The right to ridicule

Following a highly erudite sentence delivered recently by the Court of Magistrates, a prominent newspaper writer raised very interesting questions on freedom of expression. She also promised she will be seeking human rights redress, possibly even going to the European Court on Human Rights in Strasbourg.

The recent case would seem to be still sub judice (in view of an appeal). I shall therefore refrain from commenting on it. However, I would like to express some reflections on the philosophical considerations underlying freedom of expression.

The title I chose for this piece I have taken directly from a 2006 article penned by eminent legal philosopher Ronald Dworkin for the New York Review of Books.

“Ridicule,” wrote Dworkin, “is a distinct kind of expression; its substance cannot be repackaged in a less offensive rhetorical form without expressing something very different from what was intended.

“That is why cartoons and other forms of ridicule have, for centuries, even when illegal, been among the most important weapons of both noble and wicked political movements.

“So, in a democracy, no one, however powerful or impotent, can have a right not to be insulted or offended… Only a community that permits… insult as part of public debate may legitimately adopt… laws. If we expect bigots to accept the verdict of the majority once the majority has spoken, then we must permit them to express their bigotry in the process whose verdict we ask them to accept.”

On reading these words, we could be excused if we conclude that Dworkin is advocating a free-for-all attitude. In reality, however, he is not. He cautions: “But the public does not have a right to read or see whatever it wants no matter what the cost”.

The cost is, to my understanding, the crux of the matter. But I shall return to this later.

In the meantime, I would like to refer to another contemporary eminent legal philosopher, Joseph Raz. According to Raz, a liberal right – such as freedom of expression – at once protects both the right holder’s interest as well as the interest of others. In other words, there is no real antagonism between the liberal right and the common good. It is in the collective interest that each individual member of the collectivity should enjoy his rights.

(I particularly like Raz’s conception, in this case, because the erudite magistrate referred to the “common good” in his recent decision, thereby placing his reasoning in line with a particular liberal school of thought.)

Reading Dworkin and Raz together, it is my opinion that the cost Dworkin refers to is that individuals end up not enjoying their rights, which is the essence of Raz’s reasoning.

In other words, the right to ridicule others stops at the doorstep of the right of others to enjoy their rights. Others do not have the right not to be ridiculed, offended or insulted, but they do have the right not to be lied about.

Writing in the Journal of Libertarian Studies of spring 2004, Belgian natural law philosopher Frank van Dun, explained further: “Making a person angry, saying something offensive or disturbing, or not being nice are actions that per se are not unlawful and do not harm a person.” I would think that the prominent newspaper writer who has raised this extremely interesting issue is very well-versed in the art of “saying something offensive or disturbing, or not being nice”. At least, this is what the court seems to have said in its recent decision. This attitude is in itself not unlawful.

But – there always seems to be a but – there is an attitude that is unlawful. Van Dun goes on to tell us that “telling a lie, as distinct from uttering a mistaken opinion or believing what, in fact, is a lie and passing it on as the truth one believes it is, is unlawful. There is no right to lie. That does not make lying ‘punishable’ per se. However, demonstrably harming a person by telling lies entitles the victim to compensation. Similarly, to harass a person maliciously and to subject him specifically to systematic ‘mental torture’ are unlawful actions that entail liability if they actually and demonstrably cause harm”.

I am of the opinion that these are the philosophical bases for a proper understanding of freedom of expression. You may ridicule, insult and offend. But you may not lie.

If I understand correctly the court’s recent decision, and the courts’ decision in my own case, the prominent newspaper writer could not prove she was saying the truth.

Dr Sammut co-authored, with Chief Justice Emeritus Giuseppe Mifsud Bonnici, Il-Liġi, il-Morali, u r-Raġuni (Law, Morality, and Reason), a book on philosophy of law published in 2008.