1. Introduction

Freedom of speech has been one of the most fundamental values of a modern democratic society. However, in a European frame of mind, it has limits, such as the human dignity of others. In this regard, certain symbols associated with totalitarian regimes (such as the Nazi swastika or the Communist five-pointed red star) have been subject to legal prohibition in many European countries. Last year, however, the letter “Z” also has been banned in some states, interpreting it as a symbol of the Russian oppression of Ukrainians. Thus, to paraphrase a well-known Anglicism, “Z” marks the spot for change in our thinking about these symbols, as this new situation raises several questions:

• How to define, which symbols can be considered totalitarian, and therefore be subject to a legal ban?
• What is more important: the idea that the symbol represents for the society in which it is publicly displayed (as reflected upon in Eichman v. US and other seminal First Amendment flag desecration jurisprudence from the early 1990s in the United States), or what it personally represents for the individual who displays it?
• What shall the legislator do in order to efficiently protect both human dignity and freedom of speech?

In this post, I seek the answers to these issues and I make an attempt to provide an objective, well-grounded solution to the problem.

Freedom of speech, opinion, or expression – depending on your preference and legal culture – is one of the most fundamental values in modern democratic societies. The special significance of this freedom rests on the fact that it provides the opportunity to freely discuss political topics, share ideas, or any matter, which calls for a public inquiry. To put it bluntly, freedom of speech is necessary to be able to communicate about any matter, which is an indispensable element of a functioning democratic society. As many fundamental rights, however, freedom of speech also has limits, namely the rights of other individuals and communities. Therefore, any speech or statement that seriously violates the human dignity of someone or the dignity of a certain group of individuals, may be a subject of prohibition by law. It is important to note, nevertheless, that the fact alone that a certain statement insults someone does justify a ban by law, since the bar, above which something is considered insulting, is completely set by subjective factors which differ from person to person. Therefore, any legal ban can be imposed only by setting objective criteria.

2. Testing the Limits

As defined by the jurisprudence of the Supreme Court of the United States, the statements that might be insulting to those who hear them, but otherwise mean no serious harm to anybody, are protected by the freedom of speech – this is the so-called bad tendency test. Those statements, however, that are so intensive and full of hatred, that they are likely to cause direct harm to an individual or a group of people, are not protected by law and are subject to bans – this is the clear and present danger test, the most strict scrutiny in terms of free speech. The test says that the printed or spoken word may not be the subject of previous restraint or subsequent punishment unless its expression creates a clear and present danger of bringing about a substantial evil. As the name suggests, the danger that the speech carries must be clear, that is to say obvious, unequivocal and it must be present, which means it needs to be direct, immediate.^[1] The clear and present danger test was later largely supplanted by the Brandenburg test (or imminent lawless action test). According to this test, as Richard Parker argues, a speech cannot be prohibited by law, unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” To illustrate this, let’s imagine, that somebody speaks out against the Jews with such an intense hatred, that it incites such anger in those who are listening to it, that they attack the nearby synagogue. The problem is, that the likelihood of a speech causing such drastic effects is rather low. It can be seen, that the American practice leaves very little chance for banning free speech, which is understandable, since this fundamental right is held in very high regard, especially in the US. The Hungarian Constitutional Court (hereinafter referred to as HCC) also developed a test, which is somewhat similar to the American one. In its Decision 30/1992. (V. 26.), The HCC ruled that the freedom of speech is one of the most important fundamental rights, it is second only to the right to life and human dignity in the hierarchy of rights, since it is the “mother-right” (Mutterrecht) of all communication rights.^[2] Therefore, it cannot be constrained on the basis, that it is personally offensive to someone, since the right to free speech is destined to ensure free communication, not to defend individuals from an offensive speech that is addressed to them. In light of these statements, the HCC said that the freedom of speech can be constrained in accordance with the general standard for limiting fundamental rights, which is the test of necessity and proportionality. According to this test, a fundamental right may be constrained only, when the protection of certain values – to which the speech to be banned is dangerous – cannot be accomplished by other, less strict means, and the harm caused by the ban is proportionate to the value to be protected. The HCC also examined, whether the Hungarian ban on Nazi and communist symbols^[3] is unconstitutional, but ruled each time, that the ban corresponds to the abovementioned criteria.^[4]

3. The Legal Ban on Symbols

Why do certain symbols need to be banned?

