The European Court of Human Rights versus freedom of expression
The glaring discrepancy between the Court’s invention of new rights nowhere to be found in the ECHR and its hostility towards free speech underscores the urgent need for reform
The European Court of Human Rights has rightly been criticized for dramatically expanding the scope of the European Convention on Human Rights (ECHR) by affording convicted terrorists, prison inmates, welfare recipients, and neighbors of noisy nightclubs with rights that are nowhere to be found in the convention.
Yet while the Court has expanded the rights in the ECHR and distorted the concept of human rights beyond recognition, it has simultaneously limited the most important of human rights: free speech. On February 9th the Court decided that Sweden did not violate freedom of expression by convicting four people for distributing leaflets with “homophobic” content.
Once again, the Court has misinterpreted its role as that of enforcing politically correct restrictions on what Europeans are allowed to say rather than defending fundamental freedoms.
The leaflets, which were distributed at a high school, called homosexuality a “deviant sexual proclivity” that has “a morally destructive effect on the substance of society” and accused homosexuals of bearing responsibility for the spread of HIV/AIDS. The Court found these statements to be “serious and prejudicial allegations”. Though the leaflets did not advocate violence, “insulting, holding up to ridicule or slandering specific groups of the population” justified suppressing “irresponsible” speech.
The decision is an extension of the Court’s existing case law on blasphemy and hate speech, which has seen it refuse to protect expressions deemed “gratuitously offensive” to religious believers or insulting or hurtful to immigrants or ethnic and racial minorities.
Coming from Europe’s top human rights court, the decision has huge significance for the protection of freedom of expression in the 47 member states of the Council of Europe who are bound by the Court’s decisions. Unlike Americans protected by the Supreme Court’s principled defense of the First Amendment, Europeans will be at the mercy of the sensibilities of politicians and judges when speaking out on controversial issues.
The judgment has been hailed as a major victory for equality and anti-discrimination by gay rights and human rights groups who can use this precedent to foment further prosecutions in the name of tolerance and anti-discrimination. But the decision is no victory for human rights.
It is true that tolerance and anti-discrimination are paramount in a democratic society. It is surely a sign of emancipation that in most Western countries, homosexuals are no longer prosecuted for their lifestyle and can live in the open without fear. Homosexuals, and indeed all minorities, must be protected against legal discrimination and violence.
But tolerance and equality before the law are not principles that give the state the right to change the moral outlook of others or force their conscience on moral issues such as homosexuality. Tolerance means suffering that with which you strongly disagree. It is perfectly understandable that most open-minded citizens feel offended by the thinly veiled bigotry expressed in the leaflets. But a free society must tolerate that an increasingly marginal part of the population finds homosexuality morally objectionable, just as those opposed to homosexuality must tolerate gay pride parades and gay people showing affection for one another in the public.
A right not to be offended drastically curtails the right to freedom of expression and affords the state a dangerous power to determine the limits of public discourse. Indeed, protecting groups from offense has been used as a justification by some Eastern European governments to ban the “promotion of homosexuality”. Such a nefarious development is the unfortunate yet unavoidable outcome when free speech is held captive to vague and subjective standards such as “offence”.
The US Supreme Court has avoided this danger by holding that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”. Accordingly, grieving Americans must tolerate the picketing of military funerals by protesters with signs attacking homosexuals, religion and their deceased ones in language much more hurtful than the Swedish leaflets.
The steady enlargement of different groups protected by hate-speech laws should also tell us something important about how and when minority groups can hope to obtain “recognition” through the law. Only when such groups have been accepted and received sufficient political influence can they hope to be afforded specific legal protection against hate-speech.
It is precisely because homosexuality has become accepted and homophobia a social faux pas in the West that homosexuals have been able to persuade political elites and judges that they deserve specific legal protection. If Swedish homosexuals were a vulnerable and marginalized minority persecuted by the state and other citizens, they would be very unlikely to obtain special recognition. But fortunately Sweden is not Uganda, where anti-gay violence is common and politicians have considered introducing capital punishment for homosexuals.
No minority group, whose members know the pain and humiliation of intolerance, should wish to be afforded respect and recognition through limiting the freedom of expression of others. It is a disturbing reflection of the erosion of our concept of human rights when human rights courts sacrifice the most important freedoms in the name of a perverted form of tolerance.
The glaring discrepancy between the Court’s invention of new rights nowhere to be found in the ECHR and its hostility towards free speech underscores the urgent need for reform.
Jacob Mchangama is director of legal affairs at independent think tank CEPOS in Copenhagen, and external lecturer in human rights law at the University of Copenhagen. He has written for the Wall Street Journal Europe, The Times (UK), NPR, CBS.com, Jerusalem Post, National Review and others
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