Content Regulation / Censorship, Freedom of Association and Assembly / Protests, Hate Speech, Political Expression, Public Order
Brandenburg v. Ohio
Closed Expands Expression
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The forum of the televised program could have a huge impact on whether expression is protected under article 10 of the European Convention on Human Rights (ECHR). When presented in a debate with other ideas being argued, offensive speech is less likely to be considered hate speech, even with the use of a derogatory term.
Mr. Gündüz is a retired laborer, and a self-proclaimed member of an Islamist sect. In his capacity as the leader of the sect Tarikat Aczmendi, he appeared in a television program, Ceviz Kabuğu (“Nutshell”), which was broadcast live on an independent channel, HBB.
At the televised debate, the applicant made very critical statements concerning democracy. He described contemporary secular institutions as “impious” and openly called for Sharia law.
On October 5, 1995, an indictment was issued against the applicant because there was a belief that article 312 §§ 2 and 3 of the Criminal Code had been breached. The public prosecutor instituted criminal proceedings against the applicant. The grounds for the criminal proceedings were based on the fact that the applicant’s speech during the television program had incited people to hatred and hostility.
There was no dispute with regards to whether the interference was prescribed by law and/or if it pursued a legitimate aim. The only question that the Court addressed was whether the applicant’s speech was “necessary in a democratic society.”
First, the Court reiterated the principle found in Handyside v. UK, namely, that freedom of expression is applicable not only to “information” or “ideas” that are favorably received, but also to those that offend, shock, or disturb. Second, the Court emphasized the idea that while article 10 of the ECHR allows for freedom of expression, in the context of religious opinions and beliefs, there is also an “obligation to avoid as far as possible expressions that are gratuitously offensive to others” because such expression does not “contribute to any form of public debate capable of furthering progress in human affairs.” Third, the Court also noted, referencing Murphy v. Ireland, the importance of the context that the expression is being made in.
Applying these principles to the facts, the Court held that the applicant had represented the extremist ideas of his sect, an idea to which the public was already familiar with. He had taken part in an animated public discussion. The debate had many other participants representing the ideals of their respective parties. The debate itself sought to present the sect and its unorthodox views to the public, including the notion that democratic values were incompatible with its concept of Islam. This exposure afforded to the sects would have been unavailable to the public otherwise. Furthermore, the topic of discussion had been the subject of widespread debate in the Turkish media and concerned a problem of general interest. The Court, thus, held that Mr. Gündüz’s remarks could not be regarded as a call to violence or as “hate speech” based on religious intolerance. Rather, the Court reasoned that there had been a violation of his article 10 rights.
A dissenting opinion by Judge Türmen was offered, stating that the words used by the applicant were a serious insult, and cannot in any sense be seen as anything else except hate speech. The judge used the application of the word’s meaning and the cultural implications of it in order to reason that that this was hate speech.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The forum in which the ideas were expressed did have a pressing social need because public was interested in the ideas of Mr. Gündüz’s sect. The debate had a suitable format for ideas to be introduced and compared to the ideas of other parties. This format allowed the viewer to have a more comprehensive idea about the various parties represented. The use of the derogatory term may have caused issues, as clearly seen through the 6 to 1 voting by the judges. However, the incitement may not be clearly linked towards hatred, but may be more linked towards less support for the user of the word.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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