God “does not and cannot bless sin” - Hate Speech Laws: Quo Vadis?
On the 15th March 2021, the Vatican issued a statement (approved by the Pope) which notes that the Catholic church would not bless same-sex unions, referring to them as “sinful” and underlining that God “does not and cannot bless sin.” This statement gives food for thought (for a lot of different things) but also for the issue of hate speech regulation. In this ambit, this short piece will consider the issue of such regulation as well as the position of the European Court of Human Rights (ECtHR) to speech against the LGBT community.
Pros and Cons of Regulating ‘Hate Speech’
The freedom of expression is ‘the great bulwark of liberty’ and a ‘cornerstone upon which the very existence of a democratic society rests.’ However, it has been argued that speech can legitimately be restricted in order to protect vulnerable groups from harm. Theorists such as Matsuda argue that words which malignantly target characteristics such as race and sexuality can become ‘weapons to ambush, terrorize, wound, humiliate and degrade.’ On the other hand, Heinze argues that restricting viewpoints has ‘overwhelmingly been one of repression of minority and dissenting voices.’ Weinstein argues that by allowing hate speech bans and the curtailment of viewpoints means that different types of speech ‘become free to the extent compatible with the state’s view’ and thus vulnerable to abuse. Further, overly broad hate speech laws can ‘perpetuate and entrench the values of the dominant in-groups and further marginalize out-groups.’ Moreover, there are ‘few, if any, shared understandings as to what amounts to intolerable speech’ in the communities we live in, which are characterized by cultural, social and political diversity.
European Court of Human Rights: What about Freedom of Expression?
In the 1976 case of Handyside v The United Kingdom, the European Court of Human Rights highlighted that freedom of expression constitutes one of the ‘basic conditions for [a democratic society’s] progress,’ encapsulating ideas that may even ‘offend, shock or disturb.’ However, since then, we have a plethora of examples whereby the Court has allowed for the restriction of speech which does not necessarily incite violence or hatred but is merely insulting.
In the case of Vejdeland and Others v Sweden (2012), the applicants were convicted for distributing leaflets with statements such as:
‘Your anti-Swedish teachers know very well that homosexuality has a morally destructive effect on the substance of society and will willingly try to put it forward as something normal and good.’
They subsequently complained to the ECtHR for a violation of their right to freedom of expression under the European Convention on Human Rights. The Court found, inter alia, 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 the later case of Lilliendahl v Iceland (2020), the applicant wrote comments below an online news article referring to the strengthening of education and counselling in schools for LGBT persons as ‘sexual deviation.’ He was convicted for this speech and subsequently complained at the ECtHR for a violation of his Article 10 right to freedom of expression. Once again, the Court found in favour of the State Party, noting that ‘the Court sees no reason to disagree with the Supreme Court’s assessment that the applicant’s comments were ‘serious, severely hurtful and prejudicial.’ (para.38) Furthermore, the Court underlined that, despite the fact that the applicant was a ‘member of the general public not expressing himself from a prominent platform likely to reach a wide audience,’ and referred to the ‘severity of the comments.’ (para.39)
Taking into account the above cases and applying the (low) thresholds of permissible speech found therein, it could well be argued the Vatican’s statements are, to say the least, insulting to homosexual persons who are described as sinners therein. Further, the Court underlined that notwithstanding Lilliendahl’s status as merely a member of the public and not someone else, more important and impactful (like the Pope let’s say), his conviction was still legitimate and there was no violation of Article 10.
So, what does this mean? That the ECtHR would (if it had jurisdiction over the Holy See) find the Vatican’s statement to constitute hate speech? Very probably not. I would foresee it utilising its ever-faithful weapon of the margin of appreciation, citing religious freedom and speech in order to avoid any kind of uproar that came with Lautsi v Italy (2011). This case was brought by Lautsi and her children. They claimed that their freedom of religion was violated as a result of the of the crucifix on their classroom walls. Emanating from the reasoning in Dahlab v Switzerland (2001) which found that a State could prohibit primary school teachers from wearing the Islamic headscarf, the Chamber held that the crucifixes on the walls of public schools were ‘impossible not to notice’ and were ‘necessarily perceived as an integral part of the school environment and could therefore be considered powerful external symbols.’ The Chamber decision in Lautsi and Others v Italy was met with an ‘uproar’ in Italy and caused ‘shockwaves throughout Europe.’ The Grand Chamber reversed that decision, finding that, unlike Dahlab, which the Chamber had relied on, the crucifix was a ‘passive external symbol.’
With the Vatican as the ‘speaker’ and the bad politics that came with Lautsi at Chamber level, I believe that the Court would give more weight (probably weight that was not granted to more ‘regular’ speakers’) to the freedoms of expression and religion than it has done in other hate speech case law.
I, as an individual, do not adhere to the Vatican’s statement. I think it is archaic, intolerant and prejudicial (to say the very least). At the same time, however, I believe that for a liberal democracy to exist, where all members of society are equal, freedom of expression should prevail, and that its restriction should ‘meet a strict test of justification.’ As noted by General Comment 34 of the United Nation’s Human Rights Committee, the freedom of expression embraces ‘even expression that may be regarded as deeply offensive’ (para.11). I also believe that hate speech regulation is inconsistent and incoherent. Is there really ever a chance that the Vatican’s statement would be deemed by any court of law or international committee or institution to constitute hate speech? Taking the Lautsi experience into account, I highly doubt it. Does that mean that hate speech regulation is reserved for the likes of Lilliendahl and Vejedland? Moreover, have we actually thought out the impact of hate speech regulation? Does such regulation actually bring about positive change? In light of the above, where are we going with hate speech regulation? Maybe it is time to really start thinking about this and other plausible solutions to prejudice and hate.
Natalie Alkiviadou is a Senior Research Fellow at Justitia and the Future of Free Speech Project.