Rights as trumps and order as counter-trumps: re-examining free speech theory in an era of fear, hate and lies

A deterrent sentence was imposed to underscore the gravity of the act, “the especial sensitivity of racial and religious issues in our multi-cultural society, given our history of the M[r]

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RIGHTS AS TRUMPS AND ORDER AS COUNTER-TRUMPS: RE-EXAMINING FREE SPEECH THEORY IN AN ERA OF FEAR, HATE AND LIES

Professor Thio Li-ann Faculty of Law, National University of Singapore

INTRODUCTION

The constitutional order embodies an arena where interests compete; in interpreting constitutional liberties, relevant interests are identified, weighed and accorded value; these may be optimalised, in ensuring no interest is overridden, such as through subjecting rights to reasonable or proportionate restrictions, as opposed to statist criteria such as expediency which may render a right nugatory Although this process encounters difficulties in identifying relevant interests and in constructing the metric for assigning weight to them1, this method of balancing rights and competing interests is viewed as a rational form of decision-making

To speak of rights as trumps entails according ultimate or determinative weight to rights, such that government interests cannot operate to restrict that right This represent a categorical rather than a balancing approach, as paramountcy is accorded to rights to protect the value of normative individualism There may be counter-trumps in the form of statist imperatives, which reduce rights to defeasible interests rather than peremptory norms Invoking ‘rights as trumps’ or ‘statist imperatives as counter trumps’ both fail to appreciate that ordered liberty is arrived at through balancing rights against competing rights, duties, and public goods2, implicating “ societal values, pluralism, prevailing social and economic considerations as well as the common good of the community”3 While insufficient protection to free speech may sustain autocratic governance, free speech rightism may bring about the negative prospect of “a society premised on individualism and self-interest”4 Rights theory addresses the issue of how to delineate the boundaries of legitimate state intervention

1 T Alexander Aleinikoff, ‘Constitutional Law in the Age of Balancing’ (1987) 96 Yale LJ 943

2 Li-ann Thio, ‘Protecting Rights’ in The Evolution of a Revolution: 40 Years of the Singapore Constitution (Routledge-Cavendish 2009), Li-ann Thio & Kevin YL Tan eds., 193-233 The Court of Appeal has distinguished between fundamental, paramount, co-equal and subsidiary rights, all attracting different weightage: Review Publishing Co Ltd

v Lee Hsien Loong [2010] SLR 52 at [286]-[289]

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RIGHTS AS TRUMPS AND ORDER AS COUNTER-TRUMPS: RE-EXAMINING FREE SPEECH THEORY

Free speech theory grapples with a great deal of complexity unsuited to thinking in terms of ‘trumps,’ which are too blunt a tool to navigate the brave new landscape shaped by the advent of the internet age1 and the viral spread of information or misinformation; its vales have been cut by desires to subvert communication in favour of agenda advancement, engendering an often toxic political tribalism characterised more by ad hominem ‘arguments by insult’ designed to silence opponents rather than reasoned debate2 In an era of ‘woke’ culture, consider the tactic of ‘no platforming’ which silences debate on American college campuses3, shouting down opponents such that arguments are ‘won’ by volume, not reason Even some academics who self-identify as liberal, who are traditionally at the frontline of defending academic freedom, now seek to enforce their orthodoxy by hurling the new weapons of “offense” and “hurt” to silence speech For example, an Oxford theological professor met virulent objectors to his attempt to organise a conference on the benefits of colonialism; these self-appointed czars of the gateway to academic inquiry insisted this project “should have no place in academic scholarship”4.

Clearly, private persons can ‘horizontally’ chill the speech of other private persons, particularly online speech5, which they consider intolerable or offensive and which they seek to remove or suppress through abusive invective, bullying and threats The negative liberty of free speech can thus be deployed to violate another’s free speech rights.6 Indeed, corporate entities such as Facebook, Google, and Twitter control platforms for expression and have the power to censor and promote their preferred views7; this thwarts the free ‘marketplace of ideas.’ The media, an anchor of open society, has been decried as a ‘feral beast’8, forsaking truth and balance in the interest of “impact journalism”; the ideological bias of even papers of record like the New York Times is apparent, in a world where narrative trumps truth or facts, where news is conflated with views, where the media operates as a

1 Victoria Nash, ‘Analyzing Freedom of Expression Online: Theoretical, Empirical and Normative Contributions’ in

Oxford Handbook of Internet Studies, William H Dutton ed., (OUP, 2013)

2 Barry Richards, ‘The Emotional Public Sphere and its Importance: Freedom of Speech as a Case Study’ (2018) 12 International Journal of Communication 2040-2051

3 Ayaan Hirsi Ali, ‘The “No Platform” Brigade, 31 Jan 2018, Hoover Institution, https://www.hoover.org/research/ no-platform-brigade; ‘ Eric Heinze, ‘UC Berkeley, Donald Trump and the muddled ethics of no-platforming’, The Conversation, 14 Feb 2017 at http://theconversation.com/uc-berkeley-donald-trump-and-the-muddled-ethics-of-no-platforming-72609 Cass Sunstein notes that “most unfortunately, some people on the left, especially on college campuses, seem willing to give up on freedom of speech when they are offended by what people have to say.” ‘The left and the right: consistent on free speech’, July 2019

4 John Lloyd, Commentary: what to when liberals are the censors?’ Reuters, 18 Jan 2018 at https://uk.reuters.com/ article/us-lloyd-speech-commentary/commentary-what-to-do-when-liberals-are-the-censors-idUKKBN1F825Z Thio Li-ann, ‘The Virtual and the Real: Article 14, Political Speech and the Calibrated Management of Deliberative

Democracy in Singapore’ (2008) Singapore Journal of Legal Studies 25-57.

6 Michelman has argued that certain speech (like pornography) can have a “silencing” effect so as to prevent other people from exercising their negative freedom to speak If I speak and you engage in simultaneous and/or abusive speech, you may intimidate me into silence or otherwise prevent me from effectively communicating my views: Franck Michelman, ‘Conceptions of Democracy in American Constitutional Argument: The case of Pornography Regulation (1989) 56(291) Tennessee Law Review 303-304

7 ‘Famed Atheist Deletes Patreon Account over banning of anti-leftists’, Daily Wire, 17 Dec 2018 at https://www dailywire.com/news/famed-atheist-deletes-patreon-account-over-banning-hank-berrien

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political actor with its own agenda, generating social distrust Calls to censor speech to manage fears of public disorder or to protect dignitary harms fuel demands to regulate ‘hate speech,’ demonstrating another path to the view that free speech is not a primary right1 This brings with it the problem of criteria and arbiter - who defines what constitutes ‘hate’? Does this relate to physical or psychological harm? Is hate speech about inciting violence or insult? Prohibiting merely offensive speech is not a salutary approach, given that offense can easily be claimed, indignation manufactured for political gain, as hate speech and cognate legislation can be weaponised to silence competitor views2 Hate speech might well be the new blasphemy law3.

Under international human rights standards, free speech is not an absolute right, and there are cases where substantive limitations are warranted: Article 20(2) of the International Covenant on Civil and Political Right provides: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”4 A group of experts at a UN sponsored meeting issued the Rabat Plan of Action (2012)5, correlating ‘incitement’ to statements creating an “imminent risk” of discrimination, hostility or violence against persons belonging to a group; ‘hatred’ and ‘hostility’ were terms referencing “intense and irrational emotions of opprobrium, enmity and detestation towards the target group”6.

“Irrational emotions” is a vision of human nature quite distinct from that of the rational person to whom free speech, particularly political speech, is important as it facilitates engagement in the democratic process Where emotions hold sway, does the cliché that sunlight is the best disinfectant still hold true, insofar as views openly expressed may be evaluated and countered? Do the rationales for free speech, heavily influenced by 20th century American First Amendment jurisprudence, remain appropriate and compelling in the 21st century? Given that constitutionalism is a site where “national history, custom, religion, social values and assumptions about government meet positive law”7, local particularities shape an understanding of the human person and human nature which may implicate the contours of free speech jurisprudence? What is the vision of the individual, the community and the state in liberal and non-liberal constitutional orders, in this respect?8 How does

1 Sydney Kentridge, ‘Freedom of Speech: Is it a Primary Right?’ (1996) 54(2) ICLQ 253-270

2 Cherian George, Hate Spin: The Manufacture of Religious Offense and its Threat to Democracy, (MIT Press, 2016) Blasphemy was described as “an act of violence to the mind and spirit and deeply spiritual feelings” of the millions

of people “capable of entertaining such feelings It is an assault upon the mind and spirit just as much as mayhem is an assault upon the body.” Abusive attacks against God to a believer constitute “the verbal equivalents of acts of desecration.” Earl of Halsbury, Hansard (H.L.) vol 389 col 290, 23 Feb 1978, Blasphemy (Abolition of Offence) Bill 999 U.N.T.S 171

5 UNHCHR Annual Report, Addendum, Report of the UN High Commissioner for Human Rights on the expert workshops on the prohibition of incitement to national, racial or religious hatred A/HRC/22/17/Add.4 (11 Jan 2013) See generally, Jeroen Temperman, Religious Hatred and International Law: The Prohibition of Incitement to Violence

or Discrimination, (Cambridge University Press, 2015)

6 This draws from the Camden Principles: Article 19, Global Campaign for Free Expression, The Camden Principles on Freedom of Expression and Equality (April 2009): https://www.article19.org/data/files/pdfs/standards/the-camden-principles-on-freedom-of-expression-and-equality.pdf These principles were included in the Draft General Comment No 34 Art 19 at para 53, UN Doc CCPR/C/GC/34/CRP.2 (Jan 29, 2010) and later deleted

7 Lawrence Ward Beer ed., ‘Introduction’ in Constitutional Systems in Late Twentieth Century Asia (University of California Press, 1992) at

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this affect the weighting of rights and responsibilities? Should all, some or no speech be permitted, in a time of fear, hate and lies?

