Free Speech as Civic Structure

Abstract

Abstract Free Speech as Social Structure examines and explains the very limited relevance of constitutional text to the scope and vibrancy of free speech within a particular polity. The limited relevance of text to expressive freedom holds true in the United States, where the Supreme Court largely ignores the actual text of the First Amendment, as well as in other democratic countries. In Australia, Israel, South Africa, the United Kingdom, and the United States, all surveyed in this book, the presence of relevant constitutional text (the United States and South Africa), relevant statutory text (the United Kingdom), in addition to the complete absence of constitutional text (Australia) or lack of a formal, entrenched constitution as such (Israel) all make little to no difference to free speech rights on the ground. 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 sociolegal 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, 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.