Abstract

This essay delves into how courts in Malaysia and the U.S. interpret free speech rights, emphasizing national stability in the former and democratic freedoms in the latter. Through comparative case studies, it shows how legal frameworks reflect each country’s socio-political landscape, underscoring their differing approaches to balancing individual rights and state interests.

Keywords: Freedom of Speech, Human Rights, Malaysia, United States, Judicial Interpretation, constitutional review, national security, Sedition Act, public order.

In August 2024, Malaysia's former Prime Minister Muhyiddin Yassin was charged with sedition for allegedly insulting Sultan Abdullah of Pahang during a by-election campaign[1]. This incident highlighted the ongoing tension between freedom of speech and governmental authority in Malaysia. In contrast, the United States of America (U.S.) recently experienced a landmark moment when a state attempted to impose restrictions on books addressing controversial social issues, leading to a federal court ruling that reinforced the protection of diverse viewpoints in public libraries[2]. These events reflect the differing approaches of Malaysia and U.S. toward freedom of speech, as evidenced by their positions in the World Press Freedom Index, where Malaysia ranked 107th out of 180 countries, while the U.S. ranked 55th. The Index, published annually by Reporters Without Borders, assesses countries based on factors such as media independence and journalists' safety[3]. These differences set the stage for examining how each country’s judiciary interprets and upholds constitutional rights to free speech. This essay will explore how the courts in Malaysia and U.S. navigate constitutional review of free speech, which reflect the distinct cultural and political values embedded in each nation’s legal interpretations.

Constitutional Framework for Freedom of Speech

Before discussing the judiciary's role, it’s essential to understand the constitutional basis for freedom of speech in each country. In Malaysia, Article 10(1)(a) of the Malaysian Federal Constitution guarantees every citizen the right to freedom of speech and expression. However, this right is accompanied by specific limitations. Under Article 10(2), Parliament is permitted to impose restrictions it considers necessary or expedient for reasons such as security of the Federation or any part thereof, friendly relations with other countries, public order, and morality[4]. Additional restrictions may also be applied to protect the privileges of Parliament or any legislative assembly, prevent contempt of court, address defamation, and curb incitement to commit any offense[5]. These eight constitutional restrictions form the basis for the limitations on free speech, providing a legal foundation for enacting various legislative acts such as the Sedition Act 1948[6], the Printing Presses and Publications Act 1984[7], Communications and Multimedia Act 1998[8], Official Secrets Act 1972[9], all of which establish further boundaries on freedom of expression. More often than not, the Malaysian judiciary has shown time after time that it places significant emphasis on managing freedom of speech within the broader context of national stability.

In U.S., freedom of speech is confirmed and protected by the First Amendment of US Constitution, which declare that “Congress shall make no law abridging the freedom of speech”. It not only recognizes the freedom of speech as a human right, but also underscores the prevention of this freedom from the violation of the public authority. As part of the Constitution, the highest law of the land, this amendment holds significant importance. However, this amendment still needs to be further interpreted to fully understand its practical application. On one hand, there are quite a few secondary legislations for the interpretation of this amendment. On the other hand, as the U.S. follows a common law system, there are numerous cases serving as judicial precedents which help define the scope of freedom of speech which will be further explored in this essay. Anyways, the scope of freedom of speech in U.S. has evolved over time. In other words, it is a transformative process.[10] Specifically, from a historical perspective, U.S. courts have increasingly strengthened protections for free political speech, progressively prioritizing such kind of democratic right, even in cases involving controversial or offensive expression.

The Malaysian Judicial Approach to Free Speech

Historically, the Malaysian government has shown a persistent commitment to preserving social stability and national security even if it means limiting freedom of speech. This stance is rooted in the country’s diverse and sensitive social fabric, where cultural and religious considerations play a significant role. The government argues that laws restricting speech are essential to curb subversive elements that could disturb public order and national security. Former Prime Minister Mahathir Mohamad reinforced this approach, stating in 1996 that while the threat comes “from inside,” the nation’s defense lies not in weapons but in “the necessary laws to make sure the country remains stable.”[11] This commitment to stability has been consistently upheld by the judiciary, which enforces restrictions on speech deemed necessary to maintain social harmony.

