During his month-long visit to Cuba in 1965, Allen Ginsberg’s ideals of expressive freedom, sexual openness, and poetic individualism came into direct conflict with the increasingly repressive Castroist regime. Invited by the state organization Casa de las Américas to judge a poetry competition, Ginsberg quickly drew scrutiny from the regime for his outspoken views on homosexuality, drug use, and freedom of expression. His subsequent surveillance by the state’s vice squad, arrest, and deportation underscored the Cuban government’s intolerance for nonconformist expression, especially as it pertained to sexuality and dissent. Ginsberg’s experiences, recorded in his Cuban diaries, letters, and poems, reveal a central paradox of revolutionary politics: While seeking liberation, regimes might deploy repressive mechanisms of censorship and control. Ginsberg’s confrontation with Cold War ideologies – both US and Cuban – solidified his vision of a humanist poetics aimed at disrupting authoritarian systems and expanding consciousness through individuals’ radical self-expression.

When it became clear that gender critical belief is protected in our anti-discrimination law, it was often said that, while such views were protected, manifesting or expressing them was not. This is simply not true. Article 9 of the European Convention on Human Rights protects both the absolute right to hold a belief and the qualified right to manifest a belief. The manifestation of protected beliefs is also protected under Article 10, which protects the right to freedom of expression. Because these are qualified rights, it may be permissible to interfere with them where proportionate. Where discrimination or harassment arises because someone holds gender critical views, this will be unlawful. However, where the treatment complained of is a genuine response to the fact or manner of manifestation of a protected belief, the legal situation becomes more complex. In assessing the extent to which is it permissible for an employer or other duty-bearer to interfere with the fact or manner of manifestation of a protected belief, the central importance of freedom of expression must be recognised as the background context of any analysis.

This use of preferred pronouns for those with trnsgender identities is extraordinarily contentious within the context of debates on sex and gender identity. This chapter begins by exploring why pronouns are so contentious, arguing that their use is an important signifier of underlying beliefs about the relationship between sex and gender identity. From here, the chapter explores whether and under what conditions an emplouyer could interfere with the expression of employees to prohibit or compell the use of particular pronouns. It concludes that this will require a fact-sensitive analysis which begins from the understanding that the right to freedom of expression is robustly protected, especially in the context of compelled speech.

One of the most contentious issues relting to sex and gender identity is whether a transgener person has a right to keep informaiton about their biological sex private from others. Related to the right to freedom of expression, discussed in previous chapters, is the countervailing right to private life. Nowhere encapsulates the potential for human rights to conflict more clearly than the tension between the interest of one person to disclose information that another party would rather be kept private. This chapter examines circumstances when it may be lawful to disclose information about the biological sex of another when they would strongly wish that information not be shared at all. Relatedly, it explores circumstances when heightened rights of privacy may obtain as a result of data protection obligations placed on businesses and public bodies. There is no absolute right to keep the fact of one’s sex private, but there may be some circumstances where one has a reasonable expectation of privacy and where disclosure may be unlawful.

The Court of Appeal in Higgs v Farmor’s School has provided a detailed analysis of the relationship between anti-discrimination and human rights standards in the workplace where employees manifest protected beliefs. Unfortunately, this analysis suffers from a central flaw by presuming that if manifestation of belief is protected under direct discrimination, it will always be unlawful for an employer to interfere. It is this presumption which prompted the Court of Appeal to defend the introduction of a justification test into what was previously a factual analysis of causation, by deeming less favourable treatment in response to ‘objectionable’ manifestations to have not been ‘because of’ the protected belief itself. This chapter argues that such an approach is unnecessary because it responds to a problem which does not exist. It is simply incorrect to presume that protection from direct discrimination necessarily implies that any interference with the manifestation of a protected belief is directly discriminatory. The ordinary application of the Equality Act is already coextensive with the protections afforded under the European Convention on Human Rights. Any interpretation needed under s.3 of the Human Rights Act is needed within the sphere of indirect discrimination, not direct discrimination.

