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espite the importance of freedom of speech and robust public debate, the nations of Europe have all adopted criminal laws

against so-called “hate speech.” In Germany, for example, committing an insult is a criminal offence and in Poland offending religious feelings carries a two year prison sentence. In Cyprus, anyone who promotes feelings of ill will may be committing a crime, while in Sweden anyone who expresses contempt towards a group of persons may be imprisoned.

Across Europe, such laws are readily being used. Ministers of religion have been arrested for preaching sermons from the Bible, journalists have been routinely fined, and even private conversations between citizens have resulted in criminal investigations. Yet remarkably, there appears to be almost unwavering support for “hate speech” laws among major European institutions and non-governmental organizations.

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Summarizing what appears to be the popular position on “hate speech” laws, two judges of the European Court of Human Rights recently held that “extremist opinions can bring much more harm than restrictions on freedom of expression.” This book seeks to challenge this prevailing

How European “Hate Speech” Laws

orthodoxy by detailing the stark history of the internationalization of

are Threatening Freedom of Speech

“hate speech” laws, their present day application, and their possible future. Fifty “hate speech” cases are discussed and a fully up-to-date compendium containing hundreds of European “hate speech” laws is included.

Paul Coleman serves as Senior Counsel and Deputy Director of ADF International from its headquarters in Vienna, Austria, specializing in international human rights and European law.

Paul Coleman

COLEMAN

CENSORED

BY PAUL COLEMAN

CENSORED How European “Hate Speech” Laws are Threatening Freedom of Speech

Second Edition

Paul Coleman Foreword by Benjamin W. Bull Kairos Publications

© 2016 Paul Coleman All rights reserved Second Edition. First published 2012, Vienna, Austria.

Published by Kairos Publications, Möllwaldplatz 5, A - 1040 Wien, Austria, 2014 www.kairos-pr.com ISBN: 978-3-9503851-1-3 Cover and layout designed by Dave Clarke www.daveclarke.me | dave@daveclarke.me

Contents Foreword

i

Introduction

1 PART ONE

1. The Universal Declaration of Human Rights

17

2. Subsequent Human Rights Treaties

27

3. Incorporation into National Law

37

PART TWO

4. Police Investigation

47

5. Prosecution

61

6. Conviction

75 PART THREE

7. “Hate Speech” and Violence

87

8. Protection from Offence and Upholding Dignity

97

PART FOUR

9. A Future of Censorship?

115

10. A Future of Free Speech?

129

APPENDICES

Appendix A

141

Appendix B

151

Appendix C

155

Selected Bibliography

211

Notes

219

Foreword In George Orwell’s famous novel, Nineteen Eighty-Four, Big Brother sought to control not only all thoughts but all language used to form thoughts. To achieve this ideal, Big Brother created the language of “Newspeak,” described as being “the only language in the world whose vocabulary gets smaller every year.” In a separate essay Orwell explained that Newspeak is closely based on English but has a greatly reduced and simplified vocabulary and grammar.

This suits the totalitarian regime of the “Party,” whose aim is to make any alternative thinking a “thoughtcrime,” or in the language of Newspeak, a “crimethink.” The Newspeak language removes any words or possible word constructs that describe the ideas of independent thinking, freedom, rebellion, disagreement, or unapproved values.

The underlying intent of Newspeak, of course, is that if something cannot be said—because the words have been banned or no longer exist—then it is far more difficult to think it.

As “hate speech” laws and its close kinsman “thoughtcrimes” are considered, there are many lessons to be taken from Orwell. Law itself represents society’s standard of conduct, defining acceptable from unacceptable actions, and the end goal of any criminal law is the elimination of certain specified behaviour. What, therefore, can be made of laws that ban the mere utterance of certain words?

Indeed, what are we to make of a law when its real objective is to ban “dangerous ideas”? The growing popularity and use of “hate speech” laws is much like the creation of a new and “improved” language such as Newspeak. For those comfortable with a shrinking rather than a growing dictionary, the ever-expanding use of “hate

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speech” laws is no cause for alarm. But let me pose a few questions.

Having opened the Pandora’s Box of “hate speech” laws, and in light of the endless supply of unwanted, stupid, and obnoxious ideas and speech, why not expand these laws to eliminate any speech that the state deems bad for society?

Having legitimized the banning of certain dangerous or hurtful words, where do we stop? Is there any principled stopping point except one based upon the discretion or the whim of the state? Do we really have confidence that certain popularly elected leaders or unelected judges have the requisite wisdom and discipline to govern our speech?

