Freedom of Speech in Hungary: A Politically Contested Issue for Twenty Years
Hungary’s authoritarian turn
Hungary has gone through an authoritarian turn in the past two years. Since the general elections in spring 2010, the legislature is dominated by a two-thirds majority of the right-wing Fidesz that can hence implement any constitutional changes. Fidesz has indeed used its constitutional majority to alter the entire constitutional system that had been established in 1989–1990. In April 2011, the parliament adopted a new constitution called ‘The Fundamental Law of Hungary’.
Yet the shift towards authoritarianism had started earlier, right after the establishment of the new government in 2010 when the two-thirds parliamentary majority changed the very rules of adopting a new constitution, which in a certain phase of the parliamentary procedure required a four-fifths majority of the members of parliament to agree on the concept of a new constitution. Interestingly, this provision was enacted under the first socialist-liberal government which was in power in 1994–98 and had also enjoyed a two-thirds majority. That majority, however, adopted this rule precisely to curtail its own discretion in constitutional matters while preparing a new constitution.
Indeed, the idea of a new constitution had been floating around essentially since the foundation of the new republic in 1989 because the republican constitution was formally not a new piece of legislation, but an amended version of the 1949 Communist constitution which had been in place throughout the subsequent decades. Exceptionally in Central and Eastern Europe, Hungary’s constitutional revolution in 1989–90 took place by amending the old Communist constitution without adopting an entirely new one. This gave reason for concern in some parts of the public – especially on the political right – that still associated the amended constitution with the Communist regime. In this sense, the new constitution of 2011 fulfilled an old right-wing political ambition. However, its realization was carried out in an authoritarian fashion that has been criticized by numerous Hungarian and foreign political and civil bodies.
The new constitution
The new constitution came into effect in January 2012, changing the entire constitutional system, including the official name of the country which is now ‘Hungary’ instead of the ‘Republic of Hungary’ which had been used since 1989. One can raise several concerns about the new constitution, starting with the very way the new constitution was prepared without providing sufficient time to discuss its government-proposed content. The boundaries of the political community are being blurred in the sense that Hungarians living in the surrounding countries can participate in parliamentary elections. The new constitution ceases to emphasize the principle that all human beings are entitled to human rights because they are human beings. Instead, it speaks about individual rights and responsibilities vis-í -vis the community. The new constitution institutionalizes the weakening of the system of checks and balances in several ways, including the reinforcement of an important limitation on the prerogatives of the Constitutional Court and the effective replacement of a substantial part of the leadership of courts and the prosecution service through the establishment of a new statutory pension age for judges and prosecutors. In addition, the new constitution curtails the means of democratic political competition and the room the manoeuvre of any future government by splitting the authority to adopt the central budget between the parliament and a so-called budgetary council whose members are elected for a period longer than the parliament’s four-year term. Moreover, according to the new constitution, social policies on families and policies concerning the pension and taxation systems are to be adopted by a two-thirds majority of the parliament, hence curtailing the authority of any future governing majority that does not pass the two-thirds threshold.
Against this background, freedom of speech appears to be a relatively little-contested fundamental right under the current government and the new Fundamental Law. In this law, fundamental rights are discussed in a chapter titled ‘Freedom and responsibility’, which includes the following Article IX: “(1) Every person shall have the right to express his or her opinion. (2) Hungary shall recognise and defend the freedom and diversity of the press, and shall ensure the conditions for free dissemination of information necessary for the formation of democratic public opinion. (3) The detailed rules for the freedom of the press and the organ supervising media services, press products and the infocommunications market shall be regulated by a cardinal Act.”
Nevertheless, the formal provision of freedom of speech does not require the state to respect all relevant aspects of social and political life built on it in a democratic society. One crucial example is the highly contested new media law.
The issue of the new media law
The new media law was adopted in December 2010 amidst heavy domestic and international criticism. Left-wing and liberal newspapers were printed with blank front pages, while two editors held one minute of self-imposed silence in a morning news broadcast on public radio. Although oppressive practices imposed by state regulators on media outlets have remained relatively limited since the enactment of the new media law, it remains a highly problematic piece of legislation.
To cite again the opinion of the Venice Commission on the new constitution: “The Venice Commission finds it problematic that freedom of the press is not formulated as an individual’s right, but as an obligation of the state. This freedom appears to be dependent on the will of the state and its willingness to deal with its obligation in the spirit of freedom. This construction has consequences for the substance, direction and quality of the protection, as well as for the chances for successful judicial review in cases of infringements of constitutional rights.” Hence the new constitution fails to define fundamental rights, such as freedom of the press as an individual right, and the respective ‘cardinal act’ – the new media law – reflects the same approach.
