No Law* to Regulatory Regime: The Press in Transition

*Extracted from: “Congress shall make no law… abridging the freedom of speech, or of the press…”

Freedom of expression, whether on the traditional press and broadcasting media, or through the new electronic media, remains of fundamental importance to the workings of the liberal democracies; indeed, it is impossible to see how a democracy could exist without a free, pluralist media for the dissemination of information and the discussion of political and social affairs.[1] But the free press does not entail the complete absence of law and regulations. Laws are needed to balance the competing interests of the media and the public.

To a large extent, the media exercises self-restraint as there exists questions of legitimate public concern. The silence of US media about John F. Kennedy’s sexual affairs, both while he was a candidate for the Presidency and later while he occupied that office, and of the English newspaper’s silence about Churchill’s health during the Second World War is often quoted when we debate about the maturity of media. But today, the situation is very different. Revelations about the private life of celebrities and public figure, and the increasing misuse of freedom has raised question as to how much free is, free media? The citizens in many advanced liberal democracies guaranteeing Free Press has started questioning: Are the newspapers and the channels immune? Can media activism endanger reputation, privacy, or even safety of individuals? To what extent is this freedom unfettered as to endanger the dignity of those individual, whom they inform and entertain? Or putting it straight- Do freedom of press necessarily implies freedom of newspapers and electronic channels?

Freedom of Press: US experiences

“Congress shall make no law… abridging the freedom of speech, or of the press…” These sparse words of the First Amendment of the United States Constitution have created a huge literature, a complicated jurisprudence, and a plethora of case laws which marked its get-go in Schenck v. United States[2], where the U.S. Supreme Court went on to decide the constitutional validity of legislation on the basis of the Amendment. To gather the legislative intention behind the amendment, reference is seldom made to the pages of history as there is a paucity of proof but it is undisputed that the Founders affirmed to the Blackstonian position i.e. against the prior censorship of the press.[3] In Konigsberg v. State Bar of California[4], Justice Hugo Black saw the Founder’s intention embedded in the clause and goes on to declared that these words are “the First Amendment’s unequivocal command”, which “shows…all the balancing that was to be done in this field”, insisting “No law” means no law.

In the context of non-constitutional social interest viz. privacy, reputation, repose or public morality, often the debate of ‘Balancing’ vis-à-vis ‘Absolutism’ is marked. The absolutists’ claim being ‘No law’ signifies ‘impermissibility’, never allowed general theorizing. However, the judicial responses in its ad-hoc balancing often given these social interests prevailing effect over the countervailing claims to freedom of speech. The non-acceptability of Black’s view is the evidence of it and the reason being it invalidates many widely accepted restrictions on speech and restrictions that reflect the complexity of the relationship between individual liberty and the interests of the community.

The reason of overweighing a principle while interpreting is never unguided. Similarly, the Supreme Court, while interpreting the First Amendment, had looked forward to the broad purposes of its language in the light of various theories, arguments advanced in justification of the speech and press clause, and the political history and intellectual tradition. These justifications include self-government, individual self-fulfillment, and the attainment of truth. In Times Inc., v. Hill[5], discussing self-government argument observes that a representative democracy is impossible without the active participation of citizenry. Scholars like Blasi[6] believe that the function of free speech and press is to arrest the inherent tendency of government officials to abuse the power while others like Bollinger[7] take it as a safety valve for the release of energy that might be directed towards subversion or violence. The argument from self-realization regards speech as cardinal to human development in Whitney v. California[8]. Lastly as observed by the Court in Red Lion case[9], truth is most likely to emerge only when confronted by its refutation in an arena of free and open debate.

Unlike many of the Constitutions of other democracies, the U.S. Constitution fails to specify what the limits of the freedom, hence leaving the Supreme Court to its own devices when confronted with constitutional challenges to rules or regulations that infringe upon the freedom of speech or press.[10]

Transition: Protectionist Approach to Free Speech

In the case of Brandenburg v. Ohio[11], Brandenburg, a Ku Klux Klan leader was convicted under the Ohio’s criminal syndicalism statute for remarks that he had been taped making at a Klan rally where he had used racially derogatory terms. Ohio’s intermediate court of appeals and the state supreme court dismissed Brandenburg’s appeal. Justice Black and Justice Douglas claiming that the court should abandon the “clear and present danger test” decided that Ohio’s criminal syndicalism law violates freedom of speech as guaranteed by the First and Fourteenth Amendments.

