- Article 10
- June 5, 2020 10:42 am
Dr. Andraž Teršek
Professor of Constitutional Law at the University of Primorska and New University, European Faculty of Law
Slovenian Constitution safeguards general right to freedom of expression by Article 39. It reads as follows: “Freedom of expression of thought, freedom of speech and public appearance, freedom of the press, and other forms of public communication and expression shall be guaranteed. Everyone may freely collect, receive, and disseminate information and opinions.”
Constitution includes another, special provision in Article 63, addressed as “Prohibition of Incitement to Discrimination and Intolerance and Prohibition of Incitement to Violence and War. It reads as follows: “Any incitement to national, racial, religious, or other discrimination, and the inflaming of national, racial, religious, or other hatred and intolerance are unconstitutional. Any incitement to violence and war is unconstitutional.”
Constitutions of other European countries have their own provisions protecting freedom of expression. More or less similar. Besides there is not merely “blue sky” over constitutional provisions in function of protecting freedom of expression as a constitutional right. There is also ECHR and its Article 10, protecting it as a fundamental human right: “(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (2.) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
In comparison to Slovenian Constitution there is an important distinction and it is not only a matter of words, but a far greater matter of the depth of the concept: “any incitement.” Really “any”, any kind? Or a certain kind? Such as in the “clear and present danger” doctrine (from famous precedent of the USA Supreme Court in Schenk v. United States (1919), though latter modified in other cases, following Whitney v. California (1927) and Justice Brandeise’s standard “»/…/ danger apprehended is imminent«))? And what does it really mean, what is an exact definition of “incitement”?
The Constitution doesn’t explain it, which is understandable and expected. It is not explained in text books. Not even in the official and latest Commentary of the Constitution of the Republic of Slovenia (2020). It is not explained in any decision of regular courts, not even in any decision of the Slovenian Supreme Court. AND not even in any decision of the Constitutional Court of the Republic in Slovenia. The word “incitement”, as a concept, was described and explained by some Slovenian legal scholars, researchers and professors in a few articles and monographs regarding freedom of expression. But their work is still being ignored by the courts. Especially by Constitutional Court. There is no legal definition of “hate speech”, nor of the term “any” in direct substantial connection with “incitement” and of the term “incitement” itself – in any of the decisions of any Slovenian court.
Constitutional foundations for understanding the right to freedom of expression
Any kind of public authority in a constitutional democracy needs to hold an element of distance and self-limitation towards the fundamental freedom of public communications. At the immediate moment when the state becomes a strict censor and in consequence receives the role of a prosecutor and punisher against the population due to its content or certain methods of communication. At that specific moment, freedom of expression loses its value and instantly becomes a myth. Not only does it lose its instrumental but also its intrinsic value.
In a democratic society, it is only permissible to limit freedom of expression in certain situations when there is an underlying threat, such as that freedom of expression could create a vacuum of violence or evil that is far more sinister or dangerous than just an “upset” or “uncomfortable” feeling of the general public. This fact clearly and firmly comes from the teachings of basic legal theory and political philosophy, including modern constitutional theory and ECHR Case Law.
Using the syntagm “hate speech” in public sphere
In the public sphere, including the academic sphere, there has been a stagnating force in terms of the teachings of the principles of freedom of expression. In recent years, many groups and individuals have made regular attempts to target and limit freedom of speech, which is contrary to modern legal knowledge and precedents within the scope of the judicial sphere. These individuals and organizations, once coming from the s.c. political left and once coming from the s.c. political right, have made attempts to limit free speech via criminal legal acts concerning free speech, which aren’t needed in a functioning democratic society. However, this brings a far greater threat to a democratic society than certain cases of indecent or unethical forms of public expression, that besides creating certain indignating and disapproving feelings do not cause harm to public life. Not because this certain form of expression is correct, but because it is the core component of constitutional protection.
The phrase “hate speech” has become an overly simplified and generalized term for the kind of public expression, which in theory and legal practice does not reach its definition. Every expression in the public sphere which offends or shocks a specific individual or a targeted group is now, and increased, considered as a form of hate speech. In other words, syntagm “hate speech” is being used regularly. As “victims” of hate speech are labelled due to critical or offensive remarks on their own personal attributes and circumstances, even those that should not be considered victims of hate speech: Members of Parliament, entrepreneurs, artists, journalists etc. That is contrary to general constitutional doctrine and constitutional case-books.
And here comes the paradox: although the problem of “hate speech” is considered and for some time now emphasized to be “one of the greatest social problems” and even “the biggest threat to democracy, freedom and human rights” there isn’t even a single judicial decision of any of the criminal courts condemning a single person for committing a crime by using “hate speech.”
