May 6, 2016, 10:31 AM
Thank you for allowing me to speak to you today. I’m very honored to be in The Gambia and even more honored to be your World Press Freedom Day speaker. While I have attended many of these events in the United States, I believe that I have only spoken at one, which is quite odd when you think about it. After all, in many ways, it was perhaps my destiny to here. Before I studied law, I studied journalism. After I studied law, for the better part of my 16 year legal career, I was fortunate enough to represent an organization known as the “World Press Freedom Committee”, a nongovernmental organization comprised of 45 other organizations dedicated to fighting for press freedom around the world. While we had no official ownership of or affiliation with World Press Freedom Day, there was a certain kinship.
That’s why my remarks today are adapted, in no small part, from an amicus, or “friend of the court” brief that I wrote for the World Press Freedom Committee and which served as the cornerstone of a major protect of that organization dedicated to the eradication of criminal penalties for defamation or truthful but insulting speech around the world. It has been filed in major international courts such as the European Court of Human Rights and the Inter-American Court of Human Rights. It was, by my count, filed with the highest domestic tribunal of at least 5 countries. And it also formed the basic outline of testimony delivered by the former Executive Director of the World Press Freedom Committee to the Spanish Senate.
You might ask why the World Press Freedom Committee and why I have spent so much time working against these laws and why we continue to repeat these arguments to anyone who will listen, including all of you attending today.
The answer is simple:
Laws criminalizing speech that reports on, comments about or criticizes public officials have NO place in a democratic society, as they represent perhaps THE single greatest threat to free speech in a democracy. I have many goals for my trip here to The Gambia; but if we can accomplish repeal of the seditious libel law, I am sure that I -- and the International Center for Journalists would agree -- would consider this project a success.
Whether these laws impose criminal penalties for defamatory speech or take the form of “insult laws” (or as they are known in Spanish-speaking nations, “desacato” laws), they are intended only to punish news media, journalists or other persons who may seem to have insulted or disparaged a public leader or official, State, or national symbol or institution, who, in the first instance, often decide whether they feel they have been insulted. Both criminal defamation and insult laws seek to shield public officials from press and public scrutiny.
Modeled after laws dating back to at least the Roman Empire, modern insult laws in particular purport to protect the “honor” of the government and government officials. In reality, however, both types of criminal laws are inconsistent with the basic principle that freedom of expression, and especially freedom of the press, are the touchstones of all freedoms and are among the most cherished and soundest guarantees of modern democracy; both sets of laws are anachronistic and anti-democratic.
Some nations question the continued existence of criminal penalties for speech considered critical, especially in the press, with repeal of these laws increasing around the world. The idea that criminal penalties constitute an almost per se violation of the right to freedom of expression has also been upheld by prestigious courts, including the European Court of Human Rights and the Inter-American Court of Human Rights, which have observed that public figures should receive less, not more, protection from supposed insult than ordinary citizens. The Gambia should join these nations and tribunals by repealing any of its laws that allow imposition of a criminal penalty for defamatory speech, especially those aimed at restricting freedom of the press, a fundamental right.
I. FREEDOM OF SPEECH MEANS THAT ANY RESTRICTIONS ON THAT RIGHT MUST NECESSARILY BE LIMITED IN SCOPE AND APPLICATION
The First Amendment to the United States Constitution says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances
But, as we all understand “no law” doesn’t really mean “no law”. There are obviously restrictions on freedom of speech in the United States. The difference is that various substantive and procedural protections exist which ensure that these restrictions are as limited as possible, protecting as much speech as possible , especially speech that is of the highest value:
To fully understand the First Amendment, its place in our Bill of Rights and importance to democracy, one must understand why the First Amendment exists. In purely theoretical terms, I like to think of the First Amendment as existing for three reasons:
To Protect Individual Liberty
To Protect the right to Self-Governance
To find create a “marketplace of ideas” that will produce the “truth”
The concept of individual liberty is important, but probably the least relevant to our discussion today. To understand this concept we must agree on what “freedom” means. It’s a difficult word to define, isn’t it? And yet, we all sort of understand it, right?
