Speech by Amila Wijesinghe Barrister at Hate speech seminar at OPA
Posted on June 12th, 2019

Amila Wijesinghe

We are all painfully aware of how much tragedy this island has witnessed. And recent events have sparked a renewed public interest in the area of speech regulation. Sri Lanka already has some forms of hate speech regulation in the penal code and the ICCPR act – and much of the discussion has centred on the greater utilisation of these laws– or bringing in new hate speech laws.

However, whilst this is an entirely understandable reaction to the problems of this country, it is not yet clear whether it is the most appropriate. The freedom of speech is something often taken for granted, because there is a lack of understanding on why it is such a vital – yet fragile- principle. So today I will discuss in brief, some of the reasons for safeguarding speech and why we must view with great caution, any move to curtail expression.

First of all, what is hate speech? As obvious as it may seem at first glance, it is actually a rather elusive concept. There is no universally accepted definition of this in international law. And this reflects the inherent subjectivity of the concept. It’s influenced by a wide spectrum of subjective, regional and societal factors which means that it is a term that can be applied to a broad number of things, by different people and at different times. What is hate in one country, may not be in the next – what was hate a few decades ago, may be the opposite today. This presents the law with a significant problem because it requires a method of (at least attempting) to ensure consistency in its application.

The International Covenant on Civil and Political Rights prohibits ‘any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence’. And this has been incorporated in Sri Lanka through the ICCPR Act (2007). The problem with broad definitions like this is that it leaves much room for interpretation. What is hatred? What is hostility? The State or Courts will be the ones who decide on public morality and societal norms which are the lens through which these terms are interpreted. 

The problems with this are twofold. First, social norms are in a constant state of change and very difficult to officiate. History is full of examples of this. Galileo was considered extreme for claiming that it was the Earth that orbits around the Sun. The argument against Jewish people in Britain was that their Old Testament values were incompatible with liberal Western social norms. It was once considered extreme to suggest that the Bible should be translated into English so that common people could understand it. Blasphemy laws were only abolished in England as recently as 2008 and Blasphemy laws are still seen around the world today. The punishment for blasphemy in Pakistan or Saudi Arabia is the death penalty. Clearly social norms change depending on the time and place you happen to be. What was hatred yesterday, may not be so tomorrow. Attempts to entrench social norms through law, can run the risk of stultifying the progress of societal values.

Secondly, although hate speech laws are intended to protect minorities, the social norms they are based on are determined by the majority. It is inevitable that the Governments of the day, motivated by majority influence, determine what is acceptable speech – thus potentially side-lining minority voices outside of the accepted mainstream. 

This just highlights the subjectivity involved in determining hate speech. It is why it is important to have a high threshold for culpability for a speech crime and to ensure that people are aware of what speech is prohibited. If the academics are unsure of what hate speech actually means, and we legislate against uncertain abstract concepts, then how can we expect a layperson to know what he can say? Ambiguity surrounding this would lead to self-censorship and a chilling effect on speech.

Next, why is free speech so important? Why defend speech that we consider odious and distasteful? Freedom of speech is one of the most important rights. Without it, other rights such as the right to vote, freedom of association, freedom of religion, to manifest one’s religion – make little sense. It is a critical element of a true democracy. This is why the famous American legal philosopher Ronald Dworkin said that ‘Free speech is a condition of legitimate government. Laws and policies are not legitimate unless they have been adopted through a democratic process, and a process is not democratic if government has prevented anyone from expressing his convictions about what those laws and policies should be’. This is why political speech is so important and why it can be dangerous to allow the State to decide what constitutes political speech. The most important issues also tend to be the most controversial – whether it be religion, immigration, national security etc. – and so opinions on this will often be expressed with much hyperbole and passion. We all seem to love our free speech – but it’s the speech of other people, with different views, that seems to make people anxious.

Often, it’s the ideas that make us feel uncomfortable, that are the most useful in broadening our perspectives. It is through the collision of contrasting ideas, that the truth is revealed. Even if our ideas are entirely correct, if we only indoctrinate society without allowing them to be challenged by competing viewpoints, they will not have true conviction, and will crumble in the real world.

