Segregation in education – or otherwise unlawful segregation – is not new, several researches and studies have shown that this phenomenon has been present for decades if not centuries – just think about how long time women have not been allowed to study and how this situation could be called segregation, since an entire social group has been or is being excluded from the right to education. This brings us to the point of defining what exactly we consider to be educational segregation. This conceptualization is inspired by definitions or definitions that have appeared in various studies and articles, so educational segregation is, in my formulation, a broad category that encompasses a phenomenon whereby persons in education are in a materially different situation from one another, ethnic, racial, residential, biological, religious, or cultural and this difference results in discrimination, segregation, which has or may have negative consequences for disadvantaged or minority groups. In my opinion, all the preconceptions and prejudices that children bring with them to school from home, which are not usually expressed in ideas but in explicit behavior or even in acts, play a role in creating or reinforcing segregation. Some children from minority groups may, as a consequence of the treatment they experience, actually fulfill what others have assumed about them because it is easier to take on a role that others have predetermined for us than to constantly fight against it, especially if they are struggling with other problems and difficulties at one of the most sensitive and vulnerable times in their lives.
Although some authors draw attention to the fact that in the last decade – especially in Hungarian society – there has been a growing antipathy towards education and a culture of seeing education as something to be ignored, I believe that this is precisely the reason why we should pay particular attention to groups and individuals, especially children who have not been able to benefit from the principle of equal opportunities, either because of their irregular access to education due to their circumstances, or because they have to go to work instead of school to support their family’s livelihood and subsistence, or because they lack adequate learning tools, or maybe because they live in disadvantaged circumstances and in the case of a family with several children, one person’s illness can make them unable to participate for weeks at a time – or because they lack the help or support they need to get ahead and overcome their disadvantage.
The majority of studies focusing on so-called educational inequalities focus on Roma children but it is also worth investigating the situation of children with disabilities or children with special educational needs, not forgetting that immigration and migration can also play a role in the child’s education.
In relation to educational segregation, we can observe different groupings and concepts, so we can talk about:
– segregation and separation
– de jure and de facto segregation
– segregation within institutions and segregation between institutions
– active segregation and passive segregation
– desegregation and resegregation
– integration as the counterpart of segregation, and
– the so-called ghettoizing institution
Segregation, or otherwise conscious segregation, is the result of an artificial process while segregation, in other words spontaneous segregation, is the result of spontaneous and random decisions. A related pair of concepts is “de jure” segregation, which takes place because a legislative decision creates separation while in the case of “de facto” segregation, this situation is created by individual actions, natural social processes, or the characteristics of a given geographical region. For segregation within the school, some authors cite graded classes as an example but also the practice often demonstrated against children with special educational needs, according to which they initiate or recommend the status of private students. Segregation between schools mostly arises in relation to a given settlement, in relation to the institutions located there. Desegregation is described as the process that eliminates the conditions that create inequality and thus segregation, while we speak of resegregation when the previously eliminated segregated situation re-emerges.
And what is the answer to the question in the title? In fact, what are the consequences if we do not have the opportunity to participate in an education similar to the majority? Does it nuance the situation if we also include in our view that the rise of digitalization also appears in the field of education and if a child due to his social situation has not had the opportunity, for example, to buy textbooks, not to speak about getting the right digital equipment? Could the lack of digital equipment in itself cause a different, but actually perceptible, segregation in education? In my opinion, yes, especially for children living in smaller cities or in backward regions where there are constant interruptions in the electricity supply. In itself, the fact that there are children who have been disadvantaged in some way since birth and that this disadvantage is reflected in the provision of their education and the quality of the education they receive is a matter of fact. The consequence of this – contrary to the saying that a person learns for himself and not for the school – will show itself not only in the life of the individual but also in his immediate and indirect environment, as well as in society after a while. As long as they are still children, they have a chance to rise above their circumstances. Because of this and because of their age, extra attention is paid to them, but after a certain age, they have less chance of doing so. As one of the consequences of educational segregation, I would also refer to the lack of motivation, which is usually closely related to the ability to perform, which can also be closely related to the financial situation. In the long term, this has a significant impact on employment and quality of life after completing studies. Here you can refer to the so-called referred to as resilient children, students who perform well and are motivated during their studies regardless of their – usually financially – disadvantaged situation. However, when examining resilient children, in fact, the type of settlement they live in also plays a decisive role.
I think that not giving someone the opportunity – even from the very beginning, for example in kindergarten or primary school – to exercise their right to education, which is a priority according to legislation and various national and EU or international recommendations and resolutions, just because they have a characteristic that makes them different from the majority, is like asking someone to play a board game without giving them a dice.
 For example: studies by G. Kertesi – G. Kézdi, Ferge, Rudnák, Dupcsik and Norbert Szűcs.
 B. Csapó (2015)
 Tóth Edit – Fejes József Balázs – Patai Jolán – Csapó Benő: Reziliencia a magyar oktatási rendszerben egy longitudinális program adatainak tükrében. Magyar Pedagógia 2016/3. 339-363. p.
Luca Viktória REGŐS is a law student at Eötvös Loránd University and a legal intern at a notary’s office. She was an intern with the presidential cabinet of the Hungarian Constitutional Court.
In the third week of May 2023, there was anticipation surrounding the European Court of Human Rights (ECtHR) and its decision in the case of Sanchez v France. The case concerned many issues of interest for politicians, users of social media platforms, and intermediary service providers. It also concerned whether the European-style safe harbor model regulation applied, including a comprehensive ban on tracking or monitoring private users. The decision is remarkable from both a regulatory and societal standpoint as it marked a departure from previous ECtHR judgments, such as the Delfi case, as the ECtHR’s decision now appeared to subject certain individuals, including public figures and politicians, to continuous monitoring to secure immunity from liability for comments posted on their Facebook wall by third parties. This shift in perspective raised questions and sparked discussions about the evolving landscape of online expression and the responsibilities of platform operators and users alike.
