Sie sind auf Seite 1von 45

Freedom of expression being curbed on pretext of national

IKRAM JUNAIDI UPDATED May 29, 2016 08:32am

ISLAMABAD: At an event on Saturday, PPP Senator Farhatullah Babar said a new

model for democracy is forming in Pakistan, under which the steering of the vehicle
the government will be in the hands of a political personality, while the clutch
and accelerator will be controlled from the backseat. He said this vehicle would
definitely face a devastating accident.
Mr Babar was speaking at a Consultation on the Development in Freedom of Expression
in Pakistan, arranged by the Human Rights Commission of Pakistan.
He said this practice needed to end, and a parliamentary committee on national security
must be constituted to examine the civil-military disconnect.
A number of steps have been taken which were not in the knowledge of the politicians,
such as the Torkham border closure. Angoor Adda was handed over to another country,
but the minister of interior was not aware of it, he said.
He said mainly national security is used to curb freedom of expression.
Describing the experiences of many parliamentarians, Mr Babar said when the question
was raised about whether armed forces officers declare their assets with General
Headquarters (GHQ), they were told it was a matter of national security.
We asked if an inquiry report on the Kargil issue will ever be made public, but again the
same reply was given. A number of questions were rejected by the chamber referring to
senate chairman office. Again the chamber did not give an answer to a question about a
person killed in NAB custody, saying it was not a matter of public interest. Due to which,
a book titled Killed in Chamber was published, he said.
Right to information (RTI) laws were made in provinces because armed forces are a
federal subject. But the federal government has not approved the RTI bill, despite 17
cabinet meetings, he said.

The Nawaz League MNA Ramesh Kumar Vanwani said the RTI bill could not be passed
during the PPPs tenure, and this was also the case with the PML-N government.
The media criticises why the drone attack was [carried out] in Balochistan, but it does
not say how Taliban leaders are found in Pakistan, he said.
MQM MNA Farooq Sattar said political parties should have taken measures in 2008 to
ensure the freedom of expression, and because of their negligence the heads of all the
important political parties were facing problems.
Standing committees have become dysfunctional. Altaf Hussains case is the only case
in history in which the court, which protects basic rights, has suspended a right to
Supreme Court advocate Abid Saqi said that even judges do not understand issues. He
said they had capacity issues, and there were no arrangements to hold refresher courses
for judges.
Pakistan Bar Council member Qalb-i-Hassan said the army and the judiciary were
working hand in hand. He said one violates the law, and the other validates it.
Journalist Hamid Mir pointed out that while the recovery of Rs730 million from a
personality in Balochistan became huge news, the media did not discuss the recovery of
Rs13 billion from a brigadier.
He added: Journalists of Fata and Balochistan are in vulnerable condition, and they are
forced by an agency to work for them.
Asma Shirazi said that advertisements worth Rs8 billion were given to media houses,
making it impossible to speak out against the federal and Punjab governments. She added
that the Pakistan Electronic Media Regulatory Authority (Pemra) had become a tool used
to control the media.
Lawyer and activist Asma Jahangir, who moderated the event, read a resolution stating
that Article 19 of the Constitution should be revisited, a standing committee on the
protection of freedom of speech should be made, an alternative mechanism should be
adopted to get rating of media houses and Pemras decisions need to be challenged.
Since the event took place on May 28, Kishwar Naheed recited a poem about her visit to
Chagai to mark the occasion. In 1998, Pakistan officially became a nuclear power after a
successful test in Chagai, Balochistan. In the poem, she recounts a conversation with a
Published in Dawn, May 29th, 2016

Free speech

A.G. NOORANI PUBLISHED Jun 13, 2015 02:08am


The writer is an author and a lawyer based in Mumbai.

ON May 29, the information and broadcasting ministry stripped away from Indias
public broadcaster, the Prasar Bharati, all pretence to autonomy. It appointed a new
director general of news, and instructed her to report directly to the ministry. The
DG serves both All India Radio (AIR) and Doordarshan TV.
In 1990 was enacted the Prasar Bharati (Broadcasting Corporation of India) Act, 1990.
But the requisite notification for bringing it in to force was issued seven years later on
July 22 1997.
It is not overburdened with credibility. To begin with, Section 13 of the act sets up a
committee of 22 MPs to oversee that the corporation discharges its functions in
accordance with the provisions of this act and submit a report thereon to parliament.
Is there any autonomous corporation in this sensitive realm in any democracy which has
MPs breathing down its neck to oversee it? The chilling, inhibitive effect of the very
existence of such a provision is obvious. Its implementation will have worse
The Prasar Bharati board consists of a chairman, an executive member, two others to deal
with finance and personnel, six part-time members, including DGs of AIR and
Doordarshan as ex-officio members and, indefensibly, a nominee of the information and
broadcasting ministry, plus two elected nominees of the employees. They are appointed

by the president on the recommendation of a panel consisting of the president, the

chairman of the Rajya Sabha, and the chairman of the Press Council. The executive
member will be the chief executive of the corporation.

The airwaves are public property held in trust.

Shortly before the act came into force, the Supreme Court of India gave a landmark
ruling on Feb 9, 1995 which renders the act unconstitutional in two concurring
One said: The central government shall take immediate steps to establish an independent
autonomous public authority representative of all sections and interests in society to
control and regulate the use of airwaves.
The other amplified: The broadcasting media should be under the control of the public
as distinct from government. This is the command implicit in Article 19(1)(a) [the
fundamental right to free speech]. It should be operated by a public statutory corporation
or corporations, as the case may be, whose constitution and composition must be such as
to ensure its/their impartiality in political, economic and social matters and on all other
public issues.
It/they must be required by law to present news, views and opinions in a balanced way
ensuring pluralism and diversity of opinions and views. It/they must provide equal access
to all the citizens and groups to avail of the medium.
Both judgements agreed on the major premises underlying the order. Since the
airwaves/frequencies are a public property and are also limited, they have to be used in
the best interest of society and this can be done either by a central authority by
establishing its own broadcasting network or regulating the grant of licences to other
agencies, including the private agencies.
...[T]he electronic media is the most powerful media both because of its audio-visual
impact and its widest reach covering the section of society where the print media does not
reach. The right to use the airwaves and the content of the programmes, therefore, needs

regulation for balancing it and as well as to prevent monopoly of information and views
relayed, which is a potential danger flowing from concentration of the right to
broadcast/telecast in the hands either of a central agency or of few private affluent
That is why the need to have a central agency representative of all sections of society
free from control both of the government and the dominant influential sections of
The court also added, This is particularly so in a country where the majority of the
population is illiterate. When, therefore, the electronic media is controlled by one central
agency or few private agencies of the rich, there is a need to have a central agency ...
representing all sections of the society. Hence to have a representative central agency to
ensure the viewers right to be informed adequately and truthfully is a part of the right of
the viewers under Article 19(1)(a). The citizens right to a truly autonomous public
broadcaster follows inexorably from his right to free speech.
Thus private TV channels also owe a legal duty to maintain a fair balance. The airwaves
are public property held in trust, as the US Supreme Court held in the Red Lion case in
1969. It is the right of viewers and listeners, not the right of the broadcasters which is
paramount. That right is legally enforceable against private broadcasters as much as
against the state broadcasting corporation.
The writer is an author and a lawyer based in Mumbai.















Freedom of expression




RECENTLY, disturbances erupted throughout the Muslim world against the film
Innocence of Muslims which was deliberately made to hurt the religious feelings of
US President Obama refused to ban it or take any action against its makers citing the
American law on freedom of expression. Obama said that as long as this law exists in
America, he cannot take any action against the producers. Also, it is election time in
America and President Obamas opponents can exploit any slight mistake on his part to
reduce his chances of being re-elected.
This should be understood and appreciated. It is what it is. Of course the violence against
Americans has to be strongly condemned. But the situation has given rise to an important
question: can such a right be absolute as American law makes it out to be? Should it have
any limits or not? According to this law, there is no limit and religious sentiments do not
count. Even outright and wilful blasphemy cannot be barred or punished.
For example, in a number of New York subway stations posters were recently put up
which said, In any war between the civilised man and the savage, support the civilised
man. Support Israel. Defeat Jihad. The relevant court also upheld the ad as permissible
according to American law.
Rick Jacobs, a Jewish scholar, commented on the ad thus: What is the message of this
ad, directed at the multitude of subway riders of countless faiths and ethnicities? Mr
Jacobs then continues, By using the term jihad in the context of war against savages,
the ad paints Islam as inherently violent, evil and bent on overthrowing the Western
democracies and their key ally in the Middle East , Israel.
This ad implicates all Muslims as wagers of jihad in the sense of war, though hardly a
handful of extremists indulge in this and millions of other Muslims take jihad as a
spiritual struggle against selfish desires, greed and lust for power. But it is quite
legitimate according to American law. Interestingly, an Arab activist who spray-painted
one of the posters was arrested. Perhaps we have to understand why such a law was made
by Americas founders.
Those who came to America after its discovery were mostly persecuted Protestants from
all over Europe. The Catholic Church was persecuting them for defying its authority.

