Eugene Volokh's Blog, page 51

[Josh Blackman] Today in Supreme Court History: July 17, 1862

7/17/1862:  Congress enacts the Confiscation Act, which empowers the government to seize the property of the rebels. The Supreme Court considered the constitutionality of that law in The Confiscation Cases (1873).

The Chase Court (1873)

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[Josh Blackman] President Trump To Nominate Jennifer Mascott To Third Circuit

I am very pleased that President Trump has announced that he will nominate Professor Jennifer Mascott to the Third Circuit.

I am pleased to nominate Jennifer Mascott to serve as a Judge on the United States Court of Appeals for the Third Circuit. Jennifer clerked for Justice Clarence Thomas and Justice Brett Kavanaugh, where she learned much about upholding the Constitution, and safeguarding our…

— Trump Truth Social Posts On X (@TrumpTruthOnX) July 16, 2025

I have known Jenn for more than a decade, and have always found her to be a thoughtful scholar, a sharp lawyer, and a kind person. Perhaps most importantly, Jenn has proven herself to be the rare academic with strong scholarly bona fides and practical experience in public affairs. Jenn served in the Office of Legal Counsel during Trump's first term, and now serves in the White House Counsel's Office. That background will serve her well on the federal bench.

Congratulations to Jenn!

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[Ilya Somin] A Compelling Defense of Immigration Parole Programs

[My Cato Institute colleague David Bier presented it in testimony before a congressional committee.]

Venezuelans fleeing the socialist regime of Nicolas Maduro. (NA)

 

In recent testimony before the House Subcommittees on Oversight, Investigations, and Accountability and Border Security and Enforcement, of the Committee on Homeland Security, my Cato Institute colleague David Bier presented a strong defense of the legality, justice, and effectiveness of immigration "parole programs," which allow broad categories of migrants fleeing war and oppression to enter the US legally. As he describes, there is a long history of such programs, most recently those created by President Biden for migrants from Ukraine fleeing Russian invasion (the Uniting for Ukraine program), and four Latin American nations beset by violence and socialist tyranny (the CHNV program).

David is one of the nation's leading immigration policy experts, and his testimony is must-reading for anyone interested in this issue. Here is a summary:

One legal way for immigrants to enter and participate in US society is parole, an immigration category first created by Congress in the Immigration and Nationality Act of 1952. Over the decades since then, millions of individuals have entered this country as parolees. Although parole is a temporary status, it allows immigrants to adjust to lawful permanent residence if they are eligible through another pathway, which many thousands of parolees have done. Many former parolees are now Americans and continue to contribute to their new home. It is an essential and important feature of America's legal immigration system.

Congress should:

protect current parolees from the president's mass deportation efforts; reinstitute the parole processes suspended by the president; and expand those processes to give more people a viable legal option to immigrate legally to the United States.

David explains the advantages of these programs, and ably addresses a variety of legal and policy objections.

I have defended the legality of CHNV in a Supreme Court amicus brief, and in an earlier amicus brief in Texas v. Department of Homeland Security, a lawsuit filed by twenty GOP-controlled states (that case was eventually dismissed by a conservative Trump-appointed federal judge for lack of standing). I also defended it in a 2023 article in The Hill, and criticized Trump's attempts to revoke it in a March 2025 post.

See also my various writings on the success of Uniting for Ukraine and what we can learn from it.

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[Eugene Volokh] Dungeons & Defamation

A new libel complaint in Clark v. Gygax (that would be Gary Gygax's son Luke Gygax), over a failed Kickstarter related to a planned new installment in a "tabletop game," "Castle Wolfmoon":

In the published post, Defendant made numerous knowingly false statements, including claims that Plaintiff was misappropriating Gary Gygax's name, that Plaintiff was lying to the public about the Castle Wolfmoon project's authorship, and that Defendant was not associated with the project.

This is of course just at the Complaint stage, so we know only the allegations. But it naturally piqued my interest (as a D&D player from back in the 1970s), and I thought it might likewise interest some readers.

