Free Speech and Free Association in India

 Romesh Thappar v. The State of Madras, AIR 1950 SC 124-Freedom of speech and expression includes freedom propagation of
ideas and that freedom is ensured by the freedom of circulation.--- Apart from libel, slander etc. unless a law restricting
freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow
of it, such law cannot fall within the reservation under cl. (2) of art. 19 of the Constitution, although the restrictions which
it seeks to impose may have been conceived generally in the interests of public order.
 Brij Bhushan v. The State of Delhi, AIR 1950 SC 129 held- law preventing activities prejudicial to public safety and
maintenance of public order was not a law relating to “a matter which undermines the security of or tends to overthrow, the
State” within the meaning of the saving provisions contained in cl. (2) of art. 19 and was therefore unconstitutional and void.
 The decisions in Romesh Thappar and Brij Bhushan led to the passage of the First Amendment, which substituted the
phrase “undermines the security of, or tends to overthrow, the State” with “public order”, added an additional restriction
in the interests of preventing an incitement to an offence, and – importantly – added a the word “reasonable” before
“restrictions”.---
Before the First Amendment, the relevant part of Article 19(2) allowed the government to restrict speech that “undermines
the security of, or tends to overthrow, the State.” The scope of the restriction was examined by the Supreme Court in
Romesh Thappar v. State of Madras and Brij Bhushan v. State of Delhi, both decided in 1950. Both cases involved the ban
of newspapers or periodicals, under state laws that authorised the government to prohibit the entry or circulation of
written material, ‘in the interests of public order’. A majority of the Supreme Court struck down the laws. In doing so,
they invoked the concept of “over-breadth”: according to the Court, “public order” was synonymous with public
tranquility and peace, while undermining the security of, or tending to overthrow the State, referred to acts which could
shake the very foundations of the State. Consequently, while acts that undermined or tended to overthrow the State would
also lead to public disorder, not all acts against public order would rise to the level of undermining the security of the
State. This meant that the legislation proscribed acts that, under Article 19(2), the government was entitled to prohibit, as
well as those that it wasn’t. This made the laws “over-broad”, and unconstitutional. See https://cis-india.org/internet-
governance/blog/free-speech-and-public-order-1
 In 1963, Article 19(2) of the Constitution was amended for the last and final time, and the words ‘the sovereignty and integrity
of India’ were inserted in it, creating one more enumerated exception to the right to free speech. The Constitution
(Sixteenth Amendment) Bill, 1963 (hereinafter, the ‘Bill’) was informally referred to as the ‘Anti-Secession Bill’. It was
designed to prevent local political leaders in different regions within India from using the electoral process to peacefully propagate
secession from the Union. See https://www.thehindubusinessline.com/blink/know/the-house-is-in-cession/article9926186.ece
Preventive Detention
 Ram Manohar Lohia v. State of Bihar,1 said:
[O]ne has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle
representing public order and the smallest circle represents security of state. It is then easy to see that an act may affect law and
order but not public order just as an act might affect public order but not security of state. 2
In Superintendent, Central Prison vs Ram Manohar Lohia (1960), the Supreme Court held that there must be a “proximate”
relationship between speech and public disorder, and that it must not be remote, fanciful or far fetched.
 Pushkar Mukherjee v. State of West Bengal,3 --line of demarcation between serious and aggravated forms of disorder and minor
breaches of peace.
 Arun Ghosh v. State of West Bengal,4: “Public order is the even tempo of the life of the community taking the country as a whole
or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not
disturb the society to the extent of causing a general disturbance of public tranquillity... [Acts of this sort] affect the even tempo of
life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them
to make further breaches of the law and order.”5
 Anil Dey v. State of West Bengal,6 ---test to judicial review---whether the subjective satisfaction is “honest and real, and not
fanciful and imaginary.”7
 Ashadevi v. K. Shivraj,8 said: “[I]f material or vital facts which would influence the mind of the detaining authority one way or the
other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining
authority it would vitiate its subjective satisfaction rendering the detention order illegal.” 9
 Binod Singh v. District Magistrate Dhanbad Bihar,10 : “if a man is in custody and there is no imminent possibility of his being
released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was
served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be

1
AIR 1966 SC 740
2
Id. at 757.
