The following essay is part of a 2012 booklet published by The Liberty Institute, New Delhi, in partnership with the Friedrich Naumann Foundation for Freedom. The booklet was title At Liberty: Freedom to Express and Offend. Authored by Ravi Shanker Kapoor, the essay explores ideas of absolute freedom of expression. In doing so, it revisits Mill’s idea of the harm principle, the fear of freedom, and the roots of such fear.
Is it possible to have freedom of expression which is not absolute? The answer is a big ‘no.’ Freedom of expression ought to be absolute – or it is no freedom at all.
The immediate objection to this assertion, especially in the Indian context, is that there is no point in offending people. Novels, short stories, and poetry can be written, and movies made, without hurting the sentiments of groups and communities. After all, a huge amount of literature is created and a large number of films produced without any objections from anybody. So, why should writers and filmmakers come up with works which can offend somebody? Why can’t they promote harmony, instead of breaching it? Why can’t creativity be harmless?
We are told that even John Stuart Mill, arguably the greatest champion of “the fullest liberty of professing and discussing,” talked about what came to known as the Harm Principle: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
American philosopher Joel Feinberg went a step further and in 1985 recommended an Offence Principle to act as a guide to public censure. According to him, Mill’s Harm Principle is not sufficient to check wrong behaviors: “It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end.” He favored legal prohibition on some forms of expression if they are very offensive, though he recommended lower penalties for offence than for harm. Feinberg suggests that a number of factors need to be taken into account when applying the offense principle, including: the extent, duration and social value of the speech, the ease with which it can be avoided, the motives of the speaker, the number of people offended, the intensity of the offense, and the general interest of the community at large.
Feinberg intends to legitimately prohibit some forms of expression because they are very offensive. He, however, agrees that offending someone is less serious than harming someone.
The Harm Principle
The impression that we sometimes get is that Mill favored some governmental control over freedom of expression. It arises from confusing ‘action’ with ‘expression of views.’ The full passage is:
The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. (emphasis added). [Introductory, On Liberty, John Stuart Mill].
It is unfortunate that even those who champion the cause of liberty sometimes refuse to distinguish between the two. Consider Bibek Debroy’s article, titled ‘Politics of bans and rights,’ in The Indian Express on November 28, 2007. He wrote: “…is an individual right ever absolute? It can’t be, for it is conceivable that the exercise of my individual right might constrain yours, and there is a difference between exercising an individual right in my private domain and doing it in public. For instance, it might be fine for me to walk around nude in my apartment, but should I be allowed to do it in public? If I am a serial killer, exercise of my individual right might require me to murder people. Should that be allowed? Even in relatively free countries, including the US, freedom of expression is a relative, not absolute right- defamation, obscenity, perjury, copyright violations, actions that incite hate, sedition and blasphemy, are all instances where freedom of expression has been curbed in developed countries.”
Notice how he mixes various things- freedom of expression with freedom of action, defamation with perjury and copyright violations. But freedom of expression has little to do with perjury and copyright violations, for these are crimes by their very definition and have little to do with freedom of expression: perjury is lying under oath, whereas copyright violations steal somebody’s intellectual property. Defamation, on the other hand, is related to freedom of expression.
More misleading is the blurring of distinction between opinion and action. Loitering nude on streets and killing people are actions; airing of views- howsoever controversial, unconventional, seditious, or blasphemous- is just a way of telling others what one thinks and/feels about something. Mill is clear about the distinction. He wrote:
No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard. Acts, of whatever kind, which, without justifiable cause, do harm to others, may be, and in the more important cases absolutely require to be, controlled by the unfavorable sentiments, and, when needful by the active interference of mankind. The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people.
Opinions ought to be freer than actions, because words break no bones. Mill would not accept any curbs on the freedom of speech except in rare circumstances- to “an excited mob” against corn-dealers “before the house of a corn-dealer.” That is, when the harm to life, limb, and property of the targeted person is almost imminent. But then in such a situation, haranguing an angry mob is incitement to violence rather than an expression of opinion; and there is nothing improper in penalizing incitement to violence. At any rate, such penalizing would be against felonious intent and action rather than freedom of expression. When a mafia don orders his henchmen to eliminate a rival, he is not exercising his right to freedom of expression; he is triggering off a crime. There is a difference between freedom of expression and crime.
A socialist is not only entitled to his view that private property is theft but also free to express it. It is when he convinces, coaxes, or instigates his followers to indulge in violence that he crosses the line.
