A few days ago, Prime Minister Marjan Šarec had a scandalous response to the debate on whether it is appropriate for the partly or majority state-owned companies to advertise in media, which allegedly spreads hostile content. He believes that their readers can understand such advertising as active support for what is written, and called to consider: "Does the desire for profit really justify the tolerance of intolerance?" By declaring that he does “not support advertising in the media that spreads hostile content", the Prime Minister is seriously crossing the line of the politically acceptable, if he is placed as the judge of what constitutes hostile content, who is deemed responsible of it and how to counter it. This is the warning, in a joint statement, of legal experts, Dr Andraž Teršek, Dr Matej Avbelj, Dr Jurij Toplak and Dr Jernej Letnar Čenič.
The following is the letter, published in full, by four legal experts with PhDs in legal sciences, to Prime Minister Marjan Šarec:
Party affiliation, left-right definitions, ideological passions, and political fanatism do not determine and condition our professional, academic and public work. We do not discuss ad personam, we do not attack or defend any – political party, politician, or public office holder. Therefore, we reject and resist political party advertising and the left-right labeling of our work. We are aware of the daily pragmatic political use, exploitation and abuse of our work, when we transfer it to the public space. However, we do not feel that such treatment of our legal and political-philosophical work (as individuals-citizens and political beings, "political animals") is our problem. It is rather the problem of those who do it and of part of the public, which accepts how they do it, as well.
Our only professional, occupational and ethical responsibility and, in this respect, our moral commitment, in the roles of representatives of the legal profession and academia, is exercising the right, which is at the same time an obligation, to draw attention to unconstitutional and undemocratic postures, positions and conduct of political party politicians when we must – due to our profession. We do not worry or concern ourselves with those who will use our public statement for their own political benefit at some point and with those who will always resent us for it. Therefore, we must also bear that which we do not have a direct impact on: the labeling, the abuse, and the abusive charges of our work when these happen. For this reason, we will not change our ethical self-understanding, we will not be loud when this would be contrary to our knowledge and academic responsibility, and we will not be silent when we are convinced that we must not keep quiet.
Although we often explain what is, according to the theory and doctrine of constitutionalism and constitutional democracy, the subject of constitutional protection and what is not, we do not advocate hate speech, insults, instigations, intimidations, manipulations, and neither populism nor demagogy. We are against all that. However, we do not resort to distorting the explanations of the constitutional law concepts in question, nor do we keep silent when an explanation is needed – on what the legal concepts as words mean. By doing so, we defend them: not the declarants, but the concepts. Anyone who does not want to understand this, has no problem with us, but with him/herself and with something that does not directly affect us.
In this spirit and with such ethical self-understanding, we respond in good faith to the media reporting on the current Prime Minister’s explicit statement that he "does not support advertising in the media that spreads hostile content". Such a statement is at the very least a poor one. The Prime Minister is seriously crossing the line of the politically acceptable, if he is placed as the judge of what constitutes hostile content, who is deemed responsible of it and how to counter it. Especially, if he strongly suggests that the hostile content comes from one of the two sides of the political party system only. The Prime Minister targets the content of precisely defined media, which is opposition media, defining it as hate speech, as we understand it. The Prime Minister, as a human being, has the right to make such evaluations. However, as the Prime Minister, he goes too far if he is suggesting with such statement the general existence of hate speech as an act of crime in this media.
We repeat, what seems to be hostile content is not automatically hate speech according to law. What hate speech is, can be and should be, or even will be, has to be prevented and persecuted as hate speech, by the competent authorities. Finally, by the courts, the Constitutional Court and, if necessary, the ECHR. This should not be, however, the subject of the Prime Minister's suggestions, understood as a lesson and instruction to advertisers on what media they should choose as their business partners. This is something completely different. Among other things, it is a politically illegitimate and legally unacceptable pressure on companies to which the state has a direct impact if it is in whole, predominantly or partially included as their owner or supervisor.
With regard to freedom of expression, everything goes, if the Constitution, the law and the judicial branch do not define it as inadmissible. Everything else is about the strategies and tactics of politics, its communication techniques and political ethics. This is a matter of evaluation by the public and the electorate, not of the Prime Minister's influence. If the Prime Minister crosses this Rubicon, that is not good.
Due to its characteristics, the 'hostile' content may be obvious, but it may as well be based on prejudiced subjective impression. Such content is not something that any person, especially a representative of the legal profession, should – personally – support or defend. However, it is still part of the freedom of expression. Such expression is primarily subject to public response, criticism, media criticism, political criticism, sharp evaluation and responsive use of objectively offensive words that are acceptable in the context. Emphasizing that this is all the subject matter of the freedom of expression. With the realization of this freedom, the views in a democratic society are confronted: politely, decently and clearly or sharply, fiercely and unwisely.
However, as long as the statements do not go beyond the boundaries defined by the legal doctrine and judicial decree, they are still part of the freedom of expression. This, as we have said, also includes sharp, very sharp and objectively offensive responses. The Prime Minister’s too. However, this is something completely different from the Prime Minister's instruction, which is communicated as expectation and finger-wagging, on who should be excluded from the business contacts between advertisers and the media. With an important emphasis on the fact that freedom of the opposition-controlled media, is even greater and more legally protected, as is the case otherwise. The same applies to the freedom of expression of opposition politicians.
We believe that the Prime Minister had good intentions. However, good intentions can lead to a bad proposal, if this good opinion tries to be realized with an excessive interference into the freedom of another: even when this other may have less good intentions. Emphasizing that in all media, in the opposition media too, there are too many posts containing some sort of intimidation, instigation, deception, misleading persuasion, or untruthful addressing of the public. We are opposed to all this. Anyone’s assessment that there is too much of it in the opposition media, regarding the policy and practice towards foreigners, this still does not justify this kind of pressure from the Prime Minister, nor does it differently restrict the freedom of the allowed political expression.
Therefore, we propose to the Prime Minister, with the posture and action shown in the above "appeal", to be more cautious, prudent, so that he will not himself cross the line of free action and expression, befitting a Prime Minister.
Dr Andraž Teršek, Dr Matej Avbelj, Dr Jurij Toplak, Dr Jernej Letnar Černič