Document Type
Article
Date
9-30-2022
Keywords
free speech, free expression, freedom of speech, freedom of expression, U.S. Supreme Court, European Court of Human Rights, First Amendment, Article 10, social media, campaign finance regulation
Disciplines
Political Science
Description/Abstract
This paper explores the distinctive pathologies of free expression jurisprudence at the U.S. Supreme Court and European Court of Human Rights (ECtHR). On the U.S. side, modern First Amendment law has effectively guarded against state censorship, particularly content-based censorship, and has cleared space for a diverse array of private speech platforms to operate in the marketplace of ideas. But First Amendment law’s single-minded focus on state suppression leads it to over-police certain state actions whose threats to free expression values seem minimal and to under-police certain private actions whose threats to free expression values seem substantial. On the European side, ECtHR Art. 10 doctrine maintains more space for European states to regulate speech to correct market failures and ameliorate inequalities in private power, but tends to impose insufficient limits on content-based state censorship and sometimes overzealous mandates for content-based private censorship. Given the harms associated with some aspects of First Amendment and ECtHR free speech law, civil libertarians are left with the options of picking their poison or bridging the divide.
Recommended Citation
Keck, Thomas, "The Distinctive Pathologies of Free Speech Jurisprudence at the U.S. Supreme Court and European Court of Human Rights" (2022). Political Science - All Scholarship. 5.
https://surface.syr.edu/psc/5
Creative Commons License
This work is licensed under a Creative Commons Attribution 4.0 International License.
