To free or not to free - The liberation and limitations of free speech
I've been thinking about whether free speech should have limits and if so what they should be.
As a general principle I believe in free speech because I believe it results in all relevant perspectives being examined and I also believe that, in the long term, good arguments vanquish poor arguments. But let me take a more rigorous approach and clarify my own beliefs on this issue:
Libel and slander
Libel and slander is the making of a factually incorrect statement about a person, organization, country, product, etc.
The first argument for free speech in the case of libel/slander is that the market is smart enough to decide who is telling the truth based on track record of past statements. But this is clearly not true because religious followers believe their leaders and holy books. Even if one major religion were true, it would still mean that at least 5 billion followers of other religions had been believing lies.
But if libel and slander is to be legally curtailed then the problem is that the powerful are more likely to afford the lawyers that can protect their reputations from genuine accusations. For example if Reliance wanted to sue the author of 'Gas wars' they would have the possibility of using a huge armory or lawyers to intimidate financial ruinous litigation. But if they didn't have the legal right to protect their reputation, then an unscrupulous populist politician could rile up the masses with false claims against the 'greedy rich capitalists' in a way that could genuinely cause an unfair smear on the brand (for the record, I'm more inclined to believe in Kejriwal's side of the story than Reliance's).
I think the way to ensure that powerful interests cannot silence accusations of ill doing is to allow for the expression of statement of beliefs without qualification but not on factual inaccuracies. For example Modi should be allowed to say 'I BELIEVE Kejriwal is a CIA agent' if that's what he believes. But if he says 'Kejriwal IS a CIA agent' then that should be something that he should be legally punished for if he can't prove his claim in court. Similarly I should be allowed to say 'I'm certain that Modi sponsored the genocide of 2002' but not be allowed to make the assertion that 'Modi sponsored the genocide of 2002' unless I can prove it.
The burden of proof should be on the prosecuting party and they should bear the cost of expenses of the defendant if the prosecutor does not win or if the case is declared 'Inconclusive'. If not, then we'll again have rich people using expensive lawyers to overwhelm poorer parties. This does give some advantage to irresponsible statement makers but this is required to balance out money power and it is also likely that serial irresponsible statement makers will lose credibility anyway in the public eye.
In some landmark cases, it has been held that you can say things that are factually incorrect unless you show a reckless abandon for truth or if you say things that you know for sure are untrue. So for example, if I read an incorrect fact on a newspaper and I repeat it, the court would not hold me liable for libel because I had some reasonable grounds for assuming that the assertion I was making was actually true. I can't be reasonably expected to fact check a story by a national paper like TOI on Modi air lifting 15,000 people from the Uttarakhand floods.
Opinions about a person, even insulting ones, should not be subject to limitations of free speech. So if I said that Modi fits my idea of a sociopath, this should be completely legal. As would Modi calling Kejriwal anti-national.
Obscenity, pornography and blasphemy
I think society (through elected representatives), has the right to regulate what people do in public spaces based on the 'offence' principle... not for adults but for the sake of children. I have no sympathy for an adult who gets offended if they go to a magazine stall and sees a pornographic or blasphemous poster... if you don't like it, don't look at it.
But if people feel that the mental and moral development of young children (or retarded adults) could be harmed from public images of explicit sex, violence, etc. then that's a strong enough argument, for me, to make public restrictions. The norms on what constitutes 'offensive' is currently linked to prevailing standards and this will drift with time, as is appropriate.
However I don't think there should be any restrictions on the content of material that is marked as 'adult' in content and not available to children. So any content on TV post 11pm should be sans censorship. If a private art exhibition wants to display blasphemous images of various Gods having sex, then as long as they give reasonable warning of the contents, there should be no limitations to free speech on grounds of 'offence'.
Adults can make adult decisions on their own behalf on what they want to be exposed to. They can't make decisions on what other adults should be exposed to (however I think paying for child pornography should be a prosecutable offense).
It's up to the parents to ensure that children don't access potentially offensive/harmful material. Whether through TV locks, internet controls, etc. There should be an 18+ category not just for movies but also books, magazines and videogames. And just like for alcohol and cigarettes, sale should not be allowed of these goods to minors.
