Rule Of Law

 

 

FREEDOM OF SPEECH AND EXPRESSION IN THE UNITED STATES CONSTITUTION:

Freedom of Speech and Expression in United States is quite different from that in India. Freedom of Speech and Expression in the United States Constitution is protected by the First amendment to the U.S Constitution and by many other State Constitutions and State and Federal law. [26] The First amendment is included in the Bill of Rights which contains the first ten amendments to the United States Constitution. They were introduced by James Madison to the First United States Congress in 1789 as a series of articles and came into effect on December 5, 1791 when they had been ratified by three fourth of the states.

The First Amendment states:

“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.” [27]

The First Amendment of the Constitution of the United States almost speaks in absolutist terms that the Congress can make no law which either abridges or prohibits the Freedom of Speech, of Press, or the right of the people to assemble peacefully or to petition the government for the redressal of their grievances. [28] The purpose of the first amendment was mainly to prevent all types of restrictions which were imposed by the other Governments on the various types of publications. Freedom of Expression provided by the first amendment to the United States Constitution includes the rights to freedom of speech, freedom to press, right to assemble and the right to petition the Government for redressal of grievances. The United States Supreme Court first applied the principle of right of free speech with the case of Gitlow vs. New York. [29] Gitlow vs. New York, was a historically important case which was argued before the United States Supreme Court in which the Court was of the view that the Fourteenth Amendment to the U.S Constitution had extended the reach of certain provisions of the First Amendment, specifically the provisions protecting freedom of speech and freedom of the press to the governments of the individual states. [30] So like the life and liberty of a person cannot be taken away without due process of law in the same way the rights of freedom of speech and expression which are the fundamental personal rights cannot be taken away without any due process of law.

The Constitution of the United States by the First Amendment gives the right to the citizens to express their ideas, views and beliefs without any fear of interference by the Government. The United States Supreme Court requires the Governments to give justifications or reasons for any regulations imposed on the right to freedom of speech and expression of the citizens. But the Supreme Court allows the Government to prohibit certain types of speech which it feels is likely to cause breach of peace. [31] The freedom to speech and expression also includes the freedom to press as per the first amendment of the United States Constitution. Freedom of the press is a part and parcel of the freedom of speech and expression provided by the first amendment of the United States Constitution. By freedom of press people are given a chance to express their views and ideas to others by publication. Freedom of Press does not grant any special protection to the members of the media rather they also have the same rights as that of an ordinary citizen having the right of freedom of speech and expression. But the Supreme Court of United States is of the view that the Press is protected in order to promote and to protect the exercise of free speech in the society including the receipt of information by the people. [32] The Government may sometimes try to regulate or restrain the content of speech which is spoken by the citizens even before it is spoken then the Government has to at first define as to what is illegal, explain as to what is the minimum speech required, then it must be supported by the court and it must be ready to bear the cost of suing the other party and on top of that it has to prove that if such type of speech would surely result in direct and irreparable damage to the Nation as well as to its people. [33] This is the theory of Prior Restraint of Speech as was given by the Supreme Courts of United States in the case of New York Times Co. vs. United States. [34] But the Government has almost stopped acting in consequence to the theory of prior restraint since the case of Near vs. Minnesota. [35]

REASONABLE RESTRICTIONS ON FREEDOM OF SPEECH AND EXPRESSION:

