Reasonable Restrictions and the Categorical Approach

In one line

India asks whether a restriction is reasonable; the United States asks whether the speech is in a category the First Amendment does not protect, and if it is not, applies a level of scrutiny.

In the wording a student can write in an exam: the Indian method is a limitation clause applied by a reasonableness test, asking whether a restriction falls within an enumerated ground and is reasonable; the American method is categorical, excluding certain classes of expression from the coverage of the First Amendment altogether and applying tiers of scrutiny to what remains.

The Indian method

The test of reasonableness. There is no abstract standard. The Court asks about the nature of the right, the mischief the restriction addresses, the extent and urgency of the evil, the proportion of the imposition, and the prevailing conditions. Both substantive and procedural reasonableness are examined, so a restriction may fail because the procedure for imposing it is arbitrary even if the object is good.

A proximate connection. The restriction must have a real and proximate connection with the ground relied on, not a far-fetched or remote one.

The least restrictive alternative has become part of the enquiry, and the four-part proportionality standard, legitimate goal, rational connection, necessity and balancing, is now applied in the rights cases.

Clauses 19(2) to 19(6) each list their own grounds, so the freedom of assembly has different limits from the freedom of trade, and an answer that treats article 19(2) as governing the whole of article 19 is wrong.

Severability and reading down are available: article 13 voids a law only to the extent of the inconsistency, and a court will read a provision narrowly to save it, though Shreya Singhal refused to do so where the vice was vagueness.

The American method

Step one: is the speech covered at all? A small number of categories are outside First Amendment protection, and the Court has said the categories are historically defined rather than open to expansion by balancing costs against benefits. The recognised ones include incitement to imminent lawless action, true threats, fighting words, obscenity, child pornography, defamation and speech integral to criminal conduct.

Step two: if it is covered, what kind of regulation is it?

A content-based regulation, which turns on what is said, is presumptively invalid and must survive strict scrutiny: the government must show that it is necessary to serve a compelling interest and is narrowly tailored to that end.

A content-neutral regulation of the time, place and manner of expression must be narrowly tailored to serve a significant governmental interest and must leave open ample alternative channels.

Why categories rather than balancing. Because a balancing test in each case gives no notice, invites the suppression of unpopular speech at the moment it matters most, and lets the value of the speech be weighed by the officials it criticises. The category approach fixes the answer in advance.