I think if you asked the average person to define “freedom”, he or she would say something along the lines of
It’s the feeling that you can do what you want, when you want to do it.
And what is more important to that feeling of freedom than every day activities like what you wear, where you go, who you associate with, how you choose to entertain yourself and what you say? The First Amendment protects all of these activities and promotes a diverse society that is also essential to freedom by ensuring that we all not only have our own chosen belief system but the ability to change our beliefs as we grow, learn and change as people.
One example I like to use is music: I like most kinds of music. In fact, I have about 5000 songs downloaded onto my iPod. Do listen to each of them every day? Of course not. But there’s a certain comfort in knowing I can. Similarly, I don’t like all kinds of music. For instance, I don’t particularly like the “country and western” genre. But it’s nice to know that I get to make that choice to listen or not listen to country and western music, not have the choice forced upon me. Freedom to listen to what I want, when I want it. And, I suppose freedom to say (or sing) what I want, when I want to say (or sing) it. (But I promise not to exercise my freedom to sing -- and you should thank me for that).
More important, of course, is the concept of self-governance. The First Amendment exists because government is always stronger than the individual. It has more money and, via the criminal justice system, more power. It can leverage those powers against the individual. But the First Amendment allows the individual to fight back in various ways. By protecting newsgathering and publication, the First Amendment allows us to build public consensus on important issues of the day. That way it’s not government vs. individual, it’s government vs. 1 million, 2 million or, in the case of the United States, 300 million individuals.
Finally, the First Amendment helps to create what is called a “marketplace of ideas”. A place where ideas, rather than products, are bought, sold and traded without government price setting. And, as where a free market economy will produce the true price for goods -- after all the value of a product is what people will pay for it -- the marketplace of ideas produces the true value of an idea.
As one of our most famous American statesmen, Benjamin Franklin, said:
When men differ in opinion, both sides ought equally to have the advantage of being heard by the public; and that when Truth and error have fair play, the former is always an overmatch for the latter.
In plain language, Mr. Franklin was explaining that if everyone has their say, we’ll compare all the speech and determine what we deem as a society to be the ideas, ideals or values that we hold to be true. More importantly, we’ll have a better understanding of that which we don’t value -- that which is not true. This necessarily means, of course, that we have to put up with some “bad” speech. Speech that is hateful, hurtful and offensive, for instance. I, for one, welcome that speech. For example, if someone is a racist, I’d prefer to know that he or she is racist. I’d prefer to know where that person is, what he or she thinks, and plan my reaction accordingly, rather than be surprised by him or her. There’s also the generally accepted idea that it makes society stronger to more clearly understand why these type of people aren’t credible; they can and should speak so we can understand the lack of authority to their arguments.
So it is with that background that we begin to see why there are so few substantive limitations on speech in the United States. The only types of speech that we don’t protect are those with absolutely no societal value because they only serve to directly deceive or injure individuals:
Invasion of Privacy
False commercial speech
You’ll notice there are no references to political speech -- even that which constitutes sedition, threatens national unity or undermines the safety of the state -- anywhere on that list. Why? Because a blanket prohibition on even speech which endangers national security isn’t in our best interest as a country. A frank and forthright discussion of national security and other governance issues doesn’t weaken a nation, the collective understanding of threats and reaction to threats large and small makes the entire nation stronger.
Or as my friend Lucy Dalglish, Executive Director of an organization called the Reporters Committee for Freedom of the Press, once so eloquently put it:
No one has ever demonstrated that an ignorant society is a safe society.
You might be saying right about now: “But, wait, there are obviously limitations on speech that threatens national security, even in the United States. After all, you are currently trying to prosecute Julian Assange, the Founder of Wikileaks, for disclosing hundreds of thousands of classified documents.” True, but even prosecutions of this type are limited in several ways, mainly through procedural protections designed to ensure that as much speech as possible makes into that vaunted marketplace of ideas.
