By Natalie Alkiviadou and Jacob Mchangama

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.” [1] 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. [2] In Finland, a member of Parliament faced criminal charges for criticizing her church’s support for gay pride events, citing a Bible verse. [3]

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. [4] 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. [5] 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. 

[…]

Our analysis proceeds from the basic premise that all member states of the EU criminalize certain forms of hate speech and that such criminalization, subject to balancing against the human right to freedom of expression, is both required and compatible with EU law and International Human Rights Law. Accordingly, we assume for our purposes that the repeal of European hate speech laws is both legally and politically unfeasible, even if there are compelling normative and empirical arguments in favor of such a maximalist position. Instead, we examine the proposal through the foundational principles governing restrictions on freedom of expression in European and International Human Rights Law (IHRL): legality, necessity, and proportionality. We assess whether EU-level criminalization is compatible with these standards, whether the need for such a proposal is supported by evidence, and the proposal’s implications for democratic debate, online expression, and Europe’s broader global influence.

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[1] James Jackson, ‘We Jews Are Just Arrested; Palestinians Are Beaten’: Protestors in Germany, AL JAZEERA (Apr. 1, 2024).

[2] See Sanchez v. France, App. No. 45581/15 (Eur. Ct. H.R. May 15, 2023), https://perma.cc/C8NBY53A.

[3] Paul Coleman, Päivi Räsänen Is the Face of Europe’s Free Speech Crisis, CRITIC (Nov. 4, 2025), https://perma.cc/EH9P-K4G6.

[4] Communication from the Commission to the European Parliament and the Council: A More Inclusive and Protective Europe: Extending the List of EU Crimes to Hate Speech and Hate Crime, COM (2021) 777 final (Dec. 9, 2021), https://perma.cc/T92A-C8B9.

[5] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: On the European Democracy Action Plan, COM (2020) 790 final (Dec. 3, 2020), https://perma.cc/23M5-TT3H.

Senior Research Fellow 
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Natalie Alkiviadou is a Senior Research Fellow at The Future of Free Speech. Her research interests lie in the freedom of expression, the far-right, hate speech, hate crime, and non-discrimination.

Executive Director  at   
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Jacob Mchangama is the Founder and Executive Director of The Future of Free Speech. He is also a research professor at Vanderbilt University and a Senior Fellow at The Foundation for Individual Rights and Expression (FIRE).