The Case against Halla-aho

A Counterproductive Legal Victory?

In some ways, prosecuting Halla-aho fulfilled the progressive aims of mobilizing hate speech laws: his eventual conviction by the Supreme Court was a sign that his inflammatory discourse was officially rejected and public tolerance towards minorities was affirmed. However, this was achieved at a high cost. The case against Halla-aho took nearly four years to work its way through the legal system. In that short time Finland was transformed from a country where “the issue of immigration has been able to generate few of the fears and frustrations that populist political organizations have been able to exploit in Norway and other European countries”^{Footnote 45} to one where anti-immigration has considerable political traction. This change started with the 2008 municipal election, in which Halla-aho’s writings became a focal point, also raising the profile of the TF, whose xenophobic faction Halla-aho heads.^{Footnote 46} As a result, immigration dominated the political landscape of 2008.^{Footnote 47} The TF made great electoral gains, and Halla-aho, who had built himself a following through his blog, secured a place on the city council of Helsinki. These gains were reinforced in the 2011 parliamentary elections, which gave the TF nearly 20 per cent of the vote, compared to 4.1 per cent in 2007, making it the third largest party in Parliament.^{Footnote 48} Halla-aho himself received the sixth highest share of the votes in the entire country and became a member of Parliament.^{Footnote 49} Halla-aho’s electoral popularity was last confirmed in the October 2012 municipal elections where he received the third largest number of votes in the entire country, doubling his popularity compared to the 2008 election — despite the recent judgment of the Supreme Court.^{Footnote 50}

It could thus be argued that taking Halla-aho’s bait, though consistent with Finnish criminal justice policy and allowed (perhaps even required) under human rights law, turned out to be counterproductive in practice. This claim, that “unpopular judicial decisions provoke political reactions that undercut their effectiveness,” is often made with regard to progressive legal mobilizations in general.^{Footnote 51} Even theorists who support hate speech laws in principle note that hate speech prosecutions can result in “bullhorn, justification and martyr effects.”^{Footnote 52} In other words, long trials provide a bullhorn for agitators to spread their message and to inflame tensions between communities; if the case fails, the accused can claim the statements were protected and thus justified by the court. If the prosecution is successful, the convicted can “become martyrs for the cause of free speech, portraying themselves as victims of a government that oppresses the ‘honest’ voice of ‘real’ citizens and patriots.”^{Footnote 53} Bleich thus argues that “judicious enforcement” is essential for hate speech laws to work as intended.^{Footnote 54} However, judging “judiciousness” can be difficult, especially when the accused is a politician seeking publicity for political gain.^{Footnote 55}

It is undeniable that the controversy around Halla-aho’s blog gave him a bullhorn to use to turn himself into a household name and promote his political agenda (in addition to the baits, his other posts also created debate; one resulted in the Green Women’s League reporting him to the police).^{Footnote 56} Understandably, the media furore around his prosecution encouraged many to read his blog where his policy recommendations, especially on criminal justice and immigration, were elaborated on in detail. Halla-aho also quickly released a book of his blog entries,^{Footnote 57} which sold out in just three days, and his writings have subsequently been subject to much critical and academic analysis.^{Footnote 58} The publicity around his statements raised not just Halla-aho’s profile but the salience of immigration issues, supporting his political campaign, which in turn boosted the prominence of the TF, the party he was associated with.^{Footnote 59} The extensive reporting on Halla-aho’s views in the traditional media followed in the wake of growing populist commentary in the “new” media where Halla-aho had already gained a following of “immigration critics” through his blog and where he portrays himself as an unjustly persecuted advocate of freedom of expression.^{Footnote 60} The prosecution of Halla-aho combined freedom of speech, immigration, and crime, a combination sure to attract media interest. The interpretation of the legislation used against him, the (dis)proportionality of his punishment, and the (il)legitimacy of Halla-aho’s views on the criminality of immigrants thus received wide coverage for years.

