Debate: Freedom of Speech and Expression

Freedom of speech is the liberty to speak and write without

fear of government restraint. It is closely linked to free-Elam of
the press. In the United States both freedoms-C?ommonly
called _fre'edom of expression-are protected by the 1st
Amendment to the Constitution. The amendment provides that
"Congress shall make no law abridging the freedom of speech,
or of the press."
Most other Western countries guarantee freedom i,f speech,
· either in their constitutions or by legislative enactrn1::nL All
countries, however, limit manifestations of free speech that
are regarded as threatening the civil order or as obscene cir
slanderous. The extent to which speech is regarded as
threatening or slanderous .and the way in which limits are
imposed are critical factors in determining the degree of free
speech in a society.

History of Freedom of Speech

The quest for free speech has a long, turbulent history. It has
been one fundamental aspect of the individual's developing
relationship both to the state and to society. Untit the 17th
century various forms of censorship of free speech were
common; they were contested principally within the
framework of larger issues of political and religious conflict. In
England in the 17th century, however, freedom of speech .
began to assume its own importance. John Milton wrote in his
Areopagitica (1644): "Give me the liberty to know, to utter,
and to argue freely according to conscience, above all
liberties." Philosophers such as John Locke, Voltaire, and,
later, John Stuart Mill took up the cry. The right .to freedom of
speech was recognized in the English Bill of Rights (1689}, th-e
French Declaration of the RightsoLMan (1789}, and the U.S.
Bill of Rights (1791}·. It was to become an integral part of
constitutional law even in countries that do not in reality
 I

permit free speech. And it gain-ed internationa1 reco~nition

with the Unit"ed Nations' proclamation of the Universal
Declaration of Human Rights (1948).

Free Speech in the United States

In the Unifed States freedom of speech and the constitutional
limits to it have been defined, in practice, ·by rulings of th e
Supreme Court. Originally the free-speech guarantee of the 1st
- Amendment appUed -0nly - to----a cts of - Congress. In the 20th
century, however, the Su.preme Court began to interpret the
due process clause of the 14th Amendment to mean that t he
· states are also bound by the p r ovisions of the 1st Amendme nt.
This was one of the major new doctrines of Gitlow v. New vo-rk
(1925).

Restrictions on freedom of speech have occurred most often in

time of war or national emergency. The Alien and Sedition Acts
of 1798 were the- first incursions by Congress on this freedom.
These laws were never tested in the courts and were allowed
to expire after several years.

Clear a nd Present Danger

The first clear-cut test came over the Espionage Act (1917)
passed by Congress during World War I; this act made it illegal
to intedere with the recruitment or drafting of soldiers or to
do any!hing adversely affecting military morale. In Schenck v .
United States (1919) the Court upheld the conviction of a
socialist indicted under the act on the ground that freedom of
speech is not absolute. Justice Oliver Wendell Holmes, Jr.,
delivered the Court's unanimous opinion; he argued: "The
most stringent protection of free speech would not protect a
man in falsely shouting fire in a theatre and causing a panic ...
. The question in every case is whether the words used are
used in such circumstances arid are of such a nature as to
create a clear and present danger that they will bring a~out
the substantive evils that Congress has a right to prevent ."
Bad Tendency
The "clear and present danger" doctrine became one of the
tests the Court applied to subsequent cases involving freedom
of speech. Another test, which placed· more restrictions on
individual · expression, was whether an expression had a
tendency to lead to results that were bad for the public. In
Gitlow v. New York the Court held: "a State in the exercise of
its police-p..ower-ma-¥----PUn ish those who abuse th is freedom by
utterances inimical to the public welfare, tending to corrupt
public morals, incite to crime, or disturb t'he public peace .... "
Gitlow had · been indicted under a New York State J c1w
prohibiting the advocacy of the overthrow of the government
by force or violence .

So ci ety's Interests
In 1940, Congress enacted the Smith Act. It declared unlawful
the advocacy of overthrowing the government by force or
violence. Eleven leaders of the Communist party were
convicte_d under the Smith Act and appealed on t he ground
that i.t was unconstitutional. The Court upheld the
constitutionality of the act in Dennis v. United States (1951).
The ground was not, however, "clear and present danger."
Instead, the majority adopted a standard put forward by
Justice Learned Hand; "in each case," he said , courts "must ask
whether the gravity of the 'evil,' discounted by its
improbability, justifies such invasion of free speech as is
necessary to avoid the danger." This standard has been called
the "clear and probable danger" test. The approach, modified
by other cases, has been termed the "balancing" test. When
applying the qalancing approach, the Supreme Court strives to
strike a balance between the value of liberty of expression and
the demands- of order in a free society. Many critics of the
balancing approach have contended that a balance is rarely
struck; in mos.i cases in which it is involved, they say, society

j
prevails. over the individual. The USA Patriot Act, passed in the
' .
wake of the Septemher 11, 2001, ter-rorist attacks, pr?voke ~ a
renewal of this argument. Some of its provisions, includ ing
authorization . of the Federal Bureau of lnv-esti-g.ation to se ek
the library records of--individuals, were seen by many as a clear
violation of free,.speech rights.

