United Nations’ War on Free Speech Continues


102412-un-speech-lgGerman federal authorities have responded to earlier criticism by the United Nations’ (UN) Committee on the Elimination of Racial Discrimination (CERD) of lax German hate speech measures with troubling proposals to restrict further freedom of expression.  These developments in a case previously documented by my Legal Project (LP) colleague Sam Nunberg and me demonstrate once again the dangers for freedom that foreign organizations can present, especially in light of international campaigns against “Islamophobia.”

An April 4, 2013, CERD decision had condemned the German refusal to prosecute former German central bank board member Thilo Sarrazin for hate speech against Arabs and Turks.  CERD deemed the discontinuance of Sarrazin’s criminal investigation a violation of German commitments under the International Convention on the Elimination of All Forms of Racial Discrimination.

In a July 1 verbal note to the Geneva-based CERD, the German federal government responded that it “currently is examining German legislation for the punishment of racist statements in light of” CERD’s decision.  This examination, though, would take account of the right to free expression.  Federal authorities had furthermore requested of the relevant Berlin prosecutors “to review every possibility of reconsidering” Sarrazin’s case.  Yet, the prosecutors reported, this review of the case’s “factual and legal aspects” meant that the “cessation of prosecution stands.”

The German government received encouragement in stiffening hate speech laws from the federally-funded nonprofit organization German Institute for Human Rights (Deutsches Institut für Menschenrechte or DIMR).  DIMR’s Hendrik Cremer, in particular, criticized in an interview that an initial charge of Sarrazin under the German Criminal Code’s Section 185 against “Insult” fell through.  Cremer found Sarrazin’s case “not untypical” as “current precedent” did not allow for “collective insults.” Even if statements are racist, “it is regularly assumed that they lack intensity” for an “insulting character” if directed “against a large number of persons.” Cremer criticized that racist speech convictions usually affected “only persons who clearly belonged to a rightwing extremist environment” while “racism from the middle of society” went overlooked.

These German developments make all the more worthy of review the lone dissenting opinion in the CERD judgment from the American representative, Georgetown University professor of law Carlos Manuel Vázquez.  Vázquez determined that Sarrazin’s 2009 interview with a Berlin magazine resulting in prosecution “contains statements that are bigoted and offensive.” CERD precedent, however, “does not require the criminal prosecution of all bigoted and offensive statements.”

As “extensively explained in writing,” both the Berlin prosecutors and a reviewing General Procurator found no basis for insult or “incitement to racial hatred” (German Criminal Code Section 130) charges.  The procurator review, for example, found that “Sarrazin did not characterize members of the Turkish minority as ‘inferior beings’ or ‘bereave [sic] them of their right to life as an equally worthy person.’”

Yet CERD itself recognized that a convention violation demanded that a state “acted arbitrarily or denied justice,” a “deferential standard…particularly appropriate” with respect to speech. Here state authorities “have a far greater mastery” of the pertinent language than CERD members and a “far better position to gauge the likely impact of the statements in the social context prevailing.”  Moreover, the convention allowed for prosecutorial “discretion” in preventing both racist speech and any “‘chilling’ effect” on free speech presented by marginal cases. Issues such as a statement’s public significance, danger to public peace, or ability to give notoriety to otherwise insignificant persons could also factor into prosecutorial decisions.

Vázquez did not see Sarrazin’s main arguments as hate speech.  His “ideas for possible legislation” in the interview involved restricting immigration to skilled workers as well as social spending limitations for immigrants, not racial demagoguery. For Vázquez, “the concept of incitement to legislation is, to my knowledge, a novel one.”

Sarrazin also argued with respect to Turks and Arabs that the “culture or belief system that prevails among a national or ethnic group inhibits their chances of achieving a particular goal.” This is “not outside the scope of reasoned discourse” and “not prohibited by the Convention.”  Additionally, “Sarrazin’s main point” was that the “provision of social welfare leads to habits and ways of life that inhibit economic success and integration.”  “It is true,” Vázquez noted, that “Sarrazin at times employed denigrating and offensive language.” Yet “freedom of expression extends even to statements framed in sharp and caustic terms.”

