Offense and oppression

It’s no stretch to say that freedom of expression is a fundamental feature of a democratic society… and yet few features of democracy are as contentious as freedom of expression. After all, subsumed within that right is the idea that such freedom must encompass not only expressions that we agree with, but also those that shock, offend or disturb us.

The internet, for all its ills, has been a boon in providing a way for traditionally marginalized groups to make themselves visible, to draw strength from those similarly situated and connect with sympathetic allies. This is why the internet – and social media in particular – has become a virtual public square for awareness campaigns and accountability movements. It has also become the venue of the corresponding backlash and counter-protests, as was inevitable. While the setting may be different, these are old battles fought under new names and an ever-lengthening number of hashtags. An integral part of our understanding of our individual human rights is that they can be limited by the rights of others. The key now, as then, is trying to find some guiding principle about where to draw the line.

This is particularly important in the realm of the law. While communities and cultures can and will argue about the bounds of “proper” or “decent” expression, about what is or is not censorship, the discussion evolves into something much different once the State and its laws are involved. In the Philippines and most other constitutional democracies, our legal right to freedom of expression in the Bill of Rights is specifically a protection against actions of the State which would infringe that right. When a private entity engages in improper censorship, for instance, this is a matter that may or may not have legal implications. When it is the State that engages in improper interference with speech, it violates the Constitution, the fundamental law of the land.

This is why when the State treads into the realm of prohibiting speech or expression, it must do so very carefully and very lightly. The reason that most democracies severely restrict the State’s ability to interfere with speech is to make it as difficult as possible for a State to fabricate pretexts to suppress speech that it disagrees with or finds contrary to its aims, including criticisms of its actions and policies. Freedom of speech and expression is one of the bulwarks of democracy because without that guarantee, it becomes all too easy for the powerful – be that the State, organizations or even a tyrannical majority – to disregard and trample upon the vulnerable, the marginalized and the minorities.

But it’s important to realize that speech itself can and has been used to oppress the vulnerable. Speech can be used to create and perpetuate structures of oppression – sexism, racism, classism – that cause real and direct harm to many.

What then is to be done if the State is to protect those most in need of its protection? The first step is that policy makers must realize that this is contested territory, that there will be no easy answers, no simple calculus to be able to determine the levels of protection appropriate for different types of speech. The second is to recognize the need to have a coherent rule or standard that can be applied to isolate speech that the State may have a valid interest in regulating.

This standard should not, in my opinion, be based on a feeling of offense. One of the most contentious types of speech is speech that offends religious feelings, but in my view in order for the State to be allowed to regulate the same, there must always an additional element involved and not just the emotional effect of the words. For instance, the method of expression – the time and manner that the insulting words are conveyed – may be taken into account, as well as whether or not the words constitute a threat or incitement to violence.

But in my view the feeling of offense is too subjective and personal to serve as a proper guide for determining the constitutionality of State intervention in speech. Each of us has the potential to take offense at a great many things – the tenor of a boss’s email, the rejection of a crush, the style of clothes a person wears – and the sheer arbitrariness of such scope should disqualify a mere feeling of offense as a legal standard. Citizens should be capable of knowing when their actions or words might violate the law. But because of the subjective nature of what is offensive, one may not know when his words or actions are offensive to others. And a standard that is so subjective is one that can be easily bent towards oppression, as has occurred with blasphemy statutes in the past.

Yet when oppressive structures come into play, sometimes the feeling of offense is a sign that the offending words are creating real and immediate harm. The ability of social media to amplify even extremist voices has put the idea of hate speech under the spotlight. The idea that total freedom of speech will lead to the elimination of offensive speech through a “marketplace of ideas” has been shown to be flawed. After all, the speech “marketplace” is not an equal one, the ability to speak and be heard is not evenly distributed, and the position of those with less power cannot be equated with that of the powerful. A growing recognition of that is why anti-sexual harassment laws have finally been enacted around the world, and why when we were drafting the SOGIE Bill, we took pains to include speech as a means by which harassment may be committed.

The State in a liberal democracy should not be allowed to choose which conception of the good or ethical life is more valuable than another. But even if freedom of speech is integral to a democracy, so too is the creation of a fair and egalitarian society, which makes the protection of the vulnerable and the marginalized an essential duty. Balancing these two values is not an easy task, but for a government that is committed to its people, that balance should lie in uprooting oppression rather than outlawing offense.