After the verdicts of the lower courts, some commentators on Halla-aho’s side argued (somewhat inconsistently) both that the courts had justified Halla-aho’s polemical views (the comments about Somalis, for which he was acquitted) and that he was (nonetheless) also a martyr for free speech (because he was found guilty of disturbing religious peace).^{Footnote 61} However, after the Supreme Court’s final findings of guilt on both charges, the free speech martyr narrative became the overriding theme for Halla-aho and his supporters. The judgment provided “proof” that minorities, unlike ethnic Finns, were indeed more protected by elitist prosecutors and courts than the “native population” of ordinary Finns (whom Halla-aho portrayed himself as representing).^{Footnote 62} In that sense, the Supreme Court gave Halla-aho exactly what he wanted to turn himself into a defender of free speech, despite the dubious contribution of his comments to political debate. Populist politicians in particular thrive on representing themselves as the honest voice of the people, persecuted by undemocratic elites.^{Footnote 63} Though the arguments about double standards are disingenuous — the white Finnish majority is far less, if at all, in need of protection from vilification than minorities — the judgment gave Halla-aho the opportunity to dismiss the findings as unjust and label them just a “personal interpretation of a few individuals.”^{Footnote 64}

It would be hard to avoid the bullhorn and martyr effects altogether — as many have noted, they are probably part and parcel of any hate speech prosecution.^{Footnote 65} However, especially where the accused is a politician, prosecutions can raise questions about the possibly politically motivated nature of the prosecution.^{Footnote 66} Halla-aho’s case was particularly difficult in this regard because several factors enabled countermobilization around claims of political motivations. Some relate to the law and its interpretation. The baits were cleverly set and pushed the case far away from the core meaning of “inciting hatred.” The Supreme Court’s broad view of punishable expression, based on knowledge about the content of the statement, not intention to incite, is genuinely contentious. Nor did the judgment actually bring much clarity to the limits of s.11:10, despite finding Halla-aho guilty.^{Footnote 67} Moreover, the combination of charges of in Halla-aho — incitement and disturbing religious peace — was also questionable as it linked the progressively oriented incitement argument to widespread criticisms of the use of retrograde “blasphemy law” (i.e., s.17:10). Many consider s.17:10 anachronistic in a largely secular state.^{Footnote 68} The provision has been particularly (in)famous since a 1960s prosecution against a well-known author and is associated with censorship.^{Footnote 69} In many jurisdictions blasphemy laws have recently been abolished (notably in the UK^{Footnote 70}), but in Finland, it was controversially extended to all registered religions.^{Footnote 71} The combination of charges thus served to weaken the progressive message intended by the prosecution.

These legitimate concerns about legal weaknesses were compounded by other concerns that enabled counterframing of the prosecution as driven by partisan motivations and of Halla-aho as a victim persecuted by hypocritical elites seeking to suppress criticism against themselves and their policies. One of these was the allegation that the prosecutor general’s office was engaging in selective (and even personally motivated) prosecutions, targeting Halla-aho as his political career was taking off.^{Footnote 72} Halla-aho had written similar comments online about both Islam and paedophilia^{Footnote 73} and immigrants and crime^{Footnote 74} before his political aspirations were evident, but no prosecution had been undertaken at the time. The role of the prosecutor to whom the baits were addressed also highlighted the problematic power of experts and the multiple hats they sometimes wear. Mika Illman, named in Halla-aho’s post and whose colleagues at the prosecutor general’s office took the bait, is not only known for his track record on mobilizing hate speech laws but one of the leading academic authorities on incitement to hatred^{Footnote 75} and a member of the Ministry of Justice’s working group on reforming hate speech laws.^{Footnote 76} Such multiple roles are not unusual in the small legal circles of Finland, but they did give some credibility to claims that hate speech prosecutions can, at the very least, appear to be politically motivated witch hunts aiming to suppress populist politicians’ voices and their critical views of the authorities.^{Footnote 77}

Such criticisms over the political nature of prosecution against Halla-aho tapped into a longstanding shadow of silencing tendencies in Finnish legal and political culture, including the use of criminal punishment against individual citizens. Though Finland is lauded abroad for its human rights record, including for upholding freedom of the press,^{Footnote 78} at the same time it has received a large number of adverse judgments from the ECtHR on Article 10 cases, especially compared to other Nordic countries.^{Footnote 79} Often the ECtHR has found that Finnish authorities, notably the Supreme Court, have excessively limited freedom of expression by upholding criminal convictions. For instance, journalists who have written about politicians have been improperly convicted of defamation or invasion of privacy.^{Footnote 80} The sheer number of cases suggests that the Supreme Court has not always been successful in balancing freedom of expression with other rights. Some commentators condemned Halla-aho’s conviction as part of this disquieting trend.^{Footnote 81} The long historical roots of this cultural tendency are often discussed — most obviously, it is connected to the political pressures of the twentieth century and the shadow of “Finlandization” (the infamous self-censorship of the Finnish political and media elite vis-à-vis the Soviet Union during the Cold War),^{Footnote 82} but it is also sometimes linked to Finland’s Hegelian political legacy, which is less accepting of critique of authorities than liberal ideology.^{Footnote 83} All this facilitated the counterframing of Halla-aho as another unjustly silenced victim of institutions seeking to curb his freedom of expression for political reasons.^{Footnote 84}

