Freedom of expression and the media: A strange paradox


In a landmark judgment of 1964, which still holds good, the Supreme Court of the United States emphatically established the right of the press to criticize public officials without being subject to libel or defamation charges. While reversing the Alabama State Supreme Court judgment in the case of the New York Times Co. Vs. L.B. Sullivan, the US Supreme Court Judge, Justice William J. Brennan Jr., in his majority opinion placed the legal issues in the context of what he referred to “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.”

Justice Brennan maintained that erroneous statements were inevitable in free debate and must be protected if freedom of expression is to have “breathing space”. He added that the advertisement which was placed in the New York Times by civil rights activists led by Dr. Martin Luther King, Jr. against police brutality was squarely a public expression and protest, and fell within Constitutional protection, especially the First Amendment. He concluded that neither the allegedly defamatory content of the ad, nor the falsity of some of its factual statements, nor the negligence of anyone in preparing or publishing it forfeited this protection.

In essence, Justice Brennan hammered out a Constitutional guarantee mandating that a public official if defamed could only recover damages if he could prove that the statement was made with actual malice, that is, with knowledge that it was false or with reckless disregard for truth. The court, therefore, placed a very high burden of proof on public officials, opening the gates wider for legitimate public criticism and opinion.

In crafting such a principle, Justice Brennan quoted James Madison, one of the founding fathers of the United States and the fourth president: “The censorial power is in the people over the Government and not in the Government over the people.” In fact, the US Supreme Court applied the legal concept of the “chilling effect” to get the balance right. Anything – law, legislation or threat of lawsuits – that stifles legitimate expression or political debate amounts to having a chilling effect on the freedom of speech.

Courts around the world continually refer to the US Supreme Court decision while handling cases involving libel and defamation of public officials and political leaders. Although, courts have not always followed the standard set by that court, yet, they have not altogether ignored the grounds laid insofar as the freedom of expression is concerned.

For instance, in 1995, the Indian Supreme Court, in the case of R. Rajgopal vs. State of Tamilnadu over the issue of the publication of a biography of a serial killer popularly called “Auto Shankar”, acknowledged the grounds and reasoning of the US Supreme Court judgment. Although, it fell short of accepting the entire basis as it did not fit the Indian context, yet, it concurred that in the case of public officials, unlike private individuals, right to privacy, or for that matter, the remedy of action for damages was simply not available with respect to their acts and conduct relevant to the discharge of their official duties. It continued and asserted that “this is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defense and would be liable for damages”

More than 50 years have passed from the date the US Supreme Court passed the landmark judgment. During this period, the media has grown by leaps and bounds in different parts of the world. With Constitutional protection and guarantees on the right to speak and freedom of expression, the media has played a significant role in transforming many nations and societies. However, at the same time, the media in some jurisdictions has turned acutely partisan and has exploited its power and influence to promote the thought, ideology and philosophy of certain groups or parties. To some extent, it is quite plausible and acceptable as all have the right to practice, promote and propagate their ideologies and beliefs. However, what is worrisome and ridiculous is the manipulation of facts and figures as well as maneuvering by the media to allow certain classes or political groups to propel to power and suppress the rights of those who are found opposed to them.

A glance at the practice and developments in India vis-à-vis freedom of expression and the role of the media reveals a paradoxical situation. A notable Indian historian, Dr. Ramchander Guha, has listed eight threats to the freedom of expression in the Indian context and ironically two of them are directly related to the media. He asserts that government advertisements indirectly force the media to either shy away from criticizing the government or in worst-case scenarios, eulogize its functioning and achievements even if that meant presenting debacles as achievements, an art that is making unknown anchors and journalists into media celebrities.

Secondly, corporate advertisers apply direct and indirect influence or stifle the functioning of the media in two ways. Firstly, they directly dictate support for the group or ideology that they favor or promote and hence ask the media to avoid being critical of that party or ideology.

Secondly, they shy away from sponsoring those magazines, journals, TV channels or newspapers which allow scholars, journalists, analysts or members of the public to raise their voice against the government or ministers as they fear government backlash or displeasure in one form or other.

One further nexus is found which is more insidious and that is corporate houses which own TV channels and newspapers. As a quid pro quo, they lend time and space to political bosses and their doctrines in exchange for obtaining favors in the business world.

Two other threats to the freedom of expression that Dr. Guha has highlighted revolve around imperfection in the judiciary and archaic laws, some of which conflict with rights guaranteed by the Constitution. For instance, Section 499 of the Indian Penal Code, which originated in the colonial era, covers all types of accusations and declares them to be defamation and does not except public officials or political figures. The jail sentence of two years in Section 500 chokes freedom of expression, a fundamental right guaranteed by the Constitution, and the courts can use these provisions when it suits them.

In another sad development or a natural corollary of government and corporate influence over the media and the urge to be overtly updated to retain TRPs, most Indian newspapers and TV channels have become docile, insensitive and shortsighted. If I can put it in a lighter vein, the media has turned out to be a donkey and does not bother or care what load it is carrying nor remembers the load once it has dumped it.

While one would wish the news to be presented in a plain and factual manner, it is the duty of the media to elaborate the connected issues in an unbiased manner. For instance, while reporting the statement of a government official or a political leader, the media is duty bound to question the explicit or implicit change and variation in the statement or contradiction between what that person said earlier and what he now says.

Once the mainstream media dumps its load, it does not bother to revisit it and evaluate those issues in the light of changed conditions and developments. What could be a better example than the splurge of news on money hoarding cases during the demonetization fiasco. Dozens of stories appeared in the media about people caught with undisclosed money in the form of hard cash in one place or the other. That news passed into oblivion as quickly as it erupted. No one now knows what happened to those mega scandals where a few people were declared to have billions of rupees as undisclosed wealth during the amnesty period and who later backtracked on their statements during demonetization. Whether charges were pressed against them, whether they were prosecuted or not, who were their political or underworld bosses, etc., all remains an enigma unknown to the public, thanks to the short memory of the media.

After being declared the kingpin of riots in 2002 in Naroda, a locality of Gujarat, Maya Kodnani was handed 28 years of rigorous imprisonment in 2012. Did the media ever highlight the issue of her getting bail in 2014 on the grounds of bad health? None of the convicts in the Gujarat carnage were handed a death sentence as the prosecution withdrew its demand for death sentences. The media which glorified the hanging of Afzal Guru and Yakub Memon turned dumb and deaf over such grave anomalies.

These developments do not augur well for democracy and the rule of law. If the media itself demands curbs and restrictions on the freedom of expression in the name of misplaced nationalism and patriotism as clearly evident in India now, democracy and democratic values will be under grave threat.

Safi H. Jannaty,