Comparative Jurisprudence: Freedom of Expr

ession
• 22. Paragraph 3 lays down specific conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions
must be “provided by law”; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they
must conform to the strict tests of necessity and proportionality. 42Restrictions are not allowed on grounds not specified in paragraph 3,
even if such grounds would justify restrictions to other rights protected in the Covenant. Restrictions must be applied only for those
purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.

• The first of the legitimate grounds for restriction listed in paragraph 3 is that of respect for the rights or reputations of others. The term
“rights” includes human rights as recognized in the Covenant and more generally in international human rights law. For example, it may be
legitimate to restrict freedom of expression in order to protect the right to vote under article 25, as well as rights article under 17 (see para.
37).59 Such restrictions must be constructed with care: while it may be permissible to protect voters from forms of expression that
constitute intimidation or coercion, such restrictions must not impede political debate, including, for example, calls for the boycotting of a
non-compulsory vote. 60 The term “others” relates to other persons individually or as members of a community. 61 Thus, it may, for
instance, refer to individual members of a community defined by its religious faith62 or ethnicity.63 29. The second legitimate ground is that
of protection of national security or of public order (ordre public), or of public health or morals. (General Comment 19)
Define Hate Speech
What About When So-Called Hate Speech is
Part of Political Speech?
Define Obscenity
 Expression in the U.S.
Amendment I
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances.
 Freedom of Expression

Content Neutral: Time, Place and

Content Based Manner Restrictions
Strict Scrutiny Intermediate Scrutiny

1. Compelling Government 1. Important Government a

Reason (extremely high reason
standard)
2. Narrowly tailored
2. Least restrictive approach
European Freedom of Expression
 Elements that Must be Proven to Infringe
FoE in Europe

1. Prescribed by law
2. Legitimate Aim according to the article (look at section 2 of Article
10)
3. Democratic necessity through margin of appreciation /
proportionality.
 U.S. Constitution v. The European
Convention
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
Individual v. Collective Good
 Notions of Liberty in Society
“The only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to
others.” J.S. Mill, On Liberty

“Liberty consists in the freedom to do everything which injures no one

else” Declaration of the Rights of Man and of the Citizen

“The right to swing my fist ends where the other man's nose
begins.” Oliver Wendell Holmes
Defending Speech
 PETA Deutschland v. Germany
(2012): Political Speech v. Hate Speech
• Question Presented: Has Germany violated the freedom of expression of PETA?

• Facts: Animal rights campaign of images of animals in mass stocks next to prisoners in Nazi concentration
campus. Aimed at ending the suffering of animals. Posters banned by German Courts.

• Law: Freedom of Expression under the European Convention

• Procedural History: German Courts to ECHR

• A (Analysis): 1)Proscribed by law? Yes 2) The legitimate aim was to protect the rights and reputations of
others. 3) Was there a democratic necessity (proportionality)? Court says yes, taking into account Germany
´s history.

• Holding: Germany
German Legislation
PETA v. Germany Photo
Democratic Necessity
 Judgment

Paras. 47, 48 & 49

Council of Europe Definition of Hate Speech

“All forms of expression which spread, incite, promote or justify racial

hatred, xenophobia, anti-Semitism or other forms of hatred based on
intolerance.”

U.S. Supreme Court Political Speech:

“…politics, nationalism, religion, or other matters of opinion…”

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)
Pastor v. Germany (2019)
Margin of Appreciation
Margin of Appreciation
Banning Pro Palesintian Protests in France?
 Practice Question 1
In an interview on a Spanish television show, a journalist angry about the
government´s handling of the COVID-19 crisis, says the following:

I really hope that the President of Spain contracts the COVID virus and gets violently
ill. That way he´ll know what it´s like to have the virus and perhaps will start to show
more compassion to those also suffering from COVID. I also hope his spoiled children
get the virus. If anyone has the virus, I call on you to please cough on the President
and his family so that we make sure he gets sick.