Against this backdrop, it is possible to see how these factors could partly destabilize the intended message of the prosecution and enable effective countermobilization.^{Footnote 85} Not all of the issues could have been avoided. For instance, media outlets are prone to take an interest in reporting “anything that ‘breaks the routine’ in political arenas.”^{Footnote 86} The first hate speech prosecution of a politician is clearly newsworthy in that sense (and in any case, the media coverage of Halla-aho was not uniformly on his side).^{Footnote 87} More important, however, the legitimacy of the prosecution suffered from a perceived lack of impartiality. Even some nonracist websites have published Halla-aho’s post in full in the name of supporting his freedom of expression (Halla-aho himself was required by the courts to remove the offending parts of his post).^{Footnote 88} The continued availability of the text, of course, highlights the difficulty of controlling the online world as a medium for disseminating racist ideas; more pertinently, it also shows that insofar as the aim of the prosecution was to stigmatize Halla-aho’s intolerant discourse, it has instead led some who would not support his policies to undertake a principled protest against the perceived overreach of the criminal law and the silencing of criticism (however stereotypical and offensive).^{Footnote 89} Although this issue might have been reduced by avoiding the blasphemy charge, it could be argued there is also legitimate room for debate about the scope of the incitement law — and that taking the baits revealed the law’s arguably overbroad reach. That suspicion of overreach undermined faith in the outcome.

The Political Ramifications through a Comparison

It thus far been argued that Halla-aho’s conviction turned out to be, at best, an ambiguous progressive legal victory. The meteoric political rise Halla-aho and the TF have enjoyed since the blog entry was first published seems to prove the point of van Spanje and Weber, who suggest that hate speech prosecutions are risky precisely because they may increase the legitimacy of polemic statements (though officially marginalizing them), especially in jurisdictions where high-profile prosecutions (especially of politicians) are relatively new.^{Footnote 90} For many, the electoral outcomes since 2008 are a sign that Finland is about to follow countries like the Netherlands or Denmark, where populist right-wing anti-immigration rhetoric has taken a firm hold.^{Footnote 91} Halla-aho remains Finland’s dominant anti-immigration politician, and immigration has become a lasting theme in Finnish politics, which suggests that Halla-aho and the TF managed to associate themselves with (initially) latent voter concerns over immigration and disenchantment with existing parties.^{Footnote 92} However, the political context of a hate speech prosecution is likely to be more complex. While some voters may be encouraged to vote for a politician whose profile is increased by the prosecution, others would likely be turned off by the accusation of racism.^{Footnote 93} Though a comprehensive political analysis is beyond the scope of this paper, this final section examines the political consequences of the prosecution through a comparison.

Halla-aho’s prosecution linked him with (far more notorious) right-wing politicians, such as Jean Marie Le Pen in France, Nick Griffin in the UK, and Geert Wilders in the Netherlands, all of whom have been prosecuted for similar offenses. All three of the above are (or were^{Footnote 94}) leaders of populist anti-immigration parties that, like the TF, exploit voters’ dissatisfaction with and suspicion of mainstream parties, the political system, and political elites and mobilize voters concerned about globalization trends, such as increased immigration.^{Footnote 95} Le Pen, as leader of the French Front National, was a serial offender, convicted several times for statements concerning the Holocaust and for inciting racial hatred on account of statements made about Muslims in France.^{Footnote 96} Griffin of the British National Party had been convicted in 1998 for distributing material likely to incite racial hatred, but he was acquitted of charges related to inciting racial hatred in 2006.^{Footnote 97} Unlike Halla-aho, Le Pen and Griffin and their parties have a long-established and extremist anti-immigration profile, and they operate in countries with long immigration histories that are used to mobilizing the law to stamp down on manifestations of racial hatred.^{Footnote 98} Moreover, unlike in Halla-aho’s case, the processes against Le Pen and Griffin were not straightforwardly linked to a sudden surge of anti-immigrant sentiment followed by immediate electoral gain.

