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I often heard that the US are somehow exceptional in the freedom of speech that they provide to their citizens via the first amendment. However, I never saw an actual comparison with, say, European countries.

My question is: In which European country, is it illegal (for a citizen of that European country) to publicly state an opinion that in the US would be protected the first amendment?

Is there somewhere a list with such comparison?

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16 Answers 16

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Almost every European nation has a "hate speech" law that makes the use of offensive bigoted words of phrases illegal. The U.S. does not have any such laws, and the First Amendment makes such laws unconstitutional.

The closest the U.S. can get are laws criminalizing "Hate Crimes" which are ordinary crimes which were motivated in part or in whole by the victim's actual or perceived protected class status.

Other specific examples as mentioned in comments, are that Germany has strict laws about advocacy of Nazi ideology. This is completely legal in the United States. Nazi ideology is not popular in the U.S. by any means, but it's allowed to be advocated for because of the strong Freedom of Speech Laws in the United States.

In other regards, while U.S. Law is fairly similar to U.K. Law (you have to get into weeds about the differences), it is way more difficult to sue for defamation in U.S. than in the U.K. For starters, the U.S. has the "Public Person" rule which requires that any defamation about a person who is largely known to the public (politicians and celebrities largely) must prove Actual Malice Or Reckless Disregard for the Truth (I.E. You didn't even do the basic research into the statement) in order to prove defamation. But there's also the matter of the burden of proof. In the U.K. the speaker of the alleged defamation must prove in court that the statement was not defamatory. In the U.S., all legal challenges to are "protected speech" until proven otherwise in a court of law. This means that even with the "Public Person" rule set aside, the statement's original speaker need not prove that their speech is truthful, and the burden's on the accuser of defamation to prove it.

Edit:

Additional Info based on comments, but "Protected Speech" is a legal term used in the U.S. that defines speech that is protected by the First Amendment of the Constitution of the United States as opposed to commercial speech, which is speech used to make advertise or to further commerce and is restricted, and unprotected speech, which is speech that can land one in trouble. While the list of types of speech is long, every form of speech restriction is very very narrowly tailored. "Hate Speech", which would be the utterance of words or phrases that can be offensive to people of a protected class (a characteristic that is beyond the individuals control). "Hate Crimes" are not necessarily spoken during the commission of the crime, but rather can be charged in addition to the crime. Suppose a serial killer was killing people of a certain race, this is not enough for police to go on because most serial killers target victims that meet a physical description (same skin color, same hair color, same gender). Once the killer is captured, police search his apartment and find a manifesto where the killer admits that he is selecting his target because he believes people of this protected class are subhuman and thus his superior nature gives him the right to kill them, this would show that the killings were motivated out of hatred, and thus qualify as a hate crime. The way he phrases this may be purely academic and use in offensive language OR it could be laden with all manner of crass slurs. It doesn't matter... what he said is protected speech but what he did is... well... to quote Guardians of the Galaxy... is "murder... on of the worst crimes of all. So also illegal."

Hate crimes criminalize crimes that are motivated by hatred... they do not criminalize speech that is hateful.

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    "Hate crimes criminalize crimes that are motivated by hatred" sounds redundant. You probably mean something like "Hate crime laws increase punishment for crimes that are motivated by hatred"
    – Caleth
    Aug 2 at 11:16
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    @Caleth: I said what I said. And I agree, hate crimes shouldn't be a thing, and would elect for them to be aggravating factors to be determined on sentencing phase of the trial. But I'm not a policy maker. +
    – hszmv
    Aug 2 at 11:36
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    @Caleth: The reason for them is because when they were passed, Jim Crow laws were a thing and the attitudes behind them would mean Jim Crow states might not convict apply the aggravating nature if they even convict someone. But the Federal Government can charge you for Hate Crimes (In the United States, Double Jeopardy applies only within a Jurisdiction. The Federal Government can try you a second time for the same offense because it is not the State) in order to ensure you do the more jail time.
    – hszmv
    Aug 2 at 11:39
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    "Hate crimes criminalize crimes that are motivated by hatred" - this seems like a very naive assumption, fully trusting that decision-makers always want the best for us, and would never abuse such power, for example turning "hate crimes" into criminalizing whatever opinion the ruling powers want to suppress.
    – vsz
    Aug 3 at 14:45
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    @vsz Hate crimes have nothing to do with opinion but action motivated by opinion. Notably hate crimes in the U.S. are written in such a way that the protected class is identified by categories (such as skin color, ethnicity, gender, sexuality, ect) and not a majority-on-minority offense. For example, a gay person beating up a straight person because they hate straight people would be as much of a hate crime as a straight person beating up a gay person because they hate gay people. The only opinion being forced is it is wrong to victimize someone for some trait they cannot control.
    – hszmv
    Aug 3 at 15:00
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The US believes it's exceptional about freedom of speech

It isn't; it's just different.

