<link rel="stylesheet" href="//fonts.googleapis.com/css?family=Open+Sans%3A400italic%2C700italic%2C400%2C700">First Amendment to the United States Constitution Archives « Aam JanataSkip to content

5

There is no such thing as absolute free speech. There is always a line that must not be crossed. And it varies for people. The more bigotted the society, the more disparity in the "allowed" speech. The more polarized the society, the more the need to censor speech in the interests of public safety, because the idea of free speech is for all. Powerful voices going on a rampage against certain sections of society is not free speech, because the less powerful voices get drowned out and their right to free speech is violated.

Your Liberty To Swing Your Fist Ends Just Where My Nose Begins

This arm is my arm (and my wife’s), it is not yours. Up here I have a right to strike out with it as I please. I go over there with these gentlemen and swing my arm and exercise the natural right which you have granted; I hit one man on the nose, another under the ear, and as I go down the stairs on my head, I cry out:

“Is not this a free country?”

“Yes, sir.”

“Have not I a right to swing my arm?”

“Yes, but your right to swing your arm leaves off where my right not to have my nose struck begins.”

Here civil government comes in to prevent bloodshed, adjust rights, and settle disputes.

John B. Finch

If a polarized society has some people overpowering the voice of others, creating about them a public opinion that can open them to grave harm, then it is not free speech. In my view, the duty of the moderator in order to uphold free speech then becomes creating norms that prevent harm to the less powerful, so that the fundamental freedoms of ALL are upheld.

The concept of free speech is life affirming. It is about freedom from persecution and punishment in expressing an opinion. It is a democratic ideal, that every citizen is able to have their say, and thus influence their country and world to their taste. This is not intended to be a free for all where speech of one is allowed to conquer the other through prevention of "violation" of the right of the louder. Speech of all is intended to be inviolate. Attacks on another are not free speech.

Also, free speech is about your opinions. Your right to say what you want. However, freedom of information is an important part of free speech. Spreading disinformation is anti-freespeech, because disinformation influences free speech for an agenda. A good example here is the objection to spreading rumors. Why should people be arrested at all for spreading rumors about threats to people from the northeast, if their freedom of speech lets them say whatever they want?

If a person shouts "fire" in a crowded pandal, and three die in the ensuing stampede, is that freedom of speech? If this person is arrested or gagged by security guards to prevent harm to others, did they violate his freedom of speech? Was it wrong? In my view, it is not. Similarly, if supporters of a Hindu group continually spread rumors of Pakistan flag being hoisted in Mumbai or Hyderabad, in a country with a long history of communal riots, this is not freedom of speech.

How easy it is to claim freedom of speech for purposes of communal incitement, something which is explicitly illegal in India. How easy it is to play the victim and overturn feeble attempts at enforcing order. How easy it is to fool citizens who have deliberately been kept in the dark on any dialogue on free speech, that any censorship is a violation of free speech.

So why is spam not free speech? Why is it persecuted? Why are spammers blocked, arrested? Why do we not allow sites promoting pedophilia or rape or sites that will steal your passwords? Aren't phishing sites a demonstration of creativity by some brilliant coder? Why have a censor board at all? Why not show graphic rapes in detail on films? Wouldn't they sell better in a nation intent on exploiting sexual and power thrills from its women?

It isn't about whether it is factual or a rumor either. Why don't news channels show blood streams and dismembered bodies after a terror attack? The "minority community" reporting is intended to prevent communal conflict too, though it ends up making things worse, because political polarization of India is so complete that people see it as a protection of culprits. The need to blame rages and there is no particular preference for safety - particularly for politically interested spectators.

Why do we accept some boundaries and suddenly wake up to others? Why do social media websites have report abuse buttons? Why do they block people violating Terms of Service if whoever is bothered by spammers and abusers can block them anyway?

Why do we not object to admins of social platforms taking steps they deem necessary for the service to be available to all, but deny governments the same right in the face of dead bodies and disinformation that has been tracked to websites or profiles? Why is it so unreasonable to expect those wrongfully blocked to clarify and get unblocked when it comes to government?

There is *always* a line. A line that is drawn with a view to freedoms and tweaked in cases of emergency however needed. When you have people from the northeast from half a dozen cities fleeing, effective or not, the government has the right to take measures it thinks are appropriate - though admittedly the government is not very bright with this. To condemn the censorship as an attack of Freedom of Speech is a fundamental misunderstanding of what Free Speech is.

Freedom of speech in India is iffy at best. If law enforcement worked as advertized, out first amendment and laws on free speech would have been shredded long ago, because the problems would be clear. We began with Freedom of Speech supported freely in the constitution. The First Amendment was a quick assertion of the right to shut people up. Since then it has been downhill. It is currently not legal for you to be blasphemous, offend people, and such abstract things. The government has given itself the power to interpret things at will and ban whatever it wants [read]. And no, this isn't exclusive to the Congress.

