Which side are we on?

January 11, 2015

Speech should be checked only in case of an imminent threat

Which side are we on?

Most people, if asked, would claim that they believe in freedom of speech and expression. But this belief, for better or worse, soon runs into difficulties. The terrible attack on the office of a French magazine, Charlie Hebdo, has seen many in Pakistan and across the world justifiably condemn a violent crime. There is absolutely no justification for murderous violence in the name of religion by extremists who have taken it upon themselves to challenge values that so many of us cherish.

But keep in mind that this is the same Pakistan that in the past two weeks has celebrated draconian state-led measures -- the establishment of military courts for ‘speedy’ trials of those charged with terrorism as well as calls for banning certain speech, including hate speech.

As much as I may be disgusted with some speeches of particular religious leaders on Pakistani cable television -- and by this I mean speech that demonises vulnerable religious, ethnic, social minorities -- I cannot bring myself to support calls for banning such speech. We are not the first society to be faced with such issues. Countries across the world have tried imposing bans on speech that they deem harmful or intolerable because of their unique historical, social and political circumstances. Many countries in Europe criminalise speech that denies the terrible atrocity of the Holocaust. But does this solve the issue?

There is one country (i.e. the USA) that takes a different approach and has made the determination that the solution to "hate speech" is not banning speech -- but more speech. The United States has also not allowed criminalisation of speech that denies the Holocaust. The reason is the First Amendment of the Constitution of USA which, in part, reads: "Congress shall make no law abridging the freedom of speech.

But this does not mean that no limits on speech exist in the US. Courts have crafted exceptions. Broadly speaking, defamation, obscenity (as long as it meets a stringent test), child pornography, incitement to violence and "fighting words" (rousing the addressee of words to commit an act of violence) are unprotected by the First Amendment. The test for incitement to violence remains stringent in the US: 1) the speech must aim to direct or incite imminent (i.e. immediate) unlawful action and 2) the speech must be likely to produce such imminent unlawful action. This is the famous Brandenburg test.”.

By learning to tolerate ideas that shake us to our very core we can spread the ideal that we all hold precious -- individual liberty and freedom.

The rest of the world, like us and like France, encourages speech and expression but also limits it more regularly. The developments in Pakistan in the past two weeks and the events in Paris have affected me deeply. Speech to me is the most precious of all freedoms. No one in Pakistan or France should have to die because of speech that offends someone (regardless of religion) or makes them uncomfortable. Yet it happened at Charlie Hebdo and continues to happen in cases related to, among other things blasphemy, in Pakistan

Why then do we as societies, at times when we feel threatened, rush to ban or limit expression of others? The same disease afflicts us as our enemies: an insecurity that more speech is not the answer -- but we need to revisit this and start believing that it is. In Pakistan we have banned/blocked everything (at different times) from Blackberry services, YouTube, Facebook and certain websites while fearing that our society will collapse. Nothing justifies that. To the extent that our law and jurisprudence is at odds with safeguards aimed at promotion of speech, we must revisit the law -- whether made by parliament or the courts.

The conservatives in Pakistan today, the likes of JUI-F and JI, are cautioning that we must not demonise madrassahs or encourage calls for banning speech by certain right-wing religious leaders. And they have a point. Just because one may disagree with their politics (or find it repulsive) does not mean we cannot agree with them on a principle. The problem, of course, is that the same religious parties call for banning speech that makes them uncomfortable. Their lack of consistency on principle is the problem -- but come to think of it the same problem afflicts the liberals.

Interestingly, the Brandenburg test of incitement to violence that I outlined above was developed in a case where the speech involved was that of the Ku Klux clan. Hence free speech law developed when the speech of ultra-right violent groups was involved. It will be interesting to see how Pakistani courts address this problem. When speech deemed repulsive by the majority is deemed lawful, it enhances the freedom of speech of all. We must realise this.

When we in Pakistan call on our government to ban hate speech or impose restrictions on speech that we do not like, we are ceding our liberty to the state. Furthermore, we are insulting our own ability to make a difference in the marketplace of ideas through more speech. A government or state emboldened by calls to ban certain speech will always use it as a political tool -- and the groups that are embedded in the establishment’s "friends’ list" will always exercise greater control over the enunciation and spread of ideas. The problem can, partially, be addressed by remaining cognizant of the "speech versus action" distinction. Where the government must act is the control of (violent) action -- not speech itself. The domain of speech relates to our liberty and we can increase it by exercising this right with greater vigour.

Each time we call on a cleric to be banned from television we are strengthening the idea that words that we deem dangerous should be controlled -- playing into the hands of the extremists.

Humans, as pointed out by Adam Smith, stand out from animals in one important respect: our natural instinct and ability to persuade those around us. Communicating ideas is the very essence of our existence. By calling for a gag on certain speech, unless it amounts to incitement to ‘imminent’ violence, we are strengthening the repulsive ideals that we claim to oppose.

Speech is meant to make us uncomfortable, it is meant to offend. By learning to tolerate ideas that shake us to our very core we can spread the ideal that we all hold precious -- individual liberty and freedom. And that is an ideal that is currently, and perhaps has always been, imperiled in Pakistan.

Which side are we on? Freedom or repression? Don’t give me the ‘freedom with responsibility’ argument. There is no point to a freedom if I cannot use it to make you uncomfortable. Draw the line where there is an imminent threat of immediate violence. Otherwise, stop pretending that you believe in free speech.

Which side are we on?