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Kafka in the Kremlin: The Sorry State of Freedom of Speech in Russia

By William R. Spiegelberger, author of the book The Enforcement of Foreign Arbitral Awards in Russia

The Russian Constitution guarantees freedom of speech. The problem today is that it doesn’t guarantee freedom after speech. A little over a decade ago the Russian Parliament began enacting punitive laws targeting disfavored individuals and penalizing the dissemination of disfavored views on selected topics. The results have sometimes been surreal. In 2009, the police arrested journalist and activist Roman Dobrokhotov for brandishing a blank piece of paper. Five years later, in 2014, protesters were taken into custody for holding up their empty hands as if they were wielding placards. In 2016, a man named Gera Knyazev unfurled a banner deploring the murder of Boris Nemtsov, the erstwhile Kremlin insider turned dissident who was assassinated in 2015. The police arrested Knyazev and confiscated his banner on suspicion of “extremism.” He was released, and his banner returned, only after he demonstrated that it contained a verbatim quote from none other than President Vladimir Putin. That same year, the police arrested six people for reading the Russian Constitution out loud. Three weeks prior, one of the six, Viktor Kapitonov, was detained for holding a banner on Red Square that read “FOR YOUR FREEDOM AND OURS,” the same words that got eight Russians arrested on the same day in 1968 for protesting the Soviet invasion of Czechoslovakia.

These are admittedly odd cases, but they are telling nonetheless: the police act when the Kremlin deems undesirable a person, organization, words, or all the above. The Russian courts’ liquidation of Memorial International and the Memorial Human Rights Center in December 2021 is just one example of this weaponization of law.[159] The present article outlines the most relevant weaponized enacted before Putin’s 2022 invasion of Ukraine and examines the Kremlin’s possible motives for its legalistic repression of opinion. Sadly, it has become only worse since the invasion.

In response to protests that overtook Moscow and other Russian cities starting in December 2011, the Russian Parliament in June 2012 revised the law governing public demonstrations and the Code of Administrative Infractions (“CAI”) to impose harsh fines for protest-related offenses.[160] The amended CAI Article 20.2 imposes a maximum fine for the organizers of a protest of USD 260 for violating the “established order for conducting a protest;” USD 390 for holding a protest without the necessary permit; USD 650 if the protestinterferes with pedestrian or vehicular traffic or causes “overcrowding;” and USD 3,900 if any above infraction of the CAI causes harm to health or property (the analogous fines for legal entities are more than doubled).[161] For participating in a protest that violates the “established order,” the maximum fine is USD 260, unless the protest results in harm to health or property, in which case it is USD 3,900.[162] Parliament also imposed vicarious liability by adding a new CAI Article, 20.2.2, which stipulates a fine of up to USD 260 for citizens (USD 3,900 for legal entities) who organize, call for, or participate in a public demonstration or march that violates “public order or sanitary norms and rules,” harms greenery, or impedes the movement of pedestrians or traffic (among other things).[163] If the protest causes harm to health or property, the maximum fine rises to USD 1,950 (USD 13,000 for legal entities).[164] On its face, Article 20.2.2 effectively holds organizers and participants responsible for the misdeeds of every person present at a demonstration. Should someone trample the grass (harm the greenery) or relieve themselves in public (violate a “sanitary norm”) everyone present at a demonstration could have to pay for the infraction.

Shortly before the law was enacted, the leader of the officially tolerated oppositional Yabloko Party, Sergey Mitrokhin, called it a “monstrous bill which will essentially ban people from protesting.”[165] As it turns out, the law did not prevent Russians from taking to the streets.

Accordingly, in July 2014, Parliament upped the stakes by enacting a new provision of the Criminal Code, Article, 212.1, which imposed fines from USD 7,800 to USD 13,000 and a prison term of up to five years for repeated violations of CAI Article 20.2.[166] The Constitutional Court tempered this article somewhat but has left it in force.[167]

