American Exceptionalism and Human Rights

By Michael Ignatieff | Go to book overview

Chapter 2
The Exceptional First Amendment

FREDERICK SCHAUER

ALTHOUGH IT WAS not always so, today virtually all liberal democracies protect, in formal legal documents as well as in actual practice, both freedom of speech and freedom of the press. The language used to enshrine the protection varies, with “freedom of expression” the most common contemporary canonical formulation, but in one way or another it is now routine for open societies to guarantee a moderately wide range of communicative freedoms.1 Moreover, the protection is uniformly of a type that can be characterized as “constitutional,” in that the principles of freedom of expression impose entrenched second-order constraints not merely upon pernicious attempts to control communication, and not even merely upon well-intentioned but misguided attempts to control communication, but also, and most important, upon actually well-designed and genuinely efficacious attempts to control speech and the press in the service of important first-order policy preferences. With few exceptions, it is today generally understood worldwide that freedom of expression must be respected even when sound policies would actually be substantially fostered by restrictions on that freedom.2

This essay has benefited enormously from the comments of Michael Ignatieff and the
other participants in the Carr Center for Human Rights Policy's Exceptionalism Project,
and from participant and audience questions when a different version of this essay was
delivered at a conference on European and American constitutional law organized by the
Venice Commission of the Council of Europe and held in Göttingen, Germany, on May 15–
16, 2003. Research support was generously provided by the Joan Shorenstein Center on the
Press, Politics and Public Policy.

1 For purposes of this essay, I will treat “freedom of expression,” as in Article 10 of the
European Convention on Human Rights, “freedom of communication,” as in the May 28,
2003, Declaration on Freedom of Communication on the Internet by the Committee of
Ministers of the Council of Europe, and “freedom of speech” and “freedom of the press,”
as in the First Amendment to the Constitution of the United States, as synonymous, al-
though there are instances in which variations in formulation reflect different substantive
understandings and may even make a genuine difference in practice.

2 On the importance of understanding freedom of expression as just this kind of side
constraint, see Frederick Schauer, Free Speech: A Philosophical Enquiry (Cambridge: Cam-
bridge University Press, 1982); Thomas Scanlon, “A Theory of Freedom of Expression,”
Philosophy and Public Affairs 1 (1971): 203–21. On second-order constraints on first-order

-29-

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