Hate Speech and the European Court of Human Rights: The Low Threshold Hatred Paradigm—When “Offence” Is Enough to Restrict Speech
In this third post in The Volokh Conspiracy guest series, I examine a critical issue in the European Court of Human Rights’ (ECtHR) hate speech jurisprudence: its embrace of what I term the “low threshold hatred paradigm.” Under this approach, expressions that offend, insult, ridicule, or defame minority groups are routinely held to fall outside the protection of Article 10 of the European Convention on Human Rights (ECHR). This, I argue, has diluted the robust speech protections previously associated with the ECtHR’s celebrated precedent in Handyside v The United Kingdom (1976), a landmark case on the freedom of expression and its boundaries. As a result, the ECtHR’s jurisprudence increasingly reflects not a balancing of rights, but an asymmetric favoring of state-defined “tolerance” over pluralistic expression. This approach risks insulating majoritarian or institutional viewpoints from critique under the guise of promoting social cohesion.
From allowing speech that may “shock, offend, disturb” to prohibiting offense, insult and ridicule
The ECtHR famously held in Handyside that Article 10 on the right to freedom of expression protects not only inoffensive speech, but also that which “offends, shocks or disturbs.” In theory, this forms the backbone of European free speech protection. In practice, however, the ECtHR’s hate speech rulings suggest a growing willingness to subordinate the Handyside principles to vague concepts such as the values and spirit of the Convention, particularly when the speech in question targets protected characteristics such as religion, ethnicity, or sexual orientation.
The paradigmatic shift can be traced most clearly to Féret v Belgium (2009), where a far-right member of parliament was criminally convicted for distributing anti-immigration leaflets during an election campaign. The ECtHR upheld the conviction, holding that statements such as “Stop the Islamization of Belgium,” were likely to arouse feelings of “distrust, rejection or hatred” and thus justified interference. In a blistering dissent, Judge András Sajó warned that the majority had abandoned the foundational principle that speech must be protected especially “when we face ideas that we abhor or despise.” He cautioned that “humans, including judges, are inclined to label positions with which they disagree as unacceptable and therefore beyond the realm of protected expression.” According to Judge Sajó, the Féret majority treated the public as susceptible “nitwits,” incapable of resisting emotional manipulation. This marked the emergence of a paternalistic framework: citizens need protection not just from direct harm, but from exposure to ideas the ECtHR deems offensive.
The “Féret doctrine” spreads: Le Pen, Zemmour and beyond
In the years since Féret, the ECtHR has cited and silently applied its logic across a range of cases. In Le Pen v France (2010), the ECtHR dismissed, without a full Article 10
Article from Reason.com
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