Recently invoked as a means to close Memorial International, which documented Soviet-era rights abuses, and the Memorial Human Rights Center, which focused on present-day violations, this law consists of revisions to the Criminal Code and laws governing civic and non- profit organizations, as well as those governing money laundering.[168] The initial revision, made in July 2012, introduced the term “foreign agent” to denote NGOs that receive any funding, even a kopek, from foreign sources.
It obliged such NGOs to register themselves as “foreign agents,” comply with a host of reporting requirements, and affix an obtrusive “foreign agent” label to their published materials. Between 2017 to 2020, the law was successively expanded to draw within its scope all persons and entities who receive “organizational” assistance from abroad and who make their views widely known (through social media, for example).[169] As of December 2021, the list of persons and entities designated as “foreign agents” contained nearly 200 names, over half of which were added in 2021 alone.[170] One recent addition (July 2021) is the aforementioned Roman Dobrokhotov, who was fined USD 13,000 in December 2021 for failing to affix “foreign agent” labels on his investigative website, The Insider, based in Latvia.

The impact of the foreign-agent designation varies from case to case. Declared a foreign agent in 2015, the Committee for the Prevention of Torture refused to operate under the imposed conditions and was shut down later that year for violating the law. The Alliance of Doctors, an advocacy group for the rights of medical workers, still operates despite having been designated a foreign agent in 2021.[171] The Anti-Corruption Foundation founded by the now-jailed political activist Alexei Navalny continued to operate for a while after it was designated a foreign agent in 2019, but was later judicially liquidated for extremism in June 2021 on the grounds that the organization advocated a change of government in Russia and offered assistance to unauthorized protestors.

In June 2012, the court tasked with sentencing the protest- punk and performance-art group Pussy Riot for their “Punk Prayer” performance at the landmark Cathedral of Christ the Savior in central Moscow struggled to find a relevant statue that would justify a sufficiently stern punishment. The group was ultimately sentenced for “hooliganism motivated by religious hatred.”[172] In June 2013, Parliament filled that legislative gap with a new law amending Criminal Code Article 148 to stipulate, among other things, that “public acts expressing manifest disrespect for society, if committed for the purpose of insulting the religious feelings of believers . . . in places specially designated for religious worship or other religious rites or ceremonies” would henceforth be punishable by, among other things, a fine of up to USD 6,500 or three years in jail.[173] People have since been prosecuted under Article 148 for posting on social media such things as the image of a woman lighting a cigarette from a church candle or a photo depicting an obscene gesture made with a church in the background. Most such cases have resulted in a fine or a sentence to community service, but in what was apparently the first prosecution under the blasphemy law (in 2014), a man named Viktor Krasnov ended up losing his business after the police confiscated his computer and the judge sent him to a mental institution on the grounds that a sane person would not have insulted the Russian Orthodox Church. Krasnov had written on his social media page that God does not exist.[174]

The same day that the blasphemy law was enacted, Parliament passed a law amending the CAI and Child-Protection Law (“CPL”), adding a new CPL Article 6.21 that imposed penalties for “propagandizing non-traditional sexual relations among minors by dissemination of information aimed at causing minors to adopt a non-traditional sexual lifestyle, to become attracted to non-traditional sexual relations, to have a distorted view of the social equivalence of traditional and non-traditional relations, or the foisting of information about non-traditional sexual relations that arouse interest in such relations.”[175] The fines range from up to USD 65 for individuals to USD 650 for officials, and USD 13,000 for legal entities, with additional penalties imposed if the infraction is publicized by mass media or committed by a foreign or international entity.[176] Apart from providing a firm legal ground for prohibiting such things as gay pride parades, the non-traditional lifestyles law “emboldened right-wing groups who use social media to ‘ambush’ gay people, luring them to meetings and then humiliating them on camera.”[177] It would probably go too far to surmise that the Kremlin passed this law to incite violence, but the message it sends is clear: the LGBT community is an officially disfavored minority.