Sedition
Only credible calls for a violent uprising against the state should be curbed. Peaceful secessionist speech and criticism against the state and actions should be allowed. I love the fact that Americans have the freedom to burn their national flag. But again, it should be burned on private property and not in public space if that's the will of the people (I personally would vote for the people who allowed for public burning of course, not that I have any intention of ever burning a flag).
Credible calls means conversations that are backed with intent to actualize violence or that can seriously be expected to move people to actually taking violent action. Jokes, venting, academic discussions, debate, etc should not be counted as credible threats.
Discussions advocating violence (like Godse's admirers) should be still allowed because they are irrelevant (Gandhi's already dead) and too vague to link directly with murders of other political targets. Also suppressing these conversations legally is likely to lead to the conversation going underground and festering with the possibility of breaking out violently. Sunlight is the best disinfectant to these sorts of conversations.
People have the right to a conversation about how they want to be ruled and by whom (including complete secession). They need to pursue their ambitions through democratic legal means but they have the right to have the conversation without being bullied and intimidated for having the views they do.
In India, intellectuals like Arundhati Roy and Bhinayak Sen have been accused of sedition and a political cartoonist Aseem Trivedi was even arrested for drawing cartoons depicting politicians as corrupt. This is all of course absurd.
Hypernationalists may hyperventilate but if someone wants to divorce you, you try to convince them to stay... you don't pulverize them so they are scared of ever raising the topic again.
Adults make their own decisions regarding self determination. That's what being adult means.
Hate speech
This is speech that denigrates a group of people on the basis of factors outside their control - race, religion, caste, sexual orientation, etc. Unchecked free speech can lead to majoritarian psychological bullying and trauma, and also create a context in which actual physical violence can flare up against individuals from the targeted communities.
The problem with checking hate speech is in defining it. If I say that 'Muslims have the lowest literacy levels of any religious community in India', that's a statistical fact and I don't see it as hate speech. But then that's only a stone's throw from saying 'Muslims don't value secular education as much as other religious communities' and that's only a stone's throw away from 'Muslims don't care about education'. At this point the statement has become a loaded statement but it's still a generalization grounded in real data. At what point does it become hate speech? As another example, saying 'Sindhis are very money minded' could be admiring, neutral, or perjorative - depending on tone of voice. The head of Harvard was recently pilloried as a misogynist by liberals for making a statement that implied women have a lower aptitude for maths and science than men. But his statement was grounded in very objective numbers showing that maths and engineering academics in higher education were overwhelmingly more male than in other fields.
The danger of clamping down on 'hate speech' is that it's so subjective that over-control can easily become runaway political correctness in which legitimate discussion on real social phenomenon are suppressed. Criticizing the ideology of Islam can be equated with Islamophobia to prevent further discussion. Saying that Jewish money power in western media stifles balanced coverage of Israel can be labeled as anti-semitism. When legitimate conversations are shut down by political correctness, I feel the suppressed conversation has a habit of bursting out in spurts of nasty violent brutish right wing violence (and left wing violence as in the case of the Maoists). There is no 'safety valve'.
Another downside of PC is of course excessive seriousness and a frowning upon irreverent and satirical comedy. At a stand up comedy store, I enjoy jokes that make fun of bomb exploding Muslims, maths hating women, psychotic ultra-nationalists, etc. I like the intellectual stimulation of a conversation where there are no filters and the assumption is that all audience members are adults and understand that it's a social commentary and to be taken with a pinch of salt.
On the other hand, people can express and propagate racist, sexist and intolerant views under the protection of the anti PC movement... including in stand up comedy.
My conclusion is that the best way to handle this dilemma is just to let the market figure it out rather than legislate it. If someone wants to say 'Muslims are trying to seduce our Hindu daughters', let's not force that conversation underground. It's just going to lead to a bunch of incensed Hindu fathers going out and torching a Muslim neighbourhood because they see their daughter's honour as more important than the law of the land. By suppressing the conversation, we've made them rebels against the fantasy world they inhabit of secular conspiracies against their daughters.
My experience is that if there is a hate argument that is made in full public eye, a liberal counter argument will also emerge in full public eye.
