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Abstract

A simple fruit like a watermelon can convey many meanings: solidarity for some, terrorism sympathies for others. Among other things, increasing restrictions on speech drive individuals to the use of symbols for political expression, which may lead to legal controversies at the international level due to the untended complexity of symbolic speech in legal discussions. Unlike verbal communication, the meaning and communicative content of symbols are often indirect and open to interpretation. Thus, international human rights standards should rely on context-sensitive evaluations to prevent arbitrary limitations. Although the European Court of Human Rights (ECtHR), due to its subsidiary role, assumes that national authorities are better placed to make these sensitive assessments; the misapplications of domestic courts due to overly broad or vague interpretations grounded in unpredictable standards invite arbitrary enforcement and raise concerns under international law. The ‘living instrument’ character of the ECtHR enables the Court to adapt its interpretation in response to evolving societal realities. In this context, the approach of the U.S. Supreme Court provides a useful model as another body that is the ultimate interpreter of fundamental rights within its respective system. In Brandenburg v. Ohio, the U.S. Supreme Court held that speech may be restricted only if it is directed at inciting or producing imminent lawless action and is likely to incite or produce such action. This speech-protective U.S. outlook, compared to the ECtHR’s statedeferential method, could lift the excessive burden on freedom of expression created by the outright criminalization of symbols associated with terrorist organizations. Thus, the evolving needs of democratic societies call for a “Brandenburg-ification” of the ECtHR’s approach to symbolic expression. This Article focuses on terrorist imagery as a specific form of symbolic expression, while underscoring the broader need for a more speech-protective European framework inspired by the U.S. standards to prevent unjustified limitations on expression. (from author)

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