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Writ[e] & Talk | Ep 10 | Freedom of Expression and the Constitutional Canon
The Centre for Comparative Constitutional Law and Administrative Law is delighted to announce the tenth episode of its podcast, “Writ[e] & Talk.” In this episode, Professor Adrienne Stone engages in a conversation with Kovida Bhardwaj to discuss her chapter, “Freedom of Expression and the Constitutional Canon”, published in the book Global Canons in an Age of Uncertainty: Debating Foundational Texts of Constitutional Democracy and Human Rights (Oxford University Press).
In this episode, Professor Stone examines landmark freedom of expression cases across jurisdictions, analyzing how these cases collectively form a constitutional “canon”. She explores how this canon reveals diverse conceptions of free speech rooted in the core constitutional values of liberty, equality, and dignity. The discussion invites critique and engagement with the canon itself, offering a comparative and contextual analysis while emphasizing its educational potential. This episode is especially timely, given the evolving global judicial approaches to freedom of expression and conceptions of free speech. The historical and analytical insights offered by Professor Stone make this episode a must-listen for anyone interested in constitutional law and human rights.
TRANSCRIPT
Ms Kovida Bhardwaj
Hi, listeners, and welcome back to another episode of Writ and Talk, the podcast by the Center for Comparative Constitutional Law and Administrative Law. This podcast will be hosted by me, Kovida Bhardwaj, an Associate Editor at the journal. In today's episode, we'll be engaging in a conversation with Dr. Adrianne Stone, Professor and Director of the Center for Comparative Constitutional Studies at the Melbourne Law School.
We will be discussing her chapter on freedom of expression and the constitutional canon, which nominates three canonical texts of the global law of freedom of expression, Luthe, New York Times v. Sullivan, and R v. Keegstra. Good afternoon, Professor Stone. We're really excited to have you at our show today. If you'd have anything to add before we begin with the podcast?
Dr. Adrianne Stone
Oh, well, thank you very much for welcoming onto your podcast. I'm really looking forward to our conversation.
Ms Kovida Bhardwaj
Thank you, Professor Stone. We'll now be beginning with our first question. So, in the beginning of your paper, you elaborate upon the concept of speech clutter, where private actors often use public sentiment to impact public political opinion as well. Could you throw light on the same in view of the growing role of social media players such as Meta, X, etc. in the same?
Dr. Adrianne Stone
So the reason I refer to this idea of speech clutter is because, is precisely because of the growing role of social media and forms of digital communication. So these really have transformed through the 21st century, the landscape in which freedom of expression occurs. So the kind of 20th century concept of public discourse had, I guess, at its centre in the beginning, if you went back to the early part of the 20th century, the idea of the lone dissenter, handing out pamphlets, maybe on a street corner. As we move up through the middle of the century, we think about things like the great protests of the civil rights movement. But as we move into the 21st century, really, the public discourse is now actually overwhelmed by the fact that all citizens have access to these means of communication in a way that they didn't have before. All of them can amplify their speech in a way that maybe they could only do, only a few of them could do before, or they could only do en masse. So this just vastly changes the context in which we think about freedom of speech. And that is the sort of, I think, central challenge for figuring out what freedom of speech should mean in the 21st century. It's no longer the case that we're worried that the greatest threats are coming from, say, governments who choose to censor us. They come from very large media organisations, and they come not as much from censorship as they do from just overwhelming us with an excess of information, and particularly information that's of very low quality so that we can't really tell the difference between good quality information and low quality information.
Ms Kovida Bhardwaj
Right. Thank you so much for that answer, Professor Stone. I'd like to also ask you that in your paper, you introduced the concept of double sidedness in freedom of expression, where fundamental values like liberty, equality and dignity can be used to both expand and limit freedom of expression. You suggest that understanding this phenomenon requires attention to the background commitments of constitutional orders. Could you elaborate on how these background commitments shape the application of double sidedness in the context you've discussed?
