Oliver Wendell Holmes Jr., a renowned U.S. Supreme Court Justice, said, “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.” This quote has become extremely important today in India, where, a sort of “heckler’s veto” has started to prevail in the popular discourse. People use certain provisions of IPC and IT act according to their own convenient morality to shut down speech that they deem offensive. The recent FIRs against a comedian, for allegedly hurting the religious sentiments, against BJP leader Kapil Mishra for speeches “that could hurt communal harmony” and against Arnab Goswami for his religious remarks during the pandemic, under relevant sections of IPC and IT act, have again raised the question of how much ‘free speech’ is actually free and whether a speech that is deemed offensive should warrant a criminal action. Time and again these provisions under IPC, IT Act and UAPA (Unlawful Activities (Prevention) Act, that put a restriction on speech and expression, for e.g. sec. 153A, 124A, 294 and 295A of IPC and sec. 65, 66 and 67 of IT Act, have been invoked by religious groups, governments and individuals to shut down dissent or criticism against them by stating that these acts of expression are offensive.
If history has taught us anything, it is that any sort of power in the hands of government to curb or curtail speech has proven to be disastrous for activities of civil rights, for e.g. China, where any sort of critique of the government was deemed offensive and the result was in most cases death. The power to decide what speech is allowed and what is not allowed should not be in the hands of the government, or for that matter, anyone. If free speech is to mean anything it should be absolute. Frederick Douglas, in his speech, ‘A Plea for Free Speech’ said, “liberty is meaningless where the right to utter one’s thoughts and opinions has ceased to exist.” If on the virtue that certain speech is offensive and hurts the sentiments of a community or a group, speech is censored and criminal action is taken against it, then the purpose of freedom of speech is defeated.
Importance of Giving Offense
Giving offense is important in a democracy, it is by giving offense that society’s moral engines are propelled to move forward, Copernicus risked giving offense to the Christian orthodoxy when he said that the earth revolved around the sun, he really hurt them at that time, but by hurting them he made us understand the universe better. In order to be able to think, we need to risk being offensive. The right to free speech and expression means nothing without the right to give offense. Independent media and gay rights activists in the Arab world are constantly shut down by the government because they are deemed offensive.
If Naz Foundation, an NGO that championed homosexual and transgender rights in India, had been afraid of giving offense we might still be stuck with homophobic laws, but they fought for the rights of homosexuals and transgenders when it was considered offensive to be homosexual in India. The proposition that silencing of certain speech is necessary for the oppressed sections of society is in itself infantilising and neo-colonialist, that is based on the premise that certain sections of society are so oppressed that they need protection from the government against speech and they can’t handle hearing certain words, when we risk giving offense, we open the possibility of bringing about change.
Detriments of ‘Licensed Speech’
It’s contradictory to say that you want free speech but not for certain individuals, on the grounds that they are offensive, because a speech that is only allowed for certain people is ‘licensed speech’ and not free speech and this becomes a privilege instead of a right.
The stifling of free speech is detrimental because of two main reasons. Firstly, the idea that silencing of opinions will remain limited to those you do not like is presumptuous. In 1930s, there was an uprising in Britain against fascist by the ‘left’ and thus, there was a call by the left for a law banning the assembly of fascist, the government obliged but the law was then, time and again, used against the left, the socialists, the communists to stop them from assembling. This has certainly been the case recently where the comedians and general public alike asked for arrest of a Gujrati man for offensive statements about a female comedian and it wasn’t late before the mob called for cancelling of comedians for being offensive to them, by invoking the very same laws that they used (IPC sec. 292 (obscenity)). So, it becomes of immense importance that, for our own freedom of expression, we protect right to freedom of speech of even those that offend us.
“Hate Speech” laws in Europe, that were enacted for protection of it’s ethnic, religious and cultural minority against any “expression of hatred”, have been invoked in order to suppress and punish minority viewpoint. They were demanded by the ‘liberals’ to outlaw what they deemed hateful, like: misogyny, islamophobia, racism, bigotry etc. For e.g. in France, in 2015, pro-Palestinian activists were arrested for violating “hate speech laws” (wearing t-shirts that said boycott Israel) and in UK, in 2012, a British Muslim teenager was arrested for “racially aggravated public order offense”, his crime was, posting on his Facebook page about various Afghans killed by British soldiers in an offensive manner calling for death of all British soldiers. These are some of the examples of how Europe’s “hate speech” laws have expanded to include any opinion that is perturbing, which has resulted in the range of permissible opinion to gradually shrink daily; this has most certainly been the case with India as well. It has become imperative now that the ‘liberals’ defend the right to free speech of ‘conservatives’, those they deem hateful, and ‘conservatives’ should also do the same, if they want free speech for themselves, because freedom of expression has to be across the board or it’s not for anyone.
Secondly, the only way you can fight prejudice is by facing it head on, by debating it in the public forum, by showing your dissent to it in public and exposing bad ideas and criticizing them, not by censoring them. If you ban speech, it enforces victimhood and invokes empathy from people who are racist, bigoted or misogynists. This was certainly the case for Nazis. The Nazis were subjected to various anti-free speech laws during the 1920s and early 1930s by Weimar Germany, it did not stop the Nazis from rising but rather gave them an opportunity to play the victim narrative and this instead of stopping them, helped them in furthering their agenda. Rather, if their ideas were open for public discussion and debate, we might have been able to see an entirely different outcome.
