“If freedom of expression is sacrificed in the struggle for democracy, there will no longer be anything worth fighting for.” This is a citation from a decision of the Czech Constitutional Court, which deals in detail with the case of a conflict between freedom of expression and protection of public order from 11th March 2025, case no. I. ÚS 1927/24. In this text, we are returning to this decision once more on this blog, as it continues to attract both professional and general attention in the Czech Republic.

By its genre, this is more of a reactionary article. We do not conceal that the driving force behind its creation was the earlier article by T. Mizerová and J. Martínek. In our contribution, we offer a different perspective on this decision of the Constitutional Court of the Czech Republic – in our opinion, the Constitutional Court assessed the matter correctly and appropriately set the criminal law limits of freedom of expression. This text should therefore be read in the context of the article to which it responds, so that readers can assess the issue from multiple perspectives.

Criminal Law and “Political” Criminal Offences

The focal point of the case under consideration was the criminal prosecution of a relatively well-known activist figure, L. V. However trivial it may sound at the outset, we consider it important to first emphasise that the matter at hand was not a civil law dispute, nor an issue of administrative offences. It was a criminal prosecution concerning the following statement during a live stream on Facebook and YouTube:

“Our government is making it crystal clear who we’re gonna be at war with. Basically, they wanna launch nuclear warheads at the Russian Federation from fighter jets. Yeah, that’s what our government is planning to do. If that doesn’t make you jump outta your chair—if it doesn’t scare the hell outta you that our own government wants to nuke Russia—then I honestly don’t know what would. Because if they go ahead with this madness, Russia’s gonna strike back. They’ll send nukes right back at us, to the Czech Republic. So if you still don’t get what Minister [of Defence] Jana Černochová is trying to pull off, and you’re just sittin’ there like everything’s fine—well then, go ahead, sit on your couch and enjoy your last few months on this planet. I seriously don’t know how else to get through to you.”

This statement dealt with current political events; however, its content was subsumed under the offence of “spreading alarming messages”, a provision that is not primarily aimed at restricting political expression, whether intended more or less seriously. The primary purpose, as the Constitutional Court itself notes in the same decision, is to sanction apolitical expressions, such as false fire alarms, groundless cries of “fire!” in public, false information about the placement of explosives in a public building, and other similar behaviour that can cause significant concern in other people.

The fact that, in today’s Czech Republic, statutory provisions that in the past were not primarily used to target “problematic” political expression are now being applied in this way has already been mentioned by Czech legal scholarship. For example, recently appointed Constitutional Court judge J. Wintr (and also a member of the judicial panel in the case in question) has remarked on the offence of disorderly conduct in his article from 2020: “…starting in 2015, disorderly conduct again began to be applied to political acts; among the well-known cases we may mention the red boxer shorts on Prague Castle, a half-naked woman in a polling station, baring one’s backside at the American convoy, or an inappropriate joke accompanied by a photograph of the Lidice massacre.”

The gradual attempts to criminalise various political expressions, even under seemingly apolitical statutory provisions of the Penal Code, by law enforcement have repeatedly encountered resistance from the Constitutional Court. For example, in the case of a periodical advocating the legalization of marijuana in magazine “Legalization”, whose editor-in-chief was prosecuted for the offence of incitement to drug abuse, the Constitutional Court  stated in November 2024: “The dissemination of information relating to the issue of cannabis, including criticism of the current legal regulation of its use, constitutes a contribution to the public debate on matters of public interest, among which belongs the setting of the state’s criminal policy.” In addition, the Constitutional Court generally stated that: “the cardinal importance of freedom of expression in a democratic state governed by the rule of law must always lead to its protection being prioritized in borderline situations, even at the cost of leaving some potentially harmful expressions unpunished, otherwise we risk much more.” Therefore, the current restraint of the Constitutional Court in prosecuting verbal expressions cannot be considered entirely surprising, nor does it deny existing legal opinions or recent case law concerning freedom of expression.

We are of the view that any approach to addressing such problematic political expressions — if they can be considered unlawful at all — should, in line with the principle of criminal law as an instrument of ultima ratio (“instrument of last choice”), begin primarily at the level of administrative law in the form of administrative offences. The other possibility is to deal with similar cases through the moderation of content on social networks and other discussion platforms, or alternatively, apply civil law in cases where someone’s personal rights have been infringed. A potential criminal sanction entails more serious consequences, or at least the risk of more severe penalties for the offender and, indirectly, for their family. It also amplifies the chilling effect on others who might wish to express an opinion that could be perceived as controversial or otherwise problematic. Excessive repression inevitably leads to a weakening of the legitimacy of criminal law (and not only criminal law, but also the law in general) in the eyes of its addressees and to the erosion of trust in the state and its institutions.

The Czech Republic as a Breeding Ground for Disinformation?

The impact of disinformation on societies in democratic states cannot be overstated nor underestimated. However, when examining the harmfulness of certain conduct for society in the case of the Czech Republic, several reasons may be stated as to why the impact of disinformation on Czech society is not as apocalyptic as it might appear in the context of current debates.

The first argument lies in the fact that the penetration of pro-Russian influence in Czech society is still relatively limited. A study by Wenzel et al., based on a survey of a representative sample of the adult population, shows that Czechs reject the majority of disinformation theses concerning the war in Ukraine, and at a significantly higher rate than, for instance, Slovaks, who were also included in this research. From this, it can be concluded that most of Czech society is relatively resilient to the effects of disinformation campaigns, which weakens the presentist argument for the need for criminal repression in this area. Wenzel et al. also demonstrated that although disinformation spreads easily on social networks providing streaming services similar to those at issue in this case, the overall impact of these networks on public opinion — though seemingly significant — is in fact limited.

All these reasons lead to the conclusion that, in comparative terms, the Czech Republic is relatively resilient to disinformation, and that disinformation in Czech society does not pose such a fundamental threat. This is also confirmed by the most recent Annual Report of the Security Information Service for 2024 (the Czech counterintelligence agency), which states expressly on page 20: “The reach of actors and platforms spreading disinformation and conspiracies in the Czech environment largely stagnated in 2024, as these entities failed to find a topic through which they could attract new groups of consumers or a broader audience. Therefore, their current influence could be interpreted as socially limited.” Counterintelligence perceives as problematic the fact that certain individuals consume disinformation regularly and are thus more easily influenced by foreign influence operations. However, the report itself acknowledges on page 21 that: “Measuring the impact of information operations by foreign powers, or more generally the impact of spreading disinformation and conspiracies, remains a challenge.” Therefore, vigilance is undoubtedly in order, yet the question remains whether the “fight against disinformation” can (especially in the current Czech context) be legitimately pursued through criminal sanctions and restrictions of freedom of expression.

In general, it is necessary to point out the still uncertain conclusions regarding the real impact of disinformation on democratic society and the complexity of measuring such effects. As noted in the study by Altay, Berriche & Acerbi: “the quantity of misinformed people is likely to be overestimated”. We believe that these scholarly findings also provide a reason why hasty judgments about what the state ought to do to prevent the spread of disinformation through criminal law may cause more harm than good. Fears and uncertainties, however understandable, should not give rise to a “moral panic” and to an unnecessary extension of criminal repression, for in our fear of endangering democracy and human rights, we may excessively constrain the very freedom we strive to defend.

Conclusion

We believe that the recent case of the accused L. V. demonstrates the Constitutional Court’s high degree of vigilance against restricting freedom of expression through the instruments of criminal law in political matters. The efforts of public authorities to protect democratic debate in the online sphere must respect the fundamental democratic principles of the state, including protection of freedom of expression, and criminal law should be used only as a last resort (ultima ratio) in addressing controversial and potentially unlawful expressions.

The impact of disinformation on Czech society remains at the centre of a lively academic debate. Without drawing hasty conclusions, we consider it appropriate to adopt a more restrained approach in this matter and not contribute to a “moral panic” or to insufficiently substantiated calls for the expansion of criminal repression in this area. At present, with all due respect to risks connected to disinformation, we probably do know less than we do not know — at least as far as empirical data are concerned — and their actual negative impact may often be overestimated.

However, the data we have presented suggests that the spread of disinformation in the Czech Republic currently does not represent a direct existential risk to the state. Moreover, we contend that excessive reliance on criminal repression could undermine the perceived level of freedom, erode the legitimacy of criminal law, and create an undesirable chilling effect on public debate, while offering little prospect of meaningful positive change. We therefore view the Constitutional Court’s decision as positive and appropriately encouraging courts to exercise restraint in borderline cases and, when in doubt, to give preference to freedom of expression.

Jan Hořeňovský is the director of the Institute H21 and a researcher at the Faculty of Law of Charles University in Prague.

Petr Ráliš is a PhD student at the Department of Criminal Law at the Faculty of Law of Charles University in Prague and a researcher at Institute H21.

Petr Gangur is a PhD student at the Department of Constitutional Law at the Faculty of Law of Charles University in Prague and a researcher at Institute H21.