A1

India never thought of incorporating something resembling the US First Amendment into its constitution, and the meager protection that article 19(1) offered was not acceptable to Nehru. I am a realist and don’t think it would have survived in any case; there is no country in the world where the absolute right to free speech is protected.

But the idea, the principle behind it, is interesting nonetheless. Stanley Fish writes about the recent US Supreme Court decision protecting a corporation’s right to free speech-

The idea that you may have to regulate speech in order to preserve its First Amendment value is called consequentialism. For a consequentialist like Stevens, freedom of speech is not a stand-alone value to be cherished for its own sake, but a policy that is adhered to because of the benign consequences it is thought to produce, consequences that are catalogued in the usual answers to the question, what is the First Amendment for?

Answers like the First Amendment facilitates the search for truth, or the First Amendment is essential to the free flow of ideas in a democratic polity, or the First Amendment encourages dissent, or the First Amendment provides the materials necessary for informed choice and individual self-realization. If you think of the First Amendment as a mechanism for achieving goals like these, you have to contemplate the possibility that some forms of speech will be subversive of those goals because, for instance, they impede the search for truth or block the free flow of ideas or crowd out dissent. And if such forms of speech appear along with their attendant dangers, you will be obligated — not in violation of the First Amendment, but in fidelity to it — to move against them, as Stevens advises us to do in his opinion.

The opposite view of the First Amendment — the view that leads you to be wary of chilling any speech even if it harbors a potential for corruption — is the principled or libertarian or deontological view. Rather than asking what is the First Amendment for and worrying about the negative effects a form of speech may have on the achievement of its goals, the principled view asks what does the First Amendment say and answers, simply, it says no state abridgement of speech. Not no abridgment of speech unless we dislike it or fear it or think of it as having low or no value, but no abridgment of speech, period, especially if the speech in question is implicated in the political process.

The cleanest formulation of this position I know is given by the distinguished First Amendment scholar William Van Alstyne: “The First Amendment does not link the protection it provides with any particular objective and may, accordingly, be deemed to operate without regard to anyone’s view of how well the speech it protects may or may not serve such an objective.”

In other words, forget about what speech does or does not do in the world; just take care not to restrict it. This makes things relatively easy. All you have to do is determine that it’s speech and then protect it, as Kennedy does when he observes that “Section 441b’s prohibition on corporate independent expenditures is . . . a ban on speech.” That’s it. Nothing more need be said, although Kennedy says a lot more, largely in order to explain why nothing more need be said and why everything Stevens says — about corruption, distortion, electoral integrity and undue influence — is beside the doctrinal point.

An excellent piece which ought to make one think about jettisoning utilitarian/ consequentialist positions and adopting principled ones. That anyone alive today will never see an India where this idea finds broad acceptance is something one has to get used to.

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Comments

  • Mohit  On February 13, 2010 at 9:11 am

    An excellent piece. Thanks for sharing.

    “jettisoning utilitarian/ consequentialist positions”
    … Is much easier said than done. Most people don’t even try to adopt principled positions. Governments, nations, communities are aggregates of people, so they don’t try either. It is always “what policy leads to the best outcome” yadda yadda.

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