Monthly Archives: January 2020

When early drafts of the fundamental right to freedom of speech were put before the Constituent Assembly, members protested that the right was riddled with so many exceptions that the exceptions have eaten up the right altogether.

The framers of the Constitution drew from the example of the Irish Constitution by providing specific subjects on which the state could make law to restrict the freedom of speech. This was markedly different from the US Constitution, under which the freedom of speech was not mottled with exceptions, and was absolute, at least on the face of it.

There was a lively debate before the Constituent Assembly on what the permissible exceptions should be. Eventually, when the Constitution came into force on January 26 ,1950, the only grounds on which the fundamental right to freedom of speech and expression could be restricted were libel, slander, defamation, contempt of court or any other matter which offends against decency or morality or undermines the security of or tends to overthrow the state. Notable exceptions which found themselves in earlier drafts but got dropped in the end, were sedition, public order, class hatred and blasphemy.

Only a few months into the republic, the newly minted fundamental right to freedom of speech and expression under Article 19(1)(a) was put to test. The restrictions under Article 19(2) were invoked by three state governments to clamp down on select publications.

In Bihar, the government cracked down on a provocative political pamphlet. The high court rejected the states contention and that view was upheld by the Supreme Court in State of Bihar v Shailabala Devi.

In Madras, the state banned Crossroads, a communist weekly published by Romesh Thapar who was famously critical of many of Prime Minister Jawaharlal Nehrus policies. The Supreme Court struck down the ban and the law under which it was issued, holding that nothing short of a threat to overthrow the state could justify a restriction on the freedom of speech under Article 19(1) (a). A breach of order of a purely local significance could not meet the test. This was followed in Brij Bhushans case, where the court struck down a pre-censorship order on the Organiser, a weekly run by the Rashtriya Swayamsevak Sangh.

Upset by the rulings, Nehru wrote to the then law minister BR Ambedkar, expressing a need to amend the Constitution to contain subversive activities. But on the floor of Parliament, Nehru justified the need for an amendment, not on a political ground but a moral one.

This was curious given that the occasion for the amendment was the three unfavourable rulings. Taking the moral high ground he said, It has become a matter of the deepest distress to me to see from day to day some of these news sheets which are full of vulgarity and indecency and falsehood day after day not injuring me or this House much , but poisoning the mind of the younger generation, degrading their mental integrity and moral standards.

In a speech which acquires special relevance in times of rampant and reckless fake news about seven decades later, he complained that from the way untruth is bandied about and falsehood thrown about it has become quite impossible to distinguish what is true and what is false.

The first amendment to the Constitution in 1951 expanded the exceptions to the freedom of speech to eight from what were originally four. Public order, security of the state, incitement to an offence and friendly relations with foreign states were the new insertions. One redeeming feature was that the subjects of restriction were prefixed with the word reasonable.

In 1963, a new ground was added: in the interests of the sovereignty and integrity of India. But despite the increased subjects of curtailment, seven decades of working the Constitution tell us that the enumeration of specific subjects in Article 19(2) on which the freedom of speech could be restricted, actually kept a check on excessive inroads into the freedom of speech. The addition of the word, reasonable helped to reign in the restrictions, even on the eight permissible grounds. Each restriction was required to meet the test of proportionality. The enumeration of restrictions, once condemned as eating up the right altogether, have emerged, somewhat paradoxically, as its protector.

In the landmark judgment Shreya Singhal v Union of India, comparing Article 19(1)(a) with its American counterpart, Justice Rohinton F Nariman held that while under the Indian Constitution, the right could be curtailed only on the eight grounds specified under Article 19(2), the American Constitution was not constrained by such limitations and the restrictions could travel beyond, so long as there was a clear and present danger to a competing right. The belief that the freedom of speech under the American Constitution was absolute was therefore, a misnomer.

Article 19(2) is organic enough to take care of challenges that might not have been envisaged so many years ago. At the forefront of civil liberties in recent times, is the right to privacy. Now recognised as a fundamental right, privacy concerns need to be balanced with the freedom of speech. Article 19(2) does not specifically mention privacy. But it does mention decency and morality as exceptions to free speech, and these exceptions are not limited to affording protection only against obscenity they are broad enough to make space for privacy, an important moral value in any decent civilised society.