For example, a European employer may ban the hijab providing they ban all other visible signs of political, philosophical or religious beliefs. So, no hijab but also no crucifixes, yarmulkes, national flags, MAGA caps, or "I think, therefore I am" T-shirts.

And herein lies the key philosophical difference. U.S. law, following the logic of the Constitution and American legal culture, considers religious freedom a fundamental right that shouldn’t be violated except under exceedingly rare conditions.

In Europe, by contrast, the freedom to believe may be protected, but the freedom to manifest your religion publicly has much less purchase, especially if you’re a Muslim. Left and center-left Europeans are often willing to see the hijab restricted because they see it as sexist and coercive. And right-wingers frequently see the hijab as a symbol of militant Islam and cultural pollution by immigrants.

Europeans value free speech; by some measures more than Americans. In this World Democracy study, the US ranked equal 27th. Of the 26 ahead of it, 19 are European; the other 7 are countries settled by Europeans in the last 500 years: Uruguay, New Zealand, Canada, Argentina, Jamaica, Costa Rica, and Barbados (that's 2 Oceaniac and 5 American by continent for those keeping score - where are the African and Asian nations one wonders).

They just draw the lines differently. For example, in none of those 30 countries would it be legal to shout "Fire!" in a crowded theatre (literally, not in the hypothetical mentioned in the case) and all of them have laws against defamation, however, what counts as defamation varies considerably. All countries have laws against fraud which effectively limits free speech. Perhaps the biggest difference in philosophy surrounds hate speech. In Europe:

Hate speech is an abuse of freedom of expression.

We are free to express ourselves, even to the extent that our opinion may offend, shock or disturb others. But not everything is acceptable as free speech. The moment people start publicly inciting to violence, hostility or discrimination against a group of persons, then this is hate speech not free speech.

In contrast, in the USA:

Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn Islam — or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens — as one is to condemn capitalism or Socialism or Democrats or Republicans.

The European position is in line with International Law; the USA isn't:

Article 20(2) of the ICCPR prohibits national, religious, or racial hatred that incites violence, discrimination, or hostility.

The reason for this difference is cultural and long-standing.

The USA, is a colonist nation, settled by people who, for one reason or another, decided to risk their lives to leave where they were and go where they weren't - such people are, in general, non-conformist. They see free speech as an individual right; a personal right to say what they want. If that includes saying they hate certain minorities (or majorities for that matter), or more precisely, that people should hate those groups, that's OK.

The European nations, on the other hand, spent most of the 20th century (and the 17th, 18th and 19th for that matter) either under the control of repressive authoritarian regimes or directly threatened by them. They see free speech as a bulwark against repression; a collective right to speak out against injustice. Expressing hatred toward minorities is injustice.

These are fundamentally incompatible views. As an illustration, the US Declaration of Independence says:

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In many European nations, the bolded part is illegal hate speech.

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    This entire answer not only fails to answer the question but is purely opinion and largely about the essence of free speech, as opposed to answering the question. It also omits many of the details about free speech across the US and Europe. Aug 3 at 12:46
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    "Exceptional" is a term that in some contexts means "exceptionally good; excellent above the norm"; in other contexts it simply means "an exception; different from the norm." This A seems strongly invested in debunking a claim that USA laws around speech might be excellent/obviously better than the Euro. norm but I'm not sure the original Q. made or suggested or asked about such a claim,; it seems more about the comparative q. about differences, i.e., whether USA speech laws are an exception to the statistical norm, which you acknowledge they are. Aug 3 at 14:22
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    It is indeed legal to literally shout "Fire!" in a crowded theater in the U.S. The owner could ask you to leave or even ban you from returning in the future (just like they could if you were doing anything else disruptive in said theater,) but there's nothing illegal about it. The part at the end about the Declaration is also utterly irrelevant to differences between the U.S. and Europe, as European nations (of which the U.S. was a part until the Declaration) held the same racist/hateful views at the time, as evidenced by hundreds of years of words and actions.
    – reirab
    Aug 3 at 18:40
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    With all due respect, this answer is probably best deleted at this point, as almost every bit of it is either incorrect or irrelevant to the question that was actually asked (or both.)
    – reirab
    Aug 3 at 18:44
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    The last I checked, European hate speech laws were used to do things like arrest 15 year old boys for sending mean tweets that insulted millionaire soccer players. The idea that this legislation is necessary to make the world more just and free of repression is absurd. bbc.co.uk/news/uk-england-32231902 These laws are used for repression, which is why the US stance on free speech opposes them. Every authoritarian regime uses the same logic to repress speech.
    – Shamshiel
    Aug 5 at 0:53
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Insulting opinions can be actionable defamation in the United Kingdom. In Berkoff v Burchill & Anor [1996], for instance, a reporter wrote that an actor in The Frankenstein Chronicles was "only marginally better-looking" than Frankenstein's monster.

