Guy E. Carmi (University of Virginia School of Law) has posted Dignity Versus Liberty: The Two Western Cultures of Free Speech on SSRN. Here is the abstract:
This Article offers an original comparative model for assessing freedom 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 Constitutional Domains model as a comparative free speech model, explaining 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 for dignity-based and liberty-based systems respectively. These two prominent legal systems are analyzed and the essential traits of the free speech principles in these systems are explored.
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 in growing isolation vis-a-vis other Western democracies due to its exceptional treatment of free speech.