Free Speech or Non-discrimination as Trump? Reflections on Contextualised Reasonable Balancing and Its Limits

This article reflects on the long-standing debate on free speech and its limitations. Starting with conceptual, theoretical, empirical and normative clarifications of contested issues such as what kind of communication is at stake and how to define the limits of freedoms of political communication, its main thrust is to demonstrate that the traditional confrontation of ‘US Free-Speech Absolutism’ versus ‘the Rest’ is empirically and normatively misleading, that there are independent reasons for the principles of free speech and non-discrimination which often conflict with each other, that there is no context-independent hierarchy, and that contexts matter for their interpretations, applications and balancing. Building on recent trends in moral and political philosophy and in comparative constitutionalism the article defends principles of liberal-democratic constitutionalism that, in comparison with national constitutionalism, have to be more abstract, culturally thinner and more minimalist. The most important guidelines are: a presumption in favour of both free speech and non-discrimination, even if they are in conflict; the application of ‘strict-scrutiny’ tests to restrictions for reasons of incitement to violence and discrimination, and the exceptional resort to criminal proceedings. There is also a need to develop alternative non-legal responses, policies and institutional arrangements to tackle the root causes of racist, ethno-centrist and religious violence and discrimination.