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Application of European Model to Curtail Hate Speech in the U.S.
Sophia Reiss1

As hate speech increases we may need to revisit the question of how to 
respond to it and whether to limit it within free speech or other areas of law.
This article compares free speech law in the United States and the 
European Union in an effort to explore how one might improve our care of 
ourselves and each other in the realm of free speech. 

The United States is one of several countries around the world that 
attempts to balance democratic ideals, historical prejudice, and practical 
concerns when it considers whether to restrict hate speech. Both the United 
States and the European Union have histories of racial prejudice and 
movements filled with hateful conduct and speech. Despite this 
commonality, the two have attempted to deal with this behavior in different 
ways. American constitutional law and its Supreme Court have been very 
protective of free speech, allowing for the theoretical “marketplace of ideas”
to thrive. While legal definitions vary, hate speech is defined by Merriam 
Webster as “speech expressing hatred of a particular group of people.”2 An 
example of this is the recent case Speech First v. Fenves in which the U.S. 
Court of Appeals for the Fifth Circuit struck down a college campus code 
restricting free speech as a First Amendment violation. In an effort to 
maintain such strong free speech protections, American courts have gone to 
great lengths to restrict only the most harmful speech: that speech which 
actually incites violence. They have not restricted “hate speech” as such. 
The nations of the European Union, by contrast, understood the impact of 
free speech from their historical experience, particularly during World War 
II. The European Union is made up of 27 member states including Belgium, 
Germany, France, and the Netherlands.3 Backed by this understanding, the 
European Union aims to prevent hate speech that might lead to a similar 
genocidal path. While the United States allows for hate speech unless it is a 
threat or incites imminent violence, the EU and specifically the European 

1 Brandeis University Undergraduate, Class of 2023.
2 “Definition of HATE SPEECH.” Accessed September 24, 2021. https://www.merriam-
webster.com/dictionary/hate+speech.
3 “List of Countries in the European Union,” accessed September 24, 2021, 
https://worldpopulationreview.com/country-rankings/european-union-countries.

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https://www.merriam-webster.com/dictionary/hate+speech
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Convention on Human Rights restricts hate speech. In the United States, the 
worry in restricting hate speech stems from the fear that it would be too 
restrictive of free speech. The United States has erred on the side of caution 
for protecting Constitutional ideals while the European Union has erred on 
the side of limiting speech, fearing a return to its troublesome history. 4

These differences need not represent a deep and impassable divide. 
Rather, a standard should be created that would encourage American courts 
to look elsewhere to gain greater understanding of potential alternatives 
where new and difficult issues arise, especially where they are crucial to 
democratic values. In particular, when looking for other tactics to resolve 
legal issues that embrace core democratic values, American legal experts 
should look towards Europe, Canada, and other parts of the world which 
place a similar emphasis on democracy and free expression. Alternatives to 
America’s free speech absolutism should be considered, especially those 
proven to be successful. American courts could be inspired by other 
countries’ approaches especially when venturing into a new area of law. 
This should be akin to how Ukraine developed its intellectual property law 
through what is sometimes called “sideways integration.”5 Specifically in 
the Texas case Speech First v. Fenves and other hate speech cases, the 
United States legal system would have benefited from learning about the 
European stance on hate speech. While it may not be best to change our 
legal stances given the differences in both history and legal tradition of the 
United States, there should at least be an understanding of what other 
democratic countries have done, and that these sources may offer 
possibilities for improvement. 

In Speech First v. Fenves, the court held that the University of Texas
at Austin’s policies regulating hate speech were unconstitutional, based on 
the United States’ traditionally-broad freedom of speech interpretations. The
University of Texas at Austin’s policies restrict freedom of speech in order 
to protect students against many forms of speech, ranging from the merely 
offensive to those that may rise to the level of hate speech. The court case 

4 Ioanna Tourkochoriti, “Should Hate Speech Be Protected? Group Defamation, Party 
Bans, Holocaust Denial and the Divide between (France) Europe and the United States,” 
SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, February 23, 
2014),   https://papers.ssrn.com/abstract=2400105  .
5Andrii Neugodnikov, Tetiana Barsukova, and Roman Kharytonov, “Protection of 
Intellectual Property Rights in Ukraine in the Light of European Integration Processes,” 
Journal of Politics and Law 13, no. 3 (2020): 203-11.

