Freedom of Speech

Importing European and US Constitutional Models in Transitional Democracies

Uladzislau Belavusau

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135071974
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

This book considers the issue of free speech in transitional democracies focusing on the socio-legal developments in the Czech Republic, Hungary, and Poland. In showing how these Central and Eastern European countries have engaged with free speech models imported from the Council of Europe / EU and the USA, the book offers valuable insights into the ways States have responded to challenges associated with transformation from communism to Western democracy.

The book first explores freedom of expression in European and American law looking particularly at hate speech, historical revisionism, and pornography. It subsequently enquires into the role and perspectives of those European (mandatory) and US-American (persuasive) models for the constitutional debate in Central and Eastern Europe. The study offers an original interpretation of the "European" model of freedom of expression, beyond the mechanisms of the Council of Europe. It encompasses the relevant aspects of EU law (judgments of the Court of Justice and the harmonised EU instruments) as mandatory standards for courts and legislators, including those in transitional countries of Central and Eastern Europe. The book argues for de-criminalisation of historical revisionism and pornography, and illuminates topics such as genocide denial, the rise of Prague and Budapest as Europe's porno-capitals, anti-Semitism and anti-Gypsyism, religious obscurantism and homophobia, virulent Islamophobia, and the glorification of terrorism.

The research methodology in this study combines a descriptive case law assessment (comparative constitutional, public international, and EU law) with a normative critique stemming from post-structuralist scrutiny, rhetoric, postmodern legal movements, legal history, history of ideas, and art criticism.

This book will be of interest to students and scholars of, comparative constitutional law, law and society, human rights and European law as well as political philosophers.

1 Transitional democracies of Central and Eastern Europe

Historical and constitutional context

1.1. The “kidnapped West”: the socio-legal contextualisation of Central and Eastern Europe

Regarding the constitutional landscape in transitional societies, it is crucial neither to over- nor under-estimate the somewhat vague and explicitly contradictory spatial construct of “Central and Eastern Europe”: a term born as an attempt to marry a notorious Germanic notion of Mitteleuropa, a romantic cultural heritage of the multinational “Central Europe”, and the infamous “East–West” frontline of the Iron Curtain. In commencing this monograph on freedom of speech in the region, I will briefly describe the rise of the discipline of constitutional law of Central and Eastern Europe, driven by the metaphor of “rupture” with communist legacies and “return” towards the idealised “stolen West” associated with the human rights tradition.

As Larry Wolff has convincingly demonstrated in his influential monograph (Inventing Eastern Europe), the socio-spatial division “East–West” draws its inspiration from the eighteenth century Enlightenment.¹ The Ancient Roman cultural vision shaped this dichotomy in a completely different spatial universe, dividing the Western and Eastern (Hellenic) Roman Empires. The latter survived for almost a thousand years after the collapse of the Western Roman Empire, as the Byzantine civilisation. Yet nowadays hardly anyone would classify Greece as an “Eastern European country”. During the Renaissance the fundamental conceptual division of Europe was drawn between the South and the North. The prominent city-states of Italy were perceived as unquestionable cultural leaders vis-à-vis their “barbarian” Northern neighbours. In his famous political treatise “Il Principe” (1513), Niccolò Machiavelli (1469–1527) entitled the last chapter as the “Exhortation to Liberate Italy from the Barbarians”. Characteristically, by “barbarians” he referred to the French invaders of Tuscany under the rule of Charles VIII, presaging the end of the quattrocento. Likewise, the Germanic neighbours of the “Holy Roman Empire” were equally conceived of as northern barbarians.² The dichotomy South–North survived until the eighteenth century, when the industrial revolution provoked a visionary shift of “cultural civilisation” from Florence, Rome, and Venice to Paris, London, and Amsterdam, paving the way for the imagined lands of “l’orient de l’Europe”, the universe of irrationality, inferior culture, mysticism, cruelty, economic backwardness, and ultimately “Eastern” barbarism.

