CONCURRING OPINION OF JUDGE BOŠTJAN M. ZUPANČIČ

1. It was with some hesitation that I voted for no violation of Article 10 of the Convention. I would agree with the finding in this case without any impediment were the judgment based predominantly on its paragraph 56. There we maintain that it ought to be considered “that the leaflets were left in the lockers of young people who were at an impressionable and sensitive age and had no possibility to decline to accept them. ... Moreover, the distribution of the leaflets took place at a school which none of the applicants attended and to which they did not have free access.”

2. In this respect, the case before us may relevantly be compared to Snyder v. Phelps et al, 562 U.S.___(2011), decided last year by the Supreme Court of the United States. In Snyder an anti-homosexual demonstration far more insensitive than the events in the case at hand took place about 300 metres from the church where the funeral of Mr. Snyder’s son, Corporal Matthew Snyder, who was killed in Iraq in the line of duty, was taking place. There is no need to repeat here the contents of the offensive picketing signs displayed by the members of the congregation of the Westburo Baptist Church, who were in the habit of picketing military funerals in order to communicate their belief that God hates the United States for its tolerance of homosexuality, particularly in America’s military.

3. It is interesting to note that the American Supreme Court takes a very liberal position concerning the contents of the controversial messages. That the statement is arguably of inappropriate or controversial character “... is irrelevant to the question of whether it deals with a matter of public concern” [11] .In other words, freedom of speech in Snyder – a fortiori as a tort case, not a criminal case – was not to be impeded by considerations of proportionality as long as the statement in question could be “fairly considered as relating to any matter of political, social, or other concern to the community”. “Speech on public issues occupies the highest rank of the hierarchy of First Amendment values, and is entitled to special protection”. [12]

4. Moreover, the American Supreme Court has set a higher standard for the applicable law in such cases to be facially constitutional. First, it must avoid content discrimination (i.e., the State cannot forbid or prosecute inflammatory speech only on some “disfavoured” subjects) and, second, it must avoid viewpoint discrimination (i.e., forbidding or prosecuting inflammatory speech that expresses one particular view on the subject). [13] Thus, for example, the legislator may impose a general ban on the public use of rude racial slurs; it cannot, however, criminalise their use solely in race-related public discourse, or their use in order to express only a racist viewpoint. It is interesting to note that if this American double test were applied to the present case, the applicable law (Chapter 16, Article 8 of the Swedish Penal Code) would not pass muster on either count, especially the second: had the applicants defended homosexuality and railed against “wicked homophobes” in their leaflets, they would probably not have been convicted.

5. In our case we have relied on a different kind of logic as did the Swedish Supreme Court, among others (although divided three to two), which considered the relatively inoffensive language of the leaflets to be a cause for criminal prosecution and eventually for conviction and punishment.

6. It is interesting to note that speech inflaming national, racial, etc. hatred was first incriminated in the 1952 Criminal Code of Communist Yugoslavia and this has since been copied by many other jurisdictions, and cited in leading American case books on criminal law, for example. Therefrom developed the notion of hate speech subject to criminal prosecution where one protected class of people was “unwarrantably offensive to others thus constituting an assault on their rights, and without contributing to any form of public debate which could help to further mutual understanding.” If we compare the two cases we might find that the American approach to free speech deriving from the First Amendment is perhaps insensitive. On the other hand, we might certainly also conclude that the above quotation from the Swedish Supreme Court judgment of 6 July 2006 demonstrates an oversensitivity in collision with free speech postulates.

7. This in my opinion is a culturally predetermined debate and is not necessary in a situation where even the Swedish Supreme Court, in its famous pastor’s sermon speech case ( NJA 2005 p.805), acquitted the defendant, considering that his conviction would be contrary to the Convention. [14]

8. In comparative constitutional law terms, the Swedish pastor’s sermon case would be based on the notion of a captive audience. [15]

9. A captive audience is one that finds itself in an inescapable situation and is bombarded with information that is offensive to some of the members of that audience. If a church audience is in that sense captive because an individual cannot escape being subjected to a verbal assault, then in the case of a school audience, where leaflets were distributed – as we do emphasise in § 56 – in the young people’s lockers, that is certainly a decisive consideration. A church is in essence a public place accessible to everybody. School grounds, on the other hand, are more protected and are in this sense a non-public place, requiring an intrusion in order to distribute any information of whatever kind that has not been previously approved by the school’s authorities. Coming back to the Supreme Court of the United States, it has held that “ the undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behaviour ”. [16]

10. Admittedly high-school grounds may not be seen primarily as the setting for a captive audience in the same sense as in the pastor’s sermon case, yet they are definitely a protected setting where only those authorised to distribute any kind of information may do so. This is the key difference between the pastor’s sermon case of the Swedish Supreme Court and the case before us and this is why I maintain that I would be in perfect agreement with the judgment were it based solely (or at least predominantly) on the considerations contained in paragraph 56 of the judgment.

11. For my controversial concurring opinion in von Hannover v. Germany , I have been repeatedly attacked for the phrase mentioning the fetishisation of the freedom of the press under American influence. [17] Recent events in the United Kingdom, where serious abuses on the part of the Murdoch press have been uncovered, tend to vindicate the position taken in the von Hannover case.

12. Nevertheless, we seem to go too far in the present case – on the grounds of proportionality and considerations of hate speech – in limiting freedom of speech by over-estimating the importance of what is being said. In other words, if exactly the same words and phrases were to be used in public newspapers such as Svenska Dagbladet, they would probably not be considered as a matter for criminal prosecution and condemnation.