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The Supreme Court on Hate Speech – Again

Today, the Supreme Court declined to adjudicate, on merits, a PIL requesting it to frame guidelines prohibiting political hate speech. Citing separation of powers concerns, it delegated the task to the Law Commission. The judgment, however, has some observations that – albeit obiter – are of great significance for free speech in India.

In Paragraph 6, the Court cites two Canadian cases with approval. The first, Canada v. Taylor, was a case about the constitutional validity of Canadian hate speech laws. The issue turned on whether proscribing hate speech violated the right to free expression. The Court upheld the constitutionality of hate speech legislation, and expressly framed the issue as one of equal participation in a pluralistic democracy. The direct effect of hate speech – both by the psychological effect it had on the individuals (mostly, of minority groups) so singled out, as well as its contribution to an atmosphere in which certain groups were systematically regarded as inferior – would stifle the opportunities of members of those groups to participate in the society on terms of equality and dignity. The ultimate goal of hate speech legislation, the Court held, is to prevent the kind of racial and religious discrimination that has been so divisive for societies all over the world. Specifically, the Court focused on the constitutional meaning of the phrase “hatred or contempt”, and observed that it had to be informed by the commitment to protecting “equality and dignity”, and categorically warned against conflating it with subjective “offense”. 

The second Canadian case the Court cites is that of Saskatchewan v. Whatcott. That case – as the Court observes – made it clear that there is a distinction between expression that is “repugnant and offensive”, and that which rises to “abhorrence, delegitimization and rejection that risks causing discrimination and other harmful effects.” Once again, notice that two out of three words directly implicate equality concerns – in particular, concern with the equal moral membership in society of all citizens, regardless of their group affiliations. The Court in Whatcott went on to add that the repugnancy of the idea in itself is not enough – the question is whether the effect of the expression is to expose the group to hatred by others – that is, whether it would incite other members of the society to deny the equal moral membership of the targeted groups (classic example – which the Court cited earlier in Taylor – German Jews in Nazi Germany).

In paragraph 7 of its judgment, the Indian Supreme Court then directly incorporates the Whatcott rationale. Let us excerpt paragraph 7 – which ought to be in quotation marks – in full:

Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.”

There are four distinct ideas in this paragraph, that we need to unpack.

(1) What is at stake here – as explained above – is equality. The use of the terms “marginalise” and “delegitimise” highlight the fact that hate speech essentially holds a certain group to be unworthy of the general respect and dignity enjoyed by all other individuals in a pluralistic democracy.

(2) Hate speech is not about what targeted individuals might find subjectively offensive.

(3) Hate speech needs to be curtailed because of consequential reasons – in particular, its direct causal connection with actual discrimination (this is the point Waldron makes, that we discussed in the last post – an environment corroded with hate speech is a distinctly unwelcoming to targeted groups).

(4) Hate speech has a silencing effect that prevents the full participation of targeted groups in democracy – either through self-censorship because of fear of being attacked, or because the voices of targeted groups are distorted or unheard by the majority that is fed on delegitimising hate speech (another equality point).

In Whatcott, the Court went on to stress the difference – yet again – between hate speech and causing affront, ridicule or belittling of specific individuals. It also emphasised that one reason why the standard of protection for hate speech is lower is because it does nothing to serve the accepted free speech goals of promoting discourse – rather, it shuts down discourse because of its silencing effect.

After incorporating the Canadian test into its judgment, the Supreme Court then brings a whole host of legislation within the broad ambit of “hate speech”: in particular, Ss. 124A (sedition), 153A and B, 295A (insulting religious beliefs), the Representation of Peoples Act (election issues), Protection of Civil Rights Act (untouchability), S. 66A et al of the IT Act, and so on (paragraph 10). But if all this legislation is hate speech legislation – and if the Court’s framework analysis in paragraphs 7 and 8 is what must be undertaken when adjudicating what “hate speech” is – then logically, the interpretation of – say, S. 295A – must be informed by this particular understanding of hate speech.