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

discussed the claim “that students ‘are afraid to voice their views out of fear 
that their speech may violate University policies.”6 A democracy, 
particularly one with our constitutional history, relies on free discourse, the 
exchange of ideas, and dissent in order to come up with solutions to political
issues. The Court notes “that Speech First’s three student-members at the 
University have an intention to engage in a certain course of conduct, 
namely political speech” which is the focus of First Amendment 
protections.7 As noted in the case, their policies restrict “verbal harassment” 
and speech qualifying as “‘harassment,’ ‘intimidation,’ and ‘incivility,’” in 
addition to “the Hate and Bias Incidents policies against ‘bias incident[s]’ 
and ‘campus climate incident[s].’”8 The Court ruled that these terms are too 
unclear and vague to be allowable restrictions on freedom of speech. 
Instead, these terms “arguably cover the plaintiffs’ intended speech” 
including the area of political speech, and therefore violate the First 
Amendment’s protections.9 Unlike other school settings where some 
necessary discipline is protected under the Tinker rationale, public 
universities have fewer prerogatives to restrict speech based on educational 
purposes. The case of  Tinker v. Des Moines underlining the Tinker rationale
provides the basis for freedom of speech application in the public school 
setting.10 Tinker decided that public school students deserve the same free 
speech guarantees as adult citizens with the only exception being where 
schools’ educational interest is being hampered.11 Universities educate adult 
students, provide a greater level of independence, and cultivate engagement 
within civil society. Freedom of speech is a core value that Americans 
cherish. While this case shows the First Amendment at work through 
American legal theory, Europe’s outlook on free speech, expression, and 
hate speech could provide insight into alternative balances.

6 Edith H. Jones. Speech First, Incorporated, v. Gregory L. Fenves, In His Official 
Capacity as President of the University of Texas at Austin, No. 19-50529 (United States 
Court of Appeals for the Fifth Circuit October 28, 2020) 18.
7 Fenves,18-19.
8 Fenves, 19.
9 Fenves, 19.
10 “Facts and Case Summary - Tinker v. Des Moines,” United States Courts, accessed 
September 24, 2021,   https://www.uscourts.gov/educational-resources/educational-activities/  
facts-and-case-summary-tinker-v-des-moines.
11 “Facts and Case Summary - Tinker v. Des Moines.”

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

“Sideways integration” occurs when a country’s courts look towards 
other countries for insight into alternative resolutions of a certain legal issue.
What scholars call the “common core” is an attempt to encourage legal 
integration through extensive research into specific legal issues, with a view 
towards finding commonalities in legal responses around the world. These 
commonalities and common trends are then used to present best practices 
which judges can incorporate into their reasoning in decisions. The United 
States maintains a unique position in free speech law as the least restrictive 
country, as evidenced in its allowance of hate speech. Europe, however, 
serves as an example of a legal system that balances complexities in the 
maintenance of democratic values. The U.S. courts need to rely on the U.S. 
Constitution and statutes in their decisions, but that still allows for them to 
incorporate the experience of other countries. We could learn from the 
experience of Europe that restricting hate speech and harassment actually 
allows for freer speech since potential participants in public discourse are 
not discouraged from engaging. The courts could justify allowance of 
restrictions like those found in the University of Texas at Austin by applying
European experience. Free speech could be enhanced through hate speech 
restrictions as seen through the European experience because hate speech 
intimidates and discourages other voices. These restrictions could help 
protect speech and be consistent with the greater goals of the First 
Amendment, in contrast to the court’s ruling in Fenves.

If the Court had implemented sideways integration from Europe or 
the common core, Speech First v. Fenves would have had the opposite 
outcome. While there is no international definition of ‘hate speech,’ there 
are several provisions of international law outlawing particular aspects of 
hate speech.12 Article 20 of the International Covenant on Civil and Political 
Rights (1966) focuses on advocacy of hate while Article 4 of the 
International Convention on the Elimination of Racial Discrimination (1965)
focuses on disseminating hateful ideas.13 Such provisions arguably protect 
free discourse in respect to a democracy by enabling marginalized groups 
greater security when expressing ideas. In Article 10 of the European 
Convention on Human Rights, for example, the right to free speech is 

12 Sejal Parmar, “The Legal Framework for Addressing ‘Hate Speech’ in Europe” 
(International Conference: Organised by the Council of Europe in partnership with the 
Croatian Agency for Electronic Meeting, Zagreb, Croatia, November 6, 2018).
13 Parmar, “The Legal Framework for Addressing ‘Hate Speech’ in Europe.”