3
AIR 1970 SC 852
4
AIR 1970 SC 1228.
5
Id. at 1229-30.
6
AIR 1974 SC 832.
7
Id. at 834.
8
(1979) 1 SCC 222
9
Id. at 227
10
(1986) 4 SCC 416.
 released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and
seriously before the service of the order.”11
 Sophia Gulam Mohd. Bham v. State of Maharashtra12: “the right to be communicated the grounds of detention flows from Article
22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to
make a representation against the order of detention. A representation can be made and the order of detention can be assailed only
when all the grounds on which the order is based are communicated to the detenu and the material on which those grounds are
based are also disclosed and copies thereof are supplied to the person detained, in his own language.”
 Wasi Uddin Ahmed v. District Magistrate, Aligarh13-detainee’s “right of making an effective representation.”
 A.K. Roy v. Union of India,14 -- no right to legal counsel in preventive detention cases- Only in case government also using legal
counsel.
 Anita Thakur v State of J&K—Stone pelting case- reasonable force should be used against the protestors
 PUCL v State of Maharashtra (2014)- Police Encounter guidelines—record in writing any intelligence or tip-off information-FIR
be registered in case death occurred in police encounter without delay-independent investigation of the encounter should be
conducted---Magisterial Inquiry- Medical aid to the injured victims and criminals- families of victims and criminals be informed-
Full investigation police u/s 173 CrPC be submitted to the competent so that expeditious and fair trial be conducted- Six monthly
statements of all cases be submitted to the NHRC by the DGPs—police weapons to be seized for forensic analysis- disciplinary
action against convicted police officials...suspension order- etc.
 Extra-Judicial Execution Victim Families Association v. Union of India (2016) 14 SCC 536—Inquiry must be conducted in
Manipur Police encounter case—The Constitution Bench held that an allegation of use of excessive force or retaliatory force by
uniformed personnel resulting in the death of any person necessitates a thorough enquiry into the incident.
Sedition Law
 Kedar Nath Singh v. State of Bihar15 said: “A citizen has a right to say or write whatever he likes about the Government, or its
measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by
law or with the intention of creating public disorder.”
 Balwant Singh v. State of Punjab,16 said: “raising some slogan only a couple of times by the two lonesome appellants, which
neither evoked any response nor any reaction from any one in the public can neither attract the provisions of Section 124A or
Section 153A IPC Some more overt act was required to bring home the charge to the two appellants, who are Government
servants. The police officials exhibited lack of maturity and more of sensitivity in arresting the appellants for raising the slogans -
which arrest -and act the casual raising of one or two slogans - could have created a law and order situation, keeping in view the
tense situation prevailing on the date of the assassination of Smt. Indira Gandhi. In situations like that, over sensitiveness
sometimes is counterproductive and can result is inviting trouble. Raising of some lonesome slogans, a couple of times by two
individuals, without anything more, did not constitute any threat to the Government of India as by law established not could the
same give rise to feelings of enmity or hatred among different communities or religious or other groups.”17
 Sanskar Marathe v. State of Maharashtra,18 a cartoonist Aseem Trivedi- Court said there is distinction between strong criticism
and disloyalty- mere criticism of the government is not sedition.
 Pankaj Butalia v. Central Board of Film Certification,19 the Delhi High Court -intention as important factor –in seditious act.---
isolated passages---no offense.
 Common Cause v. Union of India20 ordered to follow the principles laid down by the Constitution Bench in Kedar Nath Singh v.
State of Bihar.21
 Shyam Narayan Chouskey v. Union of India,22 --optional for cinema halls to play national anthem before every show. ------Bijoe
Emmanuel v. State of Kerala23 three children belonging to the Jehovah Witnesses sect ---stood up in respect.
