Friday, December 15, 2006

Confronting Holocaust denial - Opinion - International Herald Tribune

Go read the article, I promise you it's short and it's personal. It's by Ayaan Hirsi Ali which should tell you something about it. Here's IHT's description: "A Somali immigrant, she was a member of the Dutch Parliament and on a hit list of Muslim radicals for writing the screenplay for the film "Submission.""

I simply want to use the news around this conference to segue into what Free Speech and Free Expression actually means, because all too often I find that critics of Free Speech have some basic misconceptions of what it entails or worse, what Liberty actually stands for. In other areas, people have used the notion of free speech in an effort to detract attention or criticism of what they have said. And in the last area, we have those who are ignorant about the history of Free Speech (as I was till last year) and what they history means in light of how extensive this notion of Freedom of Speech is today.

Firstly, let's kick off with a definition of speech. Often today, the freedom of speech is used interchangeably with the freedom of expression and for good reason. In most countries, speech is not merely verbal or written but also includes expressive conduct or symbolic conduct. This includes draft card burning, flag burning, waving a foreign flag, appending the peace sign or using the crooked swastika to make a point. This is a more expansive notion of speech and personally I think speech ought to be expansive as it is merely a means to convey a particularized message which the general objective observer or public will reasonably understand what to take from it.

Next, what does the freedom to do something mean? Simply, it means you can do, not that you have to do it or you should do it. And often there is a conflation of all three in various criticisms and arguments for or against free speech which needs to be sorted out. The important thing about a recognized right is that it gives you a cause of action when your right is being abridged, in short, if your right is being violated, you can sue to restore it.

One of the oddities of the Singapore system (and one I think very few people know) is that we have very broad concept of standing, in contrast to, say the United States. Standing is legal doctrine which determines if you have the legal capacity to bring up the suit such that the court will hear it. In the US, standing requires you to have your right abridged before you can sue on it (subject to the doctrine of vagueness and overbreadth). In Singapore, however, any citizen can sue on the basis of a violation of Article 14 (Freedom of Speech and Assembly), even if the citizen whose right is being violated is a third party.

Anyway, one of the things I blame post-modernist for (fine it's not really their fault, its those who don't understand what it is and start misapplying their theories) is this idea of how "everyone is entitled to their opinion". No, they are not. It's stupid to think that some is entitled to an erroneous opinion. An opinion is entitled only by reference to a factual basis or logical reasoning.

Instead, all a person is really entitled to is to express his opinion without getting sanctioned by the government. In turn, it's not a defense when we pile on your opinion and explain why you are utterly, miserably and totally wrong! So you want to be a homophobe? Fine you have the right to express that opinion and possibly even to think that way (Freedom of Conscience cuts both ways), but I'll shred your arguments and probably point out why you're an idiot if in the face of evidence and reason, you don't change your mind.

Why this entire freedom is remarkable is that it did not exist until the Americans came along, and even then, their concept of Free Speech is markedly different from what they and we have now. Firstly, there was no concept of free speech, all you had in England was residual speech i.e. you can speak on anything that was not sanctioned by the government. This is arguably what we have in Singapore. We don't really have the notion of Constitutional Free Speech but really that of residual speech because parliament can always pass a law restricting speech and you would be tremendously hard pressed to get the court to strike it down because of the manner in which our Constitution is drafted and how our Court has interpreted Article 14 to give tremendous deference to the government in determining what is "necessary or expedient" such that it passes Constitutional muster.

And even where there was a push towards Free Speech, it was very limited and rather alien to how we understand it today. Blackstone in his very highly influence treaties Commentary on the Laws of England viewed the only evil to be restrained was that of prior restraint i.e. licensing regime on the printing presses. All speech could be punished ex post but not prior to it. I'm no student of American Constitutional History but this was arguably the grounds on which the Framers understood Free Speech to mean and which explains how the Sedition Act (yes they too had a Sedition Act) came to be.

And it's absolutely fascinating to see how the doctrine develops from the 18th Century onwards (and arguably didn't change all that much until the 19th century and eventually in the 1950s) till the doctrine that they have today, expansive, extensive and really rather awesome.

I value speech intrinsically because I value the individual. And it is only through expression that one may remain true to their conscience. To stifle speech is to stifle the person which makes it even the more insidious.

Speech is not simply a means to the end but an end in and of itself.


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