Last week, Sweden’s highest court (Högsta Domstolen, HD) upheld an acquittal won on appeal by Pentecostal pastor Åke Green in February this year.A potted history: Åke Green preached a virulently homophobic sermon in 2003 — in which he called homosexuality a cancer tumor on society, among other things — and this led to an indictment in a local court under a Swedish law that criminalizes hets mot folkgrupp, agitation against certain protected groups, including homosexuals. The verdict went against Green, and carried with it a month in prison, but Green appealed, and a regional court overturned the ruling. Prosecutors in turn appealed the regional court’s acquittal, but Sweden’s highest court has now upheld Green’s right to make sermons of the kind he gave to his Pentecostal flock in Sweden’s Bible belt.

What’s interesting about HD’s ruling [PDF, 40K] is that it is based on an entirely different rationale from the ones used by the previous two courts. We have now heard three arguments for where the legal limits of free speech ought to lie in Sweden, though this latest ruling by HD is the binding opinion. I didn’t think much of the first two. What about this one?

HD has turned to a body of law entirely ignored in the previous two rulings — The European Convention on Human Rights. The court points out not only that the convention is a source of law in Sweden, but that it takes precedence. In the case of Åke Green, it is specifically the parts concerned with freedom of thought, conscience and religion and freedom of expression, in Section I, Articles 9 and 10, that are relevant. I thought I might reproduce them here verbatim, so that we all know our rights now:-)

ARTICLE 9

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
 

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

ARTICLE 10

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
 

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

My problem with the first two rulings by lower courts was that they subscribed to a bizarre notion of what freedom of religion means under Swedish law. The original ruling maintained that while some of the things Green said in his sermon were indeed derived from a straightforward interpretation of the Bible, and hence protected “absolutely” under Swedish law,I blogged the original ruling here, with a follow-up here. other sentences in his sermon could find no direct backing in the Bible (he maintained, for example, that bestiality and pedophilia are predominantly committed by homosexuals) and hence enjoyed no protection as religious belief. It was for these “unscientific” passages in his sermon that he was condemned for agitating against homosexuals.

The second ruling cleared Green with the argument that his sermon’s interpretations of Biblical verse were protected as religious speech, in part because the Bible itself carries a categorical denunciation of homosexual relations as sin.I blogged this ruling here. Green’s embellishments are “hardly more far-reaching than the bible texts he refers to,” according to the regional court’s ruling.

I find it amazing that these two courts would consider it within their jurisdiction to interpret “sacred”My scare quotes in this case, because, to paraphrase Salman Rushdie, I believe nothing is sacred. texts with a view to deciding what constitutes reasonable religious belief. In part, the problem lies with Swedish law itself, which provides extra protection to religious beliefs and speech vis-á-vis sincerely held secular beliefs and speech. The upshot is that before speech can be given the protection afforded to religious expression, Swedish courts need to first decide if a certain text is religious in nature, and then decide whether speech based on such a text conforms sufficiently with the “sacred” ideas contained therein — a very silly pursuit indeed for a court. How to decide, for example, which beliefs are religious, which are cults, which are superstitions, which are philosophies, and which are ideologies? And once that hurdle has been cleared, what hope does such a court have of splitting fine theological hairs regarding textual interpretation if all the bishops and ayatollahs of the world have never managed to come to an agreement? It’s a folly to even begin going down this road.

How does HD’s ruling fare? It begins by noting that “Enligt 16 kap. 8 fl brottsbalken döms för brottet hets mot folkgrupp den som i uttalande eller i annat meddelande som sprids hotar eller uttrycker missaktning för folkgrupp”the Swedish law against hets mot folkrupp prohibits threatening speech or speech which expresses disrespect against protected groups. It then spends some time on what it means to “express disrespect,” and how that phrase has been interpreted in past rulings in Swedish courts. HD decides that Green’s speech clearly is disrespectful of homosexuals“Enligt den innebörd av 16 kap. 8 fl brottsbalken som kommit till uttryck i motiven får uttalandena därför anses ha gett uttryck för missaktning av gruppen homosexuella.”, but that the law which would make this a punishable offense in Sweden “Högsta domstolen måste emellertid nu pröva om en tillämpning av 16 kap. 8 fl brottsbalken i ÅGs fall bör underlåtas därför att en sådan tillämpning skulle strida mot grundlag (jfr NJA 2000 s. 132 och 2005 s. 33) eller mot Europakonventionen (jfr prop. 1993/94:117 s. 37 f. och bet. 1993/94:KU24 s. 17 ff.).”is subordinate to both the Swedish constitution and the European Convention on Human Rights.

