Between Voice and Violence: Free Speech vs Hurtful Speech in Social Media

When the Supreme Court of India announced on 25 August 2025 that it would explore ways to regulate social media platforms, it touched one of the most delicate nerves of democracy. The question of speech viz. its liberty, its limits, its potential to heal or harm has haunted philosophers, lawmakers, and citizens for centuries. In today’s world of hashtags, viral reels, and 280-character manifestos, the debate feels sharper than ever: where does free speech end, and where does hurtful speech begin?

The Indian Constitution frames this dilemma succinctly. Article 19(1)(a) guarantees freedom of speech and expression, while Article 19(2) introduces “reasonable restrictions.” This paradox absolute liberty on the one hand, and restraint on the other has always been a contested site. In the digital age, where a meme can travel faster than a court order, and a rumour can spread wider than a newspaper headline, the stakes have only multiplied.

Theory at the Crossroads: Law Meets Communication:

At the intellectual core of the debate are theories that have defined both law and media studies. John Milton’s Areopagitica and John Stuart Mill’s writings gave rise to the Marketplace of Ideas theory, the belief that truth emerges when competing viewpoints clash openly. Liberal democracies have historically used this idea to defend free speech: sunlight, in this metaphor, is the best disinfectant.

But contemporary thinkers caution against such optimism. Legal scholar Jeremy Waldron, in The Harm in Hate Speech, argues that words are not benign. They can wound dignity, silence minorities, and poison the environment in which communities live. His perspective echoes communication theory’s speech-act approach, which treats speech not merely as expression but as action. Words do things—they inflame, stigmatize, and mobilize.

In India, senior advocate Madhavi Goradia Divan has stressed that while freedom of expression is the “lifeblood of democracy,” it cannot be blind to the vulnerabilities of a plural, multi-religious society. Speech, in her view, often intersects with fragile communal relations. On the other side of the spectrum, constitutional scholar Gautam Bhatia, in Offend, Shock, or Disturb, cautions against excessive restrictions, warning that governments frequently cloak censorship in the language of “public order.” The balance, both Divan and Bhatia argue, is contextual: liberty must be protected, but regulation must acknowledge India’s fragility.

Global Flashpoints: When Words Become Trials:

Around the world, democracies have faced dramatic flashpoints where free speech collided with social unrest.

• France witnessed the Charlie Hebdo controversy, where satirical cartoons mocking religion tested the nation’s commitment to secularism and free satire. Courts upheld the right to publish, but the violent aftermath revealed that legal permission cannot erase societal hurt.
• The United States remains the global outlier in free speech absolutism. From the Nazis’ right to march in Skokie in 1977 to white supremacist rallies in Charlottesville in 2017, American courts have protected even the most offensive speech under the First Amendment. Justice Louis Brandeis’s idea that “sunlight is the best disinfectant”, continues to shape jurisprudence. Yet critics argue that this approach normalizes hate, creating conditions for violence rather than preventing it.
• Germany, shaped by the scars of the Holocaust, has taken the opposite route. Its laws against Holocaust denial and Nazi propaganda (Volksverhetzung, or “incitement of the people”) represent a moral stance: history defines the boundary of speech.

Each of these models offers lessons. But India, with its immense diversity and fragile communal fabric, cannot borrow wholesale from France, America, or Germany. Its path must be its own.

India’s Tightrope Walk:

India’s history with free speech regulation reflects this uneasy balance. The First Amendment of 1951 introduced “reasonable restrictions” after the government felt free speech was being weaponized against public order. Decades later, in Shreya Singhal v. Union of India (2015), the Supreme Court struck down the notorious Section 66A of the IT Act, which had criminalized “offensive” online speech. The judgment was hailed as a victory for digital liberty.

Now, as the Court reconsiders social media regulation, it faces a transformed landscape. Platforms are no longer neutral “pipes,” as companies like Facebook and X (formerly Twitter) once claimed. As theorist Manuel Castells points out, they are networked public spheres, where algorithms, money, and influence decide what trends. A single influencer’s post can ignite unrest faster than a newspaper editorial ever could.

The Court’s recent reminder that platforms must act as “responsible actors” reflects this reality. But the challenge remains: how does one demand accountability without turning platforms into profit-driven censors or political tools?