Constitutionally inaccurate use of words, such as “incitement” of hatred, violence and intolerance in public sphere
A similar case is with the use of the syntagm “public incitement of hatred, violence and intolerance.” A good example is with a fear or discomfort (rational or irrational) of the public in certain areas that experienced mass migration and the negative attitude of some individuals or a certain segment of society towards foreigners due to the perception that these individuals are “too different” or “unassimilated”. It can or it can well be an incitement of hatred, however that does not mean it is pure hatred in its most dangerous and criminalized form. And that in itself does not mean the existence of the constitutional concept and the incitement of hatred, violence and intolerance as criminal offences. The constitutional doctrine on freedom of expression emphasizes the differentiation of free thought and expression and the incitement of hatred.
Problem of “political correctness”
“Political correctness” in itself is an example of the impairment of political ethics. It is used as a foundation of the popularly used term of “hate speech” in public life. It does not differentiate between; fair and free expression, statements of fact and valued judgement, pure hatred and a merely hateful attitude, legally permissible exaggeration and the intolerable abuse of freedom of expression and between seeking attention and between actual expressions of hatred and violence. Individuals that do not belong to systematically threatened, underprivileged and marginalized groups – based on their own personal attributes and circumstances – have been with the premature, excessive and legally incorrect use of the syntagm “hate speech” subject to the same kind of circumstance as people of colour, who were victims of historical racial hatred and violence in the United States and Africa. Or even the victims of holocaust. Or other kinds of individuals that have been oppressed on their personal attributes and circumstances.
With all of this, there is no legal definition of “hate speech” in Criminal Statute and in the content of judgements of the regular courts, including highest courts and Supreme Court. And not even in any Constitutional Court’s decision. But the term is being regularly, daily used in public life: by lawyers, journalists and media, politicians, intellectuals, public… Quite interesting paradox?!
The often and extended use of this term in daily public life comes hand in hand with public use of term “political correctness.” The concept of political correctness has been used as a technique of redirecting attention and creating an impression of high responsibility, great care or inclusion, which does not seem bona fide or legitimate. It more often works as a form of violence against: the population, the individual, language, conscience, world view, perception on politics and thought. On this specific context, Slavoj Žižek wrote (in the book Violence, 2007): “It seems that the main preoccupation of the tolerant liberal outlook that prevails today is the disapproval of all forms of violence, from directly physical….to ideological (racism, hate speech, sexual discrimination). Isn’t their focus on subjective violence (violence that emerges from social agents, evil individuals, repressive disciplinary apparatus) something dubious or symptomatic, as they would somewhat wish to redirect problems from serious problems” A note, worthy of thought and notice. One could easily cite the thoughts, explanations or teachings of Jordan Peterson, Jonathan Haidt, Steven Pinker, before that John Stuart Mill and even Hannah Arendt and many others in the same context – defending free speech and understanding what violence really means, how it can be or is exercised or hidden under the surface. Lukianoff, in his book Freedom from speech (2014) explains the situation in college campuses across the United States, in terms of protection of the right of free expression and its effort to protect individuals, groups and public before free expression: the paradox of protecting freedom of speech by means to protect people against free speech. A good point worth of thoughtful discussion.
The “not-constitutional,” but political problem of ethics
Ethics and the culture of public communication are undoubtedly important societal topics. One of the more profound problems of today’s society is the lack of tolerance and solidarity towards others, excessive insulting, limiting the right to the freedom of dignity, work and personal privacy. Hatred towards others is also a profound issue. But the syntagm “hate speech” in the public sphere has become a handy pretence for the prosecution of people that have different opinions before the “Court of public opinion” or before individuals who identify with this specific syntagm. A public disapproval or public “conviction” of people who use offensive, laughable, humiliating, degrading, hateful, unintelligible, uneducated and stupid expression, the ethical disapproval is understandable. However, it is different when criminal procedures are put in place for these specific acts. It is also different when the term “hate speech” is used as a method of name calling (due to the content or context of the specific expression in public can’t be seen as an idol of public communications). These individuals are vehemently labelled as “fascists, extremists, neo-Nazis, fundamentalists” or as “radical right or left wingers” who publicly promote hatred and violence.
The problem of online forums
A big problem currently is in online forums. Not only for the sole fact that the anonymity of the person creates unlimited possibilities for all kinds of public expressions about anyone and anything. Not only for the reason that keepers and administrators of online forums inadequately realize their legal liabilities for certain threads on online forums, which the precedent of the ECHR in the case of Delfi vs. Estonia talks about in great detail. When inspecting online forums, the “hunt” for threads that might offend an individual or a certain segment of society begins. When the authors of these specific threads are “caught”, no one is really interested in who they are as they do not present an imminent threat to society, nor do they have a substantial influence on policy and decision making. However, with the backing and support of the media, these people are presented as imminent threats to society. Threads posted on online forums (although anonymous) are commonly and regularly posted in articles and even scientific journals (accompanied by comments) to show the world an example of so called “hate speech.” As there is so much attention towards online forums, the more important they become in a democratic society. However, administrators of online forums are not given enough responsibility and oversee online forums to prevent offensive posts, they are more often given the advice to tolerate these kind of threads. At the same time, critics of the public use of the phrase “hate speech” and supporters of the freedom of expression are considered a problem, even a threat, if not already as fascists, nationalist, white supremacists etc. And as supporters of hate speech, intolerance, discrimination and violence. Their work is considered as irresponsible or as somewhat “blind”.
