New Frontiers - Thought Papers
Udbhav Tiwari
Thought Paper III –
Udbhav Tiwari
NAACP v. Patterson
I personally found the case very interesting, both from the legal and socio-historical perspective, considering it happening right in the middle of the Civil Rights movement. However, since my thoughts from the legal perspective would be most relevant, I would like to in particular talk about the analysis of US Supreme Court of the importance given to freedom of association in the right to express speech and ideas.
The inclusion of the right to privacy (a Fourteenth Amendment provision) as an essential part of the functioning of a free society, especially to prevent a fear of persecution from having a chilling effect on the creation of ideas, is my preferred argument in this case. The arguments by Alabama, where interstate commerce regulations for foreign corporation were used as a guise to gain the membership details of the NAACP were dismissed by the Court (not as strongly as I would have preferred) as being non-essential in the fulfilment of these regulations.
The thinly veiled attempt to cause some sort of public backlash against the members of the NAACP by the State of Alabama was in particular distinguished by the Court by stating that there must be an ‘overwhelming state interest’ (as in the case of criminal organisations) before such a demand can be placed upon a private body of freely associated individuals.
In particular, the stature given by the Court to the liberty to associate by calling any unjustified attempt to curb it an attack on the bedrock of fundamental rights guaranteed by the Constitution is of huge importance to the theories of Stuart Mill and is marketplace of ideas that served as the basis for tracts of the US Constitution. As with organisations and companies, the ability for individuals to group together and propagate ideas is an essential idea to allow for targeted & fair discourse to occur in any diversified society. The fact that any justified legal basis for the demands of the names of its members (which would curtail this process of idea propagation) was already complied with by the NAACP in the trail stage made most procedural & substantive arguments by Alabama redundant. Hence, I fully agree with the unanimous opinion of the Court in this case.
ravee...@gmail.com
NACCP V ALABAMA
RAVEENA RAO KALLAKURU - 213018
This case basically deals with the State of Alabama trying to get a non-profit organisation to reveal the names of all its members to the State. Now, the Association argues that by virtue of the due process clause of the Fourteenth Amendment, its right to engage in lawful association is being abridged by the State. The reason I find this case interesting from a view point of free speech and association is because this highlights the link between associations formed by people of similar views and advocating their views collectively.
Linking this back to one of our earlier discussions, where we discussed how the idea of a marketplace has an inherent drawback in that ultimately it is often only the majority’s opinion that is heard or assumed to be the truth. An association allows for greater force in advocating a right especially when it disagrees with popular ideas. Present day discourse is also largely fuelled by think tanks or bodies working in such areas. The Court ultimately goes on to hold this right of association will be infringed if the State compels the Association to give out the names of the members. This makes a lot of sense to me. For example, homosexuality is a crime in India and there are only a minority who oppose this. Suppose tomorrow the Government starts asking all Associations working in this field to give out names, the effect of this will simply be that no one will join such associations. In the event that people do join such associations, they won’t express themselves as freely as they would have. Basically, this would lead to the chilling effect. And the prospect of the chilling effect working in places where expression is so important to move past certain regressive ideas is scary.
It is also significant how this debate is based on a mixture of both privacy claims and free speech. Privacy because these associations need to be private to ensure free association among the members. Speech is affected because when privacy is affected, as explained above, speech is naturally curtailed. What interests me however, is how Indian courts would react to such a situation. I opine that free speech would definitely be curtailed by virtue of such requirement. I assume that the State would justify such a requirement on the basis of security considering how this case comes within the domain of surveillance. I am unsure of the standard of determining restrictions imposed on security under Article 19 (2) but it is very possible that the Court will allow for such a law since more often than not, the Court is happy to justify anything under a wide interpretation of the restrictions. However, I strongly believe it shouldn’t. It logically follows that I agree with the judgment of the US Court.
Issac John
Thought Paper II
NAACP v. Alabama
Issac John, 4th Year, 212112.
The inter-dependability of fundamental rights is the primary point of discussion in the case. In holding that state action not necessarily directed at the freedom of speech of certain citizens can nevertheless have deterring effects on the same, the US Supreme Court seems to have struck the right note. Here, the freedom association is held to amplify the freedom of speech of individual members of the NAACP. Therefore, compelled disclosure of its members would infringe upon their freedom of speech.
