After spending the last weekend at a Liberty Fund conference handwringing about how helplessly the U.S. Constitution has stood by as the twin tyrannies of the liberal Entitlement State and the conservative National Security State march forward, I arrived in my native country, India, for a just-in-time reality check.
Kapil Sibal, the telecom and information technology minister (yes, there is such a thing here) of this great and populous democracy has triggered a public uproar by asking Google, Facebook, and Microsoft to prescreen "offensive" material before it is posted online. What's more, a la China where 30,000 cyber policemen monitor the net, he wants humans not technology to do this screening. Sibal wants all this despite the fact that, under existing law, companies already risk being prosecuted as co-defendants if they don't remove any defamatory content within 36 hours after an affected party or the government notifies them.
If the companies refuse to comply then, he coos, it will be "the duty of the government to think of steps that we need." But it would be a mistake to call this censorship because, he insists, the government simply "does not believe in censorship and does not believe in either directly or indirectly interfering in the freedom of the press." So there! Nothing to worry about at all.
Sibal's bout of non-censorship, incidentally, was triggered after pictures surfaced on the net depicting Prime Minister Manmohan Singh as a monkey dancing to the tune of Sonia Gandhi, the former first lady who now heads the Congress Party and on whose goodwill Singh keeps his job.
Even though most Indians think that Sibal is off his rocker in attempting to quash anti-government criticism, the fact of the matter is that Sibal's proposal is not blatantly unconstitutional. As Salil Triphathi, a London-based writer who was among this year's Bastiat Award winners, points out in a recent Wall Street Journal column:
India may have a constitution that enshrines the freedom of expression as a "fundamental right," but this freedom comes with legal caveats. The constitution mentions "reasonable restrictions" that are wide ranging: the security of the state, friendly relations with foreign states, public order, decency and morality, contempt of court, defamation, incitement to an offense, and sovereignty and integrity of India. Adding to the constitutional exceptions are provisions of the colonial-era penal code that allow anyone claiming offense to sue the writer, artist or any individual whose conduct has caused such offense. This code also grants the state the authority to prosecute anyone who might disrupt religious harmony. As a result, the government censors films, sets rules for broadcasters to bleep out obscenities and bans books.
(Thanks a lot, Britain!)
Given all these restrictions, what's surprising is not that the Indian government should every now and then try and clamp down on dissent and criticism, but just how much dissent and criticism there is. Indeed, the Indian press has evolved into a fiercely independent institution, full of exposes of government corruption and no-holds-barred commentary.
All of this suggests that just as constitutional protections don't guarantee freedom, freedom does not necessarily depend on constitutional guarantees. Just as the U.S. government used an inch of constitutional space to expand the surveillance state post-9/11, citizens too can use a sliver of constitutional space to blast open the door of freedom. Departures from constitutionally protected freedoms do not necessarily put a polity on a one-way slippery slope to tyranny. Government intrusions beyond what a citizenry is willing to endure generates a backlash in which the constitution is an important weapon, but not the only one.
So libertarians should certainly take departures from the American constitution seriously, but not give in to total despair. There is traffic going the other way too on the road to serfdom.
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