THE fundamental issue in the recent debate on the film The Interview surely is whether the film should have been produced for public exhibition in the first place.

President Barack Obama ignored it. He said on Dec 19: “We cannot have a society in which some dictator someplace can start imposing censorship here in the United States. Because if somebody is able to intimidate folks out of releasing a satirical movie, imagine what they start doing when they see a documentary that they don’t like, or news reports that they don’t like.”

Was The Interview a work of mere ‘satire’? It has been described as “a raunchy comedy about the assassination of the North Korean leader, Kin Jong-un”.

‘The Interview’ has set an unfortunate precedent.

New York Times correspondents Michael Cieply and Brooks Barnes pointed out: “To depict the killing of a sitting world leader, comically or otherwise, is virtually without precedent in major studio movies, film historians say.”

Is such a depiction legitimate because it concerns a head of state whose policies the US does not like? A bad precedent has been set and it would be most unfortunate if it were to initiate a trend.

The issue is not the right to freedom of speech and expression. It also affects the established norms of conduct that have bound states for centuries ever since international law was accepted.

It has been recognised in domestic law also; for example in Britain. In 1881 an antimonarchist, Johann Most, editor of a London weekly in German Freiheit, openly lauded the murder of the Russian emperor Alexander II as a brave deed for emulation. His shafts were aimed in particular at the German and Russian emperors. He was indicted for common law libel as well as under Section 4 of the Offences Against the Person Act, 1861 which made it an offence to “solicit, encourage persuade or endeavour to persuade or … propose to any person, to murder any other person…,” national or foreigner and whether in the queen’s dominions or not.

A bench presided over by Lord Coleridge ruled that the act applied although the words were not addressed to a particular individual. “It is here criminal to publish to the whole world, that the individual rejoices in regicide and recommends others to follow his example, and trusts that the time is not long absent when once a month kings may fall.”

The court was only following hallowed precedent. The law was settled as far back as 1808 when Lord Ellenborough ruled in a case concerning defamation of a man hated in Britain — Napoleon. He said: “I lay it down as law, that any publication which tends to degrade, revile, and defame persons in considerable situations of power and dignity in foreign countries may be taken to be and treated as a libel, and particularly where it has a tendency to interrupt the pacific relations between the two countries.” It is an offence in common law as well as a statute.

As in the film The Interview, there was no explicit incitement to assassinate Napoleon. But the ridicule powered with allusions of an assassination was held to be violative of the law.

Even in the US, the Supreme Court held in 1942 that to address a city marshal as “You are a … racketeer” and “a … fascist” was to use insulting words, wholly unprotected by the First Amendment.

Such words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace” did not communicate any ideas. Like libel and obscenity, they could not be regarded as speech for the purposes of constitutional protection. The court said that a line should be drawn between protected propositional speech and provocative and insulting epithets.

Three questions must be squarely faced. First, is The Interview a legitimate exercise of free speech because it concerns a foreign leader who is disliked in the US?

Secondly, would the law protect a similar film if it depicted the assassination of, say, the head of state of a Nato ally?

The last question is even more laden with grave implications. What if such a film is made by a political party on the leader of a rival party?

To pose these questions is to reckon with the fundamentals which the current debate ignores as it did in the cases of The Satanic Verses and the Danish cartoons. There is simply no right to insult.

Article 19 of the UN’s International Covenant on Civil and Political Rights recognises the qualifications to the right to freedom of speech and expression. One is “respect of the rights or reputations of others” and the other is “protection of national security or of public order”.

These qualifications cannot be overridden by styling a writing or a film as a “satire” or a “comedy”.

The writer is an author and lawyer based in Mumbai.

Published in Dawn, January 3rd, 2015

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