A COMPARISON OF FREEDOM OF EXPRESSION REGULATION



A COMPARISON OF FREEDOM OF EXPRESSION REGULATION

WITHIN THE UNITED STATES TO FREEDOM OF EXPRESSION REGULATION WITHIN EUROPEAN UNION MEMBER STATES

By

STEPHANIE NICHOLS

SECTION ONE

INTRODUCTION

This paper will compare several important aspects of freedom of expression in the United States and the member states of the European Union, including the philosophical foundations for freedom of expression, the legal basis for protection of freedom of expression, regulation of hate speech, regulation of political speech, and protection of commercial speech. In the context of this paper, “Europe” refers to member states of the European Union. Both similarities and differences between European and American jurisprudence are highlighted.

Section Two of the paper begins with a discussion of the historical justifications for the right to freedom of expression in the United States and then proceeds to discuss the application of the First Amendment of the U.S. Constitution. In the United States, the First Amendment of the U.S. Constitution serves as the foundation for the legal protection of freedom of expression. Some federal and state legislative actions provide additional protection for freedom of expression, such as federal and state freedom of information laws. However, federal and state laws have also served to limit the scope of First Amendment protection of freedom of expression, such as through defamation and libel laws. Federal and state governments have the right to limit expression on a limited basis because the U.S. Supreme Court has determined that the First Amendment does not provide absolute protection for freedom of expression. [1] The discussion of the First Amendment is central to this paper because the interpretation of the First Amendment affects the way hate speech, political speech, and commercial speech can be regulated or restricted in the United States.

Section Three discusses the foundation of freedom of expression in Europe, specifically noting the historical approach to freedom of expression within European Union member states and discussing the establishment and applicability of the European Convention on Human Rights to European Union member states. In Europe, the Council of Europe’s European Convention on Human Rights serves as the foundation for protection of freedom of expression. The Convention sets a minimum standard, and member states are free to provide more protection than the Convention provides.[2] The European Court of Human Rights interprets the applicable provisions of the Convention to ensure that signatory states are not infringing upon the basic rights provided in the Convention. [3]

Freedom of expression within European Union member states could also be regulated by the Charter of Fundamental Rights in the future. In 2000, the European Union drafted the Charter of Fundamental Rights of the European Union to consolidate protection for all “personal, civil, political, economic, and social rights” at the European Union level.[4] The Charter “draws from the 1950 European Convention on Human Rights” and is divided into six sections “dealing with dignity, freedoms, equality, solidarity, citizens’ rights and justice”.[5] The Charter is not part of the European Union Treaty that potential member states must sign to gain acceptance into the Union at this time.[6] However, the Charter was incorporated into the failed effort to ratify a proposed European Union Constitution.[7]

In addition, full ratification of the Treaty of Lisbon, the European Union’s newest proposed governing document, would make the Charter binding law for all European Union member states.[8] However, The Treaty’s universal ratification has already hit major roadblocks, including Ireland’s vote not to ratify the Treaty on June 12, 2008.[9] Consequently, the Charter is not binding law at this time, although it may provide protection of freedom of expression among European Union member nations at some point in the future. Thus, the only current laws directly governing freedom of expression within European Union nations are: 1) the European Convention on Human Rights, and 2) the laws of the individual nations.

Sections Four through Nine discuss regulations on specific types of expression within the United States and the European Union member states: hate speech, political speech, and commercial speech. Section Four discusses restrictions on hate speech in the United States, while Section Five discusses the approach to regulation of hate speech within European Union member states. Section Six discusses the regulation of political speech in the United States, an issue that becomes increasingly more complicated in the age of campaign finance reform. Section Seven discusses freedom of political expression within European Union member states. Section Eight discusses regulation of commercial speech in the United States, while Section Nine discusses the contrasting approach to regulation of commercial speech in European Union member states. Section Ten concludes with a summary of the findings of the comparative research on the issues of hate speech, political speech, and commercial speech and notes the possible globalization of freedom of expression regulation in the future.

The goal of this paper is to provide an enlightening view of the many ways in which the United States and European Union states are both similar and different with regard to freedom of expression. In today’s increasingly global society, the impact and influence of court decisions is often world-wide. In the age of the internet, publication of information is not limited to the nation of origin. Consequently, laws governing freedom of expression will transcend national boundaries, making it important for United States citizens to understand the approach to freedom of expression in European Union nations and vice versa. The goal of this work is to serve as a beginning point for interest in such a comparison.

SECTION TWO

THE FOUNDATION OF FREEDOM OF EXPRESSION

IN THE UNITED STATES

This section discusses the historical justifications for the right to freedom of

expression in the United States, particularly the “marketplace of ideas” concept and the view that freedom of speech encourages political participation in government. In addition, this section provides a brief summary of the interpretation the United States Supreme Court has given to the First Amendment on several issues.

1. Historical Justifications for the Right to Freedom of Expression

The First Amendment of the United States Constitution guarantees that “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[10] The “marketplace of ideas” concept of freedom of expression has served as one of the traditional justifications for the wide latitude of freedom of expression granted in the Constitution.[11] This metaphor was enunciated and further developed in a series of judicial opinions by justices Oliver Wendell Holmes and Louis Brandeis[12] and remains today “an integral part of contemporary legal reasoning on the First Amendment.”[13]

According to Justice Holmes in his dissenting opinion in Abrams v. United States, “the ultimate good desired is better reached by free trade in ideas, and . . . the best test of truth is the power of the thought to get itself accepted in the competition of the market.”[14] In Whitney v. California, Justice Brandeis made an important addition to First Amendment jurisprudence in his concurring opinion, which noted that “freedom to think as you will and to speak as you think are indispensable to the discovery and spread of political truth.”[15] Thus, the standard “marketplace of ideas” metaphor for free speech “identifies the relationship between governmental non-intervention and the identification of truth.”[16] It should be noted that the marketplace of ideas metaphor carries two important corollaries: 1) that freedom of speech protects even speech that is repugnant,[17] and 2) that the remedy for bad ideas is simply more speech.[18]

In addition to protecting freedom of expression “as a means of attaining the truth,” the United States has also protected freedom of expression as a “method of securing participation by the members of [American] society in social, including political, decision-making.”[19] Freedom of the press, now extended to electronic media in most cases, is one of the most important types of freedom of expression for these purposes. Historically, freedom of the press in the United States has meant that “the press enjoyed a preferred position in the American constitutional scheme because of its special relationship to popular government.”[20] According to First Amendment scholar Leonard W. Levy, “The electoral process would have been a sham if voters did not have the assistance of the press in learning what candidates stood for and what their records showed about past performance and qualifications.”[21] Thus, in the United States, “A free press [has become] indispensable to the existence of a free and responsible government.”[22]

2. Interpretation of the First Amendment’s Protection of Freedom of Expression

Justice Hugo Black, a former Supreme Court justice who was a member of the Klu Klux Klan early in his political career, became one of the greatest champions of the First Amendment to ever serve on the Supreme Court.[23] In a 1960 law review article, he contended that the First Amendment is absolute, allowing Congress to make absolutely no law that would curtail free speech in any way.[24] In contrast, long-standing scholarly argument holds that the framers of the Constitution intended to adopt the view of eighteenth-century English legal writer Sir William Blackstone—-that freedom of speech and press meant merely a prohibition against prior restraints.[25] However, the Supreme Court has rejected both of these extreme views and has instead held that the terms “abridging” and “freedom of speech” require interpretation, and restrictions upon freedom of expression may be “permitted for appropriate reasons” only.[26] For example, the Supreme Court has held that certain categories of expression “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”[27] As such, certain categories of expression, such as fighting words and obscenity, are completely unprotected under the First Amendment.[28] In addition, two other categories of expression—-commercial speech and libel—-are generally entitled to lesser forms of protection.[29]

In the Supreme Court’s analysis of restrictions on First Amendment freedom of expression guarantees, the Court draws a distinction between content-based and content-neutral restrictions.[30] Content-based restrictions “restrict communication because of the message conveyed,” while content-neutral restrictions “restrict communication without regard to the message conveyed.”[31] The Supreme Court has typically “employed different standards to test the constitutionality of these two types of restrictions,” with more stringent standards used to test the constitutionality of content-based restrictions.[32]

Courts will engage in ad-hoc balancing when considering whether a restriction upon freedom of expression is permissible.[33] Under this balancing approach, even fully protected speech can be restricted in certain circumstances.[34] Governmental restrictions upon the content of speech are typically upheld only when such restrictions are justified by “‘compelling’ governmental interests and are ‘narrowly tailored’ (or employ the ‘least restrictive means’) to effectuate those interests.”[35] This level of scrutiny is frequently referred to as “strict scrutiny.”[36] However, content-based regulation does not automatically trigger the application of strict scrutiny.[37] For example, a lower level of scrutiny generally applies in the context of governmental regulation of commercial speech, which Section Eight will discuss in greater detail.[38]

Consequently, First Amendment jurisprudence in the United States can be quite complex, with different standards applying to different types of speech. Despite the differing standards, the “marketplace of ideas” philosophy and the view that free speech is essential to citizen engagement in politics have influenced the United States Supreme Court to develop a jurisprudence that is more protective of freedom of expression rights than the protection afforded in most other nations.

SECTION THREE

THE FOUNDATION OF FREEDOM OF EXPRESSION IN EUROPE

This section will examine the historical European approach to freedom of expression, examining Europe’s transition from a continent with nations that severely restricted freedom of expression to a continent where the majority of nations now recognize at least some forms of expression as a basic human right via national laws and/or the European Convention on Human Rights. As will be discussed later in the section, the establishment of the European Convention on Human Rights, with its specific provisions that affect freedom of expression, is the pre-eminent document that governs respect for freedom of expression in Europe today. This section will also provide a brief comparison of the First Amendment to Article 10 of the European Convention on Human Rights, examining the textual differences of the documents.

