Belgium bans a wide range of sexist speech

Rik Torfs, rector of the University of Leuven, and Jogchum Vrielink, coordinator of the Centre for Discrimination Law at the University of Leuven, pass along a guest post — quoted below — about a new Belgian law that provides (Vrielink’s translation):

Penalization of Sexism

For the purposes of this Act, the concept of sexism will be understood to mean any gesture or act that, in the circumstances of Article 444 of the Penal Code,* is evidently intended to express contempt for a person because of his gender, or that regards them as inferior, or reduces them to their sexual dimension, and which has the effect of violating someone’s dignity.

Anyone found guilty of [such conduct] will be punished with a prison sentence of one month to one year, and a fine …, or one of these penalties alone….

* The relevant part of Article 444 Belgian Penal Code refers to the following circumstances/contexts in which the speech/conduct is required to take place:

“Either in public meetings or places;

Or in the presence of several people, in a place that is not public but accessible to a number of people who are entitled to meet or visit there;

Or in any place in the presence of the offended person and in front of witnesses;

Or through documents, printed or otherwise, illustrations or symbols that have been displayed, distributed, sold, offered for sale, or publicly exhibited;

Or finally by documents that have not been made public but which have been sent or communicated to several people.”

Vrielink reports that the law will indeed cover not just face-to-face insults, but also things said about people in print or in other forms of mass communications. Thus, I infer, it would be a crime to publish newspaper articles or blog posts that say a politician, journalist, criminal, or whoever else is inferior because of his or her gender, or intentionally show contempt for the person because of his or her gender, or “reduce them to their sexual dimension,” and which has the effect of violating someone’s dignity.

Moreover, this might apply not just to statements about particular people, but also to statements about men or women generally — e.g., that men or women are biologically (or even just as a matter of current cultural reality) inferior to the other sex in some ways — or about particular subgroups of men or women. Vrielink writes (paragraph break added):

[T]he government is now claiming that the bill does not intend to ban such abstract, impersonal expressions. However, the text is highly ambiguous in this regard, and moreover the problem is that traditionally, in Belgian criminal law, if speech is meant to be illegal only if it targets specific individuals, the legislator makes it into a type of crime that can only be prosecuted in case there is a complaint by the individual victim that was targeted (this is the case for stalking; insults; and slander, for instance). Here, the government has explicitly refused to do this (despite requests to do so by the opposition).

More importantly, what we see with similarly worded criminal provisions is that Belgian courts tend to apply these to ‘generic’ comments about entire groups as well, as long as there potentially is a ‘person’ that might feel insulted, demeaned, etc. by such speech (which, of course, will virtually always be the case), even if he or she is not at all personally targeted by that speech.

This strikes me as a very bad idea, whether limited to public commentary about a particular person or applied to cover commentary about an entire sex, as well. (One-to-one insults are a more complicated matter; I’ve argued before that certain more viewpoint-neutral restrictions on unwanted one-to-one speech should be constitutional even under American law. But this law is not at all limited to such one-to-one insults.)

In any event, here’s the Torfs & Vrielink guest post, setting forth the problem in their own words:

Belgium Bans Sexism: The Return of the Index Librorum Prohibitorum

Soon, it could be a criminal matter to call someone a ‘sexist’ in Belgium. Even if someone may in fact be one. Why, you ask? Because the country’s political majority is determined to enact a new law. In what is believed to be the first legislation of its type, anywhere, the concept of sexism will be rendered punishable.

A logical side effect of making sexism illegal is that the simple act of accusing someone of being sexist, may amount to criminal defamation. Under Belgian law, as in many other legal systems, it is an offense to accuse someone of having committed crimes that they were not actually convicted for. Law is often a double-edged sword.

In addition to this, the bill is superfluous and it poses major risks to free speech.