The recognition of this inter-dependability is especially important in the modern context. Almost sixty years on, the advent of the internet has led to a host of issues where the freedom of speech is inextricably linked to other fundamental rights. For example, anonymous blogs are often used to express dissident views against the state. If such opinion gains enough traction, the response of the state is to use its authority to identify these anonymous speakers. The question regarding the right to privacy of these anonymous users is inextricably linked to their freedom of speech. If actions aimed at identifying such anonymous bloggers are successful, it would necessarily lead to a chilling effect on anonymous posters of dissenting opinions.
In the Indian context, this inter-dependability is magnified so much more. Current ownership patterns in traditional media platforms like newspapers and news channels are not very promising for free speech. Most such traditional avenues for dissemination of information and impartial views are controlled by large corporate combines which have various interests with the government. For them, the role of these media platforms as a part of the fourth estate of a democracy is superseded by their various corporate interests. Opinions expressed on contentious matters are often manipulated so that they receive benefits from the government in their other business interests. Therefore, the effectiveness of traditional media as a public watch dog has greatly reduced.
In such a scenario, alternate media platforms such as anonymous blog hosters, online advocacy groups have a greater role. They work to fill the void in the speech discourse by giving adequate avenues for people to express dissident opinions. As a corollary, they also serve to further the right to receive information not coloured by ulterior interests, of the citizenry.. Indirectly, such inter-dependability is also recognized in other instances, like the source protection rights of journalists.
The fact that the case does not recognize an unfettered right is enough to prevent any abuse of the same. With respect to the NAACP case, the fact that the petitioners complied substantially with the state’s orders worked in their favour. If NAACP had withheld the other demanded information as well, it would have been interesting to hear the court’s stance regarding the existence of a compelling state interest. Considering the importance paid to the inter-dependability of the freedom of association and the freedom of speech, the court would still have probably decided in favour of the petitioners with respect to the issue of the compelled disclosure of NAACP’s members.
With the Shreya Singhal case, the narrower interpretation of circumstances which validate state action against free speech would probably strengthen this inter-dependability in the Indian context. Restrictive state action in contexts like that of anonymous blogging would need to have a very good reason to be valid. Therefore, the role of free speech as linked to other rights like privacy is not likely to be affected in the near future..
Yogini Oke
Branzburg vs Hayes
The given case is regarding the issue of absolute privilege to media persons under the first amendment to the US Constitution; a privilege that would allow the journalists to refuse presenting themselves before the grand jury to provide any information. Cases of three journalists were discussed in the given judgement.
It is important to note that the reporters did not ask for absolute privilege but did take into account situations wherein the limitations to the first Amendment may curtail the privilege due to the overarching public interest.
It is interesting to note that the reporters used a lot of surveys about the effect not guaranteeing the privilege might have on the freedom of Press. However, the tedious research and surveying put by non-media people was brushed off as unscientific. This leads us back to the class discussion wherein we discussed whether sociological surveys and other methods of surveys guide court judgements, in case there is no direct relation of the surveys to the constitution. In this case, the court did not give the surveys much importance and essentially sidestepped them.
The case also witnessed a standoff between powers and functions of the grand jury in the enforcement of law as against granting of absolute privilege to the journalists. The court denied granting such absolute privilege, and declared that even granting of a qualified privilege would restrict the powers of the Grand Jury.
In this case, in my opinion, the court truly had an opportunity to play a balancing role between the freedom and privileges being guaranteed to the press and the powers of the grand jury. However, in this opinion the former was undermined completely for the promotion of the latter, instead of balancing the two and ensuring that confidentiality exists in the profession of journalism unless the state interests are proved to be overriding, in the court.
Saksham Ojha
NAACP v. Alabama
Saksham Ojha
The Supreme Court of United States, in NAACP v. Alabama, allowed for the association to not disclose the names of its members to the State. The court ruled that the freedom to associate with organizations dedicated to the advancement of beliefs and ideas is an inseparable part of the Due Process Clause of the Fourteenth Amendment. The consequence of the action of the state's obtaining the names of the association's members would likely have had the effect of interfering with the free association of its members so the state's interest in obtaining the records was superseded by the constitutional rights of the petitioners. What is interesting to note, is how inextricably linked anonymity and speech are. Associations grant the members anonymity and in many ways protect the members against the chilling effect that may occur if an individual were to espouse a cause on his own. The flak that may follow an individual’s belief in certain ideas that can, in many cases, have a strong deterrence effect on a person’s belief in his ideas. This is where anonymity becomes crucial. When a certain idea is propounded through an association, any resultant flak would be directed at the association, thus saving the members any harmful consequences that may follow if the same idea was encouraged by a person individually. Thus, if an individual were to believe in equal rights for the African-Americans in the United States in the 1950s, he would have likely met with a strong criticism from the powerful white majority which could have escalated into undesirable consequences for him and his family. In essence, a strong attempt to discourage him from believing in the idea. Espousal of a cause through associations, on the other hand, would have meant that any attempt to discourage the idea of equal rights would have been directed at the association, thus protecting the individual from the harms that may have resulted in him espousing the idea individually.
