Sweden’s secularism holds the key to understanding why burning the Qur’an isn’t illegal

To fully understand this debate, one needs to look back at the history of Sweden’s commitment to freedom of expression.

A pioneering law

Starting in school, Swedish students learn about a period of parliamentary history between 1719 and 1772 called “the age of liberty”. This marked the end of autocratic monarchy and the beginning of an era of parliamentary power – a shift triggered by the death of the great warrior king, Karl XII (Charles XII), who had, despite a history of successful warfare, been defeated by Russia in Poltava 1709 and thereafter killed in combat in Norway, 1718.

This was a period of large-scale legislative projects and freedom of speech became central to the idea of freedom from tyranny. The most important piece of legislation was the Freedom of the Press Act of 1766, a law that aimed to protect freedom of information as a means of promoting democracy.

It has been amended since but its tenets remain the same. These tenets include a principle of “responsible publisher” (which means that the whole responsibility for a publication such as a newspaper lies on one single person – often the editor in chief), and a far-reaching protection for whistle blowers.

In 1990, the Freedom of the Press Act was followed by a Freedom of Expression Act. This extended the protection of freedom of expression from the printed press to more modern forms of expression – radio, TV and some digital media (although not many forms of the latter from a contemporary perspective).

These constitutional statutes provide the world’s most far-reaching protection for media. It not only covered criminal responsibility but also private law. Johnny Depp would not have had a case in Sweden against Amber Heard for her article in a newspaper, to use a current example. She would have been free to write her views about him without being sued.

In addition to the two freedom of expression statutes, Sweden has two other basic laws, the government code and the Act on Succession. These four basic laws together form the Swedish constitution. The most important act is the government code. It includes a chapter on basic human rights and freedoms, in many aspects similar to human rights catalogues in international law (such as the UN charter and the European convention) and different national laws.

An important difference between the Swedish human rights catalogue and those in other jurisdictions is that the first rule is on the protection of freedom of expression. This is broadly defined and includes freedom of speech, freedom of information, freedom of assembly, freedom of demonstration, freedom of association and freedom of religion. It is notable that this rule comes before rules protecting the right to life, privacy or ownership.

In Swedish legal culture, freedom of expression thus has a peculiar role as a superior human right. In legal cases, there is often a presumption in favour of protecting freedom of expression over other interests or values – such as privacy or honour.

This is also reflected in general criminal law. There are, as in all jurisdictions, many restrictions on freedom of expression in criminal law. It is unlawful to threaten, defame or harass. It is also unlawful to distribute child pornography, show sexual violence in public or to provoke a mob to attack someone. But the restrictions are often limited in scope.

How the law deals with hate speech

Sweden does not have a specific rule on hate speech. Instead there are three provisions that are considered as hate speech legislation. A provision in the criminal code states that when someone commits a crime with a hate motive, the punishment may be harsher. If someone tries to burn down a mosque because it is a mosque the punishment is more severe than if someone tries to burn down her school because it is her school, for example.

A second, infrequently used, provision in the same code prohibits unlawful discrimination. This is not to say that discrimination is not penalised, but it is more often handled within the civil law system rather than criminal law. The third provision that belongs to the hate speech category is named “incitement against an ethnic group”.

Incitement against an ethnic group has been central in the discussion of Qur’an burning in Sweden. It is the only criminal law rule that provides an opening for bringing charges against the people involved in these actions.

“Incitement against an ethnic group” has a misleading name because the rule does not, in fact, focus on “incitement” but on derogatory or defamatory comments against a group. It also protects not only ethnic groups but also religious groups.

Describing Muslims, to allude to the situation of the Qur’an burnings, as criminals would be criminal. But to burn the Qur’an is in itself not, according to the current formulation of the law, an attack on Muslims. It is rather seen as an attack on the religion of Islam. Such attacks are not illegal because the aim of the attack is not directed against a protected group of people but against a belief – an idea. That is not illegal.

In one of the most secular countries in the world, with a more than 250-year-old tradition of giving freedom of expression priority before all other interests, the presumption is that every expression is allowed. Even expressions that offend people. The current situation is not a bug of the Swedish legal system. It’s a feature.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Mårten Schultz, Professor of Civil Law, Stockholm University