To contextualize the decision, the European framework regarding responsibility for content on the Internet must be outlined. The core rules on the liability framework in the European Union for online content were established in the E-Commerce Directive in 2000. These rules introduced a threefold framework, with the first two categories, “mere conduit” and “caching”, offering providers immunity from liability. In the third category, hosting providers would escape liability if they had no knowledge of unlawful activity or information and, in cases related to claims for damages, lacked knowledge of facts or circumstances that clearly indicated unlawful activity or information. Alternatively, they could avoid liability by promptly removing or restricting access to such content upon becoming aware of these facts. The key innovation was the provision referred to as the NTDS (notice and takedown system), stipulating that intermediaries were required to possess certain knowledge of clearly illegal content and take timely actions for removal.
Given the above regulatory summary, the authors propose a detailed overview of the Sanchez case for a practical contextualization of the provisions of the Directive. In the autumn of 2015, an individual of French nationality, Julien Sanchez lodged a complaint with the ECtHR, alleging a violation of his rights under Article 10 of the European Convention on Human Rights (ECHR). Sanchez, a candidate for the Front National in the French parliamentary elections within the Nîmes constituency, found himself engaged in a political rivalry with F.P. Both aimed to launch new websites: Sanchez successfully doing so while F.P. faced obstacles. Sanchez used his Facebook page to inform his followers of this disparity. In response to this post, comments emerged, notably one from S.B., which contained offensive and discriminative language towards immigrants, insinuating a negative transformation of Nîmes, invoking terms like „KEBAB SHOP,” „MOSQUE,” „DRUG DEALERS,” and „PROSTITUTES.” S.B.’s comment also mentioned „SHARIA”. A commenter, L.R., contributed three comments with content that appeared to blame Muslims for the city’s problems. These comments prompted another user, L.T., F.P.’s partner, to perceive them as racist and personally offensive. While Sanchez later urged Facebook wall users to exercise caution with comment content, he left the existing comments uncensored, unmoderated, and intact. An investigation was launched against Sanchez concerning the comments, resulting in litigation before the national court. The national judges held Sanchez liable as the „publisher” of an online public communication site since he created the platform and did not remove the offensive posts. The politician was also fined. Though Sanchez challenged the decision before a superior court, the second national process affirmed the primary decision. Sanchez then applied to the ECtHR, alleging a breach of Article 10 of the European Convention of Human Rights, which safeguards freedom of expression.
The Fifth Section of the ECtHR heard the case, and Sanchez argued that he had taken measures to ensure the removal of comments considered unlawful, emphasizing the ECtHR’s practice regarding the specific protection of political speech. He contended that closing the space for comments to prevent the publication of offensive content would have an excessively chilling effect on freedom of expression. The defendant (France) argued that Facebook walls constituted online public communication and positioned Sanchez’s page as a discussion forum. The ECtHR, therefore, had two principal questions to decide: (1) is a Facebook wall a public forum, and if so, (2) should a politician handling a Facebook wall be liable for hateful and xenophobic comments?
The ECtHR reasoned that despite the political context, there are limits to comments made in political debates, especially regarding the respect for others’ reputations and rights. The Court highlighted the importance of combating racial discrimination and intolerance, particularly in electoral contexts marked by specific tensions. The judges accentuated that Sanchez’s status as a politician did not exempt him from hate speech restrictions, and he was held responsible for failing to remove polemical comments despite daily monitoring. In sum, the Court affirmed the national courts’ decisions and found that Sanchez’s rights under Article 10 of the ECHR were not breached.
The case was referred to the Grand Chamber of the ECtHR (GC), which delivered its final judgment on May 15, 2023. The GC highlighted the importance of free political debate in a democratic society and noted that there certainly was an interference with Sanchez’s rights under Article 10 of the ECHR. However, they indicated that political communication was not absolute and could be restricted, especially if discriminatory or conveying hatred, and underlined that Sanchez, as a political actor, was expected to avoid reinforcing intolerance. Regarding liability for comments on Sanchez’s Facebook page, the GC emphasized that the comments clearly constituted hate speech targeting the Muslim community in the city. Despite having found no requirement for Sanchez to filter comments, the Court held Sanchez liable due to the public accessibility of his page and the political context of elections. The GC, therefore, held that the interference with Sanchez’s rights under Article 10 of the ECHR was necessary in a democratic society. The judgment was everything but unanimous – a multitude of dissenting opinions and alternative views were attached to the decision. Some judges expressed concerns about foreseeability and the scope of obligations imposed on Sanchez while emphasizing the need for proportionate measures and defined time limits for content removal in similar cases.
The question rightly arises – what does the Sanchez judgment mean for the future concerning politicians and commenting during campaign season? While the decision emphasizes the narrow scope for restricting political communication and discourse, it deviates notably from prior ECtHR practice, as it introduces a potentially concerning precedent. The ECtHR has traditionally upheld the protection of Article 10 of the ECHR for political and social information, even if it is provocative or offensive – yet the Sanchez decision introduces a shallow threshold for the protection of political speech. The judgment’s argument that foreseeability becomes flexible in the face of new legal situations raises concerns about potential self-censorship and a chilling effect on commentators. This could undermine the protection and promotion of political dialogue, a core value the ECtHR upholds. Questions also arise regarding the decision’s consistency with the values of pluralism of opinion and public information and participation in the debate.
In summary, political debates, especially during elections, are essential for democratic societies. The Sanchez v France case represents a significant departure from previous judgments, raising concerns about the increased responsibility for online content and its potential consequences. It could lead to prominent social media personalities facing the same obligations as platforms, exposing them to legal risks and limiting democratic discourse. The ruling takes us closer to digital authoritarianism, presenting challenges for the future of online political dialogue.
Gergely Gosztonyi is a habil Associate Professor at Eötvös Loránd University (ELTE), Faculty of Law. His research interests include global regulation of social media, censorship, deepfake, alternative media, and the liability of intermediaries. He has been an expert for the Council of Europe, the National Media and Infocommunications Authority, and the National Talent Centre. He is an editor of several law journals and has published over 150 articles in Hungarian and international law journals.
Gergely Ferenc Lendvai is a PhD candidate at Pázmány Péter Catholic University, Faculty of Law. He earned his JD at Eötvös Loránd University of Budapest, Faculty of Law and Master’s degree in Comparative Law at Panthéon-Assas (Paris II) University. His main research areas include online freedom of expression, platform governance, AI and law, online discrimination, and new media phenomena.
‘Renée Lettow Lerner is Donald Phillip Rothschild Research Professor of Law at George Washington University Law School. Professor Lerner works in the fields of U.S. and English legal history, civil and criminal procedure, and comparative law. She advises judges, lawyers, and government officials from the United States and countries in Europe, Latin America, and Asia about the differences between adversarial and nonadversarial legal systems.’
During the international law conference organized by the Mathias Corvinus Collegium on September 27, 2023, the speakers delved into various topics such as the evolution of the discourse around fundamental rights and the corresponding responsibilities, the concept of state sovereignty, and the critical examination of the essential role of subsidiarity. The conference served as a platform for the Constitutional Discourse team to address these issues with Professor Renée Lerner individually.
‘Where, after all, do universal rights begin? In small places, close to home—so close and so small that they cannot be seen on any world maps. (…) Unless these rights have meaning there, they have little meaning anywhere.’ These were the words of Eleanor Roosevelt, and this is the motto of this event. This interview is being recorded in the capital of Hungary, which is indeed a relatively small place that many people may not readily recognize on the map. How are you finding your experience in Hungary so far?
It’s beautiful. I love Hungary. I was here in 2019 for the first time with my children and really enjoyed it. It is a wonderful place. I’m so glad to come back.
This is the Rescuing our Inalienable Rights Conference in Hungary, which is an International Conference on the 75th Anniversary of the Universal Declaration of Human Rights. What are your thoughts on this conference?
It’s a remarkable event, and I’m genuinely pleased to be here. Mr. Lénárd Sándor has successfully convened so many participants from all corners of the world. It has been fascinating to delve into Hungary’s perspectives on human rights and its approach to this critical matter. For instance, I was previously aware of the existence of Hungarian minorities in other countries, but I had not fully grasped the significance of this and why Hungarians are particularly dedicated to safeguarding the rights of these minorities.
Did this experience influence your perspective on this topic, and if so, what are your thoughts on it?
Indeed, it has significantly shaped my viewpoint and provided me with a more nuanced understanding of Hungarian perspectives. The situation here in Central Europe is marked by fluidity in borders, with frequent changes. This is not a concept that Americans commonly encounter, given the long-standing stability of our own borders. It is, however, quite enlightening to gain insights into a different geopolitical situation.
Not only do we have a different geopolitical situation but a sui generis political entity, the European Union as well. In one of your interviews, you emphasized the importance of Europeans being vigilant about the potential for anti-democratic judicial tyranny. How can we identify such judicial tyranny?
It aligns with what I discussed today regarding courts initially considering rights that appear plausible and reasonable on the surface, but then interpreting them in manners unintended by the drafters and often misunderstood by people in various countries. During my presentation, I provided an example from the United States where a court determined that individuals sleeping on the streets have a right to do so, asserting that it is protected by the US Constitution. The court invoked the Eighth Amendment, which prohibits cruel and unusual punishment, and argued that punishing people for sleeping on the streets or in parks would be deemed cruel and unusual. As a result, in the Western part of the United States where this court holds jurisdiction, we now witness significant challenges with people residing in tents on the streets and in public parks. This has created a sense of fear among the general public who are hesitant to traverse those areas, given the proliferation of tents, drug usage, and unsanitary conditions. It’s a dire situation.
It’s very interesting because we had a similar debate in Budapest a few years ago. Looking ahead, how do you anticipate the interpretation will evolve? What kind of judicial interpretation do you think the judges will employ in the future? How would their decisions differ?
It depends on the school of interpretation that the judge follows, whether judges feel constrained by the common good, by awareness of the common good, and not just a sole focus on individual rights. And that helps. In general, it’s a more limited idea of their power to interpret the document. In some cases, to look at what the drafters of the document would have meant. And it’s impossible that the drafters of the 8th Amendment of the US Constitution would have meant that there’s a constitutional right to sleep on the streets or in public parks, for example. However, if a different form of interpretation is adopted, what we refer to in the US as living constitutionalism, one might be more inclined to identify such rights, placing a stronger focus on individual rights rather than the common good.
You teach at George Washington University. You mentioned that there are different schools of interpretation. But what about freedom of speech in US universities?
Well, it’s a situation where, in theory, there’s freedom of speech. Academics and other individuals can theoretically express a wide range of views. However, in practice, universities are predominantly influenced by the left. There’s a significant amount of social pressure to avoid expressing views that the left disagrees with. We consistently face this kind of informal social pressure, leading to a lot of self-censorship. Many academics are cautious about what they say because they fear the opinions of their colleagues, for instance. This is what’s happening in the US—universities lean heavily towards the left. In many disciplines, well over 90 per cent of professors, even up to 95 per cent, identify with the left, and not just the left but the far left. This situation makes it challenging for anyone else, certainly on the right or even in the center to contradict that.
And do you think that it could have an influence on the quality of education in the US?
It certainly does, because the students are not hearing all of the different points of view. And in particular, the judiciary in the US is not all on the left. A large portion of the judiciary, not the majority, but a large portion of the judiciary is conservative and adheres to a different style of interpretation than the left does and the students don’t hear about that—or only hear about it as criticisms of it—and not arguments in support of it. So that’s a real problem.
Turning back to Europe, under EU law, when the Commission believes that a member state has failed to fulfill its obligations under EU law, it may initiate infringement proceedings. But according to statistics, in most of the cases, when this procedure is launched by the Commission, the European Court of Justice tends to make decisions in favor of the Commission. Could it be type of a judicial tyranny in your conceptual framework?
Indeed, judges and courts are often tempted to interpret treaties in a manner that aligns with their own policy preferences. And so it’s very tempting for them to try to use their power to have aggressive interpretations that infringe on national sovereignty and what the people of that country think. So, it’s a significant and challenging temptation—one that, in certain instances, becomes a reality.
I would like to present to you a judgment of the Court of Justice of the European Union, and I would be interested in how you see it. It was about a lesbian couple in Spain who – according to Spanish law – were both the mothers of a child, but one of them was–of course–genetically not related to him. The Sofia municipality refused to issue the requested birth certificate because of the lack of information concerning the identity of the child’s biological mother and the fact that a reference to two female parents on a birth certificate was contrary to Bulgarian public policy, which does not permit marriage between two persons of the same sex. The ECJ held that Bulgaria has to recognize the parent-child relationship between that child and each of those two persons.
Interesting. And when was that decision?
Two years ago.
This is a type of problem that could easily arise when different countries have different laws about this. So, in Bulgaria, I assume they probably don’t allow two women to get married to each other.
No, they don’t.
And they probably wouldn’t allow two women like that to adopt a child. We’re accustomed to facing such kinds of problems in the United States as well because we have many different states, each with different laws regarding marriage and adoption and these kinds of things. However, our Constitution outlines something known as the ‘full faith and credit clause.’ That clause requires the states to honor each other’s actions to a certain extent, with exceptions for public policy.
In the EU, obviously, there are different countries with varying laws on these matters. The question of whether these countries should recognize marriages or adoptions of this kind should be addressed in the Treaty. All countries should negotiate and come to an agreement on this issue. Thus, this matter should not be left up to the courts to decide whether Bulgaria must recognize such unions, especially on fundamental social issues that hold great importance for people.
These issues should be addressed within the Treaty. The Treaty may stipulate that, in such cases, Bulgaria has the right to declare that they do not consider these individuals as married or the adoption as valid. Nonetheless, this should be a matter outlined in the Treaty itself, not to be decided by the court.
Of course, but as you may know, the EU’s last ratified Treaty – the Treaty of Lisbon — entered into force on 1 December 2009.
This is indeed the problem – important issues like this one arise, and sometimes those treaties need to be renegotiated. I see this as one of those issues. I understand what you’re saying about the last modification of the Treaty in 2009. Since then, there have been numerous changes that significantly impact these fundamental matters. Consequently, it has fallen to the court to address these concerns.
A similar situation arises in the US. Amending our constitution is exceedingly challenging. And so the courts think that it’s their right to decide these kinds of questions. However, you do need to occasionally reopen those sorts of questions. It’s important to renegotiate treaties and, in the case of the US, to amend the Constitution when needed. I think those are jobs to be done that way rather than through the courts.
It is also written in this judgment that the obligation of accepting the Spanish regulation ‘does not undermine the national identity or pose a threat to the public policy of that member state that has to accept it’.
That’s not true. The Bulgarians have decided certain things about families and children and so forth. And of course, it undermines their national sovereignty and their people’s right to decide these things. And that’s why courts should not be in the position of forcing this on different countries. And you can certainly see, I mean there could be a real movement to force different countries to do this, you can see how certain activists would try to, in the sense, engineer cases, right? Try to have somebody be married in a certain place or adopt children in a certain place and then move to a country that doesn’t accept that and then try to force them to accept that. That would undermine the laws that they have.
Truly, if it goes against public policy, the deep public policy of the state, they’re not supposed to have to agree to whatever some other state did.
What do you think, what could we learn from the US’ legal history?
There are several things to consider, especially concerning federalism. The US operates under a system with dual sovereigns: the federal government, which is sovereign in certain respects, and the states, which are, at least in theory, supposed to be sovereign in other respects. The states are intended to have authority over family law and certain other areas of law, including criminal law. The federal government is not supposed to interfere in those domains. When this is the case, the system tends to work better, allowing different states to implement varying policies without being forced to adopt a uniform view. This approach generally works well.
I would hope that the European Court of Justice keeps this in mind—that these issues are highly fundamental and contentious. People hold deep disagreements about them. It’s important for the court to recognize that it is the prerogative of the people in those countries to determine these questions, and not to impose a uniform view upon them.
This is how the system of federalism is supposed to function and how it does function at times. However, one problem is that the federal government now possesses a significant amount of money due to taxation—considerable tax revenue. Consequently, the federal government allocates a substantial amount of grants to the states, attaching conditions to these grants. It essentially states, ‘Alright, State, you can accept this funding, but you must comply with XYZ.’
Sounds similar to the concept in the EU.
An example of this is when the federal government provides grants to the states for constructing highways and roads. However, it stipulates, ‘States, if you accept this funding, you must adhere to a specific speed limit,’ for instance. To obtain the funding, the states have to agree to implement that speed limit. There are numerous instances of this practice. And the federal government more and more attaches conditions to its grants to the states to try to force the states to do certain things. Consequently, states have been relinquishing a significant portion of their power due to these conditions. It’s a real problem. It’s quite interesting that similar issues arise in the EU. This is not surprising, as it’s a comparable system of federalism in practice. Hence, similar problems are bound to arise in both systems. The states and their governments in Europe will need to be careful about accepting money from the EU with these conditions attached. And it’s going to be very difficult to refuse the money.
The interview was conducted by Kinga Kincső Antal.
During the international law conference organized by the Mathias Corvinus Collegium on September 27, 2023, the speakers delved into various topics such as the evolution of the discourse around fundamental rights and the corresponding responsibilities, the concept of state sovereignty, and the critical examination of the essential role of subsidiarity. The conference served as a platform for the Constitutional Discourse team to address these issues with Charles Kesler individually. The interview was conducted by Gergely Dobozi.
Charles Kesler, author of the “Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness” and Professor of Government at Claremont McKenna College and Claremont Graduate University.
Before we get straight to the matter, every time I have the opportunity to interview a foreigner visiting Budapest, I ask them about their experiences in Hungary and the number of times they have visited us. You are not exception either.
My wife and I are enjoying ourselves immensely. It’s my second time in Hungary. It’s her first. But I was here many years ago right after the fall of the Berlin Wall when Hungary was in a much poorer state than it is today. The city is really a glow now. It’s beautiful and the restaurants are excellent and of course the culture is extremely diverse.
In one of your books, you contend that the United States essentially possesses two constitutions. There’s one what you call the ‘founders’ Constitution’, and a progressive one. Would you please tell us more about this theory?
In America there is a kind of jostling between two divergent and contradictory systems. Two constitutions I call them–two ways of life, really. And you can see this in political events or political developments. For example, an interesting part of the American constitutional debate is about voting rights. This issue is also debated as voting rights could be separated into two different regimes: the first generation voting rights and second-generation voting rights.
Sorry for the interruption but are we talking about an evolution just like we can observe this in the fields of Constitutional Law itself?
No, it’s definitely not an evolution. You know there’s a contradiction between them. The first-generation voting rights are what the Voting Rights Act was supposed to secure back in 1965—access to the ballot. That you, an individual voter, could go to the polls, fill out your ballot, have it counted and made the best man win.
So, in this case, the significant thing was, that did you, as an individual exercise the individual right to vote?
Yes. The second-generation voting rights, however, is what’s called an effective vote.
What is an effective vote?
An effective vote is a vote that elects a person you approve of. Or, with other words, a winning vote, that empowers you—or more broadly—the ethnic, racial or political group to whom you belong. Theoretically it is not an authentic vote if a black person can’t elect a black candidate to office—that vote has been wasted. In order for an effective vote to count, the government has to know the race of the voter.
Whereas obviously you don’t have to know the race of the voter in the first case…
Yes, and you have to presume that the voter wants to vote for a person of his race and that that’s consistent and authentic. And those assumptions are all involve a very different view of what a vote is. That it’s an expression of a group rather than an individual.
Basically, what you’ve just said about this ‘second generation’ of voting rights, it’s about the individual being just a vessel that holds the group’s voting power provisionally in his hands, right?
Yes, and that leads to really not a Republican or a Democratic form of government in the traditional American sense, but to a kind of mixed racial regime, which proportional representation or something like that is necessary, essential. And if the voters don’t vote that way, the voters have made a mistake. That’s really a very different view of what the Constitution requires. Because ultimately, I think it implies a different constitution. A second, more progressive, more historically open-ended, a more historically insistent kind of constitution in which there’s a progressive way to vote. And if you don’t vote the progressive way, it’s the voter’s fault.
I see, so basically, we are talking about two moral regimes.
Yes. We’re talking about, you could say, a colour-blind constitution with a colour-blind vote, and a race-conscious constitution and a race-conscious vote.
Contemporary conservative political discourse in Hungary revolves around critiquing the West, while obviously, the vast majority of Hungarian conservatives align themselves with Western culture. Taking a more abstract approach, and based on what you’ve just said about the parallel constitutions in America, do you believe it’s valid to assert the existence of two distinct “Wests” in today’s world?
I agree, there is a kind of civil division within the West that’s widening. You could perhaps simplify the difference and say, one is a concept of sovereign individuals exercising their individual rights, and the other is a constitution of sovereign groups. And they can be defined in different ways as they can be defined by gender, by race, by income, by origin. But the difference is that the individual to the extent he has rights in the second model, gets them by being a member of the group. And the rights are specific to the group as it were. So, in the abstract, you might also have a kind of mixed constitution in which equality or human equality and liberty as the foundation principles are now qualified, severely qualified.
Let us move on to my next question concerning international diplomacy. The regulations concerning diplomatic immunity is a very specific area within the realms of international law. Based on those, diplomats are obliged to abstain from meddling in the internal affairs of the host state. Still in Hungary, the case is that the ambassador delegated by the White House does meddle into Hungarian domestic policy. Actually, reading the news one might have the impression that His Excellency acts like an indvidual actor of the Hungarian domestic political debates. Do you have anything to comment on this matter?
Well, I think the issues are connected because the traditional view is that the individual ambassador represents the president in a foreign country. And the gentleman we’re talking about is an ambassador of the United States and specifically from the President of the United States. And that’s it. His portfolio is to represent the, you might say, the old fashioned constitutional government of the country. In modern times, increasingly, the ambassador is a social ambassador for his group and his way of life. And he sent often deliberately to instruct the host country on its moral deficiencies, which is not the traditional job description of a United States ambassador.
Shifting our focus to the European context of public law, there’s an ongoing discourse over the future of the European Union. And arguably, some say that the European Union right now is increasingly shifting towards federalism, and on the way there, parallels can be drawn to the situation the United States was right before unition. This would mean that the European Union is in indeed in a Hamiltonian moment right now. This argument sounds tenable for me especially considering the rule of law framework, with the one sided, politically biased approach around that right now. Moreover, let’s not forget, that the whole framework is closely connected to fiscal issues and budgetary conditions. Do you agree or disagree with me?
Well, I don’t think Hamilton would approve of what you’ve just said about the current state of the European Union. Hamilton, first of all, starts from the framework of one country, a country with a constitution. And that country is divided into 13 states at the beginning. But they’re not 13 nations.
Please explain and enlighten the US side in this story.
The ‘Pre-USA’ states are not nations as they don’t speak 13 different languages, they don’t have 13 different histories really. I mean, they were always together in one way or another as parts of the British Empire and then as outside the British Empire. But it was an issue, of course, in American politics, which took the Civil War to solve, whether in fact, how far the independence of the states went and whether they had the power to secede. And from Hamilton’s point of view, the kind of the Republican government at the centre was unquestioned. I mean, there’s a certain sense in which the Constitution presupposes that all the states are Republican governments and gives the federal government the power to guarantee that. This is the so-called Republican guarantee clause of the Constitution.
So how does the picture look like in a European context?
Europe’s in a very different situation. I don’t think anyone or at least no one I know would say that the quality of Republican government and the degree of popular consent is at its highest in Brussels. Or, that the governments of the individual nations of Europe are much inferior in the quality of their democracy to that of the bureaucratic apparatus at the centre. I mean, the EU is an example of a late deformation in constitutional government, you might say, in the United States and in the world, namely bureaucracy. I mean, bureaucracy as such wasn’t yet a problem in the mid 18th century or the late 18th century. It became a problem later on.
So, you are basically implying that Hamilton wouldn’t lend his name to what’s currently going on in Brussels?
Hamilton, in fact, would be horrified by bureaucracy. I mean, he’s in favour of energetic executive power. That’s not bureaucracy. Bureaucracy is slow and inefficient and bossy and lazy, and it’s not George Washington. It’s not the kind of executive that Hamilton is thinking about.
Let us move on to my next question. I think one can say that the concept of state sovereignty was in its heyday at the time of the Westphalian treaty. And then came the international organizations, where concepts like subsidiarity and unanimity vote are guarantees of this classical concept, at least in my point of view. Hungary is often blamed by using the rules of unanimity to ascertain its sovereignty, maybe to enforce sovereignty within the Union. What do you think, does a nation state like Hungary really ‘bribe’ the European political actors by making its right to anonymity enforced within the voting system or is it just safeguarding its sovereignty challenged by the current EU bureaucracy?
Well, why can’t it do both? (laughs) I mean, it’s safeguarding its sovereignty, but it’s also emphasizing a key principle of federalism. That is the equality of the member states and their ability to separate their own domestic policy at least largely from regulation by the centre. I mean, that’s certainly the case in American federalism. So, from Brussels, Hungary’s behaviour might indeed be interpreted as ‘bribery’ in this context, I suppose. But also, why wouldn’t one regard that rather as playing the cards that one is dealt in the rules of the system, after all. Hungary’s not asking for something that is illegal, as the state is exercising its legal rights in a way that is—from a Brussels point of view—unpopular. But that shouldn’t be a deal breaker, as we say in America.
Today, within the European Union, there are tendencies towards getting rid of these guarantees I’ve just mentioned. What kind of future do you envision for the European Union if we cling on to the classical approaches and what waits for us if we get rid of them?
Well, if you don’t have some form of subsidiarity or broad independence, you run the risk of being ruled bureaucratically. And in today, the worse, I mean, it’s not just that, but attached to that principle, that means, is the new concept of rights, which is, I’m embarrassed to say, is an export from the United States.
It’s, in many ways the system of international human rights has been a convenient means to export very progressive American domestic debates into the government of the individual states of the world. And so, our strange or let’s say exotic human rights agenda involving elevating race and sex, especially to dominant categories in which to assess human rights and human identity has now become a worldwide phenomenon, and especially in Europe through the EU has become a European wide phenomenon, which is very unfortunate for Europe. I mean it’s unfortunate for America too by implication I think because the irrationality of its spreading while becoming more normal from the point of view of the practices of the world’s governments.
This has something to do with the ‘second constitution’ we’ve discussed earlier, doesn’t it?
Yes, that’s why I’ve said that this is sort of our fault, even though you also have NGOs with the same kind of agenda. But it is certainly a development of the second constitution. It’s a sign of the growing influence of what I call the progressive constitution over American morays and American law.
Can’t the conservatives do something about this?
I think they can and that’s why for example American conservatives have a very large agenda ahead of them to try to rein in the second constitution and to elevate the first constitution to the prominence that it once had but has lost or is losing, let’s say.
Gergely Dobozi is a commentator and editor holding a law degree from ELTE University. Currently he is a Research Fellow at Danube Institute and editor-in-chief at Hungarian Conservative Online. He began his career as a commentator at Mandiner in 2020 where he maintained the column titled ‘Precedens’ that covered and analysed developments in the world of law. As a third-year PhD student at the University of Public Service, his areas of expertise include state sovereignty, judicial activism, international and EU law.
During the international law conference organized by the Mathias Corvinus Collegium on September 27, 2023, the speakers delved into various topics such as the evolution of the discourse around fundamental rights and the corresponding responsibilities, the concept of state sovereignty, and the critical examination of the essential role of subsidiarity. The conference served as a platform for the Constitutional Discourse team to address these issues with David TSE-CHIEN PAN individually.
David TSE-CHIEN PAN (BA Stanford University; PhD Columbia University) is Professor of German at the University of California, Irvine. His work engages deeply with European philosophical and literary traditions. A central idea in his scholarship involves how our values have an independent standing and cannot be reduced either to material conditions or to ideal claims.
You have served as a member of the Commission on Unalienable Rights. What is the mission of this organization?
Well, it was a temporary commission in the US State Department during the Trump administration. And the charge of the commission was to develop some principles to guide US foreign policy in the area of human rights. And so, it really was focused on establishing these principles for the State Department going forward to think about specifically US foreign policy. So, it really wasn’t meant to provide any kind of comprehensive overview of human rights, but really to focus on this aspect of US foreign policy.
Arguably in the past decades, in the international sphere, there is a growing number of human rights that are waiting to be enforced. Arguably, through the judiciary, one can enforce obligations on the states, and this seriously affects the sovereignty of the states. What do you think?
On the one hand, I think you’re right, there’s a kind of human rights vocabulary and perspective that create these judgments. But it’s not as if those human rights perspectives are really coming from the outside. It’s not as if a piece of international law, or a human rights organization is somehow arguing for this. It does seem to be coming from the perspective of the judges that’s been influenced by public opinion, to create these judgments.
Before we move on, could you please give me a USA-specific example in this regard?
Sure. There’s been some legal judgments giving protections to homeless people. And those protections have developed so that in certain areas of the country now, it’s almost impossible to take any action like state action or police action against homeless to move them from sidewalks and things like that because of these judgments in the courts—and no new law has been passed in this regard. Or maybe there are existing laws, but the courts have basically nullified those laws, so a particular city is not allowed to enforce these.
So, getting back to your previous answer, do you think that it is the society where this strange interplay between sovereignty and law happens, right?
Yes. Because what’s going on is this change in interpretation that affects these legal judgments.
But where does that change of interpretation come from?
That seems to be a kind of cultural, political phenomenon. And you can’t exclude that because in my thinking, that’s the foundation for law. Because law comes out of these interpretations. And those interpretations are sort of these cultural political events. So, clearly, in the United States a particular judgment can easily become divisive. There’s a good chance that an appeals court makes a judgment, and the politically divisive case proceeds to the Supreme Court where it concludes with a different outcome. But you have to be aware that even the Supreme Court justices are appointed politically. It’s a complicated process, but I think at the foundation, the whole issue is political.
Let’s seek for the reason behind that. Do you think that it has something to do with some realignment between the classical branches of power and media—as the most relevant interpretator of political will—coming from the ‘outside’, is constantly growing over the classical branches? I’m asking this because you said that maybe it’s all about politics.
I think that that’s in some sense always been the case. There’s lots of ways in which media has changed in the last few decades. But the influence of the media on politics and law has gone on for a long time. Certainly, as long as the United States has existed, which is admittedly not that long. But things like newspapers have always had this influence. This political or cultural process, or as we might call, the changing character of the people: that’s really what’s at stake and the media will always reflect these conflicts.
Let’s move forward from the other shore of the Atlantic Ocean to here, Europe and talk about this phenomenon in the European Union where the judicial activism together with the bureaucratic will—let’s call them ‘top’—are constantly challenging the identity of the ‘down’. Ironically, the ‘top’ is a non-elected bureaucratic body, and the ‘down’ are the actual member states. Are you familiar with this? If yes, how would you comment on this?
