Freedom of expression and speech: an absolute right? (Part II)

To read Part I please click on the link:   https://pakpotpourri2.wordpress.com/2014/12/15/freedom-of-expression-and-speech-an-absolute-right-part-1/

This is a cross post from Pulse Weekly

By: Yasmeen Aftab Ali ArticleYAA

Obscenity generally may be described as disgusting and in violation of standards acceptable in a given society of decency or morality. Obscenity differs from culture to culture, even in the same culture; it is different from one geographical area to the other. Or, different during different times in the same country, province, area. This is especially true of developing nations like Pakistan, where norms, life styles, dressing, etc are completely different in rural areas as compared to urban areas. One may not be obscene in garb of freedom of expression. In any liberal society we must determine the boundaries to a right. If all limitations from freedom of speech are removed, as clamored for by certain sections of societies, does this mean, we endorse pornography? Does this then endorse, a lifestyle, dressing et al in complete contempt of the value structure on which our society is built? Does this mean obscenity in behavior becomes acceptable? On the other hand; who defines obscenity/vulgarity? It has certainly not been done so in our laws dealing with freedom of expression and speech. What may be obscene to one person may not be obscene to another person coming from a different spectrum of the same society. What then, is the benchmark to determine whether or not a programme is obscene?

A list of 1500 words were sent to the three largest mobile carriers by The Pakistan Telecommunication Authority (PTA). “The list includes many crude and sexual terms that the government is attempting to root out as part of a 1996 ban on transmitting information through telephone systems that is “indecent or obscene.” (Times News Feed titled “Purity in Pakistan: Government Bans Text Messages with Obscenity” by Nick Carbone published 19th November 2011)  PTA banned pornographic websites in Pakistan in January 2012. According to SITE News Pakistan,“PTA has provided a list to the ISP’s in Pakistan to block the frequently accessed adult sites. It is believed that more web pages will be added to the initial banned list of 1,000 websites and as many as 170,000 websites may be banned in the near future.”(Published on News Pakistan by 23rd January 2012)

In Butler v. State of Michigan court made it a misdemeanor to sell or make available to the general reading public any book containing obscene language “tending to the corruption of the morals of youth” violated the Due Process Clause of the Fourteenth Amendment.”352. U.S 380(1957).Thereby creating a clear benchmark, “tending to the corruption of the morals of youth.”

Fundamental to protect human rights is the underlying principle of awarding dignity and equality to all. Being sensitive to the religious feelings of others. Dr. Agnes Callamard states in his article, “States may, but are not required to introduce legislation on blasphemy. Several established democracies still have blasphemy provisions on the books, although most of these are rarely, if ever, used. In the United Kingdom, for example, there have been only two prosecutions for blasphemy since 1923. Norway saw its last case in 1936 and Denmark in 1938.” (Article published in Equal Voices, magazine for European Monitoring Centre on Racism and Xenophobia (EUMC), Issue, 18th June 2006)

The universe is full of people with diverse beliefs. Religions are many, followers of each religion believes they follow the “best” one. Irrespective of whether someone is a Muslim, a Christian, an Atheist, so on and so forth, the best course of action to maintain peace and harmony is to be respectful towards the other’s beliefs. As we would want respect to be shown to ours. Why hurt feelings and create a chain reaction that may gather speed and erupt like a volcano? And like a volcano, destroy everything that comes its way.

The list of limitations is by no means exhausted and includes copyrights and patents .Any logo, product name, patent product by a company, may not be used by another in exercise of right of freedom of expression. Copyright laws are governed by legal doctrines for example Anti-Trust Law in US (1995) and Competition Laws in the European Union. Each country has its own set of copyright laws.

Accountability is difficult in societies that generally lack respect for the law. The two intrinsic elements for a person to be guilty of perjury are that he/she must have deliberately lied to mislead and this must have been done under legal oath.

“I still think President Clinton may have some real problems because he testified under oath. There is a real question of perjury and obstruction of justice.”  This came from Don Nickles, an American businessman and politician who was a Republican United States Senator from Oklahoma from 1981 till 2005 on Clinton-Lewinsky case on the testimony by Clinton in court. Bill Clinton was impeached and the House approved Articles that alleged perjury and obstruction of justice for lying under oath and obstructing justice for cover up with an intern in the Oval Office.

