Vol. 16 No. 11 (November, 2006) pp.886-890

 

THE FIRST AMENDMENT IN CROSS-CULTURAL PERSPECTIVE: A COMPARATIVE LEGAL ANALYSIS OF THE FREEDOM OF SPEECH, by Ronald J. Krotoszynski, Jr.  New York: New York University Press, 2006. 336pp. Cloth $50.00. ISBN: 0814747876. 

 

Reviewed by Kyu Ho Youm, School of Journalism and Communication, University of Oregon. E-mail: youm [at] uregon.edu.

 

Whether or not American law interacts with foreign law more extensively, few deny its usefulness.  We can learn about our law by critically comparing it with others.  Significantly, comparative assessment of constitutional law in general and freedom of expression in particular has generated more sustained interest in recent years.

 

THE FIRST AMENDMENT IN CROSS-CULTURAL PERSPECTIVE, by Ronald J. Krotoszynski, Jr., is a welcome addition to the growing body of comparative law literature on freedom of speech.  The book is broad in its subject matter.  It is not limited to a particular topic such as libel or obscenity.  The author’s selection of countries includes Canada, England, Germany, and Japan.  These “functional participatory democracies” provide more useful free speech principles than countries with different constitutional political values or economic policies.

 

Why is freedom of speech a good candidate for comparative legal analysis?  Krotoszynski suggests that all constitutional democracies worth their name purport to protect free speech as a right.  “[M]oreover, all these polities face the same conflicts regarding the proper accommodation of competing social values when freedom of expression presents risks to other constitutional values,” he continues.  “Consideration of how other nations have reconciled these competing—and conflicting—values can provide important insights into the compromises (some express, some implicit) that the constitutionally mandated free speech regime in the United States has struck” (p.xiv). 

 

Krotoszynski’s objective is to advance our shared understanding of freedom of expression in its meaning and scope.  Nonetheless, he refrains from advocating the US adoption or rejection of foreign approaches to freedom of speech as a constitutional value.  Rather, he believes that American free speech doctrine and theory would be enriched by comparison with other democratic nations.

 

Early in his book, Krotoszynski places comparative free speech law in context.  He emphasizes that a comparative approach gives American students a useful perspective to examine their basic assumptions about free speech.  Given that judges routinely borrow from their colleagues in other countries, he notes, knowledge of foreign law helps understand or predict judicial decisions.  He further writes that efforts to incorporate human rights as part of international public law demands growing attention to comparative legal research. [*887]

 

Krotoszynski, however, warns of the inherent danger of comparative legal scholarship: “reading culturally contingent meaning into legal terms of art,” on the assumption that the meaning is universal.  Is the danger insuperable?  Not really, according to the author.  In addition to discerning meaning from foreign law texts, he urges: “One must double check unstated assumptions by reference to other materials from the relevant legal culture” to avoid reading too much or too little into foreign legal texts.

 

In the “Freedom of Speech in the United States” chapter, Krotoszynski frames the two key First Amendment theories – the Holmesian “marketplace of ideas” and the Meiklejohnian “democratic self-government.”  He observes that the dichotomous First Amendment theories often determine how American courts rule on freedom of expression issues.  By examining foreign free speech cases through the marketplace of ideas theory and the democratic self-governance theory, he tries to assess the relative strength of the theories.

 

Four chapters are devoted to Canada, Germany, Japan, and England.  The Canada chapter is most detailed and comprehensive. The Canadian Charter of Rights and Freedoms is distinguished for its textually based rights balancing from America’s judicially categorized balancing.  The author fleshes out the Charter on freedom of expression by discussing various threshold decisions of the Canadian Supreme Court. 

 

The collective, as well as individual, notion of rights in Canadian law is sharply contrasted with the primarily individual concept of rights in the US.  At the same time, the government’s affirmative role in Canada in protecting rights stands in sharp relief against the US government as a passive player in ordering constitutional rights.  To Krotoszynski, the Canadian balancing of equality with free speech is better.  He argues that judicial limits on the precise means of speech, not necessarily speech itself, are better than the US free speech jurisprudence, in which expression most often overrides equality interests.

 

The Basic Law of Germany subordinates free speech to other social interests further than the Canadian Charter of Rights and Freedoms, not to mention the First Amendment of the US. Krotoszynski posits three explanations.  First, human dignity, not freedom of speech, is the preeminent constitutional value in Germany.  Second, Germany, as a “militant democracy,” prohibits speech, whether political or not, if it aims to destroy self-government.  And finally, the Basic Law mandates explicitly the balancing of free expression with other social interests.

 

The Germany chapter compares the text of the Basic Law with the First Amendment.  Krotoszynski stresses the radical variation between US and Germany in their baseline notions of free speech.  Under the “state action” doctrine, the First Amendment rights are secured against government violation.  But in Germany, the Basic Law protects constitutional rights from government actions as well as from intrusions by private parties. [*888]

 

In showcasing speech as the “dispreferred freedom” in Germany, Krotoszynski discusses several landmark cases of the German Constitutional Court, addressing such matters as the dignity of the living and the deceased, the reputation of public figures, Holocaust denial, and display of Nazi symbols.  The author injects his discussion of various US Supreme Court cases to highlight how German cases differ. 