Germany also has a law against insults that would be quite infirm under the First Amendment. The Los Angeles Times wrote a good piece illustrating how it can be used:

A Berlin court awarded one person 8,190 euros in 2011 for insults published against him in social media; in a 2012 case, a trainee who made disparaging remarks about her boss on Facebook had to pay 2,500 euros in damages. A student accepted a 5,000 euro out-of-court settlement in 2013 for racist remarks made in a rap song about him posted on YouTube.

Gulden said there are many classic insults that can land you in court, provided there is a witness or some record that they were used: “old Nazi,” “fascist,” “pig,” “Scheiss Bulle” (an insult for police) or “Krueppel” (cripple).

All of these cases should have been thrown out under the First Amendment if they had been brought in an American court.

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    a partial example from the UK, someone was arrested for calling a horse "gay". The charges were later dropped, but the fact that the police would place someone under arrest for that in the first place might be an indicator on itself.
    – vsz
    Aug 2 at 4:54
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    About insult and witness in Germany: The presence of the witness and the fact that a third party sees it is what makes it an insult. It’s not for evidence. If you record me on video insulting you face to face with no witnesses, it is not an insult.
    – gnasher729
    Aug 2 at 5:48
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    And important: Insulting an officer of the state can and will be prosecuted by the state. Telling a police officer what he can do with your speeding ticket will be a lot more expensive than the ticket.
    – gnasher729
    Aug 2 at 5:50
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    @vsz I wonder why the police officer thought "gay" was an insult. One could argue that interpreting "gay" as an insult is itself homophobic...
    – gerrit
    Aug 2 at 7:33
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    @GeorgeWhite I think gnasher was talking about in Germany, unless I misunderstood their comment. For the U.S., yes, it would be protected speech under the First Amendment.
    – reirab
    Aug 2 at 12:04
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A Norwegian woman, Christina Ellingsen, currently faces up to 3 years in prison for the following statement:

“Why [does] FRI teach young people that males can be lesbians? Isn’t that conversion therapy?”

“You are a man. You cannot be a mother.”

§185 of the Norwegian Penal Code prohibits against “discriminatory or hateful statements on the basis of gender identity or gender expression.”, and people have been jailed for similar offenses in the past.

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    Claiming "faces up to 3 years" based on the maximum possible sentence in law for the category of crimes is a bit excessive when no charges have even been raised yet, and the longest prison sentence for a similar case in past has been just 1 month. I do agree that this answers the question, but the source linked is a bit sensationalist.
    – jpa
    Aug 2 at 8:32
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    @jpa Sentences and convictions are not the only things that 'chill' speech - that there is an investigation "under hate crime charges" may 'chill' speech. The process can be a punishment.
    – Lag
    Aug 2 at 9:03
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    @Lag Yeah, which is exactly why it is important to emphasize that no-one is getting 3 years in jail for this. Otherwise this ends up "chilling" speech even more.
    – jpa
    Aug 2 at 9:52
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    @jpa - I think the fact that someone can be arrested for a statement like that is a pretty good support for the case. That 3 years is even on the books at all is good support as well, regardless of if anyone actually catches that sentence. It basically means lawmakers created a serious punishment for what would be, in America, protected speech, and that is now codified into their law.
    – JamieB
    Aug 2 at 14:23
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    @user253751 - I mean. 1095 days in prison for "discriminatory or hateful statements on the basis of gender identity or gender expression" seems like one hell of a sentence to me. 3 years of your life basically gone. Disruptions to family, finances, career, relationships, missing 3 years of your kids growing up... I'd say it's such a harsh sentence to even put on the books at all, I wonder what they think a maximum violation worthy of such a sentence would even look like!
    – JamieB
    Aug 2 at 20:29
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The Criminal Code of Czechia (Chapter X, section 365) provides that "whoever publically approves of a committed criminal offense [...] shall be sentenced to imprisonment for up to one year."

(discovered by me in this answer by Trish on this site.)

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In some European jurisdictions there are laws against or more strict than the USA about:

criminal proceedings, court reporting, reporting juror/jury interviews

defamation

threatening, abusive or insulting words or behaviour

blasphemy, religious insult

hate speech

Holocaust denial or revisionism-tantamount-to-denial

the display of Nazi emblems/insignia/symbols, 'Hitler salutes'

glorifying or encouraging terrorism

Some jurisdictions have broad "public order" law that can be used to inhibit speech too.