Vázquez’s views from the Land of Liberty are far more reasoned than those Germans anxious to do the bidding of CERD’s members, most hailing from countries not noted for equality under the law. Stiffer hate speech laws would penalize many controversial political statements and involve the law in all manner of insults unrelated to public peace. It is to be hoped that Germany will ultimately heed Vázquez’s restraint, despite successive attempts to overcome rational German rejections of Sarrazin’s prosecution.  Observers outside of Germany, meanwhile, should take Sarrazin’s tale to heart as an example of foreign institutions infringing domestic freedom.

This article was commissioned by The Legal Project, an activity of the Middle East Forum.

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  • objectivefactsmatter

    “For Vázquez, “the concept of incitement to legislation is, to my knowledge, a novel one.””

    Leftists are saying, “See, I told you it was ‘hate speech.’”

  • Chezwick

    Another brick being laid in the long, ‘yellow, brick road’ to the Orwellian land of Oz, a land where speaking the truth is no defense.

  • nomoretraitors

    Hey, I wonder if Christians can take advantage of these hate speech laws the next time some “artist” depicts Jesus in an offensive manner

    • kafir4life

      No. That doesn’t count.

      • Aizino Smith

        No but if we can recall or otherwise defeat enough politicians at the ballot box and drive their popularity rating down through concerted effort, we might however grudgingly get their ear.

  • defcon 4

    Yet the rabid Jew hatred found in all the holey texts of islam (some of it genocidal) isn’t considered hate speech at all.

    • kafir4life

      No. That’s protected religious speech. It’s not the Bible, which will be considered hate speech. It already is in some places in the US.

  • Race_Dissident

    The mere existence of any hate speech laws is a grave offense against humanity.

  • Aizino Smith

    The Syrian refugees in Sweden being given permanent status is the left’s attempts at getting voters for several years at whatever the cost. They are losing support fast because of their “e know best, scr_w you” style of politics.

    This is a basic politician tactic. Add or swap population until you get a voting majority.

  • JerryJ26

    They’ll regret doing this at some point as there are always unecpected consequences when dealing with the OIC.

  • NAHALKIDES

    No one should take away from Sarrazin’s dodging a bullet this time the mistaken belief that free speech is safe in Germany – in fact the legalistic arguments make plain just how unsafe free speech really is there:

    “Moreover, the convention allowed for prosecutorial “discretion” in
    preventing both racist speech and any “‘chilling’ effect” on free speech
    presented by marginal cases. Issues such as a statement’s public
    significance, danger to public peace, or ability to give notoriety to
    otherwise insignificant persons could also factor into prosecutorial
    decisions.”

    In other words, whether or not your political opinions land you in a German prison cell is within the “discretion” of German prosecutors. How many people will go on risking jail by making “controversial” statements, when there is no way even to gauge one’s compliance with the law? Notice that this is even worse than having clearly-defined boundaries which speech may not cross (not that government has any business setting up any boundaries in the first place): the individual cannot know in advance whether or not his contemplated conduct is legal! Such laws used to be struck down, at least in the U.S. under the “void for vagueness” doctrine. Nowadays I wouldn’t count on it, and Europe has never really been truly free except for the U.K., and that was a long time ago.

  • Consider

    The Holy Mary was a whore.
    Has there been a psychiatric hospital in J’lem in the years 30-33 C.E. there would be no Christianity.
    etc..
    Hope that these thoughts shall not be interpreted as blasphemy.
    Or if they do, there shall be no consequences.
    Since this website is trying to establish itself as a champion of freedom and enlightement I expect a wide support for these views.

    • StevenDobbs

      you amuse me with your childishness

  • Rami Eskola

    Like UK, official Germany has finally joined the backward hellholes of the 3rd world. Congratulations.
    Or maybe i’m insulting 3rd world coultries; I don’t think any of them are waging genocidal war against their own citizen.