In Denmark, sticks and stones may break your bones, but insulting words will get you fined — to the tune of 5,000 kroner (or about $1,000). Article 266(b) of the Danish penal code, one of the more sweeping of the "hate speech" provisions, criminalizes, among other things, merely insulting groups of people due to their membership in enumerated protected classes.
On April 13, 2012, Lars Hedegaard — a journalist, historian, and president of the Danish Free Press Society – takes the appeal of his conviction under Article 266(b) to the Danish Supreme Court. Readers may recall that back in January of 2011, Hedegaard was tried and acquitted for remarks he made during a 2009 interview concerning sexual abuse within Muslim communities. (In a related story, Danish MP Jesper Langballe "confessed," pleading guilty to violating Article 266(b) for remarks he made in support of Hedegaard.) But, in a strange twist, Hedegaard's acquittal was appealed. He was retried on April 26, 2011, and convicted on May 3.
Thrice put in jeopardy
When Hedegaard appealed his conviction to the Danish Supreme Court, the prosecutor cross-appealed, demanding an increase in the fine. In an interview with the Legal Project, Mr. Hedegaard provided some thoughts on the process:
You could say in our country — as opposed to yours — we have not double but triple jeopardy. If the prosecutor doesn't have his way in lower court, he can appeal to Superior Court. And if he doesn't get it there, he can appeal to the Supreme Court. So, you can certainly be dragged through a legal process lasting years and years in this country. That is the sad state of affairs.
And dragged through an endless process Hedegaard has been. The remarks on which his conviction rests were made over two years ago. Since then, he has endured two trials, and the appeal to the Supreme Court is number three. But the fact that Denmark's high court has chosen to hear Hedegaard's appeal is significant. As with the U.S. Supreme Court, review is at the discretion of the court. Hedegaard remarked:
In my case it is questionable what can be overturned by the Supreme Court. The very fact that they have even allowed my case to go in front of the Supreme Court is very strange and very rare. There is a special committee that grants you the right to appeal to the Supreme Court. You cannot just do it. You need a special commission to do that. The very fact that I have been given this right might indicate that the court has found some technical problems with my conviction.
Further, rumor has it that seven judges are set to participate, a suggestion that the court may consider its upcoming decision to be of precedential value.
Stifling the truth
In a defamation case in the United States, the truth of the statement at issue is a defense to the cause of action. Not so for prosecutions under Article 266(b); truth is not an available defense. In his first two trials, Hedegaard was not allowed to offer any evidence that what he said was actually true (though he was permitted to reference it in his closing remarks), nor will he be allowed to offer such evidence at the Supreme Court. According to Hedegaard:
I should have the right to prove my case. I could have called witnesses. I could have quoted holy books and statements, and I could have referred to facts. But you cannot do that in a court of law in Denmark if you are accused under this infamous Article 266(b). Whether or not what you are saying is true is immaterial. If somebody feels offended or if the prosecutor thinks that somebody has a reason to feel offended, whether or not you speak the truth has no bearing on the case. That is what is surprising about Danish jurisprudence.
Though evidence of the truth of the statements is no defense, that did not stop the prosecutor in the Superior Court trial from raising the issue himself. According to Hedegaard, "Of course I wasn't asked about evidence in favor of my contention that sexual assaults are prevalent or a big problem in Muslim culture." He went on to say, "But the prosecutor took the liberty of referring to the content of what I had said and said you can't even prove that. Which of course was quite true — I couldn't prove it because I wasn't allowed to prove any of it." But beyond Hedegaard, who is being prosecuted for daring to raise the issues, who are the real victims of our not being able to have an open and honest discussion about sexual violence in any community?
The end of privacy?
Article 266(b), by its plain language, requires that for statements to be actionable under the provision, they must be made "publicly or with the intent of public dissemination." Hedegaard maintains that he never intended his remarks, which were not made in public, to be publicly disseminated. The lower court found this issue dispositive in his case and acquitted him. In a statement following his acquittal, Hedegaard said that his "detractors" might claim he was acquitted on a mere technicality. While it is a "technicality" in one sense — Hedegaard's right to say what he did should not rest on such unsure footing as whether a statement was made publicly or privately — that technicality has implications for privacy, too. Hedegaard explains:
I fully agree that I was acquitted on a technicality. There is no question about that. But it goes further than that. If I had been convicted as I eventually was [in the Superior Court] then of course it goes to the problem of privacy. What can you say in your home? What can you say among a small circle of friends or supposed friends if somebody overhears what you are saying? Somebody with a cell phone can take down what you are saying and claim that you said that and you should have known that he was there with a tape recorder with him. You can then be convicted. In that case we will be close to a totalitarian state in which the right of privacy no longer exists.
In my case I knew that I was being taped because the interviewer wanted to publicize something. I had no idea that I was also being filmed. The crucial point, however, is that of course I had not given the interviewer permission to just disseminate my remarks without giving me a chance to review them. I never give interviews without making sure that nothing is disseminated without my consent. This time the interviewer presented himself as a friend and admirer. He turned out not to be. In fact, he later witnessed against me. So I maintain that my remarks were private and not public. Otherwise you would have to condone entrapment in your own home.
The fact that the world's thought police are willing to go after speech even in the private sphere reveals just how intent they are to impose their PC-limitations on the rest of us — truth, public debate on critical issues, and now privacy be damned. If you failed to understand where "hate speech" laws were leading us, let this turn of events underscore the point for you.
To be clear, a merely offensive remark should not be actionable whether made in public or private. Trying to keep all offensive speech within the private sphere is no solution. Indeed, much worthy public debate has the concomitant effect of hurting somebody's feelings. That is part and parcel of healthy, open discussion — and life, frankly — a lesson the "sticks and stones" adage of childhood should have taught us.
But the lesson Hedegaard's prosecution is teaching us is very different. It isn't about the punishment of one man. It is a lesson about the state of freedom of speech in the West today.
Ann Snyder is a fellow at the Legal Project of the Middle East Forum.