Fear of Freedom
It can be argued that incitement may not always be imminent or immediate; it is possible to fill the hearts and minds of a group with hatred against some person(s), institution, religion, or country on a long-term basis. Should indoctrination be allowed? As it is, Islamic terror and Maoist menace, to name the two biggest threats India faces, are a headache for the people and the government. If freedom of expression is made absolute, it would be possible for the most venomous jihadis and hardcore Maoists to teach their violent doctrines. Would not that be a recipe for disaster?
It may appear that unrestrained freedom of expression would give a fillip to, among other things, jihadist and Red terror, but a proper analysis would show otherwise.
To begin with, it must be made clear that these two problems have not been caused because of the limited freedom of expression that is allowed in the country; nor would these be exacerbated if this freedom is made unlimited. These have been caused, and exacerbated, by politicians’ machinations, by their bad policies, and by their reluctance to uphold the rule of law. The rule of law, it may be mentioned, is the necessary condition for freedom of expression in an open society. Maoism came into being in the late 1960s; it has seen several peaks and troughs. A variety of factors were responsible for its birth and current violence: socialist economic policies, bad governance, and the lack of political will to combat Leftwing violence. Even today, the Maoist sympathizers openly propagate the justness of the Maoist cause. So, absolute freedom of expression will not aggravate the problem.
As for jihadist violence, it needs to be emphasized that curtailment of freedom of expression has actually boosted the morale of Islamic fundamentalists, emboldening them to directly and indirectly help terrorists. A watershed in the history of freedom of expression in India was the ban of Salman Rushdie’s Satanic Verses in 1988; it proved that the Indian political class could be subdued by a mix of rhetoric, threat, and downright violence. Published on September 26, 1988, in the UK, it was reviewed by prominent journalist and author Khushwant Singh in Illustrated Weekly of India. He recommended a ban on the book, arguing that it could lead to trouble. Another journalist-author who called for proscription was M.J. Akbar. Parliamentarian and editor of the monthly magazine Muslim India Syed Shahabuddin petitioned the Rajiv Gandhi government the same. The government immediately responded and banned the book on October 5. Years later, Bangladeshi author Taslima Nasreen was also haunted and persecuted by Muslim fanatics; and she also received minimal support from the government.
An intended consequence of proscription and persecution has been the demise of all meaningful debate on Islam; everybody knows that any critical observation about theology and practice of Islam would attract opprobrium and possibly prosecution. All writers and journalists know that criticism would make them vulnerable to the accusation of being bigoted and fascistic. For a critical Muslim, the predicament could be worse: even his physical existence would be in danger. There have been cases where fundamentalist Muslim politicians have tried to incite violence against those who are critical of Islam. So, we have a perverse inversion of the freedom of expression: while writers and artists are restrained from freely expressing themselves, those who are opposed to this freedom are rarely restrained. The perversity is comprehensive: the views which are frowned upon by the tetchy are proscribed or suppressed, but the violence of the most retrograde elements is tolerated.
The unintended consequence is that the malaise has spread among other sections of Indian society. The success of retrograde elements in Muslim society has encouraged similar elements in other communities to thrust their narrow viewpoint. So, the Hindus have violently protested against some of the paintings of M.F. Husain on the grounds that these hurt their sentiments. Another painter, Jatin Das, also had to face the ire of Hindu zealots.
Roots of the Fear
Where does this fear of absolute freedom of expression emanate from? The fear has its roots in the belief that there is a reality (or Reality) which can be misrepresented or distorted if the freedom of expression is absolute. This presupposes a universally accepted definition of the reality But the fact is that no such definition exists; there are as many definitions of reality as there are philosophers and philosophies. There are Christian theologians interpreting the faith in numerous ways; there are six orthodox Hindu schools of philosophy (with several sub-schools); there are Marxists, again following countless lines; there are Western conservatives (Burkeans in harmony with tradition, others ardently anti-state); there are libertarians (followers of Ayn Rand and others); there are postmodern thinkers (who actually do not believe in any reality); and long goes the list. So, what is the reality or ultimate reality? What is the truth (or the Truth)?
I do not claim that the reality does not exist or, as Kant said, that it is unknowable (noumenon); this question is beyond the scope of my thesis. My assertion is that since there is no universally accepted understanding of (ultimate) reality, the question of its misrepresentation or distortion does not arise.
