We Cannot Rely on Prosecutors Alone

A few weeks ago, two people were murdered outside the gay bar Teplaren in Bratislava. The killer was a young man, the son of a far-right activist. Without insinuating anything about anyone, it cannot be ruled out that at home, over Sunday lunch, they chatted about the danger of LGBT ideology. A few days ago, an older man threw a firebomb at a processing center for irregular migrants in Dover in Britain and then took his own life. It is only by chance that he was the sole fatality of the attack. Perhaps he believed he was defending his homeland against a foreign invasion, as the new-old British Home Secretary Suella Braverman recently described the challenge of irregular migration. In Slovenia, too, hate speech against certain individuals and groups is on the rise. Violence is appearing as well. Luckily we have, for now, avoided the worst forms and the loss of human life. But that is not because of a lack of intolerance and hatred, and still less because we are so determined and successful in fighting such phenomena. Rather the opposite. If we leave things as they are, it is only a matter of time before we lay flowers and light candles for the first time, in solidarity and mourning for the victims of violence that we could and should have prevented.

There is a lot of hatred in Slovenia. Just under two years ago, the weekly Demokracija published a text in which the author compared people of other races to pests and weeds that must be exterminated. The editors insisted it was merely satire. This is a typical example of hate speech, of the kind of “satire” that Der Stürmer editor Julius Streicher perfected in his career, which found its epilogue at the Nuremberg tribunal. The aim of dehumanizing future victims is gradually to lower society’s inhibitions about violence against them. The “satire” in Demokracija recently had its judicial epilogue, and rightly so. A similarly appropriate reaction came these days from the Agency for Communication Networks and Services. In its inspection of a June conversation between a host and a viewer who called for the use of weapons on the program Kdo vam laže (Who Is Lying to You) on Nova24TV, it found that it constituted incitement to violence and hatred against a group of people. That case is also still being examined by the prosecution.

On the other hand, speech that reaches the necessarily very high threshold for legal sanction is relatively rare in Slovenia, at least compared with speech that does not reach that necessarily very high legal threshold for prosecutorial intervention in freedom of expression, but which nonetheless spreads intolerance and hatred and thereby indirectly creates conditions in which violence sooner or later occurs. That by no means implies there is no reason for alarm. One reason we are so ineffective in responding to rising intolerance and hatred is confusion about what hate speech actually is. Some use the term only for speech that reaches the legal threshold for intervention and prosecution, others for any statement that “offends, shocks or disturbs,” even though such speech—according to the case law of the European Court of Human Rights—cannot be prohibited or punished despite being offensive. The European Court does not even use the term “hate speech”; in each case it determines, according to the specific circumstances, whether a given speech enjoys protection under Article 10 of the European Convention on Human Rights or not. To get beyond the muddle that can lead, on the one hand, to prosecutorial hyperactivity and overly hasty and overly deep interference in freedom of expression and, on the other, to unresponsiveness towards expressions of intolerance and hatred which, despite being protected under Article 10, increase the risk of violence in society, some experts use the term dangerous speech instead of hate speech. It is not defined by the threshold for prosecution and in every case requires at least a social response and a social sanction.

If, after years of floundering in Slovenia over prosecutorial interpretations and the understanding of Article 297 of the Slovenian Criminal Code, things are, I hope, slowly being put in order, our biggest deficit lies precisely in the social response to and sanctioning of hatred and intolerance. We do not know how, and do not manage, to react to dangerous speech that we cannot and must not sanction legally. The concept of freedom of expression in a democratic society remains an unsolvable riddle for many in Slovenia. The fact that we cannot and must not ban or punish a particular statement out of respect for freedom of expression does not mean we cannot—or even must not—condemn it in the strongest terms. By socially condemning, denormalizing and debanalizing hatred and intolerance in society, we in no way violate freedom of expression; quite the opposite, we create the conditions for more effective protection of all human rights, political freedoms and democratic values in society. If we do not understand this and do not do it, we share responsibility for the situation we are in, in which violence is already occurring and will occur again.

In this context, because of the influence that comes with the position and its associated responsibilities, particular attention must be paid to the role of the President of the Republic. Out of respect for the office the current head of state is leaving, I will understandably be restrained in my comments. The outgoing President certainly cannot be reproached for a lack of determination in standing up for tolerance, dialogue and mutual respect at the declaratory and abstract level, but that determination somehow never came to the fore when there were concrete outbursts of hatred, stigmatization and dehumanization of certain individuals and social groups, especially the most dangerous ones, expressed in the media or by holders of political power. Let us recall that throughout his term, amid ever more frequent concrete outbursts of verbal violence, including the one in Demokracija mentioned above, which in the end was sanctioned by the courts, the President remained deafeningly silent in the name of respect for different opinions and freedom of expression. This deficit in prevention cannot be compensated for by wringing one’s hands and lamenting post festum in response to situations in which the banalization of hatred actually leads to violence.

To assess the seriousness of dangerous speech, and the related need for a legal or social reaction to it, the power relationship between the one who spreads hatred and intolerance through speech and the one who is its target and victim is also key. The most despicable and most dangerous hatred is that spread by someone in a position of political influence and power against individuals and social groups because of their personal circumstances, religion, nationality, sexual orientation, gender or skin color. Very dangerous, too, is speech that, through deliberate insults and lies, stokes and directs the fury of its ideological supporters with the aim of discrediting institutions that serve as democratic safeguards in society, or the individuals working in them. Here, too, we frequently witness attacks on the judiciary, the media and civil society. Such conduct not only violates the human rights of individuals and can lead to violence; it also represents a serious threat to democracy.

One of the conditions for the credibility and effectiveness of efforts against the spread of intolerance is consistency. Far from everyone being the same, inappropriate discourse nevertheless does not occur only on one side of the political field. As an illustration I can cite the phrase “death to Janšism,” about which I have serious reservations. Although I fully agree with the prosecution’s assessment that it does not constitute a death threat and therefore cannot be prosecuted, I do not understand what it is that people want to convey with it that could not be expressed with words such as “down with Janšism.” Mentioning death in any context objectively does nothing for the level of political culture or the fight against intolerance in society. If anything, this and similar discourse hands easy volleys to all those who try to deflect attention and relativize their own conduct by pointing their finger at others.

The latest court and prosecution proceedings, as well as the AKOS decision regarding Nova24TV and the Prime Minister’s firm response to the violence to which the spread of intolerance and hatred led, are a sign that in Slovenia we are at last slowly beginning to realize how deep we have sunk. But there is still a long way to go before current trends are reversed. On that path, we cannot and must not rely on prosecutors alone. Without freedom of expression there is no functioning democracy, so overly hasty and overly deep interventions must be avoided, even with the best of intentions. The self-regulation of professional media associations has an important role, and above all the moral authority and moral integrity of those who occupy the most influential political and other positions in society. In the long term, education for democratic citizenship is also key, through which we pass on to young people the knowledge, democratic values, solidarity, empathy and capacity for critical thinking that enable them to recognize and resist the stoking of prejudice and the spread of intolerance and hatred in society. But to succeed in passing democratic and civilizational values on to younger generations, we must begin immediately, decisively and effectively to fight the spread of intolerance and hatred among those—and above all by those—who are in positions of power here and now.