Justice minister says soundness of mind needed with hate speech issue

Photo: Jaanus Lensment / Postimees

While recent weeks feature frequent and fiery faultfinding with Estonia increasingly abounding with calls to hate and act ugly, justice minister Urmas Reinsalu (IRL) does not think it wisdom to criminalize hate speech. «We need to realize that by treating the hate speech issue in a manner sloppy, unwise and hasty, it can get absurd,» he warns.

- Since 2009, justice ministry has been wrestling the hate speech issue, to better define it... it’s been like trying to squeeze water out of a rock. To no avail. What does that say?   

It says the topic is very sensitive and when going sloppy and hasty with it we could really mess up bad. Over the years, a mountain of analyses has been written. From Europe, precepts keep flooding in on how we need to ratchet up the punishments. But we have been in no hurry to do that. And prudently so.

- How strong is the European pressure for Estonia to apply harsher measures regulating hate speech?  

Letters and views are being sent, and reports written, but this has to be approached in soundness of mind. I think in these issues the focus has shifted out of place. In a society there will always be some emotions and feelings, but if someone has gotten the idea or hope that we could rearrange people’s attitudes by criminal law methods... this might be funny if it were not so dangerous.

For such people, I’d recommend more readings of «The Gulag Archipelago» where Aleksandr Solzhenitsyn is writing about a teacher at military academy jailed for laughing while reading the party paper. A mental murder.

- Do you think hate speech should be criminalised in Estonia?

In no way do I support criminalisation of mentality, views or attitudes.

Inciting hatred, hostility and discrimination is provided by penal power as it is, but it needs to contain objective necessary elements of offence – real danger must have occurred. If we will undertake to rapidly enforce fresh regulation and take the labelling attitude, what we may achieve is very forceful contradictory emotions which may pose danger in society.

What is the stupidest here, for me, is that the hate speech discussion is built on the phenomenon of collective accusation: Estonians are intolerant as a nation, therefore the nation needs treatment and for the treatment we will need to apply methods of penal power. This is the height of stupidity, if we’d but recall the construction by [Estonia’s President Konstantin] Päts during the silent era whereby he grabbed power – that the nation was sick.

- When somebody declares that Estonian nation is tolerant, that Estonians are racists, that they are ashamed and embarrassed to be Estonians – isn’t this in essence hate speech?

Yes, this has its grotesque and logic. Inciting hatred on basis of nationality would qualify as hate speech.

- What do Estonian legal experts say about criminalisation of hate speech and the expansion of its definition?

I have spoken to judges, prosecutors and jurists both in Tallinn and Tartu. People with years of real life legal experience are warning us to not meddle without thought and careful attention, as the result may turn out to be exceeding grotesque.

Estonian police system has developed to be very strong and indeed needs to tame the thugs, but by handing it the topics in gray area of society thus criminalising mere expression of mentality, attitudes or opinions without objective necessary elements of criminal offence, we may create an Orwellian machinery.  

In my opinion, the great stress and anxiety in society are primarily expressed in Internet comments. I have not met anybody expressing themselves in the streets the same style as in Internet comments. The comments spaces are detached reality and to construct penal power system upon that – I’d be very cautious.

- Lately, any criticism has also been labelled as hate speech, as well as warnings and calls to think twice.  What do you think of that?

Here, some are right in pointing out that such arguments may help neutralise critics. We need to consider that this may lead to some type of self-censorship in society.

- The main legal problem with hate speech is its impossibility to be defined. The legal foundations of penal power are that crimes must be worded so precisely that there will be no room for multiple interpretations, as otherwise no-one will know what may be done and what may not be done. If the line gets blurred, an atmosphere of fear may be created where it is better to keep quiet as otherwise one may run into serious trouble.

Yes, this area of penal power does not lend itself to easy definitions like murder for instance. To a broad extent, it will be depending on judicial practice.

