A deterrent sentence was imposed to underscore the gravity of the act, “the especial sensitivity of racial and religious issues in our multi-cultural society, given our history of the M[r]
Trang 1HATE AND LIES
Professor Thio Li-ann
Faculty of Law, National University of Singapore
INTRODUCTION
The constitutional order embodies an arena where interests compete; in interpreting constitutional liberties, relevant interests are identified, weighed and accorded value; these may be optimalised, in ensuring no interest is overridden, such as through subjecting rights to reasonable or proportionate restrictions, as opposed to statist criteria such as expediency which may render a right nugatory Although this process encounters difficulties in identifying relevant interests and in constructing the metric for assigning weight to them1, this method of balancing rights and competing interests is viewed as a rational form of decision-making
To speak of rights as trumps entails according ultimate or determinative weight to rights, such that government interests cannot operate to restrict that right This represent a categorical rather than a balancing approach, as paramountcy is accorded to rights to protect the value of normative individualism There may be counter-trumps in the form of statist imperatives, which reduce rights to defeasible interests rather than peremptory norms Invoking ‘rights as trumps’ or ‘statist imperatives as counter trumps’ both fail to appreciate that ordered liberty is arrived at through balancing rights against competing rights, duties, and public goods2, implicating “ societal values, pluralism, prevailing social and economic considerations as well as the common good of the community”3 While insufficient protection to free speech may sustain autocratic governance, free speech rightism may bring about the negative prospect of “a society premised on individualism and self-interest”4 Rights theory addresses the issue of how to delineate the boundaries of legitimate state intervention
1 T Alexander Aleinikoff, ‘Constitutional Law in the Age of Balancing’ (1987) 96 Yale LJ 943.
2 Li-ann Thio, ‘Protecting Rights’ in The Evolution of a Revolution: 40 Years of the Singapore Constitution
(Routledge-Cavendish 2009), Li-ann Thio & Kevin YL Tan eds., 193-233 The Court of Appeal has distinguished between
fundamental, paramount, co-equal and subsidiary rights, all attracting different weightage: Review Publishing Co Ltd
v Lee Hsien Loong [2010] 1 SLR 52 at [286]-[289]
3 [2006] 1 SLR (R) 582 at [52]
4 Ibid.
Trang 2Free speech theory grapples with a great deal of complexity unsuited to thinking in terms of
‘trumps,’ which are too blunt a tool to navigate the brave new landscape shaped by the advent of the
internet age1 and the viral spread of information or misinformation; its vales have been cut by desires
to subvert communication in favour of agenda advancement, engendering an often toxic political
tribalism characterised more by ad hominem ‘arguments by insult’ designed to silence opponents
rather than reasoned debate2 In an era of ‘woke’ culture, consider the tactic of ‘no platforming’ which
silences debate on American college campuses3, shouting down opponents such that arguments are
‘won’ by volume, not reason Even some academics who self-identify as liberal, who are traditionally
at the frontline of defending academic freedom, now seek to enforce their orthodoxy by hurling the
new weapons of “offense” and “hurt” to silence speech For example, an Oxford theological professor
met virulent objectors to his attempt to organise a conference on the benefits of colonialism; these
self-appointed czars of the gateway to academic inquiry insisted this project “should have no place in
academic scholarship”4
Clearly, private persons can ‘horizontally’ chill the speech of other private persons, particularly
online speech5, which they consider intolerable or offensive and which they seek to remove or suppress through abusive invective, bullying and threats The negative liberty of free speech can thus
be deployed to violate another’s free speech rights.6 Indeed, corporate entities such as Facebook, Google, and Twitter control platforms for expression and have the power to censor and promote their
preferred views7; this thwarts the free ‘marketplace of ideas.’ The media, an anchor of open society,
has been decried as a ‘feral beast’8, forsaking truth and balance in the interest of “impact journalism”;
the ideological bias of even papers of record like the New York Times is apparent, in a world where
narrative trumps truth or facts, where news is conflated with views, where the media operates as a
1 Victoria Nash, ‘Analyzing Freedom of Expression Online: Theoretical, Empirical and Normative Contributions’ in
Oxford Handbook of Internet Studies, William H Dutton ed., (OUP, 2013)
2 Barry Richards, ‘The Emotional Public Sphere and its Importance: Freedom of Speech as a Case Study’ (2018) 12
International Journal of Communication 2040-2051
3 Ayaan Hirsi Ali, ‘The “No Platform” Brigade, 31 Jan 2018, Hoover Institution, https://www.hoover.org/research/
no-platform-brigade; ‘ Eric Heinze, ‘UC Berkeley, Donald Trump and the muddled ethics of no-platforming’, The
Conversation, 14 Feb 2017 at
http://theconversation.com/uc-berkeley-donald-trump-and-the-muddled-ethics-of-no-platforming-72609 Cass Sunstein notes that “most unfortunately, some people on the left, especially on college
campuses, seem willing to give up on freedom of speech when they are offended by what people have to say.” ‘The
left and the right: consistent on free speech’, 5 July 2019
4 John Lloyd, Commentary: what to do when liberals are the censors?’ Reuters, 18 Jan 2018 at https://uk.reuters.com/
article/us-lloyd-speech-commentary/commentary-what-to-do-when-liberals-are-the-censors-idUKKBN1F825Z
5 Thio Li-ann, ‘The Virtual and the Real: Article 14, Political Speech and the Calibrated Management of Deliberative
Democracy in Singapore’ (2008) Singapore Journal of Legal Studies 25-57.
