29.01.2019
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TALKING CONSTITUTIONAL DEMOCRACY DR. MIKE OZEKHOME, SAN, OFR, FCIARB, PH.D, LL.D
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Fake News and Freedom of Expression: The Nexus (Part 2)
W Curtain Call
e have so far seen from our last outing, that freedom of expression connotes the liberty of every person to openly discuss issues, hold opinions and impart ideas without restrictions, restraints or fear of punishment. Today, we shall continue with our discourse on the constitutional guarantee rights, to freedom of expression.
Freedom of Speech as Inalienable Rights In general, human rights are sometimes referred to as fundamental human rights or simply fundamental rights. However, in Nigeria, there appears to be some distinction between the terms: in this sense, while the ‘human rights’ encompasses the entire gamut of rights that are fundamental, universal and inviolable rights inherent in man by nature, ‘fundamental rights’ are seemingly limited to the rights enshrined in Chapter IV of the Constitution and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. In Hassan & 4 Ors v EFCC & 3 Ors (2014) 1 NWLR (Pt. 1389) 607 @ 636, paras. A – E, for instance, Abiru JCA declared that: “Fundamental rights, are those rights without which neither liberty nor justice would exist. They are freedoms essential to the concept of ordered liberty, inherent in human nature and consequently, inalienable. They are rights that belong without presumption or cost of privilege, to all human beings. They are frequently held to be universal, in the sense that all people have and should enjoy them, and to be independent, in the sense that they exist and are available as standards of justification and criticism, whether or not they are recognised or implemented by the legal system or officials of a country. The moral doctrine of fundamental rights, aims at identifying the fundamental prerequisites for each human being leading to a minimally good life.” See also IGWE v EZEANOCHIE (2010) 7 NWLR (Pt. 1192) 61 @ 92. False News False news refers to the deliberate misinformation or hoaxes, spread, disseminated through the media. False news, is not the same as satire. False news are stories that are fabricated, out of thin air. Simply put, false news are lies (circulated hoaxes), designed to deceive the audience. False news often employs eye- catching and sensational headlines. Social Media Social media are interactive computer-mediated technologies, that facilitate the creation and sharing of information, ideas, career interests and other forms of expression, via virtual communities and networks. Popular examples include Facebook, WhatsApp, Twitter, and LinkedIn. Restriction on, and Derogation from Right to Freedom of Expression The answer, is a resounding no. The right to free speech provided for in Section 39, is certainly not without limits, for Section 39 (2) and (3) of the same section circumscribe them, by prohibiting private ownership, ownership, operation or establishment of television or other wireless broadcasting, without due permission. It also permits restriction on members of the Police, armed forces, and other security agencies. In addition, Section 45 of the Constitution states: “Nothing in Sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom of other persons” Similarly, Article 19 (3) of the International Covenant on Civil and Political Rights, provides for the restriction of the right to freedom of expression. Also, in this regard, Article 9(2) of the African Charter
“....IT IS CLEAR THAT, THE RIGHT TO FREEDOM OF EXPRESSION, DOES NOT MEAN RIGHT TO SPREAD FALSE NEWS ON SOCIAL MEDIA”
on Human and Peoples Rights, simply provides that, the exercise or enjoyment of the right to freedom of expression shall be done within the limits of law. The determination of whether a particular act is justifiable in a democratic society, is a question of fact, solely reserved for the court to determine. Thus, in CHIKE OBI v DIRECTOR OF PUBLIC PROSECUTION (1961) 1 ANLR 186, the Federal Supreme Court held that, its role was not merely to rubber stamp the acts of the Legislature and the Executive; that the court must be the arbiter of whether or not any particular law is reasonably justifiable. Also, in OLAWONYIN v ATTORNEY- GENERAL OF NORTHERN NIGERIA (1962) 1 ANLR 324, the Court held that, a restriction upon a fundamental human right, before it may be considered justifiable must (a) be necessary in the interest of public morality and (b) not be excessive or out of proportion to the object which it is sought to achieve. Though, Section 45(1) of the 1999 Constitution of Nigeria does not expressly mention the act of spreading false news, as one of the vices that can lead to restricting the right to freedom of expression, a careful examination of the purpose of the law of defamation, brings it within the contemplation of the said constitutional provision, as one of the laws that is reasonably justifiable for the purpose of protecting the rights of others, and in this case, the right to protect their reputation. It can therefore, be