Schauer’s Free Speech Comparativism

*Melbourne Laureate Professor, Melbourne Law School, University of Melbourne. Part I and Section II.A of this Essay draw upon an unpublished paper for discussion at the VII World Congress of the International Association of Constitutional Law, Athens that I co-authored with Simon Evans, Balancing and Proportionality: A Distinctive Ethic (April 28, 2007) (unpublished manuscript) (on file with author). My thanks to Professor Evans for his collaboration.Show More

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. ↑