The GDPR provides for the right of erasure aka 'the right to be forgotten', which can be used to have information removed from public-facing websites.


Compare the words of the First Amendment with the main European equivalent, Article 10 of the European Convention on Human Rights. Article 10 is an explicitly 'qualified' right, meaning it has caveats or exceptions; whatever one thinks about where the line is drawn in practice, it's obvious that the text is not as aspirationally absolute as the First Amendment.

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article 10

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

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    The second paragraph of the Article 10 citation essentially guts it.
    – EvilSnack
    Aug 3 at 14:27
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    @EvilSnack Honestly, yeah, it really does. It's basically, "Everyone has a right to freedom of expression unless it's something that the government would rather they not express," which is really no right at all. The vast majority of violations of freedom of expression throughout history have, at least ostensibly, been enacted for one of the reasons listed in paragraph 2.
    – reirab
    Aug 4 at 9:09
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    For total truth, American courts have ruled some exceptions as well, but the right is still essentially intact. Meanwhile in Scotland an online personality was prosecuted for a video in which a pug raises its right paw in response to the command, "Sieg Heil!"
    – EvilSnack
    Aug 4 at 16:13
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I don't want to offer a full answer, but more of a framework for thinking about differences between EU and US law, particularly on areas of free speech.

In the U.S., freedom of speech is seen as an absolute right. It is enshrined in the constitution, and has few real limits on its scope.

In contrast, the EU right to freedom of speech is connected more widely with "freedom of expression", and is seen as a balancing act between other freedoms contained in the european convention on human rights. For example, speech that is likely to cause harm (yelling fire in a crowded theatre, for example) or directly conflict with other rights can be restricted. This would, for example, be the basis of restrictions on, say, hate speech - for example, your freedom to engage in trans or homophobic speech might directly conflict with my right to both freedom of expression and right to respect of my private and family life.

This makes actually answering your question almost impossible, because it tries to impose the relatively narrow, absolute, US definition of free speech onto the much broader freedom of expression principle in EU law, which can't be separated from the much broader, again, charter on human rights. EU law generally accepts that it is not possible to separate out rights, but that things such as employment, privacy etc all play a part in your ability to practically exercise your rights.

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    Your example of the way Europe is different paraphrases United States Supreme Court justice Oliver Wendell Holmes: "The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic". Your comparison is basically bunk.
    – hobbs
    Aug 2 at 14:22
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    @hobbs Interestingly, the case you mention has been partially overturned in the USA - it's quite a nice example because of it - also, wierdly, about people protesting war recruitment in the first world war, which I did not know till now. I'd love to know more about that though, as it was more just a few minutes on wikipedia than a deep dive for the quote.
    – lupe
    Aug 2 at 14:27
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    @user253751 I guess - but I don't think we can just look at rights, but practical abilities to exercise them - for example, would you rather, if forced, insult a police officer at a traffic stop in Germany, where you can be fined for doing so, but also has strong protections for how that officer might treat you, or the USA, where qualified immunity often protects officers from accusations of police brutality? I think it ends up being an attempt to weigh rights you have in theory vs rights you have in practice
    – lupe
    Aug 3 at 9:25
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    Do you have a source for this distinction between freedom of speech and freedom of expression?
    – nasch
    Aug 3 at 23:31
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    Someone expressing a negative opinion about either your lifestyle or something you've expressed does not at all infringe upon your freedom of expression. They're merely exercising their own freedom of expression, regardless of how annoying or unwelcome that may be. (Also, drawing a line between "freedom of speech" and "freedom of expression" doesn't really make much sense when comparing with the U.S., as those terms are essentially interchangeable when discussing U.S. law. U.S. case law has generally held that the Free Speech Clause protects the vast majority of forms of expression.)
    – reirab
    Aug 4 at 8:53
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There are laws in the UK against speech that encourages terrorists. See https://www.cps.gov.uk/crime-info/terrorism

Collecting information that is one the internet, viewing terrorist materials, stating any support for the aims of terrorists.

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    The trouble lately is the definition of a terrorist organization... A lot of speech supporting terrorists is not prosecuted because said terrorists have broader than fringe support among the public. They are simply "not terrorists" in enough people's eyes, yet they often fit the prevailing definition.
    – 608
    Aug 2 at 20:32
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There's a somewhat controversial article in Polish Penal Code, describing insulting the religious feelings of another as a crime.

Art. 196. [Insulting religious feelings]

Whoever offends the religious feelings of other people by publicly insulting an object of religious worship or a place intended for the public performance of religious rites, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

From lex.pl, translated with Google.

What is of note is that in Poland not all crimes are prosecuted automatically. Some are pursued only if the victim decides to sue. Art. 196 is prosecuted automatically. As a counterpoint, criminal defamation is only prosecuted if the victim so wishes.

