Why Do We Have Such Stronger Free Speech Norms?
Adam Liptak has an excellent article comparing America’s approach to free speech to those of Europe and Canada. Basically, despite all of our slipback on other civil liberties issues, we’ve manaaged to maintain a pretty strong norm in favor of freedom of speech. For example, you don’t see people calling for blasphemy laws here as you do in part of Western Europe, and Mark Steyn isn’t facing prosecution in New York City, but Canada. As to why this state of affiars exist, two main reasons come to mind.
1. A much longer tradition of freedom of speech. The first amendment to the Constitution has been exactly that – the first amendment of the constitution – since the 1790s. Very few European countries have real free speech rights that are so old and institutionally set-in-stone. The corollarly to this is that our free speech rights got a big boost in the 20th century, when the Court pretty solidly affirmed that content-based and viewpoint-based restrictions needed to pass the strict scrutiny test, and thus were just about always unconstitutional. The same goes for prior restraint – which the Supreme Court has roundly rejected.
2. I’d also argue that we have strong free speech rights because of the political dynamics at play. Basically, there are elements on both sides of the political spectrum that want to restrict speech. The right wants to restrict speech if it’s not patriotic (flag burning) or “treasonous” (stories about wiretapping in the Times, speech restrictions during wartime etc), while many on the left want to restrict speech if it’s offensive (“hate speech”). So both sides become mutually suspicious of each other’s attempts to restrict free speech, and so a relatively happy equilibrium is maintained.
*3. In the case of Europe, the laws against holocaust denial and Nazi advocacy are pretty self explanatory.