There is no dearth of scholarly literature on the subject of free speech theory and regulatory methods, investigating whether the modalities of accountability are sufficiently robust to contain and seek redress for abuses of public power My concern in this essay is the more modest one of identifying the vision of the human person and community, the speaker, the object of the speech, the community at large, and how this may diverge or converge with the ‘rational man’ associated with liberal theories of free speech and visions of society This may be a significant ‘local particularities’ which informs how we think about the objectives and limits of free speech, with the focus here being on ‘political’ speech or speech affecting the ‘public order’ of a democratic society The enquiry is rooted in the context of the Singapore communitarian or non-liberal model of constitutionalism, which will hopefully be of use to future comparative endeavours

As a caveat, it must be underscored that the value of expressive freedoms to a modern democratic order, in terms of freely engaging in speech critical of political institutions and the judiciary, is appreciated There is no intent to diminish its importance in holding governments to account through scrutiny, contrary opinion and publicly exposing malfeasance through investigative research The intent is to moderate any ethnocentric parochialism that may reside in fixating upon the particular “liberalism of fear”1 that western liberal democracies (or at least the American variety2) have towards government and the celebration of the ‘rational man’ committed to democratic debate The end result may be to populate or to foreground other personalities beside the reasonable man or person which “inhabit our legal village”3 This may have explanatory force in relation to free speech jurisprudence; as such, this essay is written in the form of a promissory note, to start interrogating the vision of the human person which shapes the scope of free speech, its objectives, social role and its parameters

Part I will examine the dominant free speech theories most frequently associated with the greatly influential (both as a model and anti-model) US First Amendment jurisprudence, and examine whether their underlying assumptions continue to be tenable Part II examines various aspects of free speech which affects politics and the public, drawn from the Singaporean experience, where the rational man exists alongside the emotional, sensitive and gullible man

I The Free Market, rational man and the Demos Liberal Theories, Free Speech and their Discontents

To speak of fear, hate and lies is to confront the baser demons of our nature; where these genuine if unhappy human traits relate to free speech theory, they speak in the tongue of censorship

Andras Sajo & Michel Rosenfeld eds., (Oxford University Press, 2012) 133-152

1 Judith Shklar, Political Thought and Political Thinkers, Stanley Hoffman ed (University of Chicago Press, 1998), p.3. 2 E.g America does not have e.g the Holocaust Denial laws that certain European states The European Court of

Human Rights ruled in October 2019 that conviction for Holocaust denial by a German parliamentarian did not violate the article 10 guarantee of freedom of expression in Pastörs v Germany, Application no.55225/14, Oct 2019 The

Court considered the intentional statement of untruths designed to defame the Jews and the persecution they suffered during world war two “affected the dignity of the Jews to the point that they justified a criminal-law response.” 3 Lord Hope, Helow v Advocate General [2008] SLR 2416 at 2417-8 See John Gardiner, ‘The Many Faces of the

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and constraint This demonstrates that a certain disposition is necessary to create and sustain an environment where robust speech is valued, protected and facilitated, as variously justified by the three dominant arguments in relation to the marketplace for truth, personal autonomy and democratic self-governance, most famously associated with American first amendment jurisprudence1 As Sedley LJ noted in Redmond-Bate v DPP2

Freedom of speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence Freedom only to speak inoffensively is not worth having What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas.

This is rooted in the view that liberty of conscience and expression cannot be subject to state orthodoxy and control, except where these have a tendency towards violence, which justifies government intervention This requires not only a tolerant ethos which fosters a sense of self-restraint in bearing with disliked views, but a sense of solidarity in the conviction that expressive freedoms serve the common good This is because those who started eliminating dissent “soon find themselves exterminating dissenters.” Public opinion is to control authority, not the other way round, and no government official may “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion…”3.

Tolerance and respect for the right of moral dissent and the good of independent enquiry appeals to the better angels of our nature; authentic tolerance is thus married to a disposition towards

truth-seeking, to hear and evaluate the other side in good faith debate that wants to engage ideas and is capable of discernment, as “who ever knew Truth put to the worse, in a free and open encounter?”4 This fuels the disciplined attitude incorrectly attributed to Voltaire, to the effect that “I disapprove of what you say, but I will defend to the death your right to say it,” a basic tenet of classic or political liberalism5 On a social level, free speech anchors an open society where today’s orthodoxy can become tomorrow’s heresy, where both true and false opinions are protected so as not to deprive society “the opportunity of exchanging error for truth” and a “clearer and livelier impression of truth”6, which would be an evil Only one who assumed his own infallibility would have no qualms silencing the opinions of others Free speech is the lifeblood of democratic debate, a corrective to autocratic and non-transparent governance

1 See, e.g Alexander Tsesis, ‘Free Speech Constitutionalism’, (2015) University of Illinois Law Review 1015-1068; Eric Barendt, Freedom of Speech (Oxford: Clarendon Press, 1985) at 8-23.

2 [1999] EWHC Admin 733

3 Robert H Jackson J, West Virginia State Board of Education v Barnette 319 U.S 624 (1943)

4 John Milton, Areopagitica (23 Nov 1644), available online at: http://www.dartmouth.edu/~milton/reading_room/ areopagitica/text.html, <last visited, Nov 2019>

5 This phrase was penned by Evelyn Beatrice Hall, who published The Friends of Voltaire (1906)

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Liberal Government and the Rational Person

Within a liberal system of government, “three fundamental axioms” have been identified First, the belief that all individuals are capable of exercising reason by which they are able to discover universally applicable truths which apply to all societies and at all times Second, individuals are free and equal; third, individual are free until they join a political society and assume obligations owed to political institutions by choice1

The vision of the human person in this setting is predicated on the availability and sufficiency of reason; rationalist thought in this conception intends “to imitate a mathematical system, which begins with axioms taken to be self-evident and proceeds by supposedly infallible deductions”2 Reason is everywhere the same, equally accessible to all, and one has only, regardless of historical or cultural background, to “consult”3 reason, to arrive at the best form of government, after the liberal democratic model By shearing off personal traits, thought experiments such as the Rawlsian veil of ignorance may be adopted to envisage what justice would require, based on the liberal meta-norm of individual autonomy and the prescription of a ‘neutral’, secular state To one not attached to liberal convictions and identity, this is not possible, given the centrality of attachment to religion, culture family, community or nation as chief identity markers

Critics have charged that this liberal perspective, stemming from the European Enlightenment, is basically opposed to religion and tradition, where the individual is situated within a community rather than atomistic Liberalism discounts the wisdom of local, generationally accumulated knowledge “that elites often dismiss as superstition or fundamentalism”; since reason is powerful, universal and reliable” 4, there is no need to consult national, cultural or religious traditions as the source of political obligation resides in the consent of the reasoning individual

Such a view which places too much faith in abstract reason is too naïve, utopian; like all universalist theories, whether liberalism or Marxist collectivism, it is hegemonic in its universalist aspirations and advocacy of liberal democracy as the ‘end of history’ for all nations, at all times

1 Yoram Harzony, Conservative Democracy, First Things (Jan 2019), available at https://www.firstthings.com/ article/2019/01/conservative-democracy

2 Harzony, ibid Hobbes, Rousseau, Kant and Locke would be exemplars of rationalist thinkers

3 John Locke in discussing the basis of political authority wrote in Chapter of his Two Treatises of Government (1689) Vol 1, page 42 (Peter Laslette ed., New York: Mentor Books, New American Library, 1965): “The State of Nature has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions.” There is a religious foundation to his thinking, as he continues “For Men being all the Workmanship of one Omnipotent, and infinitely wise Maker; All the Servants of one Sovereign Master, sent into the World by his order and about his business, they are his Property, whose Workmanship they are, made to last during his, not one anothers Pleasure And being furnished with like Faculties, sharing all in one Community of Nature, there cannot be supposed any such Subordination among us, that may Authorize us to destroy one another, as if we were made for one anothers uses, as the inferior ranks of Creatures are for ours Every one as he is bound to preserve himself, and not to quit his Station wilfully; so by the like reason when his own Preservation comes not in competition, ought he, as much as he can, to preserve the rest of Mankind, and may not unless it be to Justice on an Offender, take away, or impair the life, or what tends to the Preservation of the Life, Liberty, Health, Limb or Goods of another.” In this conception, man is not the captain of his soul and consent operates within a larger framework of the purposes of the divine Text available at http://press-pubs.uchicago.edu/founders/print_documents/v1ch2s1.html