Preferred Freedoms and the Absolute Approach

The preferred-freedoms approach has been important in
constH1,1.t-i-0nal law since Wor~d W-a.r-- 11. -The position was
originally set forth by Justice Har.Ian F. Stone. This approach
stresses -that the civil liberties have a preferred positi on
among other constitutional values since they are requisite t o a
democracy. Under this concept the burden lies largely with the
government to prove that when a particular freedom is
exercised, a clear and present danger exists.
Some justices have tended to see freedom of speech· as nearly
an absolute right; notabl-e among them a re Hugo Black and
William Douglas. The difficulty of the absolute approach to
free-speech issues was shown (1977-78) when a group of
American Nazis sought to hold a ra·lly in Skokie, Ill. They were
denied a permit by the municipality on the ground that a Na·zi
rally would incite hostility in the largely Jewish population,
which included ~any survivors of Nazi concentration camps.
Law.yers for the American Civil Liberties Union (ACLU)
represented thg Nazis; they argued that the Skokie laws
limiting public demonstrations were unconstitutional. A U.S.
court of appeals agreed with the ACLU. Many Americans,
however, were outraged at the defence of those they
considered the en€mies of free speech.

The judicial interpretation of the right of free speech has yet

to produce a clear definition of what is permissible. Insofar as
seditious speech is concerned, .the courts have held trnguage
permissible so long as it does not tend to incite the viole nt
overthrow 9f the government. In other f.r.ee-speech areas, the
courts have a~s,o had to consider the various interests of
1'

soci~ty and the requirements of the Constitution; such areas

include obscenity and pornography, "fighting words," picketing
or demonstrating, symbolic speech, and loyalty oaths. Flag-
bu-rning, which ·is a form of symbolic speech·, has proved a
particular~.Y contentious issue. The Supreme Court has
overturned state and federal laws prohibiting desecration of
the flag, arguing that such action is protected under the 1st
· Amendment.

Global Status of Freedom of Speech

In several treaties and cqnventions, European, Latin Amerj~an,
and international organizations have pledged_ respect for
fundamental freedoms and human rights. The practice of free
speech, however, is consistent only in the democracies of
Western Europe, English-speaking . countries, and Japan.
Authoritarian, theocratic, totalitarian, and dictatorial
governments such as those in Communist countries, most of
the Arab world, much of Africa and Asia, and, until recently,
most of Latin America and Eastern Europe commonly suppress
freedom of speech. Many developing countries cite the task of ·
economic progress as reason for denying ·th is liberty.
The 1980s and early 1990s were marked by a strong trend
toward greater free speech in the world. Mikhail Gorbachev's
introduction of glasnost ("openness") in the · USSR set in
motion the changes that brought the collapse of the Soviet
system in 1991. Most of Latin America's military regimes and
the Communist governments of Eastern Europe have been
replaced by fledgling democracies. This trend, however, has
frequently resulted in political instability and renewed
repression. China's prodemocracy movement, for example,
was militarily crushed in 1989, marking the return of full
dictatorial rule. (See· Tia nan men Square Massacre.) Almost two
decades later, China's human rights policies, including its
suppression of free .s.peech, were again under a·n international
spotlight when _the 2008 Olympic Games were held in Beijing.
 t •

Free Speech and the Internet

The ,growth of th·e Internet .at the turn· of the 21st century
created a remarkab~e for.um for participatory mass speech. It
has given ind~vidua~s the ability to exchange ideas and express
themselves with a fre,edom n-ever before enjoyed. In Reno v.
American Civil Liberties Union (1997), the U.S. Supreme Court
gave its first ruling on efforts to regulate that freedom. It
struck down the 1996 Communications Decency Act, a federal
law that ouflawed "indecent" co.mmunications on-iine. -n,-e
Court declared that the ln_ternet deserved at least as much 1st
Amendment protection as that afforded to books, n-ewspapers,
. ~nd rnagazines: Nevertheiess, governments and other powerful
institutions have sought ways to censor information on the
Internet. Some governments use filtering software to block
access to certain Web sites; the Chinese government has been
very effective at this. In 2007, during .an upsurge of unrest in
Myanmar, the government of that country cut off all Internet
access.

