European Court of Human Rights Upholds Swedish Criminal Convictions for Anti-Gay Leaflets

The case is Vejdeland v. Sweden (Feb. 9, 2012):

8. In December 2004 the applicants [who are adults] … went to an upper secondary school (gymnasieskola) and distributed approximately a hundred leaflets by leaving them in or on the pupils’ lockers. The episode ended when the school’s principal intervened and made them leave the premises. The originator of the leaflets was an
organisation called National Youth and the leaflets contained, inter alia, the following statements:

Homosexual Propaganda (Homosexpropaganda)

In the course of a few decades society has swung from rejection of homosexuality and other sexual deviances (avarter) to embracing this deviant sexual proclivity (böjelse). Your anti-Swedish teachers know very well that homosexuality has a morally destructive effect on the substance of society (folkkroppen) and will willingly try to put it forward as something normal and good.

— Tell them that HIV and AIDS appeared early with the homosexuals and that their promiscuous lifestyle was one of the main reasons for this modern-day plague gaining a foothold.

— Tell them that homosexual lobby organisations are also trying to play down (avdramatisera) paedophilia, and ask if this sexual deviation (sexuella avart) should be legalised.

For this, the defendants were convicted of “agitation against a national or ethnic group,” which I take it is a legal term of art in Sweden that also extends to sexual orientation groups, and Swedish courts upheld the convictions. The European Court of Human Rights in turn upheld the convictions, reasoning:

55. The Court notes that the applicants distributed the leaflets with the aim of starting a debate about the lack of objectivity of education in Swedish schools. The Court agrees with the Supreme Court that even if this is an acceptable purpose, regard must be paid to the wording of the leaflets. The Court observes that, according to the leaflets, homosexuality was “a deviant sexual proclivity” that had “a morally destructive effect on the substance of society”. The leaflets also alleged that homosexuality was one of the main reasons why HIV and AIDS had gained a foothold and that the “homosexual lobby” tried to play down paedophilia. In the Court’s opinion, although these statements did not directly recommend individuals to commit hateful acts, they are serious and prejudicial allegations.

56. The Court also takes into consideration that the leaflets were left in the lockers of young people who were at an impressionable and sensitive age and who 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.

Note, though, that the prosecution was not simply for trespassing on school property, but was based on the content and viewpoint expressed in the leaflets. My question: Under Swedish law, just what sorts of discussions of the propriety of homosexuality are legally safe? Recall, these aren’t express calls for killing or physical attack or even execution, which on its face seems to suggest a change in the law to make the execution lawful (see this recent English case). These are simply arguments condemning homosexuality on moral and pragmatic grounds.

Are you only allowed to make such arguments to people who are already on your side, so that you are forbidden from trying to reach out to others who might be persuadable and yet who might be offended (even when offended people were free to simply throw out the leaflets once they saw what they said)? Are you only allowed to talk about it to adults, and forbidden from trying to reach out to persuade high school students, apparently of age 16 to 19 — even though, as best I can tell, statements about sexuality generally to such “impressionable and sensitive” students is quite legal, and indeed even sex with such students is quite legal (since the age of consent in Sweden is 15)? And are even discussions with willing adults safe, or could they too lead to criminal prosecutions for “agitation against a [sexual orientation] group”?

Or is it that, once the law has changed (in my view, correctly) to legalize homosexuality and to treat it as morally and legally equivalent to heterosexuality, it is now illegal to try to change social opinion in a way that would change the law back to what it once was — or even to create social condemnation of homosexuality even if there is no legal condemnation?

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