DESPITE the alarming nature of the government’s recent crackdown on social media activists, our discourse still lacks a conceptual framework of thinking through some of the issues that it raises.

Any inquiry should start by asking to what extent can the government justifiably regulate information markets? Answering this question when two competing forces — citizens and state — are pushing the limits of regulation in opposing directions, is never easy. And so, as a matter of first approximation, we can start by drawing an analogy with the market.

In a market of goods and services, we let people decide what they want to buy and what products they think are of better quality. We don’t like the government telling us which shirt to buy and where to eat. Instead, we rely on the market — word of mouth or intermediaries that aggregate information — for helping us make these decisions. The underlying intuition is that when compared to the government, the market does a better job in determining what products are better than others.

The same intuition maps onto information markets. Just as there can be good products and bad products, platform markets like Twitter and Facebook that facilitate the exchange of information can be used to produce and disseminate good and bad speech. When the government moves to regulate such speech, alarm bells should start ringing precisely because we cannot trust the government to make the right judgement on which speech is good and which is bad — just as we don’t trust its judgement in distinguishing between good and bad products.

When the rulers try to regulate speech, alarm bells should ring.

This isn’t to say that the free market always works and that the government should never intervene in information markets. In many places, we allow the government to regulate the flow of information by requiring, for instance, cigarette companies to disclose the harmful effects of smoking on each packet of cigarettes etc. Such instances, however, have two distinguishing features. First, the government intervenes to correct informational asymmetry. Second, the government acts as a neutral party as it only sets the ex ante rules governing market exchanges between private participants.

But when it comes to speech in the political arena — the kind being targeted by the FIA — the government is no longer a neutral party. With political speech, which is presumably critical of the government or its institutions, the government becomes an affected party. Thus, in assessing ex post government regulation of information markets especially regarding political speech, we should start with a presumption of distrust against the government. The latter should bear the burden of overcoming this presumption by demonstrating a compelling need that can justify its intervention. I doubt if it has discharged its burden in the present case.

Consider the two reasons advanced as a justification for this crackdown on social media. First, the government asserts the information being disseminated attacks and undermines our ‘values’. This is a dangerous argument. Issues of what is moral and immoral should be left out of the political space if we are to create a just political ordering. Rising intolerance in India attests to that where the government’s appeal to Hindu values and Hindutva has unleashed mob attacks.

Similarly, questions about what constitutes a society’s values are controversial and malleable: they can easily be twisted and concocted according to the arbitrary whims of those in power. Thus, justifying government intervention on the basis of protecting values is always subject to abuse by the tyranny of the majority.

Second, the government claims that the crackdown is justified on grounds of national security because some information on social media was highly critical of the army and the judiciary. This justification suffers from the slippery-slope problem since national security is also a malleable concept. Because its contours remain undefined, there is no guarantee that future governments will not use national security as a pretext to quell dissent and serve partisan interests. The more expansively national security is defined, the more people any government can accuse of being traitors.

In this backdrop, requiring the government to bear a higher justificatory burden will necessarily open up greater space for dissent. This is particularly important in the context of the judiciary and the military as both are hierarchical in structure where conformity is rewarded and dissent (understandably) missing. When the state picks a side, as in this case, it tends to create a ‘chilling effect’ that discourages others from engaging in the genuine criticism of state institutions including important public officials. And when that happens, society is worse off because two voices are always better than the monopoly of one.

The writer is a lawyer.

Published in Dawn, June 14th, 2017

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