Proportionality and Limitations on Freedom of Speech

22 Pages Posted: 5 Apr 2019

See all articles by Grégoire Webber

Grégoire Webber

Queen's University - Faculty of Law; London School of Economics - Law Department

Multiple version iconThere are 2 versions of this paper

Date Written: March 29, 2019

Abstract

In this paper, I review the depth of judicial and scholarly consensus respecting the principle of proportionality and offer an expository and critical account of proportionality analysis. I aim to introduce readers to different understandings of proportionality, showing how the judicial and scholarly consensus is only surface deep. Of course, the fact of disagreement between and within jurisdictions need not deny that the principle of proportionality has merit. But it does put in doubt the confident claims by some proponents that proportionality is ‘essential’, ‘indispensable’, and ‘unavoidable’ and that, when it comes to rights, it ‘is all and only about proportionality’.

To explore these thoughts, and to demonstrate how much of the US debates from the 1950s and 1960s remain apposite today, I begin by exploring the appeal of proportionality and balancing for the adjudication of freedom of expression claims and then review proportionality’s four evaluations. I conclude by revisiting an idea that animates much proportionality reasoning: 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.

Suggested Citation

Webber, Grégoire, Proportionality and Limitations on Freedom of Speech (March 29, 2019). LSE Legal Studies Working Paper No. 7/2019. Available at SSRN: https://ssrn.com/abstract=3362301 or http://dx.doi.org/10.2139/ssrn.3362301

Grégoire Webber (Contact Author)

Queen's University - Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L3N6
Canada

HOME PAGE: http://law.queensu.ca/directory/gregoire-webber

London School of Economics - Law Department ( email )

Houghton Street
London, WC2A 2AE
United Kingdom

HOME PAGE: http://www.lse.ac.uk/collections/law/staff/gregoire-webber.htm

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