Hate Speech and Human Rights in Eastern Europe

Legislating for Divergent Values

Viera Pejchal

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000057690
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Hate Speech and Human Rights. Democracies need to understand these terms to properly adapt their legal frameworks. Regulation of hate speech exposes underlining and sometimes invisible societal values such as security and public order, equality and non-discrimination, human dignity, and other democratic vital interests.

The spread of hatred and hate speech has intensified in many corners of the world over the last decade and its regulation presents a conundrum for many democracies. This book presents a three-prong theory describing three different but complementary models of hate speech regulation which allows stakeholders to better address this phenomenon. It examines international and national legal frameworks and related case law as well as pertinent scholarly literature review to highlight this development.

After a period of an absence of free speech during communism, post-communist democracies have sought to build a framework for the exercise of free speech while protecting public goods such as liberty, equality and human dignity. The three-prong theory is applied to identify public goods and values underlining the regulation of hate speech in the Czech Republic and Slovakia, two countries that share a political, sociological, and legal history, as an example of the differing approaches to hate speech regulation in post-communist societies due to divergent social values, despite identical legal frameworks.

This book will be of great interest to scholars of human rights law, lawyers, judges, government, NGOs, media and anyone who would like to understand values that underpin hate speech regulations which reflect values that society cherishes the most.

1 Introduction

“They should be shot after their birth.” This is what a member of the Czech Parliament said in 2017 when referring to Roma, homosexuals and Jews. In Slovakia in 2018, a member of the Slovakian Parliament notorious for his extreme right opinions was on trial for calling Roma “asocials that are draining out our system.” Signs that state “Roma/Hungarians/Muslims not welcome” can be seen in Czech and Slovak restaurants and hotels; Roma segregation in schools and the display of pictures with Neo-Nazi symbols on social media are only a few examples of hate speech in the Czech and Slovak Republics. Hate speech, however, has turned to violence on several occasions. Often, symbolic events such as the commemoration of Adolf Hitler’s birthday serve as a platform for those who call for “cleaning up the area” or that “gypsies deserve gas,” accompanied by throwing Molotov cocktails into Roma houses, causing death, life-threatening conditions and substantial material damage. These events are considered by many Slovak and Czech stakeholders as extremism. The occurrence of hate speech as a part of extremism in post-communist societies presents several challenges related to human rights, notably, free speech and the protection of minorities. These are both essential public goods in a democracy.

On January 1, 1993, two new States appeared on the map of Central-Eastern Europe (CEE): the Czech Republic and Slovakia. The end of communism in Czechoslovakia after the Velvet Revolution in 1989 catalyzed the gradual establishing of democratic institutions and principles. However, the totalitarian heritage left an impact on how democracy, the rule of law and human rights are implemented. Although both countries are nowadays considered as consolidated democracies, the transition from an authoritarian/totalitarian communist regime to a fully consolidated democracy has not yet been fully accomplished.¹ Studying hate speech regulation in these two post-communist countries presents a unique opportunity to emphasize challenges related to the application of human rights principles such as the freedom of expression and the protection of minorities against violence and discrimination.

1 See Jiří Pehe, “Czech Republic and Slovakia 25 Years after the Velvet Revolution: Democracies without Democrats,” Heinrich Böll Stiftung European Union, September 15, 2014, https://eu.boell.org/en/2014/09/15/democracies-without-democrats; Or Tatu Vanhanen, Democratization: A Comparative Analysis of 170 Countries, Routledge Research in Comparative Politics 7 (London; New York: Routledge, 2003).

The spread of hatred and hate speech has intensified in many corners of the world in the last decade, and there is more and more political and academic debate about its proper regulation. Nevertheless, there is still neither a universally agreed definition of hate speech nor a consensus on how to deal with this unwanted and harmful phenomenon. The absence of clear international guidelines or an identifiable threshold for when speech incites violence, discrimination or hatred makes the regulation of hate speech in post-communist countries much more difficult. What kind of speech is permitted is at the heart of the conundrum. Communist regimes were infamous for their suppression of free speech. Democracies, contrary to authoritarian regimes, allow for freedom of expression and thus permit the emergence of numerous opinions and attitudes. Post-communist democracies have struggled with the establishment of permissible boundaries to free speech when it comes to the incitement of violence, discrimination or the denial of human dignity.

Conflicts between different ideas are inherent in a free and democratic society. However, when a part of a community is inclined towards extremist and radical opinions that are translated into spreading hatred and committing violent acts, democratic States have a duty to protect themselves from such erosion of democratic values as well as to protect its citizens from physical or verbal violence. It has been said that the best indicator of the freedom inherent in a country is the extent to which security is enjoyed by minorities. Democratic societies should guarantee the enjoyment of all rights and freedoms for all its citizens, including freedom from fear. This is crucially important for historically oppressed minorities and vulnerable groups. Scholars have referred to ‘militant democracies’ or ‘defensive or fighting democratic regimes’ to describe those countries which adopt preventive legal measures to limit individual liberties with the aim of preserving democracy.² My research offers an in-depth insight into the relationship between post-communist and militant concepts of democracy in the Czech and Slovak Republics through the analysis of hate speech regulation. It is widely accepted that hate speech is contextual and that hate speech regulation is influenced by a country’s history, political culture and socio-economic conditions.³ The case study of hate speech regulation in the Czech and Slovak Republics is unique in several ways: first, the two States shared legal and political space in what once was one country for most of the 20th century; second, the rule of communist law for more than 40 years has influenced the relationship between freedom of expression and protection of the rights of others, mainly minorities; and, third, despite sharing these and many other features, similar approach in hate speech regulation has resulted in different outcomes.

2 Karl Loewenstein, “Militant Democracy and Fundamental Rights, I.” American Political Science Review 31, no. 3 (June 1937): 417–32.

3 Michael Herz and Péter Molnár, eds., The Content and Context of Hate Speech: Rethinking Regulation and Responses (Cambridge; New York: Cambridge University Press, 2012); Anne Weber, Manual on Hate Speech (Strasbourg: Council of Europe Publishing, 2009); Michel Rosenfeld, “Hate Speech in Constitutional Jurisprudence: A Comparative Analysis,” Cardozo Law Review 24 (2003): 1523–67.

Almost every democratic society is confronted by extremist opinions. Recently, citizens of the European Union were asked to identify different forms of extremism. Among the answers were: expressions of racism, xenophobia, discrimination, intolerance, violence and also the rise of populist extremist parties in politics.⁴ In the CEE context, all forms of extremism are influenced by the rise and modalities of extremism in Europe and especially in neighboring countries.⁵ The rise of xenophobic crime towards both migrants and national and ethnic minorities and the growth of hate crime in Europe⁶ have empowered extremist movements and normalized extremist ideologies in Slovakia and in the Czech Republic. New democracies have tackled the fight against extremism in slightly different ways despite their legal, historical and cultural similarities. The hate speech regulation in each country reflects the different democratic values, principles and public goods that exist in both countries. This research focuses on what public goods underpin both hate speech regulation and the application of hate speech laws.

4 See, for example: European Humanist Federation, The European Union and the Challenge of Extremism and Populism. How to Protect Democracy and the Rule of Law in Europe? (October 2013), accessed July 2, 2015, https://archive.org/download/TheEuropeanUnion_extremismAndPopulism/TheEuropeanUnion_extremismAndPopulism.pdf.pdf

5 Daniel Milo, Rasistický extrémizmus: v Slovenskej republike (Bratislava: L’udia proti rasizmu, 2005).

6 See statistics from the European Union Agency for Fundamental Rights, Hate Crime in European Union, accessed July 2, 2015, http://fra.europa.eu/sites/default/files/fra-factsheet_hatecrime_en_final_0.pdf.

The historical absence of the enjoyment of freedom of expression resulted in a preference for unfettered freedom of expression, particularly in the early years of democratization. Free speech has been perceived as a public good to be cherished and not restricted. In recent times, there has been an increasing awareness of the need for members of vulnerable groups to be protected from physical and verbal violence and discrimination. Moreover, that these norms are equally valued in society with the freedom of expression has also only recently been given serious consideration. Thirty years after the end of communist rule, it is high time for the Czech and Slovak democracies to adopt a more active – a value-based – approach in protection of human rights from hate speech.

The key postulate of this research has been that hate speech regulation reflects apprehension of public goods by key public stakeholders. The term ‘hate speech’ has been widely used by scholars, the public and the media in referring to different legal, political and social concepts. This complex inquiry cannot be undertaken without answering a non-exhaustive number of fundamental questions such as: What is hate speech? Is hate speech regulation linked to the protection of certain values in democratic societies? How do hate speech regulation and democracy relate to each other? Is the international understanding of hate speech different from that which exists in the post-communist context? Is hate speech regulation different in Slovakia and in the Czech Republic? How and why hate speech is understood within the framework of extremism in these countries? These and other questions will be examined through three interlinked parts, and their subsequent findings will help to provide answers to the main research question.

This research is situated in the areas of comparative constitutional, criminal and international human rights law. This legal study also draws on political science when analyzing democratic concepts such as the rule of the majority and the protection of minorities, the implementation of public policies towards non-discrimination and the promotion of tolerance, as well as the role of non-governmental organizations in this regard. Also, I will draw upon the philosophical foundations for establishing limits to rights, such as that of freedom of expression. In this context, I intend to utilize John Stuart Mill’s harm principle and protection of public goods, namely, freedom, equality and human dignity. Research on hate speech regulation or understandings of hate speech and its impact on CEE, and more specifically on the Czech and Slovak societies, are scarce, but this study builds upon the previous work done in this area, particularly by political scientist scholars.

This book is divided into three equally important and interconnected parts. Part I sets out a theoretical basis. It is divided into two chapters. First, relevant public goods such as democracy, freedom of expression and human dignity are reviewed in these chapters and serve as a foundation for Parts II and III of this study. It is vital to understand the underlying ideas of possible conflicts of rights in the context of hate speech and how a democratic State deals with such conflicts. The existing theories of militant democracy will be used to scrutinize the relationship between minority protection, discrimination and extremism in the context of limiting freedom of expression. This part will also analyze existing theories regarding the limits of freedom of expression and mutually confront certain ideas in legal theory and philosophy and political sciences that are relevant to hate speech. I briefly review existing definitions of the general term ‘hate speech’, and in the absence of a generally accepted one I propose a different approach to the understanding of hate speech. This approach is based not only on legal regulation but also on judicial interpretation – it does not pretend to exhaustively define hate speech but rather to understand it vis-à-vis public goods that hate speech undermines in a democracy. The objective is to facilitate the level of understanding of hate speech and what public or legal goods are protected by its regulation so all the stakeholders involved in the democratic processes can better apprehend what is at stake when the term ‘hate speech’ is implemented. I offer a three-prong theory of different but complementary understandings of hate speech focusing on the consequence of the act of incitement. In this regard, I will consider three models of hate speech as incitement to violence, incitement to discrimination and incitement to denial of human dignity.

The second chapter of Part I scrutinizes the historical, political and constitutional context of Slovakia and the Czech Republic. It explains the pre-communist experience, communist legacy and post-communist protection of minorities. Significant similarities and differences between these two republics will be shown. They are linked to the understanding of the national vs. civic principle of the society. The explanation of the context plays a fundamental role in understanding the post-communist regulation of hate speech. This chapter also gives insights into the political and legal reasons for choosing ‘extremism’ for hate speech laws in these two countries.

In Part II, I apply the findings from Part I regarding public goods within international human rights law. I analyze international human rights mechanisms and its propositions towards hate speech definitions and regulations. The United Nations human rights treaties are examined alongside the Council of Europe and European Union’s approach to hate speech regulation. The premise of this part is to find common elements for hate speech regulation and justification for limiting freedom of expression that could be inspiring for lawmakers in post-communist democracies. The international case law analysis will show the evolution and different levels of hate speech understanding. Also, the soft law of international organizations will be reviewed because it allows for the most updated international consensus on boundaries of free speech and hate speech regulation. Proper understanding of international standards is essential for a later comparison with the Czech and Slovak approaches regarding hate speech.

Part III presents an elaborate comparative study of issues related to hate speech in former Czechoslovakia. It is divided into two chapters. This problem-oriented comparison was chosen because both countries share a common legal, sociological and political history, but their separation and their independent legal development have offered different approaches to the problem of hate speech. The hypothesis that will be tested in this part is that although both countries have shared a common legal history, their responses to the regulation of hate speech differ substantively. The first part focuses on the post-communist constitutional framework of human rights protection related to hate speech, namely, freedom of expression and protection of minorities. The second part examines the penal regulation of hate motivated conduct, focusing on hate speech. An analysis of the normative framework is complemented by cases that better contextualize expressions of hatred. However, among the challenges of the interpretation of hate speech in the Czech and Slovak Republics are: seldom prosecution of hate motivated offenses, scarce case law and poor quality judgments when applying penal statutes. Nevertheless, this part applies three-prong theory of hate speech understandings in these two republics. Different approaches to tackling hate speech regulation may indicate different understandings of the values inherent in democracy in both countries.

The relevance of the outcome found in this book is not only for CEE but for any actor in a democratic society who would like to understand better the reasons for the criminalization of speech, the consequences of extremism and the means of protection of human dignity which can only be beneficial for building stronger social cohesion. Regulation of hate speech represents a major challenge for any democracy in assessing the level of tolerance towards the intolerant...