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Where liberalism serves as the sole foundation for public life, the ultimate value is that of consent which provides thin gruel for moral obligation, the common good and shared identity This may be informed by culture, faith and tradition as mutually balancing factors which moderate the impulse to hegemony one hand, and the descent into excessive localism which can devolve into prejudice and tribalism Insofar as liberalism1 has been embraced as “a kind of universal salvation creed”2 throughout much of the West, this can assume a dogmatic, narcissistic pallor in equating liberalism as the sole form of competent reasoning It must be appreciated that liberalism is not merely procedural in seeking to secure a broad sphere of liberty; nor is it merely neutral in valorizing individual choice and prescription of the ‘neutral’ state which underwrites the framework within which individuals choose their conceptions of the ‘good life’; philosophical liberalism, sometimes called progressivism, is a substantive belief system “taken as axiomatic”3 in relation to the desired model of government, an alternative view of the nature of human beings, reason and the source of moral obligations that binds us It does not merely protect individuals but seeks to produce and regulate a certain kind of subject who prioritises choice, autonomy and is cosmopolitan is disposition Liberalism is, in other words, “a particular form of political power carrying a particular image of justice.”4 What is chosen, to a liberal, is not as important as the availability of choice, which is not a universally held conviction If what is good is what is desired, then the liberal theory of the good is hedonism, which fuels arguments that the state should not intervene with the choices of consenting adults; this refuses to grapple with the difficulty that every theory of consent has a moral limit which must be debated and evaluated within democratic societies

‘Political correctness’ speech codes are a by-product of philosophical or ideological liberalism, which is illiberal insofar as it penalises or seeks to shut down those who not conform to its dogma, whether by formal legal mechanisms or informal methods of abuse, threats and harassment unleashed by private parties against moral dissenters, whether in the vein of virtue-signaling6, or through deploying more vicious tactics of character assassination and diatribe Comprehensive liberalism in advancing individual rights on the basis of liberty and equality claims draw on deeper philosophical premises, of which no uncontroversial theory exists7 Taken to extremes, this can severely restrict free speech

1 There are many brands of liberalism, a loose concept encompassing a variety of ideas The point here relates not to political liberalism, which values viewpoint diversity and a tolerant ethos, but philosophical liberalism, which is illiberal and intolerant of all views (and frequently their espousers) which not conform to liberal dogma For example, substantively controversial issues like euthanasia and who may enter into civil marriage See Chandran Kykathas, ‘Two Concepts of Liberalism’ in João Carlos Espada et al (eds), The Liberal Tradition in Focus (2000); Stephen Macedo, Liberal Virtues: Citizenship, Virtue and Community in Liberal Constitutionalism (Oxford University Press, 1990)

2 Harzony, supra, note 30. Harzony, ibid

4 Wendy Brown, ‘“The Most we Can Hope for”: Human Rights and the Politics of Fatalism’ (2004) 103 (2/3) South Atlantic Quarterly 451

5 James Kalb, ‘The Tyranny of Liberalism’ (Summer 2000) Modern Age 239-252

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and even usher in a form of cultural totalitarianism1 which, like political totalitarianism, seeks to drive out competing visions of the world and humanity; committed as it is to “the assumption of a sole and exclusive truth in politics”2, such a posture is fundamentally intolerant of dissent Totalitarianism of any sort, whether in terms of absolute rulers or absolutist rules, is anti-constitutionalist, inimical to free speech and democracy The liberalism of fear against government intervention in private life must be reimagined to include fears against cultural totalitarianism, from private actors

The key issue is whether the current state of affairs within liberal orders still denote a good faith willingness to enter into public debate and whether there remains a capacity for critical reflection This is further explored in the next section

Revisiting Free Speech Rationales: Political and Public Order Impacting Speech

The central tenets of liberal free speech theory appear to be a commitment to the ‘marketplace’ of ideas; a commitment to deliberative, participatory democracy as romanticized by the idea of the townhall and lastly a vision of the rational man committed to reason-based discourse, to a good faith search for truth or the best way forward; this calls forth a certain degree of tolerance for disliked or disagreeable views, in the broader interest of securing the right and common good of free speech and viewpoint diversity which facilitates informed, even wise choices Free speech is also considered to be a key aspect of personal self-development

There are certain assumptions that underlie this liberal theory of free speech which are questionable today

Argument from Truth

In a postmodern world with its increasing loss of stable values, those who are cynical towards grand truth narratives may be content to render truth into “what emerges from open discussion and argument to be accurate and/or rational”3 This may sustain the belief that “sunlight is said to be the best of disinfectants”4, that the remedy to bad speech is more speech.5 This flows with Holmes J’s famed dissent in Abrams v United States6:

1 Ryszard Legutko, The Demon in Democracy: Totalitarian Temptations in Free Societies (Encounter Book, 2018). 2 Jacob L Talmon, “Introduction, Part I” of The Origins of Totalitarian Democracy (Secker and Warburg, 1955). 3 Lee Sieu Kin J, Lee Hsien Loong v Roy Ngerng Yi Ling [2015] SGHC 320 at [98], citing Thio Li-ann, A Treatise

on Singapore Constitutional Law (Academy Publishing, 2012) at para 14.011 This avoids the slippage into a new

absolutist dogma of relativism

4 Louis Brandeis, ‘What Publicity Can Do’, Harpers Weekly (1913) Brandeis was quoting from James Bryce, The

American Commonwealth (Macmillan and Company 1888): “Public Opinion is a sort of atmosphere, fresh, keen and

full of sunlight, like that of the American cities, and this sunlight kills many of those noxious germs which are hatched where politicians congregate…the genius of universal publicity, has some disagreeable results, but the wholesome ones are greater and more numerous Selfishness, injustice, cruelty, tricks and jobs of all sorts shun the light; to expose them is to defeat them No serious evils, no rankling sore in the body politic, can remain long concealed, and when disclosed, it is half destroyed.”

5 Justice Brandeis in Whitney v California 247 U.S 357 at 376-377 (1927) stated: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

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[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that the truth is the only ground upon which their wishes safely can be carried out…

The American First Amendment is predicated upon the presupposition that “right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection To many this is, and will always be, folly; but we have staked upon it our all”1.

The argument from truth rests on a belief that truth or its diluted analogue, accuracy, is possible, even desirable This is advanced by the role of the press as a watchdog or bloodhound, engaging in adversarial, investigative journalism This is undermined where the press adopts the posture of a political advocate rather than a reporter, publishing only what serves a preferred narrative, which itself promotes an ideological agenda Truth is harmed through under and slanted reporting where one standard is applied to one’s political or ideological tribe, and another standard to the ‘other.’ This prejudices the reader, who relies on the convenience of the press for collating news and views and is disserved by such unbalanced selectivity and denied the range of views needed to make an informed and wise choice or decision

One of democracy’s strengths is that it is an open system; if you not like the government of the day or if your supported political party loses the elections, their policies may be criticized and subject to public scrutiny, and governors may be voted out at the next elections, When the nature of politics is ‘tribal’ and a strong sense of the common good is lost, society becomes fissiparous and loses coherence, divided along tribal lines of race, religion, and culture or political ideology If citizens engage in a form of tribal politicking by pushing one-sided agendas, ideology and supporting narrative espousing politicised ‘science’ for instance, this will displace truth Speech will be instrumentalised and deployed as a tool for the protagonist who has no interest in engaging interlocutors This thwarts deliberative democracy, given the narcissistic preference for thinking with one’s feelings, vociferation and argument by slogan, and the refusal to engage in the heavy lifting of seeking common ground and compromise by reasoned deliberation, as an expression of active citizenship The argument that the antidote to bad speech is more speech may lose weight given that is grounded in the faith that the better argument and best ideas will prevail This holds little water when an ideologue’s mind is made up and ideological wars are a harbinger of an impasse where ‘overlapping consensus’ cannot be attained to owing to intransigence on the part of the relevant parties; still, if speech is suppressed, it will go underground and fester

Argument from self-development and democracy: Farewell to the Townhall

In general, there is great merit in the idea of free competition in the marketplace of ideas to get to the ‘truth’ of things, as opposed to a ‘protectionist’ approach towards speech where a public or private censor acts as ‘truth czar’ In relation to political speech, individual citizens as part of self-development should be empowered to participate actively to shape the democratic decision-making process However, this rests on a series of assumptions which must be interrogated, concerning how we express and receive information in the free marketplace of ideas, which affects questions of regulation