Most importantly, the media sector is regulated by a so-called media council, a five-person-strong body whose chairwoman was appointed by the prime minister for 9 years, while the other four members were all nominated by the governing Fidesz and were elected by the parliament. The media council can, in theory, fine any media outlet for violations of the law, including the print and Internet-based media. Although the council does not exercise this prerogative, it cannot be excluded that it would resort to such disciplinary measures if political conflicts intensify, for instance, before general elections. The law imposes content-based regulation on the media, banning disrespectful discourse on any social minority or majority (sic!) – a provision that offers an extremely wide range of interpretation for law enforcement authorities. If it were enforced in earnest, any media content could be punished at the end of the day.
Content-based regulation exists not only regarding the broadcast media, but also the print and Internet-based media. Protection afforded to the sources of journalists is insufficient. This was partly deemed unconstitutional by the Hungarian Constitutional Court and has been criticized by the European Commission and the Council of Europe. In response, the parliament made some amendments and some additional ones might be made in the future. Yet the underlying approach of the law remains problematic in the sense that it establishes overarching government control over the entire media sector, whereas it fails to respect the political independence of public media. Moreover, persons who play key editorial roles in public media tend to come from openly right leaning media outlets, including some media personalities who are associated with the right-wing extremist party Jobbik. In fact, this is not without any precedent: Fidesz cooperated with the extreme right to maintain the dominance of right-wing political agenda in public media already in 1998–2002 during its previous spell in power.
Besides establishing the vehicles of government control over mass media – a typical characteristic of authoritarian political regimes – the controversy over freedom of the press in Hungary is partly related to the issue of hate speech and the freedom to hold non-democratic views. In addition to exhibiting a clear tendency towards power centralization, the current government has promised to limit the influence of non-democratic views within society. The most appealing question regarding freedom of speech in Hungary is hence related to the question of hate speech and the room left for right-wing extremists to express their political ideas.
How to deal with far-right extremism?
There has been a public debate on the issue of far-right political extremism in Hungary since the very beginning of the 1990s when far-right ideas came to the surface once again after four decades of oppression under Communist rule. Do we have to stand this? – asked members of the democratic public. Do political extremists have the right to express their disgusting ideas, including the humiliation of certain persons, ethnic groups, churches or members of sexual minorities? The classical liberal answer was a clear yes, yet not without any debates and legal uncertainties.
The interpretation of laws has not always been clear as laws have, of course, changed throughout the years. The Socialist Party has many times initiated content-based restrictions on freedom of speech, but these have almost always been rejected by the Constitutional Court.
The most important development regarding freedom of speech in the early years of the new republic was probably Ruling no. 30/1992 of the Constitutional Court on Article 269 of the Penal Code concerning hate speech and disrespectful discourse on ethnic groups and other social entities. Paragraph 1 of Article 269 concerning the ban on hate speech was not deemed to be unconstitutional by the Constitutional Court. In contrast, Paragraph 2 of the same article concerning disrespectful discourse on minorities and other social groups was deemed unconstitutional and hence abolished. The Constitutional Court claimed that hate speech resulting in unlawful actions that can be considered to be direct consequences of instigation is unlawful and should be punished under the Penal Code. Those acts of hate speech that do not evoke such consequences must be tolerated as they constitute part of public life in a democratic society even if they question democratic norms and principles.
Hence the Constitutional Court refused the principle of content-based restriction on freedom of speech and adopted a consequences-based one. Essentially, this has remained in effect throughout the subsequent two decades with only one notable exception: a content-based ban was adopted in April 2010 on the denial of the Holocaust (a few months later it was changed to a ban on the denial of the inhuman actions by both ‘National Socialist and Communist regimes’). The first version was initiated by the then governing Socialists and was adopted by the parliament two months before the general elections with the abstention of the then opposition Fidesz.
Surprisingly, President Sí³lyom, Chairman of the Constitutional Court in 1990–1998 and an ardent supporter of freedom of speech, signed this act. Previously, President Sí³lyom had refused all attempts to introduce a content-based ban on Holocaust denial or on hate speech in any other context. The Constitutional Court had supported his views in all cases. It is not entirely clear why he gave in in this particular case. He himself seemed to indicate that he did not want to stir political conflict around this issue before general elections. So, the ban on Holocaust denial became part of the Penal Code in April 2010 to be replaced in June 2010 by the ban on the denial of the inhuman actions by Fascist and Communist regimes with the votes of the then already governing Fidesz.
