Edited by Tom Ginsburg and Rosalind Dixon
Chapter 22: The Comparative Constitutional Law of Freedom of Expression
Adrienne Stone Freedom of expression is among the most widely protected of constitutional rights. Rights of freedom of expression can be found in constitutions drawn from all continents: throughout western Europe as well as in the constitutions of the new democracies of Eastern Europe, in constitutions in Asia, South America, Africa and Australasia (Barendt 2005; Krotoszynski 2006; Rishworth et al. 2003; Currie and de Waal 2005; Stone 2005). Even in those few democracies without comprehensive constitutional protection of rights, freedom of expression finds constitutional protection in other ways. It can plausibly be argued that parliamentary systems like the United Kingdom and New Zealand – even in the era before the adoption of charters of rights – recognized a constitutional principle of freedom of expression that, though not enforceable by judicial review, was understood as a fundamental value that informed the reading of statutes and the common law (Barendt 2005, p. 40; Rishworth et al. 2003, p. 308). In addition, there are some legal systems that recognize a judicially enforceable principle of freedom of expression despite the absence of a written constitutional right. The Australian Constitution contains no textual provision that protects freedom of expression but the Australian courts have recognized an unwritten principle of freedom of ‘political communication’ as a necessary incident of the establishment of democratic government (Stone 2005). A somewhat similar development has occurred in Israel where the Supreme Court has derived a principle of freedom of expression from the rather textually sparse provisions of Israel’s Basic Law (Navot 2007,...
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