 

Overall, Krotoszynski’s analysis of US and German case law is informative.  Yet his discussion of US law could have been a little bit more in-depth.  For instance, he might have paid closer attention to libel of the dead in American law as a non-issue.  He might also have questioned the appositeness of the American case law, as cited in German court decisions.

 

In the Japan chapter, Krotoszynski duly notes the adoption after World War II of the First Amendment-like guarantee of freedom of expression as a constitutional right.  He claims that the Japan-US differences in legal norms are not derived from economic differences because the two countries are more similar than different economically.

 

The Constitution of Japan is textually compared with the First Amendment on free speech, rights balancing, judicial review, and the state action requirement.  Krotoszynski’s discussion of judicial review as a relatively insignificant element of Japan’s constitutional law is thoughtful.

 

In discussing free speech cases of the Japanese Supreme Court, Krotoszynski discovers the Meikeljohnian theory’s considerable impact on Japan’s free speech jurisprudence.  But it is unclear whether the Court’s frequent invocation of the “clear and present danger” doctrine as a balancing standard is directly connected with the First Amendment law of the US.

 

Krotoszynski’s analysis of Japanese libel law seems to be rather misplaced.  Given that injunction was the central question in the Japanese Supreme Court’s 1970 libel case examined, it might have been better informed by the First Amendment on prior restraint.  Furthermore, his assertion that HUSTLER MAGAZINE v. FALWELL provides a useful case for comparison is strained, because the 1988 intentional infliction of emotional harm issues before the US Supreme Court are quite different from the 1970 libel case of the Japanese Supreme Court.  Consequently, NEAR v. MINNESOTA (1931) might have been a US case more on point.

 

The England chapter is intended to prove the author’s argument that “the presence or absence of a textual guarantee of speech and press rights is not as sure a predictor of actual outcomes as one might expect” (p.183).  The Human Rights Act of 1998 is a textual guarantee of free speech as a right in Great Britain as provided for by the European Convention of Human Rights.  Krotoszynski states, however, that the Human Rights Act does not effect a transformative change in the English free speech jurisprudence.  He maintains that freedom of speech may be more [*889] affected by the right’s relative value in a particular culture than by the formal codification of a free speech guarantee.

 

As an illustration, Krotoszynski compares REGINA v. SECRETARY OF STATE FOR THE HOME DEP’T, EX PARTE BRIND (1991) of the British House of Lords with RUST v. SULLIVAN (1991) of the US Supreme Court.  His discussion of the English and US cases establishes that the Law Lords in BRIND applied vigorously the British tradition of protecting free speech, while the US Supreme Court in RUST gave up on its First Amendment application to the case.  Hence, BRIND and RUST typify the “possibilities of an unwritten constitution” and the “limits of a written constitution,” respectively. 

 

“[T]he presence of a written guarantee protecting the freedom of speech is not a panacea,” Krotoszynski writes.  “By itself, such a guarantee will do little to protect free expression in the absence of judges committed to enforcing the provision.  At the same time, the absence of a written free speech guarantee need not be fatal to the recognition or vindication of free speech claims against the government.  In the end, judges are far more important than text in securing human rights” (p.213).

 

In his concluding chapter, “Free Speech and The Culturally Contingent Nature of Human Rights,” Krotoszynski posits four evaluative perspectives on the freedom of speech as a fundamental human right.  First, he considers free speech rights culturally bound, not universally definable.  Still, he concedes the transnational value of free speech as an ideology of a democratic society.  Second, he recognizes the significance of the constitutional text protecting the freedom of speech.  Although a rights-friendly culture and an independent judiciary are important factors, he states, “[t]he unqualified protection of a right seems to embolden courts to interpret the right more broadly than does more qualified language” (p.216). 

 

Third, Krotoszynski finds little disagreement among the nations studied about the values of free speech as a right.  Rather, the Western industrial democracies diverge from each other over how to balance the speech values with other competing social objectives.  What matters in the rights balancing in various societies is not what to achieve, but how to achieve it.  Fourth, and finally, Krotoszynski contends that a “strong ‘margin of appreciation’” must be inevitable when assessing a nation’s protection of free speech.  Free speech laws are not the laws of physics, he reasons, since there is so much variability among the free speech laws inter-culturally and intra-culturally as well.

 

Krotoszynski’s conclusions are revealing and forcefully presented.  This is especially so when they are based on the author’s sophisticated and copiously documented comparison of the US with four advanced legal systems committed to participatory politics.  The book undoubtedly challenges many of us who smugly accept American “exceptionalism” in freedom of speech and the press.  As Boston University law professor Pnina Lahav did with her comparative book on press law 20 years [*890] ago, Krotoszynski helps us appreciate the value of comparative free speech with a new, penetrating perspective.

 

REFERENCES:

Lahav, Pnina (ed.). 1985.  PRESS LAW IN MODERN DEMOCRACIES: A COMPARATIVE STUDY.  New York: Longman.

 

CASE REFERENCES:

HUSTLER MAGAZINE v. FALWELL, 485 U.S. 46 (1988).

 

NEAR v. MINNESOTA, 283 U.S. 697 (1931).

 

REGINA v. SECRETARY OF STATE FOR THE HOME DEP’T, EX PARTE BRIND, [1991] 1 A.C. 696.

 

RUST v. SULLIVAN, 500 U.S. 173 (1991).

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© Copyright 2006 by the author, Kyu Ho Youm.