Right of free speech, one of the fundamental building blocks of a liberal democracy, has often been at odds with the hindrance posed by censorship to the unabated exercise of such right. While the use of censorship as a weapon to stifle counter opinions has indeed been granted socio-political legitimacy in regimes authoritarian as well as liberal, nonetheless, the intrinsic importance of the role played by censorship as a shield rather than a sword can hardly be neglected. In course of this paper, the author intends to emphasize that the very divergent nature of social mores in different jurisdictions and across different regimes worldwide strengthens the necessity for existence of censorship, albeit in varying degrees to suit the differing requirements of the aforesaid regimes. Any attempt to evolve a universalistic practice has scarce little options other than to turn into more of a farcical legitimization of Super Power Hegemonies, owing to the blatant disregard of the said inherent diversities that such universalism is likely to enforce.
“I disapprove of what you say, but I will defend to the death your right to say it”.
Evelyn Beatrice Hall [1]
“Goebbels was in favor of free speech for views he liked. So was Stalin. If you’re in favor of free speech, then you’re in favor of freedom of speech precisely for views you despise. Otherwise, you’re not in favor of free speech.”
Noam Chomsky [2]
“…When compared with the suppression of anarchy every other question sinks into insignificance. The anarchist is the enemy of humanity, the enemy of all mankind, and his is a deeper degree of criminality than any other. No immigrant is allowed to come to our shores if he is an anarchist; and no paper published here or abroad should be permitted circulation in this country if it propagates anarchist opinions.”
Theodore Roosevelt [3]
Free Speech and Censorship – A Brief Introduction
Free Speech is one of the constitutional guarantees of a liberal democracy – a right recognized by all International Human Rights Documents. It is an amalgamation of the Right to Freedom of Conscience, Thought, Choice and the ultimate expression, without being subjected to arbitrary blocks on its enjoyment, in the form of Censorship.
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Censorship, on the other hand, is the process of imposing checks, direct or indirect, governmental or otherwise, on the exercise of one’s Right to Free Speech. Apparently, this phenomenon can be perceived as a blunt curb on one’s basic Right to Liberty, but on another plane, it can be looked at in the form of a necessary evil – a limitation on one’s Human Rights in order to uphold the Community’s Human Rights. The broad social purposes of censorship can be laid down as to ensure that ordinary members of the community are not affronted by the display of material to which a majority of reasonable adults would object, to maintain a level of public decency, and to avoid the undesirable social effects which may flow from the “normalisation”, by its use in entertainment or other dissemination, of undesirable material. [4]
This paper aims to look at the interconnected nature of the two, keeping in mind the inherent diversities in different socio-political systems, and varied constructions of the two phenomena – ultimately leading to the unmistakable impressions about the questions of Democracy, Politics and Power.
In course of this article, the author has accepted as a foundational hypothesis the fact that throughout history and across jurisdictions, it has been noted that Censorship has been more often than not used to suppress counter-opinions – be it political or religious; this practice has been conferred political and legal legitimacy in jurisdictions alike, be it the most Authoritarian or the most Democratic of regimes. Suffice to say that more often than not, Censorship has been used as a sword rather than as a shield. However, this does not take away the intrinsic value of the check. Indeed, the need for Censorship is evident from the divergent nature of the social mores, albeit differently in different jurisdictions – trying to evolve a universalistic practice would thus disregard these inherent diversities, and would be more of a farcical legitimization of super power hegemonies.
Categories of Censorship
Paul O’ Higgins distinguishes Censorship into the following types [5] :
Autonomous – Self-censorship brought about by conscious or unconscious motives, which makes an individual wither to refrain from expressing his or her views or alter the same.
Social – Discouragement of the expression of certain ideas, either through socialization or sanctions, which lead to the emergence of taboos.
Legal – Enforcement of restraint by legal institutions such as the government, police and the courts – prior censorship or penal censorship.
Extra-legal – Telephone Tapping, d-notices, limited release of information about defendant at trial.
Voluntary – When an institution with shared common beliefs lays down upon constituents limitations on what they should or should not say or do, without sanctions – Press Council norms, etc.
Subterranean – When an individual or institution uses powers set aside for another purpose to impose censorship without direct government involvement – political censorship.
Free Speech and Censorship – An International Human Rights Recognition
Free Speech is an internationally guaranteed Civil and Political Right. However, this Right is subject to Reasonable Restrictions in the form of Censorship in most Human Rights Treaties and Systems. The main reason that can be attributed to such restraint is the requirement of public policy – the apprehensions about the abhorrent effects that an unbridled exercise of this Right may produce. Given below is a list of the provisions from different Human Rights Treaties – both International and Regional, which deal with the Human Right to Free Speech, and the operation of Censorship upon it.
