Proportionality and Limitations on Freedom of Speech

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.