The Ascent (and Descent?) of Free Speech in Nepal

Hi everybody!

Thanks for joining for my eighth blog post during my summer here at IFES. Only two weeks left. So, in light of my soon-to-be nostalgia for something I'm still currently doing, this week we’re going to dive into another case I’ve gotten to work on while at IFES – Senior Advocate Dinesh Tripathi v. Election Commission of Nepal. This was a 2022 case in Nepal about a social media campaign (referred to as the #NoNotAgain campaign) that called for drastic changes in the country’s leadership, the election of younger officials, and encouraged voters to refuse to vote for certain parties that the campaigners believed harmed Nepal’s citizens.

The country’s former Prime Minister, Pampha Bhusal, filed a complaint with the Election Commission of Nepal, which told the campaigners to stop or face charges under the country’s Election Offense and Punishment Act, the Electronic Transaction Act, and the Election Code of Conduct. Keep in mind, there are no facts I have forgotten to leave out. The campaigners have not destroyed property, made threats, or raided voting stations. The precipitating acts were the campaigners simply calling for younger national leadership, and persuading voters to refrain from voting for certain parties that the campaign opposed.

The case went through to the Supreme Court of Nepal, which ultimately ruled in favor of the campaigners and barred the Election Commission from penalizing any of the campaign's participants or supporters. From an American legal perspective, this would be the obvious outcome – one only has to look to the infamous Brandenburg v. Ohio (a case that near-perfectly illustrates the strength of the First Amendment's protections in the U.S., despite the guttural reaction one might [and likely should] have while reading it) to see just how quickly this Nepali case might have been decided under SCOTUS.

Even then, let's not forget our own history. Just eighteen years earlier in 1951, the U.S. Supreme Court decided Dennis v. United States (which has since been overruled by Brandenburg). In it, the Court denied granting the CPUSA any of the broad protections it would later award the Ku Klux Klan, though the general structure of the facts remain the same: the CPUSA did not have a specific plan to overthrow the U.S. government, just as the KKK did not have a specific plan to enact their "revengeance."

Nobody in their right mind would compare the victimized party/ies in the #NoNotAgain case (largely composed of young people in Nepal advocating for a change in the age of their leaders – and while I won't provide my opinion on this, we're seeing something similar in the U.S.) with the "victimized" party in Brandenburg. And yet, let's at least try and make some sense of what's going on there with what we have.

The expectation after a case like Tripathi is that Nepali citizens ought to enjoy stronger, more robust speech protections when speaking out against their politicians and government ("is" and "ought" are always slippery and rarely in harmony, but one can hope) – assuming the common law coming out of this case is enforced. Where are the outer boundaries of protected speech in Nepal now, though? Could supporters of the #NoNotAgain campaign call for a revolution (at an indeterminate time) to overthrow the government and institute a communist regime lead by a vanguard state and not face any repercussions?1 What if they started threatening minorities and calling for a race war on local television?2 Perhaps similar to a few of my other blog posts, these are hard to answer abstractly because 1. obviously, these protections are NEW and haven't been adequately tested yet, and 2. even if we act like we don't, it certainly seems like we're making tacit value judgments when answering these questions. Answering "yes" to the second question – whether we want to admit it or not – feels like we're admitting that, in some way, we're OK with people like Brandenburg saying what they wish.

Of course, that's not completely true. I can prove so right now:

"Under the Free Speech protections above, Brandenburg and his kind should be able to say those things, and yet I'm not personally OK with them saying it."

But what have I really solved in this lazy exercise? My attempts to divorce a legal solution from a moral one feels, at the very least, cheap. Any similar social questions (if translated into a language that everyday citizens – the people likely most affected by speech restrictions – can understand) follow the same pattern of being easily rebutted, at least when I write them this way: Freedom of speech should be sacred, even if it's harmful or disagreeable? Popper's Paradox of Tolerance from The Open Society and Its Enemies. Anything harmful should be scrubbed from public discourse? Brave New World. We should have a strong, unified standard of "good" and "bad" speech? No surprise with this one – 1984. Uncomfortable ideas shouldn't be published? Fahrenheit 451. We're still nowhere closer to an answer, while the climate surrounding the First Amendment (both in certain erosions its faced, and in certain actions that are now protected by it) keeps worsening.

So, where does Nepal go from here? Obviously, that's up to them. Perhaps this means that whatever the equivalent of the KKK is in Nepal – if there is one – now has freedoms it could have only imagined five years ago. American jurisprudence would suggest so. Or, maybe, Nepal will end up a little luckier – maybe Nepal will never have to answer this question. Perhaps its citizens will never need to find the boundaries of their right to free speech, and they'll be able to keep the racists at bay. Is it likely? Hard to say, and history doesn't provide optimism.3 But, Nepal is no stranger to firsts.

See you all next week, and check below for answers to my footnoted questions from above. Plus, don't miss the biggest election news of the year!

Hank

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Trick question! Probably, but they wouldn't need to, since (as I was surprised to learn) the Communist Party of Nepal holds a lot of power in government.

The appropriate legal answer, I imagine, is "maybe." The appropriate moral judgment is probably very different.

It's complicated. To read more, here's a summer blog post from a former WM Law Student, Ruth Jones, that also talks about hate speech in Nepal.