The Exceptional First Amendment

38 Pages Posted: 18 Feb 2005  

Frederick Schauer

University of Virginia School of Law

Date Written: February 2005

Abstract

As is increasingly apparent, the United States is a free speech and free press outlier. With respect to a large range of issues - defamation, hate speech, publication of information about ongoing legal proceedings, incitement to violence or illegal conduct, and many others - the United States stands alone, not only as compared to totalitarian states, but also in comparison with other open liberal constitutional democracies. The reasons for this divergence are common, but among the explanations are the complexities of the trans-national migration of legal and constitutional ideas, differential commitments to libertarian visions as a matter of basic political theory, differences in the constitutional text, differences in political and legal history, differences in the role of various interest groups, and differences in views about constitutionalism and the role of the courts. This paper attempts to explore in an explanatory but non-evaluative way the causes of American free speech exceptionalism.

Keywords: Human Rights, Law and Legal Institutions

Suggested Citation

Schauer, Frederick, The Exceptional First Amendment (February 2005). KSG Working Paper No. RWP05-021. Available at SSRN: https://ssrn.com/abstract=668543 or http://dx.doi.org/10.2139/ssrn.668543

Frederick Schauer (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-6777 (Phone)

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