Speech, Crime and Law

Topics to be Covered:

• The meaning of speech
• Expression/speech as human
• Speech as political
• Value of free speech: theoretical defenses

Readings:

1. Arendt H, The Public and the Private Realm, in The Human Condition, University of Chicago press, 1958
2. Barendt, E., Why Protect Free Speech, in Freedom of Speech, Oxford: Clarendon Press, 1985.
3. Scanlon T, A Theory of Freedom of Expression, Philosophy and Public Affairs, Vol. 1, No. 2. (Winter, 1972)
4. Thiruvengadam, A, The Evolution of the Constitutional Right to Free Speech in India (1800-1950): The Interplay of Universal and Particular Rationales, Centre for Asian Legal Studies, National University of Singapore, Working Paper Series, 2013

Additional readings:

1. Justice AP Shah, Free Speech, Nationalism And Sedition, M.N.Roy Memorial Lecture, [Video+Text] available at http://www.livelaw.in/free-speech-nationalism-sedition-justice-ap-shah-m-n-roy-memorial-lecture/
2. Mill, J.S, Chapter 2,in On Liberty (edited by Edward, A.), Canada: Broadview Literary Texts, 1999 (reprint).
3. Warburton N, Free Speech: An Introduction with Readings, Routledge, 2000.

Module 2: From Free speech to extreme speech: conceptual engagement

 (2 weeks)

Weeks 3 & 4:

Following up from the previous module while critically engaging with the theories of free speech, this module traces the origin of the category of ‘extreme speech’ within the debates on freedom of expression. It introduces students to the juxtaposition of free speech as a right with speech as harm. It engages with the category of extreme speech and focusses on the theoretical rationales behind restricting certain forms of expression in liberal societies while counterposing them with liberal defenses in favour of allowing the circulation of extreme speech.

Topics to be Covered:

• Category of injurious speech/extreme speech
• The question of threshold- legitimate and forbidden expressions
• Speech crimes: engagement with the ambit of criminality
• Lecture based on Austin’s theory of speech Act to help students connect to the idea of efficacy between speech and harm

Readings:

1. Australia Law Reform Commission, Fighting Words, Commonwealth of Australia, 2006.
2. Butler, J., ‘On Linguistic Vulnerability’ in Excitable Speech, a Politics of the Performative, United Kingdom, Routledge, 1997.
3. Greenawalt, K., Speech, Crimes and the Uses of Language, Oxford, Oxford University Press, 1989.
4. John Kleinig, Crime and the Concept of Harm, American Philosophical Quarterly, Vol. 15, No. 1, 1978
5. Maleiha Malik, Extreme Speech and Liberalism, in Ivan Hare and James Weinstein (eds.), Extreme Speech and Democracy, Oxford, Oxford University Press, 2009.
6. Sorial, S., Can Saying So, Make It So, the Relation Between speech and Harm, in Sedition and the Advocacy of Violence, New York, Routledge, 2012.

Additional readings:

1. Dan-Cohen M, Harmful Thoughts, Law and Philosophy, Vol 18, No. 4, 1999
2. DeCew, J. K, Free Speech and Offensive Expression, Social Philosophy and Policy, Vol 21, No. 2, 2004.

Module 3: Libel

 (2 weeks)

Weeks 5 and 6

This is the first specific module on speech crimes taking up an analysis of the offence of libellous expressions. The module would explore the tension between freedom of expression and privacy interests of individual. The module would also initiate discussion on freedom of press in India in the context of charges of libel against press.

Module 4: Hate Speech

 (2weeks)

Weeks: 7 and 8

This module explores the idea of harm in relation to community identities through the lens of the social offence of hate speech. Hate speech is a broad category of offence targeting social classes. It has been one of the most difficult and apprehensive categories even for those who take almost an absolutist stand in defence of free speech. The module analyzes the theoretical reflections on the category of hate speech, hate speech jurisprudence in a comparative frame with India as well as literature on how the hate speech laws in India are invoked on ground with discussions also revolving around how laws protecting vulnerable groups like Dalits are viewed within the discourse on free speech

Topics to be covered

• Free speech and the dilemma of hate speech
• Hate speech laws and changing ambit of criminality
• Society’s ‘defense’ 

Readings:

1. Barendt E, Hate Speech: Lecture Given At Hull, November 21, 2013
2. Brandenburg v. Ohio, 395 U.S. 444, 1969
3. Human Rights Watch, Stifling Dissent, The Criminalization of Peaceful Expression in India, 2016, pp. 62-73.
4. Law Commission of India, Report No.267, Hate Speech, March 2017
5. Narrain S, Law, Language and Community Sentiment, Behind Hate Speech Doctrine in India, in Meaning and Power in the Language of Law: Janny Leung and Alan Durant, Cambridge University Press, 2018
6. Ramdev, R et al, Introduction: Sentimental Sovereignties: Hurt and the Political Unconscious, in Sentiment, Politics, Censorship: The State of Hurt, Sage,2015.
7. Waldron J, Ch1 and Ch 5, in The Harm in Hate Speech , Harvard: Harvard University Press, 2002

Additional readings:

1. Chandrachud A, Shouting Fire in a Crowded Theatre, in Republic of Rhetoric, Penguin, 2017
2. Gelber, K., ‘Freedom of Political Speech, Hate Speech and the Argument from Democracy: the Transformative Contribution of Capabilities Theory’ in Contemporary Political theory, Vol.9, No. 3, 2010.
3. Post, R., ‘Hate Speech’, in Ivan Hare and James Weinstein (eds), Extreme Speech and Democracy, Oxford: Oxford University Press, 2009.
4. European Court of Human Rights Presentation by Francoise Tulkens, What to Say is to Do, 2012.
5. Leets, L. and Giles, H., ‘Words as Weapons’ in Human Communication Research, Vol. 24, No. 2, London, Sage Periodicals Press, 1997.

