How much criticism of public figures is too much and excessive? The more conciliatory in tone the two major political parties become, the more this question is likely to be raised.

If this year continues the way it started – with the Opposition leader, Adrian Delia, making much of his strenuous attempts to seem more ‘constructive’ than his predecessors – we should expect 2018 to be the year in which the question of excessive criticism is driven by three factors.

First, the main sources of public criticism will migrate from political party officials to commentary in the independent media.

Second, the criticism will seem to be more strident than ever. This will partly be a matter of appearance, an artefact of the contrast with the political parties of government. Loudness is relative. If others are more muted, even criticism at a normal pitch will appear loud.

Partly, however, it will be real. Since the independent media do not have a loyal partisan audience, cornering the market for attention will require other louder means.

However, it is unlikely to be simply a matter of cynical marketing. People who think of themselves as independent of the two parties of government have long accused them of collusion on important issues. As the number of independents grows, that perception is itself likely to grow and so will the tones in which it is uttered.

Third, there will be a reaction. The dissenters will be accused of trying to subvert the national ‘unity’ and ‘maturity’ displayed by the two political parties.

Since it will be difficult to accuse the dissenters and critics of being driven by partisan motives, the accusation will be that they are driven by factional ones, no matter how flimsy the proof.

So, the question will be there as part of the background radiation. How much is too much criticism?

It has already been raised by the President. The Archbishop said, in a public exchange with her, that freedom of expression needs to be protected even if it is sometimes harsh and stinging. She replied by saying that, yes, freedom of expression must be protected but, in the same breath, expressed concern about excessive and gratuitous criticism of public figures who dedicated their lives to public service.

It’s not clear what the President meant. Freedom of expression is a legal right. Moreover, it legally includes the right to offend. Giving offence can well be gratuitous and excessive but the law permits it.

Perhaps, then, the President was affirming the legal right to offend but also appealing to civility or plain good manners. But good manners are not a legal duty.

They are not part of a duty that counterbalances the right to free expression. It would be a pity if people were to think otherwise. More than a pity, it would distort the very value of freedom and the very reason why free expression is guaranteed as a right.

There should be no such thing, according to the law, as excessive criticism of public figures

Think of it this way. Freedom of expression is a free society’s way of enshrining the right to utter heresy. The value of free expression in itself is best understood when what is protected is not intelligent speech but preposterous, stupid speech.

Social unity is a separate value. It is not to be confused with free speech, however. The latter is often exercised at the expense of unity – whether it is unity around a social or political orthodoxy, or a form of cultural complacency, or even harmony.

Freedom of expression is protected for two broad reasons.

One is that, in a free society, unity does not mean uniformity. Unity arises out of shared interests and questions, not automatically shared conclusions. It’s the unity of an orchestra, with each player having a different score but contributing to a whole. (The analogy stops being useful if you think society should have a musical conductor.)

Next, unity does not mean harmony, either. Freedom of expression has a social value – not just a value to those who make use of it – because, although it’s noisy, it can lead to a creative use of noise.

It’s not orderly. It can disrupt order. But there are creative uses of disorder, which lead to new ideas and forms of living.

Most public speech is actually banal. Some of it is harmful. But it is even more harmful to have authorities that decide what can be said on the grounds of ‘national unity’.

Does that mean that no free speech can be excessive? No, there clearly are limits. They have been specified time and again by the Strasbourg Court of Human Rights, which also allows a margin for cultural particularity and sensitivity.

But what is clear is that ‘excess’ can only be defined by law.

There are broadly two legitimate boundaries. One is hate speech, which refers to incitement to hatred of particular groups of people (such as on the basis of race, religion or sexual orientation).

However, the hate speech law does not protect membership or support of any political party.

If politicians are going to argue that hate speech should also cover membership or support of political parties, then they should say whether they want to change the law to reflect this. If not, why not? (And why don’t hate laws elsewhere have such a provision?)

The second broad boundary governing freedom of speech concerns the general climate of the public sphere. Individual opinions, in themselves, might not constitute hate speech or otherwise break the law. But, taken together, the totality of opinion on certain people (or groups of people) might be so hostile that freedom of conscience is threatened, or a chilling effect is triggered.

Other than that, there really should be no such thing, according to the law, as excessive criticism of public figures, no matter the length and devotion of their public service. We might deplore the harshness or nastiness with which they’re criticised.

But we should not curtail the law guaranteeing the freedom with which nastiness and harshness can be expressed.

Nor should any public figure be less than clear about the real latitude and limits.

ranierfsadni@europe.com