The Restriction of Freedom of Speech in the Legal Systems of the US and European Countries (20th – Early 21st Centuries): Historical Evolution and Socio-Legal Dimensions

Abstract

This study provides a comprehensive comparative-historical analysis of freedom of expression models in the United States and Western Europe to optimize Ukraine’s protection of informational sovereignty during full-scale hybrid aggression. Employing comparative-legal, historical-genetic, and formal-legal methods alongside socio-cultural and hermeneutic analysis, the paper evaluates the efficacy of contemporary Ukrainian media and criminal legislation under the current martial law regime. This multi-methodological approach establishes a rigorous, multidisciplinary analytical framework for assessing how democratic states effectively balance existential national security requirements with fundamental human rights.

The research establishes that while the US liberal model historically roots itself in the Anglo-Saxon common law tradition, shifting from the "clear and present danger" doctrine to modern tests, it fundamentally absolutizes individual communicative immunity from state intervention. Conversely, the Western European communitarian paradigm limits speech based on civic duties. A pivotal historical milestone was the interwar collapse of the Weimar Republic, which demonstrated the fatal vulnerability of a neutral liberal state to totalitarian subversion and birthed Karl Loewenstein’s concept of "militant democracy." This defensive legal framework, which justifies the restriction or forfeiture of fundamental rights to preserve the constitutional order, has been systematically integrated into the German Basic Law and ECHR jurisprudence.

Ukraine has legitimately adopted this European defensive tradition through martial law restrictions, decolonization policies, and the criminalization of informational collaboration. However, the study highlights critical socio-legal risks, particularly the latent negative impact of prolonged civic self-censorship on the state's institutional resilience. Ultimately, managing these communicative distortions and establishing clear legal criteria for de-escalation are essential for the nation's post-crisis legal transition and its strategic integration into the EU digital space under the Digital Services Act.