Civil Liberties Database

(This is a continuing work-in-progress. Summaries will be added soon)

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1. Free Speech

(a) Obscenity

I. United States

(i) Roth v. United States (1957) [Wiki; Case]

(ii) Memoirs v. Massachusetts (1966) [Wiki; Case]

(iii) Miller v. California (1973) [Wiki; Case]

II. Canada

(i) R v. Butler (1992) [Wiki; Case]

III. South Africa

IV. ECHR

(i) Handyside v. United Kingdom (1976) [Wiki; Case]

(ii) Wingrove v. United Kingdom (1997) [Summary; Case]

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(b) Pornography

I. United States
(i) American Booksellers v. Hudnut (1985) [Wiki; Case]

(ii) United States v. Playboy (2000) [Wiki; Case]

II. Canada

III. South Africa

(i) De Reuk v. DPP (2003) [Summary; Case]

IV. ECHR

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(c) Hate Speech

I. United States

(i) Beauharnais v. Illinois (1952) [Wiki; Case]: Hate speech understood as group

defamation/group libel.

(ii) RAV v. St Paul (1992) [Wiki; Case]

(iii) Virginia v. Black (2003) [Wiki; Case]

II. Canada

Legislation: S. 319, Criminal Code, 1985: “communicating statements in any public

place, incites hatred against any identifiable group where such incitement is likely to lead

to a breach of the peace…” (See, also, the religious objection)

(i) Canada v. Taylor (1990) [Case]

(ii) R v. Keegstra (1992) [Wiki; Case]

(iii) R v. Zundel (1992) [Wiki; Case]

(iv) R v. Krymowski (2005) [Wiki; Case]

(v) Sasketchawan v. Whatcott (2013) [Case]

III. South Africa

(i) Islamic Unity Convention v. Independent Broadcasting Authority (2002) [Summary;

Case]

IV. ECHR

(i) Otto-Preminger-Institut v. Austria (1994) [Summary; Case]

V. United Kingdom

(i) King v. Osborne (1732) [Summary]: hate speech understood as group defamation.

VI. UN Human Rights Committee

(i) Faurisson v. France (1996) (holocaust denial case) [Opinion]

Miscellaneous Hate Speech Legislation:

(i) Denmark: Article 266(b), Penal Code: “publicly or with the intention of dissemination

to a wide circle of people makes a statement or imparts other information threatening,

insulting or degrading a group of persons on account of their race, colour, national or

ethnic origin, belief or sexual orientation…”

(ii) Germany: s. 130, German Penal Code: “…incite hatred against segments of the

population or call for violent or arbitrary measures against them in a manner capable

of disturbing the peace…”

Selected Scholarship:
(i) Stephanie Farrior, Molding the Matrix: The Historical and Theoretical Foundations of

the International Law Concerning Hate Speech (here)

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(d) Subversive/dangerous speech/public order

I. United States

(i) Masses v. Patten (1917) [Wiki; Case]: While Brandenburg v. Ohio is taken to be the

case that established the heavily speech-protective “incitement to imminent lawless

action”, that test was foreshadowed fifty years before by Judge Learned Hand, writing

for the district court, in Masses v. Patten, written at the height of WWI

hysteria. Masses was immediately overruled by the Appeals Court, and although short,

remains a model of clear and lucid thinking about free speech.

(ii) Cantwell v. Connecticut (1940) [Wiki; Case]: Cantwell, a Jehovah’s Witness, standing

in a public place, played to a couple of Roman Catholics – with their permission –

recordings of a proselytizing nature, and was booked. The Court made it clear that there

was nothing in Cantwell’s conduct that amounted to traditional torts such as nuisance,

breach of peace, and so on – the only problem was that the effect of his communication

was to offend his hearers. The Court limited breach-of-peace grounded censorship to

“profane, indecent or abusive remarks directed to the person of the hearer“, but nothing

more.

(iii) Terminiello v. Chicago (1949) [Wiki; Case]: This case deals with the “hostile

audience” problem. What happens when a speaker says something that provokes his

audience to violent action? In Terminiello, the Supreme Court came down decisively on

the side of the speaker. Holding invalid the jury instruction to convict the speaker if his

speech “stirs the public to anger, invites dispute, brings about a condition of unrest, or

creates a disturbance“, the Court held that “the function of free speech is to invite

dispute… it best serves its high purpose when it induces a condition of unrest, creates

dissatisfaction with conditions as they are, or even stirs people to anger.”

(iv) Edwards v. South Carolina (1963) [Wiki; Case]: Affirmed Terminiello, and held that

free speech does not permit “the State to make criminal a peaceful expression

of unpopular views.”