However the broad protection accorded to the political speech in Brandenburg case was foreshadowed by the historic decision in New York Times Co. v. Sullivan[12]. Prior to Sullivan, public officials could sue newspapers and other critics under state libel laws for defamatory utterances and false statements of fact directed towards their official conduct. In overturning such protection, the Court announced that in the future the public officials could recover damages for a falsehood relating to their official conduct only if they could show that the utterances were made “with reckless disregard of the truth”. Thus J. Brennan gave priority to free speech with a very restrictive exception ranking speech superior to the social values of personal honour and reputation. The court pointed out that “erroneous statement is inevitable in free debate” and freedom of expression needs “breathing space” to survive and any other rule would lead to “self-censorship of the press”, deter would-be critics of official conduct, and dampen the vigor of public debate. The court while delivering this judgment cited J.S.Mill approving that even false statements contribute to public debate because then truth emerges vigorously and clearly “by its collision with truth”.[13] Sullivan case invited criticism for its elevation of speech over the countervailing values. However the criticism intensified when the court in Curtis Publishing Co. v. Butts and Associated Press v. Walker[14], Time, Inc. v. Hill[15], and Time, Inc. v. Firestone[16] extended the Sullivan privilege to cover public figures such as football coaches, celebrities and others. J. Brennan was not unmindful of the important social values[17] still in Rosenbloom v. Metromedia[18], he argued that free speech “must embrace all issues about which information is needed… to enable the members of society to cope with the exigencies of their period”.   

Reversal to Dignitarian Argument

In Gertz v. Robert Wetch, Inc.[19], the court limited a newspaper’s constitutional privilege against liability for a false statement of fact. The court shifted its emphasis to J. Stewart approach i.e. the dignitarian argument where the injury is inflicted on a private person caught up in a matter of public interest. J. Powell went on to say “there is no constitutional value in false statement or fact” as “neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust and wide-open’ debate on public issues”[20], though J. Brennan dissented.

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[1] Barendt, Eric., et al(editors), Series Preface, Freedom of the Press, Library of Essays in Media Law, Ashgate Publishing Limited, England, 2009.

[2] 249 U.S. 47; 39 S. Ct. 247; 63 L. Ed. 470 (1919).

[3] Levy, Leonard W., Legacy of Suppression: Freedom of Speech and Press in Early American History, Cambridge, Mass., Belknap Press of Harvard University Press, 1960, p. 13-15 and 214-48.

[4] 366 U.S. 36, 61 (1961)

[5] 385 U.S. 374 (1967).

[6] Blasi, Vincent, The Checking Value in First Amendment Theory, American Bar Foundation Research Journal, 1977, p. 538.

[7] Bollinger, L.C., The Tolerant Society, Oxford University Press, New York, 1986

[8] 274 U.S. 357 (1927).

[9] Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969).

[10] Kommers, Donald P., American Constitutional Law, 3^rd edn., Rowman & Littlefield Publishers, Inc., USA, 2010, p. 739

[11] 395 U.S. 444; 89 S. Ct. 1827; 23 L. Ed. 2d 430 (1969)

[12] 376 U.S. 254; 84 S. Ct. 710; 11 L. Ed. 2d 686 (1964)

[13] Mill, J.S., “On Liberty” in John Garvey, The First Amendment: A Reader, St. Paul, Minn.: West Publishing Co., 1992, p. 59.

[14] 388 U.S. 130 (1967)

[15] 385 U.S. 374 (1967)

[16] 424 U.S. 448 (1976)

[17] Rosenblatt v Baer, 383 U.S. 75, 86 (1965)

[18] 403 U.S. 29, 41 (1971)

[19] 418 U.S. 323 (1974)

[20] Id. 340

B Law: Blasphemy/Black Law

Bloggers are not calendar freaks, journalists are. So, we don’t have to take a U turn @ the end of every year, which is ‘one of the trade’s oldest rituals’ in journalism as Mr. Aroon Purie will tell you. With no obligation to perform any ritual, let me wish you on 13^th day of Jan a Happy and successful English New Year and New Decade. May you never be a Raja! May there be no Adarsh in India!

            When India is in 87^th row in Transparency International’s corruption Perceptions Index 2010, my fingers have to cross 56 more to reach our neighbor. I have no issue when they are worst corrupted than us but the ideological ebbing in that country made me to write this post. Yes! I am talking about the Islamic Republic of Pakistan and the murder of Taseer…

            We in India have cases of Murder by body guards but here the case is slightly diff. No material add but conflicting ‘oughts’ was following the nine bullets of Qadri. It was a war by Islamic terrorists, not against war on terror but to mould Pak with a Cimmerian vision. Zulfiqar Ahmad rightly pointed out it is vision of a world without modern education, without music, without humour. It is a world where women were imprisoned within the walls of their homes, non believers have no rights, children are not allowed to play and sing, and anything that brings joy is banished. And in that visional world, Salmaan Taseer- the Governor of Punjab had to pay the price for calling Blasphemy Law as Black Law. Principles of chartered accountancy and social accountancy are different!! (here social accountancy is diff what you empathise it.)

            Supporting the parliamentary bill, prepared by Sherry Rehman, to modify the anti-blasphemy law was Taseer’s crime. This bill, which was introduced in 1986 during General Zia-ul-Haq, is yet to be tabled and it seeks to eliminate death penalty for blasphemy.Though the basis of ‘two nation theory’ was Religion but untill mid 70s, religion played a marginal role in Pak polity. But the subsequent proliferation of Islamisation have conferred the Islamic terrorists a degree without Convocation. When non believer’s rights are widely acknowledged, Sharia court sentencing Asia Bibi to death for blasphemy and murder of Taseer for supporting her for presidential pardon is a wrong indication to the Rights philosophy and Liberal World. We are not against the Islamisation of that country but the means they have adopted can perhaps be changed. As a citizen of other country it is of no interest to me but in the era of increasing dependency and increasing cross border Egresses these news can’t be kept off just by turning the pages.