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[Eugene Volokh] Legislature May Choose What Viewpoints May or May Not Be Taught in Public Schools

From today's decision in Walls v. Sanders, by Eighth Circuit Judge Steven Grasz, joined by Judges James Loken and Raymond Gruender (which I think is generally correct):

[T]he government's own speech "is not restricted by the Free Speech Clause," so it is free to "choose[ ] what to say and what not to say." …

[Arkansas law, "Section 16,"] directs the Arkansas Secretary of Education to ensure the Arkansas Department of Education complies with Titles IV and VI of the 1964 Civil Rights Act by reviewing its communications and materials to see if they "promote teaching that would indoctrinate students with ideologies such as Critical Race Theory, otherwise known as 'CRT', that conflict with the principle of equal protection under the law or encourage students to discriminate" based on someone's protected characteristics. The Secretary must also "amend, annul, or alter" any "rules, policies, materials, or communications that are considered prohibited indoctrination" and "review and enhance the policies that prevent prohibited indoctrination." "Prohibited indoctrination" is defined as:

communication by a public school employee, public school representative, or guest speaker that compels a person to adopt, affirm, or profess an idea in violation of Title IV and Title VI of the Civil Rights Act of 1964, including that:

(1) People of one color, creed, race, ethnicity, sex, age, marital status, familial status, disability status, religion, national origin, or any other characteristic protected by federal or state law are inherently superior or inferior to people of another color, creed, race, ethnicity, sex, age, marital status, familial status, disability status, religion, national origin, or any other characteristic protected by federal or state law; or

(2) An individual should be discriminated against or receive adverse treatment solely or partly because of the individual's color, creed, race, ethnicity, sex, age, marital status, familial status, disability status, religion, national origin, or any other characteristic protected by federal or state law.

Section 16 expressly excludes from its prohibition: (1) discussions about "[i]deas and the history of concepts described" in the "prohibited indoctrination" definition; and (2) discussions about "[p]ublic policy issues of the day and related ideas that individuals may find unwelcome, disagreeable, or offensive." A teacher who violates Section 16 by engaging in "prohibited indoctrination" "could be punished (up to losing his or her license) by the State Board of Education."

Students challenged Section 16 on Free Speech Clause, but the Eighth Circuit rejected that argument:

Though a listener's right to receive information means the government cannot stop a willing private speaker from disseminating his message, that right cannot be used to require the government to provide a message it no longer is willing to say. After all, "[w]hen the government wishes to state an opinion, to speak for the community, to formulate policies, or to implement programs, it naturally chooses what to say and what not to say," unrestrained by the Free Speech Clause. The government is ultimately accountable to its citizens for its speech through elections, so the government may change the message it promotes in response to the political process.

Students do not possess a supercharged right to receive information in public schools that alters these principles. Just as ordinary citizens cannot require the government to express a certain viewpoint or maintain a prior message, students cannot oblige the government to maintain a particular curriculum or offer certain materials in that curriculum based on the Free Speech Clause.

The court also rejected an academic freedom claim (a claim that some courts have accepted as to public higher education, but that has generally not been accepted as to K-12 education):

Board of Education v. Pico (1982) …, which dealt with a school board's decision to remove certain books from school libraries, is of little help to [the students';] cause…. Pico lacks any holding as to the First Amendment ….

Even considering the persuasive value of the principal plurality opinion which concluded students had a right to receive books previously added to a school library, it distinguished the school library from the classroom and recognized that the government has a "claim of absolute discretion in matters of curriculum" and "the compulsory environment of the classroom" to carry out its "duty to inculcate community values." The other Pico opinions that discussed the First Amendment's Free Speech Clause also cast doubt on the Clause's role as a check on curriculum choices. Here, we deal not with books in a library, but instead with in-classroom instruction and materials in a high school. If Pico is any guide, Arkansas has substantial, if not absolute, discretion in selecting what materials and information to provide in its public school classrooms.

[Pratt v. Indep. School Dist. No. 831 (8th Cir. 1982)] is closer to the present case. There, we concluded "school boards do not have an absolute right to remove materials from the curriculum" if the removal "was intended to suppress the ideas expressed" in the removed materials…. [But] Pratt, which was decided in 1982, predates the numerous Supreme Court decisions holding that the government is permitted to engage in viewpoint discrimination when it speaks. Since Pratt, the Supreme Court has instructed that a court must consider "principles applicable to government speech" when the issue involves "speech by an instructor or a professor in the academic context."

