Jurisdictional Contrast Between USA, Germany & France

Freedom of Speech

The Universal Declaration of Human Rights (adopted in 1948) stated in Article 19 that “Everyone has the right to freedom of opinion and expression”[1]. Evolving from this concept, it would be plausible to document that a person is allowed to hold opinions and has full right to seek, receive and impart from the information (without any interference) through any outlet (regardless of the frontiers. This notion wasn’t newly put forth by the UN Declaration, but long back in 1789, Madison introduced the right to speak, write or to publish one’s sentiments; and the freedom of the press in the House of Representatives[2]. Although all countries appear to expressly follow the UN Declaration Article 19 by stating the rights to freedom of speech as the constitutional, fundamental or basic right of individuals, yet it is not considered to be absolute in nature. In many countries, certain limitations and conditions are applied at varied levels regarding right to speech, write or express one’s opinion or viewpoint using any outlet[3].

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United States of America

The First Amendment to the United States Constitution strongly advocates and protects the restrictions put on the freedom of speech and expression in America. The First Amendment of USA encompasses the decision related to what can be said and what cannot be said under the term of “freedom of speech”. The First Amendment prevents the rights of free speech and free press. In USA constitution, free speech refers to the rights to publicly express opinions without interference, censorship or restraints put in forth by the government. In Chicago Police Dept. v. Mosley[4], the Supreme Court directed that the government holds no power in restricting any expression or opinion based on the ideas, message, content or the matter of subject. Furthermore, the court law permitted right to express any though free of governmental censorship in order to foster and build politics and culture in USA.

Apart from the above expressed right to freedom of expression, the First Amendment doesn’t allow free speech and free press with unfettered power. In Roth v. United States[5], the rights of free speech and free press were specifically prescribed to be attached with the core rights to utter, distribute, receive, read, inquire and teach. The First Amendment’s freedom of speech right protects the right to receive the information and prevent government restrictions that discriminate between different speakers. Moreover, the amendment also restricts the tort’s liability of the individuals for certain types of speech while preventing individuals and corporations to speak about finances to which they don’t agree.  

The limitations put forth by First Amendment regarding freedom of speech does not protect speeches on obscenity, fraud, illegal conduct, discrimination, imminent lawless actions, advertising or child pornography. Other than this, the Amendment also doesn’t prevent the rights to express views containing violence, slandering, harm or untruths for defaming others. Also, the right to speak with a person in a prison is also uncovered in the First Amendment of the USA Constitution. In USA, whenever the speech restriction is challenged by the case pursuer in the court, it is taken to be invalid and all the responsibility falls on government’s shoulder to convince the court that the restriction remained to be constitutional[6].

In a nutshell, the freedom of speech in the First Amendment in USA Constitution does not include the right to incite the actions that could harm others[7], to make or advertise the obscene material[8], to burn the cards in an anti-war protest[9], to allow students to advertise or print objectionable material against school administration[10] or to allow students to advocate illegal drug abuse at school events[11]. However, the constitution allows the freedom of speech including the rights to wear black bands at school for protesting wars[12], using offensive words to convey political messages[13], raising funds for political campaigns[14], advertising commercial or professional services and products[15], neglecting to speak[16] and to engage in symbolic speech[17].

In the given context, the U.S. Supreme Court has long struggled with determining the types of speeches to protect. However, legally, the obscene material has historically been excluded to be protected under freedom of speech. Still, defining obscene material has remained questionable and challenging for the constitution and judicial bodies. Moreover, speech provoking the actions that could harm others (incitement or threats) are also unprotected, yet determining the qualification of words of incitement remain to be decided on case-by-case basis.    

France:

The Right to Freedom of Expression in France was declared from the Constitution of Year 1 in 1973. In France, the freedom of speech is protected by the 1789 Declaration of Human and Civil Rights in line with French Constitution and is considered to be an “essential basic freedom”[18]. As a party to European Union, the freedom of speech is also protected by European Convention on Human Rights in France. In Article 10 & 11 of the Declaration of Human and Civic Rights of 1789, the freedom of expression is defined as the “free communication of the opinions and ideas”[19]. However, under European Convention, it is defined to be “freedom to hold opinions and receive or impart from the information without adherence by government”. Similar to USA Constitution, regardless of considering it as the basic component of democracy, the freedom of right to express is not absolute in France.

In French Judiciary and Constitution, the freedom of expression is considered to be precious because it cultivates the power of democracy and guarantees that the rights and the freedom of every citizen are respected. The French Constitution and Judiciary balance out the freedom of speech with imperatives like public order and other freedoms and rights[20]. Hence, in France, the freedom of expression by individuals is limited to preventing the defamation, insult, privacy prevention and protection of public orders. Despite of the vitality of the right to freely express, it puts several limitations on the protection of freedom of speech.

