Content Regulation / Censorship, Freedom of Association and Assembly / Protests, Hate Speech, Political Expression
Brandenburg v. Ohio
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The Constitutional Court of Chile declared the unconstitutionality of the sole article of a bill that codified the crime of incitement to violence contained in Bulletin No. 11.424-17. A group of parliamentarians requested that the bill be declared unconstitutional on the grounds that the incorporation of the crime of negationism (or denialism) in the text was against the Constitution, mainly articles 19 and 69. Negationism is conduct associated with the exaltation, justification, denial, or minimization of certain types of human rights abuses. The Court found that the bill was unconstitutional inasmuch as it infringed upon the freedom to express an opinion without prior censorship, it wasn’t approved with the qualified quorum that was required and the incorporation of the crime of negationism did not relate to the main ideas of the original draft law, as required by the Constitution.
On September 4, 2017, a bill that typifies the crime of incitement to violence entered the process of being passed in the Chamber of Deputies. The bill was aimed at sanctioning actions that consist of incitement to hatred of such a degree that they produce an act of violence or any other similar illegal action against groups of people or members of an association.
Subsequently, Representative Carmen Hertz, formulated statement No. 14, which incorporated into the text of the bill a new paragraph 7 of Title III of Book II of the Criminal Code, entitled “Negationism and other crimes against the honor and dignity of persons,” and a new Article 161-E, which sought to establish the criminal rule challenged by the injunction.
For this reason, a group of deputies representing more than a quarter of the current members of the Chamber inferred a requirement of unconstitutionality, in accordance with Article 93 of the Constitution, with respect to the entire sole article of the bill that “typifies the crime of incitement to violence,” contained in Bulletin No. 11.424-17.
The parliamentarians argued that paragraph 2 of the sole article of the bill should have been considered and voted on as a qualified quorum, that it was approved on the basis of a parliamentary indication that had no relation to the matrix ideas of the original project and that it violated the guarantee of freedom of opinion contained in Art.19 of the Constitution.
On November 19th, 2020 the Constitutional Court delivered this opinion. The main issue before the Court was whether the criminalization of negationism was incompatible with the constitutionally protected right to freedom of expression and opinion.
In their request, the representatives admitted that freedom of opinion can be limited, especially when its abuse results in serious attacks on the honor, privacy and dignity of individuals. However, they stated that such limits must be proportional to the conduct sanctioned and must always safeguard the non-affection of the right in its essence, in accordance with the provisions of Art. 19 No. 26 of the Constitution.
They also noted that a norm that sanctions this type of conduct cannot establish arbitrary differences. If what is sought to protect is the honor, human rights, and psychological integrity of those who have been victims of human rights violations, no capricious difference can be established based on the intention to establish a sort of “historical truth”. Thus conceived, the law should provide equal protection with respect to any approval, justification or denial of a human rights violation, regardless of where and when it occurred.
Also, the requesting parliamentarians raised a formal defect of constitutionality of the bill identified in Bulletin No. 11,424-17, arguing that paragraph 2 of Article 1 of the bill should have been considered by a qualified quorum, in accordance with the provisions of Article 19, paragraph 12, first subparagraph, of the Constitution, since laws typifying crimes that generate criminal liability due to the exercise of freedom of opinion require a qualified quorum for their approval.
Moreover, they argued that it was approved on the basis of a parliamentary indication that had no relation to the matrix ideas of the original project as required by Article 69 of the Constitution.
On the other side, Representative Hertz contextualized the reasons for legislating on the so-called crime of negationism by creating a tool to combat the denial of the existence of crimes that according to international human rights law constitute crimes against humanity.
She argued that, at the global level, one of the main instruments that have been used to combat denialism has been the criminalization of conduct associated with the exaltation, justification, denial, or minimization of certain types of crimes. The aim, she argued, has been to respond to the spread of negationist phenomena and to ensure the responsible exercise of memory as a way to prevent a borderline event or a transgressive situation in social life from being repeated in the future.
Freedom of expression, she said, can in no way be used as an argument to justify or allow negationism.
