Rejoice, for truly I say unto you: there is a God, she is female and Creation is her laughter.
In what other universe would the legal salvation of that macho priest, Fr David Muscat, lie in the court records concerning a Russian feminist band called Pussy Riot, which a decade ago stormed Moscow’s Christ the Saviour Cathedral and performed a vulgar anti-Putin song?
The Russian courts found the women guilty and imprisoned them. Strasbourg’s European Court of Human Rights found the women’s rights had been violated (Mariya Alekhina and others vs Russia). The violations were largely procedural but, on the matter of freedom of expression, the ECHR was especially nuanced.
Storming a cathedral and creating a disturbance, even for political reasons, is not necessarily legally protected as freedom of expression. It could conceivably be prosecuted under the laws of a liberal democracy. But the ECHR insisted that you can only determine if it’s protected speech by analysing the context, performance and lyrics, which Russia didn’t do.
You can’t just read “hate” into words because causing offence and being disturbing or deplorable don’t amount to hate in its legal sense.
In establishing this standard, the ECHR relied on a range of authorities on hate speech – from the UN’s High Commissioner on Human Rights and special rapporteurs, to the European Commission Against Racism and Intolerance, to ‘Article 19’, an organisation committed to defending free expression worldwide.
Every politician, journalist and police officer should be familiar with the components of the standard. The case of Fr Muscat continues to hog the limelight as the number of reporters present at the court sitting last Friday attest. (Full disclosure: I was prepared to testify on Fr Muscat’s behalf, though this was deemed unnecessary.)
Beyond this case, the prime minister has made combatting hate speech a top item of his political agenda. No sooner had he said this, two demoted ministers, struggling to be relevant, reported Muscat to the police.
It’s not just Malta, though. Last year, Scotland passed a controversial hate speech law, whose critics argue could chill free speech.
Last week, the eyes of the European media were on the case of the Finnish Christian Democrat politician who is being prosecuted for hate speech after she tweeted that homosexuality is dysfunctional, shameful and unnatural. Päivi Räsänen is an ex-interior minister who is being prosecuted under the anti-hate law she herself had passed.
All the indications are that controversy over what constitutes hate speech will not fade soon. What are the ECHR’s principles that can help us find our way through the issues?
First, hate speech laws are there to protect people, not beliefs. No doctrine is sacrosanct. Religious belief isn’t off-limits. But neither should the law be there to make sure everyone pays lip-service to liberal doctrines about gender, sexual orientation, politeness or any other issue.
Second, for hate laws to be broken, the public intent to incite must be present. This is critical for it shows that the legal understanding of hate diverges from its meaning in ordinary conversation.
Fr David Muscat has a long record of talking and writing about homosexuality. I’d call it a crackpot’s record, some of which is distasteful and other parts of which are laughable- Ranier Fsadni
Speech that, in colloquial Maltese, might be called cruel (kattiv) or bilious (ħdura) isn’t necessarily hate in the legal sense. Last year, the police hauled to court a man who, in a Facebook post, had said something bilious and cruel about Eddie Fenech Adami’s longevity. But he was simply expressing spite, not inciting anyone against the former prime minister.
The police had no business prosecuting him. As it happened, the force charged him under a defunct law, which meant he couldn’t be found guilty.
Third, therefore, for the law ‘hate’ and ‘hostility’ should involve ‘intense and irrational emotions of opprobrium, enmity and detestation’. ‘Incitement’ should involve, at the very least, the imminent risk of discrimination (endangering of rights), hostility and violence.
Muscat has a long record of talking and writing about homosexuality. I’d call it a crackpot’s record, some of which is distasteful and other parts of which are laughable. But if, in the process of his over-the-top performances on widely watched interviews, he’s ever incited anyone, it’s been kept a closely guarded secret.
The Finnish prosecutor has said that Räsänen’s declarations about homosexuality might lead to contempt for LGBTIQ people. About this, there are grounds for scepticism, given that we’re dealing with a politician whose political party obtained fewer than four per cent of the vote at the last general election. What influence is Räsänen likely to have?
Scepticism isn’t enough, though. The ECHR says you also need to look at the context. It cites the criteria given, in 2012, by the Special Rapporteur of the UN Human Rights Council to be used to determine if incitement is present.
The list includes tone, content and means of dissemination. Facebook posts to small audiences are considered to be less weighty than mainstream websites. The criteria could plausibly let Muscat off the hook while nailing Räsänen. It’s not just what is said but who says it and how.
He used Facebook in a restricted conversation; she used Twitter to address the entire Lutheran church of Finland. His public persona is of a priest given to extravagant utterances; she’s an ex-minister who might return to power. He used moral criteria; her criteria include, it seems, those of developmental psychology.
None of the above should be taken to dismiss the concerns underlying hate speech laws. Legally protected groups of people have every right to be hawkish in defence of their hard-won rights.
Laws against the incitement of hatred are necessary. They’re a good thing when they’re used to protect people from dangers to their rights and safety. But they’re abused when deployed to police thought and civil debate.