While discussing the Court’s newspaper regulation cases in the previous few posts, we noticed that in Sakal Papers and in Bennett Coleman, the Court accepts the unregulated marketplace as an a priori background condition within which the right to freedom of speech operates, and not something that may itself be subject to change or modification in the interests of free speech. In a separate line of cases, however, this view has been emphatically rejected. Unsurprisingly, these cases have to do with the second and third conceptions of free speech latent in Justice Mathew’s dissenting opinion in Bennett Coleman, that we discussed in the last post: free speech as a social good, promoting a rich, substantive conception of democracy; and free speech as the right of the hearers/listeners (the community) to have access to a wide range of ideas and opinions. It is easy to see why this is at odds with the unregulated-marketplace viewpoint: an unregulated marketplace possesses no safeguards against monopoly (indeed, if you were a Marxist, you would argue that any unregulated marketplace necessarily tends towards a monopoly), and a monopoly over ideas is something both the substantive-democracy justification as well as the community-right justification simply cannot abide. The goal of both these justifications is an end-state in which there is a certain variety of ideas accessible in the public domain; and the market is an instrument (as opposed to being an end in itself) that is used to achieve that end-state, with whatever influence or interference necessary to bring the end-state about.
Union of India v. The Motion Picture Association (1999) is a classic case on point. In that case, various provisions of the Cinematograph Act permitted the Government to “issue directions to… [cinema] licensees that scientific films, films intended for educational purposes, films dealing with news and current events, documentary films or indigenous films have to be exhibited by the licensee along with the other films which the licensee is exhibiting.” In other words, this was a case of content-specific compulsory speech. The Court rejected the 19(1)(a) challenge in the following words, which deserve to be quoted in full:
“…. the best way by which ideas can reach this large body of uneducated people is through the entertainment channel which is watched by all – literate and illiterate alike. To earmark a small portion of time of this entertainment medium for the purpose of showing scientific, educational or documentary films, or for showing news films has to be looked at in this context of promoting dissemination of ideas, information and knowledge to the masses so that there may be an informed debate and decision making on public issues. Clearly, the impugned provisions are designed to further free speech and expression and not to curtail it. None of these statutory provisions require the exhibitor to show a propaganda film or a film conveying views which he objects to. In fact, the exhibitors have not raised any objection to the contents of the films which they are required to show. They, however, contend that one of the important requirements for upholding such compulsory speech in the United States is that such speech should be content-neutral. While in the present case, the contents of the compulsory films are specified in the legislation concerned. In the context of Article 19(1) what we have to examine is whether the categories of films so required to be carried promote dissemination of information and education or whether they are meant to be propaganda or false or biased information. The statute quite clearly specifies the kinds of films which promote dissemination of knowledge and information.” (Paragraph 18)
Two things stand out in this paragraph. First, the Court disclaims the language of community rights, using instead the vocabulary of free speech as a social good: the goal is “informed debate… on public issues”. That is why the public ought to have access to ideas, information and knowledge – not because they have a right to it. Is the distinction important? Yes it is, for precisely the same reason that, in our very first post on Sakal Papers, we highlighted with respect to the instrumental/intrinsic justifications for free speech: on this reasoning, the Court ends up creating hierarchies of free speech, singling out for special treatment those instances that promote the said “informed debate… on public issues.” This, as we have seen before, in practice, amounts to nothing more than a line in the sand, and it is extremely difficult to apply it in a principled and consistent fashion.
Secondly – and more interestingly – the Court rejects the cardinal principle of American free speech jurisprudence: content-neutrality. Indeed, the Court could not possibly accept it, because to advocate a diversity of views is by definition to endorse a certain kind of content-regulation. What the Court does subscribe to – as is eveident from the last part of the quoted paragraph – is a softer principle that – for want of a better word – we can tentatively label “ideological neutrality”. Now, there are two objections to this holding of the Court’s. First, it is an open question whether “ideological neutrality” is even a coherent idea. The last eighty years of continental philosophy cast serious doubt upon that proposition. We know from Gramsci, for instance (to take just one example) that what we treat as “common sense”, something given and “natural”, is actually shot through with ideology and presuppositions that aren’t actually natural or necessary. Unlike the concept of content-neutrality, therefore, the Court’s hybrid principle might not have a strong philosophical foundation. And secondly, even if ideological neutrality does exist, why must it be enforced if we subscribe to a marketplace with access to a true range of diverse ideas? Suppose tomorrow all newspapers and television channels take an editorial decision to support the FDI-in-Retail-Policy, effectively excluding the contrary viewpoint from the public sphere. If the government now takes active measures to introduce the other side – admittedly, derivative and emblematic of a certain political ideology – into the so-called market, then is it inconsistent with the idea of democracy that the Court expounded upon? Whatever the independent principled justification and pragmatic wisdom of such a move, I suggest that it is entirely in keeping with the vision of democracy as playing host to a truly diverse range of viewpoints that the Court itself endorses.
LIC v. Manubhai D. Shah (1993), which was actually decided a few years earlier, puts the issue in clearer perspective. In that case, the Respondent published a study-paper pointing out various lapses in LIC’s insurance policy; an LIC official published a counter in The Hindu, and the Respondent published a rejoinder to the counter in the same newspaper. The LIC official’s counter was also published in LIC’s in-house magazine, but the Respondent’s request that his rejoinder be published there was rejected. It was this decision that he challenged. The Court upheld the challenging, observin that:
“Such an attitude on the part of the LIC can be described as both unfair and unreasonable; unfair because fairness demanded that both view points were placed before the readers, however limited be their number, to enable them to draw their own conclusions and unreasonable because there was no logic or proper justification for refusing publication… the respondent’s fundamental right of speech and expression clearly entitled him to insist that his views on the subject should reach those who read the magazine so that they have a complete picture before them and not a one sided or distorted one…” (paragraph 12)
It is of course, not very clear how it is my right that you should have a balanced picture of anything. It is safe to surmise on a reading of the case as a whole, however, that the Court was referring – in the vein of the Motion Picture Case – to a community goal of providing a balanced account of any contentious issue to the public. Yet what is of importance here is to note, again, how ideological neutrality is an extremely difficult concept to pin down. Here, the Court’s argument is that the rejoinder must be published to reach an overall balance of opinion. But if that is the case, then what differentiates our earlier hypothetical of promoting ideologically-loaded content which has otherwise been excluded – for whatever reason – from the public sphere?
In any event, for obvious reasons, the Supreme Court’s decisions in Manubhai D. Shah and in Motion Pictures Association are in tension with its decisions in Sakal Papers and in Bennett Coleman, because the idea of free speech as a social good and as a community right must necessarily conflict with an individual-rights view. The jurisprudence of the Supreme Court on this point is conflicted; we must therefore look beyond it to see which set of principles corresponds to the philosophy of our Constitution as a whole.