So, for example – as we have argued before on this blog – when we are interpreting the word “insult” in S. 295A, we can’t restrict it to purely subjective feelings of offense or wounded pride. In today’s case, the Supreme Court gives us a methodology for interpreting such sections that are broadly consonant with liberal principles. That is, what S. 295A seeks to do is to ensure prevent discrimination against individuals for their religious beliefs, and to achieve this aim by preventing religious hate speech. What constitutes religious hate speech, then, under 295A, is speech that expressly deligimises or marginalizes – to use the Court’s expressions – individuals on the basis of their religious affiliations. Take three hypotheticals statements, taking an imaginary religion X:

Statement A: “You Xians actually believe in past lives and reincarnation? That is so utterly ridiculous and stupid.”

Statement B: “Turns out that some of your Xian Gods were serial sex addicts – your own religious texts indicate that.”

Statement C: “You Xians are cockroaches, and need to be eradicated.”

Keeping in mind our discussion above, and in previous posts, it is obvious that Statements A and B do not amount to 295A-prohibited religious hate speech, no matter how much offense they cause, and how much they infuriate. There is nothing in those two statements that denigrates Xians as persons, questions their equal moral membership in society, or denies them the right to participate in a pluralist democracy on equal terms. Statement C, on the other hand, falls clearly within the proscription, and for all the reasons adduced above, can be prohibited on liberal grounds.

(Needless to say, on this standard, there is absolutely no chance that Wendy Doniger’s books can be legally banned under 295A)

Today’s observations have no precedential force, but once again – like in the recent pornography decision – they lay the base for future developments of India’s free speech laws that are consistent with basic principles of political liberalism, pluralism and equality. It remains to be seen whether the Supreme Court will choose to walk down that road.

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Book Review: Jeremy Waldron, The Harm in Hate Speech (and the relevance for Indian free speech law)

(There is no question that India’s “hate speech” laws – S. 153A and 295A IPC, S. 66 IT Act et al. – are problematic. Recall, however, that hate speech legislation as such is a staple feature of constitutional liberal democracies. Indeed, in prohibiting all regulation of hate speech, the United States is an outlier; hate speech laws, of some sort, are envisioned in the ICCPR and the ECHR, and provided for in the laws of South Africa, Canada, England, Australia and other western European nations. The problem in India, therefore, is not the existence of hate speech laws per se, but their infelicitously broad wording (sometimes, but by no means always, a colonial legacy), and their rampant abuse. Two things follow: first, even if – through legislation or through the Courts – S. 295A and the rest are repealed or struck down, they will almost certainly be replaced with something else. And secondly, until that time, it becomes even more important to carve out a legal/judicial hate speech doctrine that comports with the legislation on the statute books, and is consistent with basic liberal principles. One way of doing that is by engaging with the work of prominent liberal defenders of hate speech laws, and perhaps amongst the most famous of them writing today is Jeremy Waldron, who published his book, The Harm in Hate Speech, in 2012).

Jeremy Waldron’s The Harm in Hate Speech is a liberal defence of hate speech laws. It asks whether it is morally consistent for a polity based upon principles of political liberalism – that is, committed to upholding individual autonomy, personal freedoms and according equal respect and concern to all – to place restrictions upon the speech of its citizens. Waldron answers that it is.

According to him, there are two related values that hate speech damages. The first is the public good of inclusiveness. In modern pluralist democracies, there is a diversity of ethnicities, races, religions and ways of life. The public good of inclusiveness entails a general assurance each person, qua person and qua member of any particular group, can lead a regular life in the polity without facing “hostility, violence, discrimination or exclusion by others.”  In essence, it is a “sense of security in the space that we all inhabit” – and naturally, by that reason, it is something we all work towards building and sustaining through our daily conduct.

The second value is that of dignity. Waldron defines dignity as the confirmation of equal membership in a society, or one’s “basic social standing… as a proper object of society’s protection and concern” (or, in Dworkin’s language, democratic legitimacy springs from the community according “equal respect and concern to each of its members).