The Prosecutor of Spain opens a criminal investigation against Mr. Martinez, the
journalist who made these comments. He´s eventually convicted under Spanish
laws. If the case goes to the European Court of Human Rights, how should it rule?
 Practice Question 2
Mike manufactures and sends over cell/mobile messaging a number of messages about
COVID 19, such as that COVID can be cured by drinking hot water, that cumin powder
mixed with ginger kills the virus, and that the virus was manufactured by governments.
He also posts a video of a discredited scientist talking about “plandemics,” part of a plan
by global elites such as Bill Gates to have everyone implanted with tracking devices that
they´ll never be able to remove. Mike is arrested under a recently passed law in Spain,
which reads as follows:

The manufacturing and/or spreading of misinformation related to public health

emergencies, either verbally or through written form, is punishable with a fine of up to
5,000 USD. (Spanish Penal Code 19-2019)

How should the European Court rule?

Regulating Disinformation
 Norwood v. UK
• Question Presented: Violation of Freedom of Expression by the UK?

• Facts: The poster in question in the present case contained a photograph of the Twin Towers in
flame, the words “Islam out of Britain – Protect the British People” and a symbol of a crescent and
star in a prohibition sign.

• Law: Freedom of Expression under the European Convention

• Procedural History: UK Courts to ECHR

• A (Analysis): See next slides

• Holding: UK
Article 17
Practice Question: Hate Speech
Spain has attempted to “heal old wounds” from its civil war and 30 plus year dictatorship
under Franco. Under legislation titled “The Bringing Society Together Bill,” Spain criminalizes
the “apology or justification of any of the crimes committed in the name of Franco, the Civil
War and/or the nationalistic movement.”

Bob Smith is on vacation with his wife and children in Madrid when he sees a small rally in
support of Franco. Immediately, Bob´s inner fascist flies out like the Concord crossing the
Atlantic, and he joins the rally. He begins to yell (in Spanish which he learned in middle
school and now translated into English) “Franco was right. Kill, kill, kill. More mass graves,
more mass graves. Kill the fucking lefties!” His family is mortified. Back in Vermont (a state in
the U.S.), Bob was considering changing his name to Karl Marx and becoming a vegan. He
loves muesli with organic yogurt straight from the farms. Bob is arrested by the police and
charged under the criminal section of this new bill. He´s sentenced to pay a 5,000 Euro fine,
which is later upheld by the Spanish Supreme Court. How should the European Court rule?
 Questions for Discussion?

1. Why (from a historical perspective) does Europe take such a narrow

approach to limiting freedom of expression?

2. Are there any consequences to such limitations, such as what I

discussed in the Isabel Medina article?
Freedom of Expression: Double Standard
Freedom of Expression Under Attack?
Why Such Respect for Freedom of Expression in U.S. Common Law?
 Expression in the U.S.
Amendment I
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances.
Hate Crime Statistics

Dept of
Justice
Hate Crime Statistics
Fighting Words: Brandenburg v. Ohio (1969)
– inciting speech
• Question Presented: Is the advocating of violent activities punishable?

• Facts: A KKK rally in Ohio, recorded by a journalist, in which they yelled derogatory terms at
African Americans and Jewish people.

• Law: First Amendment

• Procedural History: SC

• A (Analysis): Must be likely to incite ”imminent and lawless action.” 1) speech can be prohibited if
it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or
produce such action.”
• Holding: For the petitioner.
 Freedom of Expression

Content Neutral: Time, Place and

Content Based Manner Restrictions
Strict Scrutiny Intermediate Scrutiny

1. Compelling Government 1. Important Government a

Reason (extremely high reason
standard)
2. Narrowly tailored
2. Least restrictive approach
 Virginia v. Black (2003) –hate speech
• Question Presented: Does the Virginia statute which prohibits cross burning with automatic intent to intimidate violate the
first amendment?

