Strasbourg rules on anti-gay speech for the first time

13 March 2012 by Karwan Eskerie

Vejdeland and Others v Sweden (Application no. 1813/07) – Read judgment

 “Will both teacher and pupils simply become the next victims of the tyranny of tolerance, heretics, whose dissent from state-imposed orthodoxy must be crushed at all costs?”, asked Cardinal O’Brien in his controversial Telegraph article on gay-marriage. He was suggesting that changing the law to allow gay marriage would affect education as it would preclude a teacher from telling pupils that marriage can only mean a heterosexual union. He later insinuated that the change might lead to students being given material such as an “explicit manual of homosexual advocacy entitled The Little Black Book: Queer in the 21st Century.”

A few weeks before that article was published, the European Court of Human Rights handed down its first ever ruling on anti-gay speech, in a Swedish case where a group of young men, seemingly motivated by a similar abhorrence to that expressed by Cardinal O’Brien for the “tyranny of tolerance” in education, put a hundred or so leaflets in or on the students’ lockers at a secondary school. The leaflets read:

“Homosexual Propaganda”

In the course of a few decades society has swung from rejection of homosexuality and other sexual deviances to embracing this deviant sexual proclivity. Your anti-Swedish teachers know very well that homosexuality has a morally destructive effect on the substance of society and will willingly try to put it forward as something normal and good.

–Tell them that HIV and AIDS appeared early with the homosexuals and that their promiscuous lifestyle was one of the main reasons for this modern-day plague gaining a foothold.

–Tell them that homosexual lobby organisations are also trying to play down paedophilia, and ask if this sexual deviation should be legalised.”

The men were convicted, under Swedish law, of agitation against a group of persons with allusion to sexual orientation. All but one were fined and given suspended sentences; the other was sentenced to probation.

They challenged the convictions in Strasbourg primarily on the ground that their right to freedom of expression under Article 10 of the Convention had been violated. They argued that their leaflets did not express contempt for homosexuals and that their intention was merely to start a debate about the lack of objectivity in education dispensed in Swedish schools.

The Fifth Section of the Court dismissed the application and concluded that there had been no violation of Article 10.

That this was the first time that the Strasbourg Court has ruled on Article 10 (the right to freedom of expression) in the context of anti-gay speech is in itself remarkable. However, the case merits added attention for the intense debate that the bench engaged in on the proper limits of freedom of expression in the context of anti-gay speech and more broadly.

The majority’s reasoning

It was not in dispute that there had been an interference with the applicants’ freedom of expression. The live issue was whether the interference satisfied the requirements of Article 10(2) (ie, whether the interference was prescribed by law and “necessary in a democratic society…for the protection of the reputation or rights of others”).

In the main judgment, the majority of the bench recalled that Article 10 protects not only information or ideas that are favourably received or inoffensive, but also those that offend, shock or disturb. Whilst States have a margin of appreciation, any restrictions on the freedom have to be construed strictly and the need for them established convincingly.

Whilst the majority appeared to accept that the applicants distributed the leaflets with the aim of starting a debate about the lack of objectivity in education, they considered the wording of the leaflets to be decisive. The statements in the leaflets amounted to “serious and prejudicial allegations”, even though they did not directly recommend individuals to commit hateful acts:

inciting to hatred does not necessarily entail a call for an act of violence, or other criminal acts. Attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating racist speech in the face of freedom of expression exercised in an irresponsible manner…In this regard, the Court stresses that discrimination based on sexual orientation is as serious as discrimination based on “race, origin or colour”. (para 55)

It was held to be relevant that the leaflets were left in the lockers of young people who were at an impressionable and sensitive age and who had no possibility to decline to accept them. Further, the distribution of the leaflets took place at a school which none of the applicants attended and to which they did not have free access.

In considering the Swedish Supreme Court’s approach to whether the interference was necessary, it was noted with approval that:

The Supreme Court acknowledged the applicants’ right to express their ideas while at the same time stressing that along with freedoms and rights people also have obligations; one such obligation being, as far as possible, to avoid statements that are unwarrantably offensive to others, constituting an assault on their rights. The Supreme Court thereafter found that the statements in the leaflets had been unnecessarily offensive.(para 57)

The majority finally noted the relatively minor penalties, before concluding that the interference was justified.

Offensiveness not enough

Three Concurring Opinions were delivered.

In his Concurring Opinion, Judge Spielmann, joined by Judge Nussberger, began by confessing his “greatest hesitation” in finding against the applicants. In support of this, he summoned the following passage from the dissenting opinion of Judge Sajó in Féret v Belgium:

Content regulation and content-based restrictions on speech are based on the assumption that certain expressions go “against the spirit” of the Convention. But “spirits” do not offer clear standards and are open to abuse. Humans, including judges, are inclined to label positions with which they disagree as palpably unacceptable and therefore beyond the realm of protected expression. However, it is precisely where we face ideas that we abhor or despise that we have to be most careful in our judgment, as our personal convictions can influence our ideas about what is actually dangerous. (para 2)

Judge Spielmann went on to say that whilst the leaflets undoubtedly contained unacceptable statements, to equate them with hate speech within the meaning of the Strasbourg case law needed robust justification. The Swedish Supreme Court should have carried out a careful, in-depth analysis of the aim of the speech and whether behind the apparent aim of starting a debate, there was any hidden agenda to degrade, insult or incite hatred. In his opinion, the Supreme Court’s finding that the statements were unwarrantably or unreasonably offensive constituted a rather vague test which seemed inconsistent with the established Strasbourg case law that freedom of expression applied also to information and ideas that offend, shock or disturb.

That notwithstanding, he “very reluctantly” found that there was no violation, because of the location and manner of distribution as noted by the majority (see above). The factual circumstances of the distribution, he added, affected the scope of the margin of appreciation in a case where the penalties were not excessive. He added in conclusion however that “a real problem of homophobic and transphobic bullying and discrimination in educational settings may justify a restriction of freedom of expression under paragraph 2 of Article 10”.

American insensitivity vs European oversensitivity

In his concurring opinion, Judge Zupančič, who shared the hesitation of Judges Spielmann and Nussberger in finding against the applicants, offered an interesting comparative analysis of the American and European approaches to freedom of expression. He pointed to the very liberal approach taken by the US Supreme Court to controversial messages, as exemplified in its recent decision in Snyder v Phelps et al 562 U.S. (2011) (a case concerning homophobic picketing outside military funerals by a church group who wanted to communicate their belief that God hated the US for its tolerance of homosexuality in the American military). Judge Zupančič observed that in the American case law:

That the statement is arguably of inappropriate or controversial character “…is irrelevant to the question of whether it deals with a matter of public concern”. In other words, freedom of speech in Snyder – a fortiori as a tort case, not a criminal case – was not to be impeded by considerations of proportionality as long as the statement in question could be “fairly considered as relating to any matter of political, social, or other concern to the community”. “Speech on public issues occupies the highest rank of the hierarchy of First Amendment values, and is entitled to special protection. (para 3)

The American Supreme Court has set a higher standard for the law in such cases: Firstly, it must avoid content discrimination (ie, the State cannot forbid inflammatory speech only on some “disfavoured” subjects) and secondly, it must avoid viewpoint discrimination (ie, it cannot forbid inflammatory speech that expresses one particular view on the subject):

Thus, for example, the legislator may impose a general ban on the public use of rude racial slurs; it cannot, however, criminalise their use solely in race-related public discourse, or their use in order to express only a racist viewpoint. It is interesting to note that if this American double test were applied to the present case, the applicable law…would not pass muster on either count, especially the second: had the applicants defended homosexuality and railed against “wicked homophobes” in their leaflets, they would probably not have been convicted.

In our case we have relied on a different kind of logic as did the Swedish Supreme Court,…which considered the relatively inoffensive language of the leaflets to be a cause for criminal prosecution…” (para 4-5)

The Judge noted that whilst the American approach to free speech might be found to be “perhaps insensitive”, the Swedish Supreme Court’s test of “unwarrantably offensive to others” demonstrated an “oversensitivity in collision with free speech postulates”. This, in the Judge’s opinion, was a culturally predetermined debate.

Ultimately, the Judge found the concept of a captive audience (one that finds itself in an inescapable situation and is bombarded with information that is offensive to some of the members of that audience) to be decisive in this case. School grounds, he observed, are protected settings where only those authorised to distribute any kind of information may do so and that even the US Supreme Court has held that the freedom to advocate controversial views in schools must be balanced against the society’s interest in “teaching students the boundaries of socially appropriate behaviour.”

Nevertheless, Judge Zupančič’s concluding remarks were that:

we seem to go too far in the present case – on the grounds of proportionality and considerations of hate speech – in limiting freedom of speech by over-estimating the importance of what is being said. In other words, if exactly the same words and phrases were to be used in public newspapers…, they would probably not be considered as a matter for criminal prosecution and condemnation. (para 12)

Europe cannot afford the luxury of the American approach

The final concurring opinion was delivered by Judge Yudkivska, who had no difficulties in finding a violation of Article 10. She regretted however that the Court had missed an opportunity to consolidate an approach to hate speech against homosexuals.

Judge Yudkivska noted the majority’s characterisation of the content of the leaflets as “serious and prejudicial allegations” and not as hate speech:

This appears to be the American approach, where hate speech is protected until it threatens to give rise to imminent violence. This is a very high threshold, and for many well-known political and historical reasons today’s Europe cannot afford the luxury of such a vision of the paramount value of free speech. (para 6)

In her view, the leaflets did qualify as hate speech; she did not consider accusations that homosexuals are deviants and responsible for the spread of HIV and AIDS to be in harmony with the Convention’s values and rejected the majority’s emphasis on the applicants’ intention to start a debate about the lack of objectivity in education. She found it hard to see the wording of the leaflets as simply starting a debate and saw them as disseminating the applicants’ views among teenagers who are vulnerable to different kinds of influence.

Judge Yudkivska was also critical of the majority’s balancing of the applicants’ freedom of expression with the legitimate aim of protecting the reputation and rights of others:

cases like the present one should not be viewed merely as a balancing exercise between the applicants’ freedom of speech and the targeted group’s right to protect their reputation. Hate speech is destructive for democratic society as a whole since “prejudicial messages will gain some credence, with the attendant result of discrimination, and perhaps even violence, against minority groups”, and therefore it should not be protected. (para 9)

Referring to the Court’s finding in Norwood v the United Kingdom (no. 23131/03, ECHR 2004-XI) that the linking of Muslims as a group with the bombing of the Twin Towers was incompatible with the values guaranteed in the Convention, the Judge added that the linking of a whole group to the “plague of the twentieth century” should equally be denied the protection of Article 10. Her opinion ended with a sombre warning:

Our tragic experience in the last century demonstrates that racist and extremist opinions can bring much more harm than restrictions on freedom of expression. Statistics on hate crimes show that hate propaganda always inflicts harm, be it immediate or potential. It is not necessary to wait until hate speech becomes a real and imminent danger for democratic society.

In the words of the prominent US constitutionalist Alexander Bickel:

…This sort of speech constitutes assault. More, and equally important, it may create a climate, an environment in which conduct and actions that were not possible before become possible…Where nothing is unspeakable, nothing is undoable. (paras 11-12)

Where do we stand on anti-gay speech?

At a basic level, the judgment merits celebration as a milestone in the recognition of gay rights. It recognises the State’s ability to limit anti-gay speech, at least in schools. However, the majority’s judgment and the Concurring Opinions highlight the ever-present tension between the competing considerations that characterise Article 10.

The majority’s decision espouses a delicate balance between those considerations. On one hand, the judgment is somewhat conservative. Firstly, the majority appear to be saying that the sorts of statements at issue in this case are not “hate speech”.  Secondly, strong reliance is placed on the fact that the publication of the leaflets was in a school setting and to a captive audience – which suggest a more lenient approach in other settings.  However, on the other hand, the judgment appears to suggest that a State may justifiably restrict freedom of expression in order to prevent   “unwarrantably offensive” statements against a group – a lower threshold than “hate speech”.

The concurring opinions provide a thought-provoking dialogue on the subject. They also betray fundamental disagreements in the Strasbourg Judiciary as to the proper limits of the Article 10 right and its future development.

Most essentially, they underline, in my view, the murky, intensely political and cultural, contours of the right to freedom of expression.  It remains to be seen how the Court will develop this area of its law, how it will come to respond to the various shades of anti-gay speech in non-educational settings (Cardinal O’Brien’s comments for instance), and what credence it will give to arguments about the need for the airing of anti-gay arguments in education and the perceived dangers of children having access to the Little Black Book. I would not, however, bet on the Court declaring a war on tolerance any time soon…

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