June 2021
1. Introduction
Both India and the United States consider freedom of speech and expression to be one of the preeminent rights in a free and democratic republic. Both nations acknowledged that priority by weaving it right into their constitutions, and each has acknowledged that the right to free speech and expression is not absolute. India has a more modern system of speech regulation with carveouts for national security, morality, and hate speech like many of its counterparts, while the United States does not have such carveouts.[1] Since the right to freedom of speech is established in each nation’s constitution, it is the foundation for any comparison of free speech and expression.
This E-Newsline discusses each nation’s constitutional protections, the exceptions to this fundamental freedom and the important case law that developed those exceptions.
2. Constitutional protections
2.1 The United States Constitution: The US has one of the most robust systems for protecting freedom of speech in the world. Citizens enjoy a highly tolerant governmental regime. A Pew Research Center study to determine how free citizens feel to express themselves without a governmental crackdown found that Americans feel the freest of any developed nation.[2] The Supreme Court of the United States (“SCOTUS”) is zealous in safeguarding the right to free expression because the US Constitution is very clear that protecting speech is of the highest priority.
The US Constitution expressly forbids Congress from abridging freedom of speech. The First Amendment reads, “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”. SCOTUS has interpreted this to mean that the government may not infringe on most kinds of speech, which are considered “protected speech”.[3] In America, nearly all speech is protected speech; the exceptions are addressed in section 3.1 of this newsletter.
2.2 The Constitution of India: Although India’s protections of speech and expression are not as far-reaching as those in the US, India also has the right to free speech and expression built into its constitution under Article 19(1)(a) and within Part III which deals with fundamental rights. The freedom of speech and expression are a cornerstone of democratic government, but such freedom is not absolute.[4]
Although Article 19(1)(a) of the Constitution of India (“COI”) specifically guarantees that all Indian citizens shall have the right to freedom of speech and expression, Article 19(2) sets some boundaries on that protection and allows the government to make reasonable restrictions on speech and expression in the interests of “the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”. These exceptions are addressed in section 3.2 of this newsletter.
3. The Speech Protections
The American speech and expression regime is very permissive; almost all categories of speech or expression are protected. The unprotected are those that have been restricted by common law since before the US gained independence from Great Britain. Defamation, obscenity, fraud, threats, and commercial speech (like advertising) are some examples of speech that the government may restrict or regulate. Though those categories are not necessarily protected, they are not listed in the Constitution as exceptions. The American courts have had to wade through the common law to determine exceptions, while the COI’s list of reasonable exceptions allows the Indian courts to jump ahead and deal with ambiguities within the facts of individual cases instead of trying to figure out what the exceptions ought to be.
The American categories of unprotected speech are similar to the categories that the COI enumerated in Article 19(2) because the US and India share a history as subjects of British rule, and wherever the British ruled, the common law followed. The COI is also more modern because it considers lessons that have been learned since the US Constitution was already passed, like restrictions for the sake of public order or foreign relations. The COI’s tolerance for restrictions is on par with the rest of the developed world; the US Constitution’s permissiveness of more speech and expression is the outlier on the international stage. The COI’s increased restrictiveness also reflects the facts on the ground in India. India shares a border with many more nations than America does, so it is more important for India to protect its relationship with foreign nations because the stakes are higher. Likewise, India is more diverse than the US is, so it stands to reason that restrictions which keep the peace between many disparate groups ought to be allowed.
3.1 Protections in the United States: Restrictions that limit the content of speech or expression are presumptively unconstitutional in the US and will almost certainly be struck down as unconstitutional; the government that makes the restriction bears the burden of proof.[5] In a recent case, SCOTUS ruled unanimously that the town of Gilbert, Arizona’s “sign code”, which limited the duration, location, and content of signs posted in the town, was unconstitutional because it was a content-based restriction on speech. The court ruled that any restriction that discriminated based on the content of speech or expression must pass a “strict scrutiny” test. For a restriction to pass that test, there must be a compelling government interest in limiting the speech and the restriction must also be narrowly tailored to promote that interest and must use the least restrictive means to achieve the interest. It is exceedingly rare that a restriction can clear that hurdle; strict scrutiny is the most difficult gauntlet for government statutes in the American Judicial system. Strict scrutiny is a death sentence for a statute. Outside of a few cases where the issue was speech by or on behalf of the government (which is not protected), SCOTUS has not cleared a speech restriction over strict scrutiny for more than 20 years. Accordingly, in Town of Gilbert, the interest (preventing bad signage) was not very compelling and the restriction itself was not narrowly tailored because it made broad rules that would apply to any kind of signage without a contextual analysis of the context of that signage. The unanimous agreement among the court on the result of the case shows that the court stands united against speech restrictions.
