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Report No. 267

United States

4.26 The First amendment of the U.S. Constitution forbids the Congress from making law prohibiting the exercise of free speech. The speech protection doctrine in United States relies on two important assumptions, firstly,68 that there should be equality in the marketplace of ideas and secondly,69 the government cannot be given the power to differentiate between good and bad speech. The stringent protection afforded to speech is one of the hallmarks of the United States Constitution.70

4.27 Chaplinsky v. New Hampshire,71 was an important case where the United States Supreme Court differentiated between different classes of speech and held that there are certain forms of speech like fighting words, obscenities, certain profane and slanderous speech, which are excluded from the protection under First Amendment. Thus, the court held that laws restricting such 'low value speech' were constitutional and upheld the conviction of Chaplinsky under a State law that penalised offensive and derisive speech.

4.28 Relying on Chaplinsky,72 the Supreme Court in Beauharnais v. Illinois73 upheld the conviction of Beauharnais under the State law prohibiting libel amounting to unrest or breach of peace on grounds of race, colour, creed or religion. The court considered such speech outside the ambit of the First amendment, observing that 'such utterances are not essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality'.

4.29 Fighting words were narrowly construed in Cohen v. California74 to mean 'those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.'75It was reasoned that the aim of the State cannot be to censor every controversial vocabulary so as to make conversation 'palatable to the squeamish.'76

4.30 However, this case was overruled in New York Times v. Sullivan,77 where it was held that until and unless a malicious intent to defame with utter disregard to the truth was proved on part of the author of the speech, the speech could not be considered a violation of the First Amendment. The court opined that:

rule compelling the critic of official conduct to guarantee the truth of all his factual assertions -- and to do so on pain of libel judgments virtually unlimited in amount -- leads to a comparable "self-censorship." the rule thus dampens the vigour and limits of the variety of public debate.

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