Failing to Protect Minorities Against Racist and/or Discriminatory Speech? - The Case of Norway and § 135(a) of The Norwegian General Penal Code
A new and amended § 100 was introduced in the aftermath of the 1999 report (in 2004) of the Norwegian Commission of Freedom of Expression (1996–1999). In this article, Sindre Bangstad explores the recent application of § 135(a) by higher Norwegian courts, along with the shifting historical understandings of freedom of expression and its limits. He argues that these shifting understandings have played a role in the manner in which higher Norwegian courts have applied this paragraph.
In Norway, at a recent conference organised by the Fritt Ord Foundation in partnership with the New York Review of Books entitled ‘Challenges to Multiculturalism: A Conference on Migration, Citizenship and Free Speech’, the prominent US legal philosopher Ronald Dworkin argued that the so-called “racism paragraph” of the Norwegian General Penal Code (§ 135(a)),2 introduced in 1970 and last amended in 2005 was “unconstitutional” in light of the guarantees of freedom of expression in the new § 100 of the Norwegian Constitution (introduced in 2004).
Sindre Bangstad demonstrates why Professor Dworkin’s claims about the relationship between § 135(a) and § 100 of the Norwegian Constitution can be classed as both factually incorrect and grossly exaggerated. Bangstad also (with reference to the recent work of Professor Jeremy Waldron amongst others) demonstrates that, far from being a threat against core liberal values and democratic legitimacy, Norwegian legislation against racist and discriminatory expressions —in theory and also practice — seek to protect individual rights to dignity and formal rights to equal citizenship, which are core liberal values.