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Schauer’s Free Speech Comparativism

Introduction

It is a great honour to make this contribution about Frederick Schauer. I am especially pleased that I can give voice to the many Australian scholars who had the pleasure of meeting and working with him and those who were influenced by his work.

Fred was a frequent visitor to Australia, where he was well known and widely admired. I first came across him at the Australian National University in the late 1990s at the beginning of my career. It will surprise no one to know that he was memorably generous and straightforward. He had a way of being kind to junior scholars that consisted simply in taking them seriously. Years later, I invited him to co-teach a freedom of speech seminar with me at Melbourne Law School, and after to join me as an editor of Oxford Handbook of Freedom of Speech (2021) together. Both experiences were career highlights.

For the purposes of this tribute, I want to offer a reflection on two of the most important essays he wrote on freedom of speech for a comparative audience: The Exceptional First Amendment1 1.Frederick Schauer, The Exceptional First Amendment, in American Exceptionalism and Human Rights 29(Michael Ignatieff ed., 2005).Show More and Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture.2 2.Frederick Schauer, Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture, in European and US Constitutionalism 49(Georg Nolte ed., 2005).Show More Both were published in 2005 and offer a prediction on the development of freedom of expression in the United States and elsewhere that is worth revisiting after twenty years.

In the first piece, Schauer revisited the well-known claim that First Amendment law is exceptional for the strong protection it provides to freedom of speech. Even in this well-travelled field, Schauer offered an insightfully detailed account, swiftly moving through a range of ideas, well beyond the conventional account. But perhaps the most important idea in the essay lies in introduction of a second dimension: “methodological exceptionalism.”3 3.Schauer, supra note 1, at 53.Show More American free speech adjudication is characterised by “a formal and sharply demarcated two-step process” and other rule-like doctrines.4 4.Id.Show More By contrast, in most other constitutional democracies the inquiry is a “less formal and more open-ended question of whether a restriction is reasonable, necessary in a democratic society, or, most commonly, proportional in light of the importance of the restriction and the extent of the free expression interest that is restricted.”5 5.Id. at 53–54.Show More

The second essay developed the argument advanced in the first, but it went further to draw firm links between American substantive and methodological exceptionalism. The argument in this essay goes somewhat against the grain of the first, concluding that the “rulified” nature of First Amendment law, because of its deep roots in American constitutional culture, was unlikely to change.6 6.See Schauer, supra note 2, at 63–67.Show More

Before going on to consider their arguments in more detail, let me pause to reflect on how they illustrate some of the distinctive virtues of Fred Schauer’s scholarship. They combine an eye for doctrinal detail, powerful jurisprudential insights about the relationship between doctrinal structures and their underlying reasons, and a deep appreciation of the significance of legal and political culture.

For the remainder of this Essay, I will turn to consider how Schauer developed his claims about method and substance in free speech cases and examine his claims with a comparative analysis of two jurisdictions which allow some testing of Schauer’s claims and predictions.

  1.  Frederick Schauer, The Exceptional First Amendment, in American Exceptionalism and Human Rights 29

    (Michael Ignatieff ed., 2005). ↑

  2.  Frederick Schauer, Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture, in European and US Constitutionalism 49 (Georg Nolte ed., 2005). ↑
  3.  Schauer, supra note 1, at 53. ↑
  4.  Id. ↑
  5.  Id. at 53–54. ↑

  6.  See Schauer, supra note 2, at 63–67. ↑

Constitutional Acceptance in a Polarized Era

Introduction

Frederick Schauer left an indelible mark on my thinking and my life. One of the most special aspects of his work, to my mind, was his exploration of the nonconstitutional grounds of constitutional law. The idea of Fred’s that has captivated me more than any other is his concept of constitutional salience: “the often mysterious political, social, cultural, historical, psychological, rhetorical, and economic forces that influence which policy questions surface as constitutional issues and which do not.”1 1.Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1768 (2004) [hereinafter Schauer, Boundaries of the First Amendment].Show More