They did not want its repeat in America and hence they wanted a law which allowed them
absolute freedom from all such persecution in the name of religion. And so this law was
There is another factor which must also be taken into account to understand the American
law. At the time when this law was made America had mostly Protestant Christians and
no other religious groups had yet migrated to the country in significant numbers. In their
eyes this law was not only justified but greatly needed so that no one used religion for the
persecution of others. Had there been a plurality of religions as is the case today, such a
law perhaps would not have been enacted. This law gives full freedom to any individual
to defy, to blaspheme or to ridicule ones own or others religions.
First we must understand what freedom of religion means. Religion is a system of belief
and belief is rooted in ones conscience. In any democracy, or even non-democratic
system, freedom of conscience is a very important freedom which cannot be tampered
with. The Quran also greatly respects this freedom of conscience when it says There is
no compulsion in religion. (2:256).
This right to freedom of conscience or religion can certainly allow a serious critique of
certain religious or cultural practices as long as the motive is philosophical.
Yet this freedom cannot allow ridiculing or attacking other religious belief systems just to
humiliate ones opponent, either by a powerful majority or minority. So in all multireligious and multicultural societies the freedom of expression should be qualified by
other laws not to offend others religious feelings. If a law on freedom of expression is
not so qualified, it may lead to serious law and order situations in multi-religious
It also needs to be seen in a political context as to which religious group or part thereof
wants to misuse this freedom to attack religious beliefs or practices of other religious
groups for political purposes.
The same situation arose when Salman Rushdie published his novel The Satanic Verses
and the West defended it in the name of freedom of expression. This publication also led
to violent demonstrations in the Muslim world and threats to Rushdies life. In multireligious societies and with political power struggles between different religious
communities, such laws have to be duly qualified through other laws. But such laws
should not curb genuine freedom of expression and that is always for the courts to decide.

Freedom of expression, then, is a very delicate matter, not to be taken lightly on either
side. The law on freedom of expression has to be quite balanced. While it should allow
genuine freedom of expression it should not be made absolute so as to enable certain
mischievous groups to attack others beliefs.
The situation in America has now greatly changed. It is no longer a uni-religious or
mono-cultural society. Perhaps the earlier America modifies its law the better it would be
for that country.
The writer is an Islamic scholar who also heads the Centre for Study of Society &
Secularism, Mumbai.

THE conditional restoration of Syed Haider Kashan Gilani, a

PhD student at the University of Agriculture, Faisalabad, has
brought some comfort. The student was forever rusticated from
the university by the disciplinary advisory committee for a
Facebook post where he criticised the university administration
in connection with Kissan Mela organised by it.
The legal ground for the students rustication is still unclear. The
student has stated in his now deleted Facebook post that the Kissan
Mela failed to truly reflect rural life and that it was unbecoming of
teachers to be attending it instead of their classes. It was a mere
expression of opinion.
It is not clear how the above-mentioned comment amounts to
misconduct and indiscipline. In a knee-jerk reaction, the
university administration rusticated the student, thereby breaching
his right to freedom of expression enshrined in Article 19 of the

The peoples right to express their opinion about issues of public

concern should be vigorously protected.
Saad Khosa

The importance of a free press

Alan Rusbridger
In his presentation to the Leveson inquiry, the Guardian editor explains why journalistic
freedom remains a fundamental right

Carl Bernstein, who with Bob Woodward exposed Watergate in 1972,

discusses the phone-hacking scandal at a Guardian media event last month.
Photograph: Teri Pengilley

Thursday 6 October 2011 15.40 BSTFirst published on Thursday 6 October

2011 15.40 BST

View more sharing options


Anyone wanting to know why a free press matters could do worse than study
the story of how the phone-hacking scandal at the News of the World was
uncovered looking both at the dogs that barked, and those that didn't.
It took almost exactly two years for the story to unravel. For the first 18
months not very much happened. The police added two more cursory
investigations to their original inadequate probe in 2006. Parliament did its
best, and some individual MPs did very well indeed. But it struggled to flush
out the truth. Politicians, from prime ministers down, have since admitted to
everything from pragmatism to fear as an explanation for their inaction or
general complicity. The regulator produced a lamentable report which
betrayed an inability, or lack of will, in getting at the truth. And, with some
notable exceptions, much of the media showed little initial inclination to shine
a bright light on a particularly glaring abuse of power. The normal checks and
balances in civil society didn't work.

Sign up to the new-look Media Briefing: bigger, better,

Read more
Those 18 months were telling because the only reason the full story came out
at all was down to a free press. I'll be immodest enough to single out Nick
Davies and the Guardian as the single most important force in ensuring that
so much was eventually uncovered. Other journalists, in time, joined in. And
what these reporters did peel away at the evidence; accumulate facts; ask
questions; cultivate sources; look at documents; talk to people who were
involved; win trust; ignore threats; verify information; report accurately is
as good an illustration as you could have for the importance of a free press.
It's for others to answer the question about the dogs that didn't bark: why
other institutions in our society didn't function effectively over 18 months. But
the saga tells you much about the need for an institution, an estate, a
profession, a trade we'll probably never quite agree what to call it that
exists independently of the other main centres of power in society.
The fourth estate power without responsibility

The press is sometimes called the fourth estate. That's probably too grandiose
a concept for most journalists' tastes but it does suggest an important,
coherent and independent force in society. That "apartness" is crucial. The

press does not share the same aims as government, the legislature, the
executive, religion or commerce. It is, or should be, an outsider.
Stanley Baldwin did not intend it as a compliment when he said of newspapers
in 1931 that they had "power without responsibility." But, in fact, that lack of
responsibility is one of the important respects in which the press is
different. Of course, the press must be responsible for its own standards and
ethics. But it's not the job of journalists to run things: they are literally without
responsibility. They don't have to respond to a party whip, make the
compromises necessary in politics or answer to shareholders. They are not
bound by the confidentiality agreements that bind others. They are careless of
causing inconvenience or embarrassment. They don't have to win votes. They
can write things about the economy, say, or the environment which may
need saying but which are unsayable by politicians. They come from a
different place.
This freedom is a fundamental one. There are plenty of writers, jurists and
political philosophers who consider it the first and foremost of our freedoms.
The American first amendment is probably the most robust expression and
enshrinement of the primacy of free speech in an open society.
So that's the ideal. But it's worth asking, in a British context, how "free" is our
press? And, even more fundamentally, what is "the press?"
How free?

Many journalists and lawyers would argue that the press in the UK is
relatively, but only relatively, free. It is not clear that the situation has
improved notably since Harold Evans, unable to publish the full truth about
the thalidomide scandal, bemoaned what he called Britain's "half-free press"
in the mid 1970s. A 2009 Index/PEN commission into our defamation laws
concluded: "The law as it stands is hindering the free exchange of ideas and
information." The 2011 Global Press Freedom Rankings placed the UK in
joint 26th place.
Another measure of freedom is whether reporters are genuinely free to follow
any story they wish regardless of proprietorial, editorial or commercial
pressures or influence.

Yet another measure of freedom is economic freedom. It is no secret that

newspapers face an existential threat due to the combination of technical and
economic factors. Digital disruption comes in many forms: it sucks revenues
out of print. It challenges the very idea of what a "newspaper" is, or what
journalism does. The sort of (expensive and time-consuming) journalism Nick
Davies does is threatened in many news organisations by the quite
understandable need to cut costs.
What is "The Press?"

