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 nature of a symbol, because of its past use or understanding of the public, may have serious effects on the usability of the symbol and hence freedom of expression. The margin of appreciation is of upmost importance in the local courts’ determination of what constitutes “offensive.”
Mr. Attila Vajnai (the applicant), was the Vice-President of the Workers’ Party, a registered left-wing political party. He was a speaker at a lawful demonstration in central Budapest. The speaker site was at the former location of a statue of Karl Marx, which had been removed by the authorities. During the speech, on his jacket, he wore a five-pointed red star: a symbol of the international workers’ movement. A police patrol called on the applicant to remove the star in accordance with section 269/B(1) of the Criminal Code, which he did.
On 11 March 2004, the Pest Central District Court convicted the applicant of the offense of using a totalitarian symbol. However, the courts refrained from imposing a sanction for a probationary period of one year. On 16 November 2005, the Budapest regional Court upheld the applicant’s conviction.
The applicant complained under Article 10 of the European Convention on Human Rights (“ECHR” or “Convention”) that his prosecution for having worn the red star infringed his right to Freedom of Expression.
Since, in the Government’s view, the applicant’s red star symbolized totalitarian ideas and practices directed against the Convention’s underlying values, they asserted that by wearing the star – conduct disdainful to victims of the former communist regime – meant justification of a policy aimed at the destruction of the rights and freedoms under the Convention. Although the cases cited above concerned the expression of racist and anti-Semitic ideas pertaining to the Nazi totalitarian ideology, the Government submitted that all ideologies of a totalitarian nature (including, for example, bolshevism symbolized by the red star) should be treated on an equal footing, and their expression should thus be removed from the protection of Article 10. (Para. 22)
2. Merits – Has there been an interference?
The Court considers that the criminal sanction in question constituted an interference with the applicant’s rights enshrined in Article 10 § 1 of the Convention. (Para 29)
3. Prescribed by law
Uncontested. (Para 30)
4. Pursues a legitimate aim
The Court held that the interference pursued the legitimate aims of the prevention of disorder and the protection of the rights of others. (Para 34)
5. Necessary in a democratic society
The nature of the star was argued at length here. The applicant argued that there was a profound difference between Fascist and Communist ideologies and that the red star could not be exclusively associated with ‘Communist dictatorship’ (Para 35). Unlike fascist propaganda, the promotion of Communism had not been outlawed in international law, and the red star was understood to represent various left-wing movements in most European states. However, Hungary was the only Contracting State in which its public display was a criminal offense (Para 38). Finally, the applicant stressed that the Government had not demonstrated the existence of a “pressing social need” for the restrictions, as it was unlikely to undermine the stability of Hungary’s pluralistic democracy (Para 39).
In reply, the Government submitted that, in Hungary, the red star was not only the symbol of the international workers’ movement, as alleged by the applicant. Recent history in Hungary had altered its meaning to symbolize a totalitarian regime characterized by ideologies and practices which had justified mass violations of human rights and the violent seizure of power. To wear this symbol in public amounted to identification with, and the intention to propagate, the ideologies of a totalitarian nature which characterized communist dictatorships (Para 40). The Government asserted that the legitimate aims which it identified could not be achieved by measures less severe than those of the criminal law, which had been a proportionate response (Para 41). The Government also submitted that the offense received the least severe sanction in Hungarian penal law, and that the applicant had been granted probation.
At the outset, the Court noted that two decades had elapsed since Hungary’s transition to pluralism and that the country is now a stable democracy (Para 49). The Court identified that a blanket ban on symbols which have multiple meanings may also restrict their use in contexts in which no restriction would be justification (Para 51). In the Court’s view, the red star cannot be understood as representing exclusively Communist totalitarian rule, as it also symbolizes the international workers’ movement and other lawful political parties (Para 52). The Court held that the Government had not shown that wearing the red star exclusively means identification with totalitarian ideas, especially considering the fact that the applicant did so at a lawfully organized demonstration as vice-president of a registered, left-wing, political party, with no known intention of defying the rule of law (Para 53). Consequently, the Court asserted that careful examination of the context is necessary to distinguish between expression which is shocking and offensive and that which forfeits protection under Article 10. Consequently the Court considered the ban to be too broad in view of the multiple meanings of the red star. The ban was considered to encompass activities and ideas which are protected by Article 10 and that there was no satisfactory way to sever the different meanings of the symbol. Moreover even if such distinctions had existed, uncertainties may have entailed a chilling effect on freedom of expression and self-censorship.
The Court observed that the Government had not referred to any instance in which even a remote danger of disorder had been triggered by the public display of a red star. In the Court’s view, the containment of a mere speculative danger, for the protection of democracy, cannot be seen as a “pressing social need.” In any event, there are a number of offenses sanctioned by Hungarian law which aim to suppress public disturbances, and Section 269/B of the Hungarian Criminal Code does not require proof that the actual display of the symbol amounted to totalitarian propaganda. This feature of the prohibition corroborated the finding that it is unacceptably broad.
The Court accepted that the display of the red star, which was ubiquitous during Communist rule in Hungary, may create unease amongst past victims and their families (Para 57). However, the Court commented that given the assurances which Hungary provided to the victims of Communism, such emotions cannot be regarded as rational fears. The Court stated that, a legal system which applies restrictions on human rights in order to satisfy the dictates of public feeling cannot be regarded as meeting the pressing social needs of a democratic society, since a democratic society must remain reasonable in its judgement.
The Court held that the applicant’s conviction could not be considered a response to a “pressing social need.” (Para 58) Furthermore, the Court did not consider the sanction imposed to be proportionate to the legitimate aim pursued. Thus, the Court unanimously held that the interference violated Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
A delicate balance must be formed between a symbol and its history, in connection to where and when a symbol has re-appeared, and the context behind a symbol. The margin of appreciation of local courts is necessary in a democratic society to determine whether the use of the symbol should be allowed or disallowed.
This case expands expression by invalidating the domestic courts’ restriction on the expression of a political viewpoint through the use of a symbol.
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.
The ECtHR’s decision puts States Parties on notice that restrictions on the display of a symbol representing a political viewpoint, even if offensive to victims of that viewpoint, cannot be justified as a “pressing social need.”
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