6 Michelman has argued that certain speech (like pornography) can have a “silencing” effect so as to prevent other
people from exercising their negative freedom to speak If I speak and you engage in simultaneous and/or abusive
speech, you may intimidate me into silence or otherwise prevent me from effectively communicating my views:
Franck Michelman, ‘Conceptions of Democracy in American Constitutional Argument: The case of Pornography
Regulation (1989) 56(291) Tennessee Law Review 303-304.
7 ‘Famed Atheist Deletes Patreon Account over banning of anti-leftists’, Daily Wire, 17 Dec 2018 at https://www.
dailywire.com/news/famed-atheist-deletes-patreon-account-over-banning-hank-berrien
8 Tony Blair, Lecture, ‘On Public Life’, 12 June 2007, text available at file:///L:/dam19/BlairReustersSpeech.pdf See
‘Blair attacks ‘feral’ media’, The Guardian (UK) 12 June 2007.
Trang 3political actor with its own agenda, generating social distrust Calls to censor speech to manage fears
of public disorder or to protect dignitary harms fuel demands to regulate ‘hate speech,’ demonstrating another path to the view that free speech is not a primary right1 This brings with it the problem of criteria and arbiter - who defines what constitutes ‘hate’? Does this relate to physical or psychological harm? Is hate speech about inciting violence or insult? Prohibiting merely offensive speech is not a salutary approach, given that offense can easily be claimed, indignation manufactured for political gain, as hate speech and cognate legislation can be weaponised to silence competitor views2 Hate speech might well be the new blasphemy law3
Under international human rights standards, free speech is not an absolute right, and there are cases where substantive limitations are warranted: Article 20(2) of the International Covenant on Civil and Political Right provides: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”4 A group of experts at a
UN sponsored meeting issued the Rabat Plan of Action (2012)5, correlating ‘incitement’ to statements creating an “imminent risk” of discrimination, hostility or violence against persons belonging to a group; ‘hatred’ and ‘hostility’ were terms referencing “intense and irrational emotions of opprobrium, enmity and detestation towards the target group”6
“Irrational emotions” is a vision of human nature quite distinct from that of the rational person
to whom free speech, particularly political speech, is important as it facilitates engagement in the democratic process Where emotions hold sway, does the cliché that sunlight is the best disinfectant still hold true, insofar as views openly expressed may be evaluated and countered? Do the rationales for free speech, heavily influenced by 20th century American First Amendment jurisprudence, remain appropriate and compelling in the 21st century? Given that constitutionalism is a site where
“national history, custom, religion, social values and assumptions about government meet positive law”7, do local particularities shape an understanding of the human person and human nature which may implicate the contours of free speech jurisprudence? What is the vision of the individual, the community and the state in liberal and non-liberal constitutional orders, in this respect?8 How does
1 Sydney Kentridge, ‘Freedom of Speech: Is it a Primary Right?’ (1996) 54(2) ICLQ 253-270.
2 Cherian George, Hate Spin: The Manufacture of Religious Offense and its Threat to Democracy, (MIT Press, 2016)
3 Blasphemy was described as “an act of violence to the mind and spirit and deeply spiritual feelings” of the millions
of people “capable of entertaining such feelings It is an assault upon the mind and spirit just as much as mayhem
is an assault upon the body.” Abusive attacks against God to a believer constitute “the verbal equivalents of acts of desecration.” Earl of Halsbury, Hansard (H.L.) vol 389 col 290, 23 Feb 1978, Blasphemy (Abolition of Offence) Bill
4 999 U.N.T.S 171
5 UNHCHR Annual Report, Addendum, Report of the UN High Commissioner for Human Rights on the expert workshops on the prohibition of incitement to national, racial or religious hatred A/HRC/22/17/Add.4 (11 Jan 2013)
See generally, Jeroen Temperman, Religious Hatred and International Law: The Prohibition of Incitement to Violence
or Discrimination, (Cambridge University Press, 2015)
6 This draws from the Camden Principles: Article 19, Global Campaign for Free Expression, The Camden Principles
on Freedom of Expression and Equality (April 2009): principles-on-freedom-of-expression-and-equality.pdf These principles were included in the Draft General Comment
https://www.article19.org/data/files/pdfs/standards/the-camden-No 34 Art 19 at para 53, UN Doc CCPR/C/GC/34/CRP.2 (Jan 29, 2010) and later deleted.
7 Lawrence Ward Beer ed., ‘Introduction’ in Constitutional Systems in Late Twentieth Century Asia (University of
California Press, 1992) at 2.
8 Li-ann Thio, Chapter 5 ‘Constitutionalism in Illiberal Polities’ in Oxford Handbook on Comparative Constitutionalism,
Trang 4this affect the weighting of rights and responsibilities? Should all, some or no speech be permitted,
in a time of fear, hate and lies?
