Herodotus’ comparative inquiry leads him to decree that isegoria, or equal right of speech, is best in all things. The example that he gives is Athens, although his treatment has often been regarded as unclear. I argue that Athens has to be taken as a whole – that to see the effects of one particular custom, isegoria, one has to trace its consequences throughout the city as a whole. Herodotus’ account of Athens thus grants his readers vicarious experience of isegoria, thereby allowing them to feel the underappreciated virtues of democratic life. His treatment of Athens, however, is nuanced – highlighting both its virtues and its vices as well as the connections between these. This chapter explores these nuances, arguing that Herodotus’ careful account of Athenian political life reveals the way his inquiry into human flourishing avoids both relativism and simplistic universalism, instead offering a textured and nonideal account of the good.

The first two senates of the Federal Constitutional Court were staffed almost exclusively by anti-Nazis due to the efforts of Arndt and Zinn. This chapter of the project looks most closely at the biography of the first female justice of the Court, Erna Scheffler. Scheffler was removed from a position in the Prussian judiciary in 1934 as she was considered “half-Jewish.”

This chapter examines Meta’s Oversight Board, a pioneering experiment in governance by emulation that adapts individual rights adjudication to the private governance of social media platforms. Operational since 2020, the Board has been celebrated as a step toward greater accountability while also criticized as a superficial PR strategy. Through its structure, practices, and public perception, the Board blends public- and private-law principles, presenting itself as operationally independent and adjudicating disputes based on international human rights norms. However, its circumscribed authority raises questions about its capacity to elicit substantive structural change at Meta. The chapter situates the Oversight Board as an Emulated Guardian, designed to mimic adjudication but primarily serving as a performative tool to lend legitimacy to Meta’s content moderation. While initially dismissed as symbolic, the Board’s incremental expansion of its guardianship role highlights its dialectical potential: it is both limited by its private nature and empowered by its adjudicatory appearance. This case study progresses through six analytical steps, exploring the Board’s origins, institutional structure, decision-making processes, and practical impact, offering insights into the challenges and opportunities of regulating private power in a globalized digital environment.

This chapter challenges the notion that generative AI (GenAI) outputs qualify for First Amendment protection as “speech.” It argues that under both speech certainty and human-centric legal frameworks, GenAI outputs – being probabilistic, statistically driven, and devoid of human understanding, sentience, or intent – should be legally categorized as nonexpressive conduct or utilitarian data processing, not intentional communication.

The chapter dismantles the common counterargument that a user has a constitutional “right to receive” an AI’s output, asserting that if no speech is created by the speaker (the AI model), there is no speech to receive. This classification determines the government’s regulatory authority. If AI outputs are deemed speech, regulations face the nearly insurmountable barrier of “strict scrutiny.” If they are nonexpressive conduct, however, the government retains the power to regulate GenAI for safety. The chapter warns that extending constitutional free speech protections to nonhuman, nonintentional algorithms would jeopardize product liability, consumer protections, and democratic self-governance.

Chapter 4 explores the negotiation of free speech within Tunisia’s public schools following the 2014 constitution’s guarantee of expression rights. It focuses on high school teachers who initiate classroom dialogues aimed at reforming civic education. These discussions address the limits of free speech and acceptable dissent, reflecting broader societal debates about who belongs to the demos and how democratic citizens should communicate and act publicly. The chapter introduces two key concepts: the democratic grotesque, a mode of communication that disrupts the ideal of rational deliberation through irony, excess, and emotion; and dissensus, from Jacques Rancière, describing enduring disagreement that unsettles social hierarchies and renews democratic engagement. Together, these ideas challenge traditional understandings of the demos and highlight democracy’s liminal nature – an an ongoing, contested process of political expression and identity formation.

Outlines the multifaceted challenges facing US universities, including political polarization, declining public trust, financial instability, and cultural conflicts. Discusses recent controversies involving free speech and antisemitism, the impact of COVID-19, and the erosion of state support. Argues that university leaders must adopt strategic management practices to restore confidence in higher education.

Explores the role of free speech and open inquiry in maintaining universities’ evolutionary fitness and democratic contributions. Argues that controversial ideas are essential for intellectual growth and that silencing dissent undermines truth-seeking and societal progress. Emphasizes the link between dynamic capabilities and free expression.

This chapter argues that it is in the enlightened self-interest of higher education to renew a top-priority place for citizenship education both to restore core academic missions and to redress the deficit of public confidence that recent academic trends have yielded. It then develops four sections: (a) Renewing the Academy’s Core Mission through Civic Education – including the public university reform movement establishing new colleges, departments, and centers of civics, also renewal efforts in private universities and across higher education, with an emphasis on restoring intellectual diversity and lively discourse in academia through renewal of American civics; (b) A Higher Civics: Civic Thought and Leadership – on the rise of a new academic field in the past decade, including a summary of a course on American civic thought, institutions, and political debate recently developed at Arizona State University; and (c) Leadership Education and the American Balance of Theory and Prudence, emphasizing the importance of study of statesmanship, statecraft, and leadership to prepare public servants for our constitutional democratic republic; and (d) America Civics and Renewed Pluralism in Campus Discourse.

The final chapter focuses on the only Belgian who briefly pierced his country’s silence on sexual ‘inversion’ during the late nineteenth and the early twentieth century. In 1899, the internationally acclaimed author Georges Eekhoud published the most daring queer novel of the period. A charge of indecency against his explicitly homoerotic and class-transcending love story caused an uproar among Europe’s literary community. Celebrity authors, including Émile Zola, collectively screamed blue murder over this attempt to curtail the hallowed freedom of artistic expression. The trial that followed ended in triumph and Eekhoud seemed poised to become a standard-bearer of the budding transnational movement for homosexual rights. But at home, Eekhoud soon grew isolated and unhappy as leftists and artists alike shunned him for his association with such an odious issue. While the writer’s autobiographical writings and private diary offer a rich insight into the way sexology shaped his sexual sense of self, they also reveal how Belgium’s stifling culture of bourgeois respectability still buried homosexuality in shame during the early twentieth century, while Eekhoud’s Dutch and German allies were already pushing the matter successfully onto the public agenda.

