Journal of Free Speech Law: "A Cure Worse than the Disease: Why the EU's Proposal to Criminalize Hate Speech Violates Freedom of Expression—and Won't Reduce Intolerance or Extremism," by Jacob Mchangama & Natalie Alkiviadou

The European Commission’s proposal to criminalize hate speech at the EU level has sparked intense debate over its compatibility with fundamental freedoms and its effectiveness in addressing intolerance. According to a recent study published in the Journal of Free Speech Law, titled “A Cure Worse than the Disease: Why the EU's Proposal to Criminalize Hate Speech Violates Freedom of Expression, and Won’t Reduce Intolerance or Extremism,” by Jacob Mchangama and Natalie Alkiviadou, the initiative risks undermining the very democratic principles it aims to protect. The authors argue that expanding criminal prohibitions on speech could lead to greater suppression of dissent rather than reducing extremist behavior. Across several EU member states, instances of individuals facing criminal consequences for their expressions have become increasingly common. In Germany, an artist and activist was repeatedly arrested, once for wearing a Palestinian flag and another time for displaying a sign reading “from the river to the sea, we demand equality.” In France, a mayor was held legally responsible not for his own remarks, but for failing to remove Islamophobic comments left by others beneath one of his Facebook posts. In Finland, a member of parliament was charged with criminal offenses after criticizing her church’s support for gay pride events, citing a biblical passage. These examples illustrate how national legal systems have already imposed broad restrictions on free expression, often in ways that critics argue disproportionately target marginalized voices. Despite these existing measures, the European Commission has moved forward with plans to elevate hate speech to the status of an EU-level offense under Article 83(1) of the Treaty on the Functioning of the European Union. This proposal was initially introduced by Commission President Ursula von der Leyen in 2020, as part of a broader effort to strengthen equality, inclusion, and non-discrimination policies. However, the initiative has encountered significant political hurdles, particularly in securing unanimous agreement from all member states within the European Council. Since 2021, the Commission has reiterated its commitment to the plan, receiving backing from the European Parliament and other EU institutions, though consensus remains elusive. In response to the stalled negotiations, the Commission has shifted focus toward an alternative approach. Rather than expanding the scope of EU criminal law, it now proposes leveraging existing legal frameworks, such as those governing computer crime, to create a more uniform definition of online hate offenses. This strategy, outlined in the Commission’s 2026–2030 Anti-Racism Strategy, suggests a move away from treaty-based legislation toward a more flexible, technologically oriented enforcement model. While this change in legal technique may circumvent the need for unanimous approval, it also raises concerns about the potential for increased surveillance and stricter control over digital communication platforms. Critics argue that the proposal lacks empirical support and fails to satisfy key legal standards. The authors of the Journal of Free Speech Law study emphasize that the Commission’s justification for the measure relies on unproven claims about rising levels of hate speech and inconsistent national enforcement. They contend that the initiative does not align with the principles of legality, necessity, and proportionality required under both European and international human rights law. Furthermore, they suggest that the current approach may inadvertently empower authoritarian tendencies by allowing governments to impose harsher penalties on speech deemed offensive, even if it falls within protected categories. As the debate continues, the future of the proposal remains uncertain. With the Commission exploring alternative pathways, the question of how best to balance freedom of expression with the need to combat hate remains unresolved. What is clear is that the push to criminalize hate speech at the EU level represents a complex and contentious issue, one that challenges the very foundations of democratic governance.