then not speak against them? This doesn’t sound well. Just because millions or more hold a
belief dear does not give it any free pass. I agree that we should on ourselves exercise
restraint but it should not be from the outside. When the British author Salman Rushdie
published his controversial novel “the Satanic Verses”, there was a huge furore over its
alleged depiction of the Islamic prophet Muhammad. Most had not even read the work yet
there were violent protests all over the world by Muslims. Recently in India there were large
scale protests over the alleged depiction of queen Padmini in bad light. Do people have a
right not to be offended? People have a right to express their displeasure for sure. They can

1
Gordon, A. David., et al. Controversies in Media Ethics. Taylor and Francis, 2012.
legally sue the artists if they want. But the reaction to speech should be limited to speech
only. A lot of valid criticism of religion and social customs is curtailed due to the censorship
of so-called blasphemy. I believe that for a better flow of ideas there should be more
dialogue not less and the believers in any faith or community should also show restraint and
act more large-heartedly to listen to the opposing viewpoint.

National Security
During the Mumbai attacks of 26/11 there was widespread criticism of how the media
covered the terror attacks and it actually helped the terror master minds who were seeing
the live coverage and planning their attacks in accordance. Top secret missions by the army
and intelligence agencies are also not to be disclosed to the general public and would be
detrimental to public security. Thus this situation could be a legitimate reason for curtailing
some freedoms. But these should not provide the government with excuses to cast the net
wider.

Free speech and the concept of Public Reason

Free speech is a necessary consequence of meeting the requirements of justice that a
democratic ideal entails. As Rawls says, this ideal “provides a publicly recognized point of
view from which all citizens can examine before one another whether their political and
social institutions are just. It enables them to do this by citing what are publicly recognized
among them as valid and sufficient reasons singled out by that conception itself…the aim of
justice as fairness, then, is practical: it presents itself as a conception of justice that may be
shared by citizens as a basis of a reasoned, informed, and willing political agreement. It
expresses their shared and public political reason” (Rawls 1996, 9). 2 Kant also talks about
public and private reason in his famous essay “What is Enlightenment?”. He talks of the
restriction on the use of private reason but not on public reason. “By "public use of one's
reason" I mean that use which a man, as scholar, makes of it before the reading public. I call
"private use" that use which a man makes of his reason in a civic post that has been
entrusted to him.”3

Conclusion
Freedom of expression is not something that most of us would grant for the others with a
smile but yet it is very important to realize that without it life would not be better but
worse off as we would have to live with a bunch of hypocritical and cowardly people who
only think of saving their skins rather than saying the truth. The best way to think about free
2
Rawls, J., 1996, Political Liberalism, New York: Columbia University Press.

3
"What is Enlightenment?" Kant. What is Enlightenment. Accessed January 10, 2018.
http://www.columbia.edu/acis/ets/CCREAD/etscc/kant.html#note1.
speech is to consider it like a market place of ideas. When conflicting ideas compete for
attention and acceptance, there is optimisation of arguments and rhetoric. There is no
better way to kill impetus for better ideas than to put restrictions on their expression. In
trying to censor bad ideas we block even the good ones. But rights are enmeshed in a web
of other rights. When one right results in infringement of other rights, we have a right to
seek constitutional remedies. Right to life and liberty take precedence over right to express
oneself. We surveyed a brief range of applications of free expression and found out that
most excuses to curtail this right are ill-founded but there are some serious objection to this
right as well which can be answered within a proper framework of ethics.

Bibliography

Gordon, David. "Controversies in Media Ethics." In Controversies in Media Ethics, 29. Taylor &
Francis, 1998.

Kant, Immanuel. What is Enlightenment?

http://www.columbia.edu/acis/ets/CCREAD/etscc/kant.html (accessed January 10, 2018).

Rawls, John. Political Liberalism. New York: Columbia University Press, 1996.