This article is taken from the August-September 2025 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £25.
Depressingly few people care about the right to free speech these days. Pressure groups, ranging from uncompromising Islamists through trans activists to Palestinian hardliners, relentlessly demand more and more curbs on our right to say what offends them; experts clamour for the right to censor what we see to save us from what they see as disinformation.
Meanwhile the government, and the police, find this to be just fine. They are only too content to go for the quiet life, give in to demands of this kind and quietly back them with the force of the state. Intellectuals, for their part, are little better. For most of them it’s enough to say, with a shrug, that there’s nothing special about speech, that bad speech causes all sorts of harms and that it’s quite all right to suppress it on that account.
All this means that, having once been a country with a proud indigenous tradition of protecting our right to speak our mind come what may, we now rather shamingly have to import our safeguards from abroad. Notably, this means a disproportionate reliance on Article 10 of the European Convention on Human Rights, which protects free speech.
Unfortunately, as academic Natalie Alkiviadou makes clear in her excellent book Hate Speech and the European Court of Human Rights, this European-style guarantee seriously short-changes us. As she points out with impeccable logic, this is at least partly because of the workings of the ECHR exception for hate speech.
It’s not so much that this exists but rather that the European Court of Human Rights in Strasbourg has so expanded and distended the exception that it now waves through with much too little scrutiny a vast number of speech restrictions imposed by governments who have pressure groups to placate and mavericks to silence.
It didn’t have to be this way. Even assuming that there should be a hate speech exception to the right of free expression in the first place (something not obvious, since the First Amendment in the US does perfectly well without it — but that’s another story), its effect could have been much more narrowly construed. Dr Alkiviadou would by preference have restricted it to extreme cases, such as open Nazi or genocidal propaganda, or to statements likely to give rise quite directly to violence.
Otherwise, she would have liked (as, one suspects, would most readers of The Critic) Strasbourg to say in a muscular way that Article 10 applied and that those who disapproved of others’ controversial speech had to put up or shut up.
It was not to be so, however, as this book tellingly recounts. Strasbourg is spooked by the idea of letting people speak their mind US-style. Tellingly, one of its judges in 2012 let the cat out of the bag when he said that whatever people might think in the US, “today’s Europe cannot afford the luxury of such a vision of the paramount value of free speech”.
Hence, not only has the court said that a tendency to violence is not necessary to trigger the hate exception, it has set a remarkably low threshold for invoking it as an excuse for blocking speech it doesn’t like.
It said in 2009, for example, that it was entirely acceptable to penalise expression that might be “insulting to particular individuals or groups” and so upheld the conviction of a Belgian politician who openly criticised the “Islamisation of Belgium”. Similarly, too, when faced with material suggesting that homosexuality is somehow beyond the moral pale, which was therefore seen as insulting to gay people.
Not that the person insulted need even be alive: in 2019 Strasbourg happily gave the green light to the criminalisation of an Austrian who had given seminars insulting Mohammed, thus in effect condoning the enforcement of widespread blasphemy laws that prohibit mocking or attacking religious symbols.
The list goes on. Article 17 of the ECHR, which excludes from the Convention’s ambit activities that are “aimed at the destruction of any of the rights and freedoms set forth herein”, has been said, somewhat vaguely, to remove protection entirely from anything “incompatible” with ECHR values, “notably tolerance, social peace and non-discrimination”.
The court has thus found no free speech problem with the 2003 prosecution of an Englishman who displayed a poster after 9/11 saying “Islam out of Britain — Protect the British People” or that of a Greek Orthodox priest who in 2015 used strong language to criticise the legalisation of same-sex unions.
At times, Strasbourg can go even further. In an alarming case against Bulgaria four years ago, the prosecution of a politician for what the ECHR judges saw as hate speech against gypsies and others was said to be not only justified under the Convention but actually required by it, as an aspect of protecting the victims’ private life.
In 2023, it enthusiastically endorsed the punishment of French politician Julien Sanchez, mayor of a run-down town in southern France, who had said nothing at all but merely failed to remove complaints that constituents had posted on his website about what they saw as North Africans’ lawless behaviour.
Put bluntly, from reading this book it’s hard to avoid concluding that Strasbourg has morphed from a vigorous protector of free speech to an over-cautious moderator of it. Fifty years ago there were signs that it might be different. In a 1976 case against the UK concerning the mildly pornographic and highly subversive Little Red Schoolbook, it ringingly said that freedom of speech had to apply not only to information or ideas “favourably received or regarded as inoffensive” but also to “those that shock and offend, shock or disturb the state or any sector of the population”.
This is frequently cited as a sign of Strasbourg’s open-mindedness. What is less often pointed out, but made clear by Alkiviadou, is that it is all too frequently followed by a metaphorical “but” and a finding that the free speech restriction in question is entirely justified.
The beauty of this book, which is thoroughly recommended, is twofold. First, whilst written by someone who supports the Strasbourg system in principle, it provides embarrassing chapter and verse as regards the decline of the European Court of Human Rights as a protector of freedom. Secondly, whilst it is an academic law book, don’t let that put you off. It’s readable and layman-friendly, and it will leave you as well informed as (in all probability) you are exasperated.
