Freedom of Speech: The United States versus the Rest of the World

Abstract

In presentations before foreign audiences, I have compared the very strong constitutional protection of freedom of speech in the United States with the somewhat lesser protection of freedom of speech provided under the constitutions of other democratic nations and under international human rights norms. My foreign audiences have reacted with astonishment at hearing how far the United States goes in protecting highly offensive forms of speech that the rest of the world prohibits, such as "hate speech." The skepticism of my foreign audiences about the sweeping constitutional protection of freedom of speech in the United States is shared by those American constitutional law commentators who have long contended that the Supreme Court has gone "too far" in protecting freedom of speech against the government's efforts to prevent and sanction "harmful speech."

Last year I made a presentation to a Humanities Brown Bag Colloquium at Wayne State in which I asked the participants to explore the difference between constitutional protection of freedom of speech in the United States and "the rest of the world" in light of humanistic values. I asked them to consider questions such as whether humanistic values provide guidance as to how strongly we should protect freedom of speech when it takes the form of "hate speech" and what most of us would consider "bad ideas." Conversely, I asked them to consider whether humanistic values could be relied on to justify the strong constitutional protection that we give to freedom of speech in the United States.

Much to my surprise, a consensus seemed to emerge. The consensus was that the strong constitutional protection for freedom of speech in the United States was itself an American humanistic value, a value that was the product of our own history and experience, and a value that is reflected in American culture. Thus, in the United States a concern for humanistic values would justify protecting "bad ideas" and "harmful speech" rather than restricting them. This conclusion was in accord with my long-held position that the strong constitutional protection of freedom of speech in the United States is an integral part of American culture, resulting from our own history and experience. It is an American phenomenon. By the same token, I have also maintained that other nations, with a different history and experience, could understandably be less protective of freedom of speech than we are. For example, Germany, a nation trying to combat the horrific legacy of Naziism and the Holocaust, surely could not be expected to tolerate any form of "hate speech" or any display of Nazi symbols, or any advocacy of genocide. The same might be true of the European nations that endured terrible suffering under the Nazi aggression of World War II and the Holocaust and of the State of Israel.

But in the United States the strong constitutional protection of freedom of speech is embedded in the American culture of the twenty-first century, and the Supreme Court's expansive interpretation of the First Amendment's guarantee of freedom of speech serves to implement the values of American society today.