Late in 2013, shortly before Russia annexed Crimea, Parliament added a new Criminal Code Article, 280.1, since amended, that imposed punishments for “publicly calling for actions aimed at violation of the territorial integrity of the Russian Federation.”[178] The sanctions currently include a fine up to USD 5,200, four years in prison, and disqualification from occupying certain offices or engaging in certain activity for the same period, with a five-year prison term if the acts in question are “done by way of the mass media or information-telecommunications networks, including the Internet.”[179]

In 2020, Parliament then added a another, similar provision to the Criminal Code, a new Article 280.2, which provides a six- to ten-year prison sentence for “alienation of part of the territory of the Russian Federation or for other actions. . . aimed at violating the territorial integrity of the Russian Federation in the absence of indicia of a crime” committed pursuant to certain other provisions of the Criminal Code, including Article 280.1.[180] On its face, Article 280.2 seems aimed primarily at actions (alienation of territory), in contrast to Article 280.1, which is aimed at words (publicly calling for alienation of territory). To the extent, however, that mere words could be considered “other actions” that are sanctionable under Article 280.2 (unless they are already sanctionable under Article 280.1), then privately calling for alienation of territory could result in a stiffer punishment under Article 280.2 than publicly calling for alienation of territory does under Article 280.1. The official reason for enactment of this Article 280.2 was “to confirm new provisions of the Russian Constitution, which outlaw any steps aimed at the alienation of Russian territories.”[181]

After the pro-Kremlin president of Ukraine, Viktor Yanukovych, abandoned his post and fled to Russia
in February 2014, the Kremlin promptly began to vilify
the new government in Kyiv as a “fascist junta” and the Russian Parliament added a new Criminal Code Article 354.1, entitled “Rehabilitation of Nazism.”[182] Its title notwithstanding, Article 354.1 did more than ban crackpot theories like Holocaust denial; it also imposed fines and jail terms of up to five years for publicly disseminating “knowingly false information about the activity of the USSR during the Second World War” (italics added) or “information that expresses manifest disrespect for society regarding the days of military glory and memorial holidays of Russia relating to the defense of the Motherland, as well as profaning the symbols of Russian military glory.”[183] In April 2021, just a few weeks after a judge found that Alexei Navalny defamed a veteran who appeared in a pro-Kremlin video, the law was revised to sanction also the dissemination of knowingly false information about “veterans of the Great Patriotic War.”[184] This revision also increased the fines tenfold to as much as USD 65,000, with the highest penalties applying to officials and thosewho made their forbidden views known through the mass media.[185]

One lexical point stands out in this law: its conspicuous use of the term “Second World War” instead of “Great Patriotic War,” the name that is far more commonly used in Russia (as it was in the Soviet Union) to describe Russia’s four-year struggle against Nazi Germany. The Great Patriotic War is a truncated version of the Second World War that runs only from June 22, 1941, when the Germans invaded the Soviet Union, instead of from September 1, 1939, when they invaded Poland. It thus excises those events of the Second World War that were and remain the hardest for the Kremlin to justify: the Molotov-Ribbentrop Pact (1939); the USSR’s joint occupation of Poland with Nazi Germany under the Pact’s Secret Protocol (1939); its occupation and annexation of the Baltic states (1939-1940); the Winter War against Finland (1939-40); and the Katyn Massacre (1940). The law’s use of the term “Second World War” thus deftly encompasses those problematic events without naming them.

This legislation revises five laws.[186] It empowers Russia’s chief law enforcement officer, the Prosecutor General, to designate as undesirable the “activity of a foreign or international non-governmental organization that poses a threat to the foundations of the constitutional order of the Russian Federation, the defense-readiness of the country, or the security of the state.”[187] An NGO that has been declared undesirable may not open offices, distribute materials, carry out operations, or do banking.[188] Anyone continuing to direct the operations of an undesirable organization can be punished by a fine of USD 3,900–6,500, up to six years’ imprisonment, as well as disqualification from holding certain offices or engaging in certain activities for ten years.[189] Unlike being stigmatized as a foreign agent, being branded an undesirable organization necessarily results in liquidation of the offending entity. As of December 2021, the list of undesirable organizations contained forty-nine entities.[190]

The amendments themselves make no provision for contesting the undesirable organization label, although presumably a brave soul could bring some legal action to try to have it rescinded.