The Constitution of United States has given prime consideration to the concept of Freedom of Speech and Expression. The First Amendment to the Constitution of United States expressively deals with the concept of Freedom of Speech and Expression and consider it as an integral part of Rule of Law. However a close look at the administration and governance of United States of America reflects that these rights though are fundamental is not absolute or unlimited. There has been a restriction on these rights either by the Congress or the Government or the Executive which has been buttressed by the United States Supreme Court. Unlike in India and other Countries it is not the Executive or Legislature who has developed this concept but it is the Court who has deliberated upon and evolved this tradition. Therefore it can be said that Judicial Review which is a significant concept of Rule of Law has also levied certain restrictions on Freedom of Speech and Expression despite recognizing its importance. Although Freedom of Speech and Expression is a fundamental right necessary for every citizen but a standard is required to be fixed beyond which the speech can curtailed. The standard is necessary to determine as to what degree of evil is sufficiently substantial to justify resort to abridgment of speech and press as a means of protection and how clear and imminent and likely the danger is. To solve all such types of problems various restrictions are being provided by the Court as well as the Congress with the passage of time. Clear and Present Danger Test is the principle where it can be established that the speech and expression of an individual or group has posed a threat to the State Government or its actions. Such a case is considered to be a criminal action. It was for the first time evolved by Justice Homles in Schenck vs. United States [36] where he held that when the publication of a material which posed a threat to the administrative action of a State pose a clear and present danger. Though the American Constitution doesn’t clamp upon any restrictions on the Freedom of Speech and Expression but through judicial decisions like Schenck vs. United States & Debs vs. United States [37] the Court has evolved that the Congress has right to restrict an individual or group from publishing or producing any material that had the natural, intended and probable effect which may lead to twisting of truth and inciting criminal action. However in case of Abrams v. United States, Justices Holmes and Brandeis have further developed their positions that by mere speaking or writing against Government actions or having a different opinion doesn’t amount to clear and present danger.

In Whitney vs. California [38] Court affirmed a conviction under a criminal syndicalism statute based on Defendant’s association with and membership in an organization which advocated the commission of illegal acts, finding again that the determination of the legislature that such advocacy involves such danger to the public speech and security of the State. Therefore we can conclude that the Legislature or Congress has been given power to restrict Freedom of Speech and Expression. In Terminiello v. City of Chicago [39] Justice Jackson, who called rioting as a substantive agent. Since then have being trying to evolve a mechanism to Freedom to Speech and criminal evil to the extent that Justice Frankfurter in Dennis vs. United States had rejected the applicability of clear and present danger test and adopted balancing test which aims at balancing between individual rights and social responsibility. Thus the responsibility may be placed on the courts to balance the relevant factors and ascertain which interests in the circumstances do prevail. There also exists certain other types of restrictions on Freedom of Speech and Expression and they being the Time, Place or Manner restrictions, Content based restrictions, View point based restrictions etc

SUSPENSION OF FREEDOM OF SPEECH AND EXPRESSION:

There is no express provision in Constitution of the United States which provides for any emergency provisions neither does it provides for the suspension of any fundamental rights of the citizens including the freedom of speech and expression on during any time of crisis. But the freedom of speech and expression is not absolute in the United States. It is subjected to certain types of regulations depending on the fact that it may cause direct or irreparable damage to the people as well as to the Nation. The Power to impose emergency lies with the President but the misuse of this power is again checked upon by judicial review as well as the Congress. Therefore the Supreme Court of United States has identified seven types of expressions which the Government has the power to regulate irrespective of the freedom of speech and expression. [40] The seven types of expression are as follows:

Core Political Speech-

Speech that incites illegal or subversive activity

Fighting words

Obscenity and Pornography

Symbolic speech

Commercial speech

Student speech

It is upon the Government to regulate a particular kind of speech depending upon its content and the damage it might seem to cause to the people or the Nation. Both state and Federal Courts will apply the same level of scrutiny to Government Regulation of Free Speech under the First Amendment since the free speech clause has been made applicable to the States via the Fourteenth amendment’s Due Process clause. (Gitlow vs. New York, 268 U.S. 652 (1925)

Core Political Speech- Core Political Speeches are granted the highest possible protection. These types of speech generally consist of conduct and words that are intended directly to gain public support for any particular issue, position or for candidate. In Meyer vs. Grantt, [41] U.S Supreme Court had suggested that Core Political Speech generally involves any interactive communication concerning political change. In case of Buckley v. Valeo, [42] Supreme Court concluded that any discussion of public issues and debate on the qualifications of candidates are forms of political expression integral to the system of government established by the federal Constitution. Thus, circulating handbills

and petitions, posting signs and placards, and making speeches and

orations are all forms of Core Political Speech, so long as they in some or other way address social issues, any political positions, political parties, political candidates, government officials, or governmental activities. [43]

Speech that incites illegal or subversive activity- These are certain types of speech which motivates the listener to do some act which is against the political system of the country. The listener may be so very much motivated by the speech that he is ready to do any act to change the political system of any country. It can even lead to joining of some political organization for overthrowing the U.S Government.

Fighting Words- These are another type of words which receive less protection of the First Amendment Act. These are kinds of words the utterance of which either inflict injury or tend to cause acts of violence among people thereby causing a breach of peace. Chaplinsky v. State of New Hampshire, [44] .

