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Article Excerpt
THE FIRST AMENDMENT IN CROSS-CULTURAL PERSPECTIVE: A COMPARATIVE LEGAL ANALYSIS OF THE FREEDOM OF SPEECH. By Ronald J. Krotoszynski, Jr. New York: New York University Press. 2006. Pp. xvi, 301. $50.
INTRODUCTION
Embodied in the Universal Declaration of Human Rights is the evocative proposition that "[e]veryone has the right to freedom of opinion and expression." (1) Beneath that 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 what 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. They disagree on whether the fight should be safeguarded by judicial review or subject to majoritarian legislative values. They disagree on whether the right may be invoked against infringements resulting from private as well as state action. In short, the freedom of expression is a universal value that is fraught with cultural contingencies. It is universal in abstraction and particularized in application.
There are various responses to this ideological pluralism. The two most common are constitutional exceptionalism and constitutional comparativism. Constitutional exceptionalists argue that the variety of unique contextual factors informing each state's domestic constitutional law stymies reliance on foreign law in domestic courts; constitutional comparativists argue that these divergent experiences are relevant. But to say that comparative experiences are relevant is to say virtually nothing beyond the bland proposition that they should not be ignored. A more nuanced response would articulate just how the comparative experiences are relevant and forthrightly address the broader goal of the comparative project.
At a minimum, the goal of constitutional comparativists is to promote "transjudicial dialogue" between nations. (2) The stronger form of transjudicial dialogue argues that constitutional courts should "borrow" from one another in their decisions, despite the fact that even the most prominent jurists are woefully uninformed about the most basic differences among and between the various constitutional and international courts. (3) The weaker variant of this dialogue advances the simple proposition that judges should be aware of the jurisprudence of peer constitutional courts and international tribunals. (4)
Ronald Krotoszynski (5) counts himself among the proponents of "weak" transjudicial dialogue:
Foreign judicial decisions could legitimately serve as a kind of judicial muse--a highly effective foil for contrasting domestic legal understandings; a mirror that reflects not the self, but the other; a kind of grist for reconsidering long-held assumptions about the way things must be (because, in a given country, they have always been thus). (6)
His recent book, The First Amendment in Cross-Cultural Perspective, is an effort to promote that transjudicial dialogue.
Krotoszynski's book offers a useful guide to free speech law in the United States, Canada, Germany, Japan, and the United Kingdom. As an initial matter, I question Krotoszynski's conclusions on the value of comparative analysis, and I doubt the feasibility of a comprehensive analysis of comparative free speech law. Nonetheless, in showcasing the divergence in free speech law across five modern democracies, Krotoszynski's book is an important contribution in support of constitutional exceptionalism. Krotoszynski's exposition shows the pluralistic and highly contextual nature of free speech protections. The data--and its limits--are inconclusive as to whether the United States is a free speech outlier and demonstrate that we must respect each country's distinct balancing of countervailing rights and interests in the free speech arena.
I. THE VALUE OF COMPARATIVE ANALYSIS
In his book, Krotoszynski argues that, "when an almost identical legal problem arises, the response to that problem in a different cultural milieu can provide a useful perspective for domestic consideration" (p. 3). What is refreshing about Krotoszynski's approach is that he embraces comparativism as offering "useful insights" but fully recognizes the "dangers associated with simplistic comparative-law borrowing exercises that [are] utterly insensitive to cultural context" (pp. 3-4). Krotoszynski begins by defending the utility of comparative free speech analysis. He argues that there are "at least three reasons for supposing that a comparative law study of freedom of expression might prove helpful, if not essential, to domestic students of the subject" (pp. 5-6). While each of these points suggests quite interesting justifications, I am not sure that any of them answer the question why comparative analysis of free speech law is helpful, much less essential.
First, Krotoszynski argues that a comparative study of free speech law "provides a useful perspective with which to check one's baseline assumptions about the concept" (p. 6). I agree that comparative experiences shed light on the salient differences between modern democracies and provide a prism for exploring the counterfactual. If, for example, one doubts whether a theory of free speech premised on a Holmesian marketplace of ideas is defensible or desirable, one can reference competing experiences in different countries to highlight the merits and demerits of that approach. Or if one wonders whether subordinating free speech to other values such as equality or human dignity has serious merit, one can find specific instances in which the consequences of that approach are manifest. But that is primarily useful as an interesting academic exercise. For most mature democracies, constitutional jurists are bound by text, structure, history, precedent, and national experience. Each country's free speech "assumptions" are embodied in those interpretive sources. So a jurist's ability to check his or her own basic assumptions by relying on comparative experiences is quite properly subject to those foundational constraints. And as we will see in Part II, these constraints confound useful comparisons between countries.
Second, Krotoszynski argues that "judges routinely borrow across international lines, therefore making some knowledge of foreign legal systems helpful in understanding or predicting the behavior of domestic judges" (p. 6). However, at least in the United States, there is little support for the proposition that, in the free speech context, judges routinely borrow across international lines. They simply don't. One must deeply troll the waters of First Amendment jurisprudence to come up with those rare instances in which the Supreme Court references comparative experiences. (7) I would surmise that most practitioners before the Supreme Court have little, if any, awareness of comparative experiences and almost never reference foreign jurisprudence in their written briefs or oral arguments. (8) In their professional judgment, comparative analysis does not feature in the discussion.
Finally, Krotoszynski argues that "to incorporate basic human rights as part of the framework of public international law will require increased attention to and effort in comparative legal scholarship" (p. 6). This point is relevant not for domestic constitutional law but rather for the promotion of public international law. His suggestion is that knowledge of comparative experiences will illuminate the growth and development of human rights law, with domestic jurisprudence percolating up through international law and practice to inform its content. This argument is similar to Melissa Waters' proposition of "norm convergence." (9) She argues that the development of international norms starts with the exporting of domestic norms as constitutional courts articulate a particular domestic norm at the transnational level. The norm is subsequently diffused around the world and becomes part of the international legal discourse. She reasons that "[i]f the norm becomes sufficiently embedded in a large number of other domestic or international legal regimes, it becomes the dominant normative standard on a given issue." (10) In reading Krotoszynski's analysis of comparative law in five modern democracies, there is little evidence of norm...
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