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Spreading Liberal Constitutionalism: An Inquiry into the Fate of Free Speech Rights in New Democracies

48 Pages Posted: 16 Dec 2005  

Michel Rosenfeld

Benjamin N. Cardozo School of Law

Andras Sajo

Central European University (CEU) - Department of Legal Studies; European Court of Human Rights; NYU School of Law

Date Written: 2005

Abstract

Liberal constitutional norms developed in western constitutional democracies have been "imported" into new democracies, such as those that arose in the 1990's in Eastern Europe. Can such importations lead to liberal constitutionalism in new democracies? Or does successful transplantation depend on contextual factors?

Focusing on free speech rights as core liberal rights, and on the central values of liberalism as well as on the ongoing struggle between liberalism and illiberalism in both "exporting" and "importing" countries, this article examines Hungary's importation of US and German free speech norms and doctrines. Both the more liberal US free speech jurisprudence and the more anti-illiberal German one have had considerable influence in post-communist Hungary. The analysis concentrates on the areas of hate speech, defamation of government officials, and disparagement of national symbols. After reviewing relevant Hungarian cases, institutional and political developments, the article concludes that the importation of liberal free speech norms into Hungary did not produce any simple or clear cut result. There has definitely been some implantation of liberalism, but cultural, political and institutional factors have both shaped and limited the nature and scope of such implantation.

Keywords: constitutionalism, free speech, democracy

Suggested Citation

Rosenfeld, Michel and Sajo, Andras, Spreading Liberal Constitutionalism: An Inquiry into the Fate of Free Speech Rights in New Democracies (2005). Cardozo Legal Studies Research Paper No. 144. Available at SSRN: https://ssrn.com/abstract=870444 or http://dx.doi.org/10.2139/ssrn.870444

Michel Rosenfeld (Contact Author)

Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States
212-790-0234 (Phone)
212-790-0205 (Fax)

Andras Sajo

Central European University (CEU) - Department of Legal Studies ( email )

NĂ¡dor u. 9
Budapest, 1051
Hungary

European Court of Human Rights ( email )

Strasbourg, Alsace region
France

NYU School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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