Monday, November 20, 2017

More about the Finnish vs. US constitutions

In a previous blog post, The Finnish constitution vs. the United States constitution, I compared the two constitutions and how they are applied in each country, and described how weak and powerless the Finnish constitution is, and how relatively freely it's ignored by judges and officials.

There are still even more differences than what I wrote there.

In the United States, the constitution is, in fact, enforceable law. Meaning that officials can be sued by individuals for unconstitutional behavior. In other words, an individual can sue a government official (such as for example a sheriff) for an action that's against the constitution.

A recent case in the United States is a perfect example of this. A sheriff in Georgia has been indicted after a jury awarded 3 million dollars to 900 students, after the sheriff ordered his deputies to perform an unlawful body search of those students. The sheriff was sued explicitly for violating the 4th Amendment rights of those students.

This is a non-existent concept in Finland. The constitution is not law. Here you sue people for breaking the law, not for "breaking the constitution", or "unconstitutional behavior", which are non-existent legal concepts here. Nobody has ever been indicted for violating the Finnish constitution.

When I think about it, I don't even know what the Finnish constitution is. It establishes the form of Finnish government, and lists the "basic rights" of its citizens, but especially the latter don't seem to be enforceable laws, nor does much of it restrict what kinds of laws can be passed by the government (unlike the United States constitution). Something is illegal if it's forbidden by law, not if it's forbidden by the constitution. If the law says that something is A-ok, then it doesn't seem to really matter what the constitution says.

It gets even worse when the constitution explicitly gives carte blanche for the law to do whatever it wants, as is the case with the free speech clause, as I commented in my previous blog post. To recapitulate, said clause says (translation mine):
"Everybody has freedom of speech.  Freedom of speech includes the right to express, publish and receive any information, opinions and other messages unimpeded by anybody. More specific regulations on the exercise of free speech is decreed by law."
One particular example where this carte blanche principle is seen is in the law that criminalizes inciting hatred towards a group of people. That law states (translation mine):
"Whoever makes available to the public or in any way spreads or keeps available to the public information, an opinion, or other form of message, which threatens, vilifies, or defames a group of people based on race, skin color, place of birth, national or ethnic background, religion or conviction, sexual orientation, or physical handicap, or similar basis, is to be sentenced for incitement against a group of people to a fine or to imprisonment for up to two years."
Notice the similarity in wording between the constitutional act and the law. For instance, both talk about the dissemination of opinions. This is so also in the original Finnish. The difference is, of course, that while the constitution seemingly ensures the right to disseminate eg. opinions, any opinions, the law forbids certain opinions.

One would hastily think that the law is in contradiction with the constitution. However, as said, the constitution gives carte blanche for the law to freely restrict whatever speech the government wants. There are no limitations specified or imposed by the constitution.

Who decides what falls into speech forbidden by that law? Judges, of course. And the law is so loosely worded, and so open-ended ("or similar basis") that judges are pretty free to choose based on their own subjective opinions what speech breaches the law and what doesn't.

Some years ago a man was put in jail for two years because he drew by hand a picture of the koran, and defaced it. The judge deemed that action to break this law. Likewise a bit ago a politician was convicted to a fine because he called Mohammad a pedophile in a blog post. Once again the judge's opinion was that this violated this law.

This law is, in fact, heavily used in Finland for political persecution. If you express too heavy criticism eg. about Islam, expect being sued by the government, using this law. It is my understanding that in the United States both of those actions fall completely under the free speech clause and are thus unpunishable.

I would categorize countries into four groups, based on what kind of constitutional principles they have:
  1. The constitution is the highest law of the land, and imposes severe restrictions on what kinds of laws the government can pass. It limits what the government can do, and forbids it from restricting people's freedoms.
  2. The constitution only forbids the government from sentencing people who have not broken the law, but imposes little to no limits on what kind of laws the government can pass, including laws that restrict people's freedoms. In other words, the government cannot sentence people without a law that they have broken, but they can create new laws at will, without much restriction.
  3. As the previous one, but people are de facto "sentenced" for actions that are not unlawful, but deemed heinous. This "de facto sentencing" may come in the form of social stigma, public shaming, and harassment (from either officials, the wider public, or both).
  4. There are no constitutional principles, and officials are free to punish people for whatever reason as they see fit. There doesn't even need to be an explicit law.
I see the United States as belonging to category #1 (and, in fact, I can't think of any other such country, although there might be). Finland is, still, on category #2 for the most part. Examples of category #3 include Sweden and the UK. Any totalitarian dictatorship is an example of #4.

(Sweden is in a really horrible state. If, for example, a Swedish woman dares to express that she feels unsafe to go outside her home because of all the abuse and sexual assaults by immigrants, she will not be prosecuted because that's not an illegal opinion, but she will be harassed by feminists and often even government officials. The UK, in turn, is pretty much effectively a police state, where the police will harass and abuse people who express publicly the "wrong" opinions about immigration. Finland is still thankfully not in that state, but we are slowly getting there.)

The EU is pushing for more and more regulation restricting "hate speech", which in practice means criticism of immigration or Islam. I fear that Finland will inevitably start restricting and punishing such speech, in increasing manner, and prosecuting people who express the "wrong" opinions eg. in social media (like the UK and Germany, among other countries, are already doing). And why not. As said multiple times, the Finnish constitution puts absolutely no restrictions on such laws being passed. Pretty much anything goes. Free speech is dying here at a very fast pace.

3 comments:

  1. I've been reading your blog posts for a while, but I haven't responded until now.

    U.S. constitutional law does create discrete causes of action against the government when guaranteed rights are violated, as well as limiting the law-making powers of Congress and the States.

    It was just in the news a few days ago, so the details are still fresh, that the U.S. will vote 'No' on a UN resolution condemning Nazi glorification and 'hate speech', with the reasoning that such actions are against the First Amendment.

    There is no legal definition of hate speech in the U.S. because it's such a nebulous concept. In any case, the court interpretation is that the government can make neutral restrictions on time, place and manner, if necessary for public safety, and by the least-restrictive means. But it categorically cannot restrict the content of speech.

    There was even a case this year regarding trademark law, which said that the government can't reject trademarks that could be seen as in offensive nature. It was 9-0 at the Supreme Court.

    The closest thing that comes to a hate speech 'exception', and it' really more a hate crime exception is the point of 'imminent threat to lawless action' - immediate, directed and actionable.

    I would also say that, unfortunately, your #3 also applies in the U.S., because the constitutional guarantee is only against the government.

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    1. The regressive left in the United States indeed wants really badly to restrict the freedom of speech of "wrongthinkers", and they are even completely open about it rather than trying to masquerade it somehow. But at least they cannot pass it into law because that would be unconstitutional. At least not at this moment.

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    2. Thankfully. And the U.S. constitution is almost impossible to amend, particularly at this time. So they'll have an uphill battle.

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