Before we discuss those protections, we need to think on a more conceptual level once again. Remember how I identified just a moment ago the various types of speech that are more freely restricted? That’s because they are considered to have little to no value to society. Another way to look at freedom of speech, then, is to avoid thinking of it as an absolute right and instead think of it as something to be balanced against societal interests. Looking back at our “little to no value” list, we can clearly identify those competing interests:
Defamation (freedom of speech vs. the right to one’s individual reputation)
Invasion of Privacy (freedom of speech vs. the right to be left alone)
Copyright Infringement (freedom of speech to use others’ creations in a different way vs. the right to profit off one’s creation)
False commercial speech (freedom of speech vs. the right to not be defrauded when purchasing goods and services)
Obscenity (freedom of speech v. the need to maintain a moral society)
Fighting Words (freedom of speech v. the need to ensure that speech does not transition to imminent violence against unarmed, common individuals)
So how can we be sure that these balancing tests within the marketplace of ideas will actually produce the truth. Well, we make sure it’s not a fair fight.
That’s right -- NOT a fair fight.
We put a thumb on the scale of justice to always favor free speech. After all, in most instances, the difference between truth and fiction is not black and white; it’s more of a gray area. How you resolve that gray area determines how you resolve the issue of truth vs. fiction.
The well known case of New York Times v. Sullivan is particularly instructive. The case made its way to the United States Supreme Court during the highly turbulent civil rights era of the 1960s. The New York Times carried an advertisement entitled “Heed their rising voices” which urged people to contribute to the fight against discrimination by highlighting various actions taken by the police commissioner of Birmingham, AL against protesters at a local university. The advertisement got several facts wrong. However, they were minor facts. Still, the all-white, local jury ruled for the police commissioner after he brought suit against the New York Times. The jury’s ruling required the New York Times to pay $ 500,000 and would have, in effect, imposed “strict liability” on the Times or any other newspaper, television or radio station when discussing issues of personal, local, state or national importance. This would have multiple effects: the subject of every article would likely scrutinize everything written about him or her searching for the opportunity to bring a lawsuit to stifle speech; the paper would have to justify every fact it writes when sued, and finally, in an abundance of caution, it would engage in rampant self-censorship to avoid being hauled into court in the first place.
The Court, recognizing these dangers, produce a strongly worded opinion in favor of the New York Times. Perhaps the most illustrative portion of the opinion reads:
Since erroneous statement is inevitable in free debate, it must be protected if the freedom of expression are to have the “breathing space” that they need to survive. [Under a rule providing truth as a defense] would be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true, because of doubt whether it can be proved in court or for fear of expense of having to do so.
Again, I’ll offer a plain language translation: when working in the “gray areas”, we have a choice: we can either restrict some truthful speech thereby ensuring we prevent all false or dangerous speech, or we can endure some false or damaging speech to ensure we always have the truth at our disposal. In the United States, we choose the latter.
This plays out in several ways in our legal system, but nowhere moreso than through the requirement that any restriction on speech be:
1. Justified by a compelling interest and
2 Be narrowly tailored to protect that interest.
These compelling interests are the topics I’ve discussed above and basically nothing else. But it is the requirement that the actual laws be narrowly tailored to achieve those interests that offers the true protection. How does the requirement that laws restricting speech be “narrowly tailored” manifest themselves? In many ways, such as:
Mandating that there be no other way to achieve the same interest that would have less impact on freedom of speech
That there always be due process protections for the defendant, including the right to be notified of all charges, the right to have his or her day in court and the right to appeal an adverse decision to an independent appellate court.
Requiring that all laws be precisely drafted, avoiding vague terms, so that anyone charged with violating a law can understand exactly which statements are allowed and which statements are prohibited -- if a reasonable minds can differ as to a law’s meaning, the law violates the guarantee of free speech.
Requiring that a law be “viewpoint neutral” -- not favoring one particular side or another -- even where low value speech is implicated.
And, perhaps most importantly, by requiring that the plaintiff in a defamation, invasion of privacy or other lawsuit prove all the allegations supporting his or her claim in order to win that suit. The clearest example is one that we’ll discuss later: requiring that plaintiff to prove the falsity of an allegedly defamatory statement rather than requiring the defendant to prove the truth of that statement. You may be aware of that rule; you may not be aware of two other aspects of that rule:
That there is a higher standard of proof required of a plaintiff that is considered a “public figure” or public (government) official.
