Free Speech and the Case for Constitutional Exceptionalism

Embodied in the Universal Declaration of Human Rights is the evocative proposition that “[e]veryone has the right to freedom of opinion and expression.” Beneath that abstraction there is anything but universal agreement. Modern democratic societies disagree on the text, content, theory, and practice of this liberty. They disagree on whether it is a privileged right or a subordinate value. They disagree on what constitutes speech and what speech is worthy of protection. They disagree on theoretical foundations, uncertain if the right is grounded in libertarian impulses, the promotion of a marketplace of ideas, or the advancement of participatory democracy. They disagree on whether the right should be safeguarded by judicial review or subject to majoritarian legislative values. They disagree on whether the right may be invoked against infringements resulting from private as well as state action. In short, the freedom of expression is a universal value that is fraught with cultural contingencies. It is universal in abstraction and particularized in application.