Tamás Szigeti explores the asymmetric narrowing of free speech in Hungary.
Hungary is now a bad place for anti-racists, even though there is clearly need for speaking up against racism in a country where intolerance towards Roma and Jews is high. An outright antisemitic and racist party called Jobbik is supported by roughly 10-15 percent of the population. We are not talking about a mildly sovereigntist or grumpy xenophobic party, but one whose members have openly proposed listing Israeli-Hungarian dual citizens for national security reasons and talked about Roma people’s genetic inclination to commit crime. The party’s symbolism is strikingly close to pre-war Hungarian far-right movements (using the Arpad stripes flag, the symbol of the Hungarian national socialist party) who contributed to one of the most efficient exterminations of the Jewish and Roma populations on the continent. Should this symbolism not suffice, the party’s and its allies’ forums and rallies are loaded with people who openly deny the Holocaust. Furthermore, the party’s president co-founded a now dissolved far-right paramilitary group.
In the midst of such historical turmoil, a civil court decision caused uneasiness: the court found against the renowned historian, László Karsai, for infringing the reputation of Jobbik by saying the party was “neo-Nazi” in a TV programme. The Budapest District Court reasoned that the parliamentary party did not hold Nazi views per se in historical terms. Indeed, Jobbik does not portray itself as neo-Nazi but rather as a national radical Christian conservative party. Hence, the judge found that casting a legal political party in such a negative light was “gratuitously offensive”. Presumably the judge expected that instead Karsai either should have used the epithet “radical”, preferred by Jobbik, or at least the neutral “far-right”.
The court’s decision says a lot about freedom of expression in Hungary. László Karsai is one of the most prominent Holocaust researchers in the country, so it is at least odd to see a judge giving historical lessons to him. Karsai is amongst those intellectuals who relentlessly point out the perils of turning a blind eye to antisemitic and racist tendencies in public life. Nevertheless, the judge thought he need not have used the epithet “neo-Nazi” for conveying the message. Whether or not a court can ever appropriately pronounce historical-political truths, one can surely say Jobbik does not work for the triumph of pan-German supremacy. Neither does the BNP of the UK or the Front National of France. But is this what being neo-Nazi means?
Why should historical pedantry be conclusive on political debates? An extremist party whose members’ speeches are loaded with racism may surely be associated, in free political debate, with shameful political movements in the past. Additionally, there are two wider points about free speech here. First, under what conditions should the interest of not being offended take precedence over free speech? Here, the protection of political parties’ reputations is a non-starter. It is fanciful to posit that a political party has a reputation similar to a reader of this article, for example. The rule of thumb in public debate is that one exposes herself to criticism. The European Court of Human Rights gave voice to this principle in a defamation case where a historian portrayed another historian as antisemitic, arguing: “…there is little scope under Article 10 § 2 for restrictions on political speech or on the debate of questions of public interest […]. The Court is also mindful of the fact that the plaintiff […] was the author of articles widely published in the popular daily press as part of that debate. He thereby voluntarily exposed himself to public criticism.” The case was called Karsai v. Hungary, involving the same historian Karsai, though this time he was accusing another historian of antisemitism. At that time Karsai was shedding light on the danger of trivialising the deeds of politicians of the far-right conservative regime in Hungary which was in power between the two world wars.
The second, wider question is how the right to free speech reached such a low point. Hungary was long considered one of the most liberal former communist countries as far as freedom of speech was concerned. Upon the fall of communism, the very activist constitutional court took a liberal stance on speech, going so far as to say that banning hate speech or prosecuting the defamation of public officials was unconstitutional. Drawing heavily on the American Supreme Court’s jurisprudence (notably Brandenburg v. Ohio; and New York Times Co. v. Sullivan) the court expressed a firm commitment to unfettered, open and robust public debate. This was in sync with Aryeh Neier’s view: defending the freedom of speech of those who oppose one’s own speech is essential for freedom in an open society.
This, I think correct, view of free speech supports an open and free society where anti-Nazis are able to openly debate. One could say that a society that lets its enemies speak out does not just earn legitimacy in fighting against intolerance (in a legitimate way) but also takes out insurance for being free to challenge the enemy through the use of speech. But that is certainly not what happened in Hungary: speech was only free for some but not for all.
In subsequent years, after the transition to democracy, the lower courts all too often found in favour of offended politicians and public figures despite the Constitutional Court’s decisions. This alone would have had a chilling effect on free speech, and it was further exacerbated by self-censorship and a low level of independence in the media with, more recently, the media being subject to tighter control by the government of Viktor Orbán. At the same time that open and robust public debate has been increasingly shackled, racism in society and in politics has steadily grown. The one constitutional doctrine that public officials took wholeheartedly was the ban on outlawing hate speech: nasty speech was protected as content-neutral. Prosecutors failed to launch investigations even in incitement cases that involved clear and present danger such as the LGBT pride marches in Budapest where participants suffered physical attack from neo-Nazi groups for years and which were always preceded by open calls to attack the marchers. The Karsai v. Jobbik case epitomises the situation: anti-racists cannot shame the racists whereas the racists can shame Romas, Jews or gays. That is not a robust debate but a skewed one.
In March of 2013, the Orbán government wrote a general ban on hate speech into the constitution. But those who find it laudable are in for a disappointment. Hate speech laws represent at best a symbolic strike against racism, and certainly are very short of a panacea. It is enough to look at France, a country with the most impressive repertoire of hate speech laws which also has one of the strongest far-right parties in Europe. Whether or not hate speech laws work, no society can take up the fight against racism without brave speakers who are free to warn society about looming dangers.
Tamás Szigeti is a Weidenfeld Scholar and MPhil candidate in law at Oxford University.
10 July 2013