Vayalar Ravi, the Union minister for overseas Indian affairs, could have taken a little more time to understand how in the United States the freedom of speech and that of the press, guaranteed by the First Amendment to its Constitution, is virtually sacrosanct, before rushing to support the Sikh sentiments hurt by Jay Leno’s joke about the Golden Temple. In that country, with all its faults, even its President could not have prevented a Salman Rushdie from participating in a literature festival. And there is no way to make Jay Leno apologise for his jibe through ministerial pressure.
Some faithfuls have reportedly rushed to litigation in the US claiming damages from the channel as well as the joker.
To assess the chances of success, one can usefully refer to the American constitutional history of over 200 years of the working of the First Amendment. For reasons, mostly historical originating from the Civil War, burning of the American flag became too common a way of recording protests. Consequently, 48 states passed laws banning flag burning.
In 1907, the US Supreme Court upheld the statutes as constitutional (Holter v. Nebraska). In 1968, Congress passed the federal flag desecration law in response to an event in which activists burnt American flags in protest against the Vietnam War. Civil rights activist Sydney Street, who had burnt a flag at a New York intersection in protest against the shooting of civil rights activist James Meredith, was prosecuted under New York’s desecration law. The Supreme Court overturned Street’s conviction by ruling that verbal disparagement of the flag was protected by the First Amendment. The arrest of a teenager in Massachusetts for wearing a flag patch on the seat of his pants was quashed by the Supreme Court on the grounds that vague prohibitions violated the First Amendment rights.
The more startling case was where one Lee Johnson burned a US flag in protest against President Ronald Regan’s policies. He was accused of violating Texas’ flag desecration laws. The Supreme Court, in Texas v. Johnson, by a narrow 5-4 majority struck down the Texas law along with 48 other similar statutes ruling that flag desecration was a constitutionally protected form of free speech.
The US Congress reacted against the decision in Johnson’s case by passing a Flag Protection Act more in line with the state laws that were declared invalid. Thousands of US citizens burnt flags in protest of the new law and when two protesters were arrested, the Supreme Court affirmed its previous ruling and struck down the new law. Following this, several attempts by Congress to pass laws to punish the defilers of flag were held unconstitutional.
Experienced statesmen do not believe in imposing curbs on unpleasant expressions, but in simply ignoring them. For example, Jay Leno’s joke on the Golden Temple would have passed unnoticed if only protests — that too officially — were not launched. The BBC’s unpleasant comments on Indian toilets traded as humour would have been lost in the din if Indian authorities were to be their usual self instead of being extra sensitive.
In the Texas case, Justice Robert Jackson of the US Supreme Court said: “But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”
In the same judgment, Justice William J. Brennan said: “We can imagine no more appropriate response to burning a flag than waving one’s own, no better way to counter a flag burner’s message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by — as one witness here did — according its remains a respectful burial.”
There are innumerable instances in the US where the freedom of speech was well and surely protected from governmental attacks. To highlight the importance of the freedom, there are institutions dedicated for protection of speech. The Thomas Jefferson Centre for the Protection of Free Expression is one such example. The institution, named after the author of the famous “American Declaration of Independence”, has been awarding annual “muzzle awards” to those who have done the most to damage freedom of expression.
Prominent recipients include former US President Bill Clinton for stonewalling information relating to investigation into the Monica Lewinsky affair. Former US President George W. Bush was the winner of the first prize in this category in the year 2000. But in 2006, his decision to order monitoring international phone calls of US citizens without congressional or judicial approval earned him a Jefferson muzzle for the second time. Annual recruits to the house of shame make headlines.
As and when the litigation against Jay Leno meets the expected end, there will surely be cries of racism, but a little knowledge about America’s constitutional history should rule out any such criticism.
We in India have freedom of speech and expression guaranteed to citizens. The organisers of the Jaipur Literature Festival had the fundamental right of exchange of views in person and through video link with Rushdie who had valid travel documents and was not a terrorist or their accomplice. But our political powers could abort it through covert acts. Initially, a false story about Rushdie’s personal safety was floated and thereafter the organisers were falsely blamed for cancelling the video talk. Obviously freedom of speech is available even to the state functionaries and it includes the freedom to utter lies and to get away with it.
In this context, one may usefully recall a joke that was making rounds during the heydays of the Cold War. One American proudly told a Russian that every US citizen has the freedom to go to the White House and abuse the President to his face. The Russian, after brief reflection, asked, “So is every Russian free to go to the White House and abuse the American President?”
Freedom is not worth having if, in effect, it is restricted to abusing a class or praising a clan.

The writer is a senior advocate of the Supreme Court and former additional solicitor-general
of India