The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases

Abstract

“Margin of appreciation” refers to the power of a Contracting State in assessing the factual circumstances, and in applying the provisions envisaged in international human rights instruments. Margin of appreciation is based on the notion that each society is entitled to certain latitude in balancing individual rights and national interests, as well as in resolving conflicts that emerge as a result of diverse moral convictions. In this regard, the doctrine is analogous to the concept of judicial discretion, where a judge, in line with certain constraints prescribed by legislation, precedent or custom, could decide a case within a range of possible solutions. The role of discretion is indispensable not only for bridging the gap between the law and changing realities of dynamic social organisms, but also for answering the particular questions of a given case in the absence of overall enacted or case law. In other words, judges are entitled to exercise discretion to make fair decisions in a specific case, without being locked into a formula that might not be applicable to every scenario.

Groups in Context: An Ontology of a Muslim Headscarf in a Nazareth Catholic School and a Sephardic Ultra-Orthodox Student in Immanuel

“…The French experience with the ban on the Muslim headscarf in public schools lends support to this point (Levinson 1997, 351). When the freedom of Muslim female students to attend public school with a headscarf was restricted, one dominant justification for the ban was the need for commonality as a virtue of neutrality in the public sphere (see Bakircioglu 2007). 10 Yet the logic as exhibited in the Mona Jabareen decision is just the opposite: neutrality can be an overriding interest of private, but not of public, schools.…”

Judicial Epistemology of Free Speech Through Ancient Lenses

“…Many of them implemented a bulk of national legislation(s) criminalizing the propaganda of hatred, although the concrete grounds for that hatred might vary. 31 Case law of Strasbourg leaves no doubt that hate speech does not enjoy the protection of Article 10 (1) ECHR. It is clear that both public policy derogation of Article 10 (2) ECHR and an anti-discrimination defense of Article 14 ECHR outweigh the value of pure l'expression pour l'expression.…”

“…Conflict with the constitutional order is a factor that tends to confer upon national authorities a broader margin of appreciation in limiting freedom of expression.'' (p. 112 in [30,31])…”

“…The European jurisprudence on hate speech is manifestly supportive of such critique towards absolute speech. 31 The pure social convention seems to exist with regard to racism and anti-Semitism, whereas others grounds for the hate propaganda may vary (e.g., homophobic hate speech). of two world wars in Europe, to which the American society seems to be less sensitive.…”

Is Public Morality Able to Restrict Human Rights?

“…The concept of public morality clauses to limit human rights has not been much discussed deeply, especially with regard to the implementation of this concept, which has different standards in each region. In addition, this concept is closely related to the concept of margin of appreciation in which this principle gives authority to the authorities to make policies in order to balance individual rights with national interests owned by a country [1]. This discussion is crucial because this clause is contained in the Universal Human Rights Declaration, UN General Assembly Resolution [2], as an umbrella of international human rights law norms and European Convention of Human Rights.…”