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 School

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Date Written: March 29, 2019


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, Queen's University Legal Research Paper, Available at SSRN: or

Grégoire Webber (Contact Author)

Queen's University - Faculty of Law ( email )

128 Union Street
Kingston, Ontario K7L3N6


London School of Economics - Law School ( email )

Houghton Street
London, WC2A 2AE
United Kingdom


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