Orwell famously once said, “If liberty means anything at all, it means the right to tell people what they do not want to hear.” This sentence, I think, sums up the essence of free speech in a truly free society. Without the freedom to offend, free speech and free thoughts cannot truly exist.

Ideas can be dangerous things, especially ideas that seek to challenge or even change the status quo or existing orthodoxy. But is there really any point in having protections for freedom of speech if there is only freedom to express the most popular or current politically correct ideas and opinions? Doesn’t free speech suggest, at a very minimum, that people can express ideas that are offensive, challenging, and disturbing to other citizens and to the state? To be sure, the freedom to offend can propagate stupid, irrational, and hurtful ideas. However, freedom to speak freely is also the best means available to fight against tyranny, or fascism, or communism, or to overturn foolish but widely accepted dogma. Without genuine free speech, including the freedom to cause discomfort or even offence, are we truly free? Or are we headed towards the world described in Orwell’s book? The freedom to speak only “correct” points

Foreword

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of views was the world of Joseph Stalin; it was the world of North Korea’s Kim Jong-il, and today it is still the reality in several nations, where the expression of certain politically incorrect ideas can result in a death sentence.

While this book contains fifty different examples in which “hate speech” laws have been used to silence speech in Europe, allow me to give just one example from personal experience. Several years ago I was involved in the defence of Swedish Pastor Åke Green. As many will know, Pastor Green was sentenced to 30 days in jail for engaging in “hate speech” when he preached a Sunday sermon in his church addressing immoral sexual behaviour occurring in Sweden and elsewhere. Pastor Green was charged and prosecuted under Sweden’s “hate speech” law for “expressing contempt” in his sermon. As the state prosecutor said at his trial, “One may have whatever religion one wishes, but this is an attack on all fronts against homosexuals.

Collecting Bible citations on this topic as he does makes this hate speech.” At his final appeal in the Supreme Court of Sweden, the prosecutor badgered Pastor Green with cross-examination that challenged him to use a “different” Bible – one that did not disapprove of homosexuality.

Unfazed, Pastor Green calmly responded three times that “there is only one Bible.”

The trial was like something out of the dark ages. But instead of having a “witch” charged with uttering satanic spells, it was a minister of religion being attacked by a prosecutor—representing the “orthodoxy” of the day—to recant Holy Scriptures. Had I not been there and seen it with my own eyes I would have been hard pressed to believe this could actually happen in our time. Thankfully, after more than two years in the courts, his conviction was finally (and somewhat reluctantly) overturned by the Supreme Court.

To a limited extent we could say that freedom of speech

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won in the end, though the very fact the trial took place in the first place is great cause for concern.

Many other examples are provided in this book, and not all of the cases resulted in a “not guilty” verdict. If nothing else, the cases and legal developments that are highlighted will illustrate that Western society may be on a slippery slope heading towards Orwell’s Nineteen Eighty-Four. It may start so disarmingly with baby-steps, but in time the censorship mentality will give birth to a society in which free speech is no longer free and people whisper words they believe are true for fear of punishment or retaliation. One might even argue that in the adoption of “hate speech” laws we have re-created for modern times the old notions of “heresy” and “orthodoxy,” where any expression challenging the orthodoxy of political correctness is deemed heresy and a criminal offence regardless of the truth of the utterances.

Unless a proper respect for freedom of speech is adopted and promoted, we may very well usher in a new era of state-enforced censorship. This book, I hope, will serve as one of the tools in fighting against such a future.

Benjamin W. Bull Chief Counsel, Alliance Defending Freedom

Introduction “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

Lewis Carroll, Through the Looking Glass, 18721 The question of when freedom of speech should be limited in a free society has been raised throughout the last century and the question continues to dominate public discourse as the present one unfolds. From Justice Oliver Wendell Holmes’ famous analogy of “falsely shouting fire in a theatre and causing a panic,”2 to the debates after the Second World War over criminalizing Holocaust denial, to the abolition of historic blasphemy laws in the United Kingdom and other Western nations, where to draw the line between acceptable and unacceptable speech has been fiercely debated.

Freedom of speech is rightly considered to be one of the hallmarks of a healthy and robust democratic society.

Unsurprisingly, therefore, as we look around the world, the countries in which freedom of speech is most heavily restricted are often oppressive, authoritarian regimes. Few of us would feel comfortable being handed a megaphone on the streets of Pyongyang, Tehran, or Riyadh with

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instructions to criticize the current regime. However, as the following examples make clear, the fact that the situation may be comparatively worse in other parts of the world does not mean Europe can proudly claim to be a bastion of freedom. Indeed, if the extent to which we protect, cherish, and uphold freedom of speech is a measure of our democracy, it is interesting to consider where the nations of Europe currently stand. But first, a look outside Europe.

