Wild-West Cowboys versus Cheese-Eating Surrender Monkeys: Some Problems in Comparative Approaches to Extreme Speech

Eric Heinze, Queen Mary University of London

Abstract

All European states ban some form of hate speech. US law precludes such bans. In view of the political and symbolic importance of free speech, it becomes tempting to assume that trans-Atlantic differences towards hate speech reflect deeper cultural divisions.

However, we must pay attention to comparative methodology before drawing ambitious conclusions about cross-cultural social and political differences that derive solely from differences in formal, black-letter norms. In this volume, Robert Post claims that formal, constitutional requirements of content-neutral regulation reflect a freer public sphere in the US, in contrast to the European public sphere.

Yet a legal-realist approach casts doubt on that claim. Unduly broad extrapolation from purely formal norms leads to problems of essentialism and ahistoricism. Whilst Post, Weinstein, and other exponents of the American civil liberties tradition wage strong arguments against hate speech bans, sweeping suggestions of deeper cultural differences can actually hinder more than facilitate the view that their approaches can be applied in Europe.