We could think of many reasons, based on our personal preference. One of the most important reasons to ban symbols (in Europe) is the need to protect the human dignity of others, as mentioned above. The sight of the emblems of those political systems, under which their relatives suffered serious atrocities is not just upsetting but can induce fear in some people. When the legislator decides to ban the use of a symbol, for this reason, a conflict between two fundamental rights – freedom of speech versus human dignity – will arise, and most people will likely agree, that the latter is more important. However, the protection of human dignity may be the most justified, but not the only factor that can lead to the decision of a legal ban. It can also be banned as a political message. For example, after 1989, Eastern European countries adopted several legal measures with the purpose of separating themselves from the former communist regime (renaming public places, knocking down the statues of Soviet leaders etc.). Among these measures was the ban of the symbols of totalitarian regimes. By banning their emblems, the new leadership expressed their rejection of these ideologies and instead promoted democratic values.

It needs to be mentioned, however, that the ban of certain symbols associated with totalitarian regimes is mainly a European practice. While in other parts of the world, certain symbols have a similar reputation, as the swastika or the red star in Europe, their use is not prohibited by law. In Korea, for example – and in other parts of Eastern Asia as well – the Japanese rising sun symbol represents oppression and the atrocities committed by the Empire of Japan before and during WWII. The symbol, however, has not completely blended with this negative meaning, since it is also an important historical symbol for Japan.

We can take a look at another example in the United States. The Confederate Flag has been symbolizing racism, slavery, and white supremacy, and, albeit not banned, its use is very controversial and not welcomed in most places in the country. As we see, each culture has its own controversial symbols – they are either official emblems of totalitarian regimes or hate symbols used by certain radical groups. Regardless of whether it is legally prohibited, or not, the public use of these symbols can insult, or even inflict fear in specific communities or the general public.

The newest addition to the ever-expanding list of banned symbols is the letter “Z”, at least in some European countries. This letter has been used by the Russian army and their supporters in the 2022 Russian-Ukrainian war, and it has been seen used on tanks, buildings, flags, etc. since the start of the war in February 2022. As the letter “Z” – and, in some cases “V” also – has been understood as a symbol of the invasion of Ukraine, the slaughter of dozens of civilians, including women and children, several European countries – such as Lithuania, Latvia, Ukraine and some lands of Germany – decided to ban its public display. There have been no judicial cases so far, but the ban of a singular, regular letter, which is part of many European countries’ alphabets might lead to absurd situations in the future.

4. The Criteria for Banning Totalitarian Symbols

As we see, certain symbols, which cause controversy, are present all over the world. Most of them have a history behind their meaning, but it also occurs, that symbols – which do not need to be military, or official state symbols, they can be ordinary things, like letters – are banned for a newly gained negative meaning, just like in the cases presented above. Therefore, it seems that the methods, by which a symbol is declared as offensive or totalitarian, and its public use is constrained, are rather unpredictable, which have harmful effects on freedom of speech.

Who knew two years earlier, that by 2023, the public display of ordinary letters would result in punishment in some parts of Europe? And who knows, what other symbols may face prohibition in the future? Prohibiting the public display of symbols limits freedom of expression, thus any ban needs to be predictable, well-grounded, and reasoned. But, how is it predictable, what symbols will be qualified as totalitarian in a few years? It seems like these processes depend mostly on viral political trends which are, in fact very volatile. For this reason, to define what symbols are totalitarian – and therefore call for a legal ban – we have to examine the actual historical facts along with the totality of circumstances.

