Document Type

Working Paper

Publication Date

9-5-2015

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; AARN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network; Anthropology & Archaeology Research Network

Abstract

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 nearabsolute 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

Download

Share

COinS