Until recently it would have been self-evident what "the press" was. The 19479 Royal Commission on the press described it as "the chief agency for
instructing the public on the main issues of the day the main source from
which information, discussion and advocacy reach the public."
Whether or not "the press" remains the chief agency of instruction today, it
would be very rare to find a "newspaper" that existed only as a printed
product. Increasingly "the press" encompasses digital forms of journalism as
well. That will include moving images, data and sound, often published
around the clock on a variety of platforms.
The further it moves from its traditional and historic form the more it sails
into uncharted, converged waters where it meets with broadcasters coming
from one direction and so-called amateur creators of content from another.
Countless blogs, platforms and websites reproduce some of the functions of
newspapers, though very few aspire to replicate the entire bundled form of a
newspaper, if only because the economic model is so unpromising.
This digital disaggregation, or fragmentation, of a newspaper has, of course,
severe economic implications. But it also brings into question the hitherto
distinct role of "the press". Many of these new digital forms of information
sharing are based on a different idea of what media is, or who should take part
in it. This revolution in technology considered by many the most significant
since the invention of moveable type in the 15th century allows virtually
anyone to create and share their news and thoughts. So 21st-century media, in
many respects, marks a sharp break with what went before a world in which
a relatively restricted group of people benefited from having a platform to

address a mass audience. Gone are the days when the freedom of the press is
limited to those who owned one.
The courts are already grappling with the implications for enforcing rules of
one jurisdiction on an internationallyavailable medium which may be based
elsewhere. The British footballer impotently trying to protect his privacy in
London is part of the same tide that allows a digital citizen of Syria or
Zimbabwe to exploit the free-press jurisdiction of other countries in order to
publish necessary truths.
An imperfect art

In London last week, Carl Bernstein, the legendary co-author of Watergate,

talked about the parallels between the story on which he and Bob Woodward
worked in 1972 and the work of Nick Davies nearly 40 years later. He used the
phrase "the best obtainable version of truth" to describe what journalists, at
their best, seek to achieve.
Bernstein's definition combines a nobility of ambition with the implication
that journalism, by its very nature, may often fall short. We shouldn't
overclaim for what a free press can do. My favourite description of journalism
was coined by the late sage of the Washington press corps, David Broder. He
described a newspaper as:
" a partial, hasty, incomplete, inevitably somewhat flawed and inaccurate
rendering of some of the things we have heard about in the past 24 hours
distorted, despite our best efforts to eliminate gross bias by the very
process of compression that makes it possible for you to lift it from the
doorstep and read it in about an hour. If we labelled the product accurately,
then we could immediately add: 'But it's the best we could do under the
circumstances, and we will be back tomorrow, with a corrected and updated
But the imperfections of the press are not the point when considering its
freedom. A free press is not there for the benefit of a group called journalists.
It's primarily there for the benefit of ordinary citizens. The freedoms belong to
them freely to receive reliable and timely information about their society. A
free press is part of a larger right of free expression something to be

jealously preserved and guarded, regardless of the abuses of those freedoms

by, or on behalf of, a small number of people calling themselves journalists.
A battle never won

We meet at a time when, for the first time since the Enlightenment, it's
possible to imagine societies towns, cities, and even countries without any
agreed or verifiable forms of the truth. As journalists we would like it to be
self-evident that what we do is as crucial to democracy as a clean water supply
or a fire service. That surveys show that this is not a widely held view ought to
be a matter for self-reflection.
Since Watergate journalists often like to cite big campaigning investigations to
demonstrate why what we do matters. It's we, the free press, who exposed
phone-hacking, MPs expenses, illegal rendition, the truth about the death of
Ian Tomlinson, match-fixing in sport, World Cup votes for sale, chicanery in
the arms trade, cash for questions and so on.
This work of investigation is, indeed, vital evidence of the importance of the
free press. As vital is the institutional muscle of the press that stands behind a
reporter engaged in this kind of work. Reporters need to know that they will
be protected from the threats and immense costs that are often involved when
people seek to stop daylight being thrown on their affairs. Our Moscow
correspondent, for example, could not be free to work in Russia without the
solidity of the Guardian behind him. The widespread defence of the sanctity of
journalistic sources when our reporter, Amelia Hill, was recently threatened
with the Official Secrets Actwas an example of the institutional strength of the
press as a whole.
But there is a quieter, less glamorous side to our trade which is also vital, and
which is not easily replicated by social media or bloggers. It is the simple craft
of reporting: recording things; asking questions; being an observer; giving
context. It's sitting in a magistrates' court reporting on the daily tide of crime
cases the community's witness to the process of justice. It's being on the
front line in Libya, trying to sift conflicting propaganda from the reality. It's
reporting the rival arguments over climate change and helping the public to
evaluate where the truth lies.

Totalitarian governments can never allow a free press. Our own relative
freedom has been fought for over 400 years, and there can never be a moment
when freedom can be considered "won". When people talk about "licensing"
journalists or newspapers the instinct should be to refer them to history. Read
about how licensing of the press in Britain was abolished in 1695. Read about
how Wilkes, Cobbett, Locke, Milton, Mill, Junius and countless anonymous
writers, lawyers and printers argued and battled for the comparative freedoms
the press in Britain enjoys. Remember how the freedoms won here became a
model for much of the rest of the world. And be conscious how the world still
watches us to see how we protect those freedoms.


The First Amendment to the U.S. Constitution, says that
"Congress shall make no law....abridging (limiting) the
freedom of speech, or of the press..." Freedom of speech is
the liberty to speak openly without fear of government
restraint. It is closely linked to freedom of the press because
this freedom includes both the right to speak and the right
to be heard. In the United States, both the freedom of
speech and freedom of press are commonly called freedom
of expression.

Freedom of Speech
Why is freedom of speech so solidly entrenched in our
constitutional law, and why is it so widely embraced by the
general public? Over the years many philosophers,
historians, legal scholars and judges have offered
theoretical justifications for strong protection of freedom of
speech, and in these justifications we may also find
explanatory clues.
The First Amendment's protection of speech and expression
is central to the concept of American political system. There
is a direct link between freedom of speech and vibrant
democracy. Free speech is an indispensable tool of selfgovernance in a democratic society. It enables people to
obtain information from a diversity of sources, make

decisions, and communicate those decisions to the

government. Beyond the political purpose of free speech,
the First Amendment provides American people with a
"marketplace of ideas." Rather than having the government
establish and dictate the truth, freedom of speech enables
the truth to emerge from diverse opinions. Concurring
in Whitney v. California (1927), Justice Louis Brandeis wrote
that "freedom to think as you will and to speak as you think
are means indispensable to the discovery and spread of
political truth."
On a communal level, free speech facilitates majority rule. It
is through talking that we encourage consensus, that we
form a collective will. Whether the answers we reach are
wise or foolish, free speech helps us ensure that the
answers usually conform to what most people think.
Americans who are optimists (and optimism is a
actually improves our political decision-making. Just as
Americans generally believe in free markets in economic
matters, they generally believe in free markets when it
comes to ideas, and this includes politics. In the long run the
best test of intelligent political policy is its power to gain
acceptance at the ballot box.
On an individual level, speech is a means of participation,
the vehicle through which individuals debate the issues of
the day, cast their votes, and actively join in the processes
of decision-making that shape the polity. Free speech serves
the individuals right to join the political fray, to stand up
and be counted, to be an active player in the democracy, not
a passive spectator.
Freedom of speech is also an essential contributor to the
American belief in government confined by a system of
checks and balances, operating as a restraint on tyranny,
corruption and ineptitude. For much of the worlds history,
governments, following the impulse described by Justice
Holmes, have presumed to play the role of benevolent but
firm censor, on the theory that the wise governance of men
proceeds from the wise governance of their opinions. But
the United States was founded on the more cantankerous

revolutionary principles of John Locke, who taught that

under the social compact sovereignty always rests with the
people, who never surrender their natural right to protest,
or even revolt, when the state exceeds the limits of
legitimate authority. Speech is thus a means of "peoplepower," through which the people may ferret out corruption
and discourage tyrannical excesses.
Counter-intuitively, influential American voices have also
often argued that robust protection of freedom of
speech, including
revolution, actually works to make the country more stable,
increasing rather than decreasing our ability to maintain law
and order. Again the words of Justice Brandeis in Whitney v.
California are especially resonant, with his admonition that
the framers of the Constitution "knew that order cannot be
secured merely through fear of punishment for its infraction;
that it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression
breeds hate; that hate menaces stable government; that the
path of safety lies in the opportunity to discuss freely
supposed grievances and proposed remedies; and that the
fitting remedy for evil counsels is good ones." If a society as
wide-open and pluralistic as America is not to explode from
festering tensions and conflicts, there must be valves
through which citizens with discontent may blow off steam.
In America we have come to accept the wisdom that
openness fosters resiliency, that peaceful protest displaces
more violence than it triggers, and that free debate
dissipates more hate than it stirs.
The link between speech and democracy certainly provides
some explanation for the American veneration of free
speech, but not an entirely satisfying or complete one. For
there are many flourishing democracies in the world, but few
of them have adopted either the constitutional law or the
cultural traditions that support free speech as expansively
as America does. Moreover, much of the vast protection we
provide to expression in America seems to bear no obvious
connection to politics or the democratic process at all.
Additional explanation is required.

