Freedom Of Speech Vs. Hate Speech - Where Should The Line Be Drawn
Author: LawSphereX
Category: General Law
Published:
Updated:
FREEDOM OF SPEECH VS. HATE SPEECH: WHERE
SHOULD THE LINE BE DRAWN?
Ritu Chaudhary, Panjab University, Regional Centre Hoshiarpur
ABSTRACT
This study put emphasizes on the difference between free speech and hate speech. The basic difference is that freedom of speech has been mentioned in constitution of India and various other conventions Worldwide and there are various legal pronouncements that highlights and limits the scope of free speech which also includes hate speech which incites hate, violence etc. against a person or group of individual. Free speech a cornerstone of democratic societies enables individuals to express themselves. The rise of hate speech has challenged the boundaries of this fundamental right and raising critical questions about the balance between protecting expression and preventing harm.
Introduction
According to Constitution of India freedom of speech has been enshrined under article 19 where it has been mentioned that “all citizens shall have the right to freedom of speech and expression. This right to freedom of speech and expression has been recognized as a Human right in the Universal Declaration of Human Rights. This right includes right to express one’s opinions, ideas and beliefs without the fear of government censorship, retaliation or legal penalty. This right basically includes-
1. Right to express opinions.
2. Freedom of press.
3. Artistic expressions.
4. Political speech.
5. Symbolic speech.
6. Academic freedom.
In the case of Damyanti Naranga v. Union of India, the Supreme Court ruled that the right to freedom of speech and expression includes-
1. The freedom to propagate ideas.
2. The freedom to circulate ideas.
3. The right to know news and information about the government.
4. The right to express opinions through word of mouth, writing, printing, painting and other
modes. Not only Indian constitution but Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and The European Convention on Human Rights and Fundamental Freedoms guarantee Freedom of speech.
Now let us put light on the freedom of speech in digital era of 21st century, as we know that digital era has widely affected the society be it socially, politically, geographically or be it constitutionally. So the freedoms and rights guaranteed under the various acts have also been affected so as the freedom of speech. Freedom of speech in the digital era has taken different dimension and shape. Digital era has expanded the access to expression because digital platforms enable people to communicate worldwide and that too in seconds. It has also given a chance to express and put the voices to forefront of the marginalized and backwards. In the digital era freedom of speech has been more accessible and more vulnerable than before. So for combating with this we need to collaborate with governments, tech companies and users to ensure positive and equitable space for everyone.
In the case of Google India v. Visaka Industries, the issue raised was that if the platforms like Google are liable for defamatory content posted by users. So here in this case the Supreme Court held that intermediaries have certain responsibilities but they cannot be held liable if they comply with the legal obligations such as removing unlawful content when notified. There are various cases in which court have balanced between the freedom of speech with public safety, privacy and prevention of harm. This says a lot about judiciary that they have been working hard to prevent any loss of rights of people along with the privacy and security.
Freedom of speech is a fundamental right but as we know that no fundamental right is absolute in nature because we have to protect the rights of the society along with that we have to promote them to fulfil their duty of protecting others right while enjoying their freedom . Many legal systems impose various limitations to balance individual freedom with public safety, order and other’s privacy. Common limitations imposed are-
1. Incitement to violence
2. Hate speech
3. Defamation
4. Obscenity
5. Threats and Harassments
6. National security
7. False advertising
8. Public order and Safety
9. Contempt of court
10. Copyright and Intellectual Property
There is a jurisprudential essence of why we impose limitations on fundamental rights. Jurisprudence says that we must balance between the rights of the society and the rights of the individual. So by imposing limitations on freedom of speech one is protecting the national security, public security, privacy, integration and social discord. There is a saying of Mahatma Gandhi “FREEDOM OF SPEECH AND FREEDOM OF THE PRESS ARE TWO PILLARS OF DEMOCRACY. WITHOUT THEM, THE WHOLE FOUNDATION OF DEMOCRACY WOULD BE SHAKEN. ” But as we know that he was supporter of non-violence and truth so keeping that in mind the limitations imposed seems right somehow. Now let us highlight what basically is hate speech. Oxford dictionary defines hate speech as “hate speech is an expression likely to cause offense or distress to individuals based on their association with a particular group.
” The Cambridge Dictionary defines hate speech as “public speech that expresses hate or encourages violence toward a person or group based on attributes such as race, religion, sex, or sexual orientation. ” Legal definition of hate speech varies from country to country and case to case. Hate speech basically includes communication in any form that belittles, threatens, or discriminate against individual or group.
It can be against sex, religion, gender, age, disability, nationality or caste or social class. Hate speech can be expressed verbally, in writing, through images or any other form of communication. Balancing between free speech and hate speech. Worldwide situation Article 10 of European Convention on Human Rights protects freedom of expression but allows restrictions for public safety, disorder, protection of other’s right. Jurists like Justice Oliver Wendell Holmes introduced the ‘clear and present danger’ test in Schenck v. United States. The test says hate speech is permissible unless it incites immediate harm or violence. Justice Louis Brandeis emphasized that the remedy for harmful speech is more speech and not enforced silence.