 Union of India v. Naveen Jindal, 2004- Right to fly the National Flag freely with respect and dignity is a fundamental right of a
citizen within the meaning of Article 19(1) (a) of the Constitution of India being an expression and manifestation of his allegiance
and feelings and sentiments of pride for the nation; (ii) The fundamental right to fly National Flag is not an absolute right but a
qualified one being subject to reasonable restrictions under clause 2 of Article 19 of the Constitution of India; (iii) The Emblems
and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971 regulate the use of
the National Flag.
Right to Privacy and Right to Publish
 R. Rajagopal v. State of Tamil Nadu24 ---prisoner’s right to privacy within jail.

11
Id. at 420.
12
1999
13
AIR 1981 SC 2166
14
AIR 1982 SC 710
15
AIR 1962 SC 955
16
(1995) 3 SCC 214.
17
Id. at 220.
18
2015 Cri LJ 3561
19
(2015) 221 DLT 29
20
Supreme Court of India, Record Of Proceedings, Writ Petition(s)(Civil) No(s). 683/2016, decided on 5 September, 2016, available at: https://sci.gov.in/pdf/cir/2016-09-05_1473076904.pdf
21
AIR 1962 SC 955
22
Writ Petition (Civil) No.855 OF 2016, decided on January 9, 2018, available at: https://sci.gov.in/supremecourt/2016/30892/30892_2016_Judgement_09-Jan-2018.pdf
23
AIR 1987 SC 748
24
(1994) 6 SCC 632.
 Kaleidoscope(India) P Ltd. v. Phoolan Devi25 , the Delhi High Court—No publication of public figure’s private matters without
consent.
 R.K. Anand v. Delhi High Court,26 - sting operations in public interest
 Sidhartha Vashisht v. State(NCT of Delhi),27 --Say no to Trial by media
Right to Information and Right to Privacy
 Union of India v. Association for Democratic Reforms and Another,28 -- right to know about the social financial antecedents of
political candidates
 PUCL v. Union of India29 --right to know fundamental right
 Girish Ramchandra Deshpande v. Central Information Commissioner,30-- no disclosure of Annual Confidential Report unless
public interest is involved.
 R.K. Jain v. Union of India,31 --Annual Confidential Reports (ACRs) are personal.
 Shreya Singhal v. Union of India.32 -Section 66A of the Information Technology Act is arbitrary, excessive and disproportionate in
nature.
Right to Reputation
 Shilpa S. Shetty v. Magna Publications Co. Ltd. and others,33 ---if no public interest—no publication of the plaintiff’s personal life
 Subramanian Swamy v. Union of India,34 ---Sections 499 and 500 of the Indian Penal Code are valid.

Freedom of Association
 State of Madras v. V.G. Row, AIR 1952 SC 196- Supreme Court held: “the vesting of authority in the executive government
to impose restrictions on such right (freedom of association), without allowing the grounds of such imposition, both in their
factual and legal aspects, to be duly tested in a judicial inquiry, is a strong element which, in our opinion, must be taken into
account in judging the reasonableness of the restrictions imposed by section 15 (2) (b) on the exercise of the fundamental right
under article 19 (1) (c); for, no summary and what is bound to be a largely one-sided review by an Advisory Board, even where
its verdict is binding on the executive government, can be a substitute for a judicial enquiry. The formula of subjective
satisfaction of the Government or of its officers, with an Advisory Board thrown in to review the materials on which the
Government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional
circumstances and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions
on fundamental rights.”
 Babulal Parate v. State Of Maharashtra, AIR 1961 SC 884- (reasons of Magistrate u/s 144 are must)-Held- the attack on the
constitutional validity of s.144 of the Code of Criminal Procedure must read as a whole-- the section clearly showed that it was
intended to secure the public weal by preventing disorders, obstructions and annoyances. The powers conferred by it were
exercisable by responsible Magistrates who were to act judicially and the restraints permitted by it were of a temporary
nature and could be imposed only in an emergency. The restrictions which the section authorises are not beyond the limits
prescribed by cls. (2) and (3) of Art. 19 of the Constitution. The prevention of such activities as are contemplated by the
section is undoubtedly in public interest and therefore no less in the interest of public order. The impugned section must be
construed as a whole and although the first part of cl. (1) does not expressly mention that the order of the Magistrate
must be preceded by an enquiry, the second part clearly indicates that the Magistrate has to satisfy himself either by his
own enquiry or from a report made to him as to what the facts are. The section does not, therefore, confer an
arbitrary power on the Magistrate in the matter of making the order.-----Magistrate must act judicially.