In Public Prosecutor v. Ooi Kee Saik & Ors [1971] 2 MLJ 108, the defendants were charged under the Sedition Act 1948 for publishing statements at a Democratic Action Party event that the government argued had “seditious tendencies” by undermining public confidence in the ruling authorities. Justice Raja Azlan Shah, referenced the Supreme Court of India’s perspective from AK Gopalan v State of Madras, emphasizing that “there cannot be any such thing as absolute or uncontrolled liberty wholly free from restraint; for that would lead to anarchy and disorder”[12]. Societal harmony, particularly in Malaysia's diverse cultural landscape, was highlighted as essential, affirming that freedom of speech is inherently limited. This case illustrates the judiciary's endorsement of legislative boundaries on expression which aligns with the government’s stance that freedom of speech must be managed to prevent threats to national security.

Ooi Kee Saik case would not be the last time that the courts had to grapple with the constitutionality of Sedition Act 1948. A few years later, in Mark Koding v. Public Prosecutor [1982] 2 MLJ 120, the appellant, a Member of Parliament, was charged under the Sedition Act for his parliamentary speech advocating the closure of vernacular schools. On appeal, he argued that the Sedition Act was unconstitutional as it undermined the basic structure of the Constitution by restricting freedom of speech. However, the court held that freedom of speech, (1) did not constitute part of the “basic structure” of the Constitution and, (2) is not part of the fundamental rule of natural justice, thereby affirming that his right to free speech in Parliament could be restricted especially when speech threatens national unity or public order. This decision reinforced the judiciary’s view that legislative limits on speech were constitutionally valid, particularly in the context of maintaining public order and social harmony[13].

The Malaysian judiciary has long adopted the position that the Constitution’s restrictions on freedom of speech serve as a basis for a narrow interpretation of this right. In Madhavan Nair & Anor v. Public Prosecutor [1992] 1 MLJ 697, the court upheld limitations under Section 27 of the Police Act 1967, which prohibited public speeches on sensitive issues such as race and religion at public gatherings, emphasizing that speech likely to incite unrest or threaten public harmony falls outside constitutional protections. Then, more than two decades later, in Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri [2014] 4 MLJ 765, the judiciary upheld similar restrictions, this time on the use of the word "Allah" by non-Muslims in the Herald publication. The judiciary deferred to the executive’s discretion in determining what constitutes a threat to public order, thereby upholding restrictions under the Printing Presses and Publications Act 1984. Both cases reinforced the view that freedom of speech can be curtailed when deemed necessary to maintain societal harmony.

However, in more recent years, there appears to be a subtle shift in the judiciary’s approach towards balancing state interests and individual rights. In Maria Chin Abdullah v. Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750, where the courts took a more nuanced stance. Maria Chin, a prominent activist and Member of Parliament, challenged a travel ban imposed on her by immigration authorities, arguing that it infringed upon her constitutional rights to free speech and personal liberty. The authorities had justified the ban on the grounds of national security, citing her criticisms of the government. The Federal Court, however, ruled in her favour, emphasizing that any restrictions on fundamental rights must be proportionate and not arbitrary. Unlike previous cases where the judiciary upheld restrictions to safeguard public order, the decision in Maria Chin’s case indicates a growing judicial willingness to scrutinize the proportionality of executive actions, suggesting a shift towards protecting individual liberties even in the context of national security. While this may be a small step, it marks a significant beginning towards a more balanced interpretation of constitutional rights in Malaysia.

Evolving Doctrines in U.S. Free Speech Law

In contrast to the relatively stagnant approach in Malaysia, judicial interpretation of free speech in the U.S. has evolved significantly through a series of doctrines, beginning with the Bad-tendency Doctrine. The doctrine was first proposed in the case Patterson V. Colorado[14] in 1907, indicating that as long as there is a bad tendency towards disrupting social order, even if the speech of criticizing government is true, it cannot be served as a ground for avoiding punishment. The standard is so low and subjective that it can be abused by the government to crackdown criticizing voices, thus infringing the freedom of speech.

The Clear and Present Danger Test, as a replacement for the Bad-tendency Doctrine, was introduced in the case Schenck v. United States[15] in 1919, suggesting that unless there is a clear and present danger caused by the speech, the speaker cannot be punished by the government. Compared with the Bad-tendency Doctrine, the Clear and Present Danger Test obviously makes a higher standard for the speech to be deemed as illegal, thus making certain progress in protecting freedom of speech.[16] However, the standard is still highly subjective, making the protection of freedom of speech still challenging.

