Comparative and Foreign Law Commons^™

Valuing The Freedom Of Speech And The Freedom To Compete In Defenses To Trademark And Related Claims In The United States, Jennifer E. Rothman

All Faculty Scholarship

This book chapter appears in the CAMBRIDGE HANDBOOK ON INTERNATIONAL AND COMPARATIVE TRADEMARK LAW, edited by Jane C. Ginsburg & Irene Calboli (Cambridge Univ. Press 2020). The Chapter provides an overview of the defenses to trademark infringement, dilution, and false endorsement claims that serve the goals of free expression and fair competition. In particular, the Chapter covers the defenses of genericism, functionality, descriptive and nominative fair use, the Rogers test, statutory exemptions to dilution claims, and the questions of whether and how an independent First Amendment defense applies in light of recent Supreme Court decisions.

In addition to providing a …

Hate Speech - The United States Versus The Rest Of The World?, Kevin Boyle

Maine Law Review

The search for a commonly agreed upon international legal understanding of the meaning of free speech or freedom of expression, as an individual human right, was a major international preoccupation from the 1940s to the 1980s. During the Cold War it was, of course, also a highly ideological debate. There were three positions, broadly speaking: the Soviet Union and its allies, who had little enthusiasm for the idea at all; the United States, which believed in it—many thought—too much; and the rest, the other Western democracies and developing countries, who tried to hold the middle ground. These contrasting positions were …

Rethinking The Context Of Hate Speech Regulation, Robert Kahn

Robert Kahn

In this essay I review Michael Herz and Peter Molnar (eds.) The Content and Context of Hate Speech: Rethinking Regulation and Responses (Cambridge University Press 2012). As I show in the review, the Herz and Molnar volume advances our understanding of comparative hate speech regulation in three ways. First, the essays suggest that local context has a role to play in understanding, assessing, and applying hate speech regulations, even in an age when online hate speech is pressuring states and regions to reach common solutions to these problems. Second, the essays rebut the commonly held premise that the United States …

Does It Matter How One Opposes Memory Bans? A Commentary On Liberte Pour L'Histoire, Robert Kahn

Robert Kahn

This paper examines Liberté pour l'Histoire, a group of French historians who led the charge against that nation’s memory laws, in the process raising unique arguments not found elsewhere in the debate over hate speech regulation. Some of these arguments – such as a focus on how the constitutional structure of the Fifth Republic encouraged memory laws – advance our understanding of the connection between hate speech bans and political institutions. Other arguments, however, are more problematic. In particular, Liberté historians struggle to distinguish the Holocaust (which is illegal to deny) from the Armenian Genocide (which is not). The Liberté …

Globally Speaking - Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta E. Hernández-Truyol

Berta E. Hernández-Truyol

Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States’ First Amendment provides an early historical protection of speech—a safeguard now embraced around the world. The extent of this protection, however, varies among states. The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the …

Globally Speaking - Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta E. Hernández-Truyol

UF Law Faculty Publications

Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States’ First Amendment provides an early historical protection of speech—a safeguard now embraced around the world. The extent of this protection, however, varies among states.

The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the …

Flemming Rose's Rejection Of The American Free Speech Canon And The Poverty Of Comparative Constitutional Theory, Robert Kahn

Robert Kahn

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 …

New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo

All Faculty Scholarship

No abstract provided.

Confronting The Limits Of The First Amendment: A Proactive Approach For Media Defendants Facing Liability Abroad, Michelle A. Wyant

San Diego International Law Journal

This Article confronts the limits this issue imposes on the First Amendment in four parts. Part I described the potential for conflicting defamation laws and forum shopping to undermine the American media's speech protections in the context of the Internet and global publications and outlines the Article's overall method of analysis. Part II first orients these conflicting defamation laws with respect to their development from the common law. It then frames them in terms of the underlying structural and policy differences that have produced their substantive divergence. This frame provides the analytical perspective through which this Article examines the varying …

Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford

Michigan Law Review

Embodied in the Universal Declaration of Human Rights is the evocative proposition that "[e]veryone has the right to freedom of opinion and expression." Beneath that abstraction there is anything but universal agreement. Modern democratic societies disagree on the text, content, theory, and practice of this liberty. They disagree on whether it is a privileged right or a subordinate value. They disagree on what constitutes speech and what speech is worthy of protection. They disagree on theoretical foundations, uncertain if the right is grounded in libertarian impulses, the promotion of a marketplace of ideas, or the advancement of participatory democracy. They …

Civil Rights And Civil Liberties: Whose “Rule Of Law”?, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Regulatory Web: Free Speech And The Global Information Infrastructure, A, Victor Mayer-Schönberger, Teree E. Foster

Michigan Telecommunications & Technology Law Review

National restrictions of freedom of speech on the nascent global information infrastructure are commonplace not only in the United States, but also around the globe. Individual nations, each intent upon preserving what they perceive to be within the perimeters of their national interests, seek to regulate certain forms of speech because of content that is considered reprehensible or offensive to national well-being or civic virtue. The fact that this offending speech is technologically dispersed instantaneously to millions of potential recipients strengthens the impetus to regulate.... Activists at both ends of the spectrum disregard an integral aspect of the global composition …

Reporting The Truth And Setting The Record Straight: An Analysis Of U.S. And Japanese Libel Laws, Ellen M. Smith

Michigan Journal of International Law

This Note argues that U.S. courts and lawmakers should adopt some aspects of Japanese libel law. Part I compares the balances struck in U.S. and Japanese libel law between promoting press freedoms and protecting individual interests. Part II focuses on the extent to which each system succeeds in addressing the objectives of encouraging aggressive, accurate reporting, and compensating libel victims. Finally, Part III proposes a new U.S. libel standard that would adopt, with some modifications, key elements of Japanese libel law without running afoul of established U.S. constitutional requirements.

Freedom Of Speech, Melissa H. Maxman

Michigan Law Review

A Review of Freedom of Speech by Eric Barendt

Bedi: Freedom Of Expression And Security: A Comparative Study Of The Function Of The Supreme Courts Of The United States And India, Chester J. Antieau

Michigan Law Review

A Review of Freedom of Expression and Security: A Comparative Study of the Function of the Supreme Courts of the United States and India by A.S. Bedi