European Court of Human Rights allows restrictions on hate speech under Article 17 of the European Convention, which prohibits actions aimed at destroying others rights. In the cases like Erbakan v. Turkey the ECHR upheld limits on political speech inciting hatred against religious groups. Under the Canadian charter of rights and freedoms, hate speech laws restrict expressions that promote hatred against identifiable groups upheld in the case like R. v. Keegstra. John Stuart mill advocated free speech unless it causes direct harm to others. This has influenced many legal systems. Jeremy Waldron argues in the ‘THE HARM IN HATE SPEECH’ that hate speech undermines the dignity of individual and disrupts public order, justifying legal limitations. Ronald Dworkin defended robust free speech protections, asserting that restrictions on hate speech risk suppressing dissent and minority views.
India’s situation In India hate speech addressed through a combination of constitutional provisions, statutory laws and judicial interpretations aimed at balancing the right freedom of expression with the need to maintain public order and communal harmony. Constitutional provisions like article 19 also says that this right it not absolute in nature and is subject to reasonable restrictions which allows the state to impose restrictions in the interest of public order, security, national integration, morality, or in relation to contempt of court. Indian Penal Code also criminalize hate speech in sections like 153A, 295A and 505. Judiciary has played a vital role in interpreting hate speech laws. The Supreme Court in 2014 dismissed a public interest litigation seeking intervention to curb hate speeches. Justice R. M.
Lodha stated “we cannot curtail fundamental rights of people, it is precious right guaranteed by constitution”. In the case of Pravasi Bhalai Sangathan v. Union of India the Supreme Court stated that hate speech can lead to incitement of violence and discrimination. It emphasized the responsibility of authorities to prevent hate speech while upholding constitutional values. In the case of Ramesh v. Union of India the court said that the speech which incite violence or hatred is regarded as hate speech. There is another case of Bilai Ahmed Kloo v. State of Andhra Pradesh where the court clarified that hate speech must have a direct and proximate connection to public disorder. In case of Amish Devgan v. Union of India the court said that hate speech includes any expression that incites hatred against a community, religion, or group even if unintended.
It stressed the need to protect individual dignity and societal harmony. How to balance between free speech and hate speech? Balancing free speech and hate speech requires a nuanced approach that respects individual freedoms while protecting communities from harm. How –
1. Understand the distinction
2. Legal frameworks should be clear
3. Promoting counter speech
4. Educate and raise awareness
The goal is to foster a society where free expression thrives without enabling harm. Achieving this balance requires continuous dialogue, legal system, and active participation. As there is a saying by Angela Merkel “when words, hatred, or violence spread, the role of every democrat is to counteract it, unequivocally and decisively”. There is a case Khushboo v. Kannialmmal where the Supreme Court said that free speech should be protected unless it directly leads to public disorder or incitement. It emphasized the importance of protecting honest opinion and artistic freedom. Obstacles in balancing free speech and hate speech There are various obstacles and stones that come in the pathway while enforcing free speech laws and preventing hate speech.
1. Diversity of country
2. Uncertain laws
3. No legal clarity
4. Unawareness amongst the people
5. No legal pronouncements that are not wage
Where should the line be drawn? There are various criteria through which one can see and determine whether the free speech is hate speech or not. These includes the intention of the party making the statement but in some cases just intention is not sufficient ground then the court will examine the impact of the statement and along with that surrounding circumstances of the case.
Basically an individual is free to speak unless and until it is violating other’s right and that speech is not impacting the society at all be it discriminating, causing violence or promoting hatred toward a particular individual or a group of people. Aspect Free speech Hate speech Define Free speech has been defined under Indian Constitution as right to express. Hate speech has also been included in Constitution of India Under article 19. Impact It has been given and protected so as to promote one’s right to express be it marginal or backward. It has its impact as promoting violence and inciting people. Protection It has been protected under various laws and conventions of various countries. It has not been protected anywhere. Purpose So that everyone’s voice is heard and should have an impact. It has been mentioned as a restriction because it promotes hate and violence.
Conclusion Free speech and hate speech exist in a delicate balance, where the value of open expression must harmonize with the need for respect and human dignity. While free speech is the cornerstone of democracy, fostering diversity of thoughts and progress, it is not without limits. Hate speech which seeks to demean, dehumanize or incite harm, undermines the very principle that free speech aims to uphold –equality and mutual respect. The challenge lies in creating a society where voices are empowered without enabling harm. To achieve this we must champion free expression responsibility and cultivate empathy. By striking thus balance we affirm the power of speech to unite rather than divide.
References
Mill, J.S. (2003). On liberty. Edited by John Gray. Oxford: Oxford University Press. Doyle, A. (2021). Free Speech and Why It Matters. Constable. Baxi, U. (2008). Speech and expression. Eastern book Company. https://en.wikipedia.org