Free Speech as Civic Structure A Comparative Analysis of How Courts and Culture Shape the Freedom of Speech

Free Speech as Civic Structure: A Comparative Analysis of How Courts and Culture Shape the Freedom of Speech examines and explains the limited relevance of constitutional text to the scope and vibrancy of free speech rights within a particular national legal system. Across jurisdictions, text or its absence will serve merely as a starting point for judicial efforts to protect speech activity. These judicial efforts, involving an ongoing and dynamic process of common law constitutionalism, will set the precise metes and bounds of expressive freedom within a particular polity.

In the United States, the contemporary Supreme Court largely ignores the actual text of the First Amendment in "First Amendment" cases. Moreover, this pattern repeats elsewhere - including Australia, Israel, South Africa, and the United Kingdom. Judges in systems with relevant constitutional text (the United States and South Africa), as well as relevant statutory text (the United Kingdom), will often disregard the precise articulation of the right in favor of deploying a dynamic common law approach to protect speech from self-interested politicians who seek to distort the process of democratic deliberation. Judges also take the laboring oar in countries that lack a written free speech guarantee (Australia) or even a formal constitution as such (Israel).

The strength or weakness of free speech protections depends critically on the willingness and ability of judges to police government efforts to censor speech - in conjunction with the salience of speech as a socio-legal value within the body politic. Thus, a legal system featuring independent courts, ideally vested with a power of judicial review, but that lacks a written free speech guarantee will likely feature broader protection of the freedom of expression than a legal system with a written guarantee that lacks independent courts. Across jurisdictions, text or its absence invariably serves as, at best, as a starting point for judicial efforts to protect speech. Judges, engaged in a common law enterprise, matter far more than text and common law constitutionalism constitutes the global rule rather than the exception.

Ronald J. Krotoszynski, Jr. is the John S. Stone Chair, Director of Faculty Research, and Professor of Law at the University of Alabama School of Law. His teaching and research focus on constitutional law, First Amendment law, administrative law, telecommunications law, and comparative constitutional law. Professor Krotoszynski frequently writes and lectures on topics related to freedom of expression and how law and culture inform speech and law - particularly from a comparative law perspective. He is the author of numerous law review articles and several books, including The Disappearing First Amendment (2019), Privacy Revisited (2016), and The First Amendment in Cross-Cultural Perspective (2006).

Chapter One: Introduction
The Importance of Text to Securing Rights in a Written Constitution (with Particular Attention to Expressive Freedom)
Chapter Two: The United States
The Protean First Amendment and the (Very) Limited Relevance of Its Actual Text to the Warp and Weft of Expressive Freedom
Chapter Three: South Africa
Reconciling the Freedom of Speech with Dignity, Equality, and Human Freedom in the Long Shadow of Apartheid
Chapter Four: The United Kingdom
Free Speech as a Socio-Legal Norm
Chapter Five: Australia
The Constitutional Protection of Political and Governmental Speech as an "Implied Freedom" Essential to Facilitating Democratic Deliberation, the Electoral Process, and Democracy Itself
Chapter Six: Freedom of Expression in Israel
Common Law Constitutionalism, Democracy, and Dignity
Chapter Seven: Conclusion
Common Law Constitutionalism in the Service of Expressive Freedoms Constitutes the Global Rule Rather than the Exception