Case Comment Constitutional interpretation Constitutional law Right to freedom of speech and expression (Article 14)

Case Comment | Compelled Speech and the Constitutionality of POFMA Correction Directions | By Daryl WJ Yang

Daryl WJ Yang serves as the Managing Editor of the Singapore Public Law Blog. He graduated with a Bachelor of Laws (First Class Honours) and a Bachelor of Arts with Honours (Magna cum laude) with a minor in Anthropology from the Faculty of Law and Yale-NUS College at the National University of Singapore. Daryl is grateful to Kevin Tan and Marcus Teo for their feedback and comments.

Cover image by Dimitris Vetsikas from Pixabay.


Within the span of two weeks, the Singapore High Court released two judgments that reached diametrically opposite conclusions on whether the burden of proof lies with a statement-maker who has been issued with a Correction Direction (“CD”) issued under the Protection from Online Falsehoods and Manipulation Act 2019 (“POFMA”) or the Minister who issued that CD. In particular, the two decisions differed in their views as to whether Article 14 of the Singapore Constitution – which guarantees rights to free speech and expression subject to various exceptions – is engaged in an appeal against a Minister’s refusal of an application to cancel or vary a CD (a “POFMA Appeal”).

In Singapore Democratic Party v Attorney-General [2020] SGHC 25 (“SDP”), Ang Cheng Hock J observed at [37] that “[t]he constraint on the appellant’s right to free speech in the form of the CD would not exist but for the Minister’s attempt to impose it”. In The Online Citizen v Attorney-General [2020] SGHC 36 (“TOC”), Belinda Ang J disagreed with Ang Cheng Hock J that the issuance of a CD constrains a person’s right to free speech for two reasons.

First, Her Honour held that “the nature of the speech in question is not in the categories of speech covered by Art 14” because there is no “public interest in preserving a right to disseminate falsehoods”. Second, the issuance of a CD “does not inhibit free speech because it does not prevent the statement-maker from maintaining the original text of its published material… [and] the statement-maker’s only obligation in relation to a Part 3 CD issued under the POFMA is to insert a Correction Notice within its published material”.

In an earlier article, Marcus Teo dealt with the first reason and argued that the word “speech” in Article 14(1)(a) does not distinguish between true and false speech: “The freedom of speech thus includes the freedom to tell lies, provided they are not harmful to the extent that they may be restricted under Article 14(2)(a).” This piece is concerned with the second reason that the issuance of a CD does not constrain free speech because it does not restrict a person’s speech. In TOC, the court did not seem to have considered the applicability of the doctrine of compelled speech under Singapore constitutional law. Does the Article 14 right to free speech and expression include a right not to be compelled to speak or publish against one’s will? If the Singapore Constitution does recognise such a right, how and in what ways can this right be abrogated in a constitutional manner?

The doctrine of compelled speech

The US Supreme Court has long held that “the right to freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all”.[1] Known as the doctrine of compelled speech, this “correlative liberty of silence”[2] has also been recognised by the UK Supreme Court[3] and the Supreme Court of Canada.[4] The Singapore courts have not expressly considered whether the doctrine of compelled speech is recognised under the Singapore Constitution.

Most cases abroad have had to contend with this doctrine in relation to the right of Jehovah’s Witnesses. For instance, in Wooley v Maynard 430 US 705 (1977), the US Supreme Court applied the doctrine of compelled speech in finding that the state of New Hampshire could not constitutionally require citizens to display the state motto on their vehicle license plates. The Singapore courts faced a similar scenario in Nappalli Peter Williams v Institute of Technical Education [1999] 2 SLR(R) 529 but neither the High Court nor the Court of Appeal directly addressed whether or how the Article 14 rights were engaged.[5]

Another instance where the issue of compelled speech might arise is where a publisher is forced to publish a person’s reply. This was the case in Miami Herald Publishing Company v Tornillo 418 US 241 (1974), where the appellant newspaper had refused to print a politician’s reply in breach of the state of Florida’s “right of reply” statute. The US Supreme Court held that the Floridian statute was unconstitutional and violated the First Amendment’s guarantee of a free press. The Singapore courts dealt with a similar situation in Dow Jones Publishing Co (Asia) Inc v Attorney-General [1989] 1 SLR(R) 637.[6] However, because the appellant – being a foreign company –  was not a citizen of Singapore, it did not enjoy the constitutional right to free speech and expression under Article 14.

