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Advanced Introduction to Freedom of Expression

Mark Tushnet

The Advanced Introduction to Freedom of Expression provides an overview of major issues in the doctrinal structure of a law of freedom of expression, relevant to discussions of freedom of expression under many national constitutions. Assuming familiarity with basic theories of free expression, this book addresses the implications of reasonable disagreement between legislatures and courts about whether a specific measure violates freedom of expression, the implications of the fundamental proposition that speech can cause harm, the distinction between the coverage of freedom of expression and the protections it affords, and the appropriate doctrinal forms when speech is said to conflict with other rights such as equality, or merely other social interests. The book will be of interest to anyone, including students, teachers, researchers and policymakers wanting to learn more about the freedom of expression and the law.
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Rights versus rights/rights versus interests

Mark Tushnet

Extract

The treatment of hate speech in the United States differs dramatically from its treatment elsewhere. To overstate only slightly: In the United States regulation of hate speech is constitutionally prohibited, whereas elsewhere its regulation is constitutionally required. Most often scholars attribute the difference to the use of proportionality approaches to free expression law outside the United States and to the use of categorical approaches within the United States. There is, though, another difference in the doctrinal architecture: In the United States the regulation of hate speech poses a conflict between a right (of free expression) and a ‘mere’ interest (in social equality), whereas elsewhere it poses a conflict between two rights. Doctrinally, when rights confront rights, some sort of balancing or proportionality analysis is required even in the United States, and when rights confront mere interests, the rights prevail categorically (or almost so) even in systems committed to proportionality. We first examine a rights-versus-rights conflict in US law – the so-called ‘free press/fair trial’ problem, to show how balancing or proportionality ideas operate in such conflicts. The chapter then turns to problems of hate speech, libel, and privacy in US constitutional law and elsewhere (primarily in Europe), to bring out the difference between rights-versus-rights problems and rights-versus-interests ones. It concludes with a brief discussion of the way in which issues of state action or horizontal effect might affect the treatment of rights-versus-interests problems.1

Publishing information about a sensational criminal case can make it more difficult for the defendant to...

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