The Constitutional Court began its analysis by examining whether the constitutional requirement of qualified quorum was met, and came to the conclusion that it was necessary to declare the formal unconstitutionality of numeral 2 of the sole article of the identified bill since it did not comply with the required quorum, in accordance with the provisions of articles 19 No. 12 and 66 of the Constitution of the Republic.
Then the Court examined the aspect of the objection of unconstitutionality where the petitioning parliamentarians stated that the indication introduced by Representative Hertz would violate Article 69 of the Constitution, given that the crime of negationism would totally exceed the main ideas of the bill that define the crime of incitement to violence.
In that regard, the Court stated the discourse of hate and incitement to violence had nothing to do with denialism, as can be seen in the UNHR Comm., General Comment No. 34. Therefore, the Tribunal held that the above mentioned indication did not comply with the constitutional requirement of being directly linked to the essential foundation of the bill.
The Court moved on to analyze whether the criminalization of negationism was incompatible with Article 19 No. 12 of the Constitution. The Court held that this provision ensures that the State safeguards the rational dialogue that makes possible the full exercise of these freedoms, without prior censorship, even if they are intended to challenge an established truth. The Tribunal stated that these freedoms of expression make it possible to communicate what results from the intellectual freedom to doubt and think, without anyone having to fear any condemnation for publicly questioning a hegemonic discourse or a certain established paradigm.
The Court stressed that responsibilities can only arise ex post to the effective exercise of such freedoms, and not in advance, so that by criminalizing mere opinions a monopoly on truth can be imposed. It is therefore more appropriate, under the Constitution, to sanction, on a case-by-case basis, any abuse or infringement of this broad freedom to express an opinion, rather than to legally exclude an entire range of opinions, in cases where they are deemed to constitute a true apology for the crime or a call to commit genocide or crimes against humanity.
The Constitutional Court held that the current Constitution guarantees that all ideas – even the most irritating, adverse or surprising ones – can be externalized because this allows for debate, exchange of views, free criticism, scientific research, academic freedom and dialogue leading to an informed public opinion that is essential for the development of constitutional democracy.
It considered that the freedom to express an opinion that is guaranteed in the Constitution is infringed, by incorporating a criminal type that risks simply pursuing ideas, judgments, or assessments whose controversy or even reproach or illegality may be equally sanctioned at the legal level in other venues, but which, by attributing it a criminal nature, affects freedom of expression which cannot be conditioned.
Therefore, the Court concluded that the bill was contrary to what is assured in Article 19 No. 12 of the Constitution, inasmuch as it infringes upon the freedom to express an opinion without prior censorship.
The Concurring Opinion of Justices Aróstica Maldonado y Vásquez Márquez and Letelier Aguilar agreed with the main opinion ruling but did not support the determinations established in the considerandos 1 through 10. They also considered that the article in question was, in essence, constitutional and unconstitutional. According to the dissenting opinion, the constitutionality of the Bill relied on the fact that the Constitution establishes a specific set of quorum criteria to distinguish different types of laws. The dissenting opinion considered that given the nature of the alleged norm relied upon a matter within the scope of an organic law must protect, they deemed it must be regarded as such. However, since Congress did not respect the quorum criteria specifically established for organic laws, hence the unconstitutionality lies in the violation of procedural rules established by the Constitution rather than in the content of the provision itself.
The Dissenting Opinion of Justices García Pino, Romero Guzmán, Pozo Silva, and Pica Flores stated that the criteria behind their dissenting opinion were strictly linked to the formal dimensions of the vice concerning the infringement of article 69 of the Constitution. Their assertions derive from the consideration that the legal void established by the decision was non-existent. They considered the inclusion of the crime of negationism into the Bill -by typifying the crime of incitement to violence by hate speech- does not depart from the initial scope of the Bill. According to the concurring opinion, one of the main objectives established in the legal initiative was to create a uniform and inclusive regulation of information. Hence, the regulation of the boundaries of hate speech and negationism -both figures that limit freedom of expression-was indeed within the original project’s scope. Consequently, the dissenting opinion considered that the evolution of parliamentary deliberation was on matters close enough to be admissible within article 69 of the Constitution.
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