Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
Closed Contracts Expression
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The European Court of Human Rights held that Stephen Gough’s arrest, prosecution, conviction, and imprisonment did not violate Articles 10 and 8, which provide his rights to freedom of expression and his private life respectively. Stephen Gough had been arrested over 30 times for public nudity.
Stephen Gough, nicknamed “the Naked Rambler,” walked nude from Land’s End in England to John O’Groats in Scotland. Between 2003 and 2012, Gough was arrested over thirty times in Scotland for public nudity, convicted of a number of occasions for breaching the peace, and convicted of contempt of court for his refusal to dress for his court appearances. Gough was often rearrested as he left prison and, between May 2006 and October 2012, he had spent seven days as a free man. In addition, between 2003 and 2012, he spent a total of seven years behind bars in Scotland after he was convicted of public nudity.
Stephen Gough argued that public nudity was a form of expression protected by Article 10. The European Court of Human Rights accepted Gough’s argument and it stated that the “expression” had been construed to cover various different forms of expression that intended to convey an idea or information. The Court stated that Gough’s decision not to wear clothes was a direct expression of his views on the human body.
The Court accepted that the measures taken were prescribed by the law, but had some difficulty in defining the relevant legitimate aim. It noted that precise nature of the measure aimed to prevent crime and disorder were not clearly identified. The Court also stated that the measures were aimed at preventing Gough from committing a breach of the peace and the broader aim of ensuring respect for the law.
The Court noted that the exercise of freedom of expression carried with it duties and responsibilities, which may include an obligation to avoid expressions, that are very offensive to others. Thus, these expressions infringe upon others and do not contribute to any form of public debate capable of furthering progress in human affairs. The Court did say that the State needed to respect the views of minorities by tolerating conduct that does not go against democratic values.
The Court concluded that the Gough’s case was troubling because his actions resulted in him to spending a substantial period of time behind bars for relatively trivial offenses. The Court also stated that Gough knew that his conduct was contrary to the standards of public behavior in any modern democratic society and that this conduct may be offensive to unwarned members of the public. As a result, the Court held that the measures taken were necessary in a democratic society and Article 10 does not enable individuals to impose their antisocial behavior on others and then claim that their freedom of expression is being infringed when the State attempts to protect the public from the nuisance. The Court also doubted that Article 8 applied and, if it did, the Court believe it would be violated, for the reasons dealt with in Article 10.
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