Freedom of Expression and the Advocacy of Violence: Which Test Should the European Court of Human Rights Adopt?

Abstract

This article examines the European Court of Human Rights’ violent advocacy jurisprudence. It observes that, since the decision in Leroy v France was delivered in October 2008, there has emerged some confusion concerning what the applicable test is in cases where it is alleged that a member state’s proscription of such speech amounts to a breach of Article 10 of the European Convention on Human Rights. In particular, there has been growing support in the Strasbourg case law for tests that are similar to the U.S. Supreme Court’s ‘clear and present danger’ standard. The argument presented here is that the European Court should adopt a test under which there is but one enquiry: ‘did the impugned speech create a real risk of violence?’ However, in answering that question, the Court, in every such case, should consider five further matters: ‘did the speech create an imminent risk of harm?’; ‘did the applicant intend to cause violence or foresee the possibility that his/her speech would cause violence?’; ‘did he/she occupy a position of influence in society?’; ‘was the advocacy disseminated widely?’; and (where applicable) ‘did the speech occur close to the ‘centre of violence’?’ If faithfully applied, this test would achieve a proper balance between, on one hand, protecting the community from violence, and, on the other, preventing states from placing unnecessary restrictions on those who impart and receive information relevant to political and other decision-making. That is, it would ensure that the Court upholds only those restrictions on violent advocacy that fulfill a ‘pressing social need.’

Keywords: Freedom of expression, European Court of Human Rights, advocacy of violence

JEL Classification: K10, K30, K33