The US Constitution also protects expressions that are not exactly speech in a similar way. Actions which have a symbolic meaning are extended the same protections as speech. A famous example of this is the case where a man was arrested for burning the American flag in protest, flaunting a law that prohibited that very act. SCOTUS ruled in favor of the fiery activist with the reasoning that burning the flag is an expression of his political opinion, and therefore must be protected by the First Amendment.[6] If setting fire to the symbol of the freedom of speech is considered protected, then what is not protected?
As above, the categories of speech that are not protected are those which have historically been restricted under the common law like obscenity, defamation, fraud, etc. Speech that falls into these categories are not necessarily illegal, but most jurisdictions within the US do have laws that regulate those kinds of speech or expression.
One of the major problems with this categorical system is how one determines whether speech or expression falls into a category. If someone says, “I am going to beat you”, that might be a threat, but it is context dependent. If the context is that a brother stole his sister’s candy and she utters those words, that should not be considered a threat. But, if a man is walking down an alley and is accosted by a man who is holding a cricket bat when he hears those words, then that is probably a threat. Those seem black and white, but the context is rarely that clear. If for instance, in the second scenario, the bat-wielding man says, “I am going to beat you if you come any closer”, is that a threat? Probably not, but it may be considered a threat if the man has nowhere else to go but closer to the batter. Likewise, determining whether something is considered obscenity can be tricky. A Justice of the Supreme Court, after failing to give a comprehensive definition for obscenity, stated in his opinion “I know it when I see it”.[7] Correspondingly, legislatures have drafted laws which restrict those categories of speech to give more deference to courts in their interpretation.
3.2 Protections in India: Unlike the US Constitution, which relies extensively on the common law to determine which exceptions apply, the COI enumerated the interests which might justify a reasonable restriction on the freedom of speech and expression in Article 19(2). Despite the efforts of the drafters of COI, there were still ambiguities that the Supreme Court of India (“SC”) needed to clarify. For instance, is freedom of the press part of free speech and expression? What kind of speech can be restricted on moral grounds?
The SC ruled that freedom of the press is indeed implied, and therefore included, in Article 19(1)(a) protections.[8] In Indian Express Vs. Union of India, the SC was confronted with the issue of government taxation of newspapers. The petitioners argued that the tax was a burden to their right to free expression under Article 19(1)(1). The government argued that other countries taxed newspapers, including the US. The court ruled that taxing newspapers was not unconstitutional unless the tax becomes an unreasonable burden. The court upheld freedom of the press as an extension of freedom of speech and expression in the COI. But that freedom is the same as the freedom of the individual, because it stems from the protections of the individual, so freedom of the press cannot extend over and above the freedoms of speech and expression included in Article 19(1)(a) of the Constitution. This contrasts with the American protections of the press which are more permissive. Freedom of the press is specifically mentioned in the US Constitution as a separate freedom from speech, which implies different protections. However, both nations have much in common regarding speech regulation.
Both nations permit restriction of obscenity. In Ranjit D. Udeshi Vs. State of Maharashtra, the court upheld a conviction for printing and selling an unexpurgated copy of Lady Chatterley’s Lover which is notoriously explicit in its graphic depiction of sex.[9] The court used the Hicklin Test which determines obscenity by an analysis of “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall”.[10] Similarly, the standard for obscenity in the U.S. court is whether the material appeals to “prurient” interests and whether the material lacks serious literary, political, artistic, or scientific value.[11] The substantive difference in speech regulation is in regards to hate speech.
As noted, Indian and American citizens enjoy robust freedoms of speech and expression, but the former also enjoy more protections from infringement by other citizens. Unlike the US Constitution, the COI allows the government to restrict hate speech, especially when it comes to deliberately insulting religious beliefs. For instance, Section 295A of the Indian Penal Code prescribes a punishment of up to three years imprisonment and a fine for any person who insults or attempts to insult the religious beliefs of a class of citizens.
