Remember Åke Green, the backwater pastor who publicized an obsessively homophobic sermon in 2003, for which he was convicted to a month in prison by a regional court? That court had stringently applied a vaguely worded law that prohibits agitation against ethnic groups and homosexuals (hets mot folkgrupp) — that decision has now been overturned by an appeals courtBBC version of events.. I originally blogged him here and here. While there is no doubt that this is a victory for Åke Green, the prosecution has the right to appeal the verdict higher up the legal food chain, so the story is not over, though we are certainly in the next chapter.
The verdict, in Swedish, is here, as a one-page PDFOK, this really pisses me off. Why is Göta Hovrätt using DRM technology to prevent me from copying and pasting bits from their PDF without me first plying the document with some secret password? What possible use does this restriction have? Surely legal verdicts are in the public domain, not copyrighted? I can view and manually retype the verdict but not command-C command-V — why?!. The reasoning behind the verdict, translated by me, follows below (because it’s important to read the whole thing):
The purpose of criminalizing agitation (hets) against homosexuals is not to prevent discussions about homosexuality as such in churches or elsewhere in society. Nor are statements that judge homosexuals or expressions of disrespect automatically punishable by law. When it comes to sermons, the constitutional committee has declared that citing religious texts and merely encouraging listeners to follow these texts’ precepts does not normally constitute punishable conduct. However, the boundary between what is and what is not allowed is by no means clear, and in interpretations of the law even the European Convention must be taken into account. The conclusion here must be that only in rare cases should statements made in a sermon setting be deemed as hets mot folkgrupperPlease read along in Swedish on the DRM-protected PDF and suggest corrections to my translation..
It is clear from the sermon and the pastor’s words that his main aim was to spread his literalist bible message. That which is apt to offend/insult/violate/injure (kränka) homosexuals in the pastor’s sermon is the bible-based categorical denunciation of homosexual relations as sin. His own addition, wherein he ties together citations, is not scientific and can, even if he has many reservations, be strongly questioned. The pastor’s exposition of these bible citations is notable for his choice of words, but their content is hardly more far-reaching than the bible texts he refers to. The right to preach a literal interpretation of the bible implies the ability to interpret and explain the bible in one’s own words, as long as the account is connected to the bible’s message. Even views that are foreign to the majority of citizens or even provocative may thus be expressed.
There is nothing that indicates that the pastor used the sermon situation as a cover to attack homosexuals. The purpose of the sermon appears instead to have been to explain religious views and opinions which the pastor holds on bible texts and also to influence people’s way of life. Such conduct must be regarded as falling outside that which is punishable by law as hets mot folkgrupp.
What a bizarre judgment this is. I think I like it even less than the first one. Whereas the original verdict declared that certain declarations by Åke Green in his sermon had no biblical foundation and were thus not protected by a constitution that protects the free interpretation of religious texts, this judgment seems to be saying that in fact the bible is a homophobic document and that thus Åke Green can’t be blamed for merely divulging its contents with some added vim and vigor. It’s as if the majority of the court held up their hands and said, “Hey, we can’t help it if the bible has homophobic passages, but if that’s what the constitution protects, so be it.”
Both these verdicts, then, have themselves engaged in the interpretation of a religious text — deciding what the Biblical God did or didn’t think about homosexuals. The first verdict concluded that there is no basis in the bible for virulent homophobia, and the second concluded precisely the opposite, using it to acquit Åke Green.
This is so unsatisfactory on so many levels. I have no religious beliefs myself, and certainly no beliefs that hold a text to be sacred; are my ethical opinions, when expressed, now less protected by the Swedish constitution than Åke Green’s, because they cannot find supporting evidence in a religious text? What makes religious belief more worthy of protection than my own sincerely held beliefs? Does this mean that Åke Green is allowed to say “I think homosexuals should be jailed” because it is his sincerely held religious belief, whereas if a garden-variety homophobe makes the exact same statement he is criminally liable because his convictions are not of Biblical/Koranic/Talmudic originWhat’s more, who gets to decide which texts are religious — the state or the believer? Does Dianetics count? The Book of Mormon? Falun Dafa’s Zhuan Falun??
The verdict should have said that all speech expressing sincerely held beliefs (thus exluding perjury, libel, defamation and fraud) short of incitement to violence is protected. Period. Being convicted for hets mot folkrupp should imply violent action, or the ordering of violent action, or the verbal incitement of individuals to violent actions against a group. Åke Green is innocent not because he did such things in the name of religion; he is innocent because he did no such things, the origin of his beliefs being irrelevant.
I agree.
