Opinion Pratap Bhanu Mehta writes: What a free speech regime requires

Many would argue that this is an idealisation. Certain forms of speech and expression are indeed harmful. Some are intended to assault or injure. Many of these harms are captured in legal prohibitions against incitement or forms of hate speech. The sovereign autonomous self that can take the world on its own terms is a fiction. Where society is structured by deep inequalities of power, historical practices of discrimination and exclusion, we cannot react to speech on our own terms. Prohibiting certain classes of hate speech is a demand of democratic inclusion. It is a way for society to signal that all groups belong in society and cannot be targeted for being who they are. We may, on this view, prohibit speech as a mark of democratic inclusion.

There is much in this critique of free speech. We are all children of a hermeneutics of suspicion. But the demand for restrictions has it backwards. If the wrong in society is deep background inequalities between groups, does a legal restriction on speech actually rectify it? Or, is it a diversion, the symptom we can deal with? In a world with billions of people, it is fatuous to think that there will not be some people who express things that are indeed hateful and should be called out. But how much of a threat they actually are, how much incitement they can produce, or even how much they are expressive of the norms of that society, depends on background conditions of trust. If we as a society are in a position to be confident that these are indeed fringe elements, even their hateful speech becomes less consequential. If a minority is being targeted by the utterance of some individuals, there is still a world of difference between a society where the minorities know this is not the norm and a society where they do not have that trust. Communal harmony, in this view, is not created by more censoring of speech, or protecting community taboos. It depends on the background of social relations, the assurances that institutions can give that they will protect the individual freedoms of everyone. Even our categories of interpretation of harmful speech depend on background judgements of trust.

The question is whether censorship actually addresses the background conditions of distrust. The defence of setting a very high bar on state intervention always used to be a dialectical one. It was thought advisable for a liberal state to put up with a lot of terrible, even hateful, speech because of three presumptions. The first, that you ought to rely on social judgement rather than censorship to hold such speech accountable. Society has ways of expressing the distinction between the right to speak and the value of what is being said. And the fact that we all understand these distinctions is a deeper form of reassurance than censorship. It is easier to say that we need to protect the thought we hate when hate does not overwhelm us. We can let a few weeds grow if we are confident that the “weeds shall not destroy the wheat”, to use the phrase from the Gospel of St Matthew that Augustine used for his theory of persecution.

Second, censorship always incites a political economy of mobilisation, competitive victimhood, tested on the site of speech. Free speech has been the site of mobilising community power. Community identities ultimately rest on benchmarks and taboos. One reason free speech regimes are in peril is that in multicultural societies, every community brings its taboo — so the occasional exception becomes the norm. If blasphemy laws protect one religion, they now have to protect every religion or nation. And communities test their identities by mobilising on what they can prohibit. The fact that even awful speech had protection was a reassurance that if the right of even those kinds of speakers could be protected, then I am safe that my rights will also be protected. So, the assumption was that the way to address distrust was not to involve the state — while state involvement might give short-term victories, in the long run, it creates more distrust, making speech a subject of political mobilisation.

The conditions of communication where doubt and hate can travel faster than truth and reconciliation, the collapse of the contexts of communication, have added to a crisis of free speech. But the crisis of speech is a crisis of social mistrust; it will not be solved by legal means. Every act of legal censorship will also be an act of non-confidence in you and me, the citizen who cannot be trusted. The tragedy is that we find the work of the social creation of trust far more difficult that sealing the conditions of our own infantilism.

The writer is contributing editor, The Indian Express