Free speech cannot be free if it comes at a cost. But is regulation always a cost? This is a tale of two free speech approaches; liberty and dignity. Both favor free speech and dignity but with different priorities and mutual concerns about the other. Liberty laws, as seen in the United States, prioritize free speech as a means of ensuring human dignity, while dignity laws, as seen in Hungary, regulate hate speech as a means of ensuring human dignity. So, how different are they really? 

In and of themselves, these two approaches may not appear too different since they both favor free speech and dignity, but the differing concerns are not in the laws themselves but rather the potential slippery slopes that could venture from them. 

This article explores the differences, but it’s first important to acknowledge the similarities. The fundamental importance of free speech is the right to express ideas, concerns, and convictions. Dignity laws do not generally tread on these values, therefore they are not on opposite ends of the free speech spectrum from liberty laws. One could say that dignity and liberty laws are on the opposite ends of the same side of the free speech spectrum while countries like North Korea would be on the opposite end of the entire spectrum. 

Here’s a quick comparison:

Liberty

The liberty approach protects any and all speech that doesn’t violate the rights of others. Even with the generally understood definition of human dignity in dignity laws, the liberty approach prioritizes speech above dignity, thus the liberty approach protects hate speech. With the liberty approach, definitions are less complicated. As long as the speech does not cause a reasonable invocation of danger or anything that would impede on another’s rights, it is generally protected. Unprotected speech would include yelling “fire” in a crowded theater when the speaker knew there was no fire and when their intent was to wreak havoc. Another example would be slander and libel; lying about someone in a way that causes defamation of their character or financial loss. 

The Supreme Court has done well to safeguard free speech over the years, particularly with a mechanism of judicial review called strict scrutiny. With this tool, a law that impedes on one’s speech must have a compelling state interest and, if it does have such interest, must impede by the most minimal means possible. 

The First Amendment of the U.S. Constitution states,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Case law displays various interpretations of particular forms of speech, but the U.S. Supreme Court has continually ruled against hate speech laws. Even the far-left American Civil Liberties Union (ACLU) has defended the Ku Klux Klan because while the ACLU abhors the KKK’s message, the ACLU demands everyone’s right to express even wicked speech. It should be noted though that the ACLU has been a primary offender of free speech in the context of religion, which highlights the disparity of First Amendment jurisprudence. The point is, as far as free speech of ideas and even hate goes, America is largely ideologically aligned. 

Dignity

The dignity approach affirms the right of free expression of ideas, dissent, religion, etc. but regulates in a stricter fashion than the liberty approach in protecting human dignity. This creates the grueling challenge of defining “human dignity.” How one defines human dignity can drastically change the laws upon which it is founded. The way many countries have worked around this is by specifying what speech is or is not allowed in pursuit of protecting dignity. For example, in Hungary, hate speech is prohibited with specific terms under its constitution:

“The right to freedom of expression may not be exercised with the aim of violating the dignity of the Hungarian nation or of any national, ethnic, racial or religious community.” 

Hungary’s Criminal Code elaborates: 

“Any person who, before the public at large, incites violence or hatred against: a) the Hungarian nation; b) any national, ethnic, racial or religious group or a member of such a group; or c) certain societal groups or a member of such a group, in particular on the grounds of disability, gender identity or sexual orientation is guilty of a felony punishable by imprisonment not exceeding three years.”

While to an American this regulation may seem fiercely anti-free speech, it is fair to note that the Hungarian constitution (called Fundamental Law) also includes several clauses ensuring the right to free speech for individuals and the press. So, Hungary, even while regulating hate speech, is not a censor-happy nation.

Cultural Considerations

Cultural relativism plays a big role in this debate. In Hungary, conservatives and liberals largely agree that human dignity should be protected in the speech context. There isn’t a notable fear that their government will utilize this regulation as a means of more extreme measures later. On a separate but similar note, even the most conservative of Hungarians agree with Hungary’s very strict gun control measures. Hungarians largely trust their government, more than Americans have ever trusted their own, despite the horrible historical experiences of the Fascist and Communist executives. 

In America, there is much more of a historical precedent for barring hate speech laws. Even in the past decade, the Supreme Court has addressed several cases centered on laws whose text does not compel or censor speech. But the way these laws were applied by different states fiercely violated a simple understanding of free speech. This is important to note because any government that utilizes non-speech compelling or restricting laws to compel or restrict speech anyway is no government responsible enough to handle laws that would create an easier avenue for free speech violation. 

So, perhaps for Hungary and other Eastern European countries, there is cultural unity supporting dignity laws paired with a government that isn’t likely to abuse the legal applications. But in America, the courts have done well to ensure free speech remains as unimpeded and free as it can be, to fend off time-proven abuses from the government. 

John Wesley Reid is a senior fellow with the Budapest Fellowship Program at the Hungary-based Mathias Corvinus Collegium School of Law.