Hate Speech vs. Free Speech: A Constitutional and Legal balancing Act

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Published On: October 7th 2025

Authored By: Pakhi Tandon
Christ (Deemed to be University), Pune Lavasa

Abstract

This paper examines the clash between hate speech restrictions and free speech protections in constitutional democracies, comparatively in India and the United States. Both countries are founded on free speech protections, but the U.S. First Amendment enjoys near-absolute protection with narrowly defined exception, whereas India’s constitutional freedom under Article 19(1)(a) is subject to more indefinite “reasonable restrictions” under Article 19(2), like public order and dignity. Examining landmark cases—Brandenburg v. Ohio, Chaplinsky v. New Hampshire, Reno v. ACLU, Shreya Singhal, Romesh Thapar, Pravasi Bhalai Sangathan, and a Supreme Court judgment on hate speech (May 5, 2025)—statutory provisions (IPC 153A, 295A, 505, IT‑Act rules), and modern challenges on online spaces, the paper recommends a balanced approach: robust legal definitions, stringent imminence tests, abuse checks, and platform responsibility. Policy recommendations are statutory clarity in India, model moderation laws in the U.S., and institutional capacity building to enhance speech dignity without quelling dissent.

Introduction

Free speech is usually considered essential to democratic government and freedom of human beings. Hate speech is a paradox to this ideal because it targets hatred at classes of individuals who are protected and can be employed to deny them equality and dignity. The issue: how do constitutional regimes reconcile both protecting robust free expression and constraining the evils of hateful speech?

Under the United States, the First Amendment provides strong protection to speech, and only very narrowly defined categories can be controlled by the state, e.g., inciting imminent lawlessness or “fighting words.” Article 19(1)(a) of India puts speech under more general constraints for public order, morality, and communal harmony under Article 19(2). That model has resulted in open-ended statutory provisions against hate speech, but widely criticized as vague and discriminatorily enforced.

This essay contrasts constitutional doctrine, judicial interpretation, statutory design, and modern enforcement in the two systems and examines digital-age challenges—social media moderation, government-platform conflict, mis- and disinformation—and concludes with reforms to balance freedom and protection.

The Historical and Philosophical Context of Free Expression

John Locke and Voltaire were the first Enlightenment thinkers to champion the ideology of free speech as constitutional rights, believing that human freedom and social advancement depend on the free exchange of ideas. John Stuart Mill, in his On Liberty (1859), put forward perhaps the most powerful argument for free speech on the grounds that the only compelling interest in limiting speech is to prevent harm to other human beings. Mill’s “harm principle” remains invoked in contemporary argument for freedom of expression. Offensive, false ideas, for example, contribute, in Mill’s view, to the advancement of society by exposing falsehood and advancing truth through open discussion. Mill thought censorship of any idea, no matter how offensive, would slow intellectual and moral development.

But critics have argued back that the Millian response has a tendency to overlook the unique harms of certain speech, particularly against minorities. Hate speech has the potential to inflict psychological harm, to continue social injustice, and lead to violence and thus erode the very democratic values the free speech ideal seeks to uphold, critics argue.

Defining Hate Speech

Hate speech is an inflammatory term, and its legal definition varies geographically and across societies depending on the societies and locations. Hate speech typically refers to any insult that is conveyed to groups or individuals on the grounds of race, religion, ethnic origin group, gender, sexual orientation, or disability. Legal definitions across the globe vary as to how to define and act upon hate speech.

The United Nations International Covenant on Civil and Political Rights of 1966 is a general model for hate speech law. Article 19 preserves freedom of expression and Article 20 compels states to criminalize incitement of “national, racial or religious hatred constituting incitement to discrimination, hostility or violence”. But the absence of a clear definition creates issues in interpretation as well as enforcement of such provisions of law. American hate speech is constitutional under the First Amendment because it does not produce “imminent lawless action,” a test set in the Brandenburg v. Ohio case ruling. Most nations of the European continent such as Germany, France, and the United Kingdom have more stringent laws that seek to suppress hate speech due to their experiences of fascism and sectarian war.

