Blasphemy and Freedom of Expression: Comparative, Theoretical and Historical Reflections after the Charlie Hebdo Massacre [1 ed.] 1108416918, 9781108416917

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i

B L A SP H E M Y A N D F R E E D OM O F E X P R E S SIO N

The tension between blasphemy laws and the freedom of expression in modern times is a key area of debate within legal academia and beyond. With contributions by leading scholars, this volume compares blasphemy laws within a number of Western liberal democracies and debates the legitimacy of these laws in the twenty-first century. Including comprehensive and up-to-date comparative country studies, this book considers the formulation of blasphemy bans, relevant jurisprudential interpretations, the effect on society, and the ensuing convictions and penalties where applicable. It provides a useful historical analysis by discussing the legalpolitical rationales behind the recent abolition of blasphemy laws in some Western states. Contributors also consider the challenges to the tenability of blasphemy laws in a selection of well-balanced theoretical chapters. This book is essential reading for scholars working within the fields of human rights law, philosophy and sociology of religion and comparative politics. Jeroen Temperman is Professor of International Law and Religion, and Deputy Head of the Department of International and European Union Law at Erasmus School of Law, Erasmus University Rotterdam. András Koltay is Associate Professor and Head of the Department of Private Law at Pázmány Péter Catholic University Faculty of Law in Budapest, Hungary.

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iii

B L A SP H E M Y A N D F R E E D OM O F E X P R E S SIO N Comparative, Theoretical and Historical Reflections after the Charlie Hebdo Massacre

Edited by JEROEN TEMPERMAN Erasmus University Rotterdam

A N D R Á S   KO LTAY Pázmány Péter Catholic University, Budapest

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University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06-04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108416917 DOI: 10.1017/9781108242189 © Jeroen Temperman and András Koltay 2017 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2017 Printed in the United Kingdom by Clays, St Ives plc A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: Temperman, Jeroen, editor. | Koltay, András, 1978– editor. Title: Blasphemy and freedom of expression: comparative, theoretical and historical reflections after the Charlie Hebdo massacre / edited by Jeroen Temperman, Erasmus University Rotterdam; András Koltay, Pázmány Péter Catholic University, Budapest. Description: Cambridge, United Kingdom; New York, NY, USA: Cambridge University Press, 2017. | Includes bibliographical references and index. Identifiers: LCCN 2017022403 | ISBN 9781108416917 (hardback) Subjects: LCSH: Blasphemy – Law and legislation. | Freedom of expression. Classification: LCC K5305.B57 2018 | DDC 345/.0288–dc23 LC record available at https://lccn.loc.gov/2017022403 ISBN 978-1-108-41691-7 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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i

B L A SP H E M Y A N D F R E E D OM O F E X P R E S SIO N

The tension between blasphemy laws and the freedom of expression in modern times is a key area of debate within legal academia and beyond. With contributions by leading scholars, this volume compares blasphemy laws within a number of Western liberal democracies and debates the legitimacy of these laws in the twenty-first century. Including comprehensive and up-to-date comparative country studies, this book considers the formulation of blasphemy bans, relevant jurisprudential interpretations, the effect on society, and the ensuing convictions and penalties where applicable. It provides a useful historical analysis by discussing the legalpolitical rationales behind the recent abolition of blasphemy laws in some Western states. Contributors also consider the challenges to the tenability of blasphemy laws in a selection of well-balanced theoretical chapters. This book is essential reading for scholars working within the fields of human rights law, philosophy and sociology of religion and comparative politics. Jeroen Temperman is Professor of International Law and Religion, and Deputy Head of the Department of International and European Union Law at Erasmus School of Law, Erasmus University Rotterdam. András Koltay is Associate Professor and Head of the Department of Private Law at Pázmány Péter Catholic University Faculty of Law in Budapest, Hungary.

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, subject to the Cambridge Core

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iii

B L A SP H E M Y A N D F R E E D OM O F E X P R E S SIO N Comparative, Theoretical and Historical Reflections after the Charlie Hebdo Massacre

Edited by JEROEN TEMPERMAN Erasmus University Rotterdam

A N D R Á S   KO LTAY Pázmány Péter Catholic University, Budapest

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University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06-04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108416917 DOI: 10.1017/9781108242189 © Jeroen Temperman and András Koltay 2017 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2017 Printed in the United Kingdom by Clays, St Ives plc A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: Temperman, Jeroen, editor. | Koltay, András, 1978– editor. Title: Blasphemy and freedom of expression: comparative, theoretical and historical reflections after the Charlie Hebdo massacre / edited by Jeroen Temperman, Erasmus University Rotterdam; András Koltay, Pázmány Péter Catholic University, Budapest. Description: Cambridge, United Kingdom; New York, NY, USA: Cambridge University Press, 2017. | Includes bibliographical references and index. Identifiers: LCCN 2017022403 | ISBN 9781108416917 (hardback) Subjects: LCSH: Blasphemy – Law and legislation. | Freedom of expression. Classification: LCC K5305.B57 2018 | DDC 345/.0288–dc23 LC record available at https://lccn.loc.gov/2017022403 ISBN 978-1-108-41691-7 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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i

B L A SP H E M Y A N D F R E E D OM O F E X P R E S SIO N

The tension between blasphemy laws and the freedom of expression in modern times is a key area of debate within legal academia and beyond. With contributions by leading scholars, this volume compares blasphemy laws within a number of Western liberal democracies and debates the legitimacy of these laws in the twenty-first century. Including comprehensive and up-to-date comparative country studies, this book considers the formulation of blasphemy bans, relevant jurisprudential interpretations, the effect on society, and the ensuing convictions and penalties where applicable. It provides a useful historical analysis by discussing the legalpolitical rationales behind the recent abolition of blasphemy laws in some Western states. Contributors also consider the challenges to the tenability of blasphemy laws in a selection of well-balanced theoretical chapters. This book is essential reading for scholars working within the fields of human rights law, philosophy and sociology of religion and comparative politics. Jeroen Temperman is Professor of International Law and Religion, and Deputy Head of the Department of International and European Union Law at Erasmus School of Law, Erasmus University Rotterdam. András Koltay is Associate Professor and Head of the Department of Private Law at Pázmány Péter Catholic University Faculty of Law in Budapest, Hungary.

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, subject to the Cambridge Core

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iii

B L A SP H E M Y A N D F R E E D OM O F E X P R E S SIO N Comparative, Theoretical and Historical Reflections after the Charlie Hebdo Massacre

Edited by JEROEN TEMPERMAN Erasmus University Rotterdam

A N D R Á S   KO LTAY Pázmány Péter Catholic University, Budapest

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University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06-04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108416917 DOI: 10.1017/9781108242189 © Jeroen Temperman and András Koltay 2017 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2017 Printed in the United Kingdom by Clays, St Ives plc A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: Temperman, Jeroen, editor. | Koltay, András, 1978– editor. Title: Blasphemy and freedom of expression: comparative, theoretical and historical reflections after the Charlie Hebdo massacre / edited by Jeroen Temperman, Erasmus University Rotterdam; András Koltay, Pázmány Péter Catholic University, Budapest. Description: Cambridge, United Kingdom; New York, NY, USA: Cambridge University Press, 2017. | Includes bibliographical references and index. Identifiers: LCCN 2017022403 | ISBN 9781108416917 (hardback) Subjects: LCSH: Blasphemy – Law and legislation. | Freedom of expression. Classification: LCC K5305.B57 2018 | DDC 345/.0288–dc23 LC record available at https://lccn.loc.gov/2017022403 ISBN 978-1-108-41691-7 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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CONTENTS

Notes on Contributors page ix Foreword by Eric Barendt xvii Introduction

1

Andr á s Koltay & Jeroen Temperman

Part I The Case of Charlie Hebdo 1

Blasphemy in French Law: From the Chevalier de la Barre to Charlie Hebdo 25 Guilhem Gil

2

Blasphemy and Defamation of Religion Following Charlie Hebdo 53 N ev i l l e   C ox

Part II The Right to Blaspheme 3

Blasphemy, the Public Sphere and Democratic Self-Government 87 Ian Cram

4

The Right to Blaspheme

114

Mark Hill Q C & Russell Sandberg

Part III On Western Legal Discourse against Blasphemy Laws 5

Blasphemy, Freedom of Expression and the Protection of Religious Sensibilities in Twenty-First-Century Europe 137 Peter Cumper

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6 Rethinking Blasphemy and Anti-Blasphemy Laws

167

Robert A. Kahn

7 Blasphemy, Defamation of Religion and Religious Hate Speech: Is There a Difference That Makes a Difference? 194 John C. Knechtle

8 The Freedom and Restriction of Blasphemy: Theoretical Perspectives 223 Andr á s Koltay

Part IV European Court of Human Rights and Blasphemy 9 At the Deep End of the Pool: Religious Offence, Debate Speech and the Margin of Appreciation before the European Court of Human Rights 259 Tom Lewis

10 ‘Mother of God, Drive Putin Away’: On Blasphemy and Activist Art in the Jurisprudence of the European Court of Human Rights 294 Jeroen Temperman

Part V Active Blasphemy/Religious Defamation Laws 11 Religious Insult and Blasphemy in Contemporary Finland 317 Tuomas  Ä yst ö

12 The Blasphemy Offence in the Italian Legal System 339 Cristiana Cianit to

13 Legal Protection of Religion in Germany

358

M at t h ias C o rn i l s

14 God’s Advocates: The Multiple Fronts of the War on Blasphemy in Greece 389 Effie Fokas

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Contents

15 Blasphemy Law in Poland

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411

Joanna Kulesz a & Jan Kulesz a

Part VI Dormant Blasphemy Laws 16 The Blasphemy Ban in Denmark

431

L ars Grassm é Binderup & Eva Maria L assen

17 A Draft Obituary for the Offence of Blasphemy in Ireland 456 Tarl ach Mc Gonagle

18 Religion and Hate Speech in Canada: The Difficulty in Separating Attacks on Beliefs from Attacks on Believers 480 Richard Mo on

19 Blasphemy in Australia: The Rags and Remnants of Persecution? 510 Helen Pringle

20 Blasphemy Prohibitions and Prosecutions: A US Perspective 534 Russell L. Weaver

Part VII Recently Abrogated Blasphemy Laws 21 Giving Up the Ghost: On the Decline and Fall of Norwegian Anti-Blasphemy Legislation 553 H e l g e Å r sh e i m

22 The Theory and Practice of Blasphemy in the Common Law: Slaying the Seven-Headed Beast 576 Ivan Hare

23 Freedom of Expression, Blasphemy and Religious Hatred: A View from the United Kingdom 595 Erica Howard

24 The Rise and Fall of the Offence of Blasphemy in the Netherlands 619 Esther Janssen

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Part VIII The Future of Blasphemy Laws? 25 Freedom of Expression and Religions, the United Nations and the ‘16/18 Process’ 645 Marc Limon, Nazil a Ghanea & Hil ary P ower

26 Blasphemy, Religious Rights and Harassment: A Workplace Study 681 Andrew Hambler

27 Towards an Understanding of Accelerants and Decelerants: A Non-Juriscentric Approach to Offensive or Hateful Speech Concerning Religion 701 Bret t G. Scharffs

Index

719

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NOTES ON CONTRIBUTORS

Helge Årsheim is Post-Doctoral Fellow at the Faculty of Theology, University of Oslo, Norway. He is a member of the Oslo Coalition for the Freedom of Religion or Belief and editor-in-chief of the Religion: Going Public research blog and Norway editor for EUREL, a database on sociological and legal information on religion in Europe. His work has been published in the Oxford Journal of Law and Religion, the Nordic Journal of Human Rights and Religion & Human Rights. His first book, ReligionMaking and Human Rights at the United Nations, 1993–2013, was published by De Gruyter in 2017. Tuomas Äystö is a doctoral candidate in comparative religion at the University of Turku. He has published his research on Finnish religious insult criminalization in journals such as Numen and Journal of Religion in Europe. Eric Barendt is Emeritus Professor of Law at University College London. Before his retirement, he was the Goodman Professor of Media Law at UCL from 1990 to 2010. He is the author of numerous books, notably Freedom of Speech (2nd edn, Oxford University Press, 2007), Academic Freedom and the Law (Hart, 2010) and Anonymous Speech (Hart, 2016). He is an editor of the Journal of Media Law. Lars Grassmé Binderup is Associate Professor of Philosophy at the Department of the Study of Culture and Vice-Dean at the Faculty of Humanities at University of Southern Denmark. He has authored articles on freedom of speech, tolerance, minority rights and moral relativism and has co-edited anthologies on the rights and plights of religious minorities and human rights, democracy and religion (incl. Res Cogitans, special issue, 2007). Cristiana Cianitto is Lecturer in Canon Law at the University of Milan. She is also a founding member and the Secretary-General of the International Consortium for Law and Religion Studies (ICLARS), ix

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notes on contributors

a member of the Editorial Board of the Quaderni di diritto e politica ecclesiastica and a case note editor of the Oxford Journal for Law and Religion. Her main fields of investigation are Church and State relationships in the United Kingdom with particular attention to Anglican canon law and the British legal system in relation to religious issues; as well as hate crime, hate speech, freedom of religion and freedom of expression in the United Kingdom, the United States, India and Italy. She recently published Quando la parola ferisce: Blasfemia e incitamento all’odio religiosa nella società contemporanea (Giappichelli, 2016). Matthias Cornils holds the chair of media law, law on cultural matters and public law at Johannes Gutenberg University, Mainz, Germany. He is the Deputy Head of the Mainz Media Institute and a member of the Johannes Gutenberg University’s research project on media convergence. His research areas include constitutional law, law of the European Union, telecommunication and media law, as well as state liability law. He is the author of several articles and contributions dealing with issues of freedom of expression and the media, including legal questions concerning the problem of ‘blasphemy’ and the criticism of religion. Neville Cox is a Professor in the law school of Trinity College Dublin, where he is also the University Dean of Graduate Studies and is a practising barrister. He is the author of Blasphemy and the Law in Ireland (2000), Sport and the Law (2004), Employment Law (2009) and Defamation Law and Practice (2014). He is also the author of numerous law review articles and research studies primarily in the area of Islamic law and human rights. Ian Cram is Professor of Comparative Constitutional Law at Leeds University, School of Law. His published work includes four monographs, including Terror and the War on Dissent – Freedom of Expression in the Age of Al-Qaeda (Springer, 2009) as well as numerous articles in leading international law/politics journals. His most recent monograph, Citizen Journalists: Newer Media, Republican Moments and the Constitution, is to be published by Elgar as part of its monographs series in Constitutional and Administrative Law. He has recently appeared as an expert witness on constitutional reform at the House of Commons, and in 2015 he was cited by the Political and Constitutional Reform Select Committee in its report Revisiting the Cabinet Manual (HC 233; 2014–15). He also sits on the board of editors of the International & Comparative Law Quarterly. Peter Cumper is a professor in the School of Law at the University of Leicester. His teaching is in the areas of public law and human rights, and

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notes on Contributors

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he is responsible for a postgraduate module on freedom of expression. He conducts research in the field of religion and human rights. Effie Fokas is Principal Investigator of the European Research Council– funded project examining Grassroots Mobilisations in the Shadow of European Court of Human Rights Religious Freedoms Jurisprudence (Grassrootsmobilise), based at the Hellenic Foundation for European and Foreign Policy (ELIAMEP) in Athens. She was the founding director of the London School of Economics Forum on Religion and is currently a research associate at the LSE Hellenic Observatory. Her publications include Islam in Europe: Diversity, Identity and Influence (Cambridge University Press, 2008), co-edited with Aziz Al-Azmeh, and Religious America, Secular Europe? A Theme and Variations (2nd edn, Routledge, 2008), co-authored with Peter Berger and Grace Davie. Nazila Ghanea is an Associate Professor of International Human Rights Law at the University of Oxford and serves as a member of the OSCE Panel of Experts on freedom of religion or belief and on the board of governors of the Universal Rights Group. She has authored, co-authored and edited a number of academic and UN publications including Freedom of Religion or Belief: An International Law Commentary (Oxford University Press, 2016), Religion or Belief, Discrimination and Equality:  Britain in Global Contexts (Bloomsbury, 2015) and Human Rights, the UN and the Bahá‘ís in Iran (Martinus Nijhoff/George Ronald, 2013). Guilhem Gil is Associate Professor and Member of the Groupe de Recherches et d’Etudes en Droit de l’Immobilier, de l’Aménagement, de l’Urbanisme et de la Construction (GREDIAUC), EA 3786, at the Aix Marseille University, Aix-en-Provence Law School, France. Besides land law, his research focuses on the protection of free speech in the fields of privacy and defamation law, both domestic and international. Andrew Hambler is a senior lecturer in employment law and human resources at the University of Wolverhampton and formerly a human resource consultant at the financial services firm PricewaterhouseCoopers. His research interests are focused on religion and law in the workplace, and he is author of Religious Expression in the Workplace and the Contested Role of Law (Routledge, 2015). His research has been quoted in national reports for the Equality and Human Rights Commission and has been recognised by the Chartered Management Institute. As well as publishing in this field, he has acted as an adviser to religious ethos organisations.

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notes on contributors

Ivan Hare qc is a barrister at Blackstone Chambers in London specialising in constitutional law and human rights cases. He was previously a Fellow of Trinity College Cambridge. He has written extensively on comparative public law and human rights, in particular freedom of expression. His books include De Smith’s Judicial Review (7th edn, Sweet and Maxwell, 2013 and Annual Supplements, with A. Le Sueur and C. Donnelly); Extreme Speech and Democracy (Oxford University Press, 2008, with J. Weinstein) and The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade (Oxford University Press, 1998, with C. Forsyth). Mark Hill QC is Associate Professor at the Centre for Law and Religion, Cardiff University; the Faculty of Theology, University of Pretoria, South Africa; the Dickson Poon School of Law, King’s College, London; and Notre Dame University Law School, Sydney, Australia. His publications include Great Christian Jurists in English History (Cambridge University Press, 2017), The Confluence of Law and Religion (Cambridge University Press, 2016), Magna Carta, Religion and the Rule of Law (Cambridge University Press, 2015), Religion and Law in the United Kingdom (Kluwer Law International, 2014), Religion and Discrimination Law in the European Union (European Consortium for Church and State Research, 2012), Ecclesiastical Law (3rd edn, Oxford University Press, 2007) and Religious Liberty and Human Rights (University of Wales Press, 2002). He is Consultant Editor of the Ecclesiastical Law Journal and a member of the editorial board of the Oxford Journal of Law and Religion and of Cambridge University Press’s Law and Christianity Series. Erica Howard is Associate Professor in law in the Department of Law and Politics at Middlesex University, London. She has authored two books and a number of articles on race discrimination, freedom of religion and the right to be free from discrimination on the grounds of religion or belief and on the ground of sexual orientation. She has written a book on freedom of expression and religious hate speech, published by Routledge in August 2017. She has also written two articles on this subject. Esther Janssen is scientific legal counsel specialising in media and information law and human rights at bureau Brandeis, a Dutch law firm based in Amsterdam. In September 2014, she received her doctorate from the University of Amsterdam for her dissertation, later published as Faith in Public Debate:  On Freedom of Expression, Hate Speech and Religion (Intersentia, 2015). Robert A.  Kahn is Associate Professor at the St. Thomas University School of Law (Minnesota), where his courses include hate speech law,

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Islam and civil liberties and privacy law. His book Holocaust Denial and the Law:  A  Comparative Study (Palgrave Macmillan, 2004)  examined prosecutions of Holocaust deniers in Europe and Canada. Kahn has also written about the legitimacy of bans on genocide denial, the US crossburning cases, European headscarf bans, the Danish cartoon controversy and the defamation-of-religions debate. John C. Knechtle is Senior Lecturer on the Faculty of Law at the University of the West Indies, St. Augustine, Trinidad. He has authored or co-authored five books on constitutional law, including Mastering Constitutional Law (2nd edn, Carolina Academic Press, 2015), Constitutional Law: Cases, Materials and Problems (3rd edn, Wolters Kluwer, 2013) and The First Amendment: Cases, Materials, and Problems (3rd edn, LexisNexis, 2013). He has authored more than fifty articles and reports including ‘Holocaust denial in the European Union and the concept of dignity’ (Florida State University Law Review, 2008); ‘When to regulate hate speech’ (Penn State Law Review, 2006) and ‘Law and religion in Jamaica’ (in Brill’s Encyclopedia of Law and Religion, 2014). András Koltay is Associate Professor and Head of Department of Private Law at Pázmány Péter Catholic University Faculty of Law in Budapest, Hungary. He received his LLM degree at the University College London in 2006, and his PhD degree in law at the Pázmány Péter Catholic University in 2008. His principal research has been concerned with freedom of speech, personality rights and media law. He is the author of more than 150 articles in Hungarian and other languages and of three monographs on comparative freedom of speech; in English, see Freedom of Speech: The Unreachable Mirage (Wolters Kluwer, 2013). Jan Kulesza is Assistant Professor of Criminal Law at the Faculty of Law and Administration, University of Łódź, Poland. He is the author of numerous peer-reviewed papers on criminal law, focusing on various aspects of material law, including rational penalization and application of constitutional principles in criminal law. His academic work has been awarded numerous prizes, including those awarded by the Rector of the University of Łódź. Jan Kulesza serves as an expert for the legal office of the Polish Parliament (Sejm). His postdoctoral research was conducted at the Justus-Liebig-Universität Giessen and Ludwig-MaximiliansUniversität Munich. He recently completed a state-funded research project on comparative aspects of rational penalisation. Joanna Kulesza is Assistant Professor of International Law at the Faculty of Law and Administration, University of Łódź, Poland. She has been a

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visiting lecturer with the Oxford Internet Institute, Norwegian Research Center for Computers and Law, Westfälische Wilhelms Universität Münster and Justus-Liebig-Universität Giessen. She was a post-doctoral researcher at the University of Cambridge and Ludwig Maximilians University Munich. Kulesza serves as an expert for the Council of Europe on human rights online (Ukraine 2015, Moldova 2016) and for the SinoEuropean Cybersecurity Dialogue. She is the author of more than fifty peer-reviewed papers and five books on international and internet law, including Cybersecurity and Human Rights in the Age of Cyberveillance (with R.  Balleste, Rowman and Littlefield, 2015)  and Due Diligence in International Law (Brill, 2016). Her research focus is on the intersection of human rights and cybersecurity. Eva Maria Lassen is Senior Researcher at the Danish Institute for Human Rights. She holds a PhD in history and is an expert on religious freedom, the history of human rights and human rights and religious traditions. She is currently Executive Secretary of the Association of Human Rights Institutes, member of the Board of Administrators of the European Inter-University Centre of Human Rights and Democratization, National Director of the European Master’s Degree in Human Rights and Democratization and Vice-Chair of Humanity in Action, Denmark. She participates in the research project ‘FRAME:  Fostering Human Rights among European Policies’, funded under the European Union’s Seventh Framework Program. Tom Lewis is Professor of Human Rights Law at Nottingham Law School, Nottingham Trent University, United Kingdom. He is Director of the Law School’s Research Centre for Conflict, Rights and Justice, and is also a qualified solicitor. He has published widely in the field of human rights, especially in relation to the rights of freedom of expression and freedom of religion or belief under the European Convention on Human Rights and the United Kingdom’s Human Rights Act. He is co-editor of Religion, Rights and Secular Society: European Perspectives (Edward Elgar, 2012). Marc Limon is Executive Director of the Universal Rights Group, a think tank focused on international human rights policy, with offices in Geneva and New  York. Previously, he worked as a diplomat at the UN Human Rights Council from the body’s establishment in 2006 until the end of 2012. Prior to coming to Geneva, he worked as a government affairs and media relations consultant in Brussels, focusing on EU policy making in the areas of international relations, human rights, trade and the environment. He holds Master’s degrees from the University of

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Cambridge (United Kingdom), Universite Libre de Bruxelles (Belgium) and Kaholieke Universiteit Leuven (Belgium). Tarlach McGonagle (PhD, University of Amsterdam) is a senior researcher/lecturer at the Institute for Information Law (IViR) at the University of Amsterdam. He specialises in and has published widely on a broad range of topics relating to international and European human rights law, media law and policy and journalism. He regularly does expert work for the Council of Europe and the Organization for Security and Co-operation in Europe. He was Rapporteur of the Council of Europe’s Committee of Experts on protection of journalism and safety of journalists (2014–15) and is currently a member of the Council of Europe’s Committee of Experts on media pluralism and transparency of media ownership. Richard Moon is a Distinguished University Professor at the University of Windsor, Canada. He is the author of The Constitutional Protection of Freedom of Expression (University of Toronto Press, 2000), Freedom of Conscience and Religion (Irwin Law, 2014) and Putting Faith in Hate: When Religion is the Target or Source of Hate Speech (forthcoming with Cambridge University Press), editor of Law and Religious Pluralism in Canada (UBC Press, 2008), co-editor of Religion and the Exercise of Public Authority (Bloomsbury, 2016) and contributing editor to Canadian Constitutional Law (5th edn, 2016). Hilary Power worked as a policy analyst at the Universal Rights Group in Geneva between 2013 and 2017. During this time, she focused on projects relating to UN policy for combatting religious intolerance; the evolution and future sustainability of the UN Special Procedures system; and strengthening the visibility, accessibility, responsiveness and effectiveness of the UN human rights communications systems. She holds a Master’s degree in human rights from the University College London and a BA in history from UCL/Sorbonne Paris IV. Helen Pringle is Senior Lecturer in Politics in the School of Social Sciences at the University of New South Wales in Sydney. Her main fields of expertise are freedom of expression, sex and human rights and political theory. She has authored, with Asher Joel, Australian Protocol and Procedures (University of New South Wales Press, 2007). Russell Sandberg is Head of Law and Reader in Law at the School of Law and Politics at Cardiff University where he specialises in law and religion and legal history. He is the author of Law and Religion (Cambridge

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University Press, 2011) and Religion, Law and Society (Cambridge University Press, 2014) and co-author of Religion and Law in the United Kingdom (Kluwer Law International, 2011; 2nd edn, 2014). He is editor or co-editor of Law and Religion: New Horizons (Peeters, 2010), Religion and Legal Pluralism (Ashgate, 2015) and The Confluence of Law and Religion (Cambridge University Press, 2016). Brett G. Scharffs is Rex E. Lee Chair and Professor of Law at Brigham Young University Law School and the Director of the International Center for Law and Religion Studies. He has a BSBA and MA from Georgetown University, a B.Phil from Oxford University and a JD from Yale Law School. Professor Scharffs has written more than 100 articles and book chapters and has made more than 300 scholarly presentations in thirty countries. His casebook, Law and Religion: National, International and Comparative Perspectives (Aspen Press, 2010, with W. Cole Durham, Jr.), has been translated into Chinese and Vietnamese and is being translated into Turkish, Arabic, Burmese and Bahasa Indonesia. Together with his colleague Elizabeth Clark, he is author of Religion and Law in the United States (Wolters Kluwer, 2016). Jeroen Temperman is Professor of International Law and Religion, and Deputy Head of the Department of International and European Union Law at Erasmus School of Law, Erasmus University Rotterdam, Netherlands. He is also the editor-in-chief of Religion & Human Rights and a member of the Organization for Safety and Cooperation in Europe’s Panel of Experts on Freedom of Religion or Belief. He has authored, among other books, Religious Hatred and International Law (Cambridge University Press, 2016) and State-Religion Relationships and Human Rights Law (Martinus Nijhoff Publishers, 2010) and edited The Lautsi Papers (Martinus Nijhoff, 2012). Russell L. Weaver is Professor of Law and Distinguished University Scholar at the University of Louisville’s Louis D. Brandeis School of Law. He has published numerous books and articles on constitutional law issues, especially the First Amendment, including From Gutenberg to the Internet: Free Speech, Advancing Technology and the Implications for Democracy (Carolina Academic Press, 2013), The Right to Speak Ill: Defamation, Reputation and Free Speech (Carolina Academic Press, 2006), The First Amendment: Cases, Materials and Problems (5th edn, Carolina Academic Press, 2017), Constitutional Law: Cases, Materials and Problems (4th edn, Carolina Academic Press, 2017) and Understanding the First Amendment (6th edn, Carolina Academic Press, 2017).

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FOREWORD

The legitimate scope of blasphemy and religious hatred laws is now one of the most hotly debated areas of free speech law. Among the questions liberal democracies must ask in this context is whether harsh criticism of religious beliefs and practices is fully covered by their understanding of freedom of expression and indeed, for many countries, their constitutional guarantee of the freedom. Secondly, insofar as such criticism is covered by a freedom-of-expression clause, how far might it be right to restrict its dissemination on grounds of public order or to protect the feelings of those religious believers who may be appalled that their faith is ridiculed by it? Perhaps there are other sound reasons for proscribing extreme religious hate speech; such speech might, as Jeremy Waldron argues in The Harm in Hate Speech (Harvard University Press, 2012), actually constitute harm by denying that believers are full members of civil society. Recent events in France have brought this controversy to the forefront of public debate. The murder of the Charlie Hebdo journalists in January 2015 after the magazine had published cartoons of the Prophet Muhammad naturally provoked a wide public debate whether it had been right to publish them and whether European newspapers and magazines should republish them in order to tell their readers what the controversy was about. Sadly, this was far from the first episode in which religious publications had brought about anger, violence and the loss of life. In 1989, the publication of The Satanic Verses led to Ayatollah Khomeini’s infamous fatwa against Salman Rushdie, to the burning of copies of the book and to riots and assassinations in many countries. (But an attempt to prosecute publishers of the book in England under the common law of blasphemy failed, because that law penalised intemperate criticism only of the doctrines of the Church of England and did not protect the feelings of Muslims or of members of other religious communities.) The publication of the Danish cartoons of the Prophet in 2005 was followed by worldwide riots and well over 200 deaths; however, a number of newspapers and magazines in Europe did republish them in sympathy with the xvii

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editor of the Danish newspaper. But there was no attempt to prosecute any of these media outlets. Indeed, as some of the essays in this collection show, even though blasphemy and comparable laws remained on the statute books of many European countries at the end of the twentieth century, they were rarely enforced. There was therefore a tension between official reluctance to use blasphemy laws against extreme speech hostile to religious belief and the violent reaction of some members of religious communities, particularly Muslims. But it would be wrong to conclude that blasphemy law is now dead, killed off, as it were, by the forces of secularism and liberal tolerance. The essays in this book indicate that some jurisdictions do still enforce blasphemy laws, particularly when they are framed in terms of the proscription of the expression of religious hatred. In the United Kingdom, the common-law blasphemy offences have been abolished, but prosecutions have been brought for the new statutory offence of incitement to religious hatred, which was introduced in 2006. A distinction can be drawn between the broad toleration of harsh criticism of religious belief on the one hand and penalising the expression of hatred directed at members of religious communities on the other. Timothy Garton Ash draws this distinction in the sixth Principle outlined and explained in his recent book on global free speech principles:  ‘We respect the believer but not necessarily the content of the belief ’ (Free Speech, Yale University Press, 2016, subtitle of Chapter 6 and the name of his sixth free speech principle). It is far from clear, however, whether drawing this distinction resolves all the difficulties posed by the rival claims of liberal secularists and of those religious believers – particularly, but not only, Muslims – who demand respect for those beliefs which are central to their sense of identity and self-esteem. Should, say, a non-violent demonstration outside a cathedral on a Sunday morning, with protestors mocking the Pope or fundamental Catholic doctrine, be understood as an exercise of free expression on matters of public religious discourse or instead as showing hatred for devout Catholics attending Mass? The Muhammad cartoons not only infringe the proscription in Islam of any representation of the Prophet but also perhaps show disrespect for devout Muslims for whom this ban is as important as the colour of their skin may be to any member of a racial group. The distinction between an extreme attack on a religious belief and hate speech targeted against its adherents may be a distinction without a real difference. Essays in this collection explore this crucial question of principle.

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There is also, of course, the problem of defining what constitutes a religious group for the purpose of a blasphemy or religious hatred offence. In 2013, the UK Supreme Court ruled that a Scientology church was a place of religious worship for the purpose of conducting wedding ceremonies, so Scientologists, and presumably members of other cults, are protected by the law penalising incitement to hatred of any group ‘defined by reference to religious belief or lack of religious belief ’ (UK Racial and Religious Hatred Act 2006, amending the Public Order Act 1986, section 17). But how can one justify the protection of Scientologists, Jehovah’s Witnesses or Humanists against hate speech but in contrast not animal rights demonstrators or Greenpeace activists against a comparable vicious attack? It seems difficult to justify special protection for members of religious communities against hate speech when in a liberal society which values freedom of speech, members of political parties and pressure groups are rightly expected to tolerate such verbal attacks. Political speech lies at the core of the public discourse, which must be fully protected if freedom of speech is to mean anything at all, and it seems difficult to see any good reason for distinguishing speech about religious beliefs and practices. If politicians can legitimately be subject to ridicule and satire, so too should religious leaders expect robust treatment in magazines and other media. Of course, against these arguments of free speech principle it can be contended that religion is special and that the sensitivities of believers must be respected. That is certainly the Muslim argument and the reason why Islamic countries have pressed for the introduction at the United Nations of resolutions against the defamation of religion. The argument is that respect for freedom of religion requires outlawing hostile criticism of religious belief and observance. But it is impossible to reconcile this case with freedom of speech, and it is hardly surprising that European countries have opposed the resolutions drafted by Pakistan and other Islamic countries. As the essays in this book show, legal and constitutional argument highlights the wide, perhaps unbridgeable, differences between Western, largely secular countries and theocratic states in the Muslim world. We can hope that these differences may one day be resolved, but present global tensions suggest it would be facile to have high expectations of their speedy resolution. Eric Barendt

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1

 Introduction Andr á s Koltay & Jeroen Temperman

I.1

Of Charlie Hebdo and ‘The End of Blasphemy’?

The attacks on 7 January 2015 against editors and employers of satirical magazine Charlie Hebdo, killing twelve and wounding eleven persons, did not mark a new era in Western legal thinking on free speech and permissible exceptions. While not a watershed, the massacre is significant for many reasons. Notably, it was a large-scale ‘attack on free speech’ on Western soil. Charlie Hebdo’s director and cartoonist Stéphane Charbonnier, who was killed in the attack, was on al-Qaida’s hit list – a group with which the two gunmen identified themselves. Also, the event was soon followed by similar attacks ostensibly ‘avenging’ Western-style free speech, like the shooting, killing two and wounding five persons, that occurred on 14 February 2015 in Copenhagen, Denmark, at a public event called ‘Art, Blasphemy and Freedom of Expression’, involving, among other speakers, the Swedish artist Lars Vilks, who has gained notoriety since 2007 as a result of his drawings of Muhammad. Then on 3 May 2015 the Curtis Culwell Center attack was carried out – the first assault on US soil for which ISIS claimed credit; this time there were no fatalities other than the two gunmen, who did, however, wound a security officer before a SWAT team took them out. This conference centre hosted an exhibition of images of Muhammad as well as a Muhammad-drawing ‘contest’ – the winning cartoon, with the caption ‘You can’t draw me!/That’s why I draw you’, won US$12,500 – and featured speeches by critics of Islam including Pamela Geller and Geert Wilders. These attacks largely functioned to augment most Western states’, politicians’ and legal scholars’ pro–free speech resolve, cumulating in the Je Suis Charlie mantra. Many Western jurisdictions in recent times have abolished blasphemy offences, and these events did nothing to foster their reintroduction – quite the contrary. There is some evidence, as the chapter on Norway in this volume, for instance, shows, that Charlie Hebdo 1

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has functioned as the final straw for some states to definitively strike the offence off their statute books. That said, other states – where similar momentum was building to abrogate blasphemy laws – are currently experiencing second thoughts. Thus while Charlie Hebdo has not quite led to the reintroduction of blasphemy laws in ‘the West’, in some states the incident has contributed to a sense of fear that this point in history may not be the best moment for a largely symbolic decision on ‘the end of blasphemy’. It should be noted, though, that in such states this type of fear is typically part of a much larger and genuinely legal concern about equal protection under the law of non-dominant religions and their adherents. See, for example, the chapter on Denmark, which serves as an excellent case in point here. This book investigates the status and tenability of blasphemy laws in Western jurisdictions. There is vast knowledge on non-Western blasphemy laws and their chilling effect on free speech as well as the way these laws have been used and abused to stifle undesirable dissident speech and unorthodox speech acts on the part of religious minorities.1 The discussion on Western blasphemy laws tends to trivialise their significance in two ways. First, they would be mere relics, largely dormant legal curiosities and, in any event, shortly to be a thing of the past. Second, Western legal doctrine would be virtually uniformly on the side of their complete abolition.

I.2

Of Double Standards

On the former point, this book takes as point of departure that ‘the West’ in fact is not quite as progressive on this point as often thought or portrayed. True, Western countries formed an outspoken front against the Defamation of Religion resolutions that aimed at imposing limits on offensive speech.2 1

2

For a recent comprehensive comparative study, see Paul Marshall and Nina Shea, Silenced: How Apostasy & Blasphemy Codes Are Choking Freedom Worldwide (Oxford:  Oxford University Press, 2011), chiefly focussing on Muslim-majority countries. E.g., Commission on Human Rights, Resolution 1999/82 on ‘Defamation of Religions’ of 30 April 1999; Resolution 2001/4 on ‘Combating Defamation of Religions as a Means to Promote Human Rights, Social Harmony and Religious and Cultural Diversity’ of 18 April 2001; Resolution 2002/9 on ‘Combating Defamation of Religions’ of 15 April 2002; Resolution 2003/4 on ‘Combating Defamation of Religions’ of 14 April 2003; Resolution 2004/6 on ‘Combating Defamation of Religions’ of 13 April 2004; and Resolution 2005/3 on ‘Combating Defamation of Religions’ of 12 April 2005; a trend subsequently continued by the Human Rights Council, see, e.g., Resolution 4/9 on ‘Combating Defamation of

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These Resolutions, tabled by the Organization of the Islamic Conference (OIC) in the political organs of the United Nations, the UN General Assembly and the Human Rights Council, were rejected for threatening the core of the right to freedom of expression and the right to freedom of religion or belief. The latter right, legal scholarship also pointed out,3 includes a right to manifest beliefs that may be heretical, defamatory or blasphemous to another person. True, moreover, the twenty-eight (soon to be twenty-seven) European Union countries specifically take a firm position against blasphemy laws in their foreign policy vis-à-vis third countries. In the 2013 EU Guidelines on the promotion and protection of freedom of religion or belief the EU boldly announced that it will ‘at all appropriate occasions’ advocate the position ‘that laws that criminalize blasphemy restrict expression concerning religious or other beliefs; that they are often applied so as to persecute, mistreat, or intimidate persons belonging to religious or other minorities, and that they can have a serious inhibiting effect on freedom of expression and on freedom of religion or belief; and recommend the decriminalisation of such offences’.4 While one may find this an admirable cause, what is problematic in terms of public diplomacy is that a number of EU states themselves still have blasphemy restrictions on their statute books.5

3

4

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Religions’ of 30 March 2007; and Resolution 7/19 on ‘Combating Defamation of Religions’ of 27 March 2008. See also General Assembly Resolutions 60/150 of 16 December 2005, 61/164 of 19 December 2006, and 62/154 of 18 December 2007 (all on ‘Combating Defamation of Religions’). A selection: Jeroen Temperman, ‘Blasphemy, Defamation of Religions & Human Rights Law’ (2008) 26 Netherlands Quarterly of Human Rights; L. Bennett Graham, ‘Defamation of Religions: The End of Pluralism?’ (2009) 23 Emory International Law Review; Sejal Parmar, ‘The Challenge of “Defamation of Religions” to Freedom of Expression and the International Human Rights System’ (2009) 3 European Human Rights Law Review; Allison G. Belnap, ‘Defamation of Religions: A Vague and Overbroad Theory that Threatens Basic Human Rights’ (2010) Brigham Young University Law Review; and Rebecca J. Dobras, ‘Is the United Nations Endorsing Human Rights Violations? An Analysis of the United Nations’ Combating Defamation of Religious Resolutions and Pakistan’s Blasphemy Laws’ (2009) 37 Georgia Journal of International & Comparative Law. EU Guidelines on the promotion and protection of freedom of religion or belief, adopted by the Foreign Affairs Council meeting, Luxembourg, 24 June 2013, para. 32. Indeed, in 2012 Pew Forum counted 32 states in the world that have criminalized blasphemy, 16% out of a total of 198 countries studied. Pew Forum, Laws Penalizing Blasphemy, Apostasy and Defamation of Religion Are Widespread (2012). In that report it counted eight European countries that maintain their blasphemy laws, i.e. 18% within this region. In its 2014 report, due to legal changes in the Netherlands, the percentage for this region dropped to 16%.

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One of this book’s objectives, hence, is to investigate exactly how ‘dormant’ those laws are. Could they still be enforced, or is that impossible under reigning constitutional (case) law? What are the landmark cases (if any)? What type of penalties (if any) are imposed in blasphemy cases? In addition, we asked the authors of the comparative chapters on more (Finland, Germany, Greece, Italy and Poland) or less (Australia, Canada, Denmark, Ireland, United States) active blasphemy or religious defamation laws to engage with such questions as whether criminal investigations (if any) following criminal complaints cause a chilling effect in their own right and whether there exists (political or societal) momentum to abolish the offence. Yet further questions are what these laws aim to protect, religions, religious doctrines and/or persons. How is a breach of a blasphemy law determined? What type of mens rea (if any) is required? And so on. A second objective is more historical:  to unveil what were the precise forces and incentives behind recent legislative initiatives abrogating – oftentimes ancient – blasphemy laws. Was this inspired by developments in international law and/or developments of domestic constitutional law? Which political factions were in support or against the abolition? Has the offence been annulled altogether, or has it rather been replaced by new ‘speech offences’ – potentially offences that are deemed more international law compliant, like ‘incitement’ or ‘hate speech’ offences? To that effect, recent legislative choices and debates in the Netherlands, Norway and the United Kingdom have been scrutinized.

I.3

Of Fragmentation of International Law

On the point of compliance with international law, it must be pointed out that this body of law is highly fragmented, if not outright contradictory, as far as the issue of blasphemy is concerned. International standards and their interpretations on the tenability of blasphemy laws vary from organisation to organisation and even between organs of the same international organisation. The European Court of Human Rights (ECtHR, the Strasbourg Court) of the Council of Europe consistently calls the freedom of expression a cornerstone of a democratic society and underscores that also, if not especially, ideas that ‘offend, shock or disturb’ are to be protected. Yet it is the Strasbourg Court that has gone out of its way to accommodate religious sensitivities and in fact has gone as far as to permit blasphemy(-style) restrictions in its

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(older) case law.6 At the same time, other organs of the Council of Europe have repeatedly advised the annulment of blasphemy laws. Accordingly, the Council of Europe’s Parliamentary Assembly in 2007 considered that blasphemy, as an insult to a religion, should not be deemed a criminal offence. A distinction should be made between matters relating to moral conscience and those relating to what is lawful, matters which belong to the public domain, and those which belong to the private sphere. Even though today prosecutions in this respect are rare in member states, they are legion in other countries of the world.7

The Assembly also notes the inherently discriminatory nature – the fact that they traditionally aim to protect dominant religions – of most blasphemy laws.8 Accordingly, it urges the Committee of Ministers to review national law and practice in the member states of the Council of Europe ‘in order to decriminalise blasphemy as an insult to religion’.9 An earlier parliamentary Assembly Resolution had already posited that ‘blasphemy laws should not be used to curtail freedom of expression and thought’.10 Engaging with the 2005–06 Danish cartoons row, the Assembly realised that ‘[r]eactions to images perceived as negative, transmitted through books, films, cartoons, paintings and the Internet, have recently caused widespread debates about whether – and to what extent – respect for religious beliefs should limit freedom of expression. Questions have also been raised on the issues of media responsibility, self-regulation and selfcensorship.’11 In the final analysis the Assembly concludes that [b]lasphemy has a long history. The Assembly recalls that laws punishing blasphemy and criticism of religious practices and dogmas have often had a negative impact on scientific and social progress. The situation started 6

7

8 9 10

11

The landmark case is Otto-Preminger-Institut v. Austria, Application no. 13470/87, judgment of 20 September 1994. See also X. Ltd. and Y. v. United Kingdom, Application no. 8710/79, decision of 7 May 1982; Wingrove v. the United Kingdom, Application no.  17419/90, judgment of 25 November 1996; and İ.A. v. Turkey, Application no. 42571/98, judgment of 13 September 2005. It should be noted that not all these judgments concern ‘proper’ blasphemy offences. Parliamentary Assembly Recommendation 1805 (2007) on ‘Blasphemy, religious insults and hate speech against persons on grounds of their religion’, adopted on 29 June 2007 (27th Sitting), para. 4. Ibid., para. 10. Ibid., para. 17.2.4. Parliamentary Assembly Resolution 1510 (2006) on ‘Freedom of expression and respect for religious beliefs’, adopted during Assembly debate on 28 June 2006 (19th Sitting). Ibid., para. 6.

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andrás koltay & jeroen temperman changing with the Enlightenment, and progressed further towards secularisation. Modern democratic societies tend to be secular and more concerned with individual freedoms.12

Thus the Danish cartoon row and recent free speech rows such as the one resulting from instalments of Charlie Hebdo that mock Muhammad pose a critical question to the Enlightened world: shield religious sensitivities from gratuitous insult or promote an unabridged freedom of speech ideal? While the Strasbourg Court has repeatedly opted for the former, the Parliamentary Assembly has repeatedly passionately pleaded for the latter. The latter body’s views resonates with another Council of Europe organ, the Venice Commission, an advisory body composed of independent constitutional law experts. In its comprehensive report on the issue of Blasphemy, religious insult and incitement to religious hatred,13 it concludes that ‘the offence of blasphemy should be abolished (which is already the case in most European states) and should not be reintroduced’.14 Specifically, the Venice Commission held that it is not ‘necessary or desirable to create an offence of religious insult (that is, insult to religious feelings) simpliciter, without the element of incitement to hatred as an essential component’.15 Realising that this reference to accepted restrictions on free speech under international law is also not without its own complexity, it emphasised that [i]t is true that the boundaries between insult to religious feelings (even blasphemy) and hate speech are easily blurred, so that the dividing line, in an insulting speech, between the expression of ideas and the incitement to hatred is often difficult to identify. This problem, however, should be solved through an appropriate interpretation of the notion of incitement to hatred rather than through the punishment of insult to religious feelings.16

While regional human rights courts have under some circumstances permitted blasphemy laws, international monitoring bodies and independent 12 13

14

15 16

Ibid., para. 7. This report was requested by the Parliamentary Assembly as per its Resolution 1510 (2006), para. 18. Venice Commission Study 406/2006 on blasphemy, religious insults and incitement to religious hatred, adopted at the Commission’s 70th Plenary Session, 16–17 March 2007 at para. 89(c) (this study is included in Venice Commission, Science and Technique of Democracy, No. 47: Blasphemy, Insult and Hatred – Finding Answers in a Democratic Society (Strasbourg: Council of Europe Publishing, 2010)). Ibid., para. 64. Ibid., para. 68.

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7

experts have recently united in condemning such restrictions on freedom of expression. Specifically, the UN Human Rights Committee, overseeing State parties’ compliance with the UN International Covenant on Civil and Political Rights (ICCPR), stipulated in 2011 that ‘[p]rohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant’.17 In the same General Comment the Committee expressed its concern that existing blasphemy or religious insult regulations typically discriminate between religions in that insults to some but not all religions tend to be covered by those laws.18 The UN Special Rapporteur on freedom of religion or belief, moreover, has called national blasphemy laws ‘counter-productive’.19 In a recent report, the Special Rapporteur reiterated this by underscoring that ‘according to his experiences, blasphemy laws typically have intimidating effects on members of religious minorities as well as on critics or dissenters’.20 Therefore, he called on all parties to the ICCPR to repeal blasphemy laws.21 Similarly, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has recently issued a report expressing his concern about ‘anti-blasphemy laws, which are inherently vague and leave the entire concept open to abuse’.22 He added that ‘international human rights law protects individuals and not abstract concepts such as religion, belief systems or institutions. … Moreover, the right to freedom of religion or belief, as enshrined

17

18

19

20

21 22

Human Rights Committee, General Comment 34:  Article 19:  Freedoms of Opinion and Expression (CCPR/C/GC/34, adopted at its 102nd session, Geneva, 11–29 July 2011), para. 48. The Committee makes an exception for those speech acts that amount to incitement in the meaning of Article 20(2) ICCPR. Human Rights Committee, General Comment 34, para. 48:  ‘it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers’. Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir, and the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Doudou Diène, further to Human Rights Council decision 1/107 on incitement to racial and religious hatred and the promotion of tolerance, UN Doc. A/HRC/ 2/3, 20 September 2006, para. 42. Special Rapporteur on Freedom of Religion or Belief, Tackling Manifestations of Collective Religious Hatred (A/HRC/25/58, 26 December 2013), para. 59. Tackling Manifestations of Collective Religious Hatred, para. 70(e). Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Report of the Special Rapporteur to the General Assembly on Hate Speech and Incitement to Hatred (A/67/357, 7 September 2012), para. 53.

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in relevant international legal standards, does not include the right to have a religion or belief that is free from criticism or ridicule.’23 Furthermore, the recently adopted Rabat Plan of Action,24 a worldwide endeavour by leading human rights experts, organised by the UN Office of the United Nations High Commissioner for Human Rights (OHCHR), also indicates that anti-blasphemy legislation does not qualify as acceptable limits on the right to freedom of expression. Specifically, the Rabat Plan states that blasphemy laws are counter-productive, since they may result in the de facto censure of all inter-religious/belief and intra-religious/belief dialogue, debate, and also criticism, most of which could be constructive, healthy and needed. … There are numerous examples of persecution of religious minorities or dissenters, but also of atheists and non-theists, as a result of legislation on religious offences or overzealous application of various laws that use a neutral language.25

Consequently, the Rabat Plan of Action lists among its recommendations that ‘States that have blasphemy laws should repeal these as such laws have a stifling impact on the enjoyment of freedom of religion or belief and healthy dialogue and debate about religion’.26 In sum, as far as the UN treaty bodies and independent experts are concerned, there is no place for blasphemy bans under international law – a position that sharply contrasts with the (older) ECtHR case law. Yet within the UN we could previously discern fragmentation, too, due to the said resolutions that aimed at combating defamation of religion at the international and domestic levels. However, as a result of Western pressure, these resolutions have now been revamped into resolutions Combating intolerance, negative stereotyping, stigmatization, discrimination, incitement to 23 24

25

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A/67/357, para. 53. Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, Conclusions and recommendations emanating from the four regional expert workshops organised by OHCHR, in 2011, and adopted by experts in Rabat, Morocco on 5 October 2012. In four regional workshops – Europe (Vienna, 9 and 10 February 2011); Africa (Nairobi, 6 and 7 April 2011); Asia and the Pacific (Bangkok, 6 and 7 July 2011); and the Americas (Santiago de Chile, 12 and 13 October 2011)  – some fifty experts and more than 200 observers and other stakeholders have reflected on the question of incitement in the meaning of Article 20(2) ICCPR. Rabat Plan of Action, para. 19. Earlier, in para. 17, this document already approvingly quotes the Human Rights Committee’s recent rejection of blasphemy laws as formulated in General Comment No. 34. Rabat Plan of Action, at p. 5.

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violence and violence against persons, based on religion or belief,27 or the 16/ 18 approach, after the initial resolution of that type – an approach that may serve to bridge ‘the West’ and ‘the non-West’ as far as preferred legal and other approaches to ‘extreme speech’ are concerned.

I.4

Of ‘Western’ Legal Doctrine

A final objective of this book, then, is to show that blasphemy and its legal treatment within ‘Western’ legal doctrine is perhaps less monolithic than oftentimes portrayed. While none of the scholars brought together in this volume passionately defends blasphemy laws – in the final analysis, the authors in this volume reject them or at the very least are very concerned about their potential impact – these legal theory contributions do argue that traditional Western legal discourse against these laws still has a lot to answer for. Such critiques, among many other points, pose questions of desirability and/or viability, including basic conceptual queries, regarding the norms that are supposed to replace blasphemy prohibitions, like anti–hate speech standards. Are religious minorities sufficiently protected under the latter standards? And is it in actual legal practice truly possible to distinguish between verbal attacks on a religion and attacks on religious believers/groups? Naturally, the book’s central discussion would not be balanced should there not also be a number of contributors fiercely rejecting any limits on free speech in the interest of ‘respect for religions’. While some authors in this volume present arguments on, for instance, why and how the ECtHR should reverse its blasphemy jurisprudence, others defend unabridged free speech from the original perspective of ‘democratic self-governance’. This book primarily discusses the legal systems of the ‘Western world’, although this concept is far from clearly defined. If the term is actually used to designate the ‘West’, in other words Western European states (the

27

Human Rights Council Resolution 16/18 ‘Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief ’ (UN Doc. A/HRC/RES/16/18, adopted on 24 March 2011). See also the parallel revamped General Assembly Resolutions: General Assembly Resolution 66/167, ‘Combating intolerance, negative stereotyping, stigmatization, discrimination, incitement to violence and violence against persons, based on religion or belief ’ (UN Doc. A/RES/66/167, adopted on 19 December 2011); and General Assembly Resolution 67/178, ‘Combating intolerance, negative stereotyping, stigmatization, discrimination, incitement to violence and violence against persons, based on religion or belief ’ (UN Doc. A/RES/67/178, adopted on 20 December 2012).

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United Kingdom, France, Germany, Austria, the Benelux states, etc.) and probably North America and Australia, then we can indeed find several similar tendencies in the way the legal systems of these countries address the issue of blasphemy. However, the exact legal approaches to blasphemy and the related jurisprudence of these countries are far from identical. How the European and American approaches to freedom of speech are different is a cliché,28 and also within Europe the individual countries of Southern Europe, Central Europe and Eastern Europe have quite different legal approaches to dealing with blasphemy. For example, there is no blasphemy ban in the majority of the post-communist countries – with the exception of Poland, as discussed in this book. The primary reason for this is not that these legal systems organically and naturally developed this approach but rather that the inherent anti-religiousness of the communist system eradicated these bans from the Criminal Codes, and later, following the democratic political transitions, these bans were not re-imposed in most of the countries. This was not necessarily the result of a principled decision; rather, it signified the decreasing social importance of religious communities collapsing under the yoke of dictatorship. However, religious communities remained significant enough in certain Southern European countries (like they do in Poland), and hence their legal systems upheld the bans serving to protect them.29 This book also outlines that, although there are identifiable common tendencies, no such thing as a unified European or Western approach exists in terms of the legal interpretation of blasphemy. Though these identifiable trends point towards the direction of removing restrictions, the absolute disappearance of blasphemy bans on the continent will nevertheless apparently be a long process, if it ever takes place at all. At the same time, certain types of blasphemous opinions will remain subject to restriction due to other types of bans (such as the regulation against hate speech or discrimination). As Jeremy Patrick puts it: The drive to push against boundaries, to provoke thoughts which at first seem abhorrent and then become accepted, to express truth in the face of pain, imprisonment, and death, always remains present in some members

28

29

See, for example, Frederick Schauer, ‘The exceptional First Amendment’, in Michael Ignatieff (ed.), American Exceptionalism and Human Rights (Princeton: Princeton University Press, 2005), p. 29. For the distinction between ‘longstanding, stable, and prosperous’ democracies and other democracies in the context of hate speech regulations, see Eric Heinze, Hate Speech and Democratic Citizenship (Oxford: Oxford University Press, 2016).

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of a society, whether that society be democratic or totalitarian. Similarly, the fear of blasphemy – incarnated as the risk of angering God, disrupting society, hurting minorities, or something else – points to the drive for conformity and unity by societies and institutions, be they State, Church, Community, or Family. The need to blaspheme and the need to suppress blasphemy continue to persist, and perhaps the only truly curious aspect is why we ever thought they would fade away to begin with.30

However, it is interesting to see how the appearance of radical Islam in the Western world influenced the age-old debate over upholding or abolishing the ban on blasphemy. When, after the Charlie Hebdo attack Pope Francis stated that ‘if a friend of his insulted his mother, the friend should expect the Pope to punch him’31 he, through this analogy, actually criticised those expressing blasphemous opinions, even though he certainly did not declare that the insult must be retaliated against using legal means or express any sympathy with the terrorists. Although nowadays public discourse usually focuses on the question of the legal perception of blasphemy primarily in relation to Islam, it is clear that one should also take Christianity into account when addressing these issues. A number of European countries are in a situation in which they have to reconcile the occasional appearance of Muslim radicalism with the vastly greater masses of peaceful Muslim citizens and at the same time come to terms with their own Christian heritage with the aim of creating a legal and social set of norms guaranteeing the dominance of individual freedom, including free expression and freedom of religion and other, nonreligious worldviews. This is not an easy task by any means. The legal perception of blasphemy constitutes only a relatively narrow segment of this huge set of problems but one that perfectly showcases the nature of the possible clashes between the secular state and religions, the arguments and counter-arguments underlying state decisions and the centuries-old development of freedom of expression in the Western world. One of the important conclusions of the book is made in terms of the role of the legal system:  while the cases discussed in this book tend to focus on important, identity-defining issues of social morality – and for many the question of protection of religions squarely falls into this category – ethical norms can provide more effective and reassuring solutions 30

31

See also Jeremy Patrick, ‘The Curious Persistence of Blasphemy’ (2011) 23 Florida Journal of International Law 187–220, at 220. Carlo A. Pedrioli, ‘Pope Francis and the limits of freedom of expression’, in Russell L. Weaver, Mark D. Cole and Steven I. Friedland (eds.), Comparative Perspectives on Freedom of Expression (Durham: Carolina Academic Press, 2017).

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than the legal rules that theoretically can be enforced (and which were created by their very nature with the intention of being enforced). Hence, when the law remains silent in connection with blasphemy, it does not necessarily mean the approval or encouragement of insulting or offending others but mostly a recognition that the imposition of legal bans is not the most effective way of enhancing peaceful coexistence or to conduct our public debates and resolve our mutual disagreements.

I.5

Of Structure

This volume is composed as follows: Part I – The case of Charlie Hebdo. The first part sets the scene by engaging with what functioned as the main hook for this book:  Charlie Hebdo. ‘Charlie Hebdo’ is debated in the broad sense, including:  Charlie Hebdo the magazine that functions as a notorious outlet for mockery of religion; the historical judicial proceedings brought against this magazine precisely over its use of free speech; and the Charlie Hebdo incident, that is the tragedy of January 2015 and especially its significance for free speech debates in Europe. Naturally, then, we start our journey in France, the crime scene of the massacre. Guilhem Gil neatly embeds the discussions surrounding the offensive cartoons and other speech acts of this magazine within France’s legal system and within France’s history of notorious blasphemous publications. Gil also presents the legal proceedings that involved Charlie Hebdo. As the courts in these proceedings held, the protected boundaries of free expression were not overstepped by the magazine’s cartoon artists, as those touched upon a debate of public interest and could not be labelled as insulting to an extent that would require restricting free expression. In France, blasphemous opinions themselves are not restricted by legal means, whereas insults which target an individual or a group of individuals because of their religious affiliation can be. Neville Cox, subsequently, engages with the type of cartoons published by Charlie Hebdo and broadens the discussion by posing and addressing the question of how to judge the arguments in favour or against the legitimacy of blasphemy and defamation of religion laws made both before and after the events of January 2015. Cox builds the argument that while Western states may mostly be eliminating the crime of blasphemy, they cannot do so claiming that blasphemy is not inherently wrong just like hate speech is inherently – morally – wrong. While he agrees that in the final analysis there is no place for the offence in Western liberal democracies, the legal argumentation against this crime currently adopted by Western commentators is flawed.

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Part II – The right to blaspheme. The second part of the book focuses on the ‘right to blaspheme’. The controversial nature of blasphemy in 2017 in the West is perfectly illustrated in this seemingly unambiguous section of the book: Mark Hill and Russell Sandberg’s chapter entitled ‘The right to blaspheme’ should not be read as a fierce condemnation of Englishstyle blasphemy offences. In fact, their point is that blasphemy laws and a right to blaspheme are not mutually exclusive. Seeing how very specific the blasphemy offence under (former) common law was, they argue that having the offence in place in actual fact served to carve out the contours of the concomitant right to blaspheme. Thus blasphemy offences and a right to blaspheme are clearly related notions, but it would be an oversimplification, these authors argue, to conclude that they are fully inversely correlated, as though a right to blaspheme exists by virtue of abolishing blasphemy offences. Also, in many places where blasphemy offences have been abolished, the offence has been replaced with largely overlapping religious (group) defamation offences. Typically, rather than a transition from an era of blasphemy laws to a post-blasphemy state, we ought to speak of an era of discriminatory blasphemy laws protecting the state religion transitioning to an era where different religions are protected against punishable verbal attacks. Ian Cram, on the contrary, firmly warns against factions in Europe that fight against what they perceive as militant secularism. Those factions perceive political equality agendas as marginalizing if not persecuting religion, especially Christianity. The decline of blasphemy laws is perceived by these groups as yet another example of secular-political-correctness-gone-mad, and possibly, if given a chance (like Ireland did in 2009), those factions would not hesitate to reintroduce laws forcing respect for religious, especially Christian, feelings. By way of prelude to the comparative part of the book, Cram briefly engages with a number of active blasphemy bans in Europe. Furthermore, Cram develops a strong argument against former Archbishop Williams’s argument for legal protection from insult. Engaging with the views of Machiavelli, Cram then develops a self-governance perspective, concluding that a priori outlawing expression critical of Christianity (or another dominant religion at stake) comes at the great cost of undermining libertyenhancing self-government. Part III – On Western legal discourse against blasphemy laws. The third part brings together a number of contributions that challenge the definitiveness and/or fierceness of Western legal discourse against blasphemy laws. Peter Cumper envisages but at the same time critiques a number of potential reforms to blasphemy laws. Overall, in the West there seems

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to be a discernible move away from anti-blasphemy and towards anti– hate speech/incitement. This move raises the threshold for interfering with free speech and may be applauded from a freedom-of-expression approach; it does, however, raise a number of doctrinal questions.32 In his chapter on possible reforms, Cumper asks the pertinent question whether anti-incitement is a desirable approach and, if so, how, then, to conceptualize ‘hate speech’ or ‘incitement’? This contains the sub-question if it is truly possible to distinguish between verbal attacks on religion and attacks on religious believers/groups (Richard Moon, elsewhere in the book engages with that same question in the context of applicable anti–hate speech laws in force in Canada) and whether being able to make that distinction is ultimately necessary to enforce anti-incitement laws. Another meta-critique on Western legal doctrine in this area comes from Robert Kahn, who illustrates the point that the difference between the West and ‘the rest’ over blasphemy is not just a clash of civilizations; there are also important substantive differences. Closely analysing Pakistan’s blasphemy laws reveals that the latter type of law is in actual fact more draconian than many Western modalities of blasphemy laws. As a matter of public diplomacy, then, it is advisable to redirect the fight against blasphemy laws in those states from outrage at the existence of such laws per se to seeking changes of the law so as to make them comply better with such requirements and safeguards as mens rea, public harm criteria and so on. John Knechtle, like Cumper, aims to define and distinguish the several and sometimes overlapping notions of speech restriction, namely blasphemy, defamation of religion and hate speech. He ultimately advocates for a greater appreciation for cultures, religions and legal systems that ‘see the sacred and communal beyond the individual and seeks to protect those interests’, not in order to re-establish already long gone blasphemy laws in Western states but to better understand differing concepts of freedom and dignity. Completing this section, in his assessment of (the legitimacy of) blasphemy laws, András Koltay makes a number of legal analogies, including with Holocaust denial restrictions and hate speech restrictions. Koltay concludes that blasphemy restrictions are untenable to the extent that they protect churches or religions from insult. If and to the extent that these restrictions protect individuals, there may be some rationale for retaining them; however, ultimately such protection is best

32

See also Jeroen Temperman, Religious Hatred and International Law:  The Prohibition of Incitement to Violence or Discrimination (Cambridge: Cambridge University Press, 2016).

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sought through the ethical promotion of responsible speech rather than through the legal insistence thereof. Part IV – European Court of Human Rights and blasphemy. The next part of the book presents a critical assessment of ECtHR’s jurisprudence in this area. Tom Lewis gives a concise overview of the Court’s case law regarding blasphemy and the criticism of religious leaders. He argues that since 2006 the ECtHR has slowly shifted its position with regard to expression that is insulting to objects of religious veneration. This led to pro–free speech decisions in cases in which religious leaders were criticised in public. The author admits that this shift can be considered as being ‘irreversible’ only once a proper blasphemy case involving such provocative expression is litigated before it and decided in favour of freedom of expression. That future ‘proper’ blasphemy case may be the Pussy Riot case. Jeroen Temperman analyses Pussy Riot’s ‘Punk Prayer’, the performance of which in a Moscow cathedral resulted in harsh penalties for members of this protest group. He argues that the content and performance of the song can be considered both religious – feminist religious speech contributions on matters of religious orthodoxy – and political – anti-establishment speech, with the establishment consisting of the Putin regime, the Russian Orthodox Church and especially the liaison between the latter – speech. Accordingly, Pussy Riot’s activist art falls squarely within the category of protected speech under international free speech standards. Russia’s conviction of the members of the punk group over allegations of ‘hooliganism motivated by religious hatred’ shows, according to Temperman, how religious speech offences can be abused by states to stifle speech that is deemed undesirable by secular and/or ecclesiastical authorities. Part V – Active blasphemy/religious defamation laws. This part of the book deals with – more or less – ‘active’ blasphemy and defamation of religion laws, covering Finland, Germany, Greece, Italy and Poland. Interestingly, as explained by Tuomas Äystö, while in the past typically artists and anti-church leftists were the main ‘perpetrators’ under the Finnish criminal legislation against ‘breaches of the sanctity of religion’ – which is occasionally enforced today – currently right-wing politicians, bloggers or other public figures appear to be most liable under Finnish blasphemy prohibitions. In his contribution on the German defamationof-religion offence, Matthias Cornils criticizes laws in this jurisdiction that ban certain content per se since such content is alleged, by the legislator, to amount to direct harm (i.e. a form of ‘viewpoint discrimination’ in the US legal system). Blasphemy laws, according to Cornils, are also

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problematic inasmuch as they are overly preoccupied with the response of the target group. In this way, even the most heinous form of defamation could go unpunished if directed at a relaxed, self-confident audience, whereas even the most benign satirical remark or the most delicately put critique could be banned as a result of disruptions of the peace by hyper-sensitive targets. Indeed, many contemporary blasphemy laws are enforced irrespective of questions about the precise risks the target group is under. In Italy, we learn from the chapter by Cristiana Cianitto, the blasphemy ban was abolished; nevertheless, Italy’s inclusion in this part of the book is still merited. The law still prohibits different forms of defamation of religion, norms that are, albeit infrequently, applied. Illustrating the threshold of these defamation standards, she argues that the cartoons of Charlie Hebdo would never had led to prosecutions under Italian law. By contrast, Effie Fokas shows that Greece’s blasphemy law is arguably one of the most active ones in Europe, regularly leading to prosecutions and penalties, including in recent times. Delving into a number of these recent cases, Fokas also points to increasing domestic and international momentum to abolish the offence. Specifically, Greek artists and activists are mobilising to raise concerns with the domestic authorities and international human rights organisations about the chilling effect of these laws. Finally, this section contains a chapter by Joanna Kulesza and Jan Kulesza on Poland, analysing the ambiguity of the text of this blasphemy regulation and the wide powers of discretion the law grants to prosecutors and Polish judges. As the authors argue, the numerous criminal proceedings initiated by Polish authorities create some kind of chilling effect as regards offensive opinions related to religious matters. Part VI – Dormant blasphemy laws. In contrast, the next section focuses on what we call ‘dormant’ blasphemy laws, that is criminal law provisions against blasphemy that are, though formally still in place, not enforced in recent times. The objective is to unveil and understand the legal-political discourse successfully maintaining this salient status quo. Some six weeks after the Charlie Hebdo shootings the Danish government officially announced its intent not to pursue the long-debated abolition of the blasphemy offence. This Danish exceptionalism, Lars Grassmé Binderup and Eva Maria Lassen describe, has complex roots in a combination of fear of violent reactions to religious insult and genuine efforts to protect minority religions, especially Danish Muslims. The decision to retain the criminal blasphemy law also cannot be seen separately from the fact that Denmark was host to the infamous Muhammad cartoons controversy (2005–2006). Yet as a direct result of this policy, Denmark is out of line with those

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Nordic states that have recently abolished similar laws and with international developments too. In the latter regard, of particular salience is the historical visit and actual reprimands by the UN Special Rapporteur on freedom of religion or belief who expressed concerns that Danish state practice might be cited by repressive regimes with a view towards legitimizing their own draconian blasphemy laws. Exactly how dormant the Danish blasphemy law is can be debated: while the latest successful prosecution dates back considerably, in a peculiar recent twist, Binderup and Lassen explain, the law has found a second life. The blasphemy offence is, peculiarly, mainstreamed with the Danish Alien Act, potentially affecting the entry into Denmark by foreign blasphemers. Cornils’s point, highlighted earlier, that blasphemy laws place too much emphasis on the potential offence taken by the target group of blasphemous speech acts is perfectly illustrated by reference to Irish blasphemy law, which, since its recent updates, uses the words ‘outrage among a substantial number of the adherents of that religion’ as part of its legal definition (Article 36 of the Irish Defamation Act 2009). While Ireland’s 2009 updates and amendments to its blasphemy law are anachronistic when considered in the light of Western trends, Tarlach McGonagle explains how this blasphemy law is, uniquely, constitutionally entrenched. While most lights are on green to launch an abolition process – numerous domestic law commissions and experts have advised the law’s abolition, and the same goes for international human rights monitoring bodies – Ireland’s criminal blasphemy provision can only be tackled once the Constitution is amended, for instance through a referendum on the very issue of abolishing the blasphemy law. McGonagle warns that as long as this does not happen, this blasphemy provision might very well have a chilling effect on free speech despite its infrequent application and in any event may lead to finger pointing by states that are criticized by Western states over their blasphemy prohibitions. Turning to Canada, Moon describes that an English-style ‘blasphemous libel’ offence is still on the Canadian statute books. However, any attempt at enforcing it would probably be futile in the light of contemporary constitutional free speech guarantees. Canada, like England and a number of other European states, instead has moved towards embracing anti–hate speech laws at both the national and at the provincial levels. Next Moon deconstructs the Canadian counterpart to Western right-wing discourse known as ‘Muslim Tide’ literature. The Canadian proponent (Steyn), like a number of European right-wing politicians and commentators, predicts and rages against the Islamization of the West. Engaging with that particular discourse, Moon argues that the

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distinction – typically made in Western extreme-speech jurisprudence and scholarship – between verbal attacks on religious groups/individuals and attacks on religions (or their doctrines) per se is oftentimes problematic. What Muslim Tide proponents in fact do is attribute what is an extreme or literal interpretation of religious doctrine by a fringe group to the overall religious group, ignoring internal discussion, disagreement or nuance. This concern does not, in Moon’s final analysis, mean that we ought to seek proscription of (intemperate) criticism of religion. Not only is such an offence not neutrally enforceable by a secular state, any such enforcement would come at great costs – for such an attempt would stifle important criticism of public aspects of religion. Also in what are now states of the United States of America, as Russell Weaver explains, under British colonial rule blasphemy bans were common ground. Some relics of those offences can in actual fact still be found in the criminal codes of some US states. However, any attempt at enforcing such offences is bound to run counter to the US Constitution, if not under the non-establishment clause, then under the free speech clause. Strictly theoretically, a blasphemy restriction could be upheld if the speech act happens to amount to ‘fighting words’ too. That said, even fighting-words restrictions are oftentimes struck down in court nowadays. In any event, blasphemy restrictions tend to amount to both ‘content-based’ and ‘viewpoint-based’ restrictions on speech and are hence untenable. In Australia, Helen Pringle describes, a set of common law and statutory law offences are applicable, as she illustrates by delving into the relevant case law. This case law, however, dates back so long that many Australians might not even realize their free speech is – formally – subject to blasphemy restrictions. Making a case for their full annulment, she does engage with the Australian legal notion that was gaining some traction: ‘religious vilification’. The initial case law gives reason for concern inasmuch as this offence might be seized upon to protect religious orthodoxies (i.e. blasphemy restriction through the back door). Yet, Pringle argues, should this offence become interpreted in ways that link it inextricably to anti-discrimination laws, also meaning that speech acts could only amount to vilification in the event the harm of discrimination is proven, there may be some genuine use for these laws. Otherwise, they should be subjected to the same concerns and criticisms that are lashed at blasphemy laws. Part VII – Recently abrogated blasphemy laws. The next part of the book is more historical in nature and focuses on a number of Western countries that in recent times have abolished their blasphemy laws. As indicated, developments under international law, occasionally amounting to

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express calls upon states to repeal their blasphemy laws, tend to be relevant here. Also apart from such specific urgings, developments under international law aimed at the conceptualization of high(er)-threshold speech offences like hate speech or incitement flowing from international human rights treaties – notably the ICCPR and the International Convention on the Elimination of All Forms of Racial Discrimination – seem to have inspired states to do away with low-threshold speech offences like blasphemy. Helge Årsheim describes in his chapter on Norway that this state explicitly engaged with its international anti–hate speech obligations to raise the bar of domestic speech offences, a development that strongly contributed to the end of anti-blasphemy legislation in that country. Interestingly, the Charlie Hebdo massacre functioned as a catalyst in getting the offence annulled. In the Netherlands, as outlined by Esther Janssen, after the judiciary had already rendered the offence virtually impracticable, the offence did manage to remain – albeit in a dormant capacity – on the statute books for many years due to confessional political parties’ interest in its symbolic meaning. In place for more than eighty years, in 2014 the offence was deemed by a majority of parliament to be contrary to the present-day ramifications of such constitutional and international standards as freedom of expression and religion, equality and state neutrality. Erica Howard, in turn, describes how the English blasphemy offence became abolished and replaced with incitement-to-religious-hatred offences. While she concludes that the current speech offences accord better with international human rights standards, it remains striking that the ECtHR never expressly reproached England over its blasphemy laws. Ivan Hare denies that UK blasphemy laws ever had any sound legal justification – this in contrast with Hill and Sandberg’s claim – and firmly warns against the re-introduction of an English blasphemy offence even if that offence would be a more egalitarian one (i.e. no longer discriminate between different faiths in terms of protection). Part VIII – The future of blasphemy laws? The final section of the book reflects on the future of blasphemy (laws) and brings together a few – admittedly very selective – recommendations. After years of alienating fights at the United Nations over the controversial notion of ‘defamation of religions’, ‘East’ and ‘West’ ultimately united by way of embracing a new paradigm in the form of the ‘16/18 process’ (2011–today), named after the Human Rights Council’s resolution on ‘combating intolerance, negative stereotyping and stigmatisation of, and discrimination, incitement to violence, and violence against persons based on religion

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or belief ’. In their UN-oriented account, Marc Limon, Nazila Ghanea and Hilary Power describe how initial momentum swiftly gave way to renewed concern: due to widely diverging views amongst UN member states on the precise scope, meaning, interpretation and application of 16/18, its actual implementation today leaves a lot to be desired. Also, incidents like the Charlie Hebdo attacks tend to sharpen the differences over the desired relationship between freedom of expression and religious discrimination, incitement and intolerance rather than unite states on these matters. That all said, these three authors show that we ought not to shelve 16/18. They describe in detail what progress is made – for example, in the form of best state practices in the areas of promotion of counter-speech by political or religious leaders in the face if intolerant (speech) acts, inter-religious dialogue and combating incitement – and how compliance with the spirit of 16/18 can be strengthened. Turning from the global to the very local, the chapter by Andrew Hambler demonstrates that harassment laws can in theory be a useful tool for protecting certain religious sensitivities, especially in the context of a workplace, if the harassed person can be considered a member of the ‘captive audience’. However, according to the author, employment judges in the UK may provide less protection under this doctrine than might be anticipated. The main reason for this is that the religious individual is expected to display a very high level of tolerance, lest their claims be rendered unreasonable. Also according to the judiciary (Hambler focuses mostly on the UK), profanities invoking Christ or God nowadays may be considered as being in common usage; thus availing of these profanities is emptied of any religious significance and therefore harassment laws cannot be applied to them. As Hambler argues, this reasoning demonstrates a fundamental lack of empathy with the situation of the religious actor. Finally, the chapter by Brett Scharffs perfectly resonates with the momentum discernible within international legal benchmarks that insist that rather than being overly preoccupied with legal (notably criminal law) approaches to speech offences, if we wish to tackle the root causes of intolerance, we should invest in so-called positive measures. Indeed, more useful perhaps than Western legal discourse’s obsession about where to draw the line between protected and prohibited speech about religion is the consideration that any anti–extreme speech toolbox ought to include non-judicial approaches, including policies to promote counter-speech that may de-escalate contentious situations caused by offensive and

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Introduction

21

controversial speech.33 Scharffs appeals directly to all the key players of the offensive-speech relationship: the speaker, the target group and the different audiences, including the speaker affinity group and the victim affinity group. Through all options open to them in terms of actions or inactions, these players can help escalate or de-escalate a hostile or volatile situation caused by an offensive or hateful speech act. Thus rather than paying lip service to the mantra of ‘positive measures’, Scharffs breaks down concretely what we all, in our different capacities and roles, can do in the face of volatile situations caused by controversial speech.

33

In addition to positive measures highlighted in the previously mentioned Resolution 16/18, see, e.g., Rabat Plan of Action, paras. 23–29; CERD, General Recommendation 35: Combating Racist Hate Speech (U.N. Doc. CERD/C/GC/35, 83rd session, 12–30 August 2013), paras. 30–44 listing a comprehensive set of positive measures; Special Rapporteur on Freedom of Religion or Belief, Tackling Manifestations of Collective Religious Hatred, particularly at paras. 31–53; Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, A/67/357, paras. 56–74; ARTICLE 19, Prohibiting Incitement to Discrimination, Hostility or Violence: Policy Brief (2012), at 41–45. For a fascinating scholarly take on the promotion of counter-speech in the face of blasphemous acts, see Austin Dacey, The Future of Blasphemy: Speaking of the Sacred in an Age of Human Rights (London: Continuum, 2012).

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PA RT   I The Case of Charlie Hebdo

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1 Blasphemy in French Law From the Chevalier de la Barre to Charlie Hebdo

Guilhem   Gil

1.1

Introduction

In a speech delivered to the French National Assembly a few days after the Charlie Hebdo attacks in January 2015, Prime Minister Manuel Valls declared that blasphemy was not and never will be part of French law. It is true that the blasphemy offence disappeared in France when the 1789 Déclaration des droits de l’homme proclaimed, in its Article 10, that ‘no one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order’. However, the relationships between freedom of speech and religion were still legally regulated for nearly a century, and it was only in 1881 that offences against religious morality were abolished (Section 1.2). The truth is that the secularity of the State never deleted the religious issue from the legal landscape and maybe even reinforced it, because secularity implies freedom of religion and therefore pluralism,1 a fact which is amply demonstrated by modern case law (Section 1.3), where religious matters are still vivid in free speech litigation.2

1.2

Historical Developments

The history of blasphemy in French law may be divided into three stages:  pre-Revolutionary law, where blasphemy was harshly persecuted and punished (Section 1.2.1); nineteenth-century law, where the legislator was more preoccupied with protecting religious morality 1 2

Valérie Lasserre, ‘Droit et religion’ (2012) Recueil Dalloz 1072. See Jean-Claude Magendie, ‘Charlie Hebdo, la laïcité et la protection des croyances’ (2015) 3 La Semaine Juridique – édition générale 74–75.

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than with protecting religion itself (Section 1.2.2); and finally the Third Republic’s statutes, which protected mainly freedom to worship (Section 1.2.3).

1.2.1 Pre-Revolutionary Law According to canon law as it was understood by the legal scholars of the Ancien Régime, blasphemy could be defined as an enormous crime committed against the divinity through the use of offensive speech or written words hurting his majesty, his goodness or his justice, assigning to God what could not be his or taking away from him what was rightly his.3 There were three kinds of blasphemy. The first one immediately and directly attacked God by stripping him of his own and essential features or by giving him unbecoming features. Such was the case when it was said that God was not almighty or was unfair. The second kind of blasphemy consisted in indirect attacks against God when using his name in vain or his majesty, his death, his passion or by invoking the Sacraments. The third kind of blasphemy was made when uttering offensive words against the Virgin Mary or the Saints.4 The origins of the criminal prosecution of blasphemy in royal law can be traced back to a statute made by King Louis IX in 1254. This statute, enacted when the king came back from the Crusades, provided that blasphemers were to be marked with a hot iron on their forehead and, if they committed the offence again, their lips or their tongue should be cut out. This solution was further refined by a decree of Philippe de Valois enacted on 22 February 1347. It stated that those who speak ill of God, of the Virgin or who used nasty swearwords (‘villains jurement’), shall be pilloried, on the first offence, from the hour of Prime to the hour of None; and anyone shall be allowed to throw them one or several trashes, without any stone or any other thing that may hurt them. They shall also fast, with only bread and water, for a month. On the second offence, they shall be pilloried and their upper lip shall be split by a hot iron. On the third offence, their lower lip shall be split by a hot iron. On the fourth offence, both their lips will be cut out. On the fifth offence, their tongue shall be cut out.

3

4

Pierre-François Muyart de Vouglans, Institutes au droit criminel (Paris:  Imprimerie Le Breton Editeur, 1757), p. 436. Daniel Jousse, Traité de la justice criminelle de France (Paris:  Debure Père Editeur, 1771), p. 160.

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A century later, King Charles VII renewed the punishments by enacting, on 14 October 1460, a new statute stating that those who express offensive or blasphemous words against God or his glorious Mother, or who use their names in swearwords, shall be punished the first time by a prison term of one month, living only on bread and water, and shall pay a fine of twenty sols. On the second offence, they shall be pilloried and their upper lip shall be split with a hot iron. On the third offence, they shall be pilloried and their lower lip shall be split with a hot iron. On the fourth offence, their tongue shall be cut out.

This statute also provided that those who forsake God, the Virgin or the Saints, shall be punished, on the first offence, by a fine proportionate to their wealth. On the second offence, the fine shall be doubled. On the third offence, they shall be pilloried. On the fourth offence, their tongue shall be pierced with a hot iron. On the fifth offence, they shall be punished as blasphemers.

Finally, this law also dealt with those who had made unlawful swearwords by swearing by the Death, the Blood, the Belly, the Head or the Wounds of Christ. These felons were to be punished by a fine of 12 deniers on the first offence. On the second offence, the fine shall be doubled. On the third offence, the fine shall be multiplied by four. On the fourth offence, the fine shall be multiplied by eight. On the fifth offence, they shall be sent to prison with only bread and water for a period of time set by the court.

This last provision, relying mainly on fines, was the basis of the decree made by King Louis XII on 9 March 1510. It provided that those who committed blasphemy against the name of God or who said nasty swearwords against God, the Holy Virgin or the Saints shall be punished, on the first offence, by a discretionary fine. On the second, third and fourth offences, the fine shall be multiplied by two, three, and four. On the fifth offence, they shall pay the fine and be placed in the stocks. On the sixth offence, their upper lip shall be split by a hot iron and they shall be pilloried. On the seventh offence, they shall be pilloried and their lower lip shall be split. On the eighth offence, their tongue shall be cut out. In a statement made on 31 March 1544, the Parliament of Paris claimed that the provisions of Louis XII’s decree were to be construed as applying only to common and ordinary blasphemies. They did not include what the Parliament called the ‘great and horrendous blasphemies containing an implicit heresy’. These most serious blasphemies required ‘right from

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the first offence, a very harsh punishment’. Therefore, even if, as a rule, the repression of blasphemy still was within the province of seigniorial courts, the royal courts had jurisdiction when the matter at hand was related to a ‘horrendous blasphemy’ because it was a crime of heresy, which could be brought only before the royal bailiffs and seneschals. As it was underlined,5 the criminal repression of blasphemy by the royal courts was a way for the kings to demonstrate their powers as sovereigns and to reduce the jurisdiction of the church courts. Publicly uttered horrendous blasphemies were in law and in fact treated as crimes of lèse-majesté (offence against the dignity of the sovereign or state) because of the maxim cuius regio, eius religio. Words which attacked God attacked simultaneously the king; hence, such a religious offence amounted to a breach of public order. Indeed, such words might produce serious disturbances to the king’s peace, and royal law had to intervene. This policy was summed up by Merlin, who wrote that what society must prosecute is the scandal which is caused by a serious ungodliness. The offence against God must not be punished in itself but only as the root of the scandal.6 The same logic was applied in Louis XIV’s Declaration made on 7 September 1651 and amended on 30 July 1666. It punished blasphemy by a fine, the amount of which was proportionate to two factors: the wealth of the defendant and the enormity of the blasphemy. The Declaration specified that two-thirds of the amount were to be given to the poor and the remaining third was to be given to the informer. In the event of renewed breaches, the fine grew each time, and corporal punishments appeared on the sixth offence. The royal Declaration clarified two issues. First, it stated that all those who had heard the blasphemy were legally compelled to report it to the courts. If they did not, they were to be punished by a fine of 60 sols. Second, it indicated that the punishments it contained were not to be applied to ‘horrendous blasphemies’ which deserved greater punishments, which were to be discretionarily determined by the courts. Therefore, when the case at hand involved an ‘execrable blasphemy’, the defendant could be whipped, banished, sent to the galleys or put to death. One legal scholar of the Ancien Régime records at least twenty-five court rulings sentencing blasphemers to death,7 mainly burned at the stake, or

5

6 7

Brigitte Basdevant-Gaudemet, ‘Histoire juridique du blasphème:  péché, délit, liberté d’expression’ (2015) 2 Revue du Droit Public et de la Science Politique 309. Ibid. Jousse, Traité de la justice criminelle de France, p. 166.

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sent to the gallows, the body of the blasphemer then being burned with all records of the trial with him so as to erase forever the unlawful words. Undeniably, the most famous example of the criminal repression of blasphemy during the Ancien Régime is the case of the Chevalier de la Barre. The nineteen-years-old nobleman was convicted of blasphemy on 1 July 1766 and executed after being heavily tortured. He had been charged with refusing to remove his hat while a religious procession was passing by and of singing bawdy songs with some of his friends. His case quickly became the very symbol not only of religious intolerance but also of the infamous shortcomings of the judicial system of the Ancien Régime, denounced by the most prominent figures of the time, and among them Voltaire, as ‘judicial murder’ (assassin juridiques).8 The charges had been brought, out of spite and revenge, by a suitor who had been rejected by the aunt of the defendant; the witnesses had been bought or pressured; the judges were incompetent.9 Concerning ordinary or simple blasphemies, which were essentially swearwords, the courts were far more lenient and usually applied the principles identified by legal scholars to alleviate the punishment.10 The general rule was that when the blasphemy was not dreadful and had been expressed without premeditation or malicious intent, the conviction was supposed to be alleviated. For instance, even if anger was not in itself a cause of justification, it could lead to a lesser punishment if it was the product of a just and legitimate cause. The same solution was adopted when drunkenness had led the defendant to say the unlawful words. But on the other hand, neither rudeness nor rusticity could be considered as legal justifications unless there were some special circumstances which ought to be taken into account by the judge. This factual analysis also had to be applied when the defendant raised a defence based on local customs. Even if local standards were not by themselves a cause of justification, the court, when sentencing, had to consider them if the blasphemy had very little effect. In any case, if the defendant showed true remorse and sincerely repented, he was to receive only a very light punishment.

8

9

10

Pierre Lepape, Voltaire le conquérant:  naissance des intellectuels au siècle des Lumières (Paris, Le Seuil, 1987), p. 113. Voltaire, Relation de la mort du chevalier de la Barre, par M. Cass˟˟˟ à M. le marquis de Beccaria (Amsterdam, unknown publisher, 1768), p. 15. Jousse, Traité de la justice criminelle de France, p. 167.

