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Freedom Of Speech
Lean liberty is better than
fat slavery
By: Heval Hylan
Mar 14, 2006
Freedom of
speech is often regarded as an essential
concept in modern
liberal democracies,
where it is understood to outlaw
censorship.
Free speech is also supported by International Human Rights proclamations,
notably under Article 19 of the
Universal Declaration of
Human Rights, although implementation remains lackluster in
many countries. This article is about the general concept of freedom of speech
in Kurdistan, North of Iraq.
It is
important to understand the various theoretical rationales for freedom of speech
if we are to form views about the concept's true nature and its rational
limits. The justification for a freedom of speech is a general presumption
against coercing individuals from how they would like to live and communicate in
their daily lives. The cocercion is nothing new to the modern age. In other
words, some form of restriction or embargo was existing way back to 17 century.
Therefore,
dilemma of freedom of speech is as old as ancient Greece. The Athenians, who
cherished individual freedom, nevertheless prosecuted the philosopher Socrates
for his teachings, claiming they corrupted young people minds and insulted the
Gods.
The philosopher
Tocqueville
observed that people might be hesitant to speak freely not because of fear of
government retribution but because of social pressures. When an individual
announces an unpopular opinion, he/she may face the scorn of their community or
even be subjected to violent reactions.
The right to
freedom of expression is not considered unlimited; governments may still
prohibit certain damaging types of expressions. Under international law,
restrictions on free expressions of speech are required to comport with a strict
four parts test.
For
example, in the Court case of R v Keegstra, Justice Beverley McLachlin
of Canada identified the following four part test
“Quote”
(1)
free speech promotes "the free flow of ideas essential to political
democracy and democratic institutions" and limits the ability of the state to
subvert other rights and freedoms;
(2)
it promotes a marketplace of ideas, which includes, but is not limited
to, the search for truth;
(3)
it is intrinsically valuable as part of the
self-actualisation of speakers and
listeners; and
(4)
it is justified by the dangers for good government of allowing its
suppression
“ Unquote”
Every
government has followed a particular style of censorship of freedom of speech.
Some of the recent examples the government world over followed are:
In the
United Kingdom Parliament passed the
Serious Organised Crime
and Police Act in
2005 banning
protest without permit within 1km of Parliament. The first conviction under the
Act was in December 2005, when
Maya Evans was
convicted for reading the names of British soldiers and Iraqi civilians killed
in the
Iraq War,
under the
Cenotaph,
without police permission
The
Chinese
government has developed some of the most sophisticated forms of internet
censorship in order to control or eliminate access to information on sensitive
topics such as the
Tiananmen Square protests
of 1989,
Falun Gong,
Tibet,
Taiwan,
pornography or
democracy.
They have also enlisted the help of some US companies like
MSN, who have
subsequently been criticized by proponents of freedom of speech.
In
Finland, a new
copyright law
was enacted in October 2005, which prohibited
communication
about certain encoding methods and bypassing them.
Recently one of the Indian
states namely Chhattisgarh passed a law in the state assembly in effect banning
the media from reporting the activities of Maoists.
Besides the
above, few governments pursued other aims considered legitimate for protection
of the rights and reputations of others (prevention of
defamation),
and the protection of
national security
and public order, and morals.
Some suggest that due to the above factors, citizens refrain from voicing their
discontent because they fear retribution.
Defenders of free speech often allege the main reason why governments suppress
free speech--to avoid accountability.
Opinions however vary widely among people from different nations and cultures as
to why and when restrictions are imposed and what is the threshold to allow or
disallow freedom of speech.
The ‘modern’
Kurdish conception of freedom of speech ought to be driven from the principles
of freedom of the press (mainly in the context of political criticism) and
freedom of religion (mainly in the context of religious toleration).
The freedom of
speech in Kurdistan for the next decade might be dominated largely by people’s
protection of oral and socially marginal communicators, of whom the most
important are the people prepared and equipped with a collective way of thinking
and digesting critics.
Contemporary
understandings of freedom of speech in Kurdistan, however, owe even more to
developments in the early 1990s, during which no-fly zone created and the Kurds
began to rely on themselves in all aspects, and the most important manifestation
of this transfer started in 1990s, when the Kurdish people for the first time in
modern era went to ballots to vote and elect their representatives.
The elections
itself with some consistency recognized the right of free speakers in the
"public forum" to articulate ideas that not only were in opposition to
established military and political authority but also were highly likely to
offend unwilling listeners or viewers.
In the mid
1990s, the Kurdish people expected that the Regional Governments be at levels of
understanding that the protection of the Kurdish peoples with some frequency
particularly those who desecrated self-elected leaders. This is because
according to such un-elected (due to malpractice committed by them during
election) leaders understanding conveyed messages often as likely to be harmful
and offensive.
Operating on the
assumption that under regulation of even harmful speech was the only way in an
imperfect Kurdistan to protect against the overregulation of harmless speech,
the Federal Government in Kurdistan
went from the protection of the speech to protection of self- rules.
Indeed, it is Dr
Kamal’s case in late 2005 and early 2006 brought the public awareness that in
establishing an extraordinarily strict understanding of the idea of clear and
present danger. Speech leading to uncover the truth or other unlawful activities
can be restricted if it touches the ‘sensitive’ and hidden realities of powerful
leaders.
A classic
argument for protecting freedom of speech as a fundamental right is that it is
essential for the discovery of truth. This argument is particularly associated
with the British philosopher
John Stuart Mill, which we don’t go
in details in this article.
