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It was Justice Anthony M. Kennedy who once said, “The right to think is the beginning of freedom and speech must be protected from the government because speech is the beginning of thought.” Though the right to freedom of expression is not limited to speech, the truth of that quote applies. Citizens must be free to praise and to condemn, to question those who govern and to be questioned in turn and to hold opinions that the majority may find foolish, offensive or even dangerous. A society that silences its critics has not secured peace but it has merely postponed the reckoning. Yet no serious legal system has ever treated speech as an absolute. Words can defame the innocent, incite the violent, expose the vulnerable and corrupt the administration of justice itself (see E Barendt, Freedom of Speech, 2nd edn., OUP 2005, ch 1; F Schauer, Free Speech: A Philosophical Enquiry, CUP 1982, generally). The enduring question is, therefore, not whether the law may restrain expression, but where, on what principle and by what means.
The question presses with particular force in Nigeria. The country inherited from colonial rule a body of speech offences, notably sedition and criminal defamation, which were designed to protect the governor from the governed (Criminal Code Act, Cap C38, Laws of the Federation of Nigeria, 2004, sections 50-51 [sedition] and sections 373 et seq [defamation].). It endured long periods of military rule in which newspapers were proscribed and journalists detained without trial. In the democratic era, the contest has moved online, where legislation on cybercrime, proposals for social media regulation and the suspension of an entire platform in 2021 have all tested the limits of state power over speech [Cybercrimes (Prohibition, Prevention, etc) Act 2015, s 24; Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) v Federal Republic of Nigeria ECW/CCJ/JUD/40/22 (ECOWAS Community Court of Justice, 14 July 2022)].
THEORETICAL FOUNDATIONS
Four arguments dominate the justification of free speech and each carries implications for where its limits should lie. The first is the argument from truth. Milton pleaded in 1644 that truth would prevail in a free and open encounter with falsehood; and Mill later gave the idea its classic form contending that silencing an opinion robs humanity of the chance to exchange error for truth or to hold truth with a living conviction (J Milton, Areopagitica, 1644; JS Mill, On Liberty, 1859, ch 2.). Holmes transposed the argument into the language of the market, observing that the best test of truth is the power of a thought to get itself accepted in the competition of the market (Abrams v United States 250 US 616, 630, 1919, Holmes J, dissenting). The argument is powerful but not unassailable. Markets can fail and in the age of algorithmic amplification falsehood often travels faster than correction. The argument supports a strong presumption against suppression, but it does not by itself explain why every falsehood must be tolerated.
The second argument is the argument from democratic self-government. Meiklejohn maintained that a people who govern themselves must be free to hear every opinion bearing upon public questions because the voter is the ultimate sovereign and cannot judge what she is forbidden to hear (Meiklejohn, Free Speech and Its Relation to Self-Government (Harper & Brothers 1948); A Meiklejohn, ‘The First Amendment is an Absolute’ [1961] Sup Ct Rev 245.). Blasi added what he called the checking value of speech: expression is the principal means by which citizens scrutinize and restrain the abuse of official power (V Blasi, ‘The Checking Value in First Amendment Theory’ [1977] Am B Found Res J 521.). This argument explains why political speech and criticism of public officials deserve the highest protection and it is the argument most relevant to a young democracy still consolidating its institutions, such as Nigeria.
The third is the argument from autonomy and dignity which treats expression as an incident of personhood. T.I. Emerson synthesized these strands in a classic essay, identifying individual self-fulfillment, the advancement of knowledge, participation in decision-making and the maintenance of a balance between stability and change as the functions served by the freedom (TI Emerson, ‘Toward a General Theory of the First Amendment’ (1963) 72 Yale LJ 877.). The fourth, by contrast, is a counter-argument from the harms of speech. Mill himself, the great champion of liberty, accepted that power may rightfully be exercised over a member of a civilized community against his will only to prevent harm to others (Mill (n 4) ch 1.). This was why Holmes in Schenck v. US (1919) once wrote that the First Amendment does not protect a man who falsely shouts fire in a theatre and causing panic. This was a clear and present danger. This legal standard was later diluted by the US Supreme Court in Brandenburg v. Ohio (1969) which ruled that speed can only be restricted if it is directed to inciting “imminent lawless action” and is likely to produce such action.
