Free Speech and its Limitations
An analysis of the laws of the United States, Canada and India.
As Emmanuel Macron mounts a defence of the values of the French Republic in the aftermath of a teacher’s beheading over caricatures of Prophet Mohammed, free speech is a right that requires imperative exposition.
Before delving into the historical and current judicial trends towards free speech in the United States, India and Canada, I must allude to what has prompted me to pen this piece. While the caricatures and the underlying freedom of expression or free speech have been staunchly defended by the French President and has gained international support, some others, such as Prime Minister Trudeau of Canada have suggested that there are real limitations on free speech. Prime Minister Trudeau recently stated that while freedom of expression is vital but it is not without limits and we must exercise self-restraint and not unnecessarily hurt those with whom we share a country or (even the) planet. He then went on to draw an analogy between sharing the caricatures and shooting into a crowded theatre. The Prime Minister arbitrarily took otherwise prime facie protected free speech into the category of what Canadian law does not seek to protect, expression through violence to make his point. This is painfully close to victim-blaming.
The United States and near absolute Free Speech
In the case of RAV v. City of St. Paul 1992, a Minnesota man was charged for burning a cross made of broken chairs in the fenced yard of an African American Family under the St. Paul Bias Motivated Crime Ordinance. The trial court granted the petitioner’s motion to dismiss, deeming the ordinance over broad, content based and therefore facially invalid, the Supreme Court of Minnesota reversed the decision and the petitioner was now before the US Supreme Court. The Court held that content-based discrimination even in the case of something like burning a cross outside the house of an African-American family was unconstitutional.
Justice Scalia held that as per long established First Amendment jurisprudence nonverbal activity cannot be banned solely on the basis of the idea it seeks to encapsulate. One could, therefore, validly punish flag burning under an ordinance prohibiting fires but not under one prohibiting burning of flags because of the message of dishonour it coveys (the content).
While the Minnesota legislation under challenge herein was aimed only at fighting words which are not protected by the First Amendment, it criminalised only those words which were racially motivated and was therefore “facially invalid”. In other words, the State could ban this type of unprotected speech but not limit only that speech aimed at certain subjects or persons.
Subsequently, in a similar case of Virginia v. Black 2003 the US Supreme Court held that the state could validly enact a statute prohibiting cross burning only if there was an intention to intimidate others. The law in challenge before the Court deemed the physical act of cross burning as sufficient evidence of intimidation. The court further stated that the First Amendment permitted content-based discrimination only of true threats. Notwithstanding any of this, the statute was still held facially unconstitutional since it treated any act of cross burning as prime facie evidence of an intention to intimidate. Intimidation was a true threat where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.
The prima facie evidence rule which rendered the mere act of cross burning as sufficient proof of intimidation ran afoul of the constitution as it would suppress any cross burning was meant as a legitimate form of expression of solidarity or group expression.
To quote the Court verbatim, the First Amendment affords protection to symbolic or expressive conduct as well as to actual speech (p. 358). The caricatures/ cartoons of Prophet Mohammed would be protected free speech/ expression in the United States as they were symbolic expression and while the cartoons were not purported to be hate speech. Even if it were so construed, any prohibition arising simply out of the subject matter of the content would render such a ban unconstitutional being content based discrimination.
Canada and Free Speech
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada forming part of the Constitution Act of 1982. Section 2(b) guarantees the freedom of expression — freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
Expression protected by section 2(b) has been defined as “any activity or communication that conveys or attempts to convey meaning” (Thomson Newspapers Co.; Irwin Toy Ltd) The courts have applied the principle of content neutrality in defining the scope of section 2(b), such that the content of expression, no matter how offensive, unpopular or disturbing, cannot deprive it of section 2(b) protection as was held in the landmark decision of the Supreme Court of Canada in R. v. Keegstra 1990. Being content-neutral, the Charter also protects the expression of both truths and falsehoods (Canada (Attorney General) v. JTI-Macdonald Corp. 2007.
As illustrated by Irwin Toy Ltd. v. Quebec (Attorney General) 1989, expression that takes the form of violence is not protected by the Charter. Threats of violence would fall also fail to get Charter protection. In the case of Weisfeld v. Canada 1995, the Court held that expression goes beyond words. People may choose to amplify or dramatise their messages in many ways: a sandwich board, a soapbox, a megaphone, a flag, a banner, a placard, a picture, a petition etc.
R v. Keegstra is the defining jurisprudence in Canada on the point wherein the Supreme Court held that an expression is protected when it seeks to convey a meaning. Chief Justice Dickson further went on to hold that the content or meaning of the message was irrelevant, even if it did (as in the case at hand) promote public hatred.
After applying the Oak’s test and taking note of Canada’s international commitments to reduce hatred, the majority of the court held that the legislation restricting Free Speech could be saved under Section 1 of the Charter which allows the government to impose only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Justice Beverly McLachlin (as she then was) along with Justices LaForest and Sopinka dissented. They held that Section 319(2) of the Criminal Code (wilfully promoting hatred against any identifiable group) infringed the guarantee of freedom of expression. They held that when an activity conveys or attempts to convey a meaning or a message, no matter how offensive it may be, such an expression would be protected under Section 2(b). They further held that promotion of hatred which does not constitute threats is protected under the Charter. As far as the expression is not in the form of violence, promotes violence or is a threat or violence the expression would be protected. Furthermore, statements promoting hatred are not akin to threats or violence. To quote the Court verbatim- “There is nothing in the form of such statements which subverts democracy or our basic freedoms in the way in which violence or threats of violence may. Finally, to suggest that speech, like hate propaganda, which undermines the credibility of speakers belonging to particular groups does not fall within Section 2 (b) of the Charter, is to remove from the protection of the Charter an enormous amount of speech which has long been accepted as important and valuable.”
