Whenever we discuss freedom of speech, people throw around inchoate aphorisms to justify why the right should be disturbed.
Two of such aphorisms are “freedom of speech is not absolute” and “you cannot shout fire in a crowded theater.”
Regarding the first, the mere fact that a right is not absolute does not mean government has an absolute power to disturb it. Regarding the second, it is true but only to the extent that it is a false alarm. In fact, we would want people to shout fire, to alert others, when there is fire in a crowded theater.
The proper meaning of both aphorisms is that the extent to which government can disturb the right depends on the nature of the speech.
Consider the case of advertising. It is an example of commercial speech where the advertiser tries to give the consumer reasons to prefer its products or services over others. Government can easily regulate or in extreme cases ban this type of speech to protect consumers. For instance, government can ban advertising of the sale of cigarettes, aphrodisiacs or even alcohol or restrict these types of speech to certain times (e.g., when kids are supposed to sleep).
A second example is pornographic speech. There will be nothing in the Constitution itself or any of the committee of experts’ reports, since we started writing constitutions, to suggest that the protection of such speech was contemplated by the framers. In fact, given our puritanical norms, the opposite might be expected. Thus, the government can easily regulate that speech.
Talking about committee of experts raises the question of what type of speech they have in mind when they provide for free expression. Reading their reports, it is abundant that they are referring to speech to hold government, broadly defined, accountable and to offer political ideas to voters. For such political speech, the Constitution offers maximum protection. In fact, speech made in Parliament is protected from even civil liability.
Such maximum protection is informed by our sordid history where governments, military and civilian, have arrested, detained and harassed opponents for stating contrary political views. It is also necessary because political speech is the glue that enables, flourishes and sustains democratic governance.
In our recent history, victims include Kweku Baako, Haruna Atta, Tommy Thompson, Kennedy Agyepong, Koku Anyidohu, Dan Botwe, Arthur Kennedy, Apostle Barnabas, Asamoah Boateng, Free Press, Catholic Standard, etc. (Incidentally, the Court too have created its own victims with its recent invasion of the political square).
Thus, when it comes to political speech, I have consistently, unrepentantly and unregrettably argued and will continue to argue that government cannot regulate it. As such, the Police and BNI have no business monitoring it, evaluating it or otherwise taking actions that interfere with it.
Does this imply that politicians always make responsible speech? No, quite the contrary. I think they often make reckless and irresponsible speech. However, the proper antidote to such irresponsible and reckless speech, is for others to condemn them, ostracize the perpetrators, show the way with responsible speech and for the voters to reject such politicians.
Of course, political speech may cross the line and veer into the highway of incitement to constitutional disorder. Such crossing must be evidenced by intent, imminence and the reasonable likelihood (not just possibility) of the feared disorder. It is a threshold that is so high that I cannot imagine any politician crossing it in the ordinary course of political business.
I must therefore end with a statement that will unsettle the speech puritans. I cannot find anything wrong with someone saying if our politicians do not stop the corruption we may see a coup. The person who utters such an opinion has not made a factual statement. In fact, he has not even said he likes coups. He may hate them, hence the warning. The person has merely expressed a political opinion that is protected by the Constitution.
The right to speak freely is not there to protect responsible speech. It is there exactly because we want to protect reckless speech. To regulate political speech is to attack democracy itself.
Source: Professor Kwaku Asare