Article 19, Universal Declaration of Human Rights – Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 19, International Covenant on Civil and Political Rights – (1) Everyone shall have the right to hold opinions without interference. (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. (3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.
General Comment No. 10 (29/06/83): – Paragraph 1 requires protection of the “right to hold opinions without interference”. This is a right to which the Covenant permits no exception or restriction. Paragraph 2 requires protection of the right to freedom of expression, which includes not only freedom to “impart information and ideas of all kinds”, but also freedom to “seek” and “receive” them “regardless of frontiers” and in whatever medium, “either orally, in writing or in print, in the form of art, or through any other media of his choice”. Paragraph 3 expressly stresses that the exercise of the right to freedom of expression carries with it special duties and responsibilities and for this reason certain restrictions on the right are permitted which may relate either to the interests of other persons or to those of the community as a whole.
Article 10, European Convention on Human Rights – (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 13, Inter-American Convention on Human Rights – (1) Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice. (2) The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: (a) respect for the rights or reputations of others; or (b) the protection of national security, public order, or public health or morals. (3) The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions. (4) Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence. (5) Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.
Declaration of Principles on Freedom of Expression – Freedom of expression in all its forms and manifestations is a fundamental and inalienable right of all individuals. Additionally, it is an indispensable requirement for the very existence of a democratic society… Every person has the right to seek, receive and impart information and opinions freely under terms set forth in Article 13 of the American Convention on Human Rights. All people should be afforded equal opportunities to receive, seek and impart information by any means of communication without any discrimination for reasons of race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition…Prior censorship, direct or indirect interference in or pressure exerted upon any expression, opinion or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law. Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression…Prior conditioning of expressions, such as truthfulness, timeliness or impartiality, is incompatible with the right to freedom of expression recognized in international instruments.
These inherent variations in the level and nature of governmental control over Freedom of Expression – also accounted for in the National Constitutions, Statutes and Judicial Decisions – collectively constitute the subject-matter of an interesting study, especially in light of the fact that they are also indicative of the extent of democratization and totalitarianism inherent in these countries. Thus, the First Amendment to the US Constitution [6] and the Glavlit System of Pre-Censorship existent in former USSR and many East European Countries [7] , throw light on two different ends of the spectrum. Somewhere in the middle lies the Brit-ECHR system of giving a bag full of Rights, and then putting sufficient, and very often, more than sufficient, restrictions on their enjoyment.
These variations are the results of the systems of governance and the Historical Evolution of Free Speech in these national jurisdictions – inasmuch as they account for an enormous blow upon those who tend to argue about the Universalistic Nature of International Human Rights.
Censorship and Free Speech – A Nexus with Questions of Power, Authority, Liberty and Democracy: A Comparative Critique of World Systems and Disputes of Theories
John Locke, one of the Founding Fathers of the Liberal View, advocated a Minimalist State intervention regime in his Life, Liberty and Property, which, according to him, were inalienable rights. [8] John Stuart Mill’s Theory of Marketplace of Ideas stated that if we suppress an opinion, it may turn out to be true. To assume otherwise is to assume that we are infallible, which is not the case [9] . According to O.W. Holmes, “the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out…” in Abrams v. U.S. [10] where, in his dissenting judgement, he also laid down that a governmental regulation on Free Speech is only justified where it is used to dispel a clear and immiment danger. Otherwise, the market should be left to determine the veracity of the assertion. This opinion of Holmes was later accepted by the US Supreme Court when it overturned Abrams [11] and upheld Holmes’ Clear and Imminent Danger Theory in Brandanburg v. Ohio [12] during the Vietnam War. According to Prof. Rodney O. Smolla [13] , Free Speech Serves Five Purposes in a Democracy: (a) As a means of participation, (a) Serving the purpose of Truth, (c) Facilitating majority rule, (d) Providing Restraint on Tyranny and Corruption by keeping the Government in Check, and (e) ensuring stability by allowing minority voices to be heard. [14]
However, the Marketplace of Ideas rationale for Freedom of Speech has been criticized by scholars on the grounds that it is wrong to assume the assertion that all ideas will enter the marketplace of ideas, and even if they do, some ideas may drown out others merely because they enjoy dissemination through superior resources. The marketplace is also criticized for its assumption that truth will necessarily triumph over falsehood. It is visible throughout history that people may be swayed by emotion rather than reason, and even if truth ultimately prevails, enormous harm can occur in the interim. Alan Haworth, in his book Free Speech (1998) [15] , has suggested that the metaphor of a marketplace of ideas is misleading. He opines that Mill’s classic defence of free speech does not develop the idea of a market (as later suggested by Holmes) but essentially argues for the freedom to develop and discuss ideas in the search for truth or understanding. In developing this argument, Haworth says, Mill pictured society not as a marketplace of ideas, but as something more like a large-scale academic seminar. This implies the need for tacit standards of conduct and interaction, including some degree of mutual respect. That may well limit the kinds of speech that are justifiably protected.
