Little did the honorable justice know, but when he made the now famous statement about shouting “Fire!” in a crowded theater, he would be making a relevant statement about a censorship debate taking place in India 93 years later, involving Google, Facebook, modern technological limitations, and an international freedom of speech.
For the past few months, India has been in tense negotiations with Facebook and Google regarding users’ ability to post “prejudicial statements”. The Indian government wants Facebook and Google to censor these statements for the good of the people. Facebook and Google responded that it would be technically impossible to censor the comments of 1 billion people and maintain a real-time communication system. The Indian government did not (and does not) believe them, and has threatened them with the nuclear option: blocking Facebook and Google inside of India.
This may sound like a draconian response to readers inside of countries with more entrenched freedom of expression, like the United States and most of Western Europe. However, when you understand the cultural sensitivities in India surrounding topics like religion, ethnicity, and class, it brings the entire debate into a different light.
In India, when a person makes a derogatory statement regarding a religion, people tend to react badly. Although not as highly publicized as the riots which occurred after comics of the Muslim Prophet Muhammad appeared in a Danish newspaper a few years back, riots do occur. This is especially true when racially or religiously insensitive comments are made in public. From the point of view of the Indian government, it is then of the utmost importance to maintain stability, and this means censoring public statements to avoid riots.
Which brings us back to the issue of shouting “Fire!” in a crowded movie theater. As the story goes, a person should not have the freedom to shout “Fire!” in a crowded movie theater, as this would result in immediate and predictable harm to the patrons of the movie theater in the form of mass panic. One notable case of this happening was in the Italian Hall Disaster in 1913.
However, what is not often thought about is the liability of the theater owner. The person shouted in the operators’ theater, and people were harmed in their theater, so shouldn’t the theater be liable?
Let’s run a little hypothetical situation. In the aftermath of a riot in a theater, people begin to question what the theater should have done to prevent the panic. Shouldn’t the theater do everything in its power to predict when someone will shout “Fire!” in a theater, and then prevent people from doing so? Absolutely, the public unanimously responds. In fact, so as to avoid a riot or panic, the theater should screen all verbal conversations in the theater, just to avoid a panic. This seems reasonable, the local government might say. So they make it a statute, and if a theater does not comply, they will lose their license to operate a business. Case closed.
While reading that, you may be thinking, “That is a ridiculous scenario, no one would do that.” Which would be correct. No judge would uphold that law, and no city council would pass it. Instead, people would place the blame on the individual who caused the riot and punish them; the theater would go unpunished, as is just.
When we look at that hypothetical, changing the place, forum and government, it is not altogether different from the ongoing situation in India. Google and Facebook are being asked to censor content before it is published – in real-time. This is widely thought to be a technical impossibility, but even if it were possible, it would still make Google’s and Facebook’s offerings sub-standard. Consider what would happen if a comment slipped through the filter and riots ensued. Would Google be banned in India? Would Facebook?
Is the Indian government really going to ban two of the largest technology companies in the world from operating in their country – and in the process erase any new jobs that are there as a result – for failing to correctly implement a filter they maintained was impossible from the beginning? We wouldn’t do it to a theater operator, and Google and Facebook are just a crowded theater on a much larger scale. So why would we do it to Google and Facebook?