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1.2.2

From the Revolution to the Third Republic

When adopting the Civil Constitution of the Clergy in July 1790, the revolutionaries transformed the Catholic Church into a public service. Their aim was not to suppress religion but to submit it to the strict supervision of the State. They implemented the views of Portalis, who said that religious matters have too great an influence on public policy for the State to remain indifferent as to their administration. When a religion is admitted, one must admit, as a consequence, the principles and the rules on which it is based. So what shall be the attitude of the political power in religious matters? To know and to determine the conditions and the rules which allow the State to safely authorize the public practice of religious worship.11

These revolutionary principles were later on enshrined in the 1801 (26 Messidor Year IX)12 concordat, whereby the State received the power to participate in the appointment of church dignitaries, to control the modification of the religious districts, to determine the authorized locations for the performance of religious ceremonies, to supervise the training of the candidates to priesthood in seminaries, to approve the content of all religious decisions made by foreign synods and even to command from the religious authorities that some prayers should be said for the prosperity of the State (Domine salvam fac Republicam). Since religion was closely associated to the State, several statutes put in the hands of the State the ability to prosecute offences against religion. Even if the Criminal Code enacted on 25 September1791 did not include any provision punishing blasphemy, it asserted freedom of religion. In this perspective, all outrageous speeches which were hurting the religious freedom of other citizens deserved to be punished not so much to avenge God but to protect individual freedoms. So, it has been observed,13 the concept of social scandal caused by an offence against religion, which had justified intervention through secular law before the Revolution, maintained all its appropriateness. The Act enacted on 22 July 1791, which dealt with minor offences, did not make any reference to blasphemy but punished those who had offended the items of any religious denomination, either in a 11

12

13

Jean Etienne Marie Portalis, Discours, rapports et travaux inédits sur le concordat de 1801 (Paris, Joubert Editeur, 1845), p. 235. The Republican calendar replaced the Gregorian calendar between 1792 (Year I) and 1806 (Year XIV), and the months of the year were named after natural elements. Basdevant-Gaudemet, ‘Histoire juridique du blasphème’, p. 309.

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public place or in premises dedicated to religious worshipping, who had offended the ministers of religion or who had publicly disturbed religious ceremonies of any religious denomination. They were later confirmed by the decree of Ventôse Year III (of 21 February 1795) establishing the separation of the Church and State, which provided in its Section 10 that ‘whoever violently disturbed the ceremonies of any religious denomination or offended the items of a religious denomination shall be punished in accordance with the provisions of the Act of July 22nd 1791’. This provision was later on inserted in the 1810 Criminal Code in sections 260 to 264 pertaining to the constraints on the free exercise of the right to worship. Among these provisions, two were prominent. Section 261 punished by a six-day to three-month prison term and by a fine of 16 to 300 francs those who had hindered, delayed or interrupted the practice of a religious denomination by causing disturbances or disorders in the premises dedicated to the practice of this denomination. This offence could be applied to any intentional disturbance of any religious ceremony. Indeed, it was held that the implementation of this provision was not restricted to legally admitted religious denominations only but could also be applied to all denominations which had been authorized by the State, expressly or impliedly. The only major factor was that the actions of the defendant breached the gravity and decency becoming the performance of the ceremony. This view was applied by a Court of Appeal, which held that the act of obscenely yelling during the Vespers mass satisfied the legal definition of the offence since the ceremony, even if not interrupted by the defendant’s behaviour, had lost its decency, which had resurfaced only once the defendant had left the premises.14 Also convicted, under section 261 of the Criminal code, was an individual who had poured flour on the people entering a church, compelling them to shake their garments inside the building and therefore disrupting the contemplation of the faithful.15 The main technical question submitted to the courts was to determine if the offence was punishable only if, as the text implied, committed inside the religious premises or if an outside disturbance could also be prosecuted. To determine the scope of the offence, the courts used the provisions of the Act of 20 April 1825 on sacrilege. Even if this Act had a 14

15

Toulouse Court of Appeal, 10 November 1868, (1869) 2 Recueil Sirey 4; (1869) 2 Recueil Dalloz 77. Douai Court of Appeal, 24 February 1869, (1869) 2 Recueil Sirey 164; (1869) 2 Recueil Dalloz 62.

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very short life span, since it was abolished by the Act of 11 October 1830, it provided that it was a criminal offence to delay, hinder or interrupt any ceremony of the State’s religion, even if the source of the disturbance came from outside the church. Applying this provision, a court convicted a minstrel who, during a mass, played the violin and beat the drums outside a church and refused to comply with the priest’s command to stop playing. This solution was extended to section 261 of the criminal code by the courts, which considered that the legal punishments had to be equally applied to all people who willingly disturbed a religious ceremony, whether they were inside or outside the church building. The same reasoning was applied to resolve the question of whether the location of the ceremony was a material element in the implementation of the provision. The answer was a negative one because the courts considered that the conviction was justified where an individual had wilfully driven his horse-carriage through a religious procession on a public street.16 Having set aside all considerations pertaining to the location of the offence, the courts rather focused on the nature of the ceremony. They held, for instance, that the time taken by the priest to prepare the collective prayer was not part of the religious ceremony, since such a preparation was not required by church canons. So shouting ‘Long lives the Republic’ in a church during this preparatory stage did not amount to committing the infringement, especially when the priest was not in the main part of the church but in the vestry.17 Conversely, confession time was to be considered an integral part of the office of priests, and interrupting the hearing of a confession could be legally seen as equal to interrupting a ceremony.18 The second main provision protecting religion in the Criminal Code was section 262, which stated that whoever, by words or gestures, offended the items of a cult in premises used or meant to be used for the practice of a religious denomination shall be punished by a fine of 16 to 200 francs and imprisonment of fifteen days to six months. It was held that this text could be applied to all religious denominations, legally established or only authorized.19 The scope of the provision raised some concerns 16 17

18

19

Paris Court of Appeal, 28 August 1846, (1847) 4 Recueil Dalloz 149. Montpellier Court of Appeal, 19 May 1851, (1851) 2 Recueil Sirey 350; (1852) 2 Recueil Dalloz 189. Court of Cassation, 9 October 1824, in Edouard Fuzier-Herman, Répertoire général alphabétique du droit français (Paris: Larose et Forcel Editeurs, 1886–1924), p. 513. Angers Court of Appeal, 27 August 1867, (1867) 2 Recueil Sirey 342; (1867) 2 Recueil Dalloz 140.

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among the legislators. Cambacérès argued that the wording of the text was too obscure and wanting.20 He underlined that the provision literally punished only the acts carried out in premises dedicated to religious purposes. However, in many instances, religious ceremonies are organized in public places, like Catholic processions conducted on public roads. Therefore, Cambacérès claimed that the law as it was formulated would be unable to punish a man who would take away the viaticum being brought to a sick person. Admitting that the wording of the law might have been ambiguous, Treilhard conceded that the provision had to be construed so as to give it the widest scope. Therefore, wherever a religious ceremony is legally performed, this place, if only temporarily, becomes the premises the law referred to. For instance, a cemetery is to be considered as being dedicated to the performance of a cult when it is used by a minister during a religious burial. But the moment the grieving party leaves the cemetery, it turns back to its original nature of a common public place. So section 262 could not be used to prosecute a defendant who had, in the absence of any religious burial, struck the headstones with a stick, yelled offensive imprecations to the souls of those buried there and rolled on the tombstones.21 The question of the location being resolved, the courts tried to implement the provision on the basis of its two main constitutive elements: the offensive intent of the defendant as displayed by his acts and the disturbance they caused. A  Court of Appeal held, for instance, that the conviction was legally ordered in a case where the defendants had, during a Christmas mass, drunk a bottle of wine and loudly hit the bottle with their glasses.22 The same was held concerning a defendant who had, in a spirit of contempt and insult, blown the smoke of his cigar towards the religious items displayed in a procession when they came close to him.23 But conversely, a defendant was acquitted who had kept his hat on his head while a religious procession passed by him, even if it was proven that such a behaviour was characterized by an attitude of scandal and challenge, since his acts had not compromised the ceremony.24 Section 262 of 20 21 22

23

24

Fuzier-Herman, ‘Répertoire général alphabétique du droit français’, p. 471. Court of Cassation, 22 August 1839, (1839) 1 Recueil Sirey 928. Orléans Court of Appeal, 26 February 1855, (1855) 2 Recueil Sirey 136; (1855) 5 Recueil Dalloz 135. Nîmes Court of Appeal, 18 January 1855, (1855) 2 Recueil Sirey 133; (1855) 2 Recueil Dalloz 103. Nîmes Court of Appeal, 18 January 1855, (1855) 2 Recueil Sirey 133; (1855) 2 Recueil Dalloz 103.

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the criminal code was also applied in a most peculiar case in which the defendant had tried to steal religious items (paintings and Communion wafers) with the intent to use them in juggling tricks aimed at creating the illusion of a miracle. The court considered that these acts displayed a fraudulent intent and punishable behaviour.25 Even if the defendant argued that he had acted with the objective to produce a glorious result for the cult and committed what he called a pious fraud, the judges were not fooled and considered that the defendant mainly tried to impersonate a saint in an attempted scam. The last notable provision was the one protecting the ministers of religion. Section 262 of the 1810 Criminal Code indeed also punished all offences targeting ministers of religion. This provision was, for instance, implemented by the courts in a case in which the defendants, during a religious burial, tried to snatch the body of the deceased and shouted insults to the priest.26 This statutory protection given to ministers of religion sheltered them from acts of violence, offensive gestures or speeches. However, the law was silent on offences made by way of written statements attacking religion. One explanation may lie in the fact that even if the freedom to publish was asserted in 1789 and repeated in 1793, it was not yet a major concern.27 The only provision which could be relevant was section 287 of the 1810 Criminal Code punishing all publications offending morality, but it did not explicitly make religion a component of this notion. This flaw was remedied under the Restoration by the Acts of 17 and 26 May 1819, which are usually described as liberal statutes since they abolished censorship and set jury trial as the standard mode of trial for all offences related to speech offences. However, it has been noted, the legislator did not fully comply with its own agenda consisting of protecting the free press as it was claimed in the explanatory statement of the bill.28 These acts indeed created some specific press offences which were deemed to be thought crimes, such as the offences against the Constitutional Charter of 1814 or the offence of outrage to public and religious morality. Crafting these offences was deemed necessary by some legal scholars who asserted

25

26 27 28

Nîmes Court of Appeal, 7 November 1851, S. (1852) 2 Recueil Sirey 39; (1854) 2 Recueil Dalloz 27. Fuzier-Herman, ‘Répertoire général alphabétique du droit français’, p. 515. Basdevant-Gaudemet, ‘Histoire juridique du blaspheme’, p. 309. Nadine Mallet-Poujol, ‘1789–1905, Du blasphème aux droits et devoirs des ministres du culte’ (2015) 2 Legicom 9.

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that the observance of religion was so useful to the State that the right to engage in free debates about religious matters was to be restricted when it may lead to abusive behaviour or when it degenerates into a license to mock or offend the beliefs that the State admitted and had to protect.29 Therefore, section 8 of the Act of 17 May 1819 provided that ‘any offence to public and religious morality, or to accepted standards of behaviour, by using one of the means referred to in section 1 of the Act, shall be punished by a prison term of one month to one year and by a fine of 16 to 500 francs’.30 The means which section 1 of the Act referred to were extremely varied since this text mentioned speeches, shouts, threats made in public places, all kinds of printed materials such as leaflets, drawings, engravings, paintings sold or distributed in public places, advertising billboards or posters visible to the public. Crafting section 8 of the Act created a lot of controversy in Parliament. Originally, the act referred only to public morality, and the adjective ‘religious’ was added by some members of Parliament against the opinion of the government, which claimed that it was superfluous since religion was necessarily included in public morality. However, since such a redundant term was deemed to be innocuous, it was accepted by the Justice Department. The implementation of the Act proved how wrong the government was, since, far from being innocuous, the notion of religious morality proved to be a ‘nebulous’ notion the courts had a hard time applying.31 The case of the Pietists embodied these judicial difficulties. The members of this cult professed in their schools that it was useless to go to church, to deal with priests and to submit oneself to such sacraments as baptism. The members of the cult prosecuted under the provision of section 8 of the Act were condemned by the criminal court of Strasbourg, but the Colmar Court of Appeal reversed the verdict and stated that freedom of religious practice prevented the court from considering that any special

29

30

31

On these Acts, see Gustave Rousset, Code général des lois sur la presse (Paris:  Librairie générale de jurisprudence, 1869), p.  164; and Joseph Pierre Chassan, Traité des délits et contraventions de la parole, de l’écriture et de la presse (Paris: Videcoq Père et Fils Editeurs, 1837), p. 270. Article 8 of the Act became famous because it was used against some of the most prominent writers of the nineteenth century, such as Gustave Flaubert, Charles Baudelaire and Eugène Sue. The latter was condemned by the Paris Imperial Court of Appeal on the grounds that the reader of Les mystères du peuple could find ‘in every volume, at every page, the negation or the reversal of all principles upon which religion, morality and society rely’ (Paris Court of Appeal, 25 September 1857, in Mallet-Poujol, ‘Du blasphème’, p. 9). Mallet-Poujol, ‘Du blasphème’, p. 9.

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belief taught by any religious denomination may constitute an offence against the State’s religion or any other religion. This section also raised the fundamental question of determining if public expressions of atheism were breaching the law. One legal scholar, while recognizing that the widest freedom is given by the law in the field of theological and philosophical matters, raised the question of whether denying publicly the high and consoling truth of the existence of God, supreme arbiter of our destiny in this world and the next one, was deemed to be an offence against religious morality, even if this assertion was made in the most neutral way without any contempt or insult.32 Following J. E. Portalis, who considered that publicly professing atheism is a breach of public morality, this scholar answered that such a behaviour indeed infringed section 8. On the contrary, some other scholars claimed that atheism is nothing but an opinion and that the aim of the Act is not to punish opinions which are, in the eyes of the law, neither true nor false, neither salutary nor prejudicial. As a compromise between these two opinions, it was said that a distinction should be made between two kinds of people. On the one hand is the atheist who seriously and honestly professes materialism and denies the existence of God without any abusive language. In this situation, he must be pitied or enlightened, but that is all that society must do. On the other hand is the individual who, without any restriction, launches an all-out attack on religion and offends by his speech the beliefs of the ordinary people. In that case, his behaviour and not his opinion breaches the law. This analysis was, however, not adopted in the only recorded court decision ruling on this question. The court sent to jail for four months and condemned to pay a 200-franc fine the author of the social organization Almanach, who had written ‘we have no hope in after-life happiness; happiness lies on earth, in this very life, let’s say it out loud: beyond, there is nothing’.33 This 1819 Act, because of its inadequacies, was soon replaced by another piece of legislation. Section 1 of the 25 March1822 Act provided that ‘whoever, by any of the means referred to in section 1 of the May 17th 1819 Act, offended, or ridiculed, the State’s religion, shall be punished by a prison term of three months to five years and by a fine of 300 francs to 6.000 francs’. The second part of the section added that the same punishments shall be applied to whoever offended or ridiculed any other religion

32 33

Chassan, Traité des délits et contraventions de la parole, p. 292. Criminal court of the Seine district, 28 March 1844, (1844) Gazette des Tribunaux 310.

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which is legally established in France. According to its promoters, the aim of this section was to shed some light on the meaning of section 8 of the 1819 Act by giving a clearer definition of the offence. Even if some scholars claimed that the provision of 1822 had implicitly abolished the one set in 1819, such a view was not adopted by the courts, which considered that the two provisions were to coexist in the statute books. During parliamentary debates, the promoters of the 1822 Act were adamant that this provision was in no way to be construed as impeding the right to debate freely on any dogma. One MP claimed that prohibiting one religion to assert itself as holding the truth and to castigate another one would be a gross violation of individual freedom. Even the Home Secretary declared that it was useless to recall in the Act the existence of such a freedom since it was undisputable that controversy in religious matters was allowed for any and all religions. Many legal scholars approved of the 1822 Act. For instance, Dalloz considered that it was the necessary counterpart of the protection given to legally authorized religious denominations because the State, when authorizing and admitting and protecting a religion, simultaneously recognizes and protects the beliefs this religion relies upon. This view is shared by Chassan, who writes that a distinction must be made between speeches consisting in a brutal, crude and obscene attack and those consisting in mere discussions of opinions, however dogmatically they are expressed. As one scholar observed,34 the courts’ rulings of the nineteenth century demonstrate some leniency towards the defendants. For instance, in the case concerning E. de Sénancour’s Summary of the History of moral and religious traditions among various peoples, the writer was initially condemned for stating that Jesus Christ had no godly nature but was only a respectable moralist who had been given the allegorical attributes of God after his death. The court held that the defendant could not rely on the freedom of religious practice since the defendant’s book denied all religion dogmas and supported none. This ruling was reversed by the Court of Appeal which deemed that the defendant had committed neither offence nor derision. The same reasoning was implemented in the case concerning R.  T. Chatelain, who had denied in a newspaper that Christianity could last forever. An appeal court ruled that, in predicting an event, even highly unlikely, the defendant did not use offending or outrageous formulas and did not breach the recognition legally due to

34

Mallet-Poujol, ‘Du blasphème’, p. 9.

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the State’s religion. It was underlined that this leniency would stop had the defendant’s behaviour consisted in ridiculing the State’s religion. One scholar urged the courts to display more harshness, because derision, being the weapon of shallow and sneering minds, can cause the most severe damages among men who are more willing to mock than to feel indignation.35

1.2.3 Third Republic Laws The government, known as the ‘moral order government’, which ruled France in the first years of the Third Republic, had a position toward the legal protection of religion that was very similar to the one implemented during the Restoration.36 The legal landscape, however, underwent major changes when a more liberal majority came to power. One of its main contributions was the 29 July 1881 Act on the freedom of the press. This Act was seen as one of the major pieces of a set of statutes aiming at defending the republican values as they were understood by their promoters, who were profoundly anticlerical. It repealed the Acts of 1819 and 1822, making all traces of a legal protection of religion disappear. Section 28 of the 1881 Act still punished the offences against morality and the display of obscene drawings, engravings, paintings or images, but as the offence of undermining morality was maintained, criminal law no longer protected religious morality. This solution was heavily criticized by the Bishop of Angers, who was a member of the Chambre des députés. In a passionate speech, he said, I will not vote in favour of the Act because it relies on a principle which seems to me to be absolutely wrong, that there are no, legally speaking, doctrinal offences. I will not vote in favour of the law because I think that, in suppressing the felony of offence against public and religious morality, against the religions recognized by the State, that is to say against God, against everything that is august and most sacred in the world, it forsakes, it surrenders, it sacrifices what it has the duty and the mission to protect and to defend.

This view was abruptly defeated by Clémenceau, who said that ‘God will take care of himself. He does not need the Chambre des députés to defend Him’.37 35 36 37

Chassan, ‘Traité des délits et contraventions de la parole’, p. 284. Basdevant-Gaudemet, ‘Histoire juridique du blasphème’, p. 309. Jean-Noël Jeanneney, ‘Droit au blasphème’ (April 2015) L’Histoire 40.

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It has been observed that this Act was entirely dedicated to the protection of the Republic,38 a fact which is obvious when one considers who, in the eyes of the legislator, deserved a special protection against speech offences. Sections 23 to 40 contain special provisions safeguarding State security, the public good, the president of the Republic, the courts, the army, the government’s departments, foreign heads of State and members of the diplomatic corps. Religion is nowhere mentioned as a social value deserving protection, and therefore every citizen was free to criticize publicly all beliefs. It is true that section 31 protected the ministers of one of the religions in the employ of the State, but this protection was given to them as the state’s employees participating in the public service of the religious denominations established by the concordat of 1801, which became the law of the State with the law of the 18th Germinal of the year X (8 April 1802). There was a controversy on whether priests were to be considered civil servants under the provisions of Article 75 of the Year VIII Constitution. In the opinion of Dupin, it was not true that a Catholic priest could be treated as a civil servant. He said that those who are true civil servants receive from the law or from the government some prerogatives of public power in judiciary, administrative or military matters. The powers of the priest have their origin elsewhere: this power, in Catholic beliefs, comes from divine law. The Catholic priest’s features are sacred. Therefore, the functions of the ministers of all religions, and especially of the Catholic religion, are only spiritual. They exercise a moral power which depends only on faith.39

This view was adopted by the Court of Cassation in a ruling in which it held that ministers of religion were not among the agents protected by Article 75 of the Constitution because they were not officials exercising public authority. As a consequence, they could be directly prosecuted by the Attorney General, who could initiate litigation without being compelled to be granted permission to sue from the administrative courts.40 Even if they were not true civil servants under administrative law, ministers of authorized religions were nevertheless paid by the State and

38 39

40

Basdevant-Gaudemet, ‘Histoire juridique du blasphème’. André Dupin cited in Fuzier-Herman, ‘Répertoire général alphabétique du droit français’, p. 318. Court of Cassation, 23 June 1831, (1831) 1 Recueil Sirey 264; Court of Cassation, 9 September 1831, (1831) Bulletin criminel 212.

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were, as far as protection against speech offences was concerned, considered public figures, which ought to receive a greater protection than ordinary citizens. This special protection given to ministers of authorized religions by the 1881 Act lasted until the enactment of the Act of 9 December 1905 separating Church and State. This statute repealed the 1801 concordat, submitting ministers of authorized religions to the laws which were applied to any ordinary citizen. However, even if ministers lost their standing as public figures, the 1905 Act still protected freedom of religious practice. The provisions of sections 260 to 264 of the Criminal Code were repealed and their content transferred into sections 31 to 33 of the 1905 Act. Especially section 32, which is still in force, punishes by a fine of the fifth category and/or a prison term of ten days at most whoever hinders, delays or interrupts the practice of a religious denomination by creating disturbances in the premises dedicated to these ceremonies. Section 33 adds that these punishments are to be used only if the disturbances, offences or assaults do not justify the application of a stronger sentence under the provisions of the Criminal Code. The legal edifice set by the 1881 and 1905 Acts, which does not protect religion per se but safeguards freedom of religious practice, was not fundamentally altered by later statutes. The decree of 21 April 1939 (the Marchandeau decree) completed section 32 of the 1881 Act. This text prohibits and punishes defamatory statements committed via the press against a group of people belonging, by their origin, to a specific race or religion when these defamatory statements are made with the intent to advocate hatred among citizens. This decree was enacted to prosecute anti-Semitic speeches but was rarely applied by the courts because proof of the intent to provoke hatred was held to be a necessary requirement. So on 1 July 1972, an Act (the Pleven Act) modified the 1939 decree and suppressed this condition. The law as it stands since 1972 is set in sections 32 and 33 of the 1881 Act. As one of the Justices of the Court of Cassation recently underlined, ‘the law does not protect a religion per se but the people who, because of their religion are exposed to acts of hatred. The aim of the law, in a solely republican and secular perspective, is to preserve the unity of the national community around humane and tolerant values’.41

41

Jean-Yves Montfort, ‘Liberté d’expression, loi de 1881 et respect des croyances: une cohabitation impossible?’ (2015) 2 Legicom 29.

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Contemporary Law

The general rules governing the relations between free speech and religions were summed up in the ruling given by the Paris tribunal of first instance in the 2007 Charlie Hebdo case. The judges said that in France, which is a secular and pluralistic society, the respect of all beliefs goes hand in hand with the freedom to criticize every religion, whatever its denomination, and with the freedom to represent people or objects that are worshipped by others. Blasphemy, which offends a divinity or a religion, is not a punishable offence, unlike insults which target an individual or a group of individuals because of their religious affiliation.42

These directions are generally applied by the courts (Section 1.3.1); however, there is some doubt as to whether they could also be implemented in some parts of French territory that kept some legacy from German imperial law (Section 1.3.2).

1.3.1 General Principles The fundamental principles governing contemporary law are set by the provisions of Articles 10 and 11 of the Déclaration des droits de l’homme. The former provides that ‘no one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order’. The latter states that ‘the free communication of ideas and opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law’. Therefore, these principles are to be implemented within the frame of the 1881 Act, which technically determines which offences can be legitimately punished and what the appropriate remedy should be. This Act plays a central function in the French legal system because the Cour de cassation, sitting in full bench, ruled on 12 July 2000 that ‘abuses of freedom of expression, determined and punished by the July 29th 1881 Act, cannot be prosecuted on the basis of Section 1382 of the Civil Code’.43 This means that the common principles of civil liability cannot be used in free-speech litigation and that demonstrating a

42

43

Paris Tribunal of first instance, 22 March 2007; (2007) Droit pénal 7, annotation by Agathe Lepage; (2007) JCP 10079, annotation by Emmanuel Derieux. Court of Cassation, full court, no. 98-10.160, 12 July 2000.

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fault, a prejudice and a causal link does not suffice to justify a conviction.44 In the words of another ruling of the Court of Cassation,45 ‘freedom of speech is a right the use of which is abusive only in instances specifically determined by the law’, that is to say the three offences set by the 1881 Act: insult, defamation and hate speech. Long before its consecration by the Court of Cassation, this fundamental rule was already applied by the trial judges, such as the Paris Tribunal of first instance in the Amen case. It involved the poster for a movie which pictured a Catholic cross over which was set a Nazi swastika. Before rejecting his claim, the judge reminded the plaintiff that the principle of legality commands that every restriction imposed on free speech must be explicitly set in the law, and in this very case, only a defamation offence as defined by the 1881 Act would have been able to establish the required degree of ‘disturbance’.46 Of course, the provisions of Article 10 of the ECtHR, as it is construed by the case law of the European Court of Human Rights in the light of its Handyside v. UK ruling, play a major part in the implementation of domestic law. Indeed, as the ECtHR underlined, the domestic margin of appreciation goes hand in hand with European supervision, which concerns both the aim of the measure restricting free speech and its necessity.47 Therefore, this supervision covers not only the basic legislation but also the decision applying it, even one given by an independent court.48 As one senior magistrate observed a few years ago, Article 10 of the ECtHR and the case law of the ECtHR are ‘slowly replacing our 1881 Act which is relegated to a secondary function’.49 It has been observed that French case law demonstrates a strong protection of freedom of speech, but this freedom is not unlimited.50 Indeed, as one court underlined, ‘the separation of Church and State does not

44

45

46

47

48

49 50

Christophe Bigot, ‘Blasphème, respect des croyances et liberté d’expression: l’impasse de l’article 1382 du Code civil’ (2015) 2 Legicom 59. Court of Cassation, no. 12-10.177, 10 April 2013; (2014) Recueil Dalloz 131, annotation by Christophe Bigot; (2013) Légipresse 245, annotation by Nicolas Verly. Paris Tribunal of first instance, 21 February 2002; (2003) JCP 10064, annotation by Philippe Malaurie; (2002) 192 Légipresse 105, annotation by Agnès Tricoire. On the blasphemy case law by the ECtHR, see the chapters by Lewis and Temperman in this volume. European Court of Human Rights, Handyside v. United Kingdom, Application no. 5493/72, judgment of 7 December 1976. Montfort, ‘Liberté d’expression’, p. 29. Emmanuel Derieux, ‘Liberté d’expression et respect des croyances et des croyants dans la jurisprudence française et de la cour européenne des droits de l’homme’ (2015) 2 Legicom 71.

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prevent the implementation of the law when religion is under attack’.51 The courts, in a series of cases adjudicated over the last thirty years, tried to implement domestic law while taking into account the rulings from Strasbourg and most notably its Otto-Preminger-Institut judgment, in which the ECtHR stated that those who choose to exercise the freedom to manifest their religion must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 … to the holders of those beliefs and doctrines.52

A remarkable case concerned J.  P. Godard’s movie Hail Mary. The plaintiffs claimed that this movie outrageously ridiculed Christian values. The trial judges refused to ban the movie or to order the suppression of some of its scenes.53 This part of the decision was confirmed by the Court of Cassation, which stated that ‘the author of an intellectual work must be entitled to the right to free speech which shall be unhindered but by the sole restrictions set by law’.54 The trial court’s ruling was nonetheless reversed, as the Court of Cassation considered that the trial court had misapplied the law in stating that the actual social disturbance caused by the movie, even if it hurt violently the beliefs and feelings of the Catholic community, was not an ‘exceptional disturbance’ allowing a judicial intervention. Indeed, this judicial intervention, provided for by Section 809 of the civil procedure code, is not subordinate to the demonstration of an ‘exceptional disturbance’ but to the proof of an obviously ‘unlawful disturbance’. So the case was sent back to a trial court, which refused to ban the movie on the grounds that the disturbance was not grave enough to legitimize such an order. This time, the Court of Cassation approved the reasoning of the trial judges completely and stated that ‘even if some 51

52

53

54

Paris Tribunal of first instance, 10 March 2005:  (2005) JCP 10109, annotation by Ph. Malaurie. European Court of Human Rights, Otto-Preminger-Institut v.  Austria, Application no. 13470/87, judgment of 20 September 1994. On this case, see Sylvie Peyrou-Pistouley, ‘L’affaire Otto-Preminger Institut et la liberté d’expression vue de Strasbourg: censure ou laxisme?’ (1995) Revue française de droit administratif 1198. Paris Tribunal of first instance, 28 January 1985; and Paris Court of Appeal, 13 July 1985; (1985) Gazette du Palais 344, annotation by Pierre Bertin; (1985) Recueil Dalloz 130, annotation by Raymond Lindon. Court of Cassation, no. 85-15.044, 21 July 1987; (1987) Bulletin civil 172.

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aspects of the movie may shock religious sensitivity, they did not constitute an obviously unlawful disturbance which is the sole legal reason to restrict free speech’.55 A few years later, some members of the Catholic community tried to ban Martin Scorsese’s movie The Last Temptation of Christ on the grounds that this movie offended the deepest feelings of Christians. The Paris Court of Appeal refused such a drastic measure and only ordered the insertion of a warning statement.56 This ruling was approved by the Court of Cassation, which, on this occasion, coined the rule that ‘freedom of speech, especially in the area of artistic creation, and the right to the respect for all beliefs are principles of equal value and it belongs to the trial courts to determine the appropriate remedies to maintain the necessary balance between these two values’.57 The trial court, in balancing these two principles, had rightly decided that no obviously unlawful disturbance had occurred and that a warning was an appropriate measure to preserve the right balance of rights and liberties. In 1990, it was the poster for the movie The People vs. Larry Flynt which was the subject matter of a trial in which Catholic plaintiffs required a judicial order to withdraw what they called outrageous material.58 This poster showed the picture of the lower part of a female body, from the knees to the belly, on which was superimposed the picture of a man positioned as the victim of a crucifixion. The trial court observed that it was not obvious that the poster referred to Christ as traditionally represented. The cross itself, which is the religious symbol of the Christians, was nowhere pictured. The judge considered that this poster was in no way attacking the Catholic religion, and he concluded that there was no evidence of an obviously unlawful disturbance which could justify such a severe restriction of free speech.59 An appeal was made against this ruling, but the distributor of the movie, in a spirit of appeasement, decided to withdraw the poster on the very day the Court of Appeal was to rule on the case.60 55 56

57 58

59

60

Court of Cassation, no. 88-14.235, 10 January 1990; (1990) Bulletin civil 9. Paris Court of Appeal, 27 September 1988; (1989) Recueil Dalloz somm. 301, annotation by Theo Hassler; (1988) Gazette du Palais 737, annotation by Pierre Bertin. Court of Cassation, 29 October 1990; (1992) Recueil Dalloz 72, annotation by Théo Hassler. See Jean-Pierre Delannoy, ‘L’Eglise catholique et le juge:  à propos de l’affaire Larry Flint’ (1997) 62 LPA 4. Paris Tribunal of first instance, 20 February 1997; (1997) 140 Légipresse 49, annotation by Marie-Noëlle Louvet; (1998) Recueil Dalloz 132, annotation by Théo Hassler. Ibid.

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Another case again involved a poster in a litigation, initiated by members of that Catholic community, concerning a commercial advertisement for condoms. Under the heading ‘Holy Condom, protect us’, the advertisement pictured a Catholic nun standing beside the drawing of two condoms. The Toulouse Court of Appeal considered that associating the denatured picture of a nun with the words ‘Holy condom’ expressed poor taste and a provocative amalgam, which may have been deemed offensive by the Catholic community.61 This ruling was quashed by the Court of Cassation which ruled that ‘even if it might have hurt the feelings of some Catholics, the content of this advertisement did not exceed the allowed limits of free speech’.62 This very solution was applied a few years later in the trial brought by some Catholic associations against an advertisement agency, which had used a parody of Da Vinci’s Last Supper painting. The advertisement, which was 40 meters long by 11 meters high, had been set on the Paris Palais des Congrès during Holy Week. Christ and his apostles were replaced by women, wearing clothes made by the advertised fashion company, and some of them were pictured in lascivious postures. In the interim procedure, the judge first underlined that the case law of the ECtHR gave to State parties, in matters potentially offending personal beliefs related to morality, and more specifically to religious beliefs, more leeway than in matters concerning political speeches or debates on public-interest questions.63 The judge then held that the deliberate choice to set, in a busy traffic location, this huge poster constituted an aggressive and gratuitous invasion in the depth of the intimate beliefs of all people who, simply walking in the street, may be strongly hurt by this display. This insult made to the Catholic community therefore appeared disproportionate to the aim of the advertising company and was therefore condemned. Three elements characterized the insult in this ruling.64 First, the fact that the advertisement was using both a major event of a religious belief and its most important symbols. This element was also mentioned in the Hail Mary case, where it was held that representing a major symbol of religion, such as the cross, in the (profane) context of advertisement, was to be 61

62

63

64

Toulouse Court of Appeal, 12 January 2005; included in Derieux, ‘Liberté d’expression et respect des croyances et des croyants’, p. 74. Court of Cassation, no. 05-81.932, 14 February 2006; (2006) Bulletin criminel 165; (2006) 232 Légipresse 116, annotation by Agnès Tricoire. Paris Tribunal of first instance, 10 March 2005; (2005) 20 Recueil Dalloz 1326, annotation by Pierre Rolland; (2006) JCP 10109, annotation by Philippe Malaurie. Pierre Rolland, ‘La critique, l’injure et le blasphème’ (2005) 20 Recueil Dalloz 1326.

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taken into account by the courts when determining if an insult had been committed. The second element lay in the fact that this religious symbol was pictured derisively. The ruling underlined that some of the characters had an equivocal posture, while the nudity which affected others was nothing but lewd. The third element was that this offence was gratuitous and made absolutely no contribution to a public-interest debate. This criterion was directly inspired from the Otto-Preminger-Institut judgment of the ECtHR. To sum up, the poster ‘constituted, as a whole, an obvious breach of the spirit of tolerance which must characterize, as well as free speech, a democratic society’.65 Therefore, the special circumstances of the case, demonstrated by the outrageous and insulting representation hurting the rights of the plaintiffs, allowed the court in interlocutory proceedings to ban the display of the poster. This ruling was upheld a month later by the Paris Court of Appeal, which decided that the plaintiffs were rightly entitled to argue that the poster constituted, under sections 29 and 33 of the 1881 Act, a serious insult to religious beliefs and to the faith of Catholic individuals.66 The unlawful and outrageous representation of a sacred theme, misrepresented by a commercial advertisement, therefore was to be considered an ‘obviously unlawful disturbance’ which had to be stopped by using the most appropriate measure. So the Court of Appeal concluded that the first-instance judge had taken the correct remedy by prohibiting the display of the poster. This ruling was quashed by the Court of Cassation, which held that the simple fact of parodying the representation of the Last Supper, which was not made to offend Catholics nor to hurt them because of their obedience, did not constitute the religious insult offence, which is a direct and personal attack aimed at a group of people because of their religious belonging.67 In the Charlie Hebdo case concerning the caricatures of Muhammad, the courts were seized by some Muslim associations, which claimed that the drawings of the prophet constituted a provocation aimed at hurting the Muslim community in its deepest beliefs. The plaintiffs argued that these caricatures were a public insult targeting a group of people because

65

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Paris Tribunal of first instance, 10 March 2005; (2005) 20 Recueil Dalloz 1326, annotation by Pierre Rolland; (2006) JCP 10109, annotation by Philippe Malaurie. Paris Court of Appeal, 8 April 2005; (2005) Légipresse 143, annotation by Henri Leclerc. Court of Cassation, 14 November 2006, no.  05-15.822; (2006) Bulletin civil 417; (2006) 346 Gazette du Palais 9, annotation by Gérard Gonzalez; (2006) Recueil Dalloz Actualités, annotation by Eric Chevrier; (2015) 2 Legicom 89, annotation by Bertrand de Lamy.

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of their religion. The judge first referred to the ECtHR’s case law and the principles set in its Otto-Preminger-Institute judgment. Applying these principles, the judge stated that in France, where society is secular and pluralist, respect of all beliefs goes hand in hand with the right to criticize religions.68 Blasphemy, which offends the divinity or religion, is not prosecuted. The judge underlined that Charlie Hebdo was a satirical newspaper that no one is compelled to buy or to read, unlike posters displayed in public places. Concerning the caricature of Muhammad wearing a turban shaped as an ignited bomb, the judge ruled that, in spite of the shocking or even hurting nature of this caricature, the context and the circumstances of publication revealed that it was made without any deliberate intent to offend directly and gratuitously Muslims as a whole. Indeed, the drawing where the prophet was holding his head in his hands and said ‘c’est dur d’être aimé par des cons’ (‘it is hard being loved by jerks’), even if it was insulting, clearly targeted only the most radical Muslims, which were clearly identified in the caption ‘Muhammad is overtaken by the radicals’. One should not confuse the most extreme fringe of Muslims with the rest of the believers, and the drawing on the front page of the publication could only be understood as denouncing the extremism of the radicals who drove the prophet to despair. The same analysis could be made concerning another drawing in which the prophet, sitting on a cloud, received deceased terrorists and told them ‘Stop, stop, we ran out of virgins’. The judge held that this caricature, which referred to suicide bombings committed by some radical Muslims and depicting the prophet commanding them to stop, did not equate Islam and the realization of acts of terror and therefore did not target Muslims as a whole. Furthermore, all these drawings were included in a special issue of the magazine that sought to contribute to the debate about the excesses of some radical Muslims who committed violent acts. The admissible boundaries of free speech were not overstepped, since the drawings were part of a public-interest debate and the caricatures could not be labelled as insulting to an extent that would require judicial restriction of the freedom of expression. The first-instance judge’s decision was upheld by the Paris Court of Appeal.69 It held that these caricatures, which were clearly targeting a fraction of

68

69

Paris Tribunal of first instance, 22 March 2007; (2007) Comm. com. électr. 74, annotation by Agathe Lepage; (2007) JCP 10079, annotation by Emmanuel Derieux; (2007) 242 Légipresse 123, annotation by Henri Leclerc. Paris Court of Appeal, 12 March 2008:  (2008) 252 Légipresse 107, annotation by Henri Leclerc.

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the Muslim community and not the whole of it, did not constitute the offence of insult, which is a personal and direct attack on a group of people because of their religious beliefs. The same solution was applied in other cases involving Charlie Hebdo. In one of them, one of its main authors had published a comment in which he wrote that ‘more and more, Muslims are unbearable to me, and the more I come across veiled women, the more I want to kick violently their asses. I could never stand very churchy Catholics dressed in black and I see no reason why I should better stand these potatoes with their distressing silhouette’.70 Lyon’s Tribunal of First Instance recalled the OttoPreminger-Institut judgment of the ECtHR and added that secularity is a constitutional principle which is at the very root of our Republic. The judges added that the respect which has to be shown to all beliefs goes hand in hand with the right to criticize or even to ridicule any religion. They admitted that some restrictions may be applied to free speech if used in a gratuitously offensive way targeting some people without contributing in any way to a public-interest debate. However, in the case at hand, the words did contribute to public-interest debate on secularity and did not overstep the allowed limits of free speech in a democratic society.71 The same solution was applied to an article published in the same magazine in which the chief editor of Charlie Hebdo called the Gospels a ‘pornographic work’ and Christ ‘a fat paedophile pig’. The case was dismissed by the trial court, which held that the litigious extracts of the article were wilfully outrageous and improper but could not mislead the reader on their obvious function:  to make the reader laugh. Therefore, they did not exceed the allowed limits of free speech. This solution was upheld by the Court of Cassation, which ruled that the lower court had ‘correctly assessed the meaning and the scope of the challenged passages’.72 Even if the majority of domestic cases are undeniably leaning in favour of free speech, some judgments do recall that there are some legal limits to free speech. One example is a judgment made by the Court of Cassation sitting in full bench in 2007. In this case, the trial judges had considered that the words ‘Jews are a cult, a sham and the biggest of shams because it is the first one’ formed part of a theoretical debate on the influence of religions on societies and did not constitute an attack against the 70

71 72

TGI Lyon, 24 February 2009; included in Derieux, ‘Liberté d’expression et respect des croyances et des croyants’, p. 75. Ibid. Court of Cassation, no. 10–82.809, 15 March 2011.

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Jewish community. This ruling was quashed by the Court of Cassation, which held that such words did not fall within the scope of free criticism of religions and took no part in a public-interest debate. They were only an insult targeting a group of people because of the group’s origin. Prosecuting such speeches was deemed to be a necessary restriction to freedom of speech.73 The same reasoning was applied to a politician who had said that the growing Muslim community constituted a threat to the French people.74 The court held that, even if it was legitimate for the politician to express his own viewpoint on matters such as immigration or the place of religions, his freedom of speech could not justify speeches aiming to provoke violence or hatred against groups of people characterised by their religion.75 The same reasoning applied to words claiming that Jews were ‘dangerous felons’ who ‘threatened national cohesion’.76 The court decided that these words undeniably incited hatred of a group of people on the sole grounds of their origins or religion.77 Similar convictions have been reached in cases concerning persons expressing anti-Jewish supremacist words or those who mock or ridicule WWII exterminations.78 It has been observed that the frontier between lawful criticism of religions and illegitimate offences is drawn by the courts using two factors.79 The first one, in accordance with the criteria set by the ECtHR, is the depth of the offence made to religious beliefs: the more violent the verbal attack, the deeper it will hurt the convictions of others and breach the latter’s personal freedoms. The second criterion implies to determine if the litigious speech is closely linked to a public-interest debate. If it is, it must be allowed. But when the speech’s subject is more remote from the public interest, it will be legitimate for a judge to penalize any abuse of freedom of speech, also because the attack then is bound to be more personal.

73

74

75 76

77 78 79

Court of Cassation, full court, no. 06-81.785, 16 February 2007; (2007) JCP 10047, annotation by Emmnauel Derieux. Paris Court of Appeal, 12 March 2006; cited in Derieux, ‘Liberté d’expression et respect des croyances et des croyants’, p. 78. Ibid. Paris Tribunal of first instance, 17 February 2009; cited in Derieux, ‘Liberté d’expression et respect des croyances et des croyants’, p. 78. Ibid. Court of Cassation, no. 11–82.866, 16 October 2012; (2012) Bulletin criminel 217. Jacques Francillon, ‘Liberté d’expression et respect des convictions religieuses’ (2006) Revue des sciences criminelles 625.

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1.3.2

The Special Situation of Alsace-Moselle

The Act of 9 December 1905, which had repealed the 1801 concordat, does not apply in the north-eastern part of France, an area called AlsaceMoselle. This territory, composed of three districts which were under German rule from 1870 to 1918,80 is still ruled by the law of the 18th Germinal of the year X (8 April 1802) which recognizes four cults: Catholic, Protestant (including both Eglise réformée d’Alsace-Lorraine and Eglise de la Confession d’Augsbourg d’Alsace et de Lorraine), and Jewish. These cults are protected by the provisions of the local Criminal Code, the content of which was approved by one of the decrees enacted in 1919, which maintained Imperial German law as the law of these districts. Section 166 of this code punishes by a prison term of three years at most whoever caused scandal by publicly blaspheming against God through outrageous speech or who publicly offended one of the Christian religious denominations or a religious community established in Alsace-Lorraine and recognized as a corporation, or the institutions or ceremonies of these denominations or who, in a church or any other place dedicated to religious gatherings, committed insulting or scandalous acts.

The Colmar Court of Appeal, in a ruling delivered on 19 March 1954, implemented this provision and convicted on the basis of section 166 the members of a cult who had harangued the congregation at the end of a mass in the Strasbourg cathedral while the faithful were still gathered in the building. It seems that this provision has not been applied by the local courts since. At the time of the Charlie Hebdo case concerning the caricatures of Muhammad, an MP from Moselle asked the Minister for internal affairs if section 166 could be applied to a religious denomination which is not officially recognized under the provisions of the 1801 concordat. The Secretary refused to provide an answer on the grounds that the implementation of the law was in the hands of the judiciary and that only the courts could determine the scope of this provision. As one scholar observed,81 the specificities of the local law raised some serious questions about their compatibility with the general principles governing the Republic. The rules of the concordat only recognize the legal existence of four religious denominations. Is that in breach of the equality principle

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Haut-Rhin, Bas-Rhin and Moselle, which formed a Reichsland. Dominique Peljak, ‘La fin du droit local d’Alsace-Moselle?’ (2011) Actualités Juridiques du Droit Administratif 2211.

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enshrined in Article 1 of the French Constitution which provides that ‘France shall ensure the equality of all citizens before the law, without distinction of origin, race or religion’ and that France ‘shall respect all beliefs’? Or perhaps in breach of the rule that ‘France shall be an indivisible, secular, democratic and social Republic’? In the wake of the attacks on Charlie Hebdo, the question of the existence of this blasphemy offence in this local statute book resurfaced. This time, the government provided a strong and clear answer.82 The Secretary for Justice stated that even if the provisions of section 166 of the German Criminal Code of 1871 punishing blasphemy had been temporarily maintained in the districts of Moselle, Bas-Rhin and Haut-Rhin in a decree enacted on 25 November1919 and were never explicitly repealed by the legislator, this section is no longer applicable on French territory. Indeed, following a ruling made by the Conseil constitutionnel which stated that the lack of an official version in French of a legal provision constitutes a breach of the constitutional objective of accessibility to the law, the government had published two decrees containing the official translation in French of all laws and decrees which had been kept from the German imperial regime.83 No translation of section 166 of the Criminal code was published, and therefore this provision, which had already fallen into disuse, should be viewed as having been implicitly repealed. Because it was never translated, the French courts of these three districts could no longer implement this provision. The local criminal code also protects freedom of religious practice through the provision of section 167, which punishes by a prison term of three years at most whoever, in a church or any other place dedicated to religious gatherings, had, by making a racket or creating disorder, wilfully hindered or disturbed a religious ceremony of one of the religious denominations. This text is analogous to section 32 of the Act of 9 December 1905, but the punishment of the former is harsher than the one set in the latter.84 This provision was applied in a judgment of the Court of Cassation of 1999.85 Finally, it must be underlined that in these three districts, the ministers of religion are still paid by the State under the principles of the concordat. Therefore, they are theoretically entitled to

82 83 84

85

Rép. Minist. no. 81822; (2015) JOAN Q 10618. Decree no. 2013–395 (14 May 2013) and no. 2013–776 (27 August 2013). Véronique Jaworski and Marie-José Littman-Martin, Répertoire Dalloz v.  Alsace-Moselle (Paris: Dalloz, 2013), p. 54. Court of Cassation, no. 98-84.916, 30 November 1999; (2000) Revue Juridique de l’Est 2.

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the special protection given by section 31 of the Act of 29 July 1881 on the freedom of the press. However, it seems that this provision is no longer applied by the courts.

1.4 Concluding Remarks As one judgment of the Court of Cassation stated, ‘free speech is a right the exercise of which can be deemed to be abusive only in the instances determined by law’.86 This principle led the courts to rule that, since blasphemy is not an offence according to the Act of 29 July 1881, it could not be the subject of a lawsuit in which the plaintiff would use the law governing extra-contractual liability.87 Therefore, mocking or insulting a religion, its beliefs, its symbols or its rituals cannot be treated as a civil wrong.88 As one scholar pointed out, this freedom to deny publicly the existence of divinities goes hand in hand with the right to be irreverent vis-à-vis every belief or ritual which is the product of religion.89 Criminal law and civil law are therefore acting as a united front to protect secularity as a fundamental principle of the State.

86

87 88

89

Court of Cassation, 10 April 2013: (2014) Recueil Dalloz 131, annotation by Christophe Bigot; (2013) 143 Gazette du Palais 5, annotation by Emmanuel Dreyer. See Bigot, ‘Blasphème’, p. 39. Versailles Court of Appeal, 18 March 1998; (1998) Recueil Dalloz 203; Court of Cassation, 8 march 2001; (2001) Bulletin civil 47. Bigot, ‘Blasphème’, p. 42.

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2 Blasphemy and Defamation of Religion Following Charlie Hebdo Neville   Cox

2.1

Introduction

The events of January 2015 when the offices of Charlie Hebdo were attacked by gunmen purportedly acting in the name of Islam as a response to the magazine’s publication of various cartoons depicting and lampooning the Prophet Muhammad were, of course, shocking and horrific.1 The response of world leaders, the world’s media and millions of ordinary citizens from around the globe (albeit generally those espousing Western values) – a reaction expressed so vividly in the use of the phrase Je suis Charlie – was one of condemnation and pity for those who had been directly affected by the events but also, pivotally, one of solidarity with the legitimacy of the work of satirical journalists who targeted inter alia religion (including the Islamic religion) in their publications.2 And in the context of this expression of solidarity, complex questions were asked about the legitimacy of any laws which restrict freedom of expression in order either to preserve the sacred or to protect religious sensitivities. To some extent, of course, this is such a complex question that it could not and cannot appropriately be dealt with in the context of or by reference to the events of January 2015. The massacre generated such an emotional reaction that this necessarily coloured the debate that followed, such that, for many, the intolerance and aggressiveness which underpinned the attacks became also the measure of the legitimacy of blasphemy laws generally. In other words, there was and is a tendency which, however 1

2

See ‘Charlie Hebdo attacks:  Three days of terror’, available at www.bbc.com/news/worldeurope-30708237. See, for example, ‘The Guardian view on Charlie Hebdo: Those guns were trained on free speech’, www.theguardian.com/commentisfree/2015/jan/07/guardian-view-charliehebdo-guns-trained-free-speech; and ‘Charlie Hebdo and free expression’, available at www .nytimes.com/2015/01/19/opinion/charlie-hebdo-and-free-expression.html?_r=0.

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understandable, is also completely unfair, to see violence, fanaticism and intolerance as being inherently connected with blasphemy laws and to conclude, on this basis, that such laws (like the attacks in Paris) must, necessarily, be illegitimate. In reality, however, the debate cannot properly be played out in this simplistic manner. After all, there are many people in the world who condemn any kind of violence in the name of religion yet who also take the view that the right to free speech is not absolute and that it can and should, on occasion, be restricted in order to protect the rights and sensitivities of devotees or simply to control the publication of speech which, because of its irreverent treatment of the sacred, is regarded as profoundly morally unacceptable.3 And that being the case, the debate cannot be reduced to the simplistic statement that because the attacks in Paris were bad and because the attackers were opposed to speech mocking religion, therefore any legal controls on such speech must also be bad. In this chapter, I seek to consider what is actually at stake in this debate. I  do so by reference to the types of cartoon which were published in Charlie Hebdo and to the nature of the arguments as to the legitimacy of blasphemy and defamation-of-religion laws which were made both before and after the events of January 2015. In particular, I seek to assess the ‘in principle’ legitimacy of both blasphemy and defamation-of-religion laws having regard to the approach to freedom of expression which is textually enshrined in major international human rights instruments and also which is endorsed in many Western, liberal states. I am not arguing for the existence or enactment (at either national or international level) of blasphemy laws or laws prohibiting defamation of religion – indeed my view is that, in secular or near-secular Western states such laws are completely inappropriate and to be regarded with suspicion. My contention is simply that there is no basis, even within the Western paradigm, for concluding that a blasphemy law is an inherently bad thing and that for a state whose morality is determined by or directly influenced by religious teachings, blasphemy and defamation-of-religion laws can be justified in good faith on the same basis as are various morals-based restrictions on free speech which exist (relatively non-controversially) in the West. Moreover, all such 3

So, for example, many Islamic states condemned the attacks on Charlie Hebdo. See www .judaism-islam.com/muslim-reaction-to-the-charlie-hebdo-massacre/. Equally many Islamic leaders also condemned the survivors edition of the magazine which carried a front-page cartoon of the Prophet Muhammad. See Adam Withnall ‘Saudi Muslim leader organising “legal action against Charlie Hebdo” over Mohammad Cartoons’, available at www.independent.co.uk/news/world/middle-east/saudi-muslim-leader-organising-legalaction-against-charlie-hebdo-over-mohamed-cartoons-9985984.html.

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restrictions are, I contend, at least textually legitimate interferences with the (international) right to free speech – certainly under Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and Article 10 of the European Convention on Human Rights (ECHR) – justified by reference to concerns of public morality.4 Finally, I suggest that the actual root of the opposition of many Western commentators to blasphemy and defamation-of-religion laws generally is that they are underpinned by a (religious-based) public morality which is different to the secular, liberal public morality with which they are comfortable and familiar such that the real concern of these commentators is with the grounding morality and not the laws which it generates. And in this context, because the ‘truth’ of neither Western, secular values nor their religious counterparts is susceptible to empirical proof or disproof, therefore any suggestion that a blasphemy law or the public morality on which it is based is inherently flawed simply reflects the ubiquitous Western tendency to regard its views on issues of law, morality and social policy as having universal legitimacy.5 The chapter is divided into three parts. In the first, I  consider the nature of the various cartoons published in Charlie Hebdo and conclude that they fall into two distinct categories, namely, (1) those which treat sacred issues profanely and are thus immoral from the standpoint of religious devotees and (2) those that appear to link Islam, the religion, with terrorism and are thus potentially xenophobic. In the second, I consider Western-style laws which restrict speech which might fall under either of these categories (that is immoral speech on the one hand and speech which undermines an entire sub-community by defining it by reference to the actions of an unrepresentative few members on the other). In the third, and on the assumption that the ‘in principle’ justification for blasphemy and defamation-of-religion laws are known to and accepted by Western liberal orthodoxy, I consider why so many Western commentators view laws which restrict individual rights to freedom of expression in

4

5

As is discussed in what follows, there is a divergence in practice between the UN Human Rights Committee and the European Court of Human Rights on the issue (largely because of the fact that the latter tends to rely heavily on its margin of appreciation doctrine where church/state matters are at issue). My contention, however (as is discussed in what follows), is that the UN Human Rights Committee view that blasphemy laws are only acceptable if they speak to concerns arising out of Article 20 of the ICCPR (General Comment 34 (C/ GC/34)) is simply not warranted by the terms of Article 19 of the Covenant. I consider this point more generally at Neville Cox, ‘The clash of unprovable universalisms: International human rights and Islamic law’ (2013) 2:2 Oxford Journal of Law and Religion 307.

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the name of religion as inherently invalid. I conclude that, in the response of solidarity from so many in the West which was met by a reaction of outrage by many Muslims when the ‘survivor’s edition’ of Charlie Hebdo (which sold exponentially more copies than usual) published a depiction of the Prophet Muhammad on its front page,6 one can detect a far broader conflict of ideological visions which, as it deepens, is likely to determine a great deal in relation to the global political climate in the future.

2.2

The Charlie Hebdo Cartoons

Charlie Hebdo has always been a controversial publication with a philosophy steeped in a somewhat anarchic anti-establishmentarianism. It has consistently targeted right-wing political groups and has satirised various aspects of the French establishment, including religion. Since 2006, moreover, it has targeted Islamic fundamentalism (though some would say it has targeted Islam as a religion and the sensitivities of all devout Muslims), inter alia, through the publication of various cartoons depicting the Prophet Muhammad. And of course, it has done so from within France – a country whose programme of republican secularism (laïcité) has become increasingly combative in recent years, in particular in its approach to Islam.7 It seems beyond doubt that the January 2015 attacks were in response to these latter publications.8 The key point to note is that not all the cartoons were the same or, more accurately, that the grounds for objecting to the various cartoons fell into two categories, depending on what precisely was at issue. As has been noted elsewhere, this differentiation is that which distinguishes blasphemy from defamation of religion (as the term was given meaning in the many United Nations resolutions dealing with the issue between 1999 and 2010).9

6

7 8

9

The survivors’ edition sold in excess of one hundred times more copies than would a typical edition. See Ingrid Melander and Tom Heneghan, ‘Charlie Hebdo “survivors” edition’ sells out in minutes’, available at www.reuters.com/article/2015/01/14/ us-france-shooting-idUSKBN0KN0RQ20150114. See, for example, Christian Joppke, Veil: Mirror of Identity (Cambridge: Polity, 2009), p. 33. According to reports, the gunmen, on leaving the area, shouted ‘We have avenged the Prophet Muhammad. We have killed Charlie Hebdo’; see ‘Terrorists strike Charlie Hebdo newspaper in Paris, leaving 12 dead’, New York Times, 7 January 2015. See Neville Cox, ‘Pourquoi suis-je Charlie? Blasphemy, defamation of religion, and the nature of ‘offensive’ cartoons’ (2015) 4:3 Oxford Journal of Law and Religion 343–367.

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Blasphemy involves the irreverent or scurrilous treatment of sacred things, and thus a blasphemy law protects the sacred and prevents irreverence (though obviously the degree and nature of irreverence which is required before the law steps in depends on the relevant law). In more liberal societies which retained blasphemy laws, it was the offense to the religious sensitivities of devotees caused by such irreverence which tended to be the stated concern of such laws.10 But in reality, it is arguable that this is of secondary importance in so far as a blasphemy law proper is concerned. Of primary importance is the societal determination that the publication is so morally outrageous to God and to the state that it should not be permitted. The UN defamation-of-religion resolutions, on the other hand, were not concerned with the sacred but rather with religion as a sub-community from which members found self-identification and by which they became identified by others. Only really comprehensible if understood to be referring virtually exclusively to Islam, the resolutions focused on speech which spread alleged untruths about particular religions through the process of negative stereotyping.11 In particular, they were concerned with Islamophobia and speech which carried the message (which is endemic in Western society) that Islam, as a religion, is either inherently linked with terrorism or indeed that it authorises or encourages its members to commit acts of terror in its name – and with the potential impact of such speech on the rights and interests of individual Muslims. For this reason, the type of speech which was the focus of the resolutions was not irreverence but rather quasi-xenophobic negative stereotyping of a social grouping. From the perspective of the Charlie Hebdo controversy, the cartoons which it published in relation to the Prophet Muhammad fell within these two categories. All of the cartoons were blasphemous (and this is not to 10

11

This was, for example, the position in the United Kingdom from roughly 1880 until the offence of blasphemy was abolished. See Bowman v.  Secular Society [1917] AC 406; R v. Bradlaugh (1883) 15 Cox CC 217; R v. Ramsay & Foote (1883) 15 Cox CC 23. Generally see Robert Calder Marshall, Lewd Blasphemous and Obscene (London: Hutchinson & Co., 1972), p. 169. See Human Rights Commission Resolutions 2003/4 (14 April 2003); 2004/6 (13 April 2004); 2005/3 (12 April 2005); Human Rights Council Resolutions A/HRC/RES 4/9 of 2007 (30 March 2007); A/HRC/Res7/19 of 2008 (27 March 2008) and A/HRC/Res 10/22 of 2009 (26 March 2009) and General Assembly Resolutions 60/150 (16 December 2005) A/ Res/60/150; 61/164 (19 December 2006) A/Res/61/164; 62/154 (18 December 2007) A/ Res/62/154; 63/171 (18 December 2008) A/Res/63/171; 64/156 (18 December 2009) A/ Res/64/156 and 65/224 (21 December 2010) A/Res/65/224.

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say that all would necessarily fall foul of a blasphemy law) in that they took the most sacred figure in Islam other than God himself and lampooned him (thus treating the sacred with irreverence). It is worth noting, in passing, that it was this irreverence which was key in so far as the outraged reaction was concerned. Much was made in the West of the fact that any visual representation of the Prophet is arguably prohibited by Islam, and it was occasionally implied that the objection which many Muslims had to these cartoons, or to the cartoons published in 2005 in Denmark’s Jyllands Posten newspaper, was rooted in this fact.12 This is simply untrue though. The objection was to the fact that a sacred figure was being belittled and made to look ridiculous. In other words, it was an objection to irreverence and thus to blasphemy. Other Charlie Hebdo cartoons, however, (like the twelve published in Jyllands Posteni) linked the Prophet to terrorism. In doing so, it is strongly arguable that they linked the Prophet’s teachings (viewed by Muslims as sacred and the divinely revealed word of God) with terrorism and, in doing so, they necessarily created the implication that the Islamic religion – and by logical extension its members – endorsed, authorised or justified global terror. Moreover, they fed into existing and widespread views about the connections between Islam and terrorism in that it is surely true that there is an endemic view (recently exemplified by Donald Trump’s suggestion that Muslims be refused entry to America and those already in America be forced to be visually identified as such) that there is such a link.13 Naturally, this viewpoint is not universal – and Donald Trump’s comments were, of course, roundly criticised14 – but it is sufficiently widespread to make life difficult for many Muslims in Western societies. In any event, what this means is that the Charlie Hebdo cartoons raise two conceptually different issues in so far as free speech is concerned. First (and in the context of the exclusively blasphemous cartoons), there is the question of whether it is legitimate for a society legally to restrict speech which so fundamentally goes against its most dearly held moral values that it can be regarded as grossly morally unacceptable within that society. Secondly (and in the context of the cartoons which were, 12 13

14

For a very clear analysis, see www.vox.com/2015/1/9/7517221/charlie-hebdo-blasphemy. See Rob Crilly, ‘Donald Trump on Muslims:  They’re not coming to this country if I’m President’, available at www.telegraph.co.uk/news/worldnews/republicans/12052760/ republican-debate-donald-trump-las-vegas.html. See Ken Bredemeier, ‘Donald Trump’s anti-Muslim demand sparks sharp backlash’, available at www.voanews.com/content/republican-candidate-trumps-anti-muslim-demandsparks-sharp-backlash/3093486. html.

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allegedly, defamatory of Islam by linking it to terrorism), there is the question of whether it is legitimate to restrict speech which negatively stereotypes a group or community within a society by implying that the values and actions of the entire group can be defined by reference to the illegal or anti-social actions of some members of that group. Clearly, it is the view of many Islamic states that both such restrictions are entirely legitimate – in that they have blasphemy and defamation-ofreligion laws on their statute books. In the next section, however, I argue that in fact many Western states would take a similar approach in principle (that is, they would support laws restricting profoundly immoral speech and speech which negatively stereotypes communities), albeit that their application of these principles would not cover blasphemy or defamation-of-religion laws.

2.3

Restricting Immoral and Xenophobic Speech within the Western Paradigm 2.3.1

Restricting Immoral Speech

There are two interconnected reasons why individuals or states might want to restrict ‘immoral speech’, namely (1) simply because of the perceived moral awfulness of the speech and (2) because of the impact of the speech on the sensitivities of others. They are interconnected because the reason why speech offends sensitivities is precisely because, in the eyes of the offended person, it is so morally awful. In other words, whenever speech or behaviour is restricted because of what Joel Feinberg terms its profoundly offensive quality,15 what is happening, in reality, is that the state is making a judgement as to its moral inappropriateness. Many, perhaps most people will have a sense that there are some things which are simply unsayable – that is, that their moral awfulness, of itself, warrants their suppression. At an individual level, most people will internalise this message and will simply refrain from saying things which, in particular contexts or in particular company, would be shocking and morally inappropriate. Indeed to some extent the triumph of the concept of political correctness is that it has reinforced this message so effectively

15

See Joel Feinberg, Offense to Others (Oxford:  Oxford University Press, 1985), pp. 50–97. Feinberg distinguishes what he terms ‘simple offense’ (that is, where one’s senses are targeted) from profound offense (that is, where one’s moral sensitivities are offended).

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in the context of what might be termed the ‘buzzwords of racism’,16 such that particular words are identified only by their first letter, because the word as a whole is regarded as being too immoral to be uttered. I have seen this phenomenon time after time when teaching courses on speech law. As part of a clinical exercise, I ask students to tell me what, in their views, are the most offensive words of which they can think. With a few variations, the inevitable two words that most students will choose are the ‘N’ word and the ‘C’ word, with the former being the more usual choice. I then invite students actually to say the word. But what is interesting is that, in such a clinical context, where there could be no question that utterance of the former indicates racism, the vast majority of students are either uncomfortable saying the word or, more usually, decline to do so – instead identifying it by its first letter. This suggests to me that Joel Feinberg was right when he concluded that all societies give certain words a magic quality such that their mere utterance is unacceptable. No doubt there are rational reasons why people dislike the word in that it speaks to Western revulsion at its history of slavery and its contemporary moral vision of racial equality and respect for human dignity. But what has happened is not merely that the word is dislikeable (in the same way as the background to the word is horrendous), but it is regarded as too (morally) awful even to say. And of course for persons for whom God or religion is the foundation and touchstone of their moral vision, it will inevitably be words connected with the sacred which will attract this magic quality which puts their use or abuse off limits. An individual declining even to say certain words simply because she regards them as being morally outrageous is one thing, but it is, of course, quite another thing for the state to put words or phrases or publications legally off limits because of their immoral quality. It is at the heart of the liberal vision that society prospers from diversity of opinion and hence that it should welcome ‘immoral’ speech (that is, speech which goes against prevailing moral standards) or at least should not seek to make it illegal, save where it causes harm to other people. There are, however, two points to make about this. First, as has been pointed out, it is very difficult to think of a Western society (except possibly the United States) which

16

It is arguable that the failure of political correctness is rooted in its lack of subtlety. Thus it hits at certain words which are perceived to be the representations of racism but (1) fails to deal with racism per se and (2) at its worst generates the inference that provided one does not use such buzzwords, one is not being racist.

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operates in accordance with this strict brand of liberalism,17 and it is notable that, for example, the International Covenant on Civil and Political Rights and the European Convention on Human Rights both envisage that freedom of expression can legitimately be restricted in the interests of public morals. Secondly, John Stuart Mill’s theory that there should be no censorship unless there is harm to others arising out of speech18 is easier to apply in secular Western societies in 2016 than ever before, simply because the public moral vision of those societies is now entirely connected with human rights and the protection of the vulnerable from harm. In other words, in these societies, speech only becomes immoral by reference to its impact on others. Nonetheless, as is discussed in what follows, even bearing this fact in mind, there are relatively unexceptionable contexts in which speech continues to be restricted by Western states and where the only genuine explanation for such restriction is that the speech is regarded as so profoundly immoral that it should not be permitted. As was mentioned, the immoral nature of particular speech links to but is not subsumed by the question of its offensiveness. As a Caucasian, after all, use by another person of the ‘N’ word to insult an African American does not directly target me, yet I find it offensive nonetheless, because it represents the public perversion of my deeply held moral standards. Thus certain speech is profoundly offensive because it is profoundly immoral (at either an individual or a societal level), albeit that the extent to which it is offensive or hurtful will play into and indeed may, in some circumstances, be the reason why it is regarded also as being profoundly immoral. There are, of course, strong arguments that the offensiveness of speech per se should never be a reason legally to prohibit it. In particular, so it is argued, a principle which allowed for speech to be restricted because it is offensive could lead to wholesale restrictions in that there is any amount of speech which individuals, by reason of their sensitivities and the diversity of their moral viewpoints could find offensive. Furthermore, opponents of any ‘offense principle’ point out that much offensive material (such as is contained in books, magazines and films, for example) tends to be relatively easily avoidable, and there should be no right to be

17

18

See, for example, Patrick Devlin, The Enforcement of Morals (Oxford:  Oxford University Press, 1965), p. 105. John Stuart Mill, On Liberty and Other Essays (ed. G. Himmelfarb, London:  Penguin, 1985), p. 14. See also A. R. Louch ‘Sins and crimes’ (1968) 43 Philosophy 163, 163–164 for the view that Mill is not saying that the law cannot enforce morality but rather that an act which does not cause harm is, to that extent, not immoral.

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protected from offense that one deliberately seeks out.19 It was, after all, on this basis that, historically, the censorship laws of many Western societies prohibited material which is now regarded as being of very significant literary and other value. Hence the rationale behind both the decision of the US Supreme Court in Texas v. Johnson20 that the offensiveness of an expression can never, of itself, justify the legal restriction of that expression and also the consistent approach of the European Court of Human Rights that at the essence of the right to freedom of expression is the freedom to shock, offend and disturb.21 These arguments break down to some extent, however, where what is at stake is not offense suffered by individuals but rather offense suffered by the community as a whole as a result of some utterly fundamental and core element of its public morality being undermined.22 After all, in such circumstances, the threat of wholesale restrictions on speech because of the diversity of viewpoints as to what is offensive simply does not arise and, in addition, what will matter to the society is the simple existence of the morally outrageous material and not its visibility or avoidability. In this regard it is worth remembering that whereas the ECtHR has concluded that freedom of expression must include the freedom to shock, offend and disturb, it operates under the auspices of a document which expressly permits speech to be restricted in the name of public morality. In other words, as a matter of ECHR law, it is prima facie legitimate to restrict material which is profoundly immoral from a national standpoint (and thus will be profoundly offensive at a community level), albeit that it will only be legitimate in practice provided that the restriction is proportionate to the aim. Indeed the terms of Article 10(2) of the convention, with its emphasis on the requirement that any restriction on free speech must be ‘necessary in a democratic society’, represent a useful methodology for 19 20 21

22

See Feinberg, ‘Offense to Others’, p. 32. Texas v. Johnson 491 US 397 (1989) See, for example, Castells v. Spain, Application no. 11798/85, judgment of 23 April 1992, para. 42; Oberschlick v.  Austria (No 2), Application no.  20834/92, judgment of 1 July 1997, para. 29; Handyside v. the United Kingdom, Application no. 5493/72, judgment of 7 December 1976; Bladet Tromsø and Stensaas v. Norway, Application no. 21980/93, judgment of 20 May 1999, para. 62; Sokołowski v. Poland, Application no. 75955/01, judgment of 29 March 2005, para. 41; Savitchi v. Moldova, Application no. 11039/02, judgment of 11 October 2005, para. 45. See generally Neville Cox, ‘Blasphemy, Holocaust denial and the control of profoundly unacceptable speech’ (2014) 62 American Journal of Comparative Law 739, and ‘The ethical case for a blasphemy law’, in Robert Fortner and Mark Fackler (eds.), The Handbook of Global Communication and Media Ethics (Chichester: Wiley-Blackwell, 2011) p. 263.

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avoiding the concerns about an offense principle which were raised in the previous section. After all, what is required is both that there genuinely be an element of public morals which is being undermined and also that any restriction on speech be proportionate to the perceived public morality concern that is being raised (which will permit inter alia the societal value of the material which it is sought to restrict, the extent to which the aspect of public morality which is at issue is genuinely and deeply held and the nature of the restriction itself to factor into the debate).23 As has been argued elsewhere, a good example of a law which targets speech because of its profoundly immoral nature (from a community perspective) is that which prohibits Holocaust denial in Germany, Austria and elsewhere.24 It is true, of course, that in the famous German case in which David Irving claimed that the decision to prohibit him from speaking to his Holocaust-denial theory violated his right to free speech under Article 5 of the German Basic Law, the Federal Constitutional Court ostensibly justified the law having regard to the right to dignity of Holocaust survivors and the families of victims of the Holocaust.25 But without in any sense downplaying the suffering of such people, the point is that the ‘offensive’ speech from Irving and others like him was so patently avoidable that it was frankly inconceivable that any such people would be exposed to it. Furthermore, the notion that the Holocaust did not happen is roundly and publicly rejected in Germany, and hence any hit to the dignity of individual victims arising out of the speech would be more than compensated for by the reaffirmation of the truth of their experiences on the part of the state generally. In other words, the Court justified the law by reference to a fiction, namely that there would be individual victims whose dignity would be actually threatened if a much-criticised revisionist historian was permitted to address a meeting of a right-wing political party. For this reason, it is strongly arguable that the better justification for the existence of the law relates not to the sensitivities of individuals but rather to the public morality of the state. The dignity of survivors and families is of course relevant, but this is because it is a fundamental principle of German public morality both that the dignity of all people be protected and also that the reality of the awfulness of the Holocaust not be

23

24 25

See also András Koltay’s chapter in this volume, ‘The Freedom and Restriction of Blasphemy’. Cox, ‘Blasphemy’, p. 752. Auschwitz Lie Case (Holocaust Denial Case), Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] 13 April 1994, 90 BVerfGE 241.

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airbrushed from German history. Holocaust denial is, therefore, uniquely repugnant to German public morality, and it is offensive not merely to those who hear it but also (in its existence) to the community as a whole, which, by prohibiting such speech is reasserting its most fundamental, public moral values. In other words, this is an example of speech being restricted because it is profoundly repugnant to a nation’s public morality and, in consequence, is profoundly offensive at a national level. And pivotally, whereas Holocaust-denial laws do not receive unanimous support throughout Europe, equally their existence (and thus the operation of the principle that a state may restrict speech which, in its view, is profoundly morally unacceptable) is not particularly controversial. What is key, in so far as the relative acceptability of laws against Holocaust denial is concerned, is that such speech genuinely is repugnant to German public morality and that this repugnance is comprehensible in so far as the secular, Western mindset is concerned. As is discussed later, the main reason why Islamic blasphemy laws are so criticised by many Western commentators is because the religious public morality on which they are based is incomprehensible to such people. For now, however, it is worth making the point that the principle that a state can restrict speech which is profoundly immoral at a community level clearly does not cover a situation in which the speech affected is not profoundly immoral in this sense. This was, I would suggest, the case when Ireland, in 2010, constructed a new statutory definition of blasphemy and thus, in the views of some, became a bizarre example of a liberal European state with a new blasphemy law. Some of this criticism of the Irish law was misplaced.26 Thus it was suggested by some commentators and indeed by some opportunists seeking to find justification for a far more draconian law in Pakistan27 that the Irish government had made a concerted decision to have a new blasphemy law. In fact, the change wrought by Section 36 of Ireland’s 2009 Defamation Act is arguably less significant than this, and it is certainly not the case to say that it ‘created’ the Irish crime of blasphemy. Rather, under Article 40(6)1 of the 1937 Irish Constitution,28 it is provided that the publication 26

27

28

See Tarlach McGonagle’s chapter in this volume, ‘A Draft Obituary for the Offence of Blasphemy in Ireland’. For analysis see ‘An evil that resonates’, www.economist.com/blogs/erasmus/2014/10/ blasphemy-pakistan-and-ireland; ‘Pakistan pushes Irish blasphemy law language at the UN’, available at www.centerforinquiry.net/blogs/entry/pakistan_pushes_irish_blasphemy_ law_language_at_the_un/. Generally see Neville Cox, Blasphemy and the Law in Ireland (Lampeter:  Edwin Mellen Press, 2000); Paul O’Higgins, ‘Blasphemy in Irish law’ (1960) 23 Modern Law Review 151.

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or utterance, inter alia, of blasphemous material is a crime which shall be punishable by law. In other words, the Constitution does not merely say that a blasphemy law is permissible, it actually requires its existence. As such, there must have been a blasphemy law in force since 1937 at least, albeit that it was never enforced nor fleshed out.29 The 2009 Defamation Act simply gave statutory definition to the constitutional crime and did it in a way which arguably rendered the crime unenforceable. After all, not merely is it the case that the crime requires both that the material published be grossly abusive or insulting in relation to sacred matters ‘thereby causing outrage among a substantial number of the adherents of the religion’ and also that the publisher ‘intends by the publication or utterance of the matter concerned, to cause such offence’ but, in addition, the section provides that ‘It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates’. It is virtually impossible to think of any material which could fulfil the criteria of the offence which could not be defended by reference to its literary, artistic, political, scientific or academic value, and thus it is highly unlikely that the ‘new’ Irish crime will have any impact whatsoever in practice. Despite this, however, there was (and continues to be) a very vocal and widespread reaction against the blasphemy law by many Irish people.30 Given how muted the law was in its practical effect (in that it is very difficult to conceive of any publication that might actually fall foul of the law), it seems obvious that the actual objection was to the symbolic effect of having a blasphemy law on the Irish statute books. It was claimed that blasphemy laws were inherently inappropriate and anachronistic in that they privileged one ideology and the value systems of devotees of that ideology at the expense of the right to freedom of expression of everyone else. But this is, of course, exactly what laws against Holocaust denial or

29

30

In Corway v.  Independent Newspapers [1999] IESC 5; [2000] 1 ILRM, 426, the Irish Supreme Court ruled that the constitutional reference to blasphemy eluded definition and hence, in the absence of legislative clarification, it could not be enforced. Section 36 of the Defamation Act is the legislative response to this judicial request for clarification. See, for example, ‘Blasphemy Law needs to be repealed’, available at www.irishtimes.com/ opinion/blasphemy-law-needs-to-be-repealed-1.2068942. In November 2013, the Irish Constitutional Convention (a government-appointed body made up of politicians and citizens) recommended inter alia that a referendum be put to the people proposing the abolition of the constitutional reference to blasphemy. Despite some suggestion in 2014 that this would, in fact, happen, no such referendum has occurred.

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hate speech do – albeit that the ideology being privileged by such laws is not religious but is human rights based. And critically, there was no suggestion that critics of the Irish blasphemy law were also opposed to these kinds of laws. For this reason, it can be strongly argued that what these critics objected to was not the notion that the right to free speech might be restricted in order to prevent morally unacceptable speech but rather to the proposition that blasphemous speech could be regarded as grossly morally unacceptable as a matter of the fundamentals of twentyfirst-century Irish public morality. In other words, the principal objection to the new law was that it misrepresented the nature of Irish public morality.31 To an outside observer who may view Ireland as a devoutly Roman Catholic country, this may seem surprising. But the reality is that the Ireland of 2009 (and still more of 2016) is increasingly post-Catholic and has witnessed (and continues to witness) a backlash of intolerance against manifestations of Roman Catholic social teaching. Consequently, whereas no doubt many religious devotees in Ireland would continue to be outraged at the publication of blasphemous material, this is not something that would outrage Irish public morality. And as a result, the existence of a blasphemy law in the modern, secularised Ireland can rightly be criticised for enforcing a moral vision which is not the public moral vision. In summary, the principle that speech may, potentially, be legally restricted if it is genuinely profoundly immoral and profoundly offensive at a national or community level is one upon which a number of relatively uncontroversial laws are based in contemporary Western societies. But pivotally, it is on this basis that blasphemy laws exist, for example, in modern Islamic countries, as the law seeks to prohibit speech which, in those societies, is seen as profoundly immoral. This is not, of course, to justify the manner in which these laws operate32 nor indeed to justify even their existence. It is merely to say that the objection that many (though obviously not all) Western commentators have to such laws cannot be in relation to the principle underpinning such laws but must link to the obvious factual reality that there is a difference in the respective public moralities

31

32

See, for example, Padraig Reidy, ‘Who asked for Ireland’s Blasphemy Law?’, available at www .theguardian.com/commentisfree/libertycentral/2009/jul/09/ireland-blasphemy-laws. For the suggestion that the procedural abuses connected with Pakistan’s draconian blasphemy law are stand-alone wrongs that would be unjustifiable in the context of any law but do not, of themselves, mean that a blasphemy law is an inherently bad thing, see Cox, ‘Pourquoi suis-je Charlie?’, 348 et seq.

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of secularised, Western, liberal democracies on the one hand and Islamic states on the other.

2.3.2 Restricting Xenophobic Speech At the heart of the defamation-of-religion resolutions passed by the United Nations between 1999 and 2010 was a concern with the negative stereotyping of an entire religion33 (and, as has been pointed out, the resolutions only really make sense when understood as referring exclusively to Islam)34 by reference to the behaviour of a few members. In particular, the resolutions refer to the practice of linking a religion with terrorism. They pointed to the links between racial and religious xenophobia and argued that the two were indistinguishable in principle.35 And they argued that this kind of negative stereotyping of religions posed a threat to global and social harmony and also had the capacity to generate a number of threats to the rights of individual members of that religion – in areas such as discrimination generally, threats to property and interferences with privacy through, for example, heightened racial profiling.36 Importantly, the resolutions did not deal with criticism either of Islamic teaching (or that of any other religion) or of the political systems in Islamic states. Neither did they express any concern with blasphemy per se (that is, the irreverent treatment of the sacred). Their concern was exclusively with the protection of the reputation of a global community by which members are identified, both by themselves and others, from 33

34 35

36

See Human Rights Commission Resolutions 2003/4 (14 April 2003); 2004/6 (13 April 2004); 2005/3 (12 April 2005); Human Rights Council Resolutions A/HRC/RES 4/9 of 2007 (30 March 2007); A/HRC/Res7/19 of 2008 (27 March 2008) and A/HRC/Res 10/22 of 2009 (26 March 2009) and General Assembly Resolutions 60/150 (16 December 2005) A/Res/60/150; 61/164 (19 December 2006)  A/Res/61/164; 62/154 (18 December 2007) A/Res/62/154; 63/171 (18 December 2008)  A/Res/63/171; 64/156 (18 December 2009) A/Res/64/156 and 65/224 (21 December 2010) A/Res/65/224. See Cox, ‘Pourquoi suis-je Charlie?’, 358. See, for example, General Assembly Resolutions 63/171 (2008) A/Res/63/171, 64/156 (2009) A/Res/64/156 and 65/224 (2010) A/Res/65/224 accepting the general recommendation XV 42 of the Committee on the Elimination of Racial Discrimination (Official Records of the General Assembly, Forty-eighth Session, Supplement No. 18 (A/48/18), Chapter VIII Section B to the effect that the accepted normative proposition that international freespeech law does not prevent restriction of speech constituting racial hatred also applied where religious hatred was at issue. For consideration of the fact that whenever the resolutions call for specific laws to be enacted it is always in the name of protecting individual rights, see Cox, ‘Pourquoi suis-je Charlie?’, 362 et seq.

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statements which, so it is argued, were insidious, factually untrue and increasingly mainstream in the Western world. It is surely true to say that the factual issue on which the resolutions primarily focused (that there is an increasing mainstreaming of the message linking Islam as a whole to terrorism) is a reality – and one which has become even more endemic since the emergence of Islamic State of Iraq and the Levant and, especially, since the horrendous attacks on Paris in November 2015. Donald Trump’s various comments about what he would do in relation to Muslims during his presidential election campaign rightly received a good deal of condemnation. Nonetheless, they also spoke to a perception shared by millions of Westerners – namely that Muslims are not to be trusted because their religion commits them to engage in acts of holy war against all infidels. Indeed the fact that many commentators regarded publication of those cartoons which link Islam with terrorism as contributing meaningfully to public debate indicates precisely how mainstream this viewpoint is. It would, after all, be inconceivable that an equivalent cartoon in relation to another societal grouping (one which, for example, implied that there was an inherent link between homosexuality and paedophilia) would receive the same degree of tacit approval or would be seen as contributing meaningfully to an important public debate – or indeed that people generally would express a sense of solidarity with the work of its publishers. In other words, the concern of the Organisation of Islamic Co-Operation, which was responsible, through its members, for proposing the resolutions, was with a most insidious form of xenophobia which, in twenty-first-century Western society, was genuinely posing real problems for Muslims around the world. Critics of these resolutions will, of course, argue that so-called defamation of religion is conceptually distinguishable from, for example, racism or homophobia. There is also an argument that, unlike the suggestion that all homosexuals are paedophiles, which is manifestly untrue, it is at least arguable that Islamic law – which is, of course, open to a myriad of interpretations – can be seen as authorising acts of terrorism and hence that the message in these cartoons is true or at least debatable. Both of these arguments will be addressed shortly. But for present purposes, the point is that, at least in principle, the defamation-of-religion resolutions execute a principle that is well known and relatively uncontroversial in so far as Western societies are concerned – namely that it may be legitimate to restrict freedom of speech where the speech in question negatively and inaccurately stereotypes an entire group and thus has the capacity to cause harm to an individual member of a group. Hate speech laws are, after

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all, common throughout Europe37 and go well beyond the concept, contained in Article 20 ICCPR of targeting speech which causes incitement to hatred. Indeed, it is notable that the European Court of Human Rights declared inadmissible a claim by a British right-wing political activist that his right to freedom of expression was compromised by his conviction for hate speech arising out of a poster which he had published showing the World Trade Center in flames and calling for British Muslims to be expelled.38 It is further notable that, in the aftermath of the Charlie Hebdo attacks in January 2015 and the appalling and related attack on a Kosher supermarket in the same week, the French president, while marching in apparent solidarity with the work of Charlie Hebdo, also announced that France would be tightening its laws against anti-Semitism.39 And, in the opinion of many, such laws against hate speech are not merely legitimate but morally and, depending on how one views international law, legally necessary. In other words, if we concede both that one’s religion can operate in the same way as one’s skin colour or sexual orientation in terms of providing a grounding for the operation of a hate speech law and also that it is not factually true that there is an inherent link between Islam and terrorism, then, in light of the reality that Muslims do undergo rights violations as a result of the mainstreaming of this message in Western society, it is surely arguable that laws against defamation of religion of the kind envisaged by the United Nations resolutions exist on exactly the same principle as do Western-style hate speech laws. These are, however, very significant concessions, and it is to them that we now turn.

2.3.2.1 The Link between Religion and Race Many people will argue that the principal reason why a defamation-ofreligion law is different to a law against hate speech goes to the nature of religion itself. In particular, it is often suggested that the essence of hate speech is that it targets people in respect of immutable characteristics (such as gender, nationality, skin colour and sexual orientation), but one’s religion is not an immutable characteristic but something which is 37

38

39

For consideration of the nature and incidences of hate speech laws throughout Europe, see www.legal-project.org/issues/european-hate-speech-laws. Norwood v. the United Kingdom, Application no. 23131/03, decision as to admissibility of 16 November 2004. See Lori Hinnant, ‘France arrests 54 in hate-speech, anti-Semitism crackdown’, available at www.theglobeandmail.com/news/world/france-arrests-54-in-hate-speech-anti-semitismcrackdown/article 22442506/.

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voluntarily chosen.40 Hence, it is argued, a law which protects a religion and its members from negative stereotyping is conceptually different from a hate speech law. As has been discussed elsewhere,41 however, there are two responses to this. First, it is far from clear that one’s religious identity is not actually an immutable characteristic. After all, it is clearly literally possible to change one’s nationality, ethnicity or gender, and it may even be possible to change one’s skin colour or sexual orientation; but this does not mean that these characteristics are not immutable for the purposes of hate speech laws. This is because what is relevant in terms of assessing immutability is not whether it is literally possible to change a characteristic but the extent of the burden that would be required for such a change to occur.42 Hence an immutable characteristic is one which cannot be changed without an excessive burden being imposed on the relevant individual. But there are strong arguments (which may be incomprehensible to a secularised, postreligious society or to individuals who have had no difficulty in changing or renouncing the religion of their birth) that for the religiously devout, it may be incredibly burdensome to alter religious identity. In the first place, for many religious devotees, membership of their religion entails membership of the universal and omnipresent kingdom of God. In other words, at this supernatural level, it is simply impossible to ‘change religion’ because there is nowhere in the universe that one can hide from God. Secondly, for many (and the Islamic world is the paradigm example of this), religious identity links to cultural, societal and family affiliations. In other words, to renounce one’s family may entail renouncing all of these factors as well – and this may involve a step which is so excessively burdensome that it is beyond the capacity of many. Thirdly, and perhaps most importantly, all of the monotheistic religions inform their members (a) that they are repositories of truth, (b) that they are the only way to find God and (c) that one’s eternal destiny depends

40

41 42

See, for example, Leonard Leo, Felice Gaer and Elizabeth Cassidy, ‘Protecting religions from “defamation”: A threat to universal human rights standards’ (2011) 34 Harvard Journal of Law and Public Policy 769, 782, L. Bennett Graham, ‘Defamation of religions: The end of pluralism’ (2009) 23 Emory International Law Review 69, 78. Cox, ‘Blasphemy’, 760 et seq. In Islam v.  Secretary of State for the Home Department, Regina v.  Immigration Appeal Tribunal and Another, ex parte Shah [1999] 2 AC 629, the House of Lords saw immutability as existing in relation to a ‘characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not to be required to be changed’.

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on the extent to which one accepts and adheres to the teachings of that religion. What this means for those who are devout followers of a religion – even those with doubts about its veracity – is that there is a huge amount on the line if one is to renounce it. And in psychological terms, this means that the decision to do so may, in many cases, be excessively burdensome. For all these reasons, it is certainly arguable that it is fully legitimate to regard religious identity as an immutable characteristic for the purposes of this discussion or at least that the conclusion that one can simply renounce one’s religion as a voluntary choice and, hence, that one should not be protected in respect of one’s religious identity is hugely simplistic in nature and exhibits a complete lack of understanding as to the nature and impact of genuine religious belief. Secondly, and even if religious identity is deemed not to be an immutable characteristic, it is far from clear why this should be so relevant for the purposes of assessing whether a law against defamation of religion is or is not equivalent in principle to a Western-style hate speech law.43 After all, there are many immutable characteristics (hair and eye colour, for example) which are not protected by hate speech laws. Furthermore, it is notable that hate speech laws, in their operation, will tend to protect some people more than others in relation to identically immutable characteristics. Thus African Americans will be protected more than Caucasians, women more than men, and homosexuals more than heterosexuals (for example). I would suggest that the explanation for these two things is that what hate speech law does is not blindly to protect people in respect of all immutable characteristics but rather to protect certain people (1)  in relation to defining characteristics (that is, characteristics which they use to define themselves and by which they are defined by others) and (2)  in relation to those defining characteristics which have, historically, been used as a basis for disadvantaging a group – and especially where that group is a minority in the country whose hate speech laws are at issue. Thus African Americans have suffered disadvantage as a result of skin colour, whereas Caucasians have not, and this is the reason why, intuitively, the law seeks to prohibit hateful speech in relation to African Americans. If this is the case – that hate speech laws exist to protect people in relation to defining characteristics in respect of which they have suffered historical disadvantage – then this logic implies emphatically to Muslims

43

Cox, ‘Blasphemy’, 760.