The Balancing Test, which was popular during mid-20th century, aims to strike a balance between individual interests and public interests when it comes to judging the legitimacy of a speech. However, it shares the same issue, namely subjectivity, as the Clear and Present Danger Test. In reality, freedom of speech can still be violated under the pretext of upholding public interests.

The principle of Actual Malice was firstly put forward in the landmark case New York Times Co. v. Sullivan[17] in 1964, clarifying that the speaker who criticizes government or its officers shouldn’t be found guilty unless out of actual malice, namely knowingly disseminating false information or showing a reckless disregard for the truth. The Sedition Act of 1798 was also declared invalid for violating the First Amendment. Henceforth, the freedom of speech about criticizing government officials was improved to a new level.[18]

The Two-tier Theory has been prevailing after 1964 until today.[19] It divides speech into two categories, namely political speech, such as public debates, and non-political speech, such as commercial advertisement. The former is regarded as high-value and thus receives greater constitutional protection, while the latter is deemed as low-value and thereby subject to more regulations. The philosophy behind this classification is that the primary function of freedom of speech is to support democracy and combat autocracy.[20] According to this theory and its philosophy behind, it will not be difficult to understand several landmark cases after 1964 until today.

Let’s take the case Texas v. Johnson[21] as an example. The core dispute of this case lies in that whether the national flag burner should be held guilt for his action. On the one hand, citizens have the freedom to express their political dissatisfaction by burning national flag. On the other hand, patriotic sentiments should also be protected.[22] However, the court chose to prioritize the former rather than the latter, making the national flag burner out of criminal punishment, reflecting the strong protection for political speech from the US Constitution according to the Two-tier Theory.

The case New York Times Co. v. United States[23] is another good instance. The central issue of this case is that whether the New York Times can publish the Pentagon Papers without permission, which are all confidential government documents. On one hand, the press has the freedom of press, a kind of speech in the broad sense, and people have the rights to access information, achieving transparency and informed democracy. On the other hands, there are concerns about national security being jeopardized by publishing those classified documents.[24] However, the court finally decided that the freedom of speech should be prioritized to the national security, especially when there is no imminent danger for the national security. This outcome also reflects the strong constitutional protection for political speech under the Two-tier Theory.

The case Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.[25] is also a good example, in which the Court acknowledged that commercial speech is constitutionally protected in some situations, particularly when it relates to consumers' right to information. However, the decision also pointed out that the purpose of commercial speech is primarily to facilitate economic transactions, rather than to serve the public interest in the same way as political speech does. Thus, it does not enjoy as broad a scope of protection as political speech. This perspective was later clarified in Central Hudson Gas & Electric Corp. v. Public Service Commission[26], where the Court formally established the “lower-tier” status of commercial speech, allowing the government to impose strong restrictions under certain conditions.

Comparative Reflection

The judicial approaches to freedom of speech in Malaysia and U.S. demonstrate the distinct interpretations shaped by their socio-political setting. In Malaysia, the courts have consistently upheld restrictions on free speech under Article 10(2) of the Federal Constitution, which prioritizes national security, public order, and social harmony. Cases like Ooi Kee Saik and Mark Koding shows a pattern where the judiciary defers to the executive's discretion in order to give priority to national stability in a multi-ethnic society.

Conversely, the U.S. judiciary’s approach has evolved through a series of landmark doctrines, from the Bad-Tendency Doctrine to the Clear and Present Danger Test, then to the Balancing Test, and finally to the Actual Malice and Two-Tier Theory. U.S. courts have expanded free political speech protections, with cases like New York Times Co. v. Sullivan, which emphasizes the significance of  free political speech even when it is critical of the government. While Malaysia’s judiciary prioritizes social cohesion, the U.S. approach focuses on upholding democratic principles, viewing free speech as essential to public discourse.

