Updated | Mouvement Raëlien Suisse v Switzerland  ECHR 1598 (13 July 2012) – read judgment
This case concerned the Swiss authorities’ refusal to allow an association to put up posters featuring extraterrestrials and a flying saucer on the ground that it engaged in activities that were considered immoral.
The association complained it had suffered a violation of its right to freedom of expression. The Grand Chamber did not agree, ruling that the refusal had met a “pressing social need” and that the authorities had not overstepped the broad margin of appreciation given to them in view of the non-political dimension of the poster campaign.
At first blush there is nothing remarkable about this ruling. But it was a narrow majority (nine votes to eight) and a brief reading of the dissenting opinions gives pause for thought: does the slightly loony nature of a message justify its suppression? Lurking behind the authorities’ refusal to allow the association’s advertising campaign is a sense of disapproval vis a vis their anti-Christian message; one of the campaigns the association wished to conduct featured a poster stating “God does not exist”, and on another, below the association’s website, ran the message “Science at last replaces religion”.
The dissenting minority, in other words, smelt a rat. In order to justify their interference with the applicant association’s right to freedom of expression, the authorities and local courts put forth reasons which underplayed the association’s positions on scientific atheism and gave undue emphasis to its opinions on human cloning and “geniocracy”, as well as to the possibility of sexual abuse on the part of its members.
The important question raised by this apparently silly litigation is therefore whether the time has come to rethink the shibboleth that states have a wide discretion to restrict forms of expression which offend religious beliefs (Murphy v. Ireland 2003). As one of the dissenting judges pointed out, the State may not unduly suppress or restrict free communication of all believers, agnostics, atheists and sceptics, under the guise of respecting the religious sentiment of the majority.
The line between criticism in religious matters and blasphemy is a very thin one, as European history has shown.
Nevertheless, the majority has departed from this civil libertarian insistence on content-neutrality, by deferring to public authorities’ unlimited power to regulate expression in public space according to the religious sentiment of the majority.
The association, whose aim is to make contact with extraterrestrials, requested permission from the Neuchâtel police to put up posters featuring the faces of extraterrestrials and a flying saucer, together with its website address and telephone number. The reaction of the authorities was influenced by the slightly murky background of the movement, which promoted the replacement of democracy by “geniocracy”, a political model based on individuals’ level of intelligence, furthered by human cloning (a link to a cloning service, Conaid, was given in one of the posters). A cantonal court had found that it “theoretically” advocated paedophilia and incest, and the association also been the subject of criminal complaints about sexual practices involving children (through its advocacy of “sensual meditation”).
The applicant association alleged that this was pure censorship and claimed that its promotion of “geniocracy”and sensual meditation was by no means shocking. In 2005, the Administrative Court and the Federal Court upheld the authorities’ decision. While the administrative court accepted that the organisation was entitled to freedom of opinion and religious freedom, it found that its views on “geniocracy” and its criticism of contemporary democracies were capable of undermining public order and safety, as well as morals. The Federal Court dismissed the organisation’s appeal, holding that making public space available for its poster campaign might have given the impression that the State tolerated or approved of such conduct.
In Strasbourg, the association fared no better, with the Grand Chamber upholding the Chamber’s first judgment that the restriction on their freedom of expression was justified.
The Court’s judgment and reasoning
The majority observed that the applicant association had not faced a general ban on the disclosure of certain ideas but a ban on the use of regulated and supervised public space. As the Chamber had noted in the original decision, individuals did not have an unconditional or unlimited right to the extended use of public facilities, especially in the case of advertising or information campaigns.
The Court also noted that signatory states had less room for manoeuvre in imposing restrictions on freedom of expression in political matters as opposed to areas where the expression might cause offence as regards ethical or religious convictions, and also in commercial matters and advertising. The applicant association’s speech was closer to commercial speech, because through its website it was seeking to attract people to join its movement and not to raise questions falling within political debate in Switzerland. Whilst the poster was not advertising a product, it could nevertheless be compared to commercial speech because it had a certain proselytising function. Thus the examination of the lawfulness of a poster fell within the margin of appreciation given to states, and it was not for the Court to intervene in this area. Whilst some of the authorities’ reasons, taken separately, might not be capable of justifying the ban on the poster campaign, the Court took the view that in view of the situation as a whole, the refusal had been indispensable for the protection of health, morals and the rights of others, and for the prevention of crime.
The dissent: comment
There is clearly so much wrong with the majority’s position that the dissenters (whose opinions occupy more than half of the transcript) barely know where to start.
Six of the minority judges make the obvious point that convictions for acts committed in the context of such an association’s activities could justify the banning not only of a poster campaign but also of the association itself and, if appropriate, of its website. In those circumstances, it was questionable whether there was
a “pressing social need” to ban a poster campaign without at the same time banning the applicant association, which had existed since 1977, especially where the prevention of particularly serious criminal offences, such as those against children, was at stake.
This was a classic example of content suppression that struck at the core of free speech. Unattractive though one might find the association’s enthusiasm for human cloning or their utopian vision of society ordered by intelligence, the fact that the majority of people might be shocked did not warrant the prohibition of expression: it is “precisely in the case of ideas that offend, shock and challenge the established order that freedom of expression is the most precious” (Women On Waves and Others v. Portugal ). Even assuming, for the sake of argument, that the association might have been praising cloning research that was being illegally carried out by “Clonaid” at the material time, it was still “hard to see how reading about such advocacy of illegal research would have turned the good people of Neuchâtel into criminal participants in unlawful scientific activity”. Abstract advocacy of criminalised behaviour in the form of requesting legalisation is not an inducement to crime. Nor was a reference to Clonaid’s website enough to fix liability on the referrer: reference is not an endorsement or an identification, and even an endorsement would not create a clear danger of committing a crime.
Otherwise the “referring” person would be obliged to distance himself all the time and that would impose a considerable burden on freedom of speech in the world of the Internet.
As to the argument whereby, in accepting a poster campaign in public space, the municipal authorities would be endorsing the opinions at issue, the dissenters found this not only rather unrealistic in relation to the current role of such authorities, but also ‘dangerous':
That would be tantamount to arguing, a contrario, that freedom of expression in public space could be restricted solely for the reason that the authorities disagree with the ideas conveyed. Article 10 of the Convention would then risk becoming inoperative.
As for the so-called “minimum impairment” measure, the banning of posters in public sites, they had this to say:
To prohibit the applicant association from displaying posters mainly on account of the content of its website, whilst arguing that the scope of such a ban remains limited because the association remains free to communicate via that very same website is singular, if not paradoxical.
In any event, the limited scope of the interference should not free the state of the duty to provide a sufficient reason for it, which it did not do in the present case.
Such was the strength of feeling in the court that no fewer than three hefty joint and individual dissenting opinions were filed, noting an alarming new trend in the majority’s verdict, to deny free speech protection to so-called “non-political”, “quasi-commercial” speech that “has a certain proselytising function”.
This new standard runs counter to the Court’s well-established case-law and diminishes the protection of speech, without offering compelling reasons.
Judge Pinto de Albuquerque offers, in his own dissent, a textbook chapter on freedom of speech in the internet age, particularly his discussion on the necessary protection for the web as a public forum for ideas, where the state should have a narrow margin of appreciation for interference; this is even more the case as regards hyperlinks to web pages that are not under the de facto or de iure control of the hyperlinker. He refers to the ruling by Justice Abella of the Supreme Court of Canada in Wayne Crookes, et al. v. Jon Newton, (2011) 3 SCR 269:
The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential ‘chill’ in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control.
The very purpose of Article 10 of the Convention is to preclude the state from “assuming the role of watchman for truth” and from prescribing what is orthodox in matters of opinion. Taking in to account the applicant association’s freedom of expression, the mixed nature of the association’s speech, the legality of the speech, the association’s website and statutory purposes at the material time, the inexistence of any clear and imminent danger resulting from this speech and the contradictory and arbitrary scope of the poster ban, the imposition of the ban could not be said to be justified by any pressing social need.
Update, 23 July 2012 – Article 19, an NGO working to defend free expression, intervened in this case and their intervention can be found here.
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