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The marketplace of ideas rationale assumes a rational man who exercises his rights of free speech as a way of discharging his civic responsibilities within a participatory democracy The Rational Man engages and evaluates a wide array of views before making up his mind in relation to social problems He understands that free speech is about communicating, not hindering the expression of ideas in the public square This requires a commitment to treat other speakers with civility, which resonates with the European Enlightenment’s vision of the Rational Man as one of intellect and self-restraint who can tolerate distasteful or offensive speech in service of the broader and higher goal of maximising free speech for all It is assumed that a broad range of views is available in the marketplace and that everyone has free and equal access to this The link with the argument from democracy is clear, itself based on an idealised ‘townhall’ conception of popular decision-making where politicians meet their constituents to hear their views or to discuss upcoming laws This is based on all town members assembling in a common space to take decisions together, within the context of face to face discussions in an authentic, human sized community where people knew one another This would entail the discipline of listening with civility to views opposite from one’s own and to engage with these opposing views This does not exist where modern government or indeed internet speech is concerned, particularly where anonymity facilitates the very worst in human nature This changes the very nature of human relating, which is discussed below, in the production, transmission and consumption of information Several factors ought to be borne in mind, which may demonstrate that the assumptions underlying the marketplace of ideas may be inaccurate, inapplicable or require revision/modification

First, not everyone has equal access to the marketplace The internet has ‘equalised’ participation insofar as anyone with internet access can easily have their own blog to air their views, thought what counts is the degree of influence that blog has i.e readership traffic, as certain voices, whether through wealth or political clout, have amplified voices and command an extensive audience Second, important informational flows stem from the media and where news is biased and reporting is selective,

this degrades democracy which requires fair and objective reporting (insofar as possible) streams, rather than uninhibited political advocacy by news media 1 Where news publishers restrict the range of views they publish, this hinders the ability of citizens to effectively access points and counterpoints to an issue; what the reader receives is an ideological preference, which is a form of propaganda Third, the internet may correct this insofar as it opens up a new informational horizon to everyone, as both publishers and audience; it has a democratising effect insofar as anyone with internet access can be a citizen-journalist, breaking the monopoly of the government and mainstream media and enriching viewpoint diversity However, the rigours of checking mechanisms and editorial oversight to ensure informational veracity is absent This may give way to recklessness, negligence where material is anonymously published or under a nom de guerre, which does not conduce to responsible and accountable journalism The conundrum, given the fear that such power can be abused (fear of irresponsible journalism), is whether and how to regulate this, as this brings the associated fear that any form of regulation may itself be abused and curtail legitimate dissent and views Fourth, it is easy, with the click of a button, to forward an offensive view or false information to multiple recipients which can go viral, exacerbating the harm Fifth, with the surfeit of information and views,

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more effort is required of the hearer to discern good from bad arguments, truth from falsehood Fake information may crowd out reliable news, further hindering clear thinking such that some may just give up being an engaged participant in civic life Fifth, there are mechanisms available to enable the reader to ‘filter’ and select views he wishes to read, which could cause the ‘bell jar’ or ‘echo chamber’ effect of insulating one from counter perspectives, resulting in unthinking ideological conformity, rather than active enquiry This is both narcissistic and a form of perpetual infantalisation; it creates a fragmented communications universe, which may forebode the end of a shared public space or ‘balkanisation’ which inhibits the ability to develop a sense of solidarity, the ability to reach reasonable accommodations, if citizens devolve into single issue ‘tribes,’ and are unable to appreciate the range of positions taken with respect to complex public issues It may hinder the ability to cultivate a commitment to pluralism as key to a harmonious relationally healthy society and plural democracy The internet thus can be used to expand as well as contract our horizons

Lastly, online communication as part of the virtual extension of the public square may connect groups of like-minded people who build ‘online’ communities; this can be a force for good or evil As communication is not face to face, there are not the filters to curb impulses or to moderate reactions to another speaker This may hinder rather than promote conversation and deliberation Indeed, the anonymity the internet offers may divest the speaker of the inhibitions and basic civilities we afford to people we speak with This can degenerate into vulgar and vicious bullying attacks which operates as conversation stoppers rather than conversation starters This is another instance where free speech can chill free speech Furthermore, the internet can be a ground for breeding extremism as people with extreme views can connect online and discuss matters with like-minded compatriots without encountering opposing views ‘Online’ groups of like-minded individuals may also undertake campaigns to harass individuals through hateful speech or to undermine societies by inventing false crises to induce public panic e.g an invented SARS crisis, or as conflict entrepreneurs, to foment distrust between different social groups Furthermore, “online echo chambers or silos divide people into separate camps, at times even inciting them to express anger and hatred at a volume not seen in previous communications forms”1 Sustainable democracy must be accompanied by robust but civil debate, informed by basic human decency Otherwise, free speech may be deployed to destroy its’ raison d’etre, that is, deliberative and participatory democracy with involved and informed citizens. II Populating the Legal Village

The Constitutional Free Speech Guarantee

Article 14 of the Singapore Constitution guarantees the right to freedom of speech, subject to eight grounds such as public order, upon which Parliament may enact restrictions it considers “necessary or expedient.” This is a qualified right, framed as a constitutional bargain The same laws regulating free speech also apply to virtual or online speech

Free speech is not ‘free’ in the sense of being offered “just for the sake of expression.” Professor Stanley Fish2 has argued that discussions about free speech have in mind the typical situation where

1 Pew Research Centre, ‘The Future of Truth and Misinformation Online’ 19 Oct 2017 at http://www.pewinternet org/2017/10/19/the-future-of-truth-and-misinformation-online/

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a person speaks and “delivers an opinion in a seminar-like atmosphere”1 with no thought of eliciting action in response to what is said In the real world, speech is advanced as a means to the end of driving or shutting down an agenda The law differentiates between speech worthy and unworthy of protection, as it violates the rights of others, or undermines the social interest, or both If one speaks with the goal to defame another’s reputation, to denigrate a judge in a contemptuous fashion, to incite violence against an ethnic or religious group or to abusively harass someone who publicly expresses a view which the abuser dislikes and wishes to silence through intimidation and threats, the law steps in and sanctions rather than protects such speech

The idea of permitting substantive limits of rights would be anathema to those supportive of the liberal dogma that the state should be ‘neutral’2 when it comes to visions of what the ‘good life’ is, and leave this to the individual to decide, where rights maximize autonomy In contrast, the view in Singapore is a more holistic one, where free expression should not be exercised “on the basis that opinions are expressed in hermetically sealed vacuums where only the rights of those who ardently advocate their views matter”3 Bright lines are drawn in Singapore where fundamental values like racial and religious harmony are at stake, such as the government position that the burning of sacred texts such as the Bible and Koran (the act of burning is itself a form of speech), would not be allowed These values go to the heart of community identity and moral solidarity The dangers of absolute free expression are appreciated, and the polarizing extremism, racism and xenophobia leading to acrimony and bloodshed between different groups in other countries are an anti-model

The government has described Singapore political culture as one where citizens “demand a high level of civility in our public discourse, especially on such sensitive matters This is because respect, tolerance and courtesy among different races and religious remain fundamental values for Singaporeans”4 Similarly, when falsehoods calculated to mislead the public or damage a person’s reputation are willfully made, individuals must have the right to reply or to seek legal recourse

There was a time when the members of an authoritarian government demonstrated extreme sensitivity to even mild criticism, their reaction being likened to that of a “scalded polecat”5 This was reflected in the feudal mentality belying the ministerial admonition in 1995 that when citizens debated with governors, a distinction was to be made “between the senior and junior party, or what the Hokkiens describe as boh tua boh sway”6 That is, the people should not take on those in authority as equals In the second decade of the 21st century, a humbler approach is evident insofar as the Prime Minister has sought to promote a culture of public servant-ship In seeking to promote civic participation and a more consultative style of politics which nonetheless preferred consensus over

1 See Interview with Stanley Fish, Australian Humanities Review at http://www.australianhumanitiesreview.org/ archive/Issue-February-1998/fish.html

2 Claims about neutrality may guise a covert value judgement See Bruce Ackerman, ‘What is neutral about neutrality?’ (1983) 152 Ethics 372-390

3 VK Rajah JC, Chee Siok Chin v MHA [2005] SGHC 216 at [136]

4 National Report: Singapore, Working Group, Universal Periodic Review, A/HRC/WG.6/24/SGP/1 (28 Oct 2015) at [117]

5 CV Devan Nair (former President), Straits Times, 26 June 1987

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contention, Prime Minister Lee in 2004 stated that a diversity of views was to be encouraged in public debate, that “unity of purpose and vision” did not require “sameness in views and ideas”1 Singaporeans were urged to debate issues “with reason, passion and conviction and not be passive bystanders in their own fate.” The government would modify its position on national policies and would be “dispassionate and factual” in relation to criticisms which made valid points in seeking to improve government policies A distinction was drawn between the friendly fire of constructive criticism as opposed to the deadly fire of opposition politicians seeking to discredit the government by scoring “political points” in an adversarial fashion Consonant with “the rules of the game of politics everywhere,” this would elicit robust rebuttal to preserve the government’s moral authority Overall, Prime Minister Lee invited citizens to engage in rigorous and robust debate over public policies and national issues, without need to hold back “out of concern for egos or sensitivities” Debate should be “issue-focused, based on facts and logic, and not just on assertions and emotions” with the ultimate goal of reaching “correct conclusions” to take the country forward This was a call to solidarity, rather than emotive single-issue political agendas The question is whether the members of any one polity the discipline and vision have to act in this sensible manner

In terms of approaches to judicial review, there has been a discernible shift from an era where free speech cases were under-theorised and free speech interests subordinated to statist values and trumps In what has been called the ‘third wave’ approach towards constitutional adjudication, there have been judicial efforts to balance article 14 cases, to ensure that interests on both sides of the equation are measured against each other in a way that ensures that neither interest is rendered “otiose”2.