There is no dearth of scholarly literature on the subject of free speech theory and regulatory
methods, investigating whether the modalities of accountability are sufficiently robust to contain
and seek redress for abuses of public power My concern in this essay is the more modest one of
identifying the vision of the human person and community, the speaker, the object of the speech, the
community at large, and how this may diverge or converge with the ‘rational man’ associated with
liberal theories of free speech and visions of society This may be a significant ‘local particularities’
which informs how we think about the objectives and limits of free speech, with the focus here being on ‘political’ speech or speech affecting the ‘public order’ of a democratic society The enquiry
is rooted in the context of the Singapore communitarian or non-liberal model of constitutionalism,
which will hopefully be of use to future comparative endeavours
As a caveat, it must be underscored that the value of expressive freedoms to a modern democratic
order, in terms of freely engaging in speech critical of political institutions and the judiciary, is appreciated There is no intent to diminish its importance in holding governments to account through
scrutiny, contrary opinion and publicly exposing malfeasance through investigative research The intent is to moderate any ethnocentric parochialism that may reside in fixating upon the particular
“liberalism of fear”1 that western liberal democracies (or at least the American variety2) have towards
government and the celebration of the ‘rational man’ committed to democratic debate The end result
may be to populate or to foreground other personalities beside the reasonable man or person which
“inhabit our legal village”3 This may have explanatory force in relation to free speech jurisprudence;
as such, this essay is written in the form of a promissory note, to start interrogating the vision of the
human person which shapes the scope of free speech, its objectives, social role and its parameters
Part I will examine the dominant free speech theories most frequently associated with the greatly
influential (both as a model and anti-model) US First Amendment jurisprudence, and examine whether
their underlying assumptions continue to be tenable Part II examines various aspects of free speech
which affects politics and the public, drawn from the Singaporean experience, where the rational man
exists alongside the emotional, sensitive and gullible man
I The Free Market, rational man and the Demos
Liberal Theories, Free Speech and their Discontents
To speak of fear, hate and lies is to confront the baser demons of our nature; where these genuine if unhappy human traits relate to free speech theory, they speak in the tongue of censorship
Andras Sajo & Michel Rosenfeld eds., (Oxford University Press, 2012) 133-152.
1 Judith Shklar, Political Thought and Political Thinkers, Stanley Hoffman ed (University of Chicago Press, 1998), p.3.
2 E.g America does not have e.g the Holocaust Denial laws that certain European states do The European Court of
Human Rights ruled in October 2019 that conviction for Holocaust denial by a German parliamentarian did not violate
the article 10 guarantee of freedom of expression in Pastörs v Germany, Application no.55225/14, 3 Oct 2019 The
Court considered the intentional statement of untruths designed to defame the Jews and the persecution they suffered
during world war two “affected the dignity of the Jews to the point that they justified a criminal-law response.”
3 Lord Hope, Helow v Advocate General [2008] 1 SLR 2416 at 2417-8 See John Gardiner, ‘The Many Faces of the
Reasonable Person’ (2015) 131 LQR 563-584.
Trang 5and constraint This demonstrates that a certain disposition is necessary to create and sustain an environment where robust speech is valued, protected and facilitated, as variously justified by the three dominant arguments in relation to the marketplace for truth, personal autonomy and democratic self-governance, most famously associated with American first amendment jurisprudence1 As Sedley
LJ noted in Redmond-Bate v DPP2.
Freedom of speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence Freedom only to speak inoffensively is not worth having What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas.
This is rooted in the view that liberty of conscience and expression cannot be subject to state orthodoxy and control, except where these have a tendency towards violence, which justifies government intervention This requires not only a tolerant ethos which fosters a sense of self-restraint
in bearing with disliked views, but a sense of solidarity in the conviction that expressive freedoms serve the common good This is because those who started eliminating dissent “soon find themselves exterminating dissenters.” Public opinion is to control authority, not the other way round, and no government official may “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion…”3
Tolerance and respect for the right of moral dissent and the good of independent enquiry appeals
to the better angels of our nature; authentic tolerance is thus married to a disposition towards
truth-seeking, to hear and evaluate the other side in good faith debate that wants to engage ideas and is capable of discernment, as “who ever knew Truth put to the worse, in a free and open encounter?”4 This fuels the disciplined attitude incorrectly attributed to Voltaire, to the effect that “I disapprove of what you say, but I will defend to the death your right to say it,” a basic tenet of classic or political liberalism5 On a social level, free speech anchors an open society where today’s orthodoxy can become tomorrow’s heresy, where both true and false opinions are protected so as not to deprive society “the opportunity of exchanging error for truth” and a “clearer and livelier impression of truth”6, which would be an evil Only one who assumed his own infallibility would have no qualms silencing the opinions of others Free speech is the lifeblood of democratic debate, a corrective to autocratic and non-transparent governance
1 See, e.g Alexander Tsesis, ‘Free Speech Constitutionalism’, (2015) University of Illinois Law Review 1015-1068; Eric Barendt, Freedom of Speech (Oxford: Clarendon Press, 1985) at 8-23.
