Proportionality and Limitations on Freedom of Speech

Abstract

‘Nothing is more certain in modern society’, Chief Justice Vinson wrote in the First Amendment case of Dennis v United States (1951), ‘than the principle that there are no absolutes’. That conviction was affirmed and developed in Justice Frankfurter’s concurring opinion, according to which ‘[t]he demands of free speech in a democratic society, as well as the interest in national security, are better served by candid and informed weighing of the competing interests’. Today, the confidence with which it is asserted that freedom of expression is not absolute and that competing interests are to be weighed and balanced in adjudicating free expression claims is even more resolute. Apex courts on all five continents adjudicate freedom of expression claims by denying that the freedom is absolute and by employing the principle of proportionality and its all-important balancing test. To demonstrate how much of the US debates from the 1950s and 1960s remain apposite today, I explore the appeal of proportionality and balancing for the adjudication of freedom of expression claims and review proportionality’s four evaluations. I conclude by revisiting the idea that freedom of expression cannot be absolute. It is an idea that is oft-repeated, but one that, I aim to show in brief, is based on a mistaken premise.

Keywords: proportionality, balancing, human rights, constitutional rights, First Amendment, freedom of expression, freedom of speech