Free Speech Paternalism and Free Speech Exceptionalism: Pervasive Distrust of Government and the Contemporary First Amendment
33 Pages Posted: 5 Sep 2015
Date Written: June 1, 2015
The United States observes a profound constitutional commitment to safeguarding expressive freedoms, including speech, press, assembly, petition, and association rights secured under the First Amendment. However, when viewed from a global perspective, the American position of affording near-absolute protection to speech is strongly exceptionalist. Other polities, sharing strong constitutional commitments to respect the freedom of speech, do not view government efforts to regulate speech based on its content or viewpoint as presumptively invalid. In such places, government efforts to shape the marketplace of ideas through regulation are seen as fully consistent with a broader legal commitment to respecting expressive freedom. Two recent books, one by Professor Martin Redish and the other by Professor Timothy Zick, help to shed important light on this conflict between free speech paternalism and free speech exceptionalism. Read in tandem, the books help to explain why the United States approach to defining and protecting freedom of expression constitutes a global anomaly. This Essay argues that free speech exceptionalism in the United States is best understood as a logical outgrowth of broader social, cultural, and historical factors. In particular, United States free speech exceptionalism arises from a longstanding and pervasive distrust of government and its institutions, a form of distrust that simply does not exist in most other nations. These books also illuminate an important, and curious, exception to this general distrust of government speech regulations in the United States: transborder speech. The constitutional protection of speech should not rest on an accident of geography; simply put, distrust of government speech regulations should not end at the water’s edge. Accordingly, transborder speech merits greater constitutional solicitude and protection than it generally enjoys at present.
Keywords: constitutional law, separation of powers, free speech, hate speech, distrust, democracy, dissent, low value speech, democratic deliberation, first amendment, expressive freedom, comparative law, privacy, dignity, Germany, United States, autonomy, transnational judicial dialogue, Meiklejohn
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