The big chill
How Czech and European law stifle free speech
Posted: June 10, 2009
Our freedom of speech is under threat. With independent voices from around the world gathered in Prague this week for the Writers' Festival, and David Černý's controversial Entropa back from Brussels, it's an apt time to shine light on Czech and European obstacles to free speech.
This hotly debated work of Czech artist/provocateur Černý underscores both the value of and challenges to free speech in Europe. Černý's dishonesty about the authorship of his work diverted attention from its substance. Nonetheless, Entropa reinforces art's value as a form of free speech by provoking thought and stirring debate.
Offensive speech can prompt people to examine stale and corrosive beliefs. Satire and parody are protected - as when Černý mocks Bulgarians - because free speech needs breathing space. Any attempt to restrict art because it offends is subjective. Offensive to whom? People may look or not. By looking and considering, we may reflect and progress. However, banning racist speech, for instance, does not stop racist thought, but rather adds to its allure. The best way to rebut bad ideas is more speech, not less. Debate, don't censor.
The reaction to Entropa shows European self-righteousness. Intolerance to commentary on stereotypes reveals both the existence of prejudice and a desire for denial. Comic speech is funny precisely because it holds some truth.
After Dutch Parliamentarian Geert Wilders called for the Koran to be banned, likening it to Hitler's Mein Kampf, and was then prosecuted for violating Holland's hate speech law and barred from entering Britain earlier this year, free speech lost. Trying to silence this marginal figure, his detractors gave him a grand stage to spread his vitriol - just as the Czech government did in April when it expelled Klansman-turned-U.S. politician David Duke.
Last month, Denmark announced its cancellation of a free-speech conference Wilders was to attend. How ironic and self-defeating. Sweden, Finland, Iceland, Norway and the United Kingdom all prohibit hate speech, as distinguished from other states that prohibit incitement of violence or other imminent lawless conduct. Punish acts, not thoughts. Recall the wisdom we learned in the schoolyard: "Sticks and stones may break my bones, but words can never hurt me."
Free speech also means a right to know, so that we needn't speak from ignorance. Law and policy must afford the public access to information, including the operations of public institutions. Sunshine laws mandate open, transparent government in order to promote accountability and prevent abuses of power. Sunlight is the best disinfectant.
The amendment to the Czech Criminal Code which took effect April 1, the so-called "muzzle law," restricts the public's right to information on public affairs. It threatens journalists who report on police matters using information obtained via wiretaps with a penalty of five years in prison and a 5 million Kč fine.
Any law that makes people afraid to speak for fear of punishment has a chilling effect and results in self-censorship, the most insidious type of censorship. Chilling effects lead reporters and others not to investigate and speak out on an issue or challenge powerful interests. The muzzle law, now being challenged in the Czech Constitutional Court, violates the public's right to know by imposing overly broad restrictions on reporting, shifting culpability from leakers to journalists and holding out unduly harsh punishment.
The Criminal Code subjects any person who denies the Holocaust or communist genocide to between six months and three years in prison. Germany and Austria also have criminal laws against speech glorifying Nazism and/or denying the Holocaust. Austria recently imprisoned British historian David Irving for Holocaust denial, and the Czech government used that as the ostensible reason for deporting Duke.
As the best way to rebut bad ideas is via debate, these laws undermine free speech. Former U.S. Supreme Court Justice Oliver Wendell Holmes described freedom of speech as "the principle of free thought - not free thought for those who agree with us, but freedom for the thought we hate." Holocaust denial is denial of history. These laws make open debate impossible, denying us the opportunity to expose such beliefs as twisted, ignorant and irresponsible.
Twelve European states still have antiquated laws against insulting the state, state institutions, state emblems and/or monarchs. Thus, when an Austrian journalist called a neo-Nazi sympathizer politician "an idiot," he violated article 115 of Austria's criminal code. It took the European Court of Human Rights to overturn his conviction, and to clear two Le Monde journalists convicted under the relevant French law.
"Insult" is a vague word; therefore, such laws have a chilling effect. Since people don't know what's allowed and what's not allowed, they censor protected speech due to fear of prosecution. Further, the affected speech is political speech, which should receive the highest protection. A report of the World Press Freedom Committee concludes, "[Insult laws] are used to stifle political discussion and dissent, editorial comment and criticism, and even news that the government would rather hide from the public."
The history of attempts to criminalize speech in the Czech Republic is shameful. Czech defamation law chills free speech in two ways. As throughout Europe, it does not set a higher bar for politicians and other public figures to prevail in defamation lawsuits (when public figures need only show that a statement is false in order to prevail, people fear speaking out on controversial public issues). And, most disturbingly, it subjects those found to have defamed another to not only civil liability, but also criminal prosecution and up to a year in prison. Now that's a big chill.
Former Prime Minister Miloš Zeman tried to have reporters from Respekt sentenced for defamation. And former TV reporter Jana Bobošíková was interrogated by police for asking "the wrong type of questions" in an interview program.
Czech defamation law serves only the interests of the powerful. Such law becomes a sword rather than a shield to protect one's reputation. Assessing Czech free speech rights, the Helsinki Commission opined, "Use of criminal sanctions to punish defamation chills free speech, is subject to abuse (through the use of state law enforcement agents) and is inconsistent with international norms."
British libel law is plaintiff-friendly, making it much easier to win defamation lawsuits by, among other advantages, shifting the burden to those accused of defamation to prove the truth of the disputed statement. So people have flocked to the British courts to file libel lawsuits - hence the term "libel tourism."
Forum-shopping allows plaintiffs to bring lawsuits where the substantive law is most favorable to them, not where there is the strongest connection to the dispute. In one well-publicized case, a Saudi banker was awarded large monetary damages against an author who alleged that the banker financed terrorism. The only connection to Britain was that 23 purchases of the book Funding Evil arrived in England via Internet purchases.
Publishers now seldom publish in Britain. But if just one person buys their book in Britain via Amazon, then British courts may assert jurisdiction over defamation claims against the authors and publishers. In August 2008, the UN Human Rights Committee joined PEN in criticizing British libel law for being so tilted against writers that it discourages speech on important matters of public interest.
Free speech is essential for societal progress. Silence coerced by law yields ignorance. At a time when free-speech rights are under threat by governments waging wars, and corporations assuming greater control over media outlets and vigorously exercising their powers to shape the marketplace of information and ideas, we must be our own watchdogs. So don't be afraid of Entropa, or anything else. Look, see, listen, reflect, think and speak up.
- The author, a writer and constitutional law scholar, teaches media law and ethics, reason and argument at the University of New York in Prague.
Bill Cohn can be reached at
- Within any 'country' 'borders' the institutions and establishment will go about ...
- I ask myself honestly, what did I do to help someone; what did I do to improve as ...
- "Publishers now seldom publish in Britain." A bizarre statement in an otherwise ...
- And what that "biggest historical lie" might be? The degree of the "Truth or ...
- I've got some news for you: the only reason open debate of the biggest historical ...