by Andrew Harrod
German federal authorities have responded to earlier criticism by the United Nations’ (UN) Committee on the Elimination of Racial Discrimination (CERD) of lax German hate speech measures with troubling proposals to restrict further freedom of expression. These developments in a case previously documented by my Legal Project (LP) colleague Sam Nunberg and me demonstrate once again the dangers for freedom that foreign organizations can present, especially in light of international campaigns against “Islamophobia.”
An April 4, 2013, CERD decision had condemned the German refusal to prosecute former German central bank board member Thilo Sarrazin for hate speech against Arabs and Turks. CERD deemed the discontinuance of Sarrazin’s criminal investigation a violation of German commitments under the International Convention on the Elimination of All Forms of Racial Discrimination.
In a July 1 verbal note to the Geneva-based CERD, the German federal government responded that it “currently is examining German legislation for the punishment of racist statements in light of” CERD’s decision. This examination, though, would take account of the right to free expression. Federal authorities had furthermore requested of the relevant Berlin prosecutors “to review every possibility of reconsidering” Sarrazin’s case. Yet, the prosecutors reported, this review of the case’s “factual and legal aspects” meant that the “cessation of prosecution stands.”
The German government received encouragement in stiffening hate speech laws from the federally-funded nonprofit organization German Institute for Human Rights (Deutsches Institut für Menschenrechte or DIMR). DIMR’s Hendrik Cremer, in particular, criticized in an interview that an initial charge of Sarrazin under the German Criminal Code’s Section 185 against “Insult” fell through. Cremer found Sarrazin’s case “not untypical” as “current precedent” did not allow for “collective insults.” Even if statements are racist, “it is regularly assumed that they lack intensity” for an “insulting character” if directed “against a large number of persons.” Cremer criticized that racist speech convictions usually affected “only persons who clearly belonged to a rightwing extremist environment” while “racism from the middle of society” went overlooked.
These German developments make all the more worthy of review the lone dissenting opinion in the CERD judgment from the American representative, Georgetown University professor of law Carlos Manuel Vázquez. Vázquez determined that Sarrazin’s 2009 interview with a Berlin magazine resulting in prosecution “contains statements that are bigoted and offensive.” CERD precedent, however, “does not require the criminal prosecution of all bigoted and offensive statements.”
As “extensively explained in writing,” both the Berlin prosecutors and a reviewing General Procurator found no basis for insult or “incitement to racial hatred” (German Criminal Code Section 130) charges. The procurator review, for example, found that “Sarrazin did not characterize members of the Turkish minority as ‘inferior beings’ or ‘bereave [sic] them of their right to life as an equally worthy person.’”
Yet CERD itself recognized that a convention violation demanded that a state “acted arbitrarily or denied justice,” a “deferential standard…particularly appropriate” with respect to speech. Here state authorities “have a far greater mastery” of the pertinent language than CERD members and a “far better position to gauge the likely impact of the statements in the social context prevailing.” Moreover, the convention allowed for prosecutorial “discretion” in preventing both racist speech and any “‘chilling’ effect” on free speech presented by marginal cases. Issues such as a statement’s public significance, danger to public peace, or ability to give notoriety to otherwise insignificant persons could also factor into prosecutorial decisions.
Vázquez did not see Sarrazin’s main arguments as hate speech. His “ideas for possible legislation” in the interview involved restricting immigration to skilled workers as well as social spending limitations for immigrants, not racial demagoguery. For Vázquez, “the concept of incitement to legislation is, to my knowledge, a novel one.”
Sarrazin also argued with respect to Turks and Arabs that the “culture or belief system that prevails among a national or ethnic group inhibits their chances of achieving a particular goal.” This is “not outside the scope of reasoned discourse” and “not prohibited by the Convention.” Additionally, “Sarrazin’s main point” was that the “provision of social welfare leads to habits and ways of life that inhibit economic success and integration.” “It is true,” Vázquez noted, that “Sarrazin at times employed denigrating and offensive language.” Yet “freedom of expression extends even to statements framed in sharp and caustic terms.”
Vázquez’s views from the Land of Liberty are far more reasoned than those Germans anxious to do the bidding of CERD’s members, most hailing from countries not noted for equality under the law. Stiffer hate speech laws would penalize many controversial political statements and involve the law in all manner of insults unrelated to public peace. It is to be hoped that Germany will ultimately heed Vázquez’s restraint, despite successive attempts to overcome rational German rejections of Sarrazin’s prosecution. Observers outside of Germany, meanwhile, should take Sarrazin’s tale to heart as an example of foreign institutions infringing domestic freedom.
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