(v) Cox v. Louisiana (1965) [Wiki; Case]: Held, again, that as long as the demonstration

itself is peaceful, a violent reaction on part of the hostile audience is no ground for

prohibition.

Relevance to India: A lot of censorship in India takes place because certain groups

threaten violence if films/exhibitions “offensive” to them are put up, and the police

refuse to guarantee protection to the film-maker/exhibitioner. Cases like Terminiello

make it clear that if free speech is to mean anything at all, the “heckler’s veto” cannot

be permitted; it is no answer to the hostile audience’s threat to create a breach of public

order by banning speech – that is tantamount to a private right of censorship. The

answer is to require the forces of law and order to perform their constitutional duty –

preserving public order.

(vi) Brandenburg v. Ohio (1969) [Wiki; Case]: definitively laid down the test of

censorship as requiring the statement to amount to an “imminent incitement to lawless

action”, and likely to result in such lawless action. This case marked the end of the “clear

and present” danger test, that had been grossly abused during the 1950s witch-hunt of

suspected communists.

Relevance to India: Brandenburg is an important case, because it established the

“incitement to imminent lawless action” test for justifying free-speech restrictions on

public order grounds. Previously, the test had been Justice Holmes’ “clear and present

danger” standard. However, during the McCarthy era in the 50s, this test had been

widely misused in cases such as Denis v. United States to suppress communist party

members. Brandenburg thus established a more stringent standard, to avoid politically

motivated persecutions of just this sort. Justice Douglas, in his concurrence, compared

the situation to shouting “fire” in a crowded theatre. In India, the public order standard

under 19(2) is extremely unclear. “Clear and present danger” has been cited in a

number of cases (e.g., K.A. Abbas), but so has the expression “spark in a powder keg”
been used, which seems closer to the Brandenburg formulation. In Lohia, direct

advocacy of lawbreaking was held protected under 19(1)(a), since it wasn’t delivered to

an enraged mob, and wasn’t advocating immediate violence. Lohia could thus square

with either “clear and present danger”, or “incitement to imminent lawless action”. In

either event, the law needs clarity, and the Brandenburg formulation would be a good

one to adopt.

(vii) Cohen v. California (1971) [Wiki; Case]: Protesting the Vietnam War, Cohen wore a

jacket with the blazon “Fuck the Draft” outside the courthouse. He was arrested under a

statute that prohibited “disturbing the peace… through offensive conduct.”

(viii) Texas v. Johnson (1989) [Wiki; Case]: The landmark case that upheld a free

speech right to desecrate (burn) the American flag. Responding to the State’s argument

that it had an interest in preventing breaches of peace that would follow from public

disrespect of the flag, the Court famously quoted Terminiello in response.

II. Canada

III. South Africa

IV. ECHR

(i) United Communist Party v. Turkey (1998) [Summary; Case]

(ii) Refah Partisi v. Turkey (2003) [Summary]

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(e) Freedom of the Press and Libel

I. United States

(i) New York Times v. Sullivan (1964) [Wiki; Case]

Relevance for India: The “knowledge/ reckless disregard of falsehood” standard, which

is higher than the ordinary defamation standard (where falsity is enough), essentially

provides the press with desperately-needed breathing space, and ensures that

journalism will not be chilled for fear of limitless libel lawsuits. Notably, after New York

Times, the American press has never lost a libel lawsuit. In India, with the press under

ceaseless libel attack from powerful figures, this rule (or something like it) is much

needed. It has often been cited by the Court, but never expressly incorporated into law.

(ii) Curtis Publishing Co. v. Butts (1967) [Wiki; Case]: Effectively extended the

recklessness standard from NYT v. Sullivan from state officials to all “public figures”. In

his concurring opinion, Chief Justice Warren provided the logic:

“It is plain that, although they are not subject to the restraints of the political process,

“public figures,” like “public officials,” often play an influential role in ordering society.

And surely, as a class, these “public figures” have as ready access as “public officials” to

mass media of communication, both to influence policy and to counter criticism of their

views and activities. Our citizenry has a legitimate and substantial interest in the

conduct of such persons, and freedom of the press to engage in uninhibited debate

about their involvement in public issues and events is as crucial as it is in the case of

“public officials.” The fact that they are not amenable to the restraints of the political

process only underscores the legitimate and substantial nature of the interest, since it

means that public opinion may be the only instrument by which society can attempt to

influence their conduct.

I therefore adhere to the New York Times standard in the case of “public figures” as well

as “public officials.” It is a manageable standard, readily stated and understood, which

also balances to a proper degree the legitimate interests traditionally protected by the

law of defamation. Its definition of “actual malice” is not so restrictive that recovery is

limited to situations where there is “knowing falsehood” on the part of the publisher of

false and defamatory matter.”