Political Extremism and Censorship
This is an issue that is very essential and relevant in the contemporary world – the question whether one should allow a platform for Fundamentalist and Extremist Organizations like the Al Qaida to propagate freely their views through their Private Television – the Al Jazeera TV, or ought there be governmental curbs on such broadcasting. An interesting debate on this subject had been voiced in the May, 1994 issue of The Guardian [16] , where two noted columnists argued on a similar issue related to providing a platform to the extremist British Nationalist Party.
According to Seamus Milne [17] , who advocated a curb on the BNP’s Right to Free Speech, the BNP necessarily violates the Human Rights of a large section of the population, and, by doing so, it has justified the abridgement of their Right to Freedom of Speech. The ‘oxygen of publicity’, if given to them, would help the spread of racism.
On the other hand, Polly Toynbee [18] argued that the banning of a particular group may set a precedent by which any group that does not conform to a norm is rendered prone to a similar ban. According to him, “Free Speech is not absolute – but we must be free to speak our political minds, and listen to political opinions of others, however nasty.” [19] This statement of his has an uncanny resemblance to the Marketplace of Ideas Theory, thereby highlighting its relevance in the contemporary world.
Use of ‘Offensive Language’ on College Campuses
The issue was the imposition of a Speech Code – banning the use of ‘offensive language’ at Stanford University.
According to Gerald Gunther [20] , “Speech should not and cannot be banned simply because it is ‘offensive’ to substantial parts of, or a majority of, a community. The refusal to suppress offensive speech is one of the most difficult obligations the free speech principle imposes upon all of us; yet it is also one of the First Amendment’s greatest glories – indeed, it is a central test of a community’s commitment to free speech.”
However, Charles Lawrence [21] opined that restrictions reflected genuine demands from students from minority ethnic groups, who had through harassment been denied the Right to Equality of Education. Being a supporter of the Hobbesian Principle of a Right for a Citizen to expect from the State Security of Person, Lawrence was thus advocating the same guarantee from a Welfare State, be it at the cost of restricting the offensive operation of some others’ unrestricted Right.
Pornography, Sexuality and Obscenity – an analysis of the Changing Voices
This is an area where views and opinions have a range encompassing a whole spectrum. For some, pornography is a threat to a moral order, whereas for others, it is a mark of emancipation from bondages.
The Libertarians seek to uphold individual freedoms and oppose state interference. According to then, State’s authority to make laws is only pertaining to the Public Sphere – and not on the individual choices and preferences in the Private Sphere (The First Amendment Assertion has been illustrated by Justice Thurgood Marshall in Stanley v. Georgia [22] where he says that if First Amendment means anything at all, “it means that a state has no business telling a man, sitting alone in his own house, what books he must read or what films he must watch”. This liberal fundament was also supported by the Wolfendon Committee Report in the UK. (H.L.A. Hart had also been a known supporter of a similar view and had argued for a separation of the private and the public spheres [23] ). Sexual repression is itself more damaging than sexual openness, according to the Libertarian view.
However, according to Conservatives, Pornography is a threat to ‘moral order’ and stability, and the material itself is disgusting and unworthy of publicity. Moreover, the Conservatives believe that State is empowered to pass laws controlling both Public and Private activities, as has been evident from Devlin’s dissent to the findings of the Wolfendon Committee [24] .
If one looks at the Feminist Movements, and the jurisprudence emerging there from, history shows changes and evolutions at every stage. Traditionally, feminists have supported the liberal cause, celebrating the need to discover the body and sexuality as a tool of emancipation from bondages. In the 1970s, Realist feminists stressed that pornography was not only damaging to women’s status in society, but also dangerous to their safety. Thus, pornography not only provides the foundations for, but also is, violence against women. [25] Hence, according to the Liberal Feminists, pornography is not essentially a question of mere censorship, but a question of the women’s Human Rights as a whole. [26] However, the 1990s have seen a shift in the trend. Avedon Carol [27] has claimed that women are suppressed not because of pornography but because of censorship. Wendy McElroy [28] has warned that anti-pornography legislations might result in a backlash against Feminism. Jean Seaton [29] has suggested that the Realist feminists run the risk of losing touch with the roots of feminism, in the Civil Liberties and emancipatory movements. Melissa Benn [30] argues that the problem is one of structural sexism, and censoring pornography would not solve the problem. Instead, anti-sexist laws need to be established.