In March 2019, Putin signed into law a pair of acts revising the relevant information technology law to sanction the dissemination of disrespectful information and fake news. The first act authorizes the Prosecutor General and Media Supervision Agency (Roskomnadzor) to purge the Internet of “indecent” information that shows “manifest disrespect for society, the state, the official state symbols of the Russian Federation, the Constitution of the Russian Federation, or the agencies executing state authority in the Russian Federation.”[191] If the information is not taken down within 24 hours of receipt of a deletion order, the offending site may be blocked. For individuals the penalty is USD 390–1,300 for the first violation; USD 1,300–2,600 and/or 15 days in jail for the second violation; and USD 2,600–3,900 and/or the same jail term for further violations. The second act authorizes the same agencies to order information providers to immediately delete from their sites any “unreliable information of significance to society that is disseminated as a credible message which threatens to harm the life and/
or health of citizens or to property, to result in mass violation of public order and/or public safety, or to interrupt or cause to cease the functioning of life- support, transport/social infrastructure, credit organizations, or energy, industrial or transport installations.”[192] The fines for publishing “fake news,” as defined here, are up to USD 5,200 for citizens, USD 11,700 for officials, and USD 19,500 for legal entities. Navalny taunted the Kremlin the day this anti-insult legislation came into effect by posting this message: “The presidential administration and the government of the Russian Federation are a bunch of thieves, scoundrels, and enemies of Russia. The Federation Council is filled with villains. United Russia is a party of crooks and thieves.”[193]

Entitled “on countering extremist activity,” this 2002 law has undergone 17 revisions since its original enactment, most recently in July 2021.[194] The law does not define “extremism,” but rather provides various examples, such as “publicly justifying terrorism,” “other terrorist activity,” and “inciting social, racial, national, or religious discord.” Criminal penalties for extremism are separately provided under Criminal Code Article 280, entitled “publicly calling for extremist activity,” with a fine of up to USD 6,500, up to five years in prison, and disqualification from occupying state office for three to five years. The vagueness of the extremism law (and others) predictably exerts an in terrorem effect because it’s hard to tell what conduct or speech may be forbidden (namely the case of Gera Knyazev’s “extremist” banner that bore a quote from Putin). It also allows law enforcement “to go after everybody.”[195] The extremist-entity list as of December 2021 contained 521 organizations, including hundreds of Jehovah’s Witnesses groups (but not, for example, Hezbollah), and three of Alexey Navalny’s organizations: the Anti-Corruption Foundation, the Citizens’ Rights Protection Foundation, and his main office.[196] The analogous extremist-person list contained 11,704 names.[197] Both lists contain odd inclusions and omissions that would be hard to explain if the law were applied in good faith.[198]

WHY SPECIFICALLY THESE LAWS?

From time to time, Putin has alluded to reasons for enacting speech-limiting legislation. In response to the 2015 murder of the Charlie Hebdo journalists in France, he said that those who “act thoughtlessly, insulting the rights and feelings of religious people, should always remember there will be an inevitable backlash,” and that Russia has “never permitted and [does] not permit such offensive behavior with regard to people of different faiths,” except, apparently, with regard to Jehovah’s Witnesses, who are banned in Russia.[199] Usually his approach to the subject is more tongue-in-cheek. He has, for example, asserted that NGOs perform a useful role in Russia and merely must declare where their funds come from. And apropos of Navalny’s legal travails, he has stated that “people who fight corruption have to be completely honest themselves . . . if someone accuses other people of stealing, it doesn’t mean he’s above the law himself.”[200] Notably, Putin made a similar point regarding tax evasion to the oligarch Mikhail Khodorkovsky in February 2003, just a few months before he had Khodorkovsky jailed and his company seized. For all his faults, no one can deny that Putin has a dry sense of humor. However, in approaching the purposes served by the speech-limiting laws, it is probably more productive to focus on what they do than on what Putin says about them.

The laws examined above come in two varieties. First, there are those that principally apply to organizations and individuals, which is to say, to the medium for publicizing facts and opinions, whatever they may be (public protests, foreign agents, undesirable organizations). Second,
there are the laws that principally apply to the message, regardless of the medium (blasphemy, non-traditional lifestyles, secession, rehabilitation of Nazism, insults/fake news, extremism).