Final Insights

A review of both jurisdictions illustrates that while Malaysia and the U.S. share a commitment to constitutional rights, their judicial approaches diverge significantly. Malaysia continues to prioritize national stability, though recent cases like Maria Chin Abdullah subtly hint at a potential re-evaluation of this stance. Meanwhile, the U.S. has undergone a historical process of gradually strengthening protections for free political speech, making these protections highly robust today, even in the face of state interests like national security, social harmony, and public order which serve as a testament to its democratic and freedom values. As Malaysia’s courts begin to scrutinize the proportionality of restrictions, there is potential for a more balanced interpretation in the future. This shift, though incremental, may lead to stronger safeguards for individual rights over time.

Reference

[1] Strangio, S. (2024, August 28). Former Malaysian PM Muhyiddin Yassin charged with sedition. The Diplomat. https://thediplomat.com/2024/08/former-malaysian-pm-muhyiddin-yassin-charged-with-sedition/

[2] Reuters. (2024, June 7). U.S. appeals court rules some books be restored to Texas library shelves. https://www.reuters.com/world/us/us-appeals-court-rules-some-books-be-restored-texas-library-shelves-2024-06-07/

[3] Reporters Without Borders. (2022). Methodology used for compiling the World Press Freedom Index 2022. Reporters Without Borders. https://rsf.org/en/index-methodologie-2022

[4] Masum, A. (2009). Freedom of Speech and the Internet: A Case Study of Malaysia [2009] 3 MLJ xxxiv. Malayan Law Journal.

[5] Mohd Sani, M. A. (2008). Freedom of speech and democracy in Malaysia. Asian Journal of Political Science, 16(1), 85-104. https://doi.org/10.1080/02185370801962440

[6] Section 2, 3(1), and 4(1) Sedition Act 1948

[7] Section 3(3) and 7(1) Printing Presses and Publications Act 1984

[8] Section 233(1) Communications and Multimedia Act 1998

[9] Section 8(1) Official Secrets Act 1972

[10] White, G. E. (1996). The first amendment comes of age: The emergence of free speech in twentieth-century America. Michigan Law Review, 95(2), 299–392. https://doi.org/10.2307/1290117

[11] Sani, M. (2013). Balancing freedom of speech and national security in Malaysia. Asian Politics & Policy, 5(4), 585–607

[12] Awang Mahmud, A. A., & Ali Mohamed, A. A. (2022). Constitutional validity of statute: Sedition Act 1948. Malayan Law Journal, 4, cciii.

[13] Awang Mahmud, A. A., & Ali Mohamed, A. A. (2022). Constitutional validity of statute: Sedition Act 1948. Malayan Law Journal, 4, cciii.

[14] Patterson v. Colorado, 205 U.S. 454 (1907).

[15] Schenck v. United States, 249 U.S. 47 (1919).

[16] Brenner, J. L. (2002). True threats: A more appropriate standard for analyzing First Amendment protection and free speech when violence is perpetrated over the Internet. North Dakota Law Review, 78(4), Article 4. https://commons.und.edu/ndlr/vol78/iss4/4

[17] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

[18] Wille, D. G. (1991). Actual malice: Twenty-five years after Times v. Sullivan. Michigan Law Review, 89(6), 1414. https://repository.law.umich.edu/mlr/vol89/iss6/12

[19] Farber, D. A. (2009). The categorical approach to protecting speech in American constitutional law. Indiana Law Journal, 84(3), 917-940.

[20] Meiklejohn, A. (2000). Free speech and its relation to self-government. The Lawbook Exchange, Ltd.

[21] Texas v. Johnson, 491 U.S. 397 (1989).

[22] Stone, G. R. (1990). Flag burning and the constitution. Iowa Law Review, 75, 111-xxx.

[23] New York Times Co. v. United States, 403 U.S. 713 (1971).

[24] Aviki, A., Cedarbaum, J., Lee, R., Lutkenhaus, J., Waxman, S. P., & Wolfson, P. R. Q. (2021). The Pentagon Papers framework, fifty years later. In G. R. Stone & L. Bollinger (Eds.), National security, leaks and freedom of the press: The Pentagon Papers fifty years on (pp. 1–22). Oxford Academic. https://doi.org/10.1093/oso/9780197519387.003.0001

[25] Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).

[26] Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).

By Noraini Roslie & Jiang Shan (LL.M, Malaya). This essay was produced as part of postgraduate legal studies and is published for general reference only. It does not constitute legal advice.  

10 November 2024