Summary and Addendum to the Delhi High Court on free speech: When Time/Place/Manner Restrictions become Problematic

In the last post, we discussed the Delhi High Court’s problematic judgment on the 19th of February, holding that the Delhi Defacement Act imposed an obligation upon private property owners to obtain municipal permission before putting up political posters on their own walls, failing which those posters could be taken down. To summarise:

(1) The Court held that the restriction was justified under the public order and decency prongs of the Constitution. In this, it is submitted that it erred, on the following grounds:

(a) The cases that it relied upon – Novva Ads and In re Noise Pollution – were not decided on 19(2) grounds. Novva Ads, a case about hoardings, was decided within the framework of time/place/manner restrictions, which meant that 19(1)(a) was not attracted at all. In re Noise Pollution was decided under Article 21.

(b) The Court’s framing of the public order exception is incorrect in two respects:

(b)(i) In holding that the issue of proliferating political posters that could become “eyesores” was an issue of “public order”, the Court went against long-established Supreme Court jurisprudence, according to which “public order” is a term of art, and refers to the maintenance of public peace and tranquility that is one level beyond simply maintaining “law and order”, and preventing ordinary law-breaking. Public order is not a question of cityscaping or of architectural aesthetics. Such an interpretation would expand 19(2) so widely, that it would denude 19(1)(a) of any relevant content.

(b)(ii) In holding that Delhite’s “short fuse” meant that political posters would have a “tendency” to excite public disorder, the Court erred in two further respects:

(b)(ii)(I): It sanctified the heckler’s veto, which was expressly rejected by the Supreme Court in Rangarajan’s Case.

(b)(ii)(II): In relying upon Ramji Lal Modi for the “tendency” test, it ignored all the Supreme Court decisions after 1957 that insist upon a close proximity between speech and public disorder. No matter how short the fuses of Delhites might be, and how many parking disputes might escalate into violence, there is simply no warrant for holding that there is the required degree of proximity between putting up political posters on one’s own property, and public disorder.

(c) The Court’s framing of the decency exception is also incorrect. It relied upon Kunte’s Case, but there, the Supreme Court expressly interpreted “decency” to refer to constitutional values (such as secularism). None of those values are implicated in political speech on my own property.

(2) The Court also erred in holding that political speech was a form of commercial advertising, and therefore might not have constitutional protection. Again, it erred in two respects: first, the distinction between political speech and commercial advertisement is well-accepted in Indian free speech jurisprudence, and secondly, following Tata Presseven commercial advertisements are accorded 19(1)(a) protection.

(3) The Court’s suggestion that because the conduct of elections is governed by a statute, any political speech with respect to elections falls beyond Article 19(1)(a) is not only illogical and a non-sequitur, but eviscerates Article 19(1)(a) of its central meaning: the purpose of free speech is to ensure a thriving democracy by free exchange of political expression.

Let us now consider a crucial issue: that of time/place/manner restrictions upon free speech. This is important because, notwithstanding its deeply problematic reasoning, the Court concluded by directing the municipality to ensure that its policy would be “content-neutral”. Content-neutrality requires the State not to restrict speech on the basis of its communicative content, or its message. It does allow the State to restrict speech on the basis of its effects, insofar as those effects are independent of its content. To take an example: we have laws against arson not because we disagree with a pyromaniac’s philosophy, which he tries to communicate by burning buildings, but because the State has a legitimate interest in protecting property against destruction. Content-neutral restrictions are also called “time/place/manner” restrictions, because they tend to regulate when, where or how persons might exercise their right to free speech without censoring its message.