The Gullible and the Discerning

Historically, laws relating to the offence of ‘scandalising the court’ were introduced into British colonies at a time when it was being phased out in Great Britain Contemptuous speech addresses the fear of the loss of public confidence in the administration of justice The offence was formulated

for immature and uneducated societies; in 1899, the Privy Council in Macleod v St Aubyn3 noted that the offence had become “obsolete” in the UK, where the courts were satisfied to leave to public opinion what to make of attacks or comments derogatory of the judiciary This reflects a faith that British public opinion was sufficiently discerning or perhaps the view that “Judges are supposed to be men of fortitude, able to thrive in a hardy climate”4.

However, the Privy Council pejoratively noted that in “small colonies, consisting principally of coloured populations,” the offence of scandalizing the court should be retained as it may be “absolutely necessary to preserve in such a community the dignity of and respect for the Court”5 This view that coloured people were somewhat gullible and undiscerning would be considered wildly racist today

1 Deputy Prime Minister Lee Hsien Loong, ‘Building a Civil Society’ Harvard Club Speech (2004), text available at http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan015426.pdf

2 Quentin Loh J, AG v Shadrake [2011] SLR 445 at [57] See Thio Li-ann ‘Principled Pragmatism and the ‘Third Wave’ of Communitarian Judicial Review in Singapore’ in Jaclyn L Neo (ed.), Constitutional Interpretation in Singapore:

Theory and Practice (Routledge, 2016) 75-116.

3 Lord Morris in McLeod v St Aubyn, (1899) AC 549.

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Contempt of court cases involve a balance between the importance of speech critical of the judiciary and the reputation of the judiciary thought integral to the administration of justice Unlike the American test of a ‘clear and present danger’ of speech which would cause disrespect for the judiciary or interfere with the orderly administration of justice in a pending case stated in Bridges v California, 1 the test in Singapore was for a long time pegged at the level of speech with the ‘inherent tendency’ to impair confidence in the administration of justice, which provides little protection for free speech: AG v Wain2 Robust critical speech of the judiciary is predicated on hardy judges and/or discerning citizens; by pegging the test of protected speech at the level of ‘inherent tendency’ which could involve speculative harm, this arguably in under-valuing free speech and protecting confidence in the administration of justice assumes the fragility of judges or the judiciary and the gullibility of citizens This later shifted when the Court of Appeal in AG v Shadrake3 adopted the more speech protective test of requiring a “real risk” of undermining public confidence in the administration of justice as well as articulating as an element of liability for contempt, the concept of fair criticism In this respect, speech which is fair, temperate, “supported by argument and evidence” and reasoned argument or expostulation is not contemptuous Abusive language gives rise to an inference of an intention to vilify the court while “temperate, balanced criticism allows for rational debate about the issues raised and thus may even contribute to the improvement and strengthening of the administration of justice Scurrilous and preposterous attacks, on the other hand, are likely to have the opposite effect”4 The Court of Appeal characterised the American ‘clear and present danger’ test as an idiosyncratic “argument from paramountcy”, followed by a “seemingly solitary and divided” Ontario Court of Appeal decision5 This is distinctive from the general Commonwealth position which takes a more holistic balancing approach rather than attributing determinative weight to one side of the balance The Court noted that the American approach was not necessarily worth emulating as “it could actually result in possible abuse and consequent negation” of the right itself6.

If the rational man is the standard of maturity, this was underscored by the Court of Appeal in Shadrake, in rejecting the High Court’s suggestion that the test for “the public” could be other than the “average reasonable person” who comes into contact with the impugned publication Quentin Loh J in the High Court7 had referenced the approach of the Hong Kong Court of First instance in

Secretary for Justice v Oriental Press Group Ltd 8 where the court rejected limiting consideration to the “hypothetical reasonable man” as it was equally important to ensure confidence in the administration of justice is not undermined “in the eyes of the person who does not address issues rationally.” Loh J noted that the public may compose people who “may be less rational, or, I should add, they may be more discriminating”9 The Court of Appeal insisted that the test should be the “average reasonable person” as it had to make an “objective decision” whether a statement would undermine public confidence in the administration of justice, given that the “spokesman of the fair and reasonable

1 314 U.S 252 (1941) The US Supreme Court expressly rejected the test of ‘inherent tendency’ or ‘reasonable tendency.’ [1991] SLR(R) 85

3 Shadrake Alan v AG [2011] SGCA 26

4 AG v Tan Liang Joo John [2009] SGHC 41 at [18]-[19] 5 R v Kopyto (1988) 47 DLR (4th) 213

6 Shadrake Alan v AG [2011] SGCA 26 at [41]. 7 AG v Shadrake Alan [2011] SLR 445 at [52] [1998] HKC 627

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man, who represents after all no more than the anthropomorphic conception of justice, is and must be the court itself.”1 While robust criticism of judgements are legitimate, speech must not devolve into denigrating judges, which reflects respect or honour for the office

The Junzi (君子) and the Xiaoren (小人): Sense and Sensitivity

The law on political defamation predominantly reflects the rationale for free speech protection based on the argument from truth and from democracy, though speech may be balanced against the co-equal right or interest to personal reputation, pitting a right against a right

When it comes to political speech in particular, driven by the liberal’s fear of possible abuses of centralised power, politicians in the US and Europe2 are supposed to be “thick-skinned” in accordance with the ‘public figure’ doctrine This is predicated on “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials”3 This serves the interests of democratic values, accountability and transparency and its prioritisation is reflected in US First Amendment jurisprudence which accepts that:

[E]rroneous statement is inevitable in free debate, and… must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive…’4.

American jurisprudence therefore protects dissenters and trouble-makers and the falsehoods they might speak, in order to secure the broader goal of facilitating an environment where, with the free flow of ideas, falsehoods can be exchanged for truth

In contrast, Singapore courts have rejected the American public figure in stating that public figures deserve equal treatment to private persons where it comes to defamation5 Much weight was placed on the reputational interests of public persons with determinative weightage accorded to the public interest of ensuring that “sensitive and honourable men” were not deterred from seeking public office where insufficient protection is given to their reputation6, such as where the publisher of a defamatory statement enjoys an over-extensive privilege These sensitive men are not expected to be thick skinned as defamation law “protects the public reputation of public men as well”7; this reasoning downplays the public interest in the robust protection of speech critical of politicians, stemming from both the argument from truth and from democracy What was underscored was the importance of allowing officials “to execute their duties unfettered by false aspersions”, which existed alongside the value of free speech “as a means of exposing wrongdoing or abuse by public officials”8 This reflects the government’s vision of political culture, expressed in a white paper in 1991:

41 Many Confucian ideals are relevant to Singapore For example, the importance of

1 Citing Lord Radcliffe, Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 at 728, [2011] SGCA 26 at [32]

2 Lingens v Austria (1986) EHRR 407 at [42].

3 New York Times v Sullivan 376 US 254 (1964), per Justice Brennan. Ibid

5 Tang Liang Hong v Lee Kuan Yew [1997] S.L.R.(R.) 576 (C.A.).

6 Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] S.L.R.(R.) 791 at [64]

7 Ibid., at [62].

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human relationships and of placing society above self are key ideas in the Shared Values The concept of government by honourable men “君子” (junzi), who have a duty to right for the people, and who have the trust and respect of the population, fits us better than the Western idea that a government should be given as limited powers as possible, and should always be treated with suspicion unless proven otherwise1.

