Introduction
“I disapprove of what you say, but will defend to the death your right to say it.”
-Evelyn Beatrice Hall
As vehemently argued by John Stuart Mill, the freedom of speech and expression are the only central facilitators for the search for truth and knowledge. This freedom is an integral facet of the dignity and autonomy of each individual in a state. Ideally, such an invaluable right must be subject only to restrictions when it causes harm to others, i.e., the harm theory governing restrictions on freedom of speech.
However, the modern world has created an economic distinction within free speech wherein one category suffers from more severe restrictions than the other. This distinction results in categories of commercial speech and non-commercial speech. While this was traditionally aimed at restricting such freedoms that had the potential to distort the market, the wide nature of the definition of commercial speech, coupled with an increasing tendency for persons to monetise their speech results in a legal dilemma. While the jurisprudence on commercial speech maintains a high threshold, excluding expression that is fundamentally political or artistic in nature, the intermingling of economic gain and expression creates selective interpretive uncertainty, particularly in the digital sphere. In an era where political participation and livelihood often intersect in digital spaces, the present trajectory indicates a probability wherein the economic dimensions of speech may be used as a pretext for diminishing the protection afforded to critical expression.
The modern world has witnessed the emergence of actors whose livelihood is intertwined with their expression. In such a case, any form of critical expression qualifies as commercial. In an era where digital media has become public spaces of discourse, should individuals and small-scale actors be policed on their views merely because their speech may qualify as commercial? At what point is the line of differentiation drawn to ascertain what constitutes commercial speech?
India seems to incline towards answering the former question in the affirmative. On 25th August 2025, the Supreme Court urged the Union government to frame guidelines for regulating social media, noting that influencers often commercialise free speech in ways that may offend the sentiments of vulnerable groups. As will be argued, this approach risks creating a chilling effect on free speech in India.
This article attempts to analyse the Indian commercial speech trajectory. Firstly, the author assesses what constitutes commercial speech and why there is a distinction between commercial and non-commercial speech. Secondly, the author assesses the present Indian model of considering small-scale actors within this ambit. Thirdly, the author analyses the theoretical fallacies in the present approach.
What Constitutes Commercial Speech?
Commercial speech can be defined (p.447) as speech that is related to the economic interest of the speaker, i.e., whether it has a monetary aspect. As defined in the case of Lakshmi Ganesh Films v. Government of Andhra Pradesh, speech which can be attributed to effecting a commercial transaction constitutes commercial speech.
This inevitably results in an obscure (p.32) definition of what commercial speech comprises. Scholars (p.7) have argued that this stems from the fact that the definition was made to differentiate between commercial and non-commercial speech, rather than to appreciate the true intent behind what commercial speech is and why it must be regulated. The lack of a clear doctrinal boundary creates uncertainty even for adjacent forms of expression, such as journalistic or political speech, that may simultaneously serve economic and public functions. This definition has also been criticised for chilling free speech (p.32) as speakers are left to ascertain what category of protection their speech may receive. While the same flaw arises in other forms of physical speech, the chilling effect is amplified in the digital sphere, which has now become our primary mode of communication.
Simply viewing money as a qualifying factor that directly results in one’s rights being curtailed without a resultant objective, seems to be logically flawed. Therefore, by tethering the category of commercial speech to the presence of monetary gain without a corresponding normative objective, the law risks producing a chilling effect on legitimate expression and unsettling the coherence of free speech jurisprudence itself.
Such a view would result in almost all forms of free speech being qualified as commercial speech. The very mediums that we use to exercise our freedom of speech today such as social media, podcasts, YouTube, websites, and blogs have a monetary aspect to them. Classifying such speech as commercial essentially classifies all forms of public speech in the 21st century as commercial.
While the Indian courts have traditionally utilised this categorisation for advertisement scenarios, the Supreme Court has recently widened the scope of commercial speech and classified speech on social media and YouTube as commercial speech. The bench held that this is not speech, but commerce and thereby does not necessitate the same freedoms as the right to free speech. In the words of the court “When we talk of commercial speech, there is no freedom there.”
An Orwellian Trajectory?
The lack of a clear-cut definition of commercial speech has inadvertently brought almost all speech that is capable of being broadcast within its ambit.
The problem that arises from this vague distinguisher of free speech is that it enables the government to selectively subsidise free speech that advocates certain few points as opposed to others, as shown in Legal Services Corp. v Velasquez (p.545). Such a scenario may result in commercial speech subsidies where the rights of individuals expressing critical viewpoints are curtailed as compared to others. Enabling such regulation to be codified and structured risks eroding Indian free speech jurisprudence and inclines towards an Orwellian trajectory.