1. The Historical European Approach to Freedom of

Expression

Historically, nations on the continent of Europe had a long history of a low level of protection for freedom of expression.[39] Expression of religious opinions was especially risky due to the possibility of being branded a heretic and burned at the stake during the Inquisition period.[40] The goal of the Inquisition was to “exterminate heretical speech,” and the Inquisition’s massacres served to frighten many Jews and Muslims into accepting Christian baptism.[41] Heretical speech is defined as speech which “contradicts the teachings of God.[42] The Inquisition period began in the thirteenth century, and as late as 1781, “heretics” were still being burned at the stake in Spain.[43]

The English crown and Parliament attempted to silence undesirable opinions by using licensing of the press.[44] Those in power in England felt that the invention of the printing press “greatly magnified the danger posed by ‘undesirable’ opinions.”[45] In response, in 1476 the crown claimed the authority to control printing presses.[46] Under this scheme, “[T]he manuscript of any work intended for publication had to be submitted to crown officials empowered to censor objectionable passages and to approve or deny a license for the printing of the work.”[47] Thus, anything published without the proper imprimatur was criminalized.[48] This system functioned as a form of prior restraint, and it remained in effect until 1694 in England.[49]

However, it should also be noted that the writings of two English authors, John Milton and John Stuart Mill, established the foundation for the “marketplace of ideas” principle, which in turn has served as justification for the typically liberal approach to freedom of expression in the United States.[50] In 1644, John Milton wrote:

[T]hough all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; whoever knew Truth put to the worse, in a free and open encounter?[51]

Two centuries later, John Stuart Mill further contributed to this dialogue by writing his famous essay On Liberty, which explained the dangers of suppressing even unpopular opinions.[52] Mill wrote:

[T]he opinion which it is attempted to suppress by authority may possibly be true. Those who desire to suppress it, of course, deny its truth; but they are not infallible. They have no authority to decide the question for all mankind, and exclude every other person from the means of judging. To refuse a hearing to an opinion, because they are sure it is false, is to assume their certainty is the same thing as absolute certainty . . .. There is the greatest difference between presuming an opinion to be true, because with every opportunity for contesting it, it has not been refuted, and assuming its truth for the purpose of not permitting its refutation. Complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right.[53]

Some continental nations developed different freedom of expression traditions. Denmark had a tumultuous path that led eventually to one of the world’s strongest protections of freedom of expression. In eighteenth-century Denmark, freedom of expression was limited by official censorship “and the self-censorship which most authors exercised so as not to fall out of favor with the country’s leaders and the patrons of the arts.”[54] However, Denmark abolished censorship completely in 1770.[55] Nonetheless, by 1799, Denmark’s leaders “lost their patience” and once again imposed strict limitations upon freedom of expression.[56] Meanwhile, public demand for freedom of expression rights continued, and freedom of expression was finally recognized as a basic human right in Section 91 of the 1849 Denmark Constitution, Section 91, which, translated into English, provided: “Everyone has the right to publicize in print their ideas, but under responsibility to the courts. Censorship and other measures could in no way be introduced again.”[57]

Just south of Denmark, the Dutch were “a notable exception to the anti-free speech tendencies in Europe.”[58] “The Dutch press was the first free press in the world, and its newspapers were sought throughout Europe because they were known to be free from the government control that plagued other European nations.”[59] A French writer who was amazed by the liberty of the Dutch press at this time remarked that in The Netherlands, “nobody is troubled on account of his religion. One is free to say what he chooses, even of the magistrates and to denounce them.”[60] However, outside Denmark and The Netherlands, freedom of expression developed much differently. Free speech was suppressed even by universities in Europe during the sixteenth-century, when the faculties of renowned institutions such as Oxford in England and the Sorbonne in France used their power of censorship to repress unorthodox religious and political views.[61]

Various legal steps that affected most of Western Europe brought change affected primarily through pre-European Union organizations like the Council of Europe. The United Kingdom’s Winston Churchill, a journalist as well as a politician, initially proposed in 1946 a “United States of Europe,”[62] and in three years, Europe began to unite:

On 5 May 1949, in St James's Palace, London, the treaty constituting the Statute of the Council of Europe was signed by ten countries: Belgium, France, Luxembourg, the Netherlands and the United Kingdom, accompanied by Ireland, Italy, Denmark, Norway and Sweden. The Council of Europe was now able to start work. Its first sessions were held in Strasbourg, which was to become its permanent seat. In the initial flush of enthusiasm, the first major convention was drawn up: the European Convention on Human Rights, signed in Rome on 4 November 1950 and coming into force on 3 September 1953.[63]

2. Establishment of the European Convention on Human

Rights

The European Convention on Human Rights established by the Council of Europe in 1953 accelerated the rate of change in freedom of expression across Europe.[64] Since that time, the Convention has been ratified by all member states of the Council of Europe.[65] The Convention has been referred to as “the jewel in the crown of the Council of Europe.”[66] Signatory states of the Convention “undertake to secure to everyone within their jurisdiction a number of civil and political rights and freedoms set out in the Convention.”[67]

All the signatory states, except Ireland and Norway, have incorporated the Convention into their own law.[68] This enables the domestic judiciary of the signatory states to “take full account of [the Convention’s] provisions when considering a grievance.”[69] The Convention “puts into practice the theory of the fundamental nature of human rights, placing [such] rights firmly above the laws and practice of a state.”[70]

In Article 19, the Convention provides the European Court of Human Rights to deal with petitions of violations of the Convention.[71] However, individuals may petition the Court of Human Rights only after they have exhausted domestic judicial remedies.[72] The Court came into existence in 1959.[73] Initially, citizens brought very few petitions to the Court.[74] However, the number of petitions began to grow steadily in the 1980s, and by 2001, the Court was receiving approximately 14,000 applications per year from people who felt their rights were violated by a signatory state of the Convention.[75]

The European Court of Human Rights is authorized to award compensatory damages and attorney’s fees to the victim of a breach of rights under the Convention.[76] However, remedies provided by the Court can be somewhat inadequate because the Court does not always award compensation “on the basis that its finding that there has been a breach of your rights is enough.”[77] In addition, the Court does not have the authority to quash criminal convictions that resulted from defective lower court proceedings under the Convention.[78] Thus, the victims in such circumstances would not be relieved of their criminal convictions.[79] Due to this problem, the Council of Europe has urged its member states to pass laws that would “allow [it] to reopen judicial proceedings in those cases where the Court has found a procedural defect in violation of the Convention.”[80]

According to the Council of Europe’s website, the judges on the Court are independent and are elected by the Parliamentary Assembly of the Council of Europe.[81] However, this independence may be more theoretical than reality-based because Convention member states almost always elect someone from their own country to serve as their representative on the Court.[82] Many times these judges tend to side with their own country and dissent rather than joining in the opinion of the rest of the Court.[83]

4. The Applicability of the European Convention on

Human Rights to the European Union Member States

The European Union comprises twenty-seven member states: Austria, Belgium, Bulgaria, Cyprus, The Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, The Netherlands, and the United Kingdom.[84] All member countries are signatories to the European Convention on Human Rights.[85]

However, as noted in Section One, the European Union in its organizational capacity has not signed on to the European Convention on Human Rights.[86] European Union leaders are attempting to amend the European Union treaty to “allow the EU to accede to the [C]onvention.”[87] If the treaty is ratified by all European Union countries in the future, an interesting impact of this change will be that the European Court of Human Rights, a Council of Europe body rather than a European Union body, would monitor “whether the [European Union] respects fundamental rights.”[88] Meanwhile, regardless of the fact that the European Union is not a signatory to the Convention, the Convention still has a profound impact on the European Union because all of the Union’s member states are governed by it.

5. Article 10 of the European Convention

on Human Rights as Compared to the First Amendment

Article 10 of the European Convention on Human Rights covers freedom of expression.[89] It states:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary (emphasis added).”[90]

Thus, freedom of expression under Article 10 of the Convention is not an absolute right. Instead, Article 10 employs a balancing analysis similar to that engaged in by United States courts when interpreting the First Amendment. To the general reader, Article 10 of the Convention might appear to be even broader than the First Amendment because it states a right to freedom of expression rather than merely a right to freedom of speech and a free press.[91] However, Paragraph 2 contains a broad exceptions clause severely limiting the scope of protection that Paragraph 1 provides. Thus, textually, Article 10 of the Convention seems to provide less protection than the First Amendment because the First Amendment does not have an exceptions clause. However, as noted previously, United States courts have interpreted the First Amendment in such a manner that the First Amendment does not provide absolute protection for freedom of expression, even though textually the First Amendment can be read as providing absolute protection for freedom of speech and freedom of the press.[92]

In summary, nations on the continent of Europe have had a long, arduous journey on the road to greater protection of freedom of expression. As previously noted in this section, the Inquisition period limited expression of religious opinions from the thirteenth century to the eighteenth century, and England controlled printing presses from 1476 until 1694. Meanwhile, beginning in the seventeenth century, the Dutch stood in stark contrast to the rest of Europe in its stance toward freedom of expression, becoming a haven for those seeking freedom of speech and press and freedom from religious persecution.[93]

The influence of the Dutch, as well as the influence of Denmark in its complete, although temporary, abolishment of censorship in Denmark in 1770 and its subsequent recognition of freedom of expression as a basic human right in the 1849 Denmark Constitution, served as the starting point for a changing governmental philosophy toward freedom of expression in Europe. In addition, the influence of the writings of John Milton in the mid 1600s and John Stuart Mill in the 1800s, which extolled the virtue of the freedom to express even unpopular opinions in the search for greater truth, served to advance the movement to increasing freedom of expression in European nations. These combined influences have led to a present-day Europe that has established the European Convention on Human Rights, explicitly protecting freedom of expression, although not without limitation and not to the extent protected by the United States. The European approach to freedom of expression as compared to the United States approach to freedom of expression is well-illustrated by the issue of hate speech, which will be discussed in the following two sections.

SECTION FOUR

THE UNITED STATES APPROACH TO HATE SPEECH

Hate speech is generally defined as “insults, slurs, or epithets” directed to someone within a certain group of people, “based on a shared characteristic of that group.”[94] Such shared characteristics can refer to race, gender, religion, ethnicity, sexual orientation, or disability.[95] This section will discuss the manner in which the United States Supreme Court has ruled on issues involving hate speech.

In the 1952 case of Beauharnais v. Illinois[96], the United States Supreme Court upheld an

Illinois law that “forbade portraying the depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion” that exposed the members of such a group “to contempt, derision, or obloquy or which is productive of breach of the peace or riots.”[97] The Supreme Court’s justification for this ruling was that “this was a kind of group libel, and libel was a category of speech that fell outside the protection of the First Amendment.”[98] However, the premise that libel is automatically outside the scope of the First Amendment is no longer true since the Supreme Court’s 1964 ruling in New York Times v. Sullivan[99], which protects civil libel against public figures unless it is made with actual malice or reckless disregard as to the truth or falsity of such a statement.[100] Later in 1964, the United States Supreme Court provided additional protection for libel when it held in Garrison v. Louisiana that the rule of New York Times v. Sullivan was also applicable to criminal libel.[101] Thus, the Garrison ruling completely undercut the Court’s ruling in Beauharnais that libel was outside the protection of the First Amendment.[102]

In 1969, the Supreme Court considered how far a state can go in prohibiting speech that advocates illegal action in the case of Brandenburg v. Ohio.[103] In Brandenburg, Klu Klux Klan members had conducted a rally in Ohio, during which members stated that “the nigger should be returned to Africa, the Jew returned to Israel . . . [and] if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance [sic] taken.”[104] The state of Ohio subsequently prosecuted Brandenburg, the leader of the Klan group, under Ohio’s criminal syndicalism statute, which prohibited advocating “the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”[105] In addition, the law criminalized assembling “with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”[106]

