Keck on The Distinctive Pathologies of U.S. and European Approaches to Free Speech @tmksyracuse

Thomas M. Keck, Syracuse University Maxwell School of Citizenship and Public Affairs, has published The Distinctive Pathologies of U.S. and European Approaches to Free Speech. Here is the abstract.

This paper explores the distinctive pathologies of U.S. and European approaches to free speech via comparison of some key features of the U.S. Supreme Court’s First Amendment doctrine and the European Court of Human Rights (ECtHR) caselaw applying Article 10 of the European Convention on Human Rights. On the U.S. side, modern First Amendment law has effectively guarded against state censorship, particularly viewpoint-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 over-zealous mandates for content-based private censorship. Given the harms associated with some aspects of U.S. and European free speech law, civil libertarians are left with the options of picking their poison or bridging the divide.

Download the article from SSRN at the link.