Round Three in the Trial of Lars Hedegaard

In Denmark, sticks and stones may break your bones, but insulting words will get you fined -- to the tune of 5,000 kroner (or about $1,000). Article 266(b) of the Danish penal code, one of the more sweeping of the "hate speech" provisions, criminalizes, among other things, merely insulting groups of people due to their membership in enumerated protected classes.

On April 13, 2012, Lars Hedegaard -- a journalist, historian, and president of the Danish Free Press Society -- takes the appeal of his conviction under Article 266(b) to the Danish Supreme Court. Readers may recall that back in January of 2011, Hedegaard was tried and acquitted for remarks he made during a 2009 interview concerning sexual abuse within Muslim communities. (In a related story, Danish MP Jesper Langballe "confessed," pleading guilty to violating Article 266(b) for remarks he made in support of Hedegaard.) But, in a strange twist, Hedegaard’s acquittal was appealed. He was retried on April 26, 2011, and convicted on May 3.

Thrice put in jeopardy

When Hedegaard appealed his conviction to the Danish Supreme Court, the prosecutor cross-appealed, demanding an increase in the fine. In an interview with the Legal Project, Mr. Hedegaard provided some thoughts on the process:

You could say in our country -- as opposed to yours -- we have not double but triple jeopardy. If the prosecutor doesn’t have his way in lower court, he can appeal to Superior Court. And if he doesn’t get it there, he can appeal to the Supreme Court. So, you can certainly be dragged through a legal process lasting years and years in this country. That is the sad state of affairs.

And dragged through an endless process Hedegaard has been. The remarks on which his conviction rests were made over two years ago. Since then, he has endured two trials, and the appeal to the Supreme Court is number three. But the fact that Denmark’s high court has chosen to hear Hedegaard’s appeal is significant. As with the U.S. Supreme Court, review is at the discretion of the court.

Hedegaard remarked:

In my case it is questionable what can be overturned by the Supreme Court.  The very fact that they have even allowed my case to go in front of the Supreme Court is very strange and very rare. There is a special committee that grants you the right to appeal to the Supreme Court.  You cannot just do it.  You need a special commission to do that. The very fact that I have been given this right might indicate that the court has found some technical problems with my conviction.

Further, rumor has it that seven judges are set to participate, a suggestion that the court may consider its upcoming decision to be of precedential value.

Stifling the truth

In a defamation case in the United States, the truth of the statement at issue is a defense to the cause of action. Not so for prosecutions under Article 266(b); truth is not an available defense. In his first two trials, Hedegaard was not allowed to offer any evidence that what he said was actually true (though he was permitted to reference it in his closing remarks), nor will he be allowed to offer such evidence at the Supreme Court. According to Hedegaard:

I should have the right to prove my case. I could have called witnesses. I could have quoted holy books and statements, and I could have referred to facts.  But you cannot do that in a court of law in Denmark if you are accused under this infamous Article 266(b). Whether or not what you are saying is true is immaterial.  If somebody feels offended or if the prosecutor thinks that somebody has a reason to feel offended, whether or not you speak the truth has no bearing on the case. That is what is surprising about Danish jurisprudence