Abstract:

On a recent visit to Norway, the legal philosopher Professor Ronald Dworkin, a known prominent advocate of what I will refer here to as ‘free speech absolutism’ or the idea that there should – on the basis of an attempt to universalise US First Amendment understandings which Dworkin can be associated with – be minimal legal regulations of freedom of expression. He argued that the so-called “racism paragraph” of the Norwegian General Penal Code (§ 135(a), introduced in 1970, last amended in 2005) was “unconstitutional” in light of the guarantees of freedom of expression provided by the new § 100 of the Norwegian Constitution. 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, I will explore the recent application of § 135(a) by higher Norwegian courts, along with the shifting historical understandings of freedom of expression and its limits. I shall argue that these shifting understandings have played a role in the manner in which higher Norwegian courts have applied this paragraph. I shall also demonstrate why Dworkin’s claim regarding the relationship between the General Penal Code’s §135(a) and the Constitution’s § 100 is not only factually incorrect, but also grossly exaggerated.

Keywords: §135 (a), Freedom of Expression, Racist and Discriminatory Speech, Right-wing Extremism, Free Speech Absolutism.