In order to grasp how precisely hate speech harms these values, Waldron asks to understand it as a form of group defamation. In the American case of Beauharnais v. Illinois, for instance, it was prohibited to portray the “depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed or religion.” The defendant’s criminal conviction for distributing pamphlets calling upon white people to resist the “encroachments of… the Negro” was upheld by the United States Supreme Court on the ground that libel deserved no free speech protection. Waldon argues that this, precisely, is the best conceptual frame for understanding the issue.

At the heart of Waldron’s arguments is his vision of “public order” in a liberal society: a state of affairs in which each person’s social status, as a citizen of equal moral worth and the possessor of inalienable dignity – is protected. The point of group defamation laws, then (drawing an analogy to individual defamation laws) is to “uphold against attack a shared sense of the basic elements of each person’s status, dignity, and reputation as a citizen or member of society in good standing – particularly against attacks predicated upon the characteristics of some particular social group.”

It is hardly surprising, then, that Waldron draws much of this theoretical ammunition from feminist arguments against pornography, in particular, the work of Catherine MacKinnon. Like MacKinnon, Waldron believes that speech is, in some sense, constitutive of social reality. Words don’t merely express states of affairs, they do things. In particular, he argues, it is the permanence of certain forms of expression – the written word, in particular – whose “apparently ineradicable presence makes a massive difference to the environment in which [we] live our lives.” In an environment rife with hate speech, therefore, the message that is conveyed to its targets – the message of exclusion and insult – becomes part of the very look of that society, and thus breaks down the assurance of inclusiveness that Waldron considers to be a basic public good.

Having established, then, that hate speech violates individual dignity, the problem of the slippery slope looms large – how do you cut off “dignity” from all the other ways in which free speech might affect people? Waldron’s answer is to draw a sharp distinction between “dignity” and “offence”. Being offended refers to subjective feelings of hurt, shock or anger, whereas a person’s dignity depends upon their objective standing vis-a-vis society. There is thus a conceptual difference between protecting someone from a certain kind of “effect on their feelings” (impermissible), and protecting “the assurance of their decent treatment in society” (permissible and warranted). In the context of religion, for instance – and this is something reflected in the religious hate speech codes of liberal democracies – the distinction is between attacking a system or a set of beliefs (e.g., questioning or ridiculing Christ’s resurrection), and attacking the civic status of a religious group qua religious group (“all Christians are scum”).

In essence, then, hate speech codes are about protecting an environment in which the equal citizenship of all individuals – and especially those belonging to unpopular minority groups – is respected, or at least, preserved. It is an intuitively powerful argument, narrowly tailored, and seems justified by the history of communal, ethnic and race-based strife throughout the last two hundred years, much of which has been stoked by incendiary expression (see, for instance, Prosecutor v. Nahimana, on the incitement to genocide in Rwanda).

It is in addressing counter-arguments, however, that some of the possible weaknesses in Waldron’s architecture are revealed. He responds to Edwin Baker’s argument from autonomy by performing a simple balancing task – balancing the autonomy concerns of stifling a racist’s self-expression with the harms described above. He fails to acknowledge, however, that the autonomy claims in this case are not just of the speaker, but also of the listeners. As Scanlon has argued, for instance, our fundamental intuitions of individual responsibility hold persons accountable for their actions, unless coerced. Consequently, what causes the dignity and inclusiveness harms – in the sense of moral and legal responsibility – is not hate speech, but all the individuals who listen to it and – as autonomous persons – allow themselves to be convinced by it.

Equally, it is no answer for Waldron to reply to Dworkin’s argument that the legitimacy of non-discrimination laws depends upon letting racists (for instance) have the full opportunity of rebutting them, by pointing out that racists can object to anti-discrimination laws through non-racist speech. Dworkin’s legitimacy argument, indeed, has a simpler response, and one that has repeatedly been made by feminists in the context of pornography: if the whole point of pornography and hate speech is to systematically distort the free speech of certain participants (women, minorities), then obviously, legislation that emerges out of such a distorted public sphere itself can lay no claim to legitimacy. The argument can then be turned against Dworkin by contending that free speech codes remedy the expressive inequalities created by hate speech (as one element in a system of structural inequality and hierarchy), and thus bolster the legitimacy of laws that arise out of a more equal and fair public sphere.