The government prefers the freedom to use its discretion to deny content over making a principled, uniform and clear stand on what specifically is a right and what will not be allowed taking the "right" out of almost every word you can utter. There is nothing illegal about almost any censorship in India, because the laws have been framed so that they can be used to nail anyone. It is by design, and this needs to be brought down to even begin protesting censorship in any legal manner. There has to be explicit defining of what will not be allowed and this has to be as little as possible and the rest has to be freedom of speech - clear line. THIS is what the fight for freedom of speech is about.

Making exceptions to already flimsy laws when they are applied for the reasons like safety of citizens weakens India by making precedents to break laws for "right reasons", by weakening the struggle for free speech itself by diffusing the practical problems dysfunctional laws create, regardless of which opportunists are in power, regardless of your opinion on how well or badly it is done. If you are a true advocate of Free Speech, then strengthen it by getting faulty laws scrapped or fixed. Even if absolute Free Speech is not possible, it certainly is possible to be explicit on what is free speech and what is a violation of laws and to uphold that meticulously so that people acting in illegal ways running riot and harming the interests of the country are not gagged in an inaccurate and haphazard manner. If everyone knows where the line lies and when it is crossed, there is no ambiguity on why exactly the censorship is due and when it is wrong.

In other words, if Facebook and Twitter had Terms of Service like our Constitution and Laws on Freedom of Speech, you'd find somewhere else to do your speaking. Alas, we can't unsubscribe from countries, but we CAN do one better - we can fix what doesn't work in a democracy.

The need for the hour is not to paralyze the government but to show some spine and get laws defined better. And, like improving women's rights are marked by resistance of those who prefer them silent, right to free speech will too be marked by offenses taken, attacks made and more as those with the power to censor the nation's narrative fight to retain that control. It isn't about making exceptions for instances of censorship, but overturning this cart comprehensively.

4

Dear Sir,

I wish to write to you on an issue of vital interest to our country, the freedom of speech on the internet. We have a sizable population on the internet, and it is slated to grow phenomenally within the next decade. I don't presume to speak about things you know better than I do, our constitution, our laws. Instead, I would like to draw your attention to the value of freedom of speech, something that has captured imaginations over the ages, always. Free Speech is something that has made heroes out of ordinary men for simply standing for it, because it holds value to populations.

Today, our country is in a precarious condition. There are concerns on every possible front from economy to human rights. We have let our country deteriorate to the point where there is frustration in the population. This frustration emerges as angry speech. There is a movement in the government to strangle the emerging flood of criticism.

I wish to make a case that freedom of speech is vital to the health of a society and to strangle it is worse than the evils of allowing it voice. Worse for the people, worse for the government, worse for the country as a whole. Blocked, anger can only accumulate out of sight and explode in unpredictable ways.

Where there are people, there are differences. A fundamental of co-existence is the ability to negotiate these differences and move from polarization to a shared objective, however minor. Be it a couple in a marriage, political parties in the parliament, or people with different fundamental views on things on the internet. These negotiations are a case of learning, and like all learning, don't emerge perfect. The internet is not a special case in this regard, though it is being specially targeted.

The internet is particularly well suited to accommodate differences. The ability to choose what we see is of enormous significance. To object to the very existence of any content not palatable, when it can easily be avoided is intolerance.

This, when it happens among random netizens is the equivalent of children fighting over something. They figure it out with time, they settle down. There are people offended, sure. But they learn to handle that, just like we learn in real life. We are all the more mature for it. In the process of interacting about some subject, we are also learning the principles of interaction on the internet itself.  But once there is the expectation that offensive content will not be allowed, then offensive content starts seeming like an injustice. Till then, it is simply something ugly to be avoided. Allowing the use of the law as a weapon against another citizen may serve a political class rooted in taking advantage of differences rather than bridging them or other criminals who prefer misuse of power over accountability, but it is always citizens being hurt.

In a democracy, unaccountable power with a few people is far more worrisome than people offending each other. Yet, there are relentless efforts in that direction. Every few months, our Minister Kapil Sibal comes up with a new rabbit out of the same hat. Sometimes over terrorism, other times over religious offense, but any statistics of use that we do have indicate political censorship, which has to date never been openly given as the reason. Increasingly, the methods are being designed to operate under radars.

Today, we are seeing increasing and unpredictable censorship. Be it cartoonists being arrested, cartoon websites being banned, cartoons to be removed from text books, or the infamous IT Rules, which give anyone the power to censor content on the internet, bypassing not only any court of law, but any authority whatsoever. This has to be the singular application of law in our country where it is impossible to collect any reliable statistics on its use, because it touches no government body of any kind in its application. There is no way of saying if this law is useful, how it is useful, how much it is used, or how it is used unless the law actually gets defied. In other words, people will have to flaunt the law of the land if they even want to escape being wrongly targeted.