Many cases in recent decade have prevailed over the courts passing judgments regarding freedom of expression in France. Between 1992 and 2014, Hebdo was sued for spreading hatred and disrespect against Muslim religion while Dieudonne[21] was sentenced to prison for advocating terrorism through his comedian show. The court also prohibited the sales of DVDs and newspapers after carefully assessing the material in both cases. However, the case of Hebdo violating Danish Criminal Code, French Freedom of Press Act 1881 and Article 9 of European Convention remained highlighted in the media for several months following the decision made by court in favor of Hebdo[22].

In contrast with the First Amendment of the USA Constitution, the Declaration of Human and Civic Rights of 1789 provides stringent limits to the freedom of expression sourcing from its definition itself. Under Article 10 of the Declaration, it is clearly stated that an entity’s opinion is protected under freedom of expression only until such opinions does not interfere with the smooth running of law and order[23]. Similarly, in Article 11 of the Declaration, it is clearly penned down that the freedom to express shall remain protected upto the point that it isn’t abusive and remains within the limits determined by the law. The Declaration notably expressed that the right to expression shall remain within the limits in order to prevent disorder or crime, protect morals, defend reputation[24] or rights of others and guard disclosure of sensitive information received in confidence. Hence, the exercise of freedom of expression is subject to conditions, penalties and formalities to maintain impartiality of judiciary and keep it in interests of national security[25][26].

As compared to the US First Amendment, France is a signatory of European Convention on Human Rights and essentially states that the citizen has free speech unless the government proves to be otherwise. Hence, this allows the countries with more room to bar certain speech types explicitly. However, in the First Amendment, the government is clearly being expressly prohibited from making laws that could limit the free speech of its citizens. Here lies the huge difference between both US and French legislations.

[1] United Nations, ‘Universal Declaration on Human Rights’ (2018) https://www.un.org/en/universal-declaration-human-rights/ accessed 14 August 2020

[2] Cornell Law School, ‘Freedom of Expression – Speech and Press’ (2018) https://www.law.cornell.edu/constitution-conan/amendment-1/freedom-of-expression-speech-and-press accessed 14 August 2020

[3] Law Library, ‘Limits of Freedom of Expression’ (2019) https://www.loc.gov/law/help/freedom-expression/limits-expression.pdf accessed 14 August 2020

[4] Chicago Policy Dept. v. Mosley [1972] 408 U.S. 92

[5]  Roth v. United States [1957] 354 U.S. 476

[6] Ashroft v. American Civil Liberties Union [2004] 542 U.S. 656

[7] Schenck v. United States [1919] 249 U.S. 47

[8] Roth v. United States [1957] 354 U.S. 476

[9] United States v. O’Brien [1968] 391 U.S. 367

[10] Hazelwood School District v. Kuhlmeier [1988] 484 U.S. 260

[11] Morse v. Frederick, U.S. [2007] 551 U.S. 127 S. Ct. 2618

[12] West Virginia Board of Education v. Barnette [1943] 319 U.S. 624

[13] Cohen v. California [1971] 403 U.S. 15

[14] Buckley v. Valeo [1976] 424 U.S. 1

[15] Virginia Board of Pharmacy v. Virginia Consumer Council [1976] 425 U.S. 748

[16] West Virginia Board of Education v. Barnette [1943] 319 U.S. 624

[17] Texas v. Johnson [1989] 491 U.S. 397

[18] Karen L Bird, ‘Racist speech or free speech? A comparison of the law in France and the United States.” (2000) Comparative Politics’ 399-418.

[19] Sevane Garibian, ‘Taking Denial Seriously: Genoside Denial and Freedom of Speech in the French Law’ (2007) 9 Cardozo Journal of Conflict Resolution 479

[20] Michael O’Flaherty, ‘Freedom of expression: article 19 of the international covenant on civil and political rights and the Human Rights Committee’s general comment No 34’ (2012) 12.4 Human Rights Law Review  627-654.

[21] M’Bala M’Bala v. France [2015] 25239.13

[22] Niaz A Shah, ‘Charlie Hebdo: Testing the Limits of Freedom of Expression’ (2017) 14(1) Muslim World Journal of Human Rights 83-111

[23] Franklyn S. Haima, ‘Words That May Injure: Contrasts in French and American Free Speech Law’ (1990) 28(1) Free Speech Yearbook 8-29

[24] Morice v. France [2015] 29369/10

[25] Observer and The Guardian v. United Kingdom [1991] 14 EFRR 153

[26] Eon v. France [2013] 26118/10