The Supreme Court found the Ohio statute unconstitutional, holding that “the constitutional guarantees of free speech and free press do not permit a State to forbid or prescribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[107] Thus, Brandenburg indicates that there are certain very limited instances in which states can criminalize hate speech that is particularly likely to produce “imminent” law violations.[108] In addition, as previously mentioned, fighting words, defined as words which “by their very utterance inflict injury or tend to incite an immediate breach of the peace”, receive no protection under the First Amendment.[109] Such words are “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit from them is clearly outweighed by the social interest in order and morality.”[110] Thus, some forms of hate speech can also be partially restricted by criminalizing fighting words.[111]

In 1977, the predominately Jewish village of Skokie, Illinois, enacted ordinances with the purpose of preventing a group of Nazis from marching in Nazi-style uniforms while displaying swastikas.[112] Specifically, the ordinances prohibited “dissemination of any materials within the Village of Skokie which promotes and incites [sic] hatred against persons by reason of their race, national origin, or religion, and is intended to do so”.[113] The ordinances also prohibited engaging in “any march, walk or public demonstration as a member or on behalf of any political party while wearing a military-style uniform.”[114] The Seventh Circuit promptly struck these ordinances down as violating the First Amendment.[115]

A trilogy of more recent cases illustrate the current United States approach to hate speech. These cases are R.A.V. v. City of St. Paul,[116] Wisconsin v. Mitchell,[117] and Virginia v. Black.[118] The underlying facts in R.A.V. illustrate that a “deep-seated bias . . . yet infects American society.”[119] In this case, a group of white teenagers in St. Paul, Minnesota assembled a cross and set it on fire in a yard belonging to a black family.[120] The city of St. Paul prosecuted the teenagers under the St. Paul Bias-Motivated Crime Ordinance, which provided:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.[121]

The Supreme Court found this ordinance to be unconstitutional on its face because it “prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”[122] The Court thus concluded that the ordinance employed unconstitutional content discrimination because it prohibited only certain types of fighting words (those that insult or provoke violence “on the basis of race, color, creed, religion or gender”) rather than prohibiting fighting words as a whole.[123]

The Supreme Court decided the Mitchell case just one year after deciding R.A.V.[124] In Mitchell, a group of young black males were discussing a violent scene from the movie “Mississippi Burning” that depicted a white man beating a young black boy while he was praying.[125] During this discussion, Todd Mitchell, one of the young black men, asked the group, “Do you all feel hyped to move on some white people”?[126] Then, as a young white boy casually passed by the group, Mitchell said, “You all want to f*** somebody up? There goes a white boy; go get him.”[127] The group then ran after the boy and beat him until he was unconscious.[128] The boy was in a coma for several days after the beating.[129]

Mitchell was subsequently convicted of aggravated battery, which normally carries a maximum sentence of two years imprisonment in Wisconsin.[130] However, a Wisconsin statute provided for enhancement of a sentence if a defendant “[i]ntentionally selects the person against whom the crime . . . is committed . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person.”[131] Under the statute, Mitchell’s sentence was enhanced to four years imprisonment because the jury found that he intentionally selected his victim because of the victim’s race.[132]

Mitchell subsequently challenged the constitutionality of Wisconsin’s penalty-enhancement provision on First Amendment grounds, claiming that the statute “violates the First Amendment by punishing offenders’ bigoted beliefs.”[133] The Supreme Court noted that the statute “enhances the maximum penalty for conduct motivated by a discriminatory point of view more severely than the same conduct engaged in for some other reason or no reason at all.”[134] Nonetheless, the Court found that nothing in the statute violated the First Amendment because the statute was “aimed at conduct unprotected by the First Amendment.”[135] In making this decision, the court distinguished R.A.V. on the basis that the ordinance struck down in that case was “explicitly directed at expression” rather than conduct, even though one could argue that Mitchell’s conduct was expressive of his views.[136] Thus, it seems that Mitchell softens the near absolutist view of free speech advanced in R.A.V.[137]

Likewise, Virginia v. Black seems to soften the effect of R.A.V.[138] In Black, the Supreme Court considered the validity of a Virginia statute that prohibited cross burning “with the intent of intimidating any person or group of persons.”[139] The statute also had a provision stating that “[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.”[140] The Supreme Court noted that “the burning of a cross is ‘a symbol of hate’”,[141] and cross burning frequently “serves as a message of intimidation, designed to inspire in the victim a fear of bodily harm.”[142] In addition, the Supreme Court further noted that burning a cross is a type of symbolic expression.[143]

Notwithstanding cross burning’s status as a type of expression, the Court held that “[t]he First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation”, and a state may “choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.”[144] The Court distinguished R.A.V. on the basis that the statute at issue in R.A.V. singled out speech directed toward “one of the specific disfavored topics.”[145] In contrast, with regard to Virginia’s statute, the Court noted: “It does not matter whether an individual burns a cross with intent to intimidate because of the victim’s race, gender, or religion, or because of the victim’s ‘political affiliation, union membership, or homosexuality’.”[146]

Even after the important trilogy of R.A.V., Mitchell, and Black, it is still somewhat uncertain how far the U.S. federal and state governments can go in regulating racist or hate speech, and the debate rages on as to whether hate speech can and should be prohibited in the United States.[147] This issue frequently surfaces on college campuses when administrators attempt to proscribe forms of racist or hate speech.[148]

Some scholars argue that people “prejudge the issue” when they frame it in First Amendment terms.[149] Richard Delgado argues that the permissibility of regulating hate speech should not automatically be a First Amendment issue because the issue can also be framed as one of “protection of equality” under the Thirteenth and Fourteenth Amendments of the U.S. Constitution.[150] The Thirteenth Amendment abolishes slavery[151], and the Fourteenth Amendment guarantees the equal protection of the laws to everyone within U.S. jurisdiction.[152] If the courts defined the issue in terms of the Thirteenth and Fourteenth amendments, “Defenders of racially scathing speech [would be] required to show that the interest in its protection is compelling enough to overcome the preference for equal personhood.”[153] In contrast, when the issue is framed in First Amendment terms, those advocating restrictions upon hate speech would have to show that the interest in protecting people from hate speech is “compelling enough to overcome the presumption in favor of free speech.”[154] Thus, “the legal analysis . . . leads to opposite conclusions depending on the starting point.”[155]

Legal scholar Charles R. Lawrence “turns the First Amendment argument back on itself” by analyzing the traditional justifications for the First Amendment, such as the previously mentioned “marketplace of ideas” analogy.[156] He has argued that racist speech “undermines the free market of ideas by putting an end to discussion. The victims of such speech are injured and silenced, unable to respond.”[157] Similarly, prominent First Amendment scholar Melville Nimmer acknowledged such skepticism about the triumph of truth by commenting: “Children of the age which produced the Holocaust and the Gulag are not prepared easily to accept the inevitable triumph of Truth.”[158]

However, other scholars adamantly reject arguments in favor of restricting hate speech.[159] For example, some scholars argue that restrictions on hate speech are contrary to individual autonomy, which is one of the core values in a democratic society.[160] In addition, some scholars argue that restrictions on hate speech should not be employed because “even if some speech is harmful, any effort to limit this expression will also constrain speech that should be protected.”[161] As muddied as the waters are on the issue of regulation of hate speech in the United States, the United States clearly provides more protection for hate speech than do the member nations of the European Union, as will be discussed in the following section.

SECTION FIVE

THE EUROPEAN APPROACH TO HATE SPEECH

As previously noted, the foundation for protection of freedom of speech within almost every European nation is the European Convention on Human Rights. However, the Convention contains very little in the way of explicit guidance on freedom of expression issues, which gives member states a significant “margin of appreciation” within which to make their own laws and rulings on freedom of expression issues. The issue of hate speech illustrates the latitude that individual member states have to interpret the applicable provisions of the Convention as they choose. As will be discussed throughout this section, European Union nations have been able to significantly restrict hate speech without being found in violation of the Convention, unless the restriction serves to curtail speech in the public interest.

Article 10(1) of the European Convention on Human Rights “enshrines the basic right to freedom of expression.”[162] It includes freedom of expression through any medium, including paintings, films, books, etc., and with any content, including even pornography and hate speech.[163] In the case of Handyside v. United Kingdom, the European Court of Human Rights said that Article 10 “is applicable not only to ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock, or disturb the State or any sector of the population.”[164]

However, the text of Article 10(2) specifically recognizes limitations upon this extremely broad right to freedom of expression.[165] Article 10(2) states that the exercise of this freedom “may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society” in the interests of “national security . . . public safety . . . or for the prevention of disorder or crime.”[166] The Court has declared Article 10(2) to contain two separate components that must be evaluated.[167] First, with respect to the phrase “as prescribed by law”, the Court has found that the “law at issue must be formulated with sufficient precision to enable the citizen to regulate his conduct.”[168] Second, the Court interpreted the meaning of the phrase “necessary in a democratic society” in Handyside v. United Kingdom.[169] The Court found that the word “necessary” in the phrase “necessary in a democratic society” is not synonymous with “indispensable,” but it also does not have the flexibility associated with an interpretation of “necessary” as merely “desirable,” “useful,” or “reasonable.”[170]

Consequently, the signatory states to the European Convention on Human Rights have a “margin of appreciation within which to act, but its extent is subject to the principles characterizing a “democratic society.”[171] The margin of appreciation doctrine is important in understanding the way the European Court of Human Rights interprets the Convention. The Court of Human Rights has consistently held that:

[T]he Contracting States enjoy a certain margin of appreciation in assessing the need for an interference, but this margin goes hand in hand with European supervision, whose extent will vary according to the case. Where there has been an interference with the exercise of the rights and freedoms guaranteed in paragraph 1 of Article 10, the supervision must be strict, because of the importance of the rights in question[.][172]

The policy behind the margin of appreciation doctrine is that the individual member states are best able to assess the needs of their respective states.[173] However, the European Court of Human Rights has the final authority to determine “whether a ‘restriction’ or ‘penalty’ is reconcilable with freedom of expression as protected by Article 10.”[174]

The importance of Article 10 freedom of expression rights has been stressed by the Court many times.[175] The necessity for restricting these rights must thus be “convincingly established.”[176] Consequently, the Court has held that signatory states must make sure that any restrictions on the exercise of freedom of expression are “proportionate to the legitimate aim pursued” because the right to freedom of expression “constitutes one of the essential foundations of such a society”.[177]

The issue of hate speech tests the European Court of Human Rights’ approach in balancing the differing objectives in Article 10. Many European nations have laws restricting hate speech.[178] For example, Germany restricts hate speech through civil and criminal laws that “protect against insult, defamation and other forms of verbal assault, such as attacks against a person’s honor or integrity, damage to reputation, and disparaging the memory of the dead.”[179]

One such law is Article 130 of the German Penal Code, which states:

Whoever, in a manner to breach the public peace, attacks the human dignity of others by (1) inciting to hatred against parts of the population, (2) provoking to violent or arbitrary acts against them, (3) insulting, maliciously making them contemptible, or defaming them shall be punished by a term of imprisonment of three months to five years.[180]