Probably the most celebrated attempt at explanation is the

"marketplace of ideas" metaphor, a notion that is most
in Abrams, in which he argued that "the best test of truth is
the power of the thought to get itself accepted in the
competition of the market." The marketplace of ideas
metaphor does not posit that truth will emerge from the free
trade in ideas, at least not instantly. That would be asking
too much. It merely posits that free trade in ideas is the
best test of truth, in much the same way that those who
believe in laissez-faire economic theory argue that over the
long haul free economic markets are superior to commandand-control
marketplace of ideas metaphor stems in no small part from
"constitutional faith" that, given long enough, good will
conquer evil. As long as this optimism is not blind naivet,
but is rather a motive force that encourages us to keep the
faith in the long view of history, it can be a self-fulfilling
prophecy. Just as we often have nothing to fear but fear,
hope is often our best hope. Humanity may be fallible, and
truth illusive, but the hope of humanity lies in its faith in
progress. The marketplace metaphor reminds us to take the
long view. Americans like to believe, and largely dobelieve,
that truth has a stubborn and incorrigible persistence. Cut
down again and again, truth will still not be extinguished.
Truth will out, it will be rediscovered and rejuvenated. It will
The connection of freedom of speech to self-governance and
the appeal of the marketplace of ideas metaphor still,
however, do not tell it all. Freedom of speech is linked not
merely to such grandiose ends as the service of the
democracy or the search for truth. Freedom of speech has
value on a more personal and individual level. Freedom of
speech is part of the human personality itself, a value
intimately intertwined with human autonomy and dignity. In
the words of Justice Thurgood Marshall in the 1974
case Procunier v. Martinez, "The First Amendment serves not
only the needs of the polity but also those of the human
spirit a spirit that demands self-expression."

Many Americans embrace freedom of speech for the same

reasons they embrace other aspects of individualism.
Freedom of speech is the right to defiantly, robustly and
irreverently speak ones mind just because it is ones mind.
Freedom of speech is thus bonded in special and unique
ways to the human capacity to think, imagine and create.
Conscience and consciousness are the sacred precincts of
mind and soul. Freedom of speech is intimately linked to
freedom of thought, to that central capacity to reason and
wonder, hope and believe, that largely defines our humanity.
If these various elements of our culture do in combination
provide some insight into why freedom of speech exerts
such a dominating presence on the American legal and
cultural landscape, they do not by any means come close to
explaining the intense and seemingly never-ending legal and
cultural debates over the limits on freedom of speech.
While the language of the First Amendment appears
absolute, freedom of speech is not an absolute right. Certain
limitations and restrictions apply. Conflicts involving
freedom of expression are among the most difficult ones
that courts are asked to resolve. This ongoing process is
often contentious and no one simple legal formula or
philosophical principle has yet been discovered that is up to
the trick of making the job easy. Americans thus continue to
debate in political forums and litigate in courts such issues
as the power of society to censor offensive speech to protect
children, the permissibility of banning speech that defeats
protection of intellectual property, the propriety of curbing
speech to shelter personal reputation and privacy, the right
to restrict political contributions and expenditures to reduce
the influence of money on the political process, and
countless other free-speech conflicts. Free speech cases
frequently involve a clash of fundamental values. For
example, how should the law respond to a speaker who
makes unpopular statement to which the listeners react
violently? Should police arrest the speaker or try to control
the crowd? Courts must balance the need for peace and
order against the fundamental right to express ones point of

According to the current state of law, freedom of speech

does not protect the following: Speech that contains
"fighting words" (insulting or abusive language that is likely
to cause "an immediate violent response"); Obscenities;
Language or communication directed to inciting, producing
or urging the commission of a crime; Defamation - words or
communication that are false and untrue and are intended
to injure the character and reputation of another person;
Abusive, obscene or harassing telephone calls; Loud speech
and loud noise meant by volume to disturb others or to
create a clear and present danger of violence.
Yet while the country continues to struggle mightily to
define the limits and continues to debate vigorously the
details, there is surprisingly little struggle and debate over
the core of the faith. Americans truly do embrace the central
belief that freedom of speech is of utmost value, linked to
our defining characteristics as human beings. While limits
must exist, American culture and law approach such limits
with abiding caution and skepticism, embracing freedom of

Freedom of Press
Freedom of the press protects the right to obtain and
publish information or opinions without government
censorship or fear of punishment. Censorship occurs when
the government examines publications and productions and
prohibits the use of material it finds offensive. Freedom of
press applies to all types of printed and broadcast material,
including books, newspapers, magazines, pamphlets, films
and radio and television programs.
The Constitution's framers provided the press with broad
freedom. This freedom was considered necessary to the
establishment of a strong, independent press sometimes
called "the fourth branch" of the government. An
independent press can provide citizens with a variety of
information and opinions on matters of public importance.
However, freedom of press sometimes collides with other
rights, such as a defendant's right to a fair trial or a citizen's
right to privacy. In recent years, there has been increasing

concern about extremely aggressive journalism, including

stories about people's sexual lives and photographs of
people when they were in a private setting.
In the United States, the government may not prevent the
publication of a newspaper, even when there is reason to
believe that it is about to reveal information that will
endanger our national security. By the same token, the
government cannot:

Pass a law that requires newspapers to publish

information against their will.
Impose criminal penalties, or civil damages, on the
publication of truthful information about a matter of
public concern or even on the dissemination of false
and damaging information about a public person except
in rare instances.
Impose taxes on the press that it does not levy on other
Compel journalists to reveal, in most circumstances, the
identities of their sources.
Prohibit the press from attending judicial proceedings
and thereafter informing the public about them.

Collectively, this bundle of rights, largely developed by U.S.

Supreme Court decisions, defines the freedom of the
press guaranteed by the First Amendment. What we mean
by the freedom of the press is, in fact, an evolving concept.
It is a concept that is informed by the perceptions of those
who crafted the press clause in an era of pamphlets,
political tracts and periodical newspapers, and by the views
of Supreme Court justices who have interpreted that clause
over the past two centuries in a world of daily newspapers,
books, magazines, motion pictures, radio and television
broadcasts, and now Web sites and Internet postings.
The framers' conception of freedom of the press has been
the subject of intense historical debate, both among
scholars and in the pages of judicial opinions. At the very
least, those who drafted and ratified the Bill of Rights
purported to embrace the notion, derived from William
Blackstone, that a free press may not be licensed by the
sovereign, or otherwise restrained in advance of publication

(see New York Times Co. v. United States, 1971.) And,

although the subject remains a lively topic of academic
debate, the Supreme Court itself reviewed the historical
record in 1964 in New York Times Co. v. Sullivan and
concluded that the central meaning of the First
Amendment embraces as well a rejection of the law of
seditious libel i.e., the power of the sovereign to impose
subsequent punishments, from imprisonment to criminal
fines to civil damages, on those who criticize the state and
its officials.
To a great extent, however, what we mean by freedom of the
press today was shaped in an extraordinary era of Supreme
with Sullivan and
concluded in 1991 with Cohen v. Cowles Media Co. During
that remarkable period, the Court ruled in at least 40 cases
involving the press and fleshed out the skeleton of freedoms
addressed only rarely in prior cases. In contrast, although
the Court in the early part of the last century had considered
the First Amendment claims of political dissidents with some
frequency, it took nearly 150 years after the adoption of the
Bill of Rights, and the First Amendment along with it, for the
Court to issue its first decision based squarely on the
freedom of the press.
That 1931 case, Near v. Minnesota, ratified the Blackstonian
proposition that a prior restraint a legal prohibition on the
presss ability to publish information in its possession will
almost always violate the First Amendment. Near is a
landmark, not just because it was the Courts first decision
to invoke the press clause, but because it established a
fundamental precept of constitutional law that once the
press has gotten its hands on information that it deems to
be newsworthy, the government can seldom, if ever, prevent
that information from being published.
following Sullivan, the Court made it its business to explore
the ramifications of the case on a virtually annual basis.
During that period, the Supreme Courts elaboration of what
we mean by a free press focused on the nature of the official
restraint alleged to compromise that freedom as well as the
extent to which the First Amendment protects the press

from a given species of governmental action or inaction.

