Leonid Bershidsky writes a very smart and appropiate comment in Bloomberg News (disclaimer: my former employer) about a Spanish legal case in which Catalan separatists were slapped with sentences of up to 13 years behind bars, for the now-unfashionable crime of “sedition.”
Bershidsky’s headline really sums up his view very nicely: “Catalans’ Harsh Sentences Are Un-European.” He explains:
The prison sentences of nine to 13 years handed down by the Spanish Supreme Court to nine Catalan secessionist leaders raise the question of whether Spain has a law and order problem that should bother the European Union the way Poland’s and Hungary’s infractions do.
He’s right. As Bershidsky (a Bloomberg Opinion’s Europe columnist and founding editor of the Russian business daily Vedomosti, and Vladimir Putin’s opponent extraordinaire) shows, the European Union, like other globalized institutions and polities, has been hard at work removing the power of national states to shield themselves from sedition:
Many democracies don’t even have sedition laws. Germany only has one on hate speech, carrying a maximum prison sentence of five years. England, Wales and Scotland abolished sedition as an offense in 2009 and 2010. Australia did the same in 2011, choosing instead to punish “urging violence.” The U.S. has a rarely-applied law against “seditious conspiracy,” but it can only be used against people plotting a violent overthrow of the government.
Bershidsky, in the finest columnist tradition, then picks a legal scholar of his liking to present his own argument in a respectable manner, with an air of authority and scholarship:
In her 2018 book, “Sedition in Liberal Democracies,” legal scholar Anushka Singh described the offense as “a form of political speech” that is outlawed because it exceeds mere criticism — both a political offense and a speech crime. “By raising the issue of the conditions under which speech may be freely exercised, or alternatively legitimately curbed, sedition reveals a dilemma within liberal democracies,” Singh wrote.
These words are to be properly savored. The fine scholar Singh believes that sedition is “speech” only (I won’t rely on Webster, by God; the Cambridge dictionary states that sedition is: “language or behaviour that is intended to persuade other people to oppose their government”), and “reveals a dilemma” because it raises the issue of the “conditions under which speech may be freely exercised.”
This is not only legally absurd, it’s politically absurd in the extreme: this is 2019, when curbs on free speech are commonly accepted every which way, to protect diversity and group rights, and to attack “populists,” “nationalists” and other people we all dislike. This is 2019, when a tech billionaire can be safely fired from his job at Facebook because he gave a handful of money to a pro-Trump group (he didn’t even speak in favor of Trump!), when courts routinely rubber-stamp the right of Internet giants to deplatform, silence and get rid of people whose opinions they dislike.
And you, Mr. Singh, are telling me that sedition is a threat to your precious, all-important freedom of speech? (*) Come on, let’s get back to the drawing board: have a think, and come back with a real legal argument.
But, you see, the problem is not with Bershidsky legal arguments. The arguments may be obvious fallacies, but it’s true indeed that sedition is disappearing as a legal crime. The problem is with the notion that it’s disappearing because we love, love, love our freedom of speech.
Instead, what matters is that sedition is a very strong tool for nations to protect themselves against their enemies. And nations are an inconvenient fact for many, who (correctly) see them as a last-ditch reservoir of anti-globalist sentiment. Like I’ve explained previously, at very great length, the issue here and now is between globalists and nationalists. So whatever weakens nations, and nationalists, will be seen as worthy and desirable by globalists (that includes some measure of support for people, like Hong Kong (**) and Catalan protesters, who describe themselves as “nationalists” but in reality are separatists only). That’s all there is to it: sedition must go because it’s too powerful a tool.
The rest of Bershidsky piece is just as informative and worth a read. Take the sub-title:
Spain’s long prison sentences for Catalan separatists are an important reminder that judicial independence isn’t only an issue in Eastern Europe.
This is very relevant stuff, even if contradicts the piece itself. You see: in the actual text, Bershidsky is arguing that Spain is backward and dangerous because, unlike enlightened countries such as Germany and Australia, it keeps sedition in the books, as a crime. Now, you can’t make a complete volta-face and say: no, actually, the problem here is judicial independence, right? Because there are only two options, and they contradict each other:
A-Either Spain has a dangerous, antiquated legislation that goes against the dear principles of modernity; OR
B-Spanish judges are just political pawns under government control.
It can’t be both. Because if it’s A, then you don’t need political control over the judges: you just need to tell them: just go and apply the law as it is in the books. And, if it’s B, it really doesn’t matter what the legislation actually says.
Bershidsky is much smarter than I am (after all, he wrote this for a nice amount of money, and I’m responding here in my blog, for free; and he’s a guy whose stuff I often read, and enjoy — I’m serious here), so he knows this perfectly. Chances are that he didn’t even write the sub-title, but a dumber copy-editor did. A person of less refinement.
Whoever wrote that, this person gave the game away. Quite literally, and honestly. Because that line of argument (“judicial independence is an issue in [insert name of country with sedition still defined as a crime]”) is the way to go with the huddled masses.