Dr. Adrianne Stone
Okay. So this paper was written sort of pursuant to a more general project to try and identify what might be the major lines of thought about freedom of expression globally. Now, so I wrote into a context in which it's very common to analyse freedom of expression by reference to the values that are invoked when you seek to articulate its meaning. And you could see, for example, a kind of liberty tradition, a dignity tradition and an equality tradition. So I explain in my paper how you see those three values animating freedom of expression in different places, with the liberty tradition being mostly associated or most strongly associated with the First Amendment to the US Constitution, the equality tradition arising out of a very innovative set of judgments coming out of the Supreme Court of Canada, and the dignity tradition, which is expounded in many places, but which I chose to focus on this core canonical judgment of the Federal Constitutional Court of Germany under the Basic Law. Now, in my view, the problem with some analyses that invoke these values to explain the variations you see in free speech jurisprudence around the world is precisely that invoking a value like liberty or dignity or equality is, at least when framed at a high level of generality, not very helpful, because it turns out that you can support opposite conclusions by invoking these values. So, for example, equality can be invoked as a reason to limit freedom of speech. For example, it might be invoked to limit hate speech that undermines the equality of its victims. Equally, however, a commitment central to liberal constitutionalism to equality could be invoked and is invoked as a reason that we ought to have freedom of speech so that it can enable us, for example, to allow the marginalized to challenge the status quo and achieve their equality. So, I trace in the paper the various ways in which liberty, equality and dignity are both invoked on both sides of the free speech equation in favour of expanding free speech and in favour of limiting it. So, I don't think we can really understand the major traditions of freedom of speech just by reference to those values. That's what I mean by double-sidedness.
So what is it then that determines how it is that we reach these different conclusions about freedom of speech across different places? And I suggest that you see in the canonical cases that I isolate in the chapter something which I've referred to as different background commitments of the constitutional order. So really what distinguishes the First Amendment to the Constitution of the United States is its place within a liberal constitution of a particular type, a liberal constitution in which there is exhibited and embedded a very strong mistrust of government. So that it's not permissible to limit freedom of speech even where the government is, in many circumstances, even if you can show that government is acting in good faith pursuit of a legitimate goal, it's simply not permissible. And by contrast, somewhere like Canada, you'll see what is fundamentally a liberal tradition but one which is less animated by mistrust of government and more inclined to accept the government as a good faith actor. Or thirdly, you see, and Germany would be one example of this, and you can tell me that I would think India would be another. You can see forms of constitutionalism that are transformative in the sense that it is the court's role to ensure that government acts in a way that achieves proper conditions for freedom of expression. So I think it's really those three types of constitutionalism that best explain the variations we see among regimes for protecting the freedom of speech. And they're much better to focus on those ideas than to kind of wrestle with these rather elusive questions, liberty, equality, and dignity, which kind of pop up on both sides of the question.
Ms Kovida Bhardwaj
Thank you, Professor Stone, for that comparative analysis. Adding on to that, I'd also like to ask that given the increasing complexity of modern communication, including social media and online platforms, how do you think the concept of double-sidedness might apply to new forms of expression? For instance, how might it inform debates about content moderation or the regulation of artificial intelligence-generated speech?
Dr. Adrianne Stone
Okay, so it tells me that what is going to determine the response of a court to questions like those you've raised is not going to be resolvable without reference to the background commitments of the constitutional order. So in other words, if you have a court that is thinking about, for example, to what extent can we require or can we allow the government to require content moderation, the answer is going to come by reference to those implicit underlying values rather than a particular conception of freedom of speech.
Ms Kovida Bhardwaj
Right. Thank you, Professor Stone. Also, in your paper, you explore the distinctive nature of freedom of expression under the German Basic Law through the lens of the Luthe decision, which emphasizes the positive obligations of the state. Now, this contrasts sharply with the First Amendment in the U.S. and Section 2B of the Canadian Charter, both of which are there more closely to the traditional liberal conception of rights, which are as negative, operating primarily to prevent state interference rather than to impose positive duties. Given the stark contrast, do you see the potential or the necessity for constitutional systems rooted in the liberal tradition to evolve towards a more transformative model of rights where the state has affirmative obligations? Or do you think that such systems will continue to resist this transformative approach?
