Threats to freedom of speech
By Neville Ladduwahetty (Courtesy The Island)
The fundamental right to “the freedom of speech and expression including publication” in Article 14. (1) (a) of Sri Lanka’s Constitution, as well as the First Amendment to The United States Constitution, and other United Nations instruments, is being seriously undermined by the spate of hate speech prevalent in several countries including Sri Lanka. As a consequence, communities in these countries are being polarized on racial, religious and other distinctions causing tensions among communities to pointsthat could even threaten public security in these countries. The debate is whether unrestrained freedom of speech should be permitted or should it be sufficiently abridged legallyfor the sake of security that is central to the wellbeing of people everywhere.
What constitutes hate speech? Is it any speech that causes racial and or religious disharmony or distress among communities to the point of undermining their security and wellbeing? Or, is it speech that leads to violence? Another aspect is that while only the speaker is involved in the case of speech that results in undermining harmony among communities, in the case of speech that leads to violence, the speaker as well as those who act on them is involved. Therefore, the strategies needed to address the two forms of hate speech are different.
If the hate speech results in violence should not both speaker and those who take to violence as a result of the speech be held legally accountable? In such an event should violence be the litmus test for speech to be categorized as hate speech? On the other hand, if speech, however ugly and distasteful it may be, does not lead to violence but promotes racial and/or religious disharmony, should free speech be curtailed? If not, should the strategy be to publicly identify, shame and discredit the person responsible for such speech? These questions should be carefully debated before rushing in to introduce legislation to curb freedom of speech.
AB– USE of FREEDOM of SPEECH
The Media Secretary of the Sri Lanka Ramanna Maha Nikaya Ven. Omalpe Sobhitha Thera addressing a news conference, organized by the Sri Lanka Ramanna Maha Nikaya at Sri Bodhiraja Dharmayathanaya in Narahenpita, said that “vituperative attacks on Maha Sangha with racial undertones have been tolerated by Buddhists all along as they were very patient and compassionate”. Continuing, he had stated: “The objective of those elements is to create racial and religious disharmony in the country and meet their political ends and as Maha Sangha we will not allow that,”(The Island, June 23, 2017).
The issue is how could free speech coexist with other forms of speech that undermine and disturb the sensibilities of groups and communities? If this question is not carefully considered with the deliberation it deserves it could undermine the right to freedom of speech to the detriment of a treasured value of a society.
The following approaches are presented with a view to exploring the options open to address concerns related to this issue:
1.To enact new legislation under provisions of Article 15 (2) of Sri Lanka’s Constitution that states: “The exercise and operation of the fundamental right declared and recognized by Article 14(1) (a) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence”.
2. To enforce existing provisions of the Penal Code if applicable, as suggested by Saliya Pieris P.C. in an article published in The Island of July 6, 2014.
3. Not to curtail freedom of speech however “vituperative” the attacks with “racial overtones” are, but to identify the persons concerned and to shame and discredit them in order to discourage them and any others from making derogatory comments that are sensitive to the sensibilities of a group or community.
4. Speech that could incite violence but however ugly, does not result in violence should not be categorized as hate speech, because in the case of such speech it is “difficult to prove that someone intended to incite violence” (Dr. Dayan Jayatilleka, Colombo Telegraph, June 21, 2017. On the other hand, speech that leads to violence at some future date and could be directly identified as the source that inspired the violence, should be categorized as hate speech, just as it does with speech that calls for violence being followed by violence. Those responsible for such speech should be held accountable to the full extent of the law.
Thus, strategies should be developed that discourage speech which impacts on racial, religious and other sensibilities of communities while permitting freedom of speech with the greatest latitude. In the meantime, legal provisions should be developed to make those who resort to violence punishable under the full extent of the law. Such approaches would cause individuals to be held responsible for the content and nature of the speeches they make.
Any speech that has a negative impact on groups and communities should be addressed in an appropriate manner without curtailing their freedom of speech. Whether such individuals are self-motivated or are agents of external forces interested in fermenting discontent and discord, the individual(s) concerned should be shamed and discredited with regard to the content of the speech without resort to personal comment. It is only then that the bar for appropriate conduct of an enlightened society could be set.
OPINIONS in the US
The 1st Amendment to the U.S. Constitution states;
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”.
Despite these constitutionally guaranteed freedoms on how to accommodate speech that is provocative and ugly, it has become a hot topic in the U.S. An article in The Washington Post of June 25, 2017 titled “No, hateful speech is not the same as violence” states: “Recent confrontations across the country reflect a growing tendency to answer speech with violence…But while there is a continuum of acceptable speech, language and violence should not be confused. The way to preserve our freedom of expression is to insist that speech, no matter how offensive, cannot justify violent reprisal”.
“U.S. law disallows several categories of speech that edge close to violence. For instance, a direct rallying cry to attack can constitute incitement to imminent violence, rendering such speech unlawful. Verbal “true threats” to do physical harm to someone are also prohibited and punishable, as is systematic harassment. Yet a great deal of hateful speech – racial provocations, invective, supremacist sloganeering – is protected by the First Amendment”.
LEGISLATIVE LIMITATION of FREE SPEECH
Speech that is acceptable and what is not, cannot be legislated because the distinction between the two is debatable and subjective. For instance, speech that conveys facts, opinions and ideas is acceptable provided the manner in which the speech is delivered is within limits of civility. On the other hand, the same facts, opinions and ideas could be delivered in a manner that is insulting and demeaning in which event it would be unacceptable. In the same vein, facts and opinions that may relate to a certain group/community or a religion could be presented in a professional manner in which event the only issue would be to challenge the accuracy of the material presented. If instead, the same facts and opinions are presented in an offensive manner with invective, it could strain relations between communities. Therefore, the content together with the manner in which a speech is delivered has more to do with harmony between communities than the content by itself. This underscores the difficulties associated with legislating speech that is uncivil and unacceptable.
Arresting individuals who indulge in speech unacceptable by norms of civility is not the solution because it amounts to stifling free speech. Furthermore, interpreting what constitutes unacceptable speech could be challenged. Therefore, it would be more productive for public figures and religious leaders to persuade perpetrators to refrain from uncivil speech because their conduct amounts to discrediting the community or the religion they belong to. In short, the strategy should be to bring pressure on the perpetrators to refrain from uncivil speech because it discredits the very community in whose name the adverse comments are made.
It is evident from the foregoing that it is not content, but the manner in which the content is vocalized that generates tensions among communities to a degree that could even threaten public security. The statement issued by the Mahanayake of the Asgiriya Chapter affirms this point of view when he says: “Although we do not approve the aggressive behavior and speech of Bhikku Galabodaatte Gnanasara the viewpoint expressed by him cannot be discarded. Insulting Bhikkus by various groups without inquiring into the veracity of the issues raised by him cannot be condoned” (http://www.lankadeepa.lk).
As stated in the foregoing, facts, ideas and opinions could be challenged and when doing so should be challenged in a manner that is civil. If the same facts, ideas and opinions are expressed in a manner that is ugly and provocative they would cause discord within the society. Therefore, every effort should be made to deter such conduct. Such effort should be spearheaded by influential members of the public and religious leaders coming forward, as the Mahanayake of the Asgiriya Chapter did, to warn the individuals concerned that their conduct discredits and dishonors the group they represent, and their society as a whole. What needs to be appreciated is that facts and opinions presented in a sober and measured manner gains more mileage than bombastic rhetoric. The bottom line is not to restrain free speech, but to restrain conduct relating to free speech