There's something rotten in the state of Sweden; Denmark too - opinion

The events in Sweden have underscored that existing legal concepts regarding free expression and the right to demonstrate, when set against harms that necessitate the restriction of free speech, such as incitement to hatred or violence – have not found the finely-tuned balance that is needed in the pluralistic societies in which we live.

It seems that Western legal systems, in the name of free expression (a crucial value and right in a democracy), may countenance the burning of texts considered holy by some if the burning is not aggravated by intimidation, racist hatred, or violence – which to most of us would seem inherent.

One wonders how adequate legal protection can be accorded to minority faith groups that are subject to hatred or violence if certain behaviors, such as the burning of their holy texts, are not excluded from “free speech.” How and on what conceptual basis can laws be framed – beyond those in place today that appear to be inadequate – such that the burning or destroying of religious texts be construed as actionable offenses, and therefore forbidden?

Surely, the scenes of Quran desecration permitted by Swedish law and protected by policemen sent shock waves not just through the Arab world, but through all of us. Have we not all seen images of the past, where unacceptable acts were carried out, and the police or soldiers of the regime stood by, in support?

One obvious way to address the problem is to recognize that public acts desecrating venerated texts constitute agitation against others, and foster hostility and violence – including reciprocal violent acts against Sweden, as we have witnessed and thus, by applying the existing law, such acts may be excluded from the protection of “free speech.”

The above approach would differ from that taken in the cross-burning cases in the United States – but the circumstances in Sweden and the difference between text desecration and cross-burning may enable these to be distinguished.

In Virginia v Black (2003), for example, the US Supreme Court reversed a ruling of the Virginia Supreme Court that invalidated a statute against cross burning. Although it found that Virginia’s statute against cross-burning was unconstitutional – as it violates the Fourteenth Amendment insofar as it provides the presumption that the act of cross-burning is evidence of the intent to intimidate, the Court noted that laws may single out cross-burning for prohibition where such intent exists, because of its long history of use as a threat in the United States. In a similar fashion, it can be argued, the desecration of texts similarly relays a threat, because of its long history as a tool of intimidation, and thus can be singled out for prohibition. A dissenting US judge, Justice Clarence Thomas, argued simply that cross-burning itself should be a First Amendment exception. “This statute,” he wrote, “prohibits only conduct, not expression. And, just as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point.”

Such conclusions can be reached in Sweden regarding the desecration of texts within its existing laws if the Swedish Administrative Court chooses. Thus, even under existing models, more could be done to promote prosecution in cases where incitement to hatred or violence can be found following the US approach, and more simply, as suggested if it were conceded that text desecration, by its nature and history prima facie, constitutes incitement to hatred, racism, and violence, or if a distinction were made between prohibited conduct and expression.

Free speech misconception

But there is a misconception lying at the heart of the issue that is perhaps at the root cause of the problem, namely, that text desecration is “expression.” And since virtually unlimited “free speech” upholds the best of the values of our society, it needs to be countenanced – unless it has the accompanying aggravating factors. There is a kind of false conflict here.

“Free speech” and its curtailment are wrongly construed here to be in conflict with each other, but they are not, for text burning is conduct that is inherently anti-free speech, while, conversely, its prohibition protects freedom of speech. 

What is lacking is an awareness of the concept of “cultural heritage and its preservation.” Laws broadly framed to protect cultural heritage of various kinds – and that forbid the burning of books including holy texts – are exactly what Western legal systems, too narrowly focused on free expression, have overlooked. Free speech and debate, essential in a modern democracy, are predicated upon the ground value of the preservation of cultural heritage, without which free speech, rightly so highly valued in our society, is impaired. Book burning, in a sense, is the antithesis of free speech and thus it needs to be prohibited, even without the aggravating factors of intimidation, hatred, and racism that anyway accompany it.

Free speech is founded upon the protection of cultural heritage. The protection of the materials of culture – whether texts or writings, art, sculpture, structures, ancient artifacts, or historical sites – requires legal directives on all levels, inter alia, the drafting of laws for offenses of causing harm to cultural heritage. Thus, the Taliban’s destruction of the Buddhas of Bamiyan, or Isis’s harming of such ancient sites as Palmyra, in Syria, are acts of destruction that need to be addressed as “crimes of harm to cultural heritage.” These examples require an international forum, but laws protecting cultural assets need also be framed in national legal systems.

Destroying cultural assets – not just holy texts, but all books – in public acts should be prohibited unless there are innocent reasons to do so, such as the need for disposal and recycling. There may be issues too as to the right to destroy one’s own property – but even in this regard, there need be exceptions in the case of cultural assets of significance and the means of disposal. Thus it is the upholding of free speech in a wider sense that is enhanced by the prohibition of destroying cultural heritage, including the destruction of books, or holy texts for that matter – irrespective of an accompanying aggravating factor, such as incitement to hatred or violence, or another harmful factor. Book burning throughout history is inherently an act against culture, ideas, and learning – as well as an incitement of hostility and violence to others – and should not be countenanced.

Indeed, the problem in Sweden could be solved within the existing law, but the questionable results to date indicate the pressing need for the understanding that free speech, so precious in our society, is advanced and not curtailed when acts destroying materials of culture are prohibited.

The writer is an attorney, working in Jerusalem. He has written on topics of public interest, law, literature, and history.