Twitter User's Conviction Imperils Free Speech in Spain

After a previous acquittal, the Spanish Supreme Court has sentenced singer César Strawberry to prison for several off-color jokes he made on Twitter. The court’s decision has been criticized for violating protections on freedom of speech.
The Spanish Supreme Court has sentenced the singer of the Spanish group Def con Dos, César Strawberry, to a year of prison for the crimes of glorifying terrorism and humiliating victims of terrorism.
The offenses stem from comments published on his Twitter feed between November 2013 and January 2014, in which he made fun of some victims of terrorism and criticized some public authorities, wishing death upon them.

The verdict of the Spanish Supreme Court overturns the National High Court's acquittal of the singer, a decision that was quickly appealed by the public prosecutor. The Supreme Court ruled that the messages were humiliating and mocking in nature, "feeding hate speech, legitimizing terrorism as a means of resolving social conflict, and forcing victims to 'recall the painful experience of threat, kidnapping or murder of a close family member.'"

'Terrible' for freedom of expression

The Supreme Court does not share the National High Court’s opinion that the messages transmitted "a critique of the social and political situation" and were of a "peaceful and exclusively cultural nature," and were therefore protected under the freedom of expression.

The Observatory of Civil Rights and Public Freedoms has published in the Rights International Spain blog an article that analyzes and critiques the Supreme Court’s ruling.

According to this article, the ruling "is terrible news for the freedom of expression, in line with the gradual deactivation of fundamental rights by public authorities, in this case by the judicial system."

The article goes on to explain that "at a formal level the ruling appears to deliberate the right to freedom of expression just as the European Court of Human Rights would," but "the problem arises when that which should be exceptional — the limitation of that right — becomes perhaps not the norm but certainly something habitual, well within reach of certain policies, interests or ideologies, due to the disappearance of the system of legal and judicial guarantees enshrined in the constitution for the protection of citizens’ fundamental rights."

'Out of context'

The Observatory highlights the perils of the concept of hate speech inasmuch as "it has become a genuine mantra, a key ingredient, serving as a crutch and an excuse that allows certain judicial actors of a notably conservative stripe to impose their perspective, which may lead to illegitimate restrictions of the right to freedom of expression. It contributes one more brick in the wall that some would like to erect around citizens, to the benefit of certain ideologies."

In this case, the Observatory holds that "the Supreme Court has chosen to analyze these comments out of context, in a purely formal, literalist, biased and partial manner, when in fact they are clearly cultural and political utterances with which the Court simply disagrees. The Court finds these utterances hateful and therefore doesn’t hesitate to identify them as ‘hate speech.'"

In this regard, the article argues that, "in evaluating the protection of freedom of expression, it is important to distinguish clearly the kind of discourse in question. The degree to which this freedom must be protected depends upon the kind of expression at stake. This is determined not only on the basis of the content of the utterance, but also the tone and the form of the message. The right to freedom of expression includes freedom of opinion and specifically political opinion, as well as freedom of cultural expression in all its manifestations and kinds. There are many factors to take into account in evaluating a given utterance and recognizing its protection as the exercise of a fundamental right."

Last word is yet to come

According to the Observatory, "The Supreme Court’s ruling abandons this position and steps into the ring against Strawberry’s political and cultural utterances in the worst way possible: denying their political character, using a totalitarian and abusive language of negation and exclusion. The Court’s ruling does not take into account nor respect the other’s ideas. It confronts him in an intolerant manner, using a counter-discourse that is hyper-correct in form but extraordinarily violent in fact, nothing short of an authoritarian imposition of opinion without any true legal analysis."

The Observatory of Civil Rights and Public Liberties concludes that "this is not the first time that the Supreme Court has acted in this way, proving that it is beyond its depth in these questions. The last word has not yet been spoken, as the Constitutional Court will no doubt weigh in, and if necessary the European Court of Human Rights, which is surely the best court to hear this case as it is not conditioned by the ideological sectarianism and lack of constitutional safeguards which characterizes our highest courts when confronted with certain issues."