Freedom of Speech in Three Constitutions

In one line

Three texts, three shapes: India states the freedom and then states eight grounds of restriction, the First Amendment states a prohibition with no exceptions at all, and Britain had no text until 1998.

In the wording a student can write in an exam: article 19(1)(a) guarantees to all citizens the right to freedom of speech and expression, subject under article 19(2) to reasonable restrictions imposed by law in the interests of eight enumerated matters; the First Amendment provides that Congress shall make no law abridging the freedom of speech, or of the press, with no textual exception; and the United Kingdom protects expression through article 10 of the Convention as given effect by the Human Rights Act 1998.

Article 19(1)(a) and 19(2)

The right is guaranteed to citizens only, which distinguishes it from articles 14 and 21.

Article 19(2) permits the State to make a law imposing reasonable restrictions on the exercise of the right in the interests of:

1. the sovereignty and integrity of India
2. the security of the State
3. friendly relations with foreign States
4. public order
5. decency or morality
6. contempt of court
7. defamation
8. incitement to an offence

The history matters. The clause as adopted in 1950 was shorter. The First Amendment of 1951 added public order, friendly relations with foreign States and incitement to an offence, and inserted the word "reasonable"; the Sixteenth Amendment of 1963 added the sovereignty and integrity of India. The additions were made in response to decisions of the Supreme Court which had struck down speech restrictions, so the clause records a dialogue between the Court and Parliament.

Three requirements. A restriction must be imposed by a law, must be reasonable, and must fall within one of the eight grounds. A restriction that is reasonable but not within a ground fails, and so does one within a ground that is unreasonable.

"In the interests of" is wider than "for the maintenance of", and the difference was deliberate, so a law with a proximate connection to the ground is enough.

The First Amendment

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.

Four points a comparativist should take from the text.

It is addressed to Congress, and reaches the States only through the Fourteenth Amendment.

There are no exceptions in the text. Everything is judicial.

Speech and press are separate words, which has produced an argument about whether the press has rights beyond those of a speaker, and the answer has broadly been that it does not.