Free speech schizophrenia As we look around the world, we can see that freedom of speech is always under threat. In 2012 Alex Aan faced a sentence of five years imprisonment for posting on Facebook that “God does not exist” in his home country of Indonesia. The Dharmasraya Police Chief told the Jakarta Globe that the posting met “the criteria of tainting religion, in this case Islam.”3 In June 2012, Aan was sentenced to two and a half years in prison. Understandably, his case was met with a mixture of dismay and outrage as it was reported around the world,4 and many human rights organizations campaigned for his freedom – which was eventually achieved in January 2014.5 In Pakistan, Asia Bibi, a Christian mother of five, has become the first woman in that nation to be convicted for blasphemy. She has remained imprisoned for six years while she awaits execution. The infamous blasphemy laws of Pakistan are well known in the West, and the criminal provisions that penalize “uttering words [with the] deliberate intent to wound religious feelings”6 have been universally condemned. The European Union, for example, has been vocal in its criticism, urging the Pakistani government to reconsider its stance on the laws and bring about their abolition.7

Introduction

3

And as journalists are routinely fined and imprisoned around the world for writing on sensitive topics, the Representative on Freedom of the Media for the Organization for Security and Cooperation in Europe (“OSCE”) continues to issue regular press releases stating that “speech should not be criminalized”8 in countries such as Russia,9 Turkey10 and Kyrgyzstan11—the latter recently convicting a journalist for “inciting interethnic hatred” in online newspaper articles. The United Nations Human Rights Committee similarly recommends that countries “should consider the decriminalization of defamation,”12 and in a recent hearing the Human Rights Committee held that the Philippines had violated the right to freedom of expression after a member of the public was sentenced to prison for defamation.13 These brief examples reveal two things. First, speech remains far from free in many nations around the world, and second, criticism of restrictions on speech is common, when such restrictions occur outside the borders.

Yet how far removed are the above infringements on freedom of speech from the incidents currently taking place in the supposedly free and tolerant Europe? While a man in Indonesia was imprisoned for posting that God does not exist, a bishop in Ireland was investigated by the police for preaching that Ireland had a “secular and godless culture.”14 While section 298 of the Pakistani Criminal Code prohibits uttering words with the deliberate intent to “wound religious feelings,” section 141 of the Criminal Code of Cyprus—a member of the European Union— has the exact same provision. And while the OSCE claims that “speech should not be criminalized” and the European Parliament condemns the blasphemy laws of Pakistan, many European and international institutions continue to push for more and more limitations on speech within

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Europe. For example, the European Commission against Racism and Intolerance (“ECRI”) has recommended that the criminal law should penalize “public insults and defamation” when committed intentionally;15 the European Union has adopted a Framework Directive which states that countries may punish conduct that is “insulting”;16 and the Committee of Ministers of the Council of Europe has stated that countries should “bear in mind that specific instances of ‘hate speech’ may be so insulting to individuals or groups as not to enjoy the level of protection afforded

by Article 10 of the European Convention on Human Rights.”17 Criminal prohibitions on speech are condemned in some instances – particularly when such prohibitions occur outside Europe – and they are encouraged in others.

This schizophrenic attitude highlights the confusion that surrounds the debate on freedom of speech and so-called “hate speech.” Indeed, it is not even clear what is meant by the term “hate speech.”

What is “hate speech”?

To paraphrase Humpty Dumpty, the phrase “hate speech” means just what people choose it to mean, neither more nor less. That is the reason the term is used in quotation marks throughout this book – a reminder that its definition or understanding cannot be taken for granted. As a leading academic on “hate speech,” Peter Molnar, has written, “When used in legal parlance, the colloquial expression “hate speech” seems to presuppose that the state can define with legal precision the particular forms of content that should be regulated as “hate speech.” Because I regard this implicit assumption as questionable, I shall use “hate speech” only in quotation marks.”18 A factsheet produced by the European Court of

Introduction

5

Human Rights (“ECtHR”) concedes that there “is no universally accepted definition of the expression ‘hate speech.’”19 Similarly, in 2015 UNESCO published a manual addressing online “hate speech” and admitted that “the possibility of reaching a universally shared definition seems unlikely.”20 An earlier fact sheet of the ECtHR stated: The identification of expressions that could be qualified as ‘hate speech’ is sometimes difficult because this kind of speech does not necessarily manifest itself through the expression of hatred or of emotions. It can also be concealed in statements which at a first glance may seem to be rational or normal.21

