JAMAICA’S constitutional law disagrees with the old adage “sticks and stones may break my bones, but words can never hurt me”. Our constitution recognises the right to freedom of expression as one of the sacrosanct liberties to be enjoyed by all in a well-ordered and functional democracy. However, it also recognises that there are some forms of speech so potentially injurious that they warrant restrictions on the speaker, the time, place, medium and/or audience of the speech. These restrictions are valid, only if they are deemed to be “demonstrably justifiable in a free and democratic society”.

On October 11, 2022, the Broadcasting Commission issued a directive to its licensees prohibiting “transmission, through radio, television, or cable services, any audio, video, live song, or speech which promotes and/or glorifies scamming, illegal use or abuse of drugs, illegal or harmful use of guns and other offensive weapons, jungle justice, or any other form of illegal or criminal activity.” Much public debate has ensued from the announcement of what has come to be known, and mis-labelled, as the “choppa songs ban”.

The first step in this assessment is to recognise that the directive limits and/or restricts the right to freedom of expression by virtue of the fact that it is a rule, issued by a State entity, that prevents the communication of a particular type of speech across particular types of media. This fact alone, however, does not make the directive unconstitutional.

The court would then have to consider whether that limitation is demonstrably justifiable. A court would answer this question by considering: 1) whether there is some important government objective to be achieved by the directive to justify interference with a fundamental right; 2) whether the directive designed to accomplish that objective is arbitrary, unfair, or irrational; 3) whether the directive does no more than necessary to achieve that objective, thereby resulting in the least possible infringement of the right; and 4) whether the severity of the measures adopted is proportionate to the objective.

In assessing the first and second criteria, a court will consider evidence tending to prove that Jamaica is a high-crime society and, particularly, that there is a proliferation of the types of criminal activity promoted by “choppa songs”. The court may consider the harmful effects of this scamming on the economic and social fabric of the country. These observations may entail a finding that there is an important interest to be met by the State in restricting publicly broadcasted content which promotes criminal activity. However, that proposition begs the question of whether there is sufficient evidence to support a conclusion that artistic expression containing violent and/or criminal conduct causes the proliferation of that type of conduct in real life. There are differing views on both sides of this debate.

Once it is satisfied that there is an important objective to be met by the directive, the court will scrutinise the measure to ensure that it does no more than necessary to accomplish the stated objective. The more narrowly the restrictions are framed, the more likely it is that a court will find them acceptable. The directive is arguably narrow in its construction: the restriction applies only to broadcasters and not artists or the public; the restriction applies to broadcasts over public airways and not, for example, music played at privately held events; the type of content prohibited relates to conduct that is already recognised to be illegal.

On the other hand, one may take issue with the broad language “promote and/or glorifies” and dispute whether it is too open to subjective interpretation unlike, for example, words “incite” or “induce” which are already subject to established legal definitions. It may be argued that a word like “promote” may make it difficult to distinguish between content which makes artistic references to activities such as scamming as an expression of a facet of the artists lived experiences as opposed to an endorsement of the criminal act.

Additionally, though the ban applies directly to broadcasters, artists and promoters of “choppa songs” may argue that they are directly affected by the ban which limits media available to them for broadcast of their artistic expression to the public.

The court will, finally, consider the issue of proportionality. In essence, the more severe the measures adopted are, the greater the need to show that the objectives are sufficiently important to support those measures. The commission may argue that the measures are not of too great a severity because they apply only to the corporate entities which hold broadcasting licences and not individuals. However, regulations pursuant to which the directive is made, makes any contravention of its provisions punishable by a maximum fine of 10,000.00 JMD or a term of imprisonment. Arguable, the alternative of a relatively small money payment aids in the conclusion that the sanctions are not too severe when the objective is considered.

The public discourse is ripe with discussions concerning several alleged breaches of constitutional rights. It is critical that we equip ourselves to carefully examine these issues and be aware of our rights while this civic debate continues.

Matthew Royal is an Associate in Myers, Fletcher & Gordon’s Litigation Department. He may be contacted via matthew.royal@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.