There are plenty of passages in the Old Testament that could serve as a basis for a sermon about overmastering and slaughtering the people(s) that serve other Gods and ceaselessly commit sins. If one wanted to, it would be possible to directly translate these biblical stories into the present (I am not going to draw out the scenario here…use your imagination). Now that would nicely serve as an opportunity for hets mot folkgrupp! Not considering the ridiculous hermeneutics of such a sermon, one could imagine that this would logically fall within the law that protects people from hets mot folkgrupp. If the court would use its own jurisprudence, would the pastor have to be released because he based the sermon on the bible?
Another question that I cannot help thinking of is this: what would have happened if this speech would have been made by an Imam on the basis of the Koran?
The Kungsholmen street looks fine from here. You better hope they keep clearing the streets, though. Otherwise you may be guilty of hets mot gatukontoret (unless you can find some anti-street clearing passages in the Pentateuch).
Good Free Speech News from Sweden:
According to the Washington Post,
I’m not sure I can do this in English, but I’ll try.
Firstly: You link to the press release, not to the verdict, which in full text can be found here. (press release – don’t you miss the days when the courts actually thought that the members of the press were intelligent enough to read the verdicts and not summaries?)
Secondly: I think you miss the point. I could easily agree with your overall dismissal of this law, but still, you miss the point. I think the key word here is “intent”. You see, with this law, it isn’t good enough just to say a despicable thing about homosexuals, you have to mean it too.
Let me try to straighten it out.
The court thinks that because Green is a christian, he wants no harm to the gay persons. The “goodness” is inherent in the christian faith (of course, the court could easily take the opposite stand – that the christian churches have prosecuted gays for two thousand years and are likely to again – but it won’t). The text actually says this. In your translation: “There is nothing that indicates that the pastor used the sermon situation as a cover to attack homosexuals”. The court thinks that because good christians seldom get out in the alleys to bash gays, the simple fact that Green is a christian clears him of suspicion.
Had the same sermon been held by a member of a nazi party, the nazi would have been jailed, for sure. Because the intent to harm gay people is inherent in the nazi ideology and practice. You might find this strange – it is – but a Swedish nazi has been convicted with this law for the crime of wearing a badge with obscure symbols often connected to nazism (not the swastika, mind you). This nazi didn’t even have to say a thing – the symbols on his jacket connected to his ideology was enough.
So, this ruling does not give a green light to those that want to use the bible for smear campaigns. This ruling does not really concern the bible or quotes thereof. The court uses the law for what it was invented: jailing nazis and freeing the others.
Finally, I guess that the ruling will hold in the higher court, and that hhis blog will cover the story best. You are second best.
Per,
First off, you write English utmärktedly.
Second, the Centrum för rättvisas blogg which you mention is promising but would be better were it to offer actual analysis instead of just keeping track of when decisions are announced. There is a need for a Swedish Volokh, clearly. Know any law professors who’d be open to the idea?
Third, it is amazing that they release idiot-proof versions of these things, but at least the bits I translated constitute the summary and conclusion of the actual decision, verbatim.
Now that I’ve read the rest of the decision, I think my points stand (though you add some nuance.) The fact is, religious expressions are given more leeway than ordinary freedom of speech because unlike freedom of speech, freedom of religion is treated as an absolute right under Swedish law (absolut rättighet — small diversion here to what would be a clever if obscure ad campaign for that iconic vodka brand: Åke Green standing behind a pulpit in the shape of an Absolut vodka bottle, below which the text: “Absolut Right”). But this leads to other kinds of problems, not least of which is having to decide what is religious belief and what is quackery or cultism or a tax evasion strategy (or what if it is all of the above, like the Catholic Church?)
The first verdict decided that Green’s sermon wasn’t really preaching because he drew conclusions from the bible that weren’t justified by the text, and hence that he wasn’t shielded by this absolute right. The second verdict said that his sermon did not really go beyond what is literally written in the bible, and that hence it was protected by this absolute right. I find this strange reasoning, and self-defeating.
You are right that the criteria for what is criminalized speech should be different for Åke Green and for a Nazi sympathizer. But it should not be because Green is religious and hence in possession of an immunity card, but because the Nazi sympathizer, through his adoption of symbols and gestures, partakes in an idiom that has a history of constituting incitement to violence. The analogy that most immediately comes to mind is that of a convicted killer brandishing a gun in your face — you do not wait for him to shoot. Nazi sympathisers are no longer collectively innocent until proven guilty — their speech has too often been connectected to violence to ever again be given the benefit of the doubt.
But the rest of us should get this benefit, up to a limit, a limit which is the same for Åke Green and for me.
(There is an interesting US Supreme Court decision from Dec 2002 that I blogged, where the court decided that burning crosses on lawns was considered incitement to violence, not protected hate speech, due to the history of the symbolism for African Americans. I argued that by analogy the decision should also be applied to Aryan Nation rallies in the US. Not everyone agreed.)