INDIA: A summary reading of recent judgments pertaining to free speech issues would reveal a mixed response from our judiciary when it comes to safeguarding personal liberties. While the cases of Priya Ramani and Disha Ramani have been hailed as examples of the judiciary acting as a watchdog of personal liberties, other instances, such as the denial of anticipatory bail to the producer of web-series Tandav point to a different reality. Not to mention the disparity in the time taken to hear bail applications, epitomized by the Apex Court’s verdict in the case of Arnab Manoranjan Goswami vs. The State of Maharashtra.
A divided judiciary?
From the above, two broad doctrinal strands vis-à-vis the right to freedom of speech and expression can be identified. The first being based on a paternalistic conception of society as it seeks to protect individuals from potential harms that may arise from the exercise of free speech, and the second being liberal, insofar as it seeks to restrain the scope of Government intervention in matters protected under Article-19(1)(a).
The blame for the above contradictions in judicial decision-making can be attributed to deeper jurisprudential issues in our criminal justice system that remain unresolved. Tensions between the right to freedom of speech and expression and laws that seek to penalize speech have been ignored by Parliament since Independence. The Supreme Court has intervened and interpreted the scope of reasonable restrictions under Article-19(1)(a) to ‘read down’ colonial era laws (see Kedar Nath Singh vs. State of Bihar) but has refused to revisit those decisions.
As a result, we are left with a set of jurisprudentially inconsistent laws being interpreted contradictorily.
Irrespective of the ruling party, governments have exploited these issues and used them as a tool to suppress dissent. Routine decisions in cases of conflicts between personal liberty and free speech are being hailed as victories in the battle for civil liberties. This points to a deeper malaise, as these decisions should be the norm and not the exception.
The problem, however, extends beyond the above jurisprudential issues and is one that has slowly become a societal menace.
The Heckler’s Veto
The heckler’s veto is a term that was coined by Professor Harry Kalven from the University of Chicago and refers to a process where powerful groups suppress dissenting speech by threatening public disorder/disturbance. It is a phenomenon that is becoming part and parcel of discourse in contemporary Indian society and carries with it the danger of giving rise to echo chambers that operate as self-appointed proctors of free speech.
In the United States, free speech jurisprudence grants a speaker a positive right in case of a heckler’s veto situation. Law enforcement is required to protect the speaker in cases where individuals/crowds threaten hostile action in response to speech. This offers us a radical yet logical interpretation of a government’s duty in cases of unpopular speech. It offers us with a vision of the State, wherein it facilitates the dissemination of unpopular views, thereby recognizing the importance of unpopular views in the market-place of ideas.
The only jurisprudential exception to the expansive right granted to speakers is that under fighting words doctrine. It allows the judiciary system to intervene where speech incites an immediate breach of the peace. Thus, instead of conflict between the state’s police power to prevent and regulate violence and its obligation to protect free speech, we have a situation wherein two operate symbiotically.
A logical basis for the conception of a right to offend?
Promoting dialectic in a marketplace of ideas is not only logically consistent from a functional perspective but is also essential as it ensures that the ideological mainstream is constantly challenged by ideas deemed eccentric or extreme. Contemporary society’s perils are characterized by a zeitgeist that portrays a deep divide between people’s views and a general intolerance for ideas that are contrary to a particular worldview.
Given the above societal backdrop, it becomes imperative to, at the very least, begin debating the contours of a right to offend based on the logic underlying the heckler’s veto. While the above section discussed the broad conceptual framework surrounding the same, this section shall examine the Dennis formula proposed by Richard Posner who provides us with a model of regulating free speech from a jurisprudential perspective.
The above is a counterpart to Judge Learned Hand’s free speech formula in the case of the United States v. Dennis, wherein he stated that the Communist Party had an absolute constitutional right to advocate a political agenda that involved the use of violence. Posner does not subscribe to the absolutist stand that Judge Hand adopted, instead, he says that a court called on to determine the constitutionality of a law that limits freedom of speech ought to consider the following formula:
B < PL
Here, B is the cost of regulating speech and it includes harms caused by loss of information that may be valuable from a dialectical perspective as well as legal error-costs incurred when courts try to distinguish information that is dangerous to society from valuable information. P refers to the probability of the speech causing harm and L is the social cost/loss incurred due to the magnitude of the harm caused.
The idea is to regulate speech if and only if B < PL, in other words, only where the cost of regulating speech is lower than the probable social harm that may result from it. Elements like probability may seem to befuddle the equation further, however, here we must recall the fighting hands’ doctrine which applies only where speech incites an immediate breach of peace.
It is the author’s opinion that the discussion of the above concepts under a broad framework of a right to offend is vital if we must protect personal liberties and promote a more inclusive ethos when it comes to speech. This is because the implementation of such a right would alter the Government’s role drastically and thus reduce the load of bail/anticipatory bail applications on an already over-burdened judiciary. Furthermore, it would ensure that speech is only interfered with where it is absolutely necessary to do so.
Here we may recall the great Oscar Wilde’s famous quote:
“I may not agree with you, but I will defend to the death your right to make an ass of yourself”
A right to offend would add the words, “and me too” after the above to ensure that we as a society have thicker skin and open minds when it comes to speech.