Article 10 ECHR and expressive conduct
R. Ó Fathaigh, Dirk Voorhoof · Communications Law Journal · 2019
There has been considerable case law and scholarship in the US on expressive conduct under the First Amendment, where the Supreme Court has recognised a ‘wide array of conduct that can qualify as expressive’, including burning the American flag, wearing a military uniform, wearing a black armband, conducting a silent sit-in, and refusing to salute the American flag. The purpose of this article is to discuss the European Court’s recent case law on expressive conduct, and in particular to assess in what circumstances, if any, domestic courts may impose prison sentences, even if suspended, on activists engaging in peaceful, but provocative and offensive, symbolic expression. The article describes and analyses how the European Court is developing its expressive conduct jurisprudence under the right to freedom of expression as guaranteed by Article 10 ECHR.