Common law constitutionalism and the freedom of speech

Thursday 17 March 2022
Time
2:00pm - 3:00pm
Location
Online event
Cost
Free
Type
Lectures and seminars
Audience
General public

Most people, both in the US and the UK, assume that words matter – that legal language in general and constitutional language in particular can effectively constrain the government.

In the context of expressive freedom, however, we should be cautious about making this assumption too readily or credulously.

As it turns out, 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.

Instead, to borrow the phrase from the cosmic turtle metaphor, "it's [judges] all the way down." Free speech rights depend much more on the willingness of judges to recognize and protect them than they do on the precise wording of a constitutional or statutory text.

For example, in the UK, the Human Rights Act 98 did not work a revolution in the scope of speech rights –  instead, as Eric Barendt and others have observed, after the HRA 98 came into force in October 2000, judges in the UK simply kept on doing what they had already been doing since the 1990s.

If one looks, one will find that text, or its absence, is also largely irrelevant to the scope and vibrancy of speech rights in Australia, Israel, and the United States.

Why do courts in so many places essentially freelance when they must define and apply the freedom of speech?

And why are speech rights so difficult to codify in a way that effectively constrains judicial discretion?

One might also ask whether free speech is unique or if other fundamental rights are also more the product of judicial construction than constitutional text.

Professor Krotoszynski will explore the relevance – and irrelevance – of constitutional text to safeguarding expressive freedoms (including the freedoms of speech, assembly, petition, and association), with particular attention to the limited effect that the HRA 98 has had in strengthening the freedom of speech in the UK.

His research relates to a forthcoming book project, Free Speech as Civic Structure: A Comparative Analysis of How Courts and Culture – Not Constitutional Text – Shape the Freedom of Speech (forthcoming Oxford University Press 2023).

Short bio

Ronald J. Krotoszynski, Jr. is the John S. Stone Chair, Director of Faculty Research, and Professor of Law at the University of Alabama School of Law.

Krotoszynski is the author of several books including: Privacy Revisited: A Global Perspective On The Right To Be Left Alone (Oxford University Press 2016) and Reclaiming The Petition Clause: Seditious Libel, "Offensive" Protest, And The Right To Petition The Government For A Redress Of Grievances (Yale University Press 2012). Krotoszynski's most recent book is The Disappearing First Amendment (Cambridge University Press 2019).

Registration

This event is free and open to all. It will be streamed live via Zoom (registration is required). It will be held in the Moot Court, School of Law, University of Leeds.

This one-hour event will be moderated by Rebecca Moosavian, School of Law, University of Leeds.