In terms of meteoric political rise coinciding with being prosecuted for hate speech, Halla-aho’s situation most resembles that of the controversial Dutch figure Wilders. Though Wilders is based in a multicultural country, it is one that has, like Finland, only recently started to experience a strong political rise of anti-immigration parties (following September 11, the rise and fall of anti-immigration politician Pim Fortuyn and the murder of filmmaker Theo van Gogh).^{Footnote 99} Halla-aho, branded as the “Finnish Geert Wilders” by the far-right/Islamophobic Gates of Vienna blog, has modelled many of his policy proposals after Wilders, focusing on arguments about immigrants and their alleged criminality.^{Footnote 100} Wilders was prosecuted in 2009 under Dutch hate speech laws. The case involved anti-Islamic comments made in various articles and Wilders’ short film Fitna, in which he had, for instance, labelled Islam a “fascist religion” and Dutch-Moroccan youths “truly violent.” The statements are reminiscent of Halla-aho’s: provocative, but steering away from direct and obvious incitement. The Public Prosecution Service was eventually compelled to act by the Dutch Court of Appeal following a formal complaint. As with Halla-aho, it has been argued that the ongoing prosecution of Wilders, far from ruining the electoral chances of the party he leads (Party for Freedom or Partij voor de Vrijheid, PVV), in fact boosted its support.^{Footnote 101} In the 2010 parliamentary elections the PVV went from 9 to 24 seats, making it the third largest party in the Dutch Parliament.^{Footnote 102}

Despite the fact that both Wilders and the PVV and Halla-aho and the TF experienced great electoral gain at the time of the hate speech prosecutions, suggesting that the legal mobilization of hate speech law enhanced their popularity, the contexts of the cases suggest also interesting differences between them. Some of these relate to their respective parties and their leadership. Unlike the PVV, a new party heavily focused around Wilders’ persona and his brand of anti-immigration/anti-Islamism, the TF is in fact a successor party to the long-standing populist Finnish Rural Party (1959–1995).^{Footnote 103} The TF is led by a politician who, like Wilders, is charismatic and powerful (as are most leaders of populist parties), but this politician is not Halla-aho, but Timo Soini.^{Footnote 104} Soini’s version of populism differs from mere anti-immigration, and indeed he does not belong to the anti-immigration wing of his party. The TF parliamentary group generally is a motley crew, containing “veterans from the Vennamo [former leader] era, young female MPs primarily concerned with social policy questions, single-issue campaigners, persons with a national reputation from the world of sport and entertainment and a significant anti-immigrant faction.”^{Footnote 105} It is, of course, this latter group, led by Halla-aho, whose ideas have attracted disenchanted voters worried about immigration. However, the party overall, as led by Soini, is not xenophobic or right-wing in the same way as the PVV (nor like its Danish counterpart, the Danish People’s Party, with which it is also often compared^{Footnote 106}).

The PVV is tightly controlled by Wilders, and its raison d’être and electoral fortunes are firmly tied to the leader’s stance on immigration, Islam, and multiculturalism.^{Footnote 107} In contrast, such criticisms are not broadly resonant in the less multicultural Finnish context. While anti-immigration is unquestionably a part of the attraction of the TF for some voters, the party’s electoral success is built on a long tradition of anti-establishment populism and a receptive political scene in which the TF represented itself as the unspoiled alternative to the main governing parties that were tainted by scandals related to old boy networks and structural corruption.^{Footnote 108} Both the PVV and the TF are Eurosceptic, but this is central to the TF, which objected to the Eurozone bailouts.^{Footnote 109} The lengthy history of Finnish populism (up until recently without strong anti-immigrant sentiment^{Footnote 110}) as well as recent analyses of the wide-ranging voter base of the TF suggest that its success cannot be explained by its immigration platform alone.^{Footnote 111} In fact, arguably, the TF has flourished precisely because its leadership (Soini) is not explicitly xenophobic. This allows the party to be highly critical of immigration policy, attracting anti-immigration voters, without alienating voters who would reject extremist leadership. This is compatible with the argument that the most successful anti-immigration parties are often those built on an alternative legacy.^{Footnote 112} In Ivarsflaten’s terms, they have a “reputational shield,” which allows the party to fend off accusations of racism and enhances its credibility.^{Footnote 113}