In Kaushal Kishor v Union of India, the Supreme Court, usually a staunch and steadfast guardian of the freedom of speech from the early days of the republic, decided to refer to a bench of five judges the question of whether the freedom of speech could be curtailed on grounds beyond those specified in Article 19(2), and whether Article 21, which has been stretched to include everything from the right to sleep to the right to a toilet can be invoked to introduce further curbs on the freedom of speech.

While the right to life and personal liberty under Article 21 in its many resplendent avatars, is vital, so is the freedom of speech and expression. We, in India chose to adopt the Irish template and consciously departed from the American one. The framers of our Constitution were careful to minimise the restrictions in Article 19(2), while seeking to ensure that all the social values which need to be protected from reckless speech found place in Article 19(2). Articles 19(1)(a) and 19(2) strike a good balance between protecting both free speech and other competing rights. There are grave dangers in opening a back door for inroads into Article 19(1)(a), particularly through a right as elastic as Article 21. Article 19(2) draws a Laxman Rekha and it is important, in the interests of free speech to stay well within that threshold.

( Madhavi Goradia Divan is Additional Solicitor General of India)

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Safeguarding free speech from threats is important |Opinion - Hindustan Times

Children can sense when things are amiss, even if they cant explain exactly why, and in that class, ... [+] there was a dreary and stifling atmosphere as we painted propaganda poster boards with long anti-communist slogans and images.

Recent years have posed serious challenges to liberal democracy. Democratic movements been stifled in countries like Russia and China as well as western countries where the rise of authoritarian regimes was, just a short time ago, unthinkable.

Whats the solution? For me, a robust liberal education is crucial, the bedrock of democracy.

To explain, until the age of fourteen, I lived in South Korea, in Seoul. Most of my memories from those early years are warm and genial: my older sister helping me style my hair with barrettes; eating persimmons after dinner in our dining room; birthday parties at my grandparents house across the Han River in Bu-am dong.

But, in those years, South Korea was far from the stable, liberal, and relatively wealthy democracy it is today, and there are less positive memories too. Among them, I recall sitting in school in a type of art and crafts time, making propaganda for the military-led government.

Children can sense when things are amiss, even if they cant explain exactly why, and in that class, there was a dreary and stifling atmosphere as we painted propaganda poster boards with long anti-communist slogans and images.

Looking back, my unease grew out of the education Id gotten at home. My father encouraged us kids to debate complex issues openly even at a young age. And even though the topics sometimes flew over our heads, my siblings and I gleaned from our father the importance and value of argument, free expression and open inquiry.

Ive been thinking a lot about my early experiences as Ive read about the protests in Hong Kong. I have been struck, in particular, by the role civics education has played in the conflict. Specifically, a course called Liberal Studies, which has been blamed for fueling the energy of the young protesters.

The course dates from 1992 when Hong Kong was still under British control. The course became compulsory in 2009, and many teachers argue that it raises awareness of social issues, supports civic engagement and promotes critical thinking. In the course, teachers are given free rein to facilitate discussions about difficult issues like the governments 1989 crackdown on protesters at Tienanmen Square.

Critics blame the course for the recent protests, and many have called for a complete elimination of the civics class. The Communist Partys newspaper, The Peoples Daily, has gone so far as to call Hong Kongs education system a disease and said teachers have treated the classroom as the sowing ground for a political perspective.

In response to the protests, some have called for more patriotic education that is, propaganda to instill more loyalty in Hong Kong students to mainland China. This has been the approach under president Xi Jinping in China, and mainland schools have recently redoubled efforts at ideological education.

Not surprisingly, I support the need for strong civics courses in Hong Kong. But just as important, I believe the battle over education in Hong Kong and China should be a lesson to us all because our freedoms depend on education. What we learn in school about free speech and open thought matters for the future of nations.

The course in Hong Kong shows the value of civics instruction that supports free speech and critical thinking. According to the New York Times, many students speak proudly about how liberal studies helped them understand the complex bill that set off the protests. The bill, which would have allowed extraditions to the mainland, has since been suspended but has not been formally withdrawn from legislative agendas.

Democracies are, of course, far from perfect, and too often democratic countries dont live up to their ideals. But the freedom to criticize those institutions and the opportunity to show how ideals have been betrayed is what makes progress possible.

Practically speaking, we need to do more to make education a tool for renewing democracy. This means a commitment to media literacy to ensure our students have the tools to seek out and analyze information. It also means a commitment to critical thinking, so that students can think through complicated topics and truly debate current events.

I was lucky. My father instilled the value of free expression and critical thinking in me during difficult times. Nations now need to do the same, and Hong Kong shows us the way.

