US says remarks of national swimmer accused of insulting Erdoğan is free speech

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The US Department of Justice has said that it cannot provide legal assistance to Turkey concerning a former Turkish national swimmer who is sought by the Turkish authorities on charges of insulting the president because the swimmer’s remarks are within the scope of freedom of expression, according to an email from the department.

The email, dated Feb. 22, was sent to the Turkish Justice Ministry concerning its request for assistance on Feb. 7 in the matter of Derya Büyükncu, who currently lives in the United States. The email was made public by Turkish journalist Nevşün Mengü on her Twitter account on Monday.

According to the email from the US Justice Department, the Turkish authorities asked the US authorities to interview Büyükuncu for allegedly insulting a public official on social media, namely President Recep Tayyip Erdoğan.

Turkish prosecutors issued a detention warrant for Büyükuncu, a six-time Olympic backstroke and butterfly swimmer, in early February due to a tweet he posted about the health of Erdoğan, who had tested positive for COVID-19.

After Erdoğan announced that had tested positive and asked for prayers for his health, Büyükuncu was among the thousands of social media users who posted messages that included hope about Erdoğan’s death from the coronavirus.

“He contracted the coronavirus and wants us to pray for him. We are praying, he should have no worries. I have already begun to make halva in 20 pots. When the time comes, I will distribute them to the entire neighborhood,” Büyükuncu tweeted without mentioning Erdoğan’s name.

Halva is a traditional Turkish desert that is generally served to guests and distributed to neighbors when someone has died.

Halva also became a hashtag among Twitter users in Turkey after Erdoğan announced the news about getting infected with the coronavirus.

The US Justice Department said it regrets to inform the Turkish ministry that it will not be able to execute the ministry’s request for legal assistance in the case of Büyükuncu because the First Amendment of the US Constitution provides for broad freedom of expression, and, as a result, prohibits criminal prosecution of speech except in narrowly defined circumstances.

“As you know, the limits to this protection include situations in which the speech comprises a true threat or incites imminent violence. In this case, there has not been a sufficient showing in this regard,” said the US Justice Department.

Insulting the president is subject to criminal charges under the controversial Article 299 of the Turkish Penal Code (TCK), and thousands of people in the country are under investigation, with most of them facing the threat of imprisonment over alleged insults of Erdoğan. Whoever insults the president can face up to four years in prison, a sentence that can be increased if the crime was committed through the mass media.

The insult cases generally stem from social media posts shared by Erdoğan opponents. The Turkish police and judiciary perceive even the most minor criticism of Erdoğan or his government as an insult.

In the meantime, Büyükuncu was permanently banned by the Turkish Swimming Federation from participating in official sports events due to his “insulting” tweet about the president.

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