In a democracy the people must be able to elect its representatives on the basis of their ideology and political intentions. Accordingly, candidates for political office must be allowed to express themselves freely. The courts should not have the right to punish political opinions – so long as candidates do not resort to plain slander, baseless accusations or threats of violence, none of which need hate speech or blasphemy laws to be punishable in a civilized society.
European plans
Plans by the European Union to regulate free speech have been around for a long time, going back to at least 1991, when an investigative committee set up by the European Parliament issued 77 recommendations to combat “racism and xenophobia”. The ideological justification for this step can be found in a 1985 report by another European Parliamentary investigative committee warning of “increasing fascism and racism in Europe” (Document A 2-160/85). Over the years these plans have become increasingly concrete culminating in the “Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law” (Official Journal L 328, 06/12/2008 P. 0055 - 0058).
A framework decision is a legal instrument with clearly defined implications. According to Article 34 of the EU Treaty, such a decision is binding on the member states in regard to the intended objective. However, it is up to national authorities to determine in what form and by what means it is to be implemented. This means that every member state in the European Union is obligated to bring about a legal order that complies with the demands of the Framework Decision as interpreted by the EU’s highest court, the European Court of Justice. The ECJ has the ultimate say on matters of EU law in order to ensure its equal application across all EU member States.
The 2008 Framework Decision thus institutes an EU-wide legal regime enforced by the traditionally activist European Court of Justice. This legal regime has never been discussed with the populations of the member states, nor have these populations ever been given the opportunity to decide whether they wanted their right of free speech curtailed in the manner determined by the Framework Decision.
Furthermore, and in spite of their alarmist rhetoric, the EU bureaucracy, Parliament, Council of Ministers and Commission have never substantiated their claim that “fascism” or “racism” are on the rise among the indigenous populations of Europe.
Troubling
The wording of the Framework Decision, which has already become national law in many of the EU member states, is troublesome. The text establishes in its Article 1 that the following intentional conduct shall be punishable in all EU member states:
“(a) publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin;
(b) the commission of an act referred to in point (a) by public dissemination or distribution of tracts, pictures or other material.”
The document also specifies the criminal penalty for such behaviour:
“Each Member State shall take the necessary measures to ensure that the conduct referred to in Article 1 is punishable by criminal penalties of a maximum of at least between 1 and 3 years of imprisonment.”
Motivation shall be considered an aggravating circumstance:
“Member States shall take the necessary measures to ensure that racist and xenophobic motivation is considered an aggravating circumstance, or, alternatively that such motivation may be taken into consideration by the courts in the determination of the penalties.”
The wording of the Framework Decision can only be characterized as highly ambiguous and therefore inviting arbitrary implementation by the courts.
The use of such indeterminate concepts as “racism” and “xenophobia” demonstrates the EU’s disinclination to establish clear criteria for precisely what it wishes to combat.
What is "racism"?
Traditionally, “racism” is understood to be an ideology, theory or attitude maintaining that certain races of human beings are superior to others and have an inborn right to rule, that races ought to be kept separate or that the racial purity of nations must be preserved. It is, in other words, a concept grounded in biology and cannot be applied to the spheres of religion, ideology, political persuasion or lifestyle. UNESCO’s Declaration on Race and Racial Prejudice of 27 November 1978 contains the following definition of racism (Article 2, 1): “Any theory which involves the claim that racial or ethnic groups are inherently superior, thus implying that some would be entitled to dominate or eliminate others, presumed to be inferior, or which bases value judgments on racial differentiation. ...”
The UNESCO definition of racism in no way precludes or censures scientific research on the genetic differences among populations but merely makes the point that such differences should not be made the basis of any value judgments. The upshot being that the findings of scientific research into variations within the human genome are legitimate and protected under the right of free speech. To the detriment of free enquiry, this fundamental difference between research and value judgments is not being respected by the guardians of political correctness now holding sway within our universities and research institutions.
But the EU is clearly basing its Framework Decision on a much broader concept of “racism”, which remains undefined and consequently unknowable to the citizens.What qualifies as “racism” in each particular case is only revealed once the court has passed sentence.
This expanded notion of what constitutes racism has already made its impact around Europe. An indicative example of its consequences was the 2003 landmark decision by the Danish Supreme Court in a libel case brought by the Chairman of the Danish People’s Party, MP Pia Kjaersgaard against a person who had characterized her opinions as “racist”. The Supreme Court found against Ms Kjaersgaard on the grounds that “racism” may simply imply the distancing of oneself from a group of people that may well belong to the same race as oneself. In other words, “racism” has become a vacuous concept that can be effectively adduced against anybody who does not enjoy the favour of the prosecutor or the court.
Special protection for religion
Another major problem with the Framework Decision is the prerogative it accords religion.
From the standpoint of free speech, religious persuasions, feelings or convictions cannot be granted greater protection under the law than non-religious persuasions, feelings or convictions. Non-believers are as deserving of protection as are the adherents of any belief system. Religious belief is not above opinions based on non-religious thinking. Belief is no more deserving of respect and protection than are secular opinions. The invocation of sacred texts or revelation deserves no greater deference than the invocation of non-religious rationality.
