The following is a forward from the Black-Left list, pertinent to discussion of U.S.
First Amendment protection of fascistic racist speech.
CB
>>> [EMAIL PROTECTED] 08/10/00 06:22PM >>>
It appears that the Danish government is working towards a society that is
parallel to the values proffered in "Words That Wound: Critical Race Theory,
Assaultive Speech, and the First Amendment," a collaborative effort by
Kimberle` Williams Crenshaw, Richard Delgado, Charles R. Lawrence III,
and Mari J. Matsuda:
"Words, like sticks and stones, can assault; they can injure; they can
exclude. In this important book, four prominent legal scholars from the
tradition of critical race theory draw on the experience of injury from
racist hate speech to develop a first amendment interpretation that
recognizes such injuries. In their critique of "first amendment
orthodoxy,"
the authors argue that only a history of racism can explain why
defamation, invasion of privacy, and fraud are exempt from free-speech
guarantees while racist and sexist verbal assaults are not."
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The following is one of several links listed under:
http://www.um.dk/cgi-bin/lpe2/find.words.pl
Fourteenth Periodic Report of Denmark Concerning the International
Convention on the Elimination of all Forms of Racial Discrimination
Article 4
Re Article 4 (a)
Criminal cases concerning racist statements
135. Section 266 b of the Criminal Code (straffeloven) prohibits the
dissemination of racist statements and racist propaganda.
136. The provision was inserted in the Criminal Code in 1971 in connection
with
Denmark's ratification of the International Convention on the Elimination of
All
Forms of Racial Discrimination to ensure full compliance with article 4. It
is
stated in the history of the provision that, when applying the provision,
due
consideration for the freedom of expression must be shown.
137. The maximum penalty for violation of section 266 b was increased by Act
No. 309 of 17 May 1995 by addition of subsection (2) of the provision,
according to which it is an aggravating circumstance when the offence is in
the
nature of propaganda activities. The amendment was extensively commented
upon in Denmark's thirteenth periodic report (CERD/C/319/Add.1), paras. 24
to 27. The purpose of the amendment was to extend the enforcement of the
provision to prevent Denmark from becoming a sanctuary for the dissemination
of Nazi and racist propaganda.
138. Under the present legal practice concerning dissemination of racist
statements, the courts assess the consideration of freedom of expression and
freedom of press as opposed to the consideration of protection against
racist
statements when assessing whether an offence has been committed.
Particularly
in criminal cases against journalists and editors the courts have thus made
a
specific assessment of the purpose of reproducing the racist statements,
including whether the protection of the persons who are exposed to gross
contempt by the statements reproduced is stronger than the need for
conveying
the statements to the public. The courts have made a similar concrete
weighing
between the consideration of privacy and the consideration of news
communication in criminal cases against journalists for violation of penal
provisions on privacy.
139. To ensure a uniform indictment practice, the Director of Public
Prosecutions determined by notice of 6 September 1995 that the indictment
issue be brought before the Director of Public Prosecutions in all cases
concerning violation of section 266 b of the Criminal Code in which a
provisional charge has been brought and that the Director of Public
Prosecutions be notified of all information to the police that are rejected
without
a provisional charge having been brought.
140. Since the Danish Government prepared the thirteenth report to the
Committee on the Elimination of Racial Discrimination, conviction for
violation
of section 266 b of the Criminal Code has been passed in nine cases:
- By judgment of the District Court in Gr�sten of 8 November 1996 a man was
sentenced to prison for 20 days for violation of section 266 b of the
Criminal
Code by having uttered to a Korean: "Such a dirty pig should shut up and go
home" at a restaurant and for violation of section 244 of the Criminal Code
by
immediately afterwards having nutted another guest and hit him in his face.
- By judgment of the District Court in Randers of 28 November 1998 a man was
sentenced to 30 socalled "day fines" 2 of DKK 100 for having, at the post
office
in Randers, uttered statements of a scornful and degrading nature to two 13-
year-old girls of Turkish origin and two Africans and for having threatened
the
two girls to leave the post office.
--------------------------
2 A socalled "day fine" is a fine proportionate to the offender's daily
income.
- By judgment of the Criminal Court in S�nderborg of 10 April 1997 a
63-year-
old man was sentenced to ten "day fines" of DKK 100 for having written the
following on young immigrants in a letter to the editor: "Today, the culture
that
these young people bring is theft and homicide when they do not have it
their
way, or rape".
- By judgment of the District Court in Rudk�bing of 11 December 1997 the
author of a crossword puzzle in the Danish tabloid Ekstra Bladet was
sentenced
to ten "day fines" of DKK 300 for having asked the question: "What is the
most
essential contribution made by Somalis to the Danish culture?", the answer
to the
question in the puzzle being: "Drug peddling".
- By judgment of the Copenhagen City Court of 23 March 1998 the founder of a
political party was sentenced to seven days of suspended imprisonment for
having said in a television programme that Muslims will expose the Danish
population to invasion, castration and homicide and for having characterized
Muslims as world criminals in a television programme. The sentence, which
was
made suspended because of the founder's age, has been appealed to the High
Court.
