Censorship and the Problematic of Hate Speech

Lawrence Liang Bangalore

In many ways the problem of hate speech is the fault line that divides advocates of freedom of speech and expression. It is one of the most contentious areas, and it is important to open it out because one tends to get trapped in a certain mode, where one tends to not speak out against certain kinds of things, because there is a sensitivity to the context - the most obvious being the nature of the past five years, with the BJP being in power. One cannot lay out certain things for the danger that it may have in terms of implications.

I want to introduce the reflexive practice that practitioners and advocates of free speech should have in the process of thinking through their own politics. I am going to lay out a few of the conceptual problems that we face when we look at the issue of free speech. I am going to use Judith Butler’s very provocative (though often dense!) book called “Excitable Speech”, through some of the new developments that have taken place in the Indian High Courts to underline some of the problems that may arrive when you make a demand for a strong State intervention in the realm of hate speech itself.

I begin first with the idea of the ability of language and speech to cause injury, to wound people, to harm, inflict damage etc. I want to pose a question that when we really think about it, how we do think of the ways in which language causes injury. Why is there a problem? Butler says that in theorising the notion of pain and suffering, a lot of the work has gone in to examining the pain, suffering and the other experiences that we take in the name of wounds, are actually outside of the realm of language. In other words ‘pain’ escapes the symbolic order. That is precisely the difficulty of having to describe what the experience of pain is. So what happens when you take two unlikely metaphors, one of language and the other of pain which is allegedly outside the realm of language and bring them together in terms of understanding the language of hurt, or of language to cause harm. Is there a simple way in which we can make this metaphor or are there problems that will arise?

One of the ways that one can argue that language does have the ability to cause harm or pain would be to firstly acknowledge the fact that we may be pre configured or actually constituted by language itself. Is it one of the consequences of being constituted within language that allows language the ability to inflict a certain ‘pain’. But this process of being constituted by language and the entire idea of being interpellated by language, we need to examine what it allows for and what does it not allow for. Butler uses Althusser’s idea of interpellation, to argue that we are all constituted by language. But there is a problem that we need to identify there. Are we already constituted as subjects of language or is there a process where subject comes before language? Is it an a priori or is it after language? Why is this an important question. The reason is, how do we then think through the possibilities of what will arise if you recognise that you are constituted within language than as a subject? Are there any fault lines where the subject may speak back.

(I want to refer here to a question which was asked of Akshay yesterday – why do you use the term queer? Is it not self derogatory? Aren’t you using a derogatory term to describe yourself and how do you expect others to have sympathy for you? The process of interplay through the process of naming a subject in terms of the homosexual, queer or the nigger is also at the same time the inauguration of a subject and position where there may be an ability to re-appropriate, or answer back.)

The question that I want to open out is - what are the conditions under which this process of being interpellated within language actually works. Are there fault lines which render the process of interpolating the subject, or are there ways in which the process of interpolation actually misses its target. I want to look at how we think of this process as one of the ways in which we can imagine non-state interventions or non-state responses to the problematic of hate speech.

The classical one is the ability to reconstitute, or the ability to appropriate and remodel. Let me give you an example, John Wayne who is the classical example of machismo that we all love to hate is a part of the everyday language of the US. So when George Bush (the senior), who is the father of George Bush (the idiot), was asked what he thought he would do if he caught Saddam Hussain, he said nothing. Instead he pulled his pants up in a very John Waynesque manner, which basically meant that I would kick his ass. This machismo figure, with his guns and holsters etc, was taken by a Lesbian greeting card company which added a little rouge and lipstick to John Wayne, but added a line which said “its such a bitch having to be so butch”. That is a classical mode of appropriation of speech, and rendering some ability to intervene within the politics of language, the politics of having been named, a queer community writing or speaking back through a dominant masculine culture. The presumption for me is that every act of interpolating and naming a subject is always necessarily an incomplete one, precisely because there exists the moment of the inauguration of the subject in language, which also inaugurates the moment of someone who can render language vulnerable.

The presumption of advocates of the control of hate speech is dependent to an extent on the idea of the absolute sovereignty of speech itself or of the speaking subject. I want to see how that can be endangered at times. The speaking subject may not be always be so strong.

Let me give you another story from Toni Morrison. A couple of boys are holding a bird in their hand and they ask a blind woman to guess whether the bird is dead or alive, a hugely violent act in some ways. The woman’s answer is that I don’t know whether the bird is dead or alive. I only know that the bird is in your hands. Very fascinating, this ability to render back the violence of the act through another performative moment.

When we talk of utterances causing harm, how do we understand the idea of power of language. Drawing from Austen the philosopher, Butler says that using Austen’s idea of the speech act, the utterance can be broken into two types. Austen’s idea of a speech act is an utterance which is simultaneously a description as well as an action. For example when you say, “I bet you are also performing a speech action” it both describes and does.

For Austen the utterance can be broken down in two types. You have the elocutionary speech which is something where the utterance does what it speaks. There is no temporal disjuncture between the utterance and the act. The elocutionary word acts through conventions power. The best example of this is the speech of the judge in court. Let me read our from Robert Covell’s “Violence in the Word” –

“Legal interpretation takes place in the field of pain and death. This is true in several senses. Legislative acts signal an occasion, the imposition of violence upon others. A judge articulates the understanding of text and as a result somebody loses his property, freedom, children and even life. Interpretations in law also constitute justification for violence which have already occurred or which is about to occur. When interpreters finish their interpretation they often leave behind victims whose lives have been torn apart by organised social practices of violence. Neither legal interpretation nor the violence that it occasions maybe properly understood apart from one another”.