Herein, it is pertinent to note the dissenting opinion of Justice Mathew in the case of Bennett Coleman v. Union of India. He stated that “it is no use in having a right to express your idea, if you have no medium to express your right.” As he further elaborates, the right of freedom of speech holds the ancillary right of reasonable access to the infrastructure of speech. In this regard, society must not be viewed as passive consumers. Rather, as active and engaged citizens who have access to a multiplicity of views to effectively exercise their social and political citizenship.
As propounded in Mill’s harm theory, the individual must therefore have sovereignty over their speech, and as a corollary their infrastructure of speech so long as it does not result in tangible harm. Categorising such speech within overbroad terminological restrictions such as ‘hurtful sentiments’ like the SC seeks to do, inevitably results in a stifling of free speech. As noted (part II) by Gautam Bhatia, the usage of such vague terms enables protective restrictions to function as exclusionary mechanisms. Therefore, mechanising a framework to stifle all forms of ‘commercial speech’ (essentially, free speech) would create a detrimental Orwellian effect to Indian free speech.
Theoretical Framework
As called for by Justice Kant, the objective behind the Court’s attempt at regulating commercial speech is to take precautionary measures from the speech turning ‘hurtful’ to vulnerable sentiments. While this rationale has traditionally served to justify restrictions on speech in the physical marketplace, the problem is exacerbated in the context of digital media due to the inherently participatory and decentralised nature of online expression. Digital platforms transform every user into a potential publisher, blurring the lines between commercial promotion, political commentary, and personal expression.
The algorithmic amplification of content, often driven by engagement metrics rather than intent complicate the identification of speech that may be genuinely harmful as opposed to merely controversial or profit-generating. Consequently, when regulatory frameworks designed for traditional commercial advertising are applied to the digital sphere, they risk imposing disproportionate burdens on individual creators and small-scale actors whose livelihoods depend on expressive activity.
Herein, the Court is acting under a presumption that human beings are actors that have diminished capabilities and autonomies necessitating intervention by the court. This notion assumes that human beings are irrational characters, incapable of making their own decisions in the absence of moral paternalism, contrary to Ashworth’s (p.56) tenet of autonomy brought forth by the law.
Meiklejohnian theory (p.2) holds that free speech is essential for participatory democracy to enable citizens to make informed political choices. When courts or governments classify monetised speech or writing on the internet as ‘commercial,’ they risk excluding vast segments of public discourse from democratic protection. Given that much political commentary today is disseminated through monetised social media and public websites, such regulation effectively narrows the democratic sphere and entrenches state paternalism. Moreover, this approach suffers from the vice of moral paternalism where the state encroaches upon one’s rights without asking them whether they endorse such interfering protection in the first place. This vitiates one’s moral independence, which, as argued (p.14) by Dworkin, represents a cardinal premise of their autonomy.
The Dworkinian ideal (p.33) holds that every individual must have the equal right to shape the moral, cultural, and social aspects of his environment. In such an ideal, qualifying speech as protected solely based on whether an individual may get more views than the other holds the potential for solely facilitating the rights of individuals that align with the views of the ruling government. As the modern marketplace of ideas entails these forms of communication, when the state begins categorising speech as ‘commercial,’ it effectively skews the marketplace in favour of state-sanctioned ideas, undermining democratic deliberation.
This argument can be elaborated on using the help of the public forum doctrine of the United States. This doctrine holds (p.300) that public forums must be subject to minimal restrictions unless they become violent, as opposed to areas that require more government interference. Applying this theory, social media today functions as a digital public forum, central to participatory citizenship. As argued by Marshall (p.170), the government must not grant access to a forum to only persons whose views they deem acceptable. Restricting or over-regulating speech on such platforms, on the misguided pretext of its ‘commercial’ nature conflates the state’s regulatory interest with the suppression of individual participation in the public sphere. This erodes the infrastructural dimension of speech rights recognised by Justice Mathew in Bennett Coleman.
Conclusion
The commodification of dissent, where the economic dimension of speech becomes the basis for its regulation, reflects an inversion of liberal constitutional values. Speech, in this paradigm, ceases to be a right grounded in autonomy and civic participation; it becomes a privilege conditioned by market neutrality and moral acceptability. Such a shift threatens to erode the emancipatory potential of Article 19(1)(a), transforming it from a shield of liberty into an instrument of bureaucratic discretion.
In an era where algorithms govern attention and monetisation is intrinsic to visibility, the architecture of modern communication is inextricably bound with economic value. To construe this economic entanglement as a justification for diminishing constitutional protection is to disregard the realities of digital citizenship. What is required is not heightened regulation but constitutional sensitivity, an acknowledgment that in the twenty-first century, expression is often inseparable from economic participation, and dissent itself constitutes a form of intellectual and creative labour.
The author is a fourth year student of the Maharashtra National Law University, Mumbai.
Image Credits: Wonderlane
Constitutional Law Society 
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