(iii) Gertz v. Robert Welch (1974) [Wiki; Case]: Held that, for those states where the

defamation standard was lower than the NYT v. Sullivan actual malice rule, only actual
damages could be awarded. The logic was that punitive damages could be used by juries

to punish unpopular opinions.

Relevance to India: The actual damages v. punitive damages is a critical distinction,

because many of the recent legal notices and lawsuits (e.g., Sahara, Reliance and the

rest) have involved astronomical punitive damages. Gertz’s logic is jury-specific, and

does not apply to judges, but the overall rationale – that punitive damages have a

deeply chilling effect on speech – remains.

II. Canada

III. South Africa

IV. ECHR

V. United Kingdom

(i) Derbyshire CC v. Times Newspapers Ltd. (1992) [Case]: In this case, the House of

Lords adopted the NYT v. Sullivan test insofar as governing bodies are concerned; that

is, governing bodies could not sue for libel unless they proved actual malice/reckless

disregard. The Court didn’t extend it to personal claimants arguing damage to reputation

(e.g., Commissioner Sullivan in NYT v. Sullivan)

(ii) Defamation Act: In an attempt to find a balance between the absolutist position

in NYT v. Sullivan, and traditional libel law, the United Kingdom passed the Defamation

Act, which came into force on January 1, 2014. The Act is available here. Salient

features include:

– a “serious harm” threshold

– corporate claimants must show “actual or likely serious financial loss”

– a defence of “honest opinion”

– a “public interest” defence

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(f) Over-breadth and vagueness

I. United States

(i) Gooding v. Wilson (Summery; Case)

(ii) Grayned v. Rockford (1972) (Summary; Case): holding that “vague laws may trap

the innocent by not providing fair warning… if arbitrary and discriminatory enforcement

is to be prevented, laws must provide explicit standards for those who apply them… a

vague law impermissibly delegates basic policy matters to policemen, judges, and juries

for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary

and discriminatory application… where a vague statute “abut[s] upon sensitive areas of

basic First Amendment freedoms,”… it “operates to inhibit the exercise of [those]

freedoms.” Uncertain meanings inevitably lead citizens to “steer far wider of the

unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.”

(iii) City of Houston v. Hill (1987) (Summary; Case)

Relevance for India: The over-breadth doctrine rests upon two simple premises: first,

that speech-restrictive statutes that are nor narrowly and specifically drawn will

necessarily chill legitimate speech, as people will err on the side of caution, and self-

censor to remain within the bounds of the statute. And secondly, it will prompt selective

enforcement, something that is of special concern as far as speech is concern, because

of the perils of state-censorship. Over-breadth, therefore, should be looked to with

particular strictness by Courts. Most of the speech-restrictive Indian laws are arguably

over-broad. Leading the way is, of course, S. 66A of the IT Act, but S. 153A and 295A

of the IPC, and various provisions of the SC and ST (Prevention of Atrocities Act) are

framed, as well, in a manner that is vague and specifically open to abuse.

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(g) Gag Orders, Prior Restraints on Publication and the Media

Milton’s Areopagitica remains one of the most powerful and eloquent statements against

prior restraint.

I. United States

(i) Near v. Minnesota ((1931) [Wiki; Case]: The landmark case that rejected prior

restraints altogether upon newspaper. Anthony Lewis called it the “first great press

freedoms case” of the US Supreme Court.

(ii) New York Times v. US (“Pentagon Papers Case“) (1971) [Wiki; Case]

(iii) Nebraska Press Association v. Stuart (1972) [Wiki; Case]: holding that prior

restraint, or a gag order on the media, in reporting a case, could be justified only if no

other way existed in order to achieve a fair trial, and that the government hadn’t shown

this (in the context of a murder trial). Prior restraint, the Court held, bore a stringent

standard of justification because it had an “immediate and irreversible sanction”. In

addition, “the damage can be particularly great when the prior restraint falls upon the

communication of news and commentary on current events”, for “the element of time is

not unimportant if press coverage is to fulfill its traditional function of bringing news to

the public promptly.” The Court held that the fair-trial justification would only be upheld

if the government could show the “requisite degree of certainty.” Writing the

concurrence, Justice Brennan wrote: “the press may be arrogant, tyrannical, abusive,

and sensationalist, just as it may be incisive, probing, and informative. But at least in

the context of prior restraints on publication, the decision of what, when, and how to

publish is for editors, not judges.”

(iv) Freedman v. Maryland (1965) [Wiki; Case]: Established rigorous procedural

safeguards, including compulsory judicial scrutiny, before a State- run censor board

could ban a film.

