Full Description
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.
Contents
Chapter 1: Introduction: The Importance of Text to Securing Rights in a Written Constitution (with Particular Attention to Expressive Freedom)
Chapter 2: 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 3: South Africa: Reconciling the Freedom of Speech with Dignity, Equality, and Human Freedom in the Long Shadow of Apartheid
Chapter 4: The United Kingdom: Free Speech as a Sociolegal Norm
Chapter 5: 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 6: Freedom of Expression in Israel: Common Law Constitutionalism, Democracy, and Dignity
Chapter 7: Conclusion: Common Law Constitutionalism in the Service of Expressive Freedoms Constitutes the Global Rule Rather than the Exception