I think what’s been happening in Europe, is that you do have a kind of administrative class that has been pushing for more federalist unification in Europe and that’s influenced judicial decisions in a way that’s been really ultimately not very democratic. And that’s then led to these, I guess, populist revolts within the particular nation states. And so, you do have all over Europe really these populist parties who see what’s happening. You see that they’ve essentially been disenfranchised by this whole bureaucratic apparatus and are trying to rebel against that. But from the point of view of the administrative bureaucracy, they see it as fascism, or they see it as racism, or they see it as sort of these extreme political positions that they want to suppress even more.
Vicious cycle, isn’t it…
Sure, because the expansion of the bureaucratic administration leads to this populist opposition, which then leads that bureaucratic administration to want to suppress that opposition even more. And then, of course, that opposition sees that and then it grows, right? Because people see what’s going on. And there’s hardly any chance for compromise.
Why do you think that?
Because people talk about this different way of looking at class dynamic, not between rich and poor but really between managerial bureaucracy versus the people.
Same thing happens in the US, am I right?
Yes, it’s going on in the US too. Certainly, Trump was really the one who mobilized these kind of populist masses. And there’s the same issue where the managerial classes are just horrified, and don’t know what to do except to suppress it. And then obviously when they try and suppress it, it just makes it worse. But I mean, the solution really would be to somehow reorganize the state of the United States. What we’re seeing now is the result of the development of the welfare state from starting the 1960s, especially in the United States, to create a very, a large and growing bureaucracy that has reinforced the managerial attitude amongst the educated classes and a feeling of disempowerment from the people who are not in those classes. But in the meantime, just think about it: 60 per cent of American people own stock. So, they’re the owners, but they have almost no power.
Because the people that have the power are the executives…
Sure. The president, the vice president, they’re getting these huge salaries and they’re in control. They’re the ones that really control these corporations and not the owners.
What do you think, what would be the solution?
I think the solution to that would be to somehow reduce the welfare state and reduce the kind of administrative bureaucracy and maybe initiate some reforms in corporate governments too that would probably shift more power toward shareholders rather than the managers. But rest assured, in the European Union it’s even more complicated because you’ve got.
Yeah. But if use your metaphor and we look at the European Union as a private company, the member states are meant to be the shareholders. I mean currently there are two approaches: one is federalist approach, and one is the approach based on the theory of a Union composed of sovereign nations states. And what you’ve just said is to give the power back to the member states.
But in the meantime, there are these infringement procedures, launched by the European Commission and all these procedures when the member states don’t act the way the Commission wants. These procedures end up at the European Court and if we look at the statistics, these procedures are won by the Commission at a very large amount. So, by every precedent, federalism scores another goal. It’s a very hard situation even though hard law says that sovereignty belongs with the member states and just some aspects of sovereignty and some aspects of power are performed jointly with the other member states of the Union. So, the legal background is completely on the contrary, what the European policy makers and judiciary dictates from the top. If you agree with this diagnose, how do you think this will play out?
You might be right. Actually, you’re in this quandary where you’ve got this whole apparatus now that’s just moving on its own logic. And you’ve got this populous revolt in many countries in Europe that either so far has been—in a sense—suppressed, or such suppression hasn’t expanded to the point that they’ve taken over national governments. Maybe in Italy, you could say that they have. But in France, in Germany, you’ve got this kind of populous sentiment that is interpreted from the bureaucratic classes as the sort of proto-fascism or something like that.
When it comes to suppression, there’s a belief that the more someone is oppressed, the stronger their resistance will become. What’s your guess on this on a European level?
It’s not clear what the end game is. It could be just disintegration. I don’t think it’s a good situation at this point. And there are no clear solutions, right?
Let’s try to find out the solutions together from a Hungarian point of view. What can a small country like this country do in such a situation? The rule of unanimity vote is planned to be discarded from the treaties and the principle of subsidiarity is also getting annihilated by the EU judiciary and the administration. But in the meantime, obviously, Hungary doesn’t want to exit the European Union, which sound rational the European Union must and can be reformed from within…
That’s a difficult question. Let’s scroll through the options. I see three options there. First, it is an option for Hungary to exit the European Union. I mean, Brexit could have been more successful if Great Britain had existing political economic policies that made more sense for Great Britain. Because part of the problem with Great Britain is Great Britain’s own policies. So, if—I mean, I’m not suggesting this but I’m just saying—Hungary were to exit the European Union and it did it in a way in which that it would maintain economic and political policies that really make sense for it, maybe that would be a possibility. The opposite option, I suppose then would be to stay within the European Union and essentially, surrender, and just do what needs to be done in order to stay in the European Union.
But obviously, it comes with lots of compromises…
Sure, it does. It depends on what you’re willing to compromise, what you’re not. And I guess the third option would be to ultimately define allies within the European Union for the ideas and policies that you would have in Hungary, but it would be the best chance you find allies where you can find them and develop them. And I think part of it is also developing a discourse, a long-term perspective with some ideas about what is Hungary really after. About What are the goals here. And how would those goals match up with goals of other European nations that seem to also have the same types of complaints but have not been able to articulate them so well and certainly have not been able to establish them within government structures or political parties.
Are you talking about only exploring and establishing political alliances, or is this something more?
I think there’s also an intellectual sphere of this game where you really have to develop the intellectual foundations for what’s happening, for what you’re trying to do. Because that’s what really going to help all over Europe since a great part of the problem is that the populist revolt is by definition anti-intellectual, right?
Could you provide further explanation regarding the point you made in your previous sentence?
I mean populism is anti-bureaucrat, therefore anti-university, anti-intellectual. And that leaves it in this precarious position on that theoretical intellectual level. And so, it really needs, a set of ideas that would make it more legitimate, but also make it make sense, right? And to think through the possibilities, to think through the exact contradictions and problems that exist now in order to somehow imagine these alternatives.
So, basically you are recommending a much more sophisticated approach compared to the hardliner sovereignism that informs for example the jurisdiction of the current Polish Constitutional Court, right?
Well, yes, I guess so. You know I’m not against ‘hardlining’. But to be more specific, what I’m against is the sort of ‘know-nothing’ hardliners, right? Things are have to be thought through, things need a kind of fundamental political philosophy, not just individual policies or political positions. I’m saying this because Europe has been even much more dominated by sort of welfare state thinking about the relationship between people and government than in the United States. And it’s had a horrible effect on the entire development. But there hasn’t really been much thinking about an alternative to that and what an alternative would look like. And that has to be developed. But the problem is that there’s not too many academics and intellectuals that are willing to think this through.
