On April 20, 2012 in a 7-0 decision, the Danish Supreme Court acquitted Lars Hedegaard of violating Article 266(b), the infamous “hate speech” provision of the Danish penal code.
Hedegaard’s case has been winding its way through the courts for some time now. Readers will recall that he was first acquitted and then retried and convicted, a decision he appealed to the country’s highest court.
By its plain language, Article 266(b) requires that for statements to be actionable under the provision, they must be made “publicly or with the intent of public dissemination.” Finding no such intent to publicly disseminate, the court concluded there was no basis for convicting him and hence no reason to remand the case for further proceedings. Thus, the Supreme Court’s decision brings to a close Hedegaard’s two-year ordeal.
While congratulations are in order for Hedegaard in his personal victory and for his lawyer, Károly Németh, for his deft handling of the case, the court’s decision leaves Article 266(b) intact, meaning that this is anything but a decided victory for free speech. The Supreme Court, unlike the appellate court where Hedegaard was convicted, merely applied the law as written. Private speech or speech without the requisite intent to disseminate is protected. Public remarks, however, on the very same subjects remain fair game under the law if they are otherwise determined to violate the rather sweeping language of the provision.
There is also the issue that it is the process of being dragged through the courts that is part of the punishment under provisions like 266(b) and allows for speech-chilling abuse. Finally acquitted, Hedegaard went through three legal proceedings before being vindicated. And then there is the uncomfortable fact that he was prosecuted in the first place, given the facts in his case.
In a piece released by the editors of Sappho (in Danish), Hedegaard is reported to have said:
“My personal reaction to more than two years of fatiguing litigation is to demand written guarantees from people who want to talk to me. With their signatures they must confirm that nothing be passed on without my express approval and without me having a chance to vet it. This goes for whether people are journalists or not. I would advise everybody to do the same for we all know that the prosecutor lies in wait.
“That is no way to live in a purportedly “free” society. Article 266(b) and its ilk must be excised from Western laws once and for all.”
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