2 [1999] EWHC Admin 733
3 Robert H Jackson J, West Virginia State Board of Education v Barnette 319 U.S 624 (1943).
4 John Milton, Areopagitica (23 Nov 1644), available online at: http://www.dartmouth.edu/~milton/reading_room/
areopagitica/text.html, <last visited, 7 Nov 2019>.
5 This phrase was penned by Evelyn Beatrice Hall, who published The Friends of Voltaire (1906).
6 Lee Sieu Kin J, Lee Hsien Loong v Roy Ngerng Yi Ling [2015] SGHC 320 at [98] citing John Stuart Mill, Chapter 2,
On Liberty.
Trang 6Liberal Government and the Rational Person
Within a liberal system of government, “three fundamental axioms” have been identified First,
the belief that all individuals are capable of exercising reason by which they are able to discover
universally applicable truths which apply to all societies and at all times Second, individuals are free
and equal; third, individual are free until they join a political society and assume obligations owed to
political institutions by choice1
The vision of the human person in this setting is predicated on the availability and sufficiency
of reason; rationalist thought in this conception intends “to imitate a mathematical system, which
begins with axioms taken to be self-evident and proceeds by supposedly infallible deductions”2
Reason is everywhere the same, equally accessible to all, and one has only, regardless of historical or
cultural background, to “consult”3 reason, to arrive at the best form of government, after the liberal
democratic model By shearing off personal traits, thought experiments such as the Rawlsian veil of
ignorance may be adopted to envisage what justice would require, based on the liberal meta-norm of
individual autonomy and the prescription of a ‘neutral’, secular state To one not attached to liberal
convictions and identity, this is not possible, given the centrality of attachment to religion, culture
family, community or nation as chief identity markers
Critics have charged that this liberal perspective, stemming from the European Enlightenment, is
basically opposed to religion and tradition, where the individual is situated within a community rather
than atomistic Liberalism discounts the wisdom of local, generationally accumulated knowledge
“that elites often dismiss as superstition or fundamentalism”; since reason is powerful, universal and
reliable” 4, there is no need to consult national, cultural or religious traditions as the source of political
obligation resides in the consent of the reasoning individual
Such a view which places too much faith in abstract reason is too nạve, utopian; like all universalist theories, whether liberalism or Marxist collectivism, it is hegemonic in its universalist
aspirations and advocacy of liberal democracy as the ‘end of history’ for all nations, at all times
1 Yoram Harzony, Conservative Democracy, First Things (Jan 2019), available at https://www.firstthings.com/
article/2019/01/conservative-democracy
2 Harzony, ibid Hobbes, Rousseau, Kant and Locke would be exemplars of rationalist thinkers
3 John Locke in discussing the basis of political authority wrote in Chapter 2 of his Two Treatises of Government (1689)
Vol 1, page 42 (Peter Laslette ed., New York: Mentor Books, New American Library, 1965): “The State of Nature has
a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who
will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or
Possessions.” There is a religious foundation to his thinking, as he continues “For Men being all the Workmanship of
one Omnipotent, and infinitely wise Maker; All the Servants of one Sovereign Master, sent into the World by his order
and about his business, they are his Property, whose Workmanship they are, made to last during his, not one anothers
Pleasure And being furnished with like Faculties, sharing all in one Community of Nature, there cannot be supposed
any such Subordination among us, that may Authorize us to destroy one another, as if we were made for one anothers
uses, as the inferior ranks of Creatures are for ours Every one as he is bound to preserve himself, and not to quit his
Station wilfully; so by the like reason when his own Preservation comes not in competition, ought he, as much as he
can, to preserve the rest of Mankind, and may not unless it be to do Justice on an Offender, take away, or impair the
life, or what tends to the Preservation of the Life, Liberty, Health, Limb or Goods of another.” In this conception,
man is not the captain of his soul and consent operates within a larger framework of the purposes of the divine Text
available at http://press-pubs.uchicago.edu/founders/print_documents/v1ch2s1.html
