Free speech and its limits

Brian YS Wong July 26, 2021 09:36

The argument that speech must be free, must be unfettered, and must be protected at all costs – is by no means innovative. Yet at times when free speech is experiencing an active decline – under a combination of excessively stringent implicit expectations and norms governing speech, and chilling effects induced by a blend of official and unofficial sources of power, it is imperative that we recognise free speech for what it is: an important, prudential good that ought to be upheld, in theory. The virtues of free speech are aplenty – from invigorating critical and instrumentally productive debates, to ensuring that individuals feel at ease and comfortable with their self-expression, to offering agents a pressure valve through which they can voice their angst and critiques of those in positions of power.

A less discussed facet of the question, however, constitutes this: to what extent should free speech be limited? When, if ever, is it appropriate for us to impose limitations upon individuals’ capacities to make and produce speech – especially in the public sphere and arena? Must we take free speech as a normative given, or are there prior conditions that must be satisfied in order to enable its genuine promulgation? Is free speech overrated – and could un-free speech be of greater value than free speech? These are questions that merit serious answers, as opposed to flippant and ideologically dogged responses reminiscent of the bickering of a desperate kangaroo court.

Firstly, speech ought to be limited when it induces (serious) physical harm – when it incites violence, or, through the fabrication and concocting of disingenuous imagery, instills motives for individuals to perpetrate gross injustices towards others. It should be beyond trivial for us to accept that where words promote and instigate violence, such “fighting words” ought to be prohibited. Vigilante violence, abusive destruction of property, and other forms of legal transgressions could never be tolerated in a civilised society. Indeed, to the extent that courts are fair and judicious, they must do their fair share in upholding norms of non-violence, civility, and conscientious abiding-by-the-law. None of this should be swayed or influenced by the political orientations or standings of the offenders. Irrespective of how “noble” or “infused with moral convictions” one’s actions may be – to the extent that one is maiming innocent third-parties, one must and should be held to account, in a manner that is sensitive to, albeit by no means exclusively at the behest of, one’s intentions and background character. In any case, the inflicting of violence cannot be excused through the pathetic excuse of “Free Speech!” One’s freedom ends when it actively infringes upon some others’ core rights and liberties.

Secondly, I would wager that hate speech – e.g. speech that may not incite violence, yet efficaciously sows seeds of distrust, bigotry, and vengeance in those who receive it – should also have no place in a civilised society. Hate speech erodes the moral fabric of our civilisation (cf. Waldron’s argument); it renders discursive spaces hostile and unwelcoming for those from disenfranchised backgrounds, but also promotes tropes and beliefs that are deeply unconducive towards genuinely productive debate. Above all, hate speech could severely undermine the self-confidence and cognitive capacities of its targets, thereby excluding them from the truth-seeking exercise of public, open, and rational debate. To promote hate may be a rather costless exercise for those engaging in it – yet to be on the receiving end of hate, to bear the brunt of scathing, unyielding, and fundamentally unwarranted slander, is a burden that few could afford to shoulder. This applies especially to vulnerable individuals who lack the mental resilience and social wherewithal to withstand derogatory and destructive remarks.

Finally, it is to the subject of “fake news” that we must turn. Should lies be criminalised? Should false information be censored? These questions could not be answered without at least a modicum of appreciation of the contexts towards which they are directed. Could the erroneous information here be swiftly called out and filtered through organic debate? How easy or straightforward would it be for the agents involved to point out the fallacious nature of the information? Would the public be easily swayed, or find it hard to buy into the “fake news” promulgated by specific news outlets? Could there be viable alternatives to censorship that have hitherto remained under-explored? These are all contextually sensitive questions that should and do have a significant bearing on when, if ever, we ought to limit speech.

Some posit that individuals have no right, whatsoever, to spreading “lies” – yet who decides what a lie is? Who determines what the truth constitutes? Unlike emotional harm or physical injury, where deference to the lived experiences of the targets and recipients of harms is not only warranted, but a quasi-necessity, truth is a rather mercurial matter – with its construction and designation inevitably shaped by power structures who determine the credibility, validity, and prominence of core stakeholders.

In making sense of the truth, we must not lose sight of the vast abyss straddling the in-between – between truth and lies. Half-truths, semi-truths, non-truths, stylised facts – these are all manifestations of hybrids that are well worth our noting. In criminalising lies, should we also criminalise the promulgation of half-truths? Where, then, shall we draw the line? The best and sole means of answering these questions constitutes a rigorous, thorough, and open-minded discussion – as opposed to unilateral imposition of half-baked laws by unrepresentative governments. Only then, could the truth emerge.

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Brian YS Wong

Assistant Professor, HKU