Additional Reading:

Hate speech versus freedom of speech

In the debate surrounding hate sp~ech, the necessity to preserve

freedom of expression .from States or private corporations' censorship
is often opposed to attempts to .regulate hateful expressions, in
particular online.

Freedom of opinion and expression is, indeed, a cornerstone of human

rights ~rnd a pillar of free and democratic soc1eties, as it supports other
fundamental rights, such as the right to freedom of religion, to peaceful
assembly and to participate in public affairs. It is undeniable that digitai
media incl.uding social media have contributed to sustaining the right to
seek, receite and impart information and ideas. Therefore, legislative
efforts to regulate free expression are, . · unsurprisingly,
,r

raising concerns _that attempts to curb hate speech could also

contribute to silencing dissent and opposition .

As the key means to counter hate speech, the United Nations

supports more speech - not less - and holds the full respect of freedom
of expression as the norm. Therefore, restrictions to expression must
remain an exception, as defined in accordance with International
Human Rights Law, in order to prevent harm and ensure equality, and
public participation of all.. In addition to the relevant International
_Human Rights Law provisions, the United Nations Rabat Plan of Action
provides key guidance to States on the distinction between freedom of
expression and · incitement to discrimination, hostility and violgnce ·
which is prohibited under criminal I.aw. While determining when the
potential of harm is high enough to justify the prohibition of speech is
still subject to much debate, States are also invited to implement
alternative tools such as education and the promotion of counter-
messages in order-to address the whole spectrum of hate expressions,
on and offline.

.
"Addressing hate speech . does not mean limiting O[ prohibiting
freedom of speech . It means keeping hate speech from escalating
into something more dangerous, particularly incitement to
discrimination, hostility and violence, which is prohibited under
international law."
- United Nations Secretary-General Antonio Guterres, May 2019
Hate speech is recognised (and outlawed) in English law, but the
concept is also commonly used in a non-legal context to designate
any speech that is degrading, insulting, defamatory, negatively
stereotyping or liable to incite hatred or violence against any group
of people by virtue of their race, religion, nationality, sexual
orientation or disability, for example. Both Miller and Stock engaged
in such speech, their opponents allege.
rhe expression "hate speech'; was coined by a group of US -legal
scholars in the 1980s. They noted ffiat different legal systems tackled
harmful racial discrimination variously . When Mari Matsuda used the

... ..
t 1989 her
· r1
• central
• purpose was. to h1ghl1g
. . ht how theh US legal·th
erm 1 , . .d. gt emw 1
tem failed victims of harmful racist speech by provi tn ·t .
sys
inadequate means · of seeking redress, civil or criminal. SheI Cl ea
I gal
Ve ra! legal cases and examples- not - associate
· · d w1·th actua· e
se . . . I s
proceeding? and not easily actionable under the existing aw ·

The concept of hate speech has been taken up by a range of peopl~

on the Left to condemn people they believe are misogynistic, ra ci s
or xenophobic and who, therefore, violite ideals of respect and
tolerance. But it is also used by evangelicals to critique libE!rals who
they regard as attacking their conservative beliefs.
CalebYoung

I suggest that 'hate speech' is too broad a designation to be usefully

analysed as a single category, since it indudes many different kind s
of speech acts, each of which involves very different kinds of free
speech interests, and may cause very different kinds of harm. I
therefore propose to disaggregate hate speech into various
categories whic_h are analysed in turn. I distinguish four main
categories of hate speech, namely:
(1) targeted vilification

(2) diffuse vilification

(3) organised political advocacy -for exclusionary and/or

eliminationist policies

-
(4) other assertions of fact or value which constitute an adverse
judgment on an identifiable racial or religious group .

. Regulat ing legal "hate speech" could also be regarded as damaging

to democracy, especially if even universities shy away from such
debate. According to free speech advocates, students ought to be
encouraged instead to debate opinions with which they disagree.

Are there limit~ to the right to free speech in the United States? If so,
where do we draw those lines?
 ..
"The U.S. Supreme Court has recpgnized very few exception s to the
"First Amendment," says Robert Richards, founding director of
the Pennsylvania Center for the First Amendment at Penn
State, which was established in 1992 to promote awareness and
understancring of the principles of .free expression to the schol~rly
community, the media and the general public.