There is a ready explanation for why the Kremlin should pass both varieties of law, though the explanation itself raises an interesting question. A decade of experience confirms that the Kremlin uses such laws to justify closing organizations and silencing individuals it finds troublesome. No mystery there. The interesting question is why it should rely so heavily on the law instead of on furtive or extra-legal methods to achieve its goals? Why the legalism?[201]

The answer lies in the peculiar role that law has come play in Putin’s Russia. In the absence of a separation of powers, Russian law has been serving less as a means for regulating relations among citizens and between the citizen and the state than as a way for Putin to issue broad policy instructions to the state apparatus.[202] Ruling by law — or by what Putin himself has called the “dictatorship of law” — allows him, the ultimate decision-maker on all matters, to give the impression that he has delegated authority. This pseudo-delegation then insulates him from the negative consequences of his instructions. Should a state agency implementing what he instructed it to do by means of the law cause too much trouble, Putin need not admit his mistake, but can take the agency to task, perhaps fire or jail its chief, and thereby bolster his credibility as a competent manager. Stalin famously did just that in his 1930 article “Dizzy with Success,” where, with exquisite irony, he criticized his underlings as over-zealous for doing exactly what he told them to do (collectivize agriculture post-haste).

The second variety of laws, i.e., those that apply to the message, serve several additional purposes by creating what may be called unsafe spaces for civil discourse. First, sanctioning talk of subjects like non-traditional lifestyles or the Soviet war effort helps distinguish the Putin Brand from the decadent West. Putin has cast himself as standing for orthodoxy, heterosexuality, territorial integrity, anti-Fascism, honor, and stability. The West, in contrast, stands for the opposite. Putin has not minced words about this us-versus-them distinction. At the Valdai Discussion Club in September 2013, just a few months after the non-traditional lifestyle law came into effect, he said that Western nations are “moving away from their roots, including Christian values . . . Policies are being pursued that place on the same level a multi-child family and a same-sex partnership, faith in God and a belief in Satan.”[203] He reiterated this thesis more recently at the October 2021 meeting of the Club, where he stated that some in the West think that “reverse discrimination against the majority in the interests of minorities . . . constitute[s] movement toward public renewal.” In Russia, Putin said, “we have a different viewpoint.”[204]

Second, some of these laws are a majoritarian sop for a sizable segment of the population. Take, for example, LGBT rights. Most Russians take a dim view of homosexuality. Levada Center, an independent polling agency, reported in 2021 that 69 percent of respondents disagreed with the statement that “adults have the right to enter into same-sex relationships by mutual consent,” this figure being nine percentage points higher than in 2013, when the “non-traditional lifestyles” law was passed. [205] Another example is the rehabilitation of Nazism law. Given the enormous sacrifice of the Soviet people in their war against Nazi Germany, what Russian today wouldn’t want to believe in the selfless heroism of their parents and grandparents during the Second World War?

Third, some of the unsafe-space laws serve a key populist tactic; namely, to divide those who purport to represent the “real people” or “real Russia” from all others, who are by default deemed to be fifth columnists or even enemies of the people.[206]

The Kremlin tapped this populist vein during the 2011–2012 protests, persistently insinuating that the protestors were LGBT-friendly, if not homosexual, and tainted by foreign ideas and money. In late 2011, various Russian social media sites spread the idea of adopting white ribbons as the emblem of the protest movement. The idea caught on. Putin then addressed the white ribbons in his annual televised question- and-answer show on December 15: “frankly, when I looked at the television screen and saw something hanging from someone’s chest, honestly, it’s indecent, but I decided that it was propaganda to fight AIDS — that they had pinned up, excuse me, a condom.” He then went on to imply that the protest movement was inspired from abroad: “this is a developed scheme to destabilize society that did not rise up on its own.”[207]

The Kremlin similarly sought to smear anyone opposed to Russia’s attacks on Ukraine as a disloyal fifth columnist after Russia annexed Crimea and occupied Donetsk and Luhansk in eastern Ukraine in March 2014. The reasoning seemed to be this: if the post- Yanukovych government in Kyiv was a “fascist junta” as the Kremlin claimed, any supporter of that government must necessarily be anti-Russian and “extremist.” In support of this narrative, Parliament enacted the law on rehabilitating Nazism in May 2014, a few months after the change of regime in Kyiv. This law made it risky to critically examine fascism, thus helping the Kremlin to monopolize the term “fascist” so that it could mean “an enemy of Russia as defined by the Kremlin.” How else would it be possible to think of the new Ukrainian government as fascist? In the Ukrainian parliamentary elections of October 2014, the main right-wing parties Svoboda (Freedom) and Pravy Sektor (Right Sector) won only 4.7 and 1.8 percent of the votes, respectively. In the 2019 elections, they did much worse: a coalition of all the major right-wing parties received only 2.15 percent of the votes cast, well under the threshold required to win a single seat in Parliament. What’s more, the Jewish comedian Volodymyr Zelensky, Ukraine’s president since 2019, would no doubt be surprised to learn that he presides over a fascist junta.