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(and of course, depending on the context, to persons of other and all faiths). In the first place (and whereas, no doubt, there are many people living in the Western world who are only nominally Muslims – albeit that they may still face the brunt of the endemic nature of the message that Islam is linked to terrorism), for devout Muslims, it is their identity as children of God and members of the global Muslim community (ummah) that provides them with their primary point of self-identification.44 Furthermore, membership of Islam is the primary means by which people in Western society identify Muslims whether they are devout or not. In other words, for Muslims (and indeed for devout members of many other if not all religions), their religion will be their primary point of self–identification and, when they live in Western societies and are readily recognisable as not having the traditional, outward characteristics of members of that society, it is also the primary means by which they will be identified by others. Secondly, it is very strongly arguable that Muslims have suffered and continue to suffer disadvantage in relation to their status as Muslims, certainly in so far as Western societies are concerned. Historically, after all, the forces of Christendom and Islam were caught up both in a battle for ideological supremacy and also, occasionally, in military conflicts, and it became commonplace for the former to seek to belittle the latter by linking it to violence and by characterising it as evil.45 In more recent times, the colonisation of Islamic states by Western powers (and especially, perhaps, the French colonisation of Algeria) was reinforced by the view that it was in the interests of people whose countries had been taken over to be enlightened in their backward ways by modernising, Western values (witnessed, for example, in the French efforts compulsorily to ‘unveil’ Islamic women in Algeria).46 This process involved an inevitable effort to proclaim the superiority of Western values over those of the peoples who were being conquered. This mindset has arguably continued with the surge of

44 45

46

See Cox, ‘The clash of unprovable universalisms’, 319. Amongst many others, see John Esposito, Islam the Straight Path (Oxford: Oxford University Press, 2011, 4th edn), especially at p. 63 et seq. See generally John Esposito and Ibrahim Kalin, Islamophobia (Oxford: Oxford University Press, 2011); Nathan Lean, The Islamophobia Industry (London: Pluto Press, 2012), and Mustafa Akyol, Islam Without Extremes (New York: W. W. Norton & Co., 2011). See Sahar Amer, What Is Veiling? (Chapel Hill:  The University of North Carolina Press, 2014), p.  88; Joan Wallach Scott, The Politics of the Veil (Princeton:  Princeton University Press, 2007), at 50 et seq. As she notes (at p. 67), ‘if for colonizers the veil was emblazoned with the stigma of ethnicity, for the colonized it became an antidote to domination’.

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immigration of Muslims into Western Europe and the United States and, in particular in recent times, with the emergence of the insidious and highly damaging message that there is an inherent link between Islam and terrorism and the concomitant suspicion which many Westerners have of all Muslims. And all of these facts, historical and contemporary, now resound in breaches of the rights of individual Muslims in Western society. In other words, for Muslims living in the West, their religious identity has been and continues to be something in respect of which they have been historically disadvantaged and continue to be disadvantaged. For these reasons – because devout Muslims are primarily identified by themselves and others by reference to their religious identity and have suffered and suffer disadvantage on this basis – it can be concluded that even if religious identity is not an immutable characteristic (though it is argued that it is) there are still good reasons why it is inconsistent to uphold the legitimacy of hate speech laws but to deny that they can apply to speech which negatively stereotypes an entire religion through untrue statements and which, in doing so, has the capacity to generate harm for members of that religion.47 Indeed it is arguable that a good deal of the material which might be caught by the UN defamation-of-religion resolutions would also be caught by various European hate speech laws.

2.3.2.2 The Link between Islam and Terrorism Naturally, however, as has been discussed, in order for something to constitute hate speech which might be restricted by law, it is necessary that what is said also not be true. In other words, to take the issue at the heart of the defamation-of-religion resolutions – the attempts to draw an inherent link between Islam and terrorism – whether or not this might be akin to hate speech, it cannot be so if what is said is true. And many will point to the emergence of Islamic State of Iraq and the Levant and the attacks, for example, in Paris in November 2015 and will argue that whether or not we may like to admit it, there does appear to be something in the way of a link between Islam and terrorism. It is not possible in a chapter primarily dealing with a different topic fully to examine this issue. Equally, a number of points are worth making about it. First, there are in excess of 1.5 billion Muslims in the world today.48 This being the case, and without in any sense gainsaying the awfulness 47

48

See Robert A. Kahn’s chapter in this volume, ‘Rethinking blasphemy and anti-blasphemy laws’. See www.pewforum.org/2014/04/04/global-religious-diversity/.

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of the activities of groups like Al Qaeda, Boko Haram or ISIL, there are surely far fewer incidences of acts of ‘Islamic terrorism’ than would be the case if terrorism was actually authorised or required by Shari’a law. Secondly, acts of terrorism committed in the name of Islam are inevitably followed by statements from Islamic leaders and indeed from the Organisation of Islamic Co-Operation to the effect that such actions are, in fact, condemned rather than authorised by the Qu'ran. In other words, even if it can be concluded that there are passages in the Quran which might be interpreted by radical groups as endorsing terrorism, it must also be conceded that this interpretation is not adopted by anything more than a small minority of Muslims; and just as it would be wrong to suggest that Christianity inherently authorises white supremacy simply because this is the interpretation adopted by the Ku Klux Klan, so also it is surely wrong to suggest that because a few radicals seek justification for their actions within the Quran therefore it can be concluded that this is what Islam as a whole says. Thirdly, it is worth making the point that there is a strong argument that the view that terrorism is authorised by Islamic law can only be based on a highly decontextualized and unharmonious interpretation of the sources of Shari’a law, namely the Quran and Sunnah.49 It is true that orthodox Islamic law sees the world as divided into two houses, Dar Al-Islam (the house of Islam) and Dar al-Harb (the house of war), and it is also true that there is a duty on all Muslims to engage in jihad in the cause of Islam.50 But pivotally, jihad (albeit that it has come to be associated with use of force) actually means struggle and regularly denotes a peaceful struggle, both with oneself and with those around one, to advance the cause of Islam – through prayer, charity and persuasion.51 And of course the desire to ‘convert the world’ is common to most religions and ideological visions – including the secularised, human rights–based vision. The Quran clearly does, on occasion, reference the concept of forceful jihad, both in self-defence and as an offensive measure. But these references tend to arise in revelations purportedly received by Muhammad either when defending the fledgling Muslim community in Medina from 49

50

51

See, for example, Parvez Ahmed, ‘Terror in the name of Islam:  Unholy war, not jihad’ (2006–2008) 39 Case Western Reserve Journal of International Law 759, 770. See generally Bernard Lewis, The Crisis of Islam (New York:  The Modern Library, 2003), p. 29 et seq. See Majid Khadduri, War and Peace in the Law of Islam (Clark:  The Lawbook Exchange Ltd, 2006); Manisuli Ssenyonjo, ‘Jihad re-examined:  Islamic law and international law’ (2012) 10:1 Santa Clara Journal of International Law 3.

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attack or when returning, victorious, from Medina to Mecca. In other words, it is entirely possible to see these revelations not as having general and ongoing application for all Muslims but rather as being specific to the time and place in which they were being revealed. And of course, it is well worth noting that the Jewish Old Testament is full of equivalent references, with the common theme being that God is on the side of his people and wishes them to use acts of violence (in that particular context) to expand His kingdom for them.52 In other words, if the existence of the verses in the Quran means that Islam is an inherently violent religion, then it must fairly be conceded that exactly the same logic must apply to Judaism. What marks the Islamic approach to violence out, however, is the express constraints which it imposes on the use of force, and it is this more than anything else which provides the most important argument that Islamic law does not, in fact, countenance terrorism. Thus there is a requirement that innocent non-combatants (including women and children) are not targeted,53 and in addition, that, before attacking enemies, the forces of Islam should offer them the options of either submitting to Islam or paying a poll tax.54 In other words, surprise terrorist attacks, such as those which took place in New York on 11 September 2001 or in Paris on 13 November 2015 run directly contrary to Shari’a. Of course, this is not the interpretation which is given to Shari’a by those who do commit acts of terrorism – and many such people are motivated by a range of political and economic factors as well as by religious beliefs. But the alternative and more mainstream view of what Shari’a requires – a view which finds expression in a good deal of scholarship – has been largely overlooked in the West in favour of the far more simplistic approach – manifested in the Danish cartoons – of concluding that because some radicals commit acts of terrorism in the name of Islam, this must mean that Islam itself is inherently linked to terrorism.

52

53

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See, amongst many examples, 2 Kings 19:35, in which it is recorded that ‘the angel of God went out and struck down a hundred and eighty five thousand men’ in the camp of the Assyrian army that was threatening the territory of Judah. It is reported that, having seen a woman lying dead in the context of a battle, the Prophet said, ‘she was not fighting, how came she then to be killed?’ For discussion, see www .islam101.com/rights/hrM4.htm. Thus the Qur’an states of those who stand in the way of the advancement of Dar al Islam, ‘So if they remain neutral regarding you … Allah alloweth you no say against them’. Sura 4:90. See also Majid Khadduri, The Islamic Law of Nations: Shaybani’s Siyar (Baltimore:  John Hopkins Press, 2001).

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2.3.3 Summary In summary, for all these reasons, it can be argued that the principles underpinning both blasphemy and defamation-of-religion laws also underpin relatively uncontroversial laws in many Western societies. A blasphemy law seeks to restrict speech which, from the standpoint of public morality, is regarded as so profoundly immoral and profoundly offensive that it is unsayable – and Germany’s Holocaust-denial law is an example of an accepted Western law based on this principle. A defamation-of-religion law seeks to prevent speech which, through inaccurate negative stereotyping of a religion, is likely to generate harm for individual members of that religion – which is precisely the principled basis for Western-style hate speech laws.55 What this indicates is that the opposition of many Western commentators (which found full voice in the aftermath of the Charlie Hebdo attacks) to any constraints on speech which is blasphemous or defamatory of religion is probably not an opposition to the principles on whose basis blasphemy or defamation-of-religion laws operate but must be based on something else. In the final section of this chapter I argue that, in fact, the opposition in question is based on the differences in the content of the respective public moralities of secularised Western states and those Islamic states which find their guiding moral principles in the teachings of Islam and on the tendency of Western, secular liberal societies to assume that their views on things (including their overarching moral visions) are inevitably right and thus that an alien viewpoint must also be wrong.

2.4

Public Moralities and Clashing Universalisms

At the time when the United Nations was promulgating its defamation-ofreligion resolutions, a number of commentators suggested that what was happening represented an interference with accepted global free-speech norms.56 Equivalent comments tend to be made by similar commentators 55

56

In many Western states, the principles underpinning blasphemy and defamation of religion laws will, of course, elide, in that it is only this kind of hate speech which could be regarded as sufficiently profoundly immoral from a public morality standpoint as to warrant its suppression. Generally see Robert Blitt, ‘Should new bills of rights address emerging international human rights norms? The challenge of “defamation of religion”’ (2010–2011) 9 Northwestern Journal of International Human Rights 1, 13 et seq.; J. Foster, ‘Prophets, cartoons and legal norms: Rethinking the United Nations defamation of religion provisions’ (2009) 48 Journal of Catholic Legal Studies 19, 30 et seq.; Jeroen Temperman, ‘Blasphemy,

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about the existence, anywhere, of national blasphemy laws – indeed this is the basis of the conclusion of the UN Human Rights Committee in General Comment 34, that a blasphemy law can only be valid if it is, in effect, a law against incitement to hatred. And of course, in the aftermath of the Charlie Hebdo attacks, it was suggested that any constraints (legal as well as military) on the freedom to publish cartoons of the kind that appeared to incite the attacks represented an attack on international freespeech values.57 As has been mentioned, however, there is no particular textual basis for the argument that a law which restricts irreligious speech either because a state regards it as profoundly immoral (a blasphemy law) or because it negatively stereotypes an entire religion and thereby generates harm or potential harm for members of that religion (a defamation-of-religion law) violates global free-speech norms. As we have seen, Article 19 ICCPR and Article 10 ECHR make it clear that speech can be restricted for reasons beyond merely seeking to protect the rights of others – including in the name of public morality. And if (as in many Islamic states) it is Islamic teaching which is the root and source of all public morality, it is difficult to see why a blasphemy or defamation-of-religion law could not be justified on this basis. However logical this proposition, it is one which many in the West tend to resist. Clearly it is not possible to reject the proposition that the relevant conventions permit interferences with rights in the name of public morals (in that this is textually prescribed), so instead an objection is raised to the notion of a direct link being drawn between the orthodox religion of the state and its public morality. Thus the UN Human Rights

57

defamation of religions and human rights law’ (2008) 26 Netherlands Quarterly of Human Rights 517, 530; Javaid Rehman and Stephanie Berry, ‘Is “defamation of religions” passé? The United Nations, Organisation of Islamic Co-Operation and Islamic State practices: Lessons from Pakistan’ (2012) 44 George Washington International Law Review 431, 434; Rebecca Dobras, ‘Is the United Nations endorsing human rights violations? An analysis of the United Nations’ combating defamation of religions resolutions and Pakistan’s blasphemy Laws’ (2009) 37 Georgia Journal of International & Comparative Law 339, 350; L. Bennett Graham, ‘Defamation of religions: The end of pluralism’ (2009) 23 Emory International Law Review 69, 69; Maxim Grinberg, ‘Defamation of religions v.  freedom of expression: Finding the balance in a democratic society’ (2006) 18 Sri Lanka Journal of International Law 197, 200; Caleb Holzaepfel, ‘Can I  say that? How an international blasphemy law pits the freedom of religion against the freedom of speech’ (2014) 28 Emory International Law Review 597, 597, 616. See, for example, ‘The Guardian view on Charlie Hebdo’ and ‘Charlie Hebdo and free expression’.

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Committee,58 in dealing with freedom of conscience, observed that ‘the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition’. There are two points to make about this proposition, which is often cited by liberal commentators. First, this comment is made in relation to freedom of conscience, and obviously different considerations may arise where the protection of freedom of expression under Article 19 ICCPR is at stake. Secondly, though, it can be argued that the proposition is both internally inconsistent and also takes a very Westrocentric, secularised view of what public morality should be about. First, the hypothesis underpinning the proposition appears to be that a state cannot offer up its religious tradition and say that it is in fact, its public morality, because by definition morality is a multi-sourced thing. But if this factual proposition (that morals must be drawn from a multiplicity of sources) is correct, and the conclusion which the committee draws from it (that public morals as a ground for restricting rights cannot, therefore, be based on a single religious tradition) is consistent and logical, then it is entirely unclear why this rationale should relate only to single religious traditions rather than encompassing all types of traditions including secular, liberal traditions. So, for example, it must presumably mean that a public morality exclusively based on a secularist, human rights ideology cannot ground a limitation on the freedom of conscience of a racist or a homophobe on the basis that that ideology represents the viewpoint of merely one amongst a myriad of traditions and hence does not meet the criteria for ‘public morals’. Yet Western commentators who object to a religiously based public morality do not appear to have an equivalent concern with a humanist public morality, a fact which is of huge significance as is considered in what follows. Secondly, any restriction on a right in the name of public morals will invariably involve a situation in which an actor is being restricted in doing what s/he wants (and, presumably, in circumstances where s/he views the relevant action as morally acceptable) because the state, on its view of things, regards the action as so morally unacceptable that it should not be allowed to happen. In other words, the situation involves a clash between

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Human Rights Committee, General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion (Art. 18), UN Doc. CCPR/C/21/Rev/Add.4, 1993, para. 8.

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two competing moral viewpoints with the state, ultimately, privileging its moral approach and, necessarily, undermining that of the actor. What this means is that there can be no question of a public moral vision which accommodates all religious, social or philosophical traditions – because it necessarily involves a subjective choice between those visions which it perceives as right and those it perceives as wrong. That being the case, it is difficult to see why, given that such a choice has to be made where the ‘public morals’ ground for restricting rights is at issue, it is necessarily problematic that the morality which is eventually chosen is based on one tradition only and rejects all others rather than some others. After all, as was mentioned, this is precisely the logic on which the human rights movement operates – namely that its view of things is the only acceptable one and that all other competing visions must be wrong and should, as such, be rejected. Finally, and most importantly, this proposition from the Human Rights Committee speaks to a particular vision based on pluralism, relativism and non-universalism. But critically, what it does not speak to is the concept of morality itself, which represents a determination, however controversial, non-pluralist or unpopular, of the empirical difference between right and wrong. There is a strange irony, of course, in the fact that the Committee simultaneously demands that rights are universal (based on the rhetorical presumption that this flows inexorably from a purportedly universal conception of the nature of human existence) while also (in the earlier comment) demanding that, in their construction of public morality, states should not operate on the basis of a restrictive but avowedly ‘true’ perception of what morality is. But more importantly, the Committee completely misses the essence of what morality actually is for many people and many states – namely a perception of objective truth which cannot (by definition) be altered by virtue of the existence of competing creeds, ideologies or value systems. Morality, in other words, is about what an individual or state sees as right and wrong not about the answers which other traditions or societies give to these complex questions. And of course, in many states (and the Islamic states are the most obvious examples), the purportedly objective public morality which they have found does derive exclusively from one religious tradition. After all, for such states, God (as revealed in that religion) is truth and is the source of all morality, and any dilution of His law by reference to other traditions would be counterintuitive and a move towards falsehood. This is significant in that what the limitation clauses in the ICCPR do is to afford a signatory state the capacity to resist the full impact of the

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rights contained therein having regard to matters which are important to that state. Some matters which are important to the state (public health, order, rights of others and so on) will almost inevitably be important to all states. But morality is different precisely because, not being objectively provable, it will vary as between different states. In other words, the ‘public morals’ grounds for limiting rights are afforded to individual states so that they can limit liberty where they regard the exercise of that liberty as being morally wrong. They are not, therefore, restricted in their application to circumstances where the relevant exercise of liberty is regarded more generally as being wrong. And it is for this reason that the Human Rights Committee’s factual conclusion (that there are a plethora of different moralities deriving from a variety of ideological sources), far from leading to the view that no state should be able to assert a moral vision based on only one tradition should, instead, have led to the conclusion that all moral visions – even those which are uncomfortable to the forces of Western, liberal secularism – should be respected as such; even if they are rooted in religion and even if they might be used to restrict rights in circumstances that would not occur in a society whose moral roots are different. This, I think, is the key point in so far as the whole debate about blasphemy and defamation-of-religion laws is concerned. We have concluded that it is not uncommon, even in a secularised, Western state, for speech to be restricted because it is regarded as profoundly immoral from a public morality standpoint. Furthermore, such a prospect is textually legitimised within the ICCPR and ECHR. Of course blasphemy laws have no place in a secularised state (and could not be justified under the public morality exceptions in Article 19 ICCPR and Article 10 ECHR), because (as was discussed earlier in the context of the Irish law) blasphemy is not profoundly immoral for a state whose public moral vision is based on secularity rather than on religion.59 But equally obviously, blasphemy is profoundly immoral in many Islamic societies, where preservation of reverence for the sacred is at the apex of the public moral vision. Therefore, in order to regard blasphemy laws as inherently invalid or inherently disrespectful of human rights, it is necessary to demonstrate that the public moral vision on which they are based is inherently unacceptable or wrong. 59

Paradoxically, a defamation-of-religion law, which, as we have seen, is essentially a law against a particular manifestation of hate speech aimed at preventing xenophobia and resultant breaches of individual rights could, arguably, fit neatly with Western liberal public morality.

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After all, in the absence of such a conclusion, it must necessarily be the case that, whereas an Islamic blasphemy law (like the public moral vision on which it is based) will be alien or strange in so far as a secular state is concerned, it cannot be shown to be wrong. The difficulty for the Western secularist, of course, is that there is precisely no empirical basis for demonstrating that a secular public morality, based loosely on liberal, egalitarian sentiments, is (morally) better than one based on the Islamic religion.60 In fact, the ‘truth’ of neither moral vision is remotely provable, and inevitably one’s views of what is right and wrong will be skewed by the context in which one has been raised and the dominance of the ideological vision with which one is bombarded in society. Indeed, it is probably impossible for someone who does not believe in God even to envisage the possibility that religion could be a reasonable basis for a public moral vision. After all, from an atheistic perspective, what is happening is that a society and its laws are being ordered on the basis of a ridiculous fairy tale. But again, it cannot be empirically proven that what is at stake is a fairy tale (in precisely the same way as the liberal, secular, egalitarian vision cannot be empirically proven as a matter of truth). And it need hardly be pointed out that billions of people in the world believe that their view of God as ruler of the universe and as the foundation of all morality constitutes absolute truth – albeit that they too cannot prove the truth of their moral vision. And for this reason, I would suggest, it is simply impossible for a Western secularist to reject the Islamic moral vision as empirically ‘wrong’ as distinct from characterising it as different or unattractive.61 But if this is so, then it must also be true that a blasphemy law based on that moral vision is not an inherently bad thing but merely something which, because of its radically different moral grounding, has simply no place in a Western society.

2.5 Conclusion This brings us back to the awful events in Paris in January 2015. At one level, this was simply a violent attack – one in which people were killed and people were bereaved – and was awful for that reason and with no further need for contextualisation. At another level, however, this attack, 60 61

I discuss this proposition in more detail in Cox, ‘The clash of unprovable universalisms’. I consider the application of this logic in the context of the interpretation of International Human Rights law in Neville Cox, ‘The Freedom to Publish “Irreligious” Cartoons’ (2016) 16 Human Rights Law Review 195.

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taking place as it did, in the capital of the most avowedly and combatively secular country in the Western world where what was targeted was, so it was argued, the right to freedom of speech – so pivotal to democracy – represented or symbolised (or, more accurately, was taken to represent or symbolise) something far broader than one attack on one newspaper. The point is that from the standpoint of Western society, liberal, rightsbased secularism is perceived as the way of doing business. This is no doubt due to a combination of the facts that (1) belief in God is less widespread in the West than had previously been the case, (2) the dominant religion in these societies is Christianity, and at its heart, Christianity (unlike Islam) is content for there to be a clear distinction between civic and religious authority and hence is arguably receptive to the claims of secularists,62 and (3) the secularist morality (which links to human rights) is compelling and is preached as constituting truth – in other words, it represents a self-legitimising and acceptable alternative to religious morality. And at the core of this secularised morality is the individual, whose individuality is fiercely protected from the moral judgement of others (save where what is at stake is the individual’s choice to do something which Western society actually regards as immoral – namely to question the dignity of members of historically disadvantaged groups). Of course, in reality, the genuinely tolerant and pluralistic nature of this morality is questionable – it is strongly arguable that all societies enforce morality and that what is being enforced in Western societies (the morality of respecting elements of individual choice) is just as intolerant of diversity as is any other morality (and Western intolerance of Islam is arguably testament to this). But whether it is classified as the freedom not to be told what to do by conservative orthodoxies or the enforcement of the morality of liberalism, this is the starting point and cohesive glue upon which Western society is based in 2016. Islam, however, means submission. And what Islam (and arguably all true religion) demands is not the prioritisation of individualism over an external moral source but rather the submission of individuals to that source (that source being God). For this reason, Islam (and again, probably, all religion) questions and rejects a great deal of the moral ideology upon which Western society operates and in particular the notion that the individual takes precedence over God or that there should be a right 62

See, for example, Mark 12, verse 17 for Jesus’s injunction to ‘Render unto Caesar that which is Caesar’s and unto God that which is God’s’. More generally St Paul called for submission to the governing authorities. See, for example, Romans 13.

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to defy, mock and lampoon God. And let it be remembered that Islam is a huge religion and, far more than Christianity or Judaism, it represents a point of unity between both individuals and states. Thus the Organisation of Islamic Co-Operation is the second-largest international group in the world, and its members are united not on the basis of geography or race but on the basis of their links to Islam. Furthermore, Islam is a growing religion which quite clearly is making inroads into Western society, with increasing numbers of first- and second-generation European and American Muslims and increasing numbers of converts. In other words, not merely does Islam endorse a radically different approach to public morality (with virtually polarised starting points) from that which exists in the secularised West, and thus it challenges the West ideologically, it also threatens, demographically, the historical and contemporary dominance of the Western ideological vision both nationally and internationally. I have already stressed that the awful and unrepresentative violence of those men who, claiming to act in the name of Islam, attacked the offices of Charlie Hebdo means that it is frankly counterproductive to use the incident as any kind of measure or indicator of the legitimacy or otherwise of blasphemy and defamation laws. Remove the unjustifiable violence, however, and one is faced with the sight of a Western media outlet lampooning the sacred (with the full approval of the Western secularised world, which regards the freedom to publish such material as a moral necessity) to the horror and disapproval of the Islamic world, which cannot understand why this is allowed to proceed unchallenged. Viewed in this way, what is at stake is a clash between public moralities and, in particular, a situation where the Western secular moral vision that one should be allowed to ridicule the sacred and that blasphemy laws are an anachronistic and immoral form of tyranny is challenged by the Islamic viewpoint that nothing, not even the individual, is more important than God. In the sight of so many Western ideologues uniting under the Je suis Charlie banner just as in the many historic and contemporary efforts to demonise Islam through the mechanism of negative stereotyping, it is possible to see an understandable defensiveness as the secularist ideology believed by its supporters to be universally true is challenged and its dominance threatened in an unprecedented way.

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PA RT   I I The Right to Blaspheme

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3 Blasphemy, the Public Sphere and Democratic Self-Government Ian   Cram

3.1

Introduction

For some time now, and in the face of anxieties about ‘militant’ secularism, Christian organisations in Europe have been engaged in efforts to restore a Christian religious perspective to the centre of public life. Roman Catholic groups and others have, for example, campaigned for explicit, formal recognition of the Judeo-Christian heritage in the constitutional framework of the European Union. The campaign ran into opposition however among secularist states such as France and other non-state actors who have thus far been able to prevent the inclusion of a specific reference to Judeo-Christian beliefs in EU formal texts.1 The final agreed version of the Lisbon Treaty’s Preamble, for example, reads, ‘Drawing inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law’.2 As McCrea notes, this Preamble points in a number of potentially conflicting directions. Whilst liberal humanist influences overlap to a significant extent with Christian teachings, they also contain elements such as self-government that sit in obvious tension with such teaching.3 Previously, during the drafting of the Constitutional Treaty (2003), some were unhappy by the failure to incorporate specific references to Christianity. George Weigel, for example, criticised the Preamble for its secularist tones. ‘Christianity’, Weigel asserts, ‘is the story that has arguably had more to

1

2 3

Ronan McCrea, Religion and the Public Order of the European Union (Oxford:  Oxford University Press, 2010), pp. 53–63. Treaty of Lisbon [2007] OJ C306/01 (13 December 2007). McCrea, Religion and the Public Order.

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do with constituting Europe than anything else’. On his view, the story of European commitments to human rights and democracy cannot be told without placing at its centre the role of Christian belief and practice.4 This characterisation of European political thought overlooks the persistent strain of republican political discourse from Aristotle and Cicero through Machiavelli to Montesquieu and Rousseau and republican practice in Greek city states, Rome and revolutionary France. Weigel’s position also neglects the fact that some core European values (democracy, equality and human rights) had emerged out of periods of struggle against the Catholic Church’s central role in religious wars, the massacres of Muslims during the Crusades, autos-da-fé and acquiescence in the face of fascism and anti-Semitism.5 A more accurate rendering of European values would therefore require lesser emphasis to be given to Catholicism/Christianity and is perhaps better captured by the Charter of Fundamental Rights of the European Union (2000), which refers somewhat loosely to the consciousness of a European spiritual and moral heritage.6 In the analysis offered below, it is argued that the attempt to claim a predominantly Christian political tradition in Europe is required to be understood in terms of the grander assimilationist objective, namely regaining the public sphere for Christianity and further that this project carries certain dangers for informed democratic self-government. Part of the current motivation to reposition Christianity more centrally in public discourse may be traced to concerns about migrant flows into Europe from non-Christian parts of conflict-strewn regions of North Africa/the Middle East. The latter are perceived in some sections of opinion to pose a threat to the status of Christianity as the dominant religious perspective in European society.7 A separate prompt is to be found in anxieties of Christian groups that human rights and equality/non-discrimination protections in formal constitutional texts are being interpreted in ways 4

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George Weigel, The Cube and the Cathedral: Europe, America and Politics without God (New York: Basic Books, 2005), p. 70. For contrary suggestions that trace the origins of human rights and liberalism more generally to Christian doctrine, see, inter alia, Larry Siedentop, Inventing the Individual The Origins of Western Liberalism (London: Allen Lane, 2015) and George Weigel, The Cube and the Cathedral: Europe, America and Politics without God ibid. Preamble, Charter of Fundamental Rights of the European Union 2012/C 326/02. Sajó, for example, notes these large-scale migrant flows and is critical of defensive attempts by Christian groups to smuggle what he labels the norms of ‘strong religion’ into constitutional law, which he sees as threatening constitutional secularism. Andras Sajó, ‘Preliminaries to a concept of constitutional secularism’ (2008) 6 International Journal of Constitutional Law 605.

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that sideline Christian beliefs as matters of purely private conscience that may not be acted upon in public contexts.8 Specifically, the requirement placed on persons of the Christian faith to be accommodating to the values and perspectives of others (especially non-believers) is considered problematic. In the United Kingdom, for example, the accusation is made that a prevailing form of ‘militant’ or ‘creeping’ secularism makes it difficult to be a practicing Christian.9 The charge was made in 2010 by Pope Benedict XVI during his visit to the United Kingdom10 and later echoed by senior clergy11 and politicians.12 One illustration of the perceived lack of respect for Christian beliefs and practices is the legal impunity enjoyed across a number of European states by those who insult and offend Christians. It is sometimes claimed that this impunity interferes with the ability of Christians to practice their faith.13 Against such a background, it is not far-fetched to imagine that a re-Christianised public sphere would feature a renewed emphasis upon restraints on expression that caused offence to Christians, thereby preserving a respectful public space for Christians to contribute to public discourse. Indeed in 2009, Ireland, an EU State and Council of Europe signatory, re-introduced the crime of blasphemy onto the statute book, making it an offence to

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Article 9 of the European Convention on Human Rights does, however, protect the public manifestation of religious belief to an extent. Cf exceptionally the total ban in France on the wearing of religious dress in public, confirmed by the Strasbourg Court in SAS v. France to be within margin of appreciation of national authorities Application no. 43835/11, judgment of 1 July 2014. See in this regard Resolution 2036, ‘Tackling intolerance and discrimination in Europe with a special focus on Christians’. Parliamentary Assembly of the Council of Europe, calling for signatory states to tackle ‘numerous acts of hostility violence and vandalism’ (para. 1) and discrimination against Christians and to take steps to ‘enable them to fully participate in public life’ (para. 6.24). Peter Stanford, ‘Pope Benedict’s visit:  Beleaguered Catholic church struggles against secular tide’, The Guardian, 29 August 2010, www.theguardian.com/world/2010/aug/29/ pope-benedict-britain-visit-critics. Peter Stanford, ‘George Carey: Time to say that Christians have rights too’, Daily Telegraph, 11 February 2012, www.telegraph.co.uk/news/religion/9075653/George-Carey-time-tosay-that-Christians-have-rights-too.html. Robert Winett, ‘Britain being taken over by “militant secularists” says Baroness Warsi’, Daily Telegraph, 13 February 2012, www.telegraph.co.uk/news/politics/9080452/Britainbeing-overtaken-by-militant-secularists-says-Baroness-Warsi.html. See, for example, the then-Archbishop of Canterbury Dr Rowan Williams in January 2008 at http://rowanwilliams.archbishopofcanterbury.org/articles.php/1328/archbishopslecture-religious-hatred-and-religious-offence. Of course, it is also possible that Christians are inhibited in their proselytising activities by laws which prevent injury to the religious feelings of others.

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publish or utter anything that is ‘grossly abusive or insulting to matters sacred in any religion’.14 The discussion which follows is divided into the following component elements. Section 3.2 attempts to put flesh on some of the broader concerns identified here by mapping the renewed prominence of religious arguments in the politics of Western liberal democracies. Section 3.3 then notes briefly the origins and history of blasphemy law in England and Wales through to the present day, when the offences of blasphemy and blasphemous libel have been abolished. This material is covered in more detail elsewhere in this volume.15 Section 3.4 presents an overview of blasphemy/religious insult prohibitions in European countries to ascertain the extent to which such restraints (i)  remain in force and (ii) are actively enforced. The argument(s) in principle for protecting religious belief from insult are explored in Section 3.5 with an especial focus on former Archbishop of Canterbury Dr Rowan Williams’ thoughtful defence of legal restraint. The response offered in this paper will critique Dr Williams’s position from a democratic self-government perspective and contend that where blasphemy laws exist they promote an assimilationist strategy, understood here as enforcing a common set of societal values that necessarily privileges a specific religious narrative on matters of political dispute to the detriment not only of individual speakers but to the broader aim of legitimate, informed self-government. Section 3.6 then examines how the United States, a more avowedly republican polity formally structured according to a strict separation between church and state, is itself subject to assimilationist tendencies which threaten separation with potentially adverse consequences for non-believers and minority faiths. Returning to broader, political theory concerns in the final section of materials, I  will argue that republican polities are not necessarily as a matter of principle hostile to assimilationist pressures. Indeed, where religious tenets can be pressed into service to promote a politically active, deliberatively inclusive public sphere, the alignment between faith 14

15

The measure was introduced as part of the Defamation Act 2009 after the Irish Supreme Court in Corway v.  Independent Newspapers [1999] 4 IR 484 held that the previous version of the offence, which had only protected the Catholic religion, was too vague to be enforced by the courts. For discussion, see Neville Cox, ‘The development of Irish blasphemy law’, available at www.constitution.ie/AttachmentDownload .ashx?mid=54533e30-c843-e311-8571-005056a32ee4. See, for example, Erica Howard’s chapter ‘Freedom of Expression, Blasphemy and Religious Hatred: A View from the UK’ and also Ivan Hare’s chapter ‘The Theory and Practice of Blasphemy in the Common Law’ in this volume.

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and civic duty points to the need for the state to encourage/require religious affiliation. Accordingly, the first step now is to chart recent attempts to restore a religious (invariably Christian) perspective into public discourse and political life across the different constitutional contexts offered by the United Kingdom and the United States.

3.2 The Renewed Prominence of Religious Arguments in the Public Sphere There is a clear attempt in some Western liberal democracies to re-establish God at the centre of public life. During the 2016 US presidential nomination processes in the Republican and Democratic Parties, a notable feature of the debates was the ready invocation of an avowedly Christian basis of candidates’ personal values and the way these inform their political programmes. On the Republican side and aside from the openly evangelical Texan senator Ted Cruz, another contender, Marco Rubio, referred on his website to the importance of the influence of faith in shaping his political activities.16 Somewhat surprisingly, even Donald Trump disclosed aspects of his Presbyterian faith and was photographed attending church services during his campaign. It was Trump who notoriously questioned the loyalty of Muslims, proposing and proposed later, as President, implementing a ban on Muslims entering the US. Nor was this public profession of faith confined to the Republican candidates. On the Democratic side, Hillary Clinton spoke at campaign stops about her Methodist faith and how it informs her approach to politics.17 The 2016 primary campaign thus witnessed an especially prominent degree of attention given over to the candidates’ Christian beliefs.18 To external observers of the US Constitution versed in Jeffersonian ideas of the separation between the church and the state and the importance of state neutrality in matters of conscience and religious belief, the candidates’ various pronouncements may appear to threaten core First

16 17

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See https://marcorubio.com/sidebar-featured/marco-rubios-faith-in-his-own-words/. See www.nytimes.com/politics/first-draft/2016/01/25/hillary-clinton-gets-personal-onchrist-and-her-faith/. Clinton’s rival, Senator Bernie Sanders, by contrast spoke of his Jewish background by way of noting that he considered himself not very observant and ‘not actively involved in organised religion’. See http://takingnote.blogs.nytimes.com/2016/01/28/candidates-and-god-on-the-campaigntrail/.

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Amendment values as set out in the Establishment clause.19 More directly than this, however, these professions of faith would seem to lie in tension to the permanent constitutional prohibition in Article 6, Clause 3 on religious tests for public office holders.20 In practice, however, the absence of faith has long been considered a negative attribute in candidates seeking public office, and no serious candidate for public office has been able to profess non-Christian, let alone agnostic or outright atheistic personal belief systems. In the United Kingdom and against the contrasting background of an established state religion which, inter alia, privileges and promotes religious values in publicly funded education and accords seats in the Legislature to Church of England bishops ex officio, Prime Minister Theresa May is the daughter of a Church of England vicar who openly acknowledges the role of her faith in shaping her socially conservative political values. Her predecessor David Cameron stated on more21 than one occasion that the United Kingdom is a Christian country and should not be afraid of saying so.22 This assertion is undermined somewhat by reliable empirical evidence that points to diminishing attendance at Christian churches. In 2014, for example, and according to its own data on attendance, Church of England services continued to fall and were logged at less than 2 percent of the population.23 In response to the rather leading question in the 2011 Census ‘What is your religion?’, fewer persons than ever before described themselves as Christian (at 59 percent down from 71 percent in 2001).24 Just under 5 percent described themselves as 19 20

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Which provides: ‘Congress shall make no law respecting an establishment of religion…’ Which provides that ‘no religious Test shall ever be required as a Qualification to any public Office or public Trust under the United States’. Anoosh Chakelian, ‘What kind of Christian is Theresa May?’ The New Statesman, 26 April 2017. See, for example, ‘My faith in the Church of England’, Church Times, 16 April 2014, available at www.churchtimes.co.uk/articles/2014/17-april/comment/opinion/my-faithin-the-church-of-england; and www.newstatesman.com/religion/2012/12/full-textdavid-camerons-christmas-message. The purpose behind these statements is limited to suggesting that Christian values in the UK have informed generally held beneficent attitudes towards less fortunate members of society. Tim Wyatt, ‘C of E attendance slope still points downwards’, Church Times, 14 November 2014, available at www.churchtimes.co.uk/articles/2014/14-november/news/uk/c-of-eattendance-statistics-slope-still-points-downward. Office of National Statistics (2011), available at www.ons.gov.uk/ons/rel/census/2011census/ key- statistics- for- local- authorities- in- england- and- wales/ rpt- religion.html. British Social Attitudes Surveys in the period 1983–2009 reveal a drop from 66 percent to 43 percent of the population who say they ‘belong to’ Christianity at BSA. (This is the latest

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Muslim whilst more UK citizens than ever before considered themselves as holding no religious affiliation (at 25 percent up from 15 percent).25 Unsurprisingly, the United Kingdom’s Human Rights and Equality legislation have been invoked by Christians and their opponents in a series of legal disputes that ask searching questions about the balance between protection for religious belief at the workplace/the supply of goods and services to the public on the one hand, and the principle of non-discrimination on the other. Where the courts have failed to prioritize the claim of the party invoking freedom of religious belief, a common reaction of Christian organisations and persons of other faiths is to lament the advance of ‘militant secularism’, by which is meant the perceived marginalisation of religious (mainly Christian) perspectives in public life. A  neat flavour of current controversies is provided by the decision of the High Court in The Queen (on the application of the National Secular Society and Mr Clive Bone) v.  Bideford Town Council to deem unlawful the saying of Christian prayers at the start of a town council meeting.26 The ruling prompted the then co-chairwoman of the Conservative Party Baroness Warsi to complain that religion was being ‘sidelined, marginalised and downgraded in the public sphere’.27 In a separate development, a Christian bakery in Northern Ireland was taken to court by the Equality Commission for Northern Ireland for refusing to make a customer a personalised cake with a logo for a gay rights group and carrying the message ‘Support Gay Marriage’. Belfast County Court found that the refusal constituted an act of direct discrimination on grounds of sexual orientation and awarded the customer 500 pounds.28 Supporters of the bakery described the ruling as an attack on the religious convictions of Christians.29 On appeal, the Northern Ireland Court of Appeal upheld the original County Court decision.30 The appellants could not lawfully offer a service to the public in which they agreed to

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British Social Attitudes survey on religious observance/attitudes – more recent surveys have not examined the topic.) Office of National Statistics, ibid. Interestingly, Wales had the highest proportion of persons describing themselves as of no religion. [2012] EWHC 175 (Admin). Cited on BBC website; see www.bbc.co.uk/news/uk-17021831. ‘Militant secularisation threat to religion says Warsi’ (14 February 2012). Lee v. Ashers Baking Co. Ltd [2015] NI Cty. See, for example, the reported remarks of DUP MLA Paul Girvan in May 2015 quoted on BBC website, www.bbc.co.uk/news/uk-northern-ireland-32065233. www.courtsni.gov.uk/ Judgment of 24th October 2016.

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make only those cakes bearing political/religious messages with which they happened to agree.

3.3 A Brief History of Blasphemy Law in England The current suggestion that the UK courts subordinate Christian convictions on matters of conscience to the claims of others can be cast as yet another step away from an earlier assimilationist epoch when organs of the state actively enforced Christian moral standards. Blasphemy laws for their part ensured that the full rigour of the criminal law was brought to bear on free-thinkers and dissidents who dared to challenge orthodox Christian doctrine. Such was the connection between established religion and the state that attempts to subvert the established religion were treated axiomatically as attacks on the authority of the state. In R v. Taylor, the defendant had claimed that religion was a cheat; that Christ was a ‘whoremaster’ and a ‘bastard’ and that he, Taylor, was Christ’s younger brother. His words were treated by the Court of King’s Bench as tending to ‘the dissolution of all government’.31 The citizen who questioned religious orthodoxies thus put in doubt his/her wider loyalty to the State and, further, imperilled the proper functioning of its institutions. A citizen who did not recognise the validity of the Protestant religion could for instance swear an oath on the King James Version of the Bible in legal proceedings without feeling under any compulsion to provide honest testimony.32 Hare thus notes how the laws of blasphemous and seditious libel were closely related in the pre-Enlightenment era.33 A post-Enlightenment narrowing of the rationale for blasphemy laws to emphasise the adverse consequences for public peace from intemperate attacks on Christian doctrine did occur subsequently in the early twentieth century in Bowman v. Secular Society Ltd.34 No longer were all criticisms of Christianity per se to be considered

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(1676) 3 Keb 607. See also Lord Diplock’s remark in Whitehouse v. Lemon [1979] AC 617 that in ‘the post Restoration politics of 17th and 18th century England, Church and state were thought to stand or fall together’, at 633. Ivan Hare, ‘Blasphemy and incitement to religious hatred’, in Ivan Hare and James Weinstein (eds.), Extreme Speech and Democracy (Oxford: Oxford University Press, 2009), p. 290. Ibid. Bowman v. Secular Society Ltd [1917] AC 406, 466, and for commentary, see Ivan Hare, ‘The English law of blasphemy: The “melancholy, long, withdrawing roar”’, in Paul Cliteur and Tom Herrenberg (eds.), The Fall and Rise of Blasphemy Law (Leiden: Leiden University Press, 2016), pp. 49–69.

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as attacks on the legal fabric of society. Recognising legitimate free speech interests in a degree of public discourse about the morality of Christian doctrine, the House of Lords rejected the notion that widespread public disorder would ordinarily follow from the public criticism of religious belief in terms which fell short of being considered ‘scandalous’.35 A perceptible shift away from individual and societal interests in public discourse that does not threaten the public peace in direction of a more limited conception of public speech cabined by community feelings is to be found in the private prosecution case of Whitehouse v. Lemon.36 Aside from absolving the prosecution from a need in mens rea terms to prove that the defendant intended to shock or cause resentment, their Lordships further held that the common law did not require it to be shown that the effect of the speech was to tend to cause a breach of the peace. Instead, all that the actus reus element of blasphemous libel demanded was that the words (and presumably images) were such ‘as to cause grave offence to the religious feelings of some of their fellow citizens’.37 Lemon might have marked a significant evolution of blasphemy doctrine that cut against the ideal of self-governing communities of citizens. To cast the limits of speech touching on matters of religious faith by reference to the feelings of Anglicans potentially carried egregious implications for public discourse. This paradigm shift marked an assimilationist turn in the law away from a content- and viewpoint-neutral rule about damaging public order consequences to a content- and viewpoint-based rule about mental harms to adherents of the Anglican faith, and might have seriously hindered discussion of religious subjects, albeit in a highly discriminatory manner. The discrimination point was affirmed by the High Court in ex parte Choudhury when the common law was held not to confer protection against insults to other religions.38 Subsequently, however, the contentneutral requirement of threatening the public peace which had been overlooked in Lemon was restored in R (on the application of Stephen Green) v. the City of Westminster Magistrates Court & Others when an application by a Christian group to have the BBC prosecuted for blasphemous libel after its transmission of Jerry Springer:  The Opera failed. The applicant

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Ibid., 466–467. Whitehouse v. Lemon [1979] AC 617. Ibid., 665 (per Lord Scarman). R v. Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] 1 QB 429 (failed private prosecution brought by Muslims against Penguin Books for their publication of Salman Rushdie’s The Satanic Verses).

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sought to have the magistrates’ decision not issue a summons for blasphemous libel overturned in judicial review proceedings before the High Court. The action was unsuccessful in part because at public performances of the play in the previous two years, there was no evidence that it had induced disorder or undermined society more generally. Shortly after this decision, the Government moved to repeal the offences of blasphemy and blasphemous libel, and in 2008 this was enacted in the Criminal Justice and Immigration Act.39 By this time, a new law of inciting religious hatred had been passed. The Religious Hatred Act 2006 makes it a criminal offence to use threatening words or behaviour that are intended to stir up religious hatred but provides a defence for insulting and abusive speech which falls short of intentional causing of hatred.40

3.4 An Overview of Blasphemy Laws in Europe The trajectory of English law that culminated in 2008 with the abolition of the offences of blasphemy and blasphemous libel might be heralded as indicative of a more liberal direction of travel across Europe generally, perhaps reflective of the modern decline of religious sensibilities as setting the perimeters of lawful expression. It is true, for example, that most member states of the European Union no longer retain a blasphemy offence in their penal codes.41 However, a minority of states have kept criminal restrictions. Gatti notes that Austria, Cyprus, Croatia, Czech Republic, Denmark, Finland, Germany, Greece, Ireland (reinstated as was seen earlier), Italy, Lithuania, Malta, Poland, Portugal, Slovakia and Spain all retain laws outlawing blasphemy per se or penal provisions forbidding insult to religious belief. In Greece and Poland, for example, offenders can be sent to prison for up to two years.42 He notes actual prosecutions of persons in Malta for dressing up in religious dress during carnival processions, in Greece for creating a Facebook page for criticising a dead monk 39 40

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Section 79. The new offence is similar to the offence of incitement to racial hatred offence in Part 3 of the Public Order Act 1986 (where the religious hatred offence is also inserted) but is drawn in narrower terms. Persons charged with the offence of religious hatred have a defence if the words/behaviour merely constitutes ‘criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents’, ss. 29A and 29J, Public Order Act 1986. Mauro Gatti, ‘Blasphemy in European law’, in Miriam Díez Bosch and Jordi Sànchez Torrents (eds.), On Blasphemy (Blanquerna:  Universitat Ramon Llull, 2015), pp.  49–64. I am indebted to this chapter for material in this part of the discussion. Ibid.

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and in Poland for a statement that the Bible was written by drunkards. As Gatti observes, the active enforcement of blasphemy laws may indicate that such laws are ‘still an integral part of the European understanding of religious tolerance’.43 At the same time, the European Union has formally rejected efforts by the Organisation of Islamic States to secure international agreement on a new measure to outlaw the ‘defamation of religion’.44 The EU Council has recently reiterated that freedom of religion does not extend to being shielded from ridicule and criticism.45 Nonetheless, this stance points up a clear inconsistency between the supra-national stance of EU institutions and the domestic regimes of a number of EU member states. As far as Council of Europe signatory states are concerned, the European Convention on Human Rights sends its own ambivalent message about expression that insults religious beliefs. Despite rhetorical flourishes about the importance of protecting speech that shocks and offends under Article 10 of the Convention,46 the Strasbourg Court has declined to interfere with national authorities’ restrictions in a range of situations, with the result that dominant religious groupings have been shielded from the offensive viewpoints of others. Opting to confer a wide margin of appreciation on domestic bodies, the Court has, for example, upheld the seizure and forfeiture of a film intended for a private film club audience on the basis that it was ‘gratuitously offensive’ to Roman Catholics, who formed the religious majority in the Tyrol region of Austria where it was intended to screen the film.47 Likewise in Wingrove v. UK,48 which concerned the refusal of UK licensing authorities to classify a sexually explicit short video Visions of Ecstasy by director Nigel Wingrove. The video’s subject was St Teresa of Avila, a real historical figure who lived in the sixteenth century and was a Carmelite nun. In the video St Teresa imagined erotic relations 43

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Ibid., p. 53. For a contrasting view of blasphemy laws as a mere ‘religious relic’, see Brett Scharffs, ‘International law and the defamation of religion conundrum’ (2013) 11 Review of Faith and International Affairs 66. Statement by Philippe Delacroix on behalf of the European Union at the UN (22 October 2008); Javaid Rehman and Stephanie Berry, ‘Is “Defamation of religions” passé?’ (2012) 44 George Washington International Law Review 431. EU Human Rights Guidelines on Freedom of Expression Online and Offline, available at www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/142549.pdf. See thus Handyside v. the UK Application no. 5493/72, judgment of 7 December 1976. Otto-Preminger-Institut v.  Austria Application no.  13470/87, judgment of 20 September 1994. For critical commentary, see Jeroen Temperman, ‘Blasphemy, defamation of religions and human rights law’ (2008) 26 Netherlands Quarterly of Human Rights 517. Wingrove v. the UK Application no.17419/90, judgment of 25 November 1996.

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with the crucified body of Jesus Christ. A majority 7:2 of the Court held that the classification refusal (that prevented lawful release of the video) did not violate Article 10. In his separate concurring judgment, Judge Bernhardt, the president of the Chamber, stated that, after having viewed the film, he had not been convinced that the film should have been effectively banned by the refusal to classify it. However, since the basis of the restriction was the religious feelings of others and moral standards more generally, the role of the international judge was limited to those cases in which, unlike the present, the national decision could not be said to be ‘reasonably justified’. Finally, in Murphy v. Ireland, the Strasbourg Court declined to interfere with a ban imposed on an advertisement intended for broadcast on commercial radio submitted by the Irish Faith Centre – a small, Dublin-based evangelical grouping. The ban on all religious advertising in the audio-visual sector was upheld in the Irish courts. On appeal to Strasbourg, the European Court of Human Rights noted how religion had been a ‘divisive factor’ in Ireland and accepted the Irish court’s observations about religious advertising on television or radio causing offence to those belonging to a different religious affiliation.49 The Court’s lax oversight of states’ restrictions upon freedom of expression where national authorities use the coercive apparatus of law to endorse religious orthodoxy is unsettling. The unwillingness to check the assimilationist pressures at the national level points to a gulf between the Court’s fine rhetoric on the importance in a democracy of shocking majority opinion and its cowed complicity with religious majorities’ oppressive conduct. European experience is mirrored elsewhere. Sometime previously, an early critic of assimilation and author of the First Amendment James Madison, drew attention to the tendency of established religions to act in concert with political office holders to oppress citizens.50 He could find no instances in which state-endorsed religious bodies acted as the guardians of individual freedom. Subsequently, Rawls observed how religious persons were liable to insist that others follow their moral precepts and prone to condemn when such acquiescence did not in fact occur. Rawls argued this intolerance made it more likely the personal freedoms of non-believers will be curtailed.51 49 50

51

Murphy v. Ireland Application no. 44179/98, judgment of 10 July 2003. Memorial and Remonstrance against Religious Assessments (1785) June 20. See further W. Cole Durham Jr. & Brett G. Scharffs, Law and Religion: National, International, Comparative Perspectives (New York, NY: Aspen, 2010) pp. 4–5. John Rawls, A Theory of Justice (Cambridge, MA:  Harvard University Press, 1971), pp. 213–218.

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Empirical surveys of current state practices find an on-going correlation between state-supported religions and instances of repressive official conduct. Fox’s work in this area finds not only a linkage between state religions and what he labels ‘poor treatments’ of religious minorities but also discernible burdens for the whole population, including citizens belonging to the state-supported religion.52 The latter occurs for a number of reasons. For example, members of the state religion may resent having to bear the financial cost of supporting the religion through the payment of taxes. They may also object to the idea of legal enforcement of religious norms, believing that individuals should be left to decide for themselves whether to follow religious doctrine. Where these types of resentment/ objection exist, Fox notes, it is more likely that the state will resort to coercive measures to ensure compliance with religious precepts. A more general point that Fox makes here is that states which tend to be intolerant towards matters of religion are also likely to manifest intolerant attitudes towards human rights in general.53 After all, most religions claim to possess an unchallenged, exclusive possession of moral truths. What possible reason could there be for tolerating alternative moral perspectives by according their proponents equal respect and freedom to practice, let alone proselytise, their immoral lives?

3.5

The Case in Principle for Protecting Religious Feelings from Insult

A thoughtful argument in favour of some form of legal restraint on expression that is offensive to persons of faith is to be found in the thenArchbishop of Canterbury’s James Callaghan Memorial Lecture delivered in 2008 and entitled ‘Religious hatred and religious offence’.54 Dr Williams presents both moral and legal arguments for limits upon religiously offensive expression. I think that these claims are ultimately unsuccessful for reasons that are developed in what follows, but to begin with I want to summarize his argument so that its various strands can be understood.

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Jonathan Fox, ‘State religion and state repression’, in Chris Seiple, Dennis Hoover and Pauletta Otis (eds.), The Routledge Handbook of Religion and Security (Abingdon, UK: Routledge, 2012) pp. 182–192. Ibid., p. 185. Clearly, however, not all religious believers endorse the idea that religiously informed moral judgments should be immune from challenge in the public sphere. Available electronically at http://rowanwilliams.archbishopofcanterbury.org/articles.php/ 1328/archbishops-lecture-religious-hatred-and-religious-offence.

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Dr Williams is concerned by what he detects to be a ‘coarsening’ of the terms of public debate. It is, he suggests, one thing for an individual to refuse to believe a ‘sacred point of reference’ but quite another matter ‘to refuse to entertain or imagine what it might be like for someone else to experience the world differently. Spectres of colonialism, “Orientalism” and, once again, anti-Semitism are roused when this insensibility to the otherness of the religious other goes unquestioned’.55 This lack of imagination about the lives and perceptions of others and arrogant assumptions about the ‘absolute naturalness’ of one’s own position diminishes intelligent public debate and contributes to the impoverishment of a culture in which nothing is sacred. The ‘coarsening’ of public debate becomes acutely problematic when the targets of insult and abuse belong to minority groups lacking ‘power’. Those presently advocating the freedom to insult do not, he maintains, make the same sort of free speech arguments that are found in the ‘classic free speech arguments’ (I am assuming here that this is a reference, inter alia, to Mill), which sought to defend the speech of powerless individuals and groups against forms of tyranny, including religious establishments’ use of blasphemy laws. Today, by contrast, Dr Williams contends that insulting speech tends to target the powerless among us and that this abuse of power demands a response. He states that when a speaker attacks a vulnerable group such as the disabled, we generally realise that this is morally wrong because of our recognition that the target group is vulnerable in ways that an able-bodied speaker is not. What is more, members of the target group may internalise the negative content of the message and often lack access to an effective means of reply/rebuttal. Although it is conceded that there is much evidence to show that historically Christians have demeaned/humiliated other religions,56 the relative weakness of Christian perspectives in public discourse today means that Christians are now also among the powerless who are likely to be the victims of insult and ridicule. So just as we can see that attacking the disabled is morally wrong, so too is ridiculing the religious beliefs of Christians.57 Moving to the legal grounds for restraint, Dr Williams argues for the prohibition of expression that causes offence to religious believers. The critical criterion in his view is the intention ‘to

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Ibid. To say nothing of Christian treatment of non-believers throughout much of the Church’s history. He does, however, concede (rightly) that some Christians continue to be the perpetrators of public attacks on minorities such as the gay and lesbian community.

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limit or damage a believer’s freedom to be visible and audible in the public life of a society’. The law should send signals about what is ‘generally proper’ in public debate by enforcing standards of civility in public discourse and penalising behaviours that ‘have the effect of silencing (proreligious) argument’ and that contribute only to a debasing of discussion by thoughtlessly cruel styles of expression. Stated thus, Dr Williams appears to hold that the beliefs and perspectives of religious groups are entitled to a measure of legal protection from insult and ridicule that ought to be denied to secular and anti-religious perspectives. Respectful speech about religious matters is to enjoy some formal priority over its disrespectful counterpart. Religious persons who enter (or are thinking of entering) the public domain will be comforted by the fact that anyone who, with the intention of making the religious contributor less visible or audible in public discourse, insults or ridicules that contributor may in due course be subject to the coercive powers of the state and silenced. It should be clear therefore that Dr Williams is seeking to return to the era of privileged treatment of pro-religion speech. It is misguided for a variety of interlocking reasons. At the outset and given Dr Williams’s preliminary remarks about inequalities of ‘power’, it is not clear whether the beneficiaries of legal protection from insult are to be confined to religious groups/individuals or whether in fact protection extends more generally to all groups/individuals who are relatively ‘powerless’ in late-advanced capitalist society. Are women and members of all ethnic and sexual minorities (to name but a few) also entitled to legal protection from offence on account of their respective degrees of actual/putative ‘powerlessness’? By what criteria are we to ascertain who is powerless? How might the law announce a clear standard that enables persons tempted to criticise others to predict with a degree of certainty needed for rule-of-law purposes whether the target of criticism is ‘powerless’ or not? If women and members of ethnic and sexual minorities are not so protected because it is intended merely to limit protection to religious persons, Dr Williams will need to advance a legislatively workable definition of what counts as a ‘religion’. Do those members of society who gather together to worship alien life forms or the Flying Spaghetti Monster get to have their beliefs shielded similarly?58 58

The cumulative effect of preventing insulting speech whose targets extend to women and ethnic and sexual minorities in my example closes off a very significant degree of speech about matters that belong firmly within the concept of public discourse.

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Even if clarity was forthcoming on these preliminary definitional points, we need to question why the coercive force of law is needed to play a role in promoting intelligent, civilised debate by obliging a speaker who wishes to criticise the religious beliefs/practices of others to frame a challenge in thoughtful and sophisticated language – in ways that would not be required if he/she was attacking a non-religious viewpoint. A sceptic could be forgiven for thinking that the privileging of more educated, proreligious speakers that is entailed in Dr Williams’s position amounts to a cleansing of public debate to the rarefied level of the university seminar room, where protagonists are expected to challenge politely the premises of rival positions (except, paradoxically, by the very act of inquiring after the evidential basis for a religious speaker’s claims regarding the existence of a supreme being, since this might be seen as an attempt to ridicule, thereby making the religious speaker less visible/audible). There is, additionally, an evident lack of even-handedness in his position when it is appreciated that less educated speakers are unable to criticise religious belief in their own direct terms, whilst crude speakers who advocate a religious viewpoint and treat their secular/agnostic/atheist opponents in a disrespectful manner remain free to do so. We might, for example, ask whether child abuse scandals in the Roman Catholic church would have so easily come to light where the feelings of Roman Catholics could have been used to silence an angry and less well-educated victim of abuse who wished to publicise not only his/her abuse at the hands of priests but also the failure of church authorities and/or state prosecutors to take the abuse allegations seriously. Outside this emotively charged subject matter, what of the secular polemicist who rails in forceful terms against the ex officio status in the Legislature enjoyed by senior Church of England clergy? Doubtless some members of the Anglican faith would be hurt to discover that some in the community oppose the privileged position of Anglican bishops and that this hurt might make them less visible in public debate. However, the question arises whether the standards of some of the most easily offended members of society should be used to determine which speech on such public issues is considered lawful/unlawful. If these criticisms have force, they show that the attempt to shore up the assumed ‘fragile’ public confidence and visibility of religious believers may in fact carry potentially damaging consequences for the accountability of public institutions in general and, by extension, the ability of citizens to exercise informed self-rule in democratic structures. The sine qua non of democratic self-rule – the ability of citizens to participate in the making of laws by which they will be governed – is heavily compromised.

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Religious beliefs and institutions are shielded from the types of criticisms that other beliefs and institutions routinely face in modern democracies where forms of investigative journalism function effectively under constitutional protections for freedom of expression. To elevate religious institutions and the sensitivities of persons of faith beyond the realms of criticisms of the sort that the police, the government, members of Parliament and the judiciary are ordinarily subject to is to effect a paradigm shift away from a self-governing state in the direction of a theocracy. All of us need some level of courage and fortitude to participate in the public sphere. It does not seem to have occurred to Dr Williams that it can even benefit the offended listener to confront the fact that others dispute what (s)he assumes to be morally/factually beyond reproach. The activity of further examination of our own positions in the aftermath of possibly harsh, unfeeling criticism is in itself of benefit to the recipient, something that should not be perfunctorily dismissed.59 Conversely, were all citizens to receive legal protection from having our beliefs insulted, the remaining zone of inoffensive speech would barely be of any service in public discourse. The extravagant price that is to be paid for Dr Williams’s more imaginative, respectful sphere of discourse about religion is no less than democratic impoverishment.

3.6

The Long and Winding Wall: The First Amendment and Current Assimilationist Tendencies

Within the constitutional jurisprudence of liberal democratic states, one distinctive and prominent republican riposte to Dr Williams’s argument for legal protection from insult is to be located in the body of First Amendment speech and establishment case law. Nonetheless, efforts by US religious groupings to dismantle (or, at the very least, breach) the wall of separation between church and state continue to pose questions about the nature of the state’s non-engagement with the religious beliefs of its citizens. In Blasphemy: How the Religious Right Is Hijacking Our Declaration of Independence, prominent US academic Alan Dershowitz challenged what he suggested was a misconceived attempt by evangelical Christians in the United States to breach the wall of separation between church and state

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This is a point made by John Stuart Mill in On Liberty. For commentary, see Jeremy Waldron, ‘Mill and the Value of Moral Distress’ (1987) 35 Political Studies 410.

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enshrined in the Bill of Rights.60 Dershowitz’s work set out to show how right-wing politicians and religious figures were engaged in a project to ‘Christianize’ the US Constitution. The project sought in its own terms to ‘recover’ the original Christian meaning of the 1776 Declaration of Independence and for this meaning to be given effect in judicial interpretations of the Constitution. A primary aim is the wish to see God and Christian prayers and images installed in the public sphere. For example, the erection of tablets inscribed with the Ten Commandments in public buildings such as courthouses would constitute a victory for this project. Alteration of the curriculum of public schools is also envisaged whereby biblical creationism is taught as an equally scientific theory alongside evolution and where other socially conservative values are presented as offering morally superior lifestyle choices.61 As Dershowitz shows, however, casting the efforts of Thomas Jefferson, John Adams and the other contributors to the Declaration of Independence as an attempt to instil Christian values into the public arena and the Constitution involves an egregious error. The text of the Declaration may indeed have referred variously to ‘Nature’s God’, the ‘Creator’ and ‘Divine Providence’, but its authors were heavily influenced by Enlightenment thinking, with the latter’s emphasis upon rational enquiry, an innate distrust of faith-based claims to knowledge as well as outright rejection of notions of supernatural interventions in human affairs. Consider Jefferson’s letter to his seventeen-year-old nephew in which he advises his relation to: Question with boldness even the existence of God; because if there be one, he must approve of the homage of reason, than that of blindfolded fear. … Do not be frightened from this inquiry by any fear of its consequences. If it ends in a belief that there is no God, you will find incitements to virtue in the comfort and pleasantness you feel in its exercise.62

As Dershowitz observed, proponents of the ‘Christianisation’ project typically overlook the fact that the Constitution itself contains no reference to God whatsoever and, in fact, goes further in upholding a religiously plural society and the individual right to dissent in two important respects. First 60

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Alan Dershowitz, Blasphemy:  How the Religious Right Is Hijacking Our Declaration of Independence (Hoboken, NJ: John Wiley & Sons, 2007). Ibid., Chapter 2. Letter to Peter Carr, 10 August 1787 in Thomas Jefferson, The Life and Selected Writings of Thomas Jefferson (New York:  Franklin Library), pp. 350–351 and cited in Dershowitz, Blasphemy, pp. 16–18.

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in Article VI, Paragraph 3 by expressly prohibiting for all time the application of religious tests for public office holders63 and second through the Establishment clause of the First Amendment denying the state the power to establish religion. The Establishment clause can be traced to the Founders’ concern about the assimilationist tendencies of dominant religious groupings, namely a denomination or sect which enjoys official state endorsement is liable to abuse its privileged position not just against non-religious persons but also against rival religious groupings. Madison noted, for example, how Baptists in his home state of Virginia were imprisoned in 1774 simply for publishing their religious views. In ‘The Memorial and Remonstrance against Religious Assessments’, the author of the First Amendment famously objected to Patrick Henry’s bill to provide Virginia taxpayer (i.e. state-coerced) funding for the employment of teachers of the Christian religion. The evidence concerning the impact of established religious organisations on civil society pointed, Madison argued, in one direction only: In some instances they have been seen to erect a spiritual tyranny on the ruins of civil authority and in many instances they have been seen upholding the thrones of political tyranny; in no instances have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries. A just Government instituted to secure & perpetuate it needs them not.64

The complexity and overlapping nature of the Establishment and Free Exercise clauses of the First Amendment – ‘Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof ’ – have since produced a wall that for some has proved ‘as winding as the famous serpentine wall designed by Mr Jefferson for the University he founded’.65 At the same time, certain clear standards and prohibitions have emerged, especially in relation to cases touching upon expression in which state attempts to enforce the religious views of a dominant group. Consider Joseph Burstyn v. Wilson, in which the Supreme Court held unconstitutional a New York statute that prohibited the showing of

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See, inter alia, remarks by former Republican Party presidential candidate Mitt Romney at a campaign rally in Florida on 17 February 2007 that ‘we need to have a person of faith lead the country’ discussed at www.nationalreview.com/campaign-spot/11100/ uncharitably-reading-old-romney-comment-jim-geraghty. ‘Memorial and remonstrance against religious assessments’, 20 June 1785, para. 8. McCollum v. Board of Education 333 US 203, 248 (Jackson, J.).

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motion films deemed by the licensing authorities to be ‘sacrilegious’.66 An unanimous Court held that ‘[i]t was not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine’.67 In a series of rulings in the school prayer cases, the wall of separation acts to prevent state-enforced acts of religious worship (that is forced expression by unwilling participants). Thus the Supreme Court has ruled that public schools may not invite clergy to begin and conclude graduation ceremonies with prayers,68 nor may respectful moments of silence be used to require students to pray.69 The wall also benefits religious organisations by outlawing certain state demands where these conflict with the free exercise of religion. It creates a zone in which the state’s commands do not carry the day.70 In Wisconsin v. Yoder, for example, the state’s interest in universal education of young persons was held not to be absolute. Amish parents there were able to show an ample, countervailing interest in not having their children compulsorily educated by the state after eighth grade.71 The nature of the separation between church and state has not always been as satisfactorily configured, however, as the Court’s Establishment clause jurisprudence on both permitted state financial assistance to sectarian schools72 and religious displays on publicly owned land has shown.73 66 67 68

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343 US 495 (1952). Ibid., 505. Lee v. Weisman 505 US 577 (1992), and see Justice Kennedy’s majority opinion that ‘[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise’, at p. 578, and see previously Engel v. Vitale 370 US 421 (1962) and School District of Abington v. Schempp 374 US 203 (1963). Wallace v. Jaffree 472 US 38 (1985). This can be characterised as a zone of immunity or isolation from state demands that are generally applicable to all. Wisconsin v. Yoder 406 US 205 (1972) holding that compulsory education beyond this grade would ‘gravely endanger if not destroy’ the free exercise of religion by Amish parents. For an interesting partial dissent that pioneers an idea of student autonomy vis-à-vis parental authority, see Justice Douglas at pp. 241–249, who faulted the Court for assuming in all cases that the interests of Amish students were identical to those of their parents. See also West Virginia State Board of Education v. Barnette 319 US 624 (1943) striking down West Virginia statute requiring children to salute the US flag as an interference with the appellant Jehovah’s Witness religious beliefs. Everson v. Board of Education 330 US 1 (1947); Lemon v. Kurtzman 403 US 602 (1971). Lynch v. Donnelly 465 US 668 (1984); Allegheny County v. Greater Pittsburgh ACLU 492 US 573 (1989); Van Orden v. Perry 545 US 677 (2005); McCreary County v. ACLU 545 US 844 (2005). For analyses of problematic features of the jurisprudence, see, inter alia, Kent Greenawalt, Religion and the Constitution: Establishment and Fairness (Princeton, NJ:

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Subsequently emboldened however by the increased profile of religious, morally conservative elements in the Republican Party and the appointment of like-minded jurists to the Supreme Court during the Reagan74 and Bush (father and son) presidencies,75 the religious right has continued its efforts to secure a greater role for a Christian perspective in US public life. Consequently, Madison and Jefferson’s wall of separation between church and state remains under threat. The desire to confer a privileged position for Christian beliefs and institutions in the political sphere has implications for fundamental liberal values such as the rule of law, popular sovereignty and the interpretation of the Constitution.76 Any attempt, for example, to strengthen Christian beliefs and values in the United States as a matter of public policy would require a reining back of both the speech and establishment elements of the First Amendment. This assimilationist strategy, in which law and its coercive demands are deployed to reinforce the cultural norms of a dominant grouping in a heterogeneous society, looks back to an earlier era of Supreme Court jurisprudence in cases such as Gobitis.77 It is inherently hostile both to group rights of the sort valued by pluralistic accounts and to the freedom of persons to dissent from the dominant societal mores that lies at the centre of individualist accounts of liberty. In Minersville School District v. Gobitis two students aged ten and eleven from a family of Jehovah’s Witnesses were expelled from their state school for refusing on religious grounds to salute and pledge allegiance to the US flag.78 For the assimilationist majority, the unifying purpose of the state rule overcame group- and individual-based religious objections. Justice Frankfurter stated, The ultimate foundation of a free society is the binding tie of cohesive sentiment. Such a sentiment is fostered by all those agencies of the mind and

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Princeton University Press, 2009); Daniel Robinson and Richard Williams (eds.), Religious Liberty: Essays on First Amendment Law (Cambridge: Cambridge University Press, 2016). Ronald Reagan (1980–1988), who appointed Antonin Scalia in 1986. George H. W. Bush (1988–1992); see especially the appointments of Associate Justice David Souter (1990) and Clarence Thomas (1991) and, under George W. Bush (2000–2008) those of Chief Justice John Roberts (2005) and Associate Justice Samuel Alito (2006). Larry Backer, ‘The crisis of secular liberalism and the constitutional state in comparative perspective: Religion, rule of law, and democratic organisation of religious privileging states’ (2015) 48 Cornell International Law Journal 51. Robert Post, ‘Cultural heterogeneity and law:  Pornography, blasphemy, and the First Amendment’ (1988) 76 California Law Review 297. Minersville School District v. Gobitis 310 US 586 (1940).

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It was left to the sole dissenter, Justice Stone, to articulate the pluralist objection to flag-saluting assimilation: History teaches us that there have been but few infringements of personal liberty by the state which have not been justified, as they are here, in the name of righteousness and the public good, and few which have not been directed, as they are now, at politically helpless minorities. … The Constitution may well elicit expressions of loyalty to it and to the government which it created, but it does not command such expressions or otherwise give any indication that compulsory expressions of loyalty play any such part in our scheme of government as to override the constitutional protection of freedom of speech and religion.80

Gobitis was expressly overruled three years later in West Virginia State Board v.  Barnette, another compulsory oath of allegiance/flag-saluting case.81 In a ruling which is couched in more overtly individualistic terms, Justice Jackson noted that ‘exceptional minds’ could only be freed up to engage in intellectually diverse thinking if freedom to express oneself differently extended to matters going to the heart of the existing order of society as well as on matters of far less moment: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.82

Joining the opinion, Justices Black and Douglas denied that a failure on religious conscience grounds to place one’s hand over the heart and repeat the words of a ‘patriotic formula creates a grave threat to the life of the nation’.83 In any event, words spoken when under compulsion indicated self-love rather than proof of loyalty. The ascendancy of the individualistic (as opposed to a pluralistic) reading in Barnette had been pre-figured somewhat by the Court in Cantwell v. Connecticut, delivered in the same 79 80 81 82 83

Ibid., 596. Ibid., 604–605. West Virginia State Board v. Barnette 319 US 624 (1943). Ibid., 642. Ibid., 644. Significantly, both Black and Douglas had joined with the Court in its earlier, now-overruled decision in Gobitis.

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year as Gobitis.84 Cantwell had gone to a Roman Catholic neighbourhood and played a record in front of two Catholic men which had attacked the men’s religion as an ‘instrument of Satan’ and ‘injurious to man’ among other criticisms. His conviction for inciting a breach of the peace was struck down by the Supreme Court. If the Court had adopted a pluralist reading of the religious freedom clause, it would, as Post remarks, have given greater emphasis to the interests of Cantwell’s audience and stressed the vilification, ridicule and offence caused to the Roman Catholics as a group. Instead, the Court chose to emphasise the freedom of the individual speaker on religious matters to communicate his/her views on religious topics.85 Nonetheless, Cantwell is not entirely devoid of assimilationist strands. Had the speaker made statements that were either (i)  likely to provoke violence and/or disorder or (ii) were in themselves indecent, profane or abusive (regardless of any public order consequences), the Court’s opinion was clear that the state’s countervailing interests in (a) preserving peace and order and (b) preventing intrinsically undesirable speech would have trumped the interests of the speaker.86 Post has argued that the latter interest in preventing undesirable speech connects with the basis of nineteenth-century English blasphemy laws that outlawed the publication of profane, indecent or abusive expression,87 but his account can be faulted for underplaying the historical role played by blasphemy law in bolstering the authority of the state.

3.7

Republican (Machiavellian) Political Theory and Blasphemy

The individualist strains in Barnette and Cantwell emphasise the freedom of each citizen to advance in public discourse their own perspective in matters of politics and religion free from dictates of official doctrine. Each 84 85

86

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310 US 296 (1940). Ibid. ‘In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy’, per Justice Roberts, 310. See for comment R. Post, ‘Cultural heterogeneity and law’, 319–320. Thus providing an example of constitutionally permissible, contents-based regulation of expression. Post, ‘Cultural heterogeneity and law’, 322–323.

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enjoys a natural affinity with ideas of participatory self-rule by politically engaged persons that lie at the core of ideas located within modern republican thinking. The causing of injury to feelings does not afford an adequate basis in republican theory for silencing a speaker with an uncomfortable message. In this final section of materials, I argue, however, that an earlier articulation of republican theory in Machiavelli’s Discourses is also capable of an assimilationist reading. Despite his excoriating criticisms of Christian doctrine, an instrumental role for some form of religious belief in valorising active, participatory self-rule can be read into Machiavelli. Religious observance might on this view help ensure greater cohesiveness in the polity, maintaining liberty and promoting the search for the common good. Here, therefore, the assimilationist state acts to reinforce the observance of practices (including religious ones) that assist the survival of self-government and maintenance of liberty. Machiavelli’s Discourses on Livy set out to answer the question how liberty was to be maintained within society when (i) the vast majority of people were by default lazy when it came to participating in public affairs, preferring to be left alone to pursue their own ends, and (ii) a minority actively sought greater wealth and status through which they might dominate others. Members of each group selfishly put their private interests ahead of those of the community (or confused the common good with their private gain). The lesson of Roman history was clear. Modern republics needed some means to check the tendency of powerful men (the senatorial class) to acquire excessive power over others and thereby interfere with the liberty of others.88 If the liberties of ordinary people were to be preserved, it would be vital for citizens to commit to a form of public life in which liberty might be preserved. Class-specific institutions in which ordinary citizens were free to question and challenge elite conceptions of the public good offered a mechanism by which liberty might be maintained. In ancient Rome, the vesting of policy veto powers in the tribunes who were drawn from the ranks of ordinary citizens checked the tendency of senators to propose self-interested policies, forcing them to revise proposals in ways that would secure the support of the lower classes. Machiavelli concedes, however, that the process by which these revisions occurred would be tumultuous. What others decried as dysfunctional and chaotic, however, 88

‘At any rate, in most cases, such disturbances are caused by those who possess something … men do not believe they truly possess what they own if they do not acquire still more from others’.’. Niccolò Machiavelli, Discourses on Livy, Book I, Chapter V.

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Machiavelli sees as proof that the checking function of class-specific assemblies in Rome operated to good purpose.89 The participation of ordinary citizens in public decision-making fora and the successful harnessing of discord between rival groupings could in Machiavelli’s view be achieved through the institution of the law. Christianity, on the other hand, undermined citizens’ motivations to act virtuously in the public sphere. Going beyond Rawls’s criticism of the tendency of religiously minded persons to act intolerantly towards non-believers,90 Machiavelli posited a more damaging outcome for the republican state in which Christian views are deeply held. Devout persons in the Christian tradition esteemed qualities such as humility, contemplation and earthly suffering. Machiavelli considered, ‘[t]his mode of living to have rendered the world weak and a prey to wicked men, who can manage it more securely, seeing that the great body of men, in order to go to Paradise, think more of enduring their beatings than in avenging them’.91 It is likely that Machiavelli has teachings such as the Sermon on the Mount in mind here. As recorded in Matthew, Chapter V, the weak and oppressed are told by Jesus to endure their suffering because their reward is awaiting them in Heaven. Skinner remarks how this absence of a concern for worldly affairs and the explicit preference for suffering at the hands of ‘wicked men’ means that little or no effort need be expended by Christians on the pursuit of the common good in the present life.92 The disincentive to act virtuously in the public sphere leaves public institutions and rule-making bodies vulnerable to capture by elites those who enter civic life with the motive of self-/family aggrandisement. On this rationale, any religion that requires its believers to endure injustice and oppression on Earth in anticipation of the life to come is likely to pose a severe threat to the maintenance of liberty.93 89 90

91

92

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Ibid., Book I, Chapter IV. A point made by Quentin Skinner, ‘Machiavelli on the maintenance of liberty’ (1983) 18 Politics 3, 11. Machiavelli, Discourses on Livy, Book II, ‘Concerning the Kind of People the Romans had to fight, and how obstinately they defended their Freedom’.’. Skinner, ‘Machiavelli’, 11. See also Ronald Beiner, ‘Machiavelli, Hobbes, and Rousseau on civil religion’ (1993) 55 Review of Politics 617. For a later restatement of Machiavellian hostility to Christian values on grounds of their unsuitedness to the demands of republican life, see Jean Jacques Rousseau, ‘Civil Religion’, Book IV, Chapter 8, The Social Contract, where he writes ‘Christianity preaches only servitude and dependence. Its spirit is so favourable to tyranny that it always profits by such a régime. True Christians are made to be slaves, and they know it and do not much mind: this short life counts for too little in their eyes’. Like Machiavelli, Rousseau nonetheless believed that other religious beliefs were important for the polity to survive. For Rousseau, these

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In this sense Machiavelli must also be opposed to a pluralist conception of the religious freedom of all groups that espouse such forbearance. Whether the state endorses/tolerates religious freedom at all is then wholly contingent upon the promotion/non-promotion of virtue. The ancient religions of pagan cultures valued worldly honour and thus encouraged their peoples to act virtuously in defence of their communities. The instrumental link made by Machiavelli between pagan culture and republican virtue establishes that where religious beliefs can be channelled to preserve liberty and advance the common good, then the state can legitimately invoke religious norms to serve the ends of liberty. Christianity cannot, on account of its ultimate focus on the life to come, serve this instrumental function. From a republican self-government perspective, however, once blasphemy laws are factored in, the polity is further imperilled. The Christian demand that speakers maintain a reverential treatment of God, Jesus, Mary, prophets and apostles further stunts the prospects for liberty-enhancing self-government through the disciplining threat of the criminal law. This insistence functions only to inhibit robust forms of public discourse that Machiavelli considered necessary for the maintenance of liberty.

3.8 Conclusion Blasphemy laws are often considered a relic of bygone ages in which Church and State institutions were fused together. Though in retreat in some parts of Europe, elsewhere blasphemy laws do in fact continue to exert a constraining influence upon expressive activity that insults or mocks church teaching or Christian belief. Presumably, this state buttressing of Christian identity is welcomed by those that perceive Christianity to be under threat both from large-scale migrant flows to Europe out of Muslim-dominated conflict zones in the Middle East as well as from human rights/equality legislation that is said to marginalise the public manifestation of Christian values. The Strasbourg Court’s disinclination to interfere with national authorities’ restrictions on expression that offend Christian perspectives does more included beliefs in ‘the happiness of the just, the punishment of the wicked; the sanctity of the social contract and the laws’. For an illuminating discussion, see Helena Rosenblatt, ‘On the intellectual sources of laïcité: Rousseau, Constant, and the debates about a national religion’ (2007) 3 French Politics, Culture and Society 1.

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than simply allow Christians to be seen and heard in the public sphere.94 It condones the subordination of speech that challenges Christian doctrine so that, in effect, Christians are accorded the privileged status of having the right to not be offended. The regrettable assimilationist underpinnings of cases such as Otto-Preminger-Institut, Wingrove and Murphy offer a powerful counter-narrative to those who detect forms of ‘creeping secularism’ that make it difficult to live as a practicing Christian. An argument for religious persons in general to enjoy a legal and moral right not to be offended was considered in Section 3.5. The desire to have a more thoughtful and respectful level of intellectual discourse about religious matters which underpins this argument is at first glance attractive. For all that, however, the deleterious consequences for active, informed self-government in a polity in which some of the least tolerant members of society set the contents-based boundaries for the expressive activities of others are of such a magnitude as to imperil the notion of consensual rule making. Across the Atlantic, blasphemy laws are a constitutional non-starter in the light of anti-assimilationist, pro-individualist readings of the First Amendment in Cantwell and Barnette. Nonetheless, it is noticeable that the wall of separation between church and state is coming under increasing pressure from openly evangelical politicians. Leaving to one side its blatant disregard of the prohibition on religious tests for public office holders laid down in Article VI(3) of the Constitution, the Christian right’s attempt to recover public spaces for the Christian beliefs of the Founders must be seen as part of a broader assimilationist agenda in which the religious norms of a politically dominant grouping are held up by the state as offering a morally superior code for living. If this project is successful, the longevity of Cantwell and Barnette might in turn be doubted. When state laws outlawing defamation of the Christian religion survive First Amendment scrutiny, the ideal of the self-governing republic in which the people author the laws by which they are to live with each other will have been lost. But then, as Machiavelli argued in the Discourses, on its own terms, Christianity is not best suited to ensuring the survival of personal liberty in the republic.

94

For a parallel refusal by the Court to interfere with majoritarian restrictions designed to protect followers of Islam from being caused offence in the public sphere, see I.A. v. Turkey Application 42571/98, judgment of 13 September 2005.

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4 The Right to Blaspheme Mark Hill QC & Russell Sandberg

4.1

Introduction

As long ago as 1993, in its first judgment directly engaging Article 9 of the European Convention on Human Rights, the European Court of Human Rights declared that freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.1

However, the place of religion in the public sphere has become increasingly controversial. The right to freedom of religion is perceived as clashing with other rights, particularly freedom of expression.2 These two rights are seen as existing in opposition to one another, whereas in international human rights instruments the freedoms are presented as being equal and complementary.3 Article 18 of the Universal Declaration of Human Rights 1948 protects freedom of religion while Article 19 protects freedom of expression. Nevertheless, in recent years, these two rights have been deployed to challenge one another. It has been contended that at UN 1 2

3

Kokkinakis v. Greece, Application no. 14307/88, judgment of 25 May 1993, para. 31. There has also been much controversy over the clash between discrimination on grounds of religion and discrimination on grounds of sexual orientation on which see, e.g., Russell Sandberg, ‘The right to discriminate’ (2011) 13 Ecclesiastical Law Journal 157. Sejal Parmar, ‘The challenge of “defamation of religions” to freedom of expression and the international human rights system’ (2009) 3 European Human Rights Law Review 353, 353–354.

We are grateful to Innes Benanaya, Jessica Davies, Katie Lord, Isabelle Pavageau, Mariam Serhan and Bethan Skyes, all students on the Law and Religion undergraduate module at Cardiff University, for their assistance in researching this chapter.

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level, the right to freedom of expression ‘seems under particular pressure, if not sustained attack, from arguments purportedly based upon freedom of belief ’ and that ‘the most serious threats to freedom of expression’ have arisen from resolutions on ‘combating defamation of religions’ by UN human rights bodies.4 From 1999 onwards, therefore, when the concept was first introduced to the Commission on Human Rights by Pakistan, resolutions on defamation of religions have been brought forward in several circumstances and have been regarded by many Western states as restrictions on freedom of expression. However, in 2009, following the adoption of resolutions on defamation of religions at the 10th session of the Human Rights Council, the phrase seemingly fell out of favour. At the 2009 Durban Review Conference, the Office of the High Commissioner for Human Rights (OHCHR) omitted any reference to the term ‘defamation of religions’ in its outcome document and spoke instead of proposed workshops on the topic of incitement to hatred.5 The product of these workshops was the OHCHR Rabat Plan of Action.6 This was hailed as ‘a breakthrough in the understanding and implementation of international law on freedom of expression and incitement to hatred’.7 It represented a change in approach, combating incitement to hatred rather than the defamation of religion.8 Instead of protecting religious beliefs, the focus was now on protecting believers from hatred and violence. In terms of legislation,9 the Rabat Plan of Action was very critical 4 5 6

7

8

9

Ibid. See www.un.org/en/durbanreview2009. The ‘Rabat Plan of Action on the prohibition of advocacy of national racial or religious hatred that constitutes incitement to discrimination, hostility or violence’, to give it its full title, describes itself in the preface as ‘conclusions and recommendations emanating from the four regional expert workshops by OHCHR in 2011, and adopted by experts in Rabat, Morocco on 5 October 2012’, available at www.ohchr.org/Documents/Issues/Opinion/ SeminarRabat/Rabat_draft_outcome.pdf. Sejal Parmar, ‘The Rabat Plan of Action:  A  global blueprint for combating hate speech’ (2014) European Human Rights Law Review 21, 22. This was underscored by the fact that in 2011, no resolution on combating defamation of religion was presented, and instead the Human Rights Council adopted a resolution on ‘combating intolerance, negative stereotyping and stigmatisation of, and discrimination, incitement to violence, and violence against persons based on religion or belief ’, ibid., 23. The latter focus became known as the ‘16/18 approach’, a shorthand based on this UN document’s number. On ‘16/18’, see the chapter by Marc Limon, Nazila Ghanea and Hilary Power in this volume. The Rabat Plan of Action is split into three sections: legislation, jurisprudence and policies. Within each section, it notes the conclusions which have come about through the workshops and offers up recommendations regarding how to rectify the issues that are raised.

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of the way in which states regulated incitement to hatred: it said that many domestic legal systems contained no such prohibition, while those where such legislation did exist, adopted variable terminology which was often inconsistent with international law. The rather vague terminology used and the creation of new categories of restrictions or limitations to freedom of expression opened ‘the door for arbitrary application of these laws’.10 The Rabat Plan of Action was especially trenchant in its criticism of blasphemy laws, citing with approval the Human Rights Committee’s General Comment No. 34 on Article 19 of the International Convention on Civil and Political Rights (1966), which stated that ‘prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant’, which ‘requires a high threshold because, as a matter of fundamental principle, limitation of speech must remain an exception’.11 The Rabat Plan of Action insisted that this means that ‘it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers’ and ‘for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith’.12 Furthermore, the Rabat Plan of Action was critical of the very nature and existence of blasphemy laws, concluding that At the national level, blasphemy laws are counter-productive, since they may result in the de facto censure of all inter-religious/belief and intrareligious/belief dialogue, debate, and also criticism, most of which could be constructive, healthy and needed. In addition, many of these blasphemy laws afford different levels of protection to different religions and have often proved to be applied in a discriminatory manner. There are numerous examples of persecution of religious minorities or dissenters, but also of atheists and non-theists, as a result of legislation on religious offences or overzealous application of various laws that use a neutral language. Moreover, the right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or a belief that is free from criticism or ridicule.13

10 11

12 13

RPA 3, para. 15. Human Rights Committee, General Comment No. 34 (CCPR/C/GC/34), adopted 11 September 2011, quoted in RPA 4, para. 18. RPA 3–4, para. 17. RPA 4, para. 19.

