1.  Textual Form

2  Most commonly, freedom of expression is protected expressly in one or more of the provisions of a constitution.

3  When it comes to textual form, there is considerable variation among freedom of expression provisions. Although the term ‘expression’ is most commonly the subject of the protection, some provisions nominate as the subject of the protection ‘speech’ (Constitution of the United States: 17 September 1787 (as Amended to 1992) (Amendment 1) (US); Art. 21 Constitution of Japan: 3 November 1946 (Japan); Art. 3(4) Constitution of the Philippines: 2 February 1987 (Phil)), or a right to ‘communicate’ (Art. 28F Constitution of the Republic of Indonesia: 1 January 1945 (as Amended to 2002) (Indon)), or ‘speech and expression’ together (Art. 19(1)(a) Constitution of India: 26 November 1949 (as Amended to 16 September 2016) (India); Art. 10(1)(a) Constitution of Malaysia: 31 August 1957 (as Amended to 1 May 2009) (Malay)).

4  It is also common to see references to a freedom to express or hold ‘opinions’ (Art. 5(1) Basic Law for the Federal Republic of Germany: 23 May 1949 (as Amended to 13 July 2017) (Ger); s 34 Permanent Constitution of the Kingdom of Thailand: 7 April 2017 (Thai); Art. 19(12) Political Constitution of the Republic of Chile (Codified law promulgated by Supreme Decree No. 100): 11 September 1980 (as Amended to 2015) (Chile); Art. 12(1) Constitution of Botswana: 1 March 1966 (as Amended to 2005) (Bots); Art. 21(5) Constitution of the Plurinational State of Bolivia: 7 February 2009 (Bol)).

5  In some cases, the relevant constitutional provision expressly mentions the medium of the press, as is famously the case in the United States (‘US’), but also in others, including Argentina which guarantees a right ‘to publish … ideas through the press’ (Art. 14 Constitution of Argentina: 1 May 1853 (reinstated 1983, as Amended to 1994) (Arg); Taiwan, which guarantees freedom of ‘writing and publication’ (Art. 11 Constitution of Taiwan (Republic of China): 1947 (as Amended to 2005) (Taiwan); and Ghana, which guarantees the freedom of ‘press and other media’ (Art. 21(1)(a) Constitution of the Republic of Ghana: 8 May 1992 (as Amended to 1996) (Ghana); regulation of the media).

6  In addition, guarantees of freedom of expression are often accompanied by related constitutional guarantees, typically of freedom of assembly and freedom of association. For instance, these rights are found together in the constitutions of Japan (Art. 21 Japanese Constitution), the Republic of Korea (Art. 21(1) Constitution of the Republic of Korea: 17 July 1948 (S Kor)), and Belize (Art. 3(b) Belize Constitution Act (Cap. 4): 21 September 1981 (as Amended to 2011) (Belize).

7  Less common inclusions include specific mention of freedom for ‘arts and sciences, research and teaching’ (Art. 5(3) German Basic Law; freedom of art; freedom of scientific research; freedom of teaching), rights ‘of teaching and learning’ (Art. 14 Argentine Constitution), freedom of ‘teaching’ (Art. 11 Taiwanese Constitution), ‘academic freedom’ (Art. 23 Japanese Constitution; Art. 33(1)(c) Constitution of Kenya: 27 August 2010 (Kenya)), freedom in the ‘search for knowledge and artistic expression’ (Art. 71 Political Constitution of Colombia: 1 July 1991 (as Amended to 2015) (Colom)), and the right to expression of ‘intellectual, artistic, scientific and communications activities’ (Art. 5(IX) Constitution of the Federative Republic of Brazil: 5 October 1988 (as Amended to 2017) (Braz)).

8  Typically, these provisions are expressed as a declaration that ‘all persons’ or ‘all citizens’ hold such a right. This form of words may be a significant determinant of the scope of the right. For instance, Article 19 of the Indian Constitution states that ‘all citizens’ have the right to freedom of expression, and so excludes from the right non-citizens or corporations (see State Trading Corporation of India v Commercial Tax Officer (1963) (India)). An alternative form, in which the right is expressed as a limitation on government, is prominently seen in the First Amendment to the US Constitution, in constitutions closely modelled upon it (Art. 3(4) Philippines Constitution), and in a somewhat different form elsewhere (Art. 220 Brazilian Constitution).

