By Will Holmes
Travel to Rome today and you will likely walk down the Via dei Fori Imperiali, which connects two of Rome’s most conspicuous landmarks, the Piazza Venezia and the Colosseum. Walking down the street, it is easy to presume that it, like the surrounding landmarks and ruins, is a remnant of Rome’s imperial history. In fact, the road has a darker legacy, being constructed on the orders of dictator Benito Mussolini to celebrate ten years of his fascist movement, connecting it with the grand artefacts of the Roman Empire.
Italy has long struggled with the legacy of fascism. Whereas Germany underwent a rigorous process of so-called de-Nazification after World War II, Italy has for a long time indulged itself with apologetic and at times outright fictitious readings of its own past. Silvio Berlusconi, for example, once infamously claimed that Mussolini had “killed nobody.”
Such beliefs, though prevalent, have for the most part remained subdued in a society which otherwise functions as a modern liberal democracy. So, when a video of a large fascist rally in Rome commemorating the killings of three neo-fascist campaigners in 1978 began circulating online, many were understandably outraged and fearful. The video shows hundreds of people performing the ignominious fascist salute of an outstretched arm, most commonly associated in this country with Nazi Germany.
The legality of the salute has for a long time occupied a grey area within Italian law. Two laws, Scelba and Mancino, have been used to prosecute the promulgation of fascist imagery and propaganda. The former prohibits any group or movement from pursuing anti-democratic goals associated with the fascist party, while the latter prohibits the dissemination of ideas of racial or ethnic superiority. Both laws have been contested for contravening the constitutionally protected freedom of expression.
A recent ruling by the Supreme Court has cast even greater doubt over the ability of the courts and law enforcement to prosecute those who use the salute. In a judgement released on 18th January, the Court endorsed a strictly literal reading of the Scelba and Mancino laws, stating that performing the salute is only a crime if it endangers public order or risks leading to a revival of the fascist party.
What can be considered to endanger public order or lead to a revival of the fascist party unfortunately remains ambiguous. The latter in particular seems bound to invite absurdly vague and abstract arguments. The former on the other hand risks succumbing to what Timothy Garton Ash labels the ‘Skeleton Army’ defence, whereby opponents of a particular form of expression use their own violence to allege a disruption of public order.
That there is vagueness in free speech and hate crime legislation is nothing new, and in and of itself is not necessarily an issue. The meaning of speech and expression are heavily context dependent. As comedian Rowan Atkinson once pithily noted in a critique of British law, calling a police horse ‘gay’ should not constitute grounds for prosecution under hate crime legislation.
Courts require the freedom to arbitrate on a case-by-case basis. Unfortunately, the guidance provided by the Supreme Court goes too far in the opposite direction, requiring courts to prove beyond any doubt that which is both outside the control of any individual and heavily subjective.
There is a wider issue at hand, too. The past year has witnessed the rise of fascism across Europe, even in countries such as Germany and Austria, where such movements were thought to be banished from the mainstream political debate. This comes at the same time as a massive spike in antisemitic crime across Europe.
Europe’s mainstream democratic parties seem to be particularly vulnerable at the moment, and few centre left or centre right politicians appear to have an answer for these far-right movements. This alone is not sufficient reason to impose arbitrary constraints on the freedom of expression.
It is worth asking, however, what our predecessors could have done differently in the 1920s and 1930s to avoid the ascendance of these repugnant ideas. Given Europe’s history of fascism, the threat it poses today is more potent than other forms of controversial or hateful expression. Perhaps this warrants that we ought to treat it differently, too.
Image: Dietmar Rabich via Wikimedia Commons