Freedom of

Expression
{Constitution (Comparative) Law – Spring 2020
Prescribed readings

 1st Amendment US Constitution

 Article 19 of Pakistan’s Constitution

 New York Times v Sullivan

 Steve Heynman, “Righting the Balance”

 Pages: 3-7, 18-26, 63-64, 80-82

 Dennis v US
 Constitution of Islamic
Republic of Pakistan
“Article 19: Freedom of speech, etc.-Every citizen shall
have the right to freedom of speech and expression, and
there shall be freedom of the press, subject to any
reasonable restrictions imposed by law in the interest of
the glory of Islam or the integrity, security or defence of
Pakistan or any part thereof, friendly relations with foreign
States, public order, decency or morality, or in relation to
contempt of court, 1[commission of] or incitement to an
offence.”
 (Substantive) Contempt of court is further bolstered by
Article 204.
 Constitution of United
States
1st 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.”
 Religion and religious speech:

 Establishment clause
 Free exercise clause
 Expression:
 Free speech
 Exceptions: defamation, fighting words, obscenity, commercial
speech, Brandenburg test (incitement to violence & likely to cause
such action)
 Free press
 Peaceful assembly
 Right to file a petition (redress grievances)

1st Amendment (Cntd)
Exceptions to freedom of speech/expression:
 Forum (not all forums are public and can be regulated eg. class room,
airport etc)
 Prior restraint but only issue of security (national security/incitement to
violence)
 NY Times v Sullivan: show that speech will result in
inevitable/direct/immediate danger to the nation
 Defamation v absolute privilege (complete defense to defamation even
when statement is false)
 fighting words
 obscenity
 commercial speech (“Red bull gives you wings”. Warnings (on
(regulation of) cigarette ads deemed acceptable due to compelling state
interest.  free speech v social/state interests (Steve Heynman)
 Brandenburg test (incitement to violence & likely to cause such action)
 Leftist ideology:
 In Schenk v US, J Holmes upheld convictions of members of socialist
party; 1st amendment does ott protect speech threatening other social
interests/speech with tendency to cause social harm.
 Dennis v US: Gen Sec of Communist Party USA not protected; deemed
plot to overthrow government
 Freedom of Expression
 Classical libertarians:
 John Locke viewed as laying the foundation of 18th century
libertarian doctrine of political freedom of speech
 Linked to pivotal importance of human reason
 Cato:
 “Think what you would; speak what you thought”
 Essential element of natural liberty
 Barrier against government oppression
 Libel, if not narrowly tailored, could become tool for tyranny
 Madison’s draft of bill of rights divided into natural and
positive rights
 Considered freedom of speech essential natural right
 Holmes & Pound rejected natural rights theory
 Freedom of Expression
 Conflict of rights:
 Balancing of rights (external relation between rights)
 Internal relationships between rights
 Eg free speech is essential to political freedoms (foundation of
democracy)
 Link of rights to constitutional liberty
 Defamation
 Private parties (strict liability) v public officials
 NY Times v Sullivan
 Liability of defamatory statements concerning official conduct of
government officials
 Test: “clear and convincing evidence” that defendant acted with
“actual malice” or with “reckless” disregard of the truth
 Considered win for free speech (at expense of state interest). J
Brennan deemed free speech fundamental to political freedom
 Freedom of Expression
 Private hate speech & fighting words
 Automatically may fall within ambit of assault (criminal law)
& civil liability for causing emotional distress. Is there need
for constitutional protection?
 Apprehension of imminent attack
 Threats of future harm
 Public hate speech

 “Pamela’s Ordeal”
 Jake Baker’s story (artistic liberty) and email
correspondence (protected speech under 1st amend)