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maintained through freedom of expression, but comes along with duties and 
restrictions including protecting other citizens, national security, and 
protection of reputation. Article 17 restricts speech or conduct leading to 
interference with other rights and freedoms which also can result in conflicts
in the application of Article 10. Merely “offensive speech” is allowed, but 
the European Court of Human Rights’ decision in Erbakan v. Turkey noted 
that “as a matter of principle it may be considered necessary in certain 
democratic societies to sanction or even prevent all forms of expression 
which spread, incite, promote, or justify hatred based on intolerance.” 
Despite the success of such approaches in Europe, American law still 
maintains that restricting speech, especially political speech, is always 
problematic and restrictive of democracy. This claim may be wrong, as 
shown in Europe through their continued maintenance of strong 
democracies, discussed later, while still restricting hate speech. Democratic 
principles evolve, and given the harmful impacts of hate speech, free speech 
could potentially be better protected and encouraged in an environment in 
which virulent hate speech has no place. 

For example, consider the Féret v. Belgium case, which directly 
handled political speech and the harmful effects of hate speech. The 
European Court of Human Rights ruled that the politician Daniel Feret was 
properly punished under Belgian law for speech that demeaned people on 
the basis of religion and national origin.14 Since people could have felt 
threatened by this speech which demeaned them, they would probably be 
less likely to speak. The Court noted that statements like Feret’s are a threat 
to peace and stability in Belgium as racist hate speech devalues democratic 
principles, including diversity and plurality. This reasoning is similar to the 
argument that by restricting hate speech the United States would actually 
enable political speech to thrive. Both this speech and this conduct are 
protected by the First Amendment, but incorporating some of the European 
Article 10’s restrictions could make American constitutional law more 
faithful to its constitutional and underlying democratic ideals. This 
incorporation could allow for and protect more laws at both the state and 
federal level that are restrictive of hate speech while being specific and 
limited enough to keep almost all speech free. European free speech law 
restricts hate speech much more than American courts do, but also fosters 

14 “Féret v. Belgium,” Global Freedom of Expression, accessed September 27, 2021, 
https://globalfreedomofexpression.columbia.edu/cases/feret-v-belgium/.

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

democracy’s ideal of allowing for extremely wide, legitimate political 
dissent.

Despite what an American may expect, European democracies thrive
even with these restrictions on hate speech. The slippery slope argument, 
that any free speech restriction will lead to worse ones, is not inevitable or 
even likely.  It has not happened in Europe.  In fact, several European 
democracies show higher voter turnout than ours: six out of the 10 countries 
with the highest voter turnout are European, with a range from 87.21% to 
71.65% of voter turnout.15 The Netherlands has the sixth highest voter 
turnout at 77.31% and has several political parties, showing that political 
discourse is vibrant. The United States by contrast has a voter turnout of 
55.70%.16 Voter turnout is an important indicator of democracies’ health as 
it shows the level of participation. Freedom of speech is a central component
of democratic participation tied to voter turnout. Much like how voters voice
their assessment of the government and government agents through their 
vote, freedom of speech allows further avenues of critique and idea 
development. The United States inspired several countries to become 
democratic through the American Revolution and its talk of freedom and 
representation. Despite how several countries modeled themselves on the 
American example, the United States is still quite unique. Some of this may 
be through differences in other countries’ democratic development including
revisions and potential improvements. The European outlook on hate 
speech, which has become more common across the world’s democracies, 
may be one of these improvements. 