safely said that, Section 45 (1) envisages restrictions on free speech to include treason, official secrets, contempt of court, or parliament, defamation, civil libel, slander under criminal law, incitement to mutiny or dissatisfaction among armed forces or Police, blasphemy, incitement to commit criminal acts, public disorder, racial hatred, etc. In the United States of America’s famous case of SCHENCK v UNITED STATES (1919) 249 U.S. 47, the Supreme Court invented the famous "clear and present danger" test, to determine when a State could constitutionally limit an individual's free speech rights, under the First Amendment of the U.S Constitution. In reviewing the conviction of a man charged with distributing provocative flyers to draftees of World War I, the Court asserted that, in certain contexts, words can create a "clear and present danger" that Congress may constitutionally prohibit. While the ruling has since been overturned, Schenck is still significant for creating the context-based balancing tests, used in reviewing freedom of speech challenges. The case involved a prominent socialist, and General Secretary of the US Socialist Party, Charles Schenck, who attempted to distribute thousands of flyers to American servicemen, recently drafted to fight in World War I. Schenck's flyers asserted that, the draft amounted to "involuntary servitude" proscribed by the Constitution's Thirteenth Amendment (outlawing slavery), and that the war itself was motivated by capitalist greed, and urged draftees to petition for repeal of the draft. Schenck was charged by the U.S. government, with violating the recently enacted Espionage Act. The government alleged that Schenck violated the Act, by conspiring "to cause insubordination ... in the military and naval forces of the United States". Schenck responded that, the Espionage Act violated the First Amendment of the Constitution, which forbids Congress from making any law abridging the freedom of speech. He was found guilty, on all charges. The U.S. Supreme Court reviewed Schenck's conviction on appeal.
The Supreme Court, in a pioneering opinion written by Justice Oliver Wendell Holmes, upheld Schenck's conviction, and ruled that the Espionage Act did not violate the First Amendment. That Schenk’s flyer amounted to a violation of the Espionage Act of 1917 (amended by the Sedition Act of 1918). The Court maintained that, Schenck had fully intended to undermine the draft, because his flyers were designed to have precisely that effect. The Court then argued that, "the character of every act depends upon the circumstances in which it is done”. While in peacetime such flyers could be construed as harmless speech, in times of war, they could be construed as acts of national insubordination. The Court famously analogised, to a man who cries "Fire!" in a crowded theatre. In a quiet park or home, such a cry would be protected by the First Amendment, but "the most stringent protection of free speech, would not protect a man in falsely shouting fire in a theatre and causing a panic”. In sum, free speech rights afforded by the First Amendment, while generous, are not limitless, and context determines the limits. "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." Against this test, the Court upheld the Espionage Act, and affirmed Schenck's conviction, finding that his speech had created a clear and present danger of insubordination in wartime. The decision, in addition to sending Charles Schenck to jail for six months, resulted in a pragmatic "balancing test", allowing the Supreme Court to assess free speech challenges against the State’s interests, on a case-by-case basis. (Justice Holmes, the test's creator, however, would attempt to refine the standard less than a year later, when he famously reversed himself and dissented in a similar free speech case, Abrams v United States.) However, the "clear and present danger" test, only lasted for 50 years. In 1969, the Court in BRANDENBURG v OHIO (1969) 395 U.S. 444, replaced it with the "imminent lawless action" test, one that protects a broader range of speech. This test states that, the government may only limit speech that incites unlawful action, sooner than the Police can arrive to prevent that action. As of 2019, the "imminent lawless action" test, is still used. Spreading False News on Social Media and Freedom of Expression From the foregoing analysis, it is clear that, the right to freedom of expression, does not mean right to spread false news on social media. In fact the constitutional right to freedom of expression and the act of spreading false news on social media, are strange bedfellows, and can never harmonise, due to overriding public interest. Section 45 of the Constitution has done a good job by providing reasonable restriction, in order to avoid the reckless use of the freedom of expression to wreak havoc in the society. (To be concluded next week). THOUGHT FOR THE WEEK “The inability or unwillingness of citizens to differentiate between fake and authentic news, is undermining a fundamental assumption of democracy: the informed voter.” (Richard Edelman).