It also illustrates how many of the same human rights that the U.S. Supreme Court has interpreted and applied are protected by others in a similar way." (Youm, 2007)
It is noted that Louis Henkin stated of the U.S. constitutional system and international human rights, that each of these continue to influence each other. U.S. constitutional jurisprudence is invoked by international bodies, in particular by the European and the Inter-American human rights courts. U.S. courts are only beginning to look at the growing jurisprudence in the judgments of foreign constitutional courts or of international human rights courts. The texts of the U.S. Constitution and the European Convention on Human Rights are far from the final words on freedom of expression. Various free speech theories influence and shape legal doctrines through judicial interpretations of the First Amendment and Article 10. Case law on the First Amendment and Article 10 thus is essential to find the meaning and scope of freedom of expression. Free speech law of the United States and Europe, as epitomized by the First Amendment and Article 10, respectively, is more evolutionary than revolutionary. The American constitutional law of freedom of expression is 'a common-law story.' Although the principle of stare decisis is not equally established in European human rights law, the ECHR gives great weight to precedents." (Youm, 2007)
Youm relates that "American courts have also developed several substantive standards for freedom of expression" one example is the "...two-level approach -- free vs. unfree speech." (Youm, 2007) Youm states that the case of Chaplinsky v. New Hampshire resulted in the U.S. Supreme Court's articulation of this categorical approach: 'There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words....' Among the types of unprotected speech besides those on the Chaplinsky list are false advertising, incitement to 'imminent' lawless action, and publication of national security information." (Youm, 2007)
Youm states that another way that the Supreme Court "demarcates First amendment protection is the speech vs. action dichotomy...It protects pure speech but allows restriction of expressive conduct, also known as 'symbolic speech' or 'speech-plus,' such as burning draft cards. The hierarchy of freedom of protected speech has been established. For example, political speech is more highly valued than any other expression, and it requires a compelling interest to justify a government regulation. Less protected is commercial speech and sexual expression that is not necessarily obscene. First Amendment standards of these types of speech are met by a substantial governmental interest. The judicial distinction among different kinds of speech restrictions has been a major characteristic of First Amendment jurisprudence. This is true especially where the restrictions relate to the government's methods of content regulation. There is the strongest of presumptions against viewpoint- based content restrictions, and they almost never survive a constitutional scrutiny. By contrast, content- neutral restrictions are more readily accepted by the Supreme Court."
Youm relates that the Supreme Court holds that "prior restraint is highly suspect" and that the Supreme Court held in the case New York Times Co. v. United States, '[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.' But subsequent punishment does not. The judicial distinction between prior restraint and subsequent punishment is derived from the differing impacts of the two on freedom of expression. In balancing freedom of speech with its conflicting societal interests, the Supreme Court applies the 'clear and present danger' test and the incitement test." (Youm, 2007)
Reformulation of the test of 'clear and present danger' is reported liberally in Brandenburg v. Ohio and Youm (2007) relates that the incitement test of Brandenburg "...allows advocacy of the use of force or criminal violation unless it 'is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Freedom of expression is recognized by the European Court of Human Rights', in Category-averse Balancing Article 10 of the European Convention on Human Rights as "foundational to a political democracy. Its inclusive definition of freedom of expression is self-explanatory: '[F]reedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless...
The overwhelming majority of ECHR case law has been concerned with how to define the restrictions on free speech. Thus, the European court is no different from the U.S. Supreme Court in that they both focus their free speech adjudication on the weighing of competing interests." (Youm, 2007)
VII. The European Court of Human Rights - Three -prong Test
Youm relates that in a review of Article 10(2)'s restrictions, "...the ECHR applies he three-prong test:
1) Is the restriction on freedom of expression 'prescribed by law'?
2) Does the restriction have a legitimate aim or aims?
3) Is the restriction 'necessary in a democratic society' for the aim or aims? (Youm, 2007)
Youm states that required first is the design which ensures "fair and even-handed governmental action vis- a-vis the restriction of the rights of citizens," and is a requirement that "...mandates a sufficient legal basis for the restrictive action of the government. Hence, it is similar to the precision principle of the First Amendment. The requisite legitimate objective of the free speech restriction is established if it relates to any of the specific goals stipulated by Article 10(2). This requirement prevents the state from restricting freedom of expression without good motives and justifiable ends. The 'prescribed by law' and 'legitimate aim' requirements of Article 10 jurisprudence are rarely a formidable challenge for the state to meet. But whether the interference with freedom of expression is 'necessary in a democratic society' is less formalistic and more demanding." (Youm, 2007)
Youm additionally relates that the ECHR has developed a test, which is a three-prong test focused on this critical issue and asks the questions of:
1) Did the interference correspond to a 'pressing social need'?
2) Was the interference 'proportionate to the legitimate aim pursued'?
3) Were the reasons presented by the state to justify the interference 'relevant and sufficient'? (Youm, 2007)
Application of this three-prong test is through use of the "principle of proportionality' and is a principle that reflects the "overbreadth doctrine of the free speech law of the United States: the government restriction should not overreach what is justifiably regulated. The margin of appreciation varies from case to case" and this mirrors the ECHR's value judgment on the subject matter." (Youm, 2007) wider margin is allowed in cases that involve speech of a commercial nature and in those, which involve morality however " a narrower margin of appreciation is allowed in relation to political expression. To a certain extent, this parallels the U.S. Supreme Court's giving priorities to political expression over other types of expression.
Eric Barendt, professor at University College London reports that the courts in London "have considered free speech questions for longer than those of any other jurisdiction.' He might have added that American courts have more often addressed a wider range of free speech issues than any others in the world. The volume and variety of U.S. case law on freedom of expression are quite substantial. Indeed, it somewhat defies a one-to-one comparison of the U.S. Supreme Court and the ECHR in their case law. This is true despite the fact that a substantial body of case law has been established by the European court in recent years." (Youm, 2007)
VIII. The U.S. Supreme Court
Established in the late 1919s and the U.S. Supreme Court begin adjuration of free speech cases. In fact, laws relating to free speech in the U.S. "arose from persecution of political dissidence, but such subversive expression is no longer at the center of the Supreme Court's First Amendment docket. Rarely does the U.S. government seek to punish dissident criticism." (Youm, 2007)
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