Finally, the laws targeting the message by making it harder for people to know what other people are really thinking, undermine a key prerequisite for the formation of public opinion — common knowledge — which is best defined not as what everyone knows, but as whateveryone knows that everyone knows.[208] Without the comfort of knowing that one’s views are not unique, a degree of heroism is required to express them, and the world is notoriously short on heroes. As an editor of the “foreign agent” news site Meduza has said, “it’s harder to talk to people now because a lot of people who would gladly speak to us are now wary of being associated with a ‘foreign agent.’”[209] If built high enough, the wall of silence that Putin is erecting will result in the “atomized, isolated individuals” that Hannah Arendt saw as the basic building blocks of totalitarian society.[210]

The laws examined here do nothing to advance knowledge or foster a healthy civil society. They can only be seen as expedients for the Kremlin to maintain itself in power at the long-term expense of the people and state. In 1672, King Charles II of England issued a Putinesque proclamation to close the main social media outlets of his day, coffee houses, to “restrain the spreading of false news, and licentious talking of matters of state and, government.”[211] This proclamation and his other attempts to ban “licentious talking” failed, and one suspects that Putin’s similar unsafe-space and anti-NGO laws will ultimately fail as well. Surely, the Russians are too gutsy and smart to allow themselves to be bottled up this way forever. What society ever has ever managed to articulate and address its problems with its tongue cut out.

[159] On December 28, 2021, the Supreme Court liquidated Memorial International. The next day a Moscow municipal court liquidated its sister organization, the Memorial Human Rights Center. In both cases it was alleged that the organizations repeatedly failed to comply with Russia’s “foreign agent” law, which is examined below.

[160] On the 2011-2012 protest movement, see Mischa Gabowitsch, Protest in Putin’s Russia (Cambridge: Polity, 2016); Law 54-FZ of June 19, 2004.
[161] State Duma of the Russian Federation, Code of Administrative Offences of the Russian Federation, Articles 20.2(1)-(4), No. 195-FZ, Moscow, amended 2012; All ruble-denominated fines have been converted to USD at the January 2022 exchange rate.

[162] Ibid. Art. 20.2(5)-(6).
[163] Ibid. Art. 20.2.2(1).
[164] Ibid. 20.2.2(2).
[165] Alissa de Carbonnel, “Twenty detained as Russia debates tougher protest rules,” Reuters, June 5, 2012, https://www.reuters.com/article/uk-russia-protests- idUKBRE8540KH20120605.

[166] Law 258-FZ of July 21, 2014 added a new Criminal Code (“CC”) Art. 212.1.
[167] Jonathan Wiersema, “Protest in Peril? Russia’s Constitutional Court Upholds Article 212.1,” Kennan Cable, No. 66, Apr. 2021.
[168] Law 121-FZ of July 20, 2012 amended Law 82-FZ of May 19, 1995, 7-FZ of Jan. 12, 1996, 115-FZ of Aug. 7, 2001, and the CC.
[169] Law 327-FZ of Nov. 25, 2017, 426-FZ of Dec. 2, 2019, and 481-FZ of Dec. 30, 2020. [170] “Who Has Russia Labeled As A ‘Foreign Agent’?,” RFE/RL, https://www.rferl.org/a/ kremlin-foreign-media-crackdown/31438446.html (visited Jan. 23, 2022).
[171] Its director, the ophthalmologist Anastasiya Vasilyeva, treated Alexei Navalny for eye injuries that he suffered in a 2017 attack.
[172] For an analysis of the case from a human rights perspective, see “Russia committed multiple violations of the European Convention owing to Pussy Riot punk band convictions and imprisonment,” Press Release of the European Court of Human Rights, ECHR 261(2018), July 17, 2018.
[173] Law 136-FZ of June 29, 2013 amended CC Art. 148; CC Art. 148(1) & (2).
[174] Meghan Fischer, “Hate Speech Laws and Blasphemy Laws: Parallels Show Problems with the U.N. Strategy and Plan of Action on Hate Speech,” Emory International Law Review, vol. 35, no. 2, 2021, 188.
[175] Law 135-FZ of June 29, 2013 amended the CPL (Law 436-FZ of Dec. 29, 2010); CPL Art. 6.21(1).