4 Harzony, supra, note 30.
Trang 7Where liberalism serves as the sole foundation for public life, the ultimate value is that of consent which provides thin gruel for moral obligation, the common good and shared identity This may be informed by culture, faith and tradition as mutually balancing factors which moderate the impulse
to hegemony one hand, and the descent into excessive localism which can devolve into prejudice and tribalism Insofar as liberalism1 has been embraced as “a kind of universal salvation creed”2throughout much of the West, this can assume a dogmatic, narcissistic pallor in equating liberalism as the sole form of competent reasoning It must be appreciated that liberalism is not merely procedural
in seeking to secure a broad sphere of liberty; nor is it merely neutral in valorizing individual choice and prescription of the ‘neutral’ state which underwrites the framework within which individuals choose their conceptions of the ‘good life’; philosophical liberalism, sometimes called progressivism,
is a substantive belief system “taken as axiomatic”3 in relation to the desired model of government, an alternative view of the nature of human beings, reason and the source of moral obligations that binds
us It does not merely protect individuals but seeks to produce and regulate a certain kind of subject who prioritises choice, autonomy and is cosmopolitan is disposition Liberalism is, in other words, “a particular form of political power carrying a particular image of justice.”4 What is chosen, to a liberal,
is not as important as the availability of choice, which is not a universally held conviction If what is good is what is desired, then the liberal theory of the good is hedonism, 5 which fuels arguments that the state should not intervene with the choices of consenting adults; this refuses to grapple with the difficulty that every theory of consent has a moral limit which must be debated and evaluated within democratic societies
‘Political correctness’ speech codes are a by-product of philosophical or ideological liberalism, which is illiberal insofar as it penalises or seeks to shut down those who do not conform to its dogma, whether by formal legal mechanisms or informal methods of abuse, threats and harassment unleashed
by private parties against moral dissenters, whether in the vein of virtue-signaling6, or through deploying more vicious tactics of character assassination and diatribe Comprehensive liberalism in advancing individual rights on the basis of liberty and equality claims draw on deeper philosophical premises,
of which no uncontroversial theory exists7 Taken to extremes, this can severely restrict free speech
1 There are many brands of liberalism, a loose concept encompassing a variety of ideas The point here relates not
to political liberalism, which values viewpoint diversity and a tolerant ethos, but philosophical liberalism, which
is illiberal and intolerant of all views (and frequently their espousers) which do not conform to liberal dogma For example, substantively controversial issues like euthanasia and who may enter into civil marriage See Chandran
Kykathas, ‘Two Concepts of Liberalism’ in João Carlos Espada et al (eds), The Liberal Tradition in Focus (2000); Stephen Macedo, Liberal Virtues: Citizenship, Virtue and Community in Liberal Constitutionalism (Oxford University
5 James Kalb, ‘The Tyranny of Liberalism’ (Summer 2000) Modern Age 239-252
6 This is the practice of indicating that one possesses the ‘right’, liberal media-elite approved opinions through an
expression of outrage and declaration that one hates e.g sexism, racism or whatever the object of abhorrence du jour
is This is a form of guised boasting and informal upholding of a model of ‘political correctness’, which can have the
effect of chilling speech: James Bartholomew, ‘The awful rise of ‘virtue signalling’, The Spectator (UK), 8 July 2018
7 Eg Kok-Chor Tan, Toleration, Diversity and Global Justice, (University of Pennsylvania Press, 2000).
Trang 8and even usher in a form of cultural totalitarianism which, like political totalitarianism, seeks to drive
out competing visions of the world and humanity; committed as it is to “the assumption of a sole and
exclusive truth in politics”2, such a posture is fundamentally intolerant of dissent Totalitarianism of
any sort, whether in terms of absolute rulers or absolutist rules, is anti-constitutionalist, inimical to
free speech and democracy The liberalism of fear against government intervention in private life
must be reimagined to include fears against cultural totalitarianism, from private actors
The key issue is whether the current state of affairs within liberal orders still denote a good faith
willingness to enter into public debate and whether there remains a capacity for critical reflection
This is further explored in the next section
Revisiting Free Speech Rationales: Political and Public Order Impacting Speech
The central tenets of liberal free speech theory appear to be a commitment to the ‘marketplace’
of ideas; a commitment to deliberative, participatory democracy as romanticized by the idea of the
townhall and lastly a vision of the rational man committed to reason-based discourse, to a good faith
search for truth or the best way forward; this calls forth a certain degree of tolerance for disliked or
disagreeable views, in the broader interest of securing the right and common good of free speech and
viewpoint diversity which facilitates informed, even wise choices Free speech is also considered to
be a key aspect of personal self-development
There are certain assumptions that underlie this liberal theory of free speech which are questionable
today
Argument from Truth
In a postmodern world with its increasing loss of stable values, those who are cynical towards
grand truth narratives may be content to render truth into “what emerges from open discussion and
argument to be accurate and/or rational”3 This may sustain the belief that “sunlight is said to be the
best of disinfectants”4, that the remedy to bad speech is more speech.5 This flows with Holmes J’s
famed dissent in Abrams v United States6:
1 Ryszard Legutko, The Demon in Democracy: Totalitarian Temptations in Free Societies (Encounter Book, 2018).
2 Jacob L Talmon, “Introduction, Part I” of The Origins of Totalitarian Democracy (Secker and Warburg, 1955).
3 Lee Sieu Kin J, Lee Hsien Loong v Roy Ngerng Yi Ling [2015] SGHC 320 at [98], citing Thio Li-ann, A Treatise
on Singapore Constitutional Law (Academy Publishing, 2012) at para 14.011 This avoids the slippage into a new
absolutist dogma of relativism
4 Louis Brandeis, ‘What Publicity Can Do’, Harpers Weekly (1913) Brandeis was quoting from James Bryce, The
American Commonwealth (Macmillan and Company 1888): “Public Opinion is a sort of atmosphere, fresh, keen and
full of sunlight, like that of the American cities, and this sunlight kills many of those noxious germs which are hatched
where politicians congregate…the genius of universal publicity, has some disagreeable results, but the wholesome
ones are greater and more numerous Selfishness, injustice, cruelty, tricks and jobs of all sorts shun the light; to expose
them is to defeat them No serious evils, no rankling sore in the body politic, can remain long concealed, and when
disclosed, it is half destroyed.”