United States Legal and Constitutional Framework

Constricted Categories and Free Speech

First Amendment shields speech except in extremely limited categories of unprotected speech: obscenity, defamation, fraud, incitement to imminent lawless activity, and fighting words. Chaplinsky v. New Hampshire (1942) determined the “fighting words” doctrine, in which prohibition of direct personal insults likely to create immediate breach of peace is constitutional.

Brandenburg Incitement Test

In Brandenburg v. Ohio (1969), the Supreme Court established the imminent lawless action test: speech is only permissible to be limited if it is intended to cause such action and likely to do so. That model is the U.S. standard of hate speech adjudication.

Internet Speech: Reno v. ACLU

Reno v. ACLU (1997) applied the whole of the First Amendment to the internet and invalidated broad indecency provisions of the Communications Decency Act as unconstitutionally overbroad. Internet expression therefore has strong constitutional protection, which makes regulation and content moderation difficult.

Platform Regulation and Transparency Battles

Existing legal fights include X (former Twitter) resisting state law on moderation transparency. X was successful in California with a ban on deepfake election ads; in New York, it requested an injunction of the “Stop Hiding Hate Act” requiring biennial hate speech reporting on First Amendment grounds.

Campus Speech and Civil Rights Monitoring

Universities are in the spotlight as federal officials probe claims of antisemitism and the tension between free inquiry and nondiscrimination requirements. At Harvard, DOJ action indicates greater federal enforcement of civil‑rights obligations in tandem with free‑speech obligations.

India: Constitutional and Legal Framework

Constitutional Restrictions and Protection

Article 19(1)(a) ensures freedom of speech; Article 19(2) permits restrictions based on public order, decency, morality, and incitement of hostility among groups. The court in Ramji Lal Modi v. UP allowed broader “public interest” restrictions, which were later restricted in Ram Manohar Lohia and Madhu Limaye, requiring imminent public danger.

Statutory Provisions Against Hate Speech

Section 153A of IPC (inciting enmity between groups), Section 295A (outraging religious feelings), Section 505 (public statements causing alarm), Protection of Civil Rights Act (caste insult targeted) are addressed in chapter on hate speech. IT Act intermediary guidelines (Section 79 & Rules 2021) mandate that platforms delete marked content in order to enjoy safe harbor, although prior provisions like Section 66A were invalidated in Shreya Singhal v. Union of India (2015) on the grounds of vagueness and overreach

Landmark Judicial Decisions

  • Romesh Thapar v. State of Madras (1950): restrictions must be governed by potential dangers to public order and not dissent.
  • Pravasi Bhalai Sangathan v. Union of India (2014): emphasized harm and dignity issues but observed gaps in enforcement.
  • Shreya Singhal (2015): invalidated Sections 66A on vagueness; clarified intermediary liability under Section 79 mandates court or government direction only.
  • Supreme Court judgment (5 May 2025): declared hate speech not a constitutional right; courts reiterate responsibility to restrict speech which demean communities while cautioning against abuse of laws.

Challenges in Enforcement

Indian law is plagued with legal imprecision and vagueness and is used for political repression most of the time. Section 153A cases increased by almost 500% between 2014 and 2020—with conviction rates as low as 20%—suggesting abuse and ineffectiveness of enforcement. There is no legal definition of “hate speech” and hence it is applied inconsistently, with chilling effects.

Comparative Analysis

Scope of Protection

U.S.: safeguards offensive and abusive content unless accompanied by intent and probability of imminent lawless behavior. India: permits wider restrictions on grounds of public order or feelings of a community; speech lowering dignity of communities can be restricted even without imminent violence.

Legal Vagueness vs Precision

U.S. law favors specific, narrow definitions and the imminence test. India’s law uses amorphous standards (“promoting enmity,” “outrage”) that invite overbreadth and arbitrariness.

