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Chapter 2 The Exceptional First Amendment F R E D E R I C K S C H A U E R ALTHOUGH IT WAS not always so, today virtually all liberal democracies protect, in formal legal documents as well as in actual practice, both freedom of speech and freedom of the press. The language used to enshrine the protection varies, with “freedom of expression” the most common contemporary canonical formulation, but in one way or another it is now routine for open societies to guarantee a moderately wide range of communicative freedoms.1 Moreover, the protection is uniformly of a type that can be characterized as “constitutional,” in that the principles of freedom of expression impose entrenched second-order constraints not merely upon pernicious attempts to control communication, and not even merely upon well-intentioned but misguided attempts to control communication , but also, and most important, upon actually well-designed and genuinely efficacious attempts to control speech and the press in the service of important first-order policy preferences. With few exceptions, it is today generally understood worldwide that freedom of expression must be respected even when sound policies would actually be substantially fostered by restrictions on that freedom.2 This essay has benefited enormously from the comments of Michael Ignatieff and the other participants in the Carr Center for Human Rights Policy’s Exceptionalism Project, and from participant and audience questions when a different version of this essay was delivered at a conference on European and American constitutional law organized by the Venice Commission of the Council of Europe and held in Göttingen, Germany, on May 15– 16, 2003. Research support was generously provided by the Joan Shorenstein Center on the Press, Politics and Public Policy. 1 For purposes of this essay, I will treat “freedom of expression,” as in Article 10 of the European Convention on Human Rights, “freedom of communication,” as in the May 28, 2003, Declaration on Freedom of Communication on the Internet by the Committee of Ministers of the Council of Europe, and “freedom of speech” and “freedom of the press,” as in the First Amendment to the Constitution of the United States, as synonymous, although there are instances in which variations in formulation reflect different substantive understandings and may even make a genuine difference in practice. 2 On the importance of understanding freedom of expression as just this kind of side constraint, see Frederick Schauer, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press, 1982); Thomas Scanlon, “A Theory of Freedom of Expression,” Philosophy and Public Affairs 1 (1971): 203–21. On second-order constraints on first-order F RE DE RI CK SC HA UE R 30 Yet although a constitutional or quasi-constitutional3 right to freedom of expression is the international norm, the contours of that right vary widely even among the liberal democracies that understand the value of the right and the importance of enforcing it seriously. And among the most interesting manifestations of that variety among liberal democracies is the way in which the American First Amendment, as authoritatively interpreted, remains a recalcitrant outlier to a growing international understanding of what the freedom of expression entails. In numerous dimensions , the American approach is exceptional, and my goal in this essay is first to describe some aspects of American free speech (and free press) exceptionalism, and then to offer as plausible but untested hypotheses various explanations as to why the American protection of freedom of expression is generally stronger than that represented by an emerging multinational consensus—but stronger in ways that may also reflect an exceptional though not necessarily correct understanding of the relationship between freedom of expression and other goals, other interests, and other rights. Two Types of Exceptionalism It will be useful at the outset to distinguish between substantive and methodological exceptionalism. When I speak of the former, I refer to actual outcomes and actual doctrines, but when I speak of the latter, I mean to focus on the methods and approaches, predominantly but not exclusively those of the courts, by which those outcomes and doctrines are produced. Thus, and as I will explain in detail, the American understanding of freedom of expression is substantively exceptional compared to international standards because a range of American outcomes and American resolupolicy preferences as underlying constitutionalism in general, see Frederick Schauer, “Judicial Supremacy and the Modest Constitution,” California Law Review 92 (2004): 834–57. 3 I refer to as “quasi-constitutional” those entrenched protections of...


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