That, in addition to showing the statement at issue was false, the plaintiff must show something more than innocent error. He or she must show that the defendant acted with the requisite level of “fault”, with the standard there being increased where the plaintiff is a public figure or public official as well.
Another example, and one that lead us into the particular topic of seditious or criminal libel is that there is always a less restrictive alternative to a criminal penalty for speech: the use of civil penalties that will directly address and remedy the harm at issue. Since the New York Times v. Sullivan decision almost 50 years ago, the concept of a criminal penalty for defamation or other speech violations has almost disappeared; the number of times that a “prior restraint”, which prevents publication altogether, has been imposed can be counted on one hand.
That’s the way it is in the United States. Thankfully, largely due to the adoption of international treaties, the rest of the world is beginning to follow suit with regard to disfavoring the extreme, criminal, penalties for defamation or insult in favor of the more accepted civil remedies that will truly compensate any real harm caused by speech.
It is quickly becoming the rule that criminal laws penalizing speech, news reports and commentary arguably critical of public officials are disfavored by all those except the small section of the population, the political elite, hiding behind these laws. In some instances, even
those in power have come to recognize that such laws are inappropriate, thus leading to their
repeal; the validity of a number of the criminal statutes still in existence in Western European
countries is questionable due to the rulings of international tribunals. This tribunal should simply
follow suit because, as with criminal laws in other nations, The Gambia’s laws carry the threat of inconsistent, selective political enforcement. There is no need for the imposition of criminal penalties to protect public officials.
Some nations, especially those with authoritarian governments, may seek to justify criminal penalties on speech by citing the existence of similar laws in Western European nations upon which their legal codes are based. These laws, however, were drafted in an entirely different era, when the concept of a participatory democracy was not accepted as it is today. The Nigerian Supreme Court, in a 1983 decision invalidating that country’s seditious libel laws, aptly summarized why content controls based in criminal codes are an anachronism for modern free expression and freedom of the press principle and practice:
The law of sedition is a derogation from the freedom of speech guaranteed under the Constitution and is therefore inconsistent with the Constitution. Nigeria is no longer the illiterate or mob society the colonial masters had in mind when the law of sedition was promulgated
An increasing number of countries distributed throughout the globe have begun to question the appropriateness of imposing criminal sanctions in order to protect an individual’s reputation where that individual is a public official.
Two countries not generally thought to be vanguard protectors of the freedoms of expression or of the press have repealed their criminal defamation laws. They are Ghana, which repealed all criminal defamation statutes in 2001, and Sri Lanka, which repealed its statutes in 2002.
These two nations follow in a long tradition started in the United States, where all fifty states had some form of criminal defamation statute until the United States Supreme Court extended the constitutional protections for news, comment, or other press material on issues of public concern originally created in New York Times v. Sullivan to apply to (and disfavor) criminal defamation in the case of Garrison v. Louisiana. What followed was the legislative repeal or judicial invalidation of criminal defamation statutes in thirty-three states. Of the seventeen statutes still on the books, only four – in Kansas, New Hampshire, North Dakota, and Utah – are still arguably constitutional, as they are the only ones that were amended after Garrison to comply with the Court’s rationale.
Many other nations in the Americas appear to have been swayed by this trend. Currently, the national legislatures of Argentina, Brazil, the Dominican Republic, and Panama are considering, or regularly have considered, in recent years legislation that would repeal criminal defamation laws in those countries.
The Inter-American Court of Human Rights’ European counterpart, the European Court of Human Rights, has repeatedly disfavored the imposition of criminal penalties as a means of
addressing defamatory speech. It has rejected attempts by Finland, Norway, Portugal, Turkey, to criminally punish allegedly defamatory statements criticizing public officials.
Finally, several international human rights organizations have repudiated the need for criminal sanctions to protect the rights of public officials.
The United Nations Human Rights Commission has cited the use of criminal penalties for defamation as indicia of an abridgement of the right of freedom of expression in several countries, including Iceland, Norway, Jordan, Tunisia, Morocco, Mauritius, and Iraq.
The United Nations Special Rapporteur on Freedom of Opinion and Expression has twice called on States to repeal criminal defamation laws in favor of the use of civil remedies.