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The Rabat Plan of Action recommended, inter alia, that States that have blasphemy laws should repeal these, ‘as such laws have a stifling impact on the enjoyment of freedom of religion or belief and healthy dialogue and debate about religion’.14 Although the specific influence of the RPA is questionable, nevertheless, in many Western societies there has been a significant trend towards the repealing or re-configuring of laws prohibiting blasphemy. Norman Doe in his magisterial study of the law relating to religion in European States stated that ‘in most States the offence of blasphemy has been abolished’ and that this trend is identifiable regardless of the model of church–state relations that exists in each State.15 For example, in Germany, section 166 of the Criminal Code was changed in 1969, and a crime of blasphemy which ‘referred initially to an insult addressed to the Gods, i.e. to an open denial, insult, or derision of certain belief contents of a religion’ was abolished. The current section instead contains an offence of insulting ‘the content of others’ religious faith or faith related to a philosophy of life in a manner that is capable of disturbing the public peace’.16 A similar change occurred in English law in 2008, when the common-law offence of blasphemy that protected religious beliefs (and exclusively Christian ones at that) was repealed and replaced by offences of stirring up religious hatred that are intended to protect believers.17

4.2

The Lingering Afterlife of Blasphemy

It could be thought that the move in international law from prohibiting defamation of religious beliefs to prohibiting hatred against religious believers and the abolition of offences of blasphemy in many national

14 15

16

17

RPA, 5. Norman Doe, Law and Religion in Europe (Oxford: Oxford University Press, 2011), p. 141 at p. 142. For discussion and critique of the three models of the Church-State relations in Europe, see ibid., 28–38 and 259–262; Russell Sandberg and Norman Doe, ‘Church–State relations in Europe’ (2007) 1:5 Religion Compass 561; and Russell Sandberg, ‘Church–State relations in Europe: From legal models to an interdisciplinary approach’ (2008) 1:3 Journal of Religion in Europe 329. Richard Puza, ‘Religion and criminal law: Germany’, in Matti Kotiranta and Norman Doe (eds.), Religion and Criminal Law (Leuven: Peeters, 2013), p. 97 at pp. 97–98. For a detailed analysis, see the chapter ‛Legal Protection of Religion in Germany’ by Matthias Cornils in this volume. Criminal Justice and Immigration Act 2008, s. 79; Racial and Religious Hatred Act 2006. For a detailed analysis, see the chapter ‛Freedom of Expression, Blasphemy and Religious Hatred: A View from the UK’ by Erica Howard in this volume.

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laws have led to a significant change in how religion is regulated by the criminal law. It may be thought that these developments have led to the emergence of a right to blaspheme. By analysing the difference between former blasphemy laws and the newer offences which replaced them, it is possible to identify what is now lawful that was previously unlawful. Similarly, this also permits us to map the contours and limits of an emergent right to blaspheme by exploring the unintended consequence of the changing focus of the legislation. In Germany, for example, the new right to blaspheme post-1969 would appear to include the right to deny, insult or deride beliefs provided that such actions do not disturb the peace. And in respect of England, where there has been a clear move from protecting beliefs to protecting believers, the right to blaspheme post-2008 can be said to include the right to criticise, mock and defame beliefs provided that such actions do not stir up hatred against religious believers. However, there are a number of problems with this approach. The first is that, although there has been a move away from offences that explicitly refer to blasphemy, in most States there remain a number of blasphemy-like provisions. Indeed, in Sweden, where blasphemy was removed by Parliamentary motion in 1970, the rationale was in part because it was argued that ‘there were several other offences through which the law provided protection for religions in the same way as the protection provided by the offence of blasphemy’.18 In many European States where blasphemy has been abolished there now exist offences of defamation of religions which continue to protect religious beliefs. In Portugal, an offence of outrage against the religion of the kingdom was repealed following the introduction of republicanism and a move towards separation.19 However, Portuguese law still includes blasphemy-like offences involving the defamation or outrage in public of persons by reference to religion, publicly mocking another person on grounds of religion in a way likely to disturb public peace, as well as public order offences such as desecration of a sacred place, hindering or disturbing public worship, funerals and graves.20 And in Austria, while it is true to say the abolition of the offence of blasphemy means that there is

18

19 20

Lars Friedner, ‘Religion and criminal law: Sweden’, in Kotiranta and Doe (eds.), Religion and Criminal Law, p. 255. Penal Code 1852, Art. 130; Decree of 15 February 1911, Art. 4. Penal Code 1998, Artt. 240, 251, 252, 253 and 254. See José de Sousa e Brito, ‘Religion and criminal law in Portugal’, in Kotiranta and Doe, Religion and Criminal Law, p. 215.

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‘no offence of blasphemy as such’,21 the Penal Code includes an offence of disparaging religious doctrines in public including the objects of worship, religious doctrine and legally permissible observances as well as preventing lawful worship or committing mischief in circumstances calculated to give rise to public nuisance there.22 Indeed, these public-order provisions seem common to European States. Doe has stated that it is a principle of religion law common to the States of Europe that ‘No one may intentionally disturb worship and ritual in a public sacred place’ and that the State may criminalise the disruption of religious worship.23 Doe also asserts that it is also a common principle that ‘no one may in public intentionally defame religious doctrines’ and has contended that the move from offences of blasphemy to offences of the defamation of religions reflects a change of rationale now based on ‘public order rather than overt recognition of any value inherent to the religious doctrine attacked’.24 However, the fact remains that such offences are protecting attacks on belief rather than believers. Doe’s inclusion of a principle that ‘The State may penalize with criminal sanctions the vilification of religion’ is telling.25 It suggests that, at the least, talk of a general move away from blasphemy offences is overstated and that there continue to exist clear differences between States. The right to blaspheme which appears to exist in Germany post-1969 and England post-2008 does not seem to be reflected on the continent as a whole. It is possible, however, to over-state the degree of continuity. There have been important changes in the transition from blasphemy to defamation of religion, most notably a move from offences that protect a particular religious tradition towards offences that either protects religions generally or religious believers as a group. For example, in Spain the offence of blasphemy (defined as ‘uttering injurious words against God, the virgin Mary or the saints’) was removed from the penal code in 1988, and Spanish law now has an offence of defamation and outrage that protects religious teachings and beliefs of all religions without distinction.26 21

22 23 24 25 26

Richard Potz and Brigitte Schinkele, ‘Religion and criminal law in Austria’, in Kotiranta and Doe, Religion and Criminal Law, p.  14. The offence was abolished by Penal Law Amendment Act 1975. Articles 188–189. Doe, Law and Religion in Europe, p. 264, principles 29–30. Ibid., 264, principles 28 and 144. Ibid., 264, principle 30. Agustin Motilla, ‘Religion in Spanish criminal law’, in Kotiranta and Doe, Religion and Criminal Law, p. 241 at pp. 241–242. The offence was abolished by Organic Law 5/1988, June 5.

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Moreover, not all States have a specific offence of defamation of religion.27 This is particularly true of several Central and Eastern European countries where the former offence of blasphemy was not reinstated following the collapse of communism.28 In Hungary, there is no offence similar to that of blasphemy apart from laws protecting national symbols.29 Hungarian criminal law has an offence of violating another person’s freedom of conscience or exercise of religion by violence or by duress and offences of violence against a member of a religious group, but there are no special rules for defamation of religion other than general hate speech laws and rules on defamation, libel, desecration and public nuisance.30 In such countries, there is a much greater right to blaspheme than in States which continue to have criminal offences based on protecting beliefs (albeit in the public sphere only) rather than believers.

4.3

The Origin and Extent of the Right to Blaspheme

Overall, therefore, the effect of the abolition of blasphemy upon the right to blaspheme has not been as great as it may be assumed. However, that does not mean that the right to blaspheme does not exist. The origins of that right date back much further than the repeal of blasphemy laws. A historical analysis shows that the abolition of the blasphemy offences had a much more limited effect on the right to blaspheme than may be popularly assumed. The German and English experiences enlarged rather than created the right. In both jurisdictions, and in Europe as a whole, there has long been a right to blaspheme. But if it was against the law to blaspheme, how could there be a legal right to commit a legal wrong? The answer to this lies in a more nuanced appreciation of the offence of blasphemy. Conduct which does not constitute the precise actus reus of the offence is, by definition, permitted. It follows that the right to blaspheme will differ substantially from jurisdiction to jurisdiction. To understand the extent of the right to blaspheme today, a historical approach is required, and we need to narrow our attentions onto one jurisdiction: England.

27 28 29

30

Doe, Law and Religion in Europe, p. 145. Ibid., 142. Balázs Schanda, ‘Religion in criminal law: Hungary’, in Kotiranta and Doe, Religion and Criminal Law, p. 121. Articles 174, 179–181 and 271.

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The English Right to Blaspheme before the Abolition of the Offence of Blasphemy

The English Reformation of the 1530s provides a convenient starting point for this historical study. The first phase of the Henrician legislation asserted the supremacy of the King as the ‘taken, accepted and reputed the only supreme head in earth of the Church of England’ and invested in the monarch the power to ‘repress, redress, reform, order, correct, restrain, amend all such errors, heresies, abuses, offences, contempts and enormities whatsoever they be’.31 Criminal sanctions were created to punish those who did not conform to the King’s faith.32 But Henry VIII seemed ‘to have thought that the break with Rome could be carried through without altering the doctrine and worship of the English church’.33 Unlike the Continental Reformation, England’s break with Rome was not a religious upheaval that required political and constitutional legitimation; it was rather a political and constitutional act that led in time to religious consequences. The English Reformation nonetheless resulted in a prescriptive religious uniformity. Under Henry VIII, the Act of the Six Articles 1539 made it an offence to say or print any opinions contrary to the Articles; it also made refusing to confess or receive the sacrament an offence.34 Parliament thereafter regularly legislated on doctrinal matters. Under the short reign of Edward VI, for instance, the Sacrament Act 1547 provided that Parliament had the power to excommunicate and stated that the sacrament of the Eucharist was to include both bread and wine;35 while Acts of Uniformity in 1549 and 1552 mandated the use of the Book of Common Prayer during worship and made the use of any other ceremony or the speaking of anything derogating from the book an offence.36 The effect of the Reformation was to make alternative religiosity illegal and to make adherence to the faith of the monarch a prerequisite for being a subject. This insistence upon religious uniformity, decreed by legislation and in practice enforced by the church courts, meant that there was no 31

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Act of Supremacy 1534, 26 Henry III, c1. See Geoffrey R. Elton, The Tudor Constitution, 2nd edn (Cambridge: Cambridge University Press, 1982), pp. 364–356. Treasons Act 1534, 26 Henry VIII, c13. See Elton, The Tudor Constitution, pp. 62–64. Geoffrey R. Elton, ‘The Reformation in England’, in G. R. Elton (ed.), The New Cambridge Modern History Volume 2: The Reformation, 1520–1559, 2nd edn (Cambridge: Cambridge University Press, 1990), p. 262 at p. 275. 31 Henry VIII, c14. See Elton, The Tudor Constitution, pp. 399–401. 1 Ed VI, c1. 2 & 3 Ed VI, c1; 5 & 6 Ed VI, c1. See Elton, The Tudor Constitution, pp. 402–408.

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right to blaspheme against the religion of the State. Blasphemous utterances about religion other than that of the State were, however, not only permitted but tacitly encouraged. Such sentiments were to be found in the See of Rome Act 1536 referring to the ‘pretend power and usurped authority of the bishop of Rome, by some called the Pope’ and ‘his laws, bulls and other his deceivable means such dreams, vanities and fantasies’ which were ‘erroneous opinions’.37 The offence of blasphemy only extended to the State religion as shown by the case of Taylor,38 one of the earliest cases of blasphemy to be heard by the ordinary criminal courts in the seventeenth century. In that case it was established that blasphemy was akin to treason: the Chief Justice of the day held that Taylor’s cry that ‘Jesus Christ was a bastard, an impostor and a cheat’ was ‘not only an offence to God and to religion, but a crime against the laws, state and Government’. He reasoned that to undermine religion was ‘to dissolve all those obligations whereby the civil societies are preserved’; since ‘Christianity is parcel of the Laws of England’, it followed that ‘to reproach the Christian religion is to speak in subversion of the law’.39 Thus there was no right to blaspheme against the religion of the State: any utterance that breached the religious orthodoxy of the time was unlawful. However, the slow and faltering advance of religious tolerance brought changes to the offence of blasphemy in a series of court decisions in the seventeenth to nineteenth centuries;40 over time the rigid line drawn by the Reformation statutes became blurred. Some suggest that the exact scope of the offence of blasphemy was difficult to determine,41 but it was no more uncertain than other common-law offences. The case law gives both a clear outline of the essence of the offence and the contours of the implicit right to blaspheme.42 By the twentieth century, it was clear that the actus reus of blasphemy was to publish ‘blasphemous’ material in any form, written or verbal,

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28 Henry VIII, c10. See Elton, The Tudor Constitution, pp. 365–367. (1676) 1 Vent 293. See House of Lords Select Committee on Religious Offences in England and Wales, Report (2003), Volume I, Appendix 3, para. 2. Blasphemy was originally both a statutory and a common-law offence. However, the Criminal Law Act 1967 repealed the Blasphemy Act 1697. See, e.g., Anthony Bradney, Religions, Rights and the Law (Leicester:  Leicester University Press, 1993), p. 82; David Feldman, Civil Liberties and Human Rights in England and Wales (Oxford: Oxford University Press, 2002), p. 913. See, e.g., Peter W. Edge, Legal Responses to Religious Difference (The Hague:  Kluwer Law, 2002), pp. 207–211.

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and to be ‘blasphemous’, the content of the material had to be both in conflict with the tenets of the Church of England and couched in indecent or offensive terms likely to shock and outrage the feelings of the general body of Anglicans. This meant that the right to blaspheme had been extended:  it was now possible to be critical of the religion of the State provided that such criticism was not indecent or offensive. Case law established, for example, that the offence was not committed by the publication of a self-confessed anti-Christian work43 and the registration of a company promoting the principle that human conduct should be based upon natural knowledge and not supernatural belief.44 It was accepted that the offence of blasphemy did ‘not protect religious beliefs as such’ but rather was ‘concerned with attacks on those beliefs expressed in highly offensive ways’.45 This was not an invention of the twenty-first century: it long predated the abolition of the common-law offence of blasphemy and the creation of crimes of religious hatred. The common law had subtly altered the rationale of the offence so that ‘if the decencies of controversy are observed, even the fundamentals of religion may be attacked’46 and that ‘reasonable men do not apprehend the dissolution or the downfall of society because religion is publicly assailed by methods not scandalous’.47 The ingredients of the offence of blasphemy were subject to subtle but significant change over time, as it was interpreted by the courts. In the 1922 case of R v. Gott,48 the selling of a newspaper that described Jesus as entering Jerusalem ‘like a circus clown on the back of two donkeys’ was held blasphemous on the basis that the passages were ‘equally offensive to anyone in sympathy with the Christian religion, whether he be a strong Christian, or a lukewarm Christian, or merely a person sympathising with their ideas’. However, save for the Gay News case (discussed in what follows) there was no judicial consideration of the scope of blasphemy until 2007. In the case of Green v. The City of Westminster Magistrates’ Court,49 a member of Christian Voice sought to bring a private prosecution for blasphemous libel against the producer of Jerry Springer: The Opera and the Director General of the BBC. The High Court held that the District Judge had been entitled to conclude that the play as a whole was not and could 43 44 45 46 47 48 49

R v. Ramsay and Foote (1883) 15 Cox CC 231. Bowman v. Secular Society Ltd [1917] AC 406. Stephen’s Digest of the Criminal Law (London: Sweet & Maxwell, 1950), art. 2.14. R v. Ramsay and Foote (1883) 15 Cox CC 231. Bowman v. Secular Society Ltd [1917] AC 406. (1922) 16 CR App R 87. [2007] EWHC (Admin) 2785.

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not reasonably be regarded as aimed at Christianity or at what Christians held sacred. It was apparent from the claimant’s own description of the work (and confirmed by the Court’s own brief viewing of a recording) that the target of Jerry Springer: The Opera was ‘the tasteless “confessional” chat show, rather than the Christian religion’.50 Moreover, there was no evidence before the District Judge justifying a finding of prima facie damage to society or of the risk of civil strife. This would seem to suggest a narrowing of the ingredients for the offence. It also makes plain that the right to blaspheme was enlarged provided that the criticism, ridicule or satire did not appear to damage society or risk civil strife. The language of the test as outlined in Green v. The City of Westminster Magistrates’ Court sounds similar to the language of religious hatred offences as widely recognised in international human rights instruments and suggests that the common law would have inhabited that territory without any legislative reform.51 One point of interest was the extent to which the offence of blasphemy protected Christian denominations other than the Church of England. By the nineteenth century, it seemed that judicial pronouncements were becoming increasingly contradictory. In the Gathercole case,52 it was noted that a person could lawfully attack ‘any sect of the Christian Religion (save the established religion of the country)’ because the Church of England alone is ‘the form established by law, and is therefore a part of the constitution of the country’. However, the judgment also stated that ‘any general attack on Christianity is the subject of criminal prosecution, because Christianity is the established religion of the country’.53 This confusion can perhaps be explained as a throwback to pre-toleration understandings that saw ‘Christianity’ and the ‘Church of England’ as being synonymous. The law mirrored the view of the character Parson Thwackum in Henry Fielding’s novel Tom Jones, originally published in 1749:  ‘When I mention religion, I mean the Christian religion; and not only the Christian religion, but the Protestant religion; and not only the Protestant religion,

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Ibid., [8]. For a general discussion, see Mark Hill and Russell Sandberg, ‘Blasphemy and human rights: An English experience in a European context’ (2009) 6 Derecho y Religión 145–159. (1838) 2 Lewin 237. See also Stephen’s Digest of the Criminal Law, which defined blasphemous matters as those ‘relating to God, Jesus Christ or the Bible, or the formulation of the Church of England as by law established’, art. 2.14, quoted by the House of Lords in R v. Lemon, R v. Gay News [1979] AC 617.

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but the Church of England’.54 The offence of blasphemy protected the State religion, namely the established Church of England. However, the commonality of doctrines and beliefs as between the established Church of England and other Christian denominations meant that the common-law courts recognised what commentators have called ‘the Williams overlap’ principle.55 This was the notion that other Christian denominations and other religions were protected by the offence to the extent that their fundamental beliefs are those which are held in common with the established Church. This principle was elucidated in Williams,56 where a publication attacking the Old Testament was not interpreted merely as an attack upon Judaism. It was rather held that ‘the Old Testament is so connected with the New that it was impossible that such a publication as this could be uttered without reflecting upon Christianity itself ’. Other religious groups, Christian or not, were protected to the extent that their beliefs overlapped with those of the Church of England. This meant that the right to blaspheme extended only to utterances on beliefs and doctrines that were not shared by the established Church. Therefore in R v. Chief Stipendiary Magistrate ex parte Choudhury57 a private prosecution of Salman Rushdie following the publication of The Satanic Verses could not be commenced because its subject matter was not protected by the blasphemy offence. From the ingredients of the offence of blasphemy, it can be inferred that a right to blaspheme had three limbs: first, there was a right to blaspheme in relation to doctrines and beliefs held by the Church of England providing that such criticism, attack or derision was not offensive;58 second, there was a right to blaspheme in relation to doctrines and beliefs other than those held by the Church of England (provided that there was no breach of the criminal law), and third, there was a right to blaspheme in the use of religious imagery in attacks that were not aimed at religion. This last limb would seem to suggest that the blasphemer’s motivation was a relevant consideration in determining whether an offence had been committed. However, this was not the case. The mens rea of blasphemy was firmly established in the last successful prosecution in the House of

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Henry Fielding, The History of Tom Jones, A Foundling (London: Dent, 1998), p. 98. Russell Sandberg and Norman Doe, ‘The strange death of blasphemy’ (2008) 71:6 Modern Law Review 971, 973. (1797) 26 St Tr 654. [1991] 1 QB 429. The threshold for offensiveness being societal harm or the risk of civil strife.

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Lords case of R v. Lemon, R v. Gay News.59 It was held that the defendant must have intended to publish the blasphemous material, but there was no requirement that he had an intention to blaspheme.60 It was for the prosecution to prove (1)  that the publication had been intentional and (2) that the subject matter was objectively blasphemous. However, the fact that this was the last successful prosecution was telling. The poem that was the subject of the litigation in R v.  Lemon in 1979, ‘The Love That Dares to Speak Its Name’, was broadcast on BBC television in 200161 and recited publicly in 2002.62 On neither occasion did it give rise to a prosecution. This might suggest that the right to blaspheme has grown larger over two decades. However, it may be doubted whether the absence of prosecutions did extend the right to blaspheme. Ironically, it led to the opposite conclusion. Since the offence remained on the statute books, blasphemy was policed extra-legally. It was curtailed ‘by the fears, anxieties and sensitivities of individuals’ rather than by law.63 For instance, in the 1970s, copies of Siné’s Massacre, a French cartoonist’s book of anti-clerical cartoons (some of which had a sexual theme), were burned; permission to film in Britain a motion picture entitled The Many Faces of Jesus detailing Jesus’s sex life was denied; and Mary Whitehouse led a campaign against Monty Python’s Life of Brian.64 Publications that were legitimately within the right to blasphemy were subject to ‘policing by pressure group’. This extra-judicial enforcement of the law (or, to be more accurate, an imprecise misapprehension of the law) was not limited to pressure groups but was also performed by decision-making bodies such as local

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[1979] AC 617. Peter W. Edge, Legal Responses to Religious Difference (The Hague: Kluwer Law, 2002), pp. 209–210. During the course of the BBC 2 television programme Taboo (broadcast 12 December 2001), the text and cartoon drawing published in Gay News were shown on the screen while Joan Bakewell read out a section of the poem. The response from the BBC’s Head of Programme Complaints Unit was that this ‘was responsible and appropriate to the subject matter and the inclusion of part of the poem was justified. [The] change in public attitudes over time has extended the degree of tolerance’. In 2002, a group from the National Secular Society arranged a public recitation of ‘The Love That Dares to Speak Its Name’ to commemorate the twenty-fifth anniversary of the prosecution. Advanced notice was provided in the press. Again, there was no police action. See Richard Webster, A Brief History of Blasphemy (Southwold:  Orwell Press, 1990), Chapter 1. See Robert Hewison, Monty Python:  The Case Against (London:  Eyre Methuen, 1981), pp. 66–67.

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councils and the British Board of Film Classification in deciding whether to grant licences to art forms such as films which they deemed blasphemous. One such decision was held to be lawful by the European Court of Human Rights. In Wingrove v. the United Kingdom,65 the refusal to issue a certificate for Wingrove’s Visions of Ecstasy66 was held not to breach the European Convention on Human Rights since the interference with freedom of expression was prescribed by law, had a legitimate aim in protecting the rights of others, was necessary in a democratic society given that the film made serious offensive attacks on matters regarded sacred by Christians and was proportionate given the ‘high threshold of profanation embodied in the definition of the offence’ of blasphemy.67 Although it is difficult to reconcile this decision with Green v. The City of Westminster Magistrates’ Court, the decision may well have been different had the issue concerned the commission of the offence of blasphemy rather than whether the State’s actions were Convention compliant. The European Court of Human Rights had consistently upheld the compatibility of the English common law of blasphemy with the European Convention on Human Rights68 and stressed that freedom to manifest religion does not amount to a right to be exempt from all criticism,69 while freedom of expression contains ‘a duty to avoid expressions that are gratuitously offensive to others and profane’.70 The interpretation of the law was therefore muddled, but the law itself was clear: an ascertainable right to blaspheme existed at common law prior to the enactment of the Racial and Religious Hatred Act 2006 and the abolition of the common law offence of blasphemy.71 65 66

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Wingrove v. the UK, Application no. 17419/90, judgment of 25 November 1996. The eighteen-minute-long silent film was derived from the life and writings of St Teresa of Avila, a sixteenth-century nun, who experienced ecstatic visions of Christ. The film showed scenes of a sexual nature juxtaposed with images of Christ fastened to the Cross. The film ends with St Teresa kissing and licking the body of Christ and placing her hand in his, which he then holds. Compare the decision of the Commission, which held that the interference was not necessary in a democratic society. The total ban was disproportionate. Since the film was a video rather than cinematic release, it was unlikely to be displayed to general public. Its short length meant conscious decision to view was required, so there was no pressing social need. Gay News Ltd v. the United Kingdom, Application no. 8710/79, judgment of 7 May 1982; Choudhury v. the United Kingdom, Application no. 17439/90, decision of inadmissibility of 5 March 1991. İ.A. v. Turkey, Application no. 42571/98, 13 September 2005, para. 28. Ibid., para. 24. By s. 79 of the Criminal Justice and Immigration Act 2008.

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4.3.2

The English Right to Blaspheme after the Abolition of the Offence of Blasphemy

The enactment of the Racial and Religious Hatred Act 200672 was an important development in the steady progression to abolition of the criminal offence of blasphemy. In 1981, the Law Commission proposed abolition,73 and the House of Lords Select Committee on Religious Offences concluded in 2003 that the offence was a dead letter, contending that ‘any prosecution for blasphemy today … is likely to fail on grounds either of discrimination or denial of the right to freedom of expression’.74 However, the Racial and Religious Hatred Act 2006 was not a direct replacement for blasphemy. Although this was the original stated intent of the government, with the then Home Secretary, David Blunkett, telling the House of Commons in 2001 that the Government’s position was that ‘There is a good case for revising and, indeed, removing existing blasphemy law,’75 by the time the legislation was finally passed it was silent on this matter, and the House of Lords voted down an amendment to abolish the law on blasphemy at Report Stage by 153 votes to 113;76 successive speakers questioned whether it was the right time and the right Bill for such an amendment.77 Although their lordships noted that there was ‘broad consensus outside the House for change’,78 the amendment fell largely because the Church of England Bishops had given ‘a red signal to [the] amendment

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On which see Russell Sandberg and Norman Doe, ‘The changing criminal law on religion’ (2008) 161 Law and Justice 88. Law Commission (1981) ‘Offences against Religion and Public Worship’, (Working Paper No. 79). House of Lords Select Committee on Religious Offences in England and Wales, Report (2003), Volume I, Appendix 3, para. 9. David Blunkett, HC Deb Column 707, 26 November 2001. 8 November 2005. As Lord Avebury noted, this was simply the latest in a long line of debates concerning the future of the offence, including debates surrounding the Blasphemy (Abolition) Bill of 1995; the Anti-Terrorism, Crime and Security Bill of 2000; the Religious Offences Bill of 2002; the Serious Organised Crime and Police Bill in 2004 and at Second Reading of the Racial and Religious Hatred Bill itself: Hansard, HL, col. 520, 8 November 2005. E.g., ‘If religious hatred is nothing to do with blasphemy, let the two be dealt with separately’: then Lord Bishop of Oxford, ibid., col. 52; ‘it would be totally wrong to move forward with the clause as it stands at this stage when there will be no proper opportunity to consider the wider implications’: Lord Crickhowell, ibid., col. 528. Baroness O’Cathain’s contribution (ibid., cols. 532–533) is an exception to this overall picture. Baroness Whitaker, ibid., col. 535.

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but a green signal to the principle’;79 the conclusion was simply ‘not in this Bill’.80 Nevertheless, the Act, when finally enacted, had a significant impact upon the common law offence of blasphemy (and therefore the right to blaspheme), albeit one that was never tested judicially given the subsequent abolition of the common-law offence.81 The Act amended the Public Order Act 1986 to create Part 3A entitled ‘Hatred against persons on religious grounds’. The Act, in the words of section 4(1), ‘creates offences involving stirring up hatred against persons on religious grounds’. It created numerous criminal offences protecting groups of believers from being threatened in a way that is defined by reference to religious belief or lack of religious belief.82 For each offence the words, behaviour, written material, recordings or programmes must be threatening and must be intended to stir up religious hatred. This was contrary to the original intentions of the government, who had wanted the offence to extend to also include ‘abusive or insulting’ words or behaviour and had wanted a dual mens rea whereby the prosecution would need to prove either intention to stir up religious hatred or that the defendant was being reckless as to whether religious hatred would be stirred up. The offences were further restricted in two ways: first, by the definition of religious hatred as ‘hatred against a group of persons defined by reference to religious belief or lack of religious belief ’.83 The reference to religion clearly meant that these new offences were broader than blasphemy laws, which had protected only the beliefs that had overlapped with those of the Church of England. By contrast, the 2006 Act sought to outlaw antisocial behaviour committed against people on grounds of religion. The protection extended far beyond the sensibilities of the established church: indeed, the protection is not focused on ‘religion’ as such but rather upon deviant acts that happen to involve ‘religion’. However, 79 80 81

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Lord Hunt of Wirral, ibid., col. 539. Baroness Scotland of Asthal, ibid., col. 540. The Act took four attempts to get onto the statute books. Even then the Act took a different form than the government had intended. The House of Lords had defeated the government on many key points, and the government was unable to get the bill back to its original state in the House of Commons since it lost by one vote when the then Prime Minister Tony Blair left early. The bill thus passed into law with Commons supporting some of the Lords’ amendments. For a full account, see Ivan Hare, ‘Crosses, crescents and sacred cows: Criminalising incitement to religious hatred’ (2006) Public Law 521; and Kay Goodall, ‘Incitement to religious hatred: All talk and no substance’ (2007) 70:1 Modern Law Review 89. Racial and Religious Hatred Act 2006, s. 29A.

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the provisions were not as inclusive as they might appear. Although the Explanatory Notes professed that the meaning of ‘religious belief or lack of religious belief ’ was deliberately broad,84 the reference to ‘religious belief ’ seems narrower than the term ‘religion or belief ’ used in human rights and discrimination law.85 It seems to exclude beliefs that are not religious and individual believers who cannot be identified with a larger group.86 Second, the offence is restricted by a freedom of speech provision which asserts that: Nothing in this Part shall be read or given effect in a way that prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs of practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.87

Although this provision is yet to be tested judicially and may be regarded as serving a largely symbolic function, it nevertheless articulates a right to blaspheme which arguably extends further than under the common law of blasphemy. Lord Averbury, in putting forward the amendment to abolish blasphemy, had suggested that the enactment of the Racial and Religious Hatred Act without the abolition of blasphemy would lead to ‘confusion between incitement to hatred of believers and hatred of beliefs themselves’ since the Act only forbade the former.88 However, that oversimplifies and overplays the difference between the two sets of offences. Under the blasphemy laws there was a criminal prohibition against publishing material aimed at Christianity and offending Christians; the 84 85

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Explanatory Notes, para. 12. On which see Russell Sandberg, Religion, Law and Society (Cambridge:  Cambridge University Press, 2014), Chapter  1; and Russell Sandberg, ‘Are political beliefs religious now?’ (2015) 175 Law & Justice 19. This mirrors trends in discrimination law as shown by Eweida v. British Airways [2010] EWCA Civ 80; and likewise, following Eweida and Others v. the United Kingdom Application nos. 48420/10, 59842/10, 51671/10 and 36516/10, judgment of 15 January 2013, is likely to be incompatible with Art. 9 of the European Convention on Human Rights. For further discussion of Eweida and Others v. the United Kingdom, see Sandberg, Religion, Law and Society, Chapter 5; and Mark Hill, ‘Religious symbolism and conscientious objection in the workplace’ (2013) 15 Ecclesiastical Law Journal 191. Public Order Act 1986, s. 29J. Section 29JA now provides a separate freedom of expression in relation to sexual orientation. Section 29JA was inserted by the House of Lords during the passage of the Criminal Justice and Immigration Act 2008. The Government sought to remove the section during the passage of the Coroners and Justice Act 2009, but this was again rejected by the House of Lords. Hansard, HL, col. 521, 8 Nov. 2005.

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offences created by the 2006 Act provide criminal prohibitions when a publication stirs up religious hatred or causes a public-order disturbance. The right to blaspheme was narrowed rather than widened by the 2006 Act. Prior to the 2006 Act, there existed two different rights to blaspheme:  a right to blaspheme against doctrines and beliefs held by the Church of England providing that such criticism, attack or derision was not offensive and the threshold for offensiveness became societal harm or the risk of civil strife and a right to blaspheme against doctrines and beliefs which were not also held by the Church of England (provided that there was no breach of the criminal law), and religious imagery could be freely invoked in attacks that were not aimed at religion. Following the 2006 Act, the second right to blaspheme was clarified: there was a right to blaspheme against religion provided that such actions were not threatening and there was no intent to stir up religious hatred. The first right to blaspheme still existed, but attacks on the doctrines or beliefs of the Church of England could now be protected under blasphemy laws or under the 2006 Act. The 2006 Act also created a third different right to blaspheme which previously had been subsumed into the second right: the right to blaspheme against doctrines and beliefs that are not shared by a group of persons defined by reference to religious belief or lack of religious belief (provided that there was no breach of the criminal law). Section 79 of the Criminal Justice and Immigration Act 2008, abolishing the common-law offences of blasphemy and blasphemous libel, effectively widened the first right to blaspheme. However, this did not result in a complete freedom to blaspheme against doctrines espoused by the Church of England. Rather, given the existence of the 2006 Act, it meant that there was now a right to blaspheme provided that such actions did not constitute an offence under the 2006 Act or any other criminal provisions. Given that public-order provisions clearly existed before the 2006 Act and that the Act was watered down by the requirement that the publication must be threatening and intended to stir up hatred towards a religious group in a way that does not infringe the defendant’s freedomof-speech rights, it may be questioned whether this right is particularly new and whether the 2006 Act is necessary. As we have seen, the common law had long recognised that blasphemy provisions only covered offensive utterances, and such utterances are likely to be prohibited under the general criminal law. It has long been the case that, broadly speaking, there has been a right to blaspheme provided that the defendant’s behaviour whilst blaspheming does not infringe the criminal law. The offences of

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blasphemy and religious hatred can simply be understood as providing glosses upon when such actions will be criminal. It therefore could be questioned whether such clarification is necessary. Putting to one side the question of the necessity of the Racial and Religious Hatred Act 2006, it is clear that the Act does clarify that there is a right to discuss, criticise, dislike, ridicule, insult or abuse religious beliefs provided that one’s actions in doing so do not commit a public-order or other criminal offence. This, however, is not new. To say that there has been a move from protecting beliefs to protecting believers is unhelpful. It has not been the case for a very long time that English criminal law has protected religious beliefs in the absence of a public-order offence. It is true that under the common law of blasphemy some beliefs were singled out for protection, but the criminal law would only intervene where there was a significant degree of offence – a threshold that was erected very high indeed by the twenty-first century. The effect of the 2006 Act is to render it irrelevant as to which religions would be offended provided that the offence is aimed at a religious group. Moreover, the Act made the threshold higher still: under these provisions, the criminal law will only step in if the attack on religion is threatening towards religious believers and intended to stir up religious hatred. It may be expected, however, that antisocial behaviour that falls short of this may well be prohibited by general public-order offences. Nevertheless, one thing is clear: a right to blaspheme existed both before and after the abolition of the offence of blasphemy and which was not absolute at either time.

4.4 Conclusion Much of the criticism directed at the existence of blasphemy offences, such as that by the Rabat Plan of Action and the Human Rights Committee’s General Comment No. 34, is based on the assumption that such offences are absolute. This chapter has demonstrated that this is erroneous:  the existence and contours of the offence of blasphemy vary considerably, and thus the extent of the right to blaspheme takes different forms. The trend towards the abolition of blasphemy offences seems to have created a right to blaspheme in many continental jurisdictions for the first time. What was previously prohibited is now implicitly permitted. However, this underestimates the extent to which criminal prohibitions overlap. New laws on defamation of religions often outlaw what was previously prohibited by blasphemy offences, such as attacks on belief in the public sphere. The rationale has changed from the sanctity of beliefs to the need

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to protect public order. In several jurisdictions such as England, the creation of new offences of stirring up religious hatred coupled with the abolition of the common law of offence of blasphemy demonstrates a move from protecting Christian beliefs to preventing religious hatred. However, a closer historical analysis of the position in England reveals a more complex picture. The right to blaspheme did not come into existence with the abolition of blasphemy offences in 2008. On the contrary, its provenance lies with the cessation of religious conformity enforced by the State. The developing case law of blasphemy offences created by stealth a right to blaspheme in respect of attacks on all doctrines and beliefs not shared by the State religion as well as any comment that was not considered to be offensive. Over time, this developed such that effectively a public-order disturbance or risk of such a disturbance had to be demonstrated. There was a general right to blaspheme provided that public order offences were not breached. The creation of offences of stirring up religious hatred, whilst strictly unnecessary, served to reinforce and broaden the right to blaspheme. The importance of freedom of expression was shown in the dilution of the ingredients and the inclusion of a freespeech clause which, though largely symbolic, is an enduring articulation of a right to blaspheme that had long existed. The eventual abolition of the offence of blasphemy was less dramatic given the longstanding right to blaspheme: there is now a legal freedom to publish such material in the absence of an express criminal prohibition. The changes to the law are cosmetic only. If, and only if, a blasphemous utterance is likely to cause a public order disturbance will the criminal law on religion intervene. The clash between freedom of religion and freedom of expression is often emotive. These are tensions that have caused bloodshed throughout history, and the twenty-first century is proving no exception. Given the passions raised by these issues, there is a need for a calm appraisal of legal instruments, looking less at what is prohibited and more at what is permitted. Rather than being side-tracked by ever-changing criminal prohibitions, a focus on continuity of permission provides a fresh perspective. Freedom of expression, espoused in various international instruments, including Article 10 of the European Convention on Human Rights, have drawn academic discussion into a sterile binary debate with freedom of religion under Article 9 set up in opposition. A detailed critique of the criminal law, however, reveals that the right to blaspheme was not born out of the post-war human rights movement but is woven into the cloth of our criminal law as a necessary and important by-product of the ingredients of the offence.

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PA RT   I I I On Western Legal Discourse against Blasphemy Laws

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5 Blasphemy, Freedom of Expression and the Protection of Religious Sensibilities in Twenty-First-Century Europe Peter   Cumper

5.1

Introduction

Should religious beliefs be protected from abuse, ridicule or vilification in a contemporary liberal state? Today there are some – most notably within Europe’s Muslim communities – who would answer this question in the affirmative. They would contend that curbs on ‘blasphemous’ or religiously offensive forms of expression can be justified. But what credence should be given to such claims? This chapter sets out to address these matters by exploring the extent to which law and policy makers in liberal European states should afford protection to religious beliefs – and whether ‘blasphemy’, in the sense of causing ‘affront to what is held sacred by others’,1 is a legitimate ground for curbing free expression in twentyfirst-century Europe. One might assume, at first glance, that blasphemy is today a dead issue, given the influence of secularism,2 the broad parameters of free speech3 and the relative paucity of such laws in European states.4 However, on a 1

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Austin Dacey, The Future of Blasphemy: Speaking of the Sacred in an Age of Human Rights (London: Continuum, 2012), p. 54. This inclusive definition is adopted because blasphemy inevitably means different things to different people in liberal, multi-cultural, European states. See, e.g., Lorenzo Zucca, A Secular Europe: Law and Religion in the European Constitutional Landscape (Oxford: Oxford University Press, 2012). The European Court of Human Rights has said that the right to freedom of expression ‘is applicable not only to “information” or “ideas” that are favourably received … but also as to those that offend, shock or disturb’, Handyside v. UK, Application no. 5493/72, judgment of 7 December 1976, para. 49. The following EU nations have blasphemy laws:  Austria, Denmark, Germany, Greece, Ireland, Italy, Malta and Poland. See the chapters on Denmark (by Eva Maria Lassen and Lars Grassmé Binderup), Germany (by Matthias Cornils), Greece (by Effie Fokas), Ireland

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closer analysis, it soon becomes clear that this is far from being the case. After all, in recent years, there have been numerous controversies, ranging from allegedly blasphemous films,5 plays6 and public performances7 to the highly contentious association of religious images with stamps,8 footballs9 and even milk cartons.10 Of course, the proliferation of these incidents in the press may (at least in part) be attributable to the way in which such matters are reported, with some news outlets exaggerating stories or portraying certain groups (e.g., Muslims) in particularly negative terms.11 Yet be that as it may, the sheer volume of such controversies has, especially in recent years, been striking. The reasons for the conspicuous increase in the number of ‘blasphemy’-related controversies are doubtlessly diverse and varied, but one thing is clear – in Europe (and the West more generally), the very notion of ‘blasphemy’, which was once ‘a relic of the benighted middle-ages’, can now be said to be ‘enjoying something of a popular revival’.12 This revival of blasphemy is often, at least in the general public’s mind, commonly associated with extreme acts (or threats) of violence.

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(by Tarlach McGonagle), Italy (by Cristiana Cianitto) and Poland (by Joanna Kulesza and Jan Kulesza) in this volume. See, e.g., James Robertson, ‘Visions of Ecstasy: A study in blasphemy?’ (2009) 6:1 Journal of British Cinema and Television 73–82. See, e.g., R (on the application of Green) v. The City of Westminster Magistrates Court [2007] EWHC 2785 [11], upholding an earlier legal ruling not to issue summonses for blasphemous libel in relation to Jerry Springer:  The Opera, a play that was condemned by some Christian groups as blasphemous because of its unflattering depiction of God, Jesus Christ and the Virgin Mary. Similarly, on the controversy surrounding the performance of a play in the UK (in 2005) that many Sikhs found to be offensive, see Ralph Grillo, ‘Licence to offend? The Behzti affair’ (2007) 7:1 Ethnicities 5–29. See, e.g., Sergei Prozorov, ‘Pussy Riot and the politics of profanation: Parody, performativity, veridiction’ (2014) 62:4 Political Studies 766–783. See, e.g., ‘Royal Mail’s Christmas stamp insults our religion, say Hindus’, Daily Telegraph, 1 November 2005, available at www.telegraph.co.uk/news/uknews/1501967/Royal-MailsChristmas-stamp-insults-our-religion-say-Hindus.html. See, e.g., ‘Anger over “blasphemous” balls’, BBC News, 26 August 2007, available at http:// news.bbc.co.uk/1/hi/world/south_asia/6964564.stm. See, e.g., ‘Blasphemy row over World Cup cartons’, The Scotsman, 25 May 2002, www .scotsman.com/news/blasphemy-row-over-world-cup-cartons-1-952880 See, e.g., Amir Saeed, ‘Media, racism and Islamophobia: The representation of Islam and Muslims in the media’ (2007) 1:2 Sociology Compass 443–462. Gauri Viswanathan, ‘Blasphemy and heresy:  The modernist challenge. A  review article’ (1995) 37:2 Comparative Studies in Society and History 399–412.

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Most notably, these include the fatwa on Salman Rushdie,13 the killing of the Dutch filmmaker Theo van Gogh,14 the global unrest generated by the Danish cartoons controversy in 2005–200615 and the murderous attack on the offices of Charlie Hebdo in 2015. Well-reported incidents such as these, perhaps unsurprisingly, tend to dominate news agendas. However, it is fallacious merely to characterise the ‘blasphemy’ debate in such narrow terms, not least because doing so risks ignoring a particularly important consideration – the fact that there are significant numbers of people of faith across Europe who eschew violence but are nonetheless strongly aggrieved by what they regard as the failure of the liberal state to protect their religious beliefs from abuse or vilification. For law and policy makers in Europe the challenge of accommodating a diverse range of interests, in seeking to strike an appropriate balance between the right to freedom of expression and the protection of religious sensibilities, is a noticeably daunting one. It is a difficult task that is compounded by the emotive nature of blasphemy, as well as an obvious lack of much common ground, for Europe is a continent that is increasingly secular, yet, at the same time, ever more multi-faith in nature. It is thus axiomatic, as one author has put it, that issues pertaining to blasphemy today constitute some of the most pressing ‘legal and philosophical dilemmas facing western governments’.16 This chapter aims to engage, critically, with a number of these ‘legal and philosophical dilemmas’. It begins by exploring what is meant by blasphemy in social and religious terms before examining blasphemy as a legal construct. Attention then turns to the central issue in this chapter:  the extent to which people of faith – and most notably Europe’s Muslims – should be afforded protection from the abuse of their religious beliefs. Various options are considered as to how competing interests and values in this area can be most appropriately balanced. In particular, three

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On the fatwa issued by the Ayatollah Khomeini in 1988 demanding Salman Rushdie’s execution following publication of his novel, The Satanic Verses, see Lisa Appignanesi and Sara Maitland, The Rushdie File (Syracuse: Syracuse University Press, 1989). On the murder of Dutch film maker Theo van Gogh in 2004, who produced a short film (Submission) that criticized Islam, see Ron Eyerman, The Assassination of Theo van Gogh: From Social Drama to Cultural Trauma (Durham: Duke University Press, 2008). On the global outrage and violence triggered by the decision of a Danish newspaper (Jyllands-Posten) in 2005 to publish cartoons depicting the prophet Muhammad, see Kevin Boyle, ‘Danish cartoons’ (2006) 24:2 Netherlands Quarterly of Human Rights 185–191. David Nash, Blasphemy in the Christian World:  A  History (Oxford:  Oxford University Press, 2007), p. 1.

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different approaches are examined. First, a ‘blasphemy’ model, in which it is unlawful to insult or vilify religious beliefs. Second, an incitement-toreligious-hatred model, whereby legal protection is extended to the members of faith communities (‘believers’), but not to their actual ‘beliefs’. And third, a self-restraint model, in which matters pertaining to the vilification of another’s beliefs are governed primarily by social rather than legal norms. It is acknowledged that all of the three models have significant shortcomings, and it is argued that new strategies are needed for the resolution of disputes in this most contentious of areas.

5.2

The Social and Religious Characteristics of ‘Blasphemy’

‘Blasphemy’ is a nebulous and elastic term. It is open to a range of different interpretations and is ‘culturally relative’ in the sense that it ‘depends upon the truths that a community most values’.17 For example, in a western context, blasphemy has been variously defined as ‘speaking evil of sacred matters’,18 standing for ‘whatever a society most abhors’19 and constituting ‘the use of language, or behavioural acts that scorn the existence, nature or power of sacred beings, items or texts’.20 Whilst there is ‘no exact equivalent in Islam of the Judeo-Christian notion of blasphemy’,21 blasphemy, from an Islamic perspective, has been said to include matters such as ‘the use of foul language primarily against the Prophet Muhammad … God, or any of his angels or prophets’,22 ‘verbal expression that gives grounds for suspicion of apostasy’23 and ‘expressing religious opinions at variance with standard Islamic views’.24

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David Lawton, Blasphemy (Philadelphia: University of Pennsylvania Press, 1993), p. 4. Leonard W. Levy, Treason against God: A History of the Offense of Blasphemy (New York: Schocken, 1981), p. 3. Lawton, Blasphemy, p. 3. David Nash, ‘Analyzing the history of religious crime:  Models of “passive” and “active” blasphemy since the Medieval period’ (2007) 41:1 Journal of Social History 6. Geoffrey Brahm Levey and Tariq Modood, ‘The Danish cartoon affair’, in Geoffrey Brahm Levey and Tariq Modood (eds.), Secularism, Religion and Multicultural Citizenship (Cambridge: Cambridge University Press, 2009), p. 223. See Abdullahi Ahmed An-Na’im, Islam and the Secular State (Cambridge, MA:  Harvard University Press, 2008), p. 121. Riaz Hassan, ‘Expressions of religiosity and blasphemy in modern societies’, in Elizabeth Burns Coleman and Kevin White (eds.), Negotiating the Sacred: Blasphemy and Sacrilege in a Multicultural Society (Canberra: ANU, 2006), p. 122. Ibid.

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Scholars may proffer different definitions of blasphemy, but one issue on which there is general agreement is that blasphemy has had a particularly close association with the Abrahamic faiths.25 This may be partly due to the fact that, in contrast to world religions like Hinduism and Buddhism, religions such as Christianity, Judaism and Islam have traditionally placed considerable emphasis on words and language. For example, in the holy texts of Christianity and Judaism, it has traditionally been regarded as blasphemous to (respectively) speak ill of the Holy Spirit26 or to curse the name of God,27 whilst in Islam it has been said that ‘offering insult to God (Allah), to the Prophet Muhammad, or any part of the divine revelation constitutes a crime under Islamic religious law’.28 Another significant facet of blasphemy is the fact that disputes in this area can take a number of different forms. By way of illustration, ‘blasphemy’ may involve inter-faith disputes (e.g., where the members of one religion are accused of ‘blaspheming’ against another faith); intra-faith disputes (e.g., doctrinal disagreements, in which charges of blasphemy and heresy are levelled at others from within the same tradition); and secular-faith disputes (e.g., when a non-denominational media outlet publishes images that the members of a particular faith consider blasphemous). What is more (as noted briefly already), in some religious traditions there is a considerable overlap between blasphemy and apostasy, since abandoning the faith (or even expressing a desire to do so) is viewed as a form of blasphemy, given the insulting message that is inevitably sent to the community and (most crucially) to God.29 Whilst this is not uniquely a characteristic of the Muslim world,30 it is within Islam that the correlation between blasphemy and apostasy is particularly evident − a

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See Lawton, Blasphemy, p. 6. Indeed, it has been claimed that ‘blasphemy is a concept that is distinctive in Jewish, Christian and Islamic traditions of worship’, Terence McKenna, ‘Treason against God-some aspects of the law relating to blasphemy’ (2001) Southern Cross University Law Review 5, at 27. See, e.g., the Bible, Matthew 12: 30–32, and Mark 3: 28–29. See, e.g., the Bible, Leviticus 24: 10–23, and 1 Kings 21: 8–13. Riaz Hassan, ‘Expressions of religiosity and blasphemy in modern societies’ (2007) 35:1 Asian Journal of Social Science 111–125, at 122. See Adbullah Saeed and Hassan Saeed, Freedom of Religion, Apostasy and Islam (Burlington, VT: Ashgate, 2004), pp. 38–39. For example, the last recorded execution for blasphemy in Britain (1697) was that of a Scottish student, Thomas Aikenhead, who was condemned in his indictment for attacking Christianity and saying (inter alia) that he ‘preferred Mahomet to the blessed Jesus’. See generally, Michael F. Graham, The Blasphemies of Thomas Aikenhead: Boundaries of Belief on the Eve of the Enlightenment (Oxford: Oxford University Press, 2008).

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by-product of state practice,31 Quranic injunction32 and the fact that, in contrast to the west,33 the law of blasphemy in Islamic states is commonly seen as being necessary for the preservation of social order.34 Finally, the flexible and imprecise nature of blasphemy is illustrated by the difficulty of determining the most appropriate way of categorising it in human rights terms. For example, discussion of blasphemy in the relevant scholarly literature is typically characterized as being little more than a conflict between the competing principles of freedom of religion or belief and freedom of expression.35 Yet there may be circumstances in which the issue at hand is much more complicated than that. A case in point is provided by the philosopher Austin Dacey, who points out that when the Ahmadi employ their call to prayer (the azan) ‘as part of their spiritual practice’, they are ‘blaspheming against conservative Sunni belief ’ – whereas, by the same token, ‘the intolerant religious practices of the conservative Sunni [are also] “expressions” that blaspheme what is sacred to the Ahmadi’.36 As Dacey contends, ‘we miss something important, if we think of [such matters just] as “free speech”, rather than, say, manifestations of key tenets of religious belief ’.37 Thus, the task of distinguishing between a person’s exercise of their right to freedom of expression and the manifestation of their religious belief is often far from clear – and it would seem that such distinctions are not always fully grasped by key decision makers such as judges, who may have neither the time nor the technical ‘religious’ expertise to grasp, fully, the complexity of the issues at hand.38 31

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See, e.g., Perry Smith, ‘Speak no evil: Apostasy, blasphemy and heresy in Malaysian Syariah law’ (2003) 10 U.C. Davis Journal of International Law and Policy, 357, and David Forte, ‘Apostasy and blasphemy in Pakistan’ (1994) 10 Connecticut Journal of International Law 27. References to blasphemy in the Quran include 2:88; 4:155; 5:17; 5:64; 5:68; 5:73; 6:19; 9:74; 11:9; 14:28, and: 39:8. To the extent that blasphemy laws continue to be found in the west, their continued existence is based primarily on ‘the secular idiom of respect for persons’: Dacey, The Future of Blasphemy, p. 54. See, e.g., Mohammad Hashim Kamali, Freedom of Expression in Islam (Cambridge: Islamic Texts Society, 1997), who suggests that in Islam, blasphemy laws are necessary ‘to prevent sacrilege and serious threats to peace and order in society’ (p. 260). See, e.g., Caleb Holzapfel, ‘Can I say that?: How an international blasphemy law pits the freedom of religion against the freedom of speech’ (2014) 28 Emory International Law Review 597. Dacey, The Future of Blasphemy, pp. 14–15. Ibid. Similarly, in relation to matters relating to artistic freedom, Paul Kearns has questioned whether judges ‘are equipped with sufficient intellectual expertise in the area of art law to render justice for art when it is confronted with legal-moral controls’, Paul Kearns,

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5.3 Blasphemy and the Law In previous generations in Europe, given the traditionally close correlation between the interests of church and state whereby each was regarded as being responsible for maintaining divine authority on earth, the law was an important mechanism for the prohibition of blasphemy.39 In recent decades, however, attitudes have significantly changed. Today, with blasphemy laws in Europe having typically been repealed or in desuetude, the prevailing view, as articulated by a former British Minister, is that ‘the strength of [one’s] own belief is the best armour against mockers and blasphemers’ and that such ‘legal mechanisms for dealing with matters of faith and individual belief ’ have been shown to be ‘inappropriate’.40 The ‘inappropriate’ nature of the offence of blasphemy is especially relevant given that it is often difficult to predict in advance whether a person’s words or conduct will contravene a particular legal prohibition on blasphemy. Concern has been expressed about this state of affairs by Leonard Levy, who calls it ‘an odd principle’ that a ‘person cannot know whether he has committed a crime [of blasphemy] until the jury returns a verdict’ and that this has the effect of creating an undesirable situation whereby ‘people of common intelligence must necessarily guess at the meaning of a criminal law and differ about its application’.41 All of this inevitably leads to uncertainty and, as Clive Unsworth has observed, ‘[i]t is the tenuous and intangible nature of the harm against which the offence [of blasphemy] protects that causes especial outrage to liberal exponents of the pre-eminent value of freedom of expression’.42 The nebulous nature of blasphemy would appear to have influenced the approach of the European Court of Human Rights in its determinations in this area.43 A key issue in this regard has been the extent to which

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Freedom of Artistic Expression: Essays on Culture and Legal Censure (London: Bloomsbury, 2013), p. 8. See Leonard Williams Levy, ‘Treason against God; and Gerd Schwerhoff, ‘Horror crime or bad habit? Blasphemy in pre-modern Europe, 1200–1650’ (2008) 32:4 Journal of Religious History 398–408. John Patten, Minister of State, the Home Office, Letter to Muslim Leaders in Britain, 4 July 1989. Levy, ‘Treason against God’, p. 574. Clive Unsworth, ‘Blasphemy, cultural divergence and legal relativism’ (1995) 58 Modern Law Review, 658, 666. For a comprehensive overview of blasphemy cases before the ECtHR and for more detail on the trends and developments described here, see Lewis’s chapter in this volume, ‘At the Deep End of the Pool’.

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Article 9 of the ECHR (guaranteeing the right to freedom of thought, conscience and religion) should protect religious communities from vilification or ridicule and thereby restrict the Article 10 (freedom of expression) rights of others. The challenge of having to balance Articles 9 and 10 in a ‘blasphemy’ context was first addressed by the European Court in Otto-PremingerInstitut v. Austria.44 In this case a satirical film had been banned on the basis that it was likely to offend the religious feelings of the local (predominantly Catholic) population in the region where it was to be shown. The Court, in making reference to Article 10 of the Convention, held that restrictions on the film were necessary for the protection of ‘the [religious] rights and freedoms of others’45 and that ‘in the context of religious opinions and beliefs – [there] may legitimately be included an obligation [on individuals] to avoid as far as possible expressions which are gratuitously offensive to others’.46 The Court’s deferential approach to religion in Otto-Preminger is, however, in marked contrast to the Commission’s ruling earlier in the case. The Commission, in finding a violation of Article 10, had held that ‘a complete prohibition which excludes any chance to discuss the message of the film must be seen as a disproportionate measure except where there are very stringent reasons for such an act’.47 The Commission’s more dynamic ‘free speech’ approach is likely to be favoured by those who are concerned that the Court in Otto-Preminger was unduly deferential to the protection of religious sensibilities.48 Indeed, the Court’s ruling in Otto-Preminger has not just been attacked for ‘introducing the concept of “peaceful enjoyment of freedom of religion” … against offensive or “immoral” criticism’49 but has even led a former member of the Court (writing extra-judicially)

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Otto-Preminger-Institut v. Austria, Application no. 13470/87, judgment of 20 September 1994. For a more detailed analysis of this case, see the chapter by Lewis in this volume. Ibid., para. 46. Ibid. Otto-Preminger-Institut v.  Austria, Application no.  13470/87, judgement of 14 January 1993, paras. 73, 77. See, e.g., David Pannick, ‘Religious feelings and the European Court’ (1995) Public Law 7–8. Manfred Nowak and Tanja Vospernik, ‘Permissible restrictions on freedom of religion or belief ’, in Tore Lindholm, W. Cole Durham and Bahia G. Tahzib-Lie (eds.), Facilitating Freedom of Religion or Belief:  A  Deskbook (Leiden:  Martinus Nijhoff Publishers, 2004) p. 162.

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to argue that ‘Otto-Preminger should perhaps be seen in the light of its particular facts’.50 Notwithstanding the criticism levelled at its ruling in Otto-Preminger, the European Court continued to adhere to this approach in Wingrove v. UK,51 where it was held that the UK’s refusal to award a certificate permitting the distribution of a film about a nun’s erotic visions of Christ on the cross was justified by the need to protect the sensibilities of Christians. Similarly, in İ.A. v. Turkey,52 the Court further demonstrated its willingness to grant states a wide margin of appreciation in the area of blasphemy when it held that there had been a ‘pressing social need’ for a ban on a book which had been deemed offensive to Turkey’s majority-Muslim population. Yet in recent years, there appears to have been something of a change in emphasis. This has seen the Court, without expressly repudiating its approach in the earlier blasphemy cases, displaying a tendency to be less deferential to states in regard to the imposition of restrictions on publications criticising spiritual leaders or religious doctrines. Thus, for example, in Klein v.  Slovakia, the applicant’s conviction for defamation was held to violate Article 10 of the Convention following his publication of an article that criticised a Catholic archbishop.53 And likewise, in Giniewski v. France, an author’s conviction for defamation, for having written and distributed a paper that explored links between a doctrine developed by the Catholic Church and the origins of the Holocaust, was found to have breached Article 10.54 These cases appear to represent the Court retreating from its traditionally deferential approach to the state in ‘blasphemy’ cases. Ultimately, it remains to be seen how Strasbourg’s judges develop their jurisprudence in this area, but given the highly controversial nature of the subject matter, it is hard to imagine that there will be any radical change of direction in the foreseeable future. As noted, the European Court has been largely content to vest matters pertaining to blasphemy in the hands of states themselves by affording them a wide margin of appreciation in determining the parameters

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Willi Fuhrmann, ‘Perspectives on religious freedom from the vantage point of the European Court of Human Rights’ (2000) 3 Brigham Young University Law Review 829, at 837. Wingrove v. UK, Application no. 17419/90, judgement of 25 November 1996. İ.A. v. Turkey, Application no. 4257/98, judgement of 13 September 2005. Klein v. Slovakia, Application no. 72208/01, judgement of 31 October 2006. Giniewski v. France, Application no. 64016/00, judgement of 31 January 2006.

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of religious criticism.55 This heavy reliance on the margin of appreciation in blasphemy cases enables the Court to facilitate the speedy adjudication of complex and highly contentious disputes. But an obvious consequence of this approach is its failure to proffer detailed guidance on what is currently the most taxing question in this area – the extent to which minority religious beliefs, and most notably those of Muslims, should be afforded protection under European human rights law. A potential opportunity arose for the setting of standards a decade ago when the European Court received an application that challenged the publication, in a Danish newspaper, of caricatures of the Prophet Muhammad. However, it was declared inadmissible on procedural grounds due to the fact that the applicants (a Moroccan national and two Moroccan associations) were living and working in Morocco and thus had failed to satisfy the jurisdictional requirement of Article 1 of the Convention.56 By the same token, in the wake of the Salman Rushdie affair, when an application was submitted by British Muslims wishing to ban The Satanic Verses, it was rejected by the European Commission on the ground that Article 9 does not impose an obligation on the state to protect individuals from offence caused by other private citizens57 – a decision which, whilst resolving the case at hand, offers little by way of any further explanation. The European Court of Human Rights may be an institution of unquestionable importance, but its influence in this area has been somewhat modest and understated. Thus, when it comes to matters pertaining to hierarchies of rights and weighty questions about the parameters of free expression in relation to the protection of religious sensibilities – most notably in regard to the extent to which a magazine like Charlie Hebdo should, in principle, have a right to cause gross offence in twenty-first century Europe by satirising religious doctrines and, by implication, faith communities – there is a distinct lack of guidance from Strasbourg. Indeed, the absence of any general consensus across Europe on such matters has 55

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For example, in Wingrove v. UK, Application no. 17419, judgment of 25 November 1996, para. 58, the European Court acknowledged that it afforded a wide margin of appreciation to states in areas where free expression is ‘liable to offend intimate personal convictions within the sphere of morals or, especially, religion’. Ben El Mahi and others v. Denmark, Application no. 5853/06, judgment of 11 December 2006. Article 1 of the ECHR states that ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I  of this Convention’. Choudhury v. United Kingdom, Application no. 17439/90, 5 March 1991.

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been vividly demonstrated by a range of different public responses to the Charlie Hebdo affair.

5.4

Charlie Hebdo, Blasphemy and the Protection of Religious Sensibilities

The attack on Charlie Hebdo in 2015 is the latest in a series of well-reported incidents in recent decades in which those accused of insulting religious (or more specifically Islamic) beliefs have been the victims of extreme acts of violence. In this regard the words reportedly shouted by the gunmen as they stormed the offices of the Parisian satirical magazine (‘We have avenged the Prophet Muhammad’)58 are obviously important. But what weight should be attached to these words in determining the relevance of the attack to the current debate on blasphemy in Europe? There are those, for example, who minimise the ‘blasphemy dimension’ of the Charlie Hebdo attack, arguing that the atrocities committed that day ‘were not actually about the cartoons themselves’59 or even Islam60 but were more to do with other matters such as the anger of ‘disaffected European Muslim youths’,61 ‘the hypocrisies of the liberal state’,62 the West’s ‘pomposity about human rights’,63 the legacy of ‘France’s ugly colonial system’64 and ‘the realities of Islamophobia’.65 In contrast, at the other end of the spectrum, there are those who see the attacks in much more narrow terms, as highlighting the uneasy relationship between Islam and

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See BBC News, 14 January 2015, available at www.bbc.co.uk/news/world-europe-30708237. Myriam Francois-Cerrah, ‘Is the Charlie Hebdo attack really a struggle over European values?’ New Statesman, 9 January 2015, available at www.newstatesman.com/politics/2015/ 01/charlie-hebdo-attack-really-struggle-over-european-values. See Mark LeVine, ‘Why Charlie Hebdo attack is not about Islam’, 10 January 2015, available at www.aljazeera.com/indepth/opinion/2015/01/charlie-hebdo-islam-cartoon-terr20151106726681265.html Francois-Cerrah, ‘Charlie Hebdo attack’. Nadine El-Enany and Sarah Keenan, ‘I am Charlie and I guard the Master’s house’, 13 January 2015, available at http://criticallegalthinking.com/2015/01/13/charlie-guard-mastershouse/ Rabbi M.  Lerner, ‘Mourning the Parisian journalists yet noticing the hypocrisy’, The Huffington Post, 1 September 2015, available at huffingtonpost.com/rabbi-michael-lerner/ mourning-the-parisian-jou_b_6442550.html. Teju Cole, ‘Unmournable bodies’, The New  Yorker, 9 January 2015, available at www .newyorker.com/culture/cultural-comment/unmournable-bodies. Tithi Bhattacharya and Bill Mullen, ‘Rewinding the battle of Algiers in the shadow of the attack on Charlie Hebdo’, 14 January 2015, available at http://criticallegalthinking.com/ 2015/01/14/rewinding-battle-algiers-shadow-attack-charlie-hebdo/.

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free speech66 and being ‘the latest blows delivered by an ideology that has sought to achieve power through terror for decades’.67 Both of these two very different approaches are eschewed in this chapter on account of their latent deficiencies. The first approach is rejected because it fails to afford appropriate weight to the significance of freedom of expression, as is the second on account of its restrictive outlook and generally negative characterisation of Islam. Accordingly this chapter advances a third, more balanced approach which, whilst acknowledging the need to view the Charlie Hebdo attack within a wider socio-political context, accepts that the Paris attack was ‘[c]learly … an attack on free speech’68 − and that the different public reactions to the massacre demonstrate the challenges of drawing appropriate boundaries in a religiously diverse society between the right to freedom of expression and the protection of religious sensibilities. It is noteworthy that, in the aftermath of the attack, many Muslims, whilst condemning the violence of the attack, nonetheless refrained from proclaiming ‘Je suis Charlie’ on account of the magazine’s history of attacking Islam. As Sadia Saeed points out, there were marked differences in the responses of the Muslim and the Western worlds to the Charlie Hebdo attacks, for in Muslim countries, and by implication in some Muslim communities across Europe, showing solidarity with Charlie Hebdo was the minority position, while condemning Charlie Hebdo was ‘the politically and culturally safe position’.69 The real significance of these differences has perhaps been largely obscured by the widespread public outrage and revulsion which followed the Charlie Hebdo murders. As a result, with attention focused on the horrific nature of the attack, more general questions about the limits of free expression and respect for the religious sensibilities of faith communities remain unanswered.70 The Charlie Hebdo massacre may be open to a range 66

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See Ayaan Hirsi Ali, ‘How to answer the Paris terror attack’, The Wall Street Journal, 7 January 2015, available at www.wsj.com/articles/ayaan-hirsi-ali-how-to-answer-the-paristerror-attack-1420672114. See George Packer, ‘The blame for the Charlie Hebdo murders’, The New Yorker, 7 January 2015, available at www.newyorker.com/news/news-desk/blame-for-charlie-hebdo-murders? intcid=mod-most-popular. Gary Younge, ‘Charlie Hebdo: The danger of polarised debate’, The Guardian, 11 January 2015, available at www.theguardian.com/commentisfree/2015/jan/11/charie-hebdo-dangerpolarised-debate-paris-attacks. See Sadia Saeed, ‘The Charlie Hebdo affair and the spectre of majoritarianism’ (2015) 50:23 Economic and Political Weekly 37–41. For example, the paucity of research has been commented on by Mahmood, who, writing after the Danish cartoons controversy but before the Charlie Hebdo attack, complained

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of different interpretations, but it provides us with a topical vehicle for debating what is meant by ‘the responsibility that goes with free speech’ in relation to attacks on religious beliefs in contemporary Europe.71 Were such a meaningful debate to take place, various models for reform could include: (a) the ‘blasphemy’ model, whereby it would be unlawful to abuse another person’s (or group’s) religious beliefs; (b) an incitement to religious hatred model, whereby legal protection would be extended to the members of faith communities (‘believers’) rather than to their actual ‘beliefs’; and (c) a self-restraint model, whereby emphasis would be placed on social rather than legal norms in governing the regulation of attacks on religious beliefs. Each of these models will now, in turn, be critically analysed.

5.5 Models for Reform 5.5.1

The ‘Blasphemy’ Model: Resurrecting ‘Old’ Laws for a ‘New’ Europe?

In recent decades, there have been calls, most notably from some Muslim groups, for liberal states in Europe to protect the fundamental tenets of all religions from ridicule or vilification.72 A  ‘blasphemy model’ might range, for example, from the effective ‘recommissioning’ of seldom-used blasphemy laws that currently exist in a minority of European Union member states to the enactment of new legislation, based on say the Republic of Ireland’s Defamation Act 2009, that would make the defamation of

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that ‘[l]ittle attention has been paid to … the kind of offence the cartoons caused and what ethical, communicative, and political practices are necessary to make this kind of injury intelligible’, Saba Mahmood, ‘Religious reason and secular affect:  An incommensurable divide?’ in Talal Asad et al. (eds.), Is Critique Secular? Blasphemy, Injury, and Free Speech (New York: Fordham, 2009), p. 70. Tariq Modood, ‘In remembering the Charlie Hebdo attack we must not forget the responsibility that goes with free speech’, 12 January 2015, available at http://blogs.lse.ac.uk/ europpblog/2015/01/12/in-remembering-the-charlie-hebdo-attack-we-must-not-forgetthe-responsibility-that-goes-with-free-speech/. See, e.g., Daoud Rosser-Owen, ‘A Muslim perspective’ in Tariq Modood (ed.), Church, State and Religious Minorities (London: Policy Studies Institute, 1997), p. 84; Muslims and the Law in Multi-Faith Britain: The Need for Reform (London: UK Action Committee on Islamic Affairs, 1993), pp. 10–11; and Letter and Memorandum from The Muslim News to the Select Committee on Religious Offences in England and Wales Minutes of Evidence, available at www.parliament.thestationeryoffice.co.uk/pa/ld200203/ldselect/ldrelof/95/ 2102303.htm.

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religion an offence.73 Obviously a ‘blasphemy model’ may take different forms, but what is clear is that it would move Europe closer to those parts of the world – most notably the Middle East, North Africa and South Asia – where curbs are routinely placed on words/conduct that are deemed blasphemous or insulting to religious belief.74 The fact that Muslims are usually at the vanguard of campaigns to regulate words or conduct deemed blasphemous is perhaps unsurprising. After all, it has been claimed that Muslims often display a ‘greater religious sensitivity’ to blasphemy than the members of other faiths75 and that ‘speech about Islam remains a sensitive issue for Muslims and Muslim states’.76 Possible explanations for this state of affairs range from an Islamic rejection of pictorial images of the divine77 to what has been termed the ‘literal-mindedness’ of Muslims in an increasingly secular environment78 and the alleged failure of Muslims, in the absence of an Islamic Reformation, to critically appraise the status of the Prophet Muhammad and the Quran.79 Irrespective of the veracity of such claims, one thing is beyond dispute:  blasphemy is commonly regarded as a serious offence within the Muslim world, and the need to outlaw blasphemy is a principle that is deeply rooted within Islamic thought. Whereas in the west there has been general agreement ‘that Christianity is capable of surviving without penal sanctions and that God can avenge its own honour’,80 no such assumption exists in Islam. On the contrary,

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In relation to the Republic of Ireland’s Defamation Act 2009, one may compare the views of Neville Cox in this volume with the more critical approach of Pearl Goldman, ‘Religious convictions: The law of blasphemy in Ireland’ (2011) 32 Adelaide Law Review 265. Whilst some seek to differentiate between defamation of religion and blasphemy (see, e.g., Neville Cox, ‘Pourquoi Suis-Je Charlie? Blasphemy, Defamation of Religion, and the Nature of ‘Offensive’ Cartoons’ (2015) 4:3 Oxford Journal of Law and Religion 343), the approach taken in this chapter is that such differences are often conflated in practice, so that ‘defamation of religion’ falls within what is termed here as the ‘blasphemy model’. Robert A. Kahn, ‘Margin of appreciation for Muslims: Viewing the defamation of religions debate through Otto-Preminger-Institut v. Austria’ (2010) 5 Charleston Law Review 401. Mark Durie, ‘Sleepwalking into Sharia: Hate speech laws and Islamic blasphemy strictures’ (2012) 15 International Trade and Business Law Review 15, 394. For example, in contrast to most other faith traditions, ‘Muslims generally reject iconic representations of the divine realm’, Edward Lifton, ‘A clinical psychology perspective’ in Tahir Abbas (ed.), Islamic Political Radicalism (Edinburgh:  Edinburgh University Press, 2007), p. 35. See Daniel Pipes, The Rushdie Affair (New York: Carol, 1990), pp. 112 and 131–132. See Ayaan Hirsi Ali, Heretic: Why Islam Needs a Reformation Now (New York: Harper, 2015). Riaz Hassan, ‘Expressions of religiosity and blasphemy in modern societies’ (2007) 35:1 Asian Journal of Social Science 111–125, at 122.

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unlike some western liberal traditions in which there are ‘no [religious] orthodoxies … which are immune from debate and dispute’,81 the influential Muslim scholar Mohammad Hashim Kamali demonstrates that there are strict prohibitions in Islam on certain matters which are regarded as blasphemous. In this regard Kamali distinguishes between ‘moral violations’ of free speech that he describes as ‘backbiting, acrimonious talk, exposing the weakness of others, and even certain types of lying’,82 in contrast to more serious violations of free speech, ‘such as slanderous accusation, libel, insult, sedition and blasphemy [which] call for legal sanctions’ and which clearly ‘fall into the category of legal prohibitions’.83 The fact that Kamali equates blasphemy with matters such as slander, libel and, most significantly, sedition demonstrates a marked difference between the Islamic and liberal European approaches on the matter – especially since blasphemy was last commonly viewed as being on a par with ‘treason’84 and ‘seditious libel’85 in Europe several generations ago. Those who advocate the (re)introduction or (re)activation of essentially dormant blasphemy laws in liberal European states can advance at least three arguments. First, that there is nothing in the ECHR to support the view that Article 10 is hierarchically superior to Article 9, so that the right to freedom of expression should not necessarily prevail over respect for religious sensibilities.86 Second, that with one of the criteria for the imposition of curbs on the right to freedom of expression under Article 10(2) being ‘the protection of the reputation or rights of others’, the ‘others’ in this context should extend beyond the living and cover, say, the ‘reputations’ of venerated religious leaders or prophets who are dead.87 And third, in view of the very real hurt, pain and distress caused to faith groups such as Muslims by the unbridled vilification of their scared

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Learned Hand, International Brotherhood of Electrical Workers v. NLRB 181 F. 2d 34 (2d Cir. 1950), aff ’d 341 US 695 (1951). Kamali, Freedom of Expression in Islam, p. 2. Ibid., p. 3. See Leonard Williams Levy, Treason against God: A History of the Offense of Blasphemy (New York: Schocken, 1981). See Lord Diplock in Whitehouse v. Gay News Ltd, R v. Lemon [1979] 68 Cr. App. R. 381 at 384. It is admittedly questionable whether the protection of religious sensibilities is a constituent element of the right to freedom of religion, but those who would advance such an argument may point to the European Court’s approach in Otto-Preminger-Institut v. Austria, Application no. 13470/87, judgment of 20 September 1994. See, e.g., Paul Kearns, The Legal Concept of Art (Oxford: Hart, 1998), p. 111, who considers the need for ‘a law of defamation of the dead’.

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beliefs, special accommodation should be made for the protection of religious sensibilities.88 The aforementioned arguments tend to reflect those which have been put forward by the Organization of the Islamic Conference (OIC) in their campaign to outlaw the defamation of religion on the global arena.89 Yet the efforts of the OIC in this regard have been extremely controversial, prompting concerns that the implementation of such proposals would have a significantly detrimental effect on fundamental human rights.90 Accordingly, it is perhaps unsurprising that a number of compelling reasons can be advanced against any extension (or resurrection) of ‘blasphemy’ laws in contemporary Europe. First, the very rationale for the existence of blasphemy laws is dubious, not least because, as Ronald Dworkin has pointed out, it is illogical for some ideas (e.g., religious beliefs) to be uniquely afforded protection from abuse or vilification in a liberal society.91 Second, there is no discernible public support across Europe for the resurrection of the offence of blasphemy, not least because of its negative association with militant ideologies,92 curbs on personal freedom93 and serious human rights violations.94 88

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This argument underpins Kahn’s suggestion that just as ‘the Otto-Preminger majority spoke of extending a “margin of appreciation” to Austrian Catholics in recognition of their greater religious sensitivity’, so it should also be ‘possible to extend that same “margin of appreciation” to Muslims … who, in response to anti-Muslim speech and acts, have called for laws punishing the defamation of religions’, Kahn, ‘Margin of appreciation for Muslims’, 401. See, e.g., Javaid Rehman and Stephanie E. Berry, ‘Is defamation of religions passe – the United Nations, Organisation of Islamic Cooperation, and Islamic State Practices: lessons from Pakistan’ (2012) 44:3 The George Washington International Law Review 431. See, e.g., Allison Belnap, ‘Defamation of religions:  A  vague and overbroad theory that threatens basic human rights’ (2010) Brigham Young University Law Review 635; and Leonard Leo, Felice Gaer and Elizabeth Cassidy, ‘Protecting religions from defamation: A threat to universal human rights standards’ (2011) 34 Harvard Journal of Law and Public Policy 769. See Ronald Dworkin, ‘The right to ridicule’, 53:3 New York Review of Books, 23 March 2006. See also Lorenz Langer, ‘The rise (and fall?) of defamation of religions’ (2010) 35 Yale Journal of International Law 263, who points out that those who would outlaw the defamation of religion ‘have yet to provide a convincing rationale why – and especially how – religions rather than individuals should be protected from insult or discrimination’. See, e.g., Brooke Goldstein and Aaron E. Meyer, ‘Legal jihad: How Islamist lawfare tactics are targeting free speech’ (2008) 15 ILSA Journal of International and Comparative Law 395. See, e.g., Paul Marshall and Nina Shea, Silenced: How Apostasy and Blasphemy Codes Are Choking Freedom Worldwide (Oxford: Oxford University Press, 2011). See John Witte, Jr. and M. Christian Green, ‘Religious freedom, democracy, and international human rights’ (2009) 23 Emory International Law Review 583–584, who

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Third, even if there were a clear popular mandate for efforts to resurrect blasphemy laws, such laws would be extremely difficult to implement in practice, because the courts would be ‘forced to take sides in a theological debate’95 – an evidently impossible task because ‘a judge cannot objectively determine what is true unless the state is willing to make the audacious claim that it has a monopoly on eternal truth’.96 And finally, the breadth of any new blasphemy laws would almost certainly have catastrophic implications for the right to freedom of expression, because any reform in this area would have to ‘offer protection not just to members of traditional religions, but to any person of conscience who would speak of the sacred’.97 For reasons such as these, the Venice Commission (the Council of Europe’s advisory body on constitutional matters) has advocated abolition of blasphemy laws in those countries that retain them and has unambiguously concluded that the offence of blasphemy ‘should not be reintroduced’.98 Calls continue to be made in Europe for an extension of laws that would outlaw blasphemous attacks on religious beliefs,99 but with states such as Iceland, the Netherlands and the UK having repealed blasphemy laws in recent years, the tide in Europe seems to be flowing strongly against the formal enactment of legislation in this area. That said, blasphemy is an issue that is far from dead in Europe, and the possibility remains of states applying existing laws in novel and unprecedented ways so as to, in effect, prohibit attacks on religious beliefs that might be deemed blasphemous. An example of this – or what might be termed ‘blasphemy by the backdoor’ – recently occurred in Northern Ireland. In DPP v.  James McConnell, an evangelical Christian pastor (James McConnell) preached a sermon in which he had, inter alia, described Islam as ‘heathen … satanic [and] a doctrine spawned in hell’.100 The

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characterize ‘Apostasy, Blasphemy, Conversion, Defamation, and Evangelization’ as being ‘the new alphabet of religious rights violations in a number of regions around the world’. L. Bennett Graham, ‘Defamation of religions:  The end of pluralism’ (2009) 23 Emory International Law Review 69, 75. Ibid., 75. Dacey, The Future of Blasphemy, p. 15. The Venice Commission, Blasphemy, Insult and Hatred:  Finding Answers in a Democratic Society. Science and Technique of Democracy, No. 47 (Strasbourg: Council of Europe, 2010), para. 89, available at www.venice.coe.int/webforms/documents/ ?pdf=CDL-STD(2010)047-e. See, e.g., calls that were reportedly made in November 2015 by a prominent British MP, Keith Vaz: ‘Bring back blasphemy laws, apply them equally to all faiths’, Labour MP, available at www.rt.com/uk/322319-blasphemy-laws-freedom-expression/. DPP v. James McConnell [2016] NIMag 1.

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sermon was subsequently transmitted on the internet, and McConnell was prosecuted under Section 127(1) of the Communications Act 2003, which provides that a person is guilty of an offence if s/he ‘sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character’ or ‘causes any such message’. On the facts of this case the Court (District Judge Liam McNally) held that whilst the pastor’s words were offensive, they did not meet the high threshold required of being ‘grossly offensive’. Although Pastor McConnell was acquitted, the mere fact that this prosecution was brought under legislation that is more commonly associated with curbing the excesses of internet trolls is noteworthy. It remains to be seen whether this case will dissuade radical preachers in the UK from attacking other faiths in similar terms, although it seems likely to deter them from streaming their sermons online.101 Asma Jahangir, the former UN Special Rapporteur on Freedom of Religion or Belief, has noted that ‘[c]onstruing all expressions defaming religion as human rights violations would not only limit freedom of expression … but would also give rise to religious intolerance’.102 Her words provide a salutary warning to those who would wish law and policy makers in Europe to be more receptive to legal prohibitions on forms of expression deemed blasphemous. To date such warnings appear to have been heeded, for in recent years a ‘pattern’ has emerged in the West of anti-blasphemy laws being repealed and replaced by new hate speech legislation.103 It is this approach – which differentiates between the protection of beliefs and believers in prohibiting the incitement of hatred – that will now be examined in detail.

5.5.2

The Incitement to Hatred on Grounds of Religion/Belief Model

In contrast to affording protection to religious beliefs under the auspices of blasphemy laws, a second option is that of a model which prohibits incitement to hatred against individuals or communities on account of their 101

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In contrast, a more cynical observation is that some radical preachers will welcome the publicity that a prosecution for propagating an extreme message online might bring them. Implementation of General Assembly Resolution 60/251, 15 March 2006, Human Rights Council, A/HRC/2/SR.9, 25 October 2006, para. 60. Peter Coleman, Obscenity, Blasphemy, Sedition: The Rise and Fall of Literary Censorship in Australia (Sydney :  Duffy and Snellgrove, 2000), p.  1. See also Russell Sandberg and Norman Doe, ‘The strange death of blasphemy’ (2008) 71:6 Modern Law Review 971–986.

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religion, belief or lack thereof. This approach has been afforded recognition at both the universal and regional levels. In relation to the former, it was endorsed under the Rabat Plan of Action, which recommended that states should repeal ‘stifling’ blasphemy laws and instead take ‘preventive and punitive action to effectively combat incitement to hatred’,104 as well as under Resolution 16/18 (2011) of the UN Human Rights Council, which called on states to ‘take effective measures’ to tackle ‘any advocacy of religious hatred against individuals that constitutes incitement to discrimination, hostility or violence’. In relation to the latter, the Venice Commission has (in Europe) recommended that ‘incitement to hatred, including religious hatred, should be the object of criminal sanction’ and that this offence should be narrowly drawn so as to include ‘an explicit requirement of intention or recklessness’.105 This incitement to hatred model is commonly associated with western liberal states, and an example of it can be found in England and Wales, where the Racial and Religious Hatred Act 2006 ‘creates offences involving stirring up hatred against people on religious grounds’.106 Under this act a prosecution can only be brought if the defendant intended to stir up hatred in relation to his/her ‘threatening’ words or behaviour.107 Moreover, in order to guarantee the principle of freedom of expression, the legislation expressly stipulates that it protects the ‘discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse’ of religions (and equivalent systems of belief), as well as ‘the beliefs and practices of their adherents’.108 A number of arguments can be advanced in support of this ‘incitement’ model. For a start, it is an approach which is consistent with the commonly 104

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The Rabat Plan of Action was an initiative of the UN High Commissioner for Human Rights in which a series of expert workshops were held in 2011 and 2012 to examine the issue of incitement to hatred. See Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Conclusions and recommendations emanating from the four regional expert workshops organised by OHCHR, in 2011, and adopted by experts in Rabat, Morocco on 5 October 2012, paras 15–19, www.ohchr.org/Documents/Issues/Opinion/ SeminarRabat/Rabat_draft_outcome.pdf. The Venice Commission noted that this is the case in almost all European states, with the exception only of Andorra and San Marino, and called on these two states to criminalise incitement to hatred, including religious hatred. Ibid., paras. 88–89. Racial and Religious Hatred Act 2006, s. 1. On this approach more generally in Europe, see Susannah C. Vance, ‘The permissibility of incitement to religious hatred offenses under European Convention principles’ (2004) 14 Transnational Law and Contemporary Problems 202–203. Racial and Religious Hatred Act, s. 29B. Racial and Religious Hatred Act, s. 29J.

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held western liberal view of there being a difference between the defamation of a religion and an attack on a community of religious believers – the rationale for this being that whereas it is appropriate to protect believers (i.e. people) from hateful verbal attacks that might cause them psychological or physical harm, similar considerations do not apply to beliefs, which, as mere ideas, need not be so protected.109 In addition, an evident strength of the incitement model is that it sits neatly with international human rights law, which prohibits any ‘advocacy of … religious hatred that constitutes incitement to discrimination, hostility or violence’.110 And finally, the incitement model is of great symbolic importance, for it sends ‘strong signals to all parts of society … that an effective democracy cannot bear behaviours and acts that undermine its core values: pluralism, tolerance, respect for human rights and non-discrimination’.111 Notwithstanding these considerations, there is a very serious problem with this model, which significantly detracts from its effectiveness as a workable solution. It is that ‘the line between inciting hatred of beliefs and inciting hatred of persons may be a difficult one to draw’112 and that distinctions of this kind are ‘difficult, if not impossible, to justify in relation to expression’.113 Accordingly, serious doubts have been expressed in some quarters as to whether the distinction between the protection of ‘believers’ and ‘beliefs’, which lies at the heart of the incitement model, is practicable or appropriate. As one commentator puts it: There can be no bright line between criticising doctrine and criticising a person who adheres to it. For many, religion forms the centrepiece of life, dearly cherished beliefs, criticism of which evinces a personal attack. In this way there is no real difference between saying ‘Christianity is evil’ as opposed to ‘all Christians are evil’ – both have the potential to incite religious hatred.114 109

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See, e.g., Justice William Brennan Jr, Texas v. Johnson (1989) 109 S. Ct 2533 (1989), who commented that ‘[t]he First Amendment does not guarantee that … concepts virtually sacred to our nation as a whole … will go unquestioned in the market place of ideas’. International Covenant on Civil and Political Rights, Art. 20:2. Venice Commission, Blasphemy, Insult and Hatred, para. 91. See Moon’s chapter in this volume, ‘Religion, Hate Speech, and the Difficulty in Separating Attacks on Beliefs from Attacks on Believers’; see also Nicholas Aroney, ‘The constitutional (in)validity of religious vilification laws:  Implications for their interpretation’ (2006) 34 Federal Law Review 287, 313. Dermot Feenan, ‘Religious vilification laws: Quelling fires of hatred?’ (2006) 31 Alternative Law Journal 153, 156. Joel Harrison, ‘Truth, civility, and religious battlegrounds: The contest between religious vilification laws and freedom of expression’ (2006) 12 Auckland University Law Review 71, 80.

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It is axiomatic that, for a significant number of people of faith, such differences are illogical. Moreover, for many Muslims in particular, any distinction between the tenets of a ‘belief ’ and the people who subscribe to it (the ‘believers’) are senseless and illusory.115 In seeking to explain this state of affairs, two considerations are specifically worth bearing in mind:  the importance of dignity in Islam and the special nature of the believer’s relationship with the Prophet. In relation to the former, Kamali has observed that in Islam the dignity of the citizen is ‘protected through a series of legal provisions concerning slanderous accusation, defamation and insult’ and that Shari’a law ‘adopts a similar stance regarding sedition and blasphemy so as to prevent sacrilege’116 – meaning that, for many Muslims, the ‘beliefs/believers’ distinction is erroneous, for the reputation and the dignity of the faith’s ‘beliefs’ ought to be treated no differently from its ‘believers’. And in relation to the latter, the ‘beliefs-believer’ distinction is difficult to reconcile with the intimate relationship between a devout Muslim and the Prophet Muhammad – a relationship that has variously been characterized as being closer than that between a person and their parents117 and based on ‘an assimilative [model] wherein one aims to digest Muhammad’s personage into oneself as it were’.118 Thus, for the devout Muslim, vilification of the Prophet is not just an attack on an abstract or disconnected ‘belief ’ but is rather an assault on one’s very person or self.119 In view of the aforementioned shortcomings of the incitement model and the absence of any apparently feasible alternatives, questions may be asked about the efficacy of legal remedies in this area. Moreover, doubt has been cast by some on ‘whether juridical language and mechanisms of the law are adequate’ for addressing complicated and emotive issues of the kind that were raised by the publication of religiously offensive 115

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Moreover, on allegations of ‘double standards’ when it comes to the interpretation by states of a distinction ‘between the right to attack an idea and the right to attack people or incite hatred’, see Francesco Alicino, ‘Freedom of expression, laïcité and Islam in France: The tension between two different (universal) perspectives’ (2016) 27 (1) Islam and Christian-Muslim Relations 51, 65. Mohammad Hashim Kamali, Freedom of Expression in Islam, p. 260. See Muhammad Manazir Ahsan and A. R. Kidwai, ‘Sacrilege versus civility’ in Muhammad Manazir Ahsan and A.  R. Kidwai (eds.), Sacrilege Versus Civility: Muslim Perspective on the ‘Satanic Verses’ Affair (Markfield: The Islamic Foundation, 1993), p. 31. Mahmood, ‘Religious reason’, p. 64. On the importance of a person’s sense of self for their personal identity, see Jill Marshall, Personal Freedom through Human Rights Law? Autonomy, Dignity and Integrity (Leiden: Brill, 2009), p. 2.