The present case deals directly with such in-classroom instructional speech, as all parties agree. Pratt omitted the crucial step of considering whether the speech at issue was the government's and therefore not subject to the Free Speech Clause's restrictions. Indeed, its test resembles the one applied to the government's regulation of student speech in school-sponsored settings. We have not reaffirmed Pratt's application to a Free Speech Clause challenge since the proliferation of the government speech doctrine. In similar circumstances where subsequent Supreme Court cases have demonstrated that our earlier panel decision engaged in "only half of the analysis" required to address the issue, we concluded we were not bound to reach the same result as our prior precedent.

Despite the clear incompatibility of Pratt's imposition of a viewpoint discrimination limitation and the Supreme Court's government speech doctrine, the students argue we should still follow it in the narrow circumstance where the government is alleged to have changed a pre-existing curriculum for "partisan or political" reasons. But "virtually all educational decisions necessarily involve 'political' determinations," so any time something is removed from the curriculum based on the decision of a democratically elected government entity, it could be characterized as a "partisan or political" choice.

We see no basis in the Free Speech Clause to conclude the students would have a right to prevent something from being removed from the curriculum based on ideology if they do not also have a right to require the school to add materials. And the students reasonably concede they lack the latter right. Given that this asserted right only runs in one direction, the students' proposition would create an incumbency bias that erodes democratic accountability for government speech. Any time the government seeks to alter the curriculum by removing materials, it would face potential challenges that it is doing so for perceived ideological reasons.

By applying this test only when materials are removed, we essentially assume that the preexisting curriculum reflects some neutral ideal. If the removed materials were added to the curriculum for "partisan or political" reasons, future governments should surely be free to remove those materials to reflect new priorities based on voters' wishes. Nevertheless, under the students' proposed rule, the government is stuck with those materials unless it can sufficiently convince a court that it is removing them for non-ideological reasons. And removing materials because those materials were added to promote "partisan interests" could itself be classified as suppressing a particular ideological viewpoint from the classroom and therefore an improper ideological motivation for modifying the curriculum.

{ Indeed, this case suggests how such an explanation would likely result in litigation. While the Arkansas officials dispute that Section 16 prohibits teaching about CRT, their brief argues they could remove such materials even under the students' test because the materials promote an "ideolog[y] that … urg[es] openly race-based policies"—in other words, they view teaching about CRT as inculcating a certain ideological position.

Ultimately, if we followed the students' approach, a government could not successfully defend its decision to change the curriculum by arguing that it was responding to the electorate and the political process. Such an outcome runs headlong into the Supreme Court's government speech cases, which repeatedly emphasize the role of the political process and elections in regulating government speech. Typically, "[i]f the citizenry objects, newly elected officials later could espouse some different or contrary position." Thus, we usually permit changes in government speech motivated by the political process, rather than declare them unconstitutional.

It would be odd to treat government speech in schools differently since "the education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges." We decline the students' invitation to make the school curriculum uniquely static and unaccountable. We therefore conclude that Pratt's test has been abrogated by the Supreme Court.

We do not minimize the students' concern—whether in this case or in the abstract—about a government that decides to exercise its discretion over the public school curriculum by prioritizing ideological interests over educational ones. But the Constitution does not give courts the power to block government action based on mere policy disagreements. The right to receive information cited by the students in support of the preliminary injunction does not authorize a court to require the government to retain certain materials or instruction in the curriculum of its primary and secondary public schools, even if such information was removed for political reasons. Since the speech belongs to the government, it gets to control what it says….

The court also rejected a vagueness objection to the law, on procedural grounds.

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[Josh Blackman] Professor Barrett Was At Home In CASA

After the Supreme Court decided Trump v. CASA, the Wall Street Journal editorial page took a victory lap. The editors, who have consistently defended Barrett, wrote "What an end-of-term rejoinder to the MAGA loudmouths who have been complaining that Justice Barrett is a pushover." On July 4, the WSJ published a letter to the editor as a follow-up:

A few months ago I ran into Justice Neil Gorsuch and lamented some of his colleagues' recent opinions. I criticized Justice Amy Coney Barrett and Justice Ketanji Brown Jackson in particular, both of whom had recently ruled against the Trump administration. Justice Gorsuch was characteristically gracious and spoke of how each was entitled to his own opinions.

