Document Type
Book Review
Publication Date
2008
Publication Information
106 Mich. L. Rev. 1071 (2008) (book review).
Abstract
Excerpts from the Article
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.
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.
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.
Recommended Citation
Roger P. Alford,
Free Speech and the Case for Constitutional Exceptionalism,
106 Mich. L. Rev. 1071 (2008) (book review)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/108
Included in
Comparative and Foreign Law Commons, Constitutional Law Commons, First Amendment Commons
Comments
Reprinted with permission of Michigan Law Review.