Dr. Adrianne Stone
Well, thank you for reading my paper so carefully. I think you've put your finger on it. I think that this new speech economy that I spoke about in relation to your first question, the new way, the new challenges that are posed by social media, by digital communication, are placing pressure on the liberal model. They're placing pressure on the liberal model because, in both cases, especially in the American case, but in both of the two cases I look at, in Canada and in the United States, there's relative insensitivity to the fact that there are great private inequities in access to freedom of speech and great private inequities in power to affect public discourse. So, simply taking your hands off and requiring government to stay out of public discourse is likely just to reinforce those private inequities. I think that's becoming increasingly recognised. Now, will we see change? Well, courts are usually slow to change. So, I think the jury's out on that. We'll see. I would perhaps be more confident in Canada that we might see some kind of change in that particular tradition because it is already more permissive. It is already more inclined to think of the government as a good faith actor and, therefore, more likely to allow and maybe even to require some government intervention in order to provide appropriate conditions for freedom of speech. I think the First Amendment tradition is still a very long way from that. Right. And I think, adding on to the same, the Luthe case reflects a transformative constitutionalism where the state has a positive duty to foster conditions that support effective freedom of speech. However, in light of recent debates on state overreach, particularly in democracies experiencing democratic backsliding, does this approach risk being co-opted by regimes under the guise of safeguarding public discourse? And how should we navigate the fine line between fostering a democratic marketplace of ideas and enabling state paternalism in an era where governments increasingly seek to control digital spaces? Okay, so the answer to your first question, does it pose a risk of co-option by regimes under the guise of safeguarding public discourse, the answer is clearly yes. That's always been the argument against that type of approach, that by allowing government to enter the fray, to start equalizing the opportunity for freedom of speech, to start pursuing its own conception of what public discourse looks like, you're exactly risking the fact that governments might act in self-interested ways. And that becomes particularly potent if you're dealing with a government that is deliberately using its power to undermine democratic norms. I don't think, however, we can think, we ought to contend ourselves that a more strongly negative and libertarian conception of freedom of expression isn't necessarily an inoculation against this. After all, the United States is experiencing very significant democratic backsliding, notwithstanding its strong libertarian commitment to freedom of speech. And in fact, sort of rising populism in the United States has shown itself very able to manipulate public discourse even in the absence of government regulation. So the populist is able to use a variety of other strategies other than regulation in order to undermine democratic norms. So you see constant lying, you see potentially increase use of deep fakes and AI. There's lots of ways in which a sort of nefarious populist authoritarian government can manipulate public discourse without actually having to bring regulation to bear. So my diagnosis is a little bit pessimistic. I think in both cases there are significant risks of democratic backsliding and the overwhelming of democratic norms in a kind of polluted public discourse.
Ms Kovida Bhardwaj
Right, I think that completely addresses our concerns regarding growing trends of surveillance and present-day democracies and building on your previous work on the ethics of scholarly activism, how do you explain that principles of freedom of expression intersect with the responsibilities of scholars who advocate for specific outcomes? Specifically, how can scholars navigate the tension between their role as advocates for social or legal change and their duty to uphold rigorous academic standards, particularly in legal research where interpretive and normative dimensions are deeply entwined?
Dr. Adrianne Stone
Okay, so thank you again for reading my work so carefully. I would want to say that in this aspect of my work, so just to state something by way of background, I have written in defense of the idea that scholars may consistently, with their ethical responsibilities, engage in activism, by which I mean they may through their scholarship, seek to promote certain kinds of change in the world. I'm a defender of that proposition. I think that the principles that underlie it are not actually free speech principles. They're principles that arise from a related but quite distinct principle, which is our commitment to academic freedom.