That is, if they actually fight being victimized at all. A simple research project by CIS-India showed that not only were wrongful takedown requests complied with, in six out of seven cases, they were over complied with. The common man has been left high and dry by a legal process designed to create that. It defies every explanation of democracy.

Another example exists on this blog itself. I had written a post about scams in sailing. A whole range of small but profuse evasions of dues to the country over a long period of time. It was based on documents obtained through RTIs. I received a notice pointing out minor inaccuracies and blatant false claims. I corrected any inaccuracies immediately, but the very next day I received a second notice, this time as the owner of the blog to take down the content through the IT Rules. Now, as the author of the blog, I am not an intermediary. The notice wanted me to take down the post on charges of defamation. It was printed on a letter head with the names of seven advocates on it. I am a mother with a special needs child, no income, and on the verge of divorce. I have no money to hire a lawyer and fight for my ACCURATE content in courts. I have no way to know how a judge would view this, or any authority laying standards on what is allowed and what is not.

My missing post will not be recorded anywhere as a use of the law. There is nowhere to record. The procedure is intended completely among citizens. It needs no claims or even intent for justice. Vague terminology like "offensive" or "harmful" or "defamatory" is enough. Your guess is as good as mine what anyone will find offensive or harmful, and how much speech will be wiped off from the public domain silently. It isn't defamation, if I can prove it right, but unless proven right, what is it? This naturally suits a political class intent on censorship without dirtying their hands. However, this is not in the interests of fundamental rights of the people. A person should not require to afford lawyers in order to protect their words. It is the opposite of free speech.

To the cohesive growth of any society, dialogue is important. Offense, negotiation, accommodation, compromise are all important. Without these, there are no bonds formed. There may be a superficial silence, but it is one of lack of any communication rather than harmony. When there is conflict, it is likely to become a question of one upsmanship rather than a solution seeking process. This requires greater and greater applications of power. In essence, democracy becomes slave to power. To a diverse country like India, this arbitrary handover of control over the citizen's voice is a recipe for disaster. In the short term, it may allow power holders to score cheap points through politics of "saving honor". In the long run, the country will be dishonored.

As the foundations of democracy itself are being bulldozed by one pillar intended to uphold it, it falls upon the other pillars to stand firm for the survival of all. It is my humble request to you to join us in our fight in restoring the right to have a voice to the common man. To do everything in your power to see that the IT Rules are overturned, and while that happens, to at least add an expectation that before finding something problematic, a minimal effort was made to avoid it at the very least.

Thanking you for your attention,

Vidyut

4

"While governments can impose curfew to bring 'offline' life to a halt in times of emergency, why is it unacceptable to do so 'online'?" asked @pragmatic_d

This obviously refers to the government's increasing inclination to police internet use in India in the name of security. The question was the trigger for months and months of thoughts to fall into place.

I wouldn't complain of enforced outage or restrictions of all internet use in an emergency - for example, like the 26/11 attack - though it would only add panic. Say by throttling upload speed very low, so that information can be accessed, but not passed in order to attempt to cut off communication that could aid terrorists. But this is about an emergency. The circumstances must be of a nature that necessitates it. And the call would be a security call - from the cops or Army rather than the government and certainly not in the form of a proposed law for use any time at the discretion of the government.

At the foundation of this dilemma lies the question of credibility and authority. The online life is structured differently from the offline life. They both have their advantages over the other and disadvantages, but mainly, it is about them being distinct from each other in terms of social structure.

I see several aspects to this:

Freedom of Speech and Equality

The online world doesn't recognize boundaries of states. Connections form across the globe in its natural state of being. The expectation is that people meet as equals. Differences in freedom of speech will be experienced and perceived as inequality and injustice. It will be a blot on the human rights record of that country.

Of course, as long as machines exist physically and networks rely on communication services, they can be throttled - like China, for example. But that is more like taking a chunk out rather than influencing the nature of the web.

Right and Responsibility

The general idea of accepting the restrictions or rules imposed by an authority is a psychological exchange for the protection and maintenance of environment by that authority. This is not true on the internet. The government is incapable of ensuring protection - be it social (trolls, slander, etc), information security (viruses, hacking, attacks, etc) or financial (scams, fraudulent billing/transactions, etc). It is unclear what advantage conformity will bring to the netizen for the restrictions it places.

Colonial thinking versus democracy

For a netizen to give up freedoms for a vaguely described possibility in the real world doesn't cut it. It is colonial thinking to expect one world to give up for the convenience/whim of another. For it to be democratic, it would need to have a buy in by the netizens. Such a buy in has never even been attempted or considered. And yes, the "worlds" are different enough that rules can't simply be imposed and accepted across them.

