Freedom of Speech

United States v. Kuwait

Introduction:

     Freedom of speech differs greatly from country to country.  This can clearly be seen when comparing this freedom in the United States and Kuwait.  Both countries have a freedom of speech clause as part of their constitutions.  The United States' Constitution guarantees this freedom and forbids Congress from writing any law to abridge this freedom.  However, Kuwait's gives the government the capability of denying this freedom to its citizens.  The differences in constitutional rights results in a difference of opinion concerning the response to the discussed scenario.

Statement of Scenario:

     The freedom of speech scenario to be considered here involves a collection of neo-Nazi materials that was posted on a University of Massachusetts web server by Lewis McCarthy.  McCarthy was a graduate student there at the time, and when the university discovered what he had posted to their servers, he was asked to remove them.

     Lewis McCarthy was not himself a neo-Nazi, but an advocate of absolute freedom of speech.  The materials he posted were, in fact, a mirror of a site originally created and maintained by Ernst Zuendel.  The original site was hosted by an Internet Service Provider (ISP) in California.  In an effort to prohibit their customers from viewing Zuendel's materials, Deutsche Telekom blocked access to all sites hosted by Zuendel's ISP.

     Lewis McCarthy's posting of the materials to the University of Massachusetts web server was a response to this attempted censorship of the internet by the German government.  Although he did not personally agree with Zuendel's neo-Nazi views, McCarthy did believe that Zuendel should still have the right to communicate them.  For this reason, McCarthy and many like-minded individuals around the world chose to create mirrors of Zuendel's site.  The hope was that there would be so many copies of the site throughout the world that the German government would either have to allow their citizens to view it or cut themselves off from the Internet entirely to prevent it.

     As for the University's request that McCarthy remove his mirror of Zuendel's materials, they sited the university's policy on political protest.  Although protests are permitted, students cannot use public resources for them.  The University of Massachusetts is a public school, so the computers fall under that restriction.  Thus it was not the content of the page that caused university officials to request its removal, but the fact that it was a form of political protest using public resources.

US Response:

     As far as the United States government is concerned, McCarthy did nothing wrong.  Whether he was posting neo-Nazi materials because he actually agreed with them or, as in this case, to protest an abridgement of somebody's freedom of speech, McCarthy is guaranteed the right to share those views.  The first amendment protects not only his right to communicate those views, no matter how objectionable they may be, but also his right to peaceful political protest, whether it is targeted towards our own government or a foreign one. 

The first amendment is rare because it does not have a loophole where freedom of speech is guaranteed unless otherwise specified by law.  There are a some restrictions placed on freedom of speech, however these are a result of cases that have gone through civil court and not constitutional law.  Citizens are allowed to say anything they want until they are infringing on someone else's rights.  Examples of this are libel, slander, and defamation.  The Communications Decency Act, which was overturned, was a broad law that attempted to control speech on the internet.  The Protection of Children Act is a more limited law which protects children from material online which is currently under debate.  It is currently in question whether laws limiting publication of false or misleading materials can extend effectively to cover online publication and websites.

Kuwait Response:

     Kuwait would agree with the censorship of this website.  The government of Kuwait limits the free speech of its citizens and would not disagree with the censorship.  If viewing of the site in question had been prohibited in Kuwait, the Kuwaiti government would have been very strong in the support of this censorship.  If the student had been at the University of Kuwait and attempted to post this site, he could have faced imprisonment by the Kuwaiti government.  Due to the nature of the contents of the site, the student would have been held as a political prisoner, and possibly tortured.

     Kuwait is a dictatorship where all political power is in the hands of the Emir.  The National Assembly has limited powers and can be suspended by the Emir.  This has happened twice in the past.  Constitutional guarantees are also frequently suspended by the Emir.  Freedom of speech and the press is greatly restricted.  Journalists have been imprisoned for criticizing the government or Islam.  Because of this, journalist practice self-censorship.  There are many political prisoners in Kuwait and prison conditions are inhumane.  There have been reports of torture and inhumane treatment of detainees.  Article 36 of the Kuwaiti Constitution states that: "Freedom of opinion and of scientific research is guaranteed.  Every person has the right to express and propagate his opinion verbally, in writing, or otherwise, in accordance with the conditions and procedures specified by law."

Article 37 states that "Freedom of the press, printing, and publishing is guaranteed in accordance with the conditions and manner specified by law."  The Printing and Publishing Law was written to place limitations on freedom of the press.  It requires a permit from the Printing and Publications Office to sell or distribute publications.  The law also includes criminal punishments for a large number of vaguely worded of offenses, and provisions for prior censorship.  There is also a clause that prohibits the publication of disturbing relations between Kuwait and Arab or friendly countries.

     There are no laws or regulations governing online free speech in Kuwait.  The Printing and Publications Law does not apply to the Internet.  However, this law may be expanded to include the Internet in the future.

Comparison and Discussion of Responses:

     The responses of these two countries are very different.  The United States would side with the student because publication of the site does not infringe upon the rights of others.  Citizens are free to express their political views no whether they agree with the views of the government or not.  Kuwait would side with the university because it does give its citizens the freedom to express their political views. The United States believes that freedom of speech is a right that should be guaranteed.  The Constitution safeguards this right by not allowing Congress to create any laws that abridge this freedom.  However, in Kuwait, freedom of speech is more of a privilege than a right.  The Kuwaiti Constitution allows for the government to pass laws that place a limit on this freedom.  Citizens have the right to freedom of speech unless it involves speaking out against the government or Islam, the state religion.

Final Commentary:

     The differences in the views of the United States and Kuwait concerning freedom of speech determined the difference in reaction to the discussed scenario.  In the United States, freedom of speech is one of the most important freedoms of the people.  Because of this, the US would side with the student.  In Kuwait, it does not mean too much.  The government has the power to limit this freedom and has practiced it in the past.  The Emir of Kuwait would support the suppression of the student's right to free speech because it only recognizes free speech when it does not get in the way of the state government.

References:

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Last updated 2001/09/18.