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

This article by Jacob Mchangama and Natalie Alkiviadou, published in the Journal of Free Speech Law and summarized on Reason.com, critically examines the European Commission's proposal to criminalize hate speech across EU member states. The authors argue that the proposal violates principles of legality, necessity, and proportionality under European and international human rights law. They highlight existing expansive hate speech laws in countries like Germany, France, and Finland, which have led to arrests and prosecutions for speech acts such as wearing a Palestinian flag or citing Bible verses. The Commission's initiative, initially proposed in 2020 and reaffirmed in its 2026-2030 Anti-Racism Strategy, aims to harmonize definitions of hate speech, particularly online, using existing legal authority under Article 83(1) TFEU after failing to secure unanimity for a treaty expansion. The authors contend that the empirical assumptions behind the proposal are unsubstantiated and that criminalization may chill expression without effectively reducing intolerance or extremism.