Tuesday, April 08, 2003

Sedition and "Lese majeste"

Micah Schwartzman asks an interesting question: is it possible to come up with a defense of laws which forbid seditious libel? (Lawrence Solum chimes in on the same issue.) Micah looks back to the Alien and Sedition Acts, New York Times v. Sullivan, and reflects that, insofar as the United States is concerned, arguments which hold that since "the free circulation of facts, opinions, and ideas is crucial for effective and legitimate political opposition, and because of the difficulty in isolating abusive practices, the government should not have the power to prosecute seditious libel" have pretty much carried the day. But then he further wonders that, whereas in cases where "the government has as much power as it does in the United States today, these types of laws [appear]....highly pernicious," in other situations, such as "unstable democracies threatened with civil dissolution, or in countries ruled by so-called 'liberal authoritarian' regimes, the arguments in favor of restricting the freedoms of political speech and press may seem much more compelling." So he asks, what can be said in favor of such laws, all things considered?

I suppose, as someone basically sympathetic to philosophical communitarianism, that there's a fair amount I might add to this discussion in terms of how one justifies "rights" or defines "sedition" in relation to particular national communities. But instead, let me put on my Asian studies hat, and talk about Thailand--arguably one of those "liberal authoritarian regimes" Micah mentions. Thailand is a constitutional monarchy; it has a royal family, whose position in the society is inextricably tied to the nation's identity as a Buddhist community, but it also has a basically liberal order in terms of government power and civil rights. You can see the U.S. government's mostly positive report on human and civil rights in Thailand here. However, as that report states clearly, "laws prohibiting criticism of the royal family (lese majeste), threats to national security, or speech likely to incite disturbances or insult Buddhism remain in place under the Constitution." In other words, Thailand has laws against seditious libel. Does that result in a ruinously undemocratic society? I don't think so--though obviously, those whose liberalism is more philosophically serious than mine would disagree. Two anecdotes on how these kind of libel laws play out, one somewhat silly and pathetic, another serious. First: in Mormon missionary circles (especially those of us who served in Asia), this story (and others like it) about a couple of idiot missionaries perching on top of a Buddha and snapping their picture is nortorious. Just a joke? Not to the good people of Thailand: these morons were jailed and then unceremoniously ejected from the country. A crime against liberalism? Or maybe just using seditious libel laws to make a point about identity and the social order.

Second, and more seriously, consider the case of Dr. Sulak Sivaraksa, a Buddhist social activist so deeply committed to a traditional Thai identity that he prefers to refer to himself as "Siamese." Sivaraksa was charged in 1991 by the then-military ruler of Thailand, General Suchinda Kraprayoon, for committing lese majeste--that is, for insulting the royal family while in the course of attacking the government and the current military junta in particular. Sivaraska fled the country, but returned the next year after the military government had fallen, in order to defend himself against the charge. His arguments, which were full of democratic fervor, in no way challenged Thailand's "illiberal" sedition laws; indeed, he claimed that if he had truly committed lese majeste, he would consider only right, as a member of the Thai nation, to be punished for it. He wrote afterward: "I did not....stake my ground on an absolute right to free speech. My defense against the charge of lese majeste was my innocence of the charge; my defense was my loyalty to the Kind and the Royal Family and, even where I discussed the use of the charge of lese majeste in current Siamese political practice, it was to highlight abuse and to point to the ways in which abuse might undermine the monarchy, rather than to defend any theoretical right to commit this action. I am not affirming, nor would I affirm, a right to commit lese majeste. This aspect of the case is particularly concerned with my being Siamese and belonging to the Siamese cultural tradition."

Clearly, there are culturally communitarian contexts wherein defenses of seditious libel can be mounted which do not, in themselves, seem to undermine democratic practices. Since the United States is not a Buddhist country, and doesn't have a royal family, Sivaraksa's arguments don't work for us. But still, his example suggests, in answer to Micah's questions, that serious defenses of such laws can be made. (Sivaraksa's autobiography has all this, and more. Get it; it's worth reading.)