Extremism in the ECtHR

The ECtHR considered several times whether extremists could be excluded from civil service positions in Germany. But in an earlier version of these cases, the Court oddly refused to engage in any real analysis about how to reconcile commitments to the constitutional order alongside the free speech rights of extremists. In Glasenapp v. Germany (1986) and Kosiek v. Germany (1986), the ECtHR considered whether a secondary-school teacher and a university-level physicist, respectively, could be denied employment because of their involvement in and support for extremist political parties. Germany had required both candidates to pledge to “uphold the free democratic constitutional system within the meaning of the Basic Law” as a condition of employment (Glasenapp v. Germany, 9228/80 at para. 52; Kosiek v. Germany, 9704/82 at para. 38). Because contracting states had not created an explicit right to public service under the European Convention on Human Rights, the ECtHR simply viewed this loyalty oath as a necessary personal qualification for the position. Accordingly, in “refusing Mrs. Glasenapp such access, the Land authority took account of her opinions and attitude merely in order to satisfy itself as to whether she possessed one of the necessary personal qualifications for the post in question” (Glasenapp at para. 53). The ECtHR reached a similar conclusion in Kosiek (at para. 38). The ECtHR simply ignored the fact the Germany had committed itself to Article 10 and therefore did not wrestle with the more difficult question of how to reconcile Germany’s democratic loyalty requirement alongside its free speech commitments. Perhaps the ECtHR felt comfortable ignoring these free speech issues because of common understandings about the limited scope of free speech afforded by Article 30 of the Universal Declaration of Human Rights of 1948 and, more importantly, Article 17 of the European Convention, which held that “nothing in this Convention may be interpreted as implying for any State, group, or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention” (Schauer Reference Schauer and Leiser1981).

But these legal instruments alone do not then explain why, after the fall of the Berlin Wall, the ECtHR began to take free speech concerns more seriously. In Vogt v. Germany (17851/91, 1995), a member of the German Communist Party and secondary-school teacher again challenged her ineligibility as a violation of Article 10. Unlike the previous cases, here the ECtHR was serious about recognizing the claimant’s free speech rights. But the bare majority that ultimately ruled in Ms. Vogt’s favor avoided entirely the types of arguments that dominated in defamation cases involving members of minor parties and the special role that free speech rights played in preserving robust democratic debate. Instead, the majority that supported Ms. Vogt had to concede that “a democratic State is entitled to require civil servants to be loyal to the constitutional principles on which it is founded” (Id. at para. 59). There was simply no way around “Germany’s experience under the Weimar Republic and during the bitter period that followed the collapse of that regime up to the adoption of the Basic Law in 1949. Germany wished to avoid a repetition of those experiences by founding its new State on the idea that it should be a ‘democracy capable of defending itself’” (Id.). Germany was therefore entitled to impose certain obligations on the civil service for self-preservation. In light of those concerns, the bare majority was left arguing that in this particular instance Ms. Vogt’s appointment as a secondary-school language teacher “did not intrinsically involve any security risks” (Id. at para. 60).Footnote ⁹ Indeed, in subsequent cases the ECtHR proved less forgiving of extremism when it manifested in the military (Erdel v. Germany, 30067/04). The dissenters in these cases did not disagree with the major premise, namely, that Germany’s particular history justified restricting free speech rights to preserve democracy (Id. at para. 3 [Bernhardt, Gölcüklü, Matscher, Loizou, Mifsud Bonnici, Gotchev, Jungwiert, and Kuris, JJ., dissenting]).

Separatist movements also triggered concerns about the paradox of tolerance. The ECtHR had previously considered the free speech ramifications that arose out of banned parties (Aydin v. Germany, 16637/07), but unlike the case in which the speech restrictions had been justified to protect public order and safety, in these newer cases, the ECtHR was more willing to argue that speech restrictions were necessary to preserve constitutional democracy. Of these newer cases, perhaps Herri Batasuna et Batasuna v. Spain (25803/04 and 25817/04, 2009) is perhaps the most illuminating. The Spanish government had banned separatist parties from electoral competition because of links to and support for Euskadi Ta Askatasuna (ETA), a leftist separatist organization that sought autonomy or independence for Basques from Spain and France. These political parties sued, alleging, among other things, violations of Articles 10 and 11. Although the ECtHR recognized the importance of free speech in the democratic process generally and the burdens that that disqualification imposed on these parties specifically (at para. 76), it nonetheless sided with the Spanish government:

Faced with a paradox of tolerance, the ECtHR thought the free speech and associational restrictions imposed on these members were appropriate and proportional in light of the threats they posed. In the other cases, the ECtHR again resolved the paradox of tolerance by restricting speech to realize “the principle of the rule of law and the general objectives of the Convention, namely … the protection of the democratic order.”Footnote ¹⁰

Similar arguments were also used in cases involving hate speech. In Norwood v. United Kingdom (23131/03, 2004), the ECtHR demonstrated another common approach to extremism: presenting arguments that suggested that extremism threatened other core ideas central to the democratic project. In that case, a supporter of the “extreme right wing” British National Party (BNP) was convicted of an aggravated offense for displaying “in the window of his first-floor flat a large poster … , supplied by the BNP, with a photograph of the Twin Towers in flame, the words ‘Islam out of Britain—Protect the British People’ and a symbol of a crescent and star in a prohibition sign.” The ECtHR ultimately deemed Norwood’s case inadmissible but not before concluding that “the words and images on the poster amounted to a public expression of attack on all Muslims in the United Kingdom. Such a general, vehement attack against a religious group, linking the group as a whole with a grave act of terrorism, is incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non-discrimination” (Id.).Footnote ¹¹

In Féret v. Belgium (15615/07, 2009) the ECtHR made more explicit the relationship between core ideas and the democratic project more generally. In that case, a Front National candidate, who oversaw the party’s publications, ran afoul of Belgium’s hate speech statute after he distributed anti-immigrant leaflets and posters allegedly to incite hatred. Féret challenged the statute as a violation of his rights under Article 10. The European Court of Human Rights upheld Belgium’s conviction, using the opinion to address the paradox of tolerance directly: “Tolerance and respect for the equal dignity of all human beings constitute the foundation of a democratic and pluralist society. It follows that in principle it may be deemed necessary, in democratic societies, to sanction or even prevent all forms of expression which propagate, encourage, promote or justify hatred based on intolerance” (at para. 73). In short, it was appropriate to restrict free speech in such circumstances because to hold otherwise would risk “danger for social peace and political stability in democratic states” (at para. 73).

Also telling was the ECtHR’s support for a national court argument upholding punishment for antihomosexual hate speech. In Vejdeland v. Sweden (1813/07, 2012), the ECtHR endorsed the Swedish Supreme Court’s argument that alongside citizens’ right to free expression, they also incurred some obligations, “one such obligation being, as far as possible, to avoid statements that are unwarrantably offensive to others, constituting an assault on their rights” (at para. 57). It was precisely this argument that so often did not hold sway in more conventional defamation cases considered by the ECtHR.

Extremism in the Supreme Court of Canada

The Supreme Court of Canada largely followed the ECtHR’s strategy of limiting free speech rights for racist speech because such speech conflicted with core democratic values. In cases like R. v. Keegstra ([1990] 3 S.C.R. 697), a majority of the Canadian Court upheld charges against an Alberta high school teacher who communicated anti-Semitic statements to his students. While the majority acknowledged the burden that the impugned law imposed on speech, it nonetheless argued that free speech rights, like the one at issue in Keegstra, could be limited so as to render them consistent with “principles fundamental in a free and democratic society.”Footnote ¹² And even though the impugned law burdened expression, such burdens were tolerable insofar as they fostered “harmonious social relations in a community dedicated to equality and multiculturalism.” Specifically, the Canadian Court noted that hate speech, like that at issue in Keegstra, tended to undermine equality and the “sense of human dignity and belonging to the community at large,” while encouraging discrimination and violence (Stone Reference Stone, Albert and Cameron2017, 249).

But a group of three justices dissented precisely because they did not see the paradox of tolerance appropriately at issue here. They could not understand how Keegstra’s statements threatened to “subvert[ ] democracy or our basic freedoms in the way in which violence or threats of violence may” ([1990] 3 S.C.R. 697). Short of explicit threats, these dissenters challenged the majority in terms that could easily be mistaken for Meiklejohn’s own: “If the guarantee of free expression is to be meaningful, it must protect expression which challenges even the very basic conceptions about our society. A true commitment to freedom of expression demands nothing less” ([1990] 3 S.C.R. 697 [La Forest, Sopinka, McLachlin, JJ., dissenting]). But the dissenters in Keegstra would carry the day only once, namely, in R. v. Zundel ([1992] 2 S.C.R. 731), a case involving the publication of leaflets that denied the Holocaust. The contrasting arguments that these dissenters used here, like their European counterparts in Vogt, are significant because they demonstrate that legal instruments alone do not preclude judicial support for extremism. Rather, these dissenters illustrate the few exceptions that prove the rule.