Authority

An authority is generally considered as one with enough knowledge and/or power to be capable and credible as a decision maker and enforcer for all it controls. Or the control breaks. The Indian government hasn't shown any kind of competence in the virtual world. Neither is it influential in terms of leading thought (and thus power), nor is it competent enough to hold its own in terms of security. Government websites are routinely hacked and not just hacked, but hacked using the same flaw again - which simply never got fixed... what command can be claimed, that people can follow?

For example, Google, Twitter, Facebook, WordPress, W3C, Microsoft, Apple, Wikipedia, and such popular sites are a more realistic "authority", because the value they provide gives them tremendous following and thus they actually have teeth to ban or bar something and actually expect it to hurt.

Disproportionate effort for result

This, of course is more social boycott than censorship, but censorship itself is near impossible to enact on the net. There are ways over, under, around, through... data is fluid. And a person silenced tends to speak out and use different strategies. It would take disproportionately large force to even create an adequately dampened effect and would be too easy to find a new way around it - in other words, a battle guaranteed to be lost on any magnitude worth making a law for.

The US failure to make Wikileaks disappear on the net should be a learning point for this.

Relevant Authority

The government doesn't investigate, monitor or collect intelligence. We have agencies for that. Agencies that get their sites hacked routinely and mostly don't have enough computers to begin with. Why does the government need access to my information? I don't see any reason why the government should be initiating this at all, without people who might actually need this access first making such requirements known. This makes me suspicious that this is more of an access to power to control rather than a legitimate intelligence need.

Vague, all encompassing access

Passwords are encrypted, access to bank accounts, email, and many other things is encrypted for security. It is beyond irresponsible to say we want access to unencrypted everything. Either irresponsible, or ignorant of the nature of their own demand.

Trust

There is no trust for the government's intent or ability. The government has consistently and unhesitatingly used all power it has access to at will and with disregard for the citizen's wishes, and often in harm for the citizens. It makes absolutely no sense to agree to give it power over personal information. That would be masochistic.

It would be too simple for the government to victimize people by using their personal information. Ugly thoughts coming to mind include electoral rolls in the hands of the killers of Sikhs in 1984 on an extreme level, or accessing private information to harass RTI activists asking inconvenient questions... for example.

There is also lack of trust in the government's ability to safeguard the access to data that it has. If the government's security systems are so easily breached, what is to say that they won't be used as information backdoors - or even sold, seeing our propensity for scams? Would the government, in its current state of cluelessness even know how to troubleshoot security?

Moral Policing and Political Suppression

There are already signs of the internet being censored to suit taste and interfere with freedom of information. For example Savita Bhabhi is blocked, while most porn sites are accessible, or reports from Google of requests for censorship of dissent or criticism of politicians from the ruling party. This is different from - say - all terrorist websites or child pornography being blocked - which is something few will have a problem with. Even with what they can do at the moment, there are signs of irresponsible and self-serving use of censorship.

To extend it to being able to persecute all bloggers at will - for example - for having content or even comments that are perceived as being against National interest would be a disservice to the Constitution of our country and Freedom of Media. It is also ironic that in a country where media is free, but perceived as sold to power lobbies, a law like this will threaten the smaller independent media - which indeed is what blogs and social networking sites are - and will serve to complete the destruction of free speech and freedom of media at the hands of vested interests (government included).

For example, this blog could be declared anti-national for its constant and multi-faceted criticism of existing systems in the country. It is not, but then, the proposed law is vague enough for subjective interpretation to be used. It would become possible to coerce me into ignoring certain subjects or tempering certain opinions at the cost of losing the entire readership from the country I am writing for. In other words, it would be possible to silence me if someone in the government didn't like what I said. There may be ways for such a law to edge around it in the constitution, but it is obvious to anyone that it will violate the spirit of the constitution in any democracy.

But really, it boils down to Freedom of Speech and the inherent wrong for the state to have unquestioning access to the personal life of anyone, or the capacity to control or silence anyone.

I think the government should abandon this idea completely, and first make the internet a widespread and excellent quality phenomenon in the country. Make it so that Indians don't find Californian servers better and cheaper than Indian ones. Shift to IPv6. Create a learning environment for cutting edge security and intellectual capital on the internet. Have an official interactive presence with its citizens, and then try and influence reforms, engage with and resolve dissent or simply provide a countering view and leave it to citizens to educate themselves - like in offline life.

It is a continuing failure of our government to engage with people and to substitute laws for social intervention and engagement with dissent to find solutions. This power will not help. It will harm and make the problem less visible, but far more dangerous.