I once was what your editorial "The Supreme Court Kills 'Universal' Injunctions" (June 28) refers to as a "MAGA loudmouth." After reading Justice Barrett's superb opinion in Trump v. CASA, I am a repentant MAGA loudmouth. She is a star—and I regret ever doubting it.

Joel Marks

Richmond, Va.

Did this encounter with Justice Gorsuch actually happen? I find this conversation so implausible. And I cannot find any record for a Joel Marks who is an attorney in Richmond. I searched the Virginia State Bar for a Joel Marks and found nothing. I did find a news story from Henrico County, Virginia, where a Joel Marks complained about a broken water main.

I provide this background to illustrate how poorly the criticism of Justice Barrett is understood. If Marks criticized Barrett for simply ruling against Trump, he has no idea what he is talking about. And if he thinks that Justice Barrett's decision in CASA suggests she will not rule against Trump in the future, then Marks really has no clue what he is talking about. Why then did the WSJ give Marks the time of day? Marks fit the template--those who doubted Justice Barrett now have no doubts.

My doubts remain. Indeed, they are reinforced. These doubts predated Trump's re-election, and were never premised on whether Barrett rules for Trump. Brackeen and Vidal are critical data points, combined with a string of emergency docket rulings, and a consistent record of denying cert on important cases. My concern is this: how much evidence does Barrett requires to reach an originalist ruling? Academics, as a whole, require fully-developed theories based on a volume of scholarly articles to reach a solid conclusion. Judges, generally, do not.

Trump v. CASA should not have been a particularly difficult case. There is fairly overwhelming evidence that universal injunctions are recent innovations, and that under Grupo Mexicano, such novelty is doubtful. Justices Thomas and Gorsuch reached this conclusion years ago with ease. I can imagine Justice Scalia disposing of this case pretty easily.

Yet, Justice Barrett's opinion reads like a law review article that summarizes the academic literature. On point after point, Barrett contrasts the views of Sam Bray, Will Baude, and Michael Morley on the one hand with the views of Mila Sohoni on the other. Indeed, Barrett refers to Amanda Frost as the "mainstream" view. For readers of this blog, these names may be familiar. But for most lawyers, this sort of scholarly debate is quite esoteric.

Footnote 7 illustrates the point.

7There is some dispute about whether Wirtz was the first universal injunction. Professor Mila Sohoni points to other possible 20th-century examples, including West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Lewis Publishing Co. v. Morgan, 229 U. S. 288 (1913). See M. Sohoni, 133 Harv. L. Rev., at 943; Brief for Professor Mila Sohoni as Amica Curiae 3; see also post, at 21 (opinion of SOTOMAYOR, J.). But see M. Morley, Disaggregating the History of Nationwide Injunctions: A Response to ProfessorSohoni, 72 Ala. L. Rev. 239, 252–256 (2020) (disputing these examples).

Justice Sotomayor in dissent argues that West Virginia v. Barnette and Pierce v. Society of Sisters were examples of universal injunction. Yet, in a footnote, Justice Barrett leads off by citing Professor Sohonoi, with a see also to Justice Sotomayor's dissent! Doesn't that seem backwards? Shouldn't the Justice come first? And does Justice Barrett discuss those landmark cases, and explain why Sotomayor is wrong? No, she includes a But see citation to Michael Morley who "disputes" those examples. I suppose it is fair enough to cite a law review article that parses some history or arcana. But wouldn't it fall to a Supreme Court majority on how best to interpret landmark Supreme Court cases? I would like to know why Barnette and Pierce did not approve of universal injunctions. This is the sort of footnote that is all too common in academia. When there is contrary authority, just cite someone else who disputes it. But this is not how the Supreme Court usually handles a central disagreement.

