Expressive Conduct and Article 19(1)(a) of the Indian Constitution: A Purposivist Approach

Unlike the First Amendment of the United States, the quest to develop a grand theory to explain the scope and purpose of the free speech clause of the Indian Constitution has rarely been attempted. In this void, the significant constitutional question of when expressive conduct should trigger free speech protection has not received adequate academic and judicial scrutiny in India despite its global resonance. This article examines the evolution of the current doctrine by the Indian Supreme Court on the issue of expressive conduct and finds that the Court's ad-hoc approach fails to provide a meaningful resolution framework. Analysing the jurisprudence of the US Supreme Court on its First Amendment, it discusses two potential approaches available to the Indian Supreme Court: one based on the speaker's conduct, and the other, based on state purposes. It argues that focusing on state purposes not only provides a principled answer to this conundrum but is also consistent with Indian free speech jurisprudence. Contrary to contemporary scholarship, it demonstrates that the law on Article 19(1)(a) of the Indian Constitution, as moulded by the Indian Supreme Court over decades, has implicitly treated the examination of state purpose as its predominant inquiry. This article concludes with some ideas on the limitations and prospects of adopting such an approach.

Pornography

This chapter discusses pornography, which is often defended on the basis of freedom of speech or expression. Even if some pornography is not just offensive but actively harmful, it is speech; and, as such, enjoys the special protections generally extended to speech in liberal societies. In the United States, pornography even enjoys legal protection under the free speech clause of the First Amendment of the US Constitution. The chapter then critically examines the traditional free speech defence of pornography, as well as prominent feminist arguments for legal regulation of some pornography, before turning to consider a surprising but increasingly influential free speech-based line of argument against pornography. In discussing these matters, the primary focus will be on general issues of political morality, rather than questions of legal interpretation.

The Sound of Constitutional Silences: Interpretive Holism and Free Speech under Article 19 of the Indian Constitution

Unlike the US First Amendment, Article 19 of the Indian Constitution expressly enumerates eight grounds on which free speech may be restricted. Despite being a fundamental issue of constitutional interpretation, the question of whether Article 19 provides for an exhaustive list of restrictions has largely been neglected in academic literature and Indian jurisprudence. The latest site of contestations on the scope of the free speech clause has been the case of Kaushal Kishor, where the Supreme Court is currently hearing arguments on whether speech can be restricted by invoking fundamental rights beyond Article 19. This Article seeks to develop a principled answer by excavating the meaning of constitutional silences on the relationships between fundamental rights under the Indian Constitution. It argues that a strict textualist approach leads to a distinct form of rights absolutism that is both doctrinally incoherent and inconsistent with Indian jurisprudence. Examining the shift in the Supreme Court’s interpretive outlook from strict textualism to interpretive holism, it finds that the Court’s rich fundamental rights jurisprudence allows importing restrictions on speech from beyond Article 19. Such an approach also provides a meaningful framework for resolving intra-right, inter-right, and right-interest conflicts in the constitutional adjudication of free speech issues.

Access to Government Officials in the Age of Social Media

As social media platforms have become more pervasive, there has been a concomitant increase in the number of government officials using their personal social media accounts to perform official government duties. Most notably, President Donald Trump continues to use his personal Twitter account, established in 2009, prior to his presidency, to conduct a variety of official tasks. While the First Amendment’s Free Speech Clause traditionally protects an individual’s right to engage in self-expression, the Supreme Court has not unequivocally recognized an affirmative right to know as an extension of the First Amendment. Recent court decisions suggest this may change. This study addresses the contours of public access to government officials on social media. Specifically, it considers the circumstances in which government officials are likely to be held to a standard of accountability and the case for treating public officials’ social media accounts as public forums, including how factors relating to account ownership and content impact that analysis.