"The categories of speech that fall outside of its protection are

obscenity, child -pornography, defamation, incitement to violence
and true threats of violence," he explains. "Even in those categories,
there are · tests that have to be met in order for the speech to be
illegal. Beyond that, we are free to speak."

banning books, movies, songs,paintings

major cases

Salman Rusdie book

MF Hussain

Charlie Habdo

Arti cle 19(1i( 0l. of the Indian Constitution guarantees to all citizens,
the right to freedom of speech and expression. The cl.( J 1 1, to the
Constitution also provides to its citizens, the liberty of thought
and expression. However, this right is not an absolute one and
19 (2) lists down the.restrictions that can be imposeEk,n the exercise
of this right.
 ·
The freedom of speech .
and expression has b een gr anted universal
acknowledgment and has been un d erstoo d t o be of fundamental .
. " • . _ ,
importance for democratic systems. ~'(_!_Le__ 1
o
1_::_0 f the Universal
Declaration of Humar:i 'Rights (UDHR) also says that everyone has th e
. ·ses-I"d€S, t2':_:I •K__l'· . .v . of
right to freedom of opinion and expression.
the International Covenant on Civil and , Political Rights ~rants
· the right to freedom of speech and :expression.
everyone · I n d1a has
.
also ratified these international declarations and hence holds high
regard for this essential fre·edom -of its citizens.

This article will discuss the importance and need of the •freedom of
speech and expression in a democracy and look at some of its facets.
To look at the scope of this right, the various laws that restrict it will
also be studied to protect the State's security

Seditfon vs. right to free speech and expression

.~ erti or: 124A. of the Indian Penal Code penalizes anyone who by
words, either spoken or written or by visible representation -or by
otherwise attempts to ·. bring disaffection, hatred, or contempt
against the goyernment established by law. The colonial-era law of
sedition has been widely criticized for serving as a restriction on free
speech and expression. Even though the explanations to· the section
make it clear that only attempts to excite hatred, contempt, or
disaffection lead to sedition and lawful criticism with a view of ··
obtaining change does not amount to sedition, the law has been
widely abused. For an a<::t to amount to sedition, there must be an
intention to cause public disorder or disturbance and hinder public
peace. The Supreme Court in the -case of l<'edom ath Singh v. -\ tate ..!.'l
0.U-1.w put a limit on the scope of Section 124A, whereby only the
individuals using fr-e.e speech and expression to incite violence and
disrupt the law can be penalized. In the case of Shreyo Sing ha! -~"-
~in_1_o_u o[/_t_Jgia, the court emphasized that there has to be a degree-of
proximity between the wo.rds spoken or expressed and the public
disorder that takes place. However, in reality, there has been a
continued trend where charges of sedition have been pressed
 • •

against individuals for criticizing the government. Due to this abuse

of the law, demands have been made to abolish the Section to
protect the sanctity of free speech and expression.

Recently in_ a petition against the sedition case filed against the
Senior journalist, Vinod Dua, /. inod Dua
--- - -- v. Ur:1on
----- r)f ___
--- - -·- __"./ the -
1nni0
Supreme Court upheld his journalistic freedom and said that every
journalist is entitled to protection and the sedition law has to be
applied as provided in the Kedarnath judgment. A BJP leader in
Himachal Pradesh had filed an FIR against Vinod Dua for criticising
the Prime Minister _and the - Union _government on _his Youtube
channel. The court quashed the FIR.

Hate speech and the freedom of speech and expression

Hate speech poses a challenge to the right to freedom of speech and·

expression. In contemporary times, it is. often used as a tool to gain
popularity. It manifests itself into a form that creates divisions in
society by attempting to belittle specific groups of people based on
their religion, culture, ethnicity, race, gender, sexual orientation,
disability, language, occupation, ideology, appearance, etc. It runs
contrary to the objective of the fundamental right to free speech and
expression that is to liberate people from all strata of society. Hate
speech often re!ies on and perpetuates stereotypes. Hate speech has
been seen to be used e_ost-elections to cause anti-minority
incitement and is often related to the politics of violence and hatred.

The Constitution of India by law seeks to prevent the delivery of hate

speech under the garb of free speech and expression. It prohibits
-expressions that can be insulting to others. According to Ar t icle 51.A.
(bl of the Indian Constitution, citizens must develop scientific
temper, humanism, and the spirit of inquiry and reform. Various
crirrfinal laws in India also penalize hate speech , In the case of Qr Do,
'qJ/J Oes hmukh v. Ka m al Ki.c;)~Q.'' , :;_:;~! 1':i: ·,,·1_, ,<:_d ef t : JJ., the appellant

;o-ught votes by using a poster that said: "teach a lesson to Muslims" .