These types of laws are most often used to curb hate speech against groups and Nazi and anti-Semitic propaganda in particular”.[181] In fact, Holocaust denial is a crime in Germany.[182] The German laws against hate speech are vigorously enforced by German prosecutors.[183] One young man was sentenced to twenty months in prison for giving the Nazi stiff-arm salute.[184] Another German was sentenced to eighteen months imprisonment without parole for using banned Nazi symbols and denying in propaganda videos that the Holocaust occurred.[185]

Under Article 10(2) and Article 17 (which prohibits the abuse of rights granted in the Convention), the Court has a general practice of declaring applications inadmissible that complain about restrictions placed on hate speech.[186] However, the Court’s position has sometimes been different “when the intention behind the publication of hate speech is to inform the public or illuminate debate.”[187] For example, the Court took a different path in the case of Jerslid v. Denmark[188], which concerned a news program broadcast in which a “group of self-confessed racist youths made extremely offensive remarks about black people.”[189] Subsequent to the broadcast, the youths and the journalists involved in the broadcast were prosecuted and convicted for violating a Danish law that prohibited hate speech.[190]

The issue in the Jerslid case was whether such hate speech limitations were necessary in a democratic society (as this is the standard that restrictions upon freedom of expression must meet under Article 10(2)).[191] The Court found that the broadcast “was not intended to propagate racist views, but to address an issue of some public interest.”[192] Thus, the Court found that the penalties imposed on the journalists “were not necessary in a democratic society for the protection of the rights of others.”[193]

The Jerslid case and additional case law of the Court on Human Rights indicates that the Court is attempting to strike the proper balance between the competing interests of the right to free speech and the fact that free speech, if unfettered, can be used to “incite violence, spread hatred, and impinge on individual privacy and safety”.[194]

In contrast, the United States seems to only permit restrictions on hate speech in very limited circumstances when such speech can actually be viewed as threats or illegal conduct as opposed to mere speech.

SECTION SIX

THE UNITED STATES APPROACH TO

FREEDOM OF POLITICAL EXPRESSION

Political speech, in its most general sense, is speech regarding public affairs.[195] With

regard to specific application of the First Amendment to political speech, the United States Supreme Court has found that “the First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.”[196] This is because “[w]hatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.”[197] According to the Court, “speech concerning public affairs is more than self-expression, it is the essence of self-government.”[198] This philosophy regarding political speech will be discussed in detail in this section, along with Supreme Court decisions that apply this philosophy to the following issues: defamatory statements about public officials, picketing near residential areas, political boycotts, flag burning, and campaign finance reform.

The philosophy that freedom of speech is essential to effective self-government was advanced by influential First Amendment scholar Alexander Meiklejohn, who argued that speech related to self-governance was entitled to absolute protection under the First Amendment.[199] According to Meiklejohn, self-government is the very purpose of the First Amendment, and “[t]he unabridged freedom of public discussion is the rock on which our government stands.”[200] Meiklejohn’s theories clearly impacted the Supreme Court’s First Amendment jurisprudence by influencing the landmark decision of New York Times v. Sullivan.[201] In fact, Meiklejohn’s theories have been cited by the Supreme Court in more than twenty separate opinions since 1951, and his theories have been used to significantly extend the protection afforded to political speech.[202]

Because of the nature of political speech, “The First Amendment affords the broadest protection to such political expression.”[203] Political speech generally cannot be restrained in the United States, even the type of political speech that advocates violating laws, “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[204]

During the last fifty years, the Supreme Court has taken significant steps to ensure continuing protection for political speech in a wide variety of situations. The previously mentioned Supreme Court decision of New York Times v. Sullivan[205] increased the already high level of protection for political speech by announcing a rule that prohibits public officials from recovering damages for defamatory false statements related to their official conduct unless the official “proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”[206]

The Court based this ruling on the importance of “maintenance of the opportunity for free political discussion”[207] and the principle that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”[208] Garrison v. Louisiana[209] soon extended this privilege to “anything which might touch an official’s fitness for office”.[210]

The Court considered protection of political speech in the context of picketing in the 1980 case of Carey v. Brown,[211] which concerned the constitutionality of an Illinois statute that made it illegal to picket near any residence unless the residence was a “place of employment involved in a labor dispute.”[212] In this case, the Court noted that public-issue picketing is “an exercise of . . . basic constitutional rights in their most pristine and classic form”.[213] The Court criticized the Illinois statute because it provided “preferential treatment to the expression of views on one particular subject; information about labor disputes may be freely disseminated, but discussion of all other issues is restricted.”[214] Consequently, the Court held the statute constitutionally invalid because it discriminated “among pickets based on the subject matter of their expression.”[215]

The Supreme Court was confronted with constitutional issues arising from a political boycott in NAACP v. Claiborne Hardware Co.[216] In this case, a local branch of the NAACP launched a boycott of white merchants with the purpose of causing local civic and business leaders to comply with “a lengthy list of demands for equality and racial justice.”[217] Boycott participants repeatedly sought to persuade black nonparticipants to join the boycott by employing forms of “social pressure,” such as publishing the names of boycott violators in a local black newspaper.[218]

In one instance, a speaker at a rally in support of the boycott told black citizens: “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”[219] The Court held that such political boycotts are expressive activity protected by the First Amendment that “does not lose its protected character . . . simply because it may embarrass others or coerce them into action.”[220] Consequently, the Court reversed a state damage award given to white merchants who sustained losses due to the boycott.[221]

In the 1989 case of Texas v. Johnson[222], the Court established the principle that “symbolic speech receives the same high level of First Amendment protection as other forms of expression.”[223] In Johnson, the Court determined that burning a flag as a form of political protest is protected expression under the First Amendment.[224] Consequently, the Court invalidated a Texas statute that prohibited desecrating a state or national flag.[225] In making the decision, the Court noted the “bedrock principle underlying the First Amendment . . . that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”[226]

The Supreme Court has also made several important decisions involving regulation of elections and regulation of political financing. One important feature of political campaigns in the United States it that televised political advertising has very few direct limitations; the few regulations on such advertising have come via campaign finance reform rather than direct prohibitions. This approach contrasts to the restricted nature of televised political advertising in Europe, which will be discussed in the next section.

In the landmark case of Buckley v. Valeo,[227] which considered the constitutionality of several 1974 amendments to the Federal Election Campaign Act, the Court drew an important distinction between limits on campaign contributions and limits on political expenditures.[228] Contributions include money spent in coordination with a candidate’s campaign organization and payments made directly to a political candidate or campaign fund.[229] Expenditures are money spent directly by someone in furtherance of a political cause.[230] The Court held that limitations on how much a person may spend on a political campaign violate First Amendment rights because such limits severely restrict the ability to purchase political speech, such as through buying advertisements and distributing handbills and leaflets.[231]

After all, the Court reasoned, “Every means of communicating ideas in today’s mass society requires the expenditure of money.”[232] However, the Court upheld limitations on contributions, reasoning that restrictions on contributions only marginally restrict freedom of speech rights, and large contributions can cause corruption or the appearance of corruption because they may be perceived as bribes given “to secure political quid pro quos from current and potential office holders”.[233] Thus, the Court found that the government has a compelling interest in placing limitations upon contributions.[234] The Court found that expenditures do not have the same inherent danger of corruption or perception of corruption because a quid pro quo is less attainable when the spender and the politician are not communicating about the expenditure.[235]

Nonetheless, the Court concluded in Citizens Against Rent Control v. City of Berkeley that some forms of limitations on contributions can be unconstitutional; the case dealt with the issue of state regulation of political action committee contributions.[236] The campaign ordinance at issue imposed a $250 limit on individual contributions to committees formed to support or oppose ballot measures.[237] The Court noted that the tradition of “persons sharing common views banding together to achieve a common end is deeply embedded in the American political process.”[238]

In Buckley, the Court had previously recognized that the First Amendment protects not only political expression but also political association.[239] The Court concluded that this ordinance imposed a significant restraint on the freedom of expression rights of groups and those who wish to make their views heard through involvement with committees.[240] The Court struck down the ordinance as unconstitutional after finding that “there is no significant state or public interest in curtailing debate and discussion of a ballot measure.”[241] In making the decision, the Court noted that its previous decision in Buckley did not support limitations on contributions to committees opposed to or in favor of ballot measures because “[t]he risk of corruption perceived in cases involving candidate elections . . . simply is not present in a popular vote on a public issue.”[242]

In the 1992 case of Burson v. Freeman[243], the Court considered the ability of states to control certain types of campaigning conducted very close in proximity to polling places.[244] The Tennessee statute at issue prohibited solicitation of votes and distribution of campaign materials within 100 feet of a polling place.[245] In upholding the statute, the Supreme Court agreed with Tennessee’s assertions that the regulation was narrowly tailored and necessary to serve two compelling state interests—the prevention of voter intimidation and election fraud.[246] In making this decision, the Court noted the historical problems of voter bribery and intimidation, concluding that “some restricted zone around polling places is necessary to protect” the fundamental right “to cast a ballot in an election free from the taint of intimidation and fraud.”[247]

In the 2003 case of McConnell v. FCC,[248] the Supreme Court considered the constitutionality of several provisions for sweeping campaign finance reform efforts present in the Bipartisan Campaign Reform Act of 2002.[249] The Court upheld most provisions of the Act in a 5-4 decision.[250] In particular, the Court upheld a prohibition on the use and raising of soft money by national political parties; “soft money” is contributions given to a political party for purposes other than explicitly supporting candidates for federal office and is not regulated by federal candidate contribution limits.[251] The Act specifically prohibited federal office holders from using or raising soft money and restricted state and local party use of soft money in federal election activities.[252] In making the decision, the Court concluded that the ban was constitutionally permissible due to the government’s interest in preventing corruption.[253]

However, the Court revisited the Act in 2007 in Federal Election Commission v. Wisconsin Right to Life, which addressed the applicability of the Act’s provisions limiting “electioneering communications” by organizations.[254] Section 203 of the Act makes it a federal crime for a corporation, defined to include unions and non-profit organizations, to use its general funds to pay for “any broadcast that refers to a candidate for federal office and is aired within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction where the candidate is running.”[255] The Court determined that this restriction was unconstitutional as applied to genuine issue ads that “may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate,” even though a candidate may be mentioned in the ad.[256] The standard announced by the Court is that an ad can be found in violation of the act “only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”[257]

According to some election experts, the effect of the Wisconsin Right to Life decision was to essentially permit “a largely unlimited flow of money from corporate treasuries to pay for the all-important broadcast advertisements in the weeks before primary and general elections.”[258] The line of Supreme Court cases extending from Buckley to Wisconsin Right to Life shows that the Buckley justification for the ability to regulate campaign finance still lives today and competes with the high level of protection for political speech present in First Amendment jurisprudence.[259]

In summary, the United States has a very strong tradition of protecting political speech, viewing it as an essential component of self-government. Consequently, the United States Supreme Court has rarely been willing to put any direct restrictions on political speech. However, the Court has upheld limited campaign finance restrictions, viewing such restrictions as necessary to prevent corruption in some circumstances. Despite these limited restrictions, the United States still provides greater protection for political speech than European nations generally do because it provides much greater protection for political advertising and broadcasts, as will be discussed in the following section.