2.  Unwritten Rights of Freedom of Expression

9  As a mark of the close connection between constitutionalism, democracy, and freedom of expression, even those few democracies without comprehensive constitutional protection of rights protect freedom of expression in other ways.

10  One method used is for freedom of speech to inform statutory interpretation (statutory law) and the development of the general law. Freedom of expression has long been accorded protection by the common law, for instance, through the traditional prohibition on ‘previous’ or ‘prior’ restraints (Emerson 652). In countries like the United Kingdom (‘UK’) (Derbyshire County Council v Times Newspapers (1993) (UK) (Lord Keith of Kinkel); R v Secretary of State for the Home Department ex parte Simms (2000) (UK) (Hoffman LJ)), Australia (Evans v New South Wales (2008) (Austl)), and New Zealand (Lange v Atkinson (1997) (NZ) (Elias J); Lange v Atkinson (1998) (NZ)), it was possible to speak of freedom of speech as at least a ‘quasi-constitutional’ value even before subsequent constitutional developments in those countries that conferred or recognized freedom of expression protections.

11  Even more striking are two instances—Israel and Australia—in which democracies without written guarantees of freedom of expression have judicially developed, but unwritten rights, of freedom of expression that allow courts to invalidate laws. In Israel, the development came in two stages. Initially, the Supreme Court of Israel (Beit Ha Mishpat Ha Elyon) relied upon democratic principle and the democratic values expressed, inter alia, in the Israeli Declaration of Independence, to recognize that freedom of expression is a principle of Israeli law that can inform statutory interpretation and limit executive discretion (Kol Ha’am v Minister of Interior (1953) (Isr)). Later, following the adoption of two more Basic Laws and the subsequent judicial recognition of a power of judicial review (see Mizrahi Bank Case (Isr) (1995)), freedom of expression (like other unenumerated rights in the Israeli Constitution (here specifically Israel’s Basic Law: Human Dignity and Liberty)) assumed a status akin to an express constitutional right. Freedom of expression is now enforced by the Israeli Supreme Court which has strong and final powers of judicial review. Moreover, it is now taken to be grounded at least partly in the Basic Law protecting ‘human dignity and liberty’ (Navot 186, 200; dignity and autonomy of individuals).

12  In Australia, which has a written constitution but no guarantee of freedom of expression (Stone 2005), a judicially enforceable but unwritten principle of freedom of expression has been derived or inferred (Australian Capital Television v Commonwealth (1992) (Austl)) as a necessary incident of the establishment of a ‘representative’ form of government (Stone 2005). An earlier example of a similar approach (now effectively superseded by Canada’s 1982 Charter of Rights and Freedoms (Canada Act: 17 April 1982, Schedule B, Canadian Charter of Rights and Freedoms) (Can)) was the Supreme Court of Canada’s (Supreme Court of Canada (Cour suprême du Canada)) recognition of limits on the powers of the provincial parliaments to regulate expression derived from Canada’s parliamentary democracy (Re Alberta Statutes (1938) (Can).

3.  Limitations

13  It is common for freedom of expression provisions themselves to nominate the grounds on which expression can be restricted. Article 10(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’) typifies this approach, permitting restrictions to protect

14  Similar grounds are found in many domestic constitutions (see, eg Art. 10(2)(a) Malaysian Constitution; Art.19(2) Indian Constitution); Art. 14(2)(a) Constitution of the Republic of Singapore: 9 August 1965 (as Amended to 2016) (Sing); s 34 Thai Constitution; Art. 12(2) Botswanan Constitution; Art. 12(2) Belizean Constitution; Art. 6 Constitution of the United Mexican States: 5 February 1917 (as Amended to 2018) (Mex); Art. 39 Constitution of the Republic of Bulgaria: 12 July 1991 (as Amended to 2015) (Bulg); Art. 17(4) Charter of Fundamental Rights and Basic Freedoms: 16 December 1992 (as Amended to 2013) (Czech); and Art. 100 Constitution of Norway: 16 May 1814 (Nor)).

