Governments Speak By Their Silence, Too: Part I

Published on August 3, 2016

Max Steuer: What is the underlying challenge for freedom of speech in Hungary that in your view affects the visible expressions of the situation, such as the governmental campaign against immigrants, other instances of anti-immigrant speech, anti-Roma speech and so on?

Péter Molnár: As a conceptual framework to answer this question, I would highlight how a working system of freedom of speech and of the press enables open, meaningful, productive and participatory public discourse about public matters in a country. Currently in Hungary, the government has imposed restrictions on freedom of speech and of the press in all sorts of ways which did not fully take these freedoms away, they exist. A fair assessment has to accept that to some extent even the current government respects freedom of speech and of the press. There are all sorts of publications that function relatively freely, relatively in the sense that access to government advertisement, or advertisement from companies which are close to, or want to be a partner for the government depends on the media outlet’s relations with the government.

On the other hand, a whole set of restrictions harms even the relatively freely working segments of the press. They are restricted in their reach. Those parts of the press, including social media, where critical discourse about public matters is going on, are limited to some segments of the society. In other words, we can speak freely and critically about public matters, we just cannot reach the majority of the population. This happens also because what should be a public television and radio is largely government controlled. Instead of a public television or radio which would amplify all meaningful voices, it is silent about the critical voices.

So it is a tricky system, it is not black and white. Saying that freedom of speech and of the press does not exist in Hungary is a really loaded statement, I think it is not true, it would be true only by a definition that either we have hundred or zero percent of freedom of speech. If we do not use such an absolute definition, there is freedom of speech and of the press and access to information but they are restricted in various ways, including ways I just described. Those of us who exercise these rights, are restricted in certain rooms of the big house which should be overarching public discourse. In this way, public discourse and deliberative democracy as described by Robert Post, or Habermas is not possible. It leads to the situation where if the government decides either just cynically trying to capitalize on fears and existential uncertainties or by honestly making the mistake that immigrants are bad for the country and even refugees cannot be accepted—although it would be naïve to assume that the government is just confused—it can just sell such dangerous ideas which constitute effective government incitement to hatred to those parts of the public which cannot be reached by critical public discourse. And if those who cannot be reached by critical public discourse are the majority, then it can get really dangerous. This is the biggest underlying issue.

You mean, the limited ability to reach out to the citizens, the ‘closed doors’ in your open house metaphor?

Yes. An additional part of the problem is the limited freedom of information, contrary to the improvements of access to information in the global landscape. The Hungarian government recently introduced an amendment to access to information with which they are going to make claiming information very expensive. They impose a lot of fees on anybody who would claim information and it is largely in the hand of the government to say what will be the costs for a particular piece of information. From my personal experience with access to information, another problem that arises is placing the burden of proof on the claimant of the data, in the sense that they have to prove that the data exist, even if there are clear indicators that the data exist, is another huge restriction of access to information. 

Bearing on mind this underlying issue of the limited possibility for critical voices to reach out to the people, I did not mean to suggest that freedom of speech and of the press and access to information should be considered only as an instrumental value for enabling public discourse. Of course, they are individual rights for all of us as well. But they can be exercised in a fully participatory way only when the public discourse is not restricted in the way I described.

So far we talked about the (Hungarian) government as the actor with the capability to restrict freedom of speech. But each government is a speaker, too, and delivers some messages to the general public. What if the government with a huge influence on legal regulation of ‘hate speech’ becomes a ‘hate speaker’ itself? What can be done against such speech?

This depends on the context, I think. If the environment in a respective country is relatively tolerant and the society has a relatively strong immune system against incitement to hatred and prejudices and negative stereotypes, then even if as a strong virus the government starts to spur these poisonous ideas, hopefully it cannot create imminent danger.

But the context is often more inflammatory when the hateful speaker is the government, as the most powerful ‘public inciter to hatred’. Often such governmental speech is supported by ‘private inciters to hatred’. One of the questions about responses to ‘hate speech’ is whether international policies can help if in case of government incitement to hatred  the rest of the society, or in case of ‘private inciters’ the rest of the society and the government itself do not condemn such speech. When international organizations that are strong enough try to push a government towards ending the incitement or lack of government response to ‘hate speech’, there can be a hope that governments return to the suggested policies. But when ‘hate speech’ is government speech it is generally especially damaging.  .

In case if reactions from international organizations are not sufficient, and the government becomes an ‘institutionalized hate speaker’, can preventive measures to counter ‘hate speech’ such as art or education work if the government does not support them?

I think those of us who promote educational and preventive ideas and responses to ‘hate speech’ just have to be very imaginative and creative. We also need to listen to those who have prejudices and negative stereotypes—not in the sense of accepting their prejudiced ideas but to try to understand their mindset, get into some sort of dialogue in order to inspire them to think on their own as autonomous agents and realize that negative generalization about any group of people is a huge mistake and it is just so much better to be positive to each other whatever groups we may belong to. Such a listening attitude can also help creative artistic and other educational approaches. Then we can reach out to more people even if the government was not supportive or even would be hostile to our artistic and educational responses to ‘hate speech’.

It is also important to experiment with different ways to connect artistic, educational, legal and other responses to ‘hate speech’. In societies where non-legal responses work , legal responses have at least a much better chance to work than in societies where non-legal responses do not work, or are not backed with clear majority support. While the legal responses to ‘hate speech’ can also have an educational message, the artistic and other educational responses may reach hearts and minds more, even without any legal enforcement.

Now, in Hungary there are laws against ‘hate speech’ as well. In the recent years, several legal restrictions on freedom of speech have been introduced by the government, e.g. in prohibiting denial of the Holocaust and crimes of totalitarian regimes, and banning totalitarian symbols, a restriction reintroduced by the government after it had been declared as unconstitutional by the Hungarian Constitutional Court, and considered as a breach of freedom of expression by the ECtHR several times. Are they a challenge to freedom of speech or do they accompany other responses in a more or less proper way?

I think both the ban on totalitarian symbols and the denial law are exceptions. As opposed to some, I do not see them as a tendency towards more regulation in this particular field. There are lots of more instances of ‘hate speech’ which do not fall under these special categories. So these special restrictions are just exceptions[1] compared to the general rule of the imminent danger-based approach.  Until the general rule is not changed through the Parliament and upheld by the Constitutional Court, or judicial practice does not modify it significantly, I find these special categories as exceptions.

The strongest argument can be made for banning the denial of the Holocaust with the ever-lasting shadow of the Hungarian Holocaust. The counter-arguments are also strong, including the one that the society can reassure its commitment against racist and other prejudices and discrimination if it has to respond also to Holocaust denial in open debate. Also, how could we justify that while ‘kill Gypsies, or Jews’ can be written in a wall, if it is in a context where it does not create imminent danger, the swastika or a statement that ‘Holocaust, very importantly, including the Roma Holocaust, did not happen’ cannot be on that same wall. Those who support these exceptions think that the Holocaust and the Nazi and communist totalitarian regimes and the symbols of these regimes are such historical events which justify these exceptions. I see an argument there, but I think it is not convincing enough, the counterarguments are more powerful.

These two restrictions, the ban on totalitarian symbols and the denial law, are not turning the Hungarian approach to a generally content-based direction. The reason is that it does not change the general situation into one where all sorts of ugly and dangerous hateful views could not be expressed because they would be prosecuted. The general rule is that such expressions are not prosecuted, and very importantly, such speech is not prosecuted not only because there is no general content-based prohibition of such speech, but also because even speech which causes imminent danger of violence is usually not prosecuted and taken to criminal court.[2] Even many academics, other experts and NGOs who deal with the subject often do not properly identify which kind of speech in which context creates imminent danger.

Indeed, there is certainly a support for the exceptions argument, as well as the broader content-based approach, for instance the European Commission against Racism and Intolerance of the Council of Europe praises the exceptions and rather denounces the general rule, i.e. the lack of explicit content-based criminal restrictions in Hungary. In your view, are these exceptions better to be abolished for, for instance, achieving a more democratic and open exchange of ideas in the Millian sense?

Yes, I think so in case of the totalitarian symbols, and probably also in the case of the denials. The Millian argument is a powerful one in favour of abolishment of these restrictions. At the same time, we can think of the Holocaust survivors and all good hearted people who want to express solidarity with them and their families and friends. We all have been extremely deeply affected by the Holocaust. So, there is an argument to protect ourselves from the denials of the Holocaust. Also, Jeremy Waldron argues, that we may make a distinction between issues where the truth is at least largely settled, such as it is in case of the Holocaust, and issues which are part of an ongoing debate, such as the debate about immigration. (Such a distinction of course would not imply that we should not lead us to let any hateful anti-immigrant speech without response.) However, the Millian argument provides that the denials can, in a way, help to have the truth out there as a powerful response that counters them in a lively way. For many people who may be not conscious about the Holocaust, the debate provoked by the denial of the Holocaust can bring further arguments and facts to the fore which can help to convince them and understand the facts of the tragedy.

In case of the totalitarian symbols, I have less doubts for keeping the debate open. In one of my studies I described how an extreme right-wing demonstrator was once depicted on front page picture in the New York Times with a red-white striped flag but without the arrow cross symbol which is prohibited and cannot be used. I argued that this can be seen as an example of how the readers of the New York Times could not capture the full contextual meaning of the flag exactly because there was a restriction that the symbol could not be there. As a result, István Deák, a senior Hungarian historian at Columbia University had to write in a comment about the full context. Thus, in this case, even with Professor Deák’s valuable contribution, banning the symbol of a most ugly idea has reduced the readers’ understanding of the “hate speech” on the picture.

See Part II, in which Péter Molnár talks about the global and European picture of freedom of speech.

[1] Molnár’s reasoning here is opposed by some Hungarian scholars, see András Sajó, “Hate speech for hostile Hungarians”, E. Eur. Const. Rev. 3, No. 1 (1994): 82–87; András Koltay, Freedom of Speech - The Unreachable Mirage (CompLex Kiadó, 2013).

[2] Péter Molnár, “Responding to ‘Hate Speech’ with Art, Education and the Imminent Danger Test”, in The Content and Context of Hate Speech: Rethinking Regulation and Responses, ed. Michael Herz a Péter Molnár (Cambridge: Cambridge University Press, 2012), 183–97.