Following my earlier post on FoE, one question that remained unresolved in my mind: does FoE automatically granted everyone the freedom to insult. Rajeet raised a similar issue in his comments on that post. Here I try to (somewhat) address that question and also share some more ideas and information that I have come across.
It appears that the United States has taken an extreme position on free speech, through its interpretation of the First Amendment that there shall be no law abridging the freedom of speech. The US Supreme Court, in a landmark case in 1969, went so far as to permitting even "hate speech" as protected by Constitution unless it presented the possibility of "imminent lawless action." This formulation, referred to also as the Brandenburg test, looks for "imminence, intent and likelihood" of the speech leading to violence or violation of laws.
Another recent US Supreme Court judgement in Snyder vs. Phelps reaffirmed this "extreme" view on protecting speech, thereby enabling the Westboro Baptist Church to make offensive statements at a soldier's funeral... as long as it was speech in public interest, made at a public location. Essentially, as long as a particular speech is not personal in nature nor delivered to a "captive audience," the state has no right to prohibit it, subject to the Brandenburg test. In an earlier case, Cohen vs. California, the USSC struck down a law that tried to regulate content of speech, whereas the state may be within its right to determine conduct (timing, location, etc.) Even with regards to restrictions on conduct, the USSC had issues with a law that was "vague" and did not specify what citizens could do or not. They said that the words "offensive conduct" alone cannot "be said sufficiently to inform the ordinary person that distinctions between certain locations are thereby created." Justice John Marshall Harlan II famously wrote, in the context of a four-letter expletive in this case, that "one man's vulgarity is another's lyric."
Therefore, my understanding of the US position is that insulting a religion is permitted under FoE because it is a matter of public interest, but insulting someone personally - the fighting words doctrine - would not be protected speech.
So, should you punch someone in the face because he/she insulted you or your family? Clearly Pope Francis believes, yes, in spite of what Jesus suggested about turning the other cheek. Ironically (because of the context of the statement), another spiritual leader, Swami Vivekananda also expressed similar sentiments about what he would do in such a situation. Beyond the rhetoric, the legal position appears to be quite clear: a violent reaction to a verbal insult will put you on the wrong side of the law. So while one would have legal recourse against verbal abuse, particularly if it is threatening or defamatory in nature, giving it back in the same vein might be a more prudent response, if at all. The issue with laws that start encroaching on the verbal insult / abuse territory is that politicians / police officers / lawyers won't know when and where to stop. In fact, faced with (often silly) distorted implementations of the law against insulting, England recently removed the restrictions on using insulting language (unless it is specifically personal) in its Public Order Act.
Given how the US laws treat free speech, it is quite clear that freedom of expression is severely, and vaguely, restricted in India, because of the First Amendment (how ironic!) to its Constitution.
Just take another recent issue around the Censor Board... while its official name is the Central Board for Film Certification, it actually acts as a guardian of morality and a state-enabled filter for speech. Isn't it strange that a nation of such complexity, diversity and size has allowed a few people, sometimes with no appropriate qualification, to determine what movie content is officially available to be watched. Unfortunately, not only has it been taken for granted that censorship will exist, the new chief of CBFC wants to extend this policing to other forms of content. Incidentally, the US does not actually have a censor board equivalent... the closest they have is the Motion Picture Association of America (MPAA), which is a private trade body and administers the MPAA Ratings that are voluntary for film-makers to use.
Finally (for this post), I want to share this post by Nitin Pai which provides great clarity on the liberal nationalist position on free speech. Here's a portion that I found very interesting:
How much merit is there to the movement for a complete libertarian state where speech is truly free? Is it even possible?
There cannot be a complete libertarian state, as that is an oxymoron. A state involves a social contract where some liberties are traded away for the privilege of enjoying the rest of them. So we give up the right to violence to the state, so that we may enjoy the right to life, property, free speech and so on.
A figure of merit, therefore, is how few of our liberties do we need to give up in order to enjoy the rest. North Koreans give up 90% of their liberties to enjoy the remaining 10%. North Americans give up 10% of their liberties to enjoy the 90%. I think India should aim to move towards the North American standard, rather than the North Korean standard.
As usual, I am learning more on this topic... please feel free to share your views and suggestions.