 Madhu Limaye v. Ved Murti (1970) 3 SCC 746)—Urgency is the only criteria for order u/s. 144 Cr.PC.
 Ramlila Maidan Incident v. Home Secretary, Union of India & Ors. (2012) 5 SCC 1)- the degree of threat involved for the use
of s.144 Cr.PC not be ‘quandry, imaginary or a merely likely possibility, but a real threat to public peace and tranquility’.-“If the
orders passed by the Executive are backed by a valid and effective law, the restriction imposed thereby is likely to withstand the
test of reasonableness, which requires it to be free of arbitrariness, to have a direct nexus to the object and to be
proportionate to the right restricted as well as the requirement of the society, for example, an order passed under Section
144 Cr.P.C. This order is passed on the strength of a valid law enacted by the Parliament. The order is passed by an executive
authority declaring that at a given place or area, more than five persons cannot assemble and hold a public meeting. There is a
complete channel provided for examining the correctness or otherwise of such an order passed under Section 144 Cr.P.C. and,
therefore, it has been held by this Court in a catena of decisions that such order falls within the framework of reasonable
restriction.”- “ The distinction between `public order' and `law and order' is a fine one, but nevertheless clear. A restriction
imposed with `law and order' in mind would be least intruding into the guaranteed freedom while `public order' may qualify for a
greater degree of restriction since public order is a matter of even greater social concern. Out of all expressions used in this regard,

25
AIR 1995 Del. 316.
26
(2013) 1 SCC 218
27
AIR 2010 SC 2352.
28
AIR 2002 SC 2112
29
AIR 2003 SC 2363
30
(2013) 1 SCC 212.
31
(2013) 14 SCC 794
32
AIR 2015 SC 1523
33
AIR 2001 Bom. 176.
34
(2016) 7 SCC 221.
 as discussed in the earlier part of this judgment, `security of the state' is the paramount and the State can impose restrictions upon
the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of `public order' and `law
and order'. However stringent may these restrictions be, they must stand the test of `reasonability'. The State would have to satisfy
the Court that the imposition of such restrictions is not only in the interest of the security of the State but is also within the
framework of Articles 19(2) and 19(3) of the Constitution.”
 Arup Bhuyan v. State Of Assam, (2011) 3 SCC 377- Facts: The appellant is alleged to be a member of ULFA and the only
material produced by the prosecution against the appellant is his alleged confessional statement made before the Superintendent of
Police in which he is said to have identified the house of the deceased. ----Supreme Court held “mere membership of a banned
organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public
disorder by violence or incitement to violence.”
 Commercial Speech- This category of expression, which includes commercial advertising, promises, and solicitations, had
been subject to significant regulation to protect consumers and prevent fraud. Beginning in the 1970s, however, the Supreme
Court gradually recognized this type of speech as deserving some First Amendment protection.-- In Virginia State Board of
Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), the Supreme Court extended First Amendment free speech
protection to commercial speech. Writing for the Court in striking down a state law making it illegal for pharmacies to advertise
the price of drugs, Justice Blackmun asserted that the First Amendment not only includes the right of the speaker to speak but also
right of the listener to receive information. In this case, consumers had a right to receive lawful information about drug
prices. Moreover, the Court also noted that speech does not lose its protection simply because money is transacted through it. To
support that claim, the Court cited political communications involving political contributions and expenditures. Thus, Blackmun
concluded that commercial speech, even a communication such as advertising, which merely suggests a business transaction, is
protected by the First Amendment. Blackmun also noted, however, that simply because this type of speech is protected speech
does not mean that it is immune from government regulation. This type of speech is entitled to less protection than political
speech and can be regulated if false or misleading. Unlike with political speech, the truth of which may be difficult to ascertain,
the Court thought commercial advertising to be more objective and thus subject to determination of its truth content.