David Collier and Steven Levitsky’s original “Democracy with Adjectives” article (1997) offered a useful corrective to Sartorian thinking about conceptualization, and the new revised version further clarifies its contribution. There is a crucial difference between identifying a diminished subtype (moving from democracy as attributes “A and B and C” to “A and B and not C”) and moving up the ladder of abstraction (from democracy as attributes “A and B and C” to “A and B and either C or not C”). Diminished subtypes are more precise and do not necessarily increase the extension of a concept. This chapter offers a critique of both examples of conceptual innovation, which are grounded in categorical thinking, from the conceptual approach used by the Varieties of Democracy (V-Dem) project, which conceives of democracy as an aggregate of multiple continuous dimensions. Examples using V-Dem data suggest that it is possible to create measurements of specific concepts that are both qualitatively rich and quantitatively precise. However, the measurement of very general concepts such as democracy comes at the cost of some quantitative information and conceptual clarity.

In June 1966, the International PEN Club held its annual conference in New York City. It was the first time in forty-two years that the United States had hosted the meeting, and there was much to celebrate. Pablo Neruda, who had repeatedly been denied visas to the United States since 1943 on the grounds that he was a communist, was one of the stars of the show. Throughout – and, indeed, long after – the conference, he made headlines, drew audiences, and made statements that had a lasting impact. He also earned the wrath of supporters of the Cuban Revolution, who attacked him for betraying the revolution by participating in the conference. This chapter discusses Neruda’s participation in the event, including the controversies that he sparked during and afterward, as well as his other activities in New York and his travels in the United States afterward.

This chapter formulates the research question and clarifies the critical methodological issues pertaining to the analysis. This is important because the book aims to bring together science and technology studies, sociological systems theory and jurisprudence The topic of the book is then introduced by giving an overview of all the chapters, making clear that a common thread runs throughout the book and that the argument addresses all of the theoretical, empirical and practical aspects of the research question posed at the beginning.

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.

Thus far, we have largely considered technologies that are capable of changing persons’ mental states. However, today, a range of technologies are also being developed that can gain insight into the mental realms of others. One example is the measurement of brain activity, which has enabled researchers to make inferences about individual mental states and faculties. In particular, fMRI and EEG can measure brain activity in a way that allows for inferences about what a person remembers, recognises, thinks or feels. EEG has been used, for example, to identify concealed memories about a criminal offence; and fMRI has been used to reveal sexual orientation, political ideology or a person’s craving for cocaine. Recently, various research groups used neurotechnology together with emerging forms of artificial intelligence (AI) to decode mental content from brain activity, with some interesting first results. According to Brownsword, with the development of these kinds of “brain-reading” technologies, “researchers have a window into the brains and, possibly, into a deeper understanding of the mental lives of their participants”.

Expanding the horizons of constitutional practice further, this chapter shows how the meanings and implications of the Cambodian Constitution – and particularly the mandate it gives the state to protect Cambodian culture and tradition – have been shaped by artists, filmmakers, and performers. The chapter begins by introducing the reader to the Ministry of Culture’s ‘Code of Conduct for Artists and Performers’, which was introduced in 2016. Then, drawing on interviews with a number of artists from around Cambodia, as well as representatives from the Ministry of Culture, I suggest that the Code of Conduct represents a profound and widely shared anxiety about the meaning of modern Cambodian culture and national identity. In negotiating this fraught terrain, Cambodian artists explain how they have either directly challenged or avoided the regulations. In so doing, this disparate group has elaborated its own interpretation of the Constitution, and offered its own definition of the ideas of ‘national culture’ and ‘good traditions’ contained therein. The result is both a micro-level account of constitutional contestation and an exploration of how art, culture, and constitutionalism intertwine, as the artists in question effectively shape the meaning of the Constitution from below, and thus effectively become constitutional actors themselves.