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When hate speech begins, free speech ends (or does it?)

An artist's conviction for racism has ignited a debate about whether the state should punish people who spread hateful views in public, or if racism laws are even useful at all

An artist's conviction starts a debate over whether anti-racism legislation actually helps to protect minorities from persecution (Photo: Private Photo)

September 28, 2013

by Peter Stanners

Last week’s conviction of Danish-Iranian artist Firoozeh Bazrafkan for racism, after she claimed on her blog that she was “convinced that Muslim men around the world rape, abuse and kill their daughters”, has led to free speech advocates questioning whether anti-racism laws are fair – or even effective.

Bazrafkan was convicted by the Eastern High Court for violating section 266b of the criminal code – the so-called racism law – and fined 5,000 kroner.

According to the law, it is illegal to “spread messages that threaten, taunt or degrade a group because of their race, skin colour, national or ethnic extraction, belief or sexual orientation”.

The court argued that Bazrafkan in her blog had generalised about Muslims men being criminals, and that because her statement “derided and degraded a group simply based on their faith”, she was guilty.

Bazrafkan argues, however, that her blog post was actually a criticism of Islam and not a racist generalisation of Muslims.

“It’s important to remember that I did not write that ALL Muslim men committed horrible acts and used Islamic codes to justify them, I wrote that Muslim men around the world can do these things because it is allowed according to [Islamic] codes,” she told The Copenhagen Post. “It’s not the same thing.”

She added that her conviction meant the court had limited her freedom of expression – a right that is guaranteed under article 10 of the European Convention of Human Rights.

Conditional free speech
But it’s not as simple as that. While article 10 does indeed protect free speech, it also grants states the right to restrict speech for various reasons, such as public safety or the protection of health and morals.

Even though states can limit free speech, Jacob Mchangama, the director of legal affairs at the liberal think-tank Cepos, said that authorities had no business interfering in the public statements of its citizens.

“It’s very misguided for democracies to place arbitrary limits both on what can be said and who is being protected. Why is it okay to say degrading things about disabled people but not homosexuals? And how do we judge when something is sufficiently degrading? There are problems defining these limitations.”

Mchangama has called for the abolition of section 266b. 

“I think it’s valid if people want to start a debate about tolerance and our need to be more open toward ethnic and sexual groups. But the state needs to be neutral about statements that individuals make.”

Getting rid of section 266b is not simple however. Denmark is a signatory of several international conventions and treaties that obligates it to legislate and enforce against hate speech.

Learning from history
Christoffer Badse, the senior legal adviser at the Danish Institute for Human Rights, argued that these laws have their place given the number of global conflicts that have arisen because of hate between groups.

“Racist language can create an atmosphere of hatred,” Badse said. “We have seen this both in modern society and in places with ethnic conflicts such as Northern Ireland and in the former Yugoslavia. There are historic reasons for these laws.”

He sympathises with Mchangama’s complaint that the law affords some groups criminal protection that others don’t receive, but argues that anyone can use civil courts to sue if they feel they have been discriminated against.

He added that some groups, given the history of discrimination they have suffered, are offered extra criminal protection.

“In the case of hate speech against the disabled, we haven’t seen that it is a big enough issue for it to warrant criminal conviction.”

Anti-Muslim rhetoric
Unlike the disabled, Muslim immigrants have been the focus of intense media scrutiny for decades, particularly since the formation of the anti-immigration party Dansk Folkeparti in the mid-1990s.

Statements critical of Muslim immigrants and their religious background are commonplace in the Danish media. Some more recent examples include MP Marie Krarup (Dansk Folkeparti) calling for Muslim women to discard their headscarves, and MP Inger Støjberg (Venstre) demanding that Danish Muslims accept that Denmark is the land of the Danes and that they can find somewhere else to live if they don’t like it here.

Badse argued that the harsh tone of the immigration debate demonstrates that it is possible to have a debate about Islam and religion without breaking the racism legislation.

“There is a balance between the need to protect vulnerable groups and minorities, and recognising concerns about freedom of speech and expression, which I think the prosecutor in [Bazrafkan’s] case got right,” Badse said. “When people make exaggerated claims and accusations, they can be punished. But it is still possible to discuss all issues of public interest.”

Counterproductive legislation
But Mchangama argued that cases such as Bazrafkan’s demonstrate how the law interferes with the public debate.

He also questions whether laws preventing racist speech actually protect anyone. “After all, everyone is protected from being the victim of crimes, whether they are based on hate or otherwise,” he said.A photo of the artist Firoozeh Bazrafkan that reflects her belief in free expression (Photo: Private Photo)

“I don’t think there is good science showing that if you have hate speech laws in place that they result in less hate crimes,” Mchangama said. “Laws like these have been abused in many different countries as a way to suppress various groups. So we need to be careful and err on the side of liberty.”

The laws may even be counterproductive. Following Bazrafkan’s conviction, the statement that a court deemed illegal was published across the Danish media (including The Copenhagen Post). 

After her conviction, Bazrafkan remained staunch in her opposition to the law. “Section 226b, I’m not done with you,” she wrote on her Facebook profile, suggesting that she will continue to speak out against Islam.

Anti-racism law helps racists
In an opinion piece in Politiken newspaper following Bazrafkan’s conviction, Rune Engelbrecht Larsen, an author who focuses on social issues, argued that the racism law was probably having the opposite of its intended effect.

“Each racism case has already become an opportunity to strengthen and defend hate speech, and after this verdict it’s hard to see how the racism legislation can accomplish anything else,” he wrote.

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