How would you label the current foreign policy of Hungary? Is it informed by a ‘know-nothing’, or a benevolent hardliner approach when it comes to endorsing sovereignty?
I’m hopeful with Hungary. I think, your country can definitely build bridges. I’m very impressed with the intellectual activity in Budapest, and it’s good, because you have to start this where you are. Then, it has to know where to look, and there’s certainly places to look in other European countries. You have to think through the way to reach different compromises within the country that support your goals in a productive way. And if you can do that, then maybe you can get somewhere in influencing other member states in the European Union.
Gergely Dobozi is a commentator and editor holding a law degree from ELTE University. Currently he is a Research Fellow at Danube Institute and editor-in-chief at Hungarian Conservative Online. He began his career as a commentator at Mandiner in 2020 where he maintained the column titled ‘Precedens’ that covered and analysed developments in the world of law. As a third-year PhD student at the University of Public Service, his areas of expertise include state sovereignty, judicial activism, international and EU law.
As we discussed in our previous post, at its inception, Section 230 was seen as a boon for the internet. It protected burgeoning platforms from a potential onslaught of litigation. Without such protections, these platforms might have been wary of allowing user-generated content, fearing lawsuits at every turn. Given the volume of posts, comments, and shares, it would have been an insurmountable task for platforms to vet every piece of content for potential liability. Thus, Section 230 provided the shield necessary for these platforms to grow and for the internet to flourish as a space for open discourse. However, the very protections that spurred the growth of these platforms have now become a double-edged sword. As these platforms have evolved into influential giants, so too have the complexities of the content they host. Misinformation, hate speech, and divisive or incendiary content have become commonplace. The once-celebrated virtual town squares now carry the potential to distort public perceptions, fuel societal divisions, and even sway elections.
Given these challenges, the call for regulation is understandable. However, the U.S. government’s hands are tied, to a large extent, by Section 230. Any attempts to hold platforms accountable for user-generated content run into the protective wall of this statute. For instance, if a piece of false information is propagated on a platform leading to real-world harm, the platform remains shielded from any liability due to Section 230. This makes it challenging to incentivize platforms to be proactive in managing and moderating content. Every move towards oversight must be measured against the right to freedom of speech. There’s a fine line between curbing harmful content and stirring genuine discourse. Additionally, the global nature of these platforms means that regulations in the U.S. might have implications worldwide, or alternatively, global content can impact U.S. users, complicating the jurisdictional scope.
Moreover, Section 230 blurs the lines between a platform and a publisher. Traditional media entities, like newspapers or television networks, are held to strict standards of accuracy and can be liable for spreading false information. In contrast, social media platforms, while influencing public opinion just as potently, if not more, escape these responsibilities. They enjoy the vast reach and influence of publishers without the accompanying accountability. The dichotomy of Section 230 becomes even starker when one considers the algorithmic nature of these platforms. While they might not create content, they undoubtedly influence its reach. Algorithms decide which content is highlighted on user feeds, potentially amplifying some voices while muting others. This curatorial role is akin to editorial decisions in traditional media, yet the platforms remain absolved of the responsibilities that accompany such power.
Because of Section 230’s protection, social media companies have been largely free to develop their own content moderation policies without fear of legal repercussions. If these platforms decide to remove content or leave it up, Section 230 protects their decisions either way. This autonomy has made it difficult for regulatory attempts that aim to hold platforms accountable for user-generated content or misinformation. Furthermore, any government-led effort to mandate specific moderation practices could run into First Amendment challenges. Section 230 allows platforms to navigate the tension between open forums and moderating content without becoming entangled in consistent legal battles.
A recent decision by a federal appeals court that has eased some restrictions on the Biden administration’s interactions with social media companies. The court determined that the White House, the FBI, and top health officials cannot coerce or significantly push social media companies to remove content deemed as misinformation by the administration, particularly related to COVID-19. Nevertheless, the ruling did narrow an injunction by a Louisiana judge that previously prevented the administration from any communication with social media firms. This injunction will remain in place for the White House, the FBI, the CDC, and the surgeon general, but will not affect other federal officials. The court has allowed the administration a period of 10 days to seek a review from the U.S. Supreme Court. This case originated from two lawsuits, one by a group of doctors and another by a conservative nonprofit organization. Both accused the administration of infringing upon their free speech rights by pressuring social media platforms to censor their content.
Addressing the challenges posed by Section 230 is not straightforward. Repealing it entirely could stifle free speech, as platforms, fearing litigation, might opt for excessive censorship. On the other hand, letting it stand in its current form allows platforms to sidestep the broader societal responsibilities. There’s also a concern about the potential impact on smaller platforms or startups, which might lack the resources for extensive content moderation. Without the protections of Section 230, they could be exposed to debilitating lawsuits. Therefore, regulatory measures that would place more responsibility on platforms for user content have to grapple with the broad immunity granted by Section 230. This isn’t to say that social media platforms can’t be regulated at all, but Section 230 does present a significant hurdle for legislators and policymakers looking to place greater accountability on these companies for the vast amount of content circulating on their platforms.
Section 230, while foundational in shaping the internet we know today, has become a significant roadblock in the path of meaningful regulation of social media platforms. As society grapples with the influence and impact of these platforms, a nuanced reconsideration of Section 230 is imperative. Striking a balance will be complex but essential to ensure that the digital spaces remain open for expression while being safeguarded against their potential detrimental impacts. It’s a testament to the evolving nature of technology and society, where laws once seen as catalysts can become impediments, necessitating reflection and reform.
János Tamás Papp JD, PhD is an assistant professor at Pázmány Péter Catholic University, Hungary, and a legal expert at the Department of Online Platforms of the National Media and Infocommunications Authority of Hungary. He has taught civil and constitutional law since 2015 and became a founding member of the Media Law Research Group of the Department of Private Law. He earned his JD and PhD in Law at the Faculty of Law and Political Sciences of the Pázmány Péter Catholic University. His main research fields are freedom of speech, media law, and issues related to freedom of expression on online platforms. He has a number of publications regarding social media and the law, including a book titled „Regulation of Social Media Platforms in Protection of Democratic Discourses”.