In Dagens Nyheter this past Sunday, a TT newswire article about what looks likely to become the next battle for the free speech demarcation line in Sweden. A local court in a town north of Göteborg will on April 5 hear the case against a primitive Christian (“urkristen”) and his website, on which hate speech against homosexuals can be found that, according to the article, is even stronger and more widely disseminated than Åke Green’s sermon.

A quick summation of the charges, as related by the prosecutor, for those who do not speak Swedish: The site alleges homosexuals are the “origin of and the engine behind the AIDS epidemic,” and also that homosexuality is a “sevenfold (?) dirty noise that wells up like an infernal flood through society and reaps millions of victims.” Furthermore, according to the prosecutor, a bulletin board maintained by the site contains posts with the opinion that “homosexuals should be punished by death and hung on city squares.”

The article does not mention the name of the site, nor the person behind it. I find that ridiculous. Society doesn’t need to be shielded from such people — we need to seek them out, engage them, ridicule and shame them.

So, some discovery was in order, then. Googling the term used in the article, “oas för urkristen tro och väckelse” led me to the site, Bible Templet. The person behind this site is Leif Liljeström, and it is immediately clear — if only from his complete lack of design sense — that he is something of a nutcase. In fact, I seriously question his sanity. He appears to have messianic illusions of grandeur.

From a rather cursory check (again, that design is unbearable) it would seem that Leif has taken down the passages referred to by the prosecutorGoogle does not seem to have a record of the quotes as related by the prosecutor. Leif does seem to maintain a weblog on Blogger as well, BTW., and in a post on his “guest book”, he maintains that he himself disapproved of a commenter’s call for the death penalty for homosexuals, and wrote as much in a response to the comment, which I could not find. He also appears to be saying that he rejects calls to violence (it’s all rather confused). Finally, he says that the death penalty comment was posted as part of a discussion that was held “several” years ago, which would make it interesting from a legal point of view, as the hets mot folkgrupp law was extended to include homosexuals only around two years ago.

Still, it would appear that Leif is on shakier legal ground than Åke Green was, here in Sweden. Leif isn’t preaching, and preaching is specifically what saved Åke Green when he appealed his conviction. Second, Sweden has a law which states that administrators of websites are legally responsible for the content of third-party contributions on unmoderated bulletin boards or comment sections.

I’ve previously argued in favor of my own preferred definition of hets mot folkgrupp, which is “incitement to violence,” where speech is intentionally used to incite acts of physical violence against members of a protected group. On which side of this demarcation line for free speech would Leif’s website fall?

The test I like most is actually just the one that the US Supreme Court used in its landmark 1969 case, Brandenburg vs. Ohio. It is described thus:

The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.”

Here is another description of the test:

That link leads to a site that contains a whole range of possible tests for determining the free speech demarcation line — a far more nuanced range than any I have seen debated by legal scholars and legal authorities here in Sweden. I was at one such debate a few weeks ago under Mosebacke Terassen. The four panelists all held practically identicaly perspectives. The only variety of opinion was to be found in audience questions.
 
One more thing: If you don’t agree with my choice of test, I’d be interested in knowing which test you’d prefer instead.

The Brandenburg test – Merely teaching or advocating unpopular ideas must be distinguished from teaching or advocating the duty, necessity, or propriety of acting on those beliefs. The right to speak and organize cannot be abridged no matter if the group’s message and purpose are repugnant to American values (such as KKK speech). In order for government to intervene, the speaker must subjectively intend incitement (imminent evil), use words which are likely to produce action (imminent action), and openly encourage or urge incitement (suggesting, for example, it’s a duty to commit a crime).

It is clear to me that when it comes to Leif’s own pronouncements, neither he nor Åke Green are engaging in speech that should be prohibited. The commenter, meanwhile, certainly sounds like he believes public executions of homosexuals are a good idea, and that is pretty strong stuff. But does this constitute incitement to violence as defined by the Brandenburg test? It does not. To be exact (and in such matters it makes a difference) the commenter does not propose extra-legal action (as in a KKK-style lynching) but rather a change in the law that would make such action legal — he talks about a death penalty. This removes the sense of a threat of “imminent lawless action” which the test requires for an incitement charge to stickIf you’re interested, this page has some pretty thorny questions about borderline cases involving the Brandenburg test.. Additionally, I think that leaving an anonymous rant on a hideous-looking website is about as unconvincing a case as anyone can make.

At this point, it is worth asking again about Nazi rallies, and whether Nazi campaigns against gays and jews should be outlawed. I believe that they should, because Nazis and Nazi sympatisers have a history of violent action against homosexuals, even recently in Sweden. The US Supreme Court upheld such reasoning in an analogous situation with the KKK and cross-burning in Virginia, in the 2003 landmark case, Virginia v. Black, which I blogged hereA nice primer on the regulation of hate speech in the US, citing Virgina v. Black..

In sum, I think Bible Templet’s content would be protected under the US Constitution’s First Amendment, though it probably does not enjoy protection under Swedish law, unless Swedish courts were to interpret hets mot folkgrupp as narrowly as I would.

Why should they? Why should Swedish courts draw the line so that hate speech is protected (as it is in the US), even to the extent that you can call for capital punishment for groups of people you hate? Because by outlawing hate speech, rather than responding to it with more speech of our own — by pushing those ideas underground, where they will fester, not disappear — we are doing more harm than good to our society. I’ve argued this before, so I am not going to belabor the point, but in brief; We the people are smart enough to separate the good ideas from the bad ourselves — look at the progress we’ve made. The courts should restrict their focus to banning all calls to violent action, regardless of the ideas that might be used to justify them.

End of rant.