Shashi Tharoor and Free Speech Restrictions

Yesterday, Shashi Tharoor pointed me to a Deccan Chronicle article where he lays out his rationale in detail. Let me address some of the examples, analogies, and references in the article. These rhetorical tools Tharoor used are frequently used by others who support some curtailment of free speech, so it's important to analyze them.

Justice Oliver Wendell Holmes, in the US, put it memorably when he said that freedom of speech does not extend to the right to shout “fire!” in a crowded theatre.

This quote has been misused so often in free speech arguments, that it is like the also-misused Einstein quote "God does not play dice" frequently employed by religious people against atheists. There are a couple of brilliant dissections of the Holmes quote, along with the context in which it was said here (scroll down) and here.

But in short,

a. Tharoor, like most people misquoting the line, has conveniently left out the falsely in the falsely shouting fire part.
b. The judgment restricting free speech where Holmes wrote it was overturned by the US Supreme Court in 1969.
c. Holmes himself changed his mind and when a similar case came to the bench, voted against curtailing free speech.

The irony here is that Tharoor has misused the quote in much the same way that Justice Holmes did in the original context. The Supreme Court case wasn't about whether to prosecute a man shouting fire in a crowded theater. It was about whether a couple of people distributing fliers criticizing the US government's draft order for World War 1 were right. Holmes wrongly used the analogy in a context where the government wanted to stop an individual from criticizing the government.

Mr Sibal’s main concern was not with politics, but with scurrilous material about certain religions that could have incited retaliatory violence.

And Tharoor is using it in a context where, despite all this talk about wanting to curb vile incitements, the fact remains that 2/3rds of the postings that the Indian government asked Google to remove were criticisms of the Government. Tharoor keeps insisting in his column and on twitter that Sibal's concern is not politics. But he refuses to explain why most postings sought to be removed criticized the government, and had no overt or covert scurrility about religion, or anything that could incite retaliatory violence.

Free speech absolutists tend to say that freedom is a universal right that must not be abridged.

This is a mischaracterization. Free speech supporters actually say that GOVERNMENTS should not abridge this right. Which brings us to....

But in practice such abridgement often takes place, if not by law then by convention. No American editor would allow the “n” word to be used to describe black Americans, not because it’s against the law, but because it would cause great offence.

And most free speech absolutists, including me, have no problems with abridgment by convention or social pressure, as long as it is not by law. Yes, the American society has placed a high cost on using the n-word. But it has not, will not, and thanks to a solid constitution and a generally rigorous legal system, cannot legally penalize someone for saying the n-word.

I don't know of anyone who insists that free speech means the editor should have no say in what his publication publishes. It's his publication. He gets to decide what goes in there. Similarly, I don't have a problem with Google or Facebook or Twitter voluntarily deciding to delete content that they don't like. Their servers, their decision.

The problem is with the government placing restrictions or handing down convictions in case some editor does decide to publish the n-word. Or Facebook has no problems with someone publishing a post critical of Sonia Gandhi.

As for the general points regarding free speech, and using the excuses of its possible consequences to restrict it, they have been wonderfully made by Greatbong and Amit Varma. And in response to Tharoor's points in an earlier context, by Christopher Hitchens here (do watch the video!). I will not repeat them here.

But will end with one last question for Shashi Tharoor. If a group of people band together and decide that The Great Indian Novel is insulting enough to the Hindu epic Mahabharat and the Indian freedom movement to go on a riot, would you ask for a ban on it? After all, riots in India have been sparked (engineered?) by text much tamer than referring to the father of the nation as Public Enema Number One.

Open Letter to Shashi Tharoor

Dear Shashi

First up, let me admit that I find the whole idea of "open letters" a bit grandiose and moronic. An exercise in conscience massaging more than anything useful. Kinda like..... I don't know.....maybe the United Nations? But still, I was annoyed enough by your craven volte face on the Indian government's proposed censorship measure to write this damned thing.

So here are a few tweets you posted about Kapil Sibal's proposal to censor the social media.

Spoke to KapilSibal. He assured me he opposes political censorship. Concern is re communally inflammatory images&language which he described.

As I said in my debate w/Hitchens that many of u have cited,all societies observe certain restraints re language&images acceptable in public

I understand Facebook is indeed taking down some pages that KapilSibal showed them. Pretty vile stuff. Sadly public didn't object2them 1st

I reject censorship. Art,literature&political opinion are sacrosanct. But inflammatory communal incitement is like a match at a petrol pump.

