U.S. Free Speech vs. EU Free Speech

Thanks, Airmax, for this debate! He's a formidable opponent, and I hope to present a worthy challenge. I will now present my case.=============A. IntroThe world may be our oyster, but our rights are our shucking knives.Okay, so I admit that's kind of a corny analogy (not even "kind of")...but it also effectively captures the utility that rights have. Without our rights, life and the opportunities it affords us, could not be explored or enjoyed effectively. Without them, we would be subject to such indignities as arbitrary arrests, unjustified seizure of our property, and intrusive surveillance of our homes and devices. Our rights empower us to not only enjoy what we have, but to pursue a better future, much like the knife that opens the oyster gives us a chance to discover the pearl inside.We are, in fact, due many different kinds of rights, and it is important that we realize that no lone right or set of rights can be pursued to the exclusion of all others. Rather, all rights must be balanced against one another. To have safety without freedom, equality without property, or free speech without privacy would deny people an important share of the rights owed to them. It would be like having only half a knife.In this vein, absolute free speech is something that very few endorse--even the Supreme Court (SCOTUS) does not go that far, preventing someone from falsely crying "fire!" in a crowded theatre. [1] Here, the conflict is between a fundamental right to safety and the right to free speech. What this shows us is that for any rights model to be desirable and workable (i.e. "preferable"), it must balance rights against each other to create a system that respects the integrity of a wide range of rights. The winner of this debate, therefore, will be the one who can show that their rights-model best situates and balances free speech among a pantheon of other rights and social goods.B. Legal StructuresThe key difference between the way the European model (EUM) and the US model (USM) are formulated lies in how they allow rights to interact. The USM employs very absolutist language in constructing its free speech rights, notably that Congress shall "make no law" that limits this right. [2] Given the categorical nature of this statement, as well as the First Amendment's primacy at the start of the Bill of Rights, a legal culture has developed in which it is harder to balance free speech against other rights. [14] While some balancing does take place, the courts must go through hoops to make their rulings comport with the strongly worded nature of the amendment. Because free speech is protected so strongly, it becomes inordinately difficult to put it on a scale of values. [3] In the EUM, however, there is a recognition that free speech needs to be balanced against many other important concerns. The ECvHR puts free speech among a variety of other rights, none of which use categorical phrasing, and many of which have stated exceptions. [4] This eases the burden on judges seeking to weigh the various interests at stake. Thus, the EUM is better able to avoid giving short shrift to other important rights in the face of free speech, while still respecting the goals and practice of free speech. Simply put, free speech in EUM is placed on a scale of values, which allows this model to better protect rights in general. [3]C. Legal MethodologyTo compare the systems more directly, we can note that "the Supreme Court has evolved a complex set of rules for deciding constitutional cases, especially those involving the application of the free speech clause of the First Amendment...The rules go by such names as 'strict scrutiny,' 'heightened scrutiny,' 'intermediate scrutiny,' and 'rational-basis review,'...The courts of the European Union, by contrast, follow a much simpler approach, known as 'proportionality.' They ask, Breyer explains, does 'the [regulatory] limitation' on private conduct 'impose a restriction that is disproportionate to the legitimate interests the governments seeks to achieve?' As Breyer points out, answering that question 'requires the judge explicitly to balance the harm to the protected interest (e.g., speech) against the need for the limitation to protect a critically important objective." [5] This passage, which reviews Justice Stephen Breyer's own scholarly work, is illuminating for several reasons. The way the EUM has structured it's legal processes force it to balance various rights, social goods, and interests, and to do so unambiguously. This has various pedagogical benefits, in the sense that it reinforces and, in a sense, teaches, the importance of balancing rights within the legal system. It also is likely to impact the thinking behind legal rulings; rather than simply asking, does X pass test Y, justices can directly tackle the question of whether the values and interests trade-offs of X are worth it. Next, the gap in complexity