Three international officials – the UN Special Rapporteur, the OSCE Representative on Freedom of the Media and the Organization of American States Special Rapporteur jointly concurred, issuing a declaration in 2002 stating:
Criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.” The Inter-American Commission on Human Rights has made a strong statement against the use of criminal laws to protect the reputations of public officials: “The protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person, or a private person who has voluntarily become involved in matters of public interest.”
In addition a number of countries have done away with their insult laws (in whole or in part) in recent years.
In Europe and the former Soviet Union, Sweden (1976), Yugoslavia (1992), Hungary (1994), Uzbekistan (1996), and Kyrgyzstan have repealed insult laws -- which are laws designed to punish even truthful or purely opinion-based statements that dishonor, the state, a head of state or symbols of the state.
Perceived insults of the Czech President are now allowed, due to a repeal of that portion of the insult law in 1998. In 1994 the Czech Supreme Court struck down laws prohibiting perceived insults of Parliament and the Constitutional Court, as well as those laws protecting civil servants.
Though perceived insults of the State and of private citizens are still prohibited, Moldavan insult laws preventing supposed criticism of the President and Parliament were repealed in 1996.
The European Court of Human Rights has generally disfavored insult laws, overturning convictions imposed in several Western European nations, including Spain, Austria, Belgium, Iceland, Romania, Norway, and Greece,
The same trend is evolving outside of Europe. In addition to Nigeria (1983), insult laws have been repealed by the African nations of South Africa, Egypt (1996),and Kenya (1997)
The influential Asian nations of Japan (1947) and South Korea (1988) have repealed insult laws, as has the smaller island nation of Sri Lanka (1997).
In South America, insult laws in Argentina (1994) and Paraguay (1998) have been repealed. In addition, the Organization of American States Human Rights Commission has called for a repeal of all insult laws in the Americas.
And of course, in the United States of America, perhaps the nation seen as paramount in terms of protecting freedom of speech and of the press, has a long history of allowing perceived criticism, scrutiny and critical comment of the State and its officials. The United States of America has no federal law prohibiting insults. The United States Supreme Court has consistently reaffirmed the idea that the nation’s symbols are not to be afforded any special protection, stating that,
“[I]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
In particular, our Supreme Court has declared unconstitutional restrictions on speech which prohibit desecration of the United States flag, which prohibit words critical of the United States flag, which prohibit the display of any sign within 500 feet of a foreign embassy if that sign tends to bring that foreign government into disrepute, and which prohibit the portrayal of a member of the Armed Forces in the media if the portrayal discredits that armed force.
The rare application of a criminal penalty for defaming or insulting a public official demonstrates there is little to no interest served through the existence of these laws. In fact, they are only applied arbitrarily, often as a form of harassment, in a manner that is wholly unrelated to the remedial purpose of making one’s reputation whole for which these laws are intended. They are solely penal in nature and, as such, have no place in a democratic society that requires freedom of expression and, especially, freedom of the press in order to function properly.
Statutes which criminally punish defamatory speech exist for only one reason: to address the harm to the reputation of the subject of the defamatory statement. Criminal defamation statutes do not address this harm. Instead, they only protect the interests of the state at the expense of private citizens, allowing government officials to engage in a scheme of selective prosecution of their enemies. Criminal defamation statutes are rarely used in any modern democracy, indicating them to be inappropriate in any society based on democratic principles of participatory government by an informed citizenry. In addition to the countries that have already repealed, or are considering the repeal, of criminal defamation laws, many others have simply chosen not to prosecute offenders under criminal laws.
England has held no public prosecutions for defamation since the 1970s (and there exists no criminal defamation statute in Scotland).
Sweden has not imposed a criminal penalty for defamation since 1965.
Norway’s self-imposed ban on these penalties extends even further, to 1933.
The widespread use of criminal defamation statutes in repressive countries simply allows public officials to use the power of the state to intimidate and harass those they consider opponents. The Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights has specifically noted this danger:
Many countries of the Hemisphere have demonstrated a clear intention to intimidate
journalists by initiating judicial proceedings against them. Many public officials or government leaders use criminal libel, slander, and defamation laws in the same manner as desacato laws, with the intention of silencing journalists who have produced articles that criticize the government on matters of public interest.
