Free Speech: Does it Protect or Attack Nationalism? by Siddhi Yadav and Soumya Shandilya

By | March 13, 2020
Free Speech Does it Protect or Attack Nationalism

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Freedom of speech (free speech) and expression is an essential ingredient of democracy. In a free and open encounter truth prevails. However, absolute freedom will always lead to the destruction of democratic ideals. Hence limitations are indispensable to be imposed upon free speech. Many times, on the ground of nationalism, certain restrictions are imposed, and these restrictions, sometimes, exceed their necessity and attack the most cherished right i.e. right to freedom of speech and expression. In such a situation, using nationalism as ground, to deter a person from expressing his views, instead of engaging with the underlying concerns of their speech, is detrimental to democracy.

Throwing lights on the complex interrelationship between free speech and nationalism, the authors begin the essay with an introductory part which also includes origin, concept, and development of freedom of speech. The next part has shown the interconnection between free speech and nationalism with reference to the ongoing crisis and also examines the tussle between the two in the light of famous cases and contemporary issues. The authors also dedicated a paragraph to find out the conclusion.

Introduction

“Without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty, without freedom of speech”

-Benjamin Franklin

Free speech has always been one of the most cherished liberties yet a controversial issue in a democracy. The reason being that freedom of speech is the bulwark of democracy as it opens up channels of free discussion of issues by forming public opinion on social, political and economic matters. It has been well said that freedom of speech is the mother of all other liberties. However, if judicious restrictions are not imposed on free speech it will often lead to conflicts with the other competing values, rights and liberties. Hence, the issue revolves around the subtle demarcation between the freedom and the restrictions to be imposed upon it.

Origin of the Concept

The term, ‘marketplace of ideas’, has been metaphorically used for the concept of free speech. The term is based on the analogy to the economic marketplace, where through economic competition winners and losers are determined. This analogy was given by John Stuart Mill. In his book On Liberty, Mill argues that silencing any opinion is wrong, even if the opinion is false, because knowledge arises only from the “collision of truth with error”. Mill further argues that repression may interfere with the market’s ability to seek the truth.

It was Justice Oliver Wendell Holmes Jr. who first introduced this concept into American jurisprudence in his 1919 dissent to Abram v. United States as

“the best test of truth is power of thought to get accepted in the competition of the market”.

This theory assumes that a process of robust debate, if uninhibited by government interference, will lead to a discovery of truth or at least the best perspectives or solutions for societal problems. Talking about the First Amendment to the US Constitution which guarantees freedom of speech in the USA, the US Supreme Court observed:

“It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than countenance monopolization of that market whether it be by the government itself or a private licensee.”

Meaning and Scope of Free Speech in the Contemporary Era

Larger the ambit of the free speech, stronger will be the democracy

In a general sense, freedom of speech means a right to express one’s opinion, no matter how offensive your opinion maybe. When a variety of opinions collide with each other, only then truth is discovered. Article 19 of the Universal Declaration of Human Rights thus reads:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

The four purposes of freedom of speech

(1) To attain self-fulfillment (2) To discover truth  (3) To ensure the participation of people in decision making (4) To establish a reasonable balance between stability and social change.

 Freedom of speech, freedom of expression has been variously described as a “basic human right” and a “natural right”. Courts of democratic countries have believed that this freedom is important to discover political truth. It embraces within its scope the freedom of propagation and interchange of ideas, dissemination of information which would help the formation of one’s opinion and viewpoint and debates on matters of public concern.

The expression can be in the way of speaking, writing, singing, painting, acting or even burning flags in protest. Therefore, freedom of speech includes various aspects e.g. right not to speak, right to use certain offensive words in order to convey political messages, right to engage in symbolic speech, right to wear black to show protest, etc.

Giving a broader perspective to free speech and expression, in Brandenburg v. Ohio, the US Supreme Court held that even inflammatory speech should generally be protected unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action”.

However, it is worthy to note that even though the concept of freedom of speech on its face seems quite simple, in reality, there are complex lines that can be drawn around what kinds of speech are protected and in what setting. To cite a few examples, such expressions are not included in the right to incite actions that would harm others, to make and distribute obscene materials.

Nationalism: To what extent a valid limitation on free speech?

“Freedom of expression is the matrix, the indispensable condition, of nearly every form of freedom.”

The right to freedom of speech is not an absolute right. As stated earlier, unrestricted free speech will only render the other competing liberties redundant. Hence, a society without limits on free speech is hard to imagine. It has been well said by Stanley Fish that “there is no such thing as free speech.”  Free speech brings along with itself certain responsibilities like duty not to hinder someone’s privacy, duty not to endanger national security, sovereignty, public order, etc.

Hence, in every democratic country where free speech has been granted, certain limitations have also been imposed upon it so as to promote and maintain democratic values. Nationalism is one of such ground.

Freedom of speech: A Soul of Nationalism

 In a broad sense, nationalism is placing one’s country’s interest over the rest of the world. In a democratic country, the idea of nationalism goes hand-in-hand with freedom of speech and expression. Many times, in the name of nationalism, the very fabric of democratic ideals is destroyed by curbing the freedom of speech. The irony is that the result of such a curb is nothing but the suffering of the nation itself.