There are times, however, when this neat distinction may break down. A legislation framed as a time, place or manner restriction might nonetheless raise troubling constitutional questions. This is because although T/P/M restrictions are ostensibly aimed at regulating the process or method of expression, neither method nor process are empty categories without political valence. To understand how this might play out in a concrete situation, let us consider one of the petitioner’s submissions before the Delhi High Court. In paragraph 3, the Court noted:

“The petitioners plead that the petitioner no.3 being a new political party, without funding as available to the other older political parties, has to employ innovative and unique ways to propagate itself and its ideology to the masses and thus conceived voluntary display of its posters upon private properties i.e. houses of its supporters / volunteers; however the said posters put up by the petitioners no.1 & 2 on their houses were forcibly removed.”

There are many ways to disseminate a political message. Some, like television and newspapers, are capital-intensive. Others, like leafletting and putting up political posters, are not. Well-financed political parties are in a position to avail of the former media much more than newer, more poorly-funded parties. Correspondingly, newer/poorer political parties must – of necessity – resort to the latter media. We can therefore see how a formally neutral, T/P/M regulation nonetheless casts differential burdens upon different speakers and, correspondingly, privileges one form of political message over another (readers will note the similarity with disparate impact in discrimination law).

In City of Ladue vs Gileo, the American Supreme Court was asked to consider an identical issue. A city ordinance prohibited residential “signs”, subject to certain exceptions. The stated justification was to prevent visual blight, ugliness and clutter. The justification, therefore, was content-neutral. Nonetheless, the Court struck it down. It held:

“[the City of] Ladue has almost completely foreclosed a venerable means of communication that is both unique and important. It has totally foreclosed that medium to political, religious, or personal messages. Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community. Often placed on lawns or in windows, residential signs play an important part in political campaigns, during which they are displayed to signal the resident’s support for particular candidates,parties, or causes. They may not afford the same opportunities for conveying complex ideas as do other media, but residential signs have long been an important and distinct medium of expression.”

Specifically responding to the argument from content-neutrality, the Court observed:

“… even regulations that do not foreclose an entire medium of expression, but merely shift the time, place, or manner of its use, must “leave open ample alternative channels for communication”… residential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute… even for the affluent, the added costs in money or time of taking out a newspaper advertisement, handing out leaflets on the street, or standing in front of one’s house with a hand held sign may make the difference between participating and not participating in some public debate. Furthermore, a person who puts up a sign at her residence often intends to reachneighbors, an audience that could not be reached nearly as well by other means.”

At the heart of the Court’s opinion is the following idea: while government may regulate the time, place or manner of speech, it cannot foreclose an entire medium of communication. This is especially true when the medium in question is an important and vital artery for participation in public and political debate, especially for people who would not otherwise be able to do so. In this context, the petitioners’ argument – that, belonging to a new, poorly-funded party, this was their only realistic method of political communication – acquires strong constitutional force.

So while the Delhi High Court insisted that the municipality’s policy must be content-neutral, it failed to consider the fact that sometimes regulating a medium itself sacrifices the ideal of neutrality. Given the tenor of the rest of the judgment, this is not very surprising, but it the Court’s refusal to engage with an issue that has crucial 19(1)(a) implications is disappointing.

City of Ladue vs Gileo was cited by the petitioners. The Court chose to dismiss it in a line, on the ground that the American First Amendment is absolute while Article 19(1)(a) is not. As we pointed out in the previous post, that is quite simply incorrect. And as this post should make clear, Gileo represents a deep and thoughtful discussion of issues that are as germane to Article 19(1)(a) as they are to the American First Amendment. It bears repeating once more that this disturbing trend of refusing to even engage with American First Amendment jurisprudence on entirely unpersuasive grounds of textual difference is constitutionally damaging. We do not have to follow, or even agree with, American cases. But the least we can do is to take seriously the arguments and debates that are equally relevant to Article 19(1)(a), and address the issues that they raise.

Time/place/manner jurisprudence, with all its attendant complexities and nuances, is still at an embryonic stage in India. While the Delhi High Court decision deals it a severe set back, we can continue to hope for course-correction at a future stage.

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Filed under Commercial Speech, Free Speech, Public Order

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