@KanchanGupta Kanchan, come on. Nowhere have I supported political censorship. I have a pretty long record of standing up for press freedom

You then tweeted that we should wait for some Deccan Chronicle and/or Asian Age article from you so you can expound at length on what the heck it is you mean.

So what the heck do you mean, Shashi? Do you support censorship or don't you? Because from what I read in your tweets, you are not opposed to censorship per se, only to "political" censorship.

What is "political" censorship? Censoring your political opponents? So if party A which is in the opposition says something and party B, which is in power censors it, that is wrong, and you're against it? Great! So you don't really support the "freedom" of speech. You support the "privilege" of speech, a privilege which is only extended to politicians, not to common voters.

So if I, as a common voter, say, something on my Facebook wall questioning the great place that Chhatrapati Shivaji holds in Maharashtra politics. And if the Sena or NCP decide to censor me, that is fine, because it is "pretty vile" or "communally inflammatory". But if I first enroll in some political party, file papers for a legislative seat, and say the same thing, then it is "political censorship" that you oppose?

So if I say something about Shivaji and am censored, whether it is wrong or not will depend on whether I am a politician or not? Do you realize how utterly ridiculous that sounds?

Oh oh oh.... I am sorry. Of course! It depends on what I exactly say, doesn't it? The speech has to be "vile" enough to be "inflammatory communal incitement is like a match at a petrol pump". So if I say something that in your or Sibal's (or according to Sibal, Zuckerberg's) infinite wisdom is just a mature critique of Shivaji's place in Maharashtra, then I have the right to free speech. If what I say is "vile" or "inflammatory" then it should be censored, huh?

And who makes that call?

Let me take a short detour here. And bring in an uncle. This uncle and I, over the years, shared a lot of conversations about literature. We recommended books to each other, and discussed them at length. We grew to trust each other's judgment on books, and took each other's opinions seriously.

Until one day in 1999. I recommended a book to him. He told me he was going to buy it. He read it. The next time I met him, he was more upset at me than when I had accidentally broken a rare vase he bought from Hong Kong.

"What crap are you reading, Gaurav?" he thundered.

"Huh???"

"Is this how little you respect you country and your culture?"

"What?"

"Public ENEMA number one? Is that how you'd talk about Gandhiji?"

"Ohhh....."

"You would read a book that jokes about Gandhiji shoving something up his own butt?"

"Uncle...."

"What offensive nonsense is this? Using our glorious and heroic freedom struggle and the most venerated Mahabharat for toilet humor and disgusting innuendos? This is some vile stuff!"

(I swear he used the word 'vile'!)

"Uncle, come on!" I protested and tried to reason with him.

And so the conversation went.

The book that he got so offended and inflamed by....well Shashi, I don't need to tell you what book it was. But in case someone eavesdropping on this open letter is wondering, it was The Great Indian Novel by Shashi Tharoor which jokes about things much more irreverent than Gandhiji getting an enema.

Obviously, I don't think the book is inflammatory. But my uncle did. I also know people who think the great Indian cult comedy Jaane Bhi Do Yaaron should be banned, because it insults the Mahabharat.

And in case you think these are just some fringe loonies, here's a sobering thought. I knew a guy a decade ago or so who though the Marathi play Yadakadachit (which used the Mahabharat as a satirical setting, not dissimilar to The Great Indian Novel and Jaane Bhi Do Yaaron) was offensive. The guy later entered local politics, and worked with right wing parties in Maharashtra to actually get that play banned!

That's the thing, Shashi. Anything and everything that even tangentially touches upon religion can be branded by someone out there as "vile" or "inflammatory". Who draws the line? And once someone draws a line, what stops it from being redrawn and redrawn until it has a chilling effect on any kind of speech that is critical of religion or community beliefs? Don't even think of bandying that old Potter Stewart quote here - "I know it when I see it", because no, you don't, and neither do I. No one does. Which is why speech should be FREE, not hostage to the opinion of the knowledgeable or even the majority. Some principles of democracy are too important to be left to the mercy of the majority's opinion.

Heck, I know people who insist that even atheists like me who say "there is no god....this whole god idea makes no sense" should be censored...because apparently listening to people like us could "confuse religious children who are unsure about their beliefs."

And as I said before, I know people who believe The Great Indian Novel is "vile", offensive to Hindus and to the freedom movement, and should be banned.

So my question to you, Shashi Tharoor, one-time nominee for the United Nations Secretary General, and member of the Indian Parliament, is, what the heck, dude?

Yours in Utter Revulsion
Gaurav