Freedom of expression proposal

I've been doing some political blogging recently under the name 'melektaus' for hiddenharmonies. This is mainly a China watchers site. I've also been reading up on some of the jurisprudential arguments on the limits and foundations for free expression.

Last year, the Chinese intellectual Liu Xiaobo was sentenced to some years in prison in China (under the article 105 of their criminal anti-slander statute). He was awarded the Nobel Peace prize in abstentia. The Chinese government convicted him of slandering the state and inciting the overthrow of the state. These charges Liu does not deny. Some of the charges against him do seem to suggest that he did slander the state and advocated for some atrocious actions (such as waging aggressive wars and colonization).

But was his imprisonment just? The Chinese laws are much stricter than contemporary American laws on the freedom of expression. US laws are probably the most permissive in the world despite the fact that recently in the last 10 years some people have been sentenced to prison for making youtube videos, for selling cable subscriptions, and two Americans have even been assassinated for nothing ostensibly more than making recruiting videos for al Qaeda. But overall, it's still quite permissive.

Now many European laws against the freedom of expression are much more restrictive. You can be sentence to serious prison for things like Holocaust denial, teaching one's dog the Nazi salute, for calling a royal family member a "whore," for posting racist web messages, for insulting homosexuals, for posting offensive youtube videos of dead people and so forth.

So it would seem that Europe and China are at one ends of the spectrum and the US is at the other end (unless you include places like N. Korea or Iran or Myanmar which is probably even far more restrictive than Europe and China). Is there a golden middle?

I argued in the blog's thread that Liu's sentenced was too harsh and that China (and Europe) ought to amend its laws to allow more freedom of expression. I proposed what I called a "two-tiered" approach. This is just a rough sketch of what I propose.

Things like defamation, either individual or for groups (this includes hate speech), should be a civil matter with decisions being merely declaratory unless there is proved “actual malice” (or something similar along those lines meaning either “knowledge the information was false” or “reckless disregard for its truth or falsity”).

Declaratory decisions mean that decisions are not punitive or demand any civil awards but merely a declaration from the court ruling that one group had been slandered or libeled. This itself ought to provide much of the desired social effects. Many people who sue for slander or libel sue as a matter of “principle”, to restore their good name and so forth and not to receive a monetary award or even to punish those who had defamed them.

It is important that the courts then make the reasons given for its decision public so that the public can see that there is evidence and reason that supports the court’s decision. Proof that one side had indeed been unjustly defamed is important to the wronged party to restore his or her good name.

In cases where actual malice is proved (see New York Times v. Sullivan) criminal punitive measures may be justified and perhaps punitive awards awarded if there is proved damage done (to the defamed person or group).This “two-tiered” approach should allow for substantial amounts of free speech. When a court decides in a declarative decision that some person or group has been defamed, that decision will have weight in future criminal cases if the same defamatory material is used in the future against victims. So if others or the defendant continues to use the same defamation against the victim(s) of the defamation and this is coupled with the motive of actual malice then there may be criminal or civil prosecution with actual punitive measures or monetary awards awarded to the defendant.

Now this would allow many forms of free speech, even demonstrably false speech, and even some cases of “hate speech.” Liu e.g., was sentenced to prison for slandering the state and inciting the overthrow of the state. I think that his imprisonment is harsh. I don’t agree with the Chinese laws.

Under my proposal, the government, if they feel they have been slandered, may sue Liu (in an impartial court of law) for a declarative statement that they were slandered. If the courts judge that the evidence suggests that the government had been slandered by Liu and they win, such a declaration is “in effect”. Now if others or Liu continue to defame the state using the same claims or similar claims and moreover, do so with actual malice (which is now much easier to prove with the declarative judgment), the government may proceed with criminal proceedings (either punitive awards or prison, probation, etc).

Now actual malice, as shown by the NYT v. Sullivan decision is often in practice difficult to prove and many may continue to use false speech if they do so without malice (in complete ignorance of the facts and the declarative judgment e.g.) but it will be far more difficult to do this with the courts declarative ruling made public. This difficulty in practice to prove malice will give substantial freedom for speech which I think is desirable.