I'm not familiar enough with the US law to say if it would be a crime there, but I highly doubt it.

Looking at Wikipedia, there were quite a few blasphemy laws in Europe, although many were repealed in late 20th century or in 21st.

P.S.

It has been pointed out to me that, viewing politically, neither Belarus nor Russia is really counted as part of Europe. But Hungary is, and it also has a history of suppressing free speech.

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  • I'd be hard pressed to lump russia in as european (and belarus), if you're viewing this politically - neither are members of the european union, or have strong treaties or overlapping rights. A better example might be Hungary, which, despite clearly being part of europe, has a history of suppression of free speech.
    – lupe
    Aug 2 at 11:38
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    That would not be a constitutional law in the US, and seems like a law bound to enforced with heavy bias.
    – prosfilaes
    Aug 2 at 15:32
  • @lupe edited the post accordingly.
    – jaskij
    Aug 3 at 9:34
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    @prosfilaes it is enforced with a heavy bias, considering Poland is mostly a Catholic country. Usually when it hits a media it is when someone protesting the Catholic Church gets prosecuted for some reason. Typically, people are charged for using Catholic symbols change in one way or another. One case that comes to mind is activists being charged with this for placing stickers where Mary's halo is a rainbow around time. They were acquitted though.
    – jaskij
    Aug 3 at 9:39
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While theoretically many countries on the European continent have "freedom of expression as long as no other laws are violated" laws on their books, these are extremely limited compared to the US version of "freedom of speech", and do not protect people from prosecution if the expression violates any other laws.

This strange construct makes "freedom of expression" subordinate with respect to many other laws, such as hate speech, holocaust denial, incitement of hatred etc., or even insults or disparaging remarks.

As an example, Germany has very broad anti-hate speech laws. These laws, codified in § 130 of the criminal code (Volksverhetzung), penalize inciting hatred against protected groups with 3 month to 5 years in prison.

Controversially, you can also be sentenced to up to 5 years in prison for denying the holocaust:

(3) Anyone who publicly approves, denies or trivializes an act of the kind referred to in § 6 (1) of the International Criminal Code committed under the rule of National Socialism in a manner that is likely to disturb the public peace shall be punished with imprisonment of up to five years or with a fine.

While these laws might seem reasonable to some, they are used in a very broad an indiscriminate manner, often against the political opposition.

Prosecutors in Germany are not independent and are bound by orders from the Secretary of Justice, who can order to prosecute a person or to drop a prosecution, this is why the European Court of Justice ruled in 2019: "German public prosecutor's offices do not provide a sufficient guarantee of independence from the executive for the purposes of issuing a European arrest warrant."

This prosecutorial discretion is often used to interpret anti hate-speech laws in a manner that goes far beyond the spirit of the law.

As an example, here is a picture taken during a protest against mandatory Covid vaccinations. The sign reads "Impfung macht frei", "Vaccination makes you free". This is an allusion to the infamous slogan "Arbeit macht frei" set over the entrance to Auschwitz concentration camp. Anti vaccination protest

Bad taste or not, carrying such a sign is a felony in Germany that can and will be prosecuted, even though it is pretty clear that the protestors neither try to incite hate against protected groups, nor do they try to deny or trivialize the Holocaust. Yet, people have been routinely charged with "Incitement of Hatred" for these signs, which carries potential prison sentences up to 5 years.

Here are two recent examples of people being prosecuted for "Impfen will free you" signs in Germany and Austria. These are not rare cases, such prosecutions are very common and are also widely publicized:

  • Man charged with Volksverhetzung "Incitement of hatred", by Munich chief prosecutor. The man posted a picture on FB that showed Auschwitz concentration camp with the words "Arbeit macht frei" Above this a drawing "Impfen macht frei" and a series of black uniformed with big syringes. His home has been raided by the police who confiscated his PC and his cell phone, and he faces up to 5 years in prison.

  • A case from Austria: A women carried a sign "vaccination will set you free" and a picture of Hitler made to look like the Terminator with the slogan "I'll be back". She was sentenced to one year in prison, suspended over 3 years. This was considered a very light (!) sentence, she could have been sentenced to up to 10 years in prison. Many cases like this have been reported in the news, which certainly creates a chilling effect.

Such a sign would be a protected speech in the US and many Americans would be quite surprised that someone can be sentenced to up to 10 years in prison for doing nothing but carrying a harmless sign in public.

Another specialty of German law is that insults, which at best might be a civil matter in other countries, are treated as crimes.

In Germany, an insult or a disparaging remark is a criminal offense that can send you to prison for up to a year. People are routinely convicted for the most laughable insults, which can be as little as not using the formal form of address 'Du'/'Thou' instead of 'Sie'/'You'.

