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]