The distinctive pathologies of free speech jurisprudence at the US Supreme Court and the European Court of Human Rights

Abstract This article explores the distinctive pathologies of free expression jurisprudence at the Supreme Court of the United States and the European Court of Human Rights (ECtHR). On the United States side, modern First Amendment law has effectively guarded against state censorship, particularly content-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, article 10 ECHR doctrine maintains more space for European states to regulate speech in order to correct market failures and ameliorate inequalities in private power, but it tends to impose insufficient limits on content-based state censorship and sometimes mandates overzealous forms of content-based private censorship. Given the harms associated with some aspects of both First Amendment and ECtHR free speech law, civil libertarians are left with the options of picking their poison or attempting to bridge the divide.