If we take a look at the swastika, for example, or any other symbol associated with Nazism or fascism, most people do not question, why they are so controversial, and why their public display or distribution is banned in many European countries (except, e.g., for use in public education). This seems evident since the war crimes committed by the Third Reich are well known not only in Europe but in the entire world. The case is almost the same with the five-pointed red star, the sickle and hammer, and other symbols that can be linked to Communism. While the atrocities of the communists are not as widely known as the Nazis’, the reputation of the Socialist system equals to the Nazism in Eastern Europe, where Communist symbols are also banned. Both systems committed war crimes, had millions of victims, used terror and intimidation on state level, both targeted a certain group of people and declared them as enemies of the state (the Jews for Nazis and the bourgeoisie for Communists) and the list goes on. Some of these characteristics also fit other systems represented by symbols, which are controversial in certain parts of the world, such as serious war crimes were also committed by the Empire of Japan (represented by the rising sun flag) and the oppression of a certain group of people (black people) was a main attribute of the Confederate States (the confederate flag).

In the case of the letter “Z”, it seems to meet some of the above-mentioned criteria, but not without a doubt: we can say, that oppression of a special group of people (the Ukrainians) is present, and many have raised concerns that the Russian army is committing serious war crimes in Ukraine, but a universally accepted – and academically supported – consensus does not exist yet, therefore it cannot be stated, in this regard, that the ban on letter “Z” is completely justified. In addition, symbols that have been banned for a longer time (like the swastika or the sickle and hammer) also have one more thing in common: their meaning is merged with the respective totalitarian systems to the point, that it cannot be reversed – at least within the culture, in which it is looking forward to be banned. The five-pointed red star, for example, has a very different reputation, depending on which country we are talking about. If a Hungarian or a Polish person sees it, they almost definitely link it to communism and think about the time period between 1945 and 1989, when their countries have suffered under regimes, which adopted communism and socialism as the official state ideology. In contrast, if a Dutch or a Spanish person sees this, they may not equate the red star with oppression and totalitarianism, but with social equality or the international labor movement. Therefore, it would be unimaginable to ban this symbol in Western or Southern Europe. It is worth noting, that the European Court of Human Rights also has adopted a similar view, stating that the people – especially the younger generation – are more likely to link the red star to the Converse shoe brand or the Heineken beer company, than to communism. That is to say, in order to be banned in a specific country (under the totality of circumstances), a symbol must be permanently and irreversibly merged with the totalitarian system, or with another negative phenomenon. As with the case of the letter “Z”, this might be problematic and it marks the spot for a change in our thinking.

It is certain, that the new meaning and context of the letter is widely known since it has been observed on tanks, buildings, and clothes, and the media has reported about it on several occasions as well. However, is it arguable, whether one year is enough for a so far ordinary letter to be permanently and irreversibly viewed as a symbol of the Russian oppression from here on out. Previously it was associated with a folk hero fighting against state military oppression, Zorro, interestingly enough a completely opposing context of the current one. Other popular associations include “Antz”, a popular Dreamworks animated movie about Z, the Ant. In my opinion, given the above examples, one year is not enough to draw drastic conclusions about the meaning of one letter, and together with it, impose serious limitations on the freedom of speech; the letter “Z” may be seen as affiliating someone with the Russian invasion even more as the war continues longer, but, in my point of view, it is a task for the future generation to decide, whether Z indeed marks a concrete spot for change in regulation or time heals all wounds.

[1] To learn more about the clear and present danger test, see Schenck v. United States 249 U.S. 47 (1919), Abrams v. United States (1919), Dennis v. United States (1951)

[2] HCC Decision 30/1992. (V. 26.) AB, ABH 1992, 167, 171.

[3] See: Act C of 2012 on the Criminal Code (Hungary), Section 335

[4] The first time in HCC Decision 14/2000. (V. 12.) AB, then in HCC Decision 4/2013. (II. 21.) AB

Gergő HERÉDI is currently an undergraduate law student at the Faculty of Law and Political Sciences of the Pázmány Péter Catholic University and spends his professional internship at the Public Law Center of the Mathias Corvinus Collegium in Budapest. His main areas of interest are the modern challenges to fundamental rights, especially freedom of speech. His research centers mainly upon the ban of totalitarian symbols in relation to freedom of speech.