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The Exercise Of Free Thought In Hong Kong And At Home - Forbes

TEN YEARS AGO, the Supreme Court overturned portions of a federal law that empowered government to dictate how Americans who were not connected to any candidates and political parties could practice their inherent right of free expression. It was one of the greatest free speech decisions in American history.

The case of Citizens United revolved around state efforts to ban a conservative nonprofit group from showing a critical documentary it produced of then-presidential candidate Hillary Clinton right before the 2008 Democratic primary elections. At the time, the McCain-Feingold Act made it illegal for corporations and labor unions to engage in "electioneering communication" one month before a primary or two months before the general election.

Or, in other words, the law, written by politicians who function without restrictions on speech -- and applauded by much of a mass media that functions without restrictions on speech -- prohibited Americans from pooling their resources and engaging in the most vital form of expression at the most important time, in the days leading up to an election.

"By taking the right to speak from some and giving it to others," Justice Anthony Kennedy would write for the majority, "the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker's voice."

Right after the decision, President Barack Obama famously rebuked the Justices during his State of the Union for upholding the First Amendment, arguing that the Supreme Court had "reversed a century of law that I believe will open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections."

Not a word of what he said was true.

First of all, the court hadn't overturned a century of law (though the age of the law bears absolutely no relevance to its constitutionality). Citizens United reversed portions of a law, less than a decade old, that forbade Americans from contributing as much as they wanted directly to the funding of speech. Corporations would still be banned from donating directly to candidates, as they had been since 1907.

Moreover, those corporations, typically unwilling to pick partisan sides for reasons of self-preservation, are still responsible for only a fraction of all political spending, averaging around 1% or less since 2010. Top 200 corporations spend almost nothing on campaigns.

Conversely, since 2010, there's been an explosion in grassroots political activism on both right and left. As Bradley A. Smith points out in The Wall Street Journal, small-dollar donors are more in demand than ever. Bernie Sanders lives on them, and Donald Trump raised more money from donors who gave less than $200 than any candidate in history.

Nothing in Citizens United, of course, made it legal for foreigners to participate in American elections. It is still illegal for anyone running for office to solicit, accept or receive help from foreign nationals.

Obama, like many progressives, would ratchet up the scaremongering over anonymous political speech. Over the past couple of decades, our political class has convinced large swaths of the electorate that private citizens have a civic responsibility to publicly attach their names to every political donation. They do not. As the often-cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission says: "Anonymity is a shield from the tyranny of the majority."

It is true, though, that since the Citizens United decision, streaming services have been able to produce and play documentaries about political candidates like Trump without answering to a government entity. Publishing companies, especially smaller ones, can now print books about political figures without being policed by the state. And you can contribute as much money you want to any independent group that shares your values. As it should be. The very notion that anyone should be restricted from airing his or her views is fundamentally un-American.

Then again, even if the floodgates had opened for "special interests" -- a euphemism for causes that Democrats dislike -- and even if there had been a massive spike in corporate spending on speech, and even if secretive corporate entities started producing documentaries that disparaged favored political candidates and released them days before an election, it still wouldn't matter.

The principle of free expression isn't contingent on correct outcomes, it is a free-standing, inherent right protected by the Constitution. That principle holds whether people of free will are too lazy or too gullible to resist alleged misinformation. The proper way to push back against rhetoric you don't like is to rebut it.

Or not. It should be up to you.

David Harsanyi is a senior writer at National Review and the author of the book "First Freedom: A Ride Through America's Enduring History With the Gun."

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David Harsanyi: Happy anniversary to Citizens United | Columnists - The Union Leader

Joe Biden doesnt sound very moderate when he says there is no room for compromise on transgender equality.

It is the civil rights issue of our time, he tweeted last week, elevating it above womens equality, racial equality, and even climate justice, an issue he once told us was an existential threat.

The tweet was rather baffling, other than as an exercise in identity pandering.

Maybe Biden thought he could win over a segment of the 0.3 percent transgender voters who are irate that Bernie Sanders accepted an endorsement from libertarian podcaster and pronoun purist Joe Rogan.

But, by trying to outwoke Sanders on gender fluidity, Biden is empowering a tyrannical micro-minority determined to overturn biological reality and crush dissent.

Exhibit A is Denver Post columnist Jon Caldara, fired for writing that there are only two sexes, identified by an XX or XY chromosome.