The presumption of trusting government leaders may account for the heavy weightage accorded to their reputational rights A junzi is a noble and moral person who leads by example As such reputation is highly prized and theorized as a form of honour, characteristic of a “deference society”2 Belinda Ang J in Lee Hsien Loong v Singapore Democratic Party3 noted that defamation law “presumes the good reputation of the plaintiff”, quoting the Greek rhetorician, Isocrates, who noted that “the stronger a man’s desire to persuade his hearers, the more zealously will he strive to be honourable and to have the esteem of his fellow-citizens”4 Thus, “the good reputation of an individual (meaning, his character), is of utmost importance to one’s personal and professional life for human proclivity is such that people are apt to listen to those whom they trust”.5 This is reflected in the greater quantum of damages awarded to politicians and public leaders, at the apex of the fourfold tier set forth by the Court of Appeal in Lim Eng Hock Peter v Lin Jian Wei6:

Top Tier Political leaders, where defamation causes injury to both personal reputation as well as the institutional reputation of government

Second Tier Non-political public leaders who are public figures in business, industry and the professions where the relevant outputs serve to augment public welfare; higher damages accrue because of their higher social standing and devotion to public service

Third Tier Prominent figures such as businessmen who are not national leaders or involved in public affairs, where the business does not serve the public welfare; nonetheless, professionals should get a higher award because of the damage done to their professional reputations Fourth Tier Private individuals

Thus, public leaders could be strongly criticised for “incompetence, insensitivity, ignorance and any number of other human frailties” as opposed to attacks besmirching “their integrity, honesty, honour, and such other qualities that make up the reputation of a person”7 Effectively, reputational concerns were treated as having constitutional status as a co-equal right, balanced against free speech interests This is supported by the Singapore variant of the public figure doctrine, where a greater quantum of damages is accorded in cases involving a “prominent public figure”, as in Goh Chok Tong

1 Shared values white paper, Cmd of 1991 (Parliament of Singapore)

2 Robert C Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 Cal L Rev 691 at 702

3 2009] S.L.R.(R.) 642 at [102] Ibid

5 Ibid No reference was made to the government’s view that governors were honourable men, or Confucian junzi, to develop a theory of reputation as honour, which frames a deferential society

6 [2010] S.L.R 357 (C.A.) This drew a distinction between public leaders, both in the public and private sector as distinct from people famous in the public eye, who promoted the public welfare, the reputation of professional men and finally that of ordinary individuals

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v Chee Soon Juan1 involving the alleged defamation of the Prime Minister by a leading opposition politician Higher damages are awarded presumably to vindicate public reputation and to sustain the moral authority of governors, such that a private person enjoys weaker protection in this instance than a public person Subsequent developments more protective of free speech include a consideration of the possibility of moderating damages where the press has satisfied a “responsible journalism” test2 This was accompanied by observations that “[o]ur political culture places a heavy emphasis on honesty and integrity in public discourse on matters of public interest, especially those matters which concern the governance of the country”3, which ties in with the importance of reputational interests of political leaders, not only personally, but the national reputation of Singapore4.

A hierarchical view of society is also manifest in the discount given in deciding the quantum for damages in Lee Hsien Loong v Roy Ngerng Yi Ling5 where the defendant ran a private blog6 commenting on Singapore politics, in the course of which he published an article defaming the Prime Minister, for which he was found guilty The defendant invoked what might be identified as the spectre of the Confucian Xiaoren (little or petty person who cannot transcend his personal concerns and prejudices), stating that he should be subject to smaller damages as he was a “defamer of low credence” who would be less likely to be believed, which would lessen the gravity of the accusation7 Given the defendant’s “comparatively low standing”, he was awarded a “substantial reduction” in the quantification of damages, about half the sum imposed on those who defamed the Prime Minister during the last 20 years8.

The differentiation of the human person into categories of the sensitive and honourable, as opposed to disreputable or lacking credibility as a little person thus shapes the contours of political libel, as well as the growing appreciation of the importance of political speech in a democratic society9

1 [2005] S.L.R.(R.) 573 at [72]

2 This was an adaptation of the House of Lords responsible journalism test where it applied as a defence: Reynolds v

Times Newspapers Ltd and others [2001] AC 127 at 205, discussed in Review Publishing v Lee Hsien Loong [2010]

1 SLR 52 at [297]

3 Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal [2010] SLR 52 at [285].

4 “Public leaders are generally entitled to higher damages also because of their standing in Singapore society and devotion to public service Any libel or slander of their character with respect to their public service damages not only their personal reputation, but also the reputation of Singapore as a State whose leaders have acquired a worldwide reputation for honesty and integrity in office and dedication to service of the people In this connection, it is pertinent that it has been said that the most serious acts of defamation are those that touch on the “core attributes of the plaintiff’s personality”, ie, matters such as “integrity, honour, courage, loyalty and achievement.” Lim Eng Hock [2010] SLR 357 at [12]

5 [2015] SGHC 320

6 The court indicated that an institutional blog like that belonging to a news outlet or a traditional newspaper will be more credible than a run of a mill blog: Lee Hsien Loong v Roy Ngerng [2015] SGHC 320 at [55].

7 Reference was made to Goh Chok Tong v Chee Soon Juan (2005) where the prominent standing of the defendant was a relevant factor This was also the approach taken by the Hong Kong Court of Final Appeal in Oriental Daily Publisher

Ltd v Ming Pao Holdings Ltd [2012] HKCFA 59, cited at [2015] SGHC 320 at [33]-[34].

8 [2015] SGHC 320 at [116]

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Nonetheless, the Court of Appeal was clear that the argument from democracy would be hindered by the misuse of speech to spread misinformation It quoted with approval the observation of the House of Lords in Reynolds1:

[I]t is important always to remember that it is the communication of information not misinformation which is the subject of this liberty There is no human right to disseminate information that is not true No public interest is served by publishing or communicating misinformation The working of a democratic society depends on the members of that society… being informed not misinformed Misleading people and… purveying as facts statements which are not true is destructive of the democratic society and should form no part of such a society There is no duty to publish what is not true: there is no interest in being misinformed These are general propositions going far beyond the mere protection of reputations

Essentially, the point that is made is that there is no benefit to a system in which false statements of fact are freely disseminated, which may destroy a person’s reputation, relying only on the “competition of the market” to expose them Where falsehood prevails, deleterious social consequences ensue Thus, where false statements were concerned, the Court of Appeal was of the opinion that the marketplace of ideas rationale was not applicable, as such statements were inaccurate and of no social value In the context of the issue of political defamation and how to value potentially libelous speech, the Court noted that asserting a UFO had been spotted over Singapore skies was distinct from asserting a politician was a crook.2 The latter statement if false should not be protected as “there is no interest in being misinformed” as this serves no public interest and is destructive of democratic society

In the same vein, the propagation of deliberate falsehoods can undermine deliberative democracy and democratic processes In 2019, Singapore adopted the Protection from Online Falsehood and Manipulation Act (POFMA) to deal with ‘fake news’, which like defamation, fall into the category of ‘lies’ The argument from truth and from democracy are probably the two most important theories that warrant consideration in relation to the regulation of online deliberate falsehoods ‘Fake news’ would appear to be parked under the article 14(2) ‘public order’ ground of derogation from expressive freedoms Public order is “less decentralized” than a ‘law and order’ issue, as it must directly affect the community or general public interests, as distinct from minor breaches of peace of a purely local significance which primarily injure specific individuals3 The Courts have capaciously defined ‘public order’ to include not only physical threats but threats to intangible values and processes, such that “Disseminating false or inaccurate information or claims can harm and threaten public order”4.

the Reynolds privilege, it would have to consider developments such as the relaxing of the Films Acts restrictions and the political developments in relation to unelected parliamentarians to encourage democratic participation and a more transparent political system to see whether this constituted “sufficient evidence” of a “change in our political, social and cultural values” to support such a development In striking the balance between freedom of expression and protection of reputation, a value judgement would have to be made, based on local conditions: [271], [290]

1 [2001] AC 127 at 238, approvingly cited by the Court of Appeal Lee Hsien Loong v Review Publishing [2009] SGCA 46 at [284]

2 Lee Hsien Loong v Review Publishing [2009] SGCA 46 at [238]. 3 Re Tan Boon Liat [1976] MLJ 68.

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Citizens have an interest in receiving information pertinent to the actions of politicians and public affairs, to be able to understand public affairs and to enable them to make an informed choice in electing representatives and criticising policies For elected representatives, information is important to effective public debate and informed policy-making1.

However, the abuse of free speech to spread misinformation poisons the well and negatively impacts public debate If a positive liberty “is the power to control or participate in public decisions”, and if free speech is a ‘negative liberty’ (requiring the state to refrain from interfering with a liberty), the exercise of free speech may undermine the democratic process: If you misinform me about a certain electoral candidate and I choose to vote for her opponent, you thwart my positive liberty to effectively participate in the political process in an informed manner because of the deliberate confusion your falsehoods caused If I should repeat what you said or forwarded your propagated false views to someone, you have poisoned my exercise of the negative liberty of free speech to transmit accurate information In the same way that crying fire in a crowded theatre is not protected speech, “lies” are not protected as valuable speech, for the harm they cause, and the good they not serve

One reason proffered for enacting POFMA was to maintain honest on “a foundation of truth, foundation of honour and foundation where we keep the lies out”2 POFMA which operates through tools like correction orders requirement a person communicating falsehood to put up a notice stating what was communicated was false or to correct the falsehood, is designed to equip the government with tools to combat online falsehood, although “the first…line of defence…is a well-informed and discerning citizenry”3.

