A Turkish victory, and some questions

Zafer Üskül

Congratulations to my friends at the Ankara-based Turkish LGBT group KAOS GL for a major victory in court.   In 2008, the right-wing paper Yeni Akit (New Contract, now known as Vakit or Time)  printed a column by Serdar Arseven about the then head of the Parliamentary Human Rights Commission, Zafer Üskül, attending a meeting organized for the International Day Against Homophobia. The story was headlined “Üskül prefers perverts”  (“Üskül’ün tercihi sapıklardan yana”). Üskül, a member of the ruling Justice and Development Party (AKP), had promised that the government would not segregate gay and lesbian people or their rights. The paper called this “giving assurances to she-males.” KAOS GL sued the writer and the newspaper for injury.

The group lost two lower-court decisions, with judges finding the comments “within the limits of criticism.” This week, though, Turkey’s High Court of Appeals ruled against the publisher and author, holding that “The freedom of the press does not encompass the freedom to insult the personal freedoms of individuals.”  It fined the newspaper 4000 Turkish Lira (about US $2150) and Arselan 2000.

It’s a notable decision because there’s only the thinnest paper trail of precedents in Turkey for minorities and marginalized groups challenging the powerful, and winning.  It’s also heartening to see a leftist group engaging with the state’s institutions in order to claim rights: the general strategy of the Turkish left for decades — at least since the 1980 coup — has been to give the state  a wide berth, on the expectation that it will offer no protections and can accomplish no real good. In this sense, it’s also a small victory for the AKP itself, a party which, in a halting and highly limited way, has struggled to institute the rule of law in Turkey and eliminate the dominance of undemocratic forces, especially the military. Üskül, a professor of constitutional law, is a bit of an outlier in his party, where the commitment to human rights (especially on the Kurdish question) remains troublingly partial. But a court decision supporting the “personal freedoms” of LGBT people would have been inconceivable a dozen years ago, and not just the courageous activists of KAOS, but Üskül and the AKP deserve some of the credit.

Radikal quotes Ali Erol of KAOS as saying, “”The case has a symbolic significance.” It’s certainly not going to shut down Vakit or shut up Arseven. At the same time, some questions strike me about where it leads. Turkey has a terrible record on media censorship — as bad as its longstanding record of ignoring or persecuting minorities.   In early 2011, the government handed Internet service providers a list of 138 words that should raise red flags for blocking.  In a nice Orwellian touch, Yasak, meaning forbidden, was forbidden — presumably to cut short criticism of the censorship; so were free and pic, for perhaps more obvious reasons.

Some of these strictures were later dialled back, but the Internet filtering system still blocks some 20,000 websites, including political as well as erotic ones. Meanwhile, laws on insult and hatred are a running threat to free expression in the country. Article 312 of the Criminal Code provides a three-year prison term for inciting “racial or religious hatred” if it threatens “public order.”  The current Prime Minister, then mayor of Istanbul, served ten months in 1999 under this provision, for reading a poem aloud; the head of the Turkish Human Rights Association was jailed in 2000 for urging understanding between Turks and Kurds.   Article 301 of the Code still criminalizes “insulting the Turkish nation”; in its pre-2008 iteration, penalizing “insulting Turkishness,” it was used to prosecute dozens of prominent critics of government policy, including Nobel winner Orhan Pamuk. You get the idea.

Hell's kitchen

It would be unfortunate if hate speech regulation were revitalized as an excuse and umbrella for the Turkish government to punish arguments it doesn’t like. There’s an old proverb: “If you sup with the devil, bring a long spoon.” (I think it’s German; if it’s not, it ought to be.)  The same caution applies to enlisting the power of a still-repressive state on your own side. Beyond question, the state needs to defend all its citizens. Sign it on to a progressive cause it if you can; but bring not just a long spoon, but a heavy-duty microscope for the menu’s fine print.

KAOS GL, of course, has also faced attempts at censorship, which gives it a certain moral authority on the subject. In the most famous case, from 2006, the authorities confiscated copies of the group’s magazine, claiming they were obscene.  KAOS has pursued this case to the European Court of Human Rights, where the Turkish government asserted they acted on a permitted exemption to the right to free expression — endeavoring to protect “public morals” from harm.  As I’ve noted here before, I helped draft a third-party intervention in this case, in which we argued that the concept of “public morality”

must reflect the diversity of interests and populations comprising the public sphere and not just that of the majority. A secular democracy, espousing ideals of pluralism, including freedom of expression, cannot assert or promote a singular and incontrovertible vision of public morals, and censor materials that dissent from that perspective….  The idea that a state can justify repressive measures merely by pointing to a “public morality” without evidence, definition, and elaboration has been largely discredited. Council of Europe member states, countries around the world, and international and regional bodies have recognised—expressly or implicitly – that “public morality” arguments are acceptable only where some real and specific harm to society can be shown. In the face of this growing international trend, authorities may not criminalise and confiscate publications without demonstrating what harm it causes to what part of the “public,” when, and where, and tailor any restrictions to any specific harm. Authorities cannot evade that responsibility by postulating a “public” and its hypothetical values as a pre-emptive and dangerously free-floating excuse.

I would contend a similar standard should apply for laws on insult and “hate speech”: the harm that an act of expression causes must not be a general, broadly postulated, hypothetical one. It must be capable of specification. You should be able to say who was harmed, and how.

I haven’t seen the Turkish High Court decision, and I don’t know what precise arguments it (or the appellants) made. Nor do I have any clear conception of what its broader implications are.   But as LGBT groups in many countries become both bolder and more empowered in claiming rights through litigation, there are still questions that deserve to be thought through.

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