Nathakumar, Rohan --- "Freedom of Speech: Importing European & US Constitutional Models in Transitional Democracies" [2014] UTasLawRw 8; (2014) 33(1) University of Tasmania Law Review 178
Book Reviews
Freedom of Speech: Importing European and US Constitutional Models in Transitional Democracies
Uladzislau Belavusau
Routledge, 2013, pp 287, eISBN 9781135071981, $151.94
The tension between ‘free speech’ and ‘hate speech’ has attracted a great deal of academic attention throughout the legal stratosphere. In light of this, new titles must show originality and quality to become an audible voice in the ongoing freedom of speech (‘FOS’) discourse. Uladzislau Belavusau accomplishes this by taking FOS scholarship to new heights in his book: ‘Freedom of Speech: Importing European and US Constitutional Models in Transitional Democracies’. Belavusau provides a comprehensive, engaging, original and accessible narrative of FOS models in the US and Europe and assesses their influence in the Czech Republic, Hungary and Poland. His contribution reaches far beyond the Central and Eastern European (‘CEE’) landscape.
The book commences with an important introductory section which clarifies technical terminology and explains the operational differences of FOS between the US and Europe. The body of the study is divided into five substantive chapters and a conclusion. Chapter one provides a detailed account of the constitutional history of the Czech Republic, Hungary and Poland, essential for the analysis in later chapters. Chapters two and three discuss US and European FOS jurisprudence and proceeds to assess their influence in shaping how CEE transitional democracies engage with hate speech. Chapters four and five shift the focus away from hate speech and assess the importation of US and European FOS models in the context of historic revisionism and pornography respectively.
US FOS is largely unrestricted. The view that ‘debate on public issues should be uninhibited, robust and wide-opened’ is well entrenched in US political culture.[1] In European practice, FOS is far from an absolute right. According to Belavusau, this is informed by a commitment to non-discrimination resulting from the harrowing experiences of World War II. Belavusau argues that both models of FOS have relevance to transitioning CEE democracies. He asserts that these jurisdictions follow the ‘mandatory’ European model and fill gaps in constitutional debate with occasional reference to the ‘persuasive’ US model. The intricacies of how each jurisdiction uses the models in different situations are explored throughout the book. Belavusau presents his argument well and offers readers an accessible insight into the free speech vs hate speech debate in the context of transitional democracies. His greatest contribution, however, is his rich theoretical underpinning for FOS.
Belavusau’s study extends beyond the ordinary descriptive and normative legal traditions used to conceptualise FOS. Instead, he adopts an interdisciplinary socio-legal approach. By tracing through the genealogy of FOS and deconstructing the right to FOS with reference to critical race theory, feminist jurisprudence and queer legal discourse, he underpins FOS with a theoretical base largely unexplored in existing jurisprudence. Though the abstract nature of this aspect of the book diminishes its accessibility, such a trade-off is inescapable when engaging in high quality theoretical exploration.
Chapters four and five serve as important reminders that there is more to FOS than its turbulent relationship with hate speech. In chapter four, Belavusau exposes the commonly made error of conflating FOS and historical revisionism. Historical revisionism refers to practices of alternative historical interpretations, a common example being holocaust denial. The lesson here is to move away from the popular tendency to treat hate speech as a catch-all for distasteful forms of expression. No matter how ludicrous one’s reinterpretation of history may be, it does not automatically constitute hate speech. In chapter five, Belavusau shifts the focus away from hate speech altogether by using pornography and erotica as a medium through which to consider when art becomes obscenity. This questions the function FOS has in protecting or impeding aspects of expression which are linked to culture. This aspect of FOS is largely lost in the hate speech debate. Devoting an entire chapter to such thought is commended.
The only noteworthy shortfall in the book is an underdeveloped discussion about the legitimacy of adopting the US model and CEE engagement with comparativism more generally. A study of constitutional FOS and its importation from one jurisdiction to another is, at its core, an exercise in comparative constitutional law. Judges practicing comparativism have often been criticised for engaging in judicial cherry picking to support one view over another.[2] The argument for practicing comparativism is more compelling when the jurisdictions involved share common values and constitutional histories.[3] Under such circumstances, foreign judicial decisions become more transferrable.[4] EU and wider European practice is clearly transferrable to the CEE context due to a shared history. The question arises as to how the US Supreme Court gained a voice in the courtrooms of Hungary, Poland and the Czech Republic. Belavusau does not address this adequately. He accepts the ‘seminal structural differences’ between Central/Eastern Europe and the US, but does not inquire into how judges justify resort to the US model of FOS. His observation that American jurisprudence may have been transferred during the 1990’s when the American Bar Association was particularly active in Central Europe is not sufficient. Showcasing the way Czech, Hungarian and Polish judges have expressly (or, perhaps, secretly) referred to US Supreme Court decisions would be a worthy addition to his analysis.
This book brings an original voice to the free speech vs hate speech debate and FOS more broadly. Belavusau performs the seemingly impossible task of furthering FOS scholarship whilst keeping the text accessible for newcomers to the field. Comparativists may feel let down from a somewhat lacklustre dealing with underlying comparative constitutional law concepts, but this is made up for in the masterful exploration of FOS theory and assessment of FOS outside of the hate speech paradigm. This book was a delight to read. It is recommended to lawyers and non-lawyers alike, especially those keenly following the FOS discourse.
Rohan Nanthakumar[∗]
[1] New York Times Co v Sullivan [1964] USSC 40; 376 US 254, 270 (1964).
[2] See, eg, Atkins v. Virginia [2002] USSC 3164; 70 USLW 4585, 4598 (Scalia J) (2002).
[3] Cheryl Saunders, 'Judicial engagement with comparative law' in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar Publishing, 2011), 571, 585.
[4] David Fontana, 'Refined Comparativism in Constitutional Law' (2001) 24 University of California, Los Angeles Law Review 539, 617.
[∗] Final year BEc-LLB (Hons I) student at the University of Tasmania and Co-editor of the University of Tasmania Law Review 2014.