As First Amendment precedents are well-founded, this would not 
clearly fall under the “new area of law” aspect of the standard. Nevertheless,
it would fit the other aspect of the standard, which encourages a comparative
approach in tricky legal issues, especially those balancing democratic values
and protecting against harm. Current free speech law in the United States 
attempts to protect a “marketplace of ideas” vision of open dialogue and 
space for dissent. Among the few allowable restrictions are those that are 
placed in content-neutral ways that only restrict the time, place, and manner 
of the expression.17 These laws and precedents’ only content-based 
restrictions are those which aim to protect against harms like that of 

15 “Voter Turnout by Country 2021,” accessed September 24, 2021, 
https://worldpopulationreview.com/country-rankings/voter-turnout-by-country.
16 “Voter Turnout by Country 2021.”

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

incitement to imminent danger, “fighting words,” threats, obscenities, and a 
few torts. In balancing this duality, an evolving First Amendment 
interpretation could account for other aspects of the Constitution that work 
to protect competing democratic values of freedom. Hate speech could be 
restricted to some extent while keeping robust and constructive democratic 
debate unrestricted by authorities. This would allow for a truly free 
discourse and a lively engagement with ideas, similar to what European laws
do. 

Continuing in the First Amendment legal tradition, hate speech could
be restricted as a defense of democracy and an unsullied “marketplace of 
ideas,” similarly to the European law. Hate speech inhibits free speech by 
causing people in protected classes or marginalized groups to feel 
unwelcome and potentially unable to speak. Hate speech could prevent 
incredible thinkers from having the courage to express themselves and 
contribute productively to our communities. Hate tends to drown out 
productive thinking and overwhelm other opinions. By restricting hate 
speech, democracy would be encouraged and an open thriving dialogue 
would be more possible. The “marketplace of ideas” would be more open 
and encouraging for all participants.

While one may argue that courts are legal entities and should only 
focus on individual plaintiffs’ rights  at issue in each case and not care about
enhancing democracy, hate speech and harassment raise both of these vital 
roles that the courts hold. Courts serve as a check to political entities and 
various political interests. Through serving as this important balance, courts 
act to resolve legal problems as their decisions are applicable beyond each 
individual case and each individual case brings with it important legal 
issues. Courts are both legal and political entities, as some of their more 
contentious cases touch on political issues, and their decisions may 
unavoidably affect life and political actions. An independent judiciary is 
crucial to democracy, in part because it adds a different perspective to a 
wide range of difficult questions. The judiciary also helps define terms and 
legal ranges of possibility. Courts decide issues through legality, fairness, 
reason, rationality, and predictability. They also rely on past experience, 
expertise, and a wealth of knowledge through precedent, expert witnesses, 

17 Kevin Francis O’Neill, “Time, Place and Manner Restrictions,” accessed September 27, 
2021,   https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-  
restrictions.

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and research. The legal argumentative process allows for the airing of both 
sides of arguments in a “marketplace of ideas” where each side is on equal 
footing. The courts are naturally involved in democracy including the 
enhancement of it through their complementary role.

 Legal and historical backgrounds provide divergent contexts 
between the United States and Europe which help explain their differences 
in free speech law. Their different contexts produce different approaches, 
both of which can be beneficial for the other to learn from. This is especially
true when approaching new areas of law. When the United States develops a
new area of law, it could make sense to refer to other countries for insight, 
similar to the practice of referring to precedent. Prior experience can help 
other judicial systems see what to do and what not to do, and see what types 
of law and legal practices lead to what kinds of outcomes. In the 
development of new areas in other fields, we regularly look towards 
expertise. We should do the same in the legal arena through the use of 
sideways integration and common core incorporation. 

Ukraine provides an example in the case of intellectual property. 
Ukrainian legislation in intellectual property “began to take shape in 1993” 
protecting certain intellectual property rights.18 These laws mainly focused 
on patents out of which other intellectual property rights could and would 
grow. The article notes that “[i]n Ukraine, the development of legislative 
regulation of free software is very poor, so the involvement of foreign 
experience may be appropriate.”19 In developing their intellectual property 
law, “Ukraine must bring its legislation in line with the Agreement on 
Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1993, which 
is one of the main legal documents of [the WTO].”20 Ukraine adopted the 
European Community’s patent laws, trademark law, licensing agreements, 
and copyright laws in a way that harmonizes their laws with the rest of 
Europe as a prime example of sideways integration. This could prove a 
helpful example in the United States’ legal development.