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cartoons.120 Therefore, a third non-legal approach will now be examined. This is the ‘self-restraint’ model – a model that rests on the acceptance and cultivation of uncodified social norms rather than strict legal rules.

5.5.3

The Self-Restraint Model: Responsibility, Civility and Power

The self-restraint model is predicated on the assumption that those who exercise the right to freedom of expression on issues that are likely to provoke outrage or controversy must do so responsibly.121 It is thus a model which accords weight to ‘civic responsibility’ rather than just legal rules in determining the appropriate parameters of freedom of expression – especially where the publication of religiously offensive material is concerned.122 As the influential Muslim scholar Tariq Ramadan remarked in the immediate aftermath of the Danish cartoons controversy, What we need now on both sides is an understanding that this is not a legal issue, or an issue of rights. Free speech is a right in Europe and legally protected. No one should contest this. At the same time, there should be an understanding that the complexion of European society has changed with immigrants from diverse cultures. Because of that, there should be sensitivity to Muslims and others living in Europe.123

Ramadan’s sentiments about the importance of responding sensitively to cultural and religious diversity in contemporary Europe have also been echoed (at least in part) by the Venice Commission. It has observed that A new ethic of responsible intercultural relations in Europe … is made necessary by the cultural diversity in modern societies and requires that a responsible exercise of the right to freedom of expression should endeavour to respect the religious beliefs and convictions of others. Self-restraint, in this and other areas, can help, provided of course that it is not prompted by fear of violent reactions, but only by ethical behaviour.124 120

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Mahmood, ‘Religious reason’, p. 75. Mahmood expressed these comments in the wake of the Danish cartoons controversy. On this argument, see Anshuman Mondal, Islam and Controversy:  The Politics of Free Speech after Rushdie (New York: Palgrave, 2014), pp.13–31. See also the chapter by András Koltay in this volume on the responsibility that accompanies the legitimate exercise of freedom of expression. See Tariq Ramadan, ‘Cartoon controversy is not a matter of freedom of speech but civic responsibility’, interview by Nathan Gardels, NPQ, 2 February 2006, available at www .digitalnpq.org/articles/global/56/02-02-2006/tariq_ramadan. Tariq Ramadan, ‘Free speech and civic responsibility’, 6 February 2006, available at http:// yaleglobal.yale.edu/content/free-speech-and-civic-responsibility Venice Commission, Blasphemy, Insult and Hatred, para. 95.

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An example of what the Venice Commission characterizes as appropriate ‘self-restraint’ – underpinned by ethical considerations rather than fear – would be where self-restraint is motivated by what a former senior British judge once called ‘common civility’.125 In other words, the self-restraint model is one that is predicated on general notions of respect and courtesy, whereby there is a need to temper forms of expression that might cause offence to the religious (or other) feelings of a person’s fellow citizens.126 The self-restraint approach is sufficiently open ended and flexible to be characterized in numerous possible ways. It might, for example, lead magazine editors to refrain from printing religiously offensive cartoons.127 Similarly, it could encourage publishers to take into account factors such as the power or social status of a particular group in determining the extent to which that group and its fundamental beliefs should be subject to (or spared from) abuse or harsh criticism. Indeed, it is an approach which, if embraced, could conceivably lead in the longer term to the emergence of norms or customs whereby it would be deemed socially inappropriate for the beliefs of certain ‘vulnerable’ minority faiths or cultures to be abused or parodied. After all, unguarded vitriolic attacks on religious minorities that are socially and politically impoverished may have significant consequences – as highlighted by the warning of a former Member of the Law Commission of India that ‘[p]ublic stereotyping of religious minorities is a leading source of religious tension everywhere [and that] [t]he roots of stereotype formation are embedded in what people read in books and

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‘Article 9 [of the ECHR] does not require that one should be allowed to manifest one’s religion at any time and place of one’s choosing. Common civility also has a place in religious life’, Lord Hoffman in R (SB) v. Governors of Denbigh HS [2006] UKHL 15, [2007] 1 AC 100, para. 50. See, e.g., Muhammad Manazir Ahsan and A.  R. Kidwai (eds.), Sacrilege Versus Civility:  Muslim Perspective on the ‘Satanic Verses’ Affair (Markfield:  The Islamic Foundation, 1993), p.  267, quoting Syed Zafurudin Sayeed, who calls this ‘an issue of moral responsibility’. See, e.g., David Keane, ‘Cartoons, comics and human rights after the Charlie Hebdo massacre’ (2015) 10:3 Religion and Human Rights 229–243. Keane (ibid., at 229), questions ‘why the protection of freedom of expression in Europe [has become] contingent on drawing cartoons of the Prophet Mohammad’ and argues that instead of ‘assigning a role for law in preventing such cartoons, or for freedom of expression in protecting them … desisting from drawing them would have no discernible impact’. Moreover, the editor of Charlie Hebdo has recently stated that the magazine will be no longer publish cartoons of the Prophet Muhammad. See ‘There will be no more Prophet Mohammed cartoons, says Charlie Hebdo editor’, The Daily Telegraph, 17 July 2015, available at www.telegraph .co.uk/ news/ worldnews/ europe/ france/ 11747854/ There- will- be- no- more- ProphetMohammed-cartoons-says-Charlie-Hebdo-editor.html.

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magazines, see in movies or television, or hear from friends and family’, so that, as a consequence, ‘this process results in the majority’s hidden dislike for religious minorities’.128 With Muslims evidently facing discrimination and experiencing prejudice in many European countries,129 a number of commentators have, in the wake of the Charlie Hebdo attack, highlighted the link between the power or social influence of a particular group and its susceptibility to being lampooned or the object of derision. For example, Hatem Bazian, a Berkeley-based scholar, has posed a rhetorical question about the targets of satirical publications such as Charlie Hebdo:  ‘Who are we poking fun at? The Muslims as diverse minorities in France living at the margins of society are the object of the satire; not the powerful or the terrorists. It is not the powerful but the powerless that is the object of the laughter’.130 Bazian’s comments echo those of the philosopher Cindy Holder, who, writing in the wake of the Danish cartoons controversy, argued that the publication of the cartoons in a nation like Denmark, where Muslims are a small minority, was ‘not about rights [but rather] about power’.131 Moreover, it has been claimed that matters such as parody and free speech are ‘used nowadays as pretexts for the exercise of power by western elites’,132 while even a former Church of England Bishop, Richard Harries, has acknowledged this power dimension in arguing that ‘[t]here is no justification for deliberately belittling any community that already feels marginalised and vulnerable, as does the Muslim community in France’.133 Thus, with frequent claims of ‘Islamphobia’,134 ‘Muslimophobia’135 and 128

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Tahir Mahmood, ‘Religion in contemporary legal systems’ (2011) Brigham Young University Law Review, 605–612, 609. See, e.g., Zan Strabac and Ola Listhaug, ‘Anti-Muslim prejudice in Europe: A multilevel analysis of survey data from 30 countries’ (2008) 37:1 Social Science Research 268–286, who find that ‘prejudice against Muslims [is] more widespread than prejudice against other immigrants’. Hatem Bazian, ‘The freedom to take offence’, 15 January 2015, available at www.aljazeera .com/indepth/opinion/2015/01/freedom-offence-charlie-hebdo-is-20151148547873899 .html. Cindy Holder, ‘Debating the Danish cartoons:  Civil rights or civil power?’ (2006) 55 University of New Brunswick Law Journal 179, 183. Satvinder Juss, ‘Burqa-bashing and the Charlie Hebdo cartoons’ (2015) 26:1 King’s Law Journal 27–43, 27. Richard Harries, ‘Paris attacks:  Jonathan Swift had a point about religion. Did Charlie Hebdo?’, The Independent on Sunday, 18 January 2015. See, e.g., Marc Helbling (ed.), Islamophobia in the West:  Measuring and Explaining Individual Attitudes (Abingdon, UK: Routledge, 2013). Burak Erdenir, ‘Islamophobia qua racial discrimination:  Muslimophobia’, in Anna Triandafyllidou (ed.), Muslims in 21st Century Europe: Structural and cultural perspectives

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some even drawing parallels between contemporary characterizations of Muslims in Europe and those of the Jews in the 1930s,136 the ‘self-restraint’ model could potentially offer protection to Muslims and other disempowered/marginalised groups from socially damaging caricatures.137 In spite of the aforementioned considerations, there are, however, some very serious problems with the ‘self-restraint’ approach. Even if (and it is a very big ‘if ’) it were to be embraced by significant sections of the public, media outlets and those responsible for broadcasting or publishing information, there are at least three issues that would militate against its effectiveness as a workable or effective model. First, the ‘self-restraint’ model could have serious implications for freedom of expression. After all, no matter how well-intentioned one might be in engaging in acts of self-restraint, such a policy can easily lead to the imposition of curbs on issues that should be freely discussed or disseminated.138 A case in point is the controversy in 2009 over the decision by Yale University Press – in publishing an academic book (The Cartoons That Shook the World) about the Danish cartoons controversy – not to reproduce any of the actual cartoons of Muhammad. It was a decision that attracted strong criticism and led to allegations of inappropriate censorship from groups campaigning for freedom of expression.139 For publishers, media outlets and journalists these matters raise very difficult questions, and the risk is that they will automatically resort to a default position of playing safe by not publishing anything that might provoke discord or controversy. Therefore, for some, freedom of expression is threatened less by formal rules of legal

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(Abingdon, UK:  Routledge, 2010), pp. 27–44. For Erdenir, ‘Muslimophobia’ is the ‘new racism’, and it ‘targets cultures, lifestyles, and the physical appearances of Muslims’, whereas Islamophobia is described as ‘being afraid of Islam as a faith’. Ibid., p. 29. See Maleiha Malik, ‘Muslims are now getting the same treatment Jews had a century ago’, The Guardian, 2 February 2007, available at www.guardian.co.uk/commentisfree/story/ 0,,2004258,00.html. See, e.g., Meital Pinto, ‘What are offences to feelings really about? A new regulative principle for the multicultural era’ (2010) 30:4 Oxford Journal of Legal Studies, 695, 705, who argues that the ‘most cherished values’ of culturally vulnerable groups should be protected from offence. See, e.g., Andreea Nitisor, ‘Speaking the despicable: Blasphemy in literature’ (2010) 6:16 Journal for the Study of Religions and Ideologies 69–79, 69, who argues that ‘blasphemy in literature is an incentive for fruitful discussions regarding tolerance, freedom of expression, and the re-situation of the (post) modern self in today’s world’. See, e.g., ‘From index on censorship magazine: See no evil’, 18 December 2009, available at www.indexoncensorship.org/2009/12/from-the-magazine-see-no-evil/.

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censorship and more by a culture of conformism and the fear of causing offence.140 A second problem with the ‘self-restraint’ model relates to a lack of clarity as to what constitutes a vulnerable or disempowered group in terms of determining whose beliefs should be tempered from abuse or harsh criticism. Many will, for example, assume that Muslims in the west should automatically fall within this category, but the case for doing so would appear to be undermined by the fact that Muslim communities in Europe are far from homogeneous in social, economic or political terms. What is more, the suggestion that there is necessarily a power imbalance between the social status of say Muslims and the members of other, much larger faith groups (e.g., Christians) is likely to be challenged in some quarters, for there are those who contend that Christians – far from wielding power and influence – are themselves subject to discrimination and marginalization in parts of Europe.141 And finally, the self-restraint model is problematic because there is a risk that it may foster conflict or exacerbate social division. For example, in recent years, there have been allegations of Islam being afforded much greater protection from satire or vilification in public discourse than Christianity,142 and a former Archbishop of Canterbury (George Carey) has gone so far as to claim that ‘publishers and newspapers live in fear of criticizing Islam’.143 Whilst strong counter-arguments can be adduced to rebut these claims,144 it is nonetheless undeniable that efforts by media 140

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This argument is advanced by Mick Hume, Trigger Warning: Is the Fear of Being Offensive Killing Free Speech? (London: William Collins, 2015). See, e.g., Andrew Carey and George Carey, We Don’t Do God:  The Marginalization of Public Faith (Oxford:  Monarch, 2012). See also Parliamentary Assembly of the Council of Europe, Resolution 2036 ‘Tackling intolerance and discrimination in Europe with a special focus on Christians’ (2015), para. 1: ‘Numerous acts of hostility, violence and vandalism have been recorded in recent years against Christians and their places of worship, but these acts are often overlooked by the national authorities’. Paragraph 6.7 also calls on the member states of the Council of Europe to ‘encourage the media to avoid negative stereotyping and communicating prejudices against Christians, in the same way as for any other group’. Such an argument is advanced by Flemming Rose, the foreign affairs editor of JyllandsPosten, the Danish magazine which published the controversial cartoons of the Prophet Muhammad in 2005:  Flemming Rose, The Tyranny of Silence (Washington, DC:  Cato Institute, 2014). A  similar argument is put forward by Kenan Malik in From Fatwa to Jihad: The Rushdie Affair and Its Legacy (London: Atlantic, 2009). ‘Carey: UK fears criticising Islam’, The Sunday Times, 11 January 2015, available at www .thesundaytimes.co.uk/sto/news/uk_news/National/article1505845.ece. For claims of an anti-Muslim bias on matters relating to freedom of expression in the West, see Ahsan and Kidwai, Sacrilege Versus Civility, p. 38. Similarly, there have been reports

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organizations in the past to take account of the sensibilities of certain minority faith groups have (on occasion) generated bitterness, distrust and rancour.145 The self-restraint model resonates neatly with the view of Rumi, a thirteenth-century Persian poet and Islamic scholar, who is reputed to have said that ‘[s]ilence is the language of God, all else is poor translation’.146 However, the point at which self-restraint becomes self-censorship is often far from clear. As a result, the slope toward inappropriate censorship is a slippery one, and there is a very real risk that bona fide efforts to promote ‘self-restraint’ in regard to freedom of expression may have unintended consequences.

5.6 Conclusion Few challenges are more taxing in contemporary Europe than that of establishing the parameters of free expression where the denigration of religious belief is concerned. Barely a month seems to pass without reports in the media of yet another controversy in this area. More specifically, the Charlie Hebdo murders have (at least at one level) demonstrated the potentially explosive consequences of mocking religion, whilst within those many Muslim communities that strongly repudiate the actions of those who attacked the magazine, there is widespread consternation about the vilification of religious belief. In seeking to formulate an appropriate response to such consternation, this chapter has explored three different approaches but, as noted above, each of them has serious flaws. The blasphemy model is clearly unsustainable in a contemporary liberal democracy; the incitement to religious hatred model is problematic for the believer/beliefs distinction is not universally accepted; and the

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that, in contrast to their publication of the Prophet Muhammad cartoons, Jyllands-Posten refused to run drawings lampooning Jesus Christ, on the grounds that they could be offensive to readers and were not funny. See Geoffrey Brahm Levey and Tariq Modood, ‘The Danish cartoon affair’, in Geoffrey Brahm Levey and Tariq Modood (eds.), Secularism, Religion and Multicultural Citizenship (Cambridge:  Cambridge University Press, 2009), pp. 226–227. See, e.g., ‘BBC pulls show with joke about the Prophet’, The Times, 24 August 2006. In contrast, a year earlier, the BBC rejected calls not to broadcast Jerry Springer: The Opera, which is deemed blasphemous by some Christian groups: BBC News, ‘Protests as BBC screens Springer’, 10 January 2005, available at http://news.bbc.co.uk/1/hi/entertainment/ 4154071.stm. As cited by District Judge Liam McNally in DPP v.  James McConnell [2016] NIMag 1, para. 24.

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self-restraint model risks significantly undermining the right to freedom of expression. It is thus perhaps hardly surprising that blasphemy, a highly emotive issue on which there tends to be little common ground, has been recently characterised as ‘a problem [for] laissez faire societies’.147 So is this ‘problem’ capable of (even partial) resolution? At first glance one might answer this question in the negative. After all, blasphemy has been synonymous with controversy from time immemorial,148 while in recent years there have been apocalyptic claims of a ‘clash of civilizations’ between secular liberal and Muslim perspectives on the satirisation of religious beliefs.149 However, on closer inspection, at least three considerations militate against such claims of irreconcilable conflict. First, in both western liberal and Islamic traditions there is widespread acceptance of the principle that freedom of expression is a qualified right.150 Second, the fact that a variety of different Islamic perspectives exist as to what constitutes blasphemy should (at least in theory) make it easier for bridges to be built between secular liberals and those in less conservative Muslim communities.151 And third, there is commonality by virtue of the fact that people of every religious persuasion, and not just Muslims, take umbrage when their most sacred beliefs are portrayed in unflattering or offensive terms.152 These areas of common ground, whilst admittedly modest in some respects, are nonetheless potentially significant. They could, for example,

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Klaus von Beyme, ‘Ban on blasphemy: Protection of religion versus freedom of opinion as a conflict of fundamental rights in democracy’, in Volker Schneider and Burkard Eberlein (eds.), Complex Democracy:  Varieties, Crises, and Transformations (Cham:  Springer International, 2015), p. 281. See, e.g., Leonard W. Levy, Blasphemy: Verbal Offense against the Sacred, from Moses to Salman Rushdie (Chapel Hill: University of North Carolina Press, 1995) pp. 3–14. See, e.g., L. Bennett Graham, ‘Defamation of religions: The end of pluralism’ (2009) 23 Emory International Law Review 69, 73, who alludes expressly to Samuel Huntington’s controversial thesis in claiming that ‘the defamation of religions issue has fulfilled the late social scientist’s prophecy’. For example, both western liberal and Islamic nations subscribe to Article 19:3 of the International Covenant on Civil and Political Rights, which provides that the right to freedom of expression ‘carries with it special duties and responsibilities’ and ‘may therefore be subject to certain restrictions’. For example, according to one empirical study of attitudes to blasphemy amongst Muslims, such attitudes were ‘weakest in Kazakhstan, followed by Turkey’, whereas ‘attitudes were strongest in Egypt, Pakistan and Malaysia’, Riaz Hassan, ‘Expressions of religiosity and blasphemy in modern societies’ (2007) 35:1 Asian Journal of Social Science 111–125, 124. See, e.g., Hans Geybels and Walter Van Herck (eds.), Humour and Religion: Challenges and Ambiguities (London: Bloomsbury Publishing, 2011).

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provide a framework or foundation for cross-cultural dialogue, out of which innovative and workable dispute-resolution strategies might be forthcoming. Indeed, the need for such new strategies has been recognised by as influential a figure as Françoise Tulkens, the vice president of the European Court of Human Rights. She has written that we have to find a way of reconciling two rights which the Convention protects equally – the right to freedom of thought, conscience and religion secured by Article 9, and the right to freedom of expression, in particular artistic expression, secured by Article 10 … [because] [i]t is more and more apparent to me that such conflicts require a new mode of resolution, the basis of which yet has to be constructed.153

But who should construct this ‘new mode of [conflict] resolution’? Given its lack of a democratic mandate and heavy reliance on the margin of appreciation in its previous jurisprudence, it seems neither appropriate nor realistic to expect the European Court of Human Rights to undertake this task – a state of affairs which evidently belies the Venice Commission’s acknowledgement that ‘it is not exclusively or even primarily for the courts to find the right balance between freedom of religion and freedom of expression, but rather for society at large, through rational discussions between all parts of society, including believers and non-believers’.154 Few will disagree with the Venice Commission’s proposal for ‘rational discussions between all parts of society’ or calls made elsewhere for intercultural dialogue,155 but the danger is that such statements constitute little more than mere rhetoric – worthy and aspirational but, in practice, unlikely to have any significant effect. After all, in the wake of the Charlie Hebdo attack, there was no clear evidence of media and religious groups coming together to discuss, constructively, the parameters of free expression where attacks on religion are concerned. Yet in a Europe that is increasingly diverse in matters of religion and belief (or lack thereof), it is grassroots solutions that may ultimately determine the extent to which 153

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Françoise Tulkens, ‘Conflicts between fundamental rights: Contrasting views on Articles 9 and 10 of the European Convention on Human Rights’, Council of Europe Publishing, 2010, 121, available at www.venice.coe.int/webforms/documents/?pdf=CDL-STD(2010)047-e. Venice Commission, Blasphemy, Insult and Hatred, para. 94. See, e.g., Peter Danchin, ‘Defaming Muhammad: Dignity, harm, and incitement to religious hatred’ (2010) (2) Duke Forum for Law and Social Change 22, who advocates ‘new potential fusions of horizons and spaces for dialogue’. See also Parliamentary Assembly of the Council of Europe, Recommendation 1962 ‘The religious dimension of intercultural dialogue’ (2011).

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the challenge of reconciling western liberal and Islamic perspectives on ‘blasphemy’ can be successfully met. Today there is an evident need for fresh thinking and the formulation of new strategies which are acceptable and comprehensible to a range of interests to assist with the resolution of disputes where the right to freedom of expression causes offence to religious sensibilities. Unless workable solutions can be found, socially divisive ‘blasphemy’ disputes will not just continue but may even proliferate in twenty-first-century Europe. Blasphemy may have been famously dismissed as ‘a dead letter’ by the British judge Lord Denning half a century ago,156 but it is currently far from dead. Rumours of the death of blasphemy, in England and beyond, would thus appear to have been greatly exaggerated.

156

Sir Alfred Denning, The Hamlyn Lectures. Freedom under the Law (London: Sevens, 1950, 1st edn), p. 46.

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6 Rethinking Blasphemy and Anti-Blasphemy Laws Robert A.   Kahn

6.1

Introduction

The sun is setting on anti-blasphemy laws – at least in the global human rights community. There is an emerging consensus embellished in the Rabat Plan of Action (RPA), Resolution 16/18 of the UN Human Rights Council and General Comment 34 of the Human Rights Committee. While efforts to counter religious intolerance, discrimination and stereotyping are legitimate, blasphemy laws are out of bounds.1 In particular, the Rabat Plan of Action rejects blasphemy laws as ‘counterproductive’ because they can lead to the ‘de facto censure’ of ‘all inter-religious or belief and intra-religious or belief dialogue, debate and criticism, most of which could be constructive, healthy and needed’.2 The message seems clear:  blasphemy bans persist, but they are illegitimate. In the modern world of international human rights, one may not punish blasphemy against religious ideas, religious icons or religious places; nor may one use blasphemy laws to protect religious feelings – although the legitimacy of punishing incitement to religious hatred remains a more open question.3

1

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3

For a general overview of these developments, see Sejal Parmar, ‘The Rabat Plan of Action: A critical turning point in international law on hate speech’, in Péter Molnár (ed.), Free Speech and Censorship around the Globe (Budapest: Central European University Press, 2015), p. 211, pp. 223–25. Rabat Plan of Action, para. 11 (Appendix to the Annual Report of the United Nations High Commissioner for Human Rights, A/HRC/22/17/Add. 4, 11 January 2013, emphasis added). The fear is that there will be an overlap between offense against religious feelings (‘I think your religion is false’) and incitement to hatred (‘I think members of your religious group are despicable and should be killed’.). The difficulty is less a matter of line drawing – a threat of bodily harm (at least) is different from religious insult. Rather, it is that devout

I would like to thank Jacqueline Baronian, Tom Berg, Robert Delahunty, Rob Vischer and Robin Barnes for their helpful comments on an earlier version of this draft.

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But despite the late hour, the owl of Minerva has yet to fly. Some opponents of blasphemy laws make arguments and take positions that have little basis in social scientific and humanistic understandings of blasphemy and anti-blasphemy laws and, at the same time, weaken the ability of human rights advocates to present compelling arguments to those individuals, communities and leaders who still support blasphemy laws. In particular, there is a tendency to (1) treat religious identity as more malleable than other identities and use this as a reason to oppose blasphemy bans (2) take a ‘zero tolerance’ approach to blasphemy bans under which a restriction on blasphemy anywhere is a threat to freedom everywhere and (3)  fall into a clash-of-civilizations trap, in which blasphemy bans become a flash point between a modern West and Islam (little different from struggles over the hijab and burqa). I will critique these trends in the first part of this essay. Next, I offer three alternative frames of reference. These are (1) treating blasphemy bans like other speech restrictions – in other words, to attack blasphemy statutes based on their vagueness, draconian penalties and frequency of use (and misuse), an approach that resonates with Judith Shklar’s essay ‘The Liberalism of Fear’,4 (2) creating a typology of blasphemy that distinguishes among inadvertent blasphemy (as occurs in Pakistan where a Christian will ‘blaspheme’ by taking water from a Muslim well), satirical blasphemy (i.e. South Park and Monty Python) and blasphemy that seeks to explicitly convert or spread hate against the target audience5 and (3) exploring the motives for punishing blasphemy (which is important if the international community seriously wants countries like Pakistan to modify or abandon their anti-blasphemy laws). Before going on, let me address a semantic issue – the failure to distinguish between blasphemous acts and laws against blasphemy. This

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members of a given religious group will ignore the line, claiming that any insult to their religion must by definition inspire hatred against adherents. While courts often draw lines, the concern by opponents is not completely without merit. The solution, to my mind, is to rethink blasphemy and anti-blasphemy law more generally, which is what I seek to do in this chapter. Judith Shklar, ‘The liberalism of fear’, in Nancy L. Rosenblum (ed.), Liberalism and the Moral Life (Cambridge, MA:  Harvard University Press 1989), p.  22. According to Shklar, liberalism has one ‘overriding aim’, namely ‘to secure the political conditions that are necessary for the exercise of personal freedom’ (ibid., p. 35). The same focus on ‘personal freedom’ should, in my opinion, apply to the global campaign against blasphemy laws. Let me be clear: I am not saying that blasphemy that seeks to convert or offend should be banned, only that our understanding about the harms posed by blasphemy should rest on the recognition that not all forms of blasphemy are the same.

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becomes an issue when scholars say that ‘blasphemy is in decline in the West’ or that ‘blasphemy is anti-modern’. As written, such statements refer to blasphemy itself, but often the writers mean to say that the practice of punishing blasphemy is in decline (or anti-modern). While this is a hazard of writing about any type of speech regulation (hate speech, obscenity, etc.), the issue of usage is particularly fraught here because a victory over blasphemy laws (if that comes) is not necessarily also a victory over (a) blasphemy itself (however a society defines it) or (b) the impulse to define speech acts as blasphemous. Thus a country that banished its blasphemy laws might still have a social problem with blasphemy itself.

6.2 Problems with the Current Discourse against Blasphemy Laws Blasphemy laws should be fairly easy to oppose – at least from a human rights perspective, even if this opposition does not always lead to change on the ground. But some opponents of blasphemy bans present their case in ways that are counterproductive. I will discuss three of them here.

6.2.1

An Overly Restrictive View of Religious Identity

The first difficulty with the discourse against blasphemy laws relates to religious identity. There is a voluminous literature on the nature of religious identity, including how it changes;6 this makes religion no different than other forms of personal identity such as race, gender, class and sexual preference. However, some critics of blasphemy laws rely on simple views of religious identity, ones that underestimate the power of blasphemy laws to harm. For example, in a recent essay that makes a number of sophisticated points about how Pakistan’s blasphemy laws operate in practice,7 Asma Uddin makes the following statement about the difference between race and religious identity: Yet the OIC made a serious error in lumping race and religion into the same category. Race is by its very nature intrinsic to a person and therefore not subject to alteration. Religion, by contrast, is by its very nature a 6

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For an overview, see Michele Dillon, Handbook of the Sociology of Religion (Cambridge: Cambridge University Press, 2003). Asma Uddin, ‘The UN defamation of religions resolution and domestic blasphemy laws’, in P. Molnár (ed.), Free Speech and Censorship around the Globe (Budapest – New York: Central European University Press, 2015), at p.  506 (describing how the existence of the laws encourages extrajudicial violence).

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While Uddin may be right that the Organization of Islamic Cooperation (OIC) made a mistake politically, the rest of the passage relies on a naïve understanding of religion. What does it mean to say that religion is not ‘intrinsic’ to a person? Is it necessary, in the name of opposing blasphemy laws, to refer to religion as simply a ‘philosophy’? Here one might contrast Uddin’s perspective with that of Neville Cox, who, taking the perspective of the ‘true believer’, addresses the harm that blasphemy can pose to someone who believes that ‘God is the determiner of one’s eternal destiny … that one is dead for a very long time and that the non-existence of God is as unprovable as the existence of God’.9 Compared to this, argues Cox, race and nationality are mere ‘temporal badges of identification’.10 Moreover, for some believers, religion is also a culture and a shared community. At times it can take on characteristics of an ethnic or a racial category. For example, even a non-religious Jew might still have reason to be concerned about statements that ‘The Jews killed Christ’. In this regard, Christoph Baumgartner raises the intriguing possibility, derived from Harry Frankfurt’s theory of caring, that the actual psychological harm suffered by the target of blasphemy might depend on the extent to which the target cares about the particular identity under attack11 – something that may turn on context (as well as on the target’s free will). To be sure, blasphemy law critics who assert the malleability of religious identity can point to counter-examples. For example, Peter Berger has described how, during the mid-twentieth century, American Protestants often went from one denomination to another based on the social prestige 8

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Ibid., p. 502. She is not alone. For more, see Robert Kahn, ‘A margin of appreciation for Muslims? Viewing the defamation of religions debate through Otto-Preminger-Institut v. Austria’ (2011) 5 Charleston Law Review 401, 411–412 (responding to arguments that race is different from religion). Neville Cox, ‘Blasphemy, Holocaust denial and the control of profoundly unacceptable speech’ (2014) 62 American Journal of Comparative Law 739, 762. Neville Cox takes a similar approach to the race-versus-religion issue in his contribution to this volume (‘Blasphemy and Defamation of Religion Following Charlie Hebdo’). Ibid. Christoph Baumgartner, ‘Blasphemy as violence: Trying to understand the kind of injury that can be inflicted by acts and artefacts that are construed as blasphemy’ (2013) 6 Journal or Religion in Europe 39, 55–56.

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of the group involved (among other factors).12 Looking more broadly, history is full of people – like St Augustine of Hippo – whose spiritual journey encompassed many religions. At the same time, however, there are situations – such as Northern Ireland – where religious identity is much less malleable. A Catholic in Belfast can convert to Protestantism, but this does not mean that such a person necessarily ceases to be Catholic culturally; the same is true of Jews who convert to Christianity or Muslims who change their faith. Moreover, in many instances race, ethnicity and religion are combined – changing their religion did not help Jews in Hitler’s Germany. And while Ayaan Hirsi Ali is known globally as someone who has rejected Islam, a skinhead encountering her on the street might not care about this (especially if the skinhead did not recognize her). Once one accepts this as a position, the possibility emerges that some remarks that might be seen initially as merely blasphemous (‘Only an idiot would follow Islam!’) might have a racist edge to them, at least in some contexts.13 Even if, however, one concedes that religious and racial categories are distinct, it is not clear why the potential of changing one’s religious identity makes hatred directed at one’s religion less painful or objectionable than hatred directed at one’s race, gender or sexual preference. Nor is it clear that conversion dialogue necessarily is beneficial. While religious criticism of my Jewish beliefs might indeed be ‘constructive, healthy, and needed’, efforts to persuade me to convert to Christianity, if repeated consistently and forcefully enough, might inhibit my freedom to exercise my religious beliefs.14 Or, to take another example, consider what, in the United States, are referred to as ‘cult’ groups such as the Church of Scientology. While the First Amendment largely protects the Scientologists’ right to freedom of speech, there are many in America who find the proselytizing efforts of Scientology very threatening, especially when directed at young people.15

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Peter Berger, The Sacred Canopy:  Elements of a Sociological Theory of Religion (Garden City, NY: Doubleday, 1967). As the RPA points out, the context of a speech act can be ‘of great importance’ in assessing the likelihood that it will incite hatred, violence or discrimination. See Parmar, ‘The Rabat Plan of Action’, p. 229 (citing RPA). The sharp delineation between racialized and religious identity characterized by Uddin lacks this type of sensitivity to context. I am still not suggesting that blasphemy should be banned on this ground, only that this type of statement might cause harm. For example, see Eugene Methvin, ‘Scientology: Anatomy of a frightening cult’ (May 1980) Reader’s Digest 1–6.

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Indeed, the danger posed by Scientology to young people is pronounced precisely because young people’s religious views are seen to be especially malleable. Here there are striking parallels to colonial India of the 1920s, in which attempts at conversion of Muslims by Hindus (and vice versa) led to a vitriolic newspaper war between the two communities.16 This led in 1927 to the passage of a new section of the Indian Penal Code that extended the protections against blasphemy to written materials.17 Let me distinguish two harms that might flow from a statement that uses blasphemy as a means to conversion. An individual might be offended by the statement ‘my God is false’ because it suggests he or she is living a lie; if this attack is pointed enough, it might be experienced as threatening – as, for instance, when a Pakistani Muslim pressures a member of the Christian minority to convert after the Christian has ‘polluted’ a Muslim well by taking water from it.18 Alternatively, the statement that ‘my God is false’ might harm a group – Christians in Pakistan – who fear that its reputation will be diminished. While a liberal society has no place restricting one’s choice of religion, a minority group facing pointed conversion efforts might have grounds for complaint – even if, for other reasons, the law cannot provide a remedy. Pointing out these concerns matters because it isolates conversion discourse from other types of blasphemy (unintentional blasphemy, satire, etc.) that are often less socially harmful. To conclude, a consideration of blasphemy and religious identity requires a nuanced approach which recognizes (1) that religious identity is often more ‘intrinsic’ than Uddin and other critics of blasphemy bans admit (even if it is more malleable than other identities) and (2) that even when religious faith is malleable, it does not necessarily make blasphemy as a social practice harmless. Sometimes, the fluidity of religious identity, which raises the genuine possibility of conversion, will make blasphemy a more rather than less serious problem.

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Gene R. Thursby, Hindu and Muslim Relations in British India (Leiden:  Brill 1975), pp. 33–60. Ibid., pp. 62–71 (describing the debate over the passage of the law). See Sana Ashraf, ‘Honor, purity, and transgression: Understanding the concept and practice of blasphemy in Punjab Pakistan’ (Master’s Thesis, Central European University, 2014), p. 43. To be sure, a Pakistani Christian is not likely to file a charge against a Muslim in this situation – indeed, the Christian woman Ashraf described was charged after she, in response to criticism of Jesus, said that Jesus was better than Muhammad in many respects. Ibid. But from a larger perspective the story shows how discussions about religious conversion are not always ‘constructive’ or ‘healthy’.

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6.2.2 The Limits of Zero Tolerance Second, there is something a little odd about how opponents of blasphemy laws respond to the persistence of infrequently used blasphemy laws in what is conventionally known as the West. The decision by Ireland to adopt a new blasphemy law in 2009 was subject to sharp criticism.19 This type of accounting, however, pays little heed to differences in the coverage, severity or vagueness between the moderate blasphemy laws found in countries like Ireland and those (like Pakistan’s) that are more draconian. In this regard, consider the language of the Rabat Plan of Action, Paragraph 19, which states that blasphemy laws ‘can’ lead to the censure of ‘all’ religious ‘dialogue, debate and criticism’.20 Does a rarely used law really run this risk? Denmark’s blasphemy law has been used three times since its enactment in 1938; significantly, the one time the law might have been relevant – during the Danish Cartoon Controversy – the public prosecutor refused to bring charges.21 Once again, there are counter-examples. In Otto-Preminger-Institut v.  Austria, the European Court of Human Rights upheld an Austrian conviction against a theatre for showing a satirical film about the Holy Family.22 This shows how even in the liberal West, laws protecting religious sensitivities can be used in ways that are hard to justify. But the Austrian prosecution of a single film, while unfortunate (and perhaps wrongly decided), did not lead to the censure of ‘all’ religious debate. While it might be nice from a global anti-blasphemy perspective to convince Denmark, Germany, Austria (and several American states, including Massachusetts, Pennsylvania, South Carolina, Oklahoma and Wyoming)23 to remove their 19 20 21

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Cox, ‘Blasphemy’, 744–745; Kahn, ‘A margin of appreciation’, pp. 412–413. RPA, para. 19. ‘Decision on possible criminal proceedings in the case of Jylland-Posten’s article “the Face of Muhammed”’, Director of Public Prosecutions, 15 March 2006 (File No, RA-2006-410151). For more on this, see R. A. Kahn, ‘Flemming Rose, the Danish Cartoon Controversy and the new European freedom of speech’ (2010) 40 California Western International Law Journal 253. 295-A ECHR (ser. A)(1994). Incidentally, Germany has blasphemy laws and yet the film was shown without incident. Kahn, ‘A margin of appreciation’, p. 420 (noting that German audiences found the film ‘boring’). Interestingly, the US state of Massachusetts punishes blasphemy directed against ‘God … Jesus Christ … and the Holy Ghost’. Mass. Gen. Laws, Chapter 272, §36; see also Pennsylvania Code §17.5; South Carolina Code of Laws §16-17-520; Michigan Penal Code (1931) §750.102, 750,103; Oklahoma Statutes §21.901, 21.902; and Wyoming Statutes §129-106. Because of the prevailing interpretation of the First Amendment, which not only

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blasphemy laws, banning such laws strikes me as a far lower priority than amending the laws in those countries (Iran, Saudi Arabia and Pakistan) where such laws are frequently used. A related zero-tolerance question involves what one is allowed to say about blasphemy laws while remaining a member of the international human rights community in good standing. Is it permissible for global leaders (for example, the Secretary General of the United Nations) to say things that might appear to offer legitimacy to supporters of blasphemy laws? Maybe not. Tom Herrenberg takes Secretary General Ban Ki-Moon to task for saying that the film The Innocence of Muslims is a humiliating abuse of freedom of speech, one that should not be legally protected.24 According to Herrenberg, the Secretary General’s statement ‘nurtures confusion’ and provides a signal to demonstrators against the film that ‘they [the demonstrators] might be right’.25 Later in the article, he takes Hillary Clinton to task for stating that the film was made to provoke rage.26 While Herrenberg accepts that politicians should be allowed to comment on controversial issues, he will not allow them to ‘deviate from principles enshrined in human rights law’.27 But what about Secretary General Moon’s freedom of speech? Perhaps Secretary General Ban Ki-Moon is naïve or has fallen under the thumb of the Organization of Islamic Cooperation. It is perfectly legitimate to fault the Secretary General for bad politics, but Herrenberg’s language suggests that a human rights spokesperson is simply not allowed to say anything that suggests blasphemy might constitute real harm (in some situations) lest that statement render aid and comfort to those countries that make frequent use of anti-blasphemy laws. While there is a logic to this position, there is also a logic about the value of free and fair debate. If one of the harms of anti-blasphemy laws is that they prevent debates about

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protects speech but also bans efforts to favour one religion over another (or belief over non-belief), the possibility of a successful blasphemy prosecution is close to zero. See Kalman v. Cortes 723 F. Supp.2d 766, 783–91 (E.D. Pa 2010) (invalidating a Pennsylvania law requiring that business not use names that insult religion on the basis of separation-ofchurch-and-state grounds). Tom Herrenberg, ‘Denouncing divinity:  Blasphemy, human rights, and the struggle of political leaders to defend freedom of speech in the case of innocence of Muslims’ (2015) Ancilla Juris (2015:1) 4–5. Ibid., 5. Ibid., 12. Ibid., 19.

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religion, Herrenberg’s position does the same for debates about international human rights law.28

6.2.3

The Lingering Allure of the Clash of Civilizations

At times the debate over blasphemy laws – and anti-Muslim hate speech more generally – has become enveloped in a ‘clash of civilizations’ between Islam and the West.29 While a series of incidents over the past twenty-five years (ranging from the publication of The Satanic Verses to the recent attacks on the offices of Charlie Hebdo) can explain this interest, there are stories about blasphemy that do not involve Muslims. For example, the Pussy Riot trial in Russia did not involve Muslims; the culture clash, if any, was between Western and Slavic-Orthodox civilizations. Meanwhile, there are stories about Muslim integration in the West that do not turn on bans on drawing the Prophet – consider, in this regard, the global debates on the meaning of the headscarf, niqab and burka.30 Given this, framing the global debate over blasphemy laws as a struggle against a medieval Wahhabi Islam backed by Saudi petrodollars is somewhat limiting. It is also limiting because it ignores (1) the colonial and neo-colonial origins of some blasphemy laws, (2) the use of blasphemy laws by competing Muslim groups within an Islamic cultural context and (3)  the resistance to blasphemy laws by Muslims. Let me illustrate this with the case of Pakistan. While the current blasphemy laws in Pakistan are 28

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In Pakistan, the broad anti-blasphemy laws have also chilled debate about the blasphemy laws themselves. See Osama Siddique and Zahra Hayat, ‘Unholy speech and holy laws: Blasphemy laws in Pakistan – Controversial origins, design defects, and free speech implications’ (2008) 17 Minnesota Journal of International Law 305, 377. The term, which comes from Samuel Huntington’s 1991 article in Foreign Affairs magazine, has been used reductively to suggest that the debate over issues such as blasphemy are the result of a primordial clash between the liberal West and a monolithic Islam. The Charlie Hebdo killings, and the reaction to them, have reinforced this perspective, which – among other things – downplays the nuanced positions to issues like blasphemy bans in the Islamic world. For an article that, while opposing blasphemy bans, rejects this trend, see Evelyn M. Aswad, Rashad Hussain and M. Arsalan Suleman, ‘Why the United States cannot agree to disagree on blasphemy’ (2014) 32:1 Boston University International Law Journal 119, 133–134 (addressing the colonial origins of South Asian blasphemy laws). For an overview of the motivations behind European bans on the headscarf and burqa, see John R. Bowen, Why the French Don’t Like Headscarves:  Islam, the State and Public Space (Princeton:  Princeton University Press, 2008); Robert A. Kahn, ‘Are Muslims the new Catholics? Europe’s headscarf laws in comparative historical perspective’ (2011) 21 Duke Journal of Comparative and International Law 567.

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much more severe, they were adopted from the blasphemy act passed in 1860 as part of the Indian Penal Code. There has been quite a debate about why Lord Macaulay, the drafter of the code, chose to punish blasphemy. Some view the law as justifying imperial rule;31 others view it as displaced response to developments within England.32 Either way, however, the 1860 law was not a reflection of a primordial Islamic impulse to censor speech. Indeed, even in the 1940s and 1950s, Pakistani courts interpreted the blasphemy statute – still largely derived from the Indian Penal Code – quite liberally.33 This changed in the 1980s when General Zia-ul-Haq adopted the current, more stringent laws, an action taken by General Zia to shore up the legitimacy of his regime, which, during this time, was supporting the CIA–backed Islamic freedom fighters (mujahedeen) in Afghanistan.34 This is more than a simple clash of civilizations. Second, Harvard anthropologist Asad Ali Ahmed describes how Pakistani blasphemy laws were used by competing Islamic sects against each other in Kamonke, a small provincial city where he did fieldwork.35 The Barelwis, who believe that Muhammad is still alive and follow a Sufioriented Islam of the heart, brought blasphemy charges against a speaker of the Ahi-i-Sunnat sect, which took a more legalistic, rule-based approach to Islam.36 The speaker mocked the Barelwis belief in a living Muhammad by asking members of the largely Barelwis audience to show where the Prophet was.37 While the filing of charges (which were ultimately dismissed) may well illustrate the harm of blasphemy laws, the example is different from the standard narrative in which ‘radical’ Muslims are using blasphemy allegations against religious minorities, atheists and liberal

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Asad Ali Ahmed, ‘Specters of Macaulay: Blasphemy, the Indian Penal Code, and Pakistan’s postcolonial predicament’, in Raminder Kaur and William Mazzarella (eds.), Censorship and Silencing in South Asia: From Sedition to Seduction (Indianapolis:  Indiana University Press, 2009), p. 172 at p. 177. For a good overview, see Barry Wright, ‘Macaulay’s Indian Penal Code: Historical context and originating principles’, in Wing-Cheong Chan, Barry Wright and Stanley Yeo (eds.), Codification, Macaulay and the Indian Penal Code: The Legacies and Challenges of Criminal Law Reform (Aldershot, UK: Ashgate, 2011). Siddique and Hayat, ‘Unholy speech and holy laws’, pp. 339–341. Ibid., 312–322; Shemeem Burney Abbas, Pakistan’s Blasphemy Laws: From Islamic Empires to the Taliban (Austin: University of Texas Press, 2013), pp. 22–28. See Ahmed, ‘Specters of Macaulay’, pp. 189–197. Ibid., pp. 189–190. Ibid., p. 194.

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Muslims.38 This is not to deny that such uses of blasphemy laws exist, but it does complicate the standard story. Third, some opposition within Pakistan to the blasphemy laws is by scholars and lawyers who identify as Muslim and oppose the laws, in part, on religious grounds. For example, Shemeem Burney Abbas, herself a victim of the blasphemy laws, argues that such laws have no basis in the Quran and speaks of an earlier age in Pakistan characterized by ‘centuries of tolerant Muslim rule’ during which adherents of different faiths could live their personal lives according to their own beliefs.39 While Osama Siddique and Zahra Hayat do not entirely reject the appropriateness of punishing blasphemous speech, they are very sharp critics of the current laws, which they fault for their penalties, vagueness and lack of intent.40 While one might, from an international human rights perspective, wish that Siddique and Hayat go all the way and reject the very concept of blasphemy laws, their position is at odds with the standard story in which a rule of law and concerns about intent and vagueness are the solely preserve of the liberal West.41 Finally, it is worth comparing the global debate over the persistence of anti-blasphemy laws in Pakistan and to the outcry, prosecution and enactment of blasphemy laws in Russia after the punk collective Pussy Riot released the YouTube video Punk Prayer: Holy Mother of God Put Putin Away, which featured footage of Pussy Riot members dancing and singing in front of the altar of the Russian Orthodox Cathedral of Christ the Savior in Moscow.42 While Pakistan has been at the center of the global debate over blasphemy, Russia has not. This remains the

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Ibid., p. 195. For Ahmed, the case he describes and others like it undercut the social unity that ought to come from blasphemy bans and help cast Muslims ‘as the West’s irrational and disavowed other’ (ibid., p. 197). Abbas, Pakistan’s Blasphemy Laws, pp.  32–43, 50. Abbas places the emergence of blasphemy bans in the Islamic tradition in the years after Muhammad’s death as rival successors jockeyed for power (ibid., pp. 43–46). Siddique and Hayat, ‘Unholy speech and holy laws’, p. 385 (arguing that pre-Zia laws are sufficient to handle blasphemous speech). Although see Neville Cox’s contribution (‘Blasphemy and Defamation of Religion’) in this volume for an exception. See Tore Tvarnø Lind, ‘Blasphemy cries over Pussy Riot’s “Punk Prayer”’, Danish Musicology Online Special Edition (2015); Katharina Wiedlack and Masha Neufeld, ‘Lost in translation? Pussy Riot solidarity activism and the danger of perpetuating North/Western hegemonies’ (2014) 4:2 Religion and Gender 145; Elena Ivanovna Volkova, ‘Mater Nostra:  The antiblasphemy message of the Feminist punk prayer’ (2014) 4:2 Religion and Gender 202. On Pussy Riot and activist art, see also Jeroen Temperman’s chapter in this volume.

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case even though (1) the prosecution and trial were global events that attracted interest from pop stars like Madonna, feminists and supporters of the Riot Grrrl movement,43 and (2) one could read the persecution of Pussy Riot as an attempt by the state to use criminal charges as a way to restrict debate about religious and political issues, precisely the type of issue the international movement against blasphemy bans should be concerned about. As the Pussy Riot example shows, blasphemy is not the exclusive prerogative of the Muslim world. Yet if the international human rights community is serious about doing something about the blasphemy laws which have survived Zia-ul-Haq’s death in a plane crash, the rise of Benazir Bhutto, the return of military rule and repeated efforts by governments sensitive to the global opposition to blasphemy laws to introduce the most basic reforms to the laws, it would be helpful to view the blasphemy laws (and their supporters) without the blinders imposed by the clash-of-civilizations frame. At this point, let me add a caveat. While the global debate over blasphemy laws sometimes manifests these characteristics, it often does not. In particular, it is important to distinguish the international human rights community from politicians who find it profitable to reduce the campaign against blasphemy to a campaign against Islam. The decade-long debate over the defamation-of-religions proposals has likely added to this problem. As we move into a world that – in theory, at least – rejects punishment of blasphemy, tensions should ease somewhat. In this spirit of progress and cooperation, I would like to suggest some alternative frames that will help (hopefully) to strengthen the global support for the new consensus against blasphemy laws.

6.3 New Ways of Looking at Blasphemy Laws The current situation with blasphemy and blasphemy bans is something of a paradox. While the global society is reaching a consensus against blasphemy, individual societies have not – at least in parts of the Muslim world. To return to Pakistan, the support for the draconian Zia-ul-Haq blasphemy laws, which include the death penalty for insulting the Prophet Muhammad, is striking. Meanwhile, even in countries where blasphemy is not punished, there are questions about how actors in society – such

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as the news media44 – should respond to speech that some members of society see as blasphemous. These are complex questions, and the ideas I present in what follows are not the only ones. But taken together, they may get at some of these questions. The three frames are: (1) treating blasphemy bans like any other speech restriction (i.e. focusing on the scope, vagueness, use/misuses and penalties of the laws), (2) distinguishing different types of blasphemy and (3) exploring why individuals, groups and societies are motivated to treat a given speech act as blasphemous.

6.3.1

Blasphemy Bans and ‘the Liberalism of Fear’

As Neville Cox has pointed out, opposition to blasphemy bans – especially in the West – turns less on the rejection of punishing grossly immoral acts (as an example, he references the banning of Holocaust denial in Europe; one might add the willingness to ban some forms of cross burning in the United States),45 than on a rejection of ‘religion’ as a reason to punish speech.46 In this section, I suggest that the opposition to blasphemy bans based on their religious content is mistaken. Instead of focusing on the content of the speech being punished, human rights advocates, the international community, and civil libertarians at large would be better served addressing the particular harms to expression posed by a given blasphemy statute. Such an approach goes to what should be the heart of freedom of speech, namely protecting the right of an individual to express his or her opinion without fear of state punishment. Just as Judith Shklar’s ‘liberalism of fear’ is not ‘a political doctrine’ or ‘a philosophy of life’ similar to that ‘provided by various forms of revealed religion’,47 the global consensus in favour of freedom of expression should be neutral when it comes to the type of speech being protected. Before sketching out what this ‘liberalism of fear’ approach would look like, let me take up two objections:  one moral, the other practical. The

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Interestingly, Abbas is careful to distinguish the question of Pakistan’s blasphemy laws from the Danish Cartoon Controversy, which she sees as adding an overcharged emotionality to the discussion over Pakistan’s laws. Abbas, Pakistan’s Blasphemy Laws, pp. 56–57. I do not necessarily disagree; my argument is that a better understanding of blasphemy and blasphemy bans would help with both issues. Cox, ‘Blasphemy’, p. 749; see also Robert A. Kahn, ‘The legal regulation of cross burning and Holocaust denial in comparative perspective’ (2006) 83 University of Detroit Mercy Law Review 163. Cox, ‘Blasphemy’, p. 749. Shklar, ‘The liberalism of fear’, p. 35.

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moral objection rests on the possibility that speakers might be particularly attached to ‘blasphemous’ speech because such speech reflects their deepest beliefs. In this regard, the punishment of blasphemy is not simply a violation of freedom of speech, it is also a violation of freedom of religion. There is an element of truth here; indeed, this is why blasphemy bans can be so dangerous: when broadly drafted, frequently enforced and featuring draconian penalties, they pose a great likelihood of preventing people from expressing questions of spirituality. On the other hand, however, when blasphemy bans are narrowly drafted, carry light penalties and are rarely used, the chilling effect of these laws on discussion of spiritual matters seems much less likely. In addition, in traditional free-speech discourse, courts look at a variety of factors relating to the text and context of the speech: Who made the speech? Was a threat contained in the speech meant to be taken seriously? Was the speech uttered in an overly harsh manner? One thing courts do not usually look into is the meaning of the speech to the speaker. To turn to libel, truth is a defence, so too, in the United States, is absence of malice.48 I cannot avoid liability, however, by arguing that it was very important for me psychologically (or spiritually) to have knowingly published lies about you. The second objection is practical. As comparative law scholar Alan Watson put it, ‘For most people in the modern world, legal procedure is boring and irrelevant’.49 It is easy to argue for – or against – the protection of a broad category of speech. It is much harder to get excited about standards of mens rea. This is all the more true because, unlike with content, where one can oppose bans on hate speech, genocide denial or blasphemy across the board, each country has its own legal system with its own wrinkles. While there are some commonalities and principles – for example, blasphemy bans should require some form of intent; there should be some limits on who has standing to bring a claim and so forth – there are things about Pakistan’s legal system that differ from India’s that in turn differ from Iran’s and so on. From a cost-benefit analysis, the effort spent learning how blasphemy bans play out in 200+ different legal systems might be better spent making broader, more theoretical content-based arguments,

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See, e.g., New York Times v. Sullivan 376 US 254 (1964) (establishing the reckless disregard standard in libels involving public figures). Alan Watson, Ancient Law and Modern Understanding at the Edges (Athens: University of Georgia Press, 1998), p. 91.

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especially given the fear that in some countries the rule of law will not be followed in any event. While appreciating the practical obstacles, focusing on the specific nature of the blasphemy laws themselves has several benefits. First, it avoids certain types of arguments based on the persistence of rarely used blasphemy laws in liberal democratic states. Yes, Germany,50 Austria and Denmark51 have blasphemy bans – but they do not have the same punishments, frequency of use or vague language that Pakistan has.52 Second, it avoids conflicts with supporters of more moderate blasphemy bans. These could be people in liberal democracies who seek to retain their blasphemy laws for largely symbolic purposes. Or they could be people in countries like Pakistan who might, under other circumstances, entirely oppose blasphemy laws but for a variety of reasons cannot bring themselves to do so.53 Here one might mention the difficulty the international human rights community has had in translating documents like the Rabat Plan of Action to the grassroots in countries like Pakistan, where efforts to change the laws have been met with opposition. This has some interesting theoretical implications:  What does it mean, for example, for Robert Post’s theory about the connection between free speech and democracy,54 if a society that is at least formally a democracy cannot muster the votes to remove its blasphemy laws? For now, however, I want to make the more

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See Matthias Cornils’s chapter in this volume, ‘Legal Protection of Religion in Germany’. See Eva Maria Lassen’s and Lars Grassmé Binderup’s chapter in this volume, ‘The Blasphemy Ban in Denmark’. Indeed, Siddique and Hayat use the law of these countries as models to demonstrate the failure of Pakistan’s current blasphemy laws. Siddique and Hayat, ‘Unholy speech and holy laws’, 353–358. Interesting here is Muhammad Asif Khan and Farooq Hayat’s scathing critique of Pakistan’s anti-blasphemy laws. Muhammad Asif Khan and Farooq Hayat, ‘Pakistan’s vulnerable minorities and the anti-blasphemy law: Is there a way out?’ (SSRN paper, 2015, available at http://ssrn.com/abstact=2676484). While they pose novel solutions – such as punishing false accusations of blasphemy and improving the status of law enforcement and the judiciary who handle blasphemy cases – they refused to ‘discuss or suggest any amendment’ to the current laws, lest they be suspected of blasphemy themselves. Ibid., pp. 11–12. See Robert Post, ‘Racist speech, democracy, and the First Amendment’ (1991) 32 William and Mary Law Review 267, 280–284 (arguing that a democracy to be truly legitimate must protect all speech within the public discourse – including hate speech). Post has also applied his perspective to the Danish Cartoons. Robert Post, ‘Religion and freedom of speech:  Portraits of Muhammad’ (2007) 14 Constellations 72. For a critical overview of Post’s position, see Robert A. Kahn, ‘Why do Europeans ban hate speech? A  debate between Karl Loewenstein and Robert Post’ (2013) Hofstra Law Review 545, 571–576.

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straightforward point that a society that is unwilling to completely jettison its blasphemy laws might be convinced to modify them and that this is a good thing. Well, then, how might one judge blasphemy laws? Here let me sketch out some benchmarks. The first and most obvious concerns penalties for blasphemy. Section 295-C of the Pakistan Criminal Code, which punishes blasphemy against the Prophet Muhammad with the death penalty, has no place in a civilized society.55 Nor should blasphemy be punished more severely than hate speech or genocide denial; this will vary from society to society. A country like the United States that punishes no hate speech should also, logically speaking, not punish blasphemy. Second, blasphemy laws should be hard to use – in other words, there should be standing requirements that prevent abuse of the law. In this regard, it would be an improvement if the Pakistan penal code required consent from the attorney general before allowing prosecutions to go forward (a requirement of Canadian hate speech laws) or some other device to limit prosecutions. Khan and Hayat’s suggestion about punishing false claims of blasphemy is,56 in this respect, somewhat problematic because it may reinforce a culture of turning to the law to punish poor behaviour. That said, they deserve credit for looking for creative solutions to the frequency-of-use issue. Third, blasphemy laws should require an intent by the speaker to cause harm by blaspheming. As Siddique and Hayat point out, the Zia-ul-Haq era blasphemy laws departed from the intent requirement previously in the Indian and Pakistan Penal Codes.57 Dispensing with intent requirement has led to the punishment of inadvertent blasphemy – in which the speaker blasphemes by mistake or out of ignorance.58 Moreover, not just any intent should do; instead, it must be an intent to harm society by disturbing the peace (the rationale for the blasphemy bans in the Indian Penal Code) or to incite hatred against someone based on their religion (which could come up in the forced-conversion context). This trend parallels an emerging scholarly consensus in the field of genocide denial bans, in which bans – to be legitimate – should be limited to speech that

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See Siddique and Hayat, ‘Unholy speech and holy laws’, 381–383. Khan and Hayat, ‘Pakistan’s vulnerable minorities’, p. 17. Siddique and Hayat, ‘Unholy speech and holy laws’, 342–348. Waqar Gillani and Rod Norlandjan, ‘Boy’s response to blasphemy charges unnerves many in Pakistan’, New York Times, 18 January 2016.

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uses denial to spread racial hatred (as opposed to merely denying a fact of history).59 The question of intent has a wrinkle: it is easy to insist on an intent requirement – the harder question is how that intent must be shown. Must one provide subjective evidence from the speaker (‘I am defiling your god to hurt your feelings’)? Or may one proceed under a res ipsa loquitur theory in which certain types of speech acts are per se hateful, intentional or blasphemous? For example, US Supreme Court justice Clarence Thomas, dissenting in Virginia v. Black, argued that the burning cross, by its very nature, always intimidates.60 Likewise, Thomas Hochmann argued that a focus on the intent of the Holocaust denier distracts our attention from the harm of denial itself.61 So there is certainly precedent for deriving intent from words the speaker used and the general context of the speech act. That said, in the case of blasphemy, I would be very careful with this type of argument, lest it lead to an end run around the intent requirement. To put it another way, blasphemy regulations are more justifiable to the extent they are specific-intent crimes.62 Finally, a blasphemy ban should be specific and narrow in its scope. For example, a narrowly crafted blasphemy law might punish speech acts that ‘publicly disparage’ a religious person, object or idea in a way likely to cause offense. By contrast, Sections 295-C (covering the disparagement of Muhammad) and 298-A (covering disparagement of relatives and companions of the Prophet) punish ‘imputation, innuendo, insinuation’ that ‘directly or indirectly’ defiles the Prophet or his companions.63 While any 59

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Paolo Lobba, ‘Criminalizing negationism beyond the Holocaust’ (2013), available at www .lph-asso.fr/index.php?option=com_content&view=article&id=184%3Acriminaliser-lenegationnisme- au- dela- de- holocauste&catid=53%3Aactualites&Itemid=170&lang=en (taking the position that restricting genocide denial to situations in which there is a discriminatory intent is an improvement over the current situation). Virginia v. Black 538 US 347, 390 (Thomas, J., dissenting). The majority held that cross burning was a diverse enough practice that one could not presume that all such acts were intended to intimidate. See Virginia v. Black 538 US 347, 365–368. Thomas Hochmann, ‘The denier’s intent’, in Ludovic Hennebel and Thomas Hochmann, Genocide Denials and the Law (Oxford: Oxford University Press, 2011), pp. 279–319. The United States Supreme Court recently dealt with this issue in Elonis v. United States 575 US __, 135 SCt 2001 (2015), in which the court overturned the conviction under a terroristic threat statute of a man charged with posting threatening messages to Facebook, ibid. at 2004–2008. In concluding that the prosecution must show at least recklessness (i.e. that the defendant must have known his messages would be seen by an ordinary person as threatening), Chief Justice Roberts stated that ‘wrongdoing must be conscious to the criminal’ (ibid. at 2012, quoting Morissette v. United States 342 US 246, 252 (1952). Pakistan Penal Code 295-C; Pakistan Penal Code 298-A. See Siddique and Hayat, ‘Unholy speech and holy laws’, 351–353.

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blasphemy law contains an irreducible amount of vagueness – given the use of terms like ‘defile’ or ‘disparage’ – the language in Sections 295-C and 298-A greatly exacerbates the problem. Not only are ‘imputation’, ‘innuendo’ and ‘insinuation’ very broad terms, they are also hard to define.64 What does it mean to defile the Prophet by ‘insinuation’ or ‘innuendo’? For example, does the statement ‘I love Jesus’ violate 295-C? Here, too, there is a wrinkle. In general, blasphemy laws should cover as little speech as possible. On the other hand, the Rabat Plan of Action quite properly takes those blasphemy laws to task that favour one religion over another for violating the guarantees of state neutrality in the International Covenant for Civil and Political Rights.65 This raises a question: should a country that punishes blasphemy against the dominant religion and in which the repeal of its blasphemy law is a political impossibility66 expand its blasphemy to cover other groups? This was an issue during the Salman Rushdie affair in the United Kingdom, which at the time had a blasphemy law that only protected Christian denominations;67 it is currently an issue in Pakistan. At first blush, it might appear that the expansion of a blasphemy law to cover all faiths would be a step backwards. The more speech acts covered, the greater the chilling effect and restriction of speech. On the other hand, however, returning to the colonial-era Indian Penal Code, which protected all faith traditions, might be a step forward in Pakistan to the extent it gave Christians an opportunity to protect themselves against efforts at conversion – ones that often end with the Christians being charged with blasphemy – by threatening the converters with blasphemy

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Ibid., 351. For a discussion, see Parmar, ‘The Rabat Plan of Action’, p. 225 (quoting RPA). Support for blasphemy laws is strongly entrenched not only in Pakistan but also in Denmark. See Khan and Hayat, ‘Pakistan’s vulnerable minorities’, p. 11 (describing risks facing academics opposing blasphemy bans in Pakistan); ‘Danes overwhelmingly support their blasphemy law’, Copenhagen Post, 21 September 2012, http://cphpost.dk/ news14/national-news14/danes-overwhelmingly-support-their-own-blasphemy-law.html (reporting that 66% of Danes in a 2012 poll oppose repealing their blasphemy law). For an overview of the affair, see Richard Webster, A Brief History of Blasphemy: Liberalism, Censorship and ‘The Satanic Verses’ (Southwold, UK:  Orwell Press, 1989); Leonard W. Levy, Blasphemy:  Verbal Offense against the Sacred from Moses to Salman Rushdie (New York:  Knopf, 1993), pp. 550–566. The United Kingdom has since replaced its blasphemy law with a ban on incitement to religious hatred. For a discussion of this change, see Erik Bleich, The Freedom to Be Racist? How the United States and Europe Struggle to Preserve Freedom and Combat Racism (Oxford: Oxford University Press, 2011), pp. 23–29.

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charges.68 While this makes me a little nervous, it is a step Pakistan could take without discarding its current blasphemy laws. From a more global perspective, the case for neutrality is much clearer. To the extent the global community takes a firm stance that says ‘all blasphemy laws must cover all faiths’ and enforces it, nations unwilling to protect minority faiths might be persuaded to give up their blasphemy laws.69 In concluding this section, let me be clear about my argument. I am not supporting blasphemy laws; indeed, there are strong moral, theoretical and human rights arguments to oppose such laws. Instead, I am making two points: (1) it is useful to compare and evaluate blasphemy bans based on the harm they pose to freedom of speech rather than condemning all blasphemy laws equally, and (2) the global campaign against blasphemy laws does itself something of a disservice when it focuses on rarely used blasphemy laws in European countries at the expense of much more serious bans in countries like Pakistan. Simply put, all blasphemy bans are not alike.

6.3.2 Types of Blasphemy Likewise, not all forms of blasphemy are alike. If the argument against punishing blasphemy rests on the old children’s rhyme ‘sticks and stones may break my bones but names can never hurt me’, one might still distinguish between being called a ‘weenie’ and being the target of a racial epithet or profane remark. (Indeed, even in the United States, the traditional home of free speech absolutism, profanity can be punished as ‘fighting words’ – especially when directed at a police officer).70 The harm

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Khan and Hayat make this point, adding that including all religions reflects the original aim of the blasphemy code, which was ‘to create tolerance and maintain … peace’. Khan and Hayat, ‘Pakistan’s vulnerable minorities’, p. 11. One should also examine the extent to which a society with blasphemy bans tolerates or encourages extra-judicial attacks against citizens charged with blasphemy – something that is a real problem in Pakistan. See Matt Hoffman, ‘Blasphemy laws in Pakistan and the Rimsha Masih Case’ (2014) 13 Washington University Global Studies Law Review 371, 383– 386. The impact of legal reform will be limited if the state is unable to protect blasphemy defendants (or those accused socially as blasphemers) from violence. The key case in fighting-words jurisprudence is Chaplinsky v. New Hampshire 315 US 568 (1942), in which the court, upholding the conviction of defendant who used the terms ‘fascist’ and ‘god damned racketeer’, held the punishment of words ‘which by their very utterance inflict injury or intend to incite an immediate breach of the peace’ (ibid., 571). Under Chaplinsky, states punish some offensive speech (typically profanities) directed at police officers and other authority figures.

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that flows from an act of blasphemy might, therefore, depend on the type of blasphemy involved. In what follows, I  distinguish four types of blasphemy. First, there is inadvertent or accidental blasphemy, where the speaker did not intend blasphemy at all. This might cover the Christian woman in Pakistan who allegedly defiled the Quran by touching it or by drawing water from the well or the unfortunate student in Pakistan who mistakenly raised his hand to say he loved the Prophet when actually the teacher had asked students who hated the Prophet to raise their hand.71 It goes without saying that this type of accidental blasphemy should never be punished; yet critics of blasphemy laws often rely on these cases – which are truly horrible – to reject the idea that blasphemy can ever cause the type of harm a liberal society should care about. Indeed, these types of cases – often stripped from any explanatory context – help construct the punisher of blasphemy as an irrational (and potentially non-Western) opponent of liberal values. Further down on the continuum of potential harmfulness is lighthearted or satirical blasphemy. Here the speaker understands that he or she is poking fun at the sacred – but the goal is gentle humour, art for art’s sake or some other rationale known only to the speaker. Many episodes of TV shows South Park, Family Guy and, to go back a generation, Monty Python’s Flying Circus fall into this tradition. This type of speech is easiest to distinguish by what it is not. Generally speaking, there is not an intent to engage with the symbols the blasphemer is lampooning. This distinguishes the last scene of Monty Python’s Life of Brian in which Brian and the other crucifixion victims sing ‘Always Look on the Bright Side of Life’,72 from the publication of the Danish cartoons. While the Monty Python song has little social or political meaning, and is likely not addressed to anyone,73 Flemming Rose, the culture page editor of the Jyllands-Posten, commissioned the cartoons for the explicit purpose of starting a conversation about self-censorship and therefore sought to engage the Muslim community.74 71 72 73

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Gillani and Norlandjan, ‘Boy’s response to blasphemy charges’. The song is available at www.youtube.com/watch?v=SJUhlRoBL8M. On the other hand, the song, which calls on the listener to ‘smile, dance and sing’, does send a spiritual message about not taking life too seriously. By contrast, Monty Python’s Spanish Inquisition skit poses a slightly closer case: It may send a religious message about Catholicism – even if nobody is likely to be offended about comfy chairs and soft cushions. At least this is what the text accompanying the cartoons stated; Rose’s actual motives are somewhat murkier. See Jytte Klausen, ‘Rotten judgment in the State of Denmark’, Spiegel Online, 8 February 2006.

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Thus the Danish cartoons are blasphemy with a purpose – this is where one might expect blasphemy to start to cause social harms. But having a purpose does not necessarily make blasphemy offensive; this, instead, turns on the nature of the purpose. This is why the cartoon that shows Muhammad with a bomb in his turban is different from the cartoons that show Muhammad as a seventh grader in a Danish classroom or of Muhammad picking out the leader of the Danish Peoples Party out of a line-up.75 The turban cartoon, by contrast, can be read as sending the message that Muhammad – and by extension all Muslims – are violent terrorists.76 This message starts to enter the territory of blasphemy that intends to spread hatred, which is why the criminal complaint against the Danish cartoons focused on hate speech as well as blasphemy.77 To the extent blasphemy is used this way, the laws may raise a cause for social concern. Or, to put it another way, to the extent the international community seeks to condemn all uses of blasphemy bans, they need to focus on difficult cases like this rather than the easy cases of accidental or light-hearted blasphemy. The final, and somewhat ambivalent category, is conversion blasphemy – that is blasphemy committed with an aim to persuade, convince or compel someone to change their religious faith. Let me add a caveat here about the ‘problematic’ nature of this speech. It is not the most offensive form of blasphemy; blasphemy that spreads hatred is most likely more offensive to the victim (as a Jew, I would rather be told the Old Testament is a lie than called a Christ killer). Rather, the difficulty is that conversion blasphemy – in addition to being open to abuse – stands at the center of the religious-dialogue debate and discussion that the global community, as expressed through the Rabat Plan of Action, is rightfully concerned about protecting. To read it from the human rights activists, the answer is easy. If a Jew, Christian and Muslim meeting on the street (or in a bar) should be able to convince each other of the respective merits of their religions, in practical, real world contexts, these discussions are not as easy. For example, colonial India saw a great deal of controversy over conversion in the 1920s,

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The decision of the Danish public prosecutor Henning Fode not to prosecute contains descriptions of the twelve cartoons. See ‘Decision on possible criminal proceedings’. Ibid. The public prosecutor noted that the turban cartoon ‘may with good reason be understood as an affront and insult to the Prophet’. Ibid.

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in part due to the shuddhi movement in which Hindu activists sought to bring back to the fold those Hindus who decades or centuries earlier had converted to Islam.78 The language that went back and forth between Hindus and Muslims was quite harsh and often was quite racy,79 which – from the perspective of the colonial authorities – led to concerns about disorder (even if these paled to the fear that Muslims and Hindus would unite in support of independence).80 In this context, conversion discourse might disturb the peace in ways that the state authorities might have reason to be concerned with – even if individual believers were open to changing their faith. Let me take another example, this time from current-day Pakistan. As noted, blasphemy allegations in Pakistan are used not only to target religious minorities but also in conflicts between Muslim sects, as for instance in the dispute Ahmed describes between the Barelwis and Ahi-i-Sunnat.81 As we have seen, the dispute involved conversion; an Ahi-i-Sunnat speaker was attempting to convert Barelwis to their more rational, rule-based version of Islam. What’s striking here is the harshness of the discourse. According to the person who brought the complaint, the speaker ridiculed the belief of the Barelwis that Muhammad had not died with the following words: ‘Sisters show me is he [the Prophet] sitting under your chair? Is he here? Or is he there?’82 While an audiotape surfaced suggesting that the language may have been milder,83 the example shows the power of conversion discourse to stir up trouble. The point here is not that some forms of blasphemy merit punishment. Rather, it is to counter a tendency among opponents of blasphemy laws to minimize the harms some forms of blasphemy can cause. This type of minimization is unnecessary: If Ronald Dworkin is correct that freedom of speech calls for sacrifices that ‘really hurt’,84 there is no reason to assume that all acts of blasphemy are light, airy South Park/ Monty Python–style acts of satire. In addition, a recognition that there are different types of blasphemy helps undercut the ‘clash of civilizations’ framework by suggesting that a society might have a legitimate issue with 78 79

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Thursby, Hindu and Muslim Relations, pp. 33–37. Ibid., pp. 37–38 (describing how Hindus and Muslims would use dialogues that featured prostitutes). Ibid., p. 63. Ahmed, ‘Specters of Macaulay’, pp. 189–197. Ibid., p. 194. Ibid., p. 195. See R. Dworkin, ‘The unbearable cost of liberty’ (1995) 24:3 Index on Censorship.

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blasphemy without suggesting that the recourse to law is appropriate. On this view, the mistake made by countries with blasphemy laws is not (necessarily) in the identification of the problem; it is in the solution (censorship, lengthy prison terms and so on). Meanwhile, the typology of blasphemy also serves to usefully distinguish those cases in which a society must balance the harms of blasphemy with the harms of censorship from those situations – such as inadvertent blasphemy – in which the supposedly blasphemous speech act should pose little if any harm at all.

6.3.3

Blasphemy and the Motivation to Punish

The third area of exploration concerns the reasons a legal system or society marks a given speech act as blasphemous. While the typology set forth in the previous section focused on the speaker and the different rationales he or she might have for uttering a given speech act (inadvertent vs. purposeful blasphemy, etc.), this section shifts the focus to the audience that receives, hears or listens to the speech act. What leads audiences to condemn some speech acts but not others? This question is too often ignored. The tendency is to say for blasphemy what a United States Supreme Court Justice has said about pornography: ‘I know it when I see it’.85 A  better catchphrase might come from director Phil Robinson’s film about a baseball field, Field of Dreams, however, in which the main character says, ‘If you build it, they will come’. Just as the baseball players came to the magical baseball field built by the protagonist, enacting a blasphemy ban can encourage the filing of anti-blasphemy cases – at least, this has been the experience of Pakistan under Zia-ulHaq’s strict anti-blasphemy laws.86 This idea also resonates with the colonial experience in India and Pakistan. There has been much speculation as to why Macaulay included an anti-blasphemy provision in his draft of the Indian Penal Code. One concern was that Britain’s Hindu and Muslim subjects were too passive; allowing a cause of action based on harm to feelings was one way to counter this.87

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Potter Stewart made this quote in his concurring opinion in Jacobellis v. Ohio 378 US 184, 197 (1964) (Stewart, J., concurring). Siddique and Hayat, ‘Unholy speech and holy laws’, 323–325. See Ahmed, ‘Specters of Macaulay’, p. 177. According to Thursby, the colonial blasphemy law had just this impact by allowing Hindus and Muslims to appeal to their ‘religious rights’. Thursby, Hindu and Muslim Relations, p. 174.

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Both the imperial and Pakistani experiences undermine the assumption that blasphemy laws can deliver the social harmony and peace between religious groups they are enacted to provide. Instead, it raises questions about why a colonial governor – or any modern legislator eager for social peace – would create a legal category that encouraged subjects to bring religious claims against each other. There are, to be sure, other theories of blasphemy. For example, sociologist David Nash identifies passive blasphemy as a situation in which the society is motivated to punish out of a fear that the act of blasphemy will bring down God’s vengeance on society in a physical, visceral way.88 By contrast, Nash defines active blasphemy as a concern about the power of blasphemy to harm the social order and/or the feelings of individual believers.89 To the extent one genuinely believes that disrespecting the Holy Spirit will lead to a bad harvest or the poisoning of the village well, one might have functional reasons for banning such speech. While likely true in some situations – Nash describes how blasphemy was of particular concern on sailing ships, where God’s opportunity for retaliation was quite apparent90 – the passive blasphemy explanation is not complete, at least in modern times.91 In particular, passive blasphemy cannot explain why Lord Macaulay included an anti-blasphemy provision in the Indian Penal Code. Here one might distinguish between two general types of explanation:  (1)  a surface-level reading that focuses on the stated goals of blasphemy bans (promoting tolerance and social order) and (2) deeper, sometimes hidden motivations that could be quite varied. For instance, in the context of colonial India, blasphemy bans create primordial Hindu and Muslim subjects who need colonial rule to avoid violence.92 Alternatively, such bans could be seen as a way to encourage a given group within the Raj to behave in a less fatalistic way by sending the message that certain types of hurt feelings merit a response. To the extent this is true, it provides a rationale for

88

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David Nash, ‘Analyzing the history of religious crime: Models of ‘passive’ and ‘active’ blasphemy since the Medieval period’ (2007) 41:1 Journal of Social History 6–7. Ibid., pp. 11–12. Ibid. p. 11. Indeed, the ancient Romans did not have this conception of religion. According to J.  B. Bury, the Roman emperor Tiberius (14–37) was of the opinion that the gods could take care of themselves. J.  B. Bury, The History of Freedom of Thought (Honolulu:  University Press of the Pacific, 1952, 2nd edn), p. 30. According to Thursby, these stereotypes often cast the Hindu as ‘the crying coward’ and the Muslim as ‘the stereotypical bully’. Thursby, Hindu and Muslim Relations, p. 38.

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identifying and punishing blasphemy that goes beyond concerns about God, protecting the social order or power relations. Blasphemy is about creating active subjects who will respond to insults with demands for retribution – legal and otherwise. The way blasphemy helps construct identity helps explore a puzzle about blasphemy bans and democratic legitimacy. Blasphemy bans have proven to be surprisingly enduring. In Pakistan attempts to change the laws have been met with opposition and public protest, and so have efforts to protect defendants in blasphemy cases. To the extent Robert Post is correct about the relationship between free speech and democracy,93 why have efforts to reform Pakistan’s blasphemy laws been met with public protests? One need not argue that, as a factual matter, democracies never support blasphemy bans.94 But if protecting free speech is essential to democratic legitimacy, why do democratic citizens support bans that curtail this freedom?95 The connection between blasphemy and group identity provides a possible way out of this paradox because it suggests that the blasphemers are no longer part of the group. To put it another way, I am suggesting that many different types of societies define themselves in opposition to speech they construct as blasphemous.96 In this regard, consider again Russia, where the government enacted a blasphemy ban in the wake of the Pussy Riot video. One could argue that the video triggered a nerve because it touched on a generalized uncertainty about Russian national identity rather than a specific concern about the hurt feelings of individual YouTube watchers (although the

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Post, ‘Racist speech’, pp. 280–284. This would be similar to the peace-loving-democracy thesis derived from Immanuel Kant that democracies will not go to war with each other. See Michael W. Doyle, ‘Kant, liberal legacies and foreign affairs’ (1983) 12:3 Philosophy and Public Affairs. Democratic support for blasphemy bans also raises the question of whether a state like Pakistan is entitled to use force to break up peaceful demonstrations against weakening its blasphemy bans. This raises the classic question of whether a society must tolerate the intolerant. Here, however, the ‘intolerant’ are not necessarily seeking to destroy democracy from within; rather they are seeking to identify their society as a place where certain ideas are unspeakable. The idea is similar to passive blasphemy but broader. Passive blasphemy turns on a specific fear of divine retribution. By contrast, marking speech as blasphemous might operate to construct group identity even in the absence of such fears. In this situation, the main use of blasphemy is to distinguish the in-group from outsiders. The motivation is less fear of God than an opportunity to show who belongs to the nation. For a certain type of Russian nationalist, Russia does not include Pussy Riot.

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prosecution managed to parade some of these people in court).97 By posting a video showing women in a traditionally male space in an Orthodox Church, Pussy Riot shamed Russian elites in a way that generated visceral responses.98 For instance, a leading opposition politician in Russia, who might have been expected to sympathize with Pussy Riot’s anti-Putin message, called for spanking the defendants.99 The concern here is not about divine retribution or even social order – it is about national honour. In a similar way, one could argue that repealing or amending a blasphemy law might suggest that the society in question has nothing worthy of protecting as sacred. By contrast, the United States, with its well-developed system of judicial review, has the luxury of declaring laws (including those against blasphemy) unconstitutional without having to legislatively repeal them – which may explain why Massachusetts and several other American states still have anti-blasphemy laws on their books. Other countries lack this luxury, which may explain the persistence of blasphemy laws in those places.

6.4 Toward a More Granular Study of Blasphemy and Blasphemy Bans It is hard to support such blasphemy bans. As the international community properly recognizes, such laws stifle debate on religious questions, are subject to misuse and, as Robert Post has written, raise questions about the democratic legitimacy of the states that adopt them.100 But in the rush to oppose blasphemy bans, there is a reluctance to explore the underlying concepts. As a result, all blasphemy bans get lumped together, blasphemy bans are often seen through a clash-of-civilizations prism that pits Islam against the West and the underlying concept of blasphemy is under-theorized. In particular, there is a reluctance to ask what forms blasphemy takes and what motivates audiences to identify it as offensive. The narrowness of the global discussion about blasphemy is unfortunate. By refusing to distinguish among blasphemy bans based on their 97

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Masha Lipman, ‘The absurd and outrageous trial of Pussy Riot’, New  Yorker, 7 August 2012 (describing testimony of witnesses who were offended by viewing the video). Tvarnø Lind, ‘Blasphemy cries over Pussy Riot’, p. 9. Anya Bernstein, ‘An Inadvertent Sacrifice: Body Politics and Sovereign Power in the Pussy Riot Affair’ 40:1 Critical Inquiry, p. 224. On the other hand, the same politician also called for letting them go after the spanking, ibid., which may mean he did have some sympathy for its anti-Putin message. Post, ‘Racist speech’, 280–284.

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harshness, the international community acts as if Ireland’s or Germany’s blasphemy ban are as problematic as Pakistan’s. In the process the community undercuts those, like Siddique and Hayat, who see the Europeanstyle blasphemy laws as an improvement over what currently prevails in their home country.101 By refusing to explore the different forms blasphemy can take as a speech act, the community downplays the harm that blasphemy can pose as a social problem, in the process reinforcing a ‘clash of civilizations’ discourse in which individuals, groups, societies and states concerned about blasphemy are seen as irrational and pre-modern. Finally, by failing to explore what leads societies to punish blasphemy, the community ignores the extent to which the current blasphemy laws in majority-Muslim states in South Asia owe something to the colonial experience. By attending to these issues, the international human rights community will generate a more inclusive, grassroots discussion of blasphemy and blasphemy bans and build on the hopeful promise of the Rabat Plan of Action.

101

Siddique and Hayat, ‘Unholy speech and holy laws’, 353–358.

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7 Blasphemy, Defamation of Religion and Religious Hate Speech Is There a Difference That Makes a Difference?

John C. Knechtle

7.1

Introduction

The 2005–2006 Danish cartoons controversy, 2012 Innocence of Muslims YouTube debacle, and 2015 Charlie Hebdo attacks all demonstrated the dangers that can arise when religious taboos – depicting the Prophet Muhammad, in these cases – are broken. Outrage over blasphemous artworks such as Piss Christ, nude Hindu deities and music videos by Madonna, Lady Gaga and Tori Amos show that Muslims are not the only ones who take offense to irreverent portrayals of their sacred beliefs. In our global village where information, including satire, ridicule and insults, travel instantaneously around the world, what is the role of legal and non-legal norms in addressing offensive language? Is it even possible or desirable to stop speech from coming across a nation’s borders, and if not, what are the consequences? When Pope Francis was asked about the attack that killed twelve people at the offices of Charlie Hebdo – targeted because it had printed depictions of the Prophet Muhammad – he said, ‘One cannot provoke, one cannot insult other people’s faith, one cannot make fun of faith. There is a limit. Every religion has its dignity … in freedom of expression, there are limits’. He gestured to Alberto Gasparri, who organizes papal trips and was standing by his side, and added, ‘If my good friend Dr Gasparri says a curse word against my mother, he can expect a punch. It’s normal. It’s normal. You cannot provoke. You cannot insult the faith of others. You cannot make fun of the faith of others’.1

1

Alexandra Topping, ‘Pope Francis:  Freedom of expression has limits’, The Guardian, 15 January 2015, available at www.theguardian.com/world/2015/jan/15/pope-francislimits-to-freedom-of-expression.

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Pope Francis was not addressing the role of law with religious or personal insults, and I doubt he was justifying a violent response to an insult. Rather, he was identifying a common instinctual reaction to offensive speech as a way to discourage religious insults. Respecting, as opposed to insulting, what a person holds most dear certainly builds community and allows everyone to feel more welcome in society. To do so in a global multi-religious environment would require a higher level of religious literacy, a particular challenge in either religiously homogeneous countries or countries where religion is considered unimportant. Yet political and religious cartoons, comics, and satire have played an important role for centuries in the West in poking fun at sacred political and religious cows. Especially when speech critical of government or religious officials was prohibited, cartoons were a way to ridicule those in power. Religious speech restrictions in law come under various headings such as blasphemy, heresy, apostasy and more recently, defamation of religion and religious hate speech. However, they all have their roots in the laws prohibiting blasphemy. A recent study of blasphemy, apostasy, defamation-of-religion and religious hate speech laws in countries around the world found that a minority of countries had laws in these categories on their books. Although they have fallen into disfavour, they persist. The Pew Research Center analysis found in 2011 that of the 198 countries studied, 32 (16 percent) had anti-blasphemy laws (remarks or actions contemptuous of God or the divine), 20 (10 percent) had laws penalizing apostasy (abandoning one’s faith including converting to another religion) and 87 (44 percent) had laws against defamation of religion, including religious hate speech (criticism of religion and hate speech towards members of religious groups).2 The popularity of a particular type of religious speech restriction changed depending on the region of the world. The Middle East and North Africa as a region had the highest proportion of countries criminalizing blasphemy (65 percent).3 In the Asia-Pacific region, 18 percent of the countries had blasphemy laws,4 and in the European region, 2

3

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Brian J. Grim, ‘Laws penalizing blasphemy, apostasy and defamation of religion are widespread’, Pew Research Center, Religion & Public Life Project (21 November 2012), available at www.pewforum.org/2012/11/21/laws-penalizing-blasphemy-apostasy-and-defamationof-religion-are-widespread/. Ibid. Algeria, Bahrain, Egypt, Jordan, Kuwait, Lebanon, Morocco, Oman, Qatar, Saudi Arabia, Sudan, United Arab Emirates and Western Sahara. Ibid. Afghanistan, India, Indonesia, Iran, Malaysia, Maldives, Pakistan, Singapore and Turkey.

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18 percent had such laws.5 In sub-Saharan Africa, only 2 of the 48 countries (4 percent) had such laws.6 Only 20 countries in the world prohibited apostasy with most of them in the Middle East/North Africa region (11 of 20, or 55 percent).7 In the Asia-Pacific region, 5 of 50 countries or 10 percent had such laws,8 and in sub-Saharan Africa, 4 of the 48 countries (8 percent) had such laws.9 Laws against defamation of religion and religious hate speech were the most popular form of religious speech restriction worldwide with 87 countries (44 percent) having such laws. The study did not disaggregate defamation of religion from religious hate speech, which would have been helpful, for example, because hate speech restrictions are popular in Europe but not in the Middle East and North Africa, while defamation of religion is popular in the Middle East and North Africa but not in Europe. Nonetheless, this still meant that most countries in the world did not restrict speech based on defamation of religion or religious hate speech. The region where defamation-of-religion/religious hate speech laws were most common was in Europe, where 36 of the 45 countries (80 percent) had such laws.10 In the Middle East and North Africa region, 15 of the 20 countries (75  percent)11 had such laws, with most tending to penalize defamation of religion, with few religious hate speech laws. In the Asia-Pacific region, 17 of the 50 countries had such laws (34 percent),12 in sub-Saharan Africa 13, of the 48 countries (27 percent),13 and in America, only 6 of the 35 countries (17 percent) had such laws.14

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8 9 10

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Ibid. Denmark, Germany, Greece, Ireland, Italy, Malta, Netherlands (the Dutch parliament abolished it in 2012) and Poland. Ibid. Nigeria and Somalia. Ibid. Egypt, Iraq, Jordan, Kuwait, Oman, Qatar, Saudi Arabia, Sudan, Syria, United Arab Emirates, Yemen. Ibid. Afghanistan, Iran, Malaysia, Maldives, Pakistan. Ibid. Comoros, Mauritania, Nigeria, Somalia. Ibid. Austria, Belarus, Belgium, Bosnia-Herzegovina, Croatia, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Ukraine, the United Kingdom, Ibid. Algeria, Bahrain, Egypt, Jordan, Kuwait, Lebanon, Morocco, Oman, Saudi Arabia, Sudan, Syria, Tunisia, United Arab Emirates, Western Sahara, Yemen. Ibid. Armenia, Bangladesh, Bhutan, Brunei, Cambodia, India, Indonesia, Iran, Kyrgyzstan, Malaysia, Maldives, Burma (Myanmar), Pakistan, Singapore, Thailand, Turkey, Uzbekistan. Ibid. Burundi, Central African Republic, Congo, Ethiopia, Gambia, Guinea, Mali, Mauritania, Republic of Congo, Rwanda, Seychelles, South Africa, Tanzania. Ibid. Brazil, Canada, Chile, El Salvador, Trinidad and Tobago, Venezuela.