A very parochial and narrow interpretation of the expression ‘nationalism’ gives rise to such irony. Those having dissenting opinions are generally labeled as ‘anti-nationals’ and their opinions are browbeaten by the government on the name of narrowly-interpreted nationalism. There are certain laws that criminalize speech like sedition, blasphemy, and defamation and are extensively used against dissenters, politicians and even reporters to silence them. In a consultation paper released last year, the Law Commission of India said:

“In a democracy, singing from the same songbook is not a benchmark of patriotism. People should be at liberty to show their affection towards their country in their own way. For doing so, one might indulge in constructive criticism or debates, pointing out the loopholes in the policy of the government”

It is noteworthy that in Director General, Doodarshan v. Anand Patwardhan, the court held that the State cannot prevent open discussion regardless of how hateful such discussion was to the state policies. It has been rightly observed in F.A. Picture International v. CBFC, that-

“History tells us that dissent in all walks of life contributes to the evolution of society. Those who question unquestioned assumptions contribute to the alteration of social norms. Democracy is founded upon for their courage. Any attempt by the state to clamp down the free expression of opinion must hence be frowned upon”.

However, freedom of speech allows dissent but not the destruction of the countries.

The important view:

It is universally accepted that freedom of speech leads to the evolution of the government of the country. If the freedom of speech gets curbed, there is a very high probability for the government to be dictatorial or monarchial. However, both nationalism and free speech are interlinked with each other. On analyzing the establishment of nationalism, one will find that free speech has a very crucial role to play in it. The concept of nationalism in its entirety reflects freedom- freedom from the interference of other countries. Hence, restricting freedom of speech on the name of nationalism is in itself an attack on nationalism.

From hitherto history, the rulers have used nationalism as a shield against the freedom of speech. From Socrates and to the protest of JNU, there are many examples that show the tussle between free speech and nationalism. Freedom of speech is the essence of a nationalist country.

Talking in the context of the Indian independence movement, after the Second Anglo-Afghan War, the British Government introduced the Vernacular Press Act in order to safeguard itself. The reign of Tiberius, the tyrannical ruler of Rome, who ruled for over 37 years and this period are considered to be the darkest period for freedom of speech. From the above-mentioned instances, one may conclude that restriction on the freedom of speech is a warning initiation of tyranny.

Although freedom of speech enshrined in the Constitution as a Fundamental Right it is subject to restrictions provided in Article 19 (2). There are various other restrictions on free speech like Section 124 and Section 499 of the IPC, etc. When one analyses the scope of freedom of speech in the present time, one will find that it is too narrow. Instead of these restrictive laws, there is misrepresentation and sharpening of those restrictive laws that kill the essence of the freedom of speech.

Disagreement and dissent to the government are right under freedom of speech and there is a thick line between sedition and dissent but due to sharpening in-laws this thick line gets erased and the concept of dissent is submerged with sedition.

Freedom of speech promotes the free exchange of ideas and eliminates the compelled action. It is almost impossible for those who are in power to suppress the truth that they may not want to let out in the open. It provides peaceful changes and it prevents the requirements to behave in specific ways and leads the nation to new pathways.

For instance, decriminalization of Section 377 IPC. No one thought about homosexual marriage and treated homosexuals as a curse but freedom of speech played such a key role in providing them this platform where they live with dignity. After these changes surplus their feelings and sentiments. So, we can say that freedom of speech and nationalism are complementary to each other.

Conclusion

It is not necessary that everyone should sing the same song

Freedom of speech is a double-edged sword having a positive as well as a negative side. Every individual has its own personal space within which they have the freedom to do anything but this freedom remains only till the time it doesn’t interfere in the personal space of other. Nowadays this term gain a lot of popularity, individuals and groups either separately or collectively have started abusing each other’s or a set of people’s rights in the name so-called “freedom of speech”. For instance, the media termed the protestors as “urban Naxals” and “Maoists”.

Freedom of speech is a sign of a civilized and educated nation, where everyone is free to express whatever they like as long as it is within certain boundaries and does not hinder other’s liberties.

One the other hand, a very crucial aspect of nationalism is that there exist a variety of views – views in line with as well as different from those of the government. Dissent and criticism are two essential ingredients of a robust public debate on public issues as a part of a vibrant democracy. Therefore, every restriction on free speech and expression must be carefully scrutinized to avoid unwarranted restrictions. Restrictions must be fair, reasonable and in proportion. Courts have to consider the questions, what are the limits of free speech? And to what extent nationalism can be a valid limitation on free speech.

Freedom of speech does not allow to challenge a country’s sovereignty. Hence freedom of speech entails that exceptional care is to be taken when dealing with such sensitive matters where emotions run high.

 As Mahatma Gandhi wrote,

 “we must first make good the right of free speech and free association before we make any further progress towards our goal”.

In the end, we would conclude the essay by quoting Daniel O’Connell

No man can be grateful at cost of his honor, no woman can be grateful at cost of her chastity, and no nation can be grateful at the cost of its liberty”

By Siddhi Yadav and Soumya Shandilya
Law Faculty, University of Allahabad

References

[1] Report of the second Press Comm, Vol 1, 34-35

[2] MP Jain, Indian Constitutional Law 1059 (8th Ed. 2018)

[3] Brandenburg v. Ohio, 395 U.S. 444 1969

[4] US Supreme Court Justice Benjamin Nathan Cardozo in Palko v. Connecticut, 302 U.S. 319 (1937)

[5] Law Commission of India, Consultation Paper on “Sedition”, 30 August 2018

[6] Director General, Doordarshan v. Anand Patwardhan, (2006) 8 SCC 433

[7] F.A. Picture International v. CBFC, AIR (2005) SC 145

[8] S. Rangrajan v. P. Jagjivan Ram, (1989) 2 SCC 574

[9] Mahatma Gandhi, Young India,