Gábor Halmai - My various identities

11 July 2000

In 1988, just before the transition, several of my friends and I established the Openness Club, a free speech organisation. One of the greatest results of the democratic transition was that freedom of expression became a reality, which also meant that anti-Semitic, homophobic and anti-Romani hate speech became protected by the Hungarian Constitution. In 1990, I started to work at the newly established Constitutional Court as a chief adviser to the President. By 1996, I had prepared several important draft decisions of the Court on various free speech topics. These "hard cases" raised the question of where to set the legal limits on the toleration of opinions or, put in another way, what risks should a state considered democratic and constitutional accept in the interest of the freedom of expression? How far can intolerance be tolerated and how much freedom should be given to the enemies of freedom?

The Court ruled on its most important hate speech case in 1992. In 1991, an ordinary judge, sitting in a pending incitement case against a right-wing newspaper which published anti-Semitic articles, suspended the case. At the same time, he initiated the repressive norm control proceedings of the Constitutional Court to consider the unconstitutionality of the legal provision of the Criminal Code on incitement against community (Article 269(1)), the provision he was expected to apply in this concrete case. In Decision 30 of 1992, the Court rejected the petition seeking a declaration of unconstitutionality and the nullification of the article of the Criminal Code on incitement to hatred. The Court ruled, however, that in light of the provision of the Constitution securing the freedom of expression and the freedom of the press, the provision of the Criminal Code on offending a community (Article 269(2)) was unnecessary and disproportionate and therefore unconstitutional¹. The Court stated that the right to freedom of expression protects opinion, irrespective of the value of its content. Every opinion, good and bad, pleasant and offensive, has a place in the social process, especially because even offensive opinions are an important part of the communication process in a democratic society. "Offensive words" should be answered, according to the Court, not by criminal penalties, but by rights of reply. The Hungarian judge used the famous test of the United States Supreme Court, elaborated by Justice Oliver Wendell Holmes, that the restriction of even speech hateful to others on racial grounds is unconstitutional as long as there exists no "clear and present danger".

In 1994, I published a book on the limits of freedom of expression in which, with the use of comparison, I tried to show that not only the American and the German models, but also the Hungarian one, attempt to implement internationally accepted values, namely the greatest possible free expression. Two years later, the Budapest City Court acquitted an infamous leader of a neo-fascist party and his fellows on the charge of incitement against community through anti-Semitic and Holocaust-denying speech. According to the reasoning of the Court, the crime "incitement against community" is committed only if someone inflames the emotions to such an extent that it may cause hatred and the disruption of social peace. Up to that point, freedom of expression protects even opinions that are offensive, shocking or alarming. The verdict, which was upheld later by the Supreme Court, led to a huge nation-wide uproar. Many NGOs and intellectuals voiced disapproval over the ruling, and argued that it had been made possible only by overly-lenient legal regulation. In subsequent writings and interviews, I defended the verdict, which was based on a decision of the Constitutional Court influenced partly by my own contribution.

My Jewish father has always respected my liberal views on free speech, but this time he requested that although I might keep my opinion, would I please not speak up for the freedom of speech of the fascists. Of course I acquiesced to this request, but I had the feeling that this was a compromise forged out of respect for my Jewish father. In my childhood as a half-Jew, I had never had a strong Jewish identity. But nowadays, with anti-Semitism rising again in Hungary - even in parliament and among politicians close to the government - I have built up my Jewish identity too. According to public-opinion polls, the most hated groups in Hungarian society are homosexuals and drug-users, just ahead of skinheads. According to another survey, 90% of respondents thought that all of the problems of the Roma could be solved if they start to work; 67% agreed with the statement that the tendency to criminality is in the blood of Romani people; and around half of them agreed with the statement that it is a good thing that there are restaurants where Roma are not allowed to enter.

I was very pleased when in 1998 I was asked by some gay rights organisations to give a speech during the Gay Pride Day in Budapest, even though I was sure, knowing the experiences of the speakers in the previous years, that I would be expected by the public to be homosexual. I have also been very pleased to be asked by my Romani friends in Hungary, and by the ERRC as well, to help to work to change the legal situation -and through this, the social situation - of the Roma, the most discriminated against ethnic group both in my country and in the rest of Eastern and Central Europe. I benefit from the sad situation of intense discrimination, by being able to build up many identities, based on my solidarity with the oppressed. That is why meeting the ERRC was a very important and challenging moment in my personal life and career.