Re-opening the Door to the First Amendment

Over the past half century, the European Court of Human Rights and other core European institutions have progressively developed a set of basic principles to govern media law across the continent. Through key court decisions and treaty changes, these principles have also been constitutionalised across the divide between European economic and human rights law and knitted together through concepts of necessity and proportionality. As a consequence, the once singular European Convention on Human Rights (ECHR) stands at the apex of a grand accumulation of European Union and Council of Europe instruments, which include not least the EU’s own Charter of Fundamental Rights. This body of law has moreover become familiar not just to European newspaper and broadcast editors, but also to online media providers based within and beyond Europe’s territorial boundaries.This is undoubtedly a major achievement for the European project. Yet something profoundly important has been lost in the process. Where European legislators and judges might once have easily entered into an open discourse on the subject of freedom of expression with their American counterparts, there are now insurmountable barriers to this exchange. There are not only deep differences on key issues of substance, such as the proper limits for offensive expression in public places, but also on the principles of constitutional review. In short, there is a rift over freedom of expression at the heart of the liberal democratic world that resonates in all democratic states, although it is probably most acutely felt in the common law sphere.