More recently, in Attorney-General v Ting Choon Meng and another appeal [2017] 1 SLR 373, an opportunity to address the issue of compelled speech arose but was not explicitly addressed by the Chief Justice Sundaresh Menon in his dissenting judgment. The issue was whether s 15 of the Protection from Harassment Act (Cap 256A) infringes on the right to free speech under Article 14 by requiring a person to publish a notification as ordered by the District Court alongside his false statement to bring attention to the falsehood and true facts (a “POHA Notification”).

The Chief Justice observed that “[t]o determine whether s 15, as interpreted above, impermissibly inhibits the right to free speech guaranteed by Art 14 of the Constitution, the nature of the inhibition contained in the provision must be analysed.” On the basis that “[a] speaker is free to speak, notwithstanding s 15, even if what he says is objectively false and even if a court of law has found it to be false”, His Honour held that s 15 “does not inhibit or prevent free speech at all or even materially limit it”. Instead, all s 15 does is “merely constrains the publication of speech that has been proven to be false without a POHA Notification that it has been so proven and/or without a direction to where the truth may be found”.

In TOC, the High Court referred to Menon CJ’s dissent and analogised the CD issued under POFMA to s 15 of POHA. Belinda Ang J went further and characterised the CD as a Minister’s response, citing the discussion in Professor Thio Li-Ann’s A Treatise on Singapore Constitutional Law on the “right of reply”. Notably, in Professor Thio’s treatise, it was noted that this right of reply is enshrined under Article 14 of the American Convention on Human Rights. Apart from concerns surrounding the propriety of such a comparison and whether an equivalent right of reply even exists under Singapore law, this argument rests on the assumption that Article 14 rights are violated only when a person is censored.

In response, one might refer to a recent commentary by Professor Eugene Volokh, which highlighted that the American doctrine of compelled speech prohibits not only pure speech compulsions as in the case of saluting the American flag or reciting the National Anthem but also speech compulsions that are tantamount to speech restrictions. This is because the compulsion for the publisher to include additional materials concomitantly restricts her from making precisely the communication she wishes to make.[7] As Justice Brennan observed in Riley v National Federation of Blind 487 US 781 (1988), “[M]andating speech that a speaker would not otherwise make necessarily alters the speech’s content”.

Given the complexities surrounding the doctrine of compelled speech, it is not clear whether Menon CJ or Belinda Ang J had considered whether the CD under POFMA or the POHA Notification under POHA constitute speech compulsions that amount to speech restrictions. It is therefore timely that the upcoming appeals offer the Court of Appeal the opportunity to clarify whether and how the doctrine of compelled speech applies in Singapore. Textually, there is an arguable case that the words “speech” and “expression” in Article 14(1) include also silence and omissions. Furthermore, from a philosophical perspective, as Isaiah Berlin puts it, freedom comprises both a positive and negative dimension. Just as the right to profess a religion includes also the right not to profess a religion, the freedom of speech would similarly also include the freedom not to speak.[8] After all, taken to the extreme, what freedom, of speech or at all, can there be in a society where citizens are not constitutionally protected from the state’s coercive powers to say or publish what the state wishes them to?

The constitutionality of Correction Directions, generally

Even if the Singapore courts do recognise that compelled speech can be unconstitutional, it does not ipso facto render a CD issued under POFMA unconstitutional. Just as a person’s right to speak may be inhibited only if such speech falls under one of the prohibited grounds under Article 14(2), a person’s right not to speak may similarly be curbed only if such silence or omission falls under one of those prohibited grounds too.

