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Freedom of Press, Speech and Expression

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Curator: Ujwala Uppaluri, Student, B.A., LL.B. (Hons.), National University of Juridical Sciences

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Primary Legal Material [open access]

India

1. Article 19(1)(a) and (2), Constitution of India
2. Article 358, Constitution of India
3. Constitution (First Amendment) Act, 1951
4. Sections 2 and 39, Constitution (Forty Fourth Amendment) Act
5. Constituent Assembly Debates

International

1. Article 19, Universal Declaration of Human Rights
2. Article 19, International Covenant for Civil and Political Rights
3. UN Human Rights Committee, General Comment 10 [Interpreting Article 19, ICCPR]
4. UN Human Rights Committee, General Comment 34 [Interpreting Article 19, ICCPR]
5. UN Special Rapporteur for Freedom of Speech and Expression, Annual Reports
[See here for break-up of reports by issue addressed.]

Reference Material

General/Comparative Material

1. Thomas I. Emerson, The System Of Freedom Of Expression 17 (1970).
2. Frederick Schauer, Free Speech: A Philosophical Enquiry (1982).
3. C. Edwin Baker, Human Liberty & Freedom of Speech (1992).
4. Eric Barendt, Freedom of Speech (2005).

India

1. P.K. Tripathi, Free Speech In The Indian Constitution: Background And Prospect, 67 Yale L.J. 384 1957-1958.
2. P.K. Tripathi, Spotlights on Constitutional Interpretation, 278 (1978).
3. HM Seervai, Constitutional Law of India: A Critical Commentary (1996)

International

1. Sarah Joseph et al, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2005).

Rights/Negative Liberties

1. Isaiah Berlin, Two Concepts of Libertyin Four Essays on Liberty (1969). [open access] but seems a sketchy source
[This piece lays down the distinction between positive and negative liberties.]

2. Positive and Negative Liberty, The Stanford Encyclopedia of Philosophy. [open access]

3. John Rawls, Justice As Fairness (1985).
[See for Rawls’ discussion of the first principle of justice, which he terms the “liberty principle”, particularly when it would be justified to limit basic liberties such as that of speech.]

See generally for understanding of rights, freedom and liberty:

4. Ronald Dworkin, Taking Rights Seriously (1977).

5. Joseph Raz, The Morality of Freedom, (1986).

Classical Defenses of Freedom of Speech

1. John Milton, Areopagitica (1644). [open access]
[This is a polemical tract in defence of press freedoms, and free speech generally, on philosophical grounds.]

2. Jeremy Bentham, Liberty of the Press and Public Discussion (Letters), (1843). [open access]
[Bentham’s statement of press freedom argues to permit political associations/assemblies in public and resistance to governmental authority as a check to abuse of power. Special mention of permitting criticism, including of state officials, and a discussion of how sedition and defamation of public officials should be addressed.]

3. Chapter II: Of Liberty of Thought and Discussion in J. S. Mill, On Liberty (1859).[open access]
[Mill argues for limited governmental intervention in silencing or compelling speech, emphasizes the value of contrary and minority opinions and presents a principle on which any governmental action in respect of speech should be based.]

4. Walter Bagehot, The Metaphysical Basis Of Toleration (1874).
[open access]
[Bagehot argues for toleration by the state and under law of a diversity of opinions, and argues that discussions and exchange of opinions must be in pursuit of uncovering truths.]

5. George Orwell, “//The Freedom of the Press//” (intended as the Preface to George Orwell,The Animal Farm (1945)). [open access]
[Originally intended as the preface to Animal Farm, discusses the motivations to self-censorship in literary endeavours.]

Theoretical Foundations

1. Alexander Meiklejohn, Free Speech and its Relation to Self-Government, 1948. [open access]
[Discussing the relationship between the right to free speech and democracy.]

2. Joel Feinberg, Offense to Others (1985).
[This book mounts a criticism of the Millian defense of freedom of expression and the underlying harm principle and provides for an alternate paradigm in the “offense principle”. Discussions are based around US First Amendment precedent.]

