This week I forwent the pleasures of the internet for a stint of unwired living on Sandhamn, with moss and pine needles underfoot and the brushing of blueberry bushes against sandaled ankles on walks towards sunset viewsThe first of these two posts on Åke Green is here..

Returning to Stockholm, I found that my blog, abandoned, had done rather better at attracting comments than when I breathe down its neck. Inspired, I’ve gone off to do some further “research,” aka advanced googling, into how laws criminalizing hate speech against groups compare with libel laws for individuals in various countries. In particular, I wanted to clarify in my own mind whether there should be anti-defamation laws that protect groups, much like those that protect individualsWhat is the difference between libel, slander and defamation? Here is your idiot’s guide, with some amusing British examples as a manner of illustration..

It’s certainly an idea that’s been floated on the internet; and it has been argued for at length in at least one US law journal. I find the journal article shoots itself in the kneecaps rather effectively, however. Just read the abstract:

Abstract: In AIDA v. Time Warner Entertainment Company, currently before the Illinois Supreme Court, the American Italian Defense Association (AIDA) alleges that the television series “The Sopranos” portrays the criminal and psychopathically depraved character of the Mafia underworld as the dominant motif of Italian and Italian-American culture. The author, drawing upon his experience as co-counsel to AIDA, submits that the law should provide a remedy for racial and ethnic group defamation. It is paradoxical for the law to only allow a remedy for individual defamation. The current civil damage lawsuit for defamation is inapplicable because courts consistently deny damages for group defamation by refusing to recognize the individual harm caused by group defamation. Likewise, criminal defamation statutes are now found in fewer than half the states and rarely used by prosecutors. This Article proposes enacting a declaratory judgment statute at the state level to remedy group racial and ethnic defamation. This suggested remedy takes the form of model legislation in the Appendix to this Article.
 
I’m in the process of dealing with these Guido motherfuckers.
 
—Will Smith, in Enemy of the State (Touchstone Pictures 1998)

Had this not existed, The Onion would have been forced to make it up. I think the author, Professor Polelle — clearly a Guido himself — manages to use an example that illustrates perfectly what silliness such a law would engender in the US if legislated. Or Sweden, for that matter.

Of course, Italians are famously thin-skinned against insults, which is why cursing in Italian is so deliciously effective. Just this week, the country’s judicial system once again had to define precisely which insults are slanderous and which are legal:

ROME (Reuters) – A driver who told a parking attendant “You are nobody!” has felt the weight of Italy’s legal system, which ruled the seemingly innocuous words constituted slander — and fined him heavily.

I wonder if the driver would have been let off the hook had he been a registered Buddhist proselytizing his religion. Meanwhile, vaffanculo is fine, presumably as you are telling someone what to do instead of describing them, and so is calling a woman a rompipalle (ball breaker), because Italian women have been known to do just that, and the truth is an absolute defence in defamation cases.

Or so I thought. Italy’s approach to free speech is actually rather shocking: In civil cases, the truth is not an absolute defence against libel, to Berlusconi’s great delightBerlusconi, by the way, is very short, bald and fat, and for this he overcompensates, which goes a long way to explaining his disastrous reign. As one Italophile American friend says, so long Berlusconi is in power Italians lefties have no business complaining to him about Bush.. But even worse, Italy is one of the few western countries which still has criminal libel laws. Reporters Without Borders is on their case, and a proposed amendment to Italy’s defamation law, which would decriminalize libel, though still allow courts to ban journalists from writing, is currently wending its way through various committees.

A surprise (for me) is that there still are criminal libel laws on the books in some US states, though their use is rareHere is a great primer on libel law in the US.. Apparently, criminal libel convictions are always getting overturned on appeal, so nobody bothers. Still, it would be nice to drag the stragglers into the 21st century.

What does the Anti-Defamation League consider to be the best method of combating hate speech, notably anti-semitic speech? Tellingly, it doesn’t lobby for civil libel laws for ethnic groups, nor even criminal hate speech laws like the kind Sweden has. Instead, “ADL believes that the best response to the words of bigots and extremists is more speech: speech that reflects the ideals of American democracy and tolerance.” It proposes “penalty enhancements” for hate crimes in model legislation that serves as a blueprint for the law in most US states:

Expressions of hate protected by the First Amendment’s free speech clause are not criminalized. However, criminal activity motivated by hate is subject to a stiffer sentence. A defendant’s sentence may be enhanced if he intentionally selects his victim based upon his perception of the victim’s race, religion, national origin, sexual orientation or gender.

And of course, it is always illegal to shout “Fire!” in a crowded theatre or to incite violence in a crowd, but that’s because a direct causal connection can be established between the intent, the act, and the effect.

This, to me, is the ideal solution. It does mean that the onus is on society to respond to the speech of bigots like Åke Green with “more speech.” Laws which silence him are easier, but they require the conceit that the current mores of “right-thinking” citizens are universal, and the forgetting that until not too long ago, citizens like Green were considered right-thinking. Society should not be tempted to cash in its moral chips through laws which ossify the consensus, but instead should be confident that tolerance and liberalism are the most competitive and popular long-term strategies for maximizing society’s utility.

So where does this leave Sweden? The ruling against Åke Green, based on what I now think is a faulty interpretation of a hate speech law that was kept vague on purpose, is being appealed, and so it will quite possibly be overturned for one of many good reasons. But as it stands, because the test the court used for deciding whether the law had been broken was so broad, the ruling really does amount to a criminal libel law protecting groups. This puts Swedish law in a strange place, for had the pastor made the accusations in his speech against a specific person instead of against a group, he would be tried in a civil libel case.

Swedish law has been in strange places before, however; in two cases I know of, there has been an overzealous application to the internet. I’ve already written about the legal obligation of Swedish websites to warn their users if cookies are used. But another ruling in 2002, just before my time here and hence which I missed until now, found daily tabloid Aftonbladet’s publisher guilty of hate speech because an anonymous user had posted such speech on an unmoderated forum of theirs on the web. This case, too, was criminal, and the publisher received a suspended sentence in addition to being fined.

What does this mean for Swedish bloggers, who might decide that when they find hate speech among their comments, they prefer to leave it up so that they, or others, can better argue against it (or choose not to comment at all)? Would they now be guilty of hate speech if somebody complained to the authorities? This scenario hasn’t happened yet, but I think it’s only because Green and his ilk are predominantly backward, and haven’t discovered blogs yet. But they will, as will Swedish anti-semites and nationalists. Are Swedish bloggers going to have to start manually approving every comment submitted to their site in order to avoid jail because of a de facto criminal libel law protecting groups? As for me, they’ll have to pry unmoderated commenting at stefangeens.com from my cold, dead hands.