Abstract:

Most people assume that words matter – that legal language can constrain both government actors and citizens alike. In the context of constitutional text, however, we should be cautious about making this assumption too readily or credulously. Free Speech as Civic Structure, a book project under contract to Oxford University Press, will consider carefully the relevance – and irrelevance – of constitutional text to safeguarding expressive freedoms (including the freedoms of speech, assembly, petition, and association). Simply put, across domestic legal systems, constitutional text provides at best limited evidence of the scope of First Amendment rights on the ground. The presence – or absence – of an entrenched right to freedom of speech within a constitution or Bill of Rights does not reliably prefigure the rigor with which the domestic courts will protect the freedom of speech in general or political speech in particular. Thus, nations with constitutions that completely lack a textual guarantee protecting expressive freedoms nevertheless have constitutional courts that exercise a power of judicial review to protect speech rights (Australia; Israel). On the other hand, however, nations with strongly written, entrenched protections for the freedom of speech often protect even political speech less than perfectly (Spain; Turkey). This is not to say that text never matters; the German Basic Law’s free speech provision, Article 5, does tell us something useful about the relative importance of freedom of speech in Germany. Even so, however, the fact remains that the relevance of constitutional text to understanding expressive freedoms varies widely across jurisdictions.

But why do courts, in so many places, essentially freelance when they must define and apply the freedom of speech? Moreover, why do so many academics commonly assume that we are talking about the same thing when we talk about “the freedom of speech” when the actual scope of the right, and justifications offered in support of it, vary widely across legal cultures and domestic legal systems? I have tentative answers to these questions – and addressing them would speak to matters that implicate the first principles of any theory of freedom of expression. To be sure, constitutional courts tend to use the same rhetoric when deciding free speech cases – the right is almost always justified, if not in whole then in substantial part, by reference to the process of democratic deliberation that is necessary to maintain democratic self-government. At a 30,000 foot level of analysis, freedom of speech seems to be more or less the same across domestic legal systems. However, at a more granular level of analysis, this seeming sameness breaks down – and breaks down badly. Local cultural and political values, as well as more general human rights values, strongly affect how courts define and deploy the freedom of speech. Because of this, constitutional text plays a more limited role in this area of human rights law than it does in other areas (such as procedural fairness or proscriptions against unjust punishments). Free speech rights, contrary to the received wisdom, are not really universal at all, but instead are deeply and profoundly culturally embedded and often get defined instrumentally to advance other structural concerns (e.g., in the United States, checking the government) or substantive human rights values (e.g., the equality of all citizens in South Africa).

Bio:

Ronald Krotoszynski is Professor of Law at the University of Alabama School of Law. Professor Krotoszynski earned his B.A. and M.A. from Emory University and J.D. and LL.M. from Duke University where he was articles editor for the Duke Law Journal and selected for Order of the Coif. He clerked for the Honorable Frank M. Johnson, Jr, of the United States Court of Appeals for the Eleventh Circuit and was an associate with Covington & Burling, D.C. Prior to joining the faculty at the University of Alabama School of Law, Professor Krotoszynski served on the law faculty at Washington and Lee University and, prior to that, on the law faculty of the Indiana University School of Law-Indianapolis. He also has taught as a visiting professor at the Washington and Lee University School of Law, the Marshall-Wythe School of Law at the College of William and Mary, at the Florida State University College of Law, and at Brooklyn Law School. Krotoszynski has held appointments as a visiting scholar in residence at the University of Washington-Seattle School of Law, the Seattle University School of Law, and the Lewis and Clark School of Law.

Location:

Room: Moot court

School of Law

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University of Leeds

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