Origin of freedom of speech and expression: The idea of freedom of speech had originated a long

time ago. It was first introduced by the Greeks. They used the term “Parrhesia” which means free
speech or to speak frankly. This term first appeared in the fifth-century B.C. Countries such as
England and France have taken a lot of time to adopt this freedom as a right. The English Bill of
Rights, 1689 adopted freedom of speech as a constitutional right and it is still in effect. Similarly, at
the time of the French revolution in 1789, the French had adopted the Declaration of the Rights of
Man and of Citizens. The UN General Assembly adopted the Universal Declaration of Human Rights
on 10 December 1948 under Article 19 which recognized the freedom of speech and expression as
one of the human rights.

Freedom of Speech and Expression in USA

Introduction: America is leader country as far as protection of freedom of speech and expression is
concerned. It provides very wide interpretation of freedom of speech to its citizen. Freedom of speech,
of the press, of association, of assembly and petition -- this set of guarantees, protected by the First
Amendment, comprises what we refer to as freedom of expression. However, initially there was no
provision for protecting freedom of speech in American Constitution, but very soon realizing the
importance of freedom of speech it amended its constitution and pave way for protection of speech
and expression. The first amendment of the American constitution specially provides that -

“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”.

The above Amendment to the American Constitution is the part of the United States Bill of Rights. As
per the Bill of Rights United States Congress has been prohibited from making laws, infringe the
freedom of speech, infringe the freedom of the press, limit the right to peaceably assemble, etc. The
sum total of the components of the law of the First Amendment provides a great deal of protection to
freedom of speech .Although, as per the provision, the First Amendment only explicitly applies to the
Congress, the Supreme Court of America has interpreted it as applying to the executive and judicial
branches. The Supreme Court has interpreted the First Amendment's guarantee of freedom of speech
very expansively, and the constitutional protection afforded to freedom of speech is perhaps the
strongest protection afforded to any individual right under the Constitution. We see then that in the
United States freedom of speech receives a very high degree of constitutional protection. It is not
untrue to say that the constitutional protection afforded to freedom of speech is perhaps the strongest
protection afforded to any individual right under the American Constitution, and the value of freedom
of speech generally prevails over other democratic values such as equality, human dignity, and
privacy. American judiciary, too, has played very important role in broadening the scope of freedom
of speech.

Schenck v. United States was the one of the first important case where Supreme Court was first
requested to strike down a law violating the Free Speech Clause. It was a case related to Sedition Act
of 1918 which criminalized "disloyal," "scurrilous" or "abusive" language against the government.
Supreme court held in this case “ the question in every case is whether the words used are used in
such circumstances and are of such a nature as to create a clear and present danger that they will bring
about the substantive evils that Congress has a right to prevent." Thus in this case court evolved a new
doctrine of “clear and present danger”.

The "clear and present danger" test of Schenck case was extended in Debs v. United States again by
Justice Oliver Wendell Holmes. The case involved a speech made by Eugene V. Debs, a political
activist. Debs had not spoken any words that posed a "clear and present danger" to the conscription
system, but a speech in which he denounced militarism was nonetheless found to be sufficient
grounds for his conviction. Justice Holmes suggested that the speech had a "natural tendency" to
occlude the draft. The test of clear and present danger was further upheld by the court in Dennis v.
United States. It was observed by the court that “clear and present danger" test did not require the
government to "wait until the putsch is about to be executed, the plans have been laid and the signal is
awaited", thereby broadly defining the words "clear and present danger." Thus, the Supreme Court
effectively shaped the First Amendment in such a manner as to permit a multitude of restrictions on
speech. Example such restriction is providing authority to state to punish words that "by their very
nature, involve danger to the public peace and to the security of the state ." Moreover, Lawmakers
were given the freedom to decide which speech would constitute a danger.

Press and freedom of speech: With regard to press freedom, America has again adopted very liberal
attitude towards it. Freedom of press is the heart of social and political intercourse. It is the primary
duty of the courts to uphold the freedom of press and invalidate all laws or administrative actions,
which interfere with it contrary to the constitutional mandate. It has provided broad freedom to press
(every sort of publication which affords a vehicle of information and opinion ) to provide information
to public. However, Freedom of the press, like freedom of speech, is subject to restrictions on bases
such as defamation law. American judiciary has approved content-based regulation. Content-based
regulation of television and radio has been sustained by the Supreme Court in various cases. For
example In Miami Herald Publishing Co. v. Tornillo the Court unanimously struck down a state law
requiring newspapers criticizing political candidates to publish their responses. The state claimed that
the law had been passed to ensure press responsibility. Finding that only freedom, and not press
responsibility, is mandated by the First Amendment, the Supreme Court ruled that the government
may not force newspapers to publish that which they do not desire to publish.

Obscenity: Since the freedom of speech is mainly governed by the first amendment of the
constitution and first amendment did not talk about obscenity and freedom of speech, The Supreme
Court has usually refused to give obscenity any protection. The governments, both federal and state,
have been permitted to make suitable legislation. However the court from time to time developed
various tests to examine obscenity. In Roth v. United States, Court applied a new test for obscenity,
which was "whether to the average person, applying contemporary community standards, the
dominant theme of the material, taken as a whole, appeals to the prurient interest." this is known as
Ruth test of obscenity.