Thus, in cases such as Near and the Pentagon Papers case
(1971's New York Times Co. v. United States, the Court
established that freedom of the press from previous
restraints on publication is nearly absolute, encompassing
the right to publish information that a president concluded
would harm the national security, if not the movements of
troopships at sea in time of war. In 1974's Miami Herald
Publishing Co. v. Tornillo, the Court embraced the analogous
proposition that the government has virtually no power to
compel the press to publish that which it would prefer to
leave on the proverbial cutting room floor.
In that regard, however, it must be noted that not all media
are created equal when it comes to entitlement to the full
protections of the First Amendments press clause. Most
significantly, because of a perceived scarcity of the
electromagnetic spectrum, the Court has held that Congress
and the Federal Communications Commission may regulate
the activities of broadcasters operating over public
airwaves in a manner that would surely violate the First
Amendment if applied to newspapers. (Compare Red Lion
Broadcasting v. FCC (1969) with Tornillo.) The Courts
reasoning in Red Lion, in which it upheld the Commissions
Fairness Doctrine and personal attack rule i.e., the
right of a person criticized on a broadcast station to respond
to such criticism over the same airwaves licensed to that
station has never been disavowed, although the justices
have expressly declined to extend it to other, laterdeveloped communications media, including cable television
(1994's Turner Broadcasting v. FCC) and the Internet
(1997's Reno v. ACLU), to which the scarcity rationale for
regulation is plainly inapplicable.
Even in the broadcast context, however, Sullivan and the
cases that followed it stand for the proposition that the First
Amendment protects the publication of truthful information
about matters of public concern, not just from prior
restraint, but also from subsequent punishment, at least in
the absence of a demonstrated need to vindicate a
competing government interest of the highest order. This
formulation has come to be known as the Daily

Mailprinciple, after the Supreme Courts 1979 decision

in Smith v. Daily Mail Publishing Co., in which the Court held
that a newspaper could not be liable for publishing the name
of a juvenile offender in violation of a West Virginia law
declaring such information to be private. The protections
against subsequent punishments for reporting the truth
afforded by the Daily Mail principle are not absolute, but the
barriers to such government regulation of the press are set
extremely high.
Sullivan and cases that followed also hold that the First
Amendment protects the publication of false information
about matters of public concern in a variety of contexts,
although with considerably less vigor than it does
dissemination of the truth. Even so, public officials and
public figures may not recover civil damages for injury to
their reputations unless they were the victims of a reckless
disregard for truth in the dissemination of a calculated
falsehood. Indeed, private persons may not collect civil
damages for reputational harm caused by falsehoods
relating to a matter of public concern unless the publishers
conduct violates a fault-based standard of care. And
although expressions of opinion are not always immune
from legal sanction, in its 1990 decision in Milkovich v.
Lorain Journal Co., the Court held that statements not
capable of being proven false, or which reasonable people
would not construe as statements of fact at all, but rather as
mere rhetorical hyperbole, are absolutely protected by
the First Amendment.
By the same token, the Supreme Court has been
considerably less definitive in articulating the degree of
First Amendment protection to be afforded against
restraints on the freedom of the press that are indirect and
more subtle than the issuance of a prior restraint or the
imposition of criminal or civil sanctions subsequent to
publication. Thus, for example, in its 1978 decision Zurcher
v. Stanford Daily, the Court held that the First Amendment
does not protect the press and its newsrooms from the
issuance of otherwise valid search warrants. Similarly, in
1979 in Herbert v. Lando, the Court concluded that the press
clause does not encompass a privilege that would empower

a journalist to decline to testify about the editorial

process in civil discovery. Most significantly, in 1972
in Branzburg v. Hayes, a sharply divided Court was skeptical
of the contention that the First Amendment protects
journalists from the compelled disclosure of the identities of
their confidential sources, at least in the context of a grandjury proceeding. The Court, however, has not addressed that
issue in the 30 years since Branzburg, and has effectively
permitted the lower courts to fashion an impressive body of
law grounding just such a reporters privilege firmly in the
press clause itself. That privilege, however, is by no means
absolute and may be forfeited in a variety of circumstances,
especially when no confidential source is thereby placed in
jeopardy or when disclosure is sought in the context of a
grand-jury or other criminal proceeding.
And, finally, the Court has held that the First Amendment
affords the press and public affirmative rights of access to at
least some government proceedings. In a series of decisions
beginning with 1980's Richmond Newspapers, Inc. v.
Virginia, the Court established that the First Amendment not
only protects the press from prior restraints and other
government-imposed penalties, but also invests the press
and public with a right to attend criminal trials and other
judicial proceedings. This right, however, is not absolute and
is routinely balanced against other competing interests
articulated by the proponents of secret proceedings.
Nevertheless, in such cases, and others like 1975's Cox
Broadcasting Corp. v. Cohn, the Court has expressly
recognized the structural role that the press plays as a
surrogate for the larger public in gathering and
disseminating information on its behalf and for its benefit.
pains not to anoint the press with First Amendment-based
rights and immunities beyond those enjoyed by any speaker,
lonely pamphleteer (see Branzburg v. Hayes, 1972), or
Internet chat-room participant.
Indeed, the Court has rejected arguments advanced by the
institutional press that, because of its structural role in
ensuring the free flow of information in a democratic
society, it ought to enjoy unique protections from otherwise

generally applicable laws that inhibit its ability to gather

and report the news. Thus, in 1991 in Cohen v. Cowles Media
Co., the Court effectively concluded the treatise on the
freedom of the press it began in Sullivan; it did so when it
emphasized that the press is properly subject to liability
under the generally applicable law of contracts when it
breaks a promise to keep a sources identity confidential,
even when it does so in order to report truthful information
about the sources involvement in a matter of public
In the decade following Cohen, the Court again fell largely
silent when it came to the First Amendments application to
the institutional press. As the 21st century dawned,
however, the Court interrupted that silence, at least briefly,
to revisit the extent to which a generally applicable law
such as the federal wiretap statute can constitutionally
impose criminal penalties and civil liability on the
dissemination by the press of the contents of unlawfully
recorded telephone conversations, at least when the
information so disseminated is the truth about a matter of
public concern.
In 2001 in Bartnicki v. Vopper, the Court held that, even
when a statute is directed at deterring unlawful conduct
(e.g., the interception of telephone conversations) and not
at penalizing the content of press reports, it nevertheless
constitutes a naked prohibition on the dissemination of
information by the press that is fairly characterized as a
regulation of pure speech in violation of the First
Amendment. In so holding, the Court ushered in a new
century of First Amendment jurisprudence by reaffirming
both the Daily Mail principle the fundamental right of a
free press to disseminate truthful information about public
matters and the central meaning of the First
Amendment on which it is based Sullivans recognition
that the freedom of expression upon public questions is
secured by the First Amendment so that debate on
public issues should be uninhibited, robust and wide-open.
While it is undeniable fact that freedom of press is essential
ingredient of democracy, it does not mean it will advance
the goals of democracy.

Namely, once in this country that now seems far away, radio
and television broadcasters had an obligation to operate in
the public interest. That generally accepted principle was
reflected in a rule known as the Fairness Doctrine. The rule,
Commission in 1949, required all broadcasters to devote a
reasonable amount of time to the discussion of controversial
matters of public interest. It further required broadcasters
to air contrasting points of view regarding those matters.
The Fairness Doctrine arose from the idea imbedded in the
First Amendment that the wide dissemination of information
from diverse and even antagonistic sources is essential to
the public welfare and to a healthy democracy.
In August 1987 the FCC repealed the Doctrine, claiming that
it was unconstitutional, although the Supreme Court had
ruled unanimously in 1969 that the Fairness Doctrine was
not only constitutional but essential to democracy. As a
result, general public is very rarely served with fair and
balanced information. The public airwaves serve today no
other purpose but to express the opinions of those who can
pay for air time. Some authors argue that mainstream media
journalism today is a shameful joke because of president
Reagan's decision to abolish Fairness Doctrine. Once upon a
time, the Fairness Doctrine ensured that the information we
receive - information vital to the ability of the people to
govern in the manner intended - came from a wide variety of
sources and perspectives. Reagan's policies annihilated the
Fairness Doctrine, opening the door for a few megacorporations to gather journalism unto themselves. Today,
Reagan's old bosses at General Electric own three of the
most-watched news channels. This company profits from
every war Americans fight, but somehow is trusted to tell
the truths of war. Thus, the myths and lies are sold to us

















Security issues warrant greater freedom of expression, seminar told



I. A. Rehman (right) at the seminar on Tuesday.White Star

KARACHI: If there are security issues then there should be
more freedom of expression, because putting restrictions on
people means you will be taking decisions with a limited
This was said by eminent journalist and human rights activist I. A.
Rehman while speaking at a seminar on challenges to freedom of the
press at the Human Rights Commission of Pakistans office here on
Mr Rehman was responding to a question on the recent issue of a
Dawn report that generated a heated debate in the country in light of
Article 19(A) of the Constitution.

Self-censorship is more dangerous than censorship

He said the situation needed to be analysed in a particular context. He

said for a long time civil liberties (shehri azadian) were being contained
and laws were made without taking the due process into consideration.
He said there were parts in the country where civil society could not
work and was depended on the DCOs. He said in some areas of Punjab,

in order to hold a meeting one needed the DCOs permission. He said

now committees had been made in which there were individuals
representing the DCO and investigative agencies who sent all the
applications to the home secretary, and the home secretary seldom
had the time to look into those applications.
Mr Rehman said the problems were more to do with the government
than journalists. He said the more worrying factor was that the
situation had divided the journalist fraternity. He said people from our
own fraternity had unsheathed their swords. He said it was regrettable
that the treatment meted out to Geo did not face resistance. The way
it was repressed encouraged those who did it. He said the silence
maintained by the newspaper industry caused great harm. Mr Rehman
said it was a collective issue. He said freedom of the press was a
trust; todays journalist would be replaced by tomorrows, therefore,
we should not be usurping their (future journalists) right. He said not
protecting their right would render future journalists helpless. We
have a responsibility to pass on to the next generation.
Mr Rehman said the situation did not occur all of a sudden. He said the
1960s was the high point of our journalism when a dictator made a
law, against which all gathered (journalists, newspaper owners etc) and
the dictator had to change that policy. After that, he said, the decline
began and we never got united on issues (wage board award, the
delay in formation of the press council etc).
Responding to blogger Akhtar Balouchs statement on the different
groups among journalists, he said professional jealousies should not be
pushed to the stage where one would find difficult to breathe. He said
people should sit together and hold seminars on the subject. He said
laws should be made with due deliberation, consultation and
representation. He said those journalists who toed the governments
line should realise that if this kept happening without due deliberation
then it would create a grave situation. He said he was reading
somewhere that Donald Trumps election was not a problem; rather the
problem was that America had regressed 10 to 15 years and now
generations would be required to clear the mess. There will be more
Trumps, he remarked.

