You can’t impose ‘free speech’ on people

‘Turkey’s parliament softens law restricting free speech’… ‘EU hails Turkey free speech move.’

This week’s news headlines announcing the Turkish parliament’s approval of a reform to the infamous Article 301 of Turkey’s penal code seemed promising. At first glance, it appeared that the Turkish government might finally acknowledge the illiberal nature of Article 301, which criminalises public insults to Turkishness and state institutions. Yet despite some congratulatory remarks from EU officials, there has been no great historical shift to get rid of, or even to ease, restrictions on freedom of speech in Turkey.

The amendment, which must be approved by the president before it can take effect, involves making it a crime to denigrate the Turkish nation rather than Turkishness. This is hardly a radical reform, and nor is it, by any measure, a victory for free speech. The new amendment also involves cutting the maximum prison sentence for violators of Article 301 from three years to two years, with a possible suspension for first-time offenders. In addition, there is a new requirement to receive the justice minister’s permission to investigate violations.

The controversial Article 301 was introduced through legislative reforms in June 2005, replacing Article 159, before the opening of negotiations for Turkish EU membership. Since then, hundreds of people, including writers, journalists, academics and public figures, have been tried under Article 301, according to which it is a crime not only publicly to denigrate Turkishness, but also to denigrate the republic, the grand national assembly of Turkey, the Turkish government, the judicial institutions of the state and the military and security structures.

And as has been pointed out by the press freedom campaign group, Reporters Without Borders, ‘Article 301 is just one element of the legislative arsenal restricting free expression in Turkey. Other laws punish attacks on fundamental national interests (Article 305), inciting hatred, hostility or humiliation (Article 216), attacking the memory of the Turkish republic’s founder, Atatürk (law 5816 of 25 July 1951), and discouraging the public from doing military service (Article 318).’ (1)

Yet it is Article 301 that has been repeatedly attacked by EU officials, human rights activists and Western journalists alike, mainly because there have been a series of high-profile prosecutions under it, including against Nobel Prize-winning writer Orhan Pamuk, Armenian-Turkish journalist Hrant Dink, and author Elif Şafak.

The shorthand explanation of Article 301 tends to be that it makes insulting Turkishness an offence. The Turkish government has now rephrased the law mainly by removing the word ‘Turkishness’; clearly it recognises that this word stood out for Western observers. The term ‘Republic’ will also be replaced with ‘State of the Republic of Turkey’. This doesn’t even qualify as a tinkering; it’s barely more than a semantic change, and many Turkish commentators have pointed out that the government is paying lip service to EU demands for reform.

This criticism has, unsurprisingly, been levelled at the ruling Justice and Development Party (AKP) from all directions, with human rights groups, as well as nationalist opposition parties, accusing it of pandering to the EU. Indeed, it seems that, as when Article 301 replaced Article 159 in 2005, the current tiny amendment to the law is being made, not as a result of a newfound commitment to free speech or true democracy, but because of the Turkish elite’s desire to enter the EU.

The current reform was welcomed by the EU as a positive move, and an ‘indication of the country’s ongoing commitment to the reform process’ (2). In truth, it is a step backwards when it comes to ensuring freedom of expression and individual liberty in Turkey. The Turkish government seems to view itself as more accountable to the EU than to its own population, and this means that internal struggles for reform are being implicitly undermined. If the EU, which now acts as Turkey’s democracy watchdog, views tinkering with laws as a great breakthrough, that only reveals European leaders’ own disregard for freedom of thought and speech – and it also means that the Turkish government can make cosmetic changes to its laws in order to please EU observers while casually overriding the more ambitious calls from inside Turkey for proper progress and freedom.

The EU is in no position to lecture Turkey about free speech; indeed, the more that EU officials assume responsibility for directing Turkey towards ‘European-style’ openness and ‘liberty’, the more that Turkey will be unfree. EU citizens are no strangers to the policing of morality, thought and speech. Last year, for instance, an EU directive made ‘publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes’ an offence punishable by law. As a result, much legitimate and important research and debate – in academia, journalism and amongst the public – will be stifled.

Here in Britain, the 2006 Religious and Racial Hatred Act made inciting (or ‘stirring up’) hatred against a person on the grounds of their religion an offence. Over the past couple of years, art exhibitions, music lyrics, plays and television ads have been censured or banned after being defined as ‘offensive’. As with Turkey’s Article 301, British laws restricting free speech are open to subjective interpretation and speculation about the tried individual’s intentions.

In November 2007, 23-year-old Samina Malik, also known as the ‘lyrical terrorist’, became the first woman in the UK to be convicted under the Terrorism Act after posting some pretty awful jihad-praising poetry online and being found in possession of ‘extreme Islamist literature’. In effect, Malik was punished for her thoughts rather than her acts. At least Turkey’s Article 301 states that ‘expressions of thought intended to criticise shall not constitute a crime’.

The list of restrictions on free expression in the EU goes on, though the restrictions tend to be expressed in more modest and less nationalist terms than in Turkey. While Article 301 restricts citizens from insulting state institutions and the officially defined national identity, here in Britain we are often prevented from offending each other. Here, clampdowns on free speech are done in the name of protecting citizens from other citizens; in Turkey they are done to protect the interests and integrity of the state – but the end result is the same: free thought, speech and communication is restricted.

Freedom of speech is no doubt under attack in Turkey, and the scrapping of Article 301 would be more than welcome. But the EU is in no position to lecture Turkey about freedom, and in fact its new relationship with Turkey – where EU officials are overseeing reform in Turkey from their towers in Brussels – can only harm the development of meaningful freedom in Turkey. The EU’s pro-reform, ‘pro-freedom’ approach to Turkish affairs is likely to weaken truly radical forces for change inside the country, and limit ambitions for democratic reform by making the EU, rather than the Turkish people, the arbiters of change and progress.

Nathalie Rothschild is commissioning editor of spiked.

(1) Freedom of expression still in danger in Turkey despite article 301 reform, Reporters Without Borders, 5 May 2008

(2) EU Welcomes Turkey’s Action To Change Article 301 Of Penal Code, Turkish Press, 30 April 2008