In Central Hudson Gas and Electric Corp. v. Public Service Commission (1980), (Facts-In an effort to conserve energy and
discourage consumption during the 1973 energy crisis, the Public Service Commission of New York had ordered all
electric utilities in the state to cease advertising. Central Hudson Gas and Electric Corp. challenged the order in court as a
restraint on free speech)--- the Court sought to determine how far the regulation of commercial speech can go before it runs
afoul of the First Amendment. In this case, the justices proposed a test in which a court must first decide whether the expression
is fraudulent or illegal. If the speech is fraudulent or illegal, the government can freely regulate it without First Amendment
constraints. If it is not, then the court must ask whether the asserted governmental interest is substantial. If both questions are
answered yes, the court must determine whether the regulation directly advances the governmental interest asserted and
whether it is more extensive than is necessary to serve that interest. If the regulation is narrowly tailored to secure the interest,
then the regulation of the commercial speech will be upheld. Using the four-pronged Central Hudson test, the Court in Posadas de
Puerto Rico Associates v. Tourism Company of Puerto Rico (1986) upheld a law in Puerto Rico that barred casinos from
advertising to its residents. The Court found that the interest of Puerto Rico in preventing its residents from receiving these
advertisements furthered the narrowly drawn governmental interest of preventing gambling and to protect their health, safety, and
welfare. In 44 Liquormart, Inc. v. Rhode Island (1996), the Supreme Court used the same four-pronged test to strike down a
state law prohibiting the advertising alcohol prices. As in Virginia State Board of Pharmacy, the Court ruled that the right of
consumers to receive truthful product information about prices was protected speech and that the state interest in promoting
temperance was not narrowly drawn enough to prevent consumers from receiving lawful and truthful information about prices.
Through the Central Hudson test, courts across the country have invalidated numerous laws regulating commercial speech. As a
result, doctors and lawyers may now advertise, and many companies and businesses, such as pharmaceutical manufacturers, are
able to communicate information to consumers about their products so long as the information is truthful and legal.
Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985)-- A State may require advertisers
to include “purely factual and uncontroversial” disclosures without violating the First Amendment rights of the advertiser
as long as the disclosure is in the State's interest in preventing deception of consumers.-----Zauderer’s case established a
constitutional standard where the government can mandate commercial speech, in the form of disclaimers, as long as the
information is “purely factual and uncontroversial”, serves a related government interest, and is meant to prevent consumer
deception.
Freedom of Association in United States
 In De Jonge v. Oregon, 299 U.S. 353 (1937), the Supreme Court ruled that state governments may not violate the
constitutional right of peaceable assembly. The decision contributed to the development of “symbolic speech” and “speech
plus” categories, concepts relating to speech combined with conduct or action.
On July 27, 1934, the Portland police arrested Communist Party member Dirk De Jonge and three other speakers at a meeting
of 150–300 people who were protesting police brutality in recent confrontations with striking union longshoremen. While De
Jonge appealed to some communist ideas during his speech, neither he nor the other speakers advocated violence.
 In the unanimous decision, the Court ruled against Oregon’s 1930 Criminal Syndicalism Act, as amended in 1933, which made
it a felony for “any person to become a member of any society or assemblage of persons which teaches or advocates the
doctrine of criminal syndicalism.”
The statute, which was intended to suppress communism, defined criminal syndicalism as the doctrine that “advocates crime,
physical violence, sabotage, or any unlawful acts or methods as a means of accomplishing or effecting industrial or political
change or revolution.”
 In Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939), the Supreme Court ruled that banning a group of
citizens from holding political meetings in a public place violated the group’s freedom to assemble under the First Amendment.
The case helped set the precedent for what is now known as the public forum doctrine, a tool used by courts to determine the
constitutionality of speech restrictions implemented on government property, when it secured the right of access to public
places for citizens engaging in free speech and free assembly.----This case is famous for public forum doctrine -Justice
Owen J. Roberts’s wrote: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the
use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens,
and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens.”