While the principle that misinformation thwarts the democratic rationale of free speech is sound, and while POFMA targets factual statements rather than opinion or satire, concerns remain that the extensive new powers may be abused to silence critics Issues of accountability, while important, lie beyond the scope of this paper Nonetheless, the key point is the prescription that public debate be conducted in an honourable fashion, in the interest of truth, which requires a commitment to rational public debate

Emotional Man

When it comes to tests for whether speech is libelous or contemptuous, the test applied by the courts is that of the “objective and fair-minded man”, the “ordinary reasonable person not unduly suspicious or avid for scandal”4 This is an idealised vision of the citizen In contrast, the law and the courts take note of what may be called the “emotional man”, with emotion being viewed as something to be feared, and controlled This engages issues of ‘hate speech’, wounded religious feelings, whether there is a right to offend or a right not to be offended, and other forms of what may be called ‘dignitary harms’ which implicates the often toxic world of identity politics

1 Lord Nicholls, Reynolds v Times Newspaper [2001] AC 127 at 200.

2 K Shanmugam, Debate on POFMA Bill, May 2019 (Parliament: fake news law passed after days of debate, Straits

Times, May 2019)

3 Parliament: fake news law passed after days of debate, Straits Times, May 2019 (Communication and Information Ministers S Iswaran)

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A judicial perspective of “emotions” is that this entails a loss “objectivity and sense of perspective”; while the “hope” is that “everyone is an angel” who ought to act with “patience and rectitude”, the truth is “We are all only human and ought to bear, as far as possible, with each other’s foibles and weaknesses”1 Where “intensely controversial” issues are involved which elicit “diametrically opposed”, “intense and even emotional” responses beyond the legal sphere, one gets the non-salubrious environment of “a cacophony of voices.” Singapore judges adopt the posture of being above politics, insofar as is possible, by discounting all other voices in deference to “the voice of the law, which represents the voice of objectivity.” Those other voices “generate unnecessary heart (and distraction) rather than needful (illuminating) light”2 Emotions are presented as the anti-thesis of objectivity

The law identifies whose “emotions” merit protection, which in an era of ‘trigger warnings’, ‘woke culture’, victimhood culture and political correctness codes, elicits a vision of the perpetually offended Censorious Man, particularly in Western jurisdictions, where identity politics has birthed social tribalisation and cultural Marxist tactics of demonising and intimidating one’s opponent

Hate speech laws are typically directed towards protecting ethnic and religious groups or other vulnerable groups from racist or disparaging speech, to protect them from negative stereotyping and vilification which, in inflicting psychological harm, might cause members to withdraw from society and not participate as equal citizens in democratic processes While all groups should be protected from physical violence, hate speech laws may be weaponised as a tool to silence those who, for example, consider certain lifestyles and practices immoral This is something to be subject to critical scrutiny and political debate, in terms of how to define ‘hate speech’ as speech to be denied legal protection, as this is a subjective concept prone to abuse3, and who applies it One man’s hate speech is another person’s political opinion and it is illiberal censorship to allow any power elite to determine what lesser mortals may think or discuss, which goes to the heart of freedom of conscience and speech If critical moral disagreement can be defined as ‘hatred’ and a form of ‘violence’ towards a group, an infliction of ‘dignitary harm’, this can be multiplied by as many group as exist in any one polity making such claims A distinction must be drawn between protecting one from a reasonable fear of violence which is justifiable, and laws to prohibit the offending of sensibilities, as we can all be ‘woke’ and offended, which will ultimately erode the public space within which all citizens can freely interact, to the detriment of any sense of social solidarity which has integrative force

There are no laws in Singapore which address ‘dignitary harms’ as such, which envisages the Therapeutic Man who seeks affirmation of his identity by legal recognition There are laws which make it an offence to urge the use of force or violence, on religious grounds against any distinct group defined by any characteristic4, treating this as a law and order issue What is more pertinent in the Singapore context is the vision of the ‘Religious Man’ who gets emotional when his faith is insulted, through hurt feelings or taking offense Of course it would be an over-reach to label all religious persons as ‘emotional’ persons, as there are variations within and between faith communities, and

1 BOI v BOJ [2018] SGCA 61 at [5], [6], [8] 2 Lim Meng Suang v AG [2015] SLR 26 at [5].

3 Jeremy Waldron, The Harm in Hate Speech, (Harvard University Press 2014)

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secular humanists are also prone to emotional responses The concern here is to examine how ‘law’, which projects itself as inhabiting the realm of objectivity and dispassion, contrasts itself against the pre-modern ‘other’ of religion, which is not a sophisticated perspective

Singapore is a secular democracy which practices a form of agnostic rather than atheistic secularism; religion is sometimes separated from, accommodated by or cooperates with the state It has no official religion, no anti-propagation, apostasy or blasphemy laws, as the right of every person to profess, practice and propagate one’s religion is constitutionally guaranteed under article 15(1), subject to “public order, health and morality” under clause (4) It is not the business of government to preserve any one set of beliefs or to determine religious orthodoxy1, though the preservation of ‘racial and religious harmony’2 is a core imperative Some faiths are closely associated with certain ethnic groups, as where 99% of Malays in Singapore profess Islam and enjoy some degree of legal pluralism under the Administrative of Muslim Law Act, which derives from article 153 of the Constitution

While the government appreciates the contributions of religious groups to social welfare and the role of faith as a “source of spiritual strength and moral guidance”3, it also fears the volatility and “emotion” that religion may invoke and its destructive force This is historically rooted in racial/ religious riots of the 1950-1960s and remains a contemporary flashpoint for disharmony between religious groups, and increasingly, between religious and irreligious groups

The primary laws catering to the emotional religious man is found in the religious offences clauses in the Penal Code (now ported over to the Maintenance of Religious Harmony Act or MRHA as amended in 2019) and the Sedition Act These all also apply to online speech Section 3(1)(e) of the Sedition Act defines ‘seditious tendency’ as “to promote feelings of ill-will and hostility between different races or classes of the population of Singapore.” In the case law, ‘race’ has been expansively construed to include religion, at least in relation to Malay-Muslims

Section 298 of the Penal Code made it a religious offence to engage in the deliberate wounding of racial and religious feelings of any person Section 298A criminalises speech which promotes “on grounds of religion or race, disharmony of feelings of enmity, hatred or ill-will between different religious or racial groups.” Sections and of the MRHA empowers the minister to issue a restraining or ‘gag’ order against religious leaders or secular conflict entrepreneurs who act in a manner “causing feelings of enmity, hatred, ill-will or hostility between different religious groups.” The common denominator is the reference to “feelings” and the negative emotions of hate, ill-will, hostility, enmity, though little guidance is provided as to what degree of woundedness is required, or whether there is an objective standard governing sensitivities arising from wounding religious or ‘racial feelings.’

The need to heed religious sensitivities is evident in both political discourse and in how courts interpret expressive and religious freedom guarantees While the constitutional liberty to propagate faith is recognised as integral to certain missionary faiths, like Christianity and Islam, prudence cautions

1 “The Government will not interfere in doctrinal matters within each religion But it has to step in to protect our racial, religious harmony.” ‘Singapore must more to safeguard racial, religious harmony: Shanmugam,’, Channel NewsAsia, 19 Jan 2016

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that this be exercised sensitively so as not to denigrate other religions, given the umbrage religious communities can take when threatened or insulted, as when they face “aggressive proselytism”.1 The Sikh and Hindu minorities are especially sensitive to the threat to their faith communities posed by evangelical efforts from “more predominant religions2”; they consider the conversion of their followers to other faiths seriously disquieting Religious majorities like the Buddhists view conversion efforts as insensitive and irritating, and have identified the MRHA as a safeguard against insensitive proselytizing as a form of harassment.3 An Internal Security Department (ISD) report annexed to the 1989 MRHA white paper noted that Muslims had been “extremely sensitive” at any attempt to convert them to other faiths They reacted with indignation when Christian groups distributed Malay language pamphlets using the word ‘Allah’ for God as they considered the word “specific to Islam”4 and therefore misleading Some Muslims took countermeasures: sermons on the danger Christian evangelists posed were delivered in mosques, lists of former Muslims who had converted to Christianity were put up in mosques, “warning other Muslims to stay away from them”5 Booklets questioning Christian belief were distributed Without resorting to legal sanction, the ISD has ‘advised’ Christian organisations active in evangelizing Muslims to avoid activities causing misunderstanding or conflict6 For example, on receiving a complaint, the ISD called up a Christian pastor who had uploaded on his church website certain videos where he conducted interviews with a former Buddhist monk and nun and appeared to mock Buddhist tenets such as reincarnation and nirvana7 He received a ‘warning’ that such statements trivializing the belief of other faiths were “highly inappropriate and unacceptable” Certain actors as self-proclaimed defenders of religious harmony poured fuel on the fire by demanding the prosecution of the pastor, after he his personal apology to Buddhist and Taoist leaders had already been apologised The government ignored these calls, preferring to support the reconciliatory efforts adopted The pastor was commended for taking action to redress his mistake, as were offended religious leaders for urging their flock to act with constraint and for extending forgiveness to the pastor, with all parties mutually affirming the need to preserve religious harmony as a common good8 The Home Affairs Minister stated problems were to be solved “rationally and constructively” and the government would not allow anyone “to exploit and escalate any issue to whip up emotions and tensions” between ethnic and religious communities While affirming the right to propagate religious beliefs, it was stressed this “must never be by way of insulting or denigrating the religious beliefs of others” as “mutual respect, tolerance and restraint” were critical to maintaining