18 Neugodnikov, Barsukova, and Kharytonov, “Protection of Intellectual Property Rights in
Ukraine in the Light of European Integration Processes” 204.
19 Neugodnikov, Barsukova, and Kharytonov, “Protection of Intellectual Property Rights in
Ukraine in the Light of European Integration Processes” 206.
20 Neugodnikov, Barsukova, and Kharytonov, “Protection of Intellectual Property Rights in
Ukraine in the Light of European Integration Processes” 206.

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Integration should not be compulsory in developing new areas of 
law, but American courts should respect this resource more than they 
presently do. Taking inspiration from the European example and creating 
improvements on American freedom of speech could create a new standard 
which can particularly help in situations when there are several core 
democratic values being balanced. European freedom of speech with its 
exclusion of hate speech takes into account more than simply a limitless idea
of freedom. Expertise and a greater amount of experience helps and could 
only improve legal development. Given the variety within each area of law, 
the standard should not force acceptance or application of legal principles or
rules that do not make sense. Despite this difficulty, the standard could and 
should encourage learning from outside experience and having clear 
comparisons especially with a focus on the contexts around each legal 
theory and history.

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Works Cited
“Definition of HATE SPEECH.” Accessed September 24, 2021. https://

www.merriam-webster.com/dictionary/hate+speech.
Edith H. Jones. Speech First, Incorporated, v. Gregory L. Fenves, In His

Official Capacity as President of the University of Texas at Austin, 
No. 19-50529 (United States Court of Appeals for the Fifth Circuit 
October 28, 2020).

United States Courts. “Facts and Case Summary - Tinker v. Des 
Moines.” Accessed September 24, 2021. https://www.uscourts.gov/
educational-resources/educational-activities/facts-and-case-
summary-tinker-v-des-moines.

Global Freedom of Expression. “Féret v. Belgium.” Accessed 
September 27, 2021. 
https://globalfreedomofexpression.columbia.edu/cases/feret-v-
belgium/.

“List of Countries in the European Union.” Accessed September 24, 
2021. 
https://worldpopulationreview.com/country-rankings/european-
union-countries.

Neugodnikov, Andrii, Tetiana Barsukova, and Roman Kharytonov. 
“Protection of Intellectual Property Rights in Ukraine in the Light 
of European Integration Processes.” Journal of Politics and Law 
13, no. 3 (2020): 203–11.

O’Neill, Kevin Francis. “Time, Place and Manner Restrictions.” 
Accessed September 27, 2021. https://www.mtsu.edu/first-
amendment/article/1023/time-place-and-manner-restrictions

Tourkochoriti, Ioanna. “Should Hate Speech Be Protected? Group 
Defamation, Party Bans, Holocaust Denial and the Divide between 
(France) Europe and the United States.” SSRN Scholarly Paper. 
Rochester, NY: Social Science Research Network, February 23, 
2014. https://papers.ssrn.com/abstract=2400105.

“Voter Turnout by Country 2021.” Accessed September 24, 2021. 
https://worldpopulationreview.com/country-rankings/voter-turnout-
by-country.

Cases Cited
Féret v. Belgium, 15615/07 Eur. Ct. H.R. 573 (2009)

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https://worldpopulationreview.com/country-rankings/voter-turnout-by-country
https://worldpopulationreview.com/country-rankings/voter-turnout-by-country
https://papers.ssrn.com/abstract=2400105
https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions
https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions
https://worldpopulationreview.com/country-rankings/european-union-countries
https://worldpopulationreview.com/country-rankings/european-union-countries
https://globalfreedomofexpression.columbia.edu/cases/feret-v-belgium/
https://globalfreedomofexpression.columbia.edu/cases/feret-v-belgium/
https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-tinker-v-des-moines
https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-tinker-v-des-moines
https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-tinker-v-des-moines
https://www.merriam-webster.com/dictionary/hate+speech
https://www.merriam-webster.com/dictionary/hate+speech


Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

Speech First v. Fenves, 95 U.S. Fifth Circuit 2197 (2020)
Tinker v. Des Moines, 393 U.S. 503 (1969)
Erbakan v. Turkey, 59405/00 Eur. Ct. H.R. 410 (2006)

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