Now, if you consult the idea of academic freedom, then you will see at once that you can articulate a basis on which scholars have a right to speak out in pursuit of what they think is the change that we need to see in the world. So they have a right to be activists, but then in fact the way they do it is considerably more constrained than what we would think our rights are to freedom of speech in ordinary public discourse. They're constrained by the norms of academic discourse, which means that they are constrained to act consistently with academic inquiry. They work within a discipline in which they are experts. They must work in a way that appeals to the methods of that discipline, that conforms to the standards set by that discipline, and they also must be independent. Now, once you are working in that way, in a way that is scholarly, that respects disciplinary inquiry and is independent, then you'll work quite differently from an activist out in the political world. Okay, so you might still be pursuing ends, but you've got to do it consistently with what I say is your overriding obligation, which is to pursue the truth.
Ms Kovida Bhardwaj
Right. And additionally, Professor Stone, how might global variations in constitutional protections for freedom of expression influence the balance between activist motivations and scholarly objectivity in different legal traditions?
Dr. Adrianne Stone
Okay, so let me say, first of all, and perhaps it's a little bit of the part of your question I didn't answer before, you refer to the fact that legal research intertwines interpretive and normative dimensions. So I have no trouble at all accepting that, and no trouble at all with the idea that scholars put forward views that are normative in the sense that they are putting forward their preferred account of what ought to happen, right? So I don't hold, as some scholars do, that we have some kind of duty to be objective. In my view, it's not possible to do that, even if we work in the way that I have suggested. What we must do, if we're going to argue for an outcome, is do it in ways that respects the nature of academic inquiry. Now, if you're doing that, I think what is relevant, let me just state it again, is academic freedom values, not free speech values. However, so you've asked me, how might global variations in constitutional protection for freedom of expression balance affect the influence and the balance between activists and scholarly objectivity? My own view, first of all, is what we're considering is not the balance between activist motivations and scholarly objectivity, but the balance between activist motivations and scholarly independence. So we can never be objective, but we can be independent. Secondly, I think academic freedom values are distinct from free speech values, but you will see a relationship between them. So it's not an accident that in the United States, where you have a strongly libertarian conception of freedom of speech, you will see actually a more libertarian conception of academic freedom than elsewhere. I don't think that's a good thing. I think it would be better to separate free speech values from our academic freedom values and actually consider our scholarly ethics in relation to ideas of academic freedom, which I think are more likely to be shared, because at least I like to think that in the academic world, that we are in a shared and global endeavor to produce knowledge.
Ms Kovida Bhardwaj
Right. I think that adequately sums up that contrast. And finally, we'd like to end this podcast by seeking your advice on legal writing for law students. And if you'd like to share your experience with the same.
Dr. Adrianne Stone
Well, I think that what you need to have to do good legal scholarship is you need to have a clear claim that you want to make. And it needs to be novel. Now, that's actually quite hard. And I have often struggled with that process because unfortunately, I'm not a lucky person for whom brilliant ideas for articles just appear out of the sky and fall into my lap. I really only get a sense of what my claim is going to be when I'm quite well into the research process. So what usually happens is I'll start with something that's bothering me, something that I think can't quite be right and throw myself into understanding the problem. And then once you're in that vein, I think the claim comes out. So my advice would be that you ought to really pursue something that really interests you and you ought to chase your instincts if you think that there's something not quite right in the conventional understanding and really throw yourself into figuring out what it is that's bothering you. And at that point, a novel claim will emerge and then you're really off and running. So it can take quite a long time for the good idea to emerge out of sort of the inchoate mass of just concerns and interests. So be patient and work hard to find your claim. And once you have your claim, then I think you'll find that the writing comes a lot more easily.
Ms Kovida Bhardwaj
Right. I think that's some great advice for our listeners. And with this, we come to the end of today's podcast. Professor Stone, we sincerely thank you for sparing your time, giving us an opportunity to have this conversation with you. It was truly enlightening. And finally, we thank our listeners for tuning in. It is you who make it possible for us to engage in such meaningful conversations. See you in the next episode of Writ and Talk.
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