[176] Ibid. Art. 6.21(2) & (3).
[177] Alec Luhn, “Russian anti-gay law prompts rise in homophobic violence,” The Guardian, Sept. 1, 2013. See also “‘A Living Hell’: Russia’s ‘Propaganda’ Law Damaging LGBT Youth,
HRW Finds,” RFE/RL, Dec. 12,2018, https://www.rferl.org/a/russia-gay-propaganda-law- rights/29651416.html, and “No Support. Russia’s “Gay Propaganda” Law Imperils LGBT Youth,” Human Rights Watch, Dec. 11, 2018, https://www.hrw.org/report/2018/12/12/no-support/russias- gay-propaganda-law-imperils-lgbt-youth.
[178] Law 433-FZ of Dec. 28, 2013 added a new CC Art. 280.1, subsequently amended by Laws 274-FZ of July 21, 2014 and 452-FZ of Dec. 8, 2020.
[179] CC Art. 280.1(1); Id. Art. 280.1(2).
[180] Law 425-FZ of Dec. 8, 2020 added the new CC Article 280.2.
[181] “Violators of Russia’s territorial integrity may face up to 10 years behind bars,” TASS, July 8, 2020, https://tass.com/politics/1176033.
[182] Sam Sokol, “Russian Disinformation Distorted Reality in Ukraine. Americans Should Take Note,” Foreign Policy, Aug. 2, 2019; Law 128-FZ of May 5, 2014 added a new CC Art. 354.1.
[183] CC Art. 354.1(1); Id. Art. 354.1(3).
[184] Law 59-FZ of Apr. 5, 2021.
[185] Law 59-FZ of Apr. 5, 2021 amended CC Art. 354.1; Id. Art. 354.1(2).
[186] Law 129-FZ of May 23, 2015 added a new CC Article 284.1 and amended Law 114-FZ of Aug. 15, 1996, the Code of Criminal Procedure, the CAI, and the human-rights law 272-FZ of Dec. 28, 2012 (“HRL”), to which it added a new Article 3.1.
[187] HRL Art. 3.1(1).
[188] Ibid. Art. 3.1(3)(1)-(5).
[189] CC Art. 284.1. Lower administrative fines are also available under CAI Art. 20.33.
[190] Ministry of Justice website, https://minjust.gov.ru/ru/documents/7756/ (visited Dec. 11, 2021). [191] Law 30-FZ of Mar. 18, 2019, amended Law 149-FZ of July 27, 2000 “On information, information technology, and information security” (“IT Law”); IT Law Art. 15.1.1. This new provision expands on the older CC Article 319, “Insulting a government representative,” which provides
a fine of up to $520 or one year in jail for “publicly insulting a representative of the state in the performance of his official duties or in connection with their performance.”
[192] Law 31-FZ, of Mar. 18, 2019; IT Law Art. 15.3(1).
[193] “Navalny Defies Russia’s New Law Against Insulting Authorities Online,” RFE/RL, Mar. 29.2019, https://www.rferl.org/a/navalny-defies-russia-s-new-law-against-insulting-authorities- online/29850294.html.
[194] Law 114-FZ of July 25, 2002, as amended by Laws 148-FZ of July 27, 2006.
[195] Alexander Verkhovsky, quoted in F. Joseph Dresen, “Anti-Extremism Policies in Russia
and How they Work in Practice,” The Kennan Institute (undated), https://www.wilsoncenter.org/ publication/anti-extremism-policies-russia-and-how-they-work-practice.
[196] Russian Financial Monitoring website (in Russian), https://fedsfm.ru/documents/terrorists- catalog-portal-act (visited Dec. 8, 2021).
[197] Id. at https://fedsfm.ru/documents/terrorists-catalog-portal-act (visited Dec. 8, 2022).
[198] Igor Slabykh, “How the Russian government uses anti-extremism laws to fight opponents,” IMR Institute of Modern Russia, June 4, 2021, https://imrussia.org/en/analysis/3291-how-the- russian-government-uses-anti-extremism-laws-to-fight-opponents.
[199] Vladimir Putin, quoted in Anna Borshchevskaya, “Putin, Charlie Hebdo, and Free Speech,” The National Interest, Dec. 21, 2020, https://nationalinterest.org/blog/buzz/putin-charlie-hebdo- and-free-speech-174885?amp.
