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Dignity Versus Liberty: the Two Western Cultures of Free Speech

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\\server05\productn\B\BIN\26-2\BIN203.txt unknown Seq: 1 14-JAN-09 14:12 DIGNITY VERSUS LIBERTY: THE TWO WESTERN CULTURES OF FREE SPEECH Guy E. Carmi* ABSTRACT This Article offers an original comparative model for assessing free- dom of expression among Western democracies through the combined lenses of human dignity and liberty. Such a new model is necessary because of two fundamental flaws in our current understanding of free expression: incoherence and inaccurate terminology. This Article addresses the pervasive confusion of free expression terminology by first establishing a concrete theoretical framework for the meaning of human dignity and liberty. This makes possible a coherent discussion of freedom of expression across legal systems. This Article next challenges the adequacy of Robert Post’s Constitu- tional Domains model as a comparative free speech model and explains why human dignity and liberty serve as the best criteria for comparative assessment of free speech. To implement its model, this Article then turns to Germany and the United States as paradigmatic examples of dignity-based and liberty- based systems respectively. It analyzes these two prominent legal sys- tems and then explores essential traits of the free speech principles in these systems. Finally, the Article demonstrates why most Western democracies lie in closer proximity to the German dignity-based model than to the American liberty-based model and why the United States is expected to remain isolated vis-`a-vis other Western democracies due to its exceptional treatment of free speech. * Doctoral candidate, University of Virginia School of Law; LL.M., University of Virginia School of Law, 2005; LL.B., University of Haifa School of Law, 2003. I received valuable help on this paper from many, including Robert O’Neil, A.E. Dick Howard, Risa Goluboff, Ronald Roth, and Limor Carmi. A special thanks to the students in my “Free Expression and Communications – A Comparative Perspective” class, and to Andrew George and Bell Shpivak, for their capable research assistance. I thank all of them for their helpful comments on earlier drafts of this article. All errors and omissions remain mine alone. Comments are welcome at gcarmi@alumni. virginia.edu. 277 \\server05\productn\B\BIN\26-2\BIN203.txt unknown Seq: 2 14-JAN-09 14:12 278 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 26:277 I. INTRODUCTION ............................................ 279 R II. REFRAMING THE ANALYSIS – “HUMAN DIGNITY” AND “LIBERTY” AS PRISMS FOR CONSTITUTIONAL COMPARISON .............................................. 279 R A. Human Dignity and Liberty – A General Layout ...... 282 R B. Defining Human Dignity and Liberty .................. 283 R 1. Human Dignity and Community .................. 283 R 2. Liberty and Autonomy ............................ 292 R C. The Interrelationship between Human Dignity and Liberty ................................................ 306 R III. POST’S CONSTITUTIONAL DOMAINS – A REVISION ......... 309 R A. Post’s Model in a Nutshell ............................. 309 R B. Why “Liberty” and not “Democracy”.................. 311 R 1. Post’s Model as a Collectivist Model .............. 311 R 2. Post’s Ambiguity .................................. 312 R 3. What is Democracy? .............................. 317 R 4. Post’s Model’s Suitability to Serve as a Comparative Model ............................... 320 R IV. “LIBERTY-BASED” AMERICAN FREE EXPRESSION JURISPRUDENCE VERSUS A “DIGNITY-BASED” GERMAN FREE EXPRESSION JURISPRUDENCE ........................ 322 R A. Different Constitutional Ethos ......................... 322 R B. The “Dignity-based” Free Expression Jurisprudence in Germany .............................................. 324 R 1. The Primacy of Human Dignity in German Constitutional Jurisprudence ...................... 324 R 2. German History and its Impact of Free Expression Law............................................... 326 R 3. Enforcing “Civility” and “Respect”................ 329 R C. The “Liberty-based” Free Expression Jurisprudence in the United States ...................................... 338 R 1. American Exceptionalism in the Realm of Free Speech ............................................ 338 R 2. Content Neutrality and Stringent Limitations Tests .............................................. 346 R 3. Liberty, Due Process, Equal Protection, and the Incorporation Hypothetical ........................ 355 R V. FREE SPEECH IN WESTERN DEMOCRACIES: BETWEEN DIGNITY AND LIBERTY .................................... 361 R A. The Rise of Human Dignity in Western Constitutionalism ...................................... 362 R B. “Balancing” in Western Constitutional Adjudication .... 