SECTION SEVEN

THE EUROPEAN APPROACH TO FREEDOM OF

POLITICAL EXPRESSION

According to the European Court of Human Rights, “[F]reedom of the press . . . affords

the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders,” and “freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.”[260] The Court further states that it is the affirmative duty of the press to “impart information and ideas on political issues.”[261] Despite the view of the Court, many European Union member states have traditionally regulated and limited political speech instead of seeking to advance it. However, as will be discussed in this section, the European Court of Human Rights has rendered decisions protecting individual rights to freedom of political expression at the expense of state regulation. It remains to be seen how far the European Court of Human Rights will restrict the ability of European Union member states to regulate political expression.

At this point, the European Court of Human Rights has not clearly delineated what is protected political speech.[262] However, “A hierarchy has been recognized whereby the greatest latitude must be accorded to critics of government, the narrowest to those who attack the reputations of private citizens.”[263] Also, “Respect for politicians appears to fit somewhere in between, perhaps at no fixed point on this continuum.”[264] For example, in the case of Lingens v. Austria, the European Court of Human Rights stated:

Those who are accustomed to attacking their political opponents have ‘to expect fiercer criticism than other people’ and that by standing for public office they ‘inevitably and knowingly’ lay themselves open to ‘close scrutiny of every word and deed both by journalists and the public at large.’”[265] The motive of the speaker is also important as to whether what is spoken is protected political speech.[266] The European Court of Human Rights is generally more willing to provide protection to “those whose aim is to stimulate genuine debate on a topic of public concern.[267]

An example of the European approach to political speech is demonstrated in the Lingens case.[268] In Lingens, Mr. Lingens, an Austrian journalist, published an article in Profil, an Austrian news magazine, accusing the Federal Chancellor and head of the Austrian Socialist Party of “baseless opportunism” in the midst of a post-election political controversy[269] The Chancellor then brought an action against Lingens based upon Article III of the Austrian Criminal Code, which read:

Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behavior contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine. . . . The person making the statement shall not be punished if [the statement] is proved to be true.[270]

Thus, according to this provision of the criminal code, journalists cannot escape conviction for criminal defamation unless they can prove the truth of their statements, even if the statements are opinions or value judgments.[271] Because Lingens could not prove the truth of his opinion of the Chancellor, he was convicted in an Austrian court of criminal defamation.[272]

Lingens appealed to the European Court of Human Rights on the basis that Austria’s Criminal Code violated Article 10 of the European Convention on Human Rights because it impeded the exercise of his freedom of expression rights.[273] Because the Austrian Criminal Code most definitely hampered Lingens’ right to freedom of expression, the issue before the Court was whether Austria’s criminal defamation law was “necessary in a democratic society” for the “protection of the reputation of others.”[274]

In weighing Lingens’ personal rights to freedom of expression against Austria’s right to protect the reputations of individuals, the Court noted that although Article 10(2) of the Convention allows the reputation of others to be protected, “the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.”[275] The Court further found that “in the context of political debate,” the Austrian criminal defamation law “would be likely to deter journalists from contributing to public discussion of issues affecting the life of the community.”[276] Thus, a criminal law of this nature is likely to “hamper the press in performing its task as purveyor of information and public watchdog.”[277]

In making its decision, the Court drew a “careful distinction” between facts and value judgments.[278] The Court noted that “[t]he existence of facts can be demonstrated, whereas the truth of value judgments [such as Lingen’s opinion of the Chancellor] is not susceptible to proof.”[279] Consequently, the Court found that the Austrian criminal code’s requirement of proving the truth of statements is impossible to fulfill with regard to opinions and value judgments.[280] As such, the Austrian code “infringes freedom of opinion itself, which is a fundamental right secured by Article 10 of the Convention.”[281] Consequently, the Court found that Austria’s “interference with Mr. Lingens’ exercise of the freedom of expression” was disproportionate to Austria’s legitimate aim of protecting reputations and was not “necessary in a democratic society.”[282]

The approach to political speech of the European Court of Human Rights can also be seen in the case of Castells v. Spain.[283] In this case, Mr. Castells, at that time a member of the Spanish parliament from an opposition party, wrote an article criticizing the Spanish government with respect to its lack of action against terrorist activity within the country.[284] Castells was convicted in the Spanish courts of the criminal offense of “insulting the government.”[285] Castells was not allowed to prove the truth of his statements as a defense to the charge.[286]

Castells petitioned the European Court of Human Rights to hear his case.[287] He alleged that his right to freedom of expression under Article 10 of the European Convention on Human Rights had been violated by Spain.[288] The Court found that Spain had clearly interfered with Castell’s freedom of expression rights, but that such an interference does not violate Article 10 if it is “prescribed by law, carried out in pursuit of one or more of the legitimate aims set out in Article 10 [paragraph] 2 . . . and ‘necessary in a democratic society’ in order to attain such an aim or aims.”[289] Thus, the Court employed a type of balancing approach to determine whether Article 10 had been violated.[290]

The Court noted that the prosecution was “prescribed by law” because it was based upon the Spanish criminal code.[291] The Court then went on to consider whether Spain was pursuing a legitimate aim through its restriction of speech against the government.[292] The Court found that Spain was pursuing the legitimate aim of “prevention of disorder” because Spain was in a period of social unrest at the time of publication.[293]

However, the analysis became more complex when the Court began to consider whether Spain’s restriction on speech was “necessary in a democratic society.”[294] In considering this question, the Court noted that:

While freedom of expression is important for everybody, it is especially so for an elected representative of the people. He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interferences with the freedom of expression of an opposition member of parliament, like the applicant, call for the closest scrutiny on the part of the Court.[295]

The Court further noted the importance of freedom of the press, explaining that freedom of the press gives the public “one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders” and gives politicians “the opportunity to reflect and comment on the preoccupations of public opinion.[296] Thus, the Court noted, a free press “enables everyone to participate in the free political debate which is at the very core of . . . a democratic society.”[297]

After weighing the great value of the freedom of the press and the value of free political speech by politicians against the highly restrictive nature of the Spanish criminal code, the Court found that Spain’s interference was not “necessary in a democratic society.”[298] In making this decision, the Court placed great weight upon the fact that Spain did not allow Castells to prove the truth of his allegations as a defense[299]. Consequently, the Court found that Spain had violated Castells’ Article 10 right to freedom of expression.[300] The Castells and Lingens cases indicate that the European Court of Human Rights is willing to step in as necessary to protect political speech.

However, the European Court of Human Rights has not yet addressed the restrictions that most European Union member states place on televised political advertisements. Studies have shown that most European countries, including European Union member states, “impose much more stringent regulations on televised political advertisements than is the case in the USA.”[301] Most European national governments have restrictions that “suppress the quantity of the political broadcasting that is allowed to occur.”[302]

Candidates and political parties are not allowed to purchase broadcast time on private stations in most European nations.[303] Instead, a limited amount of free air time on public stations is generally provided to parties rather than individuals.[304] In addition to prohibiting the purchase of paid advertising, most European Union countries also generally limit the number of election broadcasts a party may have.[305] Some countries have a flat number of permissible broadcasts for each party while others limit broadcasts in proportion to party strength.[306] For example, the United Kingdom has a limit of five party election broadcasts during the course of the election, while France and Germany limit broadcasts by proportion to party strength.[307] Denmark allots equal time among parties.[308]

However, it is highly probable that many of these restrictions violate the European Convention on Human Rights.[309] Article 10 of the Convention guarantees freedom of expression to everyone, including those making political statements.[310] It remains to be seen whether these restrictions on televised political advertising will be upheld by the European Court of Human Rights in the future. The Court’s decisions in Lingens and Castells indicate that it may be ready for a new, more protective approach toward political speech in Europe.

SECTION EIGHT

REGULATION OF COMMERCIAL SPEECH IN THE UNITED STATES

For many years, the Supreme Court treated commercial speech as a type of speech that was outside the realm of coverage provided by the First Amendment.[311] In 1942, in Chaplinsky v. New Hampshire,[312] the Supreme Court announced a two-level theory of speech, holding that some categories of speech do not count as speech for First Amendment purposes.[313] Later that year, in the case of Valentine v. Chrestensen[314], the Supreme Court put commercial speech on the lower level by holding that the First Amendment “imposes no . . . restraint on government as respects purely commercial advertising.”[315]

However, in the 1970s, the Supreme Court began to retreat from the limited-protection doctrine.[316] In Virginia Board of Pharmacy v. Virginia Citizens Consumer Council[317], the Supreme Court held that commercial advertising was speech within the ambit of the First Amendment, and it struck down a state law that forbade pharmacists to advertise drug prices.[318] The Supreme Court further refined its commercial speech jurisprudence in the case of Central Hudson Gas & Electric Corp. v. Public Service Commission[319], in which the Court announced a new standard for determining the constitutionality of a governmental restriction on commercial speech:

At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is more extensive than is necessary to serve that interest.[320]

Thus, a governmental regulation on commercial speech must be narrowly tailored to achieve a legitimate governmental interest.[321] In fact, the government “bears the burden of showing not merely that its regulation will advance its interest, but also that it will do so to a material degree.”[322] It should be noted, however, that the Supreme Court has repeatedly held that governments are entitled to regulate or even completely ban commercial speech that proposes an illegal transaction.[323]

The 1996 case of 44 Liquormart, Inc. v. Rhode Island[324] clarified the standard of review to be used in commercial speech cases. The Supreme Court held in 44 Liquormart that all commercial speech regulations are not “subject to a similar form of constitutional review simply because they target a similar category of expression.”[325] Instead, the Court announced two different levels of review for different types of commercial speech regulations.[326] It held that “when a State entirely prohibits the dissemination of truthful, non-misleading commercial messages for reasons unrelated to the preservation of a fair bargaining process”, the Court is to apply the “rigorous review” that the First Amendment generally demands.[327] However, strict scrutiny of regulations of commercial speech should not apply “[w]hen a State regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices, or requires the disclosure of beneficial consumer information”.[328] This is because, in these instances, the purpose of the state’s regulation is “consistent with the reasons for according constitutional protection to commercial speech”.[329] Thus, the level of scrutiny that applies depends on the state’s purpose in regulating the commercial speech at issue.