Somewhat unsatisfactory, as well, is Waldron’s response to Mill’s argument, that the truth needs constant opposition if it is to survive in a living and vibrant manner, as opposed to sinking into runic, doctrinaire formalism. Waldron responds by arguing that, whereas at some point the “race question” was a point of contestation in the framing of social policy, when racist arguments were a part of public discourse, “it would be fatuous to suggest that it is the importance of our continuing engagement in a debate of this kind that requires us to endure the ugly invective of racial defamation in the marketplace of ideas. In fact, the fundamental debate about race is over – won, finished. I find this argument problematic because it accords to government the power to decide what debates are finished and what debates are live, what argument is on the wall and what argument is off the wall – and that is an extremely dangerous proposition. As the American Smith Act trials show – indeed, as Arthur Miller’s Crucible shows more eloquently than anything else – it is in the interest of momentary majorities to declare as many debates possible as finished, and then write their convictions into law.

Lastly, Waldron responds to Robert Post’s argument that the very meaning of democracy entails that “even the most cherished norms of our community to be challenged democratically in a contest in which it is possible that they might be denigrated and even rejected.” Here again, Waldron’s reply that you can challenge laws (norms) against discrimination and hate speech without engaging in hate speech simply will not do – because one of the very norms under challenge is precisely  the norm that objections to existing norms are not permitted to be expressed through hate speech (the specter of infinite regress loom here, but we can stop at this point). And the challenge to this norm, logically, can only be made through hate speech.

Despite these objections, Waldron’s account remains a powerful and important account of justifying hate speech codes within the rubric of political liberalism. In particular, his distinction between causing offence and undermining dignity is particularly crucial for India, because of our over-broad speech statutes. s. 295A IPC, for instance, criminalizes “insulting” the religion or religious beliefs of a particular class. One possible argument, I suggest, is to focus on the word “insulting”, that has been preferred to “offending”, and argue that it clearly signifies objective content. We can then argue, for instance, that “to insult” must necessarily mean to invoke those social conventions that have been historically used to subordinate, or deny the equal status of, particular groups (e.g., calling a community “dogs”) – and nothing less. This, then, provides a clear conceptual distinction, grounded in liberalism, that can allow us to distinguish, statutorily and constitutionally, mere “offence” (without the causing of which free speech can hardly exist), and attacks on equal citizenship and dignity, which there are strong reasons to protect.

It is also an elegant way of making sense of the Constitution. Naturally, S. 153A, 295A, 66A and the rest must be consistent with Article 19(2), if they are to remain constitutional. On this blog, we have argued before that the best interpretation of the “morality” restriction under Article 19(2) is to understand it neither as personal nor as public morality, but as constitutional morality – morality that is grounded in constitutional principles. One of the principles of the constitution – as evidenced from Articles 14, 15, 21 and 25 – is the principle of equal concern and respect. That is precisely what the Waldronian conception of hate speech laws seeks to protect. In this way, therefore, S. 295A et al – or some other avatar – would remain both constitutional and fundamentally liberal in their interpretation and application.

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The Supreme Court on (Election) Hate Speech

NDTV and FirstPost are carrying reports that the Supreme Court today dismissed a PIL asking the Court to require the Election Commission to prohibit hate speech by politicians during election campaigns. I don’t have access to a copy of the order (link, anyone?), but it seems that the Court made the following observations:

“We are 128 million people and there would be 128 million views. One is free not accept the view of others…”

“Let all shades of opinion come before the public. Let them decide…”

It’s unclear, of course, what precedential value these observations have, but it is important to note that:

– A complete ban on regulating hate speech is a position only followed in the United States. It is not the position in Canada, the EU and South Africa, to name three important constitutional courts.

