From flags to Facebook: Symbolic expression in the United States and India

The emergence of Internet and digital technologies has resulted in the creation of new spaces, formats and media for human interaction and transaction. The resulting paradigm shift presents new challenges for freedom of speech frameworks which were originally framed to apply to offline phenomena. It is against this backdrop of new forms of verbal and non-verbal communication online (such as ‘liking’ and content sharing) that this note analyses the evolution in understanding of ‘symbolic speech’ within the frameworks of the First Amendment to the United States Constitution and Article 19(1)(a) of the Indian Constitution. It is concluded that while First Amendment jurisprudence is robust and well-developed with regard to most forms of online expression, Indian courts are yet to even expressly extend the freedom of speech to the online domain. Yet, there is material to suggest that Indian courts have the necessary jurisprudential foundations to decide Internet expression-related cases as and when they are confronted with them in the coming years.