The Supreme C~urt held that the poster cannot be justified as it

. .. _:.
 . d create disharm ony
threatens to arouse communal feelings_ an d ent against the
between the communities . It was offensive an w
secular structure of the country.

Facets of f~€e speech

Freedom of press

The freedom of speech and expression as under Article 19 also

includes the freedom of the press. During the . · ~'-Ll._u ent Asse mti· ·1
C-c:)Ji ·" , Damodar S. Seth argued that freedom of the press sh oul d
b; exp~citly included in the Article due to t~e present agewhere th e
press holds immense va lue. However, it was decided that a separate
provision for the same is not required.

Right to Silence

The citizens' right to stay silent has also been considered a part of
the right to freedom of speech and expression. In the case of Bi'.:1::
L~r1 p· "r.t · _
c_' th2 Sta te of !(;-_~~• _, the court upheld th e
petitioner's right to stay silent durillg the national anthem.

Right to report and broadcast

Under the freedom of speech and expression, citizens possess t he

right to circulate and publish content. lt also includes the right t o
broadcast information. They also have the right to repo rt
proceedings of a court of law, this also ensures transparency.

The right to be informed

A citizen's right to know, receive, and impart information as a part of

their right to information has also be.en recogniz,ed as a .part of the
freedom of speech and expression. -In th~ judgment of the VrJiQn .Yt

L
I
I'

t •

__ -1_ , ·,u~ '.(1tiou__ Oi _!_I n oc· -·,. (_ h'tlc ,,, u -, ,. the court held that
., • ' ,
the voters' have the right to know about candidates .

Limits to freedom of speech and expression

The right to freedom of speech and expression is not absolute and

has been reasonably restricted by the Constitution of India under
Article 19(2). The grounds for imposing these restrictions are:

Sovereignty and Integrity of India

lndii gained its sovereignty after 200 years of colonial rule and
established itself as an independent state wholly responsible for its
internal affairs. Hence, citizens have been restricted to make
statements that can harm this hard-earned sovereignty and hurt the
integrity of the nation. This ground was added in 1963 through
the Cc. ·, ~- !__;,~_: Sixteent h Am en dm ent ) A;_; to iA1pose restrictions
on i.ndividuals or groups that were instigating secessionist
movements in the country.

Security of the State

The government has the right to deny the freedom of speech and
expression to protect the ~ecurity of the State. However, the threats
against security must be an aggravated_ threat to public order, such
as rebellion, insurrection, waging war against the State, etc.

To maintain friendly relations with foreign states

In a globalized world with unequal power relations, maintaining

positive relations with neighbouring countries and other countries is
significant. Hence, if a person's freedom of speech and expression
threatens to I hinder these relations or harms the country's
international relations, it can be restricted. This is essential to cu rb
malicious actions by _some to jeopardize the reputation of t~
country.
 Decency and Morality
1
. One's speech and expression must be decent and moral. It should
not go agair:1st the morals of contemporary society. Restrictions on
freedom qf · speech and expression imposed in the interest of
decency and morality can be found in Section 29 2 to s(_', 1•e>r 214 of
the Indian Penal Code, they {ieal with content that is d;e~ed t;-be
obscene. However, it must be noted that standards of decency and
morality evolve and change along with society and are not static.
The Hicklin t est_which originated in England is one of the tests to
. determine the decency or morality of a publication by checking its
effect on the most vulnerable members Of society.

Contempt of Court

The judiciary holds great value in a democracy"and hence to maintain

its stature and 13reserve public trust in the institution, free speech
and expression can be curbed. This is important to ensure that the
courts are not vandalized or jeopardized. Contempt of Court is
punishable under ,'.\: .1.f,L Yl'1 and Article 2 lS of the Constitution by
the Supreme Court and High Courts respectively.

Defamation

Defamation is a criminal offence under :Section 499 of IPC. The right

to freedom of speech and expression is not an u~timate license to
defame another person and hinder their reputation. Hence, the right
to free speech and expression does not provide anyone with the
immunity to tarnish another person's r-eputation in society: If
defamation is committed in the form of spoken words, it is called
slander, if the same is <:ommitted in a permanent form, written or
printed, it is called libel,

In the case of Su !Jt-mn o ·>- · , :) • • !I L _\;._ Union of !ndig_; the vali?ity of

Section 499 and Se rt1r: · L,t' '-of tre were chaHenged. Whil-e upholding
the validity of these provisions, the court stated that to protect the