As far as advertising by professionals is concerned, the U.S. Supreme Court has frowned upon attempts to severely limit such advertising under the guise of protecting the public and profession. The U.S. Supreme Court held unconstitutional a law that prohibited pharmacists from advertising prescription drugs in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council[330] in 1976. In 1977, it found lawyers had a First Amendment right to place truthful advertisements in Bates v. State Bar of Arizona.[331] In Virginia State Board of Pharmacy, U.S. Supreme Court Justice Harry Blackmen stated the following principle as justification for protection of commercial speech: “As to the particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.”[332]

One unresolved issue regarding commercial speech is that the Supreme Court has never defined what constitutes commercial speech in a precise, unambiguous way.[333] For example, it is unclear whether the Court would regard “image advertising” as commercial speech, which is advertising designed to promote positive brand-name identification that does not propose a commercial transaction.[334] A good example of this type of advertising is a paper company advertisement stating that the company “plants thousands of trees each year across the United States and preserves the environment for several species of migratory birds”.[335] Although such an advertisement is a commercial announcement, it also “addresses a matter of pressing political concern.”[336] In this type of situation, it is unclear whether the court would deem such communication to be commercial speech or political speech.[337] The distinction is crucial to determination of a regulation’s constitutionality due to the differing levels of scrutiny applicable to commercial speech and political speech.[338]

In summary, the U.S. Supreme Court seems to be on a trend of providing increasing protection for commercial speech under the First Amendment, despite its initial refusal to provide any First Amendment protection for commercial speech.[339] However, the Court has also made it clear that commercial speech does not receive quite the level of protection that some other categories of speech, such as political speech, receive.[340] The Court determines the standard of review for the commercial speech at issue by examining the state’s purpose for regulating the speech, providing stricter scrutiny of the regulation when the state seems to have no legitimate interest in regulating it. In contrast, the European Court of Human Rights has permitted European nations to exercise a tremendous amount of authority over commercial speech under the margin of appreciation doctrine, as will be discussed in the next section.

SECTION NINE

REGULATION OF COMMERCIAL SPEECH IN EUROPE

The Article 10 right to freedom of expression applies to advertising of a commercial nature in addition to advertising of a political nature.[341] Any restriction on free expression, including advertising, must be considered “necessary in a democratic society” and serve a “pressing social need.”[342] However, as will be discussed in greater detail throughout this section, governmental justifications for limiting speech that is solely commercial in nature seem to be more readily accepted in Europe than in courts in the United States.

Many signatory states to the Convention have enacted measures which prohibit comparative advertising and/or advertising that is critical of other companies[343] The validity of such measures depends upon the answer to this fundamental question: “[w]hether the Convention permits Contracting States to limit freedom of expression in order to protect private commercial interests.”[344] Some scholars argue that although Article 10 allows contracting states to limit freedom of expression rights in order to protect the “reputation and rights of others,” this potential limitation on freedom of expression was not intended to protect commercial interests.[345] The European Court of Human Rights has not directly responded to the argument.[346]

However, the Court has tended to allow such restrictions on commercial advertising to stand based upon its deference to the decisions of signatory states under the margin of appreciation doctrine—the principle that “Contracting States enjoy a certain margin of appreciation in assessing the need for an interference.”[347] In fact, the Court has almost always declined to find a violation of Article 10 where the speech at issue is solely commercial speech. The Court has specifically declared, “Where commercial speech is at stake, the standards of scrutiny may be less severe.”[348]

The case of Markt Intern Verlag GmbH and Klaus Beermann best illustrates the Court’s approach in evaluating restrictions on commercial speech.[349] In this case, a German publishing firm and its editor-in-chief challenged a judgment of the German Federal Court of Justice, which kept them from “repeating certain statements published in a specialized information bulletin, which criticized the business practices of a mail-order firm.”[350] Their claim was that this prohibition violated their Article 10 right to freedom of expression.[351]

In analyzing the issue, the European Court of Human Rights noted: “Information of a commercial nature cannot be excluded from the scope of Article 10, para. 1, which does not apply solely to certain types of information or ideas or forms of expression.”[352] However, the Court also decided:

The prohibition ordered by the Federal Court of Justice had not gone beyond the margin of appreciation left to the national authorities in imposing, in accordance with Article 10, para. 2, formalities, conditions, restrictions or penalties on the exercise of freedom of expression.[353]

Thus, although advertising is a type of freedom of expression that is protected by Article 10, signatory states can significantly restrict advertising in some cases under the margin of appreciation doctrine.[354]

The case of Coca v. Spain also serves as a good example of the approach the European Court of Human Rights takes toward freedom of commercial speech. In Coca, the European Court of Human Rights found that the prohibition of virtually all advertising by lawyers did not violate Article 10.[355] The facts of the case were that a lawyer had been sanctioned by the Barcelona Bar Council after placing an advertisement containing his name, title, office address, and telephone number in a local newsletter.[356] In examining the prohibition, the Court found protecting the public and other members of the profession to be a legitimate goal of the advertising restriction.[357]

The Court then considered whether the prohibition was “necessary in a democratic society” and “justifiable in principle and proportionate” to the goal of the restriction.[358] The Court found that such an extensive restriction was justifiable, reasoning that even “objective, truthful advertisements might be restricted in order to ensure respect for the rights of others or owing to the special circumstances of particular business activities and professions.”[359] This approach contrasts starkly to the United States approach of generally protecting a professional’s right to advertise.

As demonstrated in this section, the European Union member states enjoy a wider margin of appreciation in commercial matters than in political matters.[360] Consequently, states can generally regulate commercial speech to a greater extent than political speech. The level of protection of commercial speech generally provided by the European Court of Human Rights is significantly less than that provided by the United States Supreme Court.

SECTION TEN

CONCLUSION

Both the United States and the European nations that are members of the European Union have legal obligations to allow their citizens substantial freedom of expression rights. The United States seems to have a stronger tradition of protecting freedom of expression than Europe, although, according to the United States Supreme Court, the First Amendment does not provide absolute protection for freedom of expression.

At first glance, European nations seem to have very broad protection of freedom of expression under Article 10 of the European Convention on Human Rights. However, Article 10 of the Convention also allows the signatory states to the Convention to limit this right as is “necessary in a democratic society”. Freedom of expression is also limited through the “margin of appreciation” doctrine, which allows the European Court of Human Rights to defer to the judgment of an individual nation in certain cases rather than deciding the validity of a restriction based upon its own knowledge.

The distinction between the United States approach to freedom of expression and the European approach to freedom of expression is best illustrated with the issue of hate speech. In the United States, scholars generally consider content-based regulation of hate speech to be impermissible under the First Amendment. However, the European Court of Human Rights has found restrictions on hate speech to be valid under the limitations on freedom of expression present in Article 10 of the Convention.

In the area of political speech, both the United States Supreme Court and the European Court of Human Rights provide significant protection for political speech. Although many European nations have sought to limit political speech in certain circumstances, the European Court of Human Rights has issued several rulings that severely curtail any ability of the nations to regulate such speech, placing a high amount of value on the contribution that free political speech makes to a democratic society.

However, the European Court of Human Rights has not yet ruled on the practice of severely restricting political advertising that exists in many member states. An examination of the “margin of appreciation” doctrine within the context of restrictions upon political advertising would aid significantly in developing European Court of Human Rights jurisprudence in the area of political speech.

Both the United States Supreme Court and the European Court of Human Rights state that commercial speech is entitled to at least limited protection. However, in practice, the European Court of Human Rights has provided a significant amount of individual discretion to member states on commercial speech issues under the “margin of appreciation” doctrine. In almost every case, the Court has declined to find a violation of Article 10 when the speech at issue was solely commercial speech. In contrast, the United States has gradually been providing increasing protection for commercial speech in recent years, providing rigorous review when the government has no legitimate interest in regulating the speech at issue.

In the future, it will be interesting to see whether the United States and Europe develop a more similar approach to protection of freedom of expression or whether each will retain its own individual approaches in this area. As the world continually moves to a more unified state, it is likely that United States laws and European laws on freedom of expression will become more similar in the future, as European law influences United States law and vice versa.

The worldwide proliferation of the internet and the now global reach of television and radio programs may increasingly lead in the direction of a more global approach to freedom of expression. If a move to such a global approach begins to develop, champions of freedom of expression need to be armed with knowledge of the gaps in protection that exist in the various national and international approaches to freedom of expression. However, very little comprehensive research exists that provides a detailed comparison of the differences in approaches and the ramifications of such differences. The goal of this paper has been to provide a summary comparison of the major facets of freedom of expression in the United States as compared to the major facets of freedom of expression in European Union member states. It is my hope that this work will serve as a starting point for future comparative research on freedom of expression on a global scale.

-----------------------

[1] Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring); see also Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

[2] Robert Blackburn & Dr. Jorg Polakiewicz, Fundamental Rights in Europe: The European Convention on Human Rights and its member states 97 (2001).

[3] European Convention on Human Rights, Nov. 4, 1950, art. 19, available at (last visited Oct. 18, 2008).

[4] The Charter of Fundamental Rights of the EU—All Personal, Civil, Political, Economic and Social Rights in One Simple Text, EUROPA— Freedom, Security and Justice, at (last visited Oct. 18, 2008).

[5] Id.

[6] Id.

[7] Id. The European Constitution was voted down in referendums in the Netherlands and France in 2005. See Doreen Carvajal, With Face Still Undefined, EU Tries Fresh Makeup, Int’L Herald Trib., Mar. 6, 2006, at 13.

[8] Treaty of Lisbon: The Treaty at a Glance, at (last visited Oct. 18, 2008). The Treaty of Lisbon attempts to further define the role of the European Union and the rights and obligations of member countries. Id. It is extremely significant as well in that it “introduces a single legal personality for the Union that enables the EU to conclude international agreements and join international organizations”, giving the Union the ability to “speak and take action as a single entity.” Treaty of Lisbon: The EU in the World, at (last visited Oct. 18, 2008).

[9] Treaty of Lisbon: In Your Country, at (last visited Oct. 18, 2008).

[10] U.S. Const. amend. I.

[11] John H. Garvey & Frederick Schauer., The First Amendment: A Reader 57-58 (1992).

[12] See generally United States v. Schwimmer, 279 U.S. 644 (1929)(Holmes, J., dissenting); Whitney v. California, 274 U.S. 357 (Brandeis, J., concurring); Abrams v. United States, 250 U.S. 616 (1919)(Holmes, J., dissenting).

[13] See Douglas M. Fraleigh & Joseph S. Tuman, Freedom of Speech in the Marketplace of Ideas 13 (1997).

[14] Abrams, 250 U.S. at 630 (Holmes, J., dissenting).

[15] Whitney, 274 U.S. at 375 (Brandeis, J., concurring).

[16] Garvey & Schauer, supra note 11, at 57-58.

[17] Schwimmer, 279 U.S. at 654-55(Holmes, J., dissenting).

[18] Whitney, 274 U.S. at 377.

[19] Garvey & Schauer, supra note 11, at 47.

[20] Leonard W. Levy, Emergence of a Free Press 273 (Ivan R. Dee 2004) (1985).

[21] Id.

[22] Id.

[23] Debbie Elliott, A Life of Justice: Hugo Black of Alabama, available at (last visited Nov. 1, 2008).

