Freedom of speech and laws prohibiting incitement to racial, religious and other forms of hatred are not incompatible if we move away from absolutist definitions.
When the so-called racism paragraph (§ 135 (a) in the Norwegian General Civil Penal Code) was first introduced in 1970, it was as a direct result of Norway’s adoption of the 1965 UN International Convention on the Elimination of All Forms of Racism and Discrimination (ICERD). It was also part and parcel of a European-wide move to protect vulnerable minorities against speech deemed racist and discriminatory, introduced in light of the, (then) relatively recent experience of the Holocaust. (Indeed, it was the Federal German Republic, concerned with continued Nazi agitation in the 1950s and ’60s, that was the first to legislate.) From the 1970s to today, there has been a major shift in attitudes towards legislation against incitement. Today, it is often argued by public intellectuals – from both the Left and Right and in every European country – that legislation against hate speech is both undemocratic and illiberal. And this despite the fact that racist and discriminatory speech is designed – on the level of its purported effects – to undermine equal rights to human dignity and citizenship.
In fact, hate speech poses a number of critical questions for secular and liberal states founded on the principles of the rule of law and equal rights of citizenship. Professor Erik Bleich in The Freedom to be Racist provides an excellent and nuanced overview of hate speech legislation across Europe. He concludes that no reasonable person could in light of the available empirical evidence argue that states that adopt laws against incitement have, in so doing, sacrificed core liberal principles and values. So that often, what the more absolutist defenders of freedom of expression are doing, when they charge that hate speech legislation is undemocratic and illiberal, is erecting a strawman.
Tracing the (non) application of Paragraph 135 (a)
In Norway, the so-called racism paragraph 135 (a) of the penal code has been amended on a number of occasions. In its current formulation, it offers formal and legal protection against racist and other forms of hate speech, whether intentional or unintentional, and the public use of racist symbols. As defined in paragraph 135 (a), racist and other forms of hate speech becomes liable to criminal prosecution if it is directed against people from a minority background by virtue of their skin colour, ethnic or national background, sexual orientation or their religion or belief. Yet, the legislation has barely been used by Norwegian police and prosecutors, and has, by and large, been utilised to deal with only the most extreme and inflammatory statements. A conceptual limitation (since amended) to its application stipulated that statements had to be sufficiently public in order to be liable to criminal prosecution. One example of what that meant in practice was provided in 2000 in what came to be known as the Beheim Karlsen case. On April 23 1998, Arve Beheim Karlsen, a 17-year-old adopted youth of Indian origin who had suffered years of racist taunts and physical violence, drowned after leaping into the Sogndal river, in Naustdal, western Norway, in a desperate attempt to escape a group of local racists who were pursuing him. During the court case, witnesses testified that Beheim Karlsen had, in the years prior to his death, endured a systematic campaign of hate from local youths who, in front of his friends, called him ‘the f*****g negro’, ‘n****r’and ‘the cursed blackie’. Two young Norwegian men, eventually found guilty of having chased Beheim Karlsen into the river and for previously having subjected him to threatening and violent behaviour, were jailed for one and three years respectively. Yet the defendants’ attorneys (including the current Norwegian Minister of Justice Mr Knut Storberget of the Labour Party (AP)) convinced the courts that the racist language and treatment of the young man were not sufficiently public for a successful conviction under section 135 (a) of the penal code. (For further information see ‘Racist murder throws spotlight on racism and bullying in schools’ and ‘No murder prosecution following killing of Indian student’).
The last time a successful prosecution for offences under the racism paragraph was brought was in 2007. The Supreme Court eventually ruled (in a case dating back to 2003) that Tore Tvedt of the neo-Nazi Vigrid organization was guilty of hate speech (and other offences) for comments he made during an interview with the tabloid newspaper Verdens Gang (VG) in which he declared that Jews were ‘parasites which had to be cleansed’.
The Rushdie Affair and the Freedom of Expression Commission
But the prosecution against Tvedt ran against the general trend. Despite the fact that in between 2001 and 2011 there was an intensification and proliferation of Islamophobic speech in Norway, the stark truth is that in Norway today few people would bother to report speech of a racist and discriminatory nature to the police. And this is because the public know full well that in contemporary Norway, freedom of speech will usually trump all other considerations.
