The Price of Freedom of Expression I

Even the well-experienced in public affairs, defending Odhiambo Owuor, a persecuted Presidential heckler, said heckling was freedom of expression.

 So the Presidential guards, by restraining Odhiambo from heckling the president, infringed Odhiambo’s freedom of expression.

Had the guards prevented him from killing himself in protest against the ruler, one might say, they would have violated his freedom of expression.

The officers could as well have shot him dead, and killing him would also have been freedom of expression.

But, had he been a magnanimous manager of public affairs, the President would have told Odhiambo to go right to him and would have inquired about Mr. Odhiambo’s grievances.
 Of course, that might depend on the context of the conflict between the ruler and his heckler. And magnanimity is perhaps an attribute we loath to see in our leaders, and so, even if he had it, the Kenyan ruler would not have publicly demonstrated it.

And if Odhiambo was aware that there are institutionalised ways in which public wars are civilly fought, he, and any of that ilk, would, for example, have held their own rally, at which their opinions, beliefs, and disagreements with the governor and the Government would have been expressed.

At such a large public meeting, they would even have made plans for further attacks on their adversaries at the helm.
In their judgment, Odhiambo and his fellow hecklers thought that holding a parallel public meeting might not have been as effective as rudely interrupting the ruler at the Jamhuri day rally.

Certainly, something prevented them, and that something was either the lack of genuine freedom of association or our preference for solving our public conflicts extra-institutionally.

A striking feature of the conflict between Odhiambo and the governor was its singular incivility and the total absence of dialogue in it.

There was no debate at all. All the protagonists did was to restrict, or try to restrict, each other’s freedom of expression.

Predictably, the ruler and the heckler chose extra-institutional means to fight each other. It was not their fault, though.

None of them was worse than the other, even though, strictly speaking, it was the Governor whose freedom of expression his opponent did not seek to limit, given that he was on the podium to play his official role.

But both of them eloquently expressed the impotence of our political institutions and the poverty and backwardness of our political culture.
As Edmund Burke would have put it, when people enjoy it, freedom of expression is power. In Marx Weber’s analysis of power, power is the probability that you will carry out your own free will despite resistance.

That includes the probability that you will enjoy your freedom of expression despite resistance from those who have the authority, legitimate or otherwise, to prevent you from doing so.

Obviously, whoever restrains you from enjoying your freedom of expression is carrying out his will in spite of opposition from you or your will to enjoy your freedom of expression.

 But when enjoying your freedom of expression, you have a form of power, not in the sense that you issue legitimate commands based on your occupation of a position of power, but because you are carrying out your will despite resistance. You enjoy the freedom of expression not because there is no resistance but despite resistance.

 There is no freedom of expression without resistance to freedom of expression. And there is no repression of freedom of expression unless there is the will to freedom of expression.

 Any person who restrains another person from the enjoyment the freedom of expression is carrying out his own will despite resistance and, therefore, has power over the individual whose freedom of expression has been repressed.

In so far as the Governor, through the Presidential guards, restrained the heckler from heckling him, he carried out his own will in spite of the heckler’s resistance, or will to heckle him.
 By heckling the ruler, the heckler did not strictly speaking, restrain the ruler from expressing himself, for what the ruler was on the rostrum to do had nothing whatsoever to do with freedom of expression.

Power was definitely a defining element in the conflict between the ruler and the heckler. To the extent that the heckler succeeded in heckling the Governor, he restrained the latter, in the duration of the heckling, from performing his official function, despite the resistance of the latter and, ultimately, of the state.

As long as his heckling lasted, the heckler had power over the state! Which, of course, is an absolutely absurd event.

Such an outcome is by no means unusual in cases in which the citizens are in conflict with the state or its agents.

If ours was a culture in which public conflicts are played out institutionally and, as a result, you may willingly suspend your freedom of expression in order that your interlocutor, be he foe or friend, may enjoy his freedom of expression, a situation in which one is hell-bent on limiting other people’s freedom of expression might not have arisen.

The central part of the enjoyment of freedom of expression, where the war about who is to express himself, how, when and where, is fought within institutions, is, even where power relations are asymmetric, voluntary turn-taking.

You can enjoy your freedom of expression only in turns. If everyone were to enjoy the freedom of expression at the same time, there would be no freedom of expression, since there would be a total absence of repression.

Freedom of expression does not mean the absence of the repression of the freedom of expression.

For freedom of expression to occur, there must be some repression, because someone must temporarily forgo his freedom of expression so that his interlocutor may take part in the freedom of expression.

 Freedom of expression, which, in the sense in which it is used in this article, is oral, does not mean that its participants are at liberty to express themselves in whichever way they want.

Repression must be there, and freedom of expression is inherently self-restricting. Were freedom of expression, not self-repressing, it would not exist.

In the absence of the freedom of repression, there can only be either despotic monologues or cacophonous bedlams, both of which, wiping out even the remotest possibility of freedom of expression, are undesirable.