This has been proven by the Skokie case (Nationalist Socialist Party of America vs Village of Skokie) in US, when the neo-Nazis wanted to rally in Skokie, Illinois, that is a majorly Jewish community, the city denied them the permit to demonstrate. The ACLU (American Civil Liberties Union) defended the rights of neo-Nazis to rally, the judgement was passed in favour of ACLU and the neo-Nazis and the US Supreme Court defended the rights of free speech even for Nazis. This enabled the protestors to witness, in plain sight, those who were bigots. The alternative was to drive them underground where their work and ideologies remain hidden from society and fester. This was also seen an year after the Charlottesville demonstrations where the white supremacists gathered no more than 25 participants in their demonstration at Washington. This proves that when bigoted ideologies are exposed to light, their allure diminishes.
That is why if free speech is there, it should be there for Nazis as well, this is based on the principal that can be attributed to Voltaire: “I despise what you say but will defend to the death your right to say it.” Indian courts have by and large followed the same principal in defending free speech. In the case of Indibility Creative Pvt Ltd vs Govt. of West Bengal, the Supreme Court held that “commitment to free speech involves protecting speech that is palatable as well as speech that we do not want to hear.” The courts have time and again held that free speech includes speech which may cause annoyance, inconvenience or may even grossly offend someone.
Where do we draw the line?
The only line that the courts should be willing to draw in order to put a limiter on free speech is when the speech causes “immediate incitement to violence” which can be traced back to Justice Holmes’ decision in Schenck v United States, where, it was held that a person “who falsely shouts fire in a crowded theatre” is not protected by the freedom of speech. The idea here is that the call/incitement to violence should be so immediate that there is no probability of discussing or debating with the person who calls for such an act. This was reaffirmed and clarified again in Brandenburg vs Ohio, where, the US Supreme Court held: “The constitutional guarantees of Free Speech and Free Press do not permit a state to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inducing or promoting imminent action and is likely to produce such action.”
The Indian courts have mostly followed the same precedent, for e.g. in the case of Superintendent Central Prison, Fatehgarh vs Ram Manohar Lohia, in which, Justice Subba Rao ruled that, incitement by Dr Lohia to not pay taxes is a protected right under article 19(1)(a) and the law by the state prohibiting this is an “impermissible restriction on freedom of speech”. And also, in the case of Rangarajan vs Jagjivan Ram, where, the state government tried to ban a film on the grounds of threat to public order, the courts held that state could not restrict speech unless there was an immediate danger, a restriction is only justified to prevent speech that advocates, induces and promotes imminent call to action and is likely to produce such action whose “impact is like a spark in a powder keg.”
Recently, the constant invocation of sec 124A, 295A and 153A of IPC, sec 65 and 66 of IT Act as well as UAPA by the government and other relevant provisions, that restrict speech due to threat to public order, makes the dissent of Justice Bhimasankaran in the case of Veerabrahmam vs State of Andhra Pradesh of immense importance. The case was concerning a controversy related to criticism of religion. The Andhra Pradesh government ordered for seizure of copies of Veerbrhamam’s book ‘Bible Bandaram’ under section 99A of Criminal Procedure code and the constitutionality of the same was challenged. The majority held that any activity that would cause ‘public disorder’ is well under purview of restriction of free speech, they also held that free thinking does not involve blatant attack on religion of others with indemnity. In his dissent, Justice Bhimasankaran held that in this case though the actions were deliberate and might outrage some, but no malicious intent was proved on part of the author. The judge said: “curbs on freedom of expression are a greater evil than any consequences that may follow by exercise of such freedom and that one must not be afraid of error so long as truth is free to combat it.” To summarise the hon’ble judge’s points, all speech is allowed as long as truth is there to combat it and freedom of expression is greater than threat to public order, to put it crudely everyone has a right to be wrong as long as there is time for truth to counter that wrong.
Justice Bhimasankaran clearly does not trust the government with the power to curtail freedom of speech and dictate the laws on what is acceptable speech and there is no reason that we shouldn’t follow his wisdom. The power in the hands of government to restrict speech is a slippery slope and it can very easily turn against the minority that it alleges to protect. UAPA, meant as an instrument to protect citizens from terrorism, has been turned into a tool by the government to label any dissent/protest against it as an act of terrorism, this can be observed in the case of ‘activists’ such as Anand Teltumbde and Varavara Rao or the recent protests against the controversial Citizenship Amendment Act by Safoora Zargar, who was labelled a terrorist under UAPA for her protest and freedom of expression.
In conclusion, though the provisions regarding “hate speech” were meant for protection of public order and “hurt sentiments” of minority groups these provisions have been regularly invoked to harass, humiliate and clamp down on artistic expression and free speech throughout the world by governments. The only country that has upheld freedom of expression for every one across the board is the US and we need to set it as an example for ourselves. It has been proven that “hate speech” laws have not been helpful in fighting racism, bigotry or misogyny but rather have been a tool for furthering these ideas out of the public eye. These laws and silencing of speech has been used by governments time and again, not for benefit of citizens, but to clamp down on protests and dissent. We need to ask ourselves the question, whether threat to public order outweighs the freedom of expression? The legislative history has proved the answer to be yes, but the consequences have been proven to be disastrous. Justice Bhimasankaran’s dissent is a different imagination of speech for our country, and the courts need to reflect on the wisdom so imparted and provide us a way out of this quagmire of ‘licensed speech’.
It’s time we apply the old proverbial saying of “sticks and stones may break my bones, but words will never hurt me” to ourselves and realise that there is a right to offend but there is no right not to be offended. We should not expect those who silence speech to be genial to us forever or to apply rules that we agree with forever. The clear problem with outlawing offensive speech is that too many things can be interpreted as such, and the efforts to do so have proven to be ruinous. We need to realise that one person’s “hate speech” might be a valid criticism of an idea for someone else, it is very hard to distinguish between this and the government, is one entity that cannot be trusted with this authority.
Preferred Citation: Gupta, T., “The Right to Offend: Case for Free Speech for Nazis”, The Law Culture (2020)
*This post was part of the Legal Arena Vol. 1. It won the First Position.