In order to trace the lineage of this historical shift, one has to go back to the Rushdie Affair and the period from 1988 to 1993. For everything that followed needs to be reappraised in light of the mobilisation in support of Salman Rushdie and the Satanic Verses by Norwegian publishers, media editors, authors and intellectuals in a country whose population was and remains, one of the most secular and religiously indifferent in the world. In particular, the historical shift occurred because of the trauma caused by the attempted assassination of the Norwegian publisher William Nygaard in Oslo in 2003. Director of the Aschehoug publishing house responsible for bringing out the Norwegian translation of Satanic Verses, William Nygaard was a central figure in the European mobilisation in support of Rushdie. It was his attempted assassination (still unsolved) which in 1996, led the Minister of Culture Mrs Åse Kleveland (presently the secretary-general of the Norwegian Humanist Association) to appoint a Freedom of Expression Commission. Led by the distinguished Professor of History at the University of Oslo and later Nobel Peace Prize Chairman Mr Francis Sejersted, the report finally published by the Commission was to prove pivotal in reshaping elite attitudes towards legislation against incitement in Norway.
The Commission was convened within the framework of the longstanding and cross-party political tradition of Norwegian governmental commissions and had only two members (out of a total of sixteen) from an identifiably minority background (one Saami and one a Norwegian Muslim with an Afghan-Pakistani background). In this way the hegemonic power of definition was left to government-linked white male university professors, as demonstrated in the Commission’s 400-page report which was delivered in 1999. It invokes Habermasian ideals, as well as the European Court of Human Rights (ECtHR) in Strasbourg in its defence of a conception of freedom of speech which leans toward the absolutist. Pace the unranked nature of freedom of speech in relation to other human rights in international human rights conventions and treaties from UNDHR to EHRD to ICCPR , the Commission argued that ‘freedom of expression in its essence is not a concern which may give way to other concerns’. Thus we learn in the Commission’s final report that freedom of expression is constitutive of society’ and those who infringe it, are involved, therefore, in threatening ‘the very order of society’ (all citations from p. 136). Furthermore, those who under given circumstances call for ‘limitations to freedom of speech’are guilty of expressing nothing less than ‘[an] almost irrational fear’ (p. 77). Having thus dispensed with the opposition (and there was internal opposition, represented by the Norwegian documentary filmmaker Maria Fuglewaag-Warsinski, who argued on the basis of her extensive knowledge of the Balkan Wars of the mid-1990s), the Commission went on – to express a breezily optimistic confidence in the decency and civility of Norwegians in the public sphere. ‘The public sphere’, the Commission concluded, (p. 78) ‘is by and large populated by mature, adult and decent human beings’. While stopping short of recommending the abolition of paragraph 135 (a) in its entirety, the Commssion went on to recommend that in order to provide better protection for the ‘critique of religion’, protection against racist and/or discriminatory speech under paragraph 135 (a) based on religious faith should be abolished.
While this recommendation was never adopted in Parliament, it was the precursor of developments to come. For without exception, racist, Islamophobic and anti-immigration movements, from the Norwegian Defence League (NDL) to Stop the Islamization of Norway (SIAN) to the Popular Movement Against Immigration (FMI) all claim on their websites to be against ‘all forms of racism and xenophobia’ and to be engaged instead in a ‘critique of [Islamic] faith’, as well as legitimate attempts to prevent the ‘Islamization of Norway’ (by its 3 per cent Norwegian Muslims, half of whom are estimated not to be practising Muslims) and the ‘implementation of sharia law in Norway.’ This development has been insightfully described by Alana Lentin and Gavan Titley in The Crisis of Multicultarism: Racism in a Neo-Liberal Age as the ‘laundering of racism’ through the invocation of liberal nationalism in a neo-liberal era.
Such developments owe much to the fact that the Freedom of Expression Commission’s report was hailed, by newspaper editors and academics from Right and Left, as a masterpiece when it was published in 1999. And from here it follows that the report’s central tenets have never been subject to much criticism or even debate in Norway.