 In Marsh v. Alabama, 326 U.S. 501 (1946), the Supreme Court held that a person distributing religious literature on the
sidewalk of a “company town”( even though the sidewalk was part of a privately owned company town) was protected by the
First Amendment rights of freedom of the press and religion and could not be arrested for trespass.
 In United Public Workers of America v. Mitchell, 330 U.S. 75 (1947), the Supreme Court, by a vote of 4-3, upheld the
provisions of the Hatch Act of 1939, which prevented federal employees from taking “any active part in political
management or in political campaigns.” Congress passed the Hatch Act out of concern that public employees might use their
public positions for specific partisan purposes. It hoped, through the act, to promote political neutrality, so that neither the
government nor public employees, while working, would favor one political party over another, thereby undermining public
confidence in a fair and impartial government.
(In Ex parte Curtis, 106 U.S. 371 (1882), the Supreme Court upheld the constitutionality of an 1876 act prohibiting U.S.
government officials from requesting or receiving money from other government employees for political purposes. Justice
Joseph Bradley’s dissent specifically evoked the First Amendment freedoms of speech, press, and assembly. Chief Justice
Morrison R. Waite argued that the law did not differ in principle from previous laws that limited businesses in which
government employees could be engaged. Congress designed the law to “promote efficiency and integrity . . . and to maintain
proper discipline in the public service,” and it had the implied power to do so. If government supervisors could call on their
subordinates for campaign contributions, government salaries might be raised and government funds used to sustain the
political party in power.)
 In NAACP v. Alabama, 357 U.S. 449 (1958), --- Question—Does Alabama’s order to the NAACP to produce its
membership list violate the due process clause of the Fourteenth Amendment? Decision—Yes, this order interfered with
the right of association that is necessary to effective advocacy- The Supreme Court unanimously ruled that the First
Amendment protected the free association rights of the National Association for the Advancement of Colored People (NAACP)
and its rank-and-file members. When this case was decided, the NAACP was one of the few, if not only, active civil rights
organizations in the South. Thus, this case allowed the only operative civil rights organization to exist in the South, with a
minimum level of protection from intimidation.---- Court decisions have established “the close nexus between the freedoms of
speech and assembly” and “between freedom to associate and privacy in one’s association.” Past disclosures of NAACP
memberships have led to “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of
public hostility.”
 In Elfbrandt vs. Russell 384 US 17-19 (1966) Justice Douglas of the U.S. Supreme Court speaking for the majority observed :
“Those who join an organization but do not share its unlawful purpose and who do not participate in its unlawful activities
surely pose no threat, either as citizens or as public employees. A law which applies to membership without the `specific intent'
to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of ‘guilt by
association’ which has no place here.”
 Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)-- The First Amendment, as applied
through the Fourteenth, did not permit a public school to punish a student for wearing a black armband as an anti-war
protest, absent any evidence that the rule was necessary to avoid substantial interference with school discipline or the rights of
others.
 Roberts v. United States Jaycees, 468 U.S. 609 (1984)-Facts- The United States Jaycees, an organization for young business
leaders, originally accepted only men as members, but by the early 1970s it was admitting women as associate members with
no voting privileges. Two Minnesota chapters sought to admit women as full members, and when the national Jaycees
threatened to revoke their charters, the chapters sued under Minnesota’s public accommodations law, which banned
discrimination against women by membership organizations.---Held- the Court held: -Application of the Minnesota Human
Rights Act to compel the Jaycees to accept women as regular members did not abridge either male members’ freedom of
intimate association or their freedom of expressive association.-The Act was not unconstitutionally vague and
overbroad. Several features of the Jaycees, including its large size, unselective membership, and purpose, placed it
outside the sphere of relationships protected by the First Amendment. The Court ruled that the State's compelling interest
in combating gender discrimination justified the law's impact on the Jaycees' First Amendment rights.