The dicta in the judgment of the much cited Handyside case in the European Courts (1979) (which was about an offensive publication), stated a right ‘to shock, offend and disturb’ as integral to the freedom of expression. In the case of Boos v Barry (1988) in the United States (where protestors held signs critical of foreign countries outside their embassies), the Supreme Court held that ‘in public debate…citizens must tolerate insulting and even outrageous speech’. These cases reflect a recognition of offence as an unacceptable basis for restricting speech. Offence, by its very nature, is about as subjective as it can get – especially in the sphere of politics and religion. It’s certainly possible for some adherents to one sect of Islam to find the views of another sect offensive. Similarly, there are literally thousands of denominations of Christianity and people from one may well be offended by the other. The views of an atheist in particular, would probably be deeply offensive to many people from every religion. What is offensive to me, may be entertaining to you, or even enlightening to someone else. If offensiveness was accepted as a metric for regulating speech, we would constantly have to yield to the least tolerant in society. This would be an imposition of unpredictable standards on individuals, who would have to constantly evaluate what might be offensive today, and this could particularly affect minority voices whose views are outside of the accepted orthodoxy.

The main reason behind recent calls for stronger hate speech regulation has been the issue of national security and public order. When approaching these issues, we should distinguish between offensive (or hateful) speech and incitement to violence or terrorism. While we should be cautious in silencing ideas – speech that intentionally and foreseeably incites to violence is clearly engaging in criminal behaviour that seeks to infringe upon the rights of others.

The spread of extremist ideological material has become a widespread threat. Terrorist groups have shown themselves to be highly effective at utilizing the internet and digital resources to promote their ideologies. In 2014, ISIS was able to recruit more than 6000 new members over the internet in just one month. But this isn’t just limited to digital mediums. In a UK report, it was found that around 30% of those involved in terrorist plots were graduates. A significant number of terrorist offenders had been radicalised at their university Islamic societies. Groups such as ISIS have targeted University Islamic societies because of the vulnerability of students, which makes it easier for them to radicalise them. We know that these extremists target the weak in society, and therefore there is a duty to be vigilant.

Finally, I’m going to talk about whether or not hate speech laws work. The answer to this is not clear. The United States is seen as an exception because of its propensity to favour the freedom of expression over any viewpoint based restriction. It’s history of constitutional free speech guarantees has seen its approach develop, from a time when the argument that speech should be restricted to prevent a risk of harm resulted in injustices such as pacifists being arrested for speaking out against war and Presidential candidate Eugene Deb being convicted for 10 years and disenfranchised for life, for speaking out against the mandatory draft – to the current day where even neo-Nazi speech is permitted, as long as there is not an imminent threat to violence.

Most European countries take a much more restrictive approach to speech. This is possibly reflective of some guilt in regards to its past. But there is no conclusive evidence of this being the best response to extreme speech. In fact there are certain merits to the argument that it can be counter-productive in some cases.

One example were the racial incitement and sedition laws implemented in the British Empire. While these were advertised as a response to prevent Hindu/Muslim tensions in India – in practice they were used to silence criticism of Colonial rule.

Another important example was in the Weimar Republic of Germany, during the rise of the Nazis, where there were established hate speech laws in place. Some of the most prominent Nazis such as Joseph Goebbels and Julius Streicher were prosecuted for anti-Semitic speech. The effect of this was that they received the kind of public platform and attention that they may not have otherwise. It ended up reinvigorating their supporters. Sometimes, attempts to silence speech ends up backfiring and allows speakers to claim victimhood and martyrize themselves in the eyes of their supporters.

It is a somewhat myopic view, to believe that the pyrrhic victory in silencing a speaker will guarantee the effective removal of an idea from society. Such action can send these ideas underground, where they fester, and eventually manifest in violence.

What about Sri Lanka? Did the ban on social media make you feel safer? Or did it perpetuate the climate of uncertainty – especially considering the lacklustre response of the government and its reticent attitude to informing the public of the situation. Social media is fast changing how societies interact, and its difficult to know exactly what its impact is. But the fact that we didn’t have social media in the riots of 1915, the 1950’s, 1970’s ad 1980’s – suggests that there’s more to the picture. It is not clear whether hate speech is causal or symptomatic of underlying issues. The best way to combat bad ideas, is through better ideas.

Speech laws grant an incredible amount of power to the State – and are therefore always open to abuse.  Sri Lanka’s existing hate speech laws have been used selectively, and therein lies the risk when granting power over ideas to the State. There is fair debate to be had on the merits and utility of hate speech laws – but as Sri Lanka now stands at a pivotal juncture in terms of how it will address the issue of extremism and National Security – let us be cautious towards attempts to curtail speech. And aware of why we should safeguard free speech.

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