I am grateful that Bray, Baude, and Morley have made such a compelling case against universal injunctions. But what if they hadn't? What if the theoretical framework was not so airtight? What if some earlier injunctions could plausibly have been characterizes as universal? Or what if this case came to the Court several years ago when many of these arguments were still being developed? Would Barrett have had enough of a theory to go on? I'm not sure. In short, Justice Barrett was able to write the strong opinion she did because of the scholarly work done by others. What would she have done in a case like Lopez, or even Heller, where the scholarly literature was not so solid?

We will have to wait for the next case that presents a novel constitutional question, and where there is not a clear scholarly consensus. That will provide the real test of where Justice Barrett is--and not the uncertain views of a MAGA loudmouth.

I appreciate my friend Ilya Shapiro's defense of Justice Barrett in the Washington Post. I find myself in agreement with much of it. Still, there are caveats. Ilya writes that Barret "will join the conservative majority on the substance of issues that are squarely presented [like] overturning Roe v. Wade." But Barrett voted to deny cert in Dobbs, and the Court only took the case after (likely) Justice Kavanaugh granted cert. Ilya writes that Barrett gave "Trump the immunity he needed to escape the lawfare he faced in the run-up to the last election." Sort of. It isn't clear which parts of the majority opinion she actually joined, and she would have allowed a trial to consider a range of otherwise immune conduct. Ilya writes that Barrett has "join[ed] the conservative majority" to "preserv[e] religious freedom." Except she refused to join Justices Thomas, Alito, and Gorsuch on overruling Employment Division v. Smith, and has shown no interest in revisiting the interest since Fulton.  Ilya wrote that Barrett voted to "end[] racial preferences in college admissions." But she has denied review in cases where schools are flagrantly violating Students for Fair Admissions. Justice Barrett's Skrmetti concurrence read like the efforts of a law professor to make sense of Footnote Four--a Footnote that has no basis in the Constitution. I am still befuddled why Justice Thomas joined it, given that he agreed with Justice Scalia that Footnote Four should be jettisoned. And Ilya does acknowledge Barrett's opinion in Murthy, which erected an almost insurmountable standard for standing.

I could go on, but I won't. At a high level, Barrett's record look great. But if you drill down just a bit, things look differently. See the wall of receipts.

Still, OT 2024 was far better for Barrett than last term, or the term before. If we are grading terms, I would give her a solid B. I would give Justice Kavanaugh a B+. And Justice Gorsuch would get an A-. All three Trump appointees lose points for AARP. There is always hope for next term.

And with that, I have finished blogging about the decisions of the OT 2024 Term. Perhaps.

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[Josh Blackman] Congratulations To Kirill Muzyka, Chief Justice of FantasySCOTUS for OT 2024

Kirill Muzyka

The October 2024 Term of FantasySCOTUS finally came to a close. On the whole, this term was a less predictable than some recent terms. In the aggregate, our crowd predicted 76.36% of the cases accurately, down from 83.05% of the cases accurately last term.

I am happy to announce that the Chief Justice is Kirill Muzyka. Players receive ten points for each correct prediction of a Justice's vote. We recorded 55 merits cases (DIGs do not count). A perfect score would have been 4,950 points. Kirill scored 4,840 points.

Here is the Top 10:

I usually ask the winner several questions to figure out their approach to predicting cases. Kirill's response was so thorough and insightful, that I reproduce it in its entirety:

My name is Kirill Muzyka. I'm from St. Petersburg, Russia, and I'm currently finishing my master's degree in Political Science at the London School of Economics.

My interest in American politics began quite some time ago, but I became especially focused on the U.S. Supreme Court in 2020, following the death of Justice Ginsburg. Her passing turned the Court into a major topic of public debate during the election, and that moment drew my attention. I eventually wrote a paper during my undergraduate studies on the Supreme Court's role in the polarization of American politics, and my interest in the Court has only grown since then.

What particularly drew me in was the contrast between the legal system in the U.S. and in my own country. The Supreme Court's dual nature — both legal and political — was fascinating to me. I was also struck by how the Justices manage to maintain respectful, even friendly, relationships despite deep ideological divisions. That kind of civility seemed rare and especially meaningful in today's political climate.

