European limits on free speech

As something of a free-speech dogmatist, I've become interested in the decision of the European Court of Human Rights in Vejdeland v. Sweden, an appeal from a Swedish judgment affirming criminal fines against some folks who stuffed anti-gay flyers into high school students' lockers, which included the following:

“Homosexual Propaganda (Homosexpropaganda)

In the course of a few decades society has swung from rejection of homosexuality and other sexual deviances (avarter) to embracing this deviant sexual proclivity (böjelse). Your anti-Swedish teachers know very well that homosexuality has a morally destructive effect on the substance of society (folkkroppen) 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 (avdramatisera) paedophilia, and ask if this sexual deviation (sexuella avart) should be legalised.

Sounds like the kind of people who should be grateful Lisbeth Salander is only a fictional character.

The Swedish case was decided under a statute outlawing dissemination of speech that "threatens or expresses contempt for a national, ethnic or other such group of persons," including homosexuals. The issue for the ECHR was squaring this conviction with Article 10 of the European human-rights convention:

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. ...

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, ... for the protection of the reputation or rights of others, ....

The seven-judge court unanimously upheld the convictions and fines, agreeing with the appellants that section 1 of Article 10 had been violated, but holding that the particular facts of the case brought it within the scope of section 2.

54. The Court notes that the applicants distributed the leaflets with the aim of starting a debate about the lack of objectivity of education in Swedish schools. The Court agrees with the Supreme Court that even if this is an acceptable purpose, regard must be paid to the wording of the leaflets. The Court observes that, according to the leaflets, homosexuality was “a deviant sexual proclivity” that had “a morally destructive effect on the substance of society”. The leaflets also alleged that homosexuality was one of the main reasons why HIV and AIDS had gained a foothold and that the “homosexual lobby” tried to play down paedophilia. In the Court’s opinion, although these statements did not directly recommend individuals to commit hateful acts, they are serious and prejudicial allegations.

55. Moreover, the Court reiterates that 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 (see Féret v. Belgium, no. 15615/07, § 73, 16 July 2009). In this regard, the Court stresses that discrimination based on sexual orientation is as serious as discrimination based on “race, origin or colour” (see, inter alia, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 97, ECHR 1999-VI).

56. The Court also takes into consideration 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 (see, mutatis mutandis, Handyside v. the United Kingdom, 7 December 1976, § 52, Series A no. 24). Moreover, 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.

57. In considering the approach of the domestic courts when deciding whether a “pressing social need” existed, and the reasons the authorities adduced to justify the interference, the Court observes the following. 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. It also emphasised that the applicants had left the leaflets in or on the pupils’ lockers, thereby imposing them on the pupils. Having balanced the relevant considerations, the Supreme Court found no reason not to apply the relevant Article of the Penal Code.

58. Finally, an important factor to be taken into account when assessing the proportionality of an interference with freedom of expression is the nature and severity of the penalties imposed (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001-I; and Skaÿka v. Poland, no. 43425/98, §§ 41-42, 27 May 2003). The Court notes that the applicants were not sentenced to imprisonment, although the crime of which they were convicted carries a penalty of up to two years’ imprisonment. Instead, three of them were given suspended sentences combined with fines ranging from approximately EUR 200 to EUR 2,000, and the fourth applicant was sentenced to probation. The Court does not find these penalties excessive in the circumstances.

This seems to me rather a hedged ruling, that almost surely would've come down differently had the statements been made in, say, a letter to a newspaper, instead of jammed into students' lockers.

The separate concurrences by 5 of the 7 judges are interesting. Two find no violation of Article 10 only "with the greatest hesitation" and then only because of the distribution at a school (not attended by the appellants) and the relatively light penalties (fines, no imprisonment), and in view of the "real problem of homophobic and transphobic bullying and discrimination in educational settings."

Another likewise had "some hesitation" and would have preferred that the holding rest entirely on para. 56 quoted above. He expressly noted that "if exactly the same words and phrases were to be used in public newspapers such as Svenska Dagbladet, they would probably not be considered as a matter for criminal prosecution and condemnation."

Finally, two judges were more robust in joining the holding of the Court, but expressed "regret that the Court missed an opportunity to 'consolidate an approach to hate speech' against homosexuals," and would have liked a stronger holding. Their conclusion:

11. 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.

12. In the words of the prominent US constitutionalist Alexander Bickel: “... This sort of speech constitutes an 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.”

Hadn't seen that Bickel quote before. (They cite Alexander M. Bickel, Domesticated Civil Disobedience: The First Amendment, from Sullivan to the Pentagon Papers, in THE MORALITY OF CONSENT 72-73 (1975).)

Given the caution of the Court in limiting its holding, it's difficult to take this decision as prohibiting criticism of homosexuals or of civil protections for them. Yet that is just how my source for this decision, Eugene Volokh, takes it:

Are you only allowed to make such arguments to people who are already on your side, so that you are forbidden from trying to reach out to others who might be persuadable and yet who might be offended (even when offended people were free to simply throw out the leaflets once they saw what they said)? Are you only allowed to talk about it to adults, and forbidden from trying to reach out to persuade high school students, apparently of age 16 to 19 — even though, as best I can tell, statements about sexuality generally to such “impressionable and sensitive” students is quite legal, and indeed even sex with such students is quite legal (since the age of consent in Sweden is 15)? And are even discussions with willing adults safe, or could they too lead to criminal prosecutions for “agitation against a [sexual orientation] group”?

Or is it that, once the law has changed (in my view, correctly) to legalize homosexuality and to treat it as morally and legally equivalent to heterosexuality, it is now illegal to try to change social opinion in a way that would change the law back to what it once was — or even to create social condemnation of homosexuality even if there is no legal condemnation?

Read the ECHR decision and see for yourself, but I think that is a very weird takeaway from this case. It seems to me Prof. Volokh is seeing what he wants to see here.

The merits of Article 10, section 2 are certainly debatable. I don't think there's any question that the flyers in question are protected by the First Amendment, though given the restrictions schools can place on students' speech, I am curious whether the same rationales wouldn't fail to protect such speech in a like location. Does the experience of racist propaganda in 20th-century Europe justify such a law as section 2? I have my doubts, but it's provocative to read judicial opinions from a foreign jurisdiction that contemplate such questions.