Obscenity and Pornography- The Judiciary tries to define Obscenity by applying the Miller Test. It generally tries to do so by applying the contemporary community standards. It is a kind of speech to which all of the following standards apply: appeals to the prurient interest, depicts or describes sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value. State and federal laws attempt to enforce societal norms by encouraging acceptable depictions of human sexuality and discouraging unacceptable depictions. Libidinous books such as Lady Chatterly’s Lover and pornographic movies such as Deep Throat have rankled communities struggling to determine whether such materials should be censored as immoral or protected as works of art.

Symbolic speech- The speech which is spoken without the use of any language by means of expression or signs and symbols are known as Symbolic Speech. Eg. of such a type of speech may be waving of hand, nodding of head etc. For the people of United States one such type of symbolic speech was the crashing down of the World Trade Centers following the terrorist attack. The First Amendment to the Constitution to the United States however does not protect all such types of symbolic expression. The Court may give some form of protection for symbolic speech like in the case of: West Virginia State Board of Education vs. Barnette [45] where the Court held that the State cannot force public school children to salute the flag.

Commercial speech- The Court in the case of Central Hudson Gas and Electric Corporation vs. Public Service Commission, [46] held that the speech is commercial if it does no more than propose a commercial transaction. This type of speech also includes advertising as it helps in the free flow of information. But certain types of advertisements which actually do not propose anything in particular that is they do not advertise a sale does not come under Commercial speech. Commercial Speech is given less protection because the citizens have a right of such commercial information. The First Amendment protects such commercial information as long as the Government’s interest in doing so is substantial. Eg. Misleading Advertisements etc.

Student speech- The First Amendment does not provide the same amount of protection to student’s speech as to that of the adults. The Supreme Court in Hazelwood School District v. Kuhlmeier, [47] has held that a public school student’s right to free speech is not automatically co-extensive with the rights of adults in other settings. That means that the educators in a school are liable to control the speech and expressive conduct of the students as long as there actions are reasonably related to legitimate pedagogical patterns. Any student who speech is not in consonance with the school educational mission can be censored.

COMPARATIVE ANALYSIS:

When we try and compare the two Constitutions that are the Indian Constitution and the American Constitution we can come to the conclusion that both of them have a lot of features in common. Both are democracies and have many characteristics features which are similar to both the Constitutions like Freedom of Religion, Right to Life, Equal Protection Clause etc. Both of them even have a certain degree of similarity in the provisions of Freedom of Speech and Expression. However the basic difference is that in case of Indian Constitution are integral part and parcel a of the Indian Constitution but the same is not the case with the American Constitution. The reasonable restrictions which are applied on the Freedom of Speech and Expression to restraint the Freedom of Speech and Expression to a certain level are not imbedded in the American Constitution rather they are developed by the Judiciary by Judicial Review. The Congress is also some what empowered to regulate the Freedom of Speech and Expression to a certain level by various ways. Further the American Constitution provides for the due process clause which the Indian Constitution explains it as the procedure established by law. Similarly the Legislature has a larger role to play under the Indian Constitution while the American Congress though empowered to restrict Freedom of Speech and Expression it is limited by the expressive clause of the First Amendment and therefore has to depend on the liberal interpretation by the Judiciary. We can conclude that what is judicial review to American Constitution especially in the context of Freedom of Speech and Expression it is inherent in the Indian Constitution.

CONCLUSION:

In Indian Constitution in comparison to the American Constitution the emergency provision of the Executive where Fundamental Rights including Freedom of Speech and Expression are suspended possessed a greater threat in India. More than one third of the Indian Population are poor, illiterate and impoverished. Suspension of their Fundamental Rights brings a larger misery to them. Therefore it can be said to be the violation of not only their Fundamental Right but also of their Human Rights.

Talking about adopting the Present and Imminent Danger Test in the Indian circumstances the Supreme Court has definitely tried adopting the principle in some cases. One of them is the case of R.P Ltd vs. Proprietors, Indian Express Papers, Bombay (P) Ltd., [48] the Supreme Court considered the question of holding a balance between two interest i.e Freedom of Speech and administration of Justice. The Present and Imminent Danger Test was relied upon to justify the order of injunction issued by the Court prohibiting the Indian Express News Papers from writing anything about issue of convertible debentures by Reliance Petro Chemicals. It, therefore seems the Supreme Court has accepted the principle of Present and Imminent Danger Test to restrict Freedom of Speech and Expression.