SMs failed..

Ya! Both Indian foreign minister S M Krishna (SM1) and Pakistani foreign minister S M Qureshi (SM2) failed to make headway.

SM2 lashed out at India for being “selective” and “not fully prepared” and reversing gears at the last minute. On the other hand, S M1 said all core issues and burning problems between the two sides were discussed and considerable work had gone into preparing for the talks. Yes! It is a paradox, when one is saying it is SELECTIVE, the later is saying ALL ISSUES were discussed. Is ‘all’ means ‘all selective issues’? I think so. But can I ask what were the issues deliberated upon?

SM2 also compared home secretary G K Pillai with JuD chief Hafiz Saeed. But my submission here is: India is responsible for the statement of Mr. Pillai, but is Pak responsible for Saeed’s. What the former said is based on evidence on record but what was the basis of Saeed’s non sense speech? If Pak is ready to take responsibility, it must be understood that it is a terror State. Qureshi said, “We had an extended meeting, looking at various options that will build and restore trust.” But, is this the way of restoring trust? I doubt.

SM2 even alleged the minister lacked the mandate, while the latter come up saying, “There was no ambiguity. I have confined myself to the mandate I was given.” I think its fine. A minister has to confine him/herself to the mandate, which he is given. 

SM2 said “India was narrowing the dialogue…Indian foreign minister received foreign policy directions from New Delhi…” The latter refused it saying, “I did not call anyone.” But even if he called, what’s wrong in it? Was SM2 expecting SM1 to get directions from Islamabad?

SM2 said, if we focus on only one those issues, which India gives importance, it will be difficult to move forward. Why don’t he come to India to discuss what they feel important? He said Pak is a victim of terror and its cities were repeatedly attacked by terrorists. Look here is a common ground. Is this issue, only important to India?

I agree with opposition that we can’t bear insults again and again. But BJP’s demand for “Call off talks” is not a good idea. Talk and talk, until we achieved…Hurriyat chairman Mirwaiz Umer Farooq was right, when he said, “both countries were caught in a ‘jugglery of words and political jargon’.”

Say NO 2 'no-burqa' cl.

After listening, the former Chief Justice of the Supreme Court of India, Justice J. S. Verma, a secular man, in the 2^nd Seervai memorial lecture at KIIT Law School, it is surprising to see the news as reported by TOI - Foreigners who come to live in France should sign a contract recognising that the wearing of the full Islamic veil is banned. The government is drafting legislation to restrict the wearing of the face-covering veil after a parliament report last month called for a burqa ban in all schools, hospitals, government offices and public transport. Morano said the newcomers' contract currently states that …polygamy …not allowed in France (which is again a typical characteristics of Islamic Society).

Again President Nicolas Sarkozy has declared the burqa "not welcome" in secular France and is in favour of legislation to outlaw it. Home to Europe's biggest Muslim minority estimated at between five and six million, France has been debating measures to outlaw the veil even though only about 1,900 women wear the burqa, according to the interior ministry. …all women must show their faces when entering public institutions or boarding public transport and keep their face uncovered throughout their presence there. Failure to do so should result in a refusal to deliver the service demanded. French interior minister Brice Hortefeux said in December that both women who wear veils and their husbands should be 'systematically refused' French residents' permits.

Supporters of a ban argue that the veil is an affront to French values and that it is a sign of a type of creeping fundamentalism that must not be allowed to take hold among French Muslims. In 2004, France passed a law banning headscarves and any other "conspicuous" religious symbols in state schools after a long-running debate on how far it was willing to go to accommodate Islam in its strictly secular society.

When it comes to protection of Christian minority in India, the country like France and other EU members come to the frontline to defame India, to nude India in the international arena. But what kind to minority protection they are talking about, when they carry such horrible and stupid ideas towards Muslim minority in their country. Yes! Secular…. What kind of secularism, they lecture. Is banning minorities’ burqa, your Secularism? You don’t allow the minority to observe their fundamentals and come in between the internal matters of this nation i.e. India, which is a land of many faiths but of one national outlook (P. J. Nehru). However look at my nation... my Secularism is of different kind...a different outlook at anyone else can think of... A novel idea to enjoy, cherish and celebrate. The understanding is that…if a State identifies itself with any particular religion, there will be rift within the State. After all, the State represents all the people, who live within its territories, and, therefore, it cannot afford to identify itself with the religion of any particular section of the population… a State should not identify itself with any particular religion... We have certainly declared that India would be a secular State. …a secular state is neither a God-less State nor an irreligious nor an anti-religious State. This was the dialogue of H. V. Kamat in the Constituent Assembly debates in 6^th Dec., 1948. This is my (country’s) version of secularism. My State honours all faiths and gives them equal opportunities.... 

There is no reason why a French woman should not be allowed to enter a public place. Moreover by not allowing they are forcing them stay at home, and not allowing them to integrate into western societies. A civilized State like France should come out from this stupid idea of 'no-burqa' clause.