• Facts: Barry Black, Richard Elliott, and Jonathan O'Mara were convicted separately of violating a Virginia statute that makes it a
felony "for any person..., with the intent of intimidating any person or group..., to burn...a cross on the property of another, a
highway or other public place," and specifies that "any such burning...shall be prima facie evidence of an intent to intimidate a
person or group."

• Law: First Amendment

• Procedural History: SC

• A (Analysis): Cross burning can be prohibited WHEN it´s done with the intent to discriminate.
• The hallmark of the protection of free speech is to allow "free trade in ideas"-even ideas that the overwhelming
majority of people might find distasteful or discomforting. Abrams v. United States, 250 U. S. 616, 630 (1919)

• Holding: For the petitioner.

 Snyder v. Phelps – Content Based
• Question Presented: Does the first amendment protect the church from liability?

• Facts: See video

• Law: First Amendment

• Procedural History: SC

• A (Analysis): “The First Amendment reflects a profound national committment to the principle that debate on
public issues should be uninhibited, robust and wide open. Speech concerning public affairs is more than self-
expression; it´s the essence of self-government” (Garrison v. Louisiana). The content of Westboro signs plainly
relates to broad issues of interest to society at large, rather than matters of “purely private concern.” The
matters highlighted here are matters of “public concern.”

• Holding: for Phelps

Schenk v. Pro Choice Network of Western NY (1997) – Time, Place and Manner
Restrictions

• Question Presented: Can abortion protestors be restricted from staging blockages or other disruptive
activities? Do the buffer zones violate freedom of expression?

• Facts: Prohibition on protestors creating fixed buffer zones (15 feet of entrances, driveways, etc.) and floating
buffer zones within 15 feet of people.

• Law: First Amendment

• Procedural History: SC

• A (Analysis): Fixed buffer zones were legal because they served an important government interest to prevent
streets and driveways from being blocked, the free movement of people, etc. Floating buffer zones were not
because they created too much of a restriction on freedom of expression, stifling the exchange of ideas. A

• Holding: Schenk
 Alex
Jones
Case
(2022)
Should Social Media be Allowed to Restrict
Expression?
The Cancel Culture as Freedom of Speech: Is
this the Solution?
 Justice Brandeis

“Moreover, even imminent danger cannot justify resort to prohibition

of these functions essential to effective democracy, unless the evil
apprehended is relatively serious.”

274 U.S. at 377 (Brandeis, J., concurring).

 Areas of Prohibited Speech
U.S.
• Defamation
• Fighting words / threats
• National security secrets
• Obscenity / child pornography
• Language that incites

EUROPE

• All of the above

• Hate speech
Obscenity
 Miller v. California (1973)
• Facts: Miller does a mass mailing to advertise the sale of adult material. Mailing arrived to someone who
called the police. Arrested on obscenity charges.

• Question: Is obscenity protected under the first amendment?

• Verdict: No, but “obscenity” definition is diluted.

• Past Standard: utterly without redeeming social value (Memoirs v. Mass.).

• Analysis: (a) whether 'the average person, applying contemporary community standards' would find that the
work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the
work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
 California Obscenity Law

"Every person who knowingly sends or causes to be sent, or brings or causes to be

brought, into this state for sale or distribution, or in this state possesses, prepares,
publishes, produces, or prints, with intent to distribute or to exhibit to others, or
who offers to distribute, distributes, or exhibits to others, any obscene matter is for
a first offense, guilty of a misdemeanor.”
Miller v. California
 City of Cincinnati v. Contemporary Arts Center
57 Ohio Misc.2d 9, 566 N.E.2d 207, Ohio Mun. 1990

Turned on art experts, who called Mapplethorpe´s : “a brilliant artist," with

"symmetry" and "classic proportions.”
 Handyside v. UK (1976)
• Facts. Richard Handyside published the rights to publish “The Little Red School Book,” which
contained a section titled “Sex.” Sample copies and advertisements sent out. Prosecuted under
Public Obscenity Law.
The Court´s Reasoning
HANDYSIDE CON´T.