Since 2022, I've been listening to all oral arguments and making predictions about case outcomes for myself. In 2023, I began submitting predictions publicly through FantasySCOTUS. I've also read all of the Court's opinions from the past 2 terms. I really enjoy trying to understand the different perspectives each Justice brings, and I often try to reconstruct their arguments myself to determine which position I find most compelling. While I'm not a lawyer, I appreciate how the Justices generally write in a way that's accessible to an educated reader. In that sense, I'm especially fond of the opinions by Justices Kagan, Gorsuch, and Barrett — they're usually the clearest and most engaging to read.

When it comes to making predictions, I rely primarily on oral arguments. I think the post-COVID format — where each Justice has time to ask their questions — gives a clearer picture of how they're thinking about the case. If oral arguments don't reveal a clear outcome, I turn to other background factors, like the Justices' previous decisions or their overall judicial philosophy. Some Justices make prediction easier through their questioning. For instance, Justices Alito, Sotomayor, and Jackson often clearly signal their positions during arguments, which allows for solid predictions. Others — like Justices Chief Justice Roberts and Justices Thomas and Barrett,  — tend to be more reserved and balanced in their questioning, so background information becomes more important. Justices Kagan, Gorsuch, and Kavanaugh fall somewhere in between.

When I listen to arguments, I pay particular attention to "friendly" questions — the kinds that help, rather than challenge, an advocate's position. While Justices may press both sides on weak points, they rarely throw supportive "softball" questions to the side they ultimately oppose. I also find Oyez especially helpful — having both the audio and the transcript available in the same place makes it easier to fully understand the Justices' wording and tone.

Because I've been closely following the Court only in recent years, the only personnel change I've directly experienced has been Justice Jackson's appointment. Her style is notably clearer than Justice Breyer's often convoluted questioning, and she typically makes her views evident during argument. That has made case prediction somewhat easier — though not significantly so, given that she's part of the liberal minority and doesn't often determine the outcome.

In terms of case types, I find that technical statutory cases are generally harder to predict than high-profile constitutional ones. For example, this term, cases like Feliciano, Advocate Christ Medical, Bufkin, and Stanley were among the most difficult for me. That's, in my view, because in such cases, oral argument really can make a difference — the Justices often come in without firm views and genuinely explore the issues. In contrast, in more ideological cases, the Justices often already hold strong positions and are less swayed by the details. A good example of this contrast was the one argument I attended in person while visiting the U.S. as a tourist. — Mahmoud v. Taylor. After waiting in line for seven hours, I finally got in. It was a fascinating experience, but I doubt the oral arguments had much influence on the Justices, as they seemed to have already made up their minds based on ideological grounds.

I realize it may seem unusual for a complete foreigner with no formal legal training in the U.S. to be so interested in the Supreme Court. But coming from a country where the rule of law is almost absent, it's genuinely inspiring to watch a legal institution function with such intellectual rigor. While I understand and respect the perspective of those who view SCOTUS as primarily a political institution — "politicians in robes," as some say — I believe that's only part of the story. In reality, the Justices often demonstrate complexity and depth in their reasoning, and their opinions frequently reflect that nuance.

As someone from an authoritarian background, I'm deeply impressed by a system in which judges must publicly explain their decisions (putting aside the shadow docket), where legal reasoning matters, and where debate — even among ideological opponents — can shape outcomes. While my personal political leanings tend to align more with the liberal side of the Court, I've found that many conservative opinions are more thoughtful and well-argued than they are often given credit for. In my view, the American judicial system — though far from perfect — is an institution of extraordinary interest, and I look forward to continuing to follow it closely.

Well said. The seventeenth season of FantasySCOTUS will launch on the first Monday in October 2025.

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[Natalie Alkiviadou] Hate Speech and the European Court of Human Rights: The Low Threshold Hatred Paradigm—When "Offence" Is Enough to Restrict Speech

In this third post in The Volokh Conspiracy guest series, I examine a critical issue in the European Court of Human Rights' (ECtHR) hate speech jurisprudence: its embrace of what I term the "low threshold hatred paradigm." Under this approach, expressions that offend, insult, ridicule, or defame minority groups are routinely held to fall outside the protection of Article 10 of the European Convention on Human Rights (ECHR). This, I argue, has diluted the robust speech protections previously associated with the ECtHR's celebrated precedent in Handyside v The United Kingdom (1976), a landmark case on the freedom of expression and its boundaries. As a result, the ECtHR's jurisprudence increasingly reflects not a balancing of rights, but an asymmetric favoring of state-defined "tolerance" over pluralistic expression. This approach risks insulating majoritarian or institutional viewpoints from critique under the guise of promoting social cohesion.