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Although not limited to them, Muslim-majority countries are heavily represented in each of the categories of religious speech restrictions and particularly in regards to apostasy, where all twenty countries that criminalize apostasy are Muslim-majority countries. This reflects the belief of most Muslims in easy conversion into the faith but no conversion out of it.15 Western Christianity’s journey to embracing the right to enter and exit the religion of one’s choice took centuries of religiously motivated wars, inquisitions, torture and executions. But this shows that even an exclusive religion with hard boundaries can change over time due to either pragmatism or renewal of other religious principles long forgotten. Today, Western liberalism only defends religious hate speech as a legitimate restriction on religious speech, and this view is reflected in international law. After Article 19 of the International Covenant on Civil and Political Rights (ICCPR) guarantees the right to freedom of expression, Article 20(2) provides that ‘Any advocacy of … religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’. The United States generally does not allow the regulation, criminal or civil, of any form of religious speech. Blasphemy laws, not to mention heresy16 and apostasy laws, are unconstitutional there,17 even though some states still have blasphemy laws on their books. Most forms of hate 15

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John Witte, Jr. and Richard Martin (eds.), Sharing the Book: Religious Perspectives on the Rights and Wrongs of Proselytism (New York: Orbis Books, 1999), p. xvi. The Supreme Court in Watson v.  Jones 80 US 679 (1871) said the following:  ‘In this country, the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property and which does not infringe personal rights is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies if anyone aggrieved by one of their decisions could appeal to the secular courts and have them reversed’. In Joseph Burstyn, Inc. v. Wilson 343 US 495 (1952), the Supreme Court struck down under the First Amendment’s right of free speech and free press a New York statute under which a judge found Burstyn’s film The Miracle ‘sacrilegious’. The court held that ‘the state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular

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speech are protected by the First Amendment. In 1992, twenty-six years after the ICCPR was unanimously adopted by the United Nations General Assembly, the United States ratified the ICCPR but attached a reservation regarding Article 20’s possible conflict with the First Amendment: ‘[t]hat Article 20 does not … restrict the right of free speech and association protected by the Constitution and laws of the United States’.18 Indeed, the US Supreme Court’s unanimous 1992 decision in RAV v. City of St Paul to strike down a hate speech ordinance as unconstitutional because it was content-based discrimination struck a death knell for most hate speech regulation.19 After many millennia of enforcing religious speech restrictions under a variety of theories and names, why have blasphemy, heresy, apostasy and defamation-of-religion laws lost support while religious hate speech laws survive in the West? Is religious hate speech different, and if so, why? I will first look at the definitional challenge of regulating any religious speech along with the history of religious speech restrictions before examining the rationale for the modern religious hate speech restrictions.

7.2

Definitional Challenge Reflecting Changing Rationale

Speech restrictions came and continue to come under headings such as ‘blasphemy’, ‘heresy’, ‘apostasy’, ‘defamation of religion’ and ‘religious hate speech’. Although the roots of these words are different, their legal definitions often are imprecise and unreliable. Today, blasphemy is considered profane talk of something supposed to be sacred, heresy is an opinion or doctrine contrary to the accepted doctrine, apostasy is the abandonment or renunciation of one’s religious faith20 and religious hate speech is the incitement to religious hatred, discrimination or violence. Defamation of religion involves criticism or ridicule of religious practice or belief whether reasoned, satirical or contemptuous21 and thus is closely related to blasphemy.

18 19 20 21

religious doctrine, whether they appear in publications, speeches, or motion pictures. … We hold only that under the First and Fourteenth Amendments a state may not ban a film on the basis of a censor’s conclusion that it is “sacrilegious”’. 138 Cong. Rec., 54783. RAV v. City of St. Paul 505 US 377 (1992). The New Shorter Oxford English Dictionary (Oxford: Clarendon Press, 1993). Paul Sturges, The Problem of Blasphemy and Defamation of Religion Laws (Loughborough: Loughborough University, 2015).

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Despite these modern distinctions, an historical review of the definition of blasphemy shows there was no consensus on what constituted blasphemy (as well as concepts of ‘sacred’ and ‘religion’). The offence served different purposes at different times, permitting authorities to exploit it, depending on the religious sensibilities of the people of the day. The term has encompassed a range of offences which include crimes of a religious nature to obscenity. In the United Kingdom, for instance, blasphemous libel was counted among other types of criminal libel: seditious libel, obscene libel and defamatory libel. However, unlike those three, the proof of subjective intention was not required for blasphemous libel.22 Commentators do not necessarily distinguish among blasphemy, religious hate speech and defamation of religion, sometimes equating blasphemy with defamation of religion or using the latter as an umbrella term that includes the former among its many offenses. The issue is further compounded in the case of legislation in many jurisdictions, where blasphemy could be prosecuted under provisions which do not explicitly define the offense or mention it for that matter. In other words, the crime can fall within the scope of civil legislation that does not make specific reference to religion. Also, where jurisprudential approaches differ, the requirements for establishing the offence may differ considerably and may be rationalized for different purposes. For the purposes of this chapter, I will note that despite these different challenges, as a general rule the offence of blasphemy is understood here as words published (transiently or permanently) which are perceived by religious adherents as a perceived attack on sacredly held persons, objects or doctrines regardless of the intention of the offender.

7.2.1 History of Blasphemy Blasphemy laws have been known since antiquity and are considered as old as civilization itself. Anyone who mocked the gods in ancient Greece or Rome faced harsh criminal penalties.23 Athens allowed citizens to criticize the state but not to mock or repudiate the gods. The mixed political and religious character of blasphemy that would continue as an integral part of the criminal code in Christendom found its authoritative source in the Bible. Israel’s law under the Torah declared, ‘He who blasphemes 22 23

Whitehouse and Lemon v. Gay News Ltd [1979] AC 617 (HL) 618.0. Leonard Levy, Blasphemy: Verbal Offense against the Sacred, from Moses to Salman Rushdie (Chapel Hill: University of North Carolina Press, 1995).

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the name of the Lord shall be put to death; all the congregation shall stone him. Aliens as well as citizens, when they blaspheme the Name, shall be put to death’.24 Both Jewish and Christian traditions interpreted this text as a divine mandate to sanction offenders. In Western Christendom, the command from the book of Exodus, ‘You shall not revile God’,25 encapsulates the understanding from ancient Jewish thought that blasphemy consists of statements which revile God. The New Testament expanded blasphemy to include a rejection of Jesus or attributing his miracles to satanic forces, but it took the early church three centuries to define the standard of orthodoxy which then allowed the Roman Catholic Church to impose uniformity.26 The varieties of Christianity before the fifth century were numerous,27 but as Christians began to characterize other Christians as heretics as well as blasphemers, the terms became nearly synonymous. By the Middle Ages, heresy superseded and was indistinguishable from blasphemy. The Reformation revived blasphemy in part because the Protestant reformers, who were themselves accused of being heretics by the Roman Catholic Church, preferred to condemn dissidents within their ranks with the more scriptural term ‘blasphemy’.28 Blasphemy was one of a number of causes which ecclesiastical courts had at their disposal. However, unlike apostasy, schism and heresy, all of which could only be applied to the religious adherent, blasphemy was distinct because it could be applied to the religious and non-religious alike. The laws against heretics and apostates theoretically involved only believers, but anyone could blaspheme, including unbelievers.

7.2.2 Blasphemy under English Law Ecclesiastical courts were set up by religious authorities to deal with disputes among clerics or with spiritual matters involving either clerics or laymen. The Court of High Commission was the English ecclesiastical court instituted by the crown in the sixteenth century as a means to enforce the laws of the Reformation and disputes within the church. In its time, it 24 25 26 27

28

Leviticus 24:16. Exodus 22:28 (New Revised Standard Version). Levy, Blasphemy, p. xiii. These included Paulinists, Johannines, Gnostics, Marcionites, Docetists, Montanists, Samosatans, Sabellians, Leletians, Arians, Semi-Arians, Nicenes or Athanasians (Catholics), Donatists, not to mention the variety of Jewish Christians. Ibid., p. 76. Ibid., p. xiv.

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became a controversial instrument of repression, used against those who refused to acknowledge the authority of the Church of England. Initially dismantled in 1641, when Charles I succumbed to Parliament, James II reconstituted it briefly in 1686, only to be finally condemned by the Bill of Rights in 1689 as ‘illegal and pernicious’. During the Reformation, ecclesiastical courts were abolished, and secular and religious authority were unified in the king.29 Merging religious and state authority meant that a verbal disagreement on religion was also a verbal disagreement with the king, neither of which was tolerated. Secular criminal courts then enforced the blasphemy laws,30 which were extensive.31 In the late 1760s, William Blackstone described the crime of blasphemy and its permutations in his chapter ‘Of Offences against God and Religion’.32 He described the crime of apostasy as ‘a total renunciation of Christianity, by embracing either a false religion, or no religion at all’33 and the crime of heresy as ‘not a total denial of Christianity, but of some of its essential doctrines’.34 After acknowledging that these offences had historically been poorly defined, leaving judges with ‘most arbitrary latitude’, he sought to define the crimes with more specificity and with less severe punishments.35 Blackstone then described the offense of ‘reviling the ordinances’ of the established church (Church of England). The effort here was to keep the Church and Monarchy of England pure and secure from the outside influence of ‘non-conformists’, ‘papists’ (Catholics), ‘infidels’, ‘Jews’, ‘Turks’ (Muslims), ‘heretics’ and ‘protestant dissenters’ (particularly Puritans, Quakers, Presbyterians, Baptists and Anabaptists). The method was to require all officials and civil and military officers to take various oaths (i.e. oath of allegiance and supremacy, test oath, etc.), make a declaration against transubstantiation and document the taking of the sacrament of the Lord’s Supper in the Church of England.36 29

30

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32

33 34 35 36

See Richard H. Helmolz, ‘Conflicts between religious and secular law: Common themes in the English experience, 1250–1640’ (1991) 12 Cardozo Law Review 707. Russell Sandberg and Norman Doe, ‘The strange death of blasphemy’ 71 Modern Law Review (2008) 6, 971, 972. Ivan Hare, ‘Blasphemy and incitement to religious hatred: Free speech dogma and doctrine’, in Ivan Hare and James Weinstein (eds.), Extreme Speech and Democracy (Oxford: Oxford University Press, 2009), p. 290. William Blackstone, Commentaries on the Laws of England (Chicago: University of Chicago Press, 1979), Book IV, ch. 4. Ibid., p. 43. Ibid., pp. 44–45. Ibid., pp. 41–50. Ibid., pp. 50–59.

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Blackstone defined blasphemy as ‘against the Almighty, by denying his being or providence; or by contumelious reproaches of our Savior Christ. Whither also may be referred all profane scoffing at Holy Scripture, or exposing it to contempt and ridicule … for Christianity is part of the laws of England’.37 Scoffing or ridiculing Holy Scripture, as well as ‘profane and common swearing and cursing’, were blasphemous criminal offences, and ‘any justice of the peace may convict upon his own hearing or the testimony of one witness’.38 This form of blasphemy, swearing and cursing at sacred objects like the Holy Scripture, or exposing it to ridicule was an attack on the Christian faith which offended Christians. ‘Witchcraft, conjuration, inchantment or sorcery’ were all crimes according to Blackstone, because they ‘contradict the word of God’.39 ‘Religious imposters’, defined as those who ‘falsely pretend an extraordinary commission from heaven’, were subject to fines, imprisonment, and ‘infamous corporal punishment’.40 No other guidance was provided on how to determine who was a ‘religious imposter’. Blackstone concludes his chapter on ‘Offences against God and Religion’ with the crimes of ‘open and notorious lewdness’ (public indecency) and ‘having bastard children’.41 Their inclusion with blasphemy crimes reveals the view that government plays a vital role in policing morals. Blasphemy became one of the four kinds of criminal libel, the others being defamatory libel, seditious libel and obscene libel. Both seditious and obscene libel had a close relationship with blasphemy, in that they all involved government efforts to control offensive speech on the basis of the dominant morality. Blasphemous libel and seditious libel also share the interest of those in political and religious power to protect their respective positions from challenge. They serve as a tool to maintain the status quo. A key case on the criminal offence of blasphemy in the United Kingdom and other common law jurisdictions is R v. Taylor.42 In this seventeenthcentury case, John Taylor came before the court of Westminster accused of the offence of blasphemy. Taylor, a notorious troublemaker, had made public utterances to the tune of: Christ is a whore-master, and religion is a cheat, and profession is a cloak, and they are both cheats, and all the earth is mine, and I am a king’s son, 37 38 39 40 41 42

Ibid., p. 59. Ibid. Ibid., p. 60. Ibid., pp. 61–62. Ibid., pp. 64–65. Taylor’s Case [1676] 1 Vent 293.

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my father sent me hither, and made me a fisherman to take vipers and I neither fear God, devil, nor man, and I am a younger brother to Christ, an angel of God and no man fears God but an hypocrite, Christ is a bastard, God damn and confound all your Gods, Christ is the whore’s master.43

The case came before the King’s Bench before the Lord Justices, among whom was Lord Chief Justice Hale, and it was held that Taylor was guilty of blasphemy. In his judicial opinion, Hale CJ reasoned that Taylor’s utterance was ‘not only an offence to God and to religion, but a crime against the laws, state and Government’. Such an affront to religion, he famously added, was ‘to dissolve all those obligations whereby the civil societies are preserved’, given that ‘Christianity is parcel of the Laws of England’.44 The case demonstrated that the law benefited the Church of England and protected its doctrines. Hale CJ’s comment reflected the contemporary political theory that religion was a necessary element for social and political stability for the state.45 This is not to say that the judges necessarily viewed the law of blasphemy as a crime against the Church and its doctrines. Rather, Elliott Visconsi argues that to deduce from this phrase that the crime of blasphemy was simply a crime of belief would be an error. Rather, he advocates that it was consistently seen that blasphemy was an incitement to violence that might threaten the social fabric that held the society together.46 In other words, blasphemy represented a treason against the state that threatened the integrity of the society and which brought the full sanction of the civil courts. During this period between the seventeenth and nineteenth centuries, the courts largely used their discretion in deciding what constituted blasphemy, and a solid definition remained elusive. This rationale persisted until the 1840s, when the view changed so that the social fabric did not depend on sound religious opinions. This reduction meant that blasphemy only prohibited insult and ridicule, making it a religious vilification law.47 The break from the original rationale was illustrated in the case of R v. Ramsay and Foote, which introduced blasphemy as a personalised offence, protecting the religious sensitivities of Christians. Lord Coleridge began by saying that 43

44 45

46 47

Ibid. Taylor had been a part of a sect called the Sweet Singers of Israel that was known for making rants of this sort. Elliott Visconsi, ‘The invention of criminal blasphemy:  Rex v. Taylor (1676)’ (2008) 103 Representations 30, 30. Ibid. Reid Mortensen, ‘Blasphemy in a secular state: A pardonable sin?’ 17 University of New South Wales Law Journal (1994) 2, 409, 411. Visconsi, ‘The invention of criminal blasphemy’, 47. Mortensen, ‘Blasphemy in a secular state’, 412.

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“the mere denial of the truth of Christianity is not enough to constitute the offence of blasphemy” and then defined blasphemy as A wilful intention to pervert, insult and mislead others, by means of licentious and contumelious abuse applied to sacred objects, or by wilful misrepresentations or artful sophistry, calculated to mislead the ignorant and unwary, is the criterion and test of guilt. A  malicious and mischievous intention, or what is equivalent to such an intention, in law, as well as moral, a state of apathy and indifference to the interests of society, is the broad boundary between right and wrong.48

The case was important for introducing two important features of the modern law and effectively charting a separate course for legitimizing the offence. First, the offence was now a personalized one in that it no longer had to protect the institutions and doctrines of the Church but the religious sensitivities of believers (a correlative of religious hate speech). Secondly, it afforded discriminatory legal protection to an identified religious group over others. Moreover, the case entrenched the notion that it was permissible to challenge Christian doctrines in sober and temperate discussion, but the threshold could be crossed once it was likely ‘to lead to a breach of the peace’.49 Blasphemy’s next evolution further narrowed the requirements for establishing the offence. Now, the requirement as identified by Lords Diplock and Russell in Lemon was that it was now illegal to criticize religion using matter that is likely to shock and engender resentment among believing Christians.50 Thus the sting was one that would produce a strong reaction. Lord Scarman in the Gay News case, quoting Stephen’s Digest of the Criminal Law, found that the modern definition of blasphemy was correctly reflected in the phrase, Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, or the Bible, or the formularies of the Church of England as by law established. It is not blasphemous to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not to the substance of the doctrines themselves.51

48 49 50 51

R v. Ramsay and Foote [1883] 15 Cox CC 231, 236. Bowman v. Secular Society Ltd [1917] AC 406, 446, per Lord Parker. Whitehouse and Lemon v. Gay News Ltd 632 and 656–657. Ibid.

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In essence, the purpose identified for the law was not to protect the religion but the sensitivities of believers of the religion. Lord Edmund-Davies, in his dissenting opinion, suggested that the law of blasphemy underwent three stages in its evolution, which resulted in different requirements for its mens rea element. At the first stage, represented by R v. Taylor,52 it was enough to establish the offence by a mere attack on the Christian Church and its tenets. Since it was an offence of strict liability, there was no need to prove the mens rea as it was presumed. The second stage of its evolution saw a requirement that the blasphemous character of the offence was not punishable unless expressed in intemperate or scurrilous language. Again the character of the actus reus was under scrutiny and not the state of mind of the defendant.53 The third stage, the modern era, was marked by a divergence in the authorities on the question of intention, with some judges further qualifying the character of blasphemy as a question of fact of ‘an interference with our [the public’s] religious feelings, creating a sense of insult and outrage “by wanton and unnecessary profanity”’.54 On the other hand, there were judges who thought it required a subjective intention to blaspheme to establish the offence. However, he found that the preponderance of authorities pointed to the latter requirement and that it represented the modern law.55 However, the majority of the House of Lords dismissed the need to establish subjective intention to blaspheme, holding instead that the law requires merely an intention to publish material that is factually blasphemous.56 As a result, the following elements were approved by Lords Scarman and Diplock in the Gay News case: Actus Reus 1. The content of the material must be in conflict with the tenets of the Church of England. 2. Framed in indecent or offensive terms likely to shock and outrage the feelings of the general body of the Church of England and believers.

52 53 54 55 56

R v. Taylor. See R v. Hetherington [1841] 4 StTrNS 563, and R v. Ramsay and Foote. Whitehouse and Lemon v. Gay News Ltd 616. See R v. Burns [1886] 16 Cox CC 355. Whitehouse and Lemon v. Gay News Ltd 664.

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Mens Rea The defendant must have intended to publish the blasphemous material.57 The reason for the modern law of blasphemy is no longer protection of a deity or Christianity; rather, it is now the protection of religious sensibilities of believers from scurrilous attack. The passing of the Criminal Justice and Immigration Act 2008 in the United Kingdom formally abolished the common-law offences of blasphemy and blasphemous libel there. The Bill passed in the UK Parliament with broad support, including that of the senior clerics of the Church of England.58 Although blasphemy is no longer a crime under the law of the United Kingdom, offences in the character of blasphemy such as religious vilification are criminal under its public-order acts. Amendments made by the Racial and Religious Hatred Act 2006 to the Public Order Act 1986 provided for protection of persons against hatred on religious grounds. The purpose of the Act as stated in Section 7.1 is ‘[to create] offences involving stirring up hatred against persons on religious grounds’. The provisions under this act differ from the law of blasphemy in that the law does not protect ‘religious sensibilities’ from being offended; rather, it defends persons from anti-social acts that happen to involve religion.59 Blasphemy has served different purposes under different rationales, and this flexibility has allowed it to cover heresy, apostasy, defamation of religion and religious hate speech. Over the past fifty years, most Western democracies have either repealed, ruled unconstitutional or let blasphemy statutes fall into desuetude. The UN Human Rights Committee reflected this trend when in July 2011, it adopted General Comment 34 on the ICCPR which made it clear that ‘Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant’.60 General Comment 34 asserted that countries with blasphemy laws in any form that have signed the ICCPR are in breach of their obligations concerning freedoms of opinion and expression under the ICCPR.

57 58

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60

Sandberg and Doe, ‘The strange death of blasphemy’, 972–974. Ibid., 980. The Archbishops of Canterbury and York, in a letter to the Secretary of State for Communities and Local Government, stated that they did not oppose the Bill. See www.legislation.gov.uk/ukpga/2006/1/pdfs/ukpga_20060001_en.pdf. For a detailed analysis on UK blasphemy law, see also the chapter ‛Freedom of Expression, Blasphemy and Religious Hatred: A View from the UK’ by Erica Howard in this volume. See www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf.

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7.2.3 Defamation of Religion Another progeny of blasphemy is defamation of religion or vilification of religion. Although defining ‘religion’ for legal purposes is notoriously difficult,61 particularly for new religions or philosophies of life that may play the role of religion, identifying the world’s major religions, which is where the vast majority of cases applying religious speech restriction arise, is relatively easy.62 The Oxford English Dictionary defines religion as: A belief in or sensing of some superhuman controlling power or powers, entitled to obedience, reverence, and worship, or in a system defining a code of living, especially as a means to achieve spiritual or material improvement; acceptance of such belief as a standard of spiritual and practical life; devotion and fidelity; conscientiousness; pious attachment.63

The notion that a belief or religion, rather than a person, can be ‘defamed’ is inconsistent with most Western legal system’s understanding of defamation. Defamation involves injuring a person’s character, fame or reputation by publishing (oral or written) a false and malicious statement of fact. Because it deals with facts, truth is a defence in defamation actions. Is there any objective way to determine what constitutes a false statement about a religion, and does the state want to return to determining the truth or falsity of religious criticism? Is calling a religion ‘false’ or ‘ignorant’ a statement of fact or opinion, and should it matter? Defamation law in the West is designed to protect the reputations of individuals, not ideas or beliefs, and the defence of ‘truth’ could not apply because ‘truth’ in religion is subjective. Criminalizing expression that is disrespectful of religions or beliefs is also a restriction on freedom of religion because it can prohibit interreligious debate on the truth or falsity of a religion or individual tenet, a critical process in determining what to believe. Article 18 of the Universal Declaration of Human Rights (1948) guarantees that ‘everyone has the right to freedom of thought, conscience, and religion; this right includes

61

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63

See John C. Knechtle, ‘If we don’t know what it is, how do we know if it is established?’ 41 Brandeis University Law Journal (2002–2003) 521. The UN Special Rapporteur on freedom of religion or belief, Asma Jahangir, has observed that, while criticism of major religions attracts a lot of attention, numerous cases of criticism of smaller religions go relatively unnoticed (http://webcache.googleusercontent.com/ search?q=cache:d1HvEUr_7RgJ:www2.ohchr.org/english/issues/opinion/articles1920_ iccpr/docs/experts_papers/jahangir.doc+&cd=1&hl=en&ct=clnk&gl=tt). The Shorter Oxford English Dictionary on Historical Principles (2002, 5th edn), p. 2523.

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the right to change his religion or belief ’. Article 18 of the ICCPR states that ‘no one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice’. How can anyone examine competing religious claims without critiquing religion? Criminalizing such speech is coercion that impairs the freedom to choose one’s religion. This violates the individual human right to hold, debate, criticize and change one’s religion and may reflect the sponsoring country’s struggle with the idea of a marketplace of religions where religions and philosophies openly compete for adherents. Defamation of religion conflicts with international legal standards governing incitement. Article 20(2) of the ICCPR prohibits the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Former UN Special Rapporteur on Freedom of Religion or Belief Asma Jahangir stated that ‘expressions should only be prohibited under Article 20 if they constitute incitement to imminent acts of violence or discrimination against a specific individual or group’.64 The proffered Resolutions on ‘defamation of religions’ do not mention limiting speech to expressions intended to lead to imminent acts of violence or discrimination. The modern attempted revival of defamation of religion occurred in 1999 when Pakistan, on behalf of the Organization of the Islamic Conference (OIC), introduced a draft resolution on combating ‘[d]efamation of Islam’ in the UN Human Rights Commission.65 The resolution was an attempt to respond to what was perceived as increasing expressions of ‘hatred of Islam and Muslims’ and to oppose portrayals of Islam as hostile to human rights.66 The resolution’s title was later changed to include all religions, though Islam was the only religion specifically mentioned. Each year over the next eleven years, members of the OIC introduced ‘defamation-ofreligion’ resolutions at the UN. The lobbying intensified following the terrorist attacks of 11 September 2001 when discrimination against Muslims increased. The UN General Assembly also got involved and adopted Resolution 64/156 ‘Combating Defamation of Religion’ on 8 March 2010, which

64

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66

Special Rapporteur on freedom of religion or belief, references to ‘incitement to religious hatred’ (A/HRC/2/3). Commission on Human Rights, Draft Resolution on Racism, Racial Discrimination, Xenophobia and All Forms of Discrimination, UN Doc. E/CN.4/1999/L.40 (20 April 1999). Commission on Human Rights, 55th Sess., 61st mtg. P 1, UN Doc. E/CN.4/1999/SR.61 (19 October 1999).

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included incitement to religious hatred, discrimination and violence and ‘affront to human dignity leading to the illicit restriction of the freedom of religion’.67 The focus was not whether advocacy of religious hatred actually incited discrimination or violence but rather the inherently hurtful and offensive content of the speech. There was no need to prove the intent of the speaker or the reasonably foreseeable effects caused by the speech. There was also no guidance as to when speech critical of religion went beyond some acceptable limit and became advocacy of religious hatred.68 The potential impact of these Resolutions on freedom of expression was clear in Human Rights Council (HRC) Resolution 4/9 as it included ‘respect for religions or beliefs’ as a ground for limiting freedom of expression in Article 19(3) of the ICCPR.69 Criminalizing speech that is disrespectful of religions or beliefs is both a return of blasphemy proscriptions and potentially an enormous restriction on free expression depending on how this is interpreted. In 2011, Western democratic nations led by the United States reached a compromise with the OIC which changed the course on defamationof-religion resolutions at the Human Rights Council. The compromise adopted by consensus on 12 April 201170 dropped the language of ‘defamation of religions’ in HRC Resolution 16/1871 and instead advocated the following: (e) Speaking out against intolerance, including advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence. (f) Adopting measures to criminalize incitement to imminent violence based on religion or belief.72 67 68

69

70

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72

General Assembly Resolution 64/156, Combating Defamation of Religion, 8 March 2010. See New York City Bar, ‘United Nations Resolutions on Religious Hate Speech: The Impact on Freedom of Expression’ (June 2014), available at www2.nycbar.org/pdf/report/uploads/ 20072724-UNResolutionsonReligiousHateSpeech--ImpactonFreedomofExpression.pdf. Javaid Rehman and Stephanie E. Berry, ‘Is “defamation of religions” passé? The United Nations, Organization of Islamic Cooperation, and Islamic State practices: Lessons from Pakistan’ 44 George Washington International Law Review (2012) 3, 432. ‘Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief ’. Human Right Council Resolution 16/18, 12 April 2011, available at www2.ohchr.org/english/ bodies/hrcouncil/docs/16session/A.HRC.RES.16.18_en.pdf. The Third Committee of the UN General Assembly approved essentially the same text on 11 November 2011. For an extensive evaluation of this resolution, see Marc Limon, Nazila Ghanea and Hilary Power’s chapter in this volume, ‘Freedom of Expression and Religions, the United Nations, and the “16/18 Process”’. Ibid., Articles 5(e) and (f).

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Section (e) relates to hate speech (discussed in what follows), and Section (f)  relates to incitement to imminent violence, which is banned in all countries.

7.2.4 Religious Hate Speech While comparing the Western world of 1934 to a prior ‘age of faith’, T.  S. Eliot wrote that blasphemy is ‘a curious survival in a society which has for the most part ceased to be capable of exercising that activity or of recognizing it’.73 He explained, ‘blasphemy is not a matter of good form but of right belief; no one can possibly blaspheme in any sense except that in which a parrot may be said to curse, unless he profoundly believes in that which he profanes’.74 So for Eliot, modernity’s loss of profound beliefs precipitates an inability to truly blaspheme. In an age of unbelief, he is perplexed by blasphemy’s continued existence even if relegated to the superficial level of curse words that a parrot can repeat. Religious hate speech - insulting a person or group on the basis of religion - is the last fragment of blasphemy. It focuses on form over substance. It is the parrot’s curse. Religious hate speech restrictions emphasize form over substance by focusing on the most hateful, spiteful, inflammatory language because it is viewed as the most hurtful and offensive. Meanwhile the more cogent and calculating religious bigotry that bypasses the inflammatory language but may be much more damaging in the long term escapes prosecution. This parallels what Lord Coleridge said in 1883 about blasphemy, “If the decencies of controversy are observed, even the fundamentals of religion may be attacked without the writer being guilty of blasphemy.”75 Religious hate speech restrictions reveal the tremendous difficulty in prosecuting the expression of bad ideas. The less educated and refined will use the crass language with motives transparent. The better educated and more sophisticated know they need to mask and even deny their bigotry, so they will employ language that approaches but does not cross the hate speech boundary. Disguising their motives, they employ the variability of language, use alternative terms and even create words to signal their bigotry to their audience but which leave avenues for plausible deniability. 73

74 75

Thomas S. Eliot, After Strange Gods:  A  Primer on Modern Heresy (London:  Faber and Faber, 1934), p. 51. Ibid., p. 52. R v Ramsay & Foote (1883) 15 Cox CC 238.

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Religious hate speech restrictions create this environment because bigots cannot be transparent about their views without possible criminal sanction. Supporters of this speech ban argue that it is worth it because it changes the aesthetics of public debate by eliminating the most offensive expressions and creates a more welcoming space for religious minorities (the most common victims of hate speech) by cracking down on the most offensive religious hate speech. Religious hate speech is the modern incarnation of blasphemy that continues to find support, particularly in Europe. Instead of protecting religions and religious symbols, religious hate speech protects individuals and groups from religious insults that demean their human dignity. Religious hate speech restrictions focus on the most offensive, outrageous, and insulting language of religious hatred on the grounds that, by definition, it constitutes incitement to either religious discrimination, hostility or violence. Under many domestic laws, there is no need to prove an act of discrimination, hostility or violence related to the speech to convict under hate speech regulations.76 The speech itself is the crime. Today, the prohibition in Exodus that grounded centuries of blasphemy laws in the West, ‘You shall not revile God’, has been changed to ‘You shall not revile individuals because of their religion’ (religious hate speech). One justification of religious hate speech laws as well as all blasphemy laws is the violence it might engender. However, it is critical to distinguish between two types of motivations to violence that emanate from speech. The first is when the speaker urges his or her audience to commit violence. In this instance, HRC Resolution 16/18 states that the speaker’s incitement must be to ‘imminent’ violence as opposed to violence at some indefinite future date. This allows the police to arrest a public speaker who urges a crowd to storm a government building now but does not allow the police to arrest a speaker who urges a future revolution in the country. The second motivation to violence occurs when an individual or group of individuals listening to a speaker who is not advocating violence decide that they are so offended by the comments of the speaker that they will 76

The incitement prohibition of Art. 20(2) ICCPR contains a double qualification: the speech act must amount to religious hatred; and moreover (a separate test) the hateful statement must incite to violence or discrimination (note that this provision does not use the words ‘incitement to religious hatred’). On the qualified threshold of incitement in the meaning of Art. 20(2) ICCPR, see Jeroen Temperman, Religious Hatred and International Law. The Prohibition of Incitement to Violence or Discrimination (Cambridge: Cambridge University Press, 2016); see also the Rabat Plan of Action, available at www.ohchr .org/Documents/Issues/Opinion/SeminarRabat/Rabat_draft_outcome.pdf.

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respond violently either towards the speaker or towards other people or property. In this situation, the motivation to violence is not the speaker urging violence but the listener’s uncontrolled anger. Under these circumstances, it is the state’s duty under the law of freedom of expression to protect the speaker and stop the violent responders.77 It is incumbent on listeners who are offended or angry to contain their violent urges and know that the law does not allow violent responses to speech. As a practical matter, if the police in their estimation are unable to contain the violent responders, as a last resort, they can shut down the speaker. Shutting down the speaker must be a last resort when all efforts to contain violent listeners fail, because otherwise you have mob rule that nullifies freedom of expression. Under mob rule, if the mob decides it does not like a speaker’s message, it can shut the speaker down by becoming violent. The mob essentially decides who speaks and what is said, and any individual or minority group with an unpopular message no longer has any right to freedom of expression. To achieve the protection of the right to freedom of expression requires a well-trained and disciplined police force on the alert for situations in which public discourse could break out into violence. This force must respond quickly to either prevent the violence or immediately arrest those who commit violence. This is a key rationale for requiring permits before allowing a public demonstration. Knowing ahead of time that certain messages may provoke a strong, possibly violent response from listeners or counter-demonstrators allows the police to plan for appropriate locations with sufficient police attendance to protect the fundamental right to freedom of expression.

7.3 Understanding the Demise of Blasphemy 7.3.1 Communitarian versus Individualism One reason for the abandonment of blasphemy is the societal shift from communal rights to individual rights. Societies are stable over the long run only if their members generally perceive them as legitimate – as organized in accordance with shared values. Until the late eighteenth century,

77

Ibid. International incitement prohibitions only see the triangular scenario in which a speaker incites an audience to commit violent/discriminatory acts vis-à-vis a target group – not to the bilateral scenario in which the audience itself responds violently vis-à-vis the speaker.

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legitimacy in Europe and North America was grounded in a shared religious worldview that penetrated all spheres of life. As modernization and globalization brought religious pluralism (among other pluralisms) and a different hierarchy of values, the potential for misunderstanding and conflict increased – just as the shared background resources for the consensual resolution of such conflicts decreased. When we consider this dynamic from the standpoint of Jürgen Habermas’s discourse theory of deliberative democracy, the prospects for legitimacy in modern societies appear quite dim. However, by opening up legally defined spheres of individual freedom, modern law reduces the burden of questions that require society-wide discursive consensus.78 Law in Western democracy moved from a focus on the rights of the community to the rights of individuals, who are free to pursue and advocate their interests often at the cost of communal rights. Society migrated from communal consensus on the specific to tolerance of individual difference combined with an expanded zone of private autonomy. The challenge of the modern liberal landscape is to redefine the thinner, more general communal understanding of shared values so that the sense of belonging is stronger than the sense of alienation. Arguably, this re-constituting of the social contract requires broad yet meaningful participation in which views of the ‘other’, no matter how illiberal, can be expressed. As Habermas argues, it is the broad participation that legitimizes the outcome. Excluding the hateful voices undermines, perhaps fatally, the claim to legitimacy.79 Which is more illegitimate, targets listening to hate speech or speakers being excluded from the political process? Modern Western law is fundamentally concerned with defining, protecting, and balancing individual freedoms in their various contexts. This includes a robust right to freedom of expression which allows individuals to examine, debate and disagree about religious ideas such as God or the sacred. However, law needs to secure more than just the conditions for individuals to exercise their powers of autonomous choice. Law needs to recognize and sustain the social attachments crucial to each individual’s growth and sense of well-being, whether those social attachments began involuntarily during the course of upbringing or chosen later. Despite

78

79

See Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, translated by William Rehg (Cambridge: MIT, 1996). See Ronald Dworkin, ‘Reply to Jeremy Waldron’ in Michael Herz and Péter Molnár (eds.), The Content and Context of Hate Speech: Rethinking Regulation and Responses, (Cambridge: Cambridge University Press, 2012) pp. 341–344; Robert Post, ‘Hate speech’, in Ivan Hare

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liberalism’s elevation of the self-contained rational being, vast areas of our lives are in fact governed by unchosen routines, presuppositions and habits that came from our family, culture, religion, education, country, economic situation and the like. We cannot make sense of our moral experience until we understand our moral space. Applying this changing legal framework to blasphemy in a multireligious society with a secular government, either the government would have to expand blasphemy protection to all religions (to avoid unequal treatment of different religions), reduce blasphemy protection to a subcategory such as religious insults aimed at an individual or group of individuals or abandon blasphemy regulation altogether. If maximizing individual freedom is the highest value, then governments should abandon blasphemy regulation altogether and let each person speak freely, no matter how vituperatively. If protecting the dignity of each person is the highest value, than religious hate speech regulation is justified, as it softens the hostile environment that bitter and abusive speech creates, particularly for religious minorities. The argument for adoption and enforcement of blasphemy laws is difficult to fathom in the Western world. However, where you have a religiously homogeneous society largely closed to other religions and closed to the possibility of changing religion,80 the situation may be different. Where open religious debate is rare either due to lack of exposure, intolerance or the unpreparedness to participate in such a debate, verbally denigrating whatever is considered holy can affect the believer so profoundly that it would be akin to something like the tort of intentional infliction of emotional distress or, worse, cultural annihilation. Whether it is a closed Islamic society or a tribal religious group with little contact with the outside world, religion may be so all encompassing that any affront to the religion may be perceived as an attack on the individual and group identity, culture and religion. A people wounded so deeply may react violently, even predictably. The internet brought this reality home when Terry Jones, a pastor of a small church in Florida, made international headlines in 2010 by announcing plans to burn a Quran on the ninth anniversary of 9/11.81 Defense Secretary Robert M.  Gates, General David Petraeus, Secretary

80 81

and James Weinstein (eds.), Extreme Speech and Democracy (Oxford, New York: Oxford University Press, 2009) pp. 123–138. See Witte and Martin, Sharing the Book. See http://abcnews.go.com/US/terry-jones-pastor-burn-koran-day/story?id=11575665.

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of State Hillary Clinton and President Obama sought to dissuade Pastor Jones from burning the Quran, predicting that it would so offend Muslims that it could trigger violence and loss of life in the Middle East and generate anti-American sentiment which, among other things, would assist recruiters who seek to oust American military presence in the Muslim world. Indeed, the violent reaction in Afghanistan and Pakistan which left twenty dead, including several United Nations workers, appeared to confirm the predictions. To argue that in Muslim countries, freedom of expression should protect the burning of the Quran, an act they consider blasphemous, reveals a deep disconnect with perhaps most of the 1.6 billion Muslims in the world as of 2010 – roughly 23  percent of the global population, not to mention other religious groups. As blasphemy laws in the West have changed from ‘You shall not revile God’ to ‘You shall not revile individuals because of their religion’, the sacred has moved from the ineffable and unseen to the focal point of liberal democracy, the individual. However, liberalism’s elevation of the individual and devaluation of community is not universally shared, nor need it be. Asian societies as well as native and indigenous peoples place special emphasis upon family and social harmony and do not place the same emphasis on individual rights as the West. Elevating individual values over communal values eventually fragments society and puts social cohesion at risk. Common understandings are replaced by a plethora of individual understandings, creating divisions and dissent. In the midst of these conflicts, each group competes for the legal system to adopt its values. Competition can sharpen focus and resolve and crystalize views. But it can also alienate. Everyone has a need to belong, to feel that they have a valid place in society. Religious hate speech threatens that sense of belonging, that sense of standing on equal footing with others in society. Banning such speech is an effort to minimize the alienation that can flow from being the target of hate speech. To the extent belonging precedes religious belief, then the communitarian spirit of religion will decline in places where liberal individualism thrives.

7.3.2 Religious and Intellectual Liberty The journey of blasphemy has really been the journey of religious and intellectual freedom intertwined with the freedom of expression. Galileo Galilei’s 1610 publication, Starry Messenger, based on observations made

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with his new telescope, concluded that indeed the earth and planets revolve around the Sun (heliocentrism). This supported Nicolaus Copernicus’s theory published in 1543 but was opposed by the Catholic Church. His continuing research confirmed this view, so the Roman Inquisition tried Galileo in 1633 and found him ‘vehemently suspect of heresy’, sentencing him to indefinite imprisonment. Galileo was kept under house arrest until his death in 1642. Although not vindicated in his lifetime, Galileo has long stood as an emblem of intellectual freedom and the triumph of truth over long-held and government enforced but mistaken beliefs. This experience illustrates the phrase attributed to Helen Keller: ‘the heresy of one age becomes the orthodoxy of the next’.82 Breaking the bondage of state coercion of religious belief was the seismic shift. It was essential to abandon the formalized mechanism of religious intervention in the legal and political process. Thus religious liberty was the key motivator for secularizing the state. Society still needs social linkages and moral communities, just not a religious institutional monopoly. In some countries like the United Kingdom, there remains such an institutionalized wedding of head of state and religious denomination (Anglicanism) in the person of the monarch, but everyone understands this as symbolic and largely empty formalism, a slightly anachronistic fusion and no more than a tradition. In some European countries, there is still in existence – as a relic of earlier days – a compact between the state and the Catholic or Lutheran Church, but this is rarely called upon by either side. Secularization is primarily a process seeking certain goods, as opposed to an ideology or specific institutional arrangement. Some mistakenly equate secularism with atheism or opposition to religion when in fact its hallmark is government neutrality towards religion. Secularism seeks freedom of belief (more broadly stated as liberty of conscience), equal treatment of people of different beliefs, inclusion of all beliefs in the marketplace of ideas, and harmony between supporters of different beliefs. As modern democracies progressively diversify, movement towards secularism requires a redefining of a country’s historical identity. This redefinition requires integrating the new diversity into the founding story, core beliefs and collective vision. Like any renewal of identity, such a conversation is difficult and painful yet fruitful. Jose Casanova’s research has shown how American Catholicism in the nineteenth century was viewed as inassimilable to US democratic principles, in

82

Helen Keller, Optimism: An Essay (New York: T. Y. Crowell, 1903) 51.

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many ways analogous to concerns today with the Muslim population.83 Just as American Catholicism changed (and impacted world Catholicism and democracy), Islam can change too, and influence the development of world Islam and democracy.84 Secularism’s focus on religious liberty, equal treatment of people of different beliefs, the marketplace of religious ideas, and harmony among religious and non-religious groups, has demanded the abandonment of civil coercion of religious ideas represented in blasphemy, heresy and apostacy laws. This also explains why political support for such laws emanates primarily from countries that lack a democratic, secular state.

7.3.3 Context Matters Law grows out of a historical, cultural, economic, moral/religious and jurisprudential context. As I have argued elsewhere,85 one cannot make an informed recommendation regarding law in a national setting without understanding this context. As Oliver Wendell Holmes wrote, ‘a page of history is worth a volume of logic’.86 Different histories develop a different logic. So although freedom of expression is justifiably ensconced in the pantheon of fundamental human rights, demarking its boundaries with other fundamental human rights, such as equality, human dignity and the right to life is more complicated than free-speech absolutists acknowledge. Speech absolutists play a vital role in confronting speech restrictions designed to protect those in power when they unveil hidden agendas, false claims and elites controlling information and ‘acceptable viewpoints’ in the name of protecting the population from the harms of free speech. But absolutists are also blind to the complexities of context. The reaction by many Western commentators against the concept of a blasphemy law, operating at the demand of an Islamic community which is dramatically offended by certain publications, may not be based on a principled view of whether and when offensive publications 83

84

85

86

Jose Casanova, “Nativism and the Politics of Gender in Catholicism and Islam,” in Hanna Herzog and Ann Braude, eds., Gendered Modernities:  Women, Religion, and Politics (New York: Palgrave Macmillan, 2009). See Judith Butler, Jurgen Habermas, Charles Taylor, Cornel West, The Power of Religion in the Public Sphere, Mendieta E. & VanAntwerpen J., Eds. (New York: Columbia University Press, 2011) pp. 34 – 56. John C. Knechtle, ‘Holocaust denial in the European Union and the concept of dignity’ 36 Florida State University Law Review (2008) 1, 41; John C. Knechtle, ‘When to regulate hate speech’ 110 Penn State Law Review (2006) 539. New York Trust Co. v. Eisner 256 US 345 (1921).

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can be censored. Rather, it may simply be based on the reality that the fundamentals of Western and Islamic public morality are at times so different that what causes outrage in one community is relatively innocuous in the other. Put another way, for billions of people in the world, and clearly this includes more than Muslims, the concept of blasphemy is considerably more serious than it is for those who are representative of contemporary Western liberal thought. Indeed, for such persons nothing could be more profoundly immoral, more offensive or more serious than blasphemy against God or the sacred and thus regarded with much greater revulsion than hate speech at an individual, Holocaust denial or racist invective is in the West. Adherents of many religions are injured substantially more by insults to their faith than to libels of their own person. This is a reality which Western observers could take more seriously and with less cynicism and, if fully understood, could explain the motivations of those who, for example, wish to protect their God, sacred objects, and sacred places from verbal abuse. Rather than look on such calls as just the product of religious intolerance, the Western observer could profitably try to understand that it is simply a case in which representatives of one great legal orthodoxy wish the international community to take seriously something which has far more importance in that orthodoxy than it does within the Western liberal system. The Western world used to reflect this same view. Thomas Aquinas considered blasphemy ‘a sin committed directly against God’ and therefore ‘more grave than murder, which is a sin against one’s neighbour’.87 Martin Luther, considered by some as the champion of religious freedom, endorsed imprisonment and death for Catholic blasphemies and then went on to condemn Anabaptism, Arianism, Judaism and Islam as blasphemies too.88 So the West’s elevating religious hate speech against individuals above such speech against God, holy personages, religious artefacts, customs or beliefs is a reversal of its prior position and a position many in the Muslim world are not prepared to embrace. For reasons already stated, I do not advocate bringing back blasphemy, heresy, apostacy or religious defamation laws. Even religious hate speech restrictions, in my view, have limited application. However, I do advocate a greater understanding and appreciation for a culture, religion and legal

87 88

Thomas Aquinas, Summa Theologica 11.11., Q. 13, A. 3. Leonard Levy, Blasphemy, p. 63.

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system that sees the sacred and communal beyond the individual and seeks to protect those interests.89 International human rights law has grown to protect indigenous peoples and their religions, cultures and legal systems. Perhaps their small numbers and remote locations make them quaint and attractive minority groups, but they too seek to protect their gods, holy places, religious artefacts, customs and beliefs. When it comes to restrictions on religious speech, the Islamic world shares much with these indigenous groups, and perhaps the Western world, still influenced by Christian values, has more in common than it realises.

7.3.4 The Question of Stability A common argument in favour of blasphemy regulations is that they are necessary for social and political stability, an undeniably important consideration for any government. Both democratic and undemocratic countries span the spectrum in regards to their history of freedom of expression and social and political stability. England’s experience is fairly reflective of many Western democratic countries’ experience and was presciently stated by Lord Sumner in 1917: The words, as well as the acts, which tend to endanger society differ from time to time in Proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. In the present day, meetings or processions are held lawful which 150 years ago would have been deemed seditious, and this is not because the law is weaker or has changed, but because, times having changed, society is stronger than before. Nowadays, reasonable men do not apprehend the dissolution or the downfall of society because religion is publicly assailed by methods not scandalous. Whether it is possible that in the future, irreligious attacks designed to undermine fundamental institutions of our society may come to be criminal in themselves, as constituting a public danger, is a matter that does not arise. The fact that opinion grounded on experience has moved one way does not in law preclude the possibility of its moving on fresh experience in the other; nor does it bind succeeding generations, when conditions have again changed. After all, the question whether a given opinion is a danger to society is a question of the times, and is a question of fact.

89

For similar arguments, see Neville Cox’s chapter in this volume, ‘Blasphemy and Defamation of Religion Following Charlie Hebdo’.

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john c. knechtle I desire to say nothing that would limit the right of society to protect itself by process of law from the dangers of the moment, whatever right may be, but only to say that, experience having proved dangers once thought real to be now negligible, and dangers once very possibly imminent to have now passed away, there is nothing in the general rules as to blasphemy and irreligion, as known to the law, which prevents us from varying their application to the particular circumstances of our time in accordance with that experience.90

Except for religious hate speech regulations, it is difficult to imagine blasphemy regaining favour in the West. However, many thought the use of torture was a decided matter years ago, but a recent survey of thirtyeight countries shows that 40 percent consider it justified in certain circumstances, with the US among the five countries most likely to consider torture justifiable.91 So with the changing demographics in the West, views on blasphemy could also change.

7.3.5 Impact of the Internet The internet is the dominant and pervasive technology of the Information Age. Almost the entire world is now connected. How will the internet impact this debate on religious speech restrictions? In its diversity of content, is the internet the great leveller of cultures, homogenizer of values and limitless purveyor of all forms of speech? By making adult pornography readily available, it appears to have made it more acceptable, bringing obscenity prosecutions for adult pornography almost to a complete halt in Western countries. If this is the case, over time, citizens will become accustomed to the presence of religious speech that disagrees, ridicules and hates, and view such speech as innocuous and irrelevant and eventually do away with its regulation. Or is the internet the balkanizer, tracking preferences to channel people into their echo chambers, where they become isolated and alienated from society? The politicization of internet news media appears to have facilitated this role. If this is the case, polarization will increase religious speech restrictions as each group sees itself as the victim and seeks to eliminate expressions of disagreement, ridicule or hate directed at their group. Or is the internet a multi-layered, contested site of production, consumption and exchange with infinite potential links among them?

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Bowman v. Secular Society Ltd [1917] AC 406, 466–467. See www.pewresearch.org/fact-tank/2016/02/09/global-opinion-use-of-torture/.

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If this is the case, then the impact of the internet on religious speech restrictions is complex and uncertain. So far the studies indicate that the internet increases sociability, empowers people by increasing their feelings of security, personal freedom, and influence, contributes to the rise of the culture of autonomy, and does this particularly for women and people in the developing world.92 Any attempts by countries or companies to impede free communication on the internet risks losing many of its users, because the entry barriers in this industry are very low, and alternative sites pop up almost instantaneously. Individuals and minority groups, as well as silenced majorities, struggling to successfully challenge the political, economic and religious elites, are now empowered by the tools of mass self-communication. How does this impact religious speech laws? Efforts to control or restrict religious speech on the Information Highway will be extraordinarily difficult, if not futile. Even where countries such as China and Iran censor the internet by forcing internet companies to take down a range of content, maintaining a social-media presence is inherently a liberalising force because of the cross-fertilization of ideas. Openness in one area encourages openness in other areas.

7.4 Conclusion Diversity in applying human rights standards to religious speech restrictions is already present in the world. This is what precipitates the debates. Diversity is a value espoused by liberalism, but of course, it is not full diversity but diversity within liberal norms. The boundaries of liberalism may need to expand to account for acculturation, different balancing at the boundaries, changing demographics and political realities and the evolving nature of principles. These factors will decide the future iterations of blasphemy. For the Western liberal who sees no value in the effort to protect the sacred, T. S. Eliot sees a lack of belief. For him, ‘first-rate blasphemy is one of the rarest things in literature, for it requires both literary genius and profound faith’.93 Without profound faith in the spiritual life, blasphemy is merely the parrot repeating the cuss words. He concludes, ‘I am not 92

93

Manuel Castells, ‘The impact of the internet on society: A global perspective’, available at www.bbvaopenmind.com/en/article/the-impact-of-the-internet-on-society-a-globalperspective/? fullscreen = true. Eliot, After Strange Gods, p. 52.

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defending blasphemy; I am reproaching a world in which blasphemy is impossible’.94 The need for the sacred, the absence of which makes blasphemy impossible, is sometimes recognized by non-religious persons. Rowan Williams, the former Archbishop of Canterbury, described a British novelist, a committed non-religious person, who, although she had no belief in God, said she needed something like a concept of blasphemy to express her sense of a violated order when confronted by gross military extravagance or environmental exploitation.95 Morality is impoverished absent any imaginative understanding of the sacred. When it comes to religious speech, law has great difficulty protecting the transcendent, because the transcendent involves ideas, experiences, beliefs and mysteries of the numinous – which, although deeply personal and universal, defy the reductionist demands of law. Attempts to regulate usually lead to oppression. Perhaps the transcendent needs no legal protection, and law should focus on protecting that which is immanent: people and their relationship to each other and the environment.

94 95

Ibid. Rowan Williams, ‘James Callaghan Memorial Lecture:  Religious hatred and religious offence’ (2008), available at http://rowanwilliams.archbishopofcanterbury.org/articles .php/1328/archbishops-lecture-religious-hatred-and-religious-offence.

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8 The Freedom and Restriction of Blasphemy Theoretical Perspectives

Andr á s Koltay

8.1

Introduction

The protection of religions, religious figures and religious dogmas is the most ancient barrier to freedom of speech in Western legal systems, but these barriers were gradually dismantled in the twentieth century. Although the question has been pushed into the background, it has not disappeared entirely. In Europe it reappeared in connection with the scandal triggered by The Satanic Verses by Salman Rushdie in 1988–1989.1 In recent decades the debate over blasphemy has flared up from time to time, most recently primarily due to the unclear relationship between radical Islam and Europe, secondly due to the clash of arguments in favour of the general protection of religions and those supporting the libertarian approach taken by secular European states. This debate gained new momentum after the instances of blasphemy which have had tragic outcomes over the past decade, firstly the Danish cartoons (in 2005–2006), then the video on Muhammad published on YouTube (in 2012), followed by the terrorist attack in 2015 against the editorial offices of Charlie Hebdo. This chapter makes an in-depth analysis of the theoretical questions relating to restrictions on blasphemy. Section 8.2 aims to present a more detailed context of the blasphemy debate, whereas Section 8.3 gives a very short overview of how the legal notion of blasphemy developed. Section 8.4 examines the issue whether religious conviction can be considered worthy of special protection, Section 8.5 deals with the possible theoretical

1

Lisa Appignanesi and Sara Maitland (eds.), The Rushdie File (Syracuse: Syracuse University Press, 1990). Thanks to Neville Cox, Robert A. Kahn, Balázs Schanda, Jeroen Temperman and Bernát Török for their comments on previous drafts of this chapter.

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foundations of restricting blasphemous opinions, whereas Section 8.6 tries to assess the concept of ‘responsible free speech’ (the non-legal limitation of free expression) with regard to blasphemous publications.

8.2

Beyond the Freedom of Speech: Issues Raised by Blasphemy

The brutal attack against the offices of Charlie Hebdo in 2015 cannot be regarded as the beginning of a new world from the perspective of freedom of speech. Nevertheless, the tragedy might seem to be the point of departure of a new approach if European states draw conclusions from the so far unprecedented case of Europeans being massacred in Europe for exercising their right to freedom of speech, which in turn may lead to them changing their policies. From the first, instinctive reactions of the press, one interpretation seems to have emerged according to which the attack on Charlie Hebdo was not only aimed at the journalists and caricaturists murdered but was intended to eradicate European culture as such. This was the view reflected in an article of the New York Times (by the Editorial Board) published on the day of the massacre.2 The discussion of the issue of the war of cultures or the clash of civilisations related to the caricature cases is not a new phenomenon either, as in the aftermath of the Danish cartoons affair similar positions and opinions were broadly published, according to which any allowance made to terrorism and curtailing European values might bring the end of freedom in Europe.3 The situation in Europe faces an exceptional risk: If there is a war between cultures and in this war some of the radicalised Muslims who have entered or even have been admitted into Europe ‘have to be restrained’ (not only from carrying out terrorist attacks but also from following certain rules of their religious culture; see, for example, the debates around the public wearing of the traditional burqa or niqab),4 then how can we ensure equal human rights, one of the fundaments of European culture, for Muslims in Europe? If we take steps against radical Islam (ignoring the dogma on the equality of human rights, for example, by banning the 2

3

4

‘The Charlie Hebdo massacre in Paris (by the Editorial Board)’, New York Times, 7 January 2015, available at www.nytimes.com/2015/01/08/opinion/the-charlie-hebdo-massacre-inparis.html?_r=0. For example, András Sajó, ‘Countervailing duties as applied to Danish cheese and Danish cartoons’, in András Sajó (ed.), Censorial Sensitivities. Free Speech and Religion in a Fundamentalist World (Utrecht: Eleven International, 2006) pp. 297—304. Erica Howard, Law and the Wearing of Religious Symbols (Abingdon, UK: Routledge, 2012).

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wearing of the burqa), this may entail that we do not ensure, for example, the full freedom of religion and speech for Muslims. Do we not curtail or damage ‘European values’ by making such a strong exception? Do we expose ourselves to risks, leaving everything that is important to us unguarded, by not making such strong exceptions? And if we retreat as Islamic terrorists want us to do (and, let us say, we prohibit the publication of the Charlie Hebdo type cartoons), then can we buy safety at such a price and preserve the remains of our freedom? The range of questions which might be raised with respect to blasphemy is even broader and more complex. Contrary to all appearances, the debate primarily is not exclusively, and in most European countries not necessarily, about the clash between ‘Muslim radicalism’ and ‘European values’ but equally about Christianity versus secularism (or, to put it more precisely:  the scope and limits of religious neutrality of the state). The emphasis on this aspect is especially marked in the home country of secularism, France, and so, although the terrorist attack against Charlie Hebdo has great symbolic resonance, the magazine as a phenomenon, its assessment by French society and its handling by the French authorities is not suitable to base general conclusions on at a European level. The Committee of Ministers of the Council of Europe adopted a declaration, a week after the Charlie Hebdo massacre, condemning the ‘horrendous act’, calling it a ‘direct attack’ on democracy.5 At the same time, on the very day of the killings, 7 January 2015, the Parliamentary Assembly, the other organ of the aforementioned international organisation, called upon European states to combat intolerance and discrimination against Christians.6 The Resolution makes an appeal to states, asking them to resort to ‘reasonable accommodation’ to protect people’s religious beliefs. As the two documents issued simultaneously by the Council of Europe prove, the issue of religions in the public discourse in Europe cannot be limited to tackling the difficulties posed by Islam. Robert Kahn concludes that Europe’s fear of conservative Islam is partly rooted in ‘Europe’s uneasiness about its secular identity’.7 From this, it follows that the strongest or the most adamant European defenders 5

6

7

Declaration by the Committee of Ministers on the recent attacks in Paris (Adopted by the Committee of Ministers on 14 January 2015 at the 1216th meeting of the Ministers’ Deputies). Parliamentary Assembly, ‘Tackling intolerance and discrimination in Europe with a special focus on Christians’, Resolution 2036 (2015). Robert A. Kahn, ‘The Danish cartoon controversy and the rhetoric of Libertarian regret’ (2009) 16 University of Miami International & Comparative Law Review 151, 178.

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of Islam will be Christian religious conservatives8 – as, not only in the Charlie Hebdo case but with regard to cartoons which attack any religion, all religions share the ‘same fate’. Neville Cox also concludes that, in the debate surrounding the restriction of blasphemy, it is ultimately the resentment of secular Western societies of religions that comes to light, because religious morality is no longer an indispensable element of public morality.9 Ross Douthat, publicist of the New York Times, also emphasises that attacks on Christianity are part and parcel of popular culture and media, just as those on Islam10 (he raises this to demonstrate that the followers of Islam are not put at a disadvantage, nor are they discriminated against, compared to the adherents of other religions). The attacks and mocking of the Jews are a completely different issue in Europe after the Holocaust: though their religious beliefs themselves are not protected by law, hate speech and genocide denial laws can be widely used for their protection. From this angle, the followers of all religions are opposed to a secular Europe, even if, naturally, the degree and intensity of this opposition varies considerably according to religions and communities. The decisive majority of Christians would not wish to have secular Europe eradicated and for the walls between the state and churches to be dismantled but would welcome a little more respect for their religions. In contrast, certain followers of radical Islam presumably would have no objection to the disappearance of present Europe. Most Christians have called for tolerance of the followers of Islam, while the most radicalized followers of Islam would not hesitate to exterminate not only secularism but even Christians themselves if they could. A discussion of possible limitations on blasphemy in a democratic society covers a wide range of issues – in addition to freedom of speech, the relationship between the state and churches, immigration, multiculturalism and the cohabitation of different cultures, all of which are crucial to the future of Europe. It is difficult to select one and be silent on the others, and yet it is necessary to focus the analysis here on questions of freedom of speech – how the permissibility or prohibition of blasphemy fits into the European system and philosophy of the freedom of speech. Taking such a narrow perspective risks omitting discussion of the most important 8 9

10

Kahn, ‘The Danish cartoon controversy’, 178. Neville Cox, ‘Blasphemy, Holocaust denial, and the control of profoundly unacceptable speech’ (2014) 62 The American Journal of Comparative Law 739, 756−59. Ross Douthat, ‘Blasphemy revisited’, New York Times, opinion pages, 14 January 2015.

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questions, but if, beyond the permissibility of blasphemy, we were to examine the war between cultures or the necessary degree of immigration to Europe then the overview would necessarily become so broad in perspective that the result would be extremely superficial. However, we must not underestimate the value of focussing exclusively on freedom of speech, since freedom of speech is a European symbol, the symbol of enlightenment and of free, liberal, Western societies. Consequently, the analysis of issues related to the law of freedom of speech per se is a necessary and important contribution to the discourse on the future of Europe.

8.3

The Concept of Blasphemy

In a debate about questions relating to restrictions of blasphemy, it would seem sensible to start by providing a precise definition of blasphemy. However, this is not really possible due both to the diversity of European legal systems and to the declining significance of blasphemy as a barrier to freedom of speech. Moreover, the concept has undergone considerable transformation over the past centuries, and its modern content has not been able to adapt to the presence of Islam in Europe; as such, blasphemy at present seems to have whatever meaning is attributed to it by the user. To some extent this is an exaggeration, and we can select and describe some of the possible concepts of blasphemy. One of the great theorists of English law, William Blackstone, defined blasphemy in the eighteenth century as follows:  ‘Blasphemy against the Almighty is denying his being or providence, or uttering contumelious reproaches on our Saviour Christ’.11 This strict approach, which essentially did not even leave any room for criticising Christianity, has become considerably milder over the past centuries. In the middle of the twentieth century, according to English law: Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, or the Bible, or the formularies of the Church of England as by law established. It is not blasphemous to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not as to the substance of the doctrines themselves.12

11

12

William Blackstone, Commentaries on the Laws of England (1st edn, 1765−69; London: Cavendish, 2001), vol. IV, ch. 4, p. 46. Article 214 of Stephen’s Digest of the Criminal Law (9th edn, 1950).

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The earlier English perception of law, even in the twentieth century, provided protection against blasphemy only for Christianity (more precisely, primarily for the Church of England). It is true that it substantially narrowed down the spectrum of opinions which had been previously prohibited, allowing for the criticism of religion (if that criticism is in decent and tempered language, in a proper manner). The recent Irish Defamation Act (of 2009) takes into account the equality of religions when defining blasphemy in the following way:  ‘Matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion’.13 The Irish law, therefore, considers the impact of the opinion as part of the concept, that is an expression is not blasphemy if no outrage is caused by it. It is thus important to note that the blasphemous nature of an opinion itself is not sufficient for the legal offence to be committed, and a further necessary condition is the intentional nature of causing outrage.14 We can conclude, even without a uniform and permanent concept of blasphemy, that, as the concept is used in Western law today (in the few European states which kept the ban of blasphemy in their books), opinions criticising religions cannot be considered blasphemous, nor does blasphemy include the act of denying the truth of religious dogmas or the existence of God, nor is it permitted to make any difference between individual religions and churches. A blasphemous expression shall be, therefore, one which defames or insults a religion (its dogmas, its respected personalities, etc.) and unwarrantedly offends or insults the adherents of that religion: that is, when judging blasphemy, the manner, the style and the tone of expressing an opinion are of utmost importance, whereas the content of the criticism is less immediately relevant.

8.4

Can Religious Sensitivities Be Granted Special Protection?

Before analysing certain specific considerations surrounding the restrictions on blasphemy, we still need to raise one question: Is it possible to grant specific protection to religious convictions which is different from and stronger than the protection of other interests or values (lifestyle, political conviction, etc.) and which implies a more powerful restriction

13 14

s. 36(2)(a). s. 36(2)(b).

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on freedom of speech? If we can confidently answer ‘no’ to this question, the theoretical foundations for restricting blasphemy will be more difficult to accept for the layman, because in this case the criteria for restriction should be subjected to the stricter standards applicable to restricting general public discourse. If, however, the answer is ‘yes’, the criteria for restriction might even be less stringent. Is it possible to acknowledge the exceptional character of religious conviction in a legal sense, as compared to other convictions, or other forces and values shaping human personality? Is religious conviction in any way special by nature? Is it something that can be protected more strongly than other convictions and features which shape one’s personality? If so, what is religion and how can it be defined and distinguished from the freedom of one’s philosophy of life and conscience and protected by the same fundamental right? These are questions which clearly should not be left primarily to lawyers. However, historical experience shows that religious conviction lies in the most intimate and inmost sphere of the individual; it fundamentally determines an individual’s personality and actions and, influencing the whole personality, it is present in every moment of an individual’s existence. At the level of individuals, other types of convictions certainly exist which have a similar, very powerful influence on the life of the individual, such as political orientation, patriotism and nonreligious philosophies of life. However, turning to another level above the individual, that is at the level of society, it is difficult to find a historically rooted conviction with a similarly powerful influence to that of religion (though in the case of individual members of the society, patriotism or political conviction can be as strong as others’ religious feelings). Anthony Ellis is of the opinion that religious conviction is no different from any other spiritual conviction or convictions of consciousness,15 whereas Neville Cox argues that Europe’s difficulties in engaging with Islam are rooted in Europeans’ lack of comprehension of religious conviction. Most modern Western societies have largely lost their links to religions, and so there are many who do not understand the role religious conviction plays in the life of an individual.16 We can add that, in Europe, this situation is the result of a long, centuries-old process that is still ongoing. In European societies, it is exactly this incompleteness that might cause the unease:  people living at present were born in states in

15 16

Anthony Ellis, ‘What is special about religion?’ (2006) 25 Law and Philosophy 219. Cox, ‘Blasphemy’, 756–59.

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which the significance of religion has dropped considerably, a decline to which conscious and deliberate state policy has contributed much (this holds true of the former communist dictatorships and secular Western societies alike). The number of people actively exercising their religion has also significantly dropped, and churches and members of religious communities have tolerated this peacefully. On the other hand and in spite of this, there are still radicalised people – either non-Europeans and/or the second and third generations of immigrants who were already born in Europe – who attach such importance to religion that they could or even want to kill and die for it. (And, obviously, there are still places or regions in Europe, where a religious worldview is still not unusual.) There are also related debates, which will not be addressed here, on the compatibility of terrorism with religion and the extent to which killing people over cartoons is in accordance with the religious prescriptions of Islam. I cannot take any position on these matters, and for the time being they are not even important for us since, irrespective of the answer, to the European observer these people seem to be religious, fanatical adherents of a religion, a phenomenon that a European person brought up in and used to a secular state finds very difficult to grasp. Plenty of arguments can be raised against treating religious convictions differently to others. According to some opinions, it is not permissible to ridicule somebody due to their origins or physical characteristics because they are beyond human control: a human being is not able to change these features through their own volition. In contrast, religious convictions and beliefs are essentially different – they are chosen by the religious person; that is, religious conviction exists as a result of one’s conscious decision to be permanently reconfirmed; it is a choice as opposed to an accident of birth.17 Does such a distinction between innate and freely chosen personal characteristics hold true? Does the ‘power’ or ‘importance’ of a personality trait depend on how consciously we admit it? A further question: Are we sure that, in general terms, the foregoing argumentation concerning free choice is applicable to religion? Many receive ‘a ready-made’ religious conviction when they are born and never have occasion to doubt its truthfulness or at least are never placed in a situation where they should take a decision on leaving the church. Here I do not have the baptism of

17

For this reasoning, see Guy Haarscher, ‘Free speech, religion, and the right to caricature’, in Sajó, Censorial Sensitivities, p. 324.

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new-born babies in mind but the type of religiousness which is still characteristic of a broad spectrum of society, which is based on the customs of a smaller local community (or a family) and which is less conscious than taken as natural and as a given and pursued as customary. The value of such religiousness, how deep and well founded it is and the extent to which individual churches approve of this type of religiousness are different questions and have no impact on this line of argumentation. I would disagree with the statement that religious conviction is in all cases the result of a conscious decision while holding that the decision on the need to protect it does not depend on whether it is ‘received as ready-made’ or it is the result of ‘a conscious decision’. Whether to protect a person’s religious sensibilities depends rather on how powerfully they determine his/ her personality and the extent to which we take this aspect of a religious person’s personality as something to be protected. Neither is it certain that following one’s religious conviction is a matter of free choice beyond such cases: a believer does not necessarily think that they could have any ‘option’ other than following a given religion. I am not referring here to the social pressure in certain communities to exercise one’s religion or to bigotry, which is not worthy of protection; if somebody firmly believes that the dogmas of their religion are true and beneficial, what is more they are the only true and beneficial dogmas – even if they found this truth as a result of conscious search and choice – it does not seem to be extremely reasonable or realistic to expect them to look for other choices or other convictions, to doubt the truth they have already found or even to try and break free from such a belief. Religious conviction might mould the personality of a believer so powerfully that it does not help them to comprehend the assumption or idea that they have to choose their belief constantly, again and again – perhaps to confess or to affirm it, but why select it again if that has already been done once? For a religious believer, faith is not a question of choice.18 Of course, this does not rule out the possibility of healthy scepticism or uncertainty, to which a believer is exposed from time to time, or the necessity to reinforce the dogmas thought to contain the truth, which John Stuart Mill notably referred to. As Mill puts it, if one view, in the absence of a permanent debate, becomes a customary, unquestioned truth, people will soon accept it only out of habit, and it will fossilise and become a dead dogma. Before it is recognised, truth has to undergo persecution more than once

18

On this in more detail, see Cox, ‘Blasphemy’, 761−63.

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and, although it is a white lie that truth will triumph in spite of all persecution, ‘in the course of ages there will generally be found persons to rediscover it … until it has made such head as to withstand all subsequent attempts to suppress it’.19 Therefore, even recognised truth benefits from free dispute. The differentiation between personality traits ‘consciously undertaken’ and those ‘granted by birth’ in order to provide a stronger protection of the latter (because they exist not as a result of our decision, so they are not ‘our fault’) does not seem to be incontestable on a theoretical basis. Anybody can use offensive remarks when criticising the colour of my hair, how good I am at ball games or my vocal range, and it would not cause me any severe distress. Obviously, the situation would be different with respect to characteristics which essentially determine personality, such as nationality, mother tongue and sexual orientation. It must, however, be a ‘given’ personality trait (the colour of my eyes), the offensive criticism of which causes less severe pain and injury than the offensive criticism of a ‘chosen’ personality trait (insulting my religion). Hence, drawing a sharp line consistently between these is not possible from the perspective of the restriction of blasphemy.20 Another possible counterargument concerning the different treatment given to religious conviction holds that those social groups which are usually protected today (national and ethnic minorities, communities organised on the basis of sexual identity, etc.), have not, in the course of history – in contrast with, say, the members of Christian denominations – committed severe atrocities or murdered other people en masse and yet do not have the degree of powerful social influence (wealth, institutions of education, health care, social care, political embeddedness) as some of the churches still do. As such, according to this view, it is not surprising or illogical that the followers of these churches – in Europe they are primarily Christians – receive sharp or even offensive criticism. From the philosophy of freedom of speech it follows that the strong have to tolerate more and that stronger individuals can be offended more sharply, because the exercise of freedom of speech by nature tends to protect the weaker party through its balancing role; it provides an opportunity for the weaker party to participate in public debate. However, according to the argumentation to oppose that counterargument, present-day

19 20

John Stuart Mill, On Liberty (2nd edn, London: JW Parker and Son, 1859), p. 54. Cox, ‘Blasphemy’, 760−761.

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regulations should not be adjusted to the state of affairs of four hundred years ago. Present-day churches should not be judged for the actions of the henchmen of Torquemada or the cruelties committed by Protestants against Catholics, for the historical sins of the past or even for the strength of state churches in the nineteenth century. Instead, the arguments for and against the restriction of freedom of speech should be analysed in the context of present-day needs and after identifying the groups requiring protection today. Some of the Christian denominations in certain European countries are still strong and influential and have considerable wealth, but the question of restricting blasphemy does not concern the necessity to protect these churches and denominations from criticism. The church is not identical to its followers – while the occasional or potential restriction of freedom of speech protects the latter, this protection does not restrict the debate on the potential sins of churches, past or present. This being said, whatever we think of the restriction of blasphemy, one thing is for sure: we cannot afford not to have the opportunity under all circumstances to write and express opinions on paedophile priests, corrupt Vatican bankers or alcoholic pastors. The criticism of churches and the protection of believers do not mutually exclude each other. Another argument against attaching priority to religious conviction is that religions, religious conviction and churches ought to be confined to the private sphere. Essentially, freedom of religion is the freedom to exercise one’s religion within four walls (at home or in a closed community), as part of one’s private life. What makes the accepted mutual respect for religions possible today is that these religions, when entering the public sphere, do not pose a serious threat to social order or to each other. Believers and nonbelievers live in a modernized, secular world, where religious doctrines do not have the power to totally define life; at the most, on the basis of individual choice, they operate in the private sphere – and the borders of the private sphere are defined by public opinion and the constitutional order. Until now, the secularized constitutional state did not have to concern itself with the content of religion – assuming the acceptance of certain preconditions.21

This means that if the believer has the courage to venture out to the street and appear in public life and a church has ambitions of wielding secular influence, they must also tolerate blasphemy. Adherents of religions had better not even go outside if they wish to avoid it, and/or if the believer still

21

Sajó, ‘Countervailing duties’, p. 285.

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goes out to the street, they violate the rules of the secular state. As opposed to this, I am of the opinion that, for most religions, religious conviction and churches as communities uniting individuals (legal entities) can only exist and only have meaning if they are active in public life; Article 9 of the European Convention on Human Rights (ECHR) specifically mentions the right to manifest religion in public. One of their essential characteristics is that they wish to exert an influence on the workings of society, attract believers and change the world, an ambition they pursue in several ways, such as by practising their religion publicly, by using religion-based arguments in public life and through television programmes. The state grants this right to each religious and non-religious group and facilitates opportunities to make an attempt at these goals. There are, of course, private aspects to exercising one’s religion, which are no business of anybody else, but it necessarily has a public element, that is it is not a fully private matter, and interpreting religion as such would deprive it of its essential, vital element and thereby would curtail or weaken the content and substance of the freedom of religion as a fundamental right.22

8.5 Possible Reasons for Restricting the Freedom of Speech 8.5.1

Protection of Religions and Churches against Defamation

The protection of religions and churches against disparaging, offensive or abusive opinions cannot provide grounds for restricting the free flow of opinions, according to the common understanding of freedom of speech, if they cannot be considered as hate speech or otherwise limitable discriminatory speech. Religions and their historical figures (founders, saints, prophets, etc.) themselves cannot be protected or be holders of fundamental rights. By contrast, churches as legal entities are legal subjects (subjects of law), but, if they are subject to defamatory, hateful or abusive expressions, only the protection of them (as legal entities) against defamatory speech might be applied. An attack against a religion is not an attack against the churches as legal entities.23 Under the law, then, a legal entity – in

22

23

For arguments regarding the importance of religious convictions, see Neville Cox’s chapter in this volume, ‘Blasphemy and Defamation of Religion following Charlie Hebdo’. And churches or their leading representatives can be subject to harsh criticism; see the decisions by the European Court of Human Rights (ECtHR) in Giniewski v. France (Application no. 64016/00, judgment of 31 January 2006) and in Klein v. Slovakia (Application no. 72208/01, judgment of 31 October 2006).

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spite of being recognised by law and being an autonomous legal subject – has no feelings, specific sensitivities, human dignity and the like. Hence, while the church as a legal entity is affected in the event of a direct attack prohibited by law in the course of exercising freedom of speech (violation of a personality right, e.g., damage to reputation), in general terms the defamation of religion does not injure the church as a legal entity. As such, the past UN resolutions adopted under the pressure of Islamic states against the defamation of religion are very difficult to interpret from the perspective of the dogmas of freedom of speech and can be considered much more as documents with political rather than effective legal consequences.24 The protection of religions has no legal basis in the legislation on freedom of speech or in the various national and international systems of protecting fundamental rights; the law grants protection to individuals and, in given cases, to adherents of religions.25 This has not always been so and was not taken for granted previously because, as Robert Post notes, the state was formerly interested in suppressing blasphemy.26 Nowadays, however, this interest has ceased to exist, and in any case it would not provide sufficient grounds for restricting freedom of speech. An entirely separate question is whether or to what extent attacking or offending a religion or a church harms individual believers and, if so, to what extent it can serve as grounds for restricting freedom of speech.

8.5.2

Damaging the Freedom of Religion

The European Court of Human Rights (ECtHR), in its judgments concerning blasphemy, permanently confirms its position, that the expression of defamatory opinions of religion may in certain cases violate the right of the believers of the religion concerned to the freedom of religion.27 The 24

25

26

27

Jeroen Temperman, ‘Freedom of expression and religious sensitivities in pluralist societies: Facing the challenge of extreme speech’ (2011) Brigham Young University Law Review 729; Aurel Sari, ‘The Danish cartoons row: Re-drawing the limits of the right to freedom of expression?’ (2005) XVI Finnish Yearbook of International Law 365, 392−97. Jeroen Temperman, ‘Blasphemy, defamation of religions and human rights law’ (2008) Netherlands Quarterly of Human Rights 517. Robert C.  Post, ‘Religion and freedom of speech:  Portraits of Muhammad’, in Sajó, Censorial Sensitivities, p. 337. Otto-Preminger-Institut v. Austria, Application no. 13470/87, judgment of 20 September 1994; Wingrove v. the United Kingdom, Application no. 19/1995/525/611, judgment of 25 November 1996; I.A. v. Turkey, Application no. 42571/98, judgment of 13 September 2005. In these cases the ECtHR relied heavily on the doctrine of the ‘margin of appreciation’, according to which it provides a fairly broad latitude to states in especially sensitive issues

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restriction of the right to freedom of speech may also be justified when the opinion offends public morals (as set in Article 10(2) of the ECHR). But we can consider these cases principally as clashes between Article 10 (freedom of expression) and Article 9 (freedom of religion) rights, where the latter might occasionally emerge as the winner from this conflict. The reason is that the exercise of freedom of expression can be restricted when it violates ‘the rights of others’ according to Article 10(2), the freedom of religion being one such right of others. The ECtHR agrees that instances when this situation might arise should be defined very restrictively; in the conflict of rights no automatically applicable prioritisation or hierarchy exists. Freedom of speech can only be restricted in extreme cases; the expression of an unwarrantedly offensive opinion of an insulting character can be restricted in order to grant the right to freedom of religion. Bernát Török concludes that ECtHR judgments have only been partly based on this consideration and that the court has based its justifications of restrictions on freedom of speech by the states much more on hurt to an individual’s feelings than on restrictions imposed on exercising the fundamental right to the freedom of religion.28 Nevertheless, whether the right to freedom of religion is affected at all by the publication of a blasphemous opinion remains an open question. According to a statement made by Jeroen Temperman, it is not; consequently, the jurisprudence of the ECtHR and the Human Rights Commission of the UN, which are partly based on this, are inappropriate: Criticism or ridicule aimed at religion does not automatically affect a person’s right to freedom of religion or belief. A person expressing to be insulted or hurt in his/her feelings on account of a critical publication or a defamatory act is not, therefore, denied in his/her fundamental right to freedom of religion or belief.29

The state, according to Temperman, with regard to freedom of religion, grants identical rights to those who practise a religion, irrespective of the publication of blasphemous opinions, and therefore protecting religions from external criticism or attacks is not part of the right to freedom of

28

29

in which there exists no common European standard by deciding that it does not wish to fill in this gap and answer the arising questions in an activist manner. Bernát Török, ‘Can religions or religious people be protected against blasphemy? Comments on the case law of the European Court of Human Rights’, in András Koltay (ed.), Media Freedom and Regulation in the New Media World (Budapest: Wolters Kluwer, 2014), pp. 519−521. Temperman, ‘Blasphemy’, 545.

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religion. I  accept the approach taken by Török and Temperman, because obviously the expression of opinions offensive to religious adherents does not directly affect any element of the right to freedom of religion (the freedom to choose a conviction, to change one’s conviction, to exercise one’s religion, to administer or participate in religious ceremonies or to express religion-based opinions in public as well as the distancing of the state from any one conviction). Although arguments could be found to support the idea that the public criticism of a religion discourages believers and, out of fear of retaliation, they refrain from exercising their religion, this does not change the fact that the state grants this right to the believer. It is true that blasphemy might indirectly discourage religious behaviour by silencing or chilling members of the target group. (Though the speech acts that can silence members of a particular group are not necessarily blasphemous.) Since the negative repercussions of hateful opinions can be treated and prevented by provisions relating to inciting hatred against a community and to the instigation of hatred as criminal offences there is no need for a specific restriction on blasphemy. Defamatory opinions of religion would seem to contribute much more to the violation of the rights of the individual than to the restriction of exercising the fundamental right to freedom of religion. The publication of a few cartoons ridiculing either Jesus or the Prophet Muhammad will make nobody either doubt or restrict the right of Christians or Muslims to freely exercise their religions and rights relating to freedom of religion. We can imagine a concrete case when the disclosure of an opinion practically impacts exercising one’s freedom of religion. However, from the perspective of freedom of speech, we usually do not treat and protect such expressions as ‘opinions’. I am talking about cases when the ‘opinion’ becomes an act. If, for example, somebody sets a church on fire or drives a car into a religious procession, such an act shall be considered as preventing the exercise of religion and can in no way be protected. But granting the right (e.g., to freedom of religion) shall not necessarily mean obliging others to show unqualified patience, understanding and acceptance for the one exercising it.

8.5.3

Protecting Individual Sensitivity and Religious Feelings

To quote a classic adage, ‘Every idea is an incitement’.30 Special care should be taken when restricting freedom of speech, because there is no idea 30

Holmes J in Gitlow v. New York, 268 US 652 (1925), dissenting opinion.

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worth disclosing which would not offend or injure somebody. Should protection be granted to intentionally insulting or offensive speech, intentional provocation or defamatory acts which do not participate or do not wish to participate substantially in public debate? It is worth noting that neither threat, incitement, instigation, the incitement to hatred nor the permissibility of restricting any of these can be derived from the general principles of freedom of speech or, more specifically, from the harm principle. According to the frequently cited rule of Handyside v. the United Kingdom,31 the shocking, offending, disturbing character of the speech itself does not provide grounds for restricting freedom of speech. From this it can be concluded that opinions which offend or upset the believers of a religion cannot be restricted. Two objections can be raised to this axiomatic principle. First, sources equivalent to the judgment (other judgments of the ECtHR, e.g., Otto-Preminger-Institut and successive decisions in similar cases)32 clearly and unambiguously reject the notion that offensive speech is protected in general – because such judgments protect the rights of believers to be unaffected by harm generated by offensive opinions – no matter how much we are inclined to draw this conclusion from this part of the statement of reasons in Handyside. Neither Handyside nor Otto-Preminger are higher-level sources of law than the other. Beyond blasphemy, the restriction of offences is also allowed in other areas important for freedom of speech, such as defamation law33 and various restrictions on hate speech.34 Second, Handyside itself partly contradicts the aforementioned axiom because, in this case, the ECtHR ultimately ruled against the offensive content (more precisely, it gave no protection to it according to the ‘margin of appreciation’ principle). According to some arguments, Charlie Hebdo ridiculed only bigoted religious fanatics; therefore it is absolutely meaningless to refer to the violation of the religious sensitivities of ‘Muslims’, ‘Jews’ or ‘Christians’ (i.e. attacking fundamentalists may simply bring about collateral damage, and in the present case it is the sensitivity of ‘non-fundamentalist’ believers). 31 32 33

34

Handyside v. United Kingdom, Application no. 5493/72, judgment of 7 December 1976. See n. 28, supra. Lingens v. Austria, Application no. 12/1984/84/131, judgment of 24 June 1986; Oberschlick v.  Austria No 1, Application no.  11662/85, judgment of 23 May 1991; Castells v.  Spain, Application no. 11798/85, judgment of 23 April 1992. Jersild v.  Denmark, Application no.  15890/89, judgment of 23 September 1994; Incal v.  Turkey, Application no.  22678/93, judgment of 9 June 1998; Karataş v.  Turkey, Application no.  23168/94, judgment of 8 July 1999; Vejdeland and Others v.  Sweden, Application no. 1813/07, judgment of 9 February 2012.

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However, the question arises whether it is possible to differentiate between the ‘targets’ of the offence by attacking the founders and heroes of the religion, who are held in high esteem by extreme ‘fundamentalists’ and fair and moderate religious believers alike. Is it realistic to expect everybody to understand the offensive opinion properly and not to be offended by it? According to another argument, which appeared after the Charlie Hebdo killings, keeping a distance from offensive opinions is the appropriate response to the offence and a suitable means of avoiding it. In more simple terms, ‘if you do not read it, you will not be disturbed or offended’. However, the power of this argument can be contested – in the world of online communication, offences cannot really be avoided, and sooner or later one will learn about the defamatory statement, except if one completely cuts oneself off from the external world. It is not possible to turn a fully blind eye to offensive online content, the possibility of which was the old classical argument to support the differences concerning the regulation of television, radio and press (in the case of the latter, the readers themselves choose what to read or what to look at, whereas the viewer/listener may unintentionally or against their will encounter content offensive to them or to their underage children).35 We learn about offensive content in the form of detailed descriptions and copies, even if we explicitly and deliberately want to avoid it; printed press is immediately scanned or photographed and then digitally distributed, so that it takes only a click on the smart gadgets in our pockets to learn about them, even if we refrain from browsing through an actual printed product at the newsstand. We could say that those who have the courage to go out to the free world, have an internet connection and access to new ICT technology and do not hesitate to use them, should bear the possibility or risk of personal offences. According to Török, the possible and proportionate solution is to ensure the avoidance of blasphemous opinions through legislation, that is the prescription of an opportunity for believers not to have to face these offensive opinions: no person can reasonably expect to live their life and not to know that his or her religion is being subject to derogatory expressions somewhere. At this point, it becomes justifiable to design a regulatory scheme that allows religious persons to avoid such opinions and expressions if they wish. In most cases, such regulations would not take the form of prohibition or content-related restriction, but rather as formal requirements applying to the form and means of exercising freedom of expression in various means of mass communication.36 35 36

Eric Barendt, Broadcasting Law. A Comparative Study (2nd edn, Oxford: Clarendon, 1995). Török, ‘Can religions or religious people be protected’, p. 529.

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It is unquestionable, however, that believers do not have the right to be spared the mere information that somebody somewhere offended and harmed their religion.37 A regulatory scheme might be able to deal with photos, videos or words depicting actual acts of blasphemy, but it would be hard to apply it to a news report saying that an act of blasphemy took place. While not disputing the success of Török’s approach in establishing a balance between the protection of religious feelings and freedom of speech, which balance is coherent with the general principles of freedom of speech and has a reasonable and theoretical basis, I do not find it feasible in practice for the aforementioned reasons – that it does not grant a chance to hide. In the age of the internet, the avoidance of harm or offence is close to impossible, because a blasphemous opinion published widely will be available from an indefinite number of sources; simply by not buying a printed magazine, the information contained in the magazine will not be ‘avoided’. The other counter-argument is that if believers avoid offensive content, ultimately they will also make open public debates difficult because the dispute will not take place, either. It is true – as counter-argument to that counter-argument – that this is still better than a complete prohibition, which makes the publication or disclosure of the opinion itself impossible, and it is also true that believers, depending on their individual sensitivities, might opt for avoidance, that is there can always remain some believers who opt for participation in the public debate instead. The question of restricting blasphemy is not only complicated because it is difficult to define the exact right and lawful interest offended by blasphemous opinions. If we were to accept that freedom of speech may be restricted to avoid offending religious feelings, we would encounter the problem of the impossibility of generally defining the standard or measure of degree of this offence, because religion is so close to the innermost core of an individual personality. Religion can be such a powerful element in shaping an individual’s personality, and the approaches of believers to religion might be so varied and diverse that it is extremely difficult to establish a broadly acceptable, general legal standard concerning the protection of religious feelings (as opposed to the protection of reputation or privacy, for example, where, except for certain erratic, easily offended

37

For an opposite view, see the chapter ‛Legal Protection of Religion in Germany’ by Matthias Cornils in this volume.

