Hate Speech and the European Court of Human Rights: Article 17, Memory Politics, and the ECtHR’s Selective Silencing

In this fourth guest entry on The Volokh Conspiracy, I examine a domain where the European Court of Human Rights (ECtHR) and the now defunct European Commission on Human Rights (EComHR) has shown a bold willingness to restrict speech, namely speech related to totalitarianism and genocide. But the ECtHR’s boldness in some cases is matched by inconsistency in others, raising a fundamental concern, when the memory of atrocity becomes a matter of legal privilege, which histories are protected, and which are negotiable? Through a close reading of key decisions, this post highlights what I call the Court’s “hierarchy of historical suffering.”

Article 17 and the totalitarian legacy

Article 17 of the European Convention on Human Rights (ECHR) prohibits the use of Convention rights for the destruction of such rights. The Court has interpreted this provision, especially in cases involving Nazi ideology and Holocaust denial, as a near-automatic bar to Article 10 protection. In Kühnen v Germany (1988), the EComHR declared inadmissible the complaint of a neo-Nazi convicted for distributing propaganda. The Commission reasoned that by invoking Article 10 to spread ideas that were fundamentally incompatible with the values enshrined in the Convention, the applicant sought to undermine the very rights the Convention was designed to protect.

A similar logic was followed in B.H, M.W, H.P. and G.K. v Austria (1989). The applicants were convicted of engaging in activities motivated by National Socialist ideology, including the production and dissemination of pamphlets denying the Nazi genocide of six million Jews. As members and leaders of the Aktion Neue Rechte party, they advocated for the reintroduction of traditional Nazi songs and titles within the organisation. They were sentenced to conditional terms of imprisonment under the National Socialism Prohibition Act, receiving sentences of nine, three, eighteen and twelve months respectively. The EComHR found that, considering Austria’s historical context and the underlying purpose of the Convention, the corresponding penalties imposed on the applicants were justified. It determined that Austria’s measures were consistent with the limitations outlined in Article 10(2), interpreting all relevant provisions through the lens of Article 17. It noted that ‘in view of the historical past forming the immediate background of the Convention itself’ the restrictions to the applicants’ activities were justified in the interest of national security, territorial integrity and for the prevention of crime.

This pattern shows a consistent application of Article 17 to anything related to National Socialism. While one might understand the historical sensitivity of Europe towards the genocidal atrocities of the Nazi regime, the result has been a categorical exclusion of speech directly or indirectly related to this regime that bypasses any balancing test under Article 10(2) of the ECHR on the right to freedom of expression. But this consistency breaks down quickly when it comes to other ideologies.

Vajnai and Fáber: A glimmer of contextual reasoning

In Vajnai v Hungary (2008), the applicant was convicted for wearing a red star, a symbol of Communism, during a peaceful demonstration. The ECtHR found a violation of Article 10, holding that the red star had multiple meanings and that Hungary had failed to demonstrate any “real and present danger” of re-establishing a Communist dictatorship. Notably, the Court emphasized that “it accepts that the display of a symbol which was ubiquitous during the reign of those regimes may create uneasiness among past victims and their relatives, who may rightly find such displays disrespectful. It nevertheless considers that such sentiments, however understandable, cannot alone set the limits of freedom of expression.”

Likewise, in Fáber v Hungary (2012), the ECtHR protected a far-right demonstrator who displayed the Árpád-striped flag, historically associated with Hungary’s fascist Arrow Cross Party. Although the flag was displayed near an anti-racism event and provoked outrage, the Court ruled that there was no evidence of intimidation or public disorder, reaffirming the need to protect offensive but non-violent expression. These two cases stood out because the Court applied a risk-based analysis, assessed the context, and recognized the dual meaning of political symbols, an approach far more nuanced than its blanket treatment of Nazi-associated speech.