Judicial Philosophy

US courts emphasize marketplace of ideas and skepticism towards censorship. Indian courts emphasize dignity and communal peace, occasionally veering towards paternalistic intervention, although pathbreaking judgments such as Romesh Thapar and Shreya Singhal legitimize speech restrictions narrowly.

Enforcement Realities

India is faced with selective enforcement, politicization, and low conviction rates. US legal struggles over platform openness and state legislation (e.g. New York, California hate‑speech laws) reflect issues of content regulation and First Amendment jurisdiction.

Contemporary Challenges: Platforms and the Digital Age

Platform Moderation and Liability

In India, the intermediaries are mandated to comply with the takedown orders through such portals as the “Sahyog” portal. X has resisted compliance with over 1,400 takedown orders between March 2024 and June 2025 on state censorship grounds and ongoing legal battle up to the Supreme Court level.

In policy-making, India enforces accountability; in America, platforms have Section 230 safe-harbor immunity. For instance, Meta’s Oversight Board decided recent trans-related posts not hate speech under new policy placing expression above identity protections, drawing criticism from LGBTQ+ groups.

Social Media Extremes Studies

ArXiv 2024 examined Twitter’s reversal of moderation under Elon Musk and reported increases in hate speech against liberals and LGBTQ+, with expansion of interlinked hate networks. Loose moderation allowed hate towards free-speech champions themselves A “fear speech” work (2023) demonstrated content that indirectly provokes fear, typically against groups, evades toxicity filters but actually brings audiences together—demonstrating the requirement for moderation strategies to go beyond superficial hate detection.

Online Safety Regulation Conflicts

Around the world, regulations like the United Kingdom’s Online Safety Act (2023) and like regulations in other places require platforms to be involved in the curation of objectionable content. The regulations have also made massive political and international controversy, with charges that they represent an infringement upon free speech, most prominently from United States perspectives opposing over-regulation.

Reform Recommendations

For India

  • Statutory Clarification: enacts into law a specific definition of hate speech with identifying protected group, intent, probable threat, context, and likely harm.
  • Procedural Safeguards: Mandate pre-registration screening, expedited hearings, and ban on arrest for speech offenses in a bid to shield against arbitrary use.
  • Capacity Building: Train police and prosecutors in nuanced interpretation; judicial regulations to distinguish between offense and incitement.
  • Platform Transparency: Require transparent takedown procedures, appeals processes, periodic publication of removal data, and third-party audit of sites such as Sahyog.
  • Public Education and Counterspeech: Encourage dialogue initiatives; social media literacy campaigns that counter disinformation and group bias.

For United States

  • Narrowing Categories: Determine expansion of unprotected categories (e.g. conspiracy speech, online recruitment) regarding digital radicalization threats, without compromising constitutional limits, as part of an attempt to curtail calls to violence disguised as political speech.
  • Moderation Transparency with Protection of Editorial Rights: Encourage limited transparency obligations that will not necessitate content removal (e.g. voluntary transparency reports), while maintaining First Amendment protections and increasing accountability. 
  • Campus Educational Strategies: Universities and colleges ought to encourage free speech and critical debate instead of retaliatory speech codes; direction from Doe v. University of Michigan and other First Amendment rulings.

Conclusion 

The conflict between free speech and hate speech control mirrors more general democratic values: liberty, dignity, equality. The American model prioritizes liberty with strong constitutional safeguards against government censorship of speech. India’s model prioritizes social order and dignity, with wider restrictions—but vulnerable to abuse and chilling speech through imprecise laws and ineffective enforcement. An equilibrium model requires precise statutory language, rigorous tests of risk and intent, procedural protection, institutional education, and cooperative accountability with social locations. India can learn from the precision and specificity of the U.S., but the U.S. can learn from India’s emphasis on protecting society—short of arbitrary enforcement and while maintaining constitutional speech freedoms. By closing the gap between legal severity and social fairness by means of enlightened reform and rights-aware enforcement, democratic societies can strive for speech contexts that are free and fair.

References

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