Let’s climb down from the metaphysical plane and concentrate on the mundane aspects of life. Let’s discuss topics like state, market, society, individual rights, and property. Again, we face the same plurality of views. What is state? Marxists tell us something which libertarians and conservatives can never agree with. What should be the role of state? While Left-leaning thinkers would argue for its greater role in the economy, libertarians and conservatives would like it to keep away from the market. Should market take care of itself, or should it be kept under the watchful eyes of government functionaries and regulators? Again, there is a wide divergence of views. Even among Leftists and Rightists there is considerable difference of opinion. For instance, Rand is against regulators, whereas in India even those who are considered pro-market favor regulators.
What is society? Is it organic and more than the sum-total of individuals, as Burke and many conservatives believe? Is society, as Burke put it, “a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born? Rand would hit the roof hearing such a definition of society; in her scheme of things, everything is subservient to the individual and his rights. Interestingly, both Burke and Rand are placed on the Right of the ideological spectrum.
Individual rights are also understood in vastly different ways by thinkers of different persuasions. Those on the Right would want nothing but freedom from the clutches of government, freedom to be left alone- laissez faire. The Leftists, on the other hand, find such freedom vacuous; they talk about the right to food, work, etc., all of which requires big state.
Similarly, on property there are diametrically opposite views across the ideological spectrum. While the Left views it as the result of exploitation (if not downright theft), the Right regards it as the cornerstone of liberty.
Therefore, there is no unanimity on any kind of reality, metaphysical or mundane. I will reiterate that this is not a thesis promoting epistemological nihilism; on the contrary, mine is an attempt to undermine such nihilism. This nihilism is actually promoted by the postmodern dogma in association with various anti-Enlightenment tendencies like political correctness (PC), multiculturalism, and Islamism.
The only way we can know any truth is by letting the free-play of ideas in the arena of public discourse, a veritable laissez faire. A genuine quest for knowledge and a yearning for wisdom (or philosophy, which is, etymologically, ‘love for wisdom’) is an onward march to gain more and more facts; we shall realize as many truths as possible. The quest may or may not lead us to the ‘Ultimate Reality’ (if it exists), but we can hope to go near that. But this march is impossible without unrestrained freedom of expression.
Controversy is inevitable
A large number of truths came to be acknowledged as such without much fuss, but there are many which were preceded with long and often acrimonious debates and sometimes also with violence. And acrimony takes place because somebody or some group feels offended by a truth. It is often argued that we must avoid the truths which violate the Offence Principle, for the consequences could be apocalyptic.
The Galileo affair needs special mention in the context of Offence Principle. Galileo published his Sidereus Nuncius (Starry Messenger) in 1610. This was based on the observations that he had made with his the telescope. Some of these discoveries- lunar mountains, small moons around Jupiter, the phases of Venus, and sunspots- indirectly undermined the geocentric Christian cosmology. They harmed nobody but surely offended the sensibilities of people in an age in which religious faith was a great, if not the ultimate, concern. Had Galileo decided not to offend the Christians- and this would have been a rewarding option- he would have deprived the world of important truths and science would have been poorer. He was not granted freedom of expression; he had to grab it. And he did offend many- and suffered because of the ‘offence.’ Without the freedom to offend, Salman Rushdie said, freedom of expression ceases to exist.
There are many other instances where science offers explanations which conflict with religious beliefs. But the science-religion conflict is beyond the scope of our thesis. What is pertinent here is that even religions that have evolved over the centuries could not have without challenging the established orthodoxies and offending many- often most of- people. Jesus Christ propagated beliefs which offended many people, leading to his crucifixion. Shankaracharya (788-821) famously disputed with great theologians. Martin Luther enraged the Pope’s clergy. In fact, it is in religion rather than in science that new expositions are generally frowned upon.
End of Time?
To say that freedom of expression should be curtailed lest it offend or hurt the sentiments of people, or some people, implicitly accepts a ludicrous postulate: that all facts and truths that mankind ought to know have been known, and any new expositions would merely distort truths. One need not be a philosopher to say that the postulate is not only ludicrous but also smacks of hubris and complacency.
At any rate, the Offence Principle would end up banishing philosophy and any serious contemplation. As Bertrand Russell wrote in The Problems of Philosophy, “Philosophy is to be studied, not for the sake of any definite answers to its questions since no definite answers can, as a rule, be known to be true, but rather for the sake of the questions themselves; because these questions enlarge our conception of what is possible, enrich our intellectual imagination and diminish the dogmatic assurance which closes the mind against speculation; but above all because, through the greatness of the universe which philosophy contemplates, the mind also is rendered great, and becomes capable of that union with the universe which constitutes its highest good.”
Last week’s musing: MANIFESTO FOR INDIAN LIBERALS