(From the presentation presented in Warsaw, 14 May 2014)
The institutional structure of democratic
political discourse – an environment and framework for public debates – offers
fora and possibility to discuss issues of public concern. Different opinions
compete on the “marketplace of ideas” and as a consequence, the public power
(government) gained on the basis of the informed decisions realize people’s
self-government (A. Meiklejohn) and enjoys strong legitimation. The democratic
discourses include all relevant opinions represented in society, but there is a
troublesome issue of anti-democratic opinions. The classic question[1]
has been raised in Hungary recently regarding the discussion with the radical
right wing party presented also in Parliament.
Two concepts of democracy collide in this
debate. If we decide to ban extremist parties and we exclude them from public
debates, it may affect not only a certain campaign period, but the whole political
arena as well. (“We do not talk with Nazis.”) The accessibility of democratic
discourses will be limited, by limiting freedom of expression. Although this
freedom is a basic fundament and precondition of democracy, we have to defend
it, “democracy shall be able to defend itself”.[2]
This is the popular concept of “militant democracy”. Arguments on this side say
that involving extremists to debates may legitimate
them as equal partners, and also may help them to disseminate their rotten
ideas. What is more, their presence in discourse may have a “silencing effect”
for those who are the targets of hate speech.[3] And
we cannot deny that history also teaches us for the dangerous consequences of
tolerance for intolerants.
Opposing these arguments, representatives of "deliberative democracy" believe in the intellectual/moral
supremacy of democratic arguments and debates. (“We are able to defeat hatred
by words!”) This standpoint confirms the freedom of expression, and says that
public opinion has a self-cleaning function. Democrats shall reply by arguments
to hatred. If every democratic political force explicitly condemns extremist,
racist, etc. hate speech, hate orators and extremists become marginalized. A
democratic state governed by rule of law must combat anti-democrats in a
democratic manner and respecting rule of law.
The Hungarian
Constitutional Court articulated this deliberative standpoint in its decision
no. 30/1992. Many scholars in Hungary say that the views of the CC were very
naive and twenty years later we do not see any self-cleaning results in
Hungarian public debates.[4] So
they argue that the Hungarian CC should turn away from the “American-style”
protection of freedom of expression, and should protect human dignity at least
in the “German-way”. Although the new regulations in the Fundamental Law, Civil
Code and new justifications in (international) judicial case law can serve as a
basis for this turn, we have to be careful in limiting fundamental rights on
grounds of also indirect expectations.
It is not only because of believing in
democratic debates, but also having serious doubts in the exact and
trustful legal means that aim to determine political discourse.
[1] See similarly, M. Feinemma – M. Maussen: Dealing with Extremists in Public Discussion: Front National and
“Republican Front” in France. In: Journal of Political Philosophy, 2000/3,
pp. 379-400.
[2] The concept occurred in the SRP-Verbot case in Germany, see BVerfGE 2, 1
(1952).
[3] Koltay, András (ed.): A
gyűlöletbeszéd korlátozása Magyarországon. [Limitation of Hate Speech in Hungary.] Budapest, 2013, Complex
Wolters Kluwer. p. 22.
[4] Kilényi, Géza: Az Alkotmánybíróság és a gyűlöletbeszéd.
[The Constitutional Court and hate
speech.] In: Közjogi Szemle, 2009/1. sz. p. 16.
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