Associations are, therefore, key to ensure that certain ideas that may not be supported by the powerful group are not trampled down by targeting the individuals who may believe in the ideas. The shield of anonymity becomes key to protect the individual and his expression of ideas through membership of an association.
Issac John
Thought Paper III
Branzburg v Hayes
Issac John, 4th Year, 212112.
The unique position of the press as a public watchdog is often celebrated in judicial decisions, including the present case. The ability of the press to maintain such a standing is primarily due to their ability to disseminate information which would otherwise not have been made available by the state machinery. In doing so, they maintain an active check on the state. One of the nuanced reasons as to why the press can do this is the recognition of source protection rights of journalists. This right flows from the freedom of press of the journalists.
However, like in the Branzburg case, source protection rights have been the subject of continued debate. The debate is primarily with respect to whether the freedom of speech of journalists is at a higher pedestal than others vis a vie restrictions which seek the identity of their anonymous sources. The non-existence of an unfettered freedom of the press is an almost universal norm. The Branzburg case is an example of how anonymous sources should be revealed if they are involved in a criminal activity, or have information regarding the same.
This is often criticized because people say that it strikes down an important facet of a free press. I think most of such criticism is unwarranted. The criminal nature of an activity remains regardless of the fact that the perpetrator helped a journalist in his reporting. The criminality of an act can never be protected by good faith actions. This is because a crime is considered to be performed against the society at large. This is exactly the reason why you can never contract out of the punishment for a crime by making a deal with the victim or the victim’s kin. It is also the reason why the state is the prosecutor in criminal law, and not the victim. These principles are probably universal, except in very few countries like Saudi Arabia, where the concept of blood money still exists.
Such an analogy can be drawn to the debate regarding the source protection rights of journalists as well. Even if it furthers the right to receive information of the people, the fact that a person engaging in an illegal activity gave information to a journalist cannot be used as a reason to give him protection against prosecution by keeping his identity anonymous. Like how this case recognized, the harm arising out of allowing an illegal activity go unchecked are greater than the harms arising out of the reduction in the freedom of speech.
Therefore, the classification of the deterrence of crime as a state interest which is compelling enough to force source disclosure is right, in my opinion.
jah...@gmail.com
Thought Paper 3:
NAACP v. Alabama
Jahnavi Visvanathan – 212106
This judgement played a significant role in safeguarding the right of an association, along with its members, to express itself freely, something particularly empowering with respect to minorities. Allowing like-minded individuals to form associations is an important factor in the dissemination of the views held and causes espoused by such groups. (Labour unions, for example, are far more effective at advancing workers’ interests than individual workers themselves would be.) The Court also particularly acknowledges that associations have the standing to assert the constitutional rights of their members despite such members not being parties to the suit, a great benefit in terms of the members' rights that are protected by forming such associations.
The Court thus recognises the indispensible relationship between freedom of association and freedom of expression, in addition to laying down that freedom of association is an aspect of the “liberty” which cannot be restricted without due process of law under the Fourteenth Amendment. This reflects a fairly progressive mindset in terms of recognising these rights as concomitant and thereby widening individuals’ scope to invoke such fundamental freedoms (an especially positive ruling given the particular fact scenario of the judgement and considering that Jim Crow laws had not been fully invalidated in America at this time). It is thus specifically interesting to note that the freedom to not reveal one’s affiliation with a particular association actually serves to expand the ambit and protection of the freedom of association, and that the right to privacy and the right to free speech need not necessarily always conflict. I believe that the biggest contribution of this case, in the wider sense, was to provide a nuanced understanding of these rights and their interrelationship.
The Court also observes, when referring to American Communications Association. v. Douds, that the abridgement of liberties that follows from government action, albeit unintended or indirect, still amounts to unlawful restriction of rights. The underlying rationale behind this belief is comparable to the position taken by the Indian judiciary in cases like Sakal Papers and Bennett Coleman, and such judicial action serves as an important means through which the dangers of restrictions on the manner in which freedom of speech and expression is exercised may be guarded against.