Replying to Dr Tauseef Ahmed Khans question about the JITs, Mr

Rehman said he had never seen a JIT before. He said only the police
should investigate such a matter. He said avoiding the law was not
confined to the newspaper industry alone. We have no rule of law.
Answering a question about the end-result of the Dawn report saga,
Mr Rehman said some damage had already been done because an
atmosphere of fear had been created. He said free press could not
function in an environment of fear. He said self-censorship was more
dangerous than censorship.
On the question whether TV anchors could be considered journalists Mr
Rehman said every profession had enough room (to include all). He
said, for example, medical profession had successful physicians as well
as atai (quacks). So, having atai in journalism was no big deal, he said.
Mr Rehman said it was often said that there were security issues. He
said in such a state there should be more freedom of expression
because if you put restrictions on people then you would be taking
decisions with a limited mindset which enhanced chances of that
decision going wrong. There would be more consultation, he said. He
added that freedom of expression was a human right not just of the
journalist community but was to do with every person. Everyone
should have freedom of expression.
Published in Dawn, November 16th, 2016

Law gagging freedom of speech opposed


ISLAMABAD: Civil society members on Friday opposed government moves aimed

at curbing freedom of speech.
Speaking at a roundtable Beyond the firewall: freedom of speech in a censored
democracy organised by the Jinnah Institute, the speakers decried the process of framing
laws that gave extraordinary powers to the government.
Hassan Akbar and Ali Dayan of the institute said making such laws was a dangerous
move against freedom of speech.
Laws to control hate speech are being used in other spheres of life, Ali Dayan said.
He referred to several actions by Pemra, including banning of anchor Hamza Ali Abbasi,
even prior to hearing him.
Tahira Abdullah, Haroon Baloch of an NGO, Bytes for All, and other speakers criticised
the cyber crime bill currently under discussion at the Senate standing committee on
information technology.
They said the law empowered the Pakistan Telecommunication Authority to frame
charges against almost everybody.
This law is against several UN charters that Pakistan has signed to ensure freedom of
expression, said Tahira Abdullah.
However, Senator Farhatullah Babar said there was a need for a cyber crime bill and
other laws. But he stressed the need for a balance between freedom of expression and
government powers.
Some other speakers, including TV anchor Asma Sheerazi, said interference by the
authorities had gone beyond the legal purview and the electronic media was already
facing strong censorship.
Published in Dawn, July 23rd, 2016

Misuse of freedom of expression



PEOPLE are abusing the movies team and advising each other over cellphones and
online social networks to share those abusing remarks to register their protest. I am
not convinced. I think propagation of a good act is a healthy activity but
propagation of a bad act is negative.
I believe that respect and dignity of the Prophet is mighty and no one can harm him by
such acts. The point we are ignoring here is the way the Prophet used to react to such
There are extremists in all religions. It is well-known that most of the non-Muslims also
raised objection on this movie.
I agree that there is a need to take notice of such acts and negative minds behind them,
but the protest should be peaceful. I am not fully convinced with the official stand of the
US government that this act was freedom of expression and that the government is not
able to block that movie.
I think considering the situation and sentiments of the Muslim world some serious and
precautionary steps should have been taken by the US administration.
We are being taught that our world is a global village but, unfortunately, there is no law
and set norm for the protection and respect of different religions.
It is true that religion is not an affair of the state in most parts of the world. But despite
liberalism, most of the believers of different religions are touchy about their faith. What is
freedom of expression and what are its boundaries is a different debate.
Today, it appears that the misuse of freedom of expression will ultimately lead the
civilised world to chaos.
All countries should come forward for peace. This is the only way to bring this world
towards peace and harmony.


The answer to the blasphemous contents is not violence but a wisdom-based response.
Turning violent in reaction to such attempts will be a success of the hardcore fanatics
who want to draw us into this dirty game.

There are many more dirty fanatics than one can imagine, and reacting to such attempts
will encourage them to toy with our sentiments that may result in an endless cycle of
blasphemy and violent reaction to it.
The nonsense of hate contents does not deserve our attention. The more we pay attention
to them, the more they will turn ugly.
Lets ignore these insane fanatics and soon they will realise that their hard work is going
Having said that, governments and civil societies in the Muslim world should also play
their due role. They should send a clear message to the West to control hate and
fanaticism on their soil and legislate to curb such attempts of insensitivity and
In western societies, where religion is a non-issue, it is necessary to educate them about
religious beliefs and personalities.
Finally, it is time for the rulers of the Muslim world to realise that they should invest
maximum in education and human resource development to advance in science and
technology to make the Muslim world economically and politically independent.
Before we attempt to change western fanatics sick mindset, let us change ourselves first
by becoming good Muslims.


Violence and destruction

WHILE I can understand the anger of Muslims over the blasphemous contents in the film
produced by a Coptic Egyptian immigrant in the US, the reaction and violent protests will
serve no purpose other than further weakening economies of the countries ravaged by
violent protests.
Let us show our love for our Holy Prophet Muhammad (PBUH) by working for the
betterment of the citizens by imparting them education, and providing healthcare and
employment through an honest political leadership that is held accountable to the public
through rule of law. The image of Muslims is tarnished when those within the faith give
false evidences under the oath on the Holy Quran, when lifesaving medicines and basic
food items are adulterated, or when politicians and generals having taken the oath to
defend the constitution, violate their commitment and those holding public offices abuse
their powers.

Illinois, USA

Freedom of Speech
The right, guaranteed by the First
Amendment to the U.S. Constitution, to express beliefs and ideas without unwarranted
government restriction.
Democracies have long grappled with the issue of the limits, if any, to place on the expr
ession of ideas and beliefs. Thedilemma dates back at least to ancient Greece, when th
e Athenians, who cherished individual freedom, neverthelessprosecuted Socrates for hi
s teachings, claiming that he had corrupted young people and insulted the gods.
The Framers of the Constitution guaranteed freedom of speech and expression to the ci
tizens of the United States with theFirst Amendment, which reads, in part, "Congress sh
all make no law abridging the freedom of speech." Almost since theadoption of the Bi
ll of
Rights, however, the judiciary has struggled to define speech and expression and the e
xtent to whichfreedom of speech should be protected. Some, like Justice HUGO L. BLACK,
have believed that freedom of speech is absolute.But most jurists, along with most U.S.
citizens, agree with Justice OLIVER WENDELL HOLMES JR., who felt that the Constitutionall
ows some restrictions on speech under certain circumstances. To illustrate this point, H
olmes wrote, "The most stringentprotection of free speech would not protect a man in fal
sely shouting fire in a theater and causing a panic" (SCHENCK V. UNITEDSTATES, 249 U.S.
47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]).
During the two centuries since the adoption of the First Amendment, the U.S. Supreme
Court has held that some types ofspeech or expression may be regulated. At the same t
ime, the Court has granted protection to some areas of expressionthat the Framers clea
rly had not contemplated.
Public Forum Regulation

