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Free Speech

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

Eugene Volokh | 7.17.2026 11:41 AM

The article is here; the Introduction:

In Germany, an artist and activist was arrested multiple times, once for wearing a Palestinian flag and again for holding a sign that read "from the river to the sea, we demand equality." In France, a mayor was held criminally liable, not for what he said, but for failing to remove Islamophobic comments posted by others beneath one of his Facebook posts. In Finland, a member of Parliament faced criminal charges for criticizing her church's support for gay pride events, citing a Bible verse.

Such cases are not exceptional among European Union member states. In many places, they are standard practice.

Yet despite already possessing some of the democratic world's most expansive and actively enforced hate‑speech laws, the European Commission has proposed adding hate speech to the EU's list of "EU crimes" under Article 83(1) of the Treaty on the Functioning of the European Union. In 2020, the European Commission (Commission) President Ursula von der Leyen proposed making hate speech and hate crime European Union (EU)-level offenses. The proposal is framed as part of the Union's broader efforts to promote equality, inclusion, and non-discrimination. Yet it also forms part of a wider trend within EU institutions and Member States, namely a growing belief that expansive restrictions on expression are necessary to protect democratic values, counter extremism, and address social harms.

Since 2021, the Commission has reaffirmed the initiative in formal communications and public statements, with strong support from the European Parliament and other EU bodies, although unanimity in the Council of the European Union has not yet been secured. In its 2026–2030 Anti-Racism Strategy, the Commission signaled that, given the lack of progress, it is considering a legislative initiative to harmonize definitions of online hate offences by drawing on existing areas of crime covered by Article 83(1) of the Treaty on the Functioning of the European Union (TFEU). The shift from treaty expansion to reliance on the existing legal authority of Article 83 reflects not a retreat from harmonization, but a change in legal technique. Where unanimity failed, pursuing similar objectives through digital or computer-crime competences warrants scrutiny as a potential competence-stretching bypassing Member State resistance.

At the time of this report, the proposal has stalled due to a lack of unanimity in the European Council. But the Commission has signaled a narrower, "online‑only" route: a legislative initiative under existing Article 83(1) crime categories (e.g., computer crime) to harmonize definitions of online hate offences. In practice, this would still embed criminal prohibitions more deeply into national criminal law and EU digital enforcement frameworks. It also raises questions about whether speech that might be considered legal when said online suddenly becomes subject to criminal penalties if posted online.

The........

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