Free Speech and the Case for Constitutional Exceptionalism

Embodied in the Universal Declaration of Human Rights is the evocative proposition that "[e]veryone has the right to freedom of opinion and expression." But beneath that level of abstraction there is anything but universal agreement. Modern democratic societies disagree on the text, content, theory, and practice of this liberty. They disagree on whether it is a privileged right or a subordinate value. They disagree on what constitutes speech and which speech is worthy of protection. They disagree on theoretical foundations, uncertain if the right is grounded in libertarian impulses, the promotion of a marketplace of ideas, or the advancement of participatory democracy. In short, the freedom of expression is a universal value that is fraught with cultural contingencies.There are various responses to this ideological pluralism. One response is to seek normative uniformity. That approach represents the unusual circumstance in which almost all countries have balanced competing interests and uniformly concluded that a particular government practice need not be pursued. Far more common is the situation - evident in the free speech context - in which one human right is balanced against other competing goods on a country-by-country basis. The precise balance achieved in each country will differ. This book review argues that the dissonance between countries need not be challenged in pursuit of uniformity. Indeed, in those cases in which the differences reflect an appropriate balance of competing goods, it should be celebrated. Constitutional exceptionalism recognizes and celebrates each country's attempt to optimize the general welfare of that country by balancing competing goods in a manner consistent with that country's constitutional text, structure, history, precedent, and national experience. The point of constitutional exceptionalism is not to deny the existence or importance of any particular right. Rather, it is to accept the legitimacy of each modern democracy's attempt in its constitutional order to balance competing rights and interests as an expression of their cultural and national identity. Ronald Krotozynski counts himself among the proponents of "weak" transjudicial dialogue who celebrates this free speech pluralism. His recent book, The First Amendment in Cross-Cultural Perspective, offers a useful guide to the comparative experiences of five modern democracies (United States, Canada, Japan, Germany, and the United Kingdom). He outlines the free speech guarantees of each country in light of text, structure, history, precedent, and national experience. He emphasizes how each factor is critical in understanding the free speech guarantees of that country. This book review essay also considers the difficulties of a truly comprehensive free speech analysis. The essay argues that comparative constitutional analysis suffers from the curse of dimensionality. A comparison of one speech variant (i.e., hate speech) in a few countries using one contextual factor (i.e., precedent) is easy. A comparison of multiple speech variants in numerous countries using several contextual factors is exceedingly difficult. But only comparisons undertaken in such high dimensional space can reveal whether or not there are free speech clusters and outliers as is often asserted. This curse of dimensionality raises serious questions about the feasibility of comparative constitutional analysis. The essay does not question Krotozynski's serious and scholarly attempt at a narrow and deep comparison of free speech guarantees in five modern democracies. But it does cast doubt on the narrow and shallow comparisons that are often undertaken by constitutional jurists.