The Roth test was further expanded when the Court decided Miller v. California case. It is commonly
known as Miller test. Under the Miller test, a work is obscene if it would be found appealing to the
prurient interest by an average person applying contemporary community standards depicts sexual
conduct in a patently offensive way and has no serious literary, artistic, political or scientific value. It
thus includes the expression of one’s ideas through any communicable medium or visible
representation, such as gesture, signs and the like .It very important to note that under Miller test, the
“community" standards are followed, which might be different from the national standard. Thus,
material may be deemed obscene in one locality but not in another. National standards, however, are
applied whether the material is of value.

Defamation and freedom of speech: American law also recognizes the liability for defamatory
speech or publication i.e. slander and libel. The nature of American defamation law was vitally
changed by the Supreme Court in 1964, in deciding New York Times Co. v. Sullivan, The New York
Times had published an advertisement indicating that officials in Montgomery, Alabama had acted
violently in suppressing the protests of African-Americans during the Civil rights movement. The
Montgomery Police Commissioner, L. B. Sullivan, sued the Times for libel on the grounds that the
advertisement damaged his reputation. The Sullivan case provides the principal doctrinal justification
for the development, although the results had long since been fully applied by the Court. In Sullivan,
Justice Brennan discerned in the controversies over the Sedition Act a crystallization of ''a national
awareness of the central meaning of the First Amendment, '' which is that the ''right of free public
discussion of the stewardship of public officials . . [is] a fundamental principle of the American form
of government.

This ''central meaning'' proscribes either civil or criminal punishment for any but the most
maliciously, knowingly false criticism of government. ''Although the Sedition Act was never tested in
this Court, the attack upon its validity has carried the day in the court of history. . . . [The historical
record] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of
government and public officials, was inconsistent with the First Amendment.'' Supreme Court
unanimously overruled the $500,000 judgment against the Times. Justice William J. Brennan
suggested that public officials may sue for libel only if the publisher published the statements in
question with "malice.” The actual malice standard applies to both public officials and public figures,
including celebrities. Though the details vary from state to state, private individuals normally need
only to prove negligence on the part of the defendant.

India and America- A Swot Analysis

Two great democracies of world America and India very aptly recognizes the right of freedom of
speech and expression. The United States and India almost have similar free speech provisions in their
Constitutions. Article 19(1) (a) of Indian constitution corresponds to the First Amendment of the
United States Constitution which says, “congress shall make no law… abridging the freedom of
speech or of the press”4. However, the provisions in the US Constitution have two notable features
i.e.: freedom of press is specifically mentioned therein, No restrictions are mentioned on the freedom
of speech.

As far as India is concerned, Supreme Court of India has held that there is no specific provision
ensuring freedom of the press separately. The freedom of the press is regarded as a “species of which
freedom of expression is a genus”. Therefore, press cannot be subjected to any special restrictions
which could not be imposed on any private citizen,5 and cannot claim any privilege (unless conferred
specifically by law), as such, as distinct from those of any other citizen.

Hustler Magazine v. Falwell, extended the "actual malice" standard to intentional infliction of
emotional distress in a ruling which protected a parody. In the ruling, "actual malice" was described
as "knowledge that the statement was false or with reckless disregard whether or not it was true.” It is
clear from the above discussion that in American people enjoyed real freedom of speech but at the
same time, American judiciary has evolved very fair ground to put restriction on freedom of speech.
These restriction can be summarized as- Seditious Speech and Seditious Libel, Fighting Words and
Other Threats to the Peace, Defamation, Group Libel, Hate Speech. Thus Despite the constitutional
guarantee of free speech in the United States, legal systems have not treated freedom of speech as
absolute and have put some obvious restrictions on the freedom to speech and expression.

Conclusion: Expression through speech is one of the basic guarantees provided by civil society.
However in modern world Right to freedom of speech and expression is not limited to express ones’
view through words but it also includes circulating one's views in writing or through audiovisual
instrumentalities, through advertisements and through any other communication channel. It also
comprises of right to information, freedom of press etc. It is a right to express and self- realization.
Two big democracies of world i.e. America and India have remarkably protected this right. As far as
India is concerned, this important right is mentioned in Article 19(1) (a), which falls in fundamental
right category. Indian courts have always placed a broad interpretation on the value and content of
Article 19(1) (a), making it subjective only to the restrictions permissible under Article 19(2).

The words 'in the interest of public order', as used in the Article 19 include not only utterances as are
directly intended to lead to disorder but also those that have the tendency to lead to disorder. There
should be reasonable and proper nexus or relationship between the restriction and achievement of
public order. Initially, the American constitution was not having any provisions directed to protection
of freedom of speech and expression. It was inserted in the constitution vide first amendment of the
constitution. The First Amendment has been drafted in broad and sweeping terms, and for this reason,
the text of the First Amendment does not contain any standard for determining permissible restrictions
on freedom of speech. The restrictions that are permissible now are those that have been developed by
the Supreme Court in its interpretation of the First Amendment.
The United States has a complex First Amendment jurisprudence that varies the protection offered
free speech according to form. Similarly, India developed its own free speech jurisprudence that
applies a "reasonable restrictions" test based on eight mentioned restrictions. The real difference in
freedom of speech enjoyed in the United States and India is a question of degree. This difference in
degree is attributable to the reasonable restrictions provision and the moral standard of the
communities.