So in my view even though some restrictions are required to balance between the individual and the society unless a clear cut is evolved mere suspension of Freedom of Speech and Expression will impose a greater danger to the Nation.

Rule of Law Definition:

That individuals, persons and government shall submit to, obey and be regulated by law, and not arbitrary action by an individual or a group of individuals.

Related Terms: Judicial Independence, Anarchy, Democracy, Law

A government of law and not of men.

Distinguished from the rule of man where, for example, in a monarchy, tyrannical or theocratic form of government, governance and rules of conduct is set and altered at the discretion of a single person, or a select group of persons.

In a political system which adheres to the paramountcy of the rule of law, the law is supreme over the acts of the government and the people.

According to the United Nations, the rule of law:

“… refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.”

Retired (and now deceased) Justice Tom Bingham wrote, in a 2010 book entitled Rule of Law, this of the rule of law:

“The core of the … principle is … that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefits of laws publicly made … and publicly administered in the courts.”

The phrase “rule of law” is often found in contemporary constitutions. For example, Canada’s includes the phrase:

“Canada is founded upon principles that recognize the supremacy of God and the rule of law.”

In Canada and in the United States, much has been written in constitutional law cases about the rule of law. It has expanded from three words to include justification for the following principles.

  • “Adherence to the rule of law is what guides us in our everyday social and legal interactions, prevents anarchy, and hold us together as a people.” (Frens)
  • All are equal in the eyes of the law (References re French Language)
  • Equality in the law as well as before the law (References re French Language)
  • That people should be ruled by the law and obey it (Rossiter)
  • The law should be such that people will be able to be guided by it (Rossiter)
  • “Constitutionalism and the rule of law are cornerstones of the Constitution and reflect our country’s commitment to an orderly and civil society in which all are bound by the enduring rules, principles, and values of our Constitution as the supreme source of law and authority.” (Lalonde)
  • “(T)he rule of law refers to the regulation of the relationship between the state and individuals by pre-established and knowable laws.  The state, no less than the individuals it governs, must be subject to and obey the law. The state’s obligation to obey the law is central to the very existence of the rule of law.  Without this obligation, there would be no enforceable limit on the state’s power over individuals….” (Hitzig)
  • “The law in our society is supreme. No one – no politician – no government – no judge – no union – no citizen is above the law. We are all subject to the law. We do not get to pick and choose the laws we will observe and obey. Each of us must accept the rule of all laws, even if we have to hold our noses in complying with some of them.” (HEABC)
  • “The rule of law requires that (judicial) decisions be made by a court which is independent of any influence or pressure by the executive and legislative branches of government” (R v Campbell)
  • “(F)irst, that he rule of law provides that the law is supreme over the acts of both government and private persons.  There is, in short, one law for all.  Second, … the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order… A third aspect of the rule of law is that the exercise of all public power must find its ultimate source in a legal rule.  Put another way, the relationship between the state and the individual must be regulated by law.” (Re References re Secession of Quebec)

REFERENCES:

  • Bingham, Tom, The Rule of Law (London: Penguin Books, 2010), page 8.
  • Duhaime, Lloyd, Goodness Doesn’t Just Happen
  • Duhaime, Lloyd, On The Origins of Law
  • Frens v. State, 831 NYS 2d 347 (2006)
  • HEABC v Facilities Subsector Bargaining Association, 2004 BCSC 603
  • Hitzig v R, 231 DLR 4th 104 (ONCA, 2003)
  • Lalonde v Ontario 2001 208 DLR 4th 577 (ONCA)
  • References re French Language Rights of Accused in Saskatchewan Criminal Proceedings, 1987 5 WWR 577 (SKCA)
  • Reference re Secession of Quebec, [1998] 2 SCR 217
  • R v Campbell, [1995] 2 WWR 469 (ABQB)
  • Rossiter v PEI, 139 DLR 4th 87  (1996)
  • U.N. Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General. (S/2004/616), August 23, 2004 [http://www.unrol.org/files/2004%20report.pdf].