3. Vincent Blasi, //The Checking Value in First Amendment Theory//, 1977 Am. B. Found. Research J. 521.
[Blasi provides, in the context of the US First Amendment, the canonical iteration the notion that free speech performs the function of checking governmental abuse of power, and discusses its utility as a consideration in adjudication on free speech issues.]

[See also: Martin H. Redish, //The Value of Free Speech//, (1982) 130 U.Penn. L. Rev. 591; Kent Greenawalt, //Free Speech Justifications//, 89 Colum. L. Rev. 119 (1989).]

4. Frederick Schauer, //Fear, Risk and the First Amendment: Unravelling the “Chilling Effect”//, 58 B. U. L. Rev. 685 (1978). [open access]
[This article unpacks and explains the chilling effect and discusses how uncertainty generally and the chilling effect will affect how various classes of speech are treated.]

5. R. H. Coase, //The Market for Goods and the Market for Ideas//, (1974) American Econ. Rev. 384.

6. Richard Posner, //Free Speech in an Economic Perspective//, 20 Suffolk U. L. Rev. 1 (1986). [open access]
[Posner offers an economic model by which to evaluate the costs and benefits of regulation in speech cases.]

7. Freedom of Speech, Stanford Encyclopedia of Philosophy [open access]

8. Melville Nimmer, Is Freedom of the Press A Redundancy: What Does it Add To Freedom of Speech?, 26 Hastings L.J. 639 (1974-1975).
[Nimmer argues that the existence of both a speech and a press clause suggests that a speech-press duality was intended under the First Amendment. He discusses precedent at the US Supreme Court which make apparent and engage with the distinction.]

Elements of the Free Speech Right

Categories of Speech and Expression

Commercial Speech

1. Hamdard Dawakhana v. Union of India,1960 AIR SC 554 [open access]
2. Tata v. MTNL, 1995 AIR SC 2438 [open access]

Right to fly National Flag

1. Union of India v. Naveen Jindal[open access]

Demonstrations

1. Kameshwar Prasad v. State of Bihar, AIR 1995 SC 1116 (non violent strike/demonstrations) [open access]
2. Communist Party of India (M) v. Bharat Kumar, SC – 1997 (hartals, but not bandhs) [open access]

Communication via Telephone

1. PUCL v. Union of India, (1997) 1 SCC 301 [open access]

Broadcasting

1. Secretary//,// Ministry I&B v. Cricket Association of Bengal, 1995 SCC (2) 161 [open access]

Cinema

1. S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574 [open access]
2. KA Abbas v. Union of India, AIR 1971 SC 481 [open access]

Membership in a political/religious association

1. State of MP v. R. Raghuvanshi, AIR 1983 SC 374 [open access]

Voting

1. PUCL v. Union of India, 2013 [open access]

Other Principles

The Right of Access to Medium of Communication

1. Jerome A. Barron, //Access to the Press—A New First Amendment Right//, 80 HARV.L. REV. 1641 (1967).
2. Ajay Goswami v. Union of India , SC – 2005 (referring to internet access) [open access]

The Right to Reply

1. LIC v. Manubhai Shah,1993 AIR SC 171

The Right to Against Pre-Censorship and Prior Restraint

1. Thomas I. Emerson, //The Doctrine of Prior Restraint//, 20 Law & Contemp. Probs. 648 1955 [open access]
[Discusses the doctrine of prior retraint, its nature and development as well as the speech and speech acts in respect of which it has been applied by the U.S. Supreme Court.]

2. Romesh Thapar v. State of Madras, AIR 1950 SC 124 [open access]

3. Brij Bhushan v. State of Delhi, AIR 1950 SC 129 [open access]

4. Virendra v. State of Punjab, AIR 1957 SC 896 [open access]

Freedom to circulate content once published

1. Romesh Thapar v. State of Madras, AIR 1950 SC 124[open access]
2. Sakal Papers v. Union of India, AIR 1962 SC 305 [open access]

Right to determine volume of content disseminated

1. Bennett Coleman v. Union of India, AIR 1973 SC 106 [open access]

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