The free speech tradition in Europe and the United States: a comparative perspective

The European tradition: conditional protection and positive obligations

The European approach to freedom of expression, as reflected in Article 10 of the European Convention on Human Rights (ECHR) and the jurisprudence of the European Court of Human Rights (ECtHR), is characterised by a conditional model: freedom of expression is protected as a fundamental right, but restrictions are permissible where they are prescribed by law, pursue a legitimate aim, and are necessary in a democratic society. Article 10(2) explicitly enumerates legitimate grounds for restriction, including “the prevention of disorder or crime” and “the protection of the rights of others.”

Moreover, the European framework imposes positive obligations on States to protect individuals from hate speech and racial discrimination, derived from Article 14 (prohibition of discrimination) and Article 8 (right to private life) of the ECHR, as well as from international instruments such as ICERD (International Convention on the Elimination of All Forms of Racial Discrimination).

This approach reflects what has been termed “militant democracy” (wehrhafte Demokratie)—the idea that democratic institutions must be empowered to defend themselves against forces that would use democratic freedoms to undermine democracy itself. The concept was developed by the German émigré legal scholar Karl Loewenstein in two seminal articles published in 1937, written in direct response to the failure of the Weimar Republic. This concept has an intellectual connection to Karl Popper’s defence of the “open society.” In The Open Society and Its Enemies (1945), Popper articulated what became known as the “paradox of tolerance”: unlimited tolerance may lead to the destruction of tolerance itself. Popper argued that “we should therefore claim, in the name of tolerance, the right not to tolerate the intolerant” (Popper, 1945, vol. 1, p. 265).

The United States tradition: the First Amendment and near-absolute protection

The United States‘ approach is grounded in the First Amendment to the Constitution, which provides that “Congress shall make no law […] abridging the freedom of speech”. The US Supreme Court has interpreted this provision to afford exceptionally broad protection to expression, including speech that is deeply offensive, hateful, or even intended to incite unlawful action.

The foundational case in this area is Brandenburg v. Ohio, 395 U.S. 444 (1969). In Brandenburg, the Supreme Court overturned the conviction of a Ku Klux Klan leader under an Ohio criminal syndicalism statute. The Court established a stringent test for when speech may be restricted: government may only punish speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (Brandenburg, 395 U.S. at 447). Mere advocacy of violence or abstract calls for unlawful action, even when accompanied by racist and hateful language, is constitutionally protected.

This “imminent lawless action” test represents a high threshold. In practice, it means that hate speech, as such, is not a separate category of unprotected expression under US law. The Supreme Court has consistently struck down attempts to criminalise hate speech, including laws criminalising cross-burning (Virginia v. Black, 538 U.S. 343 (2003)—though the Court upheld enhanced penalties for intimidation as a true threat, 538 U.S. at 359-360) and laws prohibiting offensive or insulting speech (Snyder v. Phelps, 562 U.S. 443 (2011), protecting Westboro Baptist Church protests at military funerals, 562 U.S. at 458-460).

Historical roots, emerging challenges and the possibility of convergence

Naturally, US and European understandings of free speech stem from distinct historical and legal roots. The postwar European framework (shaped by the ECHR), as said above, emphasizes state action against anti‑democratic threats, whereas the US Bill of Rights (1779) emerged before independence, embedding a different baseline. Later jurisprudence matters, but these formative contexts still shape each society’s view of speech and its limits. Additionally, the US common‑law system may offer more structural flexibility than Europe’s civil‑law tradition to reinterpret hate‑speech boundaries and adapt to emerging forms like emojis—a relevant point for ECLIPSE and future comparative work

Despite these deep doctrinal differences, however, recent developments suggest that the US approach may be subject to reconsideration. The rise of social media, algorithmic amplification, and coordinated disinformation campaigns have prompted renewed debate about whether the First Amendment framework adequately addresses contemporary harms.

The case Biden v. Missouri, which came before the US Supreme Court in 2024, raised significant questions about the scope of government engagement with social media platforms. While the Court ultimately held that the Biden administration had likely violated the First Amendment by pressuring platforms to remove content the government deemed misinformation (specifically about COVID-19 and election integrity), the litigation exposed deep fractures among the justices. Moreover, the Court, in the same case, did not foreclose the possibility that certain forms of disinformation—particularly those threatening public health, election integrity, or national security—might justify different constitutional treatment.

While no immediate departure from Brandenburg is likely, the ongoing debates in the US Supreme Court and in academic literature suggest that the US approach to free speech may be in a period of flux. For European policymakers and legal practitioners, this serves as a reminder that constitutional doctrines evolve in response to technological and social change—and that the current European commitment to balancing free expression with other fundamental rights, while distinct from the US model, is not static but subject to ongoing refinement in light of new challenges.

Implications for ECLIPSE

For the ECLIPSE project, the US-Europe comparison is relevant in several respects:

1. Cross-border content: ECLIPSE tools and methodologies must be sensitive to the fact that online content originating in or accessible from the United States may be subject to different legal standards than content originating in the EU.
2. Platform governance: Many major social media platforms are US-based and operate under First Amendment constraints when making content moderation decisions, even for European users.
3. Legal convergence: The Digital Services Act‘s procedural approach to content moderation—emphasising transparency, accountability, and risk assessment rather than direct content bans—represents a model that may have greater international resonance than traditional criminal hate speech laws.