In contrast to this is the idea of the prelocutionary speech. The speech does not have an immediate effect but may have consequence. In other words there is a temporal disjuncture between the utterance and the effect. The best example is the naming of a community, either as a nigger or the fear example that we used. And the speech act here is not a momentary utterance but goes through a nexus of temporal horizons.

I want to draw these into the hate speech problematic. In the US hate speech emerged in the context of racial speech, sexual speech and speech against sexual minorities. The ensuing theorising brings together the two categories of elocutionary and prelocutionary and treats the two as though they were the same or that there is no distinction between the two.  The best example is the Dworkin and MacKinnon position on pornography, where the argument is that pornography is not merely a descriptive speech but it is an action, it itself is violence. What is summarised as pornography is the theory and rape is the action. The argument of Dworkin and MacKinnon is that pornography in many ways has the elocutionary power and this is where I want to create the fault line, and when we unpack the nature of speech and try to look at the idea of harmful speech and how do we respond to it.

This is not to say that hate speech does not exist. There is a certain assumption when one evokes the idea of elocutionary that there is a certain fixity in language, fixed meaning that arises. The problem that arises when you collapse the two is this. If you look at the elocutionary power the only true authority that has the elocutionary power of the ability to execute as you speak is the state or the older model of the sovereign speaking subject. What happens when you have advocates of hate speech wanting the State to act as a neutral arbiter or legal enforcement of speech between citizens, is that you actually background, you make invisible the power of the State itself. Where the State is configured as a neutral arbiter of speech between individual civilians,  and subjects, who are granted a certain kind of sovereign power. To insist on the gap between the speech and the conduct is to support the role of non juridical forms of intervention.

In fact there may be a much deeper problem that arises when we presume such an elocutionary power to all speech acts, and demand that the state intervene to regulate the domain. When we shift to the idea of violence enacted by citizens towards each other; the state is tacitly figured as a neutral instrument of legal enforcement, and citizens are configured as sovereign subjects whose speech carry a power that is exactly like state power

In other words, our speech is deemed to have the same linguistic force as that of the state. The violence of the court is then unwillingly backgrounded in favour of a politics that assumes the fairness or efficiency of the courts. The judge then has the ability to determine what counts as and what does not count as juridically acceptable speech, thereby leading to strange consequences. This power is not merely a power of adjudication, but in fact grants the state the discursive power to produce hate speech through the power of legal redress

I am going to use an Indian case which illustrates this. The case of Joseph Baine Vs. The State of Maharastra which is an example of hate speech application. After the Bombay riots, Joseph Baine, a former IAS officer  filed a petition where he urged the government to take action under Section 153 (a) and (b) of the IPC, which is the hate speech provision in terms of promoting enmity between groups, against Bal Thackerey and Samna for the kind of article that they carried. They brought together 9 articles and each of them is your typical one - Muslims are Pakistanis,  they are anti-nationals and it is time that we got rid of these anti-nationals.

When the case came in court their interpretation of Section 153 (a) and (b) is interesting. Their argument is that if you read the article as a whole, the article does not promote enmity against an entire community. It only promotes enmity against those members of a community who are anti national or who are terrorist. This is an instance where the recourse to State power to determine hate speech is actually the site for the production of hate speech. This is not a singular example. There are examples where this happens over and over again. What happens with this invisibilising of the productive capacity of the state in producing hate speech, and rendering it invisible as the neutral arbiter, is for me a question that we need to be a little careful about when we ask for stronger state interventions.

A number of other things that we need to flag off. The assumption that a citizen or an individual has the same sovereign power as the State bring about an interesting paradox. The speech of the person accused of breaking a law, (Togadia, Thackeray), is ironically invested with the sovereign capacity of enunciation.

So the performative power of the hate speech is figured as the performative power of state sanctioned legal language. They are seen on the same plane that they have the same elocutionary effect. And the contest between the hate speech and the law is then staged paradoxically as a battle between two sovereign powers and this is something that we need to think about and be a little careful about.

The final point that I want to make is that, linking it to the first part of my presentation, linking it to the ability to re-appropriate or the ability to have performative utterances itself as one of the linguistic conditions of citizenship and what happens when you have fixity of the imagined elocutionary citizen subject, and what is the ability of having the utterance. Two examples: When Arundhati Roy declared that she was seceding from the Republic of India and declaring herself to be a mobile republic in her famous article “The End of Imagination”. If you have the assumption of the elocutionary power of all speech to be the same, is that not then an act of hate speech? The second example the Manipuri protest which we have not been able to comprehend because it is outside the realm of language. There is a pragmatic question here which is that even if you have hate speech laws, who are they being used against. There are larger questions about the way that we think of what happens when we grant the State the ability to control speech between citizens where linguistic appropriation is also one of the pre conditions of citizenship itself.

Lawrence Liang is a lawyer, researcher and media analyst with the Alternative Law Forum, Bangalore

Even if you have hate speech laws, who are they being used against?