Free to hate? Anti-Gypsyism in 21st Century Europe*
21 December 2015
Debates about free speech and hate speech often gravitate around issues of content and context. The context of anti-Gypsyism in 21st Century Europe and the connections between hateful words and heinous deeds, pose profound and troubling questions for champions of free speech and opponents of content-based bans.
It is vitally important to defend free speech, to hold the line against illiberal authoritarians, and to be vigilant when those who govern purport to know what is best for us, the governed, when it comes to freedom of expression.
But when it comes to forms of hate speech, I cannot muster the same enthusiasm evinced in Beatrice Evelyn Hall’s phrase (usually misattributed to Voltaire) “I disapprove of what you say, but I will defend to the death your right to say it.”
Quite frankly, when I read what the haters write, when I have occasion to scan the vile, racist and misogynist online commentary against Roma and Travellers in Europe, I wouldn’t cross the road to defend their freedom of expression.
However, when I hear calls for more bans and further restrictions on what citizens can or cannot say, I think it prudent to hold back, consider the consequences, and contemplate other options when it comes to fight-back against racists and bigots who ‘love to hate’.
This is not the plea of a ‘free-speech fundamentalist.’ In basic terms, the challenge is to reconcile Article 19 of the International Covenant on Civil and Political Rights (ICCPR) which guarantees freedom of expression, with Article 20(2) which sets limitations on freedom of expression and requires States to “prohibit” certain forms of speech which are intended to sow hatred.
The NGO ARTICLE 19, concerned about vague definitions of what constitutes hate speech, and overly broad prohibitions in national laws, proposed a set of recommendations and a six-part incitement test that can be used to determine whether certain speech reaches the threshold of incitement to hatred. When it comes to anti-Gypsyism context matters, and in seeking to establish clear boundaries between permissible and impermissible forms of expression, ARTICLE 19 describes context in the following terms:
“The context may be characterized by frequent acts of violence against individuals or groups based on prohibited grounds; regular and frequently negative media reports against/on particular groups; violent conflicts where groups or the police oppose other groups; reports raising levels of insecurity and unrest within the population.”
This is a characterization of the ‘context’ that is familiar to many Roma citizens across Europe. By way of example, two recent reports published by the Council of Europe in October paint a frankly dismaying picture of persistent segregation of Roma in schools and housing, worrying levels of anti-Roma hate speech and hate crime, numerous reports of police brutality, and a general climate of intolerance among majority populations towards Roma in both the Czech Republic and Slovakia. And we need little reminding that what goes on in the Czech and Slovak lands holds true in many other states, for the abuses documented are all too commonplace across Europe.
In terms of context, the torrent of disparaging, discriminatory and hateful speech targeting Roma fosters and sustains a broad consensus that “Gypsies get what they deserve.” Beyond the hard core of haters, such speech contaminates the public sphere in a manner that inhibits any sense of solidarity or empathy; and the cumulative effect is that majority populations fail to recognize discriminatory treatment of Roma and other minority groups for what it is - unreconstructed racism.
Given the context has become so charged, the political question then is: How best to react to the content of hate speech?
In terms of how best to react to such manifestations in a representative democracy, there are two important considerations if one is to shift from the realm of moral condemnation to legal regulation: first, the need to define precisely what constitutes hate speech; and second, the need to insist on the plain fact that there remains a crucial distinction between saying something and doing it.
Among those who would ban, and those who would not, there is agreement that there is a need for precision when it comes to defining hate speech. As Bhikhu Parekh says: “Hate speech is a distinct kind of speech and much conceptual confusion is created-and the net of prohibition unduly widened-by subsuming all forms of uncivil and hurtful speech around it.”
Parekh provides what he terms a reasonably precise meaning, and ascribes three essential features to hate speech: (1) that it is directed against a specified or easily identifiable group of individuals based on an arbitrary and normatively irrelevant feature; (2) it stigmatizes the target group by ascribing to it highly undesirable qualities; (3) the target group is viewed as an undesirable presence and a legitimate object of hostility to be expelled, exterminated or subjected to discrimination.
Much of the anti-Roma hate speech that is common currency in 21st-century Europe falls squarely within the broad parameters of Parekh's three essential features. Having set out what is distinctive about hate speech to prevent the net of prohibition being “unduly widened,” Parekh then proceeds to dismiss notions of imminent danger, stretching the net to include speech which may not result in violence, for what matters is content which should be judged by its “long-term effects” on a targeted group rather than its immediate consequences. Because, he asserts that:
“If anything can be said about a group of persons with impunity, anything can also be done to it. This is because if a group can be treated with contempt, stripped of dignity, dehumanized, treated as belonging to an inferior species, and a moral climate is created in which harm done to it is seen as right and proper and does not arouse a sense of outrage.”