You can, and will sell the argument that sedition is a terrible threat to freedom of expression in a conference packed with high achievers, elite bureaucrats and the like. Nobody will object, nobody will stand up to point out that the argument lacks any clothes whatsoever. People will nod in agreement and think themselves smart and in tune with the times, which is the absolutely best feeling you can ever have. But you can’t sell that argument to the masses.
That argument is way too sophisticated and way too obviously contradictory (“the chaps in suits who rant against Facebook groups with soccer mums are now worried about freedom of expression? The fuck?”) to be sold to people who are not intellectuals, who are not used to lie to themselves routinely for the greater good. For those, for the deplorables, you need simpler, more basic lines of argumentation: like “judges are not independent in Spain, they are controlled by the government, and that is not democratic.”
That will get you places with the dumb and unsophisticated. You can the add the other bit (“and sedition laws are dangerous because they can be MISUSED by those evil, government-controlled judges, to stamp out FREEDOM OF EXPRESSION”) so that the masses go “whatever, remove that from the books and let us go on with our miserable lives, masters.”
This, partly, is why Bershidsky devotes long paragraphs to foreign judges, who are by design and profession wholly ignorant of Spanish law, expressing doubts about Spain’s judiciary. This graph is beautifully re-purposable:
Other European courts had shown Spain the way on dropping the rebellion charge. After the independence bid failed, Carles Puigdemont, Catalonia’s former regional president, fled to Belgium. When Spain requested his extradition on charges of rebellion, a Belgian judge deferred his ruling and asked for various clarifications, expressing doubt that Puigdemont would be treated fairly if handed over. Spain withdrew the European arrest warrant it had issued.
And this one too:
In 2018, Puigdemont also got a hearing in Germany, where he was detained at Spain’s request as he was passing through. The top court of the state of Schleswig-Holstein ruled then that Puigdemont couldn’t be extradited for rebellion because he was “no ‘intellectual leader’ of acts of violence.”…
Isn’t it wonderful that a provincial court in the deepest forests of Germany quickly found all the truth about complex Spanish events spanning years in a matter of days, probably through intensive reliance on Youtube? You gotta hand it to the Germans! They are our natural-born rulers, no question about that.
…The German court said Puigdemont could only be handed over for the misuse of public funds that went into holding the secession referendum. Spain, however, didn’t want him on that relatively light charge, and Puigdemont went back to Belgium. In the event, the separatist leaders were convicted of misusing public funds, too — “for the purpose of committing the principal offense of sedition.”
Bershidsky also finds an interesting legal nugget, which he wonderfully connects with the whole “freedom of speech” thingy. This is not, by any stretch of imagination, the first time that European courts have chipped away at Spain’s last vestiges of judicial independence:
The way Spain resolved this dilemma in the Catalan leaders’ case is consistent with the country’s questionable legal practice on speech offenses. Last year, the European Court of Human Rights ruled against Spain in a case involving two Catalans who burned a photograph of the Spanish royal couple during the king’s visit to Girona in 2007. The two had been convicted to 15 months in prison or, alternatively, a fine of 2,700 euros ($2,972) each for inciting violence against the monarchy. The European court found that the photograph-burning constituted no such incitement and ordered Spain to compensate the separatists for the fine and their legal expenses.
And, to conclude:
These aren’t merely domestic matters, as the European Commission has maintained, any more than judiciary reforms in Poland and Hungary, which have increased political control over judges. Spanish courts’ harshness on Catalan separatists could well be politically motivated; how to treat Catalonia is a major issue in each Spanish election, and the country is about to have its fourth in as many years.
Spanish judges have been concerned about government attempts to increase control over judicial appointments, even if such attempts have been less blatant than in Hungary and Poland. And, according to a Eurobarometer survey, Spaniards regard their judicial system as less independent than Hungarians and Poles consider theirs. In fact, only Bulgarians, Slovaks and Croats have a lower opinion of their judiciaries’ independence.
And a chart! Bloomberg literally forces columnists and reporters to add a chart to every story. A good idea, I may add:
The EU can’t be expected to help Catalan separatists win independence from Spain — that truly is a domestic matter. It is Europe’s responsibility to make sure member states follow the rule of law. The Catalans’ draconian sentences for non-violent political offenses are a painful reminder for the European Commission that it shouldn’t only look eastward when it comes to upholding European values.
I say, very well explained, Mr. Bershidsky. Thank you for showing us the way in which we’ll be dragged, either kicking and screaming or happily convinced, singing songs along the way.
(*There’s a practical reason why Anushka Singh, who is American, equates sedition with curbs on free speech: the reach of the US’ own anti-sedition law, the Smith Act of 1940 which remains in place to this day, has often been curbed by courts citing the need to protect free speech.
**Hong Kong, by the way, has a sedition law — but it’s not a Chinese law, but a colonial-era sedition law left behind by the long UK occupation of the territory.)