In 2015, ECRI defined “Hate Speech” as advocacy in a public context of the denigration, hatred or vilification of a person or group of persons by reason of “race”, colour, descent, national or ethnic origin, other personal characteristics, beliefs, sexuality or status, as well as the glorification of persons for having committed atrocities against any such person or group of persons.22

However, the same document goes onto to say that “denial, trivialization, justification, or condonation” may constitute “hate speech.”23 It also stresses the need to “prohibit organizations that facilitate the use of hate speech that is intended or is likely to directly incite or encourage

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discrimination or violence against those who are the object of it.”24 The European Union Agency for Fundamental Rights (“FRA”) has also attempted to identify the particular speech that it believes should be banned. However, we find different definitions depending on which document we read. For example, FRA has stated that, “hate speech” refers to “the incitement and encouragement of hatred, discrimination or hostility towards an individual that is motivated by prejudice against that person because of a particular characteristic.”25 However, in another document, FRA states that the “term ‘hate speech’, as used in this section, includes a broader spectrum of verbal acts … [including] disrespectful public discourse.”26 It also laments in another paper that “there is currently no adequate EU binding instrument aimed at effectively countering expression of negative opinions.”27 Based on the documents above – documents drafted with the sole intention of educating the public and creating legal clarity – we can glean the following about “hate speech”: it does not necessarily manifest itself through the expression of hatred and it may appear rational and normal; it is always motivated by hatred, providing that the hatred is targeted at groups of the state’s choosing; and although it is impossible to define, “hate speech” may include denigration, disrespect, vilification, negative opinion, glorification, denial, trivialization, justification, condonation, incitement, discrimination, hatred, hostility, and insult.

With such loose terminology, it is easy to see how labelling some speech as “hate speech” can be an effective tool in silencing controversial views and shutting down debate. The speech that is often referred to as “hate speech” may not be popular; indeed it may be particularly unpopular

Introduction

7

and even offensive, but whether or not such speech should be criminally punished is another question altogether.

What are “hate speech” laws?

Because there is no universally recognized definition of “hate speech,” identifying “hate speech” laws is not an easy task. It is often argued that “hate speech” laws are just one of the many ways in which speech is restricted, and that they are no more illiberal than laws banning other forms of expression, such as the distribution of child pornography, the disclosure of state secrets, and the dissemination of malicious falsehoods. There are, however, some significant differences.

Restrictions on other forms of expression that have stood the test of time are narrow and well-defined, and the justification for restricting the speech must be utterly compelling, such is the presumption in favour of free speech.

When assessed more closely, however, “hate speech” laws are very different. They are loosely worded and arbitrarily enforced. They only protect certain groups and rarely require an actual victim. They are focussed more on the listener’s response than the truth of the statement. In short, while “hate speech” laws are a restriction on speech, they are a very different concept than other “pervasive and durable”28 restrictions that most societies understand to be desirable. This book is not intended to address all of the different ways that speech may be restricted, but will instead focus on the modern rise of legal provisions that can loosely be described as “hate speech” laws. Here are some of their defining features:

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(1) “Hate speech” laws are vaguely worded As the appendices to this book make clear, “hate speech” laws contain vague terminology and therefore have the potential to be incredibly far-reaching. In Germany, committing “an insult” is a criminal offence, and an “insult” is defined as “an illegal attack on the honour of another person by intentionally showing disrespect or no respect at all.”29 In Greece anyone who shows a “lack of respect towards God” may incur a prison sentence, while in Spain anyone who “publicly mocks those who do not profess any religion or belief ” may be committing a crime. With regard to the plethora of “inciting hatred” offences, it is often very unclear what is meant by the term “hate.”

(2) “Hate speech” laws contain a largely subjective element Rather than merely assessing whether the speech was unlawful when comparing it to a well-understood standard, “hate speech” laws often turn the attention onto the perception of the listener. For example, in the United Kingdom, government-issued guidance explains that a “hate incident” is any incident “which may or may not constitute a criminal offence, which is perceived by the victim or any other person, as being motivated by prejudice or hate.”30 Thus, with regard to “hate speech,” “hate crimes,” and “hate incidents,” perception can become reality.

(3) “Hate speech” laws do not necessarily require falsehood While defences to the traditional understanding of defamation always include “fair” or “honest” comment, it is possible to be convicted of “hate speech” without the truthfulness of the statement ever being in question.

