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

Netherlands Quarterly of Human Rights, Vol. 3, No. 1, pp. 78-107, 2015

Sydney Law School Research Paper No. 14/96

37 Pages Posted: 15 Nov 2014 Last revised: 1 Apr 2015

See all articles by Andrew Dyer

Andrew Dyer

The University of Sydney Law School

Date Written: November 13, 2014

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

Suggested Citation

Dyer, Andrew, Freedom of Expression and the Advocacy of Violence: Which Test Should the European Court of Human Rights Adopt? (November 13, 2014). Netherlands Quarterly of Human Rights, Vol. 3, No. 1, pp. 78-107, 2015; Sydney Law School Research Paper No. 14/96. Available at SSRN: https://ssrn.com/abstract=2524114

Andrew Dyer (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Register to save articles to
your library

Register

Paper statistics

Downloads
224
Abstract Views
1,249
rank
139,506
PlumX Metrics