«Democratic memory» versus ideological freedom: militant democracy in retrospect

Abstract

This paper analyses the conflict between the provisions of the recent Law 20/2022, of 19 October, on Democratic Memory, concerning the exaltation or apology of Francoism, and the fundamental rights to ideological freedom (art. 16 CE) and freedom of expression [art. 20.1 a) CE].
Thus, after listing the most problematic issues and explaining the legal concepts of democratic memory and apology of Franco’s regime, it is first addressed the constitutional case-law on ideological freedom, its relationship with the neutrality of the State and the higher value of political pluralism, and the conducts that violate this right, drawing conclusions on the application of the Constitutional Court’s criteria to the restrictions laid down in the Law.
The following section examines the Law’s precautionary response to the possible unconstitutionality of the restrictive measures envisaged with the explicit aim of preventing the free expression and dissemination of opinions that could be classified as apology for Francoism; in this sense, in order to prevent these restrictions from being considered contrary to the constitutional protection of ideological freedom and freedom of expression, it adopts a two-fold strategy: not sanctioning directly the apology of Francoism but rather the omissions or acts of third parties that make it possible; and resorting to the additional element of «discrediting, belittling or humiliating the victims» to link the exaltation of Francoism to hate speech, thereby seeking to exclude apologetic discourse from constitutional protection.
The conclusion section examines whether this additional requirement of a component of humiliation of the victims when classifying the administrative offence of apology for Francoism guarantees that the legal provisions will not be applied in violation of ideological freedom and freedom of expression, taking into account the circumstances of its specific legal configuration, which generate a risk of imposing sanctions for peaceful apology of Francoism without the law requiring direct or indirect incitement to hatred or violence and a risk or danger to the persons or rights of third parties or to the system of freedoms itself (both necessary elements, according to constitutional jurisprudence, for the existence of punishable hate speech).
The paper ends with an excursus on two aspects related to the main focus of the article: free expression and opinion in debates on history, and the recourse to the non-militant nature of Spanish democracy to criticise the punitive regime of the Law.

Summary: I. INTRODUCTION: «DEMOCRATIC MEMORY» AND QUALI­FIED APOLOGY FOR FRANCOISM. II. IDEOLOGICAL FREEDOM, POLITICAL PLURALISM AND NEUTRALITY OF THE STATE. CONSTITUTIONAL CASE-LAW AND ITS APPLICATION TO THE CASE. III. THE LAW’S PRECAUTIONARY RESPONSE: THE APOL­OGY OF FRANCOISM WITH HUMILIATION OF THE VICTIMS AS HATE SPEECH. IV. FINDINGS. V. EXCURSUS: HISTORICAL DE­BATE AND RETROSPECTIVE MILITANT DEMOCRACY.