Freedom of Expression Adjudication in Europe and America: A Case Study in Comparative Constitutional Architecture

It is widely believed that the structure of free expression adjudication varies dramatically between the United States, on the one hand, and Canada, South Africa, and the European Convention on Civil Rights, among others, on the other hand. Under the conventional wisdom, American freedom of expression doctrine is largely about categorization and about efforts to exclude categories of expression from any constitutional scrutiny, while the approach in other liberal constitutional democracies is more honest, more open, and more straightforward about balancing freedom of expression interests against other social values. On closer analysis, however, it appears that the differences are less than they appear, and what differences that exist are largely a function of differential experience with freedom of expression problems and differential commitments regarding the substance of freedom of expression and also regarding the role of the courts.