Module 5: Seditious and treasonable expressions

 (2 weeks)

Weeks 9 and 10

This modules begins by reflecting on what is termed in free speech discourse as the ‘preferred position of political speech’. It discusses crimes of lower treason in relation to treasonable expressions, advocacy of violence against government and sedition through a study of Indian laws with comparative insights on how these laws have been read down in other jurisdictions. Alongside it reflects on the rationales of national security, public order, etc. and juxtaposes them with some case studies related to application of the laws in India.

Topics to be covered

• The preferred position of political speech
• Political speech vs national security and public order
• ‘Terrorist’ speech
• Chapter VI, IPC

Readings:

1. Bhatia G, Subversive Speech, in Offend, Shock or Disturb, New Delhi, OUP, 2016.
2. Brennan Jr,. W., 1991, ‘The American Experience: Free Speech and National Security’ in Shimon Shetreet (ed), Free Speech and National Security, Netherland, Martinus Nijhoff Publishers, 1991.
3. Burra A, Freedom of speech and constitutional nostalgia, Seminar, available at http://www.india-seminar.com/2017/697/697_arudra_burra.htm
4. Eichenseh, K. E., ‘Treason in the Age of Terrorism: An Explanation and Evaluation of Treason’s Return in Democratic States’ in Vanderbilt Journal Of Transnational Law, Vol. 42, 2009
5. Kedar Nath Singh vs State Of Bihar on 20 January, 1962 AIR 955, 1962 SCR Supl. (2) 769
6. Schauer F, Free Speech and the Rights of the State, in Free Speech: A Philosophical Enquiry, 1982

 Additional readings:

1. Centre for the Study of Social Exclusion and Inclusive Policy, National Law School of India University, Bangalore and Alternative Law Forum, Bangalore, Sedition Laws and Death of Free Speech in India, 2011
2. Donohue, L K, Terrorist Speech and the Future of Free Expression, Cardozo Law Review, Vol 27, No. 1, 2005
3. Gearty, C., ‘Democratic Freedom and National Insecurity’ in Civil Liberties, Oxford, Oxford University Press, 2007.
4. Index on Censorship and English PEN, The Abolition of Seditious Libel and Criminal Libel, July 2009.
5. Liang, L, Free Speech and Expression, in Sujit Choudhryet al, The Oxford Handbook of the Indian Constitution, New Delhi: OUP, 2016

Module 6: Pornography

(2 weeks)

This module approaches the question of speech crime through two particular entry points- first the tension between freedom of expression and ‘public morality’ and second, pornographic expressions and harm to women. It discusses the conflict between the language of law, the jurisprudence on obscenity where the primary concern has been the protection of public morality and the feminist discourse on pornography/obscenity trying to address the question of pornographic expressions primarily through the lens of gender and sexual violence. Within the feminist discourse as well the contours of debate have revolved around disagreements on whether censorship on pornography is the best way of countering violence on women. 

Weeks 11 and 12

Topics to be covered

• Banning what: commerce versus personal consumption
• Women and pornography, defining harm
• Section 292 IPC
• The ‘pro’ and ‘anti’ debate within the feminist discourse

Readings:

1. Barendt, E, Obscenity in Freedom of Speech, Oxford, Clarendon Press, 1985
2. Bhatia G, Obscenity and Pornography, in Offend, Shock or Disturb, New Delhi, OUP, 2016.
3. Chandrachud A, Prudes and Prigs, in Republic of Rhetoric, Penguin, 2017
4. Mackinnon, C., ‘From Pornography, Civil Rights and Speech’ in Harward Civil Rights/Civil Liberties Law Review, Vol. 20, No. 1, 1985
5. Bose B (ed), The Porno Paradox, in Gender and Censorship, Kali/Women Unlimited, 2006.
6. Ranjit Udeshi v State of Maharashtra

Additional readings:

1. Dyzenhaus D, Mill and the Harm of Pornography, Ethics, Vol 102, Issue 3, 1992
2. McLellan, Betty, Pornography and the Myth of Free Speech , 2011, available at http://radicalhub.com/2011/08/04/pornography-and-the-myth-of-freespeech/
3. Hidyatullah, Thoughts on Obscenity, 2 S. Ill. U. L.J. 283, 1977
4. McGowan, M K, On Pornography, Mackinnon, Speech Acts and ‘False’ Constructions, Hypatia, Vol. 20, No. 3, 2005.
5. Menon, N., ‘Indian Feminists, “India’s Daughter”, and Sexual Violence: The issues at Stake’, 2015, available at http://kafi la.org/2015/03/08/indianfeminists-indias-daughter-and-sexual-violence-the-Nos-at-stake/ 

Critical reading of judgments (presentation and written submission)

30

Mid term

25

Response essay

10

End term

25

Class participation

10