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East/West: Insult Laws Violate Free Speech

Washington, 30 September 1998 (RFE/RL) -- A U.S. expert on free speech says laws against defamation or insulting a president, state, government, or public official are not consistent with any notion of freedom of expression.

Herman Schwartz, a professor of law at the Washington College of Law at American University in Washington, made the comment during an RFE/RL interview Monday. He was attending a one-day conference called "Constitutional Revolution in the Ex-Communist World: The Rule of Law." Schwartz has advised numerous post-communist countries on constitutional and human rights reform.

Schwartz told RFE/RL that defamation and insult laws are actually common in Europe and in many parts of the world. But he says it is troubling that the laws are now especially prevalent in the transitioning countries of the former communist bloc where some leaders are using the laws to silence legitimate and honest criticism.

Schwartz said it is interesting to note that there is no such thing as an insult law in the U.S. The fact that Americans can openly insult leaders, the government, the nation and so on, often shocks Europeans, he said.

Part of the reason for this, Schwartz explained, is due to the fact that one of the most striking differences between European and American approaches to society is in the attitude toward what constitutes freedom of speech.

Schwartz said Europeans see free speech as just one of many civil rights which may be limited under certain circumstances. For example, said Schwartz, almost all European countries, including those of the former Soviet bloc, exclude legal protection against speech that incites hatred of ethnic or other groups.

On the other hand, Schwartz says that in the U.S., despite numerous legal and moral struggles to the contrary, hate speech is usually protected as long as it is unlikely to provoke or produce "imminent lawless action."

Free speech and expression to Americans, Schwartz said, is highly enshrined by most Americans and is untouchable by most U.S. laws. He says its importance is evident as it is the first right, along with freedom of religion and association, in the U.S. Bill of Rights.

Explained Schwartz: "It is a difference of attitude. To Americans and to American courts, free speech is the highest value. It is the first of all the prerequisites, in American eyes, to a democratic society. With us, there is always a very heavy (legal) presumption against any interference with free speech. So, we allow an immense amount of criticism attacks on authorities."

Schwartz says this does not mean that the U.S. does not have any defamation laws. There are, in fact, such laws in the American judicial code, he said. He said people are entitled under U.S. law from being maligned falsely. But there is a distinct difference between defamation and insult, explained Schwartz.

Explained Schwartz: "An insult is simply an expression of disapproval, a nasty attitude, an opinion. Normally, we do not condemn opinions. People are entitled to hold whatever opinions they want and to express them. They are not, however, entitled to say false things against people."

In an article on this same topic written for The Parker School Journal of East European Law in 1996, Schwartz explained the distinction between legitimate defamation laws and insult laws.

The difference he wrote, is that defamation laws allege that someone said or printed something factually wrong -- something that is subject to the test of truth or falsehood. Insult laws, however, are laws that forbid name-calling, vulgarity or insults where truth or falsity has no relevance, he wrote.

nThis is what protects U.S. citizens when they burn the American flag in protest just as it protects neo-Nazis who march through neighborhoods that house Holocaust survivors, he said. It is a matter of opinion and free speech. And this is why ordinary citizens and journalists can call legally public officials names such as "filthy dog," "idiot," and "imbecile." But it does not entitle them to say that a certain politician is corrupt or took a bribe, he added.

But Schwartz said that there is currently a disturbing trend in Europe, and particularly in Eastern Europe, for leaders to use the defamation and insult laws to stifle genuine criticism.

Schwartz wrote: "There seems to be little awareness on the part of many of the new leaders -- many of whom are now not so new -- of the importance of a free press to a democratic society. Perhaps because the press in Europe has been more overtly ideological and party-oriented than in the U.S., perhaps because of European traditions of individual honor -- whatever the reason, defamation and insult laws have been invoked more and more against hostile speech by journalists and others."

Schwartz told RFE/RL that insult laws are particularly powerful tools in the hands of authoritarian leaders. He also said that this kind of legal power in the hands of certain leaders in the increasingly fragile democracies of the former communist bloc is especially dangerous.

Schwartz said: "It is basically a way for rulers who are authoritarian to prevent criticism that might shake their regimes....So, if they have a weapon at hand to stifle it, they will use it. And these insult laws, defamation, and the like, are very good tools."

Schwartz said that if transitioning countries truly want to form a true democracy, they should consider abandoning the insult laws altogether.

Schwartz concluded: "Democracy essentially presupposes equality -- that everybody has a right to participate in the deliberating process, depending on how wide the democracy is. It also presupposes free speech -- it says that people are entitled to express their views and opinions in order to persuade others to indicate their disagreement."