Vantage point

Friday, December 09, 2011

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.