Protecting free speech

Imagine waking up one morning to a vicious rumour that you are a spy for a particular political party passing off secrets to the seat of government in exchange for jobs for your two brothers.

Even worse is that people you felt should know better both believed and perpetuated this narrative. 

If you have ever been the victim of such malicious narratives in the name of partisan politics, it is very tempting to be dismissive when concerns are raised about free speech.

There is no denying that some of the utterances and rhetoric these days make you cringe.

However, in the face of unpalatable speech, what should be The State’s appropriate response? 

It is a question democracies grapple with: how best to protect a citizen’s free speech rights while ensuring that no harm is done to others or to society at large. 

Civil or criminal punishment ?

In guaranteeing freedom of speech as a fundamental constitutional right, countries also enact laws dealing with issues such as defamation, contempt or speech that can potentially, as in the case of Ghana, “cause fear and panic.”

There are two basic issues, in my view, that must be determined when deciding whether speech should be treated as a civil or criminal matter.

First, there is a look at the words written or spoken.

Do they meet the threshold of impropriety? For example, imagine that as a citizen, you are dissatisfied with the provision of a particular public good or service.

Is it improper to express dissatisfaction and link it with those who have been elected to address our collective public problems?

Another example. Is it improper if, as a citizen, one is dissatisfied with the decision of a state institution and expresses such in strong words?

In both scenarios, some may argue that it depends on the choice of words used to express dissatisfaction. 

The second basic issue is, even if it is determined that such speech is improper, should the appropriate penalty be civil or criminal?

The advocates of criminal remedies, the way I understand it, ask if, in one’s free expression, any laws of the land were broken.

If the answer is yes, then the law must take its course.

In addition, those who feel certain speeches are egregious and likely to harm society are willing to support criminal punishment as a deterrent, should others be tempted to engage in such speech.

The advocates of civil remedies, from my understanding, assert that the fundamental nature of free speech rights makes this the most appropriate response.

In their view, those who feel “harmed” by speech must seek civil remedies, including those in power.

This way, not only is free speech given the utmost protection, but it also prevents potential abuse of political power when public officials take offence at what citizens say.

Resolving to protect free speech

In resolving to protect free speech, I refer to what US Supreme Court Chief Justice Roberts said years ago in a ruling on a free speech case.

He said, “Speech is powerful.

It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.

On the facts before us, we cannot react to that pain by punishing the speaker.

As a nation, we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Placing these words within the context of Ghana, in 1992, we chose a different path – to become a democracy.

And by making that choice, we also offered to guarantee citizens certain fundamental rights such as freedom of expression.

And while there are moments where it feels some citizens push the boundaries of this right in the things said and written in the name of partisan politics, we must embrace Chief Justice Robert’s standard of not reacting to the pain caused by hurtful speech with a determination to punish the speaker.

This means that even in the process of determining appropriate remedies for “hurtful speech,” the speaker must not be punished by being denied their due process rights.

Democratic governance is not easy, but it is also what makes this type of government distinct from others.

I do not approve of some of the things people say in the name of politics.

I have been the victim of “hurtful speech.”

I also do not advocate that, because the Constitution guarantees us this right, we must not be guided by responsibility or restraint in exercising it.

However, I still say that, as a nation, we must choose to protect free speech rights over engaging in actions that create a chilling effect on citizens.

The writer is Director, Democracy Project