between the two systems simply gives the EUM a procedural advantage--there is less theoretical red tape to work through to reach a decision. Lastly, the USM is so structured such that it is harder to strike a balance, because the assumption is always against violating a right, even if the trade-off would be beneficial, esp. for strict scrutiny. As Justice Clarence Thomas noted, "[t]his most exacting standard [of strict scrutiny] 'has proven automatically fatal' in almost every case." [6]D. Levels of FreedomSo far, I have made two core arguments. The first stems from the basic law in which the rights involved are enshrined, i.e. the Constitution and the ECvHR. The second uses a question of procedure to make a similar point, but from a different angle, focusing instead on the methodology with which justice arrive at their verdicts. To contextualize these arguments and to endeavor to learn how the EUM and USM affect the state of free speech in their respective jurisdictions, I want to take a look at the broad levels of freedom in each area.The Press Freedoms Index shows that a majority of topical European nations have scores that are better than America's score. The average for those European nations is also better than the U.S.--22.02 vs. 24.41, respectively (lower numbers are better)--with a medium of 19.95 among those European countries. [7] The World Freedom Index shows that the vast majority of European nations are "free"--the best rating. [8] In the Human Freedom Index Report, EU nations scored an average of 8.97 in "Personal Freedom," compared to the US's 8.71 (larger numbers are better). In the Freedom of Expression subcategory, EU nations scored an average of 8.7, a medium of 9.1, and a mode of 9.6, virtually comparable to the US score of 9.3. [9] And, Europe is heavily democratic; 9 of the world's top 10 democracies are in Europe, with the other being New Zealand. [10] The impact here is clear: Europe is a free and fair place to live.E. ValuesI estimate that many of the next speeches will include examples of balancing rights to see the approaches in practice. In order to better understand what rights free speech needs to be balanced against, we can look to one widely accepted list of basic human rights, which has been adopted by both the U.S. and supported by the EU: the Universal Declaration of Human Rights. [11] In order to emphasize the utility and importance of these rights, I will briefly review some. The right to due process, for instance, is vital to ensuring that people aren't arbitrarily detained or punished, and that they have a fair chance to defend themselves. Property is similarly important; without it, there's no incentive to work--which damages the economy--we have less control over our personal spheres, and we have less ability to pursue our desires. Privacy is also key: "Friendship and intimacy would be impossible...without the ability to reveal oneself more fully to some people than to others...[B]y protecting the ability to have moments...when one can 'be oneself', privacy facilitates emotional release and promotes liberty of thought and action. This is in turn viewed as a vital precondition for meaningful participation in democratic society. Freedoms such as...freedom of expression lose much of their value if people do not first have the chance to learn to think for themselves." [12] Also, "'[i]t is the essence of the dignity and personal autonomy and wellbeing of all human beings that some aspects of their lives should be able to remain private if they so wish.'" [12] Privacy and reputation protections have a "serious impact on the ability of a person to engage in communicative processes...Accessibility and durability of information may lead to self-censorship and...persons may hesitate to act and to participate in social and public life, which...affects the development of democratic citizens." [13] This information should lay the groundwork for future analysis.F. ConclusionHappiness and self-actualization are life's pearls, but to get at them, people need the tools that rights are. Pursuing any right to the exclusion of all others is like only having half a knife, only half of the toolkit. There are a panoply of crucial rights, each enriching our lives in different, yet needed, ways and the EUM is best suited to handle that reality. Thank you for reading; I hope to earn your vote. Thus, I negate.G. Sources1 - http://tinyurl.com...2 - http://tinyurl.com...3 - http://tinyurl.com...4 - http://tinyurl.com...5 - Richard Posner. "The Law of the Lands: How the U.S. Supreme Court Engages With the World." Rev. of The Court and the World, by Stephen Breyer. Foreign Affairs November/December 2015: p. 138-39. Print.6 - http://tinyurl.com...7 - https://index.rsf.org...#!/8 - http://tinyurl.com...9 - http://tinyurl.com...10 - http://tinyurl.com...11 - http://tinyurl.com...12 - http://tinyurl.com...13 - http://tinyurl.com...14 - http://tinyurl.com...