This statement was originally published on freedomhouse.org on 18 April 2018.
by Ana Pastor, Guest Blogger
The Borbons Are Thieves is the new hit among the rap community in Spain. The song, which refers to the country's monarchy, was released on April 9, 2018 by 13 of the genre's most prominent artists to express support for several others who have recently faced harsh criminal penalties for insulting the royal family, denouncing political corruption, or "glorifying terrorism."
The protest recording was inspired in part by a jail sentence against Valtonyc, a 24-year-old rapper, for aggressive lines such as "we want death for these pigs" and "we'll get to the nut of your neck, you bastard" in reference to politicians and members of the royal family, some of whom have been implicated in corruption. The performer was ordered to spend three and a half years in prison for "glorification of terrorism," slander, lèse-majesté, and threats. His sentence was upheld by Spain's Supreme Court in February.
Many Spaniards and other observers would likely take offense at Valtonyc's lyrics, or at least find them difficult to defend as either art or political commentary. But his case forms part of a larger pattern in which critical or satirical speech has been punished under expansive criminal and antiterrorism laws in Spain, threatening freedom of expression in a major European democracy.
In another recent case, Cassandra Vera, a 22-year-old student, was punished in 2017 for joking on Twitter about the 1973 assassination of Luis Carrero Blanco, a prime minister during the right-wing dictatorship of Francisco Franco who was killed in a bombing by the Basque separatist group ETA. Vera received a suspended one-year prison sentence for "humiliating victims of terrorism," lost her university scholarship, and was barred from public employment for several years. In March this year, the Supreme Court overturned the sentence, noting that the attack in question occurred 44 years earlier and that similar jokes had been circulating for decades.
The rapper Hasel was not so lucky. In 2015 he was sentenced to two years in prison for "glorifying terrorism" and slandering state and royal institutions with lyrics such as "death penalty to the pathetic infantas [sisters of the king]." Now he is being prosecuted for another video criticizing the monarchy, whose title roughly translates to Juan Carlos the Dummy.
Changes in the law, and in enforcement
In all, at least 119 people have been convicted of speech-related "terrorism" offenses since 2011, according to Amnesty International; during the last two years alone, almost 70 people have been found guilty.
Based on these numbers, one might conclude that terrorism is rampant in Spain, but that is not the case. Although Islamist militants continue to pose a threat, as seen in the Barcelona attack of 2017, ETA announced a permanent cease-fire in 2011 and was definitively disarmed in 2017, while the armed far-left faction GRAPO has been inactive since 2007. Yet most of the recent "glorification" and "humiliation" cases are related to such defunct domestic groups. So why are the laws against terrorism being applied more aggressively?
The roots of the problem lie in the economic crisis that began in 2008. The subsequent years of harsh austerity measures generated vocal antigovernment protests and new social movements. Faced with this challenge, the conservative-led Spanish parliament in 2015 approved a package of laws known to their critics as the "Gag Laws." Among other restrictions on freedoms of assembly and expression, an amendment of the penal code's Article 578 broadened its scope and increased the maximum penalty for "glorifying" terrorism and "humiliating" its victims to three years in prison, plus an additional fine.
Under this law, behaviors that would not otherwise constitute acts of terrorism, such as jokes and songs, could draw criminal punishments, effectively giving the authorities the discretion to penalize speech that opposes or criticizes the political establishment.
This discretion grew in January 2017, when the Supreme Court stated in its ruling against Cesar Strawberry, singer of the band Def con Dos, that one could violate Article 578 even if there was no intention to "glorify" a terrorist group or "humiliate" its victims.
The frontiers of free expression
In May 2015, four UN experts on freedom of expression declared that "criminal responsibility for expression relating to terrorism should be limited to those who incite others to terrorism; vague concepts such as 'glorifying', 'justifying' or 'encouraging' terrorism should not be used."
Indeed, as Amnesty International explained in a March 2018 report on the topic, it has long been understood that states may criminalize direct incitement to commit a specific terrorist act, but only when there is clear intent, with a reasonable expectation that the crime will be carried out and a clear causal relationship between the incitement and the act. Offensive remarks about past attacks and general statements of disdain for the authorities do not meet these requirements.
Such speech is especially worthy of protection when it comes in the form of a song, a poem, or a joke. Artists and satirists form one of the watchdog communities necessary in every democracy. They criticize injustice, question the status quo, offer new forms of thought, and collectively speak to all citizens regardless of age or social class. Spain should not try to silence either its rappers or the other artists who have faced charges in recent years, including puppeteers and photographers. Instead, it should safeguard their basic right to freedom of expression, restricting speech only when it is absolutely necessary to protect the legitimate rights and safety of others.
The fact that something may be offensive should not be used as an excuse to ban it, as the most powerful elements of the state and society typically decide what constitutes offensive speech under such laws, and repressive regimes around the world have abused this power to silence their critics, persecute vulnerable minorities, and maintain their own positions. If any group can block speech they disagree with, democratic debate and diversity of thought become impossible.
In Spain, there is a danger that broadly written and aggressively enforced terrorism laws could turn the country into a place where questioning the status quo is not tolerated, and discussing politics online is a risky activity. All Spaniards need to realize that by defending Valtonyc's or Cassandra Vera's right to say things that they may find deplorable, they are ultimately protecting their own right to democratic dissent.
Ana Pastor is a Spanish researcher and freedom of expression advocate.