[24] Hugo Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865, 874, 879 (1960).

[25] James Magee, Freedom of Expression 24 (2002).

[26] Elrod v. Burns, 427 U.S. 347, 360 (1976).

[27] Chaplinsky, 315 U.S. at 572.

[28] Id. Fighting words are those which “by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id.

[29] See Rodney A. Smolla, Smolla and Nimmer on Freedom of speech: A Treatise on the Theory of the First Amendment § 12.01 & 11.01 (1994). Commercial speech generally receives an intermediate level of scrutiny, whereas most forms of protected speech receive a heightened form of scrutiny often referred to as strict scrutiny. Id. at § 3.03, § 12.01. Libel is protected to a certain extent because, under the standard announced in New York Times v. Sullivan, public officials cannot recover damages for “defamatory falsehoods” unless the statement was made with “actual malice—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. 254, 279-80 (1964).

[30] Stone et al., The First Amendment 16 (1999).

[31] Id.

[32] Id.

[33] See Smolla, supra note 29, at § 2.08.

[34] See id.

[35] See id. For examples of cases in which laws were overturned because they were not sufficiently narrowly tailored, see, e.g.: Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989); Hynes v. Mayor of Oradell, 425 U.S. 610 (1976).

[36] Smolla, supra note 29, at § 2.08.

[37] Id. at § 3.01

[38] See, e.g., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980).

[39] Fraleigh & Tuman, supra note 13, at 46-47.

[40] Id. at 47.

[41] Id.

[42] Id. at 46.

[43] Id. at 47.

[44] Stone et al., supra note 30, at 3.

[45] Id.

[46] Id. at 3-4.

[47] Id.

[48] Id. at 4.

[49] Stone et al., supra note 30, at 4.

[50] Smolla, supra note 29, at § 2.02.

[51] Id. (citing John Milton, Areopagitica, A Speech for the Liberty of Unlicensed Printing to the Parliament of England (1644)).

[52] Smolla, supra note 29, at § 2.02 (citing John Stuart Mill, On Liberty, Ch. II).

[53] Id.

[54] Udenrigsministeriet: Royal Danish Ministry of Foreign Affairs, Denmark—History—The Long Peace and the Short War, 1720-1814, at (last visited Jan. 31, 2009).

[55] Id.

[56] Id.

[57] Ole Christiansen, Absolutism and Freedom of Expression: An Account of Denmark as it was in the Years 1661-1848, at (last visited Jan. 31, 2009).

[58] Id.

[59] Id.

[60] Id.

[61] Fraleigh & Tuman, supra note 13, at 47.

[62] A Short History of the Council of Europe, at

(last visited Nov. 7, 2008).

[63] Greater and Smaller Europe, at

at (last visited Nov. 7, 2008)

[64] Freedom of Expression in Europe: Case Law Concerning Article 10 of the European Convention on Human Rights 7 (2002).

The Council of Europe was founded in 1949 and is Europe’s oldest political organization. About the Council of Europe, at (last visited Apr. 19, 2006). Its original goals were to: 1) “defend human rights, parliamentary democracy, and the rule of law”, 2) “develop continent-wide agreements to standardize member countries’ social and legal practices”, 3) “promote awareness of a European identity based on shared values and cutting across different cultures”, and 4) “achieve a greater unity between its members”. Id. The focus has shifted somewhat in recent years. Id. In May of 2005, the Council of Europe held its third Summits of Heads of State and Government, during which the Council adopted “a political declaration and action plan laying down the principal tasks of the Council of Europe in the coming years.” Id. This action plan includes the goals of: “promoting the common fundamental values of human rights, the rule of law and democracy; strengthening the security of European citizens, in particular by combating terrorism, organized crime and trafficking in human beings; [and] fostering co-operation with other international and European organizations.” Id.

There are approximately 200 legally binding European treaties, charters, or conventions promulgated by the Council of Europe, and these treaties and conventions cover topics “ranging from human rights to the fight against organized crime and from the prevention of torture to data protection or cultural co-operation”. About the Council of Europe, at (last visited Jan. 31, 2009).

One such promulgation is the European Social Charter, which came into force in 1965. It is commonly viewed as the “counterpart of the European Convention on Human Rights in the social domain.” Although it does not have the “effective machinery” present in the European Convention on Human Rights, it is gradually becoming a “common body of social rights that apply across Europe.” Early Developments, at

(last visited Nov. 7, 2008).

It should be noted that the Council of Europe is distinct from the European Union; however, “no country has ever joined the Union without first belonging to the Council of Europe.” About the Council of Europe, at (last visited Jan. 31, 2009).

[65] Freedom of Expression in Europe, supra note 64, at 7. There are currently forty-seven member states of the Council of Europe, which are: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, The Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Serbia and Montenegro, Slovakia, Slovenia, Spain, Sweden, Switzerland, The Former Yugoslav Republic of Macedonia, Turkey, Ukraine, and the United Kingdom. Council of Europe, The Council of Europe’s Member States, available at (last visited Nov. 7, 2008). Id.

[66] The European Convention on Human Rights, Council of Europe, at (last visited Jan. 31, 2009).

[67] Id.

[68] Id.

[69] Id.

[70] Id.

[71] European Convention on Human Rights, Nov. 4, 1950, art. 19, available at (last visited Jan. 31, 2009).

[72] Id.

[73] The European Court of Human Rights, BBC—The Law Essential Guides, at (last visited Mar. 11, 2006).

[74] Id.

[75] Id.

[76] Your Rights: The Liberty Guide to Human Rights, Taking a Case to the European Court of Human Rights, at (last visited May 2, 2006).

[77] Id.

[78] Book Notes, European Court of Human Rights: Remedies and Execution of Judgments, at (last visited May 2, 2006).

[79] Id.

[80] Id.

[81] The European Convention on Human Rights, supra note 66.

[82] Professor Sionadh Douglas-Scott, lecture at the Salzburg Legal Institute (July 12, 2005).

[83] Id.

[84] EUROPA—The EU at a glance—European Governments On-line, European Union Member States,at (last visited Nov. 8, 2008).

[85] The European Convention on Human Rights, supra note 66, at .

[86] EUROPA— Freedom, Security and Justice, Charter of Fundamental Rights of the EU—All Personal, Civil, Political, Economic and Social Rights in One Simple Text, at (last visited Jan. 31, 2009).

[87] Id.

[88] Id.

[89] European Convention on Human Rights, Nov. 4, 1950, art. 10, available at (last visited Jan. 31, 2009).

[90] Id.

[91] Of course, the United States Supreme Court has interpreted the First Amendment to cover freedom of expression. See generally Stromberg v. California, 283 U.S. 359 (1931). Thus, it’s almost as if the First Amendment can be read to cover freedom of expression in its entirety instead of just freedom of the speech and press. See id.

[92] Stone et al, supra note 30, at 16-17.

[93] History of The Netherlands: The Golden Age, Dutch Ministry of Foreign Affairs, at (last visited Nov. 8, 2008).

[94] Fraleigh & Tuman, supra note 13, at 170.

[95] Id.

[96] 343 U.S. 250 (1952).

[97] Id at 251.

[98] Garvey & Schauer, supra note 11, at 351.

[99] 376 U.S. 254 (1964).

[100] Id.

[101] Garrison v. Louisiana, 379 U.S. 64, 74 (1964). Garrison was also a very important case because it shed additional light on the actual malice standard, stating that “only those statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions.” Id.

[102] See id.; see also Beauharnais, 343 U.S. at 251.

[103] 395 U.S. 444 (1969).

[104] Id. at 446-47.

[105] Id. at 444-45.

[106] Id. at 445.

[107] Id. at 447.

[108] Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

[109] Id.

[110] See id. However, it should be noted that “[a] ban on ‘fighting words’ may . . . be applied to racial confrontations, but may not be limited to such confrontations.” Smolla, supra note 29, at § 6.02[4][a] (interpreting the effect of R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)).

[111] See Smolla, supra note 29, at § 6.02; see also Stone et al., supra note 30, at 84-85.

[112] Skokie Village Ordinance No. 77-5-N-995, reprinted in Lee Bollinger, The Tolerant Society 252 n. 47 (Oxford Univ. Press 1986).

[113] Skokie Village Ordinance No. 77-5-N-996, reprinted in Bollinger, supra note 114, at 252 n. 47.

[114] Smith v. Collin, 436 U.S. 953 (1978).

[115] 505 U.S. 377 (1992).

[116] 508 U.S. 476 (1993).

[117] 538 U.S. 343 (2003).

[118] Edward J. Eberle, Cross Burning, Hate Speech, and Free Speech in America, 36 Ariz. St. L.J. 953, 971 (2004).

[119] R.A.V., 505 U.S. at 379.

[120] Id. at 380 (quoting St. Paul, Minn., Legis. Code § 292.02 (1990)).

[121] R.A.V., 505 U.S. at 381.

[122] Id. at 391. It should be noted that content discrimination is not always unconstitutional. For example, content discrimination can be constitutional if such content discrimination is narrowly tailored to serve a compelling government interest. See id.

[123] See Mitchell, 508 U.S. 476 (1993).

[124] Id. at 480.

[125] Id.

[126] Id.

[127] Id.

[128] Mitchell, 508 U.S. at 480.

[129] Id.

[130] Id.

[131] Id. at 480-81.

[132] Id. at 481, 485.

[133] Mitchell, 508 U.S. at 485.

[134] Id. at 487.

[135] Id.

[136] Eberle, supra note 119, at 979.

[137] Id.

[138] Black, 538 U.S. at 348 (quoting Va. Code Ann. § 18.2-423).

[139] Id.

[140] Id. at 357 (quoting Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 771 (1995)(Thomas, J., concurring)).

[141] Id. at 357.

[142] Id. at 360.

[143] Black, 538 U.S. at 363.

[144] Id. at 362 (citing R.A.V., 505 U.S. at 391).

[145] Id. at 357.

[146] See Richard Delgado, Campus Antiracism Rules: Constitutional Narratives in Collision, in The First Amendment: A Reader 355 (1992).

[147] Id.

[148] Garvey & Schauer, supra note 11, at 351-52.

[149] Delgado, supra note 147, at 355.

[150] U.S. Const. amend. XIII.

[151] U.S. Const. amend. XIV.

[152] Delgado, supra note 147, at 355.

[153] Id.

[154] Id. at 356.

[155] Garvey & Schauer, supra note 11, at 352.

[156] Id.

[157] Melville Nimmer, Nimmer on Freedom of Speech § 1.02[b] (1984).

[158] Robert C. Post, Racist Speech, Democracy, and the First Amendment, in The First Amendment: A Reader 358 (1992).

[159] Id. at 358-59.

[160] Fraleigh & Tuman, supra note 13, at 8.

[161] David Kinley, The European Convention on Human Rights 167 (1993).

[162] Clare OVEY & Robin C.A. White, European Convention on Human Rights 277 (3d ed. 2002).

[163] Id.

[164] Id.