Accordingly, the touchstone in ascertaining whether a person’s Article 14 rights have been infringed by a CD issued under POFMA or POHA Notification therefore is not whether the state action constitutes censorship (as Menon CJ and Belinda Ang J seem to have done). Rather, the more appropriate questions to ask are:

1. Does the CD (or POHA Notification) amount to a pure speech compulsion or speech restriction?

2. Does the false statement fall under one of the grounds under Article 14(2)?

With regard to the first question, it is arguable that the CD and POHA Notification amount to speech restrictions that alter the contents of the allegedly false statement. As Menon CJ noted in Ting Choon Meng, the POHA Notification “constrains the publication of speech that has been proven to be false without a notification that it has been so proven and/or without a direction to where the truth may be found”. However, as Marcus Teo has argued, the falsity of the statement is beside the point; just because a statement is false does not mean that it is not protected under Article 14. Indeed, the phrasing of the CD is such that a person who had intended to tell a lie is now forced instead to speak the truth. For instance, in the TOC case, the CD reads: “This Facebook post contains false statements of fact made by Lawyers for Liberty. The Singapore Prison Service does not use any of the steps in the alleged procedure for judicial executions.

Insofar as falsehoods remain protected by Article 14 unless they fall under one of the exceptions under Article 14(2)(a), the court must therefore first ascertain whether the false statement falls under one of the grounds under Article 14(2)(a). If the statement does fall under one of the prohibited grounds, then the restriction of a person’s right not to speak may legally be derogated, much in the same way as her right to speak can be; it is irrelevant from a constitutional perspective whether the “speaker is free to speak… [and] continue[s] to publish that falsehood”. After all, it is not the freedom to speak that is at stake, it is the freedom not to.

The constitutionality of Correction Directions in SDP and TOC

Do the subject statements identified in both SDP and TOC fall under any of the Article 14(2)(a) prohibited grounds? This issue did not arise in the appeals because they were lodged under s 17(5) POFMA, which only empowers the High Court to set aside a CD on three grounds: (a) the person did not communicate in Singapore the subject statement; (b) the subject statement is not a statement of fact, or is a true statement of fact; or (c) it is not technically possible to comply with the CD.

Notwithstanding, it is questionable whether the subject statements in the two cases fell afoul of Article 14(2)(a). Under s 10 of POFMA, a CD may be issued only if the following conditions are satisfied:

(a) a false statement of fact (called in this Part the subject statement) has been or is being communicated in Singapore;

(b) the Minister is of the opinion that it is in the public interest to issue the Direction.

In SDP, the subject statement was “Local PMET retrenchment has been increasing”. Even if the two s 10 conditions are satisfied and the CD was legally issued, it is difficult to see how it might fall under one of the prohibited grounds under Article 14(2)(a). As the Minister is not required to and did not disclose the public interest she had in mind in deciding to issue the CD, it appears that the most possible public interest is that under s 4(f) of POFMA, to “prevent a diminution of public confidence in the performance… of the Government”.

In TOC, the subject statement was significantly longer and more damning as it described the “brutal procedure” prison officers were allegedly instructed to carry out “whenever the rope breaks during a hanging, which happens from time to time”. As with SDP, it appears that the most possible public interest that the Minister had sought to safeguard is under s 4(f) of POFMA, to “prevent a diminution of public confidence in the performance… of the Government”. Relatedly, it may be worthwhile in the interest of public confidence in the Government for Ministers issuing a CD to explain to the public how and in what way the subject statements might injure the public interest.

While there is no equivalent ground under Article 14(2)(a) that permits the restriction of free speech, the most relevant ground appears to be be public order. As Menon CJ held in Ting Choon Meng, “[in] the modern context in which digital speech is exercised… falsehoods can be rapidly disseminated in an unregulated Internet sphere and could conceivably threaten public order” (emphasis added).