Even though not under specific protection, police officers are known to press charges for any perceived insult. Typical punishments for e.g. tipping the finger to your forehead are in the range of 20-30 days of net income. A more serious insult, such as "asshole", can get you fined 70 days of your net income, a potentially very large amount of money.

Every year the police registers more than 200000 total cases of insults (not all against the police). Insult statistics,

of which they resolve (i.e. were able to determine at least one suspect) close to 90%. This shows that insults, a crime that does not exist in the US, are taken very seriously by law enforcement.

While in the US public figures, such as politicians, have less protection, this is not the case in Germany. Recently, someone was charged with the crime of insulting someone for tweeting "you are 1 weeny" about a local politician. The charge would have carried a sentence up to one year in prison and was deemed serious enough for the police to raid the home of the offender and confiscate all of his electronic devices.

Germany has specific laws on the book against insulting politicians, such as § 90 of the criminal code ('Making disparaging remarks about the President'), which carries a prison sentence of up to 5 years.

There is also § 188 ('Insult, defamation and defamation directed against persons in political life'), which increases the penalties for insults and defamation substantially:

(1) If an insult (section 185) is committed publicly, in a meeting or by disseminating content (section 11 subsection 3) against a person involved in the political life of the people for reasons connected with the position of the offended person in public life, and if the act is likely to make his public work considerably more difficult, the penalty is imprisonment for up to three years or a fine. The political life of the people reaches up to the municipal level.

(2) Under the same conditions, defamation (Section 186) shall be punished with imprisonment from three months to five years and defamation (Section 187) shall be punished with imprisonment from six months to five years.

Such laws seem draconian from an American first amendment perspective and show that, while theoretically Germans might theoretically enjoy some limited "freedom of expression", this right is not worth much in practice.

On the other hand, many Germans would disagree and see their system as superior to the American one, as it offers much stronger protection against insults and defamation by making them criminal offenses.

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet
    Aug 5 at 2:44
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Some of this is historical. Most of the Bill of Rights was a reaction against laws in Europe at the time (specifically, in England under George III). So things like freedom of religion and freedom to criticize the government. In modern times of course European countries largely allow all of those things, but you can still see some differences from that... For example the US is still more permissive in how you are allowed to criticize the government.

Flag burning. In many European countries, e.g. France, Germany, it is illegal to burn (or sometimes disrespect) the flag (although actual enforcement varies). In the US, it is federally protected as free speech.

Many European countries have specific laws against insulting dignitaries such as royalty, head of state, etc., as well as harsher punishments for defamation against those people. In the US, insulting public figures is federally protected free speech and the bar for defamation against public figures is actually higher.

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  • The last one: In Germany only for Germans and against former or current foreign heads of state. I suppose the right to express your opinion is weighed against the trouble you might cause for Germans in foreign countries, so it makes some sense.
    – gnasher729
    Aug 2 at 16:06
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In Latvia, it is a non-criminal offense to display symbols of Nazi Germany or the USSR during a public gathering, with certain exceptions like artistic expression. So something like a picket with Soviet flags and "glory to USSR" posters would be illegal, as would be a public gathering with people dressed in SS uniforms.

It is a criminal offense to publicly call for genocide, or to publicly support war crimes or crimes against humanity, past or present. These criminal offenses have lately gained additional attention due to Russia's ongoing invasion of Ukraine, and several Latvians are currently under criminal investigation for public statements supporting Russia's actions.

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In the UK the human rights act protects freedom of speech such that the state cannot limit opinions unless they are racially hateful. It is surprisingly thorough in its reach, with the impressively thoughtful section 29J inserted by the otherwise troubling racial and religious hatred act 2006 into part 3a of the public order act 1986 included to effectively neuter the religious hatred offences. However: an interesting aspect that has taken form in the UK can be seen where the equality act leaves space for the state through its judiciary to explicitly designate certain opinions (like veganism, for example, but not transphobic sentiments) "worthy of respect in a democratic society" for the purpose of deciding what types of beliefs are or aren't protected characteristics for the purposes of anti discrimination protection. I find this type of presumptuousness by the state very troubling and yet for the reason of the first amendment this would never fly in the USA.

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In Italy article 278 of the Penal Code provides that "whoever offends the honor or the prestige of the President shall be imprisoned from a minimum of one to a maximum of five years".

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Concurring Dale M:

"The US believes it's [exemplary] about freedom of speech

It isn't; it's just different."

Here are a few very specific examples where the U.S. is more restrictive in freedom of speech than any EU countries.