How can we, while discussing limitations on freedom of expression, overlook profanity?

The vulgar, irreverent word or action that we hear so commonly in the course of conversation, even by the educated, what to speak of the rickshaw drivers, that one is likely to forget that this too, is a bar on as we exercise freedom of expression. And profanity is not just restricted to one-to-one exchanges but is gaining greater acceptance in form of crude comedy and sitcoms. Do we allow society and media as a powerful instrument of opinion formation, to exercise this right with no limitations and governed only by good sense? If in spite of the limitations, we see so many violations, how can we allow an unrestricted profane choice to the people? It will be akin to giving a loaded gun to a two year old and expect him not to shoot himself in the foot- or shoot off his mouth, in this case!

In the well- known case Cohen v. California, the United States Supreme Court overturned a “disturbing peace conviction” of a man wearing a jacket decorated with profanity.  On 26th April 1968, Paul Robert Cohen was arrested for wearing a jacket with profanity written on it. He was convicted of violating California Penal Codesentencing him to 30 days in jail. The conviction was upheld by California Court of Appeal, and the California Supreme Court denied review of the case.

Invasion of privacy by media, governments, or institutions, are a part of privacy laws of many countries. A good example of privacy is reflected in the Fourth Amendment of the American Constitution, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Contempt of Court relating to media usually takes the form of discussing issues that are sub judiceto the court.The term “sub-judice” is Latin. It simply means “under judicial consideration.” Thereby meaning to state any matter that is under judicial consideration must not be commented and debated upon, unless and until the Court delivers a verdict. This makes sense.If a matter is pending before court, and the same is being discussed in its entire speculative splendor in media, it will be fair to assume that it will create public perceptions. There are vested interests. Media persons, just like any other have their own biases and prejudices. Besides, media persons, not being lawyers may not grasp the elements within a case. The projection of news, may lead to running of a media trial and deliver a media judgment before a judgment from the court. Even if truth is spoken in the media, is it fair to prejudge a case before being presented in Court and before it may be judged by a court of competent jurisdiction? What if facts by the media are not what they are? There can be a genuine misunderstanding of legal points- after all; everyone is not a lawyer, notwithstanding the desire to act as one- is this not seriously compromising an issue by virtue of running a media trial?

Is it not likely for a media trial to endanger and jeopardize the fair trial of a man? Can it not put in danger the life of a key witness? Or his/her family? Can it not sway a judge by a public trial? The newspaper and TV is read and viewed by people from across the board. Or other officials involved in the investigation? Or pronounce a sentence on half-truths where there should be none, on an innocent person?

The question of practical relevance that arises here is: in any case that arises and is incourt, some may have great public interest. Now, this interest is heightened during the pendency of the case. The case may take a year or more to reach the decision by a court. Do the media, then, stay mum till the conclusion of the proceedings?To address the above question, the principle of “clear and present danger” was developed; whether the publication presented an immediate likelihood that justice would be thwarted, -whether there was a “clear and present danger that the publication would obstruct justice.”The famous rule, expressed first in 1919 by Justice Homes in Schenck v United States.Justice Wendell Holmes in the famous case Schenck v. United States(1919) clearly expressed his opinion that a restriction is legitimate only if it poses a real and clear present danger that relates to public interests or threat to safety. When America entered the World War I in 1917, Congress passed the Espionage Act. This law clearly enunciated that any individual working to cause disloyalty or disobedience among the soldiers will be deemed as a war crime. Charles Schenck was against the war. He mailed thousands of pamphlets to men who had been drafted into the armed forces. The government accused Schenck of violating the Espionage Act. The contention of the government was that the pamphlets were aimed to weaken the loyalty of the soldiers and create a clear obstruction in the recruitment procedure. Argument put forth by Schenck was that the Espionage Act was in violation of the First Amendment that clearly states, “Congress shall make no law…abridging the freedom of speech.” The case was eventually decided by the Supreme Court in 1919. Justice Oliver Wendell Holmes wrote the decision for a Supreme Court that was unanimous in its decision. “When a nation is at war,” he said, “many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” (Edmonton Journal V Alberta (1969)2 SCR 1326)