5 Justice Brandeis in Whitney v California 247 U.S 357 at 376-377 (1927) stated: “If there be time to expose through
discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more
speech, not enforced silence.”
6 Abrams v United States 250 US 616 (1919) at 630
Trang 9[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that the truth is the only ground upon which their wishes safely can be carried out….
The American First Amendment is predicated upon the presupposition that “right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection To many this is, and will always be, folly; but we have staked upon it our all”1
The argument from truth rests on a belief that truth or its diluted analogue, accuracy, is possible, even desirable This is advanced by the role of the press as a watchdog or bloodhound, engaging
in adversarial, investigative journalism This is undermined where the press adopts the posture of
a political advocate rather than a reporter, publishing only what serves a preferred narrative, which itself promotes an ideological agenda Truth is harmed through under and slanted reporting where one standard is applied to one’s political or ideological tribe, and another standard to the ‘other.’ This prejudices the reader, who relies on the convenience of the press for collating news and views and is disserved by such unbalanced selectivity and denied the range of views needed to make an informed and wise choice or decision
One of democracy’s strengths is that it is an open system; if you do not like the government of the day or if your supported political party loses the elections, their policies may be criticized and subject
to public scrutiny, and governors may be voted out at the next elections, When the nature of politics
is ‘tribal’ and a strong sense of the common good is lost, society becomes fissiparous and loses coherence, divided along tribal lines of race, religion, and culture or political ideology If citizens engage in a form of tribal politicking by pushing one-sided agendas, ideology and supporting narrative espousing politicised ‘science’ for instance, this will displace truth Speech will be instrumentalised and deployed as a tool for the protagonist who has no interest in engaging interlocutors This thwarts deliberative democracy, given the narcissistic preference for thinking with one’s feelings, vociferation and argument by slogan, and the refusal to engage in the heavy lifting of seeking common ground and compromise by reasoned deliberation, as an expression of active citizenship The argument that the antidote to bad speech is more speech may lose weight given that is grounded in the faith that the better argument and best ideas will prevail This holds little water when an ideologue’s mind is made up and ideological wars are a harbinger of an impasse where ‘overlapping consensus’ cannot be attained to owing to intransigence on the part of the relevant parties; still, if speech is suppressed, it will go underground and fester
Argument from self-development and democracy: Farewell to the Townhall
In general, there is great merit in the idea of free competition in the marketplace of ideas to get
to the ‘truth’ of things, as opposed to a ‘protectionist’ approach towards speech where a public or private censor acts as ‘truth czar’ In relation to political speech, individual citizens as part of self-development should be empowered to participate actively to shape the democratic decision-making process However, this rests on a series of assumptions which must be interrogated, concerning how we express and receive information in the free marketplace of ideas, which affects questions of regulation
1 Judge Learned Hand, United States v Associated Press 326 U.S 1 (1945)
Trang 10The marketplace of ideas rationale assumes a rational man who exercises his rights of free speech
as a way of discharging his civic responsibilities within a participatory democracy The Rational Man
engages and evaluates a wide array of views before making up his mind in relation to social problems
He understands that free speech is about communicating, not hindering the expression of ideas in the
public square This requires a commitment to treat other speakers with civility, which resonates with
the European Enlightenment’s vision of the Rational Man as one of intellect and self-restraint who
can tolerate distasteful or offensive speech in service of the broader and higher goal of maximising
free speech for all It is assumed that a broad range of views is available in the marketplace and that
everyone has free and equal access to this The link with the argument from democracy is clear, itself based on an idealised ‘townhall’ conception of popular decision-making where politicians meet their constituents to hear their views or to discuss upcoming laws This is based on all town
members assembling in a common space to take decisions together, within the context of face to face
discussions in an authentic, human sized community where people knew one another This would
entail the discipline of listening with civility to views opposite from one’s own and to engage with
these opposing views This does not exist where modern government or indeed internet speech is
concerned, particularly where anonymity facilitates the very worst in human nature This changes
the very nature of human relating, which is discussed below, in the production, transmission and consumption of information Several factors ought to be borne in mind, which may demonstrate that the assumptions underlying the marketplace of ideas may be inaccurate, inapplicable or require
revision/modification
First, not everyone has equal access to the marketplace The internet has ‘equalised’ participation
insofar as anyone with internet access can easily have their own blog to air their views, thought
what counts is the degree of influence that blog has i.e readership traffic, as certain voices, whether
through wealth or political clout, have amplified voices and command an extensive audience Second,
important informational flows stem from the media and where news is biased and reporting is selective,
this degrades democracy which requires fair and objective reporting (insofar as possible) streams,
rather than uninhibited political advocacy by news media 1 Where news publishers restrict the range
of views they publish, this hinders the ability of citizens to effectively access points and counterpoints
to an issue; what the reader receives is an ideological preference, which is a form of propaganda
Third, the internet may correct this insofar as it opens up a new informational horizon to everyone,
as both publishers and audience; it has a democratising effect insofar as anyone with internet access
can be a citizen-journalist, breaking the monopoly of the government and mainstream media and
enriching viewpoint diversity However, the rigours of checking mechanisms and editorial oversight
to ensure informational veracity is absent This may give way to recklessness, negligence where
material is anonymously published or under a nom de guerre, which does not conduce to responsible
and accountable journalism The conundrum, given the fear that such power can be abused (fear
of irresponsible journalism), is whether and how to regulate this, as this brings the associated fear
that any form of regulation may itself be abused and curtail legitimate dissent and views Fourth,
it is easy, with the click of a button, to forward an offensive view or false information to multiple
recipients which can go viral, exacerbating the harm Fifth, with the surfeit of information and views,
1 E.g., when left leaning media infamously reported on election day that Hilary Clinton was going to win the 2016 US
presidential elections, contrary to the truth of the eventual outcome when Donald J Trump became the 45th POTUS
They let their readers down in reporting their desired hope as fact.