The United Nations Commission on Human Rights has expressed the same concern, noting the
“extensive occurrence of detention, long term detention, persecution and harassment, including through the abuse of provisions on criminal libel.”
Judicial repudiation of criminal defamation statutes will ensure these onerous tools of oppression are replaced by civil measures that cannot be abused in the name of “protecting reputation.”
The chilling effect of insult laws is even worse, as their onerous penalties are further amplified through their inconsistent application. Persons commenting on an issue of public concern may be prosecuted at the whim of the government because one person’s opinion may be another’s (the government’s) insult. Confusion over disparate meanings of a word can lead to prosecution even when the statement at issue was not meant to be insulting. A vivid example of the arbitrary power wielded by governments in the application of insult laws is found in a decision of the Zambian Supreme Court upholding the convictions of three journalists charged with insulting Parliament and individual members of that body, in which the Supreme Court stated,
“Parliament, it seems to me, would not have instituted this case if Fred M’membe and Lucy Sichone had not employed scornful language in their articles.”
In other words, these statements were considered insulting simply because Parliament said they were insulting . The Supreme Court did not act as an independent check on the legislature, instead allowing Parliament to act as judge and jury. This is governmental abuse of power in its most explicit form, and demonstrates the importance of an independent judiciary to equal justice and democracy.
Insult laws are obviously not necessary to protect order in a democratic society. There is no widespread rash of supposed insults which threaten the government or its power, as only a handful of persons have been prosecuted under the insult law. Further, the enforcement of insult
laws only on an inconsistent basis demonstrates that these laws protect against an imagined threat, not a true threat which must constantly be monitored by the government.
Perhaps one reason that criminal sanctions on speech -- both in the form of criminal defamation laws and insult laws -- are falling into disfavor in a number of countries is that those nations are aware that such laws violate six international human rights documents (charters, covenants and declarations) which protect freedom of expression.
Three of these documents protect the right to free expression without qualification. These are the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of
Man, and the African Charter on Human and People’s Rights. Criminal penalties for criticism of
public officials violate the plain language of these texts.
The other three documents containing narrow exceptions allowing for some restrictions on speech are the International Covenant on Civil and Political Rights, the European Convention
for the Protection of Human Rights and Fundamental Freedoms, and the American Convention
on Human Rights. Courts have repeatedly stated, in the strongest language, that the application
of criminal law to punish criticism does not fall within the confines of these exceptions; these
tribunals have repeatedly overturned convictions brought under such laws.
The first three of those international human rights documents, including the most well-known protector of human rights worldwide (the Universal Declaration of Human Rights), allow no restriction on the fundamental right of freedom of expression, leaving no legal basis for criminal defamation statutes or insult laws under the plain language of these documents.
Since its adoption in 1948, the Universal Declaration of Human Rights has set the world standard for the protection of basic human rights. Article 19, protecting freedom of expression, is the best known Article in the Universal Declaration of Human Rights; it states:
Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.
The United Nations’ Universal Declaration Committee, which drafted the Universal Declaration of Human Rights, envisioned this document as an absolute protector of free expression, describing the term as follows:
Freedom of information is a fundamental human right and the touchstone of all freedoms to which the United Nations is consecrated. Freedom of information implies the right to gather, transmit, and publish news anywhere and everywhere without fetters. As such, it is an essential factor in any serious effort to promote peace and progress of the world. Understanding and cooperation among nations are impossible without an alert and sound world opinion which, in turn, is wholly dependent on freedom of information.
The same broad protection of freedom of expression is found in other, lesser known, treaties. The American Declaration of the Rights and Duties of Man states in Article IV:
Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.
Article 9 of the African Charter on Human and People’s Rights states:
1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his
opinions within the law.
Both criminal defamation statutes and insult laws violate the plain language of these agreements.
But even those other three documents understand that laws criminalizing defamatory or insulting statements have a chilling effect on speechthat interferes with both the speaker’s right to impart information and the public’s right to receive it by imposing subsequent liability on a speaker through imprisonment and/or fines.