Paradox of European speech legislation

During his first visit to Europe as US Vice-President, JD Vance used the stage of the 61st annual Munich Security Conference in February 2025 to raise alarm about what he described as the erosion of democratic values on the continent. Addressing leaders from America’s closest allies, he placed particular emphasis on freedom of speech, warning the “old world” about laws and restrictions that he argued undermine open expression.

The remarks sparked a diplomatic shockwave. German Defence Minister Boris Pistorius quickly pushed back on many of Vance’s claims, setting off a public debate that, as the publication UnHerd observes, has reminded many of the deep divide between American and European understandings of free speech.

According to the publication's analysis, the United States has moved closer than any other country toward an almost absolute model of free speech. The First Amendment to the US Constitution provides that “Congress shall make no law… abridging the freedom of speech.” US courts have long interpreted this as applying to state legislatures as well, with only a narrow set of exceptions recognised: incitement to imminent violence, obscenity, defamation, child pornography and fraud.

Europe, however, has developed a very different framework, the piece notes. While freedom of expression is protected, it is not treated as unconditional. The article highlights that while Article 10 of the European Convention on Human Rights guarantees free expression, it simultaneously allows for a wide range of limitations, including for reasons of national security, public safety, protection of health or morals, safeguarding the reputation of others, or preserving judicial impartiality.

Britain illustrates how extensive these exceptions can become. As the article notes, the list of restricted speech categories continually expands — including speech that discloses secret intelligence, prejudices legal proceedings, supports banned terrorist organisations, constitutes hate speech, or is deemed “grossly offensive” when transmitted electronically. Most of these restrictions are tied to maintaining public order and social cohesion.

Other European countries go further still. In Germany, Austria and Belgium, for example, denying, trivialising or approving of the Holocaust is a criminal offence. Spain, France and Switzerland criminalise questioning the gravity of any recognised crime against humanity, while many nations ban the public display of the swastika. In Latvia and Lithuania, such bans also cover Soviet symbols, including the hammer and sickle.

UnHerd’s article raises the question first articulated by George Orwell: “free speech is worthless unless it extends to things that people do not want to hear.” It argues that the crucial issue is where to draw the line. The publication outlines several reasons for upholding robust free expression. One is that restrictions infringe on personal autonomy and encourage an intolerant, authoritarian environment that suppresses creativity and dissent.

A second is that democracy relies fundamentally on the open exchange of ideas, diversity of opinion and the free flow of information.

The third — described as the most fundamental — is the belief that no individual or institution possesses a monopoly on truth.

"Knowledge advances by testing conflicting arguments, not by suppressing them. Understanding increases by exposure to uncomfortable truths. In a world of free expression, some of what people say will certainly be wrong, hurtful or even objectively harmful. But the principle which we would have to accept in order to justify censoring these statements is more damaging than the statements themselves," the article states.

For these reasons, the publication argues that counter-speech — rational rebuttal rather than suppression — is the most effective response to misleading or harmful statements. It acknowledges that counter-speech is imperfect, especially in an online environment shaped by algorithms that reinforce existing biases. Yet it maintains that open debate remains a better safeguard than censorship.

The article concludes by recalling that as history shows, what was once the “authorised consensus” — such as the belief that the sun revolved around the earth — was overturned not by silencing dissent but by allowing it. The condemnation of Galileo serves as a reminder of the dangers of suppressing unorthodox ideas.

By Nazrin Sadigova