The Court further held Section 2 (b) does not protect only justified or meritorious expression. Any such attempts would reduce the realm of protected discussion to that which is comfortable and compatible with current conceptions. If the guarantee of free expression is to be meaningful, it must protect expression which challenges even the very basic conceptions about our society. A true commitment to freedom of expression demands nothing less.
The court furthermore rejected the idea of limiting the freedom of expression in favour of Canada’s international obligations.
This entire discussion on Hate Speech is not to suggest that satirical cartoons constitute hate speech, such a question seems to have generally evaded the highest courts in common-law jurisdictions, Canada included. All it does show is that such an expression would be protected free speech in Canada under Section 2(b) of the Charter and any reasonable limit that the government seeks to impose in violation of content-neutrality would have to pass the rather high threshold of the Oak’s test under Section 1 of the Charter which considers questions such as proportionality, over-breadth, vagueness and the least onerous limitation available.
India, Free Speech and Limitations
While India seemingly has the same fundamental right which guarantees freedom of expression in its Constitution, it is one that is highly nuanced. India is a uniquely multicultural commonwealth country which means that not foreign immigrants but the native population belongs to a milieu of religions, races, sects, etc. The Constitution seeks to strike a balance between individual liberties and social control.
Unlike the near absolute freedom of speech in the US or the one only restricted by Section 1 (subject to a very onerous judicial test) in Canada, the freedom of speech and expression guaranteed by Article 19 (1) (a) of the Constitution of India is subject to a comparatively rather exhaustive list of restrictions. These restrictions being enumerated within the same Article that bestows the right, certainly sets India’s rights framework (herein) apart from the other countries in our discussion.
The freedom of speech and expression includes the right to express one’s ideas by any visible representation, such as by gestures and the like. Expression includes the idea of publication (Romesh Thapar Vs State of Madras 1960 SCR 594). At the same time, Article 19 (2) permits the State to restrict the right in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
The test for an infringement of the right is somewhat similar to the Oak’s test of Canada. The restriction must have a reasonable relation to the object which the legislature seeks to achieve and must not go in excess of that object (Pothumma Vs State of Kerala AIR 1978 SC 771). The restriction must be reasonable from substantive and procedural standpoints . The nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all be entered into the judicial verdict (State of Maharashtra Vs Himmatbai AIR 1970 SC 1157). Furthermore, a law that imposes a restriction in excess of the mischief sought to be prevented is unreasonable from the substantive standpoint (Abbas Vs Union of India AIR 1971 SC 481). The test therefore includes, reasonableness, over-breadth, proportionality and the least onerous restriction.
Having said this, the right may validly be restricted where the expression may lead to feelings of enmity or hatred between different sections of the community or insulting their religious feelings as has been held by the Supreme Court of India in Virender Vs. State of Punjab AIR 1957 SC 896 and Ramji Lal Vs. State of UP AIR 1957 SC 620.
Section 153A of the Indian Penal Code 1860 criminalises precisely the same act, that of promoting enmity between different groups on the grounds of religion….and doing acts prejudicial to the maintenance of harmony. It expressly covers any such act by means of words, spoken or written or by signs or any other visible representation.
This section was a latter addition to the Code made in 1898. The section was further greatly expanded by an amendment in 1969. The constitutionality of the section has been successfully challenged in the past. In Tara Singh Vs. State of Punjab AIR 1951 Punj 27, the East Punjab High Court struck down the section as it imposed restrictions on the fundamental right set out in Article 19(1)(a) on freedom of speech and expression. The Government of India vide the First Constitutional Amendment Act 1951 inserted the words “in the interest of public order” therefore widening the scope of the restrictions contained in sub-clause (2) and section 153A came to fall within the scope of protection afforded by the impugned sub-clause and thereby becoming constitutionally valid.
Satirical or journalistic expressions such as the caricatures could therefore, with the help of content-discrimination, be amenable to censorship by the State in the interest of the above-mentioned objective.
Some Reflections
This discussion cannot be held in isolation. The murderous reaction was a proverbial attack on free speech, in retaliation to an actual class on free speech. While some reasonable limits are recognised by both North American legal systems discussed above; curbing or restricting the most vital freedom- that of expression in order to placate hurt sentiments wherein no value is placed on the individual’s freedom of expression, would be akin to suggesting that France introduce blasphemy laws and tear down the core values of the French Republic such as secularism, separation of church and state and the freedom of expression. What would remain would be a hollow shell of the edifice of what was once the Republic of France built on the base of Liberty, Equality and Fraternity. While India recognises such limitations as valid and constitutional, these are a result of its own historical constitutional development and nuanced cultural sensibilities. As we progress into the 21st century, rights such as free speech deserve to be bolstered all over the globe instead of suggesting that they be restricted in countries which ushered in the renaissance with this very right.