[200] Laura Smith-Clark, “Putin defends Russia’s record on freedom of speech,” CNN, Apr. 25, 2013, https://edition.cnn.com/2013/04/25/world/europe/russia-putin-questions/index.html.
[201] “All three techniques for ruling (state capture, clientelism, and discrediting all opposition) are characterized by what has been called ‘discriminatory legalism.’ With regard to political opponents, the law is applied punctiliously and, whenever possible, literally; with regard to those who are politically acceptable, ‘normal’ law is in force, or an effort is made to write exceptional rules and privileges into the law;” Jan-Werner Müller, Was ist Populismus? (Berlin: Suhrkamp, 2016), p.
74 (author’s translation); See also Agnieszka Elżbieta Demczuk, “The Discriminatory Legalism Strategy and Hate Speech Cases in Poland. The Role of the Commissioner for Human Rights in Fighting Discrimination,” Annales Universitatis Mariae Curiae-Skłodowska, vol. XXVII, 2 (2020), pp. 127-148.
[202] “Russia has a tsarist political system, in which all major decisions are taken by one institution, the presidency. In fact, this is the only functioning political institution in the country. Separation of powers, enshrined in the 1993 Constitution, does not exist in reality.” Dmitri Trenin, Statement at a hearing at the U.S. Senate Foreign Relations Committee on “Russia: Back to the Future?,” June 29, 2006, https://www.foreign.senate.gov/imo/media/doc/TreninTestimony060629. pdf.
[203] “Meeting of the Valdai Discussion Club,” President of Russia website, Sept. 19, 2013, at en.kremlin.ru/events/president/news/19243.
[204] Amy Cheng, “Putin slams ‘cancel culture’ and trans rights, calling teaching gender fluidity ‘crime against humanity’,” Washington Post, Oct. 22, 2021.
[205] “Most Russians Oppose Same-Sex Relationships—Poll,” The Moscow Times, Oct. 15, 2021. The Levada Center results are available in Russian at https://www.levada.ru/2021/10/15/ otnoshenie-rossiyan-k-lgbt-lyudyam/.
[206] Robert Misik, Die falschen Freunde der einfachen Leute (Berlin: Suhrkamp, 2019), at p. 12 (author’s translation). See also Matthijs Rooduijn, “Simply studying populism is no longer enough,” Nature, vol. 540, No. 7633, Dec. 15, 2016, at p. 317, and Jan-Werner Müller, supra note 52, at
p. 26: “Populists claim: ‘We are the people!’ What they mean, however, is … ‘We and only we represent the people.’ Thus, everyone else who thinks differently … is stamped as illegitimate.” (author’s translation).
[207] “Vladimir Putin mocks Moscow’s ‘condom-wearing’ protesters,” The Guardian, Dec. 15, 2011, https://www.theguardian.com/world/2011/dec/15/vladimir-putin-mocks-moscow-protesters. [208] Julian De Freitasa, et al., “Common knowledge, coordination, and strategic mentalizing
in human social life,” PNAS, 116 (28), July 9, 2019, p. 13752, at https://doi.org/10.1073/ pnas.1905518116.
[209] Lucian Kim, “Russia’s ‘Foreign Agent’ Law Targets Journalists, Activists, Even Ordinary Citizens,” NPR, July 31, 2021, at https://npr.org/2021/07/31/1021804569/russia’s-foreign-agent- law-targets-journalists-activists-even-ordinary-citizens?t=1643221527114.
[210] Hannah Arendt, Origins of Totalitarianism, (New York: Harcourt Brace Johanovich, 1973),
p. 323.
[211] Legal Legacy, Dec. 29, 2019, at https://legallegacy.wordpress.com/2019/12/29/december- 29-1675-king-charles-ii-of-england-bans-coffee-houses/.

(This post is republished from the Fletcher Security Review.)

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