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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Freedom of Expression

Adrienne Stone

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 30 June 2022

Subject(s):
International human rights treaties — Bill of rights — Censorship — Freedom of assembly — Freedom of association — Freedom of expression — Freedom of the press

General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
Managing Editor: Ana Harvey

A.  Introduction

Freedom of expression is protected in the domestic constitutions of all democratic states. Its ubiquity reflects its status as belonging to the core ‘first generation’ or civil and political rights which are central to the liberal political tradition (liberalism).

B.  Definition

1.  Textual Form

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

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)).

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)).

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).

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).

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)).

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

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

national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

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).

C.  Evolution of and Rationales for Freedom of Expression

17  The widespread protection of freedom of speech reflects the centrality of this principle in modern constitutional thought.

18  The idea of freedom of speech, however, is ancient and much predates modern constitutionalism. The great thinkers of Athens both exalted freedom of speech and struggled with its limits (Werhan; Saxonhouse). But the ancient ideals of Athens are not easily equated with modern conceptions of a right to freedom of speech. Scholars of ancient Athens identify a number of competing concepts. They distinguish, in particular, between freedom of speech as the citizen’s equal say in the deliberations of political institutions (isêgoria), and a broader concept (parrhêsia) which denoted free participation in social and political discourse, but which was better understood as an attribute or consequence of citizenship (Carter) rather than a ‘right’ or ‘freedom’ in the modern sense.

19  Enlightenment thinking had a more direct and decisive influence on modern conceptions of freedom of speech. Ideas about freedom of speech spread, in various forms, throughout Europe in the 17th and 18th centuries, with especially notable developments in British, French, and Dutch thought (Powers). Freedom of expression as a constitutional principle also began to emerge at this time. Very early developments are found in the Nordic countries, including the first official declaration of freedom of the press as a public virtue by the Prime Minister of Denmark-Norway in 1770 (Laursen), and the Swedish Freedom of the Press Act enacted in 1766, which remains a cornerstone of the Swedish Constitution (Instrument of Government: 1974 (as amended to 7 December 2010) (Swed)). Especially notable for the pivotal role they play in the development of free speech ideas are the French Declaration of the Rights of Man and of the Citizen (1789) and the First Amendment to the US Constitution. In modern times, constitutional rights of freedom of speech have spread with waves of democratization in the world following the Second World War and with the development of international and transnational human rights law.

20  The first comprehensive argument for freedom of speech as a limiting principle of government is often traced to John Milton’s argument against censorship put in his polemical text Areopagitica (Blasi). Milton’s argument, however, was far from liberal from a modern viewpoint. Although he argued against censorship by prior licensing requirements, he did not extend his argument to Catholic religious texts. The foundational text in liberal political theory is undoubtedly John Stuart Mill’s argument on the fallibility of human knowledge and the consequent value in subjecting beliefs to contradiction (Mill). The Millian argument is now taken to be the most important statement of the argument from truth as a rationale for freedom of expression. That argument, also propounded in a different form by US Supreme Court Justice Oliver Wendell Holmes (see Abrams v US (1919) (US)), is one of three especially prominent lines of thought evident in an extensive philosophical literature on freedom of expression.

21  In addition to the argument from truth, freedom of expression is justified because it protects (or is integral to) individual autonomy by allowing individuals to form their own opinions about their beliefs and actions (Scanlon); or by enabling ‘self-development’ (Emerson; Redish); or because respecting freedom of expression accords individuals the equal concern and respect due to independent moral actors (Dworkin). A further variant of this form of argument relies on the connection between dignity and autonomy. On such accounts, freedom of speech respects the capacity of the individual for autonomy and in doing so enhances, or is constitutive of, a dignified life (Heyman; Grimm).

22  Undoubtedly, the most widely adopted rationale for freedom of expression in modern legal systems, proceeds from the basic proposition that the capacity for citizens to hold their governments to account and to exercise effectively the power to choose their governments depends upon a free flow of information about government (Ely; Meiklejohn; Bhagwat and Weinstein).

23  In addition to these main lines of argument, there are also important arguments for freedom of expression that appeal to a mistrust of government (Schauer 1989) as well as arguments that the suppression of expression may be not only be futile but, in some cases, counterproductive, producing, for example, free speech ‘martyrs’ who increase their influence precisely because of prohibitions on their speech (Schauer 1982).