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politicians or celebrities, a more or less general standard can be established and in theory approved by legal subjects). It means that a very powerful argument against recognising the protection of religious sensitivity as grounds for restricting freedom of speech is formed, as the general standard of restriction cannot be established on the basis of religious sensitivity, neither with respect to the believers of a single religion, who think along different lines on this question, and certainly not when it comes to the believers of differing religions for whom even the point of departure might be different when discussing offences. Is it possible at all to take a general, broadly acceptable stand on the issue of the permissibility of blasphemy as a necessary accompaniment/ by-product of legal regulation? Is it not the case that individual sensitivity, frequently experienced and sometimes exploding in various and possibly violent acts, or the heated arguments protecting the secular state, is the living proof that religious conviction is ‘different’ and that it differs from other convictions? That is, we respect religions differently and we hate or criticise them differently – maybe more intensely? The Christian believer generally does not murder journalists, but other than that, the spiritual injury they may suffer due to blasphemy might be significant. The legal question related to freedom of speech must not be answered differently depending on whether the person asking the question holds a Kalashnikov in their hands, that is it is not the different sensitivity of followers of different religions that decides the question of restricting the freedom of speech. In attempting to analyse options for restricting freedom of speech due to the protection of religious sensitivity, we come to the conclusion that should we want to protect democratic public debate on public affairs, we can in no way limit the content of the blasphemous opinion in general; at most we can consider the manner of expressing the opinion as something to be subjected to restriction. Even Robert Post, who powerfully protects the freedom of public debate, concludes that in a democracy there may be certain prescriptions on norms of civility, on the basis of which (using the terminology of the ECtHR) the ‘gratuitously offensive’ defamation of religion can be restricted, though he adds that in the US such a prescription restricting public debate cannot exist due to the First Amendment:38 The question is how the law should distinguish between styles of speech that are intrinsically offensive and styles of speech that are inherently

38

Post, ‘Religion and freedom of speech’, pp. 345–346.

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andrás koltay protected. If freedom of speech is to serve its function of democratic legitimation, any such distinction must be drawn in such a way as to minimize damage to public debate. This suggests that the distinction cannot be drawn simply on the basis of the beliefs of discrete religious groups.39

This was the most essential point of the judgment in Otto-Preminger and its consequences – an unwarrantedly offensive, insulting opinion which contributes in no way to public debate can be restricted.40 ‘Unwarranted offence’ as an element in the statement of facts providing grounds for the restriction of freedom of speech is not alien to other areas of freedom of speech. There are parallels in defamation law, for example. However, beyond the protection of individual rights, freedom of speech might be restricted on the basis of the form, manner and tone of the opinion. Restricting Holocaust denial is another question related to freedom-ofspeech law, which is maybe closer to blasphemy than one would think. The prohibition of the denial of the Holocaust also handles a specific sensitivity and the restriction on freedom of speech is more stringent because it completely and categorically prohibits the expression of certain opinions, irrespective of their style, tone and terminology. Restricting Holocaust denial has become a generally, broadly accepted rule in Europe41 (even at the level of the European Union, a legal norm was adopted, on the basis of which Member States are more or less obliged to introduce the prohibition in their own legal systems – granting a certain degree of leeway which ostensibly derived from the constitutional norms of freedom of speech).42 In spite of this, the basis of the restriction is uncertain in terms of constitutional law, and its compatibility with the general principles of the protection of freedom of speech is questionable. Sanctioning leads to handpicking certain tragedies from the context of history and treating them as a special state of facts in the context of opinions relating thereto. Although in most countries the legislation does not explicitly name the 39 40

41

42

Ibid. Robert A. Kahn, ‘A margin of appreciation for Muslims? Viewing the defamation of religions debate through Otto-Preminger-Institut v. Austria’ (2011) 5 Charleston Law Review 401, 435−440. For a contrary view, see Tom Lewis’ chapter ‘At the Deep End of the Pool’ in this volume. András Koltay, Freedom of Speech:  The Unreachable Mirage (Budapest:  Wolters Kluwer, 2013), pp. 151−168. Framework decision on Racism and Xenophobia 2008/913/JHA. See John C. Knechtle, ‘Holocaust denial and the concept of dignity in the European Union’ (2008) 36 Florida State University Law Review 41; Joseph Weiler, The Law of Holocaust Denial in Europe: Towards a (Qualified) EU-wide Criminal Prohibition (The Jean Monnet Working Paper Series, NYU School of Law, 2009).

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Holocaust, these so-called denial laws were obviously adopted in the protection thereof in the first place. However, from a free-speech perspective, this is not easy to substantiate properly. As regards the prohibition of Holocaust denial, an issue has to be raised: What is it that justifies the restriction of freedom of speech? What is damaged by Holocaust denial? The right of the dead to be remembered respectfully? The human dignity and honour of those who are alive? Their personal safety, which might be threatened by violent acts motivated by incitement to hatred? Public interest? Democratic debate? On a theoretical basis, is the prohibition of Holocaust denial analogous with the restriction of blasphemy? According to Lawrence Douglas, the primary objective of sanctioning Holocaust denial is not to protect survivors’ rights and feelings but to protect the facts of the Holocaust (keeping it in the collective memory) from collective oblivion.43 The prohibition of Holocaust denial is not for a definite period of time – this act will be punishable even when none of those concerned is alive any longer and there is no sign indicating the risk of the Holocaust being repeated. Knowing that the Holocaust is one of the most substantially documented events of the recent past, why is it necessary to provide protection by law of its memories? In addition to sanctioning, an argument to consider might be the unlikely terrors of the Holocaust; its tragedy, which is nearly incomprehensible for the human mind, the understanding, perception and plausibility of the irrational human viciousness leading to these events is possible only with difficulty or ultimately impossible for the new generations brought up in peace. According to Cox, the arguments supporting the prohibition of Holocaust denial are similar to arguments wishing to restrict the defamation of religions. He argues that the prohibition of Holocaust denial is a prohibition protecting the community (society at large, i.e. not only the Jewish community), introduced in order to promote the interests of the community rather than to protect individual rights. Expressions denying the Holocaust are morally unacceptable at the level of society, and this is what is ultimately reflected in penal codes.44 Cox 43

44

Lawrence Douglas, ‘Policing the past: Holocaust denial and the law’, in Robert C. Post (ed.), Censorship and Silencing:  Practices of Cultural Regulation (Los Angeles:  Getty Research Institute for the History of Art and the Humanities, 1998), pp. 69–71. This means that the standards of general hate speech laws can be lowered in the case of Holocaust denial. According to the argument of the Grand Chamber of the ECtHR in the Perinçek case, the denial of the Holocaust can be punishable without fulfilling the ‘incitement’ or ‘stirring up’ element, based on its generally racist and anti-Semitic nature: ‘For the Court, the justification for making its [the Holocaust’s] denial a criminal offence lies not

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argues that the legal recognition of specific sensitivities and the restrictions of immoral opinions which do not contribute to public debate make the restriction of Holocaust denial similar to restrictions on blasphemy.45 As such, the situation is as follows. If we take the sanctioning of Holocaust denial to be an acceptable restriction of freedom of speech, three possible, mutually exclusive conclusions may be drawn on the restriction of blasphemy, presuming that we wish to preserve the integrity and internal coherence of the complex construct of freedom of speech. (1) We declare that the prohibition of the Holocaust denial does not serve the protection of the sensitivity and human dignity of survivors, the living members of social groups persecuted during World War II or the protection of the right to pay respect to the memories of victims, but it serves the purpose of keeping the event alive in collective memory in a form recognised by canonised history (this is the position of Douglas mentioned earlier). By declaring this, the analogy with the restriction on blasphemy or the protection of religious feelings no longer holds; the two types of restriction have nothing to do with one another because of the differences in the goals they are to serve. (2) We accept the unique nature of the Holocaust as a historical event and grave tragedy giving reason for specific sensitivities and say that the prohibition of Holocaust denial is a rather strong but at the same time sole exception to the principle which says ‘freedom of speech shall not be restricted on the grounds of the sensitivities and injuries of the members of a group against offensive and defamatory opinions targeted at some social group’. In this case, again, no conclusion can be drawn from the Holocaust denial ban as regards the prohibition of blasphemy. (3) We say that the prohibition of Holocaust denial is a restriction whose preconditions, being present together (special sensitivity, the lack of participation in public debate of the opinions thereby restricted),

45

so much in that it is a clearly established historical fact but in that, in view of the historical context in the States concerned, … its denial, even if dressed up as impartial historical research, must invariably be seen as connoting an antidemocratic ideology and antiSemitism’. According to the Grand Chamber, the denial of the Armenian genocide generally (on a European level) does not have this effect. Perinçek v. Switzerland, Application no. 27510/08, judgment of 15 October 2015 [GC]. Cox, ‘Blasphemy’, 751−755. For other arguments regarding the possible basis for the protection of religious feelings, generally, and also in the context of Holocaust denial, see Neville Cox’s chapter in this volume, ‘Blasphemy and Defamation of Religion following Charlie Hebdo’.

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in theory and under certain circumstances, might be suitable for restricting other types of speech, including the prohibition of blasphemous opinions.46

8.5.4 Hate Speech and Racism The examination of the general restriction of hate speech can serve as an aspect to consider in two ways when assessing the restriction of blasphemy: hate speech vis-à-vis the adherents of religions is prohibited, but at the same time, it is also a barrier to expressing opinions based on religion (freedom of speech of believers). The question is what we should consider as ‘hate speech’. Can we consider only the instigation or incitement to hatred against communities as hate speech? Or does defamation (offending) of groups and communities, which is an undoubtedly lighter offence, qualify as hate speech? The approaches taken by European legal systems also differ in this regard, and the ECtHR has yet to define a single direction to be followed in this matter, for reasons of respect for the principle of the margin of appreciation. With regard to religion-based hate speech, the most frequent point of departure is that if somebody attacks the religion itself and not the religious community (i.e. the believers of the religion) then hate speech is not committed. The person of Jesus Christ or Muhammad cannot be subjected to protection; however, the expression of hatred for their followers can be restricted.47 The question is whether this is a well-founded criterion and whether attacking the religion, the founders of the religion or the objects of religious veneration will not (or cannot) bring about offence to believers as well. Can the expression of hatred against Muhammad and the verbal injury of the historical personality be capable of inciting hatred against Muslim believers? If so, committing the act of hate speech and its possible subsequent restriction already arises as a possibility, but what cannot be judged with full objectivity is the point at which an opinion becomes ‘capable’ of inciting to hatred, when the balance ‘tilts’ and the opinion falls into the category of ‘possible to restrict’ or the point where it remains a powerful, offensive and yet protected opinion. 46

47

For a somewhat similar argument on the connection between Holocaust denial laws and blasphemy bans (and the ‘control of profoundly morally unacceptable speech’ see: Neville Cox, ‛The freedom to publish “irreligious” cartoons’ (2016) Human Rights Law Review 1. Jeremy Waldron, The Harm in Hate Speech (Cambridge, MA:  Harvard University Press, 2012), pp. 123−124.

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According to Jeremy Waldron, whereas ‘offence’ is not an adequate ground for restricting freedom of speech, protection of dignity is.48 His main argument in favour of the restriction of hate speech is that hate speech violates the right to human dignity. Whereas an ‘offence’ is necessarily subjective, dignity (similarly to the protection of reputation) affects the individual’s social position and their recognition as being equal. His argumentation rejects the approach (which I did not entirely dismiss in the preceding part) according to which religious sensitivities and the feeling of being insulted might serve as grounds for restricting freedom of speech. Waldron would provide respect only ‘to citizens, not to convictions’ by restricting freedom of speech.49 The analogy with political criticism referred to by Waldron (according to which a strong and harsh attack on the objectives and positions of the Tea Party, the American conservative political movement, should not be judged the same way as attacks on the actual people participating in the movement) is not exactly accurate in the context of blasphemy because political conviction is not necessarily to be provided the same degree of protection as religious conviction, if we assume that one’s political conviction is less likely to be the main feature determining a human personality. From the individuals’ point of view, the criticism of political groupings does not affect those belonging to the group as much as the criticism of a religion or church might insult even the weakest follower of the given religion, who has no self-assertive abilities at all and who otherwise does not wish to participate in public life or in public debates, in contrast with a party and its followers who conceptually cannot stay out of these. Previously, we argued in favour of the statement that the freedom of religion necessarily implies the right to appear in public; we still maintain this with the proviso that this does not lead to the recognition of the obligation for a religious person to appear in public, but at the same time an insult to his/her religion might offend even a more reserved individual. Ronald Dworkin also took a stand opposing Waldron but from the opposite direction, that is he even rejected the restrictions on the freedom of speech accepted by Waldron. According to Dworkin, the recognition of freedom of speech also forms part of human dignity, and the right of freedom of expression is granted to human beings because, in a fair political regime, the state should treat every grown-up citizen as a ‘responsible

48 49

Ibid., pp. 105−143. Ibid., pp. 120−123.

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moral being’.50 If we deprive somebody of the opportunity to participate in the public discourse with equal chances and thereby influence the joint decision-making process, by doing so, we claim that the human dignity of this individual is not identical to that of the others, and we belittle the representatives of certain opinions. On this basis, the restriction of hate speech is not allowed, either. All this means that the argument in favour of protecting human dignity might serve to draw two completely opposite conclusions. In fact, Waldron finds this natural, given the obscure lines of the legal category of human dignity. He asserts that societies have to decide on a case-by-case basis whose right to dignity they may give preference to.51 If, as a result of the difficulties discussed earlier, we have to exclude from the broad category of ‘hate speech’ defamatory statements targeted at communities and which might insult the religious feelings and sensitivities of the members of a religious community, we will be left with a more narrow category of hate speech containing incitement to or instigation of hatred only. Even if we accept that this narrower hate speech category might serve as a legitimate barrier to freedom of speech – as is the case in more or less every European legal system – we will encounter the problem of the impossibility of defining when the offence/defamation becomes incitement to or instigation of hatred. As long as we approach the question of restricting freedom of speech from the direction of religious believers’ feelings, it is reasonable to assert that insulting individual feelings cannot serve as the basis for restricting somebody else’s freedom. However, in more serious cases of hate speech, not only an emotional shock but also the violation of individual rights arises. Incitement to hatred is not (or is not primarily) punished because that opinion insults the members of the community which has been attacked but because it endangers the exercise of their rights, whether that be the right to life, physical integrity, freedom from discrimination or the right to human dignity. At this point, when assessing the restriction, it is not only the content of the opinion that counts but the impact generated by the opinion. That is, there might be blasphemous opinions which for many – even for the majority – are ‘only’ insulting or offensive, but, if as a result of these opinions a realistic

50

51

Ronald Dworkin, Freedom’s Law:  The Moral Reading of the American Constitution (New  York:  Oxford University Press, 1996), pp. 199–202, and Ronald Dworkin:  Taking Rights Seriously (Cambridge, MA:  Harvard University Press, 1977), pp. 266–278 and 364–368. Waldron, The Harm in Hate Speech, pp. 139−141.

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danger of offending the members of the attacked community arises, the opinion may become immediately subject to restriction. Indeed, due to the similar nature of rules, this might hold true in any Member State of the European Union, and it is considered as a kind of common European minimum standard of restricting hate speech. How shall we consider, for example, the drawings of Charlie Hebdo? Can we not find it justified to think that those cartoons incited to hatred against certain religious communities? If we base the necessity for restricting freedom of speech on the possible consequences generated by a communication – which is a very frequent approach in legal systems – then it is easy to think that the Charlie Hebdo drawings were considered not only insulting or defamatory but also inciting to hatred. This is not because ultimately the followers of one religion targeted by the drawings struck back but because, due to the drawings, hatred might have evolved even in the members of the majority against the followers of Islam, which may thus have had an impact on speech generating, confirming and supporting such hatred in a way which makes it liable to legal restriction. According to public opinion, those drawings ‘only’ defamed and insulted the religions they lampooned and thereby their followers. Yet it is possible to imagine a situation – and in European countries coping with the integration of ethnic minorities, this is not especially difficult – wherein the drawings might have provoked the hatred of (some members of) the majority society. But to judge the degree of hatred that necessitates the restriction of freedom of speech is the task of individual legal systems.

8.5.5 The Protection of Public Order Török concludes that the risk of violating public order arose in none of the cases deliberated by the ECtHR, not even if the statements of reasons of the judgments make significant references to it.52 That is, it is not very likely that Tyrolean Catholics would have attacked the screening by the Otto-Preminger-Institut en masse, nor is it likely with regard to the British Christians that the film on St Theresa of Avila (Wingrove), if marketed, would have led to street riots. Although one might tend to agree with Török on this, this does not mean, and neither does he claim it, that in theory blasphemy would not or could not endanger public order. 52

Török, ‘Can religions or religious people be protected?’, pp. 518–519.

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After the Charlie Hebdo drawings there would have been a stronger chance of a situation endangering public order (let us not forget about the fact that even turning a waste bin upside down or publicly slapping somebody in the face may breach the public order, and even less is sufficient to endanger it). In the tense situation after 7 January 2015, it is easy to imagine a situation wherein Muslims living in France or communities hostile to them endangered ordre public; in the future, a repeat occurrence of such tense situations in Europe is not at all unlikely. It is sufficient for a demonstration to get out of hand and new blasphemous cartoons to be published at an unfortunate moment. In such a situation, basically different from situations analysed by the ECtHR, what would be the response to the question of whether the risk of endangering public order is a sufficient reason for restricting freedom of speech? At the same time, if we take the impact of the opinion expressed as the point of departure, as the consideration which provides grounds for a restriction, and assert that opinions potentially triggering violent acts can be restricted in order to prevent the risk of disturbing public order and, beyond that, endangering individual rights (since the protection of public order does not mean the protection of waste bins from being turned upside down but the protection of individuals wishing to benefit from public order and so, if public order is exposed to a grave danger, the rights of the individual – their dignity, physical integrity and safety – will also be at risk), then finally we will arrive at a point at which the specific sensitivity of the followers of the given religion might determine the degree of restriction. If some Muslims are willing to pick up a Kalashnikov because of a caricature while Christians peacefully tolerate it, then, irrespective of this, the degree of the restriction should be adjusted to the former in order to protect public order. We are sure that this is not acceptable as such, at least at the level of principles relating to freedom of speech; at the same time it is also clear that the protection of public order might provide grounds for various restrictions of liberties.

8.6

The Question of Rights and the Accompanying Responsibility

Does freedom of speech belong to everybody (is it granted to those full of hatred and also to the blasphemous), and is it exercised independently from morality? The ideal of ethical freedom of speech would expect mutual tolerance – from the holder of the right, it would expect selfrestriction and, from the one offended, it would expect rising above the offence. This would be nice, but what if it does not work in practice?

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Dworkin was an adamant promoter of freedom of speech and an enemy even of those laws restricting hate speech, but this is what he said concerning the Danish cartoons: The British and most of the American press have been right, on balance, not to republish the Danish cartoons that millions of furious Muslims protested against in violent and terrible destruction around the world. Reprinting would very likely have meant – and could still mean – more people killed and more property destroyed. It would have caused many British and American Muslims great pain because they would have been told by other Muslims that the publication was intended to show contempt for their religion, and though that perception would in most cases have been inaccurate and unjustified, the pain would nevertheless have been genuine.53

Kahn takes a similar standpoint in his articles, analysing the American legal approach to extreme, inciting, incendiary speech from a historical perspective. As he puts it, there is a difference between the coverage of the protection under the First Amendment and the responsibility of a newspaper.54 The decisive majority of American papers refused to publish the Danish cartoons in 2005–2006 – as also happened with the drawings of Charlie Hebdo in 2015 – and due to this alleged ‘cowardice’ sharp criticism was targeted at the American press and European press taking a similar approach. For the editors, it was not self-censorship but an editorial decision. The argument in support of this was sometimes the safety of the staff working for the papers, but in most cases they explained this attitude as wanting to avoid offending religious communities. Many are of the opinion that not publishing the drawings is a cowardly and unethical decision (according to this, there is a moral obligation to express an opinion in such a situation), which would not have expressed agreement with the content of the opinion but solidarity with the staff of the magazine. The debate, in this case, is no longer about the permissibility of blasphemy. According to Kahn, in the American legal culture the publishers of extreme opinions are not the ‘heroes’ of freedom of speech but its byproducts to be tolerated. Judge Holmes did not write a dissenting opinion in Abrams v.  United States55 because he celebrated the communist

53 54 55

Ronald Dworkin, ‘The right to ridicule’, New York Review of Books, 23 March 2006. Kahn, ‘The Danish cartoon controversy’, 163. Abrams v. United States, 250 US 616 (1919).

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distributing flyers in 1919 but because ‘the puny anonymities’ do not pose any danger to society.56 If we apply a somewhat artificial analogy, the only reason that the caricaturists of Charlie Hebdo might deserve an increased respect is their unwillingness to give up their freedom of speech, even in the shadow of a deadly threat, but this does not make their opinion, which gravely offended several religious communities, worthy of celebration. In contrast, according to Flemming Rose, who was the first to publish the Danish cartoons, it is no less than a moral obligation to combat Islam, that is the responsibility is just the opposite and makes it a necessity to publish cartoons offending this community.57 The insult of religious feelings is the price Muslims have to accept and pay in return for being accepted into European societies.58 This idea is very far from the concept of ‘responsible freedom of speech’. The position of the White House, expressed after the terrorist attacks committed following the Muhammad video posted on YouTube, was confirmed by the press secretary in a statement in 2012 which underlined the responsibility of the media: Well, we are aware that a French magazine published cartoons featuring a figure resembling the Prophet Muhammad, and obviously, we have questions about the judgement of publishing something like this. We know that these images will be deeply offensive to many and have the potential to be inflammatory. But we’ve spoken repeatedly about the importance of upholding the freedom of expression that is enshrined in our Constitution. In other words, we don’t question the right of something like this to be published; we just question the judgement behind the decision to publish it.59

The publicist of Time magazine expressed a view with a similar content, but he formulated his ideas more unambiguously: Okay, so can we finally stop with the idiotic, divisive, and destructive efforts by ‘majority sections’ of Western nations to bait Muslim members with petulant, futile demonstrations that ‘they’ aren’t going to tell ‘us’ what can and can’t be done in free societies? Because not only are such Islamophobic antics futile and childish, but they also openly beg, for the 56

57 58 59

Robert A. Kahn, ‘Flemming Rose, the Danish cartoon controversy, and the new European freedom of speech’ (2010) 40 California Western International Law Journal 253, 275. Kahn, ‘Flemming Rose’, 270−279. Kahn, ‘The Danish cartoon controversy’, 165. Press Briefing by Press Secretary Jay Carney, 19 September 2012, available at www .whitehouse.gov/the-press-office/2012/09/19/press-briefing-press-secretary-jay-carney91912.

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andrás koltay very violent responses from extremists their authors claim to proudly defy in the name of common good.60

However, is it consistent to protect the right but not to protect the practice and even to condemn the editorial decision? Is it realistic that the judgement of the possibility of exercising one’s right and the judgement of exercising it in actual practice are not necessarily interlinked but are separable? According to some positions ‘one cannot defend the right without defending the practice’.61 Meaning that if the legal system provides freedom of speech, including freedom of blasphemy, then it should come as no surprise to anybody that somebody exercises this liberty. Jonathan Chait thinks that legal prohibition and moral condemnation at the level of society will lead to a similar outcome, the failure to publish opinions. In other words, in addition to granting the right, the opportunity to exercise it also has to be granted, and if somebody does exercise this right (the right to blaspheme) then we must not condemn them for this.62 Of course, a similar question can be raised as regards the protection to be granted for religious people. As we have seen, ridiculing, offensive cartoons of Jesus Christ or the Prophet Muhammad do not prevent Christians and Muslims from exercising their rights to freedom of religion. But are we sure that this is so? We grant a right, but afterwards we can attack, even in an aggressive manner, the subject of the right (the belief held)? Does preventing somebody from exercising the right to freedom of religion mean setting a church on fire only and not more? Does granting the right not mean granting in practice tolerance, understanding and acceptance towards the one exercising this right? If there is a right to freedom of speech, is it accompanied by an obligation to tolerate differing opinions, which protects the one exercising the right to free speech and is imposed on others? At the same time, we must not forget about the fact that an aggressive attack against one’s opinion is also an opinion itself; in addition, it

60

61

62

Bruce Crumley, ‘Firebombed French paper is no free speech martyr’, Time, 2 November 2011, available at http://world.time.com/2011/11/02/firebombed-french-paper-a-victimof-islamistsor-its-own-obnoxious-islamophobia. Jonathan Chait, ‘Charlie Hebdo and the right to commit blasphemy’, Nymag.com, 7 January 2015, available at http://nymag.com/daily/intelligencer/2015/01/charlie-hebdo-and-theright-to-commit-blasphemy.html. Ibid.

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is expressed in an important issue of public interest, hence the presupposition is that it is covered by the protection of the freedom of speech. It is within the confines of freedom of speech to attack others’ opinions (religious conviction or cultural war fought in the disguise of a religious conviction, or somebody’s blasphemous opinion) in an aggressive and sometimes offensive and insulting manner by expressing another opinion. However, there might be situations when the non-legal restriction of freedom of speech, or more exactly, the real opportunities to speak (naming and shaming in public, undermining one’s professional reputation by otherwise legally protected opinions, etc.) might inflict more severe existential or psychological damage on someone than, let us say, a court admonition at the end of criminal proceedings, which we traditionally consider as an undesirable restriction of freedom of speech. Is it the right approach not to pay respect to opinions by providing an opportunity for them to ‘enter’ the competition in the market of ideas (à la Mill and Holmes)? Arriving at the conclusion via a different route, I would say that, for me, Chait’s argumentation does not seem unacceptable. He argues that if we protect the right, we also have to protect to some extent its practical enforcement (the outcome of its implementation), that is, it is not possible to allow the holders or disclosers of opinions protected by law to be silenced by non-legal instruments. Ethics-based freedom of speech will remain an ethical norm urged by many, including the White House, but it is not enforceable. Those who are unethical while exercising this right can be responded to in several ways. Some of these responses are prohibited by law; others are not. It is clearly prohibited, for example, to make a public demonstration impossible by making loud noises. However, it is not prohibited to attack in articles, essays and journalism what was said or voiced at the demonstration. Applying it to the area of blasphemous cartoons, hanging the drawings on the walls of a mosque would be prohibited, to disturb a religious meeting with them even more stringently prohibited, but it is not necessarily prohibited to publish them in magazines. Even so, we can imagine certain borderline situations, which are very difficult to decide upon. It would be very difficult to provide a consistent definition, with respect to freedom of speech, of where the border of the mandatory minimum respect for different opinions, lifestyles and exercising liberties lies if we wanted to handle this question legally; as such, it is more appropriate for this tolerance to remain a moral command instead of becoming a legal norm.

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8.7 Conclusions The permanent, systematic insult of religions, of any religion or the systematic insult of the feelings of religious people before the broad public have not been typical in Europe so far. Militant secularism, which in Europe is typical primarily of the French (which, however, is not strong enough to make Charlie Hebdo a magazine read by the masses without a brutal advertisement, namely the massacre), disregards the multifaceted, diverse approaches to the restriction or permission of blasphemy existing in Europe. European legal systems settle this question in various different ways, and there is no common uniform European response to blasphemy from the perspective of the freedom-of-speech law, neither at international nor at state level. The legal protection of the adherents of religions is not in opposition to the European concept of freedom, as still quite a few European states kept their ancient or newly formulated blasphemy laws; at the same time, the application of such provisions is usually very rare; these rules are in most cases, though not exclusively, fossilised provisions stemming from the past. However, this does not exclude the theoretical possibility that, in future, existing provisions will be applied more frequently, nor does it exclude the introduction of new provisions in countries where such provisions do not exist, even if it does not seem likely at this moment. A question to be put prior to the decision on the restriction of blasphemy is how we can define religion in a statement of facts and/or if we are able to raise sufficiently strong arguments to justify religion deserving stronger protection than other convictions and personality traits. As regards certain individual aspects of restriction, we can clearly declare that the protection of religions and churches against defamatory, offensive opinions cannot serve as grounds for restricting freedom of speech. Whether the protection of religious people, the adherents of religions, can provide grounds for the restriction of freedom of speech is already a more difficult issue. I would argue that, on the basis of European legal traditions and the ‘general concept’ of freedom of speech in Europe (a common minimum standard of freedom of speech, most eminently expressed through the case law of the ECtHR), it is not per se unthinkable in every single European state; it is a different question whether, from the perspective of the specific internal structure and traditions of freedom of speech in individual legal systems and the social problems of the state concerned, it is appropriate to introduce or maintain such a restriction.

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If we take the protection of religious feelings not as an aspect of freedom of religion but as an aspect of human dignity, we can enlist stronger, more powerful arguments in favour of restricting freedom of speech, because religious conviction is strongly linked to human dignity. However, if we wish to protect the democratic public sphere and debate on public affairs, then in no event can we restrict in general the content of a blasphemous opinion; theoretically what we can do is to impose potential restrictions on the manner in which the opinion is expressed, at most. Rules governing the restriction of hate speech are also applicable in order to protect members of religious communities. The question is what we consider to be hate speech: How do we define the statement of facts in relation to restriction? Do we consider only incitement against communities or incitement to hatred as hate speech, or can we consider group defamation, which generally causes less serious harm than incitement, as hate speech? In decisions on the restriction of freedom of speech, we typically find maintaining public order to be a less legitimate interest. Nevertheless, if we start out from the impact of the opinion expressed and say that opinions potentially triggering violent acts can be restricted in order to prevent the danger of harming public order and, in addition, to prevent the danger of violating individual rights then, in a tense social situation, this consideration might be given more attention. But as we realise that it would be extremely difficult to determine, with respect to freedom of speech, where the border of the mandatory minimum respect for different opinions, lifestyles and exercising liberties lies, perhaps we can accept that it would be more appropriate to propagate the idea of responsible free speech and strengthening the ethical foundations of the public discourse in various ways.

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PA RT   I V European Court of Human Rights and Blasphemy

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9 At the Deep End of the Pool Religious Offence, Debate Speech and the Margin of Appreciation before the European Court of Human Rights

Tom   Lewis

9.1

Introduction

Against the backdrop of the recent tragic events surrounding controversies over cartoon portrayals of the Prophet Muhammad, this chapter examines the approach of the leading human rights court in Europe, the European Court of Human Rights (the Court), to expression that, due to an element of ridicule or insult to objects of veneration, may cause offence to the sensitivities of religious believers.1 (It will not examine the approach of the Court to ‘hate speech’ whereby hatred of or discrimination or violence against a particular national, ethnic or religious group of persons is incited or advocated.)2

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The 7 January 2015 terrorist attacks on the offices of the satirical magazine Charlie Hebdo, killing twelve people and injuring eleven, were in retaliation for the magazine’s cartoon depictions of the Prophet Muhammad; see www.bbc.co.uk/news/world-europe-30708237. For differing views on the 2005 ‘Danish cartoons controversy’ in which the newspaper Jyllands-Posten published twelve cartoons of the Prophet Muhammad, leading to violent reactions, see, e.g., essays by Tariq Modood et al. in ‘The Danish cartoons affair: Free speech, racism, Islamism and integration’ (2007) 44:5 International Migration 3; David Keane, ‘Cartoon violence and freedom of expression’ (2008) 30 Human Rights Quarterly 845; Robert Post, ‘Religion and freedom of speech: Portraits of Mohammad’ (2007) 14:1 Constellations 77; and Ian Cram, ‘The Danish cartoons, offensive expression and democratic legitimacy’, in Ivan Hare and James Weinstein (eds.), Extreme Speech and Democracy (Oxford: Oxford University Press, 2009), p. 311. See, e.g., Garaudy v. France, Application no. 65831/01, decision of 24 June 2003; Leroy v. France, Application no. 36109/03, judgment of 2 October 2008; Norwood v. the UK, Application no. 2131/03, decision of 16 November 2004; and M’Bala M’Bala v. France, Application no. 25239/13, decision of 20 October 2015. Admittedly the distinction may often not be an easy one to draw; see, e.g., Perinçek v. Switzerland, Application no. 27510/ 08, 15 October 2015. See further Jeroen Temperman, ‘Blasphemy, defamation of religions and human rights law’ (2008) 24:4 Netherlands Quarterly of Human Rights 517; Modood et

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A review of the Court’s early free speech case law reveals a propensity to subject state’s restrictions on political expression and expression contributing to public debate on matters of public concern to intense scrutiny. This is in line with a view that freedom of expression is valued as a human right primarily on the consequentialist grounds that it is vital to the operation of effective political democracy. On the other hand, states’ restrictions on speech that cannot so easily be seen as part of current debate (for example, artistic speech that portrays objects of religious veneration in an offensive way) have been subjected to far less rigorous levels of scrutiny – an approach which has been enabled by the far greater latitude, or margin of appreciation, afforded to states by the Court in such cases.3 There may be signs, in more recent cases, that the Court has reappraised this approach; that it has become more willing to afford protection to forms of speech that may offend religious feelings on the apparent proviso that the expression can be seen, in one way or another, as part of some kind of public debate.4 This protection of debate speech is surely to be welcomed in terms of the health of democratic polity and the right to freedom of expression. However, it will be suggested that, by continuing to use the concept of ‘public debate’ as its lodestone, the Court has left exposed those who may not particularly wish to engage in ‘public debate’ yet nevertheless wish to express themselves, albeit sometimes with peculiar messages or in unusual forms.5

9.2 Article 10 of the European Convention on Human Rights Freedom of expression is protected by Article 10 of the European Convention on Human Rights (ECHR), which provides that:

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al., ‘The Danish cartoons affair’. See also Richard Moon’s chapter in this volume, ‘Religion, Hate Speech, and the Difficulty in Separating Attacks on Beliefs from Attacks on Believers’. See Otto-Preminger-Institut v. Austria, Application no. 13470/87, judgment of 20 September 1994; Wingrove v.  the UK, Application no.  17419/90, judgment of 25 November 1996; İ.A. v. Turkey, Application no. 42571/98, judgment of 13 September 2005. Admittedly there is no single case in which the Court has clearly renounced its earlier position in relation to religiously offensive artistic speech, but the following authorities hint at change in approach:  Klein v. Slovakia, Application no. 72208/01, judgment of 31 October 2006; Giniewski v. France, Application no. 64016/00, judgment of 31 January 2006 (both of which relate to religiously offensive speech); Vereinigung Bildender Künstler, Application no. 68354/01, judgment of 25 January 2007 (which relates to artistic speech that was not religiously offensive). Mouvement Raëlien Suisse v.  Switzerland, Application no.  16354/06, judgment of 13 July 2012.

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1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers … 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Thus freedom of expression is accorded protection under Paragraph 1 of Article 10 but may be limited under Paragraph 2. However, any such restriction, if it is not to violate the Article, must be in pursuit of one of the legitimate aims listed,6 it must be ‘prescribed by law’7 and it must be ‘necessary in a democratic society’. This final requirement has been held by the Court to mean that any restriction must ‘correspond to a pressing social need’, must be proportionate to whichever legitimate aim is being pursued and the reasons given for the interference must be ‘relevant and sufficient’.8 As a consequence of Article 10’s structure the Court is required, one way or another, to perform a balancing exercise in which the right is weighed against the reasons for restriction. Indeed, the Court has said on numerous occasions that ‘inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of

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The list of legitimate aims in Article 10(2) is lengthier than in Paragraphs 2 of Articles 8, 9 or 11. This is a basic ‘rule of law’ requirement: any restriction must be both accessible and sufficiently precise so as to enable the individual ‘to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail’; see Sunday Times v. the UK, Application no. 6538/74, judgment of 26 April 1979, para. 49. See, e.g., Stoll v. Switzerland, Application no. 69698/01, judgment of 10 December 2007, para. 101. For a recent formulation, see Perinçek v. Switzerland, Application no. 27510/ 08, judgment of 15 October 2015, para. 196 iii. Admittedly this test has not been applied with any consistency across the range of Article 10 cases; see Helen Fenwick and Gavin Phillipson, Media Freedom under the Human Rights Act (Oxford: Oxford University Press, 2006), p. 93; Eva Brems and Laurens Lavrysen, ‘Don’t use a sledgehammer to crack a nut: Less restrictive means in the case law of the European Court of Human Rights’ (2015) 15:1 Human Rights Law Review 139.

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the community and the requirements of the protection of the individual’s human rights’.9 The Court has repeatedly emphasized the importance, or metaphorical ‘weight’, of freedom of expression. In virtually every Article 10 case on which the Court has given judgment since its seminal decision in Handyside v.  the UK in 1976, it has stressed that ‘[f]reedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man’.10 This statement seems to capture the essence of the three well-known philosophical justifications that have been advanced over the centuries to justify freedom of speech.11 These can broadly be divided into consequentialist arguments which stress the overall benefits to society that will accrue if expression is free and ‘rights-based’ arguments which focus on the benefits to the individual ‘speaker’ and/or ‘listener’. The first argument alluded to by the Court in the Handyside passage is that freedom of expression is vital to the operation of democracy.12 It is necessary not only so that voters can know what their representatives stand for and to exercise their democratic responsibilities in an informed way but also, as Lord Steyn has put it, because:

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See, e.g., Soering v. the UK, Application no. 14038/88, judgment of 7 July 1989, para. 89; Hatton v. the UK, Application no. 36022/97, judgment of 8 July 2003, para. 86. See also Rolv Ryssdal, ‘Opinion: The coming of age to the European Convention on Human Rights’ (1996) European Human Rights Law Review 18, p. 26. For a collection of essays covering the debate on human rights and balancing, see Grant Huscroft, Bradley Miller and Grégoire Webber (eds.), Proportionality and the Rule of Law (Cambridge: Cambridge University Press, 2014), notwithstanding the normative controversy in relation to balancing and human rights, it is unavoidably part of the Article 10 adjudicative process. Handyside v.  the UK, Application no.  5493/72, judgment of 7 December 1976, para. 49. Subsequent iterations refer to ‘each individual’s self-fulfilment’ rather than that of ‘every man’. For accounts of these arguments – and their frailties – see, e.g., Frederick Schauer, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press, 1982) and Eric Barendt, Freedom of Speech, 2nd edn (Oxford: Oxford University Press, 2005). The most well-known proponent of the argument from democracy is Alexander Meiklejohn, ‘Free speech and its relation to self government’, in Alexander Meiklejohn, Political Freedom:  The Constitutional Powers of the People (Oxford:  Oxford University Press, 1965); and ‘The First Amendment is an absolute’ (1961) Supreme Court Review 245. See also Cass Sunstein, ‘Political speech and the two-tier First Amendment’, in Cass Sunstein, Democracy and the Problem of Free Speech (New  York:  Free Press, 1995). For versions of the theory which focus on ‘public discourse’ that enables persons to experience the ‘value of self government’ and the ‘value of authorship’ therein, see Robert Post, ‘Participatory democracy and free speech’ (2011) 97:3 Virginia Law Review 477, 481; James Weinstein, ‘Participatory democracy and free speech’ (2011) Virginia Law Review 497.

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The free flow of information and ideas informs political debate. It is a safety valve: People are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.13

The second theory suggested by the Handyside dictum is that freedom of expression is essential for societal progress, an argument most famously associated with John Stuart Mill, who argued that the attainment of truth is essential for societal development, and truth is likely to emerge only if discussion and debate are free.14 Speech should not be censored, Mill argued, because it is impossible to know, in advance, what the truth will turn out to be, and those who engage in ‘silencing of opinion’ are guilty of an ‘assumption of infallibility’.15 The final argument – or cluster of arguments – referred to in the passage from Handyside is more ‘rights based’ in that they stress the importance of freedom of speech to the individual. As rational, autonomous, communicative beings we can only make the most of our lives and adequately choose our path through life if we are free to express, and have expressed to us, the full range of views about the world.16 13

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R v. Secretary of State for the Home Department Ex parte Simms [2000] 2 AC 115 HL, 126. The argument from democracy is open to the objections, inter alia, that it will lead to a relative under-valuing of expression that does not obviously contribute to democratic debate, such as artistic speech; and that freedom of speech will be vulnerable to limitations imposed by democratically elected governments representing the majority, at the expense minorities; see, e.g., Barendt, Freedom of Speech, pp. 18–23; Schauer, Free Speech, pp. 40–46. See John Stuart Mill, ‘On Liberty’ (1859), in Stefan Collini (ed.), On Liberty and Other Writings (Cambridge: Cambridge University Press, 1989). See also John Milton, ‘Areopagitica: A speech for the liberty of unlicensed printing to the Parliament of England’ (1644), in Stephen Orgel and Jonathan Goldberg (eds.), John Milton:  A  Critical Edition of the Major Works (Oxford:  Oxford University Press, 1991), p.  236. See also the ‘free trade in ideas’ doctrine of Holmes, J., espoused in Abrams v. the US 250 US 616 (1919), 630–631: ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market’. The argument is open to many criticisms, not least that it overvalues intellectual debate at the expense of more emotional expression, such as art, and the problem with what is exactly meant by ‘truth’. See, e.g., Barendt, Freedom of Speech, pp. 9–13; Schauer, Free Speech, pp. 15–34. John Rawls, A Theory of Justice (Oxford:  Oxford University Press, 1971); Ronald Dworkin, Taking Rights Seriously (London:  Duckworth, 1977). See also Thomas Scanlon, ‘A theory of freedom of expression’ (1972) 1 Philosophy and Public Affairs 272, and his amendment of this theory in ‘Freedom of expression and categories of expression’ (1979) 40 University of Pittsburgh Law Review 519. These arguments seem more able to provide support for artistic expression than the arguments from truth or democracy, though they are open to the objection that free speech just merges with the vast range of other goods that foster people’s autonomy and self-fulfilment; see Barendt, Freedom of Speech, pp. 13–18; Schauer, Free Speech, pp. 56–59.

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These arguments used to justify and explain the legal protection of freedom of speech are necessary because it is almost always the case that the coercive powers of states are used to restrict expression that causes some form of perceived harm. It is rare that bland or anodyne expression is targeted. The right to freedom of expression becomes valuable in situations in which the speech at issue annoys or upsets, insults or endangers someone. Thus, in Handyside (and virtually every freedomof-expression case since) the European Court has asserted that Article 10 must be: applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.17

The Handyside case in which these dicta first appear concerned the conviction for obscenity of the UK publisher of the Little Red School Book, a guide for growing up aimed at teenagers which included sections giving practical advice on masturbation, sex and recreational drugs, all from an anti-authoritarian viewpoint. The publisher, Richard Handyside, was convicted, and copies of the book were forfeited. Handyside then applied to Strasbourg claiming a breach of Article 10, arguing inter alia that the book had been distributed widely in Europe (and other parts of the UK) without restriction, so its restriction in a single part of the UK could not be ‘necessary’. Despite its strong statements outlining the importance of freedom of expression, the Court held that Article 10 had not been breached – the restrictions were held to be a proportionate means to protect the morals of young people in England. Crucial to its judgment was the Court’s invocation of the so-called margin-of-appreciation doctrine under which deference to the domestic authorities was accorded: they were in a better position than an international court – whose jurisdiction is of a supervisory nature and subsidiary to that of states themselves – to strike the balance between freedom of expression and the protection of young persons’ morals. The Court said that: it is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from

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place to place. . . . By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.18

As a doctrine of judicial self-restraint, the margin of appreciation permits the state a ‘certain measure of discretion, subject to European supervision, when it takes legislative, administrative or judicial action in the area of a Convention right’.19 It has become a crucial component in the free-speech jurisprudence of the Court, applying at the stage where the proportionality of the restriction is assessed, in relation to the aim being pursued. Its effect is to place a ‘thumb on the scale’20 so that the state’s view of how the balance should be struck is given preferential weight.21 As indicated in the quoted passage from Handyside, one of the key determinants of the ‘width’ of the margin of appreciation is the degree of consensus that is perceived to exist across European states on the issue in question.

9.3

The Shallow End of the Pool?

Professor Conor Gearty has used the metaphor of a swimming pool to explain the concept of judicial deference under the UK’s Human Rights Act. A version of this metaphor might be apt to help describe and explain the European Court’s case law on expression rights and the margin of appreciation. Those areas where judges feel assured in adjudicating, where they feel that they have a clear understanding of the underpinning principles, might be labelled the ‘shallow end’. Here judges perceive themselves to be ‘in a position to thrash about with confidence, managing the issue 18 19 20

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Handyside, para. 48 (emphasis added). Harris et al., The Law of the European Convention on Human Rights, p. 14. Andrew Geddis, ‘Don’t say God on the radio’ (2004) European Human Rights Law Review 181, 189. Whilst the margin of appreciation was a judicially created doctrine, originally having no basis within the text of the Convention itself, Protocol 15 ECHR, Article 1 (24 June 2013, not yet in force) will provide textual basis when it enters into force. See further on the doctrine:  Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford: Oxford University Press, 2012); Yutaka AraiTakehashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Antwerp: Intersentia, 2002); James Sweeney, ‘Margins of appreciation: Cultural relativity and the European Court of Human Rights in the post-Cold War era’ (2005) 54:2 International and Comparative Law Quarterly 459; George Letsas, ‘Two concepts of the margin of appreciation’, in George Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford: Oxford University Press, 2007), p. 80.

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before them with assurance and skill’.22 They are prepared to make strong judgments in defence of freedom of expression as against the restrictive measures imposed by states. In contrast, those areas where they feel less confident – on their ‘tip-toes’ or even ‘entirely out of their depth’23 – they are much more likely to defer, or afford a wide margin of appreciation, to the defendant state. Notwithstanding the apparent acceptance of all three of the broad underpinning free speech arguments in the passage from Handyside cited earlier (Section 9.2), it is clear from the Court’s case law that it is the argument from democracy that bestows upon freedom of expression its real value. This should perhaps come as no surprise, since it chimes with the view that the European Convention system goes hand in hand with democratic governance. The Preamble to the Convention itself states that human rights are ‘best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend’.24 In a series of early cases, the European Court set out its view that expression that contributes to democratic debate, and in particular press freedom, deserves a high level of protection.25 For example, in Lingens v. Austria, which concerned the defamation conviction of a journalist for making insulting comments about the Federal Chancellor in a currentaffairs magazine against a backdrop of an election and wider public debate about the legacy of Nazism in Austria, the Court, in finding a breach of Article 10, stated that ‘freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention’.26 The Court continued, 22

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Conor Gearty, Principles of Human Rights Adjudication (Oxford: Oxford University Press, 2003), pp. 121–122. Gearty’s metaphor consists of a pool whose shallow end is marked ‘legal principle’ and whose deep end is marked ‘public policy’. For a critique, see Aileen Kavanagh, Constitutional Review under the Human Rights Act (Cambridge:  Cambridge University Press, 2009), p.  186, in which she argues that cases are seldom so easily categorised. Gearty, Principles of Human Rights Adjudication, p. 122. Preamble to the European Convention on Human Rights. See, e.g., Alastair Mowbray, ‘The role of the European Court of Human Rights in the promotion of democracy’ (1999) Public Law 703; Mowbray, ‘Contemporary aspects of the promotion of democracy by the European Court of Human Rights’ (2014) 20:3 European Public Law 469; Gearty, Principles of Human Rights Adjudication. Possibly the leading case is Sunday Times v. the UK, Application no. 6538/74, judgment of 26 April 1979, concerning injunctions preventing publication of articles urging settlement in the thalidomide litigation. Lingens v. Austria, Application no. 9815/82, judgment of 8 July 1986, para. 42.

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Whilst the press must not overstep the bounds set, inter alia, for the ‘protection of the reputation of others’, it is nevertheless incumbent on it to impart information and ideas on political issues just as on those in other areas of public interest. Not only does the press have the task of imparting such information and ideas: The public also has a right to receive them…27

The Court also held that ‘[f]reedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders’.28 In later cases the Court has added that freedom of the press is a crucial underpinning of democracy, since it acts as a ‘vital public-watchdog’.29 Furthermore ‘it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society’.30 The Court has not restricted its heightened levels of protection to narrowly political speech. It has stressed that it is important for democracy that other matters of public concern are fully discussed too:  ‘There is no warrant in its case-law for distinguishing … between political discussion and discussion of other matters of public concern’.31 Of particular importance has been the Court’s repeated insistence that when it is looking at impugned expression it is necessary to have regard to the broader public debate that is taking place in the society in question.32 One of the strongest examples of the Court’s ‘activist’ approach is perhaps Jersild v.  Denmark concerning the conviction of a television journalist for the broadcast of an interview he conducted with extremist right-wing youths in which seriously offensive racist remarks were uttered. The Danish Government argued, inter alia, that Jersild had not actively

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Lingens, para. 41–42. See also, e.g., Sunday Times, para. 65. Lingens, para. 42. Goodwin v. the UK, Application no. 17488/90, judgment of 27 March 1996, para. 39, which concerned an order to reveal journalistic sources, posing a threat to the ability of the press to carry out its ‘vital watch-dog role’; Bladet Tromsø v. Norway, Application no. 21980/93, judgment of 20 May 1999, which concerned defamation findings in respect of allegedly sensationalist newspaper reports of criminal seal hunting, a topic on which there was a great deal of controversy; Jersild v. Denmark, Application no. 15890/89, judgment of 23 September 1994, para. 35. Castells v. Spain, 11798/85, judgment of 23 April 1992, para. 43. Thorgeir Thorgeirsson v. Iceland, Application no. 13778/88, judgment of 25 June 1992, para. 63, a case concerning a criminal conviction of a journalist for defamation relating to articles making allegations of police brutality. See, e.g., Lingens, para. 43; Bladet Tromsø v. Norway, para. 63.

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dissociated himself from or expressly criticized or counter-balanced the youths’ racist views. The Court, however, stated that Article 10, at least in relation to journalistic expression on matters of public interest, protects not just the content of expression but also the manner in which the message is put across.33 The strong message to emerge from these cases is that political debate and wider debate on matters of public concern, and in particular freedom of the press, is viewed by the Court as vital for the maintenance of effective political democracy. Democracy itself is seen to be inextricably linked to effective human rights protection. In these ‘debate-speech’ cases the Court clearly demonstrates its acceptance of the instrumental argument from democracy as a powerful conceptual undergirding to freedom of expression. The margin of appreciation afforded in such cases is correspondingly narrow. As the Grand Chamber of the Court has stated recently, the breadth of the margin of appreciation ‘is defined by the type of the expression at issue and in this respect … there is little scope under Article 10(2) for restrictions on debates on questions of public interest’.34 Clearly, with regard to state restrictions on expression that contributes to public debate on matters of public concern, the Strasbourg judges perceive themselves to be at the shallow end of the pool. There is a common European consensus around the importance of this type of speech to the preservation of that political democracy on which all human rights depend and which itself is supported by a strong instrumental grounding in the argument from democracy.35 With their feet planted firmly on the bottom of the pool they are able to make strong decisions whereby the proportionality of state restrictions on debate speech are subject to intense scrutiny.36 However, there is a problem with an approach that values speech because of the contribution it makes to democracy, for it might leave a lacuna of protection for expression that does not contribute, 33 34

35

36

Jersild, para. 31 (emphasis added). Animal Defenders International v. the UK, Application no. 48876/08, judgment of 22 April 2013, para. 102. See also Perinçek v. Switzerland, Application no. 227510/08, judgment of 15 October 2015, para. 197 (emphasis added). As Fenwick and Phillipson comment, the ‘European Court has put itself very firmly indeed in the consequentialist, functionalist camp’, Fenwick and Phillipson, Media Freedom, p. 72. There are some notable exceptions to this rule, for example, restrictions on broadcast political advertisements which are imposed in order to protect the integrity of the democratic process itself – see Animal Defenders International v. the UK; see Tom Lewis, ‘From activism to self restraint: The strange case of the European Court’s volte-face on broadcasting bans on political advertising’, in András Koltay (ed.), Media Freedom and Regulation in the New Media World (Budapest: Wolters Kluwer, 2014).

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in a direct way, to public debate yet which we might nevertheless consider valuable.37

9.4

. . . and the Deep End

In a series of cases from the 1990s and 2000s involving restrictions placed on artistic expression in order to prevent offence being caused to religious believers the Court made it clear that, in such matters, the margin of appreciation to be afforded to states was to be wide. In these cases, to return to our swimming pool metaphor, most of the Court’s judges regarded themselves to be very much at the deep end, with the result that states’ restrictions on artistic expression liable to offend religious feelings were subjected to extremely low levels of scrutiny.

9.4.1

Otto-Preminger-Institut v. Austria and Its Discontents

The case which set the course for the Court’s approach to cases involving artistic expression that causes offence to religious feelings was OttoPreminger-Institut v.  Austria, which concerned the banning of Werner Schroeter’s 1981 film Das Liebeskonzil (‘Council in Heaven’).38 The film itself was based on the eponymous 1894 play by Oskar Pannizar and is ‘framed’ with scenes from Pannizar’s 1895 trial for ‘crimes against religion’ in Munich, for which he was imprisoned.39 The film tells the story of God, Jesus and Mary conspiring to punish humankind for its immorality. Enlisting the support of the Devil, they come up with the idea of a sexually transmitted disease (syphilis), and the Devil then sends his daughter, Salome, to spread the infection by sexual contact, primarily with Church leaders. Six showings were scheduled at an art-house cinema run by the film organization the Otto-Preminger-Institut. An entry fee was to be charged and entry restricted to persons aged seventeen or more. The Institute publicised the screenings by mailing an information bulletin, outlining the

37 38

39

Schauer, Free Speech, p. 44; Barendt, Freedom of Speech, p. 18. Otto-Preminger-Institut v. Austria, Application no. 13470/87, judgment of 20 September 1994. See also the earlier case of Müller v. Switzerland, Application no. 10737/84, judgment of 24 May 1988. The play itself was not banned in Austria. It was available in bookshops without restriction and had been performed in Vienna and Innsbruck without prosecution, although in the latter performance some complaints had been made by private persons.

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plot, to its 2,700 members. Bulletins were also displayed in several shop windows and at the cinema itself. At the request of the Innsbruck Diocese of the Roman Catholic Church, statutory charges of ‘disparaging religious doctrines’ were brought. The authorities seized the film which, after judicial proceedings, was subject to forfeiture. The Institute applied to the European Court claiming a breach of Article 10. Given the Court’s ringing dicta in Handyside that Article 10 protects speech that ‘shocks, offends or disturbs’ (which was cited verbatim by the Otto-Preminger court), it might have been expected that it would succeed.40 This was not to be: By a majority of six votes to three the Court found no breach of Article 10. This outcome depended on three key, related steps in the Court’s reasoning. First, the Court held that there existed a ‘right’ of ‘citizens not to be insulted in their religious feelings by the public expression of views of other persons’.41 Whilst religious believers could not expect to be exempt from criticism or denial of their faith, nevertheless, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines.42

The Court went on to state that the opposition to or denial of another person’s beliefs might, in extreme cases, inhibit their freedom to hold such beliefs and, further, that the ‘respect for the religious feelings of believers as guaranteed in Article 9 could ‘legitimately be thought to have been violated by provocative portrayals of religious veneration’.43 40

41

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43

The European Commission on Human Rights had, by a majority of 13:1, found the ‘complete prohibition’ on the film through seizure and forfeiture to have been a disproportionate interference with the Institute’s Article 10 rights, para. 77. However, the earlier case of Müller v. Switzerland in which the Court had afforded a wide margin of appreciation to the state in relation to the confiscation for eight years of obscene paintings in order to protect morals, and in which the Commission had also found a violation, might have rung alarm bells. Otto-Preminger, para. 48. In this finding, the Court expressly drew on its reasoning in the earlier case of Kokkinakis v. Greece, Application no. 14307/88, judgment of 25 May 1993, in which it had been stated that the state could legitimately take measures to protect people from the ‘improper proselytism’ of others. Otto-Preminger, para. 47. It might be thought that the reference to the fact that it is the ‘manner’ in which beliefs are opposed that permits the state to intervene, as opposed to the content of the message, sits uneasily with the Court’s statement in Jersild that freedom of expression protects ‘not only the substance of the ideas and information expressed, but also the form in which they are conveyed’. Otto-Preminger, para. 47.

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Thus, significantly, Article 10(2) was held to provide a right not to be insulted in one’s religious sensibilities that was part and parcel of the Article 9 Convention right to freedom of religion or belief. The Court thus seemed to conjure a human right not to be subjected to insult on the ‘limitations side’ of the Article 10 balance, on a par with the Paragraph 1 free-speech right itself. The second crucial step in the Court’s reasoning came at the point in its deliberation where it considered whether the limitation was ‘necessary in [Austrian (or Tyrolean)] democratic society’. The Court stated that Article 10 includes an obligation ‘to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs’.44 In the third step in its reasoning, the Court, acknowledging that it was at the deep end of the pool, stated that a ‘certain margin of appreciation’ was to be left to the national authorities in assessing the necessity of interferences with freedom of expression, since it was ‘not possible to arrive at a comprehensive definition of what constitutes a permissible interference with the exercise of the right to freedom of expression where such expression is directed against the religious feelings of others’.45 This was the effective death knell for the Institute’s claim. The majority, having regard to the fact the ‘overwhelming majority’ of Tyroleans were Roman Catholics, found no breach of Article 10 in respect of either the seizure or the forfeiture of the film. The authorities, knowing far better the local conditions, had not overstepped their margin of appreciation in acting to ‘ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner’.46 The complex interplay of the findings that there existed a human right not to be subject to religious insult, that gratuitously offensive comments were an infringement of this right and could not contribute to public debate and that a margin of appreciation must be granted to the state were decisive to the result. The crucial margin of appreciation resulted in part from the fact that this area – religion and its ‘significance’ in society – was one on which 44

45 46

Otto-Preminger, para. 49 (emphasis added). For further comment on ‘gratuitous offense’, see the following sub-section. Otto-Preminger, para. 50. Otto-Preminger, para. 56.

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there existed no pan-European consensus. This was an issue on which the Court felt out of its depth. But the margin also resulted from the fact that the Court categorized religious sensitivities as part and parcel of the right to freedom of religion. Thus the case could be constructed as a direct balancing exercise between two equally important Convention rights rather than one in which freedom of expression had presumptive priority. As the majority put it, the case involved: weighing up … two fundamental freedoms guaranteed under the Convention, namely the right of the applicant association to impart to the public controversial views and, by implication, the right of interested persons to take cognisance of such views, on the one hand, and the right of other persons to proper respect for their freedom of thought, conscience and religion, on the other hand.47

In such cases of rights balancing, where neither right has putative priority over the other, the Court tends to afford a wide margin of appreciation on the basis that the national authorities are best placed to judge how the balance should be struck.48 Otto-Preminger, as a result of these findings by the Court, was therefore a kind of ‘perfect storm’ in margin of appreciation terms. Not only was the subject matter of the expression – religion and its ridicule – an issue about which there was a lack of consensus, this alone giving rise to a wide margin, but also the categorization of offence to religious feelings as being protected by Article 9 – placing it directly on the opposite side of the scales to Article 10 – widened the margin still further. Having framed the issue in this way, the Court, floundering in the deepest part of the pool, could do nothing other than find there to be no breach.

9.4.2 Gratuitous Offence The Court’s assertion that ‘gratuitously offensive’ remarks could constitute an ‘infringement’ of others’ rights and ‘therefore’ could ‘not contribute to any form of public debate capable of furthering progress in human affairs’ contains several troubling threads. First is the idea of ‘gratuitous offence’ itself, which must mean remarks causing offence ‘without good or assignable reason’.49 To categorise any kind of artistic expression as gratuitous 47 48

49

Otto-Preminger, para. 55 (emphasis added). See, e.g., Von Hannover v. Germany (No. 2), Application no. 40660/08, judgment of 7 February 2012, paras. 104–107; Fenwick and Phillipson, Media Freedom, p. 77. The Concise Oxford Dictionary, 5th edn (Oxford: Oxford University Press, 1964).

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might be thought to be problematic, especially given the role that artists have as social critics, holding a mirror up to society.50 In particular, the role of satire has been important in the development of European liberal democracies as a way of critiquing entrenched elites, abuse of power and the status quo.51 To classify the film Das Liebeskonzil (based, remember, on a satirical play about historical abuse within a powerful global organization and itself a comment on the censorship of that play at the behest of the very same organization) as gratuitously offensive is worrisome.52 The second troubling thread in this dictum is the Court’s assertion that gratuitously offensive expression must be an infringement of others’ rights. If we are here talking of human rights – in this case the right to freedom of religion under Article 9 – it is difficult to see how this right is infringed by such utterances. Certainly there are strong arguments that speech whereby a class of people is subjected to abuse or denigration on account of their race or religion or other characteristics ought to legitimately be proscribed. Persuasive arguments have been made that such hate speech constitutes an attack on fundamental Convention values such as dignity and that its criminalisation is necessary to preserve a climate of tolerance and pluralism and protect minorities.53 But there is a difference between the advocacy of religious hatred that would constitute incitement to discrimination, hostility or violence and merely risking causing offence through the mockery or ridicule of objects of religious veneration (as, allegedly, was likely in Otto-Preminger).54 In any event, as the three dissentient judges pointed out: 50 51

52

53

54

See, e.g., Paul Kearns, The Legal Concept of Art (Oxford: Hart, 1998). Jonathan Swift, Gulliver’s Travels (1726) (Ware:  Wordsworth, 1992); Voltaire, Candide, or Optimism (1759) (Trans. Theo Cuffe) (London:  Penguin, 2005); and the cartoons of James Gillray; see Richard Godfrey and Mark Hallett, James Gillray: The Art of Caricature (London: Tate Publishing, 2001). Ian Cram, ‘The Danish cartoons’, pp. 325–326; David Keane, ‘Cartoon violence’; Fenwick and Phillipson, Media Freedom, p. 490; Ilias Trispiotis, ‘The duty to respect religious feelings: Insights from European human rights law’ 19 (2013) Columbia Journal of European Law 499, p. 512. See, e.g., Garaudy v. France, Application no. 65831/01, judgment of 24 June 2003; Leroy v. France, Application no. 36109/03, judgment of 2 October 2008; Norwood v. the UK, Application no. 2131/03, judgment of 16 November 2004; M’Bala M’Bala v. France, Application no. 25239/13, 20 October 2015; Malcolm Evans, ‘From cartoons to crucifixes: Current controversies concerning the freedom of religion and the freedom of expression before the European Court of Human Rights’ (2010) 26 Journal of Law & Religion 345; Michael Ignatieff, ‘Respect the rules of the road’, in Lisa Appignanesi (ed.), Free Expression Is No Offence (London: Penguin, 2005), p. 128. In Otto-Preminger, the dissentient minority acknowledged, and indeed emphasized, that ‘tolerance works both ways and the democratic character of a society will be affected if

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tom lewis The Convention does not, in terms, guarantee a right to protection of religious feelings. More particularly, such a right cannot be derived from the right to freedom of religion, which in effect includes a right to express views critical of the religious opinions of others.55

Indeed, the idea that one person’s right to freedom of religion may somehow be limited by what another person says about the objects of one’s beliefs (rather than what they do) seems to be at odds with the natural meaning of religious freedom.56 The third problematic thread in the ‘gratuitous offence’ dictum relates to the assertion that because speech is (allegedly) gratuitously offensive it ‘therefore’ cannot contribute to any form of public debate leading to progress in human affairs. But it is surely impossible for a court, domestic or international, to make this call, which runs directly against the Millian notion that we cannot know, in advance, what speech will contribute to human progress.57 As David Pannick says, Established religion commands uncritical devotion from many of its followers, and so enjoys considerable power in religious societies … In such a climate, dissenting voices will inevitably struggle to make themselves heard. It is the task of the court to ensure that they are not silenced. No doubt Galileo, Copernicus and Spinoza offended religious feelings in their day, and were regarded as making no useful contribution to human knowledge.58

Highly charged, hyperbolic and offensive speech can be very effective in making a point.59 As the Court itself recognises in every free-speech case, the very essence of Article 10 is that it protects speech which may

55

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violent and abusive attacks on the reputation of a religious group are allowed’, para. 6. See further Temperman, ‘Blasphemy’, p. 531; Trispiotis, ‘The duty to respect’, p. 514. See dissent of Judges Palm, Pekkanen and Makarczyk, para. 6. See further, e.g., George Letsas, ‘Is there a right not to be offended in one’s religious beliefs?’, in Lorenzo Zucca and Camil Ungureaunu (eds.), Law, State and Religion in the New Europe: Debates and Dilemmas (Cambridge: Cambridge University Press, 2012), p. 239; Barendt, Freedom of Speech, p. 192; Fenwick and Phillipson, Media Freedom, pp. 77–78; Cram, ‘The Danish cartoons’; Trispiotis, ‘The duty to respect’. Post, ‘Religion and freedom of speech’; Steven Heyman, Free Speech and Human Dignity (New Haven:  Yale University Press, 2008), pp. 181–182; Cram, ‘The Danish cartoons’, p. 320. Mill, On Liberty. See further Niraj Nathwani, ‘Religious cartoons and human rights’ (2008) European Human Rights Law Review 489, p. 499. David Pannick, ‘Religious feelings and the European Court’ (1995) Public Law 7, 8. As has been recognized by the US Supreme Court in, e.g., Cantwell v. Connecticut 310 US 296 (1940) and Cohen v. California 403 US 15 (1971).

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‘shock, offend or disturb’ any sector of the population. It is even arguable that challenge to entrenched beliefs is beneficial for individual believers themselves, for it forces people into ethical confrontation, and the process of coming through such challenges might have the effect of strengthening faith rather than undermining it.60 Finally, and most pertinently for our present purposes, this ‘gratuitous offence’ dictum illustrates the Court’s adherence to the notion that freedom of expression has value for consequentialist reasons – because of the contribution that public debate makes to political democracy – an underpinning and foundational sine qua non of Convention rights protection as a whole. In this dictum, the Court used the terms ‘gratuitous offence’ and ‘therefore’ in conjunction so as to remove any possibility that the expression could be seen to constitute part of any public debate, with its concomitant margin of appreciation-narrowing propensities. In one fell swoop, the Court was able to whip away the protective blanket that speech acquires if it is classified as ‘public debate’. By simply adding in the criterion of gratuitousness, the Court effectively leached Article 10 of its protective power and, having thus defined itself into the deep end of the pool, could do nothing other than defer to the Austrian authorities.

9.4.3

Otto-Preminger’s Turbulent Progeny: Wingrove and İ.A.

Otto-Preminger-Institut has cast a long shadow, the Court having followed its approach in Wingrove v. the UK61 and İ.A. v. Turkey.62 Wingrove concerned a short video, Visions of Ecstasy, in which an actress dressed as a Carmelite nun and intended to represent St Teresa of Avila, engaged in erotic activities astride the prostrate body of the crucified Christ.63 The film was denied a certificate by the regulator on the grounds that it might be found by a jury to infringe the criminal law of blasphemy then

60

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Cram, ‘The Danish cartoons’, p. 323; Jeremy Waldron, ‘Mill and the value of social distress’ (1987) 35 Political Studies, 410, pp. 415–417. Wingrove v. the UK, Application no. 17419/90, judgment of 25 November 1996. For views in turn justificatory and critical of Otto-Preminger and Wingrove, see Paul Mahoney, ‘Universality versus subsidiarity in the Strasbourg case law on free speech:  Explaining some recent judgments’ [1997] European Human Rights Law Review 364; and Lord Lester of Herne Hill, ‘Universality versus subsidiarity: A reply’ [1998] European Human Rights Law Review 73. İ.A. v. Turkey, Application no. 42571/98, judgment of 13 September 2005. Other than in the credits, there was nothing in the film itself to indicate that the film, which was without dialogue, was in fact about St Teresa.

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in force.64 This in effect amounted to a blanket ban on legal distribution of the film. The Court, following its approach in Otto-Preminger, seemed to accept that the restriction pursued the legitimate aim of protecting the ‘rights of others’ and ‘more specifically’ provided ‘protection against seriously offensive attacks on matters regarded as sacred by Christians’.65 The Court held that the matter fell within the state’s ‘wide’ margin of appreciation in matters of religion on account of the absence of a ‘European conception of the “rights of others” in relation to attacks on their religious convictions’.66 This was especially so given the high threshold required for prosecutions in blasphemy;67 and the fact that the film made no attempt to explore the imagery beyond engaging the viewer in a ‘voyeuristic erotic experience’.68 The Court reiterated, though in slightly diluted form, the Otto-Preminger ‘gratuitous offence’ doctrine: ‘Amongst [the duties inherent in Article 10], in the context of religious beliefs, may legitimately be included a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profanatory’ and concluded that there was no violation since the authorities had not overstepped their margin of appreciation.69 İ.A.  v.  Turkey concerned a novel, The Forbidden Phrases, which conveyed the author’s views on theological and philosophical issues and contained comments on the life of the Prophet Muhammad, including,

64

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67 68

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In England and Wales, the offence of blasphemy, since abolished by the Criminal Justice and Immigration Act 2008, s. 79, applied only to Christianity and concerned expression ‘calculated (that is, bound, not intended) to outrage those who have an understanding of, sympathy towards and support for the Christian story and ethic, because of the contemptuous, reviling, insulting, scurrilous or ludicrous tone, style and spirit in which the subject is presented’; see Lemon and Gay News Ltd v. Whitehouse [1979] AC 617. The Racial and Religious Hatred Act 2006 introduced the new offence of inciting religious hatred. Wingrove, paras. 48 and 57. The Court declined to rule on the argument that blasphemy law was discriminatory, as it only protected Christianity and not other faiths, para. 50. The European Commission on Human Rights expressed the opinion that there had been a violation of Article 10 (by 14 votes to 2). Wingrove, para. 58. Significantly, perhaps, the Court in Otto-Preminger had only been prepared to concede a ‘certain’ margin of appreciation in such cases. The Court acknowledged (or claimed to) that European supervision was ‘all the more necessary given the breadth and open-endedness of the notion of blasphemy and the risks of arbitrary or excessive interferences with freedom of expression under the guise of action taken against allegedly blasphemous material’, yet nevertheless applied the margin of appreciation to the case. Wingrove, para. 60. See Sandy Ghandi and Jennifer James, ‘The English law of blasphemy and the European Court of Human Rights’ (1998) European Human Rights Law Review 430. Wingrove, para. 52.

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Look at the triangle of fear, inequality and inconsistency in the Koran: it reminds me of an earthworm. God says that all the words are those of his messenger. Some of the words, moreover, were inspired by a surge of exultation, in Aisha’s arms. . . . [G]od’s messenger broke his fast through sexual intercourse, after dinner and before prayer. Mohammad did not forbid sexual intercourse with a dead person or a live animal.

The publisher was convicted of ‘blasphemy against God, the Religion, the Prophet, and the Holy Book’. He was sentenced to two years imprisonment and a fine, which was commuted to a fine alone, equivalent to about 16 dollars. On the publisher’s application the Court found that the conviction pursued the legitimate aim of preventing disorder and protecting morals and the rights of others.70 On the question of whether the conviction was necessary in a democratic society, again the Court stated that there was a duty to ‘avoid expressions that are gratuitously offensive to others and profane’.71 A  ‘wider margin of appreciation’ was afforded on the basis that there was ‘no uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions’.72 The issue was about ‘weighing up the conflicting interests of the exercise of two fundamental freedoms, namely the right of the applicant to impart to the public his views on religious doctrine on the one hand and the right of others to respect for their freedom of thought, conscience and religion on the other hand’.73 The case involved, the Court said, not only comments that shocked and offended and provoked but an ‘abusive attack on the Prophet of Islam’, leading to believers feeling that they were the ‘object of unwarranted and offensive attacks’.74 Without any analysis of the proportionality of the criminal conviction in the case before it, merely noting the ‘insignificant fine imposed’ and the fact that the book was not seized, a majority of the Court held that the authorities had not overstepped their margin of appreciation, and the reasons they had given were relevant and sufficient.75

70

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İ.A., para. 22. See Tarlach McGonagle, ‘An ode to contextualization: İ.A. v. Turkey’ (2010) 1 Irish Human Rights Law Review 237. İ.A., para. 24. İ.A., para. 25. İ.A., para. 27. İ.A., para. 29. İ.A., para. 32. By a majority of 4:3.

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9.4.4

Being at the Deep End and Its Effect on the Level of Judicial Scrutiny

In Otto-Preminger, Wingrove and İ.A., the wide margin of appreciation afforded – the sense of judicial out-of-depth-ness – led to strikingly low levels of scrutiny of the proportionality of the state’s actions. In none of these cases was it probable that anyone likely to be offended would have watched or read the material at issue.76 Any offence that might potentially have been caused to believers was almost certain to have been a kind of ‘secondary offence’, that is offence at the knowledge that others were seeing or reading the material rather than direct offence caused by seeing it or reading it themselves. This makes the Court’s assertion that the insulting portrayals of objects of religious veneration might inhibit the exercise of the right to freedom of religion even more untenable.77 Moreover, in none of the cases was any evidence presented or considered about actual offence caused or likely to be caused: the Court simply accepted the assertions of the domestic authorities on this question. Both Otto-Preminger and Wingrove concerned prior restraint – a form of restriction that, in journalistic speech contexts, the Court regards as being especially dangerous and therefore requiring its ‘most careful scrutiny’.78 İ.A., by contrast, did not involve prior restraint – or even a seizure of the books in question – but rather a criminal penalty. Whilst ultimately only a small fine was imposed, there was still a danger, as the dissentient judges noted, that the prosecution would have a ‘chilling effect’ liable to discourage publishers from producing books that were ‘not strictly conformist or “politically (or religiously) correct”’, yet the majority did not acknowledge this.79 In all three cases, the restrictions were imposed on artistic works in order to protect religious feelings. However, in not one of them 76

77

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Otto-Preminger dissents of Judges Palm, Pakkanen and Makarczyk, paras. 9–11; Wingrove dissent of Judge De Meyer, para. 3; İ.A. dissents of Judges Costa, Cabral Barreto and Jungwiert, para. 2. Joel Feinberg argues that the cause of offence is a very poor justification for repressive action by the state in any event, yet the case for restricting behaviour on the grounds of secondary offence is even more tenuous. Joel Feinberg, The Moral Limits of the Criminal Law: Offense to Others (Oxford: Oxford University Press, 1985), p. 33. Observer and Guardian v.  the UK, Application no.  13585/88, judgment of 26/11/1991, para. 60; Wingrove dissent of Judge De Meyer, para. 3, who said that the careful scrutiny of prior restraint should apply in respect of all types of expression. See Barendt, Freedom of Speech, pp. 118–153. See the dissent of Judges Costa (President) Cabral Barreto and Jungwiert, para. 6.

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was it the feelings of marginalized and vulnerable religious minorities that were the object of the state’s protective attentions. Rather, in each case it was the feelings of the majority that the state sought to protect. Indeed, the offence of blasphemy at issue in Wingrove expressly protected only Christianity, the majority religion. And in Otto-Preminger, it was expressly acknowledged that the need for the ban was particularly pressing because the ‘overwhelming majority’ of the population was Roman Catholic – raising the spectre that alternative views of life inconsistent with the majority views and beliefs are more easily open to censure.80

9.4.5

‘Incantatory and Ritual’ Phrases and ‘an Overcautious and Timid’ Approach: Signs of Judicial Unease

Despite the results in Wingrove and I.A., both judgments contain signs of judicial unease with the Otto-Preminger approach. In Wingrove, these indications are quite subtle. As we have seen, the Court did accept that the law of blasphemy pursued the legitimate aim of protecting the rights of others. However, in contrast to the majority in OttoPreminger, it did not state, in terms, that these ‘rights of others’ were part of the Article 9 Convention right to freedom of religion or belief. The Court observed that the aim of protecting believers’ religious feelings ‘undoubtedly corresponds to that of the protection of “the rights of others” within the meaning of Paragraph 2 of Article 10. It is also fully consonant with the aim of the protections afforded by Article 9 to religious freedom’.81 The conjunction ‘also’ suggests a distancing from the controversial assertion in Otto-Preminger that the protection of religious feelings was part and parcel of Article 9. Moreover, to be ‘fully consonant with the aim’ of Article 9 is clearly less strong than the statement in Otto-Preminger that ‘the respect for the religious feelings of believers as guaranteed in Article 9 can legitimately be thought to have been violated by provocative portrayals of objects of religious veneration’.82 In his concurring opinion in Wingrove, Judge Pettiti was less subtle in his description of the Court’s reasoning, noting that ‘Article 9 is not in issue in the instant case and cannot be invoked. Certainly the Court 80 81 82

Otto-Preminger, para. 56. Nathwani, ‘Religious cartoons and human rights’, p. 490. İ.A., para. 48 (added emphasis). İ.A., para. 49.

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rightly based its analysis under Article 10 on the rights of others and did not, as it had done in the Otto-Preminger-Institut judgment, combine Articles 9 and 10 morals and the rights of others’.83 This shift in emphasis was echoed in İ.A., where the Court accepted that the restriction pursued the legitimate aims of ‘preventing disorder and protecting morals and the rights of others within the meaning of Article 9(2)’, but, as in Wingrove, pointedly did not repeat the Otto-Preminger assertion that freedom of religion contained a right to respect for religious feelings.84 These possible indications of unease, however, pale into insignificance when compared to the excoriating attack on the Otto-Preminger approach launched in the joint dissenting opinion in İ.A. by the president of the Court, Judge Costa, along with Judges Cabral Barreto and Jungwiert. They warned starkly that the celebrated words in Handyside that freedom of expression applies to utterances that ‘shock, offend or disturb’ was in danger of becoming an ‘incantatory or ritual phrase’.85 Furthermore, they suggested that the time had come to ‘revisit’ this case law, which seemed ‘to place too much emphasis on conformism or uniformity of thought’ and reflected an ‘overcautious and timid conception’ of free speech.86 To summarise the argument hitherto, the Court’s approach in cases involving debate speech on matters of politics or other matters of public interest has been to afford very great protection to the speech concerned, facilitated by a narrow margin of appreciation and concomitant intense scrutiny of the proportionality of state restrictions. This approach fits with the view that freedom of expression is valued primarily because of its connection to democracy, which itself provides secure theoretical bedrock upon which there is broad agreement across European states. In contrast, in cases of religiously offensive artistic expression, the combination of a less easily graspable theoretical undergirding linked to a perceived European diversity of approach results in a palpable uneasiness that has led the Court, struggling to tread water in the deep end of the pool, to adopt a highly deferential approach. This has resulted in some judgments

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Judge Pettiti (dissenting). He also argued that the judgment should have been based on the profanation of symbols more generally – not just religious ones but also secular ones. As Fenwick and Phillipson suggest, this may indicate ‘the possibility of a retreat from the controversial stance taken in Otto-Preminger’, Media Freedom, p. 497. See Temperman, ‘Blasphemy’, p. 541. İ.A., dissent of Judges Costa, Cabral Barreto and Jungwiert, para. 1. İ.A., dissent of Judge Costa, et al, para. 8.

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which have reduced the protection afforded to certain types of expression to negligible levels.

9.5

Swimming Back to the Shallow End: An Exercise in Locating the ‘Debate’?

As we have seen, elements within the case law of the Court itself indicated some sense of disquiet over the Otto-Preminger line of authority. Furthermore, these cases have been subjected to intense academic criticism.87 But more significantly, in a series of cases since the mid-2000s there have been signs, admittedly not conclusive, that the Court has reappraised its approach. The essence of the Court’s apparent new approach has been for it to make every possible effort to identify a public debate within the factual matrix of the case before it, thereby bringing the speech in question within the sphere of ‘political’ or ‘public interest’ debate speech. This has had the effect of allowing judges to see themselves as at the shallow end of the pool – sure of their footing and thus able to subject state restrictions to meaningful proportionality analysis. This approach has also allowed the ‘gratuitous offence’ doctrine to be side-lined: for whilst gratuitously offensive expression, in the view of the Otto-Preminger court, cannot ‘contribute to any form of public debate capable of furthering progress in human affairs’, then, according to the same logic, expression that does contribute to public debate cannot be gratuitously offensive.

9.5.1 Giniewski v. France The first case hinting at this change in direction was Giniewski v. France, which concerned a journalist’s newspaper article entitled ‘The Obscurity of Error’ concerning Pope John Paul II’s 1993 Encyclical ‘The Splendour of Truth’ and asserting that the Nazi atrocities were a direct extension of the Catholic doctrine of ‘fulfilment’. The journalist, Giniewski, had civil and criminal proceedings brought against him for ‘publicly defaming a group of persons on the ground of membership of a religion’.88 The domestic 87

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For examples of these criticisms, see references in Section 4.1.2. Professor Luzius Wildhaber, former president of the European Court of Human Rights, speaking extrajudicially at the University of Leicester (18 March 2009), has suggested that the European Court would probably decide Otto-Preminger differently today. European Court of Human Rights (Second Section), Giniewski v.  France, Application no.  64016/00, judgment of 31 January 2006. After a series of appeals he was ultimately

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courts found that the article ‘clearly undermined the honour and character of Christians and, more specifically, the Catholic community’. Further, the domestic courts found that he had a ‘personal animosity’ and had not been acting in good faith.89 On application to the European Court, given the line of authority on offensive speech and religion discussed earlier, one might have predicted that the applicant would lose, especially given the subject matter, the relatively modest penalty and the domestic tribunal’s finding of the ‘virulence of the article’s general tone’.90 However, a unanimous Chamber of the Court held that there had been a violation of Article 10. The article might offend, shock or disturb some people, but the Court found, directly contradicting the domestic courts, that it was ‘not “gratuitously offensive”, or insulting’, and nor did it ‘incite disrespect or hatred’.91 Crucially the Court found that the applicant had sought to develop an argument about the scope of a specific doctrine and its possible links with the origins of the Holocaust. In so doing he had made a contribution, which by definition was open to discussion, to a wide-ranging and on-going debate without sparking off any controversy that was gratuitous or detached from the reality of contemporary thought.92

The fact that the expression could be read as part of an ongoing debate of public interest allowed the judges to narrow the margin of appreciation and subject the restrictions to far higher levels of scrutiny than with the Otto-Preminger approach. Moreover, the small penalty in Giniewski was stated to have had a potential ‘deterrent effect’,93 in contrast, it will be recalled, to the Court’s position in İ.A., where the insignificance of the penalty was cited as evidence of the measure’s proportionality.94

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acquitted of the criminal charge but ordered to pay FRF 1 in damages to the complainant association (the General Alliance against Racism and for Respect for the French and Christian Identity) and to publish a notice of the ruling, which referred to the criminal charge, in a national newspaper at his own expense. Giniewski v. France, para. 16. The French Government cited Wingrove in its argument that the margin of appreciation should be wide, Giniewski v. France, para. 35. Giniewski v. France, para. 52. Giniewski v. France. The Court also noted the importance of the search for historical truth and that it was not part of its role to arbitrate upon the underlying historical issues. Two of the dissentients from İ.A., Judges Costa and Jungwiert, composed part of the Giniewski court. For the Court’s most recent iteration of these principles in the context of debate about genocide, see Perinçek v. Switzerland. Giniewski v. France, para. 55. İ.A., para. 32.

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9.5.2 Klein v. Slovakia The Court adopted a similar approach in the later case of Klein v.  Slovakia.95 The applicant had published an article strongly criticising the Catholic Archbishop of Slovakia − for his protests on television news about the film The People vs. Larry Flint − and asking why Catholics did not renounce their faith. Sixty-nine per cent of Slovakia’s population was Roman Catholic at the time. He was convicted of publicly defaming and offending the religious feelings of the members of the Catholic Church for their faith. The domestic courts found the article was ‘vulgar’ and that it ridiculed, offended and ‘violated the rights’ of Christians. He was fined 375 euros. The Court reiterated its Otto-Preminger assertion that freedom of expression included a duty to ‘avoid as far as possible an expression that is in regard to objects of veneration, gratuitously offensive to others and profane’.96 However, following the Giniewski approach, it unanimously found a breach of Article 10. Although it noted that the article contained ‘slang terms and innuendoes with oblique vulgar and sexual connotations’ it rejected the domestic court’s conclusions that the rights of Christians had been violated.97 The ‘article neither unduly interfered with the right of believers to express and exercise their religion, nor did it denigrate the content of their religious faith’.98 The Court emphasized the fact that the article had been a reaction to the Archbishop’s original statement that had been broadcast on the main TV evening news. Thus, albeit without making the point as clearly as it did in Giniewski, the Court deemed the article to be part of an ongoing public debate. Further, the Court stressed that when assessing proportionality ‘the potential impact of the medium of expression’ was ‘an important factor’.99 This piece had been published in a weekly journal with a limited circulation (about 8,000) and was aimed at intellectually oriented readers who were intended to see it as a ‘literary joke’.100 This approach is in vivid contrast to that adopted by the Court in Otto-Preminger, Wingrove and İ.A., where, it will be recalled, the limited potential and actual impact of

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Klein v. Slovakia, Application no. 72208/01, judgment of 31 October 2006. Klein v. Slovakia, para. 47. Klein v. Slovakia, para. 49. Klein v. Slovakia, para. 52. Klein v. Slovakia, para. 47. Klein v. Slovakia, para. 48.

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the publications cut no ice whatsoever. Similarly, whilst in Otto-Preminger the Court had considered that the Roman Catholicism of the overwhelming majority of Tyroleans helped justify the restriction, in Klein this fact was not mentioned in its conclusions. In both Giniewski and Klein, the consequences of the Court’s initial categorization of the expression at issue as debate speech on the level of scrutiny of the domestic decisions is striking. Once it was determined that the expression constituted part of a debate, this drastically narrowed the margin of appreciation. The judges thereby defined themselves into the shallow end of the pool and, with their feet securely on the bottom, felt empowered to subject the domestic decision-making processes to far more intrusive scrutiny than they were prepared to countenance in OttoPreminger, Wingrove and İ.A. It may be, of course, that Giniewski and Klein – both cases involving press articles written by journalists – are truly distinguishable in kind from the artistic works in Otto-Preminger, Wingrove and İ.A. and that the supposed change of direction is in fact an illusion. However, there are signs that the Court has reappraised its approach to artistic expression also.

9.5.3

Vereinigung Bildender Künstler v. Austria

Vereinigung Bildender Künstler v.  Austria101 concerned a large painting by the artist Otto Mühl entitled ‘Apocalypse’ exhibited in a public gallery for which there was an admission charge. The painting in question was of exaggerated and unrealistic figures involved in a variety of sexual acts, on to which were pasted thirty-three photographs of various real persons, including Mother Teresa, Jörg Haider (the then-leader of the farright Austrian Freedom Party), cardinal Hermann Groër, as well as the artist himself and some of his friends.102 One of the people depicted was Walter Meischberger, an Austrian Freedom Party MP. He was depicted gripping the ejaculating penis of Haider, while at the same time being touched by two other Austrian Freedom Party politicians and ejaculating over Mother Teresa. Some of the pictures, including Meischberger’s, were obscured by black bars over the eyes. Further, the painting had been defaced by a visitor to the exhibition so that Meischberger’s image was largely obscured by red paint. This event had itself been reported in the 101 102

Vereinigung Bildender Künstler v. Austria, Application no. 68354/01, 25 January 2007. The paining, complete with red paint splash, can be seen here:  https://charterblog .wordpress.com/2008/02/02/the-right-to-finger/.

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press – in which images of the painting were reproduced. Meischberger brought a private action under the Copyright Act on the grounds that the images, in which he was still identifiable, debased him. The domestic court issued an injunction prohibiting further exhibition of the painting. The European Court found a violation of Article 10.103 In doing so, it departed from the Otto-Preminger approach to artistic speech in which it interferes with the ‘rights of others’, albeit, in this case, not the religious rights of others.104 Significantly the majority emphasized the importance of artistic expression to democracy: ‘Those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society’.105 This case involved, the Court held, the ‘caricature of the persons concerned using satirical elements’ and satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with an artist’s right to such expression must be examined with particular care.106

Crucially the Court held that the painting could hardly be said to concern Meischberger’s private life – no one suggested that the scenes were actually representative of real events involving him – but rather related to his public standing as a politician, and politicians had to display ‘wider tolerance in respect of criticism’. Indeed, the majority said, it would not be unreasonable to see the painting as ‘some sort of counter-attack against the Austrian Freedom Party, whose members had strongly criticised the painter’s work’.107 With this move the majority were able to insinuate the painting into the debate-speech category, with its concomitantly higher levels of protection. In balancing Meischberger’s personal interests and taking account of the ‘artistic and satirical’ nature of the portrayal, as well as the impact of the ban on the applicant association, the Court found a violation of Article 10.108 103 104

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By a majority of 4:3. Arguably the rights in this case were more concrete than in the art/religion cases in that they were statutory personality rights. Künstler, para. 26. Künstler, para. 33 (emphasis added). Künstler, para. 34. Künstler, para. 38. The three dissenting judges took a stance much more consonant with the earlier case law. Judges Spielmann and Jebens considered that the majority’s finding that the painting was a ‘counter-attack against the Austrian Freedom Party’ was merely

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Künstler was a case that could have been viewed through the OttoPreminger spectacles as requiring a balance to be struck between competing Convention rights, in this case between the applicant’s Article 10 rights and Meischberger’s Article 8 rights.109 However, the majority chose to emphasise the debate elements of the expression and the importance of art and satire to democracy. Consequently the fact that the painting was exhibited in a public gallery accessible to all and the fact that there was evidence of violent reaction to the painting – its defacement – were not counted as prejudicial to the applicant’s case. This is in contrast, it will be recalled, to Otto-Preminger and İ.A., where an absence of such reactions had not helped the applicants’ cases. In Künstler therefore we apparently witness the Court edging itself back into the shallow end of the metaphorical pool, to the place where it has footing secure enough to make a strong decision, contrary to the views of the domestic authorities.

