Keep the ‘Free’ in ‘Free Speech’

A version of this piece was published today as the 16th installment of my weekly column for Mint, Thinking it Through.

I should be grateful that you are reading this column. I have often written about how free speech is threatened in India, but we are nowhere near as bad as some other countries, such as China or Iran or North Korea. There you’d probably read me one week, and then I’d vanish. Here the press is somewhat freer.

Nevertheless, I think you’d agree that things could be better. In India, films are routinely censored, books are often banned, and artists have been roughed up and put behind bars. Often, the constitution allows this and our laws support it, and there seems to be a common consensus that there should be limits to free speech.

A famous case for such limits was made by Justice Oliver Wendall Holmes Jr in 1919 in a US Supreme Court case, Schenck v. United States. The defendant, Charles Schenck, had been indicted for distributing leaflets to people likely to be drafted for military service. The leaflets asked the men to “assert opposition to the draft” on the grounds that it went counter to the provisions against “involuntary servitude” in America’s 13th Amendment.

The Supreme Court unanimously ruled against Schenck, and the judgement written by Holmes said, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Since then, this hypothetical example, of a man falsely shouting “Fire” in a crowded theater, has been brought up by people who argue for the imposition of limits on free speech. Naturally, having cited this example, they often tend to propose their own limits.

Well, my view is this: I don’t think that there is any need for limits to be imposed on the right to free speech that are not already implicit in the way they are defined. Shouting “fire” falsely in a crowded theater would be wrong even without any restrictions placed on free speech simply because the right to free speech is fundamentally a property right, and does not extend to other people’s property. Let me explain.

All rights, I believe, emerge out of the one that we are born with: The right to self-ownership. At the most basic level, this is a property right. We own ourselves, and have the right to do whatever we wish with our body and mind. To make anything of this right, we must also respect others’ right to self-ownership.

From this arise other human rights. The rights to life, to thought, to action are all implied in the right of self-ownership – and so is the right to free speech. All these rights are constrained only by the corresponding rights of others. As Murray Rothbard, the libertarian economist, once wrote, “Not only are there no human rights which are not also property rights, but the former rights lose their absoluteness and clarity and become fuzzy and vulnerable when property rights are not used as the standard.”

Let’s go back to the crowded theater, and shouting “fire” falsely. If the owner does it, he is clearly cheating his customers. If a customer does it, he is infringing on the rights of the owner, and endangering the safety of other customers. And if anyone is hurt by this, the fire-shouter can be prosecuted for the harm caused, and that harm will be defined by rights that originate from the right to self-ownership. Thus, if property rights are strictly enforced, there is no need to add any restrictions on free speech apart from the ones that those imply.

If we all looked at free speech through this prism, whereby it is part of a body of rights that originates from the right to self-ownership, and contains no others, I suspect that many modern controversies would not exist. Cartoonists and painters would be allowed to depict whatever they wanted as long as they infringed on nobody’s rights. Books and films would not be censored or banned. While everyone would have the right to protest all such free expression, they would have no business doing so violently. And offending people’s sentiments would not be a crime, for sentiments hardly count as tangible ‘property’.

I often rail against the Indian Penal Code because it contains laws that place restrictions on free speech that have nothing to do with property rights, such as “outraging … religious feelings”. I also bemoan the fact that after paying lip service to freedom of speech in Section 19 (1) (a), the writers of our constitution added limits to it in 19 (2) such as “decency or morality”, which are unjustifiable, and are interpreted arbitrarily. 

And what of America, you ask, where Charles Schenck spent six months in jail after Justice Holmes’s bizarre decision, which did not uphold Schenck’s right to free speech? Well, the Supreme Court overturned that ruling in 1969, thus strengthening their protection of free speech. And no one, even there, can shout “fire” falsely in a crowded theater and get away with it.

This piece is an elaboration of the thoughts I expressed in my post, “Shouting ‘fire’ in a crowded theater”, and in the comments here. My thanks to Sumeet, Yazad, Gaurav and Shruti for their inputs.)