Should there be limits on free speech? Odessa’s Art TV

In a democracy or anything claiming to be a democracy, should there be a limit on free speech?

In this article, Mykola Tomenko, Deputy Chairman of the Ukrainian parliament, and probably the best leader of Ms Tymoshenko’s party it will unfortunately never have, takes a very robust swipe at Art TV for fueling “ethnic hatred” and is attempting to take the matter to court.  I have a lot of time for Mykola Tomenko.  He is a capable politician who does not engage in the personality mud-slinging typical of Ukrainian politics.

Art TV is a pro-Russian orientated television station which broadcasts locally in Odessa.  It has always been that way during the entire decade I have lived in Odessa.  The owner of this television station is the leader of the political party, Party Rodina, Igor Markov, which is a pro-Russia party.  Mr Markov is an elected local politician and has also held that elected political position for the decade I have lived in Odessa serving in various roles on City Hall committees under various Mayors of differing political persuasion.  He is also an very, very rich man with very diverse business interests in the Odessa region.

Now before I go any further I must make a full disclosure.  I know Igor Markov.  I live next door to one of his homes.  We talk.  We are friendly but not friends (yet anyway).  We get along well enough though.  Occasionally, but not regularly, I will watch his Art TV channel.  With 80+ television channels, I am hardly likely to restrict myself to his television station.  Art TV is also not the only local television station so it is not the only source of local televised news.  No such monopoly exists.  Art TV has only regional coverage and does not broadcast nationally.

OK - background and disclosures provided, let’s return to my opening question.  Should there be a limit on free speech in a democracy, and following on from that, should a high-ranking official from “the democratic opposition” be calling for a curb on the free speech of Art TV, even if he considered it to be fueling ethnic (by being pro-Russian) tensions?

Having seen and listened too, both in person and on national television, Oleh Tyahnybok, the leader or the ultra right Svoboda party, who have a very strong political presence in Lviv and within the Lviv regional administration,  I have to be honest and state that Mr Tyahnybok has made statements far in excess of anything I have ever seen on Art TV and to a far bigger audience - on a very frequent basis.  Yet Mykola Tomenko has not chastised him or his party for what have been on occasion very thinly veiled ethnically inciting statements.

With both Art TV and whenever Mt Tyahnybok or his party are on national television, I have the choice to change channels or turn off the television completely if what I hear and see disturbs or upsets me.  I am an adult and I do not need the State or Mykola Tomenko to make my choices for me when it comes to politics or the propaganda I should be allowed to consume.  As long as there is no incitement for violence towards another to which I may be mentally retarded enough to adhere to, in a democracy, should I be prevented from listening to elected politicians whatever their position?

As Igor Markov is consistently elected on a pro-Russia platform, and Oleh Tyanhnybok on an anti-Russia/anti-EU ultra fascist platform, then they represent enough of society to get elected and I should, in a democracy, be able to hear their views and the views of those who voted for them.  They are after all, part of the same society that I live within.

There is a similar debate in Greece now with the ultra-right Golden Dawn party who have just managed to get some of their members elected.  I recall the outcry when Nick Griffin of the BNP was allowed to air his views on the BBC.  The issue is, however, no matter how repugnant any views of elected politicians maybe, in a democracy to get elected they represent enough people to hold that position and to stifle democratically mandated debate can hardly be democratic can it?

If that is the case, how can a very senior member of the Ukrainian “democratic opposition” want to stifle democratic debate and freedom of speech?

All of that said, there needs to be a line which should not be crossed.  But where is that line?

Let’s turn to the European Court of Human Rights as see what they have to say:

“… tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance…”
(Chamber judgment Erbakan v. Turkey, no. 59405/00, § 56, 6.07.2006)

So Art TV (possibly) and Oleh Tyanhybok, Svoboda have crossed the line?  No so fast.

The ECfHR goes on to say, ”the Court is also careful to make a distinction in its findings between, on the one hand, genuine and serious incitement to extremism and, on the other hand, the right of individuals (including journalists and politicians) to express their views freely and to “offend, shock or disturb” others.”

Oh dear - What seemed like a clear line drawn in the sand has now become much less clear!

Both Mr Markov, his journalists at Art TV, Mr Tyanhybok and the Svoboda Party, have the right to freely express their views and can offend, shock or disturb others, on the proviso that they do not make a genuine and serious attempt to incite extremism.  The issue then is whether anything said or done is deemed as a serious attempt at incitement or whether anything said or done in the public realm is actually simply the right to express views freely.

Democracy these days is generally defined as freedom of expression, freedom of association, rule of law, a free media and a shared belief in basic and fundamental human rights and a pluralistic society etc.  Somewhere within that list of political catchphrases, as a sub-header, must come tolerance, as for all people to have such rights we must be prepared to hear views we do not agree with or indeed find abhorrent.

Ergo, despite the fact I have some respect for Mykola Tomenko, giving due weight to my acquaintance with Mr Markov, and never having had any personal interaction with Mr Tyanhybok or Svoboda (other than listening in person at rallies and on national television to what they have to say),   I have not seen or heard enough from either (or their associated entities that they control) that crosses the line from the free expression of views, to one of  a serious incitement to extremism.

Regardless of whether I agree with what they say or not, when considering the above ECfHR ruling, they simply do not go far enough to fall foul this legal interpretation.

As much as I normally agree with some or most of what Mr Tomenko has to say, this time I have to side with those who are saying things he doesn’t particularly like for the sake of freedom of speech.