9.5.4

A Tactical Retreat from Otto-Preminger?

These decisions, read together, appear to constitute a retreat from the Otto-Preminger approach. Admittedly, the articles in Giniewski and Klein were easier to categorise as ‘debate-speech’ than the film, video and novel in the earlier cases, but nevertheless the sensitive religious context might, in the past, have persuaded the Court to afford a wider margin of appreciation to the state. However, the judgment in Künstler seems to indicate a willingness by the Court to divine a public debate even in cases of artistic speech. It is admittedly highly speculative, but it is at least possible that these more recent cases indicate a deliberate shift in approach by the Court in the wake of the 2005 Jyllands-Posten ‘Cartoons of Muhammad’ controversy.110

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an excuse to ‘justify its finding of a violation of Article 10’, para. 4. Judge Loucaides, in a separate dissent, stated that the picture could not by ‘any stretch of the imagination, be called satirical or artistic’. It was ‘just a senseless, disgusting combination of lewd images whose only effect is to debase, insult and ridicule each and every person portrayed’. Judges Spielmann and Jebens argued that the portrayals were an attack on the ‘dignity of others’, which is protected by the ‘rights of others’ in Article 10(2) and a concept that runs throughout the ECHR, para. 9. In addition, they argued that the portrayals were an attack on his image and identity, values protected by Article 8 ECHR, para. 14. Perhaps this development can be seen as in line with a more expansive notion of the argument from democracy of the type advocated by Robert Post: see Post, ‘Participatory democracy’, 481; Post, ‘Religion and freedom of speech’; Cram, ‘The Danish cartoons’, pp. 327–329.

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Indeed it cannot be ruled out that claims could be brought by Muslims that states which failed to take action against the publication of such images thereby failed to adequately safeguard their religious rights under Article 9.111 According to Otto-Preminger they would presumably have a case.112 By the same token, if a state did censor such cartoons then, under Otto-Preminger, it would be unlikely to be found to have violated Article 10. Perhaps, in a febrile climate of challenge to liberal free-speech values, the Court deliberately switched its emphasis. Cartoons depicting the Prophet Muhammad of the kind contained in Jyllands-Posten or Charlie Hebdo might well have fallen foul of an approach viewed through the Otto-Preminger prism, but if such depictions are seen as part of a public debate in the mould of the utterances in Klein, Giniewski and Künstler, then they might be much more likely to be afforded effective protection under Article 10.113

9.6

But What of Those Simply Wishing to Express Themselves?

This trend (if indeed it is a trend) is to be welcomed from a freedomof-speech perspective, since the protection afforded in Otto-Preminger, Wingrove and İ.A. was unjustifiably weak for the reasons sketched out earlier. But it leaves open a worrying possibility. With this approach, the Court remains firmly wedded to its position that the primary underpinning of the right to freedom of expression is its contribution to democracy. But what if the speaker is not taking part in any debate of public importance? What if all they wish to do is express themselves? On the ‘debate-speech model’, it is probable that such expression will fail to be

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For discussion of this issue of standing, see Jeroen Temperman, Religious Hatred and International Law, (Cambridge: Cambridge University Press, 2015), ch. 5. For a review of European litigation brought against such cartoons, see Peter Noorlander, ‘In fear of cartoons’ (2015) European Human Rights Law Review, 115. The challenge that was brought against Denmark for its failure to censure the Jyllands-Posten cartoons, European Court of Human Rights, Ben el Mahi v.  Denmark, Application no.  5853/06, judgment of 11 Dec 2006, was held to be inadmissible on account of lack of jurisdiction, since the applicants lived in Morocco. This argument is stronger still in respect of the politicization of some aspects of Islam, as Ian Cram says: ‘In their protests about the Iraq war, justifications for suicide bombers and their broader critiques of western imperialism and decadence, imams and others claiming to be within the Islamic tradition have entered the public square of societal discourse and politics’. See Cram, ‘The Danish cartoons’, p. 324. This is on the assumption that the depictions do not constitute hate speech. For differing views of the Jyllands-Posten cartoons, see Modood et al., ‘The Danish cartoons affair’.

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protected in the event that it is censored even where, as we shall see, the potential harm it causes is minor or non-existent.

9.6.1

Mouvement Raëlien Suisse v. Switzerland

We can, perhaps, see the problematic consequence of this approach in the 2013 Grand Chamber judgment in Mouvement Raëlien Suisse v. Switzerland.114 Mouvement Raëlien is an association, founded in 1977, with the aim of making contact with extra-terrestrials. The movement requested permission to put up posters in public display space in the Swiss Neuchâtel district.115 The posters depicted extra-terrestrial faces, a pyramid, a flying saucer and the Earth and were headed with the words: ‘The Message from Extraterrestrials’. They also gave the association’s website and telephone number and had the words at the bottom:  ‘Science at last replaces religion’.116 The Neuchâtel authorities refused permission for the poster to be displayed and, having failed in its appeals to the Swiss Courts, the Raëliens applied to the Court, claiming a breach of Article 10. The Swiss government argued that the ban was necessary in order to protect health and morals and the rights of others and to prevent crime. The Grand Chamber accepted that the national authorities were ‘reasonably entitled to consider’ the ban to be necessary to achieve these aims since the association’s website address provided on the poster contained a further link to a company that advertised human cloning services, which were illegal in Switzerland, some of the movement’s members had been convicted of sexual offences against children, and the association advocated ‘geniocracy’ (the view that power should be entrusted to those with the highest intelligence).117 Of crucial importance to the result, as in all the cases discussed, was the width of the margin of appreciation afforded. The Grand Chamber 114

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Mouvement Raëlien Suisse v. Switzerland, Application no. 16354/06, judgment of 13 July 2012 [GC]. There was disagreement between the parties as to whether this was a case of positive or of negative obligations, i.e. was the state under a positive obligation to provide equal access to advertising space or under a negative obligation not to restrict access to advertising space? The Grand Chamber said that the ‘boundaries between the state’s positive and negative obligations under the Convention do not lend themselves to precise definition; in both situations – whether the obligations are positive or negative – the state enjoys a certain margin of appreciation’, para. 50. The poster can be seen here: www.eurolitigation.eu/2012_07_01_archive.html. Mouvement Raëlien, para. 72. By a majority of 9:8. The Chamber had also found, by 5:2, that there had been no violation.

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stated in clear terms that the breadth of the margin of appreciation ‘varies depending on a number of factors, among which the type of speech at issue is of particular importance’. Repeating its well-worn phrase and affirmation of the argument from democracy, the Court said that there is ‘little scope for restrictions on political speech’. However, a wider margin of appreciation is available to states when they are regulating expression that is ‘liable to offend intimate personal convictions within the sphere of morals or, especially, religion’ as well as in the sphere of commercial matters and advertising.118 In this case, the Court stated that it might ‘be reasonably argued’ that the poster referred only incidentally to social or political ideas. … [T]he type of speech in question is not political because the main aim of the website in question is to draw people to the cause of the applicant association and not to address matters of political debate in Switzerland. Even if the applicant association’s speech falls outside the commercial advertising context – there is no inducement to buy a particular product – it is nevertheless closer to commercial speech than to political speech per se, as it has a certain proselytizing function. The State’s margin of appreciation is therefore broader.119

Consequently ‘only serious reasons could lead [the Court] to substitute its own assessment for that of the national authorities’.120 Having framed the matter in this way, finding that the poster was not debate speech, the majority found that, even though any single one of the state’s reasons for restriction might not be sufficient to justify the ban, the national authorities were nevertheless ‘reasonably entitled to consider, having regard to all the circumstances of the case, that it was indispensable to ban the [poster] campaign’.121 Moreover, the Grand Chamber noted, the measure was limited in scope and ensured a ‘minimum impairment’ of rights since the organisation was still free to disseminate its beliefs through numerous other means of communication, and neither it nor its website were banned.122

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Mouvement Raëlien, para. 61. Mouvement Raëlien, para. 62. The president of the Grand Chamber, Judge Bratza, in a separate concurring opinion, made the same point, para. 7, though he acknowledged that his concurring opinion was reached ‘with some hesitation’, para. 1. Mouvement Raëlien, para. 66. Mouvement Raëlien, para. 72. Mouvement Raëlien, para. 75.

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As the eight dissentient judges explained, the state’s arguments for restriction were extremely weak.123 They pointed out that the expression on the poster was ‘not particularly provocative’, and that to prohibit the association from displaying posters mainly on account of the content of its website, whilst arguing that the scope of the ban remains limited because the association remains free to communicate its views via that very same website is singular if not paradoxical.124

The dissentients concluded that whilst it may well be necessary to combat the ‘excesses of sects’ and a state may have to ban groups that ‘seriously contravene democratic values’ it was nevertheless ‘difficult to accept that a lawful association, with a website that ha[d] not been prohibited, should be prevented from promoting its ideas through posters that are not unlawful in themselves’.125 The broad margin of appreciation, which effectively decided the outcome, itself depended on the categorization of the expression in question as not political and not contributing to debate of current interest in Switzerland.126 Judges Sajó et  al., in a supplementary dissent, made the point that the majority conclusion relied on the introduction of a ‘new category of “lower-level” speech … a so called “non-political”, “quasicommercial” speech that “has a certain proselytising function”’ which was accordingly ‘deprived of the protection granted to speech in general’.127 It is for the very reason that the Court could not (or would not) shoehorn the Raëliens’ poster into the debate-speech category that it adopted

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See the dissent of Judges Tulkens, Sajó, Lazarova, Trajkovska, Bianku, Power-Forde, Vičinić and Yudkivska and the additional dissenting comments of Judges Sajó, Lazarova, Trajkovska and Vičinić. Judge Pinto de Albuquerque proffered an entirely separate dissenting opinion. Judges Tulkens et al. (dissenting), para. 9. The dissentients added that whilst in certain situations a ‘limited ban may be justified on the ground that there are alternative means of communication, that is obviously not the case where the ban is based on the same criticisms as those leveled at the alternative means’, para. 9. Tulkens et al. (dissenting), para. 11. On the argument that, if it were seen to allow the poster campaign in public space, the state would be ‘endorsing or tolerating’ the organization’s opinions, the dissentients said that this was ‘not only rather unrealistic … but also dangerous’, for it would be ‘tantamount to arguing, a contrario, that freedom of expression in public space could be restricted solely for the reason that the authorities disagree with the ideas conveyed’ and ‘Article 10 … would then risk becoming inoperative’. See also Judge Pinto de Albuquerque (dissenting), text accompanying his footnote 22. The eight dissenting judges referred to the speech in question as of a ‘hybrid nature, not being commercial or political, but concerning a subject of public interest’, para. 2. Judges Sajó, Lazarova, Trajkovska and Vičinić (dissenting), part I.

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its deferential stance. Mouvement Raëlien may not have wanted to engage in a debate, at least in the narrow sense of the word. All it wanted to do was to put its (admittedly unconventional and bizarre) message across. In this it may have been doing something similar to commercial advertising which, in the case law of the Court, tends to attract low levels of protection and wide margins of appreciation.128 However, but for its ideas, Mouvement Raëlien was not trying to sell anything. Because of the majority’s conclusion that the website on the poster referred only ‘incidentally’ to social or political ideas, the speech could not be political because its aim was to ‘draw people to the cause of the applicant association, and not to address matters of political debate in Switzerland’. The majority judgment in Mouvement Raëlien raises various issues. In particular: All debate has to start somewhere. If speech is to be consigned to the lowest orders, simply because it is not debate speech, this essentially means that only contributions to ongoing debates will attract high order protection from the Court. How then is fresh debate about new and hitherto un-explored areas of (not-yet) public concern to be initiated? If the debate is not yet underway and the expression is controversial (or indeed, as was the case in Raëlien, merely points the audience in the direction of controversial ideas), how is the ‘debate’ to get started in the first place? As discussed, the Court’s approach to how wide a margin of appreciation it allows and hence how much protection it affords to the expression in question depends upon how it decides to categorise the speech in question. The Court itself decides where in the swimming pool it is positioned. The more narrowly it construes ‘political’ and ‘public debate’, the slimmer the range of well-protected speech will be. In Mouvement Raëlien, it would have been possible to categorise the poster as political or debate speech, in the same way as it was in Giniewski, Klein and Künstler. It was, after all, putting forward a position on wider and highly debatable

128

See, e.g., Markt Intern Verlag GmbH and Klaus Beerman v. Germany, Application no. 10572/83, judgment of 20 November 1989, para. 33. As Judge Pinto de Albuquerque, dissenting, in Raëlien, pointed out, there has been something of a blurring of this principle given the Court’s acknowledgment that commercial statements may also be involved in a debate of general interest and thus the margin of appreciation should be reduced (see, e.g., European Court of Human Rights, Hertel v. Switzerland, Application no. 25181/94, judgment of 25 August 1998, para. 47). He states that the ‘distinction between “purely commercial speech” and commercial speech with political overtones shows the intrinsic weakness of the apparently generous standard of margin of appreciation established by a minimum majority of the Court in Markt Intern’.

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questions about human beings’ existence and place in the universe. As Judge Pinto de Albuquerque argued in his separate dissent, The speech in issue seems to be close to philosophical debate, since the applicant association claims to be discussing the relationships between science and religion and to be disclosing a message purportedly transmitted by extra-terrestrials in this connection. The applicant association not only purports to convey a message on the future of mankind, but also on the way today’s men and women should live, from which ethical implications derive. If in addition one takes into consideration … the references on the … website to geniocracy and the campaign for women’s rights, the speech in issue also takes on a clear political connotation, which is reinforced by a general criticism of the present day model of social, political and economic structures of Western societies…. It is undeniable that it portrays a ‘general perspective of the world’, a Weltanschauung.129

Four of the dissenting judges in Raëlien attacked the use of the margin of appreciation by the majority in strong terms, warning lest it become a ‘fig-leaf for acquiescence in bigotry’ and ‘a vehicle for unprincipled deferentialism’.130 We glimpse here the difficulty with the Court’s overall approach. It has apparently tried to solve the problems it created for itself in OttoPreminger by widening the scope of what is counted as debate speech. But there are dangers with this kind of tiering methodology. The designation of kinds of expression to different typologies is an exercise that, to all intents and purposes, determines the result of the Court’s adjudication. If the speech is deemed to be part of a public debate, then the Court, finding itself at the shallow end of the pool, will strictly scrutinize the state’s reasons for restriction and in all likelihood find a breach.131 But if the Court cannot (or will not) identify a public debate in the expression before it, then, finding itself in the deep end, it will apply a wide margin of appreciation with critical results for the applicant’s freedom of expression.132 This 129 130

131

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Mouvement Raëlien, dissent of Judge Pinto de Albuquerque, part IV. Mouvement Raëlien, dissent of Judges Sajó, Lazarova, Trajkovska and Vučinić (emphasis in original). The very recent example of such an approach can be seen in Perinçek v.  Switzerland, in which a prosecution for genocide denial was found to breach Article 10 on account of the fact that the applicant historian/politician was engaging in political debate. Whilst it is beyond the scope of this chapter, it might be noted in passing that the Court’s protection of those who are denied the right to express their faith through their clothing (in particular Muslim women wishing to wear the headscarf or face veil in accordance with their religious beliefs) and have brought claims under Article 9 ECHR, have received extremely poor protection from the Court. Whilst such claimants do not obviously seek to engage in public debate, by the same token their clothing is not, per se, offensive or

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would appear to be the case even where the speech in question, like that in Mouvement Raëlien, is innocuous and inoffensive.

9.7 Concluding Remarks It has been tentatively argued in this chapter that the European Court of Human Rights may have shifted its position with regard to expression that is insulting to objects of religious veneration whilst retaining its adherence to a primarily instrumentalist justification of Article 10. Admittedly the judicial runes in the line of cases discussed earlier are difficult to read with any certainty. The acid test of whether they do indeed tell the story of a long U-turn by the Court – or whether this impression is merely chimerical – will be when a new case involving such provocative expression is litigated before it. Only then shall we know for sure whether the long shadow cast by Otto-Preminger has finally been expunged.

insulting to others either; see, e.g., Şahin v. Turkey, Application no. 44774/98, judgment of 10 November 2005; S.A.S v. France, Application no. 43835/11, judgment of 1 July 2014.

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10 ‘Mother of God, Drive Putin Away’ On Blasphemy and Activist Art in the Jurisprudence of the European Court of Human Rights

Jeroen Temperman

10.1 Pussy Riot v. Putin On 21 February 2012, the Russian feminist punk rock protest band Pussy Riot performed their song ‘Punk Prayer: Virgin Mary, Drive Putin Away’ from the altar of Moscow’s Christ the Saviour Cathedral – or, rather, attempted to perform this song, as church security guards intervened and removed them, with the performance lasting a little more than a minute.1 No service was interrupted by the performance, although a number of church visitors witnessed the event. A translation of the lyrics of the song is as follows: Virgin Mary, Mother of God, drive Putin away Drive Putin away, drive Putin away Black robe, golden epaulettes Parishioners crawl to bow The phantom of liberty is in heaven Gay pride sent to Siberia in chains The head of the KGB, their chief saint, Leads protesters to prison under escort So as not to offend His Holiness Women must give birth and love Shit, shit, holy shit! Shit, shit, holy shit!

1

Statement of Facts, Application no. 38004/12, Mariya Vladimirovna Alenkhina and others against Russia, lodged on 19 June 2012, para. 2 (hereinafter also ‘Pussy Riot case Statement of Facts’).

Thanks to András Koltay and Pim van der Male for their comments on a previous draft of this chapter.

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Virgin Mary, Mother of God, become a feminist Become a feminist, become a feminist The Church’s praise of rotten dictators The cross-bearer procession of black limousines A teacher-preacher will meet you at school Go to class – bring him cash! Patriarch Gundyaev believes in Putin Bitch, better believe in God instead The belt of the Virgin can’t replace rallies Mary, Mother of God, is with us in protest! Virgin Mary, Mother of God, drive Putin away Drive Putin away, drive Putin away.2

Following criminal complaints by, among others, employees of the church alleging that the band had insulted the feelings of church members, three Pussy Riot members, Ms Mariya Vladimirovna Alekhina, Ms Nadezhda Andreyevna Tolokonnikova and Ms Yekaterina Stanislavovna Samutsevich, were charged with and convicted of the crime of ‘hooliganism motivated by religious hatred’.3 On 17 August 2012, a district court sentenced them each to two years’ imprisonment in a penal colony. On appeal, one of the sentences (Samutsevich’s) was commuted to two years’ probation, while the other two served most of their sentence until being freed some months before their release date under a general amnesty issued by the President of the Russian Federation, Vladimir Putin. This early release, also benefiting other political prisoners including a Greenpeace member, followed major international outcry regarding the imposed penalties and prison conditions, yet was presented by Putin as an act to commemorate the twentieth anniversary of Russia’s post-Soviet constitution. The objective of this chapter is to reflect on this controversy using European human rights standards, more specifically the European Convention of Human Rights, to which Russia is a party.4 In so doing, the European Court of Human Right’s blasphemy jurisprudence is critically evaluated, while positive recent developments in that same body

2 3 4

Pussy Riot case Statement of Facts, para. 1. Pussy Riot case Statement of Facts, para. 3(e). It should be noted that the application filed by Pussy Riot is far more than a freedomof-expression complaint per se: trial and prison conditions are raised, too, in the form of Article 3 and 6 complaints in addition to the Article 10 complaint. This comment only focuses on the freedom of expression ramifications of the ‘Punk Prayer’ affair.

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of jurisprudence are highlighted, and the way forward, starting with the pending case at hand, is indicated.5

10.2

The Marketplace of Ideas v. European Court of Human Rights

The European Court of Human Rights (hereafter also the ‘Strasbourg Court’ or ECtHR) can be praised for being progressive, for being steadfast, for displaying significant degrees of fortitude, for example, in the area of the emancipation of lesbians, gays, bisexuals and transgenders (LGBTs); consider its finer jurisprudence on decriminalization of homosexuality and the promotion of equal rights of transsexuals, for example.6 While in those cases the Strasbourg Court seemingly discerns a Europe that would be steadily moving towards acceptance of these rights and hence appears to simply extend that near-uniformity to the last recalcitrant states, in fact what happens is that the court to a considerable extent helps progressively and proactively shape that ‘common European position’. Not so in the area of blasphemy or speech offensive to religions or religious believers. While at the other side of the Atlantic any restriction on speech offensive to religious sensitivities would be unconstitutional7 – with the rationale being that in a free market of ideas such speech would invite neutralizing counter-speech8 (and at the end of the day everyone is free 5

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The complaints made by Mariya Vladimirovna Alenkhina and others have been ‘communicated’ on 2 December 2013, meaning that Russia has been formally requested by the ECtHR to respond to the allegations. By way of general caveat, it should be noted here that the case has not yet been declared formally admissible by the ECtHR. That is, while the Pussy Riot case is specifically seized upon in this chapter, the argument presented is rather illustrative of a comprehensive critique of blasphemy cases before the ECtHR. Should the application at hand for whichever formal impediment be declared inadmissible, the wider argument presented here is bound to equally apply to the next major European religious defamation controversy that reaches the Strasbourg Court in the future. E.g., Dudgeon v. United Kingdom, Application no. 7525/76, Plenary Session judgment of 22 October 1981, setting the legal precedent for the decriminalization of homosexuality within the Council of Europe (followed by other decisions against, e.g., Ireland) or the case of Christine Goodwin v. the United Kingdom, Application no. 28957/95, Grand Chamber judgment of 11 July 2002, a decision combating harassment and fostering the legal emancipation of transsexuals. Under the First Amendment of the US Constitution. For a landmark US Supreme Court decision, see Joseph Burstyn, Inc. v. Wilson 343 US 495 (1952). At the state level (dormant) blasphemy laws are still discernible. See, e.g., Section 36 of Chapter 272 of the General Laws of Massachusetts. For another early landmark First Amendment decision, see, mutatis mutandis, Cantwell v. Connecticut, 310 U.S. 296 (1940). Supreme Court Justices Holmes and Brandeis can be credited with, respectively, the notion of the ‘marketplace of ideas’ and the importance of ‘counter-speech’, although both are

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to decide for him or herself to loath or support the religion in question) – the Strasbourg Court on numerous occasions has tolerated restrictions on blasphemy and other offensive speech. Thus in such cases as X. Ltd. and Y.  v. United Kingdom, Otto-Preminger-Institut v.  Austria, Wingrove v. United Kingdom and İ.A. v. Turkey the Strasbourg Court accepted that responding states legitimately interfered with free speech in the interest of protecting the sensitivities of religious believers.9 Serious flaws have been identified in the Strasbourg Court’s reasoning, including (i) the fact that it relies on a contestable notion of a ‘right not to be offended in one’s religious feelings’, which has no basis in the Convention;10 (ii) its reluctance to follow through on the actual necessity of the interference with free speech made in these blasphemy cases (e.g., the question as to whether the right to freedom of religion or belief was truly at stake in those cases);11 and (iii) its sanctioning of inherently discriminatory laws.12

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clearly rather Millean notions. In his dissenting opinion in Abrams v. United States 250 US 616 (1919), Justice Holmes argued that freedom of expression is best reached by ‘free trade in ideas’ in ‘the competition of the market’. Justice Brandeis, in his concurring opinion in the case of Whitney v. California 274 US 357 (1927), argued that ‘[t]o courageous, selfreliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence’. European Commission of Human Rights, X. Ltd. and Y. v. United Kingdom, Application no. 8710/79, decision of 7 May 1982; European Court of Human Rights, Otto-PremingerInstitut v. Austria, Application no. 13470/87, judgment of 20 September 1994; Wingrove v. United Kingdom, Application no. 17419/90, judgment of 25 November 1996; and İ.A. v. Turkey, Application no. 42571/98, judgment of 13 September 2005. See also, mutatis mutandis, Murphy v. Ireland, Application no. 44179/98, judgment of 10 July 2003, which was not strictly a blasphemy case but did revolve around restrictions on speech about religion. E.g., Otto-Preminger-Institut v. Austria, para. 48: ‘It follows that their purpose was to protect the right of citizens not to be insulted in their religious feelings by the public expression of views of other persons’. For another comprehensive critique, see the chapter by Lewis in the volume, ‘At the Deep End of the Pool’. See also Jeroen Temperman, ‘Freedom of expression and religious sensitivities in pluralist societies: Facing the challenge of extreme speech’ (2011) 3 Brigham Young University Law Review 729–757; and Jeroen Temperman, ‘Blasphemy, defamation of religions and human rights law’ (2008) 26:4 Netherlands Quarterly of Human Rights 517–545. This goes specifically for the English common-law libel offense, which, before it was abrogated, exclusively protected the Anglican Church of England. The European Court of Human Rights saw nothing wrong with that:  ‘The uncontested fact that the law of

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Accordingly, the blasphemy jurisprudence of the Court has accepted and supported the limitation and even criminalization of blasphemous speech acts, ranging from films in the cases of Otto-Preminger and Wingrove to novels like the one at stake in İ.A. v. Turkey. In so doing, the European Court of Human Rights is out of line not only with overseas’ jurisdictions but more importantly also with European trends and with wider developments under international human rights law, notably UN standards and workings by its monitoring bodies and experts. On the former point, in Western Europe a number of states have recently annulled their blasphemy laws (e.g., the Netherlands and Norway),13 have allowed them to become dormant and/or are replacing them with highthreshold anti-incitement laws (e.g., the UK).14 All in all, this means that currently seven of the forty-seven member states of the Council of Europe prohibit blasphemy.15 True, there are anomalies as occasionally new blasphemy bills are debated or even adopted (like the 2009 amendments to the Irish blasphemy offence). And while a total of seven remains relatively significant compared to other continents,16 the most ‘common’ European position is composed of the decriminalization of blasphemy. Then there is the second indicator suggesting that the Strasbourg Court on the present matter is out of touch with ongoing developments – developments under international law. A number of international actors and documents have expressly spoken out against the legality and tenability of blasphemy laws. Since 2011, the Human Rights Committee – the United Nations monitoring body overseeing compliance with the UN International Covenant on Civil and Political Rights (ICCPR) – officially deems blasphemy restrictions to be in clear violation of international law, thus in effect calling for their removal. Newly adopted General Comment No. 34 provides that ‘[p]rohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible

13 14

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blasphemy does not treat on an equal footing the different religions practised in the United Kingdom does not detract from the legitimacy of the aim pursued in the present context’. Wingrove v. United Kingdom, para. 50. See, respectively, the chapters by Janssen and Årsheim in this volume. See the chapters by Howard and Hare on the former English blasphemy offence in this volume. For more details on some of these recent domestic developments, see also Jeroen Temperman, ‘Blasphemy, defamation of religion, religious hate speech’, in Silvio Ferrari (ed.), Routledge Handbook of Law and Religion (Oxon/New  York:  Routledge, 2015), pp. 381–394. Angelina E. Theodorou, Which Countries Still Outlaw Apostasy and Blasphemy? (Pew Forum, 2014). Ibid.

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with the Covenant’.17 Other key UN players are all on the same page. The UN Special Rapporteur on freedom of religion or belief has called national blasphemy laws ‘counter-productive’.18 In a recent report, the Special Rapporteur reiterated this by underscoring that ‘according to his experiences, blasphemy laws typically have intimidating effects on members of religious minorities as well as on critics or dissenters’,19 calling on all parties to the ICCPR to repeal blasphemy laws.20 Similarly, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression issued a report expressing his concern about ‘anti-blasphemy laws, which are inherently vague and leave the entire concept open to abuse’.21 He held that ‘international human rights law protects individuals and not abstract concepts such as religion, belief systems or institutions … Moreover, the right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or belief that is free from criticism or ridicule’.22 This led him, too, to expressly call upon states to repeal antiblasphemy laws.23 Finally, the recently adopted Rabat Plan of Action,24 a set of benchmarks on the prohibition of advocacy of national, racial or 17

18

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Human Rights Committee, General Comment 34:  Article 19:  Freedoms of Opinion and Expression (CCPR/C/GC/34, adopted at its 102nd session, Geneva, 11–29 July 2011), para. 48. The Committee makes an exception for those speech acts that amount to incitement in the meaning of Article 20(2) ICCPR. Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir, and the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Doudou Diène, further to Human Rights Council decision 1/107 on incitement to racial and religious hatred and the promotion of tolerance, UN Doc. A/ HRC/2/3, 20 September 2006, para. 42. Special Rapporteur on Freedom of Religion or Belief, Tackling Manifestations of Collective Religious Hatred (A/HRC/25/58, 26 December 2013), para. 59. Tackling Manifestations of Collective Religious Hatred, para. 70(e). Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Report of the Special Rapporteur to the General Assembly on Hate Speech and Incitement to Hatred (A/67/357, 7 September 2012), para. 53. A/67/357, para. 53. Ibid. Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. This Plan contains conclusions and recommendations emanating from the four regional expert workshops organised by OHCHR in 2011 and adopted by experts in Rabat, Morocco on 5 October 2012. In four regional workshops – Europe (Vienna, 9 and 10 February 2011), Africa (Nairobi, 6 and 7 April 2011), Asia and the Pacific (Bangkok, 6 and 7 July 2011) and the Americas (Santiago de Chile, 12 and 13 October 2011) – some fifty experts and more than 200 observers and other stakeholders reflected on the question of incitement in the meaning of Article 20(2) ICCPR.

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religious hatred adopted under the auspices of the Office of the United Nations High Commissioner for Human Rights, provides that blasphemy laws are damaging to fundamental rights including the freedom of religion or belief.25 Accordingly, the Rabat Plan recommends that ‘States that have blasphemy laws should repeal these as such laws have a stifling impact on the enjoyment of freedom of religion or belief and healthy dialogue and debate about religion’.26

10.3 Judges of the ECtHR v. Judges of the ECtHR In 2005, in their dissenting opinion in the case of İ.A. v. Turkey (a split 4:3 decision),27 Judges Costa, Cabral Barreto and Jungwiert lamented that ‘the time has perhaps come to “revisit” this case-law, which in our view seems to place too much emphasis on conformism or uniformity of thought and to reflect an overcautious and timid conception of freedom of the press’,28 thus directly referring to 1990s decisions as the ones in Otto-Preminger-Institut v.  Austria and Wingrove v.  the United Kingdom. Accordingly, European Court of Human Rights judges are currently divided on the question of whether to accept or reject restrictions on blasphemous speech. While such a complete revision, a full U-turn, as envisaged by these three judges has not been spelled out by the Court yet, there are indications that it may be heading there in the near future.29 In fact, to a degree the İ.A. case itself started the said revision process. The case concerned Abdullah Riza Ergüven’s book Yasak Tümceler (The Forbidden Phrases) which conveys ‘the author’s views on philosophical and theological issues in a novelistic style’,30 and more in particular Turkey’s penalizing him over it, initially by sentencing him to two years’ imprisonment, a penalty later commuted into a fine. The Turkish judiciary referred specifically to the following book excerpt in its judgment: ‘Look at the triangle of fear, inequality and inconsistency in the Koran; it reminds me of an earthworm. God says that all the words are those 25

26 27

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Rabat Plan of Action, para. 19. Earlier, in para. 17, this document already approvingly quotes the Human Rights Committee’s rejection of blasphemy laws as formulated in General Comment No. 34. Rabat Plan of Action, at para. 19 (included in ‘Recommendations’ section). European Court of Human Rights, İ.A. v. Turkey, Application no. 42571/98, judgment of 13 September 2005. Joint dissenting opinion of Mr Costa, Mr Cabral Barreto and Mr Jungwiert, para. 8. Indeed, as argued here, it may very well mobilise the Pussy Riot case to that effect. İ.A. v. Turkey, para. 5.

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of his messenger. Some of these words, moreover, were inspired in a surge of exultation, in Aisha’s arms. … God’s messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual relations with a dead person or a live animal’.31 The Strasbourg Court considered that ‘[t]he issue before the Court … involves weighing up the conflicting interests of the exercise of two fundamental freedoms, namely the right of the applicant to impart to the public his views on religious doctrine on the one hand and the right of others to respect for their freedom of thought, conscience and religion on the other hand’.32 This seemingly obvious consideration was a first major revision of the Otto-Preminger doctrine inasmuch as it is among the first cases on blasphemous matter in which the Strasbourg Court,33 at least on paper, balanced free speech with religious freedoms rather than with a dubious, extra-legal notion of religious sensitivities. That is not to say that the majority in İ.A. got it right. While fixing its scale, so to speak, the Court’s very balancing exercise itself remained flawed. Specifically, the Strasbourg Court accepted all too uncritically that it was necessary to interfere with free speech for the sake of upholding religious freedoms. At no point did the Court satisfactorily explain how the rights of others to freedom of religion or belief exactly came into play in this particular case or for that matter how the two rights – free speech and freedom of religion – conflicted in the first place. It is not questioned that an attack on a religion can be so severe as to engage state action with the view of protecting individual adherents to the religion in question – yet whether such is the case needs to be established on a case-by-case basis. The onus, then, is on the state to substantiate the severity of such an extreme speech act and the risks (to religious freedom) that emanate from it, while the Strasbourg Court is to critically evaluate the necessity of such a potential vindication – neither was sufficiently done in İ.A.34 It is interesting to see what the Turkish authorities 31 32 33

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İ.A. v. Turkey, para. 13. İ.A. v. Turkey, para. 27 (emphasis added). In a long-forgotten former European Commission case a similar point was once made. European Commission of Human Rights, Church of Scientology and 128 of its Members v. Sweden, Application no. 8282/78, admissibility decision of 14 July 1980, para. 5, holding in a complaint brought by a church against an allegedly defamatory statement that ‘it has not been shown that either the Church of Scientology or its members have been prevented in any way as a consequence of these published remarks from “manifesting their beliefs” in the ways enumerated by this provision’. The closest the Court came to making that very assessment was in para. 29 of the judgment: ‘the present case concerns not only comments that offend or shock, or a “provocative”

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considered proven in this context. The Turkish public prosecutor’s indictment was based on an expert report written by the dean of a theology faculty.35 The latter expert, among other things, held that the author of the impugned book criticises the beliefs, ideas, traditions and way of life of Anatolian Turkish society by adopting the independent and nonconformist viewpoint of the leaders, thinkers and scientists of the Renaissance in order to enlighten and advise our people as he sees fit. … This way of thinking, based on materialism and positivism, leads to atheism in that it renounces faith and divine revelation.36

A second expert report was of a similar vein.37 The allegations that the author renounces the dominant faith and that his views may lead to atheism, while deemed ‘blasphemous’ under national law, do not prove Convention rights ‘of others’ were truly at risk. If anything, the author was apparently exercising his freedoms, notably the freedom of religion or belief – which covers atheist views – and his freedom of expression. In sum, both the Turkish authorities and the ECtHR exclusively focus on content, altogether omitting a proper context assessment. Specifically, the Strasbourg Court failed to address the question of ‘likelihood of harm’, that is the probability that the religious rights of others become adversely affected. This likelihood was severely challenged by the three dissenters: The evidence before the Court does not indicate how many people actually read the novel but the number is probably small, as is suggested by the fact that the book was never reprinted. Moreover, the limited practical impact on society of the author’s statements was not taken into account by the national authorities, which confined themselves to an abstract assessment of the statements (which were made, as has been noted, in a novelistic style).38

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opinion, but also an abusive attack on the Prophet of Islam. Notwithstanding the fact that there is a certain tolerance of criticism of religious doctrine within Turkish society, which is deeply attached to the principle of secularity, believers may legitimately feel themselves to be the object of unwarranted and offensive attacks through the [cited] passages’. The final phrase, however, misses the point completely: The question is not whether believers may legitimately feel themselves to be the object of unwarranted and offensive attacks but rather whether Turkey could legitimately consider the rights of religious believers at risk on account of the said publication. İ.A. v. Turkey, paras. 7–8. İ.A. v. Turkey, para. 7. İ.A. v. Turkey, paras. 9–14. Joint dissenting opinion of Judges Costa, Cabral Barreto and Jungwiert, paras. 2–3.

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In sum, the judgment of İ.A. was the first blasphemy decision to correctly – notionally – identify which overall rights may be balanced, but the judgment itself is hardly an example of a rigorous assessment. The necessity test slowly but surely regains centre stage. In Klein v. Slovakia the Strasbourg Court made what can be called a proper risk assessment of the impugned defamatory statements. Klein had criticized and insulted, in a journal article, a Catholic Church leader following the latter’s criticism regarding Miloš Forman’s film The People vs. Larry Flynt, as a result of which he was convicted of defaming a religion. The Strasbourg Court concluded that there was no indication whatsoever that the rights of religious believers were undermined by this type of criticism.39 Also, the Court feels that Slovakia exaggerated the potential impact of the impugned defamatory statements. Specifically, the Court emphasized that Klein’s article ‘was published in a weekly journal aimed at intellectually-oriented readers’, which was ‘in line with the applicant’s explanation that he had meant the article to be a literary joke’ and that the relevant ‘journal was then published with a circulation of approximately 8,000 copies’.40 Other religious defamation cases further augment this gradual judicial shift. For instance, in Albert-Engelmann-Gesellschaft mbH v. Austria also concerning criticism or insults to a church leader, the Court underscored that the impugned speech acts (including firm criticism regarding a vicar of an archdiocese) – rather than undermining freedom of religion – are permissible value statements that contribute to public (churchrelated) debate.41 Furthermore, in Nur Radyo Ve Televizyon Yayinciligi A.S. v. Turkey, the Court concluded that it was ‘unlikely’ that the admittedly hostile speech by a religious leader – who had claimed that an earthquake killing thousands of persons in Izmit was ‘a warning from Allah’ against the ‘enemies of Allah’ – would have resulted in real harm to nonbelievers.42 Finally, while not strictly a religious defamation case, the case

39

40 41

42

European Court of Human Rights, Klein v. Slovakia, Application no. 72208/01, judgment of 31 October 2006, paras. 51–54. Klein v. Slovakia, para. 48 (underscoring the applicant’s arguments made in para. 42). Albert-Engelmann-Gesellschaft mbH v. Austria, Application no. 46389/99, judgment of 19 January 2006, paras. 31–33. European Court of Human Rights, Nur Radyo Ve Televizyon Yayinciligi A.S. v. Turkey, Application no. 6587/03, judgment of 27 November 2007, para. 30. It should be noted that the case revolved not directly around Turkish interferences with the freedoms of this religious leader but around the radio company whose broadcasting license was suspended following the transmission of these the statements.

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of Vereinigung Bildender Künstler v. Austria (on a provocative work of art) fits this line of jurisprudence too.43 In sum, the Strasbourg Court seems to be moving on the question of the legitimacy of blasphemy restrictions; however, progress is gradual, and the state of play described here perhaps still falls short of a fullfledged judicial U-turn.

10.4

Punks v. Oppression

The domestic Pussy Riot trial revolved much around the question whether their acts and speech acts were politically or rather religiously motivated. While Pussy Riot claimed that their ‘Punk Prayer’ performance was a political statement, the Russian judiciary ruled that they had been after inciting hatred against the Russian Orthodox Church and its members.44 On top of the criminal sentences incurred by individual members, a significant part of the Pussy Riot oeuvre was declared ‘extremist’ under federal laws combating extremist activity.45 This ban includes video content on Pussy Riot’s website, including video recordings of performances of their songs ‘Kropotkin Vodka’, ‘Release the Cobblestones’, ‘Riot in Russia’, ‘Putin Wet Himself ’, ‘Death to Prison, Freedom to Protest’ and ‘Punk Prayer:  Virgin Mary, Drive Putin Away’.46 This website is http:// pussy-riot.livejournal.com/ and if visited presently states in the caption ‘PUSSY RIOT IS DEAD’. While the lyrics of ‘Punk Prayer’ – which were judicially analysed in conjunction with other Pussy Riot songs – bolstered the Russian judges in their conclusion that Pussy Riot’s real objective was to incite religious hatred against the Orthodox Church and its members,47 a critical analysis of the lyrics of their songs leads to the conclusion that theirs was, first and foremost, a political message, and a protected one at that. To the extent that their speech acts were also of a religious nature (see later in this section for an argument along these lines), the point hardly needs recalling that religious speech is firmly protected speech too. What is important under both these headings – political and religious speech – is that the speech act did not amount to incitement. 43

44 45 46 47

Vereinigung Bildender Künstler v. Austria, Application no. 68354/01, judgment of 25 January 2007. Pussy Riot case Statement of Facts, para. 3(e). Forming a separate freedom-of-expression complaint in the Statement of Facts, under (4). Pussy Riot case Statement of Facts, para. 4. Pussy Riot case Statement of Facts, para. 3(e).

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Indeed, what Pussy Riot does time and again is challenge the Putin regime. In so doing it certainly also challenges the Orthodox Church, yet not in and for itself but to the extent that the latter supports Putin or otherwise engages in worldly politics for instance by actively lobbying the Putin administration for restrictive laws vis-à-vis LGBTs. So while the Church’s allegiances are questioned, while its de facto establishment or privileged position within the Putin regime is challenged, while the Church’s position in what is supposedly a secular state is fiercely debated, there is no trace of incitement of violence or discrimination against the Russian Orthodox Church or its members. Certainly, Pussy Riot’s acts and speech acts are bound to upset the religious sensitivities of Church leaders and members, but – such is the contention of this section – the latter’s religious rights are in no way undermined. For that assertion to stand, first of all it must be pointed out that the right to freedom of religion or belief comprises the freedom to have or adopt a religion (forum internum) and the freedom to practise a religion or belief (forum externum) – not a freedom from criticism or ridicule.48 Second, for a speech act to amount to punishable incitement under international standards, important context factors must be met, notably the existence of ‘likelihood’ that acts of violence or discrimination are to ensue from the impugned speech act.49 The present dominant position of the Russian Orthodox Church is one context factor, to name but one, that would serve to question whether there was any such likelihood at the material time of the ‘Punk Prayer’ performance. The political nature of Pussy Riot’s songs and acts follows both from their very content and from the overall context in which they see the light of day. Starting with the latter, following their arrest Pussy Riot – apparently by way of non-arrested members (the group has around a dozen members) – issued a statement saying among other things, ‘We were deeply saddened that you allowed the Church to become a weapon in a dirty election campaign and urged the faithful to vote for a man who is as far as can be from God’s truth’ and ‘You cannot believe in an earthly tsar if his deeds contradict those values for which the Heavenly Tsar was

48 49

A legal argument developed in Temperman, ‘Blasphemy’. For a comprehensive conceptualization of international standards banning incitement to violence or discrimination, see Jeroen Temperman, Religious Hatred and International Law: The Prohibition of Incitement to Violence or Discrimination (Cambridge:  Cambridge University Press, 2016).

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crucified’.50 The attack on the Church is fierce indeed, yet it served to address what is perceived as an unsavoury pact between the Church and the Putin regime. Another important context factor that ought to be borne in mind is of course the role, status and identity of the speaker, as well as the nature of the speech acts. Both these variables are recognized as important context factors by, among other benchmarks, the Rabat Plan of Action.51 We are dealing with a punk band, that is a protest and anti-establishment group, that contributes to public debates in ways – this lies in the very nature of activist art – that may be shocking or provocative to some. Barring incitement to violence or discrimination or speech acts that otherwise truly threaten the rights of others, Pussy Riot’s artistic licence is vast under international free speech standards. What, then, is Pussy Riot’s message? Pussy Riot’s ‘Punk Prayer’ was quoted in the introduction. Let us first dissect in more detail this protest song which lies at the heart of the present debate. The song’s opening words, ‘Virgin Mary, Mother of God, drive Putin away’, obviously squarely fit into the overall objective of the song – a punk prayer. A holy figure is appealed to in the hope that the reigning political leader be removed from the thrown. Theirs is not a call for forceful man-made interventions. It is perfectly permissible for Pussy Riot to turn to the metaphysical in the hope that an in their eyes an evil leader – called a ‘dictator’ later on in the song – be ousted, just as it is perfectly permissible for persons – except religious leaders perhaps – to publically pray a profane leader continue its reign. The next part (‘Black robe, golden epaulettes | Parishioners crawl to bow | The phantom of liberty is in heaven | Gay pride sent to Siberia in chains | The head of the KGB, their chief saint, | Leads protesters to prison under escort | So as not to offend His Holiness | Women must give birth and love’) questions the Russian Orthodox Church, its leaders (‘black robe’) and members (‘parishioners’) as well as the Putin regime (‘head of the KGB’ and ‘His Holiness’), all of whom are alleged to meekly follow each other’s will. The upshot of that slavish attitude is the corroding of

50

51

Marc Bennetts, I’m Going to Ruin Their Lives:  Inside Putin’s War on Russia’s Opposition (London: Oneworld Publications, 2016), p. 140. Rabat Plan of Action, para. 22. See also UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Report of the Special Rapporteur to the General Assembly on Hate Speech and Incitement to Hatred (A/67/357, 7 September 2012), para. 45, for similar context factors.

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civil liberties, the blocking of the emancipation of LGBTs and the perpetuation of a patriarchal society. While the verbal attack is again fierce, it is a legitimate political message. Admittedly, this part strays closest to also addressing individual church members (‘parishioners’), yet the context makes it clear that the latter are targeted not for their religious ideas but for their political ones. To be specific, their alleged lack of resistance to political indoctrination by way of church institutions is what is objected to. It is – whether true or not – not a pretty message, but it is not incitement to religious hatred. As ‘Shit, shit, holy shit!’ largely speaks for itself, we may move to the final part of the lyrics: ‘Virgin Mary, Mother of God, become a feminist | Become a feminist, become a feminist | The Church’s praise of rotten dictators | The cross-bearer procession of black limousines | A teacherpreacher will meet you at school | Go to class – bring him cash! | Patriarch Gundyaev believes in Putin | Bitch, better believe in God instead | The belt of the Virgin can’t replace rallies | Mary, Mother of God, is with us in protest!’ This part elaborates on the patriarchy sustained, in Pussy Riot’s view, by a contestable pact between the Russian Orthodox Church and the Putin regime. Moreover, Pussy Riot challenges both governmental and ecclesiastical powers in Russia for the fact that they oftentimes work in tandem to further their goals – despite the formal state of separation between state and church in Russia. Notable post–‘Punk Prayer’ examples are the 2013 laws signed by Vladimir Putin banning ‘LGBT propaganda’ and imposing firmer jail terms and fines for insulting people’s religious feelings.52 Such laws could be seen as direct responses by the Putin regime, in close cooperation with the Russian Orthodox Church, to the Pussy Riot affair, with a view towards censoring future political statements disagreeable to secular/ecclesiastical authorities. This part of the lyrics could be justified not merely by reference to freedom of speech but also and perhaps even more powerfully so by dint of religious freedom – indeed, as a contribution to feminist theology.53 Blasphemy can be profoundly political and profoundly religious speech. In fact, it may be argued that in 52

53

Russian federal law for the Purpose of Protecting Children from Information Advocating for a Denial of Traditional Family Values, adopted June 2013 (commonly referred to as the Russian LGBT Propaganda Law); and Law Amending the Criminal Code of the Russian Federation and Some Legal Acts of the Russian Federation Aimed at Countering Insult of Religious Beliefs and Feelings of Citizens, Desecration of Religious Objects and Subjects of Worship (Pilgrimage) and Sites of Religious Ceremonies, adopted June 2013. Anne-Marie Korte, ‘Pussy Riot’s “Punk Prayer” as a Case of/for Feminist Public Theology’ (2014) 22 Journal of the European Society of Women in Theological Research 31–53.

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Pussy Riot’s views as featured in their lyrics it was the very collaboration between an increasingly worldly-powerful church and an authoritarian regime that committed the first or rather the real act of ‘blasphemy’ – that is in the more grandiose sense of the Old Testament wherein blasphemies are committed by men who assume too much of God’s prerogatives (e.g., the construction of the Tower of Babel) – and that the Punk Prayer to the Virgin Mary, especially by urging her to become a feminist in the hope she may end the patriarchy, was aimed at redressing this wrong.54 Patriarch Kirill of Moscow and all Rus’ – referred to in the song by his family name Gundyaev – has called Putin’s regime a ‘miracle of God’ and is hence publically and outspokenly on the hand of Putin.55 In the light of his reference to a ‘miracle’, it is not even that much of an overstatement to say that the Patriarch ‘believes’ in Putin. The phrase ‘Bitch, better believe in God instead’ on its face may have all the makings of a personal attack, but the anger lies in the fact that the Patriarch has no business endorsing secular leaders and, in the opinion of Pussy Riot, ought to stick to his ecclesiastical trade. Also, views critical of religious leaders are not only legitimate contributions to public debate, such speech acts in no way undermine the religious rights of believers. The other Pussy Riot songs banned for being extremist by the Russian authorities largely reveal the same unambiguously political nature. To the extent that the Russian Orthodox Church comes into play, it is its politics that is protested against, not the faith per se or individual membership. For instance, in ‘Putin Wet Himself ’ Orthodox religion is called ‘a hard penis’. Obviously this could be deemed rather offensive.56 Yet the whole verse reads: ‘Dissatisfied with the culture of male hysteria | Gangster management devours the brain | Orthodox religion is a hard penis | Patients get a prescription of conformity’. In that context, Pussy Riot appears to accuse the Orthodox Church of sustaining the patriarchal status quo (‘male hysteria’, ‘conformity’). Indeed, the ‘hard penis’ in this light is an allusion to how deeply rooted Russian patriarchy is within religion, as perpetuated by church leaders. The ‘hard penis’ is referred to as a symptom for which adherents (‘patients’) get a prescription (from the Church) – 54

55

56

For a fascinating argument like this, see Elena Volkova, ‘Mater Nostra: The anti-blasphemy message of the feminist punk prayer’ (2014) 4:2 Religion and Gender 202–208. Reuters, ‘Russian patriarch calls Putin era “miracle of God”’, 8 February 2012, available at http://af.reuters.com/article/worldNews/idAFTRE81722Y20120208. At this point it must be reiterated that speech offensive to religious sensitivities is protected speech. For a comprehensive argument to that effect, see Temperman, ‘Blasphemy’.

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a ‘prescription of conformity’. Again Pussy Riot’s message is forceful, and doubtless shocking, disturbing and deeply offensive to some, yet as a feminist critique of the position of women within Russia’s society, religion and culture, it is an important – and, more to the point, a protected – contribution to public debate. On the question of the degree of protest incited by Pussy Riot, it must be observed that theirs is hardly an ‘extremist’ message – for a punk group, that is. Their lyrics contain ample references to such acts as occupying the city (‘Kropotkin Vodka’), occupying Red Square (‘Putin Wet Himself ’) or filling ‘all the squares and streets’ of the city (‘Death to Prison, Freedom to Protest’), turning the Red Square into Tahrir (‘Release the Cobblestones’), wishing death upon public institutions (‘Death to Prison, Freedom to Protest’), ‘direct action’ (‘Death to Prison, Freedom to Protest’) and taking to the streets (‘Putin Wet Himself ’). Occasionally, theirs is a call for sexual protest, typically to be engaged in with policemen. For instance, ‘Release the Cobblestones’ urges, ‘It’s never too late to become a mistress | Batons at the ready, screaming louder and louder | Warm up arm and leg muscles | The cop is licking you between your legs’. And in ‘Kropotkin Vodka’ Pussy Riot proposes yet further creative ways of protest:  ‘Occupy the city with a frying pan | Go out with a vacuum, get off on it | Police battalions seduce virgins | Naked cops rejoice at the new reforms’. The anti-Putin (regime) message is typically loud and clear and, all things – especially their role as punk protest formation – considered, relatively mild. Whenever their lyrics go beyond the mild, the song’s context typically makes it clear that they have moved into the allegorical. For instance, the opening lines of ‘Putin Wet Himself ’ could be read as an anticipated violent overthrow of the Kremlin. Yet the complete verse appears to make an altogether different point:  ‘A group of insurgents moves toward the Kremlin | Windows shatter at FSB headquarters | Bitches piss themselves behind red walls | Pussy Riot is here to abort the system | An attack at dawn? Don’t mind if I do | When we are whipped for our freedom | The Mother of God will learn how to fight | Mary-Magdalene the feminist will join the demonstration’. The verse conveys the realization that such an attempt by mortal women is bound to be futile and will – not wholly unrealistically – result in dire punishments by the Putin regime. Indeed, it is anticipated that only when such heavenly figures as the Mother of God and ‘Magdalene the feminist’ will join their protest can they ever be successful in ridding Russia of the Putinists.

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Slinging cobblestones from one’s balcony, as proposed in ‘Release the Cobblestones’, would be another example. On its face, this is a reckless piece of advice. Yet the context is that of a feminists-led Russian Spring: ‘Egyptian air is good for your lungs | Turn Red Square into Tahrir | Spend the day with wild strong women’. Also, by way of further context, Pussy Riot has repeatedly appealed to peaceful protesting. For example, in ‘Death to Prison, Freedom to Protest’ they implore to ‘occupy the square’ and ‘do a peaceful takeover’. And while in ‘Putin Wet Himself ’ the word ‘riot’ is repeated many times, it transpires in that song that the fiercest challenge one can raise vis-à-vis the Putin regime is by openly displaying one’s liberty: ‘Take to the streets | Occupy Red Square | Show them your freedom | A citizen’s rage’.

10.5 Provocation v. Incitement In conclusion, three Pussy Riot members received draconian penalties over statements which amounted to protected speech – it would, however, be a missed opportunity if the European Court of Human Rights were to exclusively capitalize on the disproportionate nature of the sentences without setting the record straight on the criminality of blasphemy and defamation of religion. Through its lyrics, Pussy Riot conveys above anything else a profoundly political message, challenging the Putin regime and the latter’s alleged destruction of freedoms and tolerance in Russia. Accordingly, the group contributes to public debate, and even when calls to revolution and protest are made the message remains a sound political one – a lyrical challenge to the political establishment – and as such those calls are manifestations of civil and political rights rather than threats thereto. Only occasionally do these calls for change have a rather edgy side (e.g., ‘Release the Cobblestones’), but both malicious intent and likelihood of danger potentially emanating from such calls are in fact belied by additional and more unambiguous calls for peaceful protest and also by the position and role of speaker, that of activist artists. Wherever the lyrics are truly on the fierce side of the spectrum, much of that must naturally be attributed to the fact that this is a punk rock formation, a group that should be granted some artistic license to make its case for changes to the politics it is disillusioned if not downright angry with. The point here being that for instance a politician calling for the ‘release of cobblestones’ is quite different from a punk rock band lyrically suggesting the

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same; one would almost be surprised – and fans of the genre even disappointed – if a punk rock track does not feature the occasional cobblestone slinging. Also occasionally, Pussy Riot’s lyrics venture into the area of religion. Yet as illustrated in this chapter, wherever this is the case the message remains a profoundly political one. This is an important point because it shows how blasphemy, religious insult or indeed ‘hooliganism motivated by religious hatred’ laws can be abused to stifle political speech – precisely this was the case in the Pussy Riot affair. The Orthodox Church was probably genuinely offended by the incident; yet the Putin regime was all too eager to rid itself of this critical thorn in its side. In tandem, then, both institutions succeeded and got what they wanted. One can see how blasphemy (or ‘hooliganism motivated by religious hatred’) laws can lead to abuse and stifling of perfectly protected speech by once more specifically looking at the Russian judiciary’s role in the domestic ‘Punk Prayer’ trials. The district court that sentenced the band members to two years’ imprisonment in penal colonies comes out as champion of the Russian Orthodox Church, its members and, most worryingly, its doctrines and tenets. In what is arguably the most contestable part of the judgment, this Court comes close to arguing that Pussy Riot committed gross offenses against state, church and religion by virtue of being feminists. The relevant part of the verdict reads, The court cannot accept the defence’s argument that the defendants’ actions were not motivated by religious hatred and animosity, or hatred against any social group. The court finds that the defendants’ actions were motivated by religious hatred for the following reasons. The defendants present themselves as supporters of feminism, a movement for the equality between women and men.57

While the Court does concede that belonging to the feminist movement is not a criminal offence in and of itself, it underscores that [a] number of religions, such as the Orthodox Church, Catholicism, and Islam, have a religious dogmatic basis incompatible with the ideas of feminism. And while feminism is not religious theory, its adherents interfere with such spheres of social relations as morality, rules of decency, family relations, sexual relations, including those which are untraditional, which were historically constructed on the basis of religious views.58 57 58

Pussy Riot case Statement of Facts, para. 3(e). Pussy Riot case Statement of Facts, para. 3(e).

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Russia’s religious believers needed protection against the harm that is feminism, this Court postulated. Yet beyond pronouncing that Russia abused its laws in order to stifle undesirable speech, the European Court of Human Rights should tackle the root cause – states retaining and enforcing their religious insult laws per se. The very existence of such laws chills critical speech since under those laws ‘religion’ becomes a taboo subject for non-believers and critical voices. The Pussy Riot case lends itself for a number of concrete steps the Strasbourg Court could take: First, to the extent that Pussy Riot did offend Patriarch Kirill of Moscow and all Rus’ and other Russian Orthodox Church leaders, the Strasbourg Court should firmly confirm the line of reasoning expressed in Klein v. Slovakia and Albert-Engelmann-Gesellschaft mbH v. Austria. What may be perceived as insulting by religious leaders typically tends to be a contribution to public debate (about religion) and, in any event, insults to religious leaders do not undermine the religious rights of religious believers, especially not when these believers form a dominant majority. Second, and more importantly, to the extent that individual believers were offended by the Pussy Riot incident the European Court of Human Rights ought to take a brave step further – it should overrule once and for all, and profoundly, its judgment in Otto-Preminger. It should state that there is no right not to be offended, no freedom from ridicule, no freedom from criticism. In order to arrive at that position a few avenues present themselves. The most straightforward route would focus on the legal entitlements of religious believers under international human rights standards: that is the point that the forum internum and forum externum do not immunize against religion-oriented offence and criticism. An important complementary route focuses on the protected status of the type of speech acts under consideration in the present debate. The term ‘gratuitously offensive speech’ is not an absolute – it is a form of judicial framing. Whenever used, the suggestion is (implicitly or explicitly) made that such speech cannot possibly contribute anything meaningful to public debate and hence is not worthy of protection. Or rather, when such speech is found to be in collision with other fundamental rights, considerations of necessity and proportionality are bound to be on the side of the scale that is not characterized by ‘gratuitousness’. That which is done with good reason self-evidently trumps that which is unreasonable. Perhaps, as suggested by Tom Lewis,59 it is time to altogether revisit 59

See the chapter by Lewis in this volume, ‘At the Deep End of the Pool’.

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this problematic obsession with ‘public debate’. That is, speech acts that contribute nothing whatsoever, that are not even meant to contribute anything, are in principle just as worthy of protection as speech acts that do. While the ‘public debate’ rationale does not question that position notionally, in practice – through its interplay with the necessity principle – this preoccupation with ‘public debate’ does function as an insurmountable a priori legal disadvantage for supposedly ‘unworthy’ speech. As an interim step, short of doing away with the ‘public debate’ rationale, the Strasbourg Court could underscore the bitter irony that the bulk of contributions that have been dismissed in the past as ‘gratuitously offensive’ have in fact contributed to public debates in major ways – blasphemy and ‘public debate contributions’ are not mutually exclusive endeavours, they occur simultaneously all the time. The taboo that is blasphemy, its offensive and oftentimes shocking nature, is precisely what ‘makes it a useful in creative endeavours’.60 The Pussy Riot case could be a good starting point for the Strasbourg Court to reconcile rather than place in principled opposition the notions of blasphemy and activist art: Their message was arguably deliberating provoking,61 deliberately offensive, and a very important contribution to public debate all the same. Branding their mission and the concomitant offence they caused as gratuitous is very much in the eye of the beholder. Pussy Riot very successfully provoked: Church leaders and members were indeed outraged, shocked and insulted. They immediately reported the incident. And in tandem with worldly authorities, who as it happened were eager to eliminate the same source of outrage albeit for political reasons, the insult got reckoned with. Yet Pussy Riot did not incite specific harms, either to church leaders or to members of the Orthodox Church. Russia has provided no proof that subsequent to the ‘Punk Prayer’ performance members of the Russian Orthodox Church have been violently attacked – with cobblestones or by other means – or that there was a clear bump in discrimination against adherents of this religious group. Accordingly, no one was mobilised against the Russian Orthodox Church 60

61

Jeremy Patrick, ‘The curious persistence of blasphemy’ (2011) 23 Florida Journal of International Law 211. See Tore Tvarnø Lind, ‘Blasphemy Cries over Pussy Riot’s “Punk Prayer”’ (2015) Danish Musicology 1–2:  ‘It hardly makes much sense to expose the direct confrontation between state authorities and the “rioting” bodies of citizens if not as a deliberate provocation; indeed I suggest that some notion of blasphemy has been put into play as a means to air the protest, to “cause a scandal and maintain its effects,” in media space’. See also Maria Chehonadskih, ‘What is Pussy Riot’s “idea”?’ (2012) 176 Radical Philosophy 4.

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or its members, and such mobilisation was also never appealed to by the band. The only discernible mobilisation was in actual fact on the part of this Church and its members.62 Yet neither their reporting the incident to the police nor their outrage and not even their genuine hurt are reliable indications of their fundamental religious rights having been affected. This sense of bias and subjectivity, and in extreme cases abuse, surrounding the enforcement of blasphemy and defamation-of-religion laws is the ultimate argument against them. All such laws are overly preoccupied with the (potential) reactions of the very group or individuals targeted by the speech act; this is the key difference with high-threshold ‘incitement’ laws wherein the likelihood of adverse reactions by a third party, the audience of the hateful speech, vis-à-vis the verbally targeted group may trigger the inchoate offence.63 Religious sensitivities can be mobilized, spurred on, orchestrated or simply overstated.64 Different intermediaries, we have learned from previous major speech rows, may fuel outrage.65 Blasphemy laws stake the freeness of speech on the thickness of the skin of religious believers.

62

63 64

65

As Lind (ibid., at 34)  points out, ‘The loud blasphemy cries uttered widely by the Patriarchate and in public over “Punk Prayer” arguably had an impact on the prosecution in court, turning the hooligan paragraph into something like an ad hoc or de facto antiblasphemy paragraph. The trial even spawned further legal sanction possibilities against future punk art activism to offend patriarchs in power’. Temperman, Religious Hatred and International Law. See the chapter by Cornils in the volume, making a similar observation with respect to the German legal framework on defamation of religion. See the chapter by Scharffs in this volume on how different intermediaries, such as the speaker affinity group or the victim affinity group, play a crucial role in this context – be it positively or negatively.

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PA RT   V Active Blasphemy/Religious Defamation Laws

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11 Religious Insult and Blasphemy in Contemporary Finland Tuomas   Äyst ö

11.1

Introduction

Finland has criminalized religious insult and blasphemy as breach of the sanctity of religion (henceforth here called BOSR), which is section 10 of chapter 17 of the Finnish criminal code: A person who

(1) publicly blasphemes against God or, for the purpose of offending, publicly defames or desecrates what is otherwise held to be sacred by a church or religious community, as referred to in the Act on the Freedom of Religion (267/1922), or (2) by making noise, acting threateningly or otherwise, disturbs worship, ecclesiastical proceedings, other similar religious proceedings or a funeral, shall be sentenced for a breach of the sanctity of religion to a fine or to imprisonment for at most six months.1 Unlike most European states, the Finnish religious insult section is still enforced, although quite rarely. The aforementioned section came into effect in 1999, and between 1999 and 2015 there have been roughly fifteen guilty verdicts.2 Most of them have revolved around online writings, and most have concerned Islam or Muslims. There are, however, some convictions that have to do with offline actions as well and some where the

1

2

This is an unofficial English translation by the Ministry of Justice, available at www.finlex .fi/en/laki/kaannokset/1889/en18890039. There are no official statistics available on the application of different laws by the Finnish courts. This estimate is based mainly on the annual statistics provided by a research institute Krimo (formerly Optula). See Hannu Niemi and Tapio Lappi Seppälä, Seuraamusjärjestelmä 2014. Kontrollijärjestelmä tilastojen ja tutkimusten valossa (Helsinki:  Institute of Criminology and Legal Policy, University of Helsinki, 2015), at Appendix 4.

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targeted religious groups identified as Christian or Jewish instead. The penalties have been almost exclusively small fines.3 This chapter traces the historical and societal background of the current Finnish religious insult and blasphemy criminalization, and it explores the contemporary legal scholarship on the section, as well as the case law. The case of Jussi Halla-aho is examined in length due to its centrality in legal and public debate. The chapter aims to view the legislation and the legal practice in its sociocultural context, and the assumed approach is more empirical than normative. It also examines how the Charlie Hebdo attack and other big events relate to the contemporary Finnish understanding of governmental control vis-à-vis offences against religious sentiments.

11.2

Historical Developments and Societal Contexts

The Criminal Code of Finland is among the oldest in Europe: it was initially formulated in 1889, during the era when Finland was a Grand Duchy of Russia.4 The original Code had a Chapter  10 titled ‘Religion crimes’, and it comprised six sections. It criminalized, for example, blaspheming towards God, defamation of the holy word of God, creed, sacraments or ecclesiastical practice and prevention of religious proceedings. Before the Code of 1889, convictions like these were very rare in tsar-era Finland. However, already at the turn of the century blasphemy convictions, or convictions having to do with the defamation of religious dogmas, were in the hundreds.5 According to Riku Neuvonen, this had largely to do with the incorporation of the ‘religious sentiments’ among the targets of protection in addition to ‘God’ – a legal feature preserved to this day – as well as the societal aim to limit the political writings of socialists, who often were anti-Church. Many leftists were indeed convicted in the early twentieth century.6

3

4

5

6

In one case the defendant, who had made a Muhammad caricature, was sentenced to more than two years in prison. See Turku Court of Appeal (R 08/1921); District Court of Tampere (R 07/3284). However, this was due to his other crimes: he had created, e.g., mocking websites of several Finnish public figures and was consequently found guilty of aggravated defamation in accordance with Article 24(9) of the Criminal code. The Criminal Code of 1889 is available in Finnish at www.mlang.name/arkisto/rikoslaki .html. Riku Neuvonen, Sananvapauden sääntely Suomessa (Helsinki:  Lakimiesliitto, 2012), pp. 209–210. Neuvonen, Sananvapauden sääntely Suomessa, pp. 209–210.

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Finland became an independent state in 1917 upon the collapse of the Russian Empire, enacting its first constitution in 1919. The Constitution granted the citizens the rights to freely practise religion in accordance with the law and good manners, as well as the right to disaffiliate, or join another religious community.7 These were accompanied and specified by the first Freedom of Religion Act, which came into effect in 1923, and it explicated, for example, the requirements of registering a religious community – a legal personality tailored for religious groups, which is elaborated later in this chapter due to its significance in the context of the BOSR. According to Juha Seppo, these legal changes were connected to the changes in society, as well as to legal developments expanding the civil rights in general.8 The decades after World War II saw intense economic growth and increase in the level of education, as well as increased gender equality. Finland transformed from an agricultural society towards an urbanized Nordic welfare state at a fast pace, with people moving increasingly into cities. Relatively homogenous culture and religious landscape, dominated by Christian morality and the Evangelical Lutheran Church, were also becoming more diverse and challenged. There was, at the time, a level of political and moral conflict between Christian conservatives and leftist liberals and between different generations. These were the primary contexts for two famous Finnish blasphemy cases from the 1960s: those of Hannu Salama and Harro Koskinen. At the time, criminalization of blasphemy was in effect as defined by the 1889 Criminal Code.9 Writer Hannu Salama published his breakthrough novel Midsummer Night’s Dance (Finnish: Juhannustanssit) in 1964. It was a story of a group of young Finns spending a lively summer night, written with a lot of description about alcohol use and sex. The novel initially met with praise from the critics, but it did not get much popular attention until Martti Simojoki, the archbishop of the Evangelical Lutheran Church, argued in a speech that it contained blasphemous elements. The most pressing issue was a scene in which one character talked in a manner that could be interpreted as a parody sermon, including a part where Salama describes Jesus

7 8 9

Juha Seppo, Uskonnonvapaus 2000-luvun Suomessa (Helsinki: Edita, 2003), pp. 38–47. Seppo, Uskonnonvapaus 2000-luvun Suomessa, pp. 38–47. Section 1 of Chapter  10 (titled ‘Religion crimes’) stated:  ‘A person who publically blasphemes against God, shall be sentenced to hard labor for at most four years, or to imprisonment. If the act is committed out of thoughtlessness, the person shall be sentenced to fines or to imprisonment for a most six months’.

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as having regular intimate relationships with a donkey. This eventually led to blasphemy charges against Salama. The Supreme Court found him guilty of blasphemy and sentenced him to conditional imprisonment for three months. The process was concluded by the president of Finland, Urho Kekkonen, who decided to pardon Salama in 1968 – an outcome seen as a moral victory for the progressive youth of the era.10 Salama’s case is recognized among the most famous court proceedings in Finnish legal history. The novel has since become a part of the Finnish literary canon. However, an uncensored version was not published again until 1990.11 Harro Koskinen, in turn, was an artist who published his paintings Pig Messiah and Pig Coat of Arms (Finnish: Sikamessias and Sikavaakuna) in 1969. The paintings portray a crucified pig and the coat of arms of Finland with the heraldic lion replaced by a pig, and they were displayed in an art exhibition in Helsinki. Similarly to Salama, Koskinen was convicted of the crime of blasphemy but also of defaming the coat of arms of Finland and sentenced to fines by the Supreme Court. He was not pardoned. The paintings targeted the religious as well as the national sentiments and symbols, and the conviction reflects how these were deemed to be interwoven at the time.12 Today, however, the paintings are usually perceived as quite mild in their offensiveness – a change in attitudes quite similar to, say, the film Life of Brian (1979). In the late 1980s Finland began to receive a growing number of refugees and asylum seekers. Also, people from the former Soviet Union and the former Eastern Bloc countries started immigrating mostly in the 1990s. While most immigrants have been Christians, Muslims with African or

10

11

12

I. Arminen, ‘Kirjasodat’, in Pertti Lassila (ed.), Suomen kirjallisuushistoria 3: Rintamakirjeistä tietoverkkoihin (Helsinki: Finnish Literature Society, 1999), pp. 220–226. Interestingly, there are some striking similarities between the case of Hannu Salama and the Dutch case of Gerard Kornerlis van het Reve in 1968, the last blasphemy trial in the Netherlands. Also concluded by the Supreme Court, the case was called ‘the Donkey trial’, and it, too, concerned literary works that were considered to defame the Christian God. In Reve’s case, the author had published a book (Nearer to Thee) and a shorter text in a magazine in which he described the protagonist (the author himself) as having sex with God in the form of a donkey. A key difference, however, was that Reve was acquitted. For details of the Reve case, see Janssen’s chapter in this volume, ‘The Rise and Fall of the Offence of Blasphemy in the Netherlands’. Pauli Rautiainen, Kuvataiteilijan oikeudellinen asema. Ammattimaista taiteellista toimintaa rajoittava ja edistävä oikeussääntely (Tampere: Tampere University Press, 2012), pp. 103– 105; Juha Malmisalo, ‘Räikeä sikamessias säväytti 1970-luvulla’, available at www.teologia .fi/artikkelit/uskonto-ilmiona/443-reikamessias-sytti1970-luvulla.

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Asian origins from countries such as Somalia and Iraq also immigrated.13 In early 2016, there were estimated to be about 70,000 Muslims in Finland. Immigration has contributed to the diversification of the Finnish religious landscape, though the majority of citizens (about 73 percent in early 2016) have still remained as members of the Evangelical Lutheran Church. The 1990s also saw a growth of intense public debate on the multiculturalism and especially Muslim-related issues, and these were further intensified after the 9/11 events in 2001. At the level of the state, official strategies related to the governance of cultural diversity were introduced in the 1990s and 2000s. These relate to the broad topic of immigrant integration. Finland has, for example, encouraged immigrant groups to form voluntary associations to represent them, with whom officials could then have a dialogue and start various projects.14 Finnish education legislation, including the model of religious education (in which pupils’ ‘own religion’ is taught in schools as part of an otherwise uniform curriculum), similarly reflects the interest of immigrant integration but also the aim to allow immigrants to preserve their own culture.15 In general, Finland is a country with a large number of voluntary associations, and they are seen as the heart of civil society. Immigrants were quick to adopt this culture.16 This association-oriented approach is also visible in the Finnish arrangement regarding the legal personality of religious groups: religious groups are required to register (either as religious communities or as regular associations) before they can gain legal personality. In 1995, Finland completed a reform of the fundamental rights section of the Constitution (which remained intact under the new 2000 constitution). Among the renewals, the scope of application of freedom of religion was expanded by granting everyone the ‘freedom of religion and conscience’, denoting that non-religious but comparable convictions are to be included among the constitutionally protected rights.17 Finland also joined the EU in 1995. The contemporary Freedom of Religion Act came into effect in 2003, and it contained several changes. The most crucial 13

14 15 16 17

Islam and immigrated Muslims may be said to have received disproportionate media and scholarly attention. See T. Martikainen, Religion, Migration, Settlement. Reflections on Post1990 Immigration to Finland (Leiden: Brill, 2013), pp. 2–17. Martikainen, Religion, Migration, Settlement, pp. 86–98. Tuula Sakaranaho, ‘Religious education in Finland’ (2013) 49:2 Temenos 225–254. Martikainen, Religion, Migration, Settlement, pp. 86–98. Seppo, Uskonnonvapaus, pp. 53–57.

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parts, in terms of the BOSR interpretation, have to do with the legal personality of a ‘religious community’, which is examined in the next section. There have been several attempts to modify or remove the Finnish blasphemy and religious insult sections, and these questions have been contentious since the formulation of the original Penal Code of 1889. For example, in 1970 the government proposed a renewed ‘religion crimes’ chapter, wherein the specific blasphemy penalization was to be removed and a more general religious insult criminalization introduced; however, the blasphemy criminalization was retained by the Parliament. Oftentimes the Finnish political left has been critical towards the special legal position of the Lutheran Church, also in direct relation to the protection rendered by the religion crime sections. A Finnish political phenomenon commonly referred to as ‘immigration criticism’ entered mainstream politics in 2011 when the Perussuomalaiset party18 got 39 out of 200 seats in the Parliamentary elections.19 In 2015 elections, Perussuomalaiset maintained their strong position and entered the government as Finland’s second-largest party. The party has struggled with its public image for years, constantly facing criticism over allegedly racist statements made by its representatives, as well as over the connections of some of its politicians to nationalist organization Suomen Sisu or neo-Nazi group Suomen Vastarintaliike. One of the most visible figures associated with this immigration criticism has been Jussi Halla-aho. He was also convicted of BOSR in 2012, as explored in a separate section below. Several BOSR and hate speech convictions have do with verbal attacks on Islam or Muslims, and the anti-Islam and anti-immigrant political trends are, indeed, among the ingredients that strongly characterize the legal discourse on religious insult legislation in Finland.

11.3

The Contemporary BOSR Section: Legal Analysis

The contemporary Finnish breach of the sanctity of religion section (Chapter  17, section 10)  contains three separate criminalized 18

19

The party’s name is the Finns Party in English, but it was known as True Finns before August 2011. Due to the name change, the stable Finnish name Perussuomalaiset is used in this chapter. Niko Pyrhönen, The True Colors of Finnish Welfare Nationalism. Consolidation of NeoPopulist Advocacy as a Resonant Collective Identity through Mobilization of Exclusionary Narratives of Blue-and-White Solidarity (Helsinki: Svesk Social- och Kommunalhögskolan, University of Helsinki, 2015).

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acts:  (i)  public blaspheming against God, (ii) publicly defaming or desecrating what is held to be sacred by a church or a religious community and (iii) disturbing religious proceedings. The first one is the most controversial but also the most unused aspect of the section. The third prohibition is, in turn, the most uncontroversial but also rarely enforced. The most actively applied part of the section is the prohibition of the defamation or desecration of the sacred, and it is thus the central focus of this chapter. Most public discussion on the Finnish religious insult criminalization also occurs with this second part of the BOSR in mind. The government’s bill, which was the source of the current BOSR section, argued that the contemporary prohibition of religious insult aims to take into account religious plurality and that it intends to protect the religious sentiments of the citizens as well as the public order rather than ‘religions themselves’ or the ‘Christian God or the comparable figures of other religions’.20 The government initially proposed a section wherein the criminalization of blasphemy was removed and the other aforementioned aspects retained. The bill argued, since the old blasphemy section had not been used since its previous reformulation in 1970, that it is difficult to distinguish between blasphemy and ironic critique of religion and that the prohibition of blasphemy could be used to suppress public discussion and artistic expression (a clear reference to the convictions in the 1960s); and therefore, criminalization of blasphemy ought to be dropped.21 While the Legal Affairs and Constitutional Law Committees mostly agreed with the government’s formulation of the BOSR,22 the criminalization of blasphemy explicitly employing the word ‘God’ resurfaced in the later stages of the parliamentary discussion and voting – similarly to the 1970s. Thus, there are no preliminary work documents supporting this move.23 The precise legal meaning of the current blasphemy (against God) criminalization remains quite unclear, as there is no contemporary case law elucidating its contours either. One could note that inserting ‘God’ with an uppercase letter (‘Jumala’ in Finnish) adds a clear JudeoChristian connotation. The blaspheming must be committed publicly, but

20

21 22

23

Government bill regarding the renewal of legislation concerning crimes against judicature, officials, public order, and sex crimes (HE 6/1997). HE 6/1997. Constitutional Law Committee statement on Government Bill 6/1997 (PeVL 23/1997); Legal Affairs Committee report on Government Bills 6 and 117/1997 (LAvM 3/1998). Tuomas Äystö, ‘The Sacred Orders of Finnish Political Discourse on the Renewal of the Blasphemy Law’, Numen (2017, forthcoming).

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the intention to offend is not a requirement, a sharp difference compared to the offense of defamation of the sacred.24 The third part prohibits the disturbance of ‘worship, ecclesiastical proceedings, other similar religious proceedings or a funeral’. The government’s bill does not offer many details on this prohibition,25 but it is clear that it is understood as a freedom of religion protection: enabling people to practice their religion (privately) without interruptions. There is very limited case law having to do with this aspect of the BOSR, and perhaps due to is relatively uncontroversial status, also legal discourse on it is scarce. Concerning the second and most actively used aspect of the BOSR, the defamation or desecration of the sacred has to be committed publicly and with intent. Intentional defamation or desecration is characterized by the government’s bill as ‘expressing a notion about something held to be sacred that is bound to depreciate the object in the views of other people’.26 According to the bill, the insulting nature of the actions has to be potentially understandable to outsiders as well.27 Another feature, which also makes Finland, to a degree, distinct from many other countries, is the requirement that the victim has to have the proper legal personality, that is, they need to be a ‘religious community’ as defined by the Freedom of Religion Act of 2003. Hence, the BOSR offense is intended to apply to the two national churches with a special legal position, the Evangelical Lutheran Church of Finland and the Finnish Orthodox Church,28 and to the registered religious communities. The latter category refers to other groups that have successfully applied for such status. The Freedom of Religion Act defines a ‘registered religious community’ as follows (chapter 2, section 7): The purpose of a religious community is to organise and support the individual, community and public activity relating to the professing and practising of religion which is based on confession of faith, scriptures regarded as holy or other specified, established grounds of activity regarded as

24

25 26 27 28

Anna Saarela, ‘Uskonnollisten loukkausten kriminalisointi erityisesti sananvapauden näkökulmasta’, (2011) 1 Helsinki Law Review 1, pp. 37–64; Riku Neuvonen, ‘Kommentaari’, in Riko Neuvonen (ed.), Vihapuhe Suomessa (Helsinki: Edita, 2015), pp. 76–77. HE 6/1997. HE 6/1997. HE 6/1997. Kimmo Kääriäinen, ‘Religion and state in Finland’, (2001) 24:2 Nordic Journal of Religion and Society 155–171.

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sacred. The community shall realise its purpose respecting the basic and human rights. The purpose of the community is not to seek economic profit or otherwise organise mainly economic activity.29

Twenty adult founding members are required for an application, and the group must demonstrate via the application and the attachments that their activity is based on ‘confession of faith, scriptures regarded as holy or other specified, established grounds of activity regarded as sacred’. The registration is handled by the Patent and Registration Office, which is advised by a group of religion experts. Registered religious communities gain the right to apply for the permission to perform legally valid marriage ceremonies, the right to receive religious education in schools in accordance with the ‘pupils’ own religion’, as understood in the Finnish religious education model, and protection under the BOSR section.30 The concept of sacred is thus central, both in the definition of ‘religious community’ and in the characterization of ‘religious insult’ itself. In the Freedom of Religion Act, the concept of ‘sacred’ functions as a way to broaden the scope of application to non-Christian groups as well. That is to say, the ‘confession of faith’ and ‘scriptures’ as distinguishing features of religion originate quite clearly from the Christian vocabulary, while the attribution of ‘sacredness’ towards a group’s principles and practices is understood to be a more universal criterion for defining religion. Regarding the BOSR, the government’s bill admits that the concept of sacred is not very precise but that it refers to something the members of a religious community greatly respect.31 Further, it is admitted that there are differences between religious groups, but in practice, the concept of sacred ‘can be seen to have a well enough established meaning’.32 While the bill emphasizes how the sacred is defined by the religious community and that views of the complainants and expert opinions can surely be taken into account during proceedings, ultimately both the sacred and what is to be considered offensive towards it is left at the discretion of the 29 30

31 32

Translation by the Finnish Patent and Registration Office. Norman Doe, Law and Religion in Europe: A Comparative Introduction (Oxford and New York: Oxford University Press, 2011), pp. 88–133; Teemu Taira, ‘Religion as a discursive technique: The politics of classifying Wicca’ (2010) 25:3 Journal of Contemporary Religion 379–394; Kääriäinen, ‘Religion and state in Finland’; and Lisbet Christoffersen, ‘Religious entities as legal persons – Northern Europe (Nordic and Baltic countries)’, in Lars Friedner (ed.), Churches and Other Religious Organisations as Legal Persons (Leuven: Peeters, 2007). HE 6/1997. HE 6/1997.

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officials. As Anna Saarela has pointed out, this might prove to be a challenging task in the case of religions that officials are less familiar with, such as Buddhism.33 The section on increased punishment regarding religion-related motives might overlap with the protection rationale of the BOSR section. Chapter 6, section 5 (‘Grounds increasing the punishment’) states that a motive based on religion is a ground for increasing the punishment. Legal scholar Riku Neuvonen has posited that due to this overlap in the case of religion crimes, the BOSR and the section on increased punishment cannot be used at the same time.34 The ethnic agitation offense (chapter 11, section 10, also called incitement to hatred) also has similarities with the BOSR. Ethnic agitation lists religion as a possible basis for a group of people that is threatened, defamed or insulted publicly, along with for instance skin colour, national or ethnic origin and sexual orientation. The key difference is that this section seeks to protect people, especially minorities, from hate crimes and hate-related violence in accordance with international treaties (notably the International Convention on the Elimination of All Forms of Racial Discrimination),35 whereas the BOSR focuses on the religious sentiments and the public order, and it originates more clearly from national legal and societal history.

11.4

Contemporary Religious Insult Convictions

Most Finnish religious insult cases are handled as freedom-of-expression cases. By convention, these are prosecuted by the Prosecutor General. As is the case with contemporary hate speech generally, most of the convicted actions have occurred online, but there are a few exceptions. This section explores the Finnish case law having to do with the breach of the sanctity of religion (the case of Halla-aho is explored separately in the next section). Cases having to do with potential religious insult but which have not led to a conviction are described here as well in order to grasp the demarcation between acceptable and unacceptable acts according to Finnish legal practice. Unless specified otherwise, the punishments have been consistently small fines.

33 34 35

Saarela, ‘Uskonnollisten loukkausten kriminalisointi’, p. 49. Neuvonen, ‘Kommentaari’, p. 83. Neuvonen, ‘Kommentaari’, pp. 39–41.

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The convictions of Hannu Salama and Harro Koskinen in the 1960s were about art. Today, however, the Finnish religious insult offense is practically never used to restrict artistic expression, including music and visual works. In the early 2000s a metal band member continuously stepped on a cross while shouting ‘fuck Christ’ during an open-air performance. In a somewhat similar example, a metal band member tore a Koran apart onstage in 2011. It may be observed that the black metal music that is popular in Finland typically contains details that are potentially religiously offending; the musical genre was also linked by the media to a large satanism scare in the 1990s.36 There are, however, no examples of religious insult convictions concerning musical works or performances like the ones described just now. Similarly, most Muhammad depictions are not prosecuted in Finland.37 A  notable example is the cartoonist Ville Ranta, who has drawn Muhammad a few times as a cartoon character in the 2000s without any legal repercussions (nor public outcry for that matter). The Jyllands-Posten Muhammad caricatures were republished by the nationalist organization Suomen Sisu ry, and this was investigated by the police, but the charges were dropped by the prosecutor.38 In a somewhat similar case, in which a person had drawn Muhammad and Allah in a sexually derogatory context and considered in an online discussion to draw it also on a napkin of a certain Muslim-owned restaurant (but did not carry out the plan), the prosecutor decided not to categorize the case as a breach of the sanctity of religion.39 Swedish photographer and artist Elisabeth Ohlson Wallin displayed her Ecce Homo photo exhibition in Helsinki in 2000, in which she portrayed the biblical story of Jesus using symbolism from the LGBT culture. The exhibition met with a quite large amount of public criticism, but the artist was not prosecuted. Other examples in which the Prosecutor General considered the case as a potential religious insult but decided not to pursue charges include several drawings of the Christian cross, Jesus and priests, published by a Finnish atheist and freethinkers association Vapaa-Ajattelijat ry.40 In the 36

37 38 39 40

Titus Hjelm, Henrik Bogdan, Asbjørn Dyrendal and Jesper Petersen, ‘Nordic satanism and satanism scares: The dark side of the secular welfare state’, (2009) 56:4 Social Compass 515–529. An exception: Turku Court of Appeal (R 08/1921); District Court of Tampere (R 07/3284). Prosecutor General of Finland (R 06/11). Prosecutor General of Finland (R 09/4). Prosecutor General of Finland (42/27/06).

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pictures Jesus is depicted, for example, as walking on all fours and carrying donkeys while the attached text says ‘in the beginning, Jesus relied on a donkey, but now…’ – implying that now donkeys rely on Jesus (‘donkey’ being slang for a stupid person). In another dropped case, a priest of the Evangelical Lutheran Church had, in a published writing, characterised the Catholic and the Orthodox churches as being based on false doctrine and also criticized several specific features, such as celibacy and other rituals, while calling the Catholic Church a ‘deceiving white Satan’.41 In a final example, a representative of an Islamic community had described the Christian Eucharist as a ‘bloody, cannibalistic and nonsensical activity that is defamatory against the prophet Jesus’.42 In all of these cases, the prosecutor deemed the actions within the accepted boundaries of free speech. In 2005, two anti-immigrant and anti-Islam activists made several blogs and webpages that contained caricatures of Muhammad and Allah depicted in various defaming contexts, for instance, as having sex with animals. They also wrote in several places that people of African or Muslim background are a ‘disease’ and akin to ‘animals’. In addition, they continuously made mocking websites and blogs about several Finnish public figures, particularly the ones they opposed politically. The court found them guilty of breaching the sanctity of religion due to the caricatures. They were also convicted of ethnic agitation and aggravated defamation.43 The defendants were punished with one year and two months and with two years and four months in prison, respectively. The prison sentences were mostly due to the crime of aggravated defamation. Be that as it may, this is the only instance in which Muhammad depictions have led to a BOSR conviction in Finland. In 2014 a person had written on his personal Facebook page as well as on his blog that people of African or Middle-Eastern origin (using derogatory names) are, determined by their ethnic background, prone to rape Finnish women. The defendant also claimed that this disposition towards rape was due to the alleged perpetrators’ religion, Islam. He continued to state that violence and mutilation form the core of the Muslim culture. Concerning the prophet Muhammad, the defendant implied that the prophet’s example allowed and encouraged paedophilia, claims also made vis-à-vis Ayatollah Khomeini. The court found the defendant guilty of 41 42 43

Prosecutor General of Finland (3/27/05). Prosecutor General of Finland (R 08/10). R 07/3284; R 08/1921.

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ethnic agitation and BOSR. The district court argued that it was clear the defendant had defamed things and persons considered sacred in Islam.44 To pick an example from the Christian context, in 2003 and 2004, a person flooded a Christian internet forum called ‘Church café’ with random texts as well as with anti-Christian statements, attacking the Holy Trinity in particular. The defendant expressed, for several months, various forms of mockery of Jesus, the Holy Spirit and the Father and was eventually found guilty of breaching the sanctity of religion.