With respect, it may be an over-generalisation to say that any and every falsehood could indeed conceivably threaten public order. Even if that is so, it is also questionable whether the standard for abrogating a person’s Article 14 rights is merely conceivability. After all, what is conceivable may not always be reasonable or even minimally rational; for instance according to chaos theory, it is conceivable for the flap of a butterfly’s wings to set off a tornado two weeks later, but it would be thoroughly excessive if a government decides to destroy all butterfly populations to protect its people from the risk of tornado.

For instance, in SDP, while it is undoubtedly conceivable that a false statement about unemployment trends in Singapore might potentially inspire some disgruntled Singaporeans to organise a rally at Hong Lim Park, it may be somewhat far-fetched to think that this could result in “disorder involving breaches of local significance”.[9] Ultimately, given the court’s duty to give individuals the “full measure” of their constitutional rights and avoid the “austerity of tabulated legalism”,[10] it may not be remiss to expect the court to apply a standard higher than mere conceivability – be it rationality, reasonableness or even proportionality – in determining whether a person may be compelled to correct her falsehood via a CD issued under POFMA or a POHA Notification.[11]

Conclusion

The doctrine of compelled speech flows from the premise that the freedom of speech and expression comprises both the positive right to speak and a negative right not to be compelled to say what one does not wish. Insofar as Article 14 of the Singapore Constitution recognises this negative right, a CD issued under POFMA may not be constitutional contrary to recent judicial discussion. As a form of compelled speech, a CD is tantamount to a speech restriction by altering the contents of a person’s speech or publication. Instead, the correct analysis for determining the constitutionality of a CD is for the court to consider whether that false statement of fact falls under one of the prohibited grounds under Article 14(2)(a) such that her freedom not to speak may be constitutionally abridged.


[1] Wooley v Maynard 430 US 705 (1977), 714.

[2] Wallace v. Ga., C. & N. Ry. Co., 22 S.E. 519, 519-80 (Ga. 1894) at 519.

[3] “Nobody should be forced to have or express a political opinion in which he does not believe.” Lee v Ashers Baking Company Ltd & Ors [2018] UKSC 49, citing RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38.

[4] “There is no denying that freedom of expression necessarily entails the right to say nothing or the right not to say certain things.  Silence is in itself a form of expression which in some circumstances can express something more clearly than words could do.” Slaight Communications Inc v Davidson [1989] 1 SCR 1038.

[5] In that case, a Jehovah’s Witness had sued his employer for unfair dismissal after he refused to participate in the recital of the National Pledge and singing of the National Anthem. Though he had argued that his right to free speech was violated, this argument was rejected by the High Court on the basis that he had contracted out of his constitutional rights by voluntarily entering into the employment contract. On appeal, the Article 14 argument was not raised as the case proceeded only on the basis of Articles 15 and 16 which relate to the right to freedom of religion.

[6] In this case, the Asian Wall Street Journal was declared a foreign newspaper engaging in the domestic politics of Singapore under s 24 of the Newspaper and Printing Presses Act (“NPPA”) after it refused to publish a letter from the Monetary Authority of Singapore clarifying certain issues in some articles that it had published.

[7] Eugene Volokh, “The Law of Compelled Speech” (2018) Texas Law Review 97(2) 355.

[8] Isaiah Berlin, “Two Concepts of Liberty: An Inaugural Lecture Delivered Before the University of Oxford on 31 October 1958” (Clarendon Press, 1958).

[9] Mahendra P Singh, V N Shukla’s Constitution of India (Eastern Book Company, 9th Ed, 1996) cited in Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR(R) 582.

[10] Ong Ah Chuan and another v Public Prosecutor [1979-1980] SLR(R) 710

[11] This may offer the court an opportunity to reconsider the applicability of the doctrine of proportionality, which has been left as an open question by the Court of Appeal in Chan Hiang Leng Colin v Minister for Information and the Arts [1996] 1 SLR(R) 294.See Chan Sek Keong, “Judicial Review – From Angst to Empathy: A Lecture to Singapore Management University Second Year Law Students” (2010) 22 SAcLJ 469.

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