Trang 11more effort is required of the hearer to discern good from bad arguments, truth from falsehood Fake information may crowd out reliable news, further hindering clear thinking such that some may just give up being an engaged participant in civic life Fifth, there are mechanisms available to enable the reader to ‘filter’ and select views he wishes to read, which could cause the ‘bell jar’ or ‘echo chamber’ effect of insulating one from counter perspectives, resulting in unthinking ideological conformity, rather than active enquiry This is both narcissistic and a form of perpetual infantalisation; it creates
a fragmented communications universe, which may forebode the end of a shared public space or
‘balkanisation’ which inhibits the ability to develop a sense of solidarity, the ability to reach reasonable accommodations, if citizens devolve into single issue ‘tribes,’ and are unable to appreciate the range
of positions taken with respect to complex public issues It may hinder the ability to cultivate a commitment to pluralism as key to a harmonious relationally healthy society and plural democracy The internet thus can be used to expand as well as contract our horizons
Lastly, online communication as part of the virtual extension of the public square may connect groups of like-minded people who build ‘online’ communities; this can be a force for good or evil As communication is not face to face, there are not the filters to curb impulses or to moderate reactions
to another speaker This may hinder rather than promote conversation and deliberation Indeed, the anonymity the internet offers may divest the speaker of the inhibitions and basic civilities we afford to people we speak with This can degenerate into vulgar and vicious bullying attacks which operates as conversation stoppers rather than conversation starters This is another instance where free speech can chill free speech Furthermore, the internet can be a ground for breeding extremism
as people with extreme views can connect online and discuss matters with like-minded compatriots without encountering opposing views ‘Online’ groups of like-minded individuals may also undertake campaigns to harass individuals through hateful speech or to undermine societies by inventing false
crises to induce public panic e.g an invented SARS crisis, or as conflict entrepreneurs, to foment
distrust between different social groups Furthermore, “online echo chambers or silos divide people into separate camps, at times even inciting them to express anger and hatred at a volume not seen in previous communications forms”1 Sustainable democracy must be accompanied by robust but civil debate, informed by basic human decency Otherwise, free speech may be deployed to destroy its’
raison d’etre, that is, deliberative and participatory democracy with involved and informed citizens.
II Populating the Legal Village
The Constitutional Free Speech Guarantee
Article 14 of the Singapore Constitution guarantees the right to freedom of speech, subject
to eight grounds such as public order, upon which Parliament may enact restrictions it considers
“necessary or expedient.” This is a qualified right, framed as a constitutional bargain The same laws regulating free speech also apply to virtual or online speech
Free speech is not ‘free’ in the sense of being offered “just for the sake of expression.” Professor Stanley Fish2 has argued that discussions about free speech have in mind the typical situation where
1 Pew Research Centre, ‘The Future of Truth and Misinformation Online’ 19 Oct 2017 at http://www.pewinternet org/2017/10/19/the-future-of-truth-and-misinformation-online/
2 Stanley Fish, “There’s no such thing as free speech: and it’s a Good Thing too” (Oxford University Press, 1994)
Trang 12a person speaks and “delivers an opinion in a seminar-like atmosphere” with no thought of eliciting
action in response to what is said In the real world, speech is advanced as a means to the end of
driving or shutting down an agenda The law differentiates between speech worthy and unworthy of
protection, as it violates the rights of others, or undermines the social interest, or both If one speaks
with the goal to defame another’s reputation, to denigrate a judge in a contemptuous fashion, to incite
violence against an ethnic or religious group or to abusively harass someone who publicly expresses
a view which the abuser dislikes and wishes to silence through intimidation and threats, the law steps
in and sanctions rather than protects such speech
The idea of permitting substantive limits of rights would be anathema to those supportive of the
liberal dogma that the state should be ‘neutral’2 when it comes to visions of what the ‘good life’ is,
and leave this to the individual to decide, where rights maximize autonomy In contrast, the view in
Singapore is a more holistic one, where free expression should not be exercised “on the basis that
opinions are expressed in hermetically sealed vacuums where only the rights of those who ardently
advocate their views matter”3 Bright lines are drawn in Singapore where fundamental values like
racial and religious harmony are at stake, such as the government position that the burning of sacred
texts such as the Bible and Koran (the act of burning is itself a form of speech), would not be allowed
These values go to the heart of community identity and moral solidarity The dangers of absolute
free expression are appreciated, and the polarizing extremism, racism and xenophobia leading to acrimony and bloodshed between different groups in other countries are an anti-model
The government has described Singapore political culture as one where citizens “demand a high level of civility in our public discourse, especially on such sensitive matters This is because
respect, tolerance and courtesy among different races and religious remain fundamental values for
Singaporeans”4 Similarly, when falsehoods calculated to mislead the public or damage a person’s
reputation are willfully made, individuals must have the right to reply or to seek legal recourse
There was a time when the members of an authoritarian government demonstrated extreme sensitivity to even mild criticism, their reaction being likened to that of a “scalded polecat”5 This
was reflected in the feudal mentality belying the ministerial admonition in 1995 that when citizens
debated with governors, a distinction was to be made “between the senior and junior party, or what
the Hokkiens describe as boh tua boh sway”6 That is, the people should not take on those in authority
as equals In the second decade of the 21st century, a humbler approach is evident insofar as the Prime Minister has sought to promote a culture of public servant-ship In seeking to promote civic
participation and a more consultative style of politics which nonetheless preferred consensus over
