Freedom of expression in turbulent times – comparative approaches to dangerous speech: the ECtHR and the US Supreme Court
Theo Tsomidis · The International Journal of Human Rights · 2021
The European Court of Human Rights (ECtHR) and the US Supreme Court (USSC) have emphasised the foundational importance of freedom of expression. However, when the exercise of this liberty appears to endanger the democratic institutions or the national security of the state, readiness to uphold limitations of this right increases. Over the years each judicial body has adopted a distinctive approach towards limitations on dangerous speech. The US Constitution envisages free speech as an unconditional freedom; a ‘free market of ideas’ is the key concept, suggesting that the protection availed to speech should be the widest possible. The USSC gradually adopted a viewpoint-neutral approach focusing solely on the secondary effects of the speech, thus protecting even abstract advocacy of violence. On the contrary, the ECtHR may contracted freedom of expression in view of wider societal interests; the key concept is that of a militant democracy capable of protecting itself. The ECtHR adopts a lower threshold of protection that precludes abstract advocacy of violence and applies an intricate balancing exercise. ECtHR’s approach allows more space for indeterminacy and obscurity in its jurisprudence. The USSC’s case-law may serve the ECtHR as a source of inspiration with a view to refining its standards.