From allowing speech that may "shock, offend, disturb" to prohibiting offense, insult and ridicule

The ECtHR famously held in Handyside that Article 10 on the right to freedom of expression protects not only inoffensive speech, but also that which "offends, shocks or disturbs." In theory, this forms the backbone of European free speech protection. In practice, however, the ECtHR's hate speech rulings suggest a growing willingness to subordinate the Handyside principles to vague concepts such as the values and spirit of the Convention, particularly when the speech in question targets protected characteristics such as religion, ethnicity, or sexual orientation.

The paradigmatic shift can be traced most clearly to Féret v Belgium (2009), where a far-right member of parliament was criminally convicted for distributing anti-immigration leaflets during an election campaign. The ECtHR upheld the conviction, holding that statements such as "Stop the Islamization of Belgium," were likely to arouse feelings of "distrust, rejection or hatred" and thus justified interference. In a blistering dissent, Judge András Sajó warned that the majority had abandoned the foundational principle that speech must be protected especially "when we face ideas that we abhor or despise." He cautioned that "humans, including judges, are inclined to label positions with which they disagree as unacceptable and therefore beyond the realm of protected expression." According to Judge Sajó, the Féret majority treated the public as susceptible "nitwits," incapable of resisting emotional manipulation. This marked the emergence of a paternalistic framework: citizens need protection not just from direct harm, but from exposure to ideas the ECtHR deems offensive.

The "Féret doctrine" spreads: Le Pen, Zemmour and beyond

In the years since Féret, the ECtHR has cited and silently applied its logic across a range of cases. In Le Pen v France (2010), the ECtHR dismissed, without a full Article 10 review, a complaint from Jean-Marie Le Pen after he was fined for warning of a Muslim "conquest." As in Féret, there was no incitement to violence or unlawful acts, but the ECtHR found the statement "likely to arouse a feeling of rejection and hostility." In Zemmour v France (2022), journalist and politician Eric Zemmour was fined for claiming on live television that Muslims in France represent a form of "territorial occupation." The ECtHR again upheld the penalty, invoking Féret's reasoning that hate speech includes "insults, ridicule or defamation" without needing to cross into incitement. Despite acknowledging the statements touched on a matter of public interest, immigration and national identity, the ECtHR found that Zemmour's words were "not merely criticisms of Islam" but rather calls to marginalize Muslims. While Article 17 which prohibits the abuse of rights provided for by the ECHR was not formally applied, the ECtHR declared that the statements were "not protected under Article 10 in light of Article 17," blurring the boundary between exclusion and interpretation.

Political speech: still protected?

The ECtHR purports to give enhanced protection to political speech, especially during election periods. But its recent hate speech rulings appear to exempt themselves from this norm. In Féret, the ECtHR held that alleged racist speech becomes more harmful in electoral contexts, since it may "contribute to stir up hatred and intolerance." This logic was reiterated in Zemmour, where the applicant's public profile and media reach were cited as reasons for heightened responsibility. But as the dissenters in Féret argued, this effectively reverses the burden: instead of acknowledging the value of robust public debate, the ECtHR uses influence as a reason to silence it. What we are witnessing is not a careful balancing between expression and harm, but a presumption against controversial speech, especially from populist or right-wing politicians. The danger, of course, is that courts begin to enforce viewpoint-based restrictions under the cover of neutrality.