Jury fullification

The government institution of a jury is basically a small-sample precipitation of public opinion, and a form of direct democracy at the crux of liberty and repression. No matter what laws are passed, no matter who passes them, no matter who judges them: If 12 of their peers is a serious safe guard from arbitrary jurisprudential law making distorting the democratic process. A jury decision on matters of law is effectively the little brother of referenda or "popular initiatives" except not having a presidential effect. Without that, it is completely valid to allow the jury to say: If there was a referendum today for a law to be passed that, in the cases of these facts, would imprison someone, we would not want that law: We acquit on the basis of the law not reflecting the will of the people.

This, however, not only is banned in the U.S., but however, with the intent to influence an empaneled jury or any member thereof shares the idea they have a constitutional right to call "null" or "nullify" (fullify) its jury "duty" can be convicted for criminal contempt of court.

If a defendant tries that on the court floor, he will definitely be charged, and good luck proving that mens rea did not exist.

Since juries are almost completely inexistent in European countries, the paranoid ideologues of SCOTUS, the ABA or no one can fear-monger that the rule of law would be broken if this was allowed because there is no jury there.

There is, however, millennia of legal tradition of the "right of last word" which basically the most unrestricted form of free speech imaginable, you may, without reprisal, make any argument in your own defense, including stating that the judge should acquit for any reasons, or a charge was brought against you as a result of entrapment.

Entrapment Defense

Speaking of entrapment, the defense may not be presented to the jury unless the evidence presented by either party makes it substantially possible. This precedent-set law basically shifts the burden of proof from proving guilt to requiring the proof of innocence. Introducing this idea to the jury "knowingly, and willfully" may very well also result in criminal contempt of court.

Merely Speaking for Yourself in Court -- unless you want them to decide that you waived or forfeited your right to the assistance of counsel

But the list goes on: A defendant simply may be ordered never to speak so long as an attorney is assigned to them for their "assistance". In Europe, an attorney really is an assistance. You can let him speak for you, you can cut him off, you can present your own defense, you can function as co-counsel without any further b—s.

Of course, you may exercise your right to take charge of the case, but the government will tell you "you can't have it both ways", you can invoke your right under Faretta, but then no assistance of counsel. This latter was recognized to be completely unconstitutional since the U.S. Constitution did not guarantee representation, but merely assistance. Therefore, while the default must presume that a defendant needs assistance in everything to make sure the due process of law is discharged in the operation of the judiciary, when a defendant -- without indication of any mental incompetence -- does assert his right to take charge wherever they may deem it fit, it should be allowed. This is only permitted in California if you invoke Faretta, and the courts will, pretty much default, unless a lawyer yourself, assigned counsel to assist you, but even so, will not acknowledge that it simply does what the U.S. Constitution mandates, but calls these attorneys advisory counsels (a drafter assist), stand-by counsel (non-drafter, appearing in court to step in when asked or ordered), or hybrid counsel (rarely even mentioned, one of both functions).

In Europe, its not only the motions falsely claiming that "Defendant Alice Bob, is making this motion", and never had a say in filing or not filing other than accepting the attorney as whole package or declining them altogether, but one may actually represent himself while being provided the assistance of counsel, default.

Once you forfeited your right to any assistance of counsel

The restrictions will only increase: Now the duty to relate information to the jury only that is admissible to the jury will be borne by you, and your defense will be greatly limited. In chambers (outside the presence of the public and the jury, off record) is where it is decided "what the case is", that is, what information will be fed to the jury. So the whole jury trial is basically an expensive show, and the trial is nothing, but a show trial.

One may argue pro why this practice is good, but any argument that may be made can be set aside by the fact opposing counsel should also be permitted to say or present whatever they may wish, if they wish to relate that something is irrelevant then they should be welcome to do so.

In Europe, once again, you say whatever you want on the "right of last word" which enters the record, and will be basis for appeals so the court must consider it.

If you start attacking the a prosecuting attorney for, say, misconduct or malicious prosecution, let alone that the court is complicit, you will quickly face an exception of the Faretta rule

If you take up the gauntlet against malicious prosecution, and refuse any "deals", say, merely because you've been played with enough without lawful basis or even without probable cause, you may feel tempted to use your opportunity of defense to set the record that you see them for who they are, or actually start playing the game for "self-gratification" to prove the point that you can take up the gauntlet, and you may not be arbitrarily treated by the system.

That will be prohibited per SCOTUS case law in Faretta:

“I cannot agree that there is anything in the Due Process Clause or the Sixth Amendment that requires the States to subordinate the solemn business of conducting a criminal prosecution to the whimsical — albeit voluntary — caprice of every accused who wishes to use his trial as a vehicle for personal or political self-gratification.” (Faretta v. California (1975) 422 U.S. 806, 849)

Basically, one may even be deprived of his right to take charge of the case even at the expense of losing any assistance if the only reason to do so is to play the game with the prosecution, or make statements to the effect of condemning fallacies or the entirety of the judge which is inherently a political statement as in that present moment, the judge is the top of one of the branches of power.