NO VIOLATION
 Other Cases (1984)
• Muller & Others v. Switzerland: Having inspected the original paintings, it did not find unreasonable the view
taken by the Swiss courts that those paintings, with their emphasis on sexuality in some of its crudest forms,
were “liable grossly to offend the sense of sexual propriety of persons of ordinary sensitivity”’ and that,
given the margin of appreciation left to contracting states, the Swiss courts were entitled to consider it
necessary in a democratic society to imposed a fine upon the applicants to meet the legitimate aim of
protecting morals. (European Court of HR Reporter).
Paintings
Muller Dissent
 Practice Question
Two men decide to make a homemade pornographic movie dressed like Donald Trump and Vladimir Putin of Russia. They
have sex and urinate in each other´s mouths, and the person dressed like Donald Trump shouts out quotes from the real
Donald Trump, such as “Russia respects us more than ever.” He would also occasionally sing a slightly altered version of
Marvin Gaye´s famous song, Sexual Healing: “When I get that feeling, Vladimir, I want some … sexual healing.” “Putin”
laughs uncontrollably each time another quote is said or a song is sung.

After they finish filming, they upload the movie to a pornographic website in North Dakota and it receives over 100,000
views within 5 minutes. The local prosecutor, hearing about this video from his children, decides to arrest both men for
producing obscene material. The individuals are convicted, and they now appeal up through the U.S. Supreme Court. How
should it rule?

Same set of facts, but this time it involves someone dressed as Boris Johnson engaging in sex acts (similar to those
discussed above) with someone dressed as Queen Elizabeth (wearing only fake Crown Jewels), Winston Churchill (wearing
only a black bowtie and hat) and Adolf Hitler (wearing a Swastika on his thong underwear and occasionally giving a Sig
Heil). “Winston,” one of the great communicators in modern history, occasionally throws out some quotes, such as when
the actors become tired on the set, telling them in a stately British accent, “it is the courage to continue to act that counts”
to which “Queen Elizabeth” replies, “Good memories are our second chance at happiness.” How would the European Court
of Human Rights rule on the appeal of this obscenity conviction against the U.K.?
International Covenant on Civil and Political Rights: Freedom of Religion
General Comment Freedom of Religion –
Free Exercise
 U.S. Constitution
Amendment I
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances.
Why So Worried About the Religion?
Religion in American Life
Religion in the United States
 Freedom of Religion:
Free Exercise
Content Neutral for General
Content Based for Specific Targeting Applicability
Strict Scrutiny Intermediate Scrutiny
 Church of the Lukumi Babalu Aye v. City of
Hialeah (1993)
• Question Presented: Did the prohibition on animal sacrifice prohibit the First Amendment clause on freedom of exercise?

• Facts: The City of Hialeah passed an ordinance against religion sacrifice of animals except in the case of state licensed
activities. The lower courts rule that the law is content neutral and apply intermediate scrutiny, successfully demonstrating
that the prohibition serves an important government objective, to prohibit cruelty and prevent the spread of disease.

• Law: First Amendment

• Procedural History: SC

• A (Analysis): Based on an analysis of the legislative transcripts and other documents, the Court finds that the law is not
neutral. Based on an analysis of who the law would impact, they find that the law seeks to infringe specifically on the
practice of this Church. The Court applies strict scrutiny and says that the government does not demonstrate that such a
law is narrowly tailored. There are other ways to achieve this goal without having to infringe on their rights.

• Holding: For the Church.

 Employment Division of Oregon v. Smith
(1990)
• Question Presented: Can individuals be denied federal unemployment benefits for using illegal drugs for religious
purposes?

• Facts: Two native Americans worked for a drug rehabilitation service. They took peyote, a powerful hallucinogen used
during religious ceremonies as part of a native American organization. They were fired after they tested positive for the
substance, which led to the denial of unemployment benefits. They sued based on a violation of their first amendment right
to freely exercise their religion.

• Law: First amendment free exercise clause.