Superfluous and vague

But first things first: what got the legislative ball rolling was a documentary called Femme de la Rue by (then) film student Sofie Peeters, focusing on the problem of sexual harassment in Brussels. The film, shot in part with hidden cameras, provided a shocking account of everyday sexism and sexual intimidation in the streets of the Belgian capital: continuous cat-calls and wolf-whistles, alternated with jeers of ‘whore!’ (pute), ‘slut!’ (salope) and ‘how much?!’

Peeters’ film understandably struck a sensitive chord, triggering widespread public debate. Several politicians vowed to act on the issue. The current bill should be seen against this background.

However, while no one disputes that sexist street harassment must be dealt with effectively, the existing legal means already offer the Belgian authorities the opportunity to do so. The prohibitions on insults, stalking, harassment, and public nuisance can all be employed to tackle this issue. In other words, the problem is not the legislation per se, but a failure to enforce it.

Investing in enforcement is costly though. Therefore, politicians, faced with public uproar, are more likely to seek a headlines-worthy ‘Miracle Law’, with the promise it alone can and will eradicate the problem once and for all.

Regrettably, the only thing the current bill will eradicate is free speech. Its text is drafted so vaguely that it makes the interpretative options of oracles appear limited by comparison.

The bill defines ‘sexism’ as any gesture or action “intended to express contempt” regarding someone because of their sex, or “to regard a person as inferior”, or to “reduce someone to his or her sexual dimension”. Additionally, a “violation of someone’s dignity” is required.

The explanatory memorandum to the bill states that this definition has “the advantage of including a range of facts that are not covered by pre-existing criminal provisions”. That is undoubtedly the case: the censoring capabilities of the proposed law are unprecedented.

Pan-sexism

To begin with, several religions will come within the crosshairs of the ban. Do many faiths not deny gender equality in the name of patriarchal authority and divine revelation?

The law also has the potential to decimate the shelves of bookstores and libraries: we are heading for a new Index Librorum Prohibitorum. Countless books could give rise to prosecution, and we need not only think of usual suspects like E.L. James and Stephenie Meyer. Virtually every romantic airport novel is essentially made up of sexist stereotypes.

And what about rappers whose lyrics routinely refer to women as ‘bitches’, and whose video-clips feature scantily clad women that are “reduced to their sexual dimension”? (Be sure, in any case, to remove Serge Gainsbourg from your party playlist before any of your friends has you reported.)

On the other side of the debate, it is important to point out that feminist action groups would be forbidden to depict men in an unfavorable, ‘reductionist’, light as well. Combined with the aforementioned fact that they will be prohibited from calling men ‘sexists’, their new motto will have to be ‘just sit there and look pretty’; backed up with the threat of criminal prosecution.

Arbitrary and discriminatory

Proponents will of course counter that it will not be as bad as this in practice, and that the bill was not designed to these ends. But that is precisely the problem: the current bill does render it possible to prosecute virtually anyone, whenever someone feels like it. Therefore, it will at the very least result in arbitrary rule and an unacceptable degree of legal uncertainty.

Matters of criminal law require legislators to define prohibitions as precisely as possible in order to both permit citizens to regulate their conduct with certainty, and to protect them from the abuse of state power. To say that the bill leaves something to be desired in this department is as much of an understatement as saying that Genghis Khan was involved in some minor mischief.

It is also striking that there is no similar protection in Belgian law for any other characteristic or ‘ism’. Even racism is not in itself punishable as a concept. Only specific manifestations of it are prohibited, such as incitement to racial hatred and violence. An identical provision already exists for sex and gender though.

As such, the new law will introduce a form of preferential protection against sexist speech only. Aside from this being discriminatory, this situation is unlikely to last for very long. No doubt, other groups will soon demand that their protection be raised to the same level.

The problem is that Belgian discrimination law covers no less than twenty criteria, effectively ruling out the ‘flight forward’ as an option. Or rather, in that case it would be much more practical if the government were simply to provide us with a short list of what we can still say to each other….

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh · March 21