When the government attempts to regulate the exercise of speech rights in traditional p
ublic forums, such as parks or publicsidewalks, the U.S. Supreme Court examines whet
her the regulation restricts the content of the speech or merely regulatesthe time, mann
er, and place in which the speech is delivered.
If the law regulates the content of the expression, it must serve a compelling state intere
st and must be narrowly written toachieve that interest (Perry Education Ass'n v. Perry L
ocal Educators' Ass'n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794[1983]). Restriction

s on speech in a public forum also may be upheld if the expressive activity being regulat
ed is of a typethat is not entitled to full First Amendment protection, such as Obscenity.
Laws that regulate the time, manner, and place, but not content, of speech in a public fo
rum receive less scrutiny by theCourt than do laws that restrict the content of expressio
n. These so-called content-neutral laws are permissible if they servea significant govern
ment interest and allow ample alternative channels of communication (see Perry). It is n
ot necessarythat a content-neutral law be the least restrictive alternative, but only that th
e government's interest would be achieved lesseffectively without it (Ward v. Rock again
st Racism, 491 U.S. 781, 109S. Ct. 2746, 105 L. Ed. 2d 661 [1989]).
An important distinction is drawn between public premises that serve as traditional publi
c forums and those that constitutelimited public forums. For example, state fair grounds
are public premises that have not traditionally served as publicforums. The government
may impose more restrictions on free speech in limited public forums than in traditional
publicforums. In Heffron v. International Society for Krishna Consciousness, 452 U.S. 64
0, 101 S. Ct. 2559, 69 L. Ed. 2d 298(1981), the Court upheld regulations limiting the sal
e or distribution of religious materials to fixed locations on state fairgrounds.
The Court reaffirmed in Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S. Ct. 775, 15
1 L. Ed.2d 783 (2002) that localgovernments do not violate the First Amendment when t
hey require the obtaining of a permit before individuals can holdlarge-scale rally events i
n public parks. In this case, the Chicago Park District denied a rally permit to a group th
at hadsought to hold a "Hempfest." The park district denied the permit because of violati
ons of park rules at previous events runby the organizers. The group challenged the de
nial, arguing that the park district could use its unfettered discretionary powerto deny pe
rmits to those who held unpopular or controversial political views, such as support for th
e legalization ofmarijuana. The U.S. Supreme Court held that the park district's ordinanc
e was a constitutionally permissible "content-neutral" regulation of time, manner, and pla
ce. It was directed toward all activity in a public park, not just towardcommunicative or p
olitical activity. It did not constitute subject-matter Censorship in any way. The Court ex
plained that thepark district's object was to coordinate multiple uses of limited space; to
assure preservation of park facilities; to preventdangerous, unlawful, or impermissible u
ses; and to assure financial accountability for damages caused by an event.
Although it seems reasonable to assume that public premises owned and operated by t
he government are public forums,some are not. In Adderley v. Florida, 385 U.S. 39, 87
S. Ct. 242, 17L. Ed. 2d 149 (1966), the U.S. Supreme Court upheldthe Trespass convic
tion of students who demonstrated on the grounds of a jail. Although jailhouse grounds
are publicproperty, they have not been used traditionally as public forums: "No less so t
han a private owner of property, the state hasthe power to preserve the property under it

s control for the use to which it is lawfully dedicated." Later cases challengingrestricted
access to public premises focused on whether the government, in creating the premises
, had intended to create apublic forum. In United States v. Kokinda, 497 U.S. 720, 110 S
. Ct. 3115, 111 L. Ed. 2d 571 (1990), the Court upheld apostal-service regulation that ba
rs the solicitation of contributions on a post office's sidewalk, because that sidewalk lack
edthe characteristics of a general public sidewalk. Similarly, it declared an airport termin
al to be a nonpublic forum because"the tradition of airport activity does not demonstrate
that airports have historically been made available for speech activity"(International Soci
ety for Krishna Consciousness v. Lee, 505 U.S. 672, 112 S. Ct. 2701, 120 L. Ed. 2d 541
When private property rights conflict with the public-forum doctrine, the Court examines
whether the regulation in question isnarrowly tailored to serve a significant government i
nterest. A law may not prohibit all canvassing or solicitation of, ordistribution of handbills
to, homeowners in a residential neighborhood, because a public street is a traditional pu
blic forum.However, it may limit specific types of speech activity that target particular ind
ividuals. In Frisby v. Schultz, 487 U.S. 474,108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988), th
e Court upheld an ordinance that prohibited the picketing of individualresidences. The la
w had been narrowly drawn to serve the government's interest in precluding the picketin
g of captivehouseholders, and allowed picketers ample alternative means of expression.
Inciting, Provocative, or Offensive Speech

Laws that limit inciting or provocative speech, often called fighting words, or offensive ex
pressions such as Pornography,are subject to Strict
Scrutiny. It is well established that the government may impose content regulations on
certaincategories of expression that do not merit First Amendment protection. To illustrat
e this point, the Court stated inChaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 7
66, 86 L. Ed. 1031 (1942),"There are certain well-defined andnarrowly limited classes of
speech, the prevention and punishment of which have never been thought to raise cons
With the increase of activity in cyberspace, individuals can distribute questionable speec
h throughout the U.S. and theworld. In Planned Parenthood of the Columbia/Willamette
Inc. v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir.2002), a federal appea
ls court ruled that an anti-abortion web site was not protected by the First Amendment.
The web siteposted photos, names, addresses, and other information pertaining to Abo
rtion providers, their family members, and otherswho were perceived as supporting abo
rtion rights. Although neither the site nor the posters made explicit threats against theab
ortion providers, violence at clinics that provided abortions had followed poster distributi
on in the past. PlannedParenthood sued the group under the Freedom of Access to Clin

ic Entrances Act of 1994 (FACE), 18 U.S.C. 248, andother laws. The trial judge instruc
ted the jury that if the defendants' statements were "true threats," the First Amendment
would not protect them. The jury awarded the plaintiff a multimillion-dollar verdict. The N
inth Circuit stated that a jury couldconclude that the postings constituted a true threat un
der FACE, which removed any First Amendment protection for thedefendants.
The Court has also upheld laws that regulate speech activity if those laws do not limit th
e content of speech and imposeonly an indirect burden on freedom of speech. In such c
ases, the Court applies a less stringent test and balances theindividual's free speech int
erests against the government's interest that is furthered by the law in question. In O'Bri
en v.United States, 393U.S. 900, 89 S. Ct. 63, 21 L. Ed. 2d 188 (1968), the Court held t
hat a statute prohibiting the destruction ofdraft cards did not violate the First Amendmen
t, because the government's interest in maintaining a viable selective-servicepool outwe
ighed the statute's incidental infringement of free expression.
Since the 1980s, a number of laws have been passed that attempt to regulate or ban "h
ate speech," which is defined asutterances, displays, or expressions of racial, religious,
or sexual bias. The U.S. Supreme Court has generally invalidatedsuch laws on the grou
nd that they infringe First Amendment rights. In R.A.V. v. City of St. Paul, 505 U.S. 377,
112 S. Ct.2538, 120 L. Ed. 2d 305 (1992), the Court invalidated the city of St. Paul's hat
e-crime ordinance, ruling that itunconstitutionally infringed free speech. The defendant i
n that case had been prosecuted for burning a cross on the lawn ofan African-American
family's residence.
The Minnesota Supreme Court held that the ordinance was limited to restricting conduct
that amounted to Chaplinksky"fighting words." Therefore, the ordinance was not imperm
issibly content-based because it was "narrowly tailored" to furtherthe "compelling govern
mental interest in protecting the community against bias-motivated threats to public safe
ty andorder." The U.S. Supreme Court disagreed. Justice Antonin
Scalia, in his majority opinion, wrote that, even assuming thatthe cross burning was pro
scribable under the "fighting words" doctrine, the ordinance was, on its face, unconstituti
onal. Itviolated the First Amendment because it prohibited "otherwise permitted speech
solely on the basis of the subjects thespeech addresses." Scalia agreed that the govern
ment may constitutionally proscribe content such as LIBEL, but that it maynot proscribe o
nly libel that is critical of the government. In Scalia's view, the unprotected features of "fi
ghting words" aretheir "nonspeech" element of communication. Thus, fighting words are
like a noisy sound truck: each is a mode of speech,and both can be used to convey an i
dea, but neither has a claim on the First Amendment. The government cannot,however,
regulate fighting words or a sound truck based on "hostility-or favoritism-towards the un
derlying messageexpressed."