• Procedural History: SC

• A (Analysis):Religious beliefs do not excuse people from compliance with valid, non-discriminatory laws. Making such an
exception would, would “open the prospect of constitutionally required exemptions from civic obligations of almost every
conceivable kind.”

• Holding: For the State.

Yoder v. Wisconsin
 Locke v. Davey (2004)
• Question Presented: Can a scholarship be used by a student to study for a degree in religion?

• Facts: Student received a government scholarship to study, but it excluded the study of devotional theology.
Does this violate his free exercise right?

• Law: Free excercise

• Procedural History: SC

• A (Analysis): Intermediate scrutiny. The Court says that the ”state´s interest in not funding the pursuit of
devotional degrees is substantial and exclusion of such funding places a relatively minor burden…”
“No animus to religión”

• Holding: For the State.

Reasonable Accommodation of Private
Employers

JDsupra
Pew Research
Religion in Europe
European Convention
 Elements that Must be Proven to Infringe
FoR in Europe

1. Prescribed by law
2. Legitimate Aim according to the article (look at section 2 of Article
10)
3. Democratic necessity through margin of appreciation /
proportionality.
Colorado Baker Case
Dogru v. France (2008)
EWEIDA AND OTHERS v. THE UNITED
KINGDOM (2013)

• A BA flight attendant who wants to wear a cross and a registrar who

doesn´t want to give marriage certificates?
• A marriage counselor who doesn´t want to provide counseling to
same sex couples, who is then fired from his company and denied
employment benefits?
EWEIDA AND OTHERS v. THE UNITED KINGDOM
 Practice Question – Freedom of Religion in
Europe
France passes a law which prohibits members of the military to pray
while on duty (regardless of the religion). The law specifically states
that anyone who prays openly will be subject to disciplinary
proceedings. A Muslim Lieutenant is found in his barracks praying
(during his free time). He´s disciplined with a four-week suspension and
without pay. How should the European Court of Human Rights rule on a
lawsuit filed against France?
 Question 1

A religious group decides to parade through the streets of New York

City at 3:00am. In total, approximately 80 of them skip through the
streets singing religious songs and throwing candy. Each time they get
to the word “God” in their songs, they yell it as loud as possible.
Someone in the neighborhood calls the police and, after multiple
warnings to keep the volume down, the individuals are arrested for
causing a public disturbance. They sue the NYPD for a violation of their
rights under the U.S. Constitution. What is the violation and how
should the Court rule?
 Question 2

Can religious groups be exempted from offering health insurance that

includes coverage for birth control?
 Question 3

A public school in New York City rents out rooms on the weekend in order to use to
help students with the cost of books and school supplies. The rooms are usually fully
on the weekends, with groups such as, People for the Ethical Treatment of Hamsters
and Lovers of the Donald (Trump), paying 200 dollars per morning to rent a room to
discuss these issues. A recently formed group called Christians for Christians
contacts the school to ask about renting the room. They want to meet every
Saturday to discuss the Bible and organize religious activities. The Director of the
school decides that since it´s a religious organization, they should get a discount on
the room and instead pay 190 dollars per morning, a very slight discount. The
school is sued based on a Constitutional violation. Please identify the violation and
discuss under Common Law how the Court should rule on this matter.
 State Sponsored Religion
General Comment on Freedom of Religion
 Establishment Clause
Amendment I

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances.
 Everson v. Board of Education (1947)
Are reimbursements for parents who put their children on public buses
which take them to public and private schools, including religion
schools, a violation of the Establishment Clause?

No, as long as provided to all students.

 Lemon v. Kurtzman (1971)

Establishment Clause
1. The statute must have a secular purpose
2. Its principle or primary effect must be one that neither advances nor
inhibits religion
3. The law must not foster excessive government entanglement with
religion.
 Santa Fe School District v. Doe (2000)
• Question Presented: Does it violate the establishment clause to allow student – led prayer over the loudspeaker
before the football game?

