Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States’ First Amendment provides an early historical protection of speech—a safeguard now embraced around the world. The extent of this protection, however, varies among states.
The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the detriment of freedom and liberty. It is thus of paramount importance to have “uninhibited, robust, and wide-open” debate. This approach places free speech above other equally significant constitutional values, such as racial, sexual, and sexual-orientation equality and privacy.
Internationally, a dramatically different approach is the norm. Most societies balance freedom of speech against other rights in a manner that does not deify expression. Unlike in the United States, where the right to free speech is virtually unqualified, in other democratic societies speech is but one of the many rights protected. In these other societies, speech may be limited if other rights, such as the right to racial equality or the right to privacy, are negatively affected.
In her work, Public Response to Racist Speech: Considering the Victim’s Story, Professor Matsuda provides a compelling counter-narrative to the absolutist First Amendment canon that infuses the United States’ jurisprudence. Her vision strongly aligns with the international jurisprudential method and offers a preferable model because it includes myriad democratic values.
This Essay begins by utilizing real stories to tease out the differences in various approaches to freedom of expression from around the world. The Essay reviews the divergent approaches and then reveals the stories’ outcomes, along with providing critical commentary. It concludes by urging the adoption of a new approach, one that honors the victims’ stories.
Berta Esperanza Hernández-Truyol, Globally Speaking - Honoring the Victims' Stories: Matsuda's Human Rights Praxis, 112 Mich. L. Rev. First Impressions 99 (2014), available at http://scholarship.law.ufl.edu/facultypub/396