For example, in 2014 Swedish politician, Michael Hess,

Introduction

9

was found guilty of a “hate speech” offence and heavily fined. During the trial the judge noted that “[t]he question of whether [the] statement is true, or at least for Michael Hess appeared to be true, is irrelevant to the proceedings.”31 Remarkably, a number of cases in this book focus on the “insult” and not on whether the speaker had spoken truthfully or not. As section 192 of the German Criminal Code makes clear, “if the existence of an insult arises” then “proof of the truth of the alleged or disseminated fact does not preclude punishment.”32 (4) “Hate speech” laws rarely require a victim In many criminal offences, although not all, there is a clearly identifiable victim: someone has been robbed, or assaulted, or kidnapped. In traditional defamation or slander cases, a real person has to have been defamed or slandered.

However, most “hate speech” laws allow prosecutions to be launched when there is not a victim – there is simply an unidentifiable group of alleged “victims.” Hungary has recently taken this one step further, creating the criminal offence of inciting hatred against “the Hungarian nation.”33 Its constitutional similarly makes clear that “freedom of speech may not be exercised with the aim of violating the dignity of the Hungarian nation.”34 Thus, the state itself can now become a victim of “hate speech.”

(5) “Hate speech” laws often only protect certain people The vast majority of “hate speech” laws only protect people if they can attach themselves to a certain “group” – and the protected groups are often those with the most political influence. If a person is insulted because of some aspects of his appearance, for example, his weight or hair colour,

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there will rarely be grounds for a case. However, if the very same person is insulted because of other characteristics such as his ethnicity, religious beliefs, or more recently, “sexual orientation” and “gender identity,” it may very well give rise to criminal proceedings.

(6) “Hate speech” laws are arbitrarily enforced Vaguely worded laws combined with well-motivated and well-funded special interest groups enable “hate speech” laws to be used to force a certain agenda – often closing down debate on issues of public interest. This is no clearer than in the United Kingdom, where section 5 of the Public Order Act 1986 had criminalized “insulting words” for almost 30 years, until it was reformed in 2013. The law was introduced to target football hooliganism but in the last decade it was increasingly used to arrest and prosecute Christian street preachers who spoke on issues such as sexual morality. The wording of the law had not changed but the political environment had, and the law was used as a tool to shut down debate.

(7) “Hate speech” laws are often criminal in nature While laws may restrict speech in a number of ways, from speech codes on university campuses to harassment in the workplace, there have been an increasing number of criminal provisions introduced in Europe in recent years. Given that the criminal law is the most severe way of regulating the conduct of citizens, this book will largely focus on criminal restrictions on speech.

These, therefore, are some of the defining features of legal provisions which prohibit “offensive” or “insulting”

Introduction

11

speech. Taken together they create a loose category which we will refer to as “hate speech” laws. All European countries have such laws, and as will be seen, their continued use, abuse and expansion are having a profound effect on freedom of speech across the continent.

“Hate speech” laws and freedom of speech In view of the threat posed by “hate speech” laws, this book is a call to reaffirm one of the most important freedoms in the constitutional system of any democratic country: freedom of speech. Without freedom of speech there cannot be genuine discussion amongst citizens, and without discussion there is no democracy. As the United Nations recently reaffirmed: “Freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society. They constitute the foundation stone for every free and democratic society.”35 Moreover, not only is freedom of expression the hallmark of a free society, it is also “the first right to be circumscribed by illiberal states.”36 Thus, it is no surprise that after seizing power in 1933, Adolf Hitler’s first “emergency decree” stated that “restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press, on the right of assembly and the right of association ... are permissible beyond the legal limits otherwise prescribed.”37 While such drastic attacks on civil liberties are not taking place in Europe today, the gradual expansion of “hate speech” laws and the increased frequency in which they are used is threatening free speech and other closely related freedoms. This threat needs a broad and robust

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response which currently appears to be absent from the public debate.

As this book explains, the current understanding of “hate speech” and “hate speech” laws is wholly inadequate.

Instead of accepting the current position, where speech that is insulting or offensive is outlawed, restrictions on freedom of speech should be extremely narrow and very well defined. Accordingly, the law should only restrict so-called “hate speech” when there is an incitement to imminent violence. Where there is no such incitement, citizens should be free to insult, offend, shock, mock, and criticize each other and the state, no matter how ridiculous, unpleasant, or unpopular the speech – such are the demands of true democracy. As a British judge famously once held: Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.38

This is the foundational premise upon which this book is based. I have not intended it to be an exhaustive treatment of a subject that has already been written on extensively.

Instead, by outlining the bleak history of Europe’s “hate speech” laws, gathering together numerous “hate speech” cases and the laws under which they were brought, and addressing the present arguments in favour of “hate speech” laws, my aim is to highlight the illiberal and dangerous path on which Europe is headed. My hope is that Europe will change its current course, away from stateenforced censorship and towards respect for one of the

Introduction

13

most fundamental of freedoms in any liberal democracy: freedom of speech.