24  Intimately related to the question ‘why protect freedom of the expression?’ is the question ‘why and to what extent can freedom of expression be limited?’ The Millian idea that freedom of expression can be limited only where it causes ‘harm’ to others is central to the liberal political theory of freedom of expression but it is also generally recognized that not all forms of harm are sufficient to justify limitations on speech. Indeed, it is generally accepted that a commitment to freedom of speech requires that speech be protected even in the face of some harms, otherwise freedom of speech would be reduced to a mere principle of liberty (Scanlon).

25  Perhaps, the most important lines of thought about freedom of speech to emerge in recent decades relate to the rationales for limitations on speech rather than rationales for the protection of speech. The most powerful of these arguments, at least in legal terms, point to the capacity of freedom of expression to undermine other constitutional values. An argument pioneered by Catharine MacKinnon in the context of her defence of laws regulating pornography points to the capacity of freedom of speech to undermine equality and a similar argument has been made with respect to racist hate speech in a now voluminous and powerful literature. Significantly, the argument has been accepted by the Supreme Court of Canada and provides the core of the argument upholding Canadian anti-obscenity and hate speech laws (R v Keegstra (1990) (Can); R v Butler (1992) (Can)). The idea of ‘dignity’ is also invoked in this way most especially in the context of justifying limitations on ‘hate speech’ (Waldron; Grimm 2020; R v Keegstra). These arguments have special resonance in German constitutional law, where this rationale for limiting freedom of expression is especially notable, reflecting the pre-eminence of the concept of dignity in German constitutional law (see, eg the German Federal Constitutional Court’s decision in Holocaust Denial Case (1994) (Ger) (see generally Grimm 2009, 557–61). A further and related line of argument focuses on the power of freedom of speech to distort democratic processes and disable equal democratic participation by allowing some voices, by virtue of their access to the means of communication, to dominate public discourse (Sunstein).

26  Intriguingly, these arguments in support of limiting freedom of speech rely upon values—equality, dignity, democracy—that can also be wielded in favour of freedom of speech. The capacity for freedom of speech to respect or enhance dignity is, as we have seen, an element of arguments both for and against freedom of speech. It is not only dignity that can be invoked in this manner. All of the major rationales for freedom of expression can also be advanced as rationales for limiting freedom of expression. To address just the main lines of argument: just as expression can promote equality (think, for example, of protest during the civil rights movement) so expressive activity can promote hate, discrimination, and violence; just as expression can promote the search for truth, so it can also mislead, obscure, or simply drown out the truth (consider, for example, speech ‘clutter’, the problem of ideological silos and fake news on social media platforms: Wu); just as it can promote or be a mechanism for democratic participation, so too can expressive activity, in circumstances of inequality, overemphasize some voices at the expense of others and prevent the democratic participation of some persons or groups.

27  As a political principle, freedom of speech is both normatively capacious and flexible. Its rationales are multiple and its relationship to its underlying values are complex. As a matter of constitutional law, therefore, very few questions can be resolved by reference to these ideas alone or even by these ideas in combination with the text of the constitution. It is inevitable that courts charged with interpreting these principles and applying them to specific cases will develop more specific rules and principles that will be expressed in legal doctrine. They will also rely upon general principles of constitutional law.

D.  The Conceptual and Doctrinal Structure of Freedom of Expression

28  As a conceptual matter, the constitutional law of freedom of expression has two core elements. First, there is the question of what constitutes ‘expression’ or a relevant related concept such as ‘speech’ or ‘communication’. Answering that question determines the activity or other phenomena to which the right applies. Secondly, there is also a question of what weight of protection is conferred. Answering that question determines the limits on freedom of expression (Schauer 2004, 1769–74).

29  In many cases, the doctrinal structure of free speech law explicitly reflects those steps. The well-known test in Canadian law is one instance. There, the Court proceeds by first establishing whether there has been an infringement of Section 2(b) of the Canadian Charter. In doing so, the Court largely focusses on the question of whether the activity limited by the challenged law is ‘expression’ and any law that limits ‘expression’ is held to infringe Section 2(b). The question of the permissibility of limits is considered in a doctrinally separate manner through the application of proportionality analysis pursuant to Section 1. Moreover, even where the law does not so clearly reflect these questions, they are nonetheless part of the analysis, at least implicitly (Schauer 1982, 91).

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)).

E.  The Background Commitments of the Constitutional Order

45  The complex web of legal rules and principles just reviewed are the central mechanism through which the abstract commitment to freedom of expression is transformed into law. Equally as important, but far less visible are the background commitments of the constitutional order. Three stand out as particularly important.