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These theories converge on a useful starting point and diverge on a hard question. They converge on the proposition that restriction is the exception and that the state must justify it. They diverge on whether the speech of the hateful and the deceitful deserves shelter.
THE NIGERIAN CONSTITUTIONAL FRAMEWORK
Section 39(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (CFRN) declares that every person is entitled to freedom of expression including the freedom to hold opinions and to receive and impart ideas and information without interference. Section 39(2) extends the entitlement to the ownership and operation of any medium for the dissemination of information, subject to a licensing requirement for television and wireless broadcasting. Section 39(3) preserves laws that are reasonably justifiable in a democratic society for preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating telephony, broadcasting and cinematograph exhibitions, and for restricting the expression of certain public officers and members of the security services. Section 22 adds a distinctive structural note by charging the press and other mass media with the duty to uphold the fundamental objectives of the Constitution and to hold government accountable to the people.
The general limitation clause is section 45(1) as it validates any law that is reasonably justifiable in a democratic society in the interest of defense, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons.
It is important to emphasize three points which the clause communicates. First, the phrase ‘reasonably justifiable in a democratic society’ imports a standard of proportionality which places the burden of justification on the State and not on the citizen. Second, the listed heads in the limitation clause of section 45(1) are exhaustive so that embarrassment of government, or the protection of regime stability are excluded from such recognized constitutional purposes. Third, the African Charter on Human and Peoples Rights, which has the force of law in Nigeria (though it ranks below the Constitution) supplies a persuasive interpretive standard that reinforces the above narrow reading in Section 45 of the 1999 Constitution. See Abacha v Fawehinmi (2000) 6 NWLR (Pt 660) 228 (SC).
The jurisprudence on these provisions has been uneven where, in Director of Public Prosecutions v Chike Obi (1961) 1 All NLR 186., the Supreme Court upheld the colonial law of sedition as a restriction reasonably justifiable in a democratic society even though the accused had published a pamphlet of fierce political criticism. The Court of Appeal took a bolder view in Arthur Nwankwo v The State (1985) 6 NCLR 228 (CA), where the court held the law of sedition to be inconsistent with the constitutional guarantee of freedom of expression. The two decisions mark the poles of the Nigerian debate: one treats the dignity of government as a legitimate object of protection, and the other recognises that in a democracy the rulers are answerable to the ruled. Because Nwankwo is a decision of the intermediate court, the point has never been settled with finality by the Supreme Court under the present Constitution, and the sedition provisions remain on the statute book. This position requires further dilation by the Supreme Court.
COMPARATIVE APPROACHES TO THE LIMITS OF EXPRESSION
THE UNITED STATES
After an early and troubling period in which the US Supreme Court upheld convictions of dissenters under the test of ‘clear and present danger’, the Court settled in Brandenburg v. Ohio (Schenck v. United States 249 US 47, 52 (1919); Brandenburg v. Ohio 395 US 444, 447 (1969)), on a demanding standard: advocacy may be punished only where it is directed to inciting or producing imminent lawless action and is likely to produce such action. Justice Brandeis, in Whitney v. California 274 US 357, 377 (1927) (Brandeis J, concurring) had earlier supplied the animating philosophy that, where time permits, the remedy to be applied is more speech, not enforced silence. In defamation, New York Times Co v. Sullivan held that a public official may not recover for a false statement relating to official conduct unless it was made with actual malice because debate on public issues should be uninhibited and wide-open. The US Supreme Court has since protected the burning of a national flag and the picketing of a soldier’s funeral with hateful placards, reasoning that the government may not prohibit expression simply because society finds it offensive (Texas v. Johnson 491 US 397 (1989); Snyder v. Phelps 562 US 443 (2011).). Even so, the American tradition recognizes narrow categories outside protection, including incitement, true threats and so-called “fighting words” (that inflict injury or tend to incite an immediate breach of public peace). See Chaplinsky v. New Hampshire 315 US 568, 571-572 (1942); R.A.V. v. City of St. Paul 505 US 377 (1992). (To be continued)