II. Canada

III. South Africa

(i) Print Media v. Minister of Home Affairs (2012) [Summary; Case]

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(h) Free speech and equitable distribution of speech resources

I. USA

(i) Red Lion v. FCC (1968) [Summary; Case]: Red Lion explains – and upholds – the

“fairness doctrine“, which requires holders of Broadcast Licenses to present both sides of

controversial public issues (in the United States, it was formally revoked in 2011). Red

Lion is important because it framed the issue as a question of the rights of listeners to a

fair and balanced debate, one that would serve the democracy-sustaining values of free

speech.

(ii) Miami Herald v. Tornillo (1974) [Wiki; Case]: Refused to extend the Red

Lion rationale to print media.

(iii) Turner v. FCC (1994) [Wiki; Case]: The Court upheld the constitutionality of must-

carry rules – that is, rules requiring a cable provider to carry locally licensed television

channels. Doing so required it to follow Red Lion and distinguish Tornillo; it did so by

arguing that the monopoly enjoyed by cable providers was exclusionary, and therefore of

a different order than that enjoyed by big newspapers. In the interests of ensuring

opinion from a diverse variety of sources, the must-carry rules were constitutional under

the First Amendment.

Selected Scholarship:

(i) O. Fiss, Free Speech and Social Structure

—

(i) Commercial speech

I. United States

(i) West Virginia Board of Pharmacy v. Virginia [Wiki; Case]

(ii) Central Hudson Gas v. Public Service Commission [Wiki; Case]

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2. Anti-Discrimination

(a) Sex

I. United States

(i) Frontiero v. Richardson (1973) [Wiki; Case]

ii) Craig v. Boren (1976) [Wiki; Case]

(iii) Personnel Administrator v. Feeney (1976) [Wiki; Case]

(iv) Miss. Univ. v. Hogan (1982) [Wiki; Case]

(v) US v. Virginia (1996) [Wiki; Case]

(vi) Nguyen v. INS (2001) [Wiki; Case]

Relevance to India: These cases reflect the “anti-stereotyping” principle in American

sex-equality jurisprudence (although Feeney goes the other way – but see the

Marshall/Brennan dissent; as does Nguyen – but see the O’Connor et al dissent). Facially
neutral statutes that have a disparate impact on women violate the Constitutional

guarantee of equal protection of laws if such laws are founded upon “stereotypes” about

the role of men and women in society, their capabilities and abilities etc, and thus deny

women legitimate choices and exercise of their autonomy. Notably, this highly

progressive vision of equality was expressly incorporated into Indian law in Anuj Garg. If

pressed into service, it can become a powerful constitutional argument against

particularly regressive laws against women, such as the marital rape exception,

restitution of conjugal rights etc.

(b) Sexual Orientation

I. United States

(i) Bowers v. Hardwick (1986) [Wiki; Case]

(ii) Romer v. Evans (1996) [Wiki; Case]

(iii) Lawrence v. Texas (2003) [Wiki; Case]

(iv) Att-Gen Holder’s letter to Congress explaining the Obama administration’s legal

stance on same-sex marriage, and the constitutional rights of homosexuals (2011)

[Online copy]

(v) United States v. Windsor (2013) [Wiki; Case]: Windsor was about the

constitutionality of refusing equal benefits to same-sex couples, as were enjoyed by

heterosexual couples. The Court held this to be unconstitutional. Because issues of

American federalism were directly at issue in this case, it is not of direct relevance;

nonetheless, the Court acknowledged that the impugned provision “wrote inequality into

the entire United States Code”, and that it “demeaned” same-sex couples.

(vi) Elane Photography v. Willock (2013) (New Mexico Supreme Court) [Summary;

Case]: In Elane Photography, the Supreme Court of New Mexico held that a photography
shop that denies its services to same-sex couples was in violation of the state anti-

discrimination law.

Relevance to India: This case is important, because it involves a particularly clear and

lucid discussion of the fallacy in differentiating between a person’s “status” and his/her

“conduct”, which was a central aspect of the Supreme Court’s reasoning in Koushal v.

Naz. Elane Photography (following Lawrence v. Texas) clearly holds that “conduct… is

inextricably tied to orientation.”

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3. Freedom of Religion/Conscience

(a) Defining religion

I. United States

(i) Torasco v. Watkins (1961) [Wiki; Case]

(ii) United States v. Seeger (1965) [Wiki; Case]

(iii) Welsh v. United States (1970) [Summary; Case]

(b) Exemptions for religious conduct

I. United States

(i) Wisconsin v. Yoder (1972) [Wiki; Case]

(ii) Employment Division v. Smith (1990) [Wiki; Case]