Also, Justice
Oliver Wendell Holmes wrote that:
"the best test of truth is the power of the
thought to get itself accepted in the competition of the market, and that truth
is the only ground upon which their wishes safely can be carried out."
The
International Freedom of Expression Exchange (IFEX), founded in
1992, is a
global network of 72
non-governmental
organisations
that promotes and defends the right to
freedom of expression.
Member organizations report
freedom of expression
abuses on regular basis. Despite that, the freedom of speech in many countries
that dictated by non-elected government or leaders that taken over the power
from his father/grandfather, including Kurdistan is literally marginalised by
various groups.
As a human
rights lawyer, it is obvious to me that in Kurdistan the legal doctrine of
freedom of speech has not translated into public understanding or freedom in
fact, but the result of a large number of international pressure on the Kurdish
leaders in Dr Kamal’s case created a sort of quasi protection awareness
that has created an environment in which the presence of unpleasant speech might
take for ‘granted’ in the next ten years or so by most of the public, whether
they agree with that state of affairs or not. There will, of course, continue to
be disputes about the actual boundaries of this very broad principle.
However, since
the beginning of the 1991, the Kurdish Governments have struggled to find a
proper name and a legal definition for defamation, free speech, expression and
the extent to which freedom of speech should be protected. We might agree with
Justice Oliver Wendell Holmes, Jr. from USA, who felt that the law allows some
restrictions on speech under certain circumstances.
To illustrate
this point, in the Court case of Schenck v.
United States, 1919,
Holmes wrote:
"The most stringent protection of free
speech would not protect a man in falsely shouting fire in a theater and causing
a panic".
That is true,
but did Dr Kamal shout fire in the Capital city of Kurdistan Arabil. The
Governments in Kurdistan might pretend making attempts to regulate the exercise
of speech rights in traditional or Islamic manners, but did they examine whether
the short steps to regulation restricts the content of the speech or merely
regulates the time, place, and manner in which the speech is delivered.
If the law in
Kurdistan regulates the content of the expression that must serve a forceful
Islamic Iraqi government
or Kurdish Federal governments interest and must be narrowly written to achieve
that interest, then laws that control the content, of speech in a public forum,
but not time, place, and manner, receive less scrutiny by the Kurdish people
than do laws that restrict time, place, and manner.
These so-called
content-neutral laws are permissible if they serve a significant Government
interest and allow ample alternative channels of communication. It is not
necessary that a content-neutral law be the least restrictive alternative, only
that the government's interest would be achieved less effectively without it.
Laws that limit
inciting or provocative speech, often called fighting words, or
offensive expressions are subject to strict public scrutiny. It might be
accepted due to inexperience in human rights that Government may impose content
regulations on certain categories of expression such as “do not play with the
fire”.
It seems that
there is an urgent need for a number of (Non-Arab Islamic) laws in Kurdistan
to be passed to attempt to regulate or ban "hate speech," to define it as
utterances, displays, or expressions of racial, religious, or sexual bias.
The prohibitions
on nudity dancing of words and other ways of expression on the ground that it
is/was part of a general taboo cannot dress-up easily in an open society such as
in Kurdistan.
What needed in Kurdistan is integral
to tolerance, because the freedom of speech is integral to tolerance, which some
people feel should be a basic value in society.
Professor
Lee Bollinger
is an advocate of this view and argues that:
"the free speech principle involves a
special act of carving out one area of social interaction for extraordinary
self-restraint, the purpose of which is to develop and demonstrate a social
capacity to control feelings evoked by a host of social encounters." The free
speech principle is left with the concern of nothing less than helping to shape
"the intellectual character of the society".
Moreover There
will also be room for commercial speech, usually in the form of advertising,
enjoys some future law protection, caretaker, but might not to the same degree
as that given to non-commercial forms of expression. Generally, commercial
speech that is not false or misleading and does not advertise illegal or harmful
activity may be restricted only to further a substantial government interest and
only if the restriction actually furthers that interest.
The law in Kurdistan should
protect open and robust debate on public issues such as Rule of Law, Role
relationship of the government with judiciary, executive and legislature - even
when such debate includes, vehement, caustic, unpleasantly sharp attacks on
government and public officials. There no balanced the individual’s interest in
preserving his reputation against the public's interest in freedom of
expression, particularly in the area of political debate.
Although free
speech is a far cry in Kurdistan than in any other part of Iraq, still there is
no freedom of speech in Arab culture or in Islam in general. We understand that
many Kurds have been well educated from overseas and has liberal thinking and
also keen to promote freedom of speech. While in overseas, the Kurds play an
important part and remain champions of freedom of speech – but again
unfortunately, the Islamic laws and values largely condition their thinking when
they return to native land.
Nonetheless, I think that this is one area
where slopes can be very slippery. I’ve always been fond of Benjamin Franklin’s
line that’s usually paraphrased as
“Those who would trade a little freedom for
a little security deserve neither.
The original line, less pithy, was “
They that can give up essential liberty to
obtain a little temporary safety deserve neither liberty nor safety. I’d rather
err on the side of a little too much freedom of speech than on the side of too
little.
Finally, I recall Walt Whitman’s famous saying:
“What do you suppose will satisfy the soul,
except to walk free and own no superior”.
We
recognize that there are limits on what we can say and write, but I don’t feel
that that fact justifies imposing more such boundaries.
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