Case Studies from Northeast India: When Digital Sparks Become Fires:

The Northeast of India, with its mosaic of ethnicities and histories of tension, offers vivid case studies of how speech can empower and destroy.

• In 2012, doctored images circulated through SMS and MMS triggered panic among Assamese migrants in Bengaluru, leading to a mass exodus. The episode demonstrated how digital rumour-mongering can destabilize communities across borders.
• In Meghalaya, ethnic tensions have often been amplified by Facebook groups where slurs between Khasi and non-Khasi communities circulated, deepening mistrust. Civil society leaders have warned that regulation must target hate without silencing genuine grievances.
• During the Manipur violence of 2023, disturbing videos of sexual violence and mob lynchings spread rapidly online. On one hand, they served as crucial evidence, forcing the world to bear witness. On the other, they fuelled reprisals, polarization, and anger that worsened the conflict.

These episodes show what Madhavi Goradia Divan calls the “double duty” of Indian courts: to protect speech while preventing it from fracturing an already fragile equilibrium.

Free vs. Hurtful Speech: The Legal Puzzle:

The legal distinction between free and hurtful speech is rarely clear-cut. In the United States, the Brandenburg test (1969) allows restriction only if speech incites “imminent lawless action.” India’s standards are broader: speech may be curtailed for reasons of “public order,” “decency,” or “morality.”

Gautam Bhatia criticizes this elasticity, pointing out that Indian jurisprudence often equates hurt sentiment with actual harm. According to him, the law should intervene only when words directly cause violence or exclusion, not simply because they offend.

Communication studies deepen this puzzle. The Spiral of Silence theory (Elisabeth Noelle-Neumann) shows how people censor themselves when they fear backlash, suggesting that overregulation stifles dissent even without formal censorship. Meanwhile, Cultivation Theory (George Gerbner) highlights how repeated exposure to hate speech normalizes prejudice, reminding us that the damage of words is not just in one instance but in their cumulative weight.

The Court’s Three Challenges:

As India’s top court grapples with this issue, three central challenges emerge:

1. Defining thresholds – At what point does speech cross from expression into incitement?
2. Platform accountability – How can platforms be held responsible without becoming private censors?
3. Preserving dissent – How do we prevent laws against hate speech from being misused to silence criticism of the state?

This balancing act requires a democratic imagination akin to Jürgen Habermas’s deliberative public sphere, a space where diverse voices coexist without coercion. Yet, in a digital environment rife with troll armies, echo chambers, and algorithmic bias, can such a sphere be nurtured?

Beyond Law: Building a Culture of Responsibility:

No law alone can resolve the dilemma of free and hurtful speech. What is needed is a broader ecosystem of education, media literacy, and civic responsibility.

In the Northeast, community radio stations and NGOs have pioneered “digital hygiene” workshops to teach youth how to verify information before sharing. Globally, initiatives like PesaCheck in Kenya fight election misinformation, while the EU’s Code of Practice on Disinformation creates frameworks for self-regulation with civil oversight.

As Madhavi Goradia Divan argues, the law must be complemented by social responsibility: platforms, journalists, educators, and citizens must share the burden. Without this, court rulings will remain paper shields against storms of hate.

Drawing the Line, Together:

The line between free speech and hurtful speech is not a permanent border etched in law. It is a shifting frontier, shaped by context, culture, and technology. The Supreme Court’s move to regulate social media is not about erecting a wall but about sketching a working map for turbulent terrain.

In India, with its immense diversity, no single formula can suffice. Bhatia’s insistence on liberty and Divan’s call for contextual restraint are not opposites but complementary truths. The task is to ensure that our digital commons remains a space where voices are amplified without turning into weapons.

The ultimate question is not whether free speech will survive, it will but whether it will remain meaningful in an age where hurt travels as fast as hope.

(Alankar Kaushik teaches media studies at the English and Foreign Languages University, Shillong Campus and recently published a co-edited a book with Pallavi Devi titled ‘The Paradoxes of Free Speech Challenges and Controversies in Contemporary India’ published by Routledge (2025) : https://shorturl.at/T4S2H )

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