366 R VI. CONCLUSION .............................................. 371 R \\server05\productn\B\BIN\26-2\BIN203.txt unknown Seq: 3 14-JAN-09 14:12 2008] DIGNITY VERSUS LIBERTY 279 I. INTRODUCTION What is the best way to assess freedom of expression through a com- parative lens? Which concepts best serve to evaluate and encapsulate dif- ferent nations’ attitudes toward freedom of expression? Attempts to offer a comprehensive theory that generalizes fundamental understandings of patterns of freedom of expression are ambitious and inherently inaccu- rate, as “grand theories of speech tend to oversimplify the terrain they purport to cover.”1 Nonetheless, putting labels on different approaches is useful to understand the profound differences among Western democra- cies’ varied attitudes toward protection of free speech. This Article offers a new framework to assess freedom of expression from a comparative perspective. Part II lays the groundwork for “human dignity” and “liberty” by (roughly) sketching their contours. Part III differentiates the model pro- posed herein from Robert Post’s Constitutional Domains model, and explains the need to diverge from his theory. Part IV elucidates how human dignity and liberty are reflected in the free speech jurisprudence of Germany and the United States respectively. These two countries represent nations that are at opposite ends of the liberty-human dignity continuum. Part V briefly demonstrates how human dignity trends increasingly influence most Western democracies, and that the United States is becoming increasingly isolated in its free speech doctrines. The Article concludes with the propositions that the rest of the Western world does not accept the American free speech approach and that American Exceptionalism in the realm of free speech only sharpens as years go by. II. REFRAMING THE ANALYSIS – “HUMAN DIGNITY” AND “LIBERTY” AS PRISMS FOR CONSTITUTIONAL COMPARISON The choice of human dignity and liberty to describe the tension between freedom of expression and values relating to communitarian and individual dignity, equality, civility, and respect is not self-evident. The same tension may be approached differently under various legal systems. For example, in the United States, a great deal of this conflict may be framed in terms of due process and equal protection.2 Yet, each and 1 Jordan M. Steiker, “Post” Liberalism, 74 TEX. L. REV. 1059, 1063 (1996) (reviewing ROBERT C. POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT (1995)). See ROBERT C. POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT 16 (1995). 2 See infra Part IV.C.3 (discussing the “incorporation hypothetical”); cf. Guy E. Carmi, Comparative Notions of Fairness: Comparative Perspectives on the Fairness Doctrine with Special Emphasis on Israel and the United States, 4 VA. SPORTS & ENT. L.J. 275, 290-93 (2005) (presenting the Absolute Model and the Public Debate Model). See generally Susanne Baer, Dignity or Equality? Responses to Workplace Harassment in European, German, and U.S. Law, in DIRECTIONS IN SEXUAL HARASSMENT 582 (Catharine MacKinnon & Reva B. Siegel eds., 2004) \\server05\productn\B\BIN\26-2\BIN203.txt unknown Seq: 4 14-JAN-09 14:12 280 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 26:277 every legal system has its own set of contending values and has constant debates over balancing and reconciling these values. The pendulum swings, whether between human dignity and liberty or due process and equal protection. The centrality, meaning, and content of each of these values changes throughout time. Human dignity and liberty, due process and equal protection, or any other comparable combination serve as “the Ying and the Yang” of their respective legal systems and require persis- tent reassessment and balancing.3 Yet, the choice of human dignity and liberty as the values that best represent the underlying tensions that this paper addresses is suitable for several reasons. Freedom of expression is normally classified as a classi- cal liberty, and the legitimacy of the mere application of other values when regulating freedom of expression may be questionable, as the American example aptly shows. The protection of core fundamental rights and the principle of nonintervention by the state are deeply rooted in Western rights’ discourse, especially in the writings of English speaking philosophers, such as Locke, Hobbes, Berlin, and Nozick.4 Their philo- sophical heritage leans on natural rights, liberalism, and a teleological conception of rights.5 “Liberty” encapsulates this tradition, and explains why, absent special circumstances, rights in general, and free speech in particular, ought not to be limited. Similarly, “human dignity” represents the influence of European think- ers, such as Hegel and Kant, on European rights discourse,
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