In a known case of SaadatKhialy, an article was carried by some newspapers. The article made some comments on some pending cases in the court. The Supreme Court ruled it was contempt of the court. The ruling stated: “If the Article, read reasonably and as a whole, was calculated or had the tendency to prejudice mankind against one or the other of the parties involved in the proceedings, it is enough to amount to an interference with the course of justice, for the question in the case is, not as to whether the publication has, in fact, interfered with it or not, or as to what was the intention of the author  and/or publisher, but whether it has the tendency to produce such prejudicial effect. The principle on which this type of contempt is punished is to keep the stream of justice unsullied so that the parties against whom litigations are pending in courts of law should get a fair trial from the Courts and not be subjected in advance to a trial by newspapers.”(SaadatKhialyVs The State PLD 1962 SC 457)

Conclusion

Freedom of expression and speech places a huge responsibility upon the person practicing it-in this case the media. With vested interests involved, an open cheque can lead to serving vested interests at the cost of national interests. Freedom of publication is a huge responsibility. To whom are we entrusting the responsibility to? In a race to sell more than the competitor, media panders to sensationalism, indulging in speculations that can ultimately harm the national interests. In a powerful article by Yawar Abbas, in Daily Times, says, “During the last decade, Pakistan’s media has contributed positively to the cause of democracy in the country and also played an active role in the restoration of the judges through round the clock coverage of the famous Lawyers’ Movement. Nonetheless, serious doubts and conflicting views regarding the media’s role in the country have also accompanied these wide-scale developments. Some of these views rise from concerns that the media is strictly averse to the idea of even the most modest regulation by the government and that it refuses to abide by a unanimously agreed code of conduct or ethics. The media groups in the country have grown into big mafias; they own print as well as electronic media — a situation that is almost unprecedented anywhere in the world. Critics also maintain that the Pakistani media is creating an environment of despair and hopelessness by presenting a very bleak picture of the country. This constant fearmongering and pessimistic outlook on such a broad scale can have its own psychological ramifications for Pakistani society in the future.” (Daily Times, published 24th March 2011 titled, ’Is Media fanning extremism’?Yawar Abbas)

The good, the cultural, the beautiful has all been relegated to the back burner. All that is projected is the bad, the ugly, and the destructive. Talk shows talking of doomsday scenario seem to have replaced entertainment and any good things related to Pakistan. This has on one hand created despondency in the local population; on the other hand, it has effectively created a consistently negative view of Pakistan for the rest of the world. The culture of Pakistan has been overtaken by the Indian culture in entertainment in the electronic media. The local news is full of news of the Bollywood actresses and actors- taking them over as Pakistani film industry.

This tendency must be curbed.

The world has become a global village. Any incident happening in one part of the world is reported in another part of the world within seconds owing to electronic media, social media and forums like Twitter and Face Book. A very, very responsible approach is needed by the players involved to avoid trampling on this right of others while exercising their own.Freedom of expression is a desired trait for any nation. We must all aspire to achieve this. However, with every freedom comes responsibility. Limitations that are reasonable and in the larger benefit of the society must be respected and followed. Not because they are forced, but because of the understanding that this leads to harmony. Like in any other country in the world, Pakistan too places certain restrictions on freedom of expression for the greater good of the country. This must be understood and respected. The mark of a mature nation is not to belittle and humiliate the Constitution, but to respect and follow it.

END

About the writer

YasmeenAftab Ali is a Lawyer and also holds a Master’s degree in Mass Communication. She has authored, “A Comparative Analysis of Media & Media Laws in Pakistan,” in 2011. She is a weekly Op-Ed Writer for ‘The Pakistan Today’ daily national newspaper published from Lahore and has been teaching in a private university for 9 years. She is known as the leading Media Laws specialist in Pakistan.

 

 

 

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Comments

  • Hussein Tahir  On December 26, 2014 at 5:37 pm

    The concept of freedom of expression in Islam covers in essence all what has been said here. A reference to it for Pakistani readers could have made the argument more convincing. Still, it should be an eye opener for many. I am not aware how much have we achieved insofar as the scope of recommendations proffered here is concerned. In my opinion, the issue in Pakistan is not so much of the laws as that of the implementation mechanism and / or the wil thereof. We cannot be selective in application of Rule of Law. It has to be across the board and necessity of it could not have been more pronounced than is it today.

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