New Times

With a nod to the 1979 song Novo vrijeme by the band Buldožer, about new times that look very much like the old ones.

“A former MP, who was even speaker of the National Assembly, might have known that we are no longer in the eighties, when insulting those in power was allowed.” This is how the editors of the Maribor outlet e-Maribor commented on the fine imposed on Dr. Pavel Gantar for upsetting the director general of the police. The stern lecture to Dr. Gantar that the times when you could mock the regime with impunity are long behind us is not only comic; it is also inaccurate. The former Yugoslav regime was never as tolerant, liberal and forbearing towards social criticism, dissidents and civil society as the editors of the Maribor digital outlet imagine. People who in those days had enough responsibility, commitment to their democratic principles and courage to resist the pressure of centralized ideological uniformity, and thus paved the way for democracy and independence, could tell them more about it. If the subject interests them, they can ask those directly involved, among them, as it happens, Dr. Gantar himself. That times were not as rosy as the worthy Maribor Yugo-apologists imagine is proved, after all, by the arrest and military trial of the Ljubljana Four. That everything turned out the way it did is thanks to civil society and the people who exposed themselves most in resisting the ideological repression of the army and Belgrade, among whom, well I never, Dr. Gantar again played a visible role. And of course the mass protests on Roška Street. Which, incidentally, were not registered.

The criticism of Dr. Gantar for not understanding that times have changed helps us understand how some people in Slovenia understand the difference between the previous regime and democracy. It is not a comparison based on respect for democratic standards, freedom of expression, respect for human rights and political freedoms, but simply a measuring of the muscle and ruthlessness of past and present rulers towards criticism and disobedience. In the logic of mocking Dr. Gantar, the previous regime was not bad because it suppressed and persecuted social criticism, but quite the opposite: because, in their view, it did not do so firmly enough. Because it was weak and indecisive and allowed various Dr. Gantars and the like to badmouth the authorities. That, in their view, is no longer the case. These are different times now, Dr. Gantar; now it’s our democracy. Taken to its ultimate conclusion, this bizarre logic could even reproach the Yugoslav regime for giving in to the pressure of civil society and critics like Dr. Gantar and releasing the Four from prison.

But let us leave the brilliance of the Maribor media eccentrics aside for a moment. The story of Dr. Gantar’s punishment—and he is not the only one to have met such a fate recently—sets a new milestone in the (mis)understanding of freedom of expression in our country. This question has received a great deal of attention, debate and argument in recent years, mainly because of the unstoppable spread of hate speech in the Slovenian public space. On one side were many who, worried by the slide into hateful discourse, called on prosecutors for help; on the other, those who experienced any reaction to inappropriate and intolerant statements as an assault on liberty and an attempt to silence “dissenters.” Let me say first that I too have for many years consistently and publicly advocated a sharper and more consistent response to hateful and dangerous speech, which in Slovenia really has spilled over all the limits of the decent and acceptable. But I have often wondered whether, in all the cases in which many demanded the intervention of the prosecution, the line had been crossed of what, under the law and the international legal standards governing freedom of expression, can be prohibited or punished. Years ago, when the Holocaust was presented in Slovenia as a “Jewish” conspiracy, I wrote that the response of society and the state to hate speech cannot and must not be reduced merely to the question of criminal prosecution. Repressive interference with freedom of expression must be limited to a narrow circle of the most serious cases involving direct incitement to violence. Without freedom of expression there is no democracy, so we must be extremely careful with restrictions, even when we are guided by the best intentions. Overly broad and arbitrary use of criminal sanctions also carries the danger of abuse and suppression of freedom of expression. It is simply too important for the normal functioning of democracy. It is one of the fundamental political freedoms which, through the right of individuals to express their opinions and through the free and independent functioning of the media and civil society, makes democratic oversight of the executive possible. That is why the European Court of Human Rights protects not only opinions that are agreeable and unproblematic but also statements that “offend, shock or disturb.” Then, as today, I was convinced that society’s response to hateful and dangerous speech cannot be based primarily on repressive interference with freedom of expression. Then, as today, I was convinced that the most effective defense of democracy and means of fighting hate speech is a clear and firm social response.

Returning to the fine imposed on Dr. Gantar, the first question to ask is whether his tweet can even be characterized as language that offends, disturbs or shocks. And even if the answer is yes, there comes the even more important question of whether such a statement, even if someone in public office feels hurt by it, may be restricted at all, let alone prosecuted, on the basis of the case law of the European Court of Human Rights. Evidently a court will decide on this, so I do not intend to comment further. In any case, I stand by my position of principle on the most appropriate response—a social, not a repressive one—to a conditionally problematic use of freedom of expression. If any of the moral authorities in office recognizes in Dr. Gantar’s tweets inappropriate and offensive criticism of the police’s work, they can respond and condemn the statement. There is absolutely nothing wrong with that. The critical public will judge whether it agrees with such an interpretation and response. But before anyone starts lumping Dr. Gantar’s criticism of the police—whether justified or inappropriate—together with some of the statements that have prompted debates about hate speech in recent years, two things must be stressed. First, the case law of the European Court of Human Rights does not give people in public or political office more protection against public criticism than private individuals, but quite the opposite. The Kamnik District Court recently put this principle in a judgment as follows: “It is precisely criticism of the authorities of the day (politicians, public officials, parliamentary and other political parties, the government and the opposition, holders of power and public authority) that enjoys the highest level of legal protection and thus the greatest freedom.” It is also important to know that the power relationship between the one who expresses hatred and those who are hated is key to defining and recognizing hate speech. Intolerance towards social minorities is one thing; criticism of the authorities, however offensive, disturbing and shocking, is another. Understanding, taking into account and respecting these differences is key to respecting freedom of expression and to the normal functioning of pluralist democracy. In this lies the qualitative difference between the previous regime and the new times that we wanted and fought for in the 1980s, including through the struggle for an independent and democratic state. The Maribor media guardsmen and their sympathizers evidently do not understand this, or do not want to.