Vol. III - Penn State Abington

FREE EXPRESSION:
MOVING THE EUROPEAN UNION TOWARDS AN AMERICAN MODEL
By Alexander Badas ∗
University of Toledo
Freedom of thought and the freedom to express that thought are fundamental freedoms to
man. Allowing this freedom to be robust and only minimally regulated allows society to develop
more rapidly. There are plenty of theories that support this claim, most notably the public debate
theory and the expressivist theory. As far as creating a legal system that supports these theories,
the United States’ First Amendment should be looked to as a standard. For this reason, the
European Court of Justice should look to the United States’ model while developing its free
expression jurisprudence, for the current system has not been as robust and as free as it should
be.
First, I will examine the various theories that support a robust idea of freedom of
expression. The public debate theory indicates that expression is “an adversarial process whereby
social benefits such as truth and good public policy advance through the constant introduction of
new ideas to compete with established ideas” (Nelson, 2005:31). Therefore, since speech leads to
such benefits as truth or good public policy, expression should be left unregulated. In this theory,
expression works as in a market: once the expression is expressed, it is considered to be in the
marketplace. Considering the content of that expression, it will be improved, disproved, or
simply ignored. I will draw a few examples: Consider the process of creating the Constitution of
the United States. When the Annapolis Convention first met, it was for the purpose of amending
the Articles of Confederation. However, a debate began as to whether amending the Articles of
Confederation would be sufficient in establishing an acceptable government. These debates led
to the decision to adopt a new constitution instead. Then again debate occurred. Noble
expressions such as James Madison’s Virginia Compromise or William Paterson’s New Jersey
Plan were debated and improved and led to the “Great Compromise,” later adopted in the new
Constitution. While other, less noble, or even insidious ideas, such as Alexander Hamilton’s idea
of a monarch-like president, were chiefly ignored or debated briefly and disapproved of quickly.
As this example should show, the public debate theory allows for a market were good ideas
flourish while bad ideas are ignored or quickly countered. Therefore, since bad ideas cannot
survive in the market, there is no reason to legalize them, as the market will correct itself.
However, there are a few objections to the public debate theory of speech. One of those
objections is that some expression undermines public debate. Therefore, since public debate and
truth are the objectives of the public debate theory, those who believe in it will be willing to
accept restrictions on expression that would limit speech that undermines public debate (Nelson,
2005:47). To draw an example, one might believe in outlawing hate speech because it distracts
from the truth and good policy or equality. However, this objection is easily answered. Even
expression that may undermine public debate should be left unregulated because if it were
regulated it would produce a chilling effect or a slippery slope. Considering the latter, that is to
∗ Alexander Badas is a senior at the University of Toledo, majoring in Law, Social
Thought, Political Science, and Philosophy.
THE DIALECTICS ▲ 2009
www.abington.psu.edu/dialectics
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