Further, the protection of anonymity that this judgement upholds is also relevant in the broader context of a democracy, as it provides a safeguard to those who raise their voices in dissent and who would otherwise be persecuted by the majority on having their identities revealed. The protection of views of the opposition or of minorities is as significant in modern circumstances as it was when this case was decided, as minorities will continue to be compelled into silence if not for such jurisprudence.
aparaj...@gmail.com
Thought Paper 3 – NAACP v. Alabama
Aparajita Sinha - 213023
In this case, the question presented before the Court is whether Alabama, consistently with the Due Process Clause of the Fourteenth Amendment, can compel the National Association for the Advancement of Coloured People (NAACP) to reveal to the State's Attorney General the names and addresses of all its Alabama members and agents, without regard to their positions or functions in the Association.
The Court recognised that the freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of liberty and free speech and any State action which attempts to curtail the right to associate is subject to close scrutiny. Here the Court establishes an important rule of law about the unintended effect of abridgement of rights caused by State action even if there is no direct action on the part of the State to curb a right. The State of Alabama insisted that the NAACP disclose its membership lists amongst other documents, to which the NAACP refused. The supporters of the civil rights movement were under constant threat of physical coercion, physical harm, economic reprisal and loss of employment. Thus if the identities of the members were disclosed, it would deter the people from joining the NAACP and voicing their opinions and hence their right to association and right to free speech would be abridged by the State action. For a democracy to function properly, it is necessary that people be free to form associations and propagate ideas contributing to the public debate and the fear of persecution would lead to the chilling effect. Hence, it is vital that the right to privacy be protected for those raising their voices in dissent especially in controversial subjects against the majority.
Further, Alabama’s action was ostensibly to ensure security through surveillance and information and it also argued that any consequence of the revealing the membership lists would be a result of private community pressures. However, the Court ruled that Alabama has not demonstrated any overriding state interest for the disclosure of members of the Association and .rightly recognized that the private community action against the members on account of their opinions and affiliations would only arise due to the State action. The Court also distinguished the present association from the Ku Klux Klan, in Bryant v Zimmerman, where the surveillance was constitutionally valid, because of the activities engaged in by the group such as unlawful intimidation and violence, and also the refusal of the group to disclose any information at all which was not the case here. I agree that this creates a sufficient ground for the State to intervene especially for an association which is known to engage in unlawful activities.
For the above reasons, I am completely agree with the judgment delivered by the Court.
anush...@nujs.edu
NAACP v Alabama
- Anushree Malaviya
Unlike the Indian Constitution, the USA had not expressly recognised the right to freedom of association in its First Amendment - and it is only in 1958 that the Court in this case finally expressly links it as essential element of the right to freedom of speech. Interestingly, the association in question was for the welfare of negroes, and I think that makes this judgement all the more emphatic, since the Court also reflects itself as an institution that stands for equality and fairness.
The effect of this judgement does not end at the recognition of the freedom of association as a first amendment right - most crucially, it the furthers the process of implication, paving the way for a more expansive interpretation of the amendment. What follows from the reasoning and approach of this court is the potential for other forms of speech, such as symbols, hoisting of flags as well as commercial speech, to be allowed to come within the purview of the first amendment.
Having said that, I think it is a near-impossible standard to set for any judgement to be perfect. The first reservation I have is in the manner in which the Court distinguished the instant case from the Byrant Case (which pertained to Klu Klux Klan). It appears that apart from the standard test of proximity to disrupt public order, for an association to enjoy such protection, it necessarily needs to fulfill certain other conditions. These include advocating a cause that is in furtherance of public interest and having made a good faith effort on its part - this interpretation conflicts with what the Justice Harlan states. Moreover, with regards to the issue of privacy and non-disclosure of membership, this right appears only to be available if the information is not relevant to the matter being litigated upon or if it doesn’t conflict with any of the State’s own interests. This sort of an interpretation limiting and imposes certain unnecessary obligations on associations.
My second reservation would be with the lack of theoretical coherence in the judgement itself. There are some contradictions in the case itself, wherein at one point the Court states “…Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters” but subsequently interpret the precedents as having societal interests as a requirement of an association. It leaves us unsure as to what associations exactly are entitled to protection - must they advocate a worthy cause? Is the Court neutral on the nature of the association?
Despite these shortcomings this judgement must be celebrated - it has been a true milestone in American jurisprudence through its logical, intuitive, and progressive reasoning.