A tale of Swedish jurisprudence

This is a story of two Swedish free-speech cases which are similar, but with one crucial difference. Let's begin with the background.

The first case was against environmental activist Linus Brohult. In issue 1/1996 of the paper Ekologisten he wrote an article, headlined "Sabotage more...!", about sabotage as a tool for defending the environment, and in particular some techniques for sabotaging machines for road-building. At the time there was a campaign against the building of motorways near Stockholm which involved such sabotage; Linus had once been arrested on suspicion of involvement, but released. In 1999, Linus was charged with serious inveiglement (in the sense of "persuading to commit a crime", maximum sentence 4 years prison) for writing the article in Ekologisten.

The other case was against an editor of the anarchist paper Brand. In issue 1/2000 they published an article, whose title roughly translates as "Make your party a riot". The issue was published on March 8, and largely devoted to spoofing superficial girls' magazines. The article in question contained an A-Z list of tips for how to arrange a riot, ranging from fashion advice to helpful suggestions on what weapons are most useful against police in riot gear. A week after the publication, some members of AFA occupied a youth building, and the occupation ended in a riot. Some of the rioters were convicted of various offences, but the security police (SÄPO) argued that the riot was connected to the Brand article, and the editor was charged with inveiglement (maximum sentence 1 year prison).

In the event, Linus Brohult was convicted and sentenced to 1 year's imprisonment. On appeal the conviction was upheld, but the sentence was reduced to 100 hours community service. The editor of Brand was acquitted (and remains anonymous). Part of the explanation is probably that the Brand article appears to be a joke; the case wouldn't have been prosecuted if the security police or the chancellor of justice had had a sense of humour. But there is also a technical, and more amusing, difference.

The Press freedom statute (Tryckfrihetsförordningen) has been part of the Swedish constitution since 1766. In the following decades, its strength varied as liberals and monarchists struggled for power, but since 1845 it has provided good protection against censorship*. In its current form it dates back to 1949. The statute protects press freedom in several ways. Charges in press-freedom cases can only be brought by the chancellor of justice (roughly the Swedish attorney general), only a nominated publisher (ansvarig utgivare) can be prosecuted, and press-freedom trials use juries (no other trials in Sweden do). In practice, the standard of evidence required for a conviction in press freedom cases is high.

A quirk in the legislation is that it arose in the context of preventing the censorship of the press by the state, and therefore applies explicitly to printed material. To be precise the statute covers:

  1. any material reproduced with a printing press,
  2. any material published with a publishing certificate (utgivningsbevis, available for a nominal fee from the office of patents and records),
  3. any material which displays the location and year of its reproduction, and the name of the publisher.

The intention of these restrictions is to distinguish material produced for public circulation from private communications (if you e.g. make a death threat or conspire to a crime in a private letter, that is not supposed to be protected by the free-speech legislation). Since 1975 the constitution also contains a Law of free expression (Yttrandefrihetsgrundlagen), which provides protection similar to the Press freedom statute to other media, such as broadcasts, recordings or websites, under similar conditions.

Back to our two cases. The editors of Brand, being anarchists, had not requested a publishing certificate or nominated a responsible publisher. Nevertheless, Brand was printed with a printing press, so the case was covered by the Press freedom statute, and the charges were brought against one of the editors who was deemed to be responsible. The jury didn't have much trouble acquitting her.

Linus Brohult was less fortunate. A copy of the offending paper was sent for testing to the state forensic laboratory, who determined that it had been made with "photostatic reproduction techniques". Since the paper had not arranged a publishing certificate the Press freedom statute did not apply. Since it did not constitute a technical recording it was not covered by the Law of free expression either. Thus Linus, the author of the article, was prosecuted in a common criminal trial, and convicted.

Epilogue: At the time of writing, legal debate continues over whether to modernise the free-speech legislation, and for instance replace the Press freedom statute and the Law of free expression with a single, medium-independent law. Many publicists and libertarians are opposed to the idea and prefer to preserve the Press freedom statute, since they fear that its provisions would be watered down in a merge.

Disclaimer: I'm not a lawyer, and have no specialist knowledge of either Swedish or English legal terminology, so the translations may not be optimal.

* In 1812-1949, the Press freedom statute permitted the monarch a power to ban newspapers. However, this power turned out to be unenforceable in practice, and it was revoked by parliament in 1845.