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Where free speech ends

May 26,2018 - Last updated at May 26,2018

NEW YORK — I have long defended freedom of speech for all, even those expressing the most appalling views. Yet, I applauded when a United Nations court sentenced Vojislav Šešelj, a Serbian politician, to ten years in prison for inciting war crimes with a nationalist speech in the former Yugoslavia during the early 1990s.

Freedom of speech is a fundamental human right. That is why, when I was the executive director of the American Civil Liberties Union (ACLU) in 1977, I defended that right for a group calling themselves American Nazis, who wanted to hold a demonstration in Skokie, Illinois, home to a large number of Holocaust survivors.

The ensuing dispute ended up involving several court cases, all of which the ACLU won. In the wake of that battle, which aroused controversy for years after it concluded, some applauded my defence of free speech, others viewed it with revulsion. But if I were faced with the same situation today, I would not hesitate to take the same position.

When it comes to Šešelj’s case, however, the Appeals Chamber of the International Residual Mechanism for Criminal Tribunals was right to convict. Šešelj, who had served as president of the Serbian Radical Party, was initially prosecuted for a number of ultra-nationalist speeches he had delivered during a time when he was notorious for trying to foment conflict with Croats and Bosnians.

The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia eventually acquitted Šešelj. The Appeals Chamber upheld the lower court’s decisions on every charge but one, covering a speech delivered at a rally in Hrtkovci on May 6, 1992.

According to the court, Šešelj declared in that speech that “there was no room for Croats in Hrtkovci”, and called on the Serbs in the audience “promptly” to “get rid of the remaining Croats” in that village and the surrounding areas. The crowd responded with chants of “Croats, go to Croatia” and “This is Serbia.”

But it is not the content that stood out, on the contrary, Šešelj’s other nationalist speeches were just as hateful. What distinguished the Hrtkovci speech, according to the Appeals Chamber, is that ethnic cleansing quickly followed, “in the context of coercion, harassment and intimidation”. The court noted that Šešelj enjoyed considerable influence in his party and was even viewed by some “as if he were a god”.

Context is also what differentiates Šešelj’s Hrtkovci speech from the American Nazis’ planned Skokie rally. Again, the content of the speeches delivered would have been equally hateful. But in Skokie, most of the people who would have attended the march loathed the Nazis, who were thus in no position to coerce, harass, or intimidate anyone. The only threat of violence was against the Nazis themselves, which, given advance notice of the event, could have been managed by an adequate police presence.

In fact, once the Nazis won the legal right to march in Skokie, they moved their demonstration to Chicago. They probably knew that their handful of supporters would be far outnumbered by counterprotesters. In other words, the Nazis might have been too scared to march.

The distinction between content and context was decisive in another landmark decision on free speech in the US. In the 1969 case of Brandenburg v. Ohio, the US Supreme Court overturned the conviction of a Ku Klux Klan (KKK) leader charged with advocating violence for his participation in a KKK rally, where he delivered an inflammatory speech. The key, again, was context: the Supreme Court held that the incitement of violence charge did not hold up, because the speech was not delivered in a context where violence was imminently likely.

So the Brandenburg, Šešelj, and Skokie cases all reinforce the same principle: context matters above all. One can be prosecuted for inciting a criminal action, such as forcible deportation or ethnic cleansing, in a context where that action is likely to be carried out imminently by members of one’s audience. If that risk is not imminent, however, the right to free speech must be respected. That is why, to take a famous example from an earlier Supreme Court decision, if one yells “Fire!” in a crowded theatre, one’s right to free speech provides no protection from prosecution, in any empty theater, there is no danger of a stampede, and thus no crime would be committed.

The concrete consequences of Šešelj’s conviction will be limited. Since he already spent nearly 12 years in pre-trial detention, he will not be sent back to prison. And because Serbian law disqualifies an elected official from serving in government after being sentenced to more than six months in prison, he should be blocked from reclaiming his seat in the Serbian parliament, though it remains unclear whether Serbia will uphold its own law.

Nonetheless, the precedent set by the Šešelj decision is important, as it establishes the limits of free speech under international law at a time when ethnic cleansing is being incited and carried out. In Myanmar, for example, the Rohingya have been brutally driven from their villages, with attacks often following speeches by extremist Buddhist monks, who conduct themselves just as Šešelj did. They may never be prosecuted for their hateful words, but, because those words were uttered in a context where the threat of lawless action was imminent, they could be punished without violating their right to freedom of speech.


Aryeh Neier, president emeritus of the Open Society Foundations and a founder of Human Rights Watch, is the author of The International Human Rights Movement: A History. Copyright: Project Syndicate, 2018.

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