JURIST guest columnist Roy S. Gutterman of the Syracuse University College of Law discusses recent changes to Malaysian sedition law…

Sedition, laws criminalizing criticism of a monarchy or government, is not as anachronistic as knights in shining armor or a moat around the castle. In fact, in many countries around the world, sedition laws are not only still on the books but are also actively enforced.

Malaysia, the Southeast Asian peninsular constitutional monarchy, recently tightened its sedition act extending criminal sentences from three to seven years and denying bail for accusations and empowering the government to censor online media.

The law is a remnant of Malaysia’s British Colonial rule, which ended in 1957, dates back to 1948, and applies fines and incarceration for criticism of the king, nine regional sultans and the government in general. The law criminalizes speech that “brings contempt against the government.” It also criminalizes inflammatory speech based on religion and race in the multi-ethnic country with a population of 30 million people.

The parliament’s April amendments to the laws drew condemnation from both press rights and human rights groups. The Committee to Protect Journalist’s senior Southeast Asia representative Shawn Crispin said, “The strengthening of Malaysia’s already draconian Sedition Act shows how desperate Prime Minister Najib Razak has become to silence media criticism of his government.” The UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein called the laws “very disappointing.”

An outsider’s view of another country’s sedition laws, particularly from the far-off perspective of a Western free speech advocate, can sometimes be drawn into an abstract discussion of cultural values and perspectives or a misunderstanding of those values and perspectives. But in April, Malaysian authorities also put the law into perspective when it charged cartoonist Zulkiflee Anwar Alhaque, who goes by the pen name Zunar, with sedition following a series of tweeted editorial cartoons criticizing the Malaysian judiciary. He was arrested in February and charged with nine counts in April. Over the course of his 40-year career, Zunar’s cartoons have depicted corruption, electoral fraud and a range of political chicanery. Now he faces up to 43 years in prison for his tweeted cartoons.

A Malaysia-based civil rights lawyer, Eric Paulsen, told The New York Times in February that in the previous year 15 people were charged with sedition in Malaysia. The United Nations reported that since 2014, 78 people were investigated or charged under the law, “including through the arrests of individuals for merely tweeting their criticism of government policies and judicial decisions.” Over the past few years, government officials, including Malaysia’s Prime Minister, discussed reining in, if not abolishing Malaysia’s sedition laws. Instead, in April parliament tightened it, particularly provisions dealing with the internet, which is accessible to roughly 67 percent of the Malaysian population. Freedom House describes Malaysia’s press rights environment as “not free” and ranks it 142 out of 199 countries in its annual Freedom of the Press report. In its 2014 analysis, Freedom House noted that the Malaysian government blocks some websites but “has not systematically targeted political content in the past.”

Malaysia is not the only country in the world with sedition laws on the books. While organizations that track press freedoms worldwide do not have a comprehensive list of all the countries with these laws on the books, examples abound with journalists and dissidents being imprisoned for their critiques of government personnel and policies. Furthermore, strict libel laws also empower government officials and others to employ both civil and criminal laws to punish their critics.

A Western critique of laws in foreign lands is not always well-received or even easy to levy. In democracies, the laws are supposed to reflect the will of the people. In less-than-democratic places, the laws often reflect the interests of those in power, whether it is a monarch or an empowered political party or a ruling class.

In the United States after emerging from an environment rife with seditious libel under British law, the United States has also wrestled with sedition. Although the Supreme Court never tested the Sedition Act of 1798 [PDF], for more than three years, the federal government made it a crime to “write, print, utter or publish … any false, scandalous and malicious writing or writings against the government of the United States, or either house of Congress … or the President … or to bring them, or either of them, into contempt or disrepute; or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States.” Until the law expired in 1801, a conviction was punishable by a fine of $5,000 and five years in prison. More than a century later during the first Red Scare, the government employed the Espionage Act of 1917, which had similar provisions relating to speech, particularly that done by dissidents. Though not widely applied, the Espionage Act is still on the books.

Nevertheless, the United States has taken great strides to place freedom of speech and the press and the right to critique the government among our most cherished and prominent constitutional rights. The First Amendment to the Constitution protects these rights, which are an integral part of our democracy and vital to our rights and responsibilities as citizens. The First Amendment has been reinforced by the Supreme Court in cases involving incitement, libel, privacy, access to information, national security and even intellectual property.

The First Amendment protects even our harshest critics of government policy. And, as much as free speech and free press rights may be part of American culture, in all practicality the Supreme Court did not finally put sedition to bed until New York Times v. Sullivan in 1964, a landmark libel case revolving around editorial content that criticized the Jim Crow South and southern government officials. The libel suit brought by L.B. Sullivan, a Montgomery, Alabama, government official, garnered a $500,000 jury award, which was affirmed by the state’s high court.

At the United States Supreme Court, Justice William Brennan likened the lawsuit to a modern example of seditious libel: “if neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, which first crystallized a national awareness of the central meaning of the First Amendment.”

The court’s decision not only killed off seditious libel as unconstitutional but it also established a more exacting standard for defamation lawsuits by public officials—actual malice, which means public officials who sue for libel will have to prove that defamatory statements were published with either knowledge of falsity or reckless disregard for the truth. Subsequent Supreme Court cases extended this standard to a range of other potential plaintiffs known as public figures.

The rationale is not intended to remove the cause of action of defamation entirely from those involved in public affairs but to make it exceedingly more difficult for them to use the courts or the law to punish their critics. This, Justice Brennan wrote, should foster public debate, even “vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” This encourages and protects free expression and debate. As noted in Times v. Sullivan, President Thomas Jefferson pardoned a number of people convicted under the Sedition Act and even remitted their fines. In an 1804 letter, Jefferson wrote: “I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.”

First Amendment rights may be among our most exported American values. While censorship is anathema to most Americans, that creates some level of both envy and misunderstanding around the world. Concepts of hate speech and group libel, both barred under the First Amendment, seem almost impossible for many audiences to grasp.
Similarly, every time a journalist such as the New York Times’ Judith Miller or, more recently, James Risen is confronted with the choice of revealing confidential sources to the government or face jail time for contempt of court, the American government loses some of its moral high ground.

Revelations of the government’s domestic surveillance programs and the Department of Justice’s efforts to gather phone records from the Associated Press raise additional questions about our own commitment to these values. If these are the values now being exported, it is no surprise governments around the world continue to enforce sedition laws.

Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.

Suggested citation: Roy S. Gutterman, Sedition Laws and Free Speech, JURIST – Academic Commentary, May 14, 2015, http://jurist.org/forum/2015/04/roy-gutterman-sedition-laws.php.