Why Freedom of Expression Is Better Protected in Europe Than in the United States - HAL-SHS - Sciences de l'Homme et de la Société Accéder directement au contenu
Article Dans Une Revue Journal of Free Speech Law Année : 2022

Why Freedom of Expression Is Better Protected in Europe Than in the United States

Thomas Hochmann
  • Fonction : Auteur
  • PersonId : 1043437

Résumé

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.

Domaines

Droit
Fichier non déposé

Dates et versions

halshs-04323270 , version 1 (05-12-2023)

Identifiants

  • HAL Id : halshs-04323270 , version 1

Citer

Thomas Hochmann. Why Freedom of Expression Is Better Protected in Europe Than in the United States. Journal of Free Speech Law, 2022, 2, pp.63-85. ⟨halshs-04323270⟩
18 Consultations
0 Téléchargements

Partager

Gmail Mastodon Facebook X LinkedIn More