A notable example of the enforcement of hate speech laws is when politician Kamlesh Tiwari was charged for insulting the Prophet Muhammad during a political dispute. Tiwari was sentenced to a year in prison under the National Security Act. Tiwari was also charged for violating Section 295A for his “deliberate and malicious acts” to insult Muslims. His statements caused protests across India, some of which turned violent. This case is an excellent example of why the COI enabled the government to restrict speech which might affect public order. Having legal recourse for those who insult a religion or class of people discourages people from taking the law into their own hands. Although Tiwari’s story ended tragically, India’s speech regime discourages similar instances from happening as often as they otherwise might.
On the other hand, the US does not have the power to punish insulting speech in the same way. While it is a very diverse nation, it does not have the same degree of religious diversity as India, so there has not been a need to regulate speech or behavior that might cause internal division. Although India is a majority Hindu nation, it has the third highest number of Muslim citizens of any country in the world; it is clear that the Indian government should have the power to soothe religious tensions by protecting its citizens from religious insult.
5. Social Media
Tangential to the topic of obscenity and hate speech, India and the US have been discussing the regulation of speech on social media. India has recently enacted new IT Rules which are aimed at protecting internet users by requiring social media to remove posts and messages that might violate Indian speech laws.[12] Platforms will be penalized if they fail to comply with the new rules. A possible penalty for the platform is liability for any speech on the platform under Indian law. Some critics have claimed that this goes too far, but there is a similar debate happening in America over voluntary censorship by the platforms of certain political views.
The American debate on social media regulation is focused on the platform/publisher distinction. If treated as a platform, social media sites will not be held responsible for the content that users post; if treated as a publisher, the sites will be liable for publishing any defamation or other restricted speech. American common law has developed this distinction by analyzing whether an organization curates the content. For instance, a telephone company should not be held accountable for what a customer says over their phone lines, but a magazine which chooses to publish defamation ought to be held accountable. Social media sites like Twitter and Facebook actively remove content that “violates community guidelines” but not necessarily the law; should that be considered curation of content? Some American lawmakers think so, but others believe that having a higher standard of content than the law requires does not mean that these sites are curating content.
The world will look to India as they are on the forefront of the issue of social media regulation. No other developed nation has taken a swing at social media platforms like Prime Minister Modi’s administration, so it will be interesting to see how the battle over the IT Rules will pan out. India’s massive population, and subsequently massive proportion of internet users, gives its government significant bargaining power against the tech giants.
6. Conclusion
Although the US offers more protection to more categories of speech, the protection of speech in India is robust. Both nations have enshrined the right to free speech and expression in their constitutions; the drafters of the COI had the forethought to clarify some reasonable areas where speech may be restricted, unlike the US Constitution which punted the problem to the courts to figure out. The US and India both restrict the speech that common law has historically held to be unprotected, but India’s constitution follows more modern developments like hate speech restrictions.
India’s new IT Rules are a novel method of addressing violations of speech restrictions on the internet. The conflict between the tech giants and India is only beginning. Depending on the success of India’s aggressive approach, other nations including the US are likely to follow suit.
This Newsletter is written by Benjamin J. Bacia, a second year J.D. Candidate, University of Georgia School of Law, Athens (under the guidance of Priti Suri, Founder & Managing Partner) who is pursuing his internship at PSA
[1] France, Germany, the UK, and most other developed nations have “hate speech” laws that restrict speech against certain classes of people for the purpose of promoting public order and morality; the US does not.
[2] Richard Wike, Americans more tolerant of offensive speech than others in the world (last accessed June 18, 2021) https://www.pewresearch.org/fact-tank/2016/10/12/americans-more-tolerant-of-offensive-speech-than-others-in-the-world/
[3] Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)
[4] Article 19(2) of the Constitution of India
[5] Reed v. Town of Gilbert, 135 U.S. 2218 (2015)
[6] Texas v. Johnson, 491 U.S. 397 (1989)
[7] Jacobellis v. Ohio, 378 U.S. 184 (1964)
[8] Indian Express Vs. Union of India, (1985) 1 SCC 641
[9] (1962) 64 Bom LR 356
[10] Id. at paragraph 4
[11] Miller v. California, 413 U.S. 15 (1973)
[12] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf