February 14, 2012
The Court has handed down a fascinating judgment on the freedom of expression. Vejdeland and others v. Sweden is the first time that the Court applies the principles relating to hate speech in the context of sexual orientation. A unanimous Court has ruled that Sweden did not violate the right to freedom of expression: the criminal conviction of the applicants for distributing leaflets that contained offensive statements about homosexuals did not breach the Convention. The judgment – which I will discuss below – is well worth reading, and so is the factsheet on hate speech that the Court has released on the occasion of this ruling.
The four applicants in Vejdeland entered a secondary school and distributed approximately a hundred leaflets in and on pupils’ lockers. The leaflets called homosexuality a “deviant sexual proclivity” that has a “morally destructive effect on the substance of society”. They blamed the “promiscuous lifestyle” of homosexuals for the spread of the “modern-day plague” of HIV and AIDS. And the leaflets alleged that “homosexual lobby organizations” try to “play down pedophilia” (para. 8).
The applicants were convicted by the Swedish Supreme Court for agitation against a national or ethnic group. They appealed to the Strasbourg Court, complaining that their right to freedom of expression (art. 10 of the Convention) had been violated. They contended that the content of the leaflets was not hateful towards homosexuals, and maintained that the leaflets were meant to provoke a discussion about the lack of objectivity in Swedish schools.
Judgment of the ECtHR
The judgment turns on the question of whether the interference was “necessary in a democratic society” (Art. 10(2)).
On the one hand, the Court reiterates the well-known formula that freedom of expression extends to those ideas that “offend, shock or disturb”. The Court also observes that the aim of starting a debate about the lack of objectivity of education in Swedish schools is an acceptable one. Looking at the content of the leaflets, the Court notes that: “these statements did not directly recommend individuals to commit hateful acts” (para 54).
However, moving to the other side of the issue, the Court notes that the leaflets contain “serious and prejudicial allegations.” (para 54). The Court references the case of Féret v. Belgium and 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 . . . 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” (para 55).
What tips the scales in favour of upholding the conviction of the Swedish Supreme Court, are a few additional considerations concerning the specific facts of this case:
– “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” (para. 57);
– 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” (para 57);
– “the Court did not find the penalties imposed by the Supreme Court excessive” (para. 58).
The Court is unanimous in finding no violation of the Convention. Nevertheless, five out of seven judges thought it necessary to elaborate their support of the ruling; this resulted in three interesting concurring opinions.
Concurring opinions and discussion
The Court’s consideration of the merits barely covers four pages. No wonder then that some issues are left unaddressed; hate speech is obviously a very complicated issue on which much has been written (see for example this Council of Europe manual). The concurring opinions add some much-needed additional perspectives.
What I am missing most from the judgment is an explanation of why the statements in the leaflets are so particularly prejudicial. Though the outcome of this case is likely to be applauded by equality scholars, the Court’s reasoning lacks grounding in context; the reason why the statements in the leaflets are so dangerous is because they resonate with deeply rooted stereotypes and because they are made in a background of widespread discrimination against sexual minorities. The concurring opinion of Judges Spielmann and Nussberger does include an appreciation of this context. Judges Spielmann and Nussberger refer to many Council of Europe documents that recognize the harm that homophobic statements do. I especially like the way these judges make the connection to school settings:
It should also not been forgotten 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. Indeed, according to studies carried out across member States and supported by some government research, LGBT students suffer from bullying from both peers and teachers.” (Concurring opinion of Judges Spielmann and Nussberger, para 7)
Bullying of LGBT students is a huge problem in Europe and, to my knowledge, this is the first time that (a part of) the Strasbourg Court recognizes that in a judgment.
I was also particularly struck by a passage in the concurring opinion of Judges Judkivska and Villiger. Among other things, they criticize the part of the judgment where the Court affirms that the conviction of the applicants served a legitimate aim, namely “the protection of the reputation and rights of others” (para. 49). Referring to the Supreme Court of Canada in R. v. Keegstra (1990), Judges Judkivska and Villiger point out that:
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.” (Concurring Opinion Judges Judkivska and Villiger, para. 9).
I agree with Judges Judkivska and Villiger that statements that stereotype and invite discrimination against disadvantaged groups are a matter of concern to all of us, not just the group in question. Not for the first time I think that the Court passes too easily over the question of what kind of legitimate aim is served by a State’s action. Don’t get me wrong: in this instance I agree with the Swedish Government and with the Court, but it would have been good to see more thorough reasoning on this point.
It will be exciting to see the repercussions of this case. Will this have an effect on the upcoming Grand Chamber judgment in Aksu v. Turkey, for example? I’ll admit: I hope it will (see my previous post here).