Canada’s high court has remained committed to militant democracy or core values arguments the majority first developed in Keegstra.Footnote ¹³ Shortly after that decision, the Court refused to provide protection to leaders of Canada’s white-supremacist West Guard Party, when they sought free speech protection to communicate their supremacist ideas via telephone (Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892). Similarly, in R. v. Andrews, the Canadian Court refused to set aside criminal charges against two leaders of the Nationalist Party of Canada who were in charge of publishing the party’s bimonthly magazine that regularly included hate pieces targeting Jewish and Black people. The Court has used these decisions to remind “Canadians of our fundamental commitment to equality of opportunity and the eradication of racial and religious intolerance.”

Extremism in the High Court of Australia

The High Court of Australia has not encountered any free expression cases that contain elements of extremism, at least not in the way coded here. That said, the paucity of such cases may be attributed to the doctrinal test created in Lange and subsequently modified in Coleman v. Power ([2004] HCA 39). This test requires judges to determine, among other things, whether a law has as its object “the maintenance of the constitutionally prescribed system of representative and responsible government.” Accordingly, it would seem that extremists who seek to undermine Australia’s constitutional system in the ways considered in this article face a significant hurdle. That claim is perhaps bolstered by the High Court’s treatment of an antiwar protester, Man Haron Monis, who sent letters to the families of deceased soldiers expressing his sympathies but also asserting that those soldiers had killed innocent civilians and compared some of them to Hitler (Monis v. The Queen, [2013] HCA 4).Footnote ¹⁴ Monis was arrested for violating a provision of the criminal code that established an offense for the use of the mail “in a way … that reasonable persons would regard as being, in all the circumstances … offensive.” While neither Monis nor his speech was considered extreme as defined here, this case perhaps comes closest to the type of extremism that the High Court has considered. The High Court divided evenly on the question of whether the offense in question could be construed as maintaining “the constitutionally prescribed system of representative and responsible government.” The three justices, whose opinion ultimately prevailed, were troubled with the “intrusive” nature of the communications insofar as these letters were delivered to relatively private areas, namely, homes and places of work. By contrast, the three dissenters viewed the offense as too far removed from the purpose of maintaining “the constitutionally prescribed system of representative and responsible government.” That said, it would not be difficult to imagine how extremism would run afoul of precisely this provision, suggesting that extremists would fare poorly in Australia’s courts.

Extremism in the Constitutional Court of South Africa

South Africa’s Constitutional Court has had relatively few opportunities to consider extremism. But, in those few instances in which it has, the Court has sided with extremists. Perhaps the most unambiguous example arose in Islamic Unity Convention v. Independent Broadcasting Authority (2002), wherein the Court was asked to consider whether Section 2(a) of the Code of Conduct of the Independent Broadcasting Authority, which prohibited broadcasting of material “likely to prejudice relations between sections of the population,” violated the free expression guarantees of Section 16 of the Constitution. The case arose when the South African Jewish Board of Deputies complained about a radio broadcast aired on a community radio station owned by the Islamic Unity Convention (IUC). The IUC hosted the historian and author Dr. Yaqub Zaki on a program titled “Zionism and Israel: An In-Depth Analysis.” Dr. Zaki denied aspects of the Holocaust and questioned the legitimacy of Israel. Deputy Chief Justice Pius Langa believed this case pitted two constitutional values against one another. While free expression was important, it was not absolute. Speech had the potential to interfere with the right to dignity and undermine state interests in national unity and reconciliation (Id. at para. 30 [Langa, DCJ, majority]). But the balance between the two—and whether the burdens on individual expression were too great—had to be resolved under the limitations clause. On that analysis, however, Langa was troubled by the vagueness of Section 2(a) and ultimately declared the act unconstitutional on those grounds (Id. at para. 51 [Langa, DCJ, majority]). That said, other members of the Court have been willing to limit free speech when such speech interfered with the dignity of other citizens. As the Court noted, “With us the right to freedom of expression cannot be said automatically to trump the right to human dignity. The right to dignity is at least as worthy of protection as the right to freedom of expression. How these two rights are to be balanced, in principle and in any particular set of circumstances, is not a question that can or should be addressed here. What is clear though and must be stated, is that freedom of expression does not enjoy superior status in our law” (Mamabolo at para. 41). In other words, the Court has declared a willingness to reconfigure the balance for speech that runs contrary to core values in South Africa’s democracy.