They is singular and up is down, wrote Caldara in a Jan. 7 column criticizing The Associated Press Stylebook, the language-usage bible for reporters, which has decreed that gender is no longer binary and that they can be used as a singular pronoun.

Two weeks later, he slammed a Colorado law which requires controversial sex-education content in schools.

Democrats dont want education transparency when it comes to their mandate to convince your kid that there are more than two sexes, even if its against your wishes, he wrote.

This was the last straw for his editors. After writing a weekly column for four years, he was shown the door.

Caldara is no social conservative. He supports-same sex marriage and doesnt like Donald Trump. But, like Rogan, he is a libertarian who objects to compelled speech and inaccurate pronouns.

So, it doesnt matter how the Denver Post tries to spin it, his firing is an attack on free speech by the very institution entrusted to defend it.

The paper has been opaque about its reasons, alluding only to disrespectful language in an editors note last week. But any fair reader of the statements of biological reality which Caldara reposted on social media would be hard pressed to find disrespect. Clearly, his editors thought his words were fine when they published them.

But the Denver Post is a shadow of its former self. Under the oppressive ownership of a hedge fund, it lacks the institutional courage required to stand against the transgender bullying which attacks any expression deviating from gender fluid orthodoxy.

The papers disintegrating backbone follows the decline of a free press all over the country, as Google and Facebook siphon away news revenue, and fake news muscles in.

Alden Global Capital took control of the Denver Post in 2010 and runs it through its subsidiary, Digital First Media, which has bought up some of the biggest newspaper chains in the country, including the McClatchy and Gannett organizations. It controls dozens of newspapers, from California to Massachusetts, and has stripped them to the bone.

Its no scoop to understand that hedge funds with an appetite for extracting remnant value from failing newspapers have no interest in freedom of speech or the constitutional value of the Fourth Estate, let alone the importance of objective truth.

And the last thing woke capital wants is to be targeted by transgender activists. No special interest group is more relentless in crushing dissent around the world, using character assassination as a weapon.

When you have no commitment to free speech, surrender to bullies is the logical path of least resistance.

This may also explain Joe Bidens trans-virtue signaling last week, to counter suspicions about his Catholic background and past cordiality toward Mike Pence.

But, if the leading moderate of the Democratic presidential field is promising to make transgender ideology his human-rights priority, we should understand what that means, for womens sports, for schools, for prisons, for the military, for language.

If there is to be no compromise on transgender rights, then the rights of women and girls will have to be sacrificed.

Does Biden not care, for instance, about the right of biological females to compete in team sports on a level playing field, rather than against transgender athletes with all the natural physiological advantages that come from being born male?

How about the right of girls to preserve their modesty in single-sex locker rooms? Or the right of students not to be confused in sex-ed classes by radical gender theory which disputes the biological reality of two sexes.

Like every other minority, transgender people should be protected from discrimination, as our laws demand. But if you take him at his word, what Biden is advocating is the forceful restructuring of society according to the irrational demands of a subsection of a tiny minority. Its no way to win an election.

Boys death avoidable

The twitter feed of Thomas Valvas mother makes for sinister reading now that we know her accusations of abuse ended with the 8-year-olds death allegedly at the hands of his cop father.

New York City police Officer Michael Valva and his fiance, Angela Pollina, have been charged with second-degree murder over the autistic boys death, after he was forced to sleep outside in in a freezing garage.

But if anyone had listened to the boys Polish-born mother, he might still be alive.

For two years, Justyna Zubko-Valva has been posting heartrending videos and credible evidence of harm to her three sons on twitter.

She even posted letters from teachers saying the boys were starving and filthy.

Why were her complaints to authorities unanswered? Something is very wrong with a child-welfare system which ignores a mothers fears.

Your excuses dont fool anyone, Eric

Brooklyn Borough President Eric Adams doesnt fool anyone when he says his Martin Luther King Day rant about gentrification wasnt a racial slur against white people.

The crowd only started cheering when he said: Go back to Iowa! You go back to Ohio! New York City belongs to the people that was here and made New York City what it is.

It was a dog whistle about majority white states, and he disgraced his office when he chose to stoke division rather than promote healing at a time when New York is suffering from a plague of anti-Semitic attacks. Some perpetrators have tried to justify their hate crimes using the same excuse, that they are being alienated from old neighborhoods.

I tried to give Adams a chance last week to explain, but he dodged requests for an interview.