Chapter 6 reconstructs the technology-specific legal contours of freedom of expression in the Internet age, presenting empirical evidence of the growing importance of technology for legal practice and regulation. Since data-processing technology is a prerequisite for free speech, the starting point is privacy law. An important distinction is made between data integrity and network integrity and the discussion on net neutrality and the open Internet is revisited. The case law of the ECtHR on Article 10 ECHR is also examined to see if there is a tendency to recognise an independent ‘right to transmit’. Moreover, the activities of the Internet Corporation for Assigned Names and Numbers (ICANN) can be seen to produce technology-related standards relevant to the freedom of expression. ICANN, which is responsible for routing data packets to their destination, controls the ‘master key’ to the entire global Internet and can thus influence the conditions under which freedom of communication is possible. Finally, the chapter addresses the technical standards for the Internet developed by the independent Internet Architecture Board and the Internet Engineering Task Force, which are also crucial for the freedom of expression.

The Introduction provides an overview of trademark laws that implicate the right to freedom of expression. It also introduces the concept of inherently valuable expression in trademark law. Examples include descriptive trademarks; popular phrases and designs claimed as marks for T-shirts and other types of expressive merchandise; political and social messages; words, names, and symbols important to religious or indigenous communities; popular colors and shapes; and culturally significant creative works claimed as trademarks. The introduction also discusses the proposed free speech framework for trademark law. Government decision-makers should (1) identify the purpose of this specific trademark law and determine whether it is sufficiently important; (2) evaluate whether that particular trademark law directly and materially furthers its purpose; and (3) determine whether this trademark law endangers free speech, and ensure that it suppresses or chills protected expression no more than necessary in pursuit of that important purpose. The introduction concludes with an overview of trademark registration and enforcement laws that may potentially conflict with the free expression right.

Chapter 1 uses three examples of expression with substantial inherent value that should arguably not be registered as a trademark, or should only have a narrow scope of trademark protection regardless of whether it has acquired distinctiveness in an industry. The first example focuses on words that provide information about products. DC Comics and Marvel Characters have obtained trademark registrations for “Super Heroes” for comic books and other products that feature superhero characters, and “Super Hero” for masquerade costumes. The second example focuses on trademark rights claimed in popular terms or designs displayed on expressive merchandise. Lifeguard Licensing Corp. registered “Lifeguard” and a white Greek cross symbol (similar in shape to the red cross symbol) as a mark for T-shirts and other goods. The third example focuses on intrinsically decorative product features, such as three-dimensional shapes that represent things in nature. Globefill Inc. owns trademark registrations for a human-skull-shaped bottle for alcoholic beverages sold under the brand name “Crystal Head Vodka”, and a copyright registration and design patent for this sculpture.

The Conclusion provides an overview of the topics discussed throughout the book. First, it encourages governments to refuse to register expression with substantial inherent value or only provide a narrow scope of trademark protection to such marks. Then it reviews the free speech framework for trademark law, and the proposed reforms of trademark registration and enforcement laws discussed in Chapter 7. Finally, it discusses why these proposed reforms of trademark law are feasible. Many of the reforms proposed in this book are already included in current trademark laws or model trademark laws. Members of the International Trademark Association and other attorneys, academics, and commentators agree that the free expression right imposes some limits on trademark registration and enforcement laws. International obligations to protect trademarks in treaties and trade agreements do not prevent the United States, countries in Europe, and other members of the World Trade Organization from protecting the right to freedom of expression in trademark law. Governments also have obligations to protect this fundamental right in treaties and constitutions.

Chapter 3 provides details about the proposed free speech framework for trademark law. Legislators and courts should (1) identify the purpose of this specific trademark law – not the general purposes of trademark law, trademark theories, or a trademark’s functions – and determine whether it is sufficiently important (e.g., preventing misleading uses of trademarks, promoting fair competition, helping members of the public identify the source of goods or services, or discouraging the registration or use of hate speech); (2) evaluate whether that particular trademark law directly and materially furthers its purpose; and (3) determine whether this trademark law endangers free speech, and ensure that it suppresses or chills protected expression no more than necessary in pursuit of that important purpose. It is generally best to avoid constitutional analysis of trademark laws, so legislatures should consider making speech-protective and pro-competitive changes to problematic trademark statutes. In addition, courts and other government decision-makers should interpret provisions in trademark laws in a manner that protects expressive values and promotes the law’s important purpose(s).

Chapter 2 explains why the free expression right is relevant to laws regulating trademarks. Legislatures and courts agree that trademark laws can potentially conflict with this fundamental human right in constitutions, treaties, and statutes. Examples include the Recitals in the EU Trade Mark Regulation and Trade Mark Directive, the Court of Justice of the European Union’s Constantin Film case, and the US Supreme Court cases Matal v. Tam and Iancu v. Brunetti. This chapter also discusses the free speech theories relevant in the trademark context (such as the marketplace of ideas), why uses of trademarks are usually “expression” covered by the free expression right, and state action doctrine. With a focus on US free speech law, the chapter then discusses strict and intermediate constitutional scrutiny. It notes the analysis is different when laws regulate trademarks based on their viewpoint or content, and when the regulated speech is noncommercial or commercial, or fits into a category of expression that falls outside of the boundaries of the First Amendment. The chapter concludes with a discussion of William McGeveran’s four free speech goals for trademark law.