Halla-aho could eventually try to become the leader of the TF and, emulating Wilders, shape the party in the more radical right-wing anti-immigration mould.^{Footnote 114} However, such a move might risk alienating the party’s support base, voters drawn to the broader anti-establishment, pro-change legacy Soini has cultivated since becoming leader in 1997.^{Footnote 115} As Halla-aho’s profile is, after his conviction, more radical than that of the TF in general, he could be prompted to leave the TF, taking his supporters with him, like Wilders, who went on to establish the PVV when he was expelled from the mainstream conservative-liberal People’s Party for Freedom and Democracy (VVD). Again, however, Halla-aho’s public profile, despite his intense popularity among his “immigration critic” supporters, is polarizing, and he might find his new party’s prospects of gaining political power are much reduced without the broader appeal of the TF. Unlike Halla-aho, who is a newcomer to politics, Wilders, having started his political career in the 1990s, was already a well-known and experienced politician with “legitimacy and visibility” by the time he was prosecuted.^{Footnote 116} Halla-aho, in contrast, became a household name because of the drawn-out prosecution process against him, and he remains firmly associated with the case now. This association between Halla-aho and his criminal prosecution is perhaps stronger than in the case of Wilders because Halla-aho was the first and so far only Finnish politician charged with hate speech, whereas Dutch hate speech laws had been applied to politicians many times before Wilders was charged.^{Footnote 117}

One of the most significant contrasts between the cases is that, unlike Halla-aho, Wilders was in fact eventually acquitted of all charges against him, including that of inciting hatred and discrimination (though it was found his statements were indeed borderline and on the very edge of legal acceptability).^{Footnote 118} The acquittal was framed as a triumph for free speech.^{Footnote 119} In contrast, Halla-aho’s final conviction by the Supreme Court, despite its shortcomings, officially labelled him an extremist.^{Footnote 120} Being branded a criminal is more serious for Halla-aho (and the TF) than it would have been for Wilders, whose party’s profile revolves around and depends on Wilders’ provocative persona and anti-immigration stance. Unlike Wilders, who has consistently cultivated his image as a radical outsider by courting controversy, Halla-aho has sought to leave the prosecution behind him as a member of Parliament.^{Footnote 121} Though it is hard to predict the future of populist politicians and parties — they are prone to ups and downs because of the volatility of their supporters^{Footnote 122} — the comparison between Wilders and Halla-aho shows that despite the many dangers of a hate speech prosecution, the eventual outcome of the case does carry consequences.

The effects of the mobilization of hate speech law on the broader political picture are still unfolding. Many have argued that in the aftermath of the politicization of immigration since 2008, the hard-talking populism of the TF, especially on immigration and refugees, has infected mainstream parties.^{Footnote 123} This is not surprising as successful anti-immigration parties often affect other parties’ stances on immigration, and the contagion effect can reach parties across the political spectrum.^{Footnote 124} Mainstream media also now give much more space to individuals with more extreme views on immigration.^{Footnote 125} At the same time, media and public awareness of the issues around hate speech, including the potential consequences of intolerant expression, has improved.^{Footnote 126} Unlike in the Netherlands, where the acquittal of Wilders sanctioned the continued use of inflammatory language, the TF has faced pressure by other parties and from some segments of the public to stamp out intolerant language.^{Footnote 127} Soini and the TF have been pushed to censure the racists among the party’s MPs, so as to promote a nonbigoted image and retain broad electoral appeal.^{Footnote 128} This raised consciousness is a change from the past, when occasional racist expression by politicians was brushed aside.^{Footnote 129} Although this heightened consciousness does not prevent anyone from holding intolerant views (and may simply encourage the use of more coded language), awareness of the possible consequences of expressing openly racist views does subtly change the atmosphere of public discourse. It would thus be too sweeping to conclude at this point that the effects of the legal mobilization on political discourse were straightforwardly negative.^{Footnote 130}