 Board of Directors of Rotary International v. Rotary Club of Duarte, 481U.S. 537; 107 S. Ct. 1940; 95 L. Ed. 2d 474 (1987)
Facts—Each local Rotary Club is a member of Rotary International in which (as of 1982) there were 19,788 clubs
worldwide in 157 countries with a total membership of a little more than 900,000 members. Individuals are admitted to
membership according to a “classification system” that includes representatives of every worthy and recognized business,
 professional, or institutional activity in the community. The system permits additional members as associate, senior active, or
past service, but does not limit the number of clergymen, journalists, or diplomats. Although each Rotary adopts its own
rules, membership is open only to men. Although women are invited to attend various activities and can even form auxiliary
units, they cannot be members. When the Duarte Rotary admitted women, the directors revoked their charter. Meanwhile the
local Rotary went to court. After a bench trial in favor of Rotary, the California Court of Appeals reversed the decision.
Question—Did the California statute (Unruh Act) that required California Rotary Clubs to admit women members violate
the First Amendment? Decision—No.
Reasons—J. Powell (7–0). The California Court of Appeals found that Rotary Clubs—although committed to humanitarian
service, high ethical standards in all vocations, and a concern for good will and world peace— are business establishments
and therefore subject to the Unruh Act. The trial court erred in holding that Rotary was only incidentally involved in
business. The appeals court rejected the view that Rotary does not provide services or facilities to its members. Rotary is not
a small intimate club that gives rise to “continuous, personal, and social” relationships of a kind of which the Court is
solicitous in protecting. Rotary does not fall in this category. In determining this protection “we consider factors such as
size, purpose, selectivity and whether others are excluded. “Many of the Rotary Clubs central activities are carried on in the
presence of visitors and strangers. Rather than keep an atmosphere of privacy they “seek to keep their windows and doors
open to the whole world.” The evidence fails “to demonstrate that admitting women to Rotary Clubs will affect in any
significant way the existing members’ ability to carry out their various purposes.” The Unruh Act does not violate the right
of expressive association afforded by the First Amendment.
 Gillman v. Holmes County School District, 567 F. Supp. 2d 1359 (N.D. Fla. 2008), was a decision in the Northern District of
Florida which upheld a student's First Amendment right to express pro-gay sentiments at Ponce de Leon High School.
 In Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)- It is a landmark United States Supreme Court case
concerning campaign finance. A sharply divided (5-4) U.S. Supreme Court invalidated a provision of the Bipartisan
Campaign Reform Act (BCRA) that prohibited corporations and unions from using their general treasury funds for express
advocacy or electioneering communications.--- The Court held that the free speech clause of the First Amendment prohibits the
government from restricting independent expenditures for political communications by corporations, including nonprofit
corporations, labor unions, and other associations.
This decision is one of the most talked about and controversial First Amendment decisions issued by the U.S. Supreme
Court in recent memory.
 In Elonis v. United States, 575 U.S. ___ (2015) ,Chief Justice John G. Roberts, Jr. was joined by six justices who reversed a
trial-court conviction, which had been upheld by the 3rd U.S. Circuit Court of Appeals. They decided that Anthony Douglas
Elonis had been improperly convicted of transmitting threats through postings on Facebook.-- Although the federal statute (18
USC Sec. 875 (c)) under which Elonis was convicted does not specify an individual’s requisite mental state, the Court has long
insisted that “wrongdoing must be conscious to be criminal.” This is because criminal law has always insisted on actual
blameworthiness as expressed in such terms as “mens rea, scienter, malice aforethought, guilty knowledge and the like.” A
criminal defendant must “know the facts that make his conduct fit the definition of the offense.”
 In Packingham v. North Carolina, 582 US ___ (2017), the U.S. Supreme Court unanimously invalidated a North Carolina law
that prohibited sex offenders from accessing social media websites. The Court explained that social media users, including sex
offenders, access websites covered under the law for a wide range of lawful activities. The Court explained that --social media
“websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.”
 Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466, 585 U.S. ___ (2018)
– Compelled Speech -In this decision, the U.S. Supreme Court ruled 5-4 that an Illinois law requiring non-union members to
pay agency fees for the union to engage in collective bargaining and related activities amounts to an unconstitutional
compulsion of speech in violation of the First Amendment. The Court overruled its decision in Abood v. Detroit Bd. of Educ.