Ironically, the attribution of “Eastern-European” characteristics has been thus a strong rhetorical device of an often negative stereotyping, tantamount to hate speech sui generis.³ An infamous demarcation line drawn by Winston Churchill, and the hostilities between the two “blocks” during the Cold War, postulated an invisible Iron Curtain between two parts of Europe. After the fall of communism, the necessity to moderate this blatant dichotomy inspired a reincarnation of the Germanic concept of Mitteleuropa as well as an intellectual interest in a construct of romantic nationalism, embraced under the heading Central Europe. The term Mitteleuropa (literally “middle Europe”) was used to describe the territories under the Germanic cultural hegemony until the First World War, thus often acquiring a negative connotation, especially considering Adolf Hitler’s obsession with the idea of Lebensraum (living space, justifying Nazi expansionism in the region) and the tragic fate of Central European Jewry during the Holocaust. On the contrary, “Central Europe” became of primary importance to “Eastern-European” intellectualism, aspiring to illuminate the symbolic return of communist satellites into the “cradle of Western civilization” and subsequent re-instalment of the “kidnapped West”.⁴ As aptly described by Jerzy Kłoczkowski, the term is unstable and permanently negotiable in its scope, depending on political or cultural occasions addressing countries as different as Austria, the Czech Republic, Germany, Switzerland, Hungary, Liechtenstein, Poland, Slovakia, and Slovenia, as well as sometimes Lithuania, western parts of Belarus and Ukraine.⁵ The underlying idea justifying the delimitation of Central Europe alludes to the cultural heritage of multinational empires in the region, Austro-Hungarian monarchy (accommodating the pre-modern ethnicities of Hungarians, Czechs, Slovaks, Rusyns, etc.) and first Rzeczpospolita (literally Res Publica of Many Nations, a multinational statehood sheltering the Polish Kingdom and pre-modern ethnicities of Belarusians, Lithuanians, and Ukrainians). In addition, a big Jewish and Roma population should be considered as autochthonous to this spatial construct. During the Second World War II this region became the greatest slaughter space of the Holocaust (Shoah) and the Roma persecution (Porajmos). Speaking about CEE Jewry, Milan Kundera writes:

Indeed, no other part of the world has been so deeply marked by the influence of Jewish genius. Aliens everywhere and everywhere at home, lifted above national quarrels, the Jews in the twentieth century were the principal cosmopolitan, integrating element in Central Europe. They were its intellectual cement, a condensed version of its spirit, creators of its spiritual unity.⁶

However, mere Anti-Semitism lies in the genetic core of hate speech in CEE. Thus, a compromise term “Central and Eastern Europe” (equally addressed in this monograph) should be understood as conditional, beyond any national mythology of Volksgeist (justifying a sense of common identity in terms of nineteenth century romanticism).⁷ The term was evoked after the collapse of the Iron Curtain, uniting the esoteric “East” and romantic “Centre”. The label covers nations as different as Slavic-speaking Ukrainians, Baltic-speaking Latvians, Romance-speaking Romanians and Finno-Ugric-speaking (a language family substantially different from Indo-European) Hungarians. Among the countries which set the interest of constitutional analysis for this book, two (the Czech Republic and Hungary) are descendants of the Austro-Hungarian monarchy and one (Poland) is the offspring of multinational Rzeczpospolita, deprived of statehood for almost two hundred years.

Notwithstanding the artificial character of this construction, such “Central and Eastern European” categorisation has become a useful tool in the taxonomy of comparative constitutionalism since the early 1990s. The experiences of the relatively late nation-building, the communist legacies, the ethos of the “return to the Western cradle”, as well as a series of law reforms before and after the EU’s “eastward” enlargement unite these countries into a zone of an analogous rationalisation of law. The post-communist appearance of similar constitutional models – borrowing from “American” and (Western-) “European” samples of judicial design – makes them an important object for generalisations and comparison.

Constitutional writings of the transition period mirror the intellectual discourse of the return to the “kidnapped West”, suggesting a form of constitutional rupture, which ought to be overcome.⁸ Wojciech Sadurski sharply summarises this legal rhetoric as a “discourse of return to normalcy (No experiments! We want to build a normal country, a normal economy, a normal constitutional rule-of-law)”.⁹ Similarly, Jiří Přibáň describes the effect of “imagined Europe” as essential in building the collective identity in the region for the sake of a “happy return to Europe”.¹⁰ The 1990s shaped a sense of group academic identity for constitutional scholars associating themselves with the CEE, eminent in the taxonomy of new academic journals in the field (somewhat declining in the 2000s): Journal of East European Law, Journal of Constitutional Law in Eastern and Central Europe, Eastern European Constitutional Review, East European Case Reporter of Constitutional Law, East European Human Rights Review, Review of Central and East European Law, Columbia Journal of East European Law, Parker School Journal of East European Law, Osteuropa-Recht.¹¹ Wojciech Sadurski, Adam Czarnota, Jiří Přibáň, Zdeněk Kühn, Radoslav Procházka, Kim Lane Scheppele, András Sajó, Renáta Uitz, Daniel Smilov, and many other prominent constitutional scholars have been contributing to the rise of CEE constitutionalism as a dynamic sub-discipline within comparative constitutional law.