There is another major problem inherent in the EU Framewoirk Decision: How does one draw the distinction between a religion and an ideology? Is any belief system that claims to be a religion automatically protected against criticism or ridicule? If a religion such as Islam encompasses a societal ideology complete with a political and legal system mandated by its god, should criticism or denigration of it then be punishable in a court of law? The implications would be devastating and tantamount to the abolition of the kind of open and democratic debate that has constituted the backbone of our democratic societies. Under the EU concept, such quasi-religions as Nazism and Communism would have been protected if Adolf Hitler and Josef Stalin had only thought of calling their ideologies religions.
Finally, there are serious questions regarding the concept of “hatred”, which the EU wants to make punishable if it is directed “against a group of persons or a member of such a group defined by ... religion”. How does one deal with a belief system that is itself hateful or encourages violent behaviour towards non-believers or adherents of other religions? Should people be punished for expressing antagonism or perhaps even hatred towards those that hate them and may want to kill them? Should one be obligated to show tolerance towards the intolerant? Apparently, if one follows the EU line of thinking.
Unequal before the law
Despite the lack of clarity and the conceptual shortcomings of the new EU legal regime, new hate speech laws modelled on the Framework Decision and its antecedents are being proposed in several European states and old ones that had fallen into disuse decades ago are being brushed off ready for use.
This legal trend has even reached countries outside the Eueopean Union. The Norwegian government has been trying to obtain a parliamentary majority for an expanded anti-racism law that would criminalize “qualified attacks on belief systems and outlooks on life”.
Even in the United States with its strong First Amendment tradition, the new Obama Administration has announced its intention to “strengthen federal hate crime legislation, expand hate crime protection ... and reinvigorate enforcement at the Department of Justice’s Criminal Section.”
The application of the hate speech laws has already had disastrous consequences in a number of European states.
In June of 2008, the French actress Brigitte Bardot was given a two-months suspended jail sentence and fined €15,000 for “instigation of hatred” toward the Muslim community. In a letter to then Interior Minister Nicolas Sarkozy she said that she was “fed up with being under the thumb of this (Muslim) population which is destroying us, destroying our country and imposing its habits”. However, when the anti-Semitic French comedian Dieudonné M’Bala was taken to court in 2004 for having claimed that Jews are “a mafia that controls everything in France”, he was acquitted.
Clearly hate speech jurisdiction leads to inequality under the law. What counts is not what is being said but who says it and who can attract the sympathy of the judges.
In October 2006, Codie Scott, a 14-year old schoolgirl from Salford, England was arrested for racism and spent three and a half hours in police custody because she had refused to study with a group of five Asian pupils who did not speak English. When she complained to her teacher, she was reported to the police.
In September 2007, Jamie Bauld from Cumbernauld, Scotland, an 18-year old boy with Down’s syndrome and the mental capacity of a five-year old was charged with “racial assault” after he had pushed an Asian girl on the playground.
In January 2009, Susanne Winter, an elected member of the Austrian Parliament was convicted by a court in Graz to a suspended sentence of three months and a fine of €24,000 for “inciting racial hatred and degradation of religious symbols and religious agitation”. At a meeting of the Austrian Freedom Party FPÖ in January 2008, Ms Winter had said that Muhammad was a “child molester” since he married a six-year old girl, and that he was a “warlord” who had written the Koran during “epileptic fits”. She also said that Islam is “a totalitarian system of domination that should be cast back to its birthplace on the other side of the Mediterranean” and warned against a “Muslim immigration tsunami”, stating that “in 20 or 30 years, half the population of Austria will be Muslim” if the present immigration policies continue.
Also in January 2009, the Court of Appeal of Amsterdam, Netherlands decided to prosecute Geert Wilders, an elected member of the Dutch Parliament for “the instigation of hatred against Muslims” as the producer of Fitna, a short documentary about the Koran. The movie demonstrates that the Koran calls for violence against Jews and other non-Muslims.
A few weeks earlier, on 3 January, Harry van Bommel, a Socialist member of the Dutch Parliament, took part in a demonstration during which he called for an “Intifada” against Israel and marched with demonstrators who were shouting “Jews to the gas”.
While Geert Wilders will be prosecuted, Mr van Bommel is likely to go free. So is the radical Muslim leader Khalid Yasin who, during a speech at the Islamic University of Rotterdam in early February 2009, said that Geert Wilders “should be flogged for his crimes”.
There is thus clear evidence that hate speech laws are applied unequally and that they are in fact intended to favour certain groups that enjoy the special protection of the European authorities regardless of anything they may say.
This is expressly confirmed by the Belgian government’s anti-racism and discrimination body, which stated in 2006 that “stigmatization of a majority is impossible. Discrimination is something which by definition can affect only minorities.”
It is thus clear that the introduction of hate speech legislation means that citizens are no longer equal under the law. Some are prosecuted and sentenced, while others are not.
In practice hate speech and blasphemy laws have become an instrument in the hands of bureaucratic, political and juridical elites that enables them to punish citizens for expressing opinions the elites do not approve of. An instrument that will prevent the citizens from discussing pressing political and social issues and thus undermining democracy itself.
Under these circumstances, the citizens have only one recourse: to demand the total abolition of all hate speech and blasphemy laws. Rather than pushing for hate crimes legislation, the EU should guarantee the European citizens the protection which American citizens are guaranteed by the first amendment of their Constitution.