One may also add an immediate harm criterion to the above malice criterion. That is, the state will also have to prove that the slander causes the state immediate harm or potential for civil unrest, etc. This criterion will add further legal hurdles to protect freedom of expression while allowing for the banning of some forms of hate speech or defamation.

Some forms of hate speech may thus be completely criminally outlawed but only done so after considerable legal hurdles are cleared (to prevent abuse of the system and to protect some degree of freedom of expression).

For example, consider, say, that some Tibetans or pro-Tibet groups inside Tibet continue to slander and libel the Han Chinese inside China using the rhetoric of genocide or colonization and so forth. Hans, under some kind of class action suit may sue the organizations or individuals responsible for spreading that defamation. If the courts are convinced based on evidence presented by the Han legal representatives that such claims are false and defamatory, then a declarative judgment is ordered in support of the Hans. If these Tibetan individuals or groups continue to spread such defamation against the Hans, in clear-eyed knowledge of the declarative judgment in favor of the Hans, the state may then seek to prosecute the groups or individuals responsible for maliciously spreading hate speech. It would then be a criminal matter and punitive judgments may be meted.

Now the government may also criminally prosecute directly without any prior declaratory decision if they can prove malice, etc but this in practice will be avoided by prosecutors because it will make it more difficult to prove malice when there was no declaratory judgment in force to show that the defendant ought to have known his claims were defamatory. So in practice, this will mostly be set up as a de facto two-tiered system protecting people's right to say false things about individuals and groups including hate-speech but that they cannot do so or that they are subject to criminal prosecution if they continue to defame others using the same or similar material in clear-eyed knowledge of the declarative judgments contents. This would then also protect individuals and groups from continued defamation.

Sometimes, further evidence which wasn't available at the time of some declaratory statement is made available and the defendant may have further (this time more justified) ground to make the same accusations against the person that had been slandered. If so, the criminal court may decide that this further evidence may now justify the accusations and if the former victim wish for the accusations to stop, she will have to sue the defendant again for another declaratory judgment this time under the new juridical justification that new evidence supporting the truth of the accusations is available to the accuser. But if the criminal court feels that the "new evidence" is not sufficient to sustain the old charge against the defendant or that it is not relevant, they may then decide to proceed with criminal portion of prosecution.

What about cases such as ones similar to the German man that taught his dog the Nazi salute? In this case, there is only an expression of hate and it is an expression without much or any cognitive content (actually, I have argued elsewhere that expressions of this sort do have significant cognitive or propositional content). Since cases such as this are almost pure instances of malice without any propositional content, they may be outright prosecuted because the actual malice criterion (or something similar) is already automatically, by the very nature of the expression, satisfied. Those who do acts such as this or shouting slurs at people from cars and so forth do not wish to engage in dialogue are are merely using words like a bludgeon, i.e., maliciously. I see no problems even under this two-tiered system to go ahead straight away with criminal prosecutions. Such kinds of "speech" do not further public democratic discourse, the very thing that the 1st Amendment was designed to protect.

This system will be in practice similar to the US's conception of the limits of free expression before the 1970s. Subsequent Supreme Court judgments have overturned, in my opinion, many good anti-defamation statutes. Most states do not have any criminal defamation laws (including for hate speech) and those that do are effectively been abolished in practice (with only a few law suits filed in the last 20 years with no convictions AFAIK). There are important dissimilarities between my system and the old US one. My system is fundamentally a dual "two-tiered" system for all practical purposes. This proposal is a happy medium between the very permissive (and I think harmful) freedom of expression laws in the US and the more oppressive (also harmful) laws of Europe and China.