15  Rights of freedom of expression may also be subject to a general limitation clause that applies also to other rights. Considered globally, perhaps the best-known form of such limitation clause is Section 1 of the Canadian Charter which subjects all rights to such reasonable limits prescribed by law as can be ‘demonstrably justified in a free and democratic society’. However, variations on this form are found in many parts of the world including Taiwan (Art. 23 Taiwanese Constitution), Japan (Art. 12 Japanese Constitution), the Republic of Korea (Art. 37(2) Korean Constitution), Indonesia (Art. 28J Indonesian Constitution), Kenya (Art. 24 Kenyan Constitution), Ghana (Art. 21(4) Ghanaian Constitution), and South Africa (s 36 Constitution of the Republic of South Africa: 18 December 1996 (as Amended to 2012) (S Afr)). Even in the absence of an express limitation clause (as in the US, for instance) or where rights to freedom of expressions are derived from the Constitution generally (as in Australia and Israel), limitations are nonetheless recognized.

4.  Freedom of Expression in International Law

16  Freedom of expression’s prominence in domestic constitutional law is mirrored in international law (Hamilton). It finds expression in Article 19 of the Universal Declaration of Human Rights (1948); Article 19 of the International Covenant on Civil and Political Rights (1966) (‘ICCPR’); and in regional human rights instruments including Article 9 of the African Charter on Human and Peoples’ Rights (1981); Article 13 of the American Convention on Human Rights (1969); Article 10 of the ECHR; and Article 11 of the Charter of Fundamental Rights of the European Union (2000). These regional human rights instruments are, to varying degrees, implemented in domestic law (see, eg the UK Supreme Court’s decision in Lee v Ashers Baking Company Ltd (UK), implementing Article 10 of the ECHR under the Human Rights Act 1998 (UK)) and international law may influence domestic constitutional law in other ways (see, eg the Constitutional Court of Korea’s (Constitutional Court of Korea) decision in Military Secret Leakage Case (25 February 1992) (S Korea), in which the ICCPR, amongst other international legal instruments, informed the development of the constitutional ‘right to know’; see generally Won 2018).

1.  The Concept of ‘Speech’ or ‘Expression’

30  Starting with the concept of ‘expression’, it is usually understood to extend beyond speaking and writing to non-linguistic means of communication such as artistic expression not involving linguistic utterances (see, eg Vereinigung Bildender Künstler v Austria (2007) (ECtHR)) and this is true even where the right is expressed in terms of ‘speech’ rather than ‘expression’ (see, eg the US Supreme Court’s decision in National Endowment for the Arts v Finley (1998) (US)).

31  These concepts also typically extend to some forms of conduct. For instance, protest activities are almost invariably recognized as expression. This includes conventional protests (see, eg the High Court of Australia’s decision in Brown v Tasmania (2017) (Austl); the Supreme Federal Tribunal of Brazil’s (Supreme Federal Tribunal of Brazil (Supremo Tribunal Federal)) decision in Prosecutor General v President of the Republic (2011) (Braz); and the High Court of Justice of Israel’s decision in Majority Camp v Israel Police (2006) (Isr) (Barak P)), but also parades (Hurley v Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995) (US)), and picketing (RWDSU v Dolphin Delivery Ltd (1986) (US)). In other cases, however, these activities are dealt with as instances of freedom of association (see, eg, the Constitutional Court of South Africa’s (Constitutional Court of South Africa) decision in Mlungwana and Others v The State and Another (2018) (S Afr)).

32  Flag burning is a form of expressive conduct that has been examined widely by courts, at least throughout the common law world (state symbols). Though courts differ as to whether it is a form of conduct that may be limited, there is widespread consensus that it is a form of conduct that falls within the scope of freedom of expression (see, eg the US Supreme Court’s decisions in Texas v Johnson (1989) (US), and US v Eichman (1990) (US); the German Constitutional Court’s decision in the Flag Case (1990) (Ger); the Hong Kong Court of Final Appeal’s decision in HKSAR v Ng Kung Siu (2000) (HK); the New Zealand High Court’s decision in Hopkinson v Police (2004) (NZ); the High Court of England and Wales’ decision in Percy v DPP (2001) (UK); (see generally Duggal and Sridhar; Saunders 173–200).

33  Despite agreement that some forms of activity are ‘expressive conduct’, determining the limits to the category of ‘expressive conduct’ is difficult and the category is potentially very wide. In the US, nude dancing is considered expressive conduct within the First Amendment (Barnes v Glen Theatre Inc (1991) (US)) as is much ordinary commercial activity, such as the communication of prices in a retail setting (Expressions Hair Design v Schneiderman (2017) (US)). In India, the expression of gender identity through clothing and behaviour falls within Article 19(1)(a) of the Indian Constitution (National Legal Services Authority v Union of India (2014) (India)). Even if coverage is limited to activity intended to convey a message, the concept is still so broad that it risks expanding the principle of freedom of expression so that it is indistinguishable from a general principle of liberty (Schauer 1982, 92–94).

