Today virtually no one can stop Hussain Haqqani etal and BLA like organisations from making so called anti Pakistan statements. Even though the press and electronic media may not carry these, social media is a wide open arena for anyone to write and say anything. This is also exasperated by the three democratisations of globalisation finance, information and technology and can have a devastating impact on national security and especially its perceptions.
Therefore, the recent upsurge in the use of effective social media has put national security squarely up against freedom of expression. Although the security vs. freedom debate has raged on for quite some time but the exceeding pace of technology and the plethora of available avenues of expression mean that there needs to be renewed focus on this discussion.
To put the question simply, is freedom of expression compatible with national security? Unsurprisingly, the answer is not so simple. Consider.
Generally speaking, freedom of expression is thought to be the power or right to express one’s opinions without censorship, restraint, or legal penalty. In the glittering age of social media, not only this is as large a freedom as any but also the most accessible!
In the context of this discourse, national security is recognised to be the national security framework clarified by previous op-eds and that includes defined unitary identity, purpose of national existence, range of interests and a security policy and its relevant strategies to achieve the end goals.
On the face of it, it may seem that freedom of expression and national security are largely incompatible. For sure see any dissenting tweet, hear any opposition sound bite, observe any debate in the media and the point is hit home relatively efficiently! What is going on? Is freedom of expression being sacrificed at the altar of national security? Not quite!
It is difficult to argue for an absolute case of anything, freedom of expression included. As Seneca said, “everything that exceeds the bounds of moderation has an unstable foundation”. Therefore, when it comes to national security, there must be a balanced view of freedom of expression. Surprisingly, this is not without judicial precedence.
Take the case of the Human Rights Act which was passed as law in the UK in 1998. The basic aim of this law is to defend the rights of any person in UK courts and compel public organisations including the government, police and local councils to treat every one equally, with fairness, dignity and respect. This is applicable to all people in the UK and even organisations! Article 10 of the Human Rights Act is titled Free Expression and is fundamental to the spirit of this law. This article allows for expression political, artistic and commercial in any medium i.e. words, pictures and actions. However, and in the interest of balance, article 10 restricts its application in a handful of circumstances including national security, territorial integrity or public safety! Hence, even age-old democracies have realised that there are instances where freedom of expression may have to be curbed i.e. there is no such thing as absolute freedom of speech. The UK has probably learnt it the hard way by first allowing preachers such as Abu Hamza relative freedom of expression and then second, charging and extraditing them for the same freedom of expression when it became a national security concern. Though, article 10 specifically does put the onus on the government and judiciary to ensure that any limit on freedom is proportional. And therein lies the rub! As this is a fundamental litmus test because the court is required to consider whether the restriction is the ‘least restrictive means’ for achieving the relevant purpose, in this case: the advancement of the national security framework paradigm especially in the interest of protecting the public and the state from acts of violence, terrorism or similar. Consequently, even the act of restricting freedom of expression comes with checks and balances.
In the US, the first amendment of the constitution guarantees freedom of expression and speech. It is deemed as the right to express information, ideas, and opinions free of government restrictions based on content and subject only to reasonable limitations. Note again, the reference to limitations! There are quite a number of them but the most interesting one is called the ‘clear and present danger’ test. This was established in 1919 through Schenck vs United States and says that “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent”. In simplistic terms: anything that challenges the national security of the US as formulated and defended by the US Congress. Here also the burden of proof to pass the ‘clear and danger’ test is on the government and its instruments, thus ensuring that this restriction too cannot be used without due diligence.
All this means that while freedom of expression is compatible with national security, it does need to come with a degree of balance, realism and moderation. There are no absolutes in this world and freedom of expression is no exception. The examples of the UK and US referenced democracies to most of the world are also tribute to this fact, that in order for security and freedom to co-exist, there has to be restrictions that must be diligently implemented and monitored.
Let that be a lesson to budding democracies and growing nations across the world! The road to absolutism leads nowhere!
