Round Three of the Trial of Lars Hedegaard
by Ann Snyder
In Denmark, sticks and stones may break your bones, but insulting words will get you fined — to the tune of 5,000 kroner (or about $1,000). Article 266(b) of the Danish penal code, one of the more sweeping of the "hate speech" provisions, criminalizes, among other things, merely insulting groups of people due to their membership in enumerated protected classes.
On April 13, 2012, Lars Hedegaard — a journalist, historian, and president of the Danish Free Press Society – takes the appeal of his conviction under Article 266(b) to the Danish Supreme Court. Readers may recall that back in January of 2011, Hedegaard was tried and acquitted for remarks he made during a 2009 interview concerning sexual abuse within Muslim communities. (In a related story, Danish MP Jesper Langballe "confessed," pleading guilty to violating Article 266(b) for remarks he made in support of Hedegaard.) But, in a strange twist, Hedegaard's acquittal was appealed. He was retried on April 26, 2011, and convicted on May 3.
Thrice put in jeopardy
When Hedegaard appealed his conviction to the Danish Supreme Court, the prosecutor cross-appealed, demanding an increase in the fine. In an interview with the Legal Project, Mr. Hedegaard provided some thoughts on the process:
And dragged through an endless process Hedegaard has been. The remarks on which his conviction rests were made over two years ago. Since then, he has endured two trials, and the appeal to the Supreme Court is number three. But the fact that Denmark's high court has chosen to hear Hedegaard's appeal is significant. As with the U.S. Supreme Court, review is at the discretion of the court. Hedegaard remarked:
Further, rumor has it that seven judges are set to participate, a suggestion that the court may consider its upcoming decision to be of precedential value.
Stifling the truth
In a defamation case in the United States, the truth of the statement at issue is a defense to the cause of action. Not so for prosecutions under Article 266(b); truth is not an available defense. In his first two trials, Hedegaard was not allowed to offer any evidence that what he said was actually true (though he was permitted to reference it in his closing remarks), nor will he be allowed to offer such evidence at the Supreme Court. According to Hedegaard:
Though evidence of the truth of the statements is no defense, that did not stop the prosecutor in the Superior Court trial from raising the issue himself. According to Hedegaard, "Of course I wasn't asked about evidence in favor of my contention that sexual assaults are prevalent or a big problem in Muslim culture." He went on to say, "But the prosecutor took the liberty of referring to the content of what I had said and said you can't even prove that. Which of course was quite true — I couldn't prove it because I wasn't allowed to prove any of it." But beyond Hedegaard, who is being prosecuted for daring to raise the issues, who are the real victims of our not being able to have an open and honest discussion about sexual violence in any community?
The end of privacy?
Article 266(b), by its plain language, requires that for statements to be actionable under the provision, they must be made "publicly or with the intent of public dissemination." Hedegaard maintains that he never intended his remarks, which were not made in public, to be publicly disseminated. The lower court found this issue dispositive in his case and acquitted him. In a statement following his acquittal, Hedegaard said that his "detractors" might claim he was acquitted on a mere technicality. While it is a "technicality" in one sense — Hedegaard's right to say what he did should not rest on such unsure footing as whether a statement was made publicly or privately — that technicality has implications for privacy, too. Hedegaard explains:
The fact that the world's thought police are willing to go after speech even in the private sphere reveals just how intent they are to impose their PC-limitations on the rest of us — truth, public debate on critical issues, and now privacy be damned. If you failed to understand where "hate speech" laws were leading us, let this turn of events underscore the point for you.
To be clear, a merely offensive remark should not be actionable whether made in public or private. Trying to keep all offensive speech within the private sphere is no solution. Indeed, much worthy public debate has the concomitant effect of hurting somebody's feelings. That is part and parcel of healthy, open discussion — and life, frankly — a lesson the "sticks and stones" adage of childhood should have taught us.
But the lesson Hedegaard's prosecution is teaching us is very different. It isn't about the punishment of one man. It is a lesson about the state of freedom of speech in the West today.
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