34  In some cases, constitutions provide specific guidance as to the kinds of expression covered by a right of freedom of expression by specifying forms of expression that are not covered. For example, Section 16 of the South African Constitution denies protection to ‘propaganda for war’, ‘incitement of imminent violence’ and ‘advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm’. Article 33 of the Kenyan Constitution is a similar provision. In Australia the category is limited in a different way. Since the Australian Constitution’s ‘freedom of political communication’ principles are derived from a constitutionally-prescribed system of democratic government, those principles cover only ‘political’ communication, though the limits of this concept are hard to define (Stone 2002) (see generally, Commonwealth of Australia Constitution Act: July 9, 1900 (as Amended to October 31, 1986).

35  As a general matter, however, the task of determining the extent of activity within the coverage of a right falls to the judiciary. One approach to the problem has been to recognize as ‘expression’ almost any activity intended to and capable of conveying meaning. The Canadian Supreme Court has come close to this position, extending the coverage of Section 2(b) of the Canadian Charter to all non-violent action intended to convey meaning including, somewhat controversially (see Greenawalt 1995, 19), illegal solicitation (Reference re ss. 193 and 195.1 (1) (C) of the Criminal Code (Man) (Can)). This method makes it fairly easy to establish a ‘prima facie’ infringement of the right and therefore the question of whether any limits to expression can be justified assumes a corresponding importance.

36  Alternatively, the coverage of a principle of freedom of expression could be in part determined by reference to the underlying rationales for the principle (Schauer 1989, 91). To some extent, the First Amendment to the US Constitution reflects such an approach: some communicative activity (eg non-violent expression within the context of criminal activity, such as conspiracy or fraud) is implicitly excluded (Greenawalt 19), whilst other categories of expression such as obscenity, child pornography, and ‘fighting words’ are explicitly excluded or accorded low value status (RAV v City of St Paul (1992) (US)).

2.  Limits on Freedom of Expression

37  Determining ‘coverage’ is only the first step in resolving a question about the application of a right of freedom of expression. Despite occasional rhetoric to the contrary, rights of freedom of expression are never absolute. Even US Supreme Court Justice Hugo Black, well-known for his description of the ‘the First Amendment’s unequivocal command that there shall be no abridgment of the rights of free speech and assembly’ (Konigsberg v State Bar of California (1961) (US)), in fact accepted that the right to free speech could be abridged outside certain classes of free speech cases (Kalven 442–43). Courts treat freedom of expression rights as limited even where limitations are not expressed in the text, and constitutional systems must address the question of how, and in what circumstances, freedom of expression can be restricted.

38  In so doing, there are some significant methodological differences. One point frequently made in the comparative literature on freedom of expression is that US First Amendment doctrine is characterized by a ‘conceptual’ or ‘categorical’ approach, according to which freedom of expression law is dominated by relatively inflexible rules, each with application to a defined category of circumstances.

39  Among the most important First Amendment rules is that ‘content-based’ or ‘viewpoint-based’ laws are presumptively invalid (RAV v City of St Paul (1992) (US)). Laws that regulate expression by virtue of its content, that is by reference to, or because of, the message conveyed are invalid, unless they fall within limited and tightly defined exceptions. The principal exceptions lie in the recognition of ‘unprotected’ low value categories of expression which include ‘true threats’ and ‘fighting words (Madsen v Women’s Health Centre (1994) (US); Chaplinsky v New Hampshire (1942) (US)). But even low value categories of expression are protection from ‘view-point’ discrimination (RAV v City of St Paul (1992) (US)). Importantly, though the rule against content-based laws is formally expressed as a presumption, content-based laws regulating expression are almost invariably held invalid (Cole). Thus, a central issue in First Amendment cases will be whether the law in question can be characterized as ‘content-based’ or ‘content-neutral’. If the law is characterized as ‘content-based’ its invalidity is almost assured.

40  This categorical form of analysis has large consequences for First Amendment law. It is at the root of the well-known First Amendment exceptionalism with respect to the regulation of racist hate speech, perhaps the most debated free speech question of recent decades. Hate speech is a form of expression that is defined by the message it conveys, therefore laws regulating them in any direct and comprehensive way will tend to fall foul of the requirement of content-neutrality.

41  The alternative approach—which is very widely adopted—is to use some form of ‘proportionality’ test which requires an examination of the ‘end’ pursued by the law and the ‘means’ used to pursue it, and which explicitly authorizes ‘balancing’ (Grimm; Barak). The merits of these two approaches have been extensively debated including in the context of comparative constitutional law. Proportionality tests are valued for their capacity to structure judicial inquiry and to provide a transparent account of judicial reasoning. In addition, the advantage of proportionality tests is said to lie in their flexibility which allows courts to respond to the circumstances of individual cases and to unforeseen complexities (Stone 1999; Schauer 2005; Webber).

42  By contrast, the advantages of the categorical approach are said to lie in the formulation of rules that give judges comparatively little flexibility but correspondingly more certainty in their application. Doctrinal rigidity is also said to insulate the judge in any particular instance from political pressures relating to that case. A judge can appeal to a pre-determined rule rather than justify, in its own terms, the decision to protect expression over a competing right or interest—a matter thought especially significant in relation to freedom of expression (Nimmer 945; Ely 109–16).

43  This distinction should not be understood rigidly. The two approaches just described represent points on a spectrum. There are some legal norms that are highly rule-like, identifying the conditions for their applicability with great specificity; there are also some standards that are highly flexible and context specific; and there are others that sit somewhere between the ends of the spectrum (Stone 2020).

44  In many cases the law of freedom of expression will deploy these in combination. One common approach is for the nature of the norm to vary according to the kind of speech at issue. It is common for instance, for courts to confer less protection on commercial advertising (Shiner; Schauer 2020). This position was pioneered by the US Supreme Court in the 1970s and 80s in a series of decisions that recognized that while commercial speech was not wholly outside First Amendment protection (Virginia Pharmacy v Virginia Citizens Consumer Council Inc (1976) (US)) its regulation would be subject to only ‘intermediate scrutiny’ (Central Hudson Gas and Electrical Corporation v Public Service Commission (1980) (US)). Although, the US Supreme Court has since employed much greater scrutiny of commercial advertising (Schauer), the general position that commercial advertising is more readily subjected to regulation has been widely adopted elsewhere. In Canadian law, the Supreme Court of Canada has in practice conferred less protection on commercial advertising than other forms of speech (Rocket v Royal College of Dental Surgeons (1990) (Can); RJR-MacDonald Inc v Canada (Attorney-General) (1995) (Can); Shiner) and under the ECHR, the European Court of Human Rights (ECtHR) has recognized a wide margin of appreciation allowing states to regulate commercial advertising (Demuth v Switzerland (2004) (EHRR)).

Select Bibliography

• Barak, A, Proportionality: Constitutional Rights and their Limitations (CUP 2012).

• Bhagwat, A, and Weinstein, J, ‘Free Speech and Democracy’ in Stone, A and Schauer, F, (eds), The Oxford Handbook of Freedom of Expression (OUP 2020).

• Blasi, V, ‘History of Freedom of Speech’ in Stone, A and Schauer, F, (eds), The Oxford Handbook of Freedom of Expression (OUP 2020).

• Carter, DM, ‘Citizen Attribute, Negative Right: A Conceptual Difference between Ancient and Modern Ideas of Freedom of Speech’ in Sluiter, I and Rosen, R, (eds), Free Speech in Classical Antiquity (Brill 2004) 197.

• Cepeda, MJ, and Landau, D, Colombian Constitutional Law (OUP 2017).

• Cole, D, ‘The First Amendment’s Borders: The Place of Holder v Humanitarian Law Project in First Amendment Doctrine’ (2012) 6 Harvard Law and Policy Review 147.

• Duggal, K, and Sridhar, S, ‘Reconciling Freedom of Expression and Flag Desecration: A Comparative Study’ (2006) Hanse Law Review 141.

• Dworkin, RM, Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press 1996).

• Ely, JH, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press 1980).

• Emerson, T, ‘Toward a General Theory of the First Amendment’ (1963) 72 Yale Law Journal 877.

• Emerson, TI, ‘The Doctrine of Prior Restraint’ (1955) 20 Law and Contemporary Problems 648.

• Gardbaum, S, ‘The ‘Horizontal Effect’ of Constitutional Rights’ (2003) 102 Michigan Law Review 387.

• Greenawalt, K, Fighting Words: Individuals, Communities and Liberties of Speech (Princeton University Press 1995).

• Grimm, D, ‘Dignity’ in Stone, A and Schauer, F, (eds), The Oxford Handbook of Freedom of Expression (OUP 2020).

• Grimm, D, ‘Proportionality in Canadian and German Constitutional Jurisprudence’ (2007) 57 University of Toronto Law Journal 383.

• Grimm, D, ‘The Holocaust Denial Decision of the Federal Constitutional Court of Germany’ in Hare, I and Weinstein, J, (eds), Extreme Speech and Democracy (OUP 2009) 557.

• Grimm, D, ‘The Protective Function of the State’ in Nolte, G, (ed.), European and US Constitutionalism (CUP 2005) 137.

• Hamilton, M, ‘Freedom of Speech in International Law’ in Stone, A, and Schauer, F, (eds), The Oxford Handbook of Freedom of Expression (OUP 2020).

• Heyman, SJ, Free Speech and Human Dignity (Yale University Press 2008).

• Kalven, H, ‘Upon Rereading Mr Justice Black on the First Amendment’ (1967) 14 UCLA Law Review 428.

• Kommers, D, The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press 1997).

• Laursen, JC, ‘Cynicism as an Ideology behind Freedom of Expression in Denmark-Norway’ in Powers, E, (ed), Freedom of Speech: The History of an Idea (Bucknell University Press 2011) 45.

• Matsui, S, The Constitution of Japan: A Contextual Analysis (Hart 2011).

• Meiklejohn, A, ‘The First Amendment is an Absolute’ (1961) 1 Supreme Court Review 2.

• Mill, JS, On Liberty (JW Parker and Son 1859).

• Navot, S, The Constitution of Israel: A Contextual Analysis (Hart 2014).

• Nimmer, MB, ‘The Right the Speak from Times to Time: First Amendment Theory applied to Libel and Misapplied to Privacy’ (1968) 56 California Law Review 935.

• Powers, E, (ed), Freedom of Speech: The History of an Idea (Bucknell University Press 2011).

• Redish, M, ‘The Value of Free Speech’ (1982) 130 University of Pennsylvania Law Review 591.

• Saunders, K, Free Expression and Democracy: A Comparative Analysis (CUP 2017).

• Saxonhouse, AW, Free Speech and Democracy in Ancient Athens (CUP 2005).

• Scanlon, TM, ‘A Theory of Freedom of Expression’ (1972) 1 Philosophy and Public Affairs 20.

• Schauer, F, ‘Free Speech and Commercial Advertising’ in Stone, A and Schauer, F, (eds), The Oxford Handbook of Freedom of Speech (OUP 2020).

• Schauer, F, ‘Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture’ in Nolte, G, (ed), European and US Constitutionalism (CUP 2005).

• Schauer, F, ‘The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience’ (2004) 117 Harvard Law Review 1765.

• Schauer, F, ‘The Second Best First Amendment’ (1989) 31 William and Mary Law Review 1.

• Schauer, F, Free Speech: A Philosophical Enquiry (CUP 1982).

• Shiner, RA, Freedom of Commercial Expression (OUP 2003).

• Stone, A, ‘Proportionality and its Alternatives’ (2020) 48 Federal Law Review 123.

• Stone, A, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ (2001) 26 Melbourne University Law Review 374.

• Stone, A, ‘The Common Law and the Constitution: A Reply’ (2002) 26 Melbourne University Law Review 646.

• Stone, A, ‘The Limits of Constitutional Text and Structure Revisited’ (2005) 28 UNSW Law Journal 842.

• Stone, A, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668.

• Stone, A, ‘Viewpoint Discrimination, Hate Speech Laws and the Double-Sided Nature of Freedom of Speech’ (2017) 32 Constitutional Commentary 687.

• Stone, GR, ‘Content Regulation and the First Amendment’ (1983) 25 William and Mary Law Review 189.

• Sunstein, C, Democracy and the Problem of Free Speech (Free Press 1995).

• Tan, KYL, and Thio, L, Constitutional Law in Malaysia and Singapore (Lexis Nexis 2010).

• Waldron, J, The Harm in Hate Speech (Harvard UP 2012).

• Webber, G, ‘Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship’ (2010) Canadian Journal Law and Jurisprudence 179.

• Werhan, K, ‘The Classical Athenian Ancestry of American Freedom of Speech’ (2008) Supreme Court Review 293.

• Won, Y, ‘The Role of International Human Rights Law in South Korean Court Practice: An Empirical Study of Decisions from 1988 to 2015’ (2018) 16 International Journal of Constitutional Law 596.

• Wu, T, ‘Is the First Amendment Obsolete?’ (2018) 117 Michigan Law Review 547.

• Young, SM, and Loper, K, ‘Introduction’ Special Issue on Street Protest and Human Rights (2020) 21 Asia-Pacific Journal on Human Rights and the Law 1.

Select Cases

• 1. Rundfunkentscheidung (Television I) (28 February 1961) BVerfGE 12, 205 (Ger).

• Abrams v US 250 US 616, 530 (1919) (US).

• Auschwitzlüge (Holocaust Denial Case) (13 April 1994) BVerfGE 90, 241 (Ger).

• Australian Capital Television v Commonwealth (1992) 177 CLR 106 (Austl).

• Barnes v Glen Theatre Inc 501 US 560 (1991) (US).

• Brown v Tasmania (2017) 261 CLR 328 (Austl).

• Bundesflagge (Flag Case) (7 March 1990) BVerfGE 81, 278 (Ger).

• Central Hudson Gas and Electrical Corporation v Public Service Commission 447 U.S. 557 (1980) (US).

• Chaplinsky v New Hampshire 315 US 568 (1942) (US).

• Demuth v Switzerland (2004) 38 EHRR 20 (ECtHR).

• Derbyshire County Council v Times Newspapers [1993] AC 534 (UK).

• Evans v New South Wales (2008) 168 FCR 576 (Austl).

• Expressions Hair Design v Schneiderman 137 S Ct 1144 (2017) (US).

• HKSAR v Ng Kung Siu [2000] 1 HKC 117 (HK).

• Hopkinson v Police [2004] 3 NZLR 704 (NZ).

• Hurley v Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995) 515 US 557 (1995) (US).

• Kol Ha’am v Minister of Interior (HCJ 73/53) ver 7 (2), 871 (1953) (Isr).

• Konigsberg v State Bar of California 366 US 36 (1961) (US).

• Lange v Atkinson [1997] 2 NZLR 22 (NZ).

• Lange v Atkinson [1998] 3 NZLR 424 (NZ).

• Lee v Ashers Baking Co Ltd [2018] UKSC 49 (UK).

• Madsen v Women’s Health Centre 512 US 753 (1994) (US).

• Majority Camp v Israel Police [2006] (2) ISRLR 399 (Isr).

• Military Secret Leakage Case (25 February 1992) 89 Hun-Ka 104 (S Korea).

• Mlungwana and Others v S and Another (CCT32/18) [2018] ZACC 45 (S Afr).

• National Endowment for the Arts v Finley 524 US 569 (1998) (US).

• National Legal Services Authority v Union of India (2014) 5 SCC 438 (India).

• National Security Act Case (14 April 1992) 90 HonMa 82 (S Korea).

• Palko v Connecticut 302 US 319 (1937) (US).

• Percy v DPP [2001] EWHC Admin 1125 (UK).

• Prosecutor General v President of the Republic (15 June 2011) ADPF 187/DF (Braz).

• R v Butler [1992] 1 SCR 452 (Can).

• R v Keegstra [1990] 3 SCR 697 (Can).

• R v Secretary of State for the Home Department ex parte Simms [2000] 2 AC 115 (UK).

• RAV v City of St Paul 502 US 377 (1992) (US).

• Re Alberta Statutes [1938] 2 DLR 81 (Can).

• Reference re ss. 193 and 195.1 (1) (C) of the Criminal Code (Man.) [1990] 1 SCR 1123 (Can).

• RJR-MacDonald Inc v Canada (Attorney General) [1995] 3 SCR 199 (Can).

• Rocket v Royal College of Dental Surgeons (Ontario) [1990] 2 SCR 232 (Can).

• RWDSU v Dolphin Delivery Ltd [1986] 2 SCR 573 (Can).

• State Trading Corporation of India v The Commercial Tax Officer (1963) AIR 1811 (India).

• Texas v Johnson 491 US 397 (1989) (US).

• United Mizrahi Bank CA 6821/93 [1995] IsrSC 49 (4) 221 (Isr).

• US v Eichman 496 US 310 (1990) (US).

• Virginia Pharmacy v Virginia Citizens Consumer Council Inc 425 U.S. 748 (1976) (US).

• Vereinigung Bildender Künstler v Austria (2008) 47 EHRR 5 (ECtHR).