The underlining philosophy behind the divergent philosophies is the fact that while one looks at the issue of censorship, one can look at it from two distinct planes – the Moralist plane, identifying the evils contained in what needs or needs not to be censored; and a Causalist plane [31] , which would need to look at the effects of the commission or omission of Censorship. The decades of the Feminist Movement indicated drastic shifts in views, from the Moralist Plane to the Causalist Plane, and vice versa – thereby leading to the wide divergence in opinions.
The Use or Non-Use of Censorship in Different Regimes
This section is a skeletal overview of the existing politico-judicial approaches towards Free Speech and Censorship on select issues in the US, UK, former USSR and India, which would adequately throw light on the kind of governance and degrees of guarantee of Human Rights in the individual regimes. Interesting to note, the instances referred to would be more of acts of a Subterranean Censorship – imposition of Censorship through means not directly aimed at doing so.
Issue
USA
UK
Former USSR
India
Speech that may lead to Rioting, i.e. localized violence
Edwards v. South Carolina [32] :
Clear and Present Danger Test.
New York Times v. US [33] :
Prior Restraints on Speech and Press are constitutionally very suspect.
Wise v. Dunning [34] :
Anyone who utters something that is likely to lead to violence can be punished.
Street Corner Orator? Anti State Speeches? Unheard of. Reports about Soviet Police disallowing observance of Human Rights Day…tells a tale…
A/19 (2): Public Order a ground for imposing restrictions. S/144, CrPC a tool for imposing preemptive indirect censorship.
Counter Doctrines and Subversive Groups
Anti-Communist Activities in the 40s supported by legislations like the Smith Act and Supreme Court Decisions like Dennis v. US [35] where the evil produced by such Speech was ‘Grave and not Improbable’. However, situations changed post-Brandanberg.
Concept of ‘seditious libel’ – R v. Aldred [36] . Any incitement to use force against State was seditious libel.
Soviet Criminal Code punished ‘Agitation or propaganda carried out with the purpose of subverting or weakening the Soviet Regime…’ essentially, anti-Communist Campaigns.
Preventive Detention Act, s/124A of the IPC and, on a broader political plane, imposition of A/356 on grounds of Breakdown of Constitutional Machinery.
Criticism of the Government and Public Officials
New York Times v. Sullivan [37] :
No punishment if actual malice cannot be proved.
Initially, strong Contempt of Court Jurisdiction, even in case of Fair Criticisms of Judicial procedures and decisions – R v. Editor of New Statesman [38] . However, standards of stringency notably lower now.
No difference between criticism and subversion – hence, repression was the result.
Sullivan standards not followed. Contempt and Privilege very strong tools in the hands of the State. Moreover, imposition of MISA and Repressive Press Laws during Emergency.
Sexually Oriented Materials
Miller Test [39] – liberal standards.
Hicklin Test [40] – Rigidity.
Strict pre-Censorship of Pornographic Material by the Glavlit.
Largely influenced by Hicklin – gradual liberalization post Bandit Queen.
The obvious conclusion that emerges out of an analysis of this Table is that the US is the Country which, through the Constitutional Assertion of the First Amendment and a liberal, yet vigilant judiciary, and a Democratic Governance system, been the highest protectors of the Free Speech Rights. Admitted that the events of 9/11 have forced the US to make more stringent laws often aiming to curb Personal Liberties, but still, it has been a guiding light in the direction ahead, at least it seems so.
But, how true is this assertion? Is it, like much other propaganda, only an ideological and hegemonic whitewash of the only surviving superpower? The list of incidents below, which deals with Governmental acts of subversion of the voice of conscience in the US and other Western Countries is self-explanatory [41] : –
Voice of America, a federally supported international broadcasting organization, decided not to air a story that included parts of a rare interview with the leader of Afghanistan’s ruling Taliban, Mullah Mohammed Omar.
Those who deny that the military occupation of the West Bank and Gaza Strip by Israel, its use of extrajudicial executions against Palestinian gunmen, the Israeli gunning down of schoolboy stone-throwers, the wholesale theft of Arab land to build homes for Jews, is in some way wrong would like all criticism of Israel to be labeled as “anti-Semitic” thus branding the critic’s statements as heinous and unworthy of consideration.
Military autopsy reports provide indisputable proof that detainees are being tortured to death while in US military custody. Yet the US corporate media are covering it up.
Dr. Elsebeth Baumgartner currently faces up to 109 years in prison in the U.S. state of Ohio for her criticism of, and accusations of corruption against, government officials in Ohio.
In Canada, school teachers have limited freedom of speech, both on and off the job, regarding certain issues (e.g., homosexuality). Chris Kempling was suspended without pay for writing letters, on his own time, to a local newspaper to object to LGBT-related material being introduced into public schools. Kempling pursued the freedom of speech issue all the way to the Supreme Court of Canada without success.
By the Official Secrets Act, the London government has the power, throughout the UK, to order that certain subjects are abs
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