It is difficult not to see the traces of the Norwegian Freedom of Expression Commission’s more absolutist conceptions of freedom of expression at work in the 2002 Supreme Court’s acquittal of neo-Nazi Boot Boys’ leader Terje Sjølie. Sjølie was charged in connection with a speech made to thirty-eight neo-Nazis during a march organised by the Boot Boys in 2000 in the small town of Askim. The local authority had refused Sjølie (later convicted for his part in a bank robbery) permission to march and, in the illegal demonstration that subsequently took place, Sjølie made a speech in which he asserted that ‘every day immigrants rob, rape and kill Norwegians. Every day our country and our people are plundered and destroyed by the Jews, who suck our country dry of riches, and replace it with immoral and un-Norwegian thoughts.’ The speech was rounded off by repeated chants of ‘Sieg Heil!’ (Read an IRR News story: ‘Boot Boys leader acquitted on incitement charge’.) Yet at the Supreme Court, a majority led by the Supreme Court Judge Ingse Stabel argued that in this case freedom of speech overrode concerns over racist and discriminatory speech. Quite implausibly, the Supreme Court majority also contended that even if the speech did imply ‘a general endorsement of National Socialist ideology’, it did not imply the endorsement of ‘systematic acts of violence against Jews or other groups’. The verdict in the Sjølie case was roundly critisised by the European Commission Against Racism and Intolerance (ECRI), as well as the ICERD Commission which in 2005 ruled the verdict a violation of Articles 4 and 6 of the ICERD Convention. As for the contention that Sjølie and his fellow Boot Boys were engaged merely in ‘fighting words’ and not ‘fighting actions’ it is belied by the fact that among the audience at Askim that day was 21-year-old Ole Nicolai Kvisler, who less than six months later, was the ring leader of a group of three Boot Boys members who stabbed to death Benjamin Hermansen, a 15-year-old boy of mixed African-Norwegian descent at Holmlia, Oslo. Unlike his fellow murderers, Kvisler has never expressed any remorse. (Read IRR News stories: ‘The racist killing of Benjamin Hermansen’ and ‘Neo-Nazi murderers of Benjamin Hermansen jailed’.)
At the time of the trial of Terje Sjølie, the prosecuting state attorney Tor Aksel Busch warned that an acquittal of the Boot Boys’ leader would set a legal precedent which would have serious implications for minorities, in terms of their right to protection from racist or discriminatory speech. It seems, in hindsight, that the facts bear out Busch’s warning. Nevertheless, Norwegian authorities have argued, in successive reports to ECRI, that alterations made in 2004 to Article 100 of the Norwegian Constitution, as well as the amendments to §135 (a) of the General Civil Penal Code enacted in 2003 and 2005, mean that statements similar to those for which Sjølie was acquitted in 2002 would now be found in breach of Norwegian legislation. The Norwegian authorities furthermore contended that these amendments had the practical effects of signalling that racist expressions made in various contexts could be considered public statements to a greater extent than before (ECRI Country Report on Norway, 2009, page 12 and 13).
But the proof of the pudding, in Norway as elsewhere, is in the eating. And if the pudding is anything to go by, Norwegian authorities seem to be engaged in feeding misleading facts to ECRI about the status quo regarding racist and discriminatory speech and legal measures to counter it in Norway.
In the aftermath of Breivik’s terror attacks in Olso and Utøya on 22 July, (read an IRR European Race Audit Briefing Paper ‘Breivik, the conspiracy theory and the Oslo massacre’), Prime Minister Jens Stoltenberg , whose Labour Party youth organisation was the main target of the attacks, called for greater openness and democracy in Norway. Mainstream political parties with the exception of the populist right-wing Progress Party (Breivik was a member of it from 2002 to 2007), have promised to mobilise against anti-Muslim agitation in Norway in the coming years. Even so, the ‘greater openness and more democracy’ promised by the Norwegian government does not appear to include either a transparent and political enquiry into the serious shortcomings of the Police Intelligence Services (PST) in monitoring far-right individuals and groups in the years leading up to 22/7, nor to mechanisms that would allow parliamentary (rather than government) oversight of the workings of the 22/7 Commission. The main ideological inspiration for Norway’s mass murderer, the Islamophobic blogger ‘Fjordman’ (aka Peder Are Nøstvold Jensen, a 36-year old former MA graduate from the University of Oslo) has been reported to police with reference to § 135 (a). Yet Jensen continues to post blogs on Islamophobic websites in Europe, and his repeated calls for right-wing violence against Muslims in Norway have been clear enough for a long time. In a country which prides itself in setting standards and making recommendations to peoples and states all over the world, the paragraph which could be used to prosecute him, still seems to remain a dead letter. That fact also tell us much about the manner in which Norway’s liberal political, intellectual and legal elites have suceeded in making racism and discrimination seem legitimate – all in the name of a sacrosanct version of freedom of expression that has been propagated since 2001.
Read an IRR News story: ‘ Other victims of the Oslo massacre’
Read an IRR European Race Audit Briefing Paper ‘Breivik, the conspiracy theory and the Oslo massacre’