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A dude going by the rather charming moniker, Sexy Fragrance Prince, has been charged under s. 298 of the Penal Code. Since I’m presently researching on the topic of hate speech legislation, I thought I should weigh in a little on this debate.

A few good blog posts on this issue:

• Ian on the Red Dot, “Bloggers Should be Allowed to be as Racist as Possible”
• Simply Jean, “Local Blogger Arrested”
• Simply Inconceivable, “Jail the racist blogger. Legal?”

Before commenting on the free speech issues, I would note that the relevant provision used here is s. 298 of the Penal Code (for wounding another person’s racial or religious feelings with deliberate intention), and not the Sedition Act (as in 2005, with Benjamin Koh and his ilk).

Section 298 arguably focuses on the victim’s interests in equal respect and dignity,[1] rather than on abstract ‘public order’ considerations (as with the Sedition Act and s. 298A of the Penal Code). This subtle shift towards a more individualist, rights-based tack is to be commended. Of course, things would be even better if s. 298 required proof that the victim’s dignity, reputation or self-respect were harmed.

On to the main part of my post.

A Right of Free Speech

First of all, it’s pertinent to ask: what does it mean to have a right of free speech? Professor Wojciech Sadurski gives what I think is a very elegant answer. A right of free speech, if at all meaningful, must insulate speech from the ordinary operation of the harm principle.[2]

What does that mean?

Ordinarily, the government is entitled to legislate against X, if the costs of X even marginally outweigh the benefits. For instance, if X refers to the consumption of chewing gum, the government is entitled to prohibit X as a matter of constitutional principle. Of course, we may protest that it’s being paternalistic and / or draconian, but that becomes a matter of politics, not about legal validity.

If, on the other hand, X is a ’speech-act’, we say that the usual costs-versus-benefits analysis does not apply. It is not enough that the costs slightly outweigh the benefits. Instead, we demand that the harm caused by X be grave, and that the legislation in question must be closely connected to preventing the harm, rather than for some other reason (e.g., paternalism). Thus, in the U.S., it is famously said that speech may be curtailed only if a “clear and present danger” is shown.[3]

Moreover, the mere fact that another person might be ‘offended’ by your speech is not an adequate reason to suppress it. “Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according to it constitutional protection.”[4]

How does this bear on the case of Sexy Fragrance Prince? Generally, when people seek to defend such restrictions on free speech as the Sedition Act and the Penal Code, a trite statement is that the ‘right’ of free speech must be ‘balanced’ against one’s social responsibilities, and the possible harms which result from one’s acts.[5]

This view is seductive, and superficial. We must realize that the language of ‘rights’ means that the burden of justifying a particular restriction lies squarely with the State. The more we prize the right, the greater the justification that must be supplied.

Needless to say, the freedom to say what we mean, and mean what we say, probably ranks among our most cherished liberties.

A Blogger’s Rights

Let me address an excerpt from a post at Ian on the Red Dot:

To me, the stuff he says isn’t any worse that what I sometimes hear in a cab, on the bus, at the coffeeshop, in the toilet, during reservist …

Basically, lots of people say lots of stupid shit like this all the time. Yes, there are a lot of people with racist tendencies. Sad. True. That’s life.

There are two arguments underlying the analogy Ian draws between racist blog posts and coffeeshop talk.

(1) A Blogger’s Right to Privacy?

First, the common denominator in all these situations may be said to be that of private conversation between a handful of individuals. Thus, one is here invoking a right of privacy, added to a right of free speech. As I explained, the existence of a right means that the State must provide a stronger justification for any laws restricting that right, compared to if there is no such right at all. Presumably, two rights put together demand a very strong justification for state interference, e.g., grave and imminent harm.

Hence, racist speech, if uttered in a private setting, is more strongly protected than if uttered in public.

The analogy fails here, however. A racist blog post is surely directed at the public. Bloggers must rid themselves of the illusion that they have a right to privacy over what they post. Once you put content up on the Net, anything you say is fair game – even if it is some casual, throw-away remark. An argument from privacy is therefore grossly misplaced, and smacks of naïveté.

(Of course, even if, as a blogger, you don’t have a right of privacy, you may still have a right of free speech… which I’ll deal with next.)

(2) The Perlocutionary Effects of Racist Speech

The second implication in Ian’s above analogy is more promising. “[L]ots of people say lots of stupid shit like this all the time.” Speech of this nature is perlocutionary;[6] its harmful effects consist in how its message may persuade the recipient to act. If I make a racist remark that, “the Chinese are greedy”, for instance, the harm lies in the possibility that other people might be persuaded of the avarice of Singaporean Chinese.

Yet, the government cannot justify a restriction on speech, say, s. 298 of the Penal Code, by reference to the harm resulting from the persuasive effects of hate speech.[7] Why? Simply because a recipient of such speech is a moral agent, too. If you read my racist remark, come to believe that “the Chinese are greedy”, and then act on that belief (e.g., by attacking persons of the Chinese race), then you ought to be held responsible.

In this, there is a degree of “mental intermediation”.[8] Between my speech-act, and your act of violence, there is your choice of being persuaded by my message. If you choose to be persuaded, then I, as the speaker, drop out of the picture.

Contrast this with a situation where a boss tells his subordinate, “These Chinese employees are greedy. Please sack them.” The subordinate then fires said Chinese employees.

Here, the speech-act is not perlocutionary, but illocutionary. The speaker does not persuade another by his message; he actually does something with his words.[9] The crucial distinction is that the speaker has control over the hearer,[10] so that it may be said that the speaker acts through the hearer. The hearer is merely a passive agent for the speaker’s wishes. If so, then responsibility must still lie with the speaker, since there is no “mental intermediation”.

With the case of a racist blogger, however, there is no element of ‘control’ by the speaker over the hearer or recipient. In fact, the Internet is lauded as a medium for discussion among equals. If I post “stupid shit”, Z is free to reject what I say, and may castigate me for it. (This, of course, was the public’s response to Sexy Fragrance Prince’s post.) If, however, Z is persuaded by what I say to engage in actual acts of discrimination and violence, then the fault (legally and morally) lies with Z, and not with me.

On this basis, it may be argued that prosecuting racist bloggers like Sexy Fragrance Prince cannot be justified — unacceptable though the message of their speech is.

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