Contrasting constitutional approaches to free speech

Most publications on free speech concern its limits: everyone agrees with free speech in theory, but from intellectual property to defamation to hate speech and a myriad other contexts, the limits are keenly contested, whether one has a written constitutional protection of free speech or not.

This book takes a slightly different angle. It focuses on the contrasting constitutional mechanisms by which freedom of speech is ostensibly protected in different countries, and what difference that makes in practice. It compares five different jurisdictions: the US, South Africa, UK, Australia and Israel. It considers how free speech is supposedly protected in each and how courts and other lawmakers respect and enforce that protection.

In the US, the starting point is the absolutist First Amendment (‘Congress shall make no law…’), with the ultimate arbiter being the Supreme Court. South Africa also has a written constitution protecting free speech and a constitutional court. The UK has the Human Rights Act 1998, but behind that, a long common law tradition of liberty, and in front of that, any number of statutes which restrict speech in some way. Again, the courts have the final say in any dispute, though parliament can restrict speech and remains supreme. Australia has a written constitution, but one that makes no explicit reference to free speech (which has not stopped courts occasionally implying such protection as they see necessary for a functioning democracy). Israel, like the UK, has no written constitution.

The author makes perceptive comparisons between the resultant attempts of each jurisdiction to permit or proscribe speech in an academic yet accessible style. He concludes that the presence or absence of a constitutional text guaranteeing free speech is not, in fact, a decisive factor. He does not suggest that such texts are irrelevant. They provide a sort of licence for courts to reach their desired outcomes, but that amounts to a text being used to facilitate judicial recognition of free speech rather than guaranteeing it.

It is hard to dispute the author’s conclusions, given that in all the countries with which he deals, there are many examples of courts and lawmakers both intervening and restraining themselves, largely in accordance with the prevailing climate (or occasionally trying to stop some perceived moral, ethical or legal danger). The book is accordingly a valuable contribution to a never-ending debate.

James Wilson FRHistS is an independent legal author. His most recent book is Lord Denning: Life, Law and Legacy (Wildy, Simmonds & Hill, 2023)