HD then spends some time on whether the law against hets mot folkgrupp contravenes Sweden’s constitution, concluding that it would not.“Det är inte uppenbart att grundlagsskyddet för yttrandefriheten lägger hinder i vägen för att döma ÅG enligt åtalet (jfr 11 kap. 14 fl RF). Inte heller i övrigt hindrar grundlagen att han döms enligt ansvarsbestämmelsen om hets mot folkgrupp.”

Next, HD turns to the European Convention on Human Rights, and looks at how that law has been applied to free speech cases by the European Court of Human Rights (ECHR), where Åke Green’s case would presumably end up were he to be found guilty by HD of hets mot folkgrupp and were he to appeal against this ruling.

Here is where it gets interesting: HD finds the legal praxis based on the Convention to tilt far more in favor of protecting freedom of speech, even when this speech is shocking or offensive. In particular, it quotes from a 1976 ECHR ruling, Handyside vs. The United Kingdom:

The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued.

Based on this and other examples, HD concludes that the ECHR would likely overturn any ruling that would find Green guilty“Under sådana omständigheter är det sannolikt att Europadomstolen, vid en prövning av den inskränkning i ÅGs rättighet att förkunna sin i bibeln grundade uppfattning som en fällande dom skulle utgöra, skulle finna att inskränkningen inte är proportionerlig och därmed skulle utgöra en kränkning av Europakonventionen.”, as the law against hets mot folkgrupp imposes constraints on speech that are disproportionate to the aim of the law, and that in doing so it contravenes the Convention. Åke Green’s original appeal is therefore upheld. In the process, the Swedish law against hets mot folkgrupp is quite deftly de-fanged.

I think the ruling is correct, though I do have problems with some of the reasoning behind it. I can think of three specific criticisms:

1) HD conflates “hate speech” with “incitement to violence”. I think that these two kinds of speech are different. The latter should be banned, while the former should not be, for reasons I’ve outlined in previous posts on this topic. HD frees Green on the grounds that his speech is not “hate speech”“Vid en samlad bedömning av omständigheterna — mot bakgrund av Europa-domstolens praxis — i ÅGs fall är det till en början klart att det inte är fråga om sådana hatfulla uttalanden som brukar kallas hate speech.”, but it first defines hate speech as something I would regard to be incitement to violence. I think Green’s sermon is clearly hateful towards homosexuals, though he does not call for violence, nor intends for his speech to be construed as a call to violence. Such speech should therefore not be banned, even though I regard it to be hate speech. Simply put, you can hate someone or some group and yet not want to harm them physically. The expression of such a belief should be protected.

2) HD’s ruling does not attempt to set straight the confused mess of the previous two rulings. Article 9 offers an obvious solution to the slippery slope of trying to define the bounds of protected religious belief — avoid the issue entirely by referring to “religion or belief”. This places secular foundations for ethics or political action on a level footing with religious foundations. The only thing these beliefs need have in common is that they are sincerely held. In Green’s case, his beliefs about homosexuals are no doubt sincere, as is his belief that they are grounded on a religious text. The application of Article 9 thus makes a mockery of the previous two rulings by Swedish courts. It would have been nice for HD to point this out.

3) When looking at the legal praxis of the Convention, HD twice notes the notion of a “margin of appreciation““Vid bedömningen av en sådan fråga anses konventionsstaten åtnjuta en viss frihet (“margin of appreciation”).”
…
“Vidare har staten i allmänhet ett visst utrymme (margin of appreciation) vid reglering av yttrandefriheten beträffande sådant som kan kränka djupt personliga uppfattningar i moralfrågor eller religionsfrågor.” that national legal systems are given when interpreting the Convention, to suit the specific moral standards and diverse cultural traditions of individual states. What HD does not do, however, is explain why it couldn’t use this “margin of appreciation” to rule that in Sweden, arguments and debates are to be had in a respectful, saklig (business-like) manner, as that is the cultural tradition of the country. Frothing-at-the-mouth sermons promising hellfire and damnation for homosexual behaviour would thus be beyond the pale, legally.

Some have made the case that the notion of a margin of appreciation can and is used to justify a wide range of local laws that would normally contravene the Convention. I would have liked to have heard HD’s opinion as to how wide it considers this margin of appreciation to be, and why it is not wide enough to allow the application of Swedish constitutional law in Green’s case, which would likely have found him guilty of hets mot folkgrupp. Without such a discussion, I feel that it is too easy to argue that the court could have gone the other way, had it had the inclination to do so. Green would then have appealed to the ECHR, and it would have been up to that court to decide whether HD had been too enthusiastic in its application of the notion of a margin of appreciation in interpreting the Convention.

I happen to think that when it comes to a freedom as fundamental as the freedom of speech, there should be very little or no margin of appreciation for national legal systems to wiggle around in. It would have been nice to hear Sweden’s highest court state that explicitly, however.