- By judgment of the District Court in Gren� of 18 May 1998 a 19-year-old
high
school student was sentenced to two "day fines" of DKK 200 for having said
"Shut up you dirty Islamic pig" to a dark-skinned person after a party.
- By judgment of the Criminal Court in Silkeborg of 5 May 1998 a candidate
at
the local election for the right-wing political party the Danish People's
Party
(Dansk Folkeparti) was sentenced to 20 "day fines" of DKK 200 for having, in
a
newspaper interview, uttered the following on immigrants, refugees and
persons
of another national or ethnic origin: "The blacks are spreading everywhere -
just
like cancer", "crime is inherent in the foreigners' genes" and "they are
bolder than
brass". The sentence has been appealed to the High Court.
- By judgment of the Copenhagen City Court of 15 June 1998 a 52-year-old
person was sentenced to 20 "day fines" of DKK 100 for having made statements
on Muslims and immigrants on the Internet, particularly various allegations
concerning serious crime. The Public Prosecutor has appealed the sentence to
the High Court on the grounds that it was too lenient.
- By judgment of the District Court in Ribe of 21 August 1998 a 50-year-old
woman was sentenced to ten "day fines" of DKK 200 for having written in a
letter to the editor that "the Muslims are ravaging, stealing and murdering.
Their
nature consists of nothing else. They secretly obtain rights through power
and
terrorism, not through lawful elections and rightful positions. That is why
they
must be oppressed".
141. In one case at the Western High Court a 30-year-old Dane was acquitted
by
judgment of 12 May 1998 due to lack of proof of having made some statements
in connection with an incident of violence which also involved two persons
of
Turkish origin. The Dane and one of the two Turks were both found guilty of
violence.
142. Finally, charges have been brought in two cases that have not yet been
decided by the courts, and also some minor information on violation of
section
266 b of the Criminal Code are being investigated by the police. For
example, a
member of the Danish People's Party has been charged with having uttered
"that
the principal industry in Poland is prostitution, excuse the expression,
they say
that 80 per cent of Polish women are whores".
143. Since the Director of Public Prosecutions issued the notice of 6
September
1995 and until September 1998, the Public Prosecution has been presented
with
a total of 29 cases in which to make a decision on the question whether to
bring a
charge or not. Charges have been brought in 13 of these cases, whereas
charges
were withdrawn in the remaining 16 cases. During the same period the chief
constables and the Commissioner of the Copenhagen Police have rejected a
total
of 28 information to the police on violation of the provision.
The Danish Broadcasting Act
144. In the concluding observations of the Committee on the Elimination of
Racial Discrimination (CERD/C/304/Add.35, para. 18) it is recommended that
the procedure and practice of licensing radio transmissions be reconsidered.
In
this respect the following information is provided:
145. According to the Danish Broadcasting Act a licence to broadcast locally
may be issued to associations, companies, etc. which meet a number of formal
requirements. It is up to the local radio and television boards to ensure
that each
area has a comprehensive and versatile broadcasting when considering
applications for licences.
146. A number of ethnic minority groups, especially in the big city areas,
has a
licence to broadcast locally. Moreover, a number of local licensees offers
pro-
gramme services for ethnic minorities.
147. If the requirements are fulfilled and free broadcasting time at a local
fre-
quency is available, the licence to broadcast locally cannot be denied.
Censorship
is prohibited no matter what points of view a local radio is representing.
If the
radio violates the Danish legislation, it will be held responsible
afterwards. A
licence to provide local programme services may be revoked temporarily or
permanently in the event of gross or often repeated infringement of the
provisions of the Broadcasting Act or rules laid down in pursuance of the
Act.
148. According to a political agreement of 10 May 1996 on Media a fund of
DKK 50 million is set aside to support local non-commercial radio and TV-
stations. This fund is administered by the National Radio and Television
Committee. A lot of local broadcasting and television stations get support
from
this fund, including a number of ethnic stations and Radio Oasen.
Radio Oasen
149. Since 28 November 1995 a local radio station "Radio Oasen", run by a
neo-Nazi association, has received rights to local broadcasting.
150. The licence issued to Radio Oasen has as a condition that the
broadcasts of
the radio must not contain any attack on or use terms of abuse towards
particular sections of the population. The programmes must not in any way
instigate hatred owing to race, sex, religion or nationality. If the radio
violates
this decision, the licence will be withdrawn immediately.
151. The licence to Radio Oasen was renewed in 1997. The application for
renewal from the Radio was refused by the Local Radio and Television Board.
The Radio, however, appealed the refusal to the National Radio and
Television
Committee. This Committee set aside the refusal due to the fact that there
were
no changes in the circumstances since November 1995. Furthermore, there were
no other applicants for the free broadcasting time at the local frequency.
The
Ministry of Culture has no knowledge of complaints against Radio Oasen.
