Freedom of Speech
Now that the Arundhati Roy and S A R Geelani hate speech controversy is making a comeback with the court’s recent order to file an FIR, it is time to take a deeper look at the ground on which we are standing. Most commentators have so far advocated allowing freedom of speech if it does not incite violence, with people having differing opinions on whether Arundhati Roy’s “sedition” speech made the cut. One commentator argued that her speech does not incite new violence and hence we should be liberal about it, following the precedent of the US and the UK. Unfortunately, this preoccupation with the minor premise has taken all the attention away from the major premise, which is, if Arundhati Roy’s sedition speech does incite fresh violence, should she be liable?
While a reactionary answer might be in the affirmative, closer scrutiny reveals otherwise. We shall start by remembering that when designing our laws, we are really asking the question, “what part of our personal ethical code do we want to impose on others by force?” There is a huge part of our value system that is excluded by the legal system because we do not like the idea of coercion, and rightfully so. Forgetting this distinction gets us stuck with trying to legislate morality, which is at best an exercise in futility.
To illustrate, I may go to a public square and start announcing that people should kill their neighbors. If an unfortunate listener carries out such acts, the courts in most legal systems would not for a moment entertain his defense plea that he was asked to do so by me. The consequences of the listener’s actions will be visited on the listener, and I will not be on trial, unless, it is proved that I aided the act. In other words, legally-punishable offenses are not in the talking, they are in the doing. We must withhold the temptation to lock up inflammatory politicians for their talk, and reflect on how difficult it is to judge all the cause-and-effect links between our own words and actions, a fruitful spiritual exercise lasting a lifetime. Judging others’ words with the intent of establishing legal liability is not just impractical, it might even be impossible, for as many people there are, that many perceptions we shall find. Forgetting the distinction between actions and words leads us down a path of great legal confusion and expense, which we forget each time we try to nail someone for a hate speech.
However, a fundamental problem still exists in the notion of “freedom of speech.” If someone comes to our home and starts shouting slogans all day without getting violent, we would still seek recourse to getting such a person evicted from our property. The right we are exercising is a right to be left alone on our own property. By respecting property rights, we find a simple solution to the current dilemma of how much freedom to tolerate – there should be no freedom of speech, only a guarantee of our property rights. The limitation on who can speak what on a property is for the property owner to decide.
So, if a private college welcomes Arundhati Roy to give a speech, as long as the college authorities are not upset with her presence, she has committed no legal offence. If someone wants to sit in their own home and say the most obnoxious things we can imagine, there is no problem. While the present government’s decision to ignore the sedition laws (which the court has now challenged) in the case of Ms. Roy and Mr. Geelani is dictated by our values of acceptance and freedom, it is much better to have clear legal principles that do not contradict our values and can be easily understood and implemented by anyone.
Once we are clear that there is no such thing as freedom of speech outside of property rights, there are some important implications. First, people are free to say obnoxious things to each other from their own property, as long as those neighbors who want to be left alone are indeed left alone. Second, if anyone is offended by what someone has said, they have the same freedoms as those whose speech they are objecting to. Third, there would be no book banning by the government. People would however be free to buy a book in order to burn it on their own property, if they so wished, as long as there was no safety hazard to their neighbors. If we take the property rights paradigm to its logical conclusion, people would no longer be prosecuted for crimes against the state (implying a repeal of the British-era sedition law), only for crimes against other people (either to their person or property). Given how easily most of our legal confusion vanishes in the paradigm of individual property rights, we are left questioning the value of public property altogether, where all of these confusions arise.
Finally, going beyond our laws, we have a responsibility to reflect on the deepest held values of our culture – freedom and compassion. When the Dalai Lama came to Stanford University recently, with head held high, he told the West to learn how to accept discordant opinions from India. This is the only nation to have had a whole school of thought called the Charvaka school, whose followers were nihilists (or, as some might add naughtily, ancient Arundhati Roys). They were given the highest honor that India could give, the title of “Rishis,” or “sages,” and had a big following. Allowing Arundhati Roy to have her say is not a capitulation to western notions of democracy, but an upholding of our deepest values.