Monday, February 20, 2006

Another digression: Freedom of speech and discrimination laws in Denmark

Since the entire matter of the Muhammad caricatures is generally perceived as hinging on freedom of speech versus religious taboos, I think it might be interesting to make another digression, on the topic of how Danish law deals with this sort of subjects.

Firstly, the Danish constitution guarantees freedom of religion, in section 70. Similarly, sections 77-79 grant the freedoms of speech, association and assembly. Of course, freedom of speech doesn't mean the right to say anything without consequences. The text of section 77 (my emphasis added) makes this quite clear:

Section 77 -- Freedom of Speech
Any person shall be entitled to publish his thoughts in printing, in writing, and in speech, provided that he may be held answerable in a court of justice. Censorship and other preventive measures shall never again be introduced.

In other words, the government of Denmark cannot under any circumstances censor a newspaper (or any other publication). However, the newspaper can be brought to civil court for defamatory statements, or to criminal court for transgressions against various laws prohibiting inciting to criminal acts, racist utterances, etc.

The Danish penal code contains several provisions limiting free speech. For instance, there is the article on blasphemy, article 140. However, this article has not been successfully invoked since 1938. For instance, the Danish Kristeligt Folkeparti ("Christian People's Party") tried unsuccessfully to invoke it against Danish artist Claus Deleuran's comic book Rejsen til Saturn ("The Voyage to Saturn") in 1980. The comic satirized Christianity as a money-grubbing religion, among other things.

The penal code also contains article 266b, which specifically makes it a crime to disseminate discriminatory utterances based on race, colour, nationality, ethnicity, creed, or sexual orientation. The maximum penalty is 2 years in jail.

Article 266b was introduced in 1971, in order to satisfy the provisions of the United Nations Convention Against Racial Discrimination (1965).

Now, having a law on the books is one thing. Prosecuting people is another matter, especially in the very sensitive interaction between a free press' right to freely print even provocative articles, and a reasonable limit on "hate speech". In this regard, it is worth noting that a significant instance of case law on the subject predates the Muhammad caricature controversy by over a decade:

In 1994, the European Court of Human Rights ruled in the case of Jersild v. Denmark, a case dealing with free speech in the media, and racist utterances.

In 1985, Jens Olaf Jersild, a Danish TV journalist, had made a TV documentary dealing with a group of racist youths, and in the course of the programme, he allowed them considerable leeway in making very inflammatory racist remarks. This led to a criminal case under article 266b against the youths, Jersild, and the programme controller, Lasse Jensen, for disseminating racist utterances.

The accused were convicted (although fairly mild sentences were imposed), and the case was appealed all the way to the Danish Supreme Court, Højesteret. When the verdict was upheld in the Højesteret, Jersild appealed to the European Court of Human Rights. In 1994, he won a judgement in his favour, based largely in the fact that he hadn't endorsed the racist statements in the programme.

As a result of the Jersild case, case law on the subject of discriminatory remarks in the Danish media is strongly in favour of the media's right to report anything, however odious or discriminatory, so long as it is not endorsed.

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Blogger Svend said...

Thanks for this and your other very enlightening posts on the controversy.

I'd love to know what you consider the main factors in the rise of extreme nationalism and xenophobia. Or any suggestions you have for people who are writing on this topic.

Though I'm very dismissive towards the official justifications for the cartoons and the government's handling of them--and sympathetic to the plight of immigrants in Denmark these days--I'm also acutely interested in the extent to which one could argue that the nativist backlash could be considered rooted in, if not "justified" by, immigrant behavior or other empirically demonstrable phenomena (e.g., economic problems).

Obviously, it's a complex topic.

19 March, 2006 19:31  
Blogger RP said...

Thank you for the kind words, Svend.

1) On the factors of extreme nationalism and xenophobia:
I believe there are a multitude of different possible ways that such a condition could evolve within a group. Therefore it is difficult to be specific.
However, in every case, the extreme forms of nationalism and xenophobia require a pre-existing, more run-of-the-mill form. In other words, a level of unease with foreigners and patriotic devotion that isn't, in itself, extreme. This is the "substrate", so to speak, that the extremism grows in.

Beyond that substrate, the growth of extremism requires "fertilizer". This fertilizer may come from within (in the form of economic depression, political unrest, domestic dismay at a lost war, or whatever); or it may come from without (in the form of immigration, foreign aggression, or whatever). But the fertilizer needs to be applied, to make the xenophobic/nationalistic substrate produce extremism.

In the case of Denmark, I believe that we are still largely at the level of "substrate", without the extremist growth having taken root yet. So far, anyway. As I mentioned in my blogpost on this subject, I think the main reason for the growth of xenophobia in Denmark is that Danes, for over a century, had grown unused to the presence of a significant minority in their midst. The sudden arrival of a large minority, and a very alien one at that, produced an inevitable reaction.

2) On the possible "justification" of xenophobia in Denmark:
Xenophobia is an ugly word, and a xenophobe, by definition, is a "bad guy". But nothing comes from nothing. While the Danish xenophobic reaction to the minorities in their midst cannot be considered justified, it isn't entirely unprovoked.

The different minorities have made very diverse efforts towards assimilation (or at least accomodation). Some, like the Chinese and Vietnamese, have completely found a way to accommodation (with very little assimilation, true, but that's all right). But the Muslim minority has a very large component of individuals that display a deliberate and often provocative aversion towards assimilation or accommodation. This does not justify xenophobia in any way -- but it certainly doesn't help matters along.

So long as the Danes are unwilling to fully accept that their society is no longer mono-ethnic, and so long as minorities are unwilling to accept that arriving in a new homeland means accepting a large part of the customs and ways of that new homeland wholeheartedly (or at least, in good grace), then ethnic discord will still be on the agenda.

19 March, 2006 22:17  
Blogger Svend said...

Thanks for elaborating. That's an interesting hypothesis, and one that I think helps to explain many things we're seeing.

Perhaps this is my own bias speaking--I'm a Muslim and thus a bit of a dissident regarding the reigning secular orthodoxy in Denmark and many other Western countries--but one factor that I wonder about in the case of Muslim immigrants is Danes' secular worldview causing them them to find Muslim religiosity and the general refusal of rank & file Muslims to become proper postmodern Western intellectuals threatening. I also wonder if the Denmark's drift into secularism has made Danish nationalism and (white, Christian) cultural identity sacred for many Danes.

I blogged about this a while back here

20 March, 2006 21:28  
Blogger RP said...

Hmm. I think you may be on to something, there. To a certain extent, it is not unreasonable to consider secularism and cultural identity to have replaced religion in the Danish collective worldview. That is, the values of secular society and Danish cultural identity have replaced religion as the "sacred" object which may not be impeached.

I'm not saying this theory is the 100% pure and unvarnished truth, but I do think you have an interesting point with a strong element of truth in it.

21 March, 2006 12:56  

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