In addition, the ordinance was not over-broad but underinclusive. The content limitation
was impermissible because itdisplayed "the city council's special hostility towards the pa
rticular biases thus singled out." An ordinance not restricted "tothe favored topics" would
have the same effect the city desired, but without the discrimination against unpopular vi
ews.Justice Scalia also noted that the city could have prosecuted the defendant under tr
aditional Criminal
Law statutes,including Arson, trespass, and terroristic threats. In his view, the city had
other means to address the problem "withoutadding the First Amendment to the fire."
This decision did not end the debate over HATE CRIMES. The Court took up the issue aga
in in Virginia v. Black, 538 U.S. 343,123 S. Ct.1536. 155 L. Ed.2d 535 (2003). This case
also involved a cross burning aimed at terrorizing an African-Americanfamily. A Virginia
criminal statute had outlawed cross burning "on the property of another, a highway or ot
her public place with the intent of intimidating any person or group." In a 6-3 decision,
the Court upheld the statute. It emphasized that theFirst Amendment would protect som
e types of cross burnings, such as one held at a political rally. However, when the cross
burning was targeted at individuals for the purposes of criminal intimidation, freedom of
speech would not protect the crossburners.
Like fighting words, materials that are judged obscene are not protected by the First Am
endment. The three-part Miller teststands as the yardstick for differentiating material tha
t is merely offensive and therefore protected by the First Amendment,from that which is l
egally obscene and therefore subject to restriction (MILLER V. CALIFORNIA, 413 U.S. 15, 9
3 S. Ct. 2607, 37 L.Ed. 2d 419 [1973]). The Miller test determines that material is obsce
ne if (1) the average person, applying contemporarycommunity standards, would find th
at it appeals to shameful or morbid sexual interests; (2) it depicts or describes patentlyof
fensive sexual conduct; and (3) it lacks serious literary, artistic, political, or scientific valu
The Seventh Circuit Court of Appeals ruled in Kendrick v. American Amusement Machin
e Association, 244 F.3d 572 (7thCir. 2001) that a city ordinance that prohibited minors fr
om playing violent or sexually explicit video arcade games wasunconstitutional. The cou
rt noted that the city had not sought to regulate video games because they were "offensi
ve" underMiller. Rather, the ordinance premised its restriction on the belief that violent f
antasy video games led to real-world harm.The appeals court found no real difference b
etween the content of the allegedly "violent" video games and generallyavailable, unrest
ricted literature that depicted the same level of violence. They were both examples of "a
children's world ofviolent adventures." The court, therefore, found that the ordinance im
permissibly restricted minors' freedom of expressionwithout any offsetting justification.
Prior Restraint

The Court uses a stringent standard when it evaluates statutes that impose a Prior
Restraint on speech. The test that ismost frequently employed asks whether the prohibi
ted activity poses a Clear and Present
Danger of resulting in damage toa legitimate government interest. Most often, the clearand-present-danger doctrine has applied to prior restraints on thepublication of material
s thought to threaten national security. This test was first expressed by Justice Holmes i
n theSchenck case. Charles T. Schenck had been charged with violating the Espionage
Act (Tit. 1, 3, 4 [Comp. St. 1918, 10212c, 10212d]) by distributing pamphlets that u
rged insubordination among members of the military. The Court held thathis activities cr
eated "a clear and present danger that they will bring about the substantive evils that Co
ngress has a right toprevent." The government's interest in maintaining national security
and preventing dissension among the troops outweighedSchenck's interest in free spee
The clear-and-present-danger test was extended during the 1950s, when widespread fe
ar of Communism led to thepassage of the Smith
Act, 18 U.S.C.A. 2385, which prohibited advocating the overthrow of the government.
The act waschallenged as a prior restraint on speech. It was upheld by the U.S. Suprem
e Court, which stated that the clear-and-present-danger test does not require the govern
ment to prove that a threat is imminent or that a plot probably would be successful(Den
nis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137[1951]).
The Dennis decision was criticized as weakening the clear-and-present-danger test and
allowing the government too muchfreedom to restrict speech. These results were remed
ied somewhat in Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827,23 L. Ed. 2d 430 (1
969), in which the Court invalidated a statute that punished the advocacy of violence in i
ndustrialdisputes. The Court held that the government cannot forbid the advocacy of the
use of force unless that advocacy isdirected to inciting imminent illegal activity and is lik
ely to succeed.
Expressive Conduct

In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87
L. Ed. 1628 (1943), Justice ROBERTH. JACKSON wrote that symbols are "a short cut from
mind to mind." Expressive conduct or Symbolic
Speech involvescommunicative conduct that is the behavioral equivalent of speech. Th
e conduct itself is the idea or message. Someexpressive conduct is the equivalent of sp
eech and is protected by the First Amendment.
Ct. 733, 21 L. Ed. 2d 731 (1969), the U.S.Supreme Court held that it was unconstitution

al to suspend high-school students for wearing black armbands to protest theVietnam

War, because their conduct was "akin to pure speech" and did not interfere with the wor
k of the school or therights of other students.
In Good News Club v. Milford Central School, 533 U.S. 98, 121 S. Ct. 2093, 150 L. Ed.2
d 151 (2001), the U.S. SupremeCourt ruled that a private Christian organization could n
ot be denied use of the public school space for after-schoolactivities. The Court emphas
ized that the Establishment Clause could not serve as a barrier to the organization's exe
rcise ofits free speech rights. Justice Clarence
Thomas, in his majority opinion, addressed the freedom-of-speech argument. Henoted t
hat the school was a limited public forum and that the state therefore was not required t
o permit persons "to engagein every type of speech." However, the state's ability to restr
ict speech was not unlimited. In addition, the state could notdiscriminate against speech
on the basis of viewpoint. Justice Thomas wrote that the school district decision had unl
awfullyimposed this requirement. He pointed to recent Court decisions that had forbidde
n states to prevent religious groups fromusing public facilities or to receive funding for a
n undergraduate organization.
Statutes that prohibit the desecration of the U.S. flag have been found to restrict free ex
pression unconstitutionally. In TEXASV. JOHNSON, 491 U.S. 397, 109 S. Ct. 2533, 105 L.
Ed. 2d 342 (1989), the Court overturned Gregory L. Johnson's convictionfor burning a U
.S. flag during a demonstration. Johnson's actions were communicative conduct that wa
rranted FirstAmendment protection, even though they were repugnant to many people.
Similarly, in United States v. Eichman, 496 U.S.310, 110 S. Ct. 2404, 110 L. Ed. 2d 287
(1990), the Court struck down the federal Flag Protection Act of 1989, 103 Stat.777, 18
U.S.C.A. 700, stating that the government's interest in passing the act had been a des
ire to suppress freeexpression and the content of the message that the act of flag burnin
g conveys.
The U.S. Supreme Court has generally struck down prohibitions on nudity and other ero
tic, but nonobscene, expressiveconduct. However, in Barnes v. Glen Theatre, 501 U.S.
560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991), the Court upheld aban on totally nude d
ancing, on the ground that it was part of a general ban on public nudity. While recognizi
ng that nudedancing generally has been considered protected expressive conduct, the j
ustices pointed out that such activity is onlymarginally within the perimeter of First Amen
dment protection.
In City of Erie v. Pap's A. M., 529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000), t
he U.S. Supreme Court upheld alocal Zoning ordinance that banned nude-dancing club
s within the city. It found that freedom of speech had not beenunconstitutionally restricte
d because the ordinance did not ban the expressive conduct of nude dancing but only t

he meansfor expressing it within the city. It found that the city had good grounds for ban
ning nude-dancing clubs; these weresecondary effects on the community rather than th
e dancing itself. Therefore, the city had the authority to restrict thelocation of such clubs.
Commercial Speech

Commercial speech, usually in the form of advertising, enjoys some First Amendment pr
otection, but not to the samedegree as that which is given to noncommercial forms of ex
pression. Generally, the First Amendment protects commercialspeech that is not false o
r misleading and that does not advertise illegal or harmful activity. Commercial speech
may berestricted only to further a substantial government interest and only if the restricti
on actually furthers that interest. In CentralHudson Gas & Electric Co. v. Public Service
Commission, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980), the U.S.Supreme
Court held that a statute banning promotional advertising by Public
Utilities was unconstitutional. That case setforth a "general scheme for assessing gove
rnment restrictions on commercial speech." Commercial speech will beprotected by the
First Amendment if (1) it concerns lawful activity and is not misleading; (2) the asserted
governmentinterest is not substantial; (3) the regulation does not directly advance the a
sserted governmental interest; and (4) theregulation is more extensive than is necessar
y to serve that interest. The U.S. Supreme Court has struck down bans ondrug advertisi
ng, (Thompson v. Western States Medical Center,, 535 U.S. 357, 122 S. Ct. 1497, 152
L. Ed. 2d 563 (2002)and tobacco advertising, Lorillard Tobacco Corp. v. Reilly,, 533 U.S.
525, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001), usingthis test.
Defamation and Privacy

In NEW YORK TIMES V. SULLIVAN, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), th
e U.S. Supreme Court declared that theFirst Amendment protects open and robust deb
ate on public issues, even when such debate includes "vehement, caustic,unpleasantly
sharp attacks on government and public officials." In Sullivan, a public official claimed th
at allegations abouthim that had appeared in the New York Times were false, and he su
ed the newspaper for libel. The Court balanced theplaintiff's interest in preserving his re
putation against the public's interest in freedom of expression, particularly in the area of
political debate. It decided that, in order to recover damages, a public official must prove
actual malice, which is knowledgethat the statements were false or that they were made
with reckless disregard of whether they were false.
Where the plaintiff in a Defamation action is a private citizen who is not in the public ey
e, the law extends a lesser degreeof constitutional protection to the statements at issue.
Public figures voluntarily place themselves in positions that inviteclose scrutiny, whereas
private citizens have a greater interest in protecting their reputation. A private citizen's r

eputationaland privacy interests tend to outweigh free speech considerations and theref
ore deserve greater protection from the courts(see Gertz v. Robert Welch, Inc., 418 U.S.
323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 [1974]).