For Europe’s Roma, there is no doubt that they have been treated with contempt, dehumanized, and that harm done to them does not arouse a sense of outrage; there is no doubt that disparaging, inflammatory and hateful anti-Roma speech has coarsened public sensibility and strikes at the core of notions of shared belonging.
But it simply does not follow that “if anything can be said about a group with impunity, anything can also be done to it.” This is not to diminish the gravity of the situation facing Roma, but merely to insist that in real life, in actually existing democracies, whatever the connection, there still remains a vital distinction between the word and the deed.
Parekh maintains that free speech flourishes and is indeed only possible under some conditions, such as some degree of political and social stability, inter-communal harmony, and a culture of civility. He asserts that the “nervous society” lacks both the confidence to live with dissent and vigorous debate and the ability to cope with their consequences.
This begs the obvious question: Who decides when citizens can cope with dissent, vigorous debate, and its consequences? We all inhabit nervous, jittery societies, where the liberal content of democracy frequently comes under threat.
Who would sensibly cede even more powers to government to circumscribe freedom of expression in a state such as Hungary, where the ruling party has captured key institutions, weakened checks and dispensed with balances?
Who would sensibly cede more power to government in circumstances where the Fourth Amendment to the Fundamental Law of Hungary now states that the right to freedom of speech “may not be exercised with the aim of violating the dignity of the Hungarian nation”?
The appropriate political response to anti-Roma hate speech, in a region with a vivid and living memory of dictatorship and routinized suppression of free speech, is not more prohibition.
Kenan Malik asserts that when it comes to what people can and cannot say, we must distinguish between content-based regulation and effects-based regulation and permit the prohibition only of speech that creates imminent danger. Malik opposes content bans, both as a matter of principle (‘free speech for everyone except bigots is not free speech at all’) and with a mind to the practical impact of such bans.
When it comes to combating anti-Gypsyism, to combating the words, deeds and institutional practices that denigrate and dehumanize our Roma fellow citizens in the 21st Century; when it comes to addressing the hurt and harm caused, it’s the practical impact that counts.
States must find a way to meet their democratic obligations to protect the fundamental rights of all citizens, and counter all forms of direct and indirect discrimination while at the same time protecting freedom of expression.
As ARTICLE 19 suggests, efforts to fight the negative consequences of incitement must be part of a comprehensive policy to challenge prejudice; and that recourse to restrictive legal mechanisms to limit the right to freedom of expression taken only where it is strictly necessary and proportionate. There is a need to ensure that incitement to hatred is a narrowly confined offence to which states do not resort on too frequent a basis.
This would also guard against arbitrary abuse. For, as Nadine Strossen says, there is something of a conundrum in Central and Eastern Europe in that those who call for more restriction, more banning of hate speech against Roma, are in fact calling for more discretionary powers to be handed to states and societies they hold to be inherently racist and discriminatory.1
Free speech was essential for all civil rights struggles in the past and remains essential for minority group members who are challenging segregation and discrimination now and in the future. This is especially true when those in struggle are facing down governments who maintain the structures of injustice that blight daily life and deny dignity to Roma and other minorities.
As Theodore Shaw states: “If we lose the rights to free speech, the ground on which we stand with respect to other civil and human rights becomes quicksand.” With regards to hate speech, Shaw’s is the classic response that the most effective antidote is more speech, and that counter-speech works best when it’s not only the targeted minority that speaks up.2
I say an atheist amen to that. We all need to speak up more loudly, more forcefully and more often and in solidarity with others. Especially in these times when hate’s political harvest remains bountiful, and minorities are too often at the receiving end of racist abuse. Addressing the hurt and harm done to those directly targeted must remain at the heart of any effective strategy to counter the structures that reproduce racist injustice as well as combating the words and deeds of those ‘who love to hate.’
*This text is based on a chapter from Molnar, Peter (ed.) Free Speech and Censorship Around the Globe. Budapest: Central European University Press, 2015.
- "Interview with Nadine Strossen,” in Michael Herz and Peter Molnar, eds., The Content and Context of Hate Speech: Rethinking Regulation and Responses (Cambridge: Cambridge University Press, 2012).
- “Interview with Theodore Shaw,” Ibid.