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Unpublished Paper
Flemming Rose's Rejection of the American Free Speech Canon and the Poverty of Comparative Constitutional Theory
ExpressO (2013)
  • Robert Kahn
Abstract

In the fifteen page English language excerpt of his recent memoir The Tyranny of Silence, Danish publisher Flemming Rose gave an extended defense of his decision to run the cartoon images of the Prophet Mohammed. Current First Amendment doctrine almost certainly would treat this act as protected speech. But Rose barely mentions the First Amendment. Instead, he develops a highly personal theory of speech based on his experience in the Soviet Union and discussions with Salman Rushdie. Like many American legal academics Rose opposes bans on hate speech, but he does so for different reasons.

From a comparative law perspective, Rose’s dismissal of the American free speech canon matters for two reasons. First, it unsettles the neo-functionalist view that the key question for whether a doctrine is adopted is “usefulness.” If, as seems likely, the American free speech canon was “useful,” Rose’s rejection suggests that something else was at play – one possibility is viewing comparative debates over legal doctrine through the lens of national identity theory. Second, Rose’s ability to construct a theory that defends freedom of speech without relying on the American canon undermines those, like Ruti Teitel, who argue that the dialogue over comparative legal doctrine will converge on a common end point. The better approach is to view the debate over hate speech regulation (and other contested areas of legal doctrine) as an ongoing, sometimes unruly conversation that never comes to rest.

Keywords
  • freedom of speech,
  • Danish cartoons,
  • comprative law,
  • legal theory
Publication Date
July 17, 2013
Citation Information
Robert Kahn. "Flemming Rose's Rejection of the American Free Speech Canon and the Poverty of Comparative Constitutional Theory" ExpressO (2013)
Available at: http://works.bepress.com/robert_kahn/6/