Extremism in the Supreme Court of India

Of the courts examine here, only the Indian Supreme Court ruled in favor of an extremist claimant asserting an extreme message in the context of electoral politics.Footnote ¹⁵ In Kedar Nath Singh v. Bihar (1962), a member of the communist party was charged with sedition and exciting disaffection in the military under Sections 124A and 505 of the Indian Penal Code, respectively, after he allegedly encouraged rebellion against the Indian state. While Chief Justice B. P. Sinha upheld the constitutionality of Section 124A, he nonetheless required that it be interpreted consistently with Article 19(1)(a) of the Indian Constitution, guaranteeing the freedom of expression. In practice, such a reading would protect “criticism of public measures or comment on Government action, however strongly worded, [as] within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, … have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order” (Id. at para. 38). On this interpretation, the Court dismissed the case against Singh presumably because his statements stopped short of clearly advocating illegal action. But it also remanded a number of other cases involving Mohd. Ishaq Ilmi for an allegedly seditious speech he delivered at the All India Muslim Convention, a respondent Rama for a speech he delivered to the Bolshevik Party in Uttar Pradesh, and Parasnath Tripathi for urging an audience to organize a “volunteer army” to violently resist the government.

But Kedar Nath Singh is an outlier. More often, the Indian Supreme Court has supported government efforts to restrain extremists. In that sense, Ram Singh v. Delhi (1951) provides a better example. In that case, Professors Ram Singh, Bal Raj Khanna, and Ram Nath Kalia were arrested and detained under the Preventive Detention Act, 1950. The three defendants were, respectively, the president, vice president, and secretary of the Delhi State Hindu Mahasabha, a right-wing Hindu nationalist organization. They had previously given speeches that “excited disaffection between Hindus and Muslims,” and as a precaution, the Delhi government prevented them from engaging in further religious agitation. Having recently upheld the constitutionality of preventative detentions in A.K. Gopalan v. Madras (1950), the Indian Supreme Court remained doggedly committed to its position in spite of the obvious burdens that such detentions imposed on speech by construing Article 19(1)(a) “as distinct [from the Constitution’s] fundamental rights” and subject to certain “limitations and conditions” for which “alone they could be taken away or abridged.” The opinion is noteworthy because the Supreme Court simply refused to wrestle with the implications of its decision, instead concluding that any anomalies related to Article 19(1)(a) that result from preventive detention “must now be taken to be settled law, and courts in this country will be serving no useful purpose by discovering supposed conflicts and illogicalities and recommending parties to re-agitate the points thus settled” (Id. at para. 6).

The Indian Supreme Court similarly ruled against Hindu nationalist candidates whose campaign rhetoric threatened Muslims. In Dr. Das Rao Deshmukh v. Kamal Kishore Nanasaheb Kadam (AIR 1996 SC 391), a BJP candidate appealed to voters, requesting their support “to teach a lesson to Muslims”—a statement that was interpreted as threatening and ultimately caused the courts to set aside the candidate’s election victory. Sections 123(3) and 123(3A) of the Representation of People Act, 1951, prohibited “corrupt practices,” including religious appeals in political campaigns that tended to incite communal divisions. The Court upheld the constitutionality of this provision by retreating to an argument that avoided the quandary of the paradox of tolerance and allowed governments to restrict inflammatory communal language to prevent irrational passions from overtaking the electoral process (AIR 1996 SC 391 at para. 14). The Court expressed a similar level of impatience with verbal attacks on Muslims by a pair of Shiv Sena leaders in Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte (AIR 1996 SC 1113). In both of these cases, the Court may have felt particularly inclined to come to the defense of Muslims because of the increasing level of violence they experienced during the 1990s, a period when the BJP for the first time defeated the previously dominant Indian National Congress for control of the Lok Sabha (Varshney Reference Varshney2002).

The tone that the Indian Supreme Court has adopted in these kinds of free speech cases is consistent with its counterparts elsewhere. As the preceding evidence makes clear, the courts examined here have used starkly different arguments in cases involving extremism, at least when compared to their treatment of more conventional defamation cases. In more conventional cases, the courts asserted arguments that justified expansive readings of free speech to protect and promote democratic competition. But, in the face of extremism, judges seemingly reversed these arguments, justifying restrictions on free speech to protect and promote democracy and core values.