The Dynamic Free Speech Clause

This book examines the relational dynamics between the U.S. Constitution’s Free Speech Clause and other constitutional rights. The free speech guarantee has intersected with a variety of other constitutional rights. Those intersections have significantly influenced the recognition, scope, and meaning of rights ranging from freedom of the press to the Second Amendment right to bear arms. They have also influenced interpretation of the Free Speech Clause itself. Free speech principles and doctrines have facilitated the recognition and effective exercise of constitutional rights, including equal protection, the right to abortion, and the free exercise of religion. They have also provided mediating principles for constructive debates about constitutional rights. At the same time, in its interactions with other constitutional rights, the Free Speech Clause has also been a complicating force. It has dominated rights discourse and subordinated or supplanted free press, assembly, petition, and free exercise rights. Currently, courts and commentators are fashioning the Second Amendment right to keep and bear arms in the image of the Free Speech Clause. Borrowing the Free Speech Clause for this purpose may turn out to be detrimental for both rights. The book examines the common and distinctive dynamics that have brought free speech and other constitutional rights together. It assesses the products and consequences of these intersections, and draws important lessons from them about constitutional rights and constitutional liberty. Ultimately, the book defends a pluralistic conception of constitutional rights that seeks to leverage the power of the Free Speech Clause but also to tame its propensity to subordinate, supplant, and eclipse other constitutional rights.

Arms

Chapter 7 addresses the relationship between the Free Speech Clause and the Second Amendment’s right to “keep and bear Arms.” Relative to the other non-speech rights examined in the book, recognition of an individual right to keep and bear arms occurred relatively recently (the Supreme Court recognized the right in 2008). As a result, the relationship between free speech and Second Amendment rights is still developing. The chapter focuses primarily on two aspects of their intersection. The first is the extent to which the nature and scope of Second Amendment rights ought to be modeled on Free Speech Clause doctrines and principles. The chapter considers the pros and (mostly) cons of “borrowing” the Free Speech Clause for this purpose. The second aspect of the relationship between the Free Speech Clause and the Second Amendment relates to potential conflicts between them. The chapter addresses two tension points—the effect on free speech of openly carrying firearms at public protests and demonstrations, and the effect on academic freedom and inquiry from the presence of firearms in university classrooms. The chapter argues that the future of the Second Amendment will not be determined by explicit borrowing of Free Speech Clause doctrines. However, in terms of constructing the modern right to keep and bear arms, there is much we can learn from the nation’s long experience with free speech rights.

Introduction

The Introduction accomplishes several things. It emphasizes the central subject matter of the book, which is the relationships between freedom of speech and other (“non-speech”) constitutional rights. The Introduction also discusses different conceptions of constitutional rights—as textual guarantees, trumps of governmental power, and rhetorical devices. It emphasizes the relational character of rights and introduces the concept of Rights Dynamism, which is the process by which rights intersections occur. The Introduction highlights the bidirectional relationship between freedom of speech and non-speech rights, noting that interactions between these rights have influenced interpretation of both the Free Speech Clause and the rights it has interacted with over time. It describes the facilitative and mediating functions of freedom of speech, as well as the conflicts between free speech and non-speech guarantees. Finally, it introduces the concept of Rights Pluralism, which is defined and defended more fully in the book’s final chapter.

Religion

Chapter 4 addresses the relationship between the Free Speech Clause and the Free Exercise Clause. It explains that although these provisions have a collaborative and synergistic history, beginning in the 1980s, the Free Speech Clause began to dominate the relationship. This important shift also affected, to some extent, interpretation of the First Amendment’s other religion clause, the Establishment Clause. The course of the free speech/free exercise relationship has also complicated several free speech doctrines, including those relating to public forum, content neutrality, and government speech. In addition to explaining these relational dynamics, the chapter advocates reinvigorating the Free Exercise Clause and reconnecting it with the Free Speech Clause in ways that recover the mutually facilitative relationship that once existed between the two. To illustrate, the chapter considers the respective functions of the Free Speech and Free Exercise Clauses as they relate to claims involving worship in public buildings and application of anti-discrimination laws to religious speakers.