Principle of reciprocity and liability transparency

I outlined a scenario before about two nations going to war. One of these nations is an unjust invader of another nation's territory. Call the aggressive unjust nation "Eveville," and the nation they invade "Utopia." Meanwhile, Eveville has a neighboring country call it, "Switzerland" that is neutral in the matter. In the following scenario, the situation is a little different than the original blog's but the situations are still similar and I will draw two distinctive lines of possible ways of thinking about the right of two nations to defend itself from each others military acts when both nations are just actors.

Now most (excluding hardlined pacifists) would argue that Utopia has a right to defend itself against unjust invasion and occupation even if it uses deadly means. I agree. Assume that we are right. Now Utopia is a poor country and the only means of defense they have is using crude weapons which may foreseeably harm the citizens of Switzerland (the weapons used may go astray or the damage done extend to and kill a few Swiss) when implemented in defense against their neighbors Evevillians upon the later's invasion. Let's assume that Utopians have no other plausible means defend themselves.

The question is, does the Swiss have a right to "defend" themselves against the Utopians in their defensive measures which may unintentionally but foreseeably harm the Swiss? I will call the Utopians in this scenario an "innocent threat" because they pose a threat to the Swiss but in doing so, they are merely acting innocently because their intention is only to defend themselves against the aggressive military actions of the Evevillians.

To summarize, the Evevillians launch an unjust attack on the Utopians. Utopians then counter attack but that counter caries significant risk of death to many of Eveville's neighbors, the neutral Swiss. The question is does the Swiss have a right to attack Utopia to try and stop Utopian's defense of itself against Eveville?

Now some may say that the Swiss has a right to defend themselves against the (defensive) actions of the Utopians even by deadly means if the risk their citizens will be killed by a stray or overextending defensive measure is used by the Utopians against the Evevillians. But does the Utopians have a right to then attack Switzerland to counter this counter measure? Some may say that that is also permissible. In other words, some would say that both are permissible to attack each other. But some would go on to say that though both are permitted to attack each other, only one side may be justified. This would depend on how great the harm posed by the invasion of Utopia is. If the harm is greater than the the calculated risk of unintentional harm inflicted on the Swiss, only the Utopians are justified in attacking the Swiss to prevent them from defending themselves against.

I want to now propose a principle here called the principle of reciprocity. This principle is based on counterfactual reasoning. If the Swiss were in the same position, the "same shoes," ceteris paribus, as the Utopians, i.e., they were being unjustly attacked by the Evevillians, would they think it justified to defend themselves even at great cost to a neutral country (say, the Utopians which has the reversed relationship to the Swiss in this counterfactual)?

If the answer is 'yes', then there is reciprocity and the Swiss may not justly attack the Utopians to stop their defensive attack on the Evevillians. If the answer if 'no' then they may. This principle has a distinctly contractarian flavor. What is permissible and justified depends on what parties would do if they had switched roles, if "the shoe was on the other foot".

But I think there are other options besides the principle that we should also consider. Perhaps we could also think that the Swiss do not have the right to attack the Utopians but do have a right to attack Eveville for it is Eveville that initiated this spiral of violence forcing Utopia into a defensive position but also putting the Swiss in grave danger of a defensive attack that overextends the harmful effects to them as a neutral neighbor. So the Swiss cannot maintain their neutrality because the aggressive unjust behavior directed at others also ultimately will affect it in adverse ways. In other words, perhaps the Swiss ought to see Eveville's attack on Utopia as "transferring" to its own territory, as an indirect attack on Switzerland. Thinking it as an indirect attack on its own nation will then destroy its conception as a neutral neighbor and thereby force it to see itself as a participant in being unjustly attacked. This will then give it the right to attack Eveville or to assist Utopia in her defensive actions.

I prefer the last conception of just war. My example shows with this tricky dilemma of the limitations of an isolationist and neutral mindset in the modern world. Injustices to one country often has multiplier and chain effects of violence that extends to others not directly involved and that these multiplier and chain effects pose serious problems for international justice. Modern warfare, by its very nature, almost always includes significant innocents at risk whether they be just combatants, civilians of just nation, or civilians of even a non-attacked neutral country.