The state must act as a fiduciary of power, not as a censor

By Tomaz Lovsin

Across the EU, policymakers and regulators are drifting toward tighter control of expression.

This article makes the legal and philosophical case – rooted in a limited-government, libertarian perspective – that the state must be strong enough to secure rights but too limited to curate truth. The social contract is the starting point: individuals delegate a portion of their natural sovereignty so that the state can provide security, courts, infrastructure and predictable laws. In return, the state owes restraint. It must act as a fiduciary of power, not as a censor.

When governments claim authority to filter or pre-interpret ideas for the public, they reclaim sovereign judgement that citizens only conditionally ceded. A healthy democracy presumes citizens can encounter contested ideas and form conclusions without administrative guidance. The alternative is a state-favoured narrative that atrophies the civic muscle of discernment – precisely the outcome President Dwight Eisenhower warned against in urging an “alert and knowledgeable citizenry”.

Two legal architectures of free speech

Modern democracies define free expression in two contrasting ways. In Europe, the lodestars are Article 10 of the European Convention on Human Rights (ECHR) and Article 11 of the EU Charter of Fundamental Rights. Both secure the right to hold opinions and to “receive and impart information and ideas”, but both immediately enumerate grounds for restriction: public safety, prevention of disorder or crime, protection of reputation or the rights of others, national security, and similar aims.

From its earliest decisions, the European Court of Human Rights (ECtHR) has insisted that freedom of expression protects speech that may “offend, shock, or disturb”. Yet the same case law embraces a proportionality framework that invites states to justify restrictions as “necessary in a democratic society”. This two-step – broad promise, calibrated limits – defines European speech law.

Once proportionality becomes the engine of analysis, outcomes hinge on what judges and governments weigh in the balance.