Once again, in Europe, at least on the right to last word, you will be able to make that even.

Freedom of Speech is only protected under the U.S. constitution if the speech is such that a reasonable person would understand as a political statement

The rest may be restricted by state constitutions, state law or federal law according to SCOTUS precedent.

All in all, not being able to say to your "trier-of-fact" or "trier-of-law" whatever you'd like is analogous to a king requiring that you talk respectfully as he arbitrarily has you incarcerated, hang or sliced. At least in Europe you can tell them in the face they are criminal when you know that on the right of last word, in a number of EU Member States without the possibility of prosecution on that basis during the last-word speech.

Basically, in the U.S. you can exercise your right to express your opinion about government except about those and when it would make a difference: In a court room about the judiciary when you are facing to be deprived of property, liberty or life.

Outside of the judicial context

Some comments mention hate speech...

Well:

California Penal Code § 415 provides:

  1. Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine:

(1) Any person who […] challenges another person in a public place to fight.

(2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. [(a sort of harassment?)]

(3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.

"Lock him up" on a Trump rally in California could be charged under the rational of paragraph 3, especially when, as it is reasonably expectable, will result in "immediate violent reaction". Of course, a court, if necessary public attention would follow such a charge, would find that it must be construed in line with the fundamental liberties provided by Amendment I and XIV, a challenge would establish court of appeals case law to not repeal the law by court order as unconstitutional, but just be read out the implied restriction so as to save its constitutionality. Yet, the chilling effect of hiding such "liberty" on the shelves of law libraries filled with case "laws" effectively will chill freedom of speech.

(Two examples of such resolution to facially unconstitutional California laws saved by courts instead of sent back for more precise wording:

“Once section 31 [of the California Vehicle Code] is read as containing a materiality requirement, all constitutional standards are met.” People v. Morera-Munoz (2016) 5 Cal.App.5th 838, 854

“A "false statement is material [for the purposes of Penal Code 148.5] if it could probably influence the outcome of the proceeding ... ." (People v. Rubio (2004) 121 Cal.App.4th 927, 933.)” (People v. Knott (Jan. 30, 2019, B277799) ___ Cal.App.2d ___ [pp. 14])

On the other hand...

The police under Franks...

May lie the start out of the skies for a charge or conviction under oath in a search warrant affidavit, and even the knowing, intentional and purposeful lies will not mandate a quash unless the specific lie itself was material to the determination of probable cause. (Much free speech! Very liberty!)

Although, the logic fails in that if a falsehood is made knowingly or even with reckless disregard to its veracity, that negates of most standard penalty-of-perjury affirmations without which an affidavit is not an affidavit.

In other words, the affirmation states that the foregoing is true and correct (sometimes without restrictions to the best of ones knowledge, but even therewith) and a lie therefor would negate the affidavit as a whole, permitting by case law that it is ok results in a "first search then answer why you searched" type of police state since no one will send them in jail for perjury, in fact, the affidavit and the search warrant will be favored and permitted rendering the entirety of the search warrant proceeding nothing, but yet another fancy show procedure while basically the police can lie whatever they want, the magistrate will be protected to have presumed the SW affidavit true because of the perjury affirmation, and if something is found as a result of the self-issued SW, then it "was meant to be" or it was a "good hunch".

Effectively, the police has its own permits to search, the search warrants for itself. That is the definition of a police state. Corruption is present everywhere, but absent case-law based jurisprudence it is not codified to be so by judges, and there is always the chance a judge will just be a straight arrow, and you as a corrupt peace officer will land in jail for something like a knowingly lying search warrant affidavit.

This, again, as Dale M said, very different. Questionable if it is "exceptional" other than in the sense that is not necessarily flattering.

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet
    Aug 6 at 22:41
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Refusing armenian genocide is illegal in Europe. Yes this is weird but true. Why is it weird? Because it is not having any statement related hate but against to political policy. All freedoms are running until touching on personal interests of politicians.

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  • Europe comprises dozens of jurisdictions. It is surely not illegal in all of them to deny the Armenian genocide.
    – phoog
    Aug 2 at 17:37
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    Aug 2 at 17:44
  • @phoog While not specific to Armenian genocides, most, if not all EU states have a law that makes denying the existence or trivializing criminal acts illegal.
    – Trish
    Aug 20 at 17:33
  • @Trish "Europe" ≠ EU
    – phoog
    Aug 20 at 20:26
  • @phoog yes, I know that. I deliberately said EU, because Europe also includes Belarus and Russia, which don't even follow the rules of their own laws, as well as Turkey which has an inverse rule on at least one genocide, if not as law, then as policy.
    – Trish
    Aug 20 at 20:28

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