Fred began his study of constitutional salience analyzing what he termed “First Amendment coverage.” He traced the boundaries of the First Amendment—that is, the line demarcating the social acts that constitute “speech” for constitutional purposes and those that do not. He observed that while the Constitution forbids abridgement of the “freedom of speech,” in practice, much, if not most, of what we might describe colloquially as “speech” is not covered by the First Amendment.2 2.Id. at 1769 (“The acts, behaviors, and restrictions not encompassed by the First Amendment at all—the events that remain wholly untouched by the First Amendment—are the ones that are simply not covered by the First Amendment.”).Show More From contracts to perjury and workplace harassment to the rules of evidence, governments at all levels regularly and pervasively regulate speech in ways that no one, lawyers and nonlawyers alike, identifies as a constitutional concern.3 3.Id. at 1783–84; Amanda Shanor, First Amendment Coverage, 93 N.Y.U. L. Rev. 318, 320–21, 325 (2018).Show More The Constitution simply does not appear. It is not salient, Fred brilliantly pointed out. Fred later extended this idea of constitutional salience to explore the nonlegal and nonconstitutional bases of constitutionalism more broadly, including what makes a constitution valid and how constitutions change.

These inquiries are extremely relevant today. We are now in a tumultuous moment in U.S. constitutionalism where polarization and the rise of populist authoritarianism have made many once-well-settled constitutional principles seem up for grabs, including core ideas of both the freedom of speech and the separation of powers—if not the persistence of U.S. constitutionalism itself.

People often ask me what it is like to teach constitutional law now, when American constitutional law, culture, and norms seem to be rapidly changing. Teaching constitutional law, I have found, feels ever more important and pressing, including to students who in other times might have little interest. Trying to theorize both the fast shift in U.S. constitutional culture towards populist authoritarianism and what it means for U.S. constitutional law—let alone what, if anything, can or should be done about any of that—has proven far more vexing. These questions prompted me to turn, as I often do, to Fred’s work for insight.

This Essay offers a first sketch of how Fred’s theories on constitutional salience, validity, and change illuminate recent shifts in U.S. constitutional law and culture. In so doing, I tie together elements of Fred’s thinking that, to my knowledge, Fred had not, and I both elaborate on and challenge aspects of his thoughts. Fred’s ideas—re-situated and extended here—help shed light on some of the most vexing questions of our current moment and, as Fred’s work so often does, reveal new paths of inquiry.

  1.  Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1768 (2004) [hereinafter Schauer, Boundaries of the First Amendment]. ↑
  2.  Id. at 1769 (“The acts, behaviors, and restrictions not encompassed by the First Amendment at all—the events that remain wholly untouched by the First Amendment—are the ones that are simply not covered by the First Amendment.”). ↑

  3.  Id. at 1783–84; Amanda Shanor, First Amendment Coverage, 93 N.Y.U. L. Rev. 318, 320–21, 325 (2018). ↑

Deepfakes, Photographs, and Trust in Evidence

Introduction

Recent voices in the evidence literature have expressed alarm over deepfake technologyAI-driven algorithms that can manufacture fictitious images and audio that are difficult to distinguish from reality. These voices for reform claim that deepfakes represent a sea-change in technology that threatens to upend the legal proof process. The problem lies not only in deepfakes’ ability to mislead and confuse, but also in the technology’s pervasiveness and ease of use.

Are these fears over deepfakes justified? Does the legal system need to adopt new authentication rules and approaches to address their threat? In this Essay, I argue that the answer is no, but more significantly, I use deepfakes as a vehicle to explore the nature of authentication and, more generally, legal proof. My argument proceeds in three related steps: First, I propose a tentative model of evidentiary authentication based on base rates of trust. Such a base rate model suggests that existing evidentiary principles of authentication are more than sufficient to address the problem of deepfakes, particularly as the public becomes aware of and exposed to their existence and dangers. Second, the authentication problem of deepfakes parallels the legal system’s angst over photographs a century ago. Indeed, the compromises that the legal system made to handle photographs and other images provide a ready framework for thinking about and addressing the deepfake problem. Finally, I raise some broader implications of taking a trust model of evidence seriously. On the one hand, a theory of legal proof based on trust may illuminate evidentiary problems like authentication. On the other hand, a trust theory of proof lays bare some troubling realities. If legal proof is ultimately about trust, what happens to information sources that certain factfinders are inclined to distrust, and what will this mean in an increasingly polarized society?

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