(1977), which had upheld a similar agency shop arrangement.-- Samuel A. Alito, Jr. who viewed the agency fee arrangements
as pure compulsion of speech. “Compelling individuals to mouth support for views they find objectionable violates that
cardinal constitutional command, and in most contexts, any such effort would be universally condemned,” he wrote. “Because
the compelled subsidization of private speech seriously impinges on First Amendment rights, it cannot be casually allowed.”
 Compelled Speech-The compelled speech doctrine sets out the principle that the government cannot force an individual
or group to support certain expression. Thus, the First Amendment not only limits the government from punishing a
person for his speech, it also prevents the government from punishing a person for refusing to articulate, advocate, or
adhere to the government’s approved messages.
West Virginia State Board of Education is the classic compelled speech case
The Supreme Court’s decision in West Virginia State Board of Education v. Barnette (1943) is the classic example of the
compelled speech doctrine at work.
In this case, the Court ruled that a state cannot force children to stand, salute the flag, and recite the Pledge of Allegiance. The
justices held that school children who are Jehovah’s Witnesses, for religious reasons, had a First Amendment right not to recite
the Pledge of Allegiance or salute the U.S. flag.
In oft-cited language, Justice Robert H. Jackson asserted, “If there is any fixed star in our constitutional constellation, it
is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters
of opinion or force citizens to confess by word or act their faith therein.”
 Mass Surveillance ECHR Jurisprudence
 Decided on 13th September 2018 ECHR The case of Big Brother Watch and Others v. the
United Kingdom (applications nos. 58170/13, 62322/14 and 24960/15) concerned complaints by
journalists and rights organisations about three different surveillance regimes: (1) the bulk
interception of communications; (2) intelligence sharing with foreign governments; and (3) the
obtaining of communications data from communications service providers.
 The Court ruled:
 The UK's mass collection of information and communications was found to violate Article 8 of the
European Convention on Human Rights that guarantees a right to privacy. Judges noted that there
was "insufficient oversight" over the selection and interception of the data.
 However, the court said that the bulk interception of communications was not, in and of itself, illegal,
but that future programs "had to respect criteria set down in its case-law."
 The court was more decisive when it came to the interception of journalistic material, ruling that such
programs violate the right freedom of information.
 A program for obtaining data from communications providers was also found to be "not in
accordance with the law."
 The exchange of intelligence data between foreign governments, such as the exchange between
British and US spy agencies, was ruled legal.

In Sanoma Uitgevers BV v. The Netherlands,[1] the public authorities seized the journalistic material for
investigating a crime despite a confidentiality agreement between the journalists and their sources. The
European Court of Human Rights held that the right to free expression can be restricted reasonably when
the following conditions are fulfilled:
· the restriction is explicitly authorized by law;
· the procedural safeguards, including an assessment of the public interest by a judge or
other impartial and independent body, are existed;
· the impartial and independent assessment of the public interest must be done prior to the
exploitation of the material by the authorities or before the identity of sources is revealed.
The Court noted that:
[O]rders to disclose sources potentially have a detrimental impact, not only on the source, whose identity
may be revealed, but also on the newspaper or other publication against which the order is directed, whose
reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on
members of the public, who have an interest in receiving information imparted through anonymous sources.

Journalistic Sources' confidentiality-- Canada Supreme Court 27-9-2019

Denis v. Côté--Date: September 27, 2019-Neutral Citation: 2019 SCC 44
A journalist can only be forced to reveal a source if it’s absolutely necessary and in the public
interest --This was the first time the Court looked at new rules to protect journalists’ confidential sources.
The majority gave some guidance on how the rules should be used. It said the person who didn’t want to
reveal a source has to show they are a “journalist” and their source is a “journalistic source” under
the Canada Evidence Act. The person who wants the information has to show they can’t really get it any
other way. They also have to show that the public has a greater interest in making sure the crime is
prosecuted than it does in protecting the confidential source. The majority said that revealing journalists’
confidential sources should only be a last resort.