1 Ibid., at [15]

2 Select Committee Report, MRHA Bill, 20 Sept 1990, 13-20

3 Agree to Disagree: Conversations on conversion’ at p 18, available at https://conversion.buddhist.sg/ Para 5, ISD Report, Annex, Maintenance of Religious Harmony white paper, Cmd 29 of 1989 Para 6, ibid

6 Para 7, ibid

7 See Thio Li-ann, ‘Contentious Liberty: Regulating Religious Propagation in a Religiously Diverse Secular Democracy’ (2010) SJLS 484-515

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communal peace and harmony1 Arguably, a public ritual of apology and reconciliation has developed, as evident in subsequent cases of inter-religious conflict2

This reflects the goals of relational constitutionalism to secure “the relational well-being of individuals and groups and to preserve sustainable relationships in a polity where disparate religious groups and their members are able to co-exist, maintain their distinct identities, while being unified by a national identity and a shared commitment to the common good”3 The objective is to sustain civil peace and social harmony by building durable relationships and seeking to nurture communal solidarity Emotional damages necessitate relational healing as litigation or legal sanction can serve to alienate the relevant parties indefinitely

Where the government has chosen to prosecute offenders under the Penal Code or Sedition Act4, the courts have taken the opportunity to delineate the obligations owed society at large and offended religious parties The section 298 Penal Code offence is complete once an utterance is made with the deliberate intention of wounding religious feelings; evidence or proof of actually offending religious feelings goes only to sentencing No actual impact is actually needed This reflects a presumption of sensitivity, of an emotional response to something said about one’s faith which is “clearly derogatory and offensive”, which suggests an objective test5

In Public Prosecutor v Koh Song Huat Benjamin6, the accused was prosecuted under the Sedition Act for posting a picture of a pig and the halal logo and anti-Malay and anti-Muslim remarks on his web blog; this act bore seditious tendencies, sparking off “a widespread and virulent response”, sparking off 200 comments including racial slurs against Chinese and Malays7.

A deterrent sentence was imposed to underscore the gravity of the act, “the especial sensitivity of racial and religious issues in our multi-cultural society, given our history of the Maria Hertogh incident in the 1950s and the July and September 1964 race riots.” The right to online speech had to be “balanced against the right of another’s freedom from offence”, as well as broader public interests It is unclear what status and content a right to be free from offence has, though it seems to have been placed on par with a constitutional guarantee of expressive freedoms All Singaporeans regardless of racial origin were obliged to self and country “to see that nothing is said or done which might incite the people and plunge the country into racial strife and violence” these constituting “basic ground rules” and “appropriate social behavior”8 This affirms the existence of the religious emotional man and the need not to unduly cause offense, which has a chilling effect on speech, given the subjectivity of ‘sensitivity’

1 Statements from Buddhist and Taoist Federations and DPM Wong Kan Seng, Straits Times (Singapore), 10 Feb 2010 See Li-ann Thio, ‘Irreducible plurality, indivisible unity: Singapore Relational Constitutionalism and cultivating

harmony through constructing a constitutional civil religion’ [2019] 16(3) German Law Journal 171-213

3 Li-ann Thio, ‘Relational Constitutionalism and the Management of Religious Disputes: The Singapore ‘Secularism with a Soul’ Model (2012) Oxford Journal of Law and Religion 446-469

4 See Jaclyn Neo, ‘Seditious in Singapore! Free Speech and the Offence of Promoting Ill-Will and Hostility between different racial groups’ [2011] SJLS 351-372

5 Public Prosecutor v Amos Yee [2015] SGDC 215 [2005] SGDC 272

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403

The presumption of sensitivity to offensive speech is evident too in Ong Kian Cheong v Public Prosecutor1 where a Protestant Christian couple were convicted under the Sedition Act for sending ‘tracts’ such as ‘Who is Allah?’ to persons with Malay/Muslim sounding names One reader, who received the “little bride” booklet found this offensive in denigrating his faith and lodged a police report; he stated he was “very angry” and considered that the publication in condemning Islam could “‘incite religious tensions between Muslims and Christians”2.

They were awarded custodial sentences to underscore the importance of social harmony The district court reflected a fear of the possible rage of offended Muslims He commended a Muslim who had received an offensive tract for making a complaint “responsibly” to the police to investigate a matter, noting it was “well known” in Singapore that “persons of the Malay race are Muslims” and that Christian publications denigrating Islam would “undoubtedly” promote feelings of ill will or hostility between “Muslims, Malays…and people of other religions.” This problematically conflates race with religion, given that religious affiliation is not ascribed but voluntarily chosen It may be more responsible to report a matter to the police than to start a race riot, although another responsible course of action would be to ignore the booklet and throw it away, in valuing free speech as a common good Nonetheless, in this case, what was valued was not free speech and the argument from truth, but civil peace, by placating or protecting the religiously offended and punishing the offender, with the judicial scolding being an expression of societal disapproval designed to mollify the offended

The matter was dealt with as an expressive freedom issue under article 14; no attention was paid to the article 15 right of religious freedom, including the right to propagate a faith, which may require greater tolerance and self-restraint in the face of disliked or offensive views The district judge found that the tracts denigrated “the Roman Catholic Church and people of other religions.”3 It is unclear whether ‘denigration’ entails a theological disagreement or deliberately offensive diatribe While praising the Muslim-Malay recipients of the tracts for their responsible actions despite being provoked to the emotion of anger, the District Judge heaped criticism on the Protestant couple for their “intolerance, insensitivity and ignorance of delicate issues concerning race and religion in our multi-racial and multi religious society”4 by sending unsolicited potentially offensive tracts to recipients with Malay sounding names Sensitivity and tolerance as prudential rules speak to community identity However, while the accused may have demonstrated insensitivity in ‘tracting’, they cannot be said to have acted intolerantly, unless one accepts the contested view that the constitutionally safeguarded act of propagation, which facilitates the freedom of religious profession, is itself intolerant because the speaker assumes his views are objectively correct and that religions are not of equal veracity One might also note that emotions could be disciplined by requiring hearers of offensive speech to exercise resilience and tolerance, in deference to the common good of expressive freedoms and robust enquiry with respect to religious questions which informs fundamental life decisions It is worth noting that views one might find offensive in relation to a religion or its founder, might also carry truth

The law in relation to religious feelings reveal a prioritisation of civil peace over truth and robust enquiry: this perpetuates the dichotomy that religion is emotional, subject to passionate impulses,

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tribal, while law is reason, restrained and deliberate The primordial is to be feared as it is impervious to reason and argument, being a matter of taste or preference1; the rational, to be aspired towards If the history of the West is that of “increasing emotional restraint”2 wrought by self-discipline and control in the modern period, countries with religious feeling laws, or hate speech laws, dwell in the pre-modern past Like the gullible coloured populations of British colonies where laws on scandalizing the court were considered necessary, they cannot stand up to the rigours of what a robust free speech regime demands in terms of active participation, discernment and tolerance of dissenting views, and must be shielded from such demands

Conclusion

Like the Madisonian Angel, perhaps the Rational or Reasonable Man who is a truth-seeker, deliberative, able to see the broader picture and the common good, does not exist If so, then laws addressing emotions, other than the liberal emotion which fears autocratic government, will grapple with the gullible man, the emotional/religious/impulsive man; this itself demonstrates the local particularities of any one polity, beyond abstractions rooted in a vision of man and human flourishing based on the European Enlightenment Insofar as free speech theory and valuation rested on the rational person, this may now need to be adapted to accommodate the other inhabitants of our legal village and to interrogate their influence on the scope of free speech and its legitimate qualifications to secure other goods like dignitary rights, community harmony, inclusive environments, pluralism, and civility which conduces to sustainable democracy

1 Patricia Mindus, ‘The Wrath of Reason and the Grace of Sentiment: Vindicating Emotion in Law in Law, in Law, Reason and Emotion’, Mortimer sellers ed., (CUP 2017) 202 at 216

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