– A complete ban on regulating hate speech – especially in the language that the Court has framed it, if the above quotations are accurate – has important consequences for doctrine. First of all, Indian law is full of provisions that criminalise some form of hate speech: S. 295A (at the centre of the Wendy Doniger controversy), The SC/ST (Prevention of Atrocities Act), and so on. Now, there are different ways of interpreting provisions like S. 295A, ways that are conservative and moralistic, but ways that are liberal as well (see, e.g., Waldron, The Harm in Hate Speech). For example, a liberal might argue that the word “insult” in S. 295A, which is doing much of the legal work in that Section, ought to be limited to speech that either intentionally, or by virtue of established social tradition, expressly denies the equal moral or human worth of the person it is addressed to, on the ground of the religion that they follow (such a test forms the basis of campus hate speech codes, for instance). Under today’s observations, however, it is difficult to see how S. 295A et al can be constitutional at all. Recall that what S. 295A does is essentially vest in communities a private right of public censorship. Now, if the reason for permitting hate speech is that all opinions ought to come before the public, then it is simply impossible that such a private right of censorship is consistent with that ideal.

– A complete ban on the regulation of hate speech has repercussions beyond the realm of hate speech as well. Let us consider the principled arguments in favour of this position:

(a) Perhaps the most famous one is the – almost cliched – “marketplace of ideas” argument. Every idea ought to have its turn in the grand marketplace, and ultimately, the market will decide which ideas are to survive and become common currency. It is not for government – and not for private parties using the mechanism of law – to impose controls and restrictions upon the marketplace of ideas. This seems to be what the SC is getting at when they refer to letting all opinions be before the 128 million people of India.

(b) Ideas of cultural democracy – advocated by scholars like Ronald Dworkin and Jack Balkin – ground free speech in ideas of equality. Every person, the argument goes, has an equal right to contribute to shaping the moral and cultural environment that they find themselves in, as a condition for the democratic legitimacy of the State.  By excluding certain ideas from the public domain, the State does not treat those individuals with equal concern and respect.

(c) Ideas of autonomy hold that it is an insult to autonomous, responsible individuals to withhold from them ideas or words on the ground that it would be (morally or ethically or otherwise) harmful to them. As a corollary, by banning speech on the ground that it might lead to public order disturbances, the State attributes responsibility on the wrong person: if autonomous individuals take responsibility for their acts, and if autonomous individuals, on reading Pierre-Joseph Proudhon, decide to go and burn down the nearest bank, then the responsibility for that act lies not on Proudhon, or his writing, but on those thinking, reflecting individuals. This, again, seems to be at play when the Court observes that “let the public decide”.

(d) Ideas of cultural pluralism hold that in a pluralist democracy, the same speech, or the same set of ideas, can mean very different things to very different people. To put the matter extremely crudely, one man’s obscenity is another man’s art. The argument then goes that it is not for the government to privilege one section of the people over others, by making a value judgment about the impugned speech.

This is not, of course, to argue that the case against regulating hate speech doesn’t have powerful counter-arguments – it does. The point is that if the Court holds today that hate speech cannot be regulated or banned, then it institutionally commits itself to some manner of content-neutrality – the idea that the content or message of expression in itself cannot provide a ground for censoring it. If we look at each of the principled justifications provided above, they all embody some vision of (weak or strong) content neutrality. But if that is the case, then a lot of our law needs to be rethought. We need to start by rethinking what the words “decency and morality” mean, under Article 19(2). For example, is it consistent to justify a ban on Lady Chatterley’s Lover under the morality ground of Article 19(2), or the continued existence of 295A as constitutional – again, on the morality ground of 19(2) – while simultaneously holding that the morality ground doesn’t cover hate speech? Either we need to find a definition of “morality” that reconciles these two positions – or we need to achieve consistency by rethinking our interpretation of 295A et al. 

Today’s observations have the potential to become a crucial point of departure for a full-fledged, long-overdue constitutional debate on what the philosophical foundations of Article 19(1)(a) and 19(2) are, what precisely they prohibit under the “public order, decency and morality” restriction, on what grounds, and how these grounds are consistent with the broader Constitution and our ideas of democracy and equality more generally. Whether or not that will happen, of course, is another question altogether.

 

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