But not for Nazi symbols: The case of Nix v Germany

In Nix v Germany (2018), the applicant posted an image of Heinrich Himmler in SS uniform on his blog, in a post criticizing perceived discrimination by a public employment office. The post included no incitement, and the applicant argued it was intended as satire or political critique. Yet the ECtHR upheld the domestic conviction, invoking Germany’s “special moral responsibility” to distance itself from its Nazi past. The Court declared that the symbol in question, a photograph of Heinrich Himmler in SS uniform prominently displaying a swastika armband, cannot be considered to have any other meaning than that of Nazi ideology and found no need to engage with the blog’s broader context.

The contrast with Vajnai is stark. There, the red star, representative of decades of terror, was seen as contextually ambiguous and therefore permissible. In Nix, the swastika was deemed beyond ambiguity and categorically banned. This asymmetry signals a deeper problem, namely the temporal distance from Communism matters, but Nazism is treated as a perpetually imminent threat.

Genocide denial: the Holocaust exception

The ECtHR has firmly held that denial or trivialization of the Holocaust falls outside the protection of Article 10. In Garaudy v France (2003), the Court rejected the application of a Holocaust-denying writer, holding that “denying crimes against humanity is one of the most serious forms of racial defamation of Jews.” In Williamson v Germany (2019) and Pastörs v Germany (2020), both applicants were convicted for Holocaust denial, one in a televised interview, the other in a parliamentary speech. The Court found both applications inadmissible, upholding the state’s strong interest in maintaining historical truth and preventing anti-Semitism. But the reasoning in these cases rarely involves a direct analysis of actual harm or public disorder. Instead, it relies on the assumed necessity to ban all speech that denies the Holocaust.

A different standard for the Armenian genocide

The above-described presumption of incompatibility with the ECHR collapses when the genocide in question is not the Holocaust. In Perinçek v Switzerland (2015), the applicant, a Turkish politician, called the Armenian genocide an “international lie” during speeches in Switzerland. Convicted under a Swiss law prohibiting genocide denial, he appealed to Strasbourg. The Grand Chamber found a violation of Article 10, holding that the statements were of public interest, did not amount to incitement and were not sufficiently harmful to justify criminal sanction. To distinguish this case from Holocaust denial, the Court noted a lack of European consensus on the legal classification of the Armenian genocide and the absence of a Nuremberg-style tribunal. It also emphasized that Perinçek had not expressed “contempt or hatred” for Armenians. But this logic is deeply troubling. As Judges Pinto de Albuquerque and Vučinić rightly warned in dissent that:

the sufferings of an Armenian because of the genocidal policy of the Ottoman Empire are not worth less than those of a Jew under the Nazi genocidal policy. And the denial of Hayots Tseghaspanutyun … or Meds Yeghern … is not less dangerous than Holocaust denial.

The Court’s refusal to apply Article 17 in Perinçek, while routinely applying it in Holocaust cases, creates a de facto hierarchy of genocides. Genocidal denial is punishable in one case, but a protected opinion in another. The moral and legal consequences of such asymmetry are profound. One if, of course, reminded of Volokh’s censorship envy here.

When historical memory becomes a speech tax

Across the ECtHR’s hate speech jurisprudence, we observe a troubling pattern. Expressions deemed offensive to victims of the Holocaust are criminalized swiftly and without a proportionality review under the limitation grounds set out by Article 10(2) of the ECHR. But equally offensive expressions targeting victims of other totalitarian regimes or atrocities, whether under Communism or during the Armenian genocide, are often met with greater tolerance, or even protection. In this landscape, speech protections appear to depend not only on the content of the expression, but on which atrocity is being remembered.

Conclusion: Toward a consistent and principled standard

The ECtHR’s jurisprudence on totalitarianism and genocide denial reflects an uncomfortable tension between honoring memory and protecting speech. While the Court is right to be vigilant against anti-Semitism, its blanket use of Article 17 in Holocaust-related cases, coupled with its contextual flexibility elsewhere, raises serious concerns about fairness, consistency and the politicization of legal doctrine. Free speech should not be conditioned on which historical pain is being invoked. If context, proportionality, and public interest matter in Vajnai and Perinçek, they should also matter in Nix and Pastörs. Otherwise, the ECtHR risks turning Article 10 into a selective guarantee, tied not to principle but to political memory hierarchies.