If a hate speech is unchallenged by a liberal argument, the culture of the country is so far behind that the laws were not going to provide any protection anyway, is my view. An Amit Shah can get away with telling the residents of Muzaffarnagar to take 'revenge' on their enemies by voting BJP. However a teenage girl can be arrested for liking a comment where a friend suggested that many people in Mumbai had closed shops after Bal Thackeray's death because of fear rather than respect. Laws against hate speech can be of little protection against an overwhelming backward majority. In fact the hate speech laws will be misused to persecute those challenging orthodoxy.
I believe, in India, that the majority has become right wing in rebellion against what they see as politically correct 'pseudo secularism' that stifles their views. So let's note legislate against hate speech. Let's debate hate speech.
Let people make all the comments they want about Muslims, women, homosexuals, etc. There will be an outraged liberal counter point and in the end the better argument or the best amalgamation of opposing legitimate points will win. And this is what is required to accelerate the liberal education of our country.
Incitement and fighting words
The place where we do need to clamp down on hate speech is where it is about to lead directly to crimes or violence. A rally in which the politician is yelling 'Pakistan ya kabristan' or 'Khoon ka badla khoon' needs to be shut down immediately. This is not the time for debate.
Public security, public order
I think if an immediate threat to safety is involved, free speech can temporarily be suspended.
If someone yells fire as a joke in a crowded cinema leading to a stampede, this should be punished. Similarly if a TV anchor is broadcasting live, the movements of commandos trying to break into the Taj to rescue captives of the terrorist attack, the police would be well within their rights to confiscate the broadcasting equipment.
The right to safety and security trumps the right to free speech in the short term. In the long term, this can be an excuse to clamp down on truthful journalism. So censoring human rights violations in the Kashmir press on the grounds of 'not demoralizing the army' is not a legitimate curb on free speech.
Public nuisance
I think a guy should be allowed to hit on a girl but if she requests him to stop then any further conversation from his side should be seen as harassment (and of course vice versa). If a guy just keeps ogling at her, he's a jerk but she should just ignore it. You can't tell someone in a public place where to look as far as I'm concerned.
Nobody should be allowed to continue speaking to a person in public after they've been requested not to. This includes tele-marketeers or mass emailers.
I think society should be allowed to set the laws (through democratic representation) on the noise levels allowed in festivals (religious or otherwise). If it exceeds the prescribed limit, people should be able to prosecute for public nuisance. If it doesn't exceed that, even if it permeates individual households... they just have to live with it.. or move to a quieter neighbourhood, city or country.
Right to privacy
People should not be allowed to obtain pictures or content from people's homes or their personal digital data and spread it. That's a crime.
However the right to privacy - telling search companies to take down search results that relates to them.. I don't think I have much sympathy for that as a fundamental right (something being pushed in Europe and, to a lesser extent, in the US). If you do something in the public eye, then as far as I'm concerned, you can't take it back from the public eye. So think carefully about what you want to tweet or post in public before you do it.
Summary
There are other restrictions on free speech that relate to copyright violations, trade secrets, non-disclosure agreements, etc which I'm not going to go into just now because those are more about economic arguments than about fundamental rights as I see them.
My limits for free speech:
1. Factually incorrect statements that harm someone's reputation and arise from a 'reckless disregard' for the truth.
2. 'Offensive' material in public spaces where it can be accessed by children. The standards for what is considered offensive will evolve as society progresses.
3. Credible incitement to violence
4. Speech that puts the lives or physical safety of people at immediate risk
5. Talking to people who have requested you not to speak to them
6. Noise above a certain decibel level in public places
7. Confidential information that has been stolen from others through hacking or trespassing.
What I think should be allowed without legal suppression:
1. Opinions and beliefs about individuals, countries, products, organizations, etc.
2. Obscenity, pornography and blasphemy that offer adults the ability to choose to engage or opt out (like my fb page)
3. Peaceful sedition and talk of violence that is not credible.
4. Hate speech that offer adults the ability to choose to engage or opt out
5. The right to ogle
6. Content about a person, even if that person has requested for that information to be deleted as part of his/her 'right to be forgotten'