The European Court of Human Rights (ECtHR) has, for the first time in its freedom of expression jurisprudence, declared valid a restriction on inflammatory speech against homosexuals. In a decision issued on February 9, the Court ruled that Sweden did not violate the European Convention on Human Rights (ECHR) Article 10¾freedom of expression¾by criminally prosecuting four people for handing out leaflets accusing homosexuals of deviant behavior that was morally destructive toward society. Although Article 10 provides the right to “hold opinions and to receive and impart information and ideas,” the Court concluded that this freedom comes with responsibilities and corresponding restrictions, including Article’s 10(2) limitations for “the protection of the reputation or rights of others.”
In the case of Vejdeland v. Sweden, four Swedish citizens claimed that their purpose in placing about 100 leaflets in student lockers was to start a debate about the lack of objectivity in schools and not to express contempt for homosexuals as a group. The Swedish Supreme Court, however, found that the leaflets had “gone beyond what could be considered an objective discussion of homosexuals as a group” and convicted the citizens of agitation against a national or ethnic group. The Court recognized that the Swedish Penal Code has an expansive condemnation of speech that threatens or expresses contempt for “group[s] of persons with allusion to race, colour, national or ethnic origin, religious beliefs or sexual orientation,” and mandates that violators “should be convicted of agitation against a national or ethnic group.” Although the law allows for imprisonment, the sentences on appeal were limited to a fine and one case of probation.
The ECtHR has generally accepted a state’s hate speech restrictions when aimed at limiting discrimination on grounds of racism, xenophobia, and anti-Semitism. The Court has historically relied both on the Article 10(2) exception and Article 17, which provides, in part, that no state or person shall “engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms” set forth in the ECHR. The Court has previously ruled on a case-by-case basis that certain specific activities—for example, Holocaust denialism, passing out white supremacy pamphlets, and placing a sign in a window that reads “Islam out of Britain-Protect the British People” with a picture of the burning World Trade Center—are not protected expression. The Court was clear when it stated in Erbakan v. Turkey that Article 10 protections do not extend to “concrete words constituting hate speech that might be offensive to individuals or groups.”
Adding homophobic speech to unprotected expression follows the steady evolution by the ECtHR and its governing body, the Council of Europe (COE), on the rights of lesbian, gay, bisexual and transgendered (LGBT) individuals. The COE has recognized the value of hate crime laws in preventing discrimination and in a 2010 Committee of Ministers recommendation on combating discrimination based on sexual orientation, explicitly suggested extending hate speech protections to sexual orientation. Sweden is one of eighteen COE member states (which are subject to the ECtHR), as of 2010, to include protections for sexual orientation in its hate-speech law. In a broad legal and sociological study on discrimination against LGBT individuals conducted by the COE’s commissioner for human rights, Sweden repeatedly ranks among the most approving and protective of LGBT individuals.
The ECtHR’s recognition of the legitimacy of Sweden’s interest in restricting hate speech aimed at homosexuals is unsurprising not just because of the Court’s support of such laws, but also its general jurisprudence supporting LGBT rights—including the Court’s consistent holding since Mouta v. Portugal in 1999 that sexual orientation is protected under Article 14—freedom from discrimination. On issues such as decriminalization of homosexual acts, adoption rights, ability to serve in the military, and participation in gay-rights parades, the Court has been generally consistent in its support for extending human rights protections to LGBT individuals, with the exception that the ECtHR has not extended these protections to same-sex marriage. The Court reiterated its stance on same-sex marriage in the March 2012 decision of Gas and Dubois v. France, when it held that the ECHR does not require member states to allow same-sex marriage, even where the lack of recognition affects the adoption rights of same-sex couples.
The Vejdeland decision and the ECtHR’s general LGBT jurisprudence fall in line with an emerging trend of recognizing LGBT issues as a subject of human rights. Although not initially a topic of concern when the human rights field emerged in the mid-20th century, the concept has since been advocated by the U.N. Secretary General Ban Ki-Moon, who has referenced it on numerous occasions. In January 2012, Secretary General Ban Ki-Moon told leaders of the African Union—many of whom hail from countries where criminalization and marginalization of the LGBT community are an acute concern—that LGBT discrimination has been “sanctioned by many states for far too long.” U.S. Secretary of State Hillary Clinton brought the issue to the forefront in a December 2011 speech recognizing International Human Rights Day. Clinton advocated for LGBT rights to be made a worldwide priority and said, “Like being a woman, like being a racial, religious, tribal, or ethnic minority, being LGBT does not make you less human. And that is why gay rights are human rights, and human rights are gay rights.”