Ethics and the culture of public communications are not primary constitutional questions. However, they become so when free expression oversteps a certain legal boundary and especially when it is excessively (unconstitutionally and unconventionally) limited. Let there not be any misconceptions (as I am regularly told that evil and hate speech does not present a problem for me – stupid comments). The problem of ethics and the culture of public communications is an extremely profound problem in today’s society. Also the problem of intolerance, hate, lack of solidarity, intolerable discrimination etc. The problem of ethics of public communications is that it is connected to other (more profound) problems, including the problem of the presence of an understandable fear or mistrust of the public towards governmental institutions or other people and the uncontrollable problem of mass manipulation, mislead, lying and the exploitation of human ignorance. It is thoroughly connected to the problem on how the media operates and with the quality of institutionalized process and the policy of education. This is why we in consequence see the rise of populism and demagogy. And also with the problem of self-sufficience and responsibility of governmental institutions, centres of global power, financial institutions and networks of privileged societal impacts. An extremely profound problem is also the unconvincing operational structure of the rule of law.
The problem is obvious, but…
The problem of offensive, fake, manipulative, misleading and even blasphemous and vulgar expression in the public sphere is obvious. This problem needs to be tackled and dealt with-even legally. It presents a threat and in an important part also disables a constitutional democracy. The law and the common European judiciary enables that the abuse of free expression is punished sufficiently, especially offensive defamation and harming a person’s honour and reputation. The same goes for psychological and physical violence and hateful and violent expression that are sufficiently incriminated. The law can be amended and changed if it is within the provisions of the core values of a constitutional democracy. The problem of ethics and culture of public expression and incorporated problems such as: lack of education, criticism, blind trust, excessive faith in certain individuals and institutions, cannot be tackled by excessive limitation of free expression and the unjustified spread of definitions of hate speech in the form of a criminal offence. It also cannot be tackled with the daily political “tagging” of individuals, forced assessment of their apparent world view and their relation to ideological questions. It also cannot be tackled by determining the population on their social belonging (tribalization of the population) nor with positive discrimination. It also can’t be tackled by labelling people “left” or “right” in terms of political polarization or with the “victimization” of certain victims who wish for specific legal protection when there exist better and more efficient alternatives for the protection of the protection of fundamental rights and freedoms. Democracy cannot be consolidated by choosing “an easy way out” or “shortcuts” in daily politics, political strategies, legal policy and techniques of social life nor with the sacrifice of values, foundations and rules in a constitutional democracy. The constitutional democracy cannot be strengthened by approaches that fundamentally oppose their ethical and legal foundation, which is written in legal literature and leading judicial precedents.
Where to start?
It seems that Europe needs – and wants – its own “hate speech” concept. So it needs to define it – precisely. From obvious constitutional reasons but also from quite obvious political reasons: we do not want people who use harsh language, have genuine hating feelings towards others, often offend, verbally attack, unfoundedly accuse and really are hostile to others, especially towards already socially endangered people or foreigners to obtain a very useful status of “victims,” because they were (even in good faith and with good, noble, ethical intensions) unconstitutionally accused by courts for “hate speech.” Such status, obtained due to the lacking legal definition of hate speech and superficial legal argumentation in the decisions of courts seems a price too big to pay. Because this is a very suitable status to be used and especially misused in daily politics.
If not else at least by ECHR. The ECHR judgement in case Vejdeland vs. Sweden (2012) offers a descriptive guidance which definitional path to follow, stating that “offensive” and “hostile tuned” remarks can be legally prohibited and criminally prosecuted if they can be recognized and evaluated as “very severe accusations based on strong and really unfounded prejudice.”
Is this enough? I strongly thing it is not even nearly enough. And even if ECHR starts regularly using the term “hate speech” in its judgements this wouldn’t be enough: Europe needs a well thought through and precisely enough defined doctrine of “hate speech” applicable to concrete cases of using concrete words in concrete circumstances and by concrete people with concrete public status and influence, based on concrete presuppositions, facts and social impact of certain words, aimed at certain groups of people or individuals.
Last but not least: of course I do not support hate speech – I most strongly argue against it.