[165] Kinley, supra note 162, at 167.

[166] Id.

[167] Id. at 167-68.

[168] Id. at 168.

[169] Id.

[170] Kinley, supra note 162, at 168.

[171] Freedom of Expression in Europe, supra note 64, at 9.

[172] Professor Sionadh Douglas-Scott, lecture at the Salzburg Legal Institute (July 12, 2005).

[173] Bonnie Docherty, Defamation Law: Positive Jurisprudence, 13 Harvard Human Rights Journal 263, 284 (2000), available at (last visited Jan. 31, 2009).

[174] Freedom of Expression in Europe, supra note 64, at 9.

[175] Id.

[176] Kinley, supra note 162, at 168.

[177] See generally Michel Rosenfeld, Hate Speech in Constitutional Jurisprudence: A Comparative Analysis, 24 Cardozo L. Rev. 1523 (2003).

[178] Id. at 1551.

[179] The Zundelsite, Germany for Germans—Xenophobia and Racist Violence in Germany, at (last visited Jan. 31, 2009).

[180] Rosenfeld, supra note 178, at 1551.

[181] Id.

[182] The Zundelsite, supra note 180, at .

[183] Id.

[184] Id.

[185] OVEY & White, supra note 163, at 280.

[186] Id.

[187] Jerslid v. Denmark, 19 Eur. Ct. H.R. (ser. A) at 1 (1994).

[188] OVEY & White, supra note 163, at 280.

[189] Id.

[190] Id.

[191] Id. at 281.

[192] Id.

[193] Ovey & White, supra note 163, at 277.

[194] Smolla, supra note 29, at § 9.01[1].

[195] Eu v. San Francisco Democratic Comm., 489 U.S. 223, 314 (1971)(quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)).

[196] Mills v. Alabama, 384 U.S. 214, 218 (1966).

[197] Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).

[198] Alexander Meiklejohn, Free Speech and its Relation to Self-Government 19, 88-89 (1948); see generally Alexander Meiklejohn, The First Amendment is an Absolute, 1961 Sup. Ct. Rev. 245; Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People (1965).

[199] Free Speech, supra note 199, at 88-89, 91.

[200] Smolla, supra note 29, at § 2.04[1].

[201] Eugene Cerruti, Dancing in the Courthouse: The First Amendment Right of Access Opens a New Round, U. Rich. L. Rev. 237, 291, 293 (1995).

[202] Buckley v. Valeo, 424 U.S. 1, 14 (1976).

[203] Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

[204] 376 U.S. 254 (1964).

[205] Id. at 279-80.

[206] Id. at 269.

[207] Id. at 270.

[208] 379 U.S. 64 (1964).

[209] Id. at 77.

[210] 447 U.S. 455 (1980).

[211] Id. at 457 (quoting Ill. Rev. Stat., ch. 38, § 21.1-2 (1977)).

[212] Id. at 466 (quoting Edwards v. South Carolina, 372 U.S. 229, 235 (1963)).

[213] Id. at 461.

[214] Id. at 471.

[215] 458 U.S. 886 (1982).

[216] Id. at 907.

[217] Id. at 909-10.

[218] Id. at 902. The Court noted that if the speaker’s language had been directly followed by “acts of violence, a substantial question would be presented whether [he] could be held liable for the consequences of that unlawful conduct.” Id. at 928. However, the Court found that certain incidents of violence related to the boycott occurred weeks or months after this speech. Id. As such, the speech did not transcend the bounds of Brandenburg in which the First Amendment guarantees of free speech do not permit a state to limit advocacy of law violation or use of force “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Id. (quoting Brandenburg, 395 U.S. at 447).

[219] Claiborne, 458 U.S. at 910-11.

[220] Id. at 889, 934.

[221] 491 U.S. 397 (1989).

[222] Smolla, supra note 29, at § 5.02[2][c].

[223] Johnson, 491 U.S. at 420.

[224] Id. at 400, 420.

[225] Id. at 414.

[226] 424 U.S. 1 (1976).

[227] Id. at 12-59.

[228] Smolla, supra note 29, at § 9.03[1].

[229] Id.

[230] Buckley, 424 U.S. at 19, 39. The Court rejected the argument that expenditure limits were justified by “the ancillary governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections.” Id. at 48. In rejecting this proposed justification for expenditure limits, the Court noted that “[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Id. at 48-49.

[231] Id. at 19. It remains to be seen whether the Court’s perspective on this issue will hold true in the future, considering the proliferation of free access to internet media on which individuals can post opinions freely, such as “You Tube”, “Facebook”, “MySpace”, and political blogs.

[232] Id. at 26.

[233] Buckley, 442 U.S. at 26.

[234] Id. at 46-47.

[235] 454 U.S. 290, 296 (1981).

[236] Id. at 292 (citing Berkely, Cal., Ordinance 4700-N.S. § 602 (1974)).

[237] Berkely, 454 U.S. at 294.

[238] Buckley, 424 U.S. at 15.

[239] Berkely, 454 U.S. at 299.

[240] Id.

[241] Id. at 298 (quoting Kingsley Int’l Pictures Corp. v. Regents of New York, 360 U.S. 684, 689 (1959)).

[242] 504 U.S. 191 (1992).

[243] Id. at 193.

[244] Id.

[245] Id. at 211.

[246] Id. at 201-02, 211.

[247] 540 U.S. 93 (2003).

[248] Id. at 93.

[249] Id.

[250] Id. at 154-161.

[251] Id.

[252] Id. at 153-154.

[253] Federal Election Commission v. Wisconsin Right to Life, Inc., 2007 U.S. Lexis 8515 at *1.

[254] Id.

[255] Id. at *7-*8.

[256] Id.

[257] Linda Greenhouse & David D. Kirkpatrick, Justices Loosen Ad Restrictions in Campaign Finance Law, The New York Times, available at 2007/06/26/washington/26scotus.html?fta=y (last visited Nov. 13, 2008).

[258] See Buckley, 442 U.S. at 26 (holding that campaign contributions can be limited due to the potential for actual or perceived corruption). It should be noted, however, that neither Buckley nor McConnell stand for the proposition that the government has unfettered discretion to regulate campaign finance in situations where such regulation would serve the governmental interest of preventing corruption. See generally McConnell, 54 U.S. 93; Buckley, 442 U.S. 1.

[259] Lingens v. Austria, 8 Eur. Ct. H.R. 407.

[260] Id.

[261] Kevin Williams, Re-Regulating Free Speech: Privilege, Public Interest and Privacy, available at (last visited Jan. 31, 2009) (citing Lingens v. Austria, 8 Eur. Ct. H.R. 407, para. 42 (1986) and Castells v. Spain, 14 Eur. Ct. H.R. 445, paras. 43 and 46).

[262] Kevin Williams, Re-Regulating Free Speech: Privilege, Public Interest and Privacy, available at (last visited Jan. 31, 2009).

[263] Id.

[264] Id. (quoting Lingens, 8 Eur. Ct. H.R. 407, paras 37 and 42).

[265] Williams, supra note 263, available at .

[266] Id. (citing Thorgeirson v. Iceland, 14 Eur. Ct. H.R. 493 (1992).

[267] 8 Eur. Ct. H.R. 407.

[268] Id.

[269] Id.

[270] Id.

[271] Id.

[272] 8 Eur. Ct. H.R. 407.

[273] Id.

[274] Id.

[275] Id.

[276] Id.

[277] 8 Eur. Ct. H.R. 407.

[278] Id.

[279] Id.

[280] Id.

[281] Id.

[282] Castells v. Spain, 14 Eur. Ct. H.R. 445, available at (last visited Jan. 31, 2009).

[283] Id.

[284] Id.

[285] Id.

[286] Id.

[287] Castells, supra note 284, available at .

[288] Id.

[289] See id.

[290] Id.

[291] Id.

[292] Castells, supra note 284, available at .

[293] Id.

[294] Id.

[295] Id.

[296] Id.

[297] Id.

[298] Castells, supra note 284, available at .

[299] Id.

[300] Clifford A. Jones, Regulating Political Advertising in the EU and USA: A Human Rights Perspective, Journal of Public Affairs, Aug. 1991, available at (last visited Nov. 8, 2008).

[301] Id.

[302] Id.

[303] Id.

[304] Id.

[305] Clifford A. Jones, supra note 301, at .

[306] Id.

[307] Id.

[308] Id.

[309] Id.

[310] Garvey & Schauer, supra note 11, at 335.

[311] 315 U.S. 568 (1942).

[312] Id. at 571-72.

[313] 316 U.S. 52 (1942).

[314] Id. at 54.

[315] See generally Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976); Bigelow v. Virginia, 421 U.S. 809 (1975).

[316] 425 U.S. 748.

[317] Id. at 770.

[318] 447 U.S. 557 (1980).

[319] Id. at 566.

[320] Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989).

[321] Edenfield v. Fane, 507 U.S. 761, 771 (1993).

[322] See generally Hoffman Estates v. Flipside, 455 U.S. 489 (1982).

[323] 517 U.S. 484 (1996).

[324] Id. at 501.

[325] Id.

[326] Id.

[327] Id.

[328] 44 Liquormart, 517 U.S. at 501.

[329] 425 U.S. 748 (1976).

[330] 433 U.S. 350 (1977).

[331] Virginia State Board of Pharmacy, 425 U.S. at 763.

[332] See Steven Shiffrin, The First Amendment and Economic Regulation: Away From a General Theory of the First Amendment, 78 Nw. U.L. Rev. 1212, 1223 (1984).

[333] Jonathan W. Emord, Contrived Distinctions: The Doctrine of Commercial Speech in First Amendment Jurisprudence, Cato Policy Analysis No. 161, Sep. 23, 1991, available at (last visited May 9, 2006).

[334] Id.

[335] Id.

[336] Id.

[337] See id.

[338] See generally 44 Liquormart, 517 U.S. 484; Central Hudson, 447 U.S. 557.

[339] See generally Smolla, supra note 29.

[340] Clifford A. Jones, supra note 301, at .

[341] Id.

[342] Professor Sionadh Douglas-Scott, lecture at the Salzburg Legal Institute (July 12, 2005).

[343] OVEY & White, supra note 163, at 287.

[344] Id.

[345] Id.

[346] Freedom of Expression in Europe, supra note 64, at 9, 49. For a full discussion of the margin of appreciation doctrine, see supra notes

169-174 and accompanying text.

[347] Demuth v. Switzerland, 38 Eur. Ct. H.R. 20 (2004).

[348] 12 Eur. Ct. H.R. 161 (1989); see also Freedom of Expression in Europe, supra note 64, at 49.

[349] Id.

[350] Id.

[351] Id.

[352] Id.

[353] Freedom of Expression in Europe, supra note 64, at 49.

[354] Coca v. Spain, 18 Eur. Ct. H.R. (ser.A).

[355] Id. at 3.

[356] Id. at 12-13.

[357] Id. at 24.

[358] Id.

[359] See id.

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