Elastic concepts of harm

A central concern throughout these cases is the ECtHR's failure to define the harm that justifies speech restriction. The ECtHR rarely explains how contested speech threatens democracy, minority rights, or public order in any concrete sense. It invokes abstract notions which it does not extrapolate on such as "social tension" and "trust in democratic institutions" but provides no standard for measuring these effects or proving a causal link between the speech and its consequences. In Féret, the ECtHR did not assess whether the applicant's leaflets led to hostility or discrimination, nor whether less restrictive measures could address the concerns. Instead, it accepted the government's position that the speech was harmful, treating emotional or reputational discomfort as sufficient for criminal sanctions. This trend continued in Lilliendahl v Iceland (2020), where a man was fined for online comments describing LGBTQ people as "sexual deviants." The comments were not widely disseminated nor where they uttered by a politician or someone else with a certain standing, yet the ECtHR upheld the penalty, holding that the expression of "disgust" itself justified restriction.

Platform, audience, and inconsistency

Another inconsistency concerns how the ECtHR weighs the medium and reach of speech. In Karataş v Turkey (1999), the ECtHR found that Kurdish nationalist poetry did not violate Article 10, partly because poetry reaches a relatively small audience. But in Lilliendahl, the limited reach of the speech (online comment under a news article) made no difference to the outcome. By contrast, in Soulas and Others v France (2008), the ECtHR found that a book's accessible style and wide distribution contributed to its potential harm. These cases reveal a lack of guiding principle. Sometimes reach matters, sometimes it doesn't. This inconsistency undermines legal predictability and reinforces the risk of arbitrary enforcement.

Toward a more coherent standard

While the ECtHR's goal of combating discrimination is principled and essential, its current trajectory in hate speech jurisprudence risks undermining the very values it seeks to protect. What is needed now is a recalibration, one that restores coherence to the ECtHR's speech doctrine and ensures that freedom of expression remains a meaningful safeguard in pluralistic democracies. At the heart of this recalibration should be a renewed commitment to the Handyside principle: the recognition that freedom of expression must extend not only to inoffensive or widely accepted speech, but also, and especially, to speech that shocks, offends, or disturbs. This foundational standard should not be treated as a rhetorical preface to judgments that ultimately uphold restrictions; it must serve as a guiding framework with substantive weight in legal reasoning. Crucially, the ECtHR must also articulate clearer thresholds for what constitutes hate speech, particularly in cases where the expression does not advocate violence or unlawful conduct. The current doctrine, where insult, ridicule, or prejudice alone can justify criminal penalties, leaves too much room for subjective interpretation and state overreach and is an anathema to the fundamental right to freedom of expression. A coherent standard requires more than abstract appeals to "social cohesion" or "democratic values"; it demands precise legal tests that distinguish between expression that merely causes discomfort and that which poses a demonstrable risk to the rights of others. To that end, restrictions on speech should be grounded in concrete evidence of harm. The ECtHR must move beyond assumptions about potential emotional injury or speculative societal disruption and instead require rigorous justification for why a particular expression crosses the threshold into legally punishable hate speech. Vague invocations of public order or institutional trust are insufficient when what is at stake is the criminalization of speech in democratic societies. Throughout the book I argue that the ECtHR must turn to the rich body of academic literature from legal and social science to support this recalibration.

Moreover, any interference with political expression must be subjected to strict scrutiny. Political discourse, even when provocative, lies at the core of democratic participation. It is in this domain that the doctrine of the margin of appreciation should narrow, not expand. Deference to national authorities cannot excuse the abdication of the ECtHR's supervisory role, particularly where laws risk silencing dissent or chilling public debate. If the ECtHR is to preserve its credibility as a guardian of democratic freedoms, it must apply these principles consistently. Protecting vulnerable groups and confronting discrimination are legitimate and necessary aims. But they must not come at the cost of abandoning the robust, principled protection of free expression. As things stand, the ECtHR's low-threshold paradigm threatens to turn Article 10 into a conditional liberty, available only to those who speak within the bounds of what is socially comfortable or politically acceptable. That is not the promise of the Convention. It is a warning sign.

[UPDATE 10:31 am from EV: Sorry, originally posted this under my own name, but it's of course Natalie Alkiviadou's guest-post; just corrected this.]

The post Hate Speech and the European Court of Human Rights: The Low Threshold Hatred Paradigm—When "Offence" Is Enough to Restrict Speech appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: July 16, 2019

7/16/2019: Justice John Paul Stevens died.

Justice John Paul Stevens

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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