ECtHR Rulings Significantly Lower Free Speech Criminalization Threshold, Says Analyst

Conor Friedersdorf, a prominent analyst, has voiced significant apprehension regarding recent judicial precedents set by the European Court of Human Rights (ECtHR), asserting that these rulings have substantially lowered the threshold for what constitutes criminalized speech in Europe. His concerns, articulated in an August 19, 2025, article in The Atlantic, highlight a growing divergence from American free speech standards and a perceived erosion of protections.

Friedersdorf contends that the ECtHR's interpretation extends far beyond the "paradox-of-tolerance" scenarios, such as the criminalization of Nazi propaganda. In his tweet, he stated, > "Before researching this article I'd underestimated how far judicial precedents in the European Court of Human Rights had gone toward undermining free speech. This isn't just paradox-of-tolerance, ban the Nazis stuff. The threshold for what can be criminalized is much lower." This perspective suggests that European states are increasingly "deploying handcuffs instead" of relying on counter-speech for objectionable but non-inciting expression.

The European Convention on Human Rights (ECHR) Article 10 guarantees freedom of expression but permits limitations for reasons including national security, public safety, prevention of disorder or crime, and protection of others' rights and reputation. The ECtHR applies a "triple test"—requiring restrictions to be lawful, pursue a legitimate aim, and be "necessary in a democratic society." However, critics argue this application has led to the criminalization of speech that does not meet the high incitement standard found in U.S. jurisprudence, which typically demands "imminent lawless action."

Illustrative cases cited in analyses include Daniel Féret v. Belgium, where a politician was convicted for inciting discrimination without direct calls for violence, and Vejdeland and Others v. Sweden, concerning convictions for distributing leaflets disparaging homosexuals. More recently, rulings like Delfi AS v. Estonia and Julien Sanchez v. France have extended liability to online platforms and individuals for failing to remove hateful third-party comments, even in the absence of direct intent or knowledge. These precedents, according to Friedersdorf, demonstrate a "speech-chilling" effect.

A 2022 Council of Europe strategy paper further broadens the definition of hate speech to "all types of expression that incite, promote, spread or justify violence, hatred or discrimination." This expansive framework, combined with judicial interpretations, suggests a European approach that prioritizes protection from perceived harm over a broad allowance for offensive or disturbing speech, leading to concerns about a "slippery slope into illiberalism" for free expression across the continent.