1 See Interview with Stanley Fish, Australian Humanities Review at http://www.australianhumanitiesreview.org/
archive/Issue-February-1998/fish.html
2 Claims about neutrality may guise a covert value judgement See Bruce Ackerman, ‘What is neutral about neutrality?’
(1983) 152 Ethics 372-390
3 VK Rajah JC, Chee Siok Chin v MHA [2005] SGHC 216 at [136]
4 National Report: Singapore, Working Group, Universal Periodic Review, A/HRC/WG.6/24/SGP/1 (28 Oct 2015) at
[117].
5 CV Devan Nair (former President), Straits Times, 26 June 1987
6 ‘Debate yes, but do not take on those in authority as ‘equals’, Straits Times, 20 Feb 1995 at p11 For a discussion of
how this has changed, see Thio Li-ann, ‘Between Apology and Apogee, Autochthony: The Rule of Law beyond the
rules of law in Singapore’ (July 2012) SJLS 269
Trang 13contention, Prime Minister Lee in 2004 stated that a diversity of views was to be encouraged in public debate, that “unity of purpose and vision” did not require “sameness in views and ideas”1 Singaporeans were urged to debate issues “with reason, passion and conviction and not be passive bystanders in their own fate.” The government would modify its position on national policies and would be “dispassionate and factual” in relation to criticisms which made valid points in seeking
to improve government policies A distinction was drawn between the friendly fire of constructive criticism as opposed to the deadly fire of opposition politicians seeking to discredit the government by scoring “political points” in an adversarial fashion Consonant with “the rules of the game of politics everywhere,” this would elicit robust rebuttal to preserve the government’s moral authority Overall, Prime Minister Lee invited citizens to engage in rigorous and robust debate over public policies and national issues, without need to hold back “out of concern for egos or sensitivities” Debate should be
“issue-focused, based on facts and logic, and not just on assertions and emotions” with the ultimate goal of reaching “correct conclusions” to take the country forward This was a call to solidarity, rather than emotive single-issue political agendas The question is whether the members of any one polity the discipline and vision have to act in this sensible manner
In terms of approaches to judicial review, there has been a discernible shift from an era where free speech cases were under-theorised and free speech interests subordinated to statist values and trumps
In what has been called the ‘third wave’ approach towards constitutional adjudication, there have been judicial efforts to balance article 14 cases, to ensure that interests on both sides of the equation are measured against each other in a way that ensures that neither interest is rendered “otiose”2
The Gullible and the Discerning
Historically, laws relating to the offence of ‘scandalising the court’ were introduced into British colonies at a time when it was being phased out in Great Britain Contemptuous speech addresses the fear of the loss of public confidence in the administration of justice The offence was formulated
for immature and uneducated societies; in 1899, the Privy Council in Macleod v St Aubyn3 noted
that the offence had become “obsolete” in the UK, where the courts were satisfied to leave to public opinion what to make of attacks or comments derogatory of the judiciary This reflects a faith that British public opinion was sufficiently discerning or perhaps the view that “Judges are supposed to be men of fortitude, able to thrive in a hardy climate”4
However, the Privy Council pejoratively noted that in “small colonies, consisting principally of coloured populations,” the offence of scandalizing the court should be retained as it may be “absolutely necessary to preserve in such a community the dignity of and respect for the Court”5 This view that coloured people were somewhat gullible and undiscerning would be considered wildly racist today
1 Deputy Prime Minister Lee Hsien Loong, ‘Building a Civil Society’ Harvard Club Speech (2004), text available at http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan015426.pdf.
2 Quentin Loh J, AG v Shadrake [2011] 2 SLR 445 at [57] See Thio Li-ann ‘Principled Pragmatism and the ‘Third Wave’
of Communitarian Judicial Review in Singapore’ in Jaclyn L Neo (ed.), Constitutional Interpretation in Singapore:
Theory and Practice (Routledge, 2016) 75-116.
3 Lord Morris in McLeod v St Aubyn, (1899) AC 549.
4 Craig v Harney, 331 US 367, at 376 (1946)
5 Supra, note 59 at 561.