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András KOLTAY: Is Free Speech Part of Christian Culture?

On the Two Recent ‘Blasphemy’ Decisions of the Hungarian Constitutional Court

In early February, the Hungarian Constitutional Court reached a decision in two cases, both requiring the consideration of the balance between freedom of expression and the protection of religious beliefs. In these cases, the trial courts that had ruled earlier had applied a specific provision of the Civil Code. This rule [2:54. § (5)] allows certain protected societal groups, such as religious communities, to bring a civil action by any member of that community in their own name, rather than on behalf of the community, based on the infringement of their own personal rights if the community they belong to is damaged by a seriously offensive opinion. This norm thus envisages the civil law prohibition of (or personality rights protection from) hate speech, the implementation of which was ultimately due to the practical inapplicability of the hate speech prohibition in criminal law (which is one of the more complex and less uplifting episodes of Hungarian free speech law).

Turning to the facts of the two cases, the former concerns the front cover of the Christmas 2014 issue of the weekly current affairs magazine HVG , which bore a title doubling as a pun, ‘Nagy Harácsony’. That is a play on words almost impossible to translate into English directly, (perhaps akin to “Season’s Fleecings”) marking both the approach of Christmas Day and something like ‘plundering’ or ‘ripping off’, presumably by the persons depicted on the cover. The cover featured portraits of the faces of leading political figures superimposed onto a digitally modified version of a 17th-century Dutch painting. The cover image was adapted from a painting by Gerard von Honthorst, entitled Adoration of the Shepherds that originally depicted the Virgin Mary and the new-born Jesus, in the company of shepherds in a nativity scene. The contemporary caricature seems to have referred to the pursuit of material goods by the government political actors included in the picture.

The other case dates back to 2016, when a demonstration was organised in front of the Polish Embassy in Budapest against the newly introduced Polish abortion regulation, in which one of the participants, wearing a bishop’s robe, made a call to those present namely ‘Take the Holy Communion!’, and then, imitating the priestly act, placed white pills on the tongues of those in front of him from a bag clearly labelled ‘abortion pill’, accompanied by the statement ‘Body of Christ’ (referring to the act of Holy Communion).

The opinions expressed in the two cases cannot be considered blasphemy (that is, denigration of a religion) in the traditional sense, but may undoubtedly have offended the feelings of the Christian believers concerned, especially Catholics. The Constitutional Court had to take a position on which constitutional aspects the courts had to consider in relation to the issue under consideration and whether they had fulfilled this obligation. In other words, they did not examine the correctness of court judgments but whether the judgments had been passed after careful consideration of the appropriate constitutional aspects.

In the case of the HVG front cover, the Curia (that is, the Supreme Court of Hungary) rejected the claim and found that the content in question was protected by freedom of speech and did not violate the personality rights of Christian believers. The Constitutional Court has now upheld the validity of the set of criteria underlying this decision and accordingly dismissed the constitutional complaint seeking the annulment of the court ruling. The panel also viewed the message of the front cover as a political opinion rather than one critical of religion. It ruled that the content was not intended to offend Christians, and that the use of a system of religious symbols for political expression was not inherently illegal. It should be noted, of course, that believers may have been offended regardless of the nature of the content, which is primarily a political opinion, but it does not necessarily follow that that political opinion can be limited.

The Constitutional Court was of the opinion that the performance during the protest against regulating abortion caused more serious harm to the religious community; and annulled the Curia’s decision which had assumed that this performance belonged to the protected sphere of free speech. According to the decision, although the acts under review appeared to be harsh critiques of the Catholic Church, they could have harmed not only those members of the church who were actively involved in public life, but also those who did not participate in public debates at all. In this case, the relationship between the conduct under investigation and the harm suffered by believers was more direct than in the other case. On one important issue, the Constitutional Court’s reasoning rests on shaky grounds: it criticises the trial courts for not examining whether the performance could have been considered an opinion or a discussion of a public matter at all, and this suggestion implicitly includes the possibility of a negative answer. In my view, however, a thorough examination of the existence of the nature of an opinion must in any event answer those questions in the affirmative – but from which it does not follow that those opinions cannot be limited.

The reception of the two decisions was ambivalent: more precisely, few were completely satisfied with them. Those who profess a broad interpretation of freedom of speech criticized the Constitutional Court for setting excessive limits on that right, and those who fear that freedom of religion may suffer from the excesses of free speech protection blamed the Constitutional Court for not protecting Christian believers sufficiently.

Judging the strength of conflicting arguments in the context of Hungarian free speech jurisprudence and constitutional doctrines is not easy. In addition to having empathy for Christian believers who were offended by the paper’s front cover, it is worth recalling that freedom of expression is one of the most important values of democratic legal systems, one that may also protect offensive opinions and, of course, is also enjoyed by those who oppose churches and religion or who simply do not want to show respect to them. One of the decisions also notes that the obvious response to offensive or hurtful speech would not primarily be the initiation of litigation, but more speech and so more intense public debates. An important achievement in the three decades of a politically independent Hungary is that after the era of Communism, individual communities including churches, have been able to enter public life, have their voices heard, take part in debates, and take positions on important issues such as abortion. The communist state authorities first sought to abolish churches as such and then, recognising the impossibility of this, to completely exile religion to the private sphere. It is instructive that the institutions of the European Union and the whole Zeitgeist dominating European public life also seek the latter, making it difficult for churches to take part in public life, and questioning the culture-shaping traditions of Christianity. It could be argued that, if the church or its followers exercise their rights to enter the public sphere, this may prevent them from being sidelined in this way – but if they do, they must also bear the consequences that are detrimental to them. Churches regularly take a stand on public issues, and rightly so. By the same token, if one takes on a role in public life, one must also tolerate hurtful, offensive and unfounded criticism. However, if it also adversely affects the rights of those believers who stay away from public life, then restricting freedom of speech is no longer impermissible. The legal assessment of the performance presented at the demonstration shows the limits of the obligation to tolerate criticism. The image on the magazine cover did not do as much damage compared to it and can be considered instead of critique of public figures, and one which is not particularly extreme compared to the usual extremities of today’s public discourse. For the latter, religious content is only a weapon and not the target itself.

The decision of the Constitutional Court on the HVG front cover must surely have been preceded by sharp debates in the panel, as indicated by the fact that five constitutional judges attached dissenting opinions to the majority opinion, and would have considered it correct to annul the Curia’s decision. Several of these dissents referred to the ‘National Avowal’ (the preamble of the Fundamental Law of Hungary), which mentions the role of Christianity in Hungarian history. However, the recognition of this role, which is ultimately a fact that is fundamental to the development of the Hungarian state, and the protection of critical opinions that violate religious sensitivity are by no means incompatible. As Judge Balázs Schanda notes in his concurring opinion, the front cover image itself provides evidence that Hungary has a Christian culture, because otherwise the content of the image would be incomprehensible. The Judge touches on an important point that can be considered further: a strong Christian culture cannot be undermined by the expression of a few tasteless or offensive opinions. However, the human dignity of vulnerable believers who do not take part in public debates is a value to be protected as both Christian and secular. The precise delineation of boundaries in the specific cases is in good hands with the courts and the Constitutional Court.

András KOLTAY professor of law (National University of Public Service, Budapest)

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