Legal expert Anne Deysine, professor emeritus at Paris-Nanterre University, is the author of The Supreme Court of the United States. Law, politics and democracy (Dalloz, 2015).
In the United States, freedom of speech is protected by the First Amendment to the Constitution, which prohibits Congress from making laws “limiting freedom of speech or of the press”. You say that, in its case law, the Supreme Court has an “absolutist” conception of this concept. What do you mean ?
Freedom of expression is a core value in the United States. When they drafted the Constitution, at the end of the XVIIIe century, the Founding Fathers wanted to ensure that the new government would not be able to hinder free expression or the publication of critical comments, drawings or caricatures, as the British did before the American Revolution.
This constitutional protection is very strong: except incitement to violence, the courts prohibit any a priori censorship, and this on practically all subjects, even military secrets or the “Pentagon Papers” [sur l’implication politique et militaire des Etats-Unis dans la guerre du Vietnam de 1955 à 1971]. The First Amendment also protects symbolic expression: in the United States, it is not forbidden to burn the flag or to wear a jacket bearing the mention “Fuck the draft” (“Fuck the conscription”).
Is the protection of the Supreme Court also absolute in the field of religion?
Yes. In a 1952 decision (Joseph Burstyn, Inc. v. Wilson), the Supreme Court ruled that the state could not invoke any “legitimate interest” to protect a religion from an opinion it found unpleasant or offensive. “It is not the role of the government, in our nation, to suppress real or imagined attacks against a particular religious doctrine, whether through newspapers, speeches or in films”, wrote the judges then. This jurisprudence does not prevent the United States from remaining a deeply religious country: certain federated States had adopted laws sanctioning blasphemy or lack of respect towards God and not all of them have expressly repealed these offenses.
Many Americans felt that French newspapers were wrong to publish the Muhammad cartoons. How to explain this reluctance in a country which so ardently celebrates freedom of expression?
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