• Facts: Prior to a school football game, a student chosen chaplain led a prayer over the loud speaker of the high school.
The suit was filed by a Mormon student and a Catholic. The school argues that football games are not mandatory and
not much of the school shows up.

• Law: Establishment clause with free exercise clause

• Procedural History: SC

• A (Analysis): Ruled against the school. The Court said that the fact that school property was used, gave the image of
endorsement. Too much intersection between the school and the prayer. The Court sites to the Lee case in which they
said it was not permissible for a Rabbi to say a prayer at a school graduation.

• Holding: For the student petitioners.

 Locke v. Davey (2004)
• Question Presented: Can a scholarship be used by a student to study for a degree in religion?

• Facts: Student received a government scholarship to study, but it excluded the study of devotional
theology. Does this violate his free exercise right?

• Law: Free excercise

• Procedural History: SC

• A (Analysis): Intermediate scrutiny. The Court says that the ”state´s interest in not funding the pursuit
of devotional degrees is substantial and exclusion of such funding places a relatively minor burden…”

• Holding: For the State.

McCreary County v. American Civil Liberties Union of Kentucky (2005)

• Question Presented: Did the hanging of the 10 Commandments have a secular purpose?

• Facts: King James Version of the 10 Commandments hung in a courthouse. The Chief Judge, in a ceremony hanging
them, said they were “goo rules to live by…and a creed of ethics.” A Pastor presided over the ceremony. The Judge
makes an effort to say they´re secular in purpose and hangs them with the Declaration of Independence and other
founding, secular documents.

• Law: First Amendment

• Procedural History: SC

• A (Analysis): The secular purpose must be genuine, not a sham, and not merely secondary to a religion objective.
When courts are unable to discern an arguably secular purpose, this Court should normally hesitate to find one.

• Holding: Violation of the first amendment

 Commandments in the Court

Can the 10 Commandments be at the court?

Van Orden v. Perry
 Van Orden v. Perry (2005)
• Question Presented: Whether the Establishment Clause of the First Amendment allows the display of a monument
inscribed with the 10 Commandments on the Texas State Capitol Grounds.

• Facts: Thomas Van Orden sued Texas in federal district court, arguing a Ten Commandments monument on the grounds
of the state capitol building represented an unconstitutional government endorsement of religion. Orden argued this
violated the First Amendment's establishment clause, which prohibits the government from passing laws "respecting an
establishment of religion. The Commandments are on government propery outside of the Texas State Capitol. The statue
was placed there in a ceremony presided over by Texas Senators. There´s an acknowledgement that the Commandments
are part of the Nation´s heritage and an acknowledgment of such can be found in court houses and other government
buildings.
• Procedural History: SC

• A (Analysis): The Court said that the Texas monument is part of the nation's tradition of recognizing the Ten
Commandments' historical meaning. Though the Commandments are religious, "simply having religious content or
promoting a message consistent with a religious doctrine does not run afoul of the establishment clause.” It goes on to
say that “the 10 Commandments is a far more passive use of those texts than in other cases that have come to the Court.
• Holding: Violation of the first amendment
Kennedy v. Bremeton School District (2022)
Kennedy (2022)
Kennedy Dissent
 Historical Cases
Marsh v. Chambers (1983)

Opening a legislative session with prayer?

“… it is simply a tolerable acknowledgment of beliefs widely held

among the people of this country.”
 Other cases…
• Nativity set in a public place? (Lynch v. Donnelly).

• Absolute and unqualified right not to work on the sabbath? (Thornton

v. Caldor).
 Lautsi v. Italy (2011)

“ [Europe] is special in that it guarantees at the private level both freedom

of religion and freedom from religion, but does not force its various peoples
to disown in its public spaces what for many is an important part of the
history and identity of their states, a part recognized even by those who do
not share the same religion or any religion at all.
Lautsi v. Italy
Lautsi v. Italy
Lautsi v. Italy
Indoctrination in Schools: (Valsamis v.
Greece – 1996)
 Other case law

Requiring the taking of oath on a bible? (Buscarini v. San Marino 1999).