Ronald J. Krotoszynski, Jr.

Free Speech as Civic Structure: A Comparative Analysis of How Courts and Culture – Not Constitutional Text – Shape the Freedom of Speech

Oxford University Press, forthcoming 2024

In free Speech as Civic Structure: A Comparative Analysis of How Courts and Culture –Not Consitutional Text –Shape the Freedom of Speech (Oxford University Press, forthcoming 2024), Professor Ronald J. Krotoszynski, Jr. makes a provocative claim – namely, that constitutional text, or its absence, will play a very limited role in shaping the freedom of speech within a legal system. Using a comparative legal analysis, Free Speech as Civic Structure demonstrates how and why constitutional (or statutory) text has little discernible effect on how judges go about hearing and deciding free speech cases. Thus, in countries with an express constitutional provision safeguarding speech, such as the United States and South Africa, judges will pay little, if any, attention to the actual words of that text. Meanwhile, in jurisdictions that lack a constitutional provision safeguarding speech – including Australia and Israel – judges will conjure a constitutional right to freedom of expression from more general constitutional provisions on elections and voting or as a necessary aspect of democracy. Rather than hewing closely to text, judges engage in a careful and ongoing common law process of assessing what rules should apply when the government seeks to censor speech. Free speech law thus provides an excellent exemplar of how and why constitutional law often involves common law reasoning that develops legal rules over time and on interstitial basis – rather that careful adherence either to the text or its original public meaning.