Debates on restrictions on hate speech
Although with the adoption of the ban on the denial of the inhuman actions by Fascist and Communist regimes the Penal Code now contains an explicitly content-based restriction on freedom of speech, hate speech in general is still not restricted on the basis of content. In this sense, the consequences-based approach remains the rule in sanctioning hate speech under the Penal Code.
As was pointed out earlier, the defining approach of the Constitutional Court on hate speech, formulated in its Ruling no. 30/1992 on the Penal Code, was that hate speech must be tolerated unless it is considered to be an act of instigation that leads directly to violations of the fundamental rights of individuals. This could mean threats to their physical integrity, their freedom of speech or the security of their possessions. These are acts of instigation that must be punished under the Penal Code.
Nevertheless, the underlying question is what exactly can be regarded as a rights violation that is directly caused by hate speech. Ruling no. 30/1992 contains a vague reference to the clear and present danger test introduced in the United States by Justice Holmes of the Supreme Court in Schenck v. the United States in 1919. Interestingly, the conviction of Charles Schenck, the Secretary of the Socialist Party of America, for the distribution of anti-draft propaganda among prospective military draftees was upheld by the Supreme Court and Mr Schenck spent six months in jail.
While setting out the clear and present danger test, Justice Holmes said these famous words: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” By this, he meant that circumstances matter in evaluating the consequences of public utterances: “When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”
Still, as Mr Schenck was convicted for the distribution of printed propaganda (instead of delivering a speech), the Supreme Court could hardly imply that unlawful consequences must occur right at the place and time of public utterance, so that freedom of speech could be restricted. This interpretation of the test became dominant much later – in the 1969 case of Brandenburg v. Ohio when the notion of imminent lawless action was introduced by the Supreme Court. According to this notion, freedom of speech can be restricted if the speaker intends to incite a violation of the law that is both imminent and likely.
Although Ruling no. 30/1992 of the Constitutional Court did not create a discussion on this, the dominant view subsequently adopted by Hungarian judges was based on imminent lawless action. However, as acts of instigation do not necessarily result in imminent violations of the rights of targeted individuals (for instance, Jews and the Roma are – for understandable reasons – typically not present at the gatherings of extreme right-wing groups), this approach appears to be a significant hindrance to sanctions on hate speech even if the latter represents a clear threat to particular members of society. As a result, the constitutional boundaries of freedom of speech with respect to instigation have not appeared to operate effectively in the past two decades.
At the present moment, Hungary maintains freedom of speech at an abstract and general level, guaranteed by the new constitution which essentially reinforces the relevant provisions of the previous republican constitution. At an operational level, however, freedom of speech is contested, for instance, in the case of freedom of the press. Moreover, the boundaries of freedom of speech are blurred with respect to hate speech and acts of instigation resulting in violations of the fundamental rights of targeted individuals.
With the 2010 amendments made to the Penal Code, content-based restrictions on freedom of speech have been institutionalized in the form of the ban on the denial of the inhuman actions of Fascist and Communist regimes. In a more general sense, however, hate speech remains to be sanctioned on the basis of consequences. As judges have not managed to develop a sufficiently operational consensual approach on this, most instances of hate speech are left unsanctioned, although they instigate hatred and threaten with violations of the fundamental rights of targeted individuals.
This entails two important consequences, pointing to the same direction. First, using the means of hate speech, far-right extremists have managed to shift the norms of mainstream political discourse. For instance, ‘Roma criminality’ is a recurring theme and the association of criminality with a particular ethnic group is increasingly becoming part of tolerable public discourse. By using such language and by staging marches and demonstrations instigating hatred against particular social groups, primarily the Roma, the extreme right has mobilized a substantial part of the electorate and has become the second or third largest political force in Hungary.
The second consequence of the lack of sanctions on hate speech that leads to unlawful actions has been the rising appeal of authoritarian governance even among members of the democratic public. If the rule of law cannot meet the challenge of non-democratic extremism, then democrats need to resort to authoritarian approaches too. Such a view, together with the general perception that the Socialist-Liberal governments failed in 2006–2010, contributed to the overwhelming victory of Fidesz at the 2010 elections, resulting in the subsequent turn to authoritarianism.