The Exceptional First Amendment

  title={The Exceptional First Amendment},
  author={Frederick Schauer},
  journal={Public Choice \& Political Economy eJournal},
  • F. Schauer
  • Published 1 February 2005
  • Law
  • Public Choice & Political Economy eJournal
As is increasingly apparent, the United States is a free speech and free press outlier. With respect to a large range of issues – defamation, hate speech, publication of information about ongoing legal proceedings, incitement to violence or illegal conduct, and many others – the United States stands alone, not only as compared to totalitarian states, but also in comparison with other open liberal constitutional democracies. The reasons for this divergence are common, but among the explanations… 
“Equal Justice under Law”: The American Legal Exception
“The U.S. is an exceptionally litigious society obsessed with law.” More than people in other countries, so runs an argument about the American legal exception, Americans go to court to resolve
Judicial Regulation of Humour in the United States
This chapter explores the intersection between judges and humour by focusing on the substance of judicial opinions in the United States. Judges have the opportunity to rule on legal liability for
Constitutional ‘borrowing’ and freedom of expression: Can Australia learn from the US First Amendment?
This article explores the potential role of US free speech doctrine as a source of learning for the High Court in developing its own jurisprudence in a broadly analogous area – the Australian
The Puzzling Parameters of the Foreign Law Debate
This paper engages with the debate about the use of foreign law in constitutional interpretation in the United States. It discusses the doctrinal, jurisprudential and methodological implications of
Political Culture, Flag Use and Freedom of Speech
Flag use generates passionate debates that fundamentally turn on questions of the appropriate extent and limits of freedom of speech. The national flag is a natural and forceful medium with which to
Rereading New York Times v. Sullivan: The Importance of Procedure in Libel Cases
The Supreme Court’s landmark decision in New York Times v. Sullivan is notable because it imposed an “actual malice” test that makes it difficult for public figures to recover damages for defamation
Proportionality and the Culture of Justification
This article reviews several functional explanations that have been given to the dramatic spread of proportionality (early legal development, conflict management, lingua franca, and raw judicial
The Trump Phenomenon and the Racialization of American Politics
  • S. Ricard
  • History
    Revue LISA / LISA e-journal
  • 2018
If very few observers across the Atlantic predicted that a reality-TV star would succeed the United States’ first African American President, there is today among commentators of the political scene
Human Rights in the EU and the US: Social Worker v. Good Cop?
The EU and the United States are the most important state promoters of human rights and share a common human rights legacy. However, the human rights approaches of the EU and the US display crucial
Boundaries of Hate: Ethical Implications of the Discursive Construction of Hate Speech in U.S. Opinion Journalism
ABSTRACT In the United States, hate speech sits at the intersection of ethical and legal debates and has a complex relationship with journalism. The First Amendment provides broad legal protections


The Supreme Court of Canada and Section One of the Charter
The Supreme Court's early analysis of the opening section of the Charter seemed to come from nowhere. It stood in stark contrast to the interpretation suggested by commentators and adopted in
  • C. Munro
  • Law
    The Cambridge Law Journal
  • 2003
RECENT decisions in the courts have encouraged discussion of the extent to which the common law does or should place a high or higher value on political expression. Some scholars argue for a more
Law's Expression: The Promise and Perils of Judicial Opinion Writing in Canadian Constitutional Law
This article argues that there is a link between one's theory of constitutional law and one's judgments about style in judicial opinion writing. It identifies several special functions of the
Cheap Spirits, Cigarettes, and Free Speech: The Implications of 44 Liquormart
Left for dead after the Court's decision a decade ago in Posadas de Puerto Rico Associates v Tourism Co.,' the protection of commercial speech under the First Amendment has enjoyed a remarkable
For a full discussion, see Michael Chesterman, Freedom of Speech in Australian Law
  • C.L.R
  • 1994
The view is expressed crisply by the Supreme Court of Canada in Irwin Toy Ltd. v. Quebec [1989] 1 S
  • C.R
On the general issue of American non-enforcement of such foreign judgments
    Extending the Coverage of Freedom of Expression to Commercial Speech: A Comparative Perspective
    • Human Rights: A Comparative Perspective
    • 1994
    New York Times v. United States (Pentagon Papers Case
    • 1971
    Addressing the same issue but remaining inconclusive at this stage of the litigation is
    • 1992