I never once mentioned race, he finally said in an e-mail through a spokesman yesterday.

Cleveland, Ohio, for example, is majority-black. I have always felt gentrification is not about race, but attitude.

Unconvincing from a wannabe mayor of this melting pot.

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Joe Biden's bias comes through in trying to outwoke competition: Devine - New York Post

NEW YORK Michael Bloomberg on Sunday made his case for the presidency to fellow Jewish Americans, vowing not to revisit U.S. aid to Israel -- an approach that contrasts Bloomberg with several of his Democratic rivals, including his only fellow Jewish candidate in the race, Bernie Sanders.

Bloomberg, at a speech announcing a coalition of Jewish American supporters in Florida, vowed he would never impose conditions on U.S. military aid to Israel if elected. Sanders and rivals Elizabeth Warren and Pete Buttigieg have all left open the option of leveraging that aid to dissuade the Israeli government from annexation and settlement expansions in the West Bank.

As president, I will always have Israel's back, said Bloomberg, who served three terms as mayor of New York.

It wasn't the only distinction Bloomberg drew with Sanders, a U.S. senator from Vermont. In a line that drew laughs from the audience, he said he was the only Jewish candidate in the race not looking to turn America into a kibbutz, referring to communal Jewish farming cooperatives. Sanders volunteered on a leftist kibbutz in the 1960s, and has championed a democratic socialism that Bloomberg opposes.

Bloomberg's wide-ranging speech touched on rising acts of violence against American Jews, criticism of President Donald Trump for withdrawing from the Iranian nuclear deal, a strong defense of Israel and the importance of protecting all marginalized groups from hatred and threats.

This time is a time of great anxiety in the Jewish community, both around the world, and here at home as ancient hatreds are given fresh currency with new technologies, he said. We are confronted by signs that we thought we would never see outside of old black-and-white newsreels: synagogues attacked, Jews murdered, Nazis marching brazenly and openly by torchlight.

But Bloomberg made only passing reference to the Israeli-Palestinian conflict, saying he will not wait three years to release a peace plan for the region. Israeli Prime Minister Benjamin Netanyahu, embattled amid an indictment on corruption charges, and his political rival Benny Gantz were set to meet with Trump in Washington this week as the U.S. administration prepares to release its long-in-the-works Middle East peace plan.

Former Vice President Joe Biden, like Bloomberg, has already ruled out the idea of leveraging U.S. military aid to Israel, which has expanded settlements in the West Bank that the Trump administration recently decided to no longer consider a violation of international law. Every Democrat vying to challenge Trump supports an eventual two-state solution that allows Israelis and Palestinians to coexist peacefully in the region.

Bloombergs approach to rising anti-Semitism put him more squarely in line with the rest of the Democratic primary field. Like his rivals, the former mayor laid blame at Trumps feet for rising discriminatory episodes targeting Jews as well as other minority groups.

Anti-Semitism is the original conspiracy theory, Bloomberg said. And a world in which a president traffics in conspiracy theories is a world in which Jews are not safe.

Trump has faced criticism for invoking anti-Semitic tropes, such as his remark last year that Jewish Americans who voted Democratic were disloyal to their religion. Bloomberg accused Trump of trying to use Israel as a wedge issue for his own electoral purposes."

But in pairing his sharp criticism of Trump with an acknowledgment that there is no single answer for a recent rise in anti-Semitism, Bloomberg outlined what he described as discrimination against Jews on both the right and the left.

Trump signed an executive order last month that empowers the Education Department to pursue a broader swath of potential anti-Semitism complaints on college campuses. That order responds to concern about the discriminatory aftereffects of liberal pro-Palestinian organizing on campuses, but left-leaning Jewish American groups said it risks chilling legitimate criticism of the Israeli governments policies.

Bloomberg did not address Trumps order in his speech but his campaign indicated that, despite his commitment to fighting on-campus anti-Semitism, he shares the free speech concerns of the orders critics. The former mayor said Sunday that he would expand the Education Departments anti-bullying campaign so we can put an end to harassment in schools including on college campuses.

While Bloomberg's speech focused on threats to American Jews, he also criticized a rising tide of hated writ large, against black, Muslim and LGBTQ Americans as well as immigrants.

Leadership sets a tone. It is either inclusive or exclusive, divisive or uniting, incendiary or calming, he said. I choose inclusion. I choose tolerance. I choose America.

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Bloomberg Vows Steadfast Commitment to US Aid for Israel - The New York Times