In Estonia, there was  a case like that regarding Lauris Kaplinski who in an Internet tale called for torching of churches and committing of substantial crimes for which he was convicted at courts of first instances. The Supreme Court, however, took a highly sound stand that no-one with his wits intact would imagine threats developed by someone opining at Internet or that it would have been an actual call for real crime.  

- The expanders of hate speech definition want to bend it to include cases where someone feels insulted by what was said. Won’t this be a criterion too subjective?

The justice ministry is tasked with taming actual extremism. However, actual extremism may not be confused with some aunt or uncle upset about refugees or some strange contemporary behaviour, and we would be trying to construct a system of «cussing crimes». In that case, the main dangers threatening the basic values of society would get dimmed.

- There are also the opinions that hate speech could include mere voicing one’s prejudices in relatively neutral wording.

I am very sceptical regarding such approaches. The hate speech theory has been created as a pyramid: on the top is the destruction of entire nations, and at the bottom the jokes about the Jews, say. In my opinion, this is a crooked logic that I start out by telling jokes and then pyramid up to destroying nations. We all have our emotions and prejudices, we all have the occasional nasty thought.

- Neutral wording would mean, for instance, that should someone say that there are more suicide terrorists among Moslems than among Christians and atheists, this already qualifies as hate speech.  

Yes, there are the radical legal schools where such treatments do occur. In Germany, there was this polemics lately where TC station ARD depicted Angela Merkel in a hijab. At first glance, the problem appeared to be that the Chancellor was shown in an insulting format. No: the problem was that Islam was being humiliated and thereby a hate speech situation created.

Therewith, rather extreme thought patterns may be reached where it becomes unclear what is banned and what is allowed. Who will be the craftsman to draw the norms in a society?

- An argument in favour of expanding the hate speech definition is that negative stereotypes have an intrinsic indirect damaging effect. Agree?

I think this is another example of mechanical logic that an idealistic society created in someone’s head can be build by criminal law. To achieve a society free from prejudices by criminal penalties is utopism.

Which will not mean that the West does not feature very influential schools that claim this can be achieved. I think that the society which is built like that will end up not meeting the expectations of those who imagine that people can be repaired to be nicer by criminal law.

During the entire 20th century, attempts were underway to repair people for various ideological motives. The grossest crimes against humanity, let’s admit, have their origins in such idea to repair.

- From what you say it may be concluded that expanding the hate speech definition may actually open a Pandora’s Box.

The result, I’m afraid, would be creating intolerance in society. That would lead to a strange form of self-censorship  and the society to be twisted – not more normal, but more abnormal.  

- Do you believe someone might want to achieve that?

I think not. I think it is not our biggest problem that Estonia has few criminals and that we need to produce more by expanding penal power, or that we have few laws. Estonia has nearly four hundred laws. During a year and a half, the parliament has amended 320 of these. We have this enormous law production machine going, it needs to rather be pulled back.

The trouble is that we lack the moral power in society, the societal capital or readiness to solve sensitive or painful issues in a way that binds the society together, not damages it. Intentionally, battle lines are being constructed; doubtless, this is also being dome for the sake of political games so to gain political capital therefrom, and they probably do. But what results is a society torn apart.

- But how do we pull back the hate speech idea as Europe applies pressure on us to advance? Fork in the road?

In all forks, the guiding principle is to go by soundness of mind, and to not strike blind and  random. No way do I support the construction of views-crimes, not even to grant it a theoretical opportunity. But to analyse if anyone is being threatened in a real way, or if crimes are incited against someone so as to improve something with that – this warrants a prudent approach. But the emotional amplitude from which standpoints are currently being shaped is being ballooned in a major way right now and here the responsibility of politicians is not to spur it on but rather to dial it down.

The other issue is people’s own declarations. An interesting trend has developed that people are no longer ashamed of stupidity, foolishness, sick talk humanly speaking. Such extremism catches the attention of many, wherefore it needs to be constantly fed. The danger point is when we begin to treat this extreme as reality.