Free speech is fundamental to democracy as it enables citizens to hold leaders accountable and engage in collective decision-making. It provides individuals with both a vote and a voice, allowing them to share their beliefs, opinions, and values. True democracy honors the right of every person to be considered a free and equal member of society, even when their views diverge from the majority. Although hate speech and insults may undermine social unity, democracies must wrestle with the delicate task of balancing individual protection with the preservation of free expression. This balance differs from country to country, influenced by distinct cultural, legal, and historical factors. The ongoing challenge is to foster civil discourse while protecting the principles of democracy.
I join the multitude of Africans and people of the Gambia for the call to abolish the presidential insult law in Africa and in the Gambian law books is a demand to repeal a contentious part of the legislation that for example criminalizes insulting the Gambian President, punishable by imprisonment or a fine. Every Gambian citizen has the right to self-expression, a cornerstone of democracy. Criminalizing individuals for their opinions erodes the core of free speech. In a democracy, criticism is essential and should not be stifled. Laws that penalize ‘insulting the President’ conflict with the principles of a democratic society that cherishes freedom of expression and could even threaten satirical newspaper cartoonists. All citizens deserve legal protection, and no one, including the Head of State, should be above the law. There must be no special laws for the President; equality before the law is a fundamental tenet. Freedom of Expression is a vital democratic right, enabling public participation in governance and ensuring accountability. The Constitution supports this right, including the right to criticize the President. I call on the Gambian government to repeal any sections of the penal code that hinder freedom of expression. Arrests for insulting or challenging the President’s authority occurred even during Yahya Jammeh’s dictatorship, but they have no place in a democracy. Protecting the Head of State or public officials from criticism due to their role contradicts the principles of modern democracy and infringes upon the freedom of expression, as public officials must expect increased scrutiny.
As a media law educator, I can affirm that the United States does not have hate speech laws. The U.S. Supreme Court has consistently ruled all hate speech laws unconstitutional. In America, the remedy for hate speech is more free speech, or as Justice Louis Brandeis famously said, “more speech, not enforced silence.” What benefits America should not necessarily be deemed detrimental for the Gambia. Hate speech, in its proper context, is a combination of defamation (already covered by the Gambia’s existing laws) and a covert means to shield corrupt officials from critical citizens’ commentary.
Hate speech is not merely speech that offends government officials or incites and insults individuals. It specifically refers to speech that vilifies and incites violence against vulnerable and marginalized communities, targeted due to immutable characteristics such as ethnicity, religion, sexual orientation, race, national origin, gender, age, or disability.
Furthermore, we learn that damages for tortious liability are designed to compensate for actual harm suffered. Such damages should not punish the defendant unless their actions are extraordinarily perverse or depraved.
Additionally, the distinction between free speech and libel is often fine. Public figures, particularly those in high office, are expected to tolerate a degree of scrutiny and criticism. This hesitance to award libel damages to public officials stems from constitutional protections of democracy, the rule of law, accountability, and the freedoms of expression and opinion.
Regulating hate speech and insults is a nuanced issue in democracies, requiring a careful balance between the right to free speech and the need to protect individuals and communities. Laws regarding insults differ globally. In certain areas, disparaging the “honor and dignity” of public figures, including the President, can lead to criminal charges. For example, in some jurisdictions, such actions against the President may be subject to legal penalties. Conversely, the First Amendment in the United States safeguards free speech, encompassing offensive speech, unless it meets the “emergency principle.” Under this principle, hate speech that presents an unavoidable threat may be subject to legal action in the U.S. It is my belief that in a true democracy, hate speech, defamation, and libel should not align with fundamental principles. Of course, I could be mistaken, as has happened before. Nonetheless, it would be intriguing to examine how ordinary, reasonable citizens regard those who receive substantial libel settlements from the courts.
