Defending our right to offend



So much has been heard recently about attempts to stifle and curb freedom of expression that perhaps it is time to re-examine the first principles on which the right to free speech is predicated.

Before that, however, let’s just state some of the things that we agree on. The first is that liberal democracy is not possible without freedom of speech.

It is the first and most important human right in a liberal society. Let us also agree that any abridgements to freedom of speech cannot be based on fear of the mob.

The argument offered by Tamil Nadu chief minister, J. Jayalalitha, at her press conference this week that she had no choice but to ban Vishwaroopam because she lacked the police force required to protect every cinema hall is entirely bogus.

The state has an obligation to protect free expression. And, if there is the threat of violence, then it is the state’s job to prevent that violence and to act against those who would cause it.

It is completely unacceptable to sacrifice the fundamental human right of free speech on the grounds of inadequate security.

But why blame Jayalalitha alone? This argument has been offered again and again by various governments in many other cases where free speech is under threat.

But it is a bogus and specious argument and shame on us, the media and the citizenry, for allowing politicians to get away with offering this justification.

We also agree that free speech is not absolute. We agree that it can be abridged in certain cases. For instance, the right to freedom of speech does not allow you to reveal defence secrets. Similarly, defamation is an area where the courts may curtail free speech.

We restrict free speech when it is directed at children and minors. And every society draws its own line somewhere in the sand when it comes to graphic depictions of sex.

Even in America, where free speech is rarely restricted, movies that glorified sex with animals, for instance, would find it difficult to get exhibited.

There is, however, one restriction of free speech that can be controversial and usually leads to the kinds of arguments we have witnessed over the last month. As the saying goes, freedom of speech does not give you the right to yell ‘Fire!’ in a crowded theatre.

What this means is that if you misuse that freedom to knowingly cause panic when there is no cause for it, then the authorities have the right to curtail your freedom of expression.

In the second half of the 20th century, many liberal societies took this exception to the principle of freedom of expression and extended it to include what is described as ‘hate speech’.

The degree to which societies are willing to ban hate speech differs. For instance, the American civil liberties union, an organisation comprising liberals and left-leaning folk, has often gone to court to protect the right of neo-Nazi groups to conduct marches.

The ACLU deeply loathes the venom and hatred that the neo-Nazis spew against Jews, Black people and the like. But it argues that the fascists have a right to express these views, anyway.

Such societies as those in Europe are more willing to curtail hate speech. In the UK, for example, the race relations act prohibits the expression of any hateful speeches based on race or ethnicity. In India, we have a host of similar legislations aimed at protecting communal harmony.

All this begs the question: when does the expression of an opinion become a hate speech? This is a grey area and is settled in most countries on a case-by-case basis, relying on the discretion of the courts. (In much the same way as defamation is decided.)

But the general principles are these: was it the intention of the man who made the allegedly hateful remarks to incite hatred? Were his remarks (or his work of art, movie, painting, book, etc.) designed to incite violence? If the answers to these questions is ‘yes’ then there may be a case for curtailing freedom of expression.

It is important to note that the intention of the person making these remarks is crucial. It is not enough to say that the remarks could lead to violence because, frankly, anything can lead to violence if a small group of people are determined to react violently.

If I were to say, for example, that the Communist party has historically put Russia’s interests ahead of India’s and CPI workers then burn my house, the law will look at my intention.

I was merely expressing an opinion and had no intention of encouraging violence or hatred. The crime was committed by those who tried to curtail my freedom of expression by resorting to violence.

While the ‘hate speech’ exception causes problems and disagreements all over the world, the situation is rendered more complex in India because we have smuggled in another reason for the curtailment of freedom of expression: causing offence.

This is a distinctly illiberal concept. If you take away the right to cause offence then you might as well take away the right to free speech. Suppose I were to review a book and say that it is total garbage written by a man who does not know what he is talking about.

Obviously, this may have the effect of offending the author of the book. But just because he is offended, does it follow that my freedom of expression should be curtailed?

This argument is so convincing that those who would curtail free speech make a different point. They say that while it may be okay to offend an individual, it is never okay to offend a group.

So, the Communist Party has a right to curtail my free speech if I insult the party as a whole. Muslim fundamentalists have the right to ban Danish cartoons of the Prophet Mohammad because they offend Muslims. Hindu fundamentalists have the right to ask for a ban on M.F. Husain’s paintings because they offend some Hindus.

This argument is completely illogical. Why should it be okay to offend an individual but wrong to offend a group? The principle is exactly the same.

And yet, we in India have mistakenly accepted that any work of art of speech that offends a group must be banned or at the very least, modified till the intolerant protestors are satisfied.

J. Jayalalitha’s demand that Kamal Haasan should sit down with Islamic groups and re-edit his movie, falls into this category. But there are precedents.

When Indian Catholics objected to the movie of the Da Vinci Code (even though the movie was running successfully in Christian countries in the West) the then information and broadcasting minister asked the chief of the censor board to sit down with representatives of Christian groups and make cuts in the movie. To her credit, the then chief of the body, Sharmila Tagore, told him to go to hell.

So, in looking at the recent controversies, we need to remember that in a liberal society the causing of offence is not grounds enough for banning anything.

And when it comes to hate speech, it is intention that is paramount. If we were to judge hate speech only on the basis of the reaction it evoked, then each and every remark could become hate speech because there is always somebody out there who is ready to take to violence.

How does this impact the recent controversies? Well, for a start, it suggests that Vishwaroopam is being unfairly targeted. Perhaps it offends some Muslims. Perhaps they are right or wrong to be offended.

But either way, it does not matter. If they are offended, they should not see the movie. As for the Salman Rushdie controversy, it is completely illiberal for India to continue to ban The Satanic Verses and for such states as West Bengal to say that Rushdie is not welcome.

Once again, the same principle applies. So what if some Muslims are offended by Rushdie? It is not the job of the law to protect sensitive souls from being offended.

What about Shah Rukh Khan’s article? Well, if you have read it, you will know that it causes no offence to anyone except perhaps the Shiv Sena, which is indirectly criticised for asking him to go to Pakistan.

But if you were to object to everything that offended the Shiv Sena then all of us would be unemployed and the Indian media would have to close down.

That leaves Ashish Nandy’s remarks. Nandy has clarified that he used the wrong words. But even if we were to disregard his clarification and focus on what he actually said, he was making a sociological point. The point may well have been wrong. (In my opinion, it was.)

But he was not making that point with the intention of inciting violence against Dalits. As an academic, he was making an observation.

And academics have the right to get it wrong when they make such observations. To prosecute him under a law designed to protect Dalits is to make a mockery of the law itself.

That leaves one controversy: Honey Singh. The objection to Honey Singh was one of incitement to violence. Those who protested about his rape song (including me) argued that the song was an incitement to go out and rape and attack women. The objection was not that it offended people. (It did. But he has a right to offend me.)

Even those who signed the protest petition (which I did) did not ask for any legal action against Honey Singh or for a ban on his music. Our petition was directed at a hotel that was hosting a Honey Singh show. Did the hotel want to be associated with a man who incited violence?

As it turned out, the hotel did not and even Honey Singh appears to have admitted that the song was an error of judgement. (I say ‘appears’ because he has said different things at different times.)

The problem with too many Indian liberals is that we have lost sight of the principles on which free speech is predicated.

Yes, free speech can be curtailed on certain grounds – national security, defamation, incitement to violence and a conscious desire to spread panic – but it cannot be curtailed only because somebody is offended.

And until we accept that, freedom of expression in India will always be in danger.

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