The Volokh Conspiracy

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Free Speech

Journal of Free Speech Law: "Why Freedom of Expression Is Better Protected in Europe Than in the United States,"

by Prof. Thomas Hochmann (Univ. of Paris Nanterre), 2 J. Free Speech L. 63 (2022).


Just published as part of the "Non-Governmental Restrictions on Free Speech" symposium; the abstract (the article is here):

Legal reflection on non-governmental restrictions on free speech runs two risks: the danger of exaggerating these restrictions, and the danger of ignoring them. Non-governmental restrictions are often exaggerated in public discussion, when any vehement criticism is described as a restriction of freedom of expression. However, freedom of expression is not freedom from contradiction. The second danger is to ignore the problem of genuine non-governmental restrictions on free speech through a strict application of the state action doctrine: non-governmental restrictions would simply not be a constitutional issue. The European perspective rejects this view. Where many Americans view free speech as a regulation of governmental motives, Europeans are more attentive to practical outcomes. For a speaker, it might not make a big difference whether an act of censorship comes from the government or from a private actor.

Nevertheless, Europeans also perceive the Constitution primarily as a framework dealing with governmental powers, and the most frequent approach consists in indirectly imposing on private persons the constitutional obligation to respect freedom of expression. This reasoning considers that the government is involved in private restrictions, which are reconceptualized as "GONG restrictions" (government organized non-governmental restrictions). In the end, the European speaker, less protected than her American counterpart against the government, enjoys a greater protection against private actors. This might mean that freedom of expression is better protected in Europe than in the United States.