Symbolically, in 1991 during the summit held in Visegrád, (then) Czechoslovakia, Hungary, and Poland formed an alliance with the purpose of mutually facilitating integration into the EU and cultural cooperation, the so-called Visegrád group. It would clearly be too ambitious to expect this chapter to provide an overwhelming historical and sociological insight into the Visegrád societies.¹² Still, a brief account of the communist legacy, as well as an exploration of contemporary constitutional modelling and the transitional ethos of free-speech mainstreaming, are indispensable to articulate the contextual milieu for the import of the “American” and “European” models. This account is required for an adequate comprehension of the historical predispositions of contemporary Czech, Polish, and Hungarian experiences with hate speech, historical revisionism, and issues of public morality. Subsequently, I will address two important themes in the constitutional design of the right to freedom of expression in CEE, namely, the role of the “American” and “Strasbourg” models, as well as the new realities of the EU law as a transitional benchmark.

1.2. The communist legacy in the transitional law of CEE

1.2.1. The communist period

Before joining the notorious club of communist satellites in the aftermath of the Second World War, several CEE countries had a remarkable constitutional itinerary. Indeed, Poland may boast one of the oldest constitutional praxis, stemming from the first modern written constitution in Europe, enacted by the first Rzeczpospolita on May 3, 1791 (the so-called Konstytucja Trzeciego Maja). Upon the regaining of Polish independence (after being occupied for almost 200 years by Prussia, Austria, and Russia), a new Constitution was adopted in 1921 and followed by a more authoritarian counterpart in the 1935 Constitution. The former (modelled according to the French example) was regarded as one of the most democratic and, inter alia, it expressly ruled out discrimination on racial or religious grounds and proclaimed the freedom of press.¹³ Similarly, the Czech Republic could attribute two constitutional acts to its legal history, a provisional constitution of 1918 followed by the westernised Czechoslovak Constitution of 1920,¹⁴ establishing the institutions of representative democracy as well as proclaiming freedom of press and assembly.¹⁵ Among the three scrutinised countries, only Hungary adopted its first formal constitution (A Magyar Köztársaság Alkotmánya) after the Second World War (in 1949), a basic law that (with several important amendments) has survived until the twenty-first century.

The post-Second-World-War “satellite” constitutional texts are often termed “Stalinist constitutions”, all of them being substantially modelled according to the 1936 USSR constitution. Their drafting was clearly “inspired from Moscow” and, as a result, some authors claim that a series of provisions were translated literally from Russian.¹⁶ The peculiar legal space (created by this communist constitutionalism) permitted some authors to classify them into a distinctive legal family of socialist countries.¹⁷ Thus, the Hungarian constitution of 1949, the Polish constitution of 1952, and the Czechoslovak constitution of 1960 moved the respective countries into a new stage of constitutional history essentially constrained by the totalitarian regimes.

These satellite constitutional regimes can be still characterised as a peculiar form of Rechtsstaat, arguably formalised and normative, often akin to the adage das recht = das gesetz. Nonetheless, it will be much too simplistic to accept the claim of several scholars, who argued in the 1990s that the legal culture of communist positivism excluded rules of justice, principles of rationality, and public morality.¹⁸ This proposition has travelled remarkably in several serious publications on CEE constitutionalism until the present day.¹⁹ In fact, the statutes were most often reduced to ideological declarations, while most important tasks were performed by virtue of administrative acts. Lech Morawski mentions a characteristic example of the Polish Supreme Court, which once stated that the law must be observed, even if it is unjust, as long as it is not repealed by the legislator.²⁰ Nonetheless, it is an exaggeration to suggest that law was a purely positivistic exercise for judges. The principle of rationality was embraced into the claim of socialist legality (социалистическая законность in Soviet doctrine), whereas public morality was overwhelmingly present. Yet it was a somewhat corollary conception of public morality, conceived as an ideal of a perfect socialist society. A more formalistic Rechsstaat may be attributed only to the later stage of the 1970s and 1980s.

In addition, certain rationales of the hard core positive CEE legal reasoning could be traced to the strong Juristenrecht, conceived of as a specific formalistic culture shaped within a long tradition of legalistic administrative management before communism. Antal Örkény and Kim Scheppele demonstrate that under the János Kádár regime of the mid-1960s in Hungary, a decade after the forcible nationalisation of property, a plan was announced to allow citizens whose belongings were expropriated to get some compensation through the courts. Court records from the period ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Introduction
• 1. Transitional democracies of Central and Eastern Europe: historical and constitutional context
• 2. Hate speech: “US-American” and “European” models
• 3. Hate speech in transitional democracies: The Czech Republic, Hungary, and Poland
• 4. Historical revisionism
• 5. Pornography
• 6. Conclusions
• Bibliography
• Table of Cases
• Index