46  First, it will be significant whether the constitution is regarded as a ‘charter of government’ designed to limit only the state or whether it also directs itself to possible interference with constitutional rights by private actors. In their traditional formulation, constitutional rights are directed at the state and thus are ‘vertical’ in their operation. However, in some constitutions (eg the South African Constitution, the Colombian Constitution, and the Constitution of Ireland: 1 July 1937 (as amended to 27 November 2018) (Ir)), the prospect of private interference with rights including free speech rights—may even give rise to the ‘horizontal’ application of rights against non-state actors. The question of vertical and horizontal application is revealing. Where threats to freedom of expression are characterized as arising principally or only from the state, the operation of constitutional rights will generally be vertical (Stone 2001); where on the other hand, a constitutional order concerns itself also with the threats posed by private actors, then the operation of constitutional rights, including freedom of speech may also be horizontal. The line between these two positions can be blurry and there is a third position—’indirect horizontal action’—which allows for the invocation of constitutional rights in private actions under the general law (see Gardbaum).

47  Second, there is the question of whether the constitution operates negatively to prevent interference with constitutional rights or imposes duties to ensure the effective exercise of rights. The latter kind of case is exemplified by Article 5 of the German Basic Law, which imposes a duty on the state to ensure that broadcasters maintain ‘balance, objectivity and reciprocal respect’ in programming (Television I Case (1961) (Ger)).

48  Third, at a more fundamental level, there is a question of the relative priority of freedom of expression as against other rights and values. Where (as in the US) freedom of speech is understood to occupy a ‘preferred position’ as ‘the matrix, the indispensable condition, of nearly every other form of freedom’ (Palko v Connecticut (1937) (US)), freedom of expression rights are likely to be stronger and the limits on it more carefully confined. By comparison, where a constitutional order prioritizes other rights—like equality or dignity—laws limiting freedom of expression that are framed in terms of those values are likely to be given greater weight.

49  These three matters are deeply influenced by constitutional and political history and culture and by the very idea of constitutionalism. A particularly vivid example is the way in which the mistrust of government that characterizes American political culture shapes American free speech law. In other democracies where the political culture is liberal in the sense of prizing individual freedom but lacks the revolutionary heritage of the US, there is greater recognition of the state as a positive actor, or at least greater willingness than there is in the US to defer to the majoritarian arms of government.

50  Political traditions and culture are often a conservative force limiting the right of freedom of expression. For example, the protection of freedom of speech in Singapore is strongly shaped by a state ideology which places emphasis on community values and social harmony through respect for hierarchical relationships (Tan and Thio). The high level of deference in Japan to laws regulating public demonstrations aligns with the traditional view of Japanese social and political culture that (outwardly, at least) social harmony and consensus are to be prioritized and promoted over individual freedoms and strong dissent (Matsui 146). Until 2018, the freedom of expression clause in the Irish Constitution (Art. 40(6)(1)(i)) expressly stated that ‘[t]he publication or utterance of blasphemous … matter is an offence which shall be punishable in accordance with law’, reflecting the traditional place of the Church in Ireland. In a similar way, in polities like Colombia (Cepeda and Landau 117–19) and the Republic of Korea (see National Security Act Case (1992) (S Korea)) that have faced significant internal or external threats, courts are likely to be more deferential to laws limiting speech on security grounds.

51  However, in many other domestic systems the constitutional law of freedom of speech is clearly affected by a history of past authoritarianism or injustice and courts have often allowed regulation of speech most closely-associated with those injustices. These matters can serve to limit the reach of freedom of expression (the German Federal Constitutional Court’s acceptance of the criminalization of Holocaust denial laws in the Holocaust Denial Case (1994) (Ger) and the South African Constitution’s ‘carve-out’ for ‘advocacy of hatred’ on racial and other grounds (Art. 16(2)(c)) are perhaps the best-known examples).

52  However, these matters are also important spurs to the protection of freedom of expression. The German Constitution’s duty to protect, for example, has led to its distinctive jurisprudence governing the regulation of broadcasting media. An important early case recognized that Article 5 of the Basic Law imposed a duty on the state to ensure that broadcasters maintain ‘balance, objectivity and reciprocal respect’ in programming (Television I Case (1961) (Ger); Kommers 404–06), and this case is now seen as an important stage in the development of a more general duty to protect which gives the civil and political rights of the German Basic Law a positive cast (Grimm 144–46).

F.  Conclusion

53  The connection between freedom of expression and the defining values of a constitutional polity provide powerful insight into constitutional identity. Constitutional systems have shown a capacity—for better or worse—to adapt freedom of expression to their own distinctive challenges and commitments. But protecting freedom of expression remains of one of constitutionalism’s central challenges. The wave of protest sweeping the globe in 2019 (Young and Loper) and 2020 and the public health challenges of the global pandemic, are just its latest iteration.

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