Hate Speech, Indecency / Obscenity
R.A.V. v. City of St. Paul
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The First Collegium of the Constitutional Court of Georgia held that the criminalization of offensive expressions targeting judges was constitutional. An activist, facing separate charges, was convicted of contempt of court for having used obscene language about a judge outside the courtroom of his initial trial. The Court stressed the significance of preserving the judiciary’s authority and reputation, maintaining judicial independence and impartiality, and upholding public trust in the justice system. While acknowledging the importance of freedom of speech, it underlined that this freedom is not absolute and may be subject to limitations, particularly when they align with the principle of proportionality. The Court recognized the unique status of the judges and emphasized the restriction’s necessity to prevent harm to judges and the justice system. A dissenting opinion expressed concerns about the precedence of public interests over freedom of expression and the potential chilling effect of the restriction.
On June 11, 2018, a hearing involving Zviad Kuprava, then the head of the Georgian non-governmental organization Law Enforcement Reform Center, was in progress. During a break, Kuprava exited the courtroom and proceeded to the court’s dining hall which was located within the same building. After a period of time, personnel from the Ministry of Internal Affairs approached him, urging his return to the courtroom. Kuprava declined to comply with their request, citing his right to enjoy his break. In the course of this exchange, he used profane language to refer to the presiding judge in his case – he expressed that he did not give a f*** to the judge – and as a result, legal proceedings were initiated against him.
On August 1, 2019, he was found guilty of contempt of court due to his disrespectful comments about the judge, under Article 366.2 of the Criminal Code of Georgia which states: “The contempt of court manifested in the insult… of the judge… shall be punished by a fine or corrective labor from one to two years, or by imprisonment for a term of up to two years.” Subsequently, he was sentenced to nine months imprisonment.
Kuprava submitted a constitutional complaint, arguing that Article 366.2 was unconstitutional and that the violation of his freedom of expression was unjustified. The Georgian Parliament opposed the complaint.
On July 27, 2023 , the First Collegium of the Constitutional Court of Georgia delivered the judgment of the Constitutional Court. There was a majority decision, and one dissenting decision. The main issue before the court was whether safeguarding the authority and reputation of the justice system and preserving the independence and impartiality of the judiciary justifies the criminalization of offensive expressions targeting judges.
Kuprava argued that if an expression occurs outside of a court hearing, and so did cause disruption to its proceedings or the overall effective functioning of justice, it should not be punishable and that is it, therefore, disproportionate to restrict freedom of speech in such instances. He submitted that the criminal provision fails to meet the criterion of legal certainty, given the difficulty in defining the terms “contempt” and “insult,” and distinguishing this contested law from an administrative offense phrased similarly in the national legislation.
Parliament argued that safeguarding the proper operation of justice and the authority and reputation of the judiciary serves a public interest: all these together are connected to the importance of public trust towards judiciary, which needs preservation. It added that, due to the distinct position judges occupy, their involvement in public discourse is limited, and so they need heightened protection compared to other public servants. This meant that the contested provision’s legitimate aim rests in protecting the reputation of the judiciary and individual judges, which justifies the limitation of freedom of speech in cases where insults are directed toward judges, even outside the court room or court building.
The Court discussed the scope of protection of freedom of speech. Drawing on prior legal precedents and case law of the European Court of Human Rights (ECtHR), the Court underscored the paramount importance of protecting this fundamental right, even when it might “offend, shock, or disturb the State or any sector of the population.” It acknowledged that freedom of speech is not an absolute right and could be subject to limitations if it aligns with the provisions outlined in Article 17.5 of the Constitution of Georgia, particularly the principle of proportionality. The Court placed special emphasis on upholding the rights of others and preserving the impartiality and independence of the judiciary, which the Constitution of Georgia explicitly designates as public interests and legitimate aims. It also highlighted that the “Authority of Judiciary” is explicitly stated in Article 10.2 of the European Convention on Human Rights.
Addressing broader standards and the extent of protection, the Court noted that vulgar, offensive, and unethical language receives less protection compared to other forms of expression, but that critique aimed at governmental entities enjoys a higher degree of safeguarding. It added that if criticisms aimed at government bodies are expressed in derogatory terms the likelihood of such expressions being protected decreases. The Court emphasized that, when evaluating judicial entities, it’s essential to recognize that – unlike executive and legislative bodies – judicial bodies lack the ability to participate in public discourse, and their ability to respond to criticism is inherently restricted.
The Court explained that Kuprava’s argument related only to cases where expression (or conduct) did not occur during a court hearing and did not impede the proper functioning of justice or court proceedings. The Court noted that its authority was limited solely to such instances and did not extend to reviewing any other scenarios. It added that it did not have the jurisdiction to assess the proportionality of sanctions, given that Kuprava did not challenge them; the primary concern revolved around the criminalization of specific behavior or expression, rather than the constitutionality of criminal penalties. [para. 16] The Court stated that it would refrain from scrutinizing behaviors or expressions occurring outside a court building, and that the prevailing case law of the Supreme Court of Georgia did not support the notion that the contested provision could be applied to such situations, and Kuprava could not provide substantiating evidence to reinforce this idea.
Applying the proportionality test, the Court scrutinized the constitutionality of the disputed provision, and specifically the legitimacy of its aims and the effectiveness, necessity, and proportionality in a narrow sense in order to achieve those aims. Citing the Constitution of Georgia, the European Convention, and relevant ECtHR case law, the Court noted that safeguarding the authority and public trust in the judiciary as an institution, along with the individual judges, upholding the independence, impartiality, and efficient functioning of the judiciary are valuable public interests protected under the Constitution. The Court held that it is permissible to restrict freedom of expression when it conflicts with these constitutional values.
The Court held that the restriction on freedom of expression was logically connected to the legitimate aims and contributed to preventing potential harm that the prohibited behavior or expression could cause to individual judges and, consequently, to the justice system as a whole. It emphasized the importance of maintaining public trust through the criminalization of disrespectful actions against the court, and the status of judges, who are not well-positioned to respond to such actions and are obligated to tolerate them. In reference to the necessity of the restriction, the Court stated that it is not within the Court’s purview to determine the most appropriate or effective measure to achieve the legitimate aim; it suffices to assess that the criminalization of the disputed actions, in principle, does not contravene the constitutional requirements for restricting freedom of expression.
In weighing conflicting interests and considering proportionality in a narrow sense, the Court stressed that individuals, when exercising their freedom of expression, carry obligations and responsibilities to avoid conflicts with other legitimate interests and potential harm that may result from their expression. Such duties are breached when using obscene or insulting language or other expressions, and the harm is heightened when it involves judges. In such situations, the balance tilts in favor of the public interest.
Accordingly, the Court held that the disputed law was in compliance with the Constitution of Georgia. The Court did not permit the restriction of publicly criticizing the judiciary; its decision exclusively pertains to cases involving obscene or insulting expressions.
Judge Giorgi Kverenchkhiladze, in his dissenting opinion, stated that he believed that the majority had deviated from the requirements of constitutional review as it should have separately assessed both legitimate aims and concluded that the restriction was not necessary, meaning it was not the least restrictive measure for safeguarding the effective execution of justice.
Judge Kverenchkhiladze, in his dissenting opinion, stated that the protection of the authority and reputation of the judiciary should not take precedence over the protection of freedom of expression. He believed that the majority disregarded the chilling effect produced by the restriction and emphasized that criminalizing offensive expressions against the judiciary and judges does not foster public trust but rather amplifies nihilism and distrust towards the system. He stated that it is an illusion to think that fear can generate trust and underscored that tolerating offensive speech is not a sign of societal weakness but, instead, an indication of its strength.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The concerns regarding the judgment are already articulated in Judge Kverenchkhiladze’s dissenting opinion. However, a couple of additional issues should also be considered.
Firstly, the Court emphasized that the boundaries of acceptable criticism toward judges, similar to public servants, are broader than those for private individuals, but it overlooked the fact that even for the protection of private individuals, national legislation typically imposes civil liability rather than criminalization. This discrepancy raises questions about the judgment’s consistency.
Secondly, the Court set a concerning precedent by suggesting that, when evaluating the necessity of a restriction, it doesn’t have the mandate to assess the effectiveness of the measure, but that it was sufficient to establish that the criminalization of a specific action is constitutionally permissible. This approach contradicts the Court’s previous case law, which consistently examined whether the limitation was the least restrictive means necessary to achieve the legitimate aim.
Lastly, the Court overstepped its mandate when discussing the scope of protected speech in asserting that hate speech and racial propaganda, for example, are not protected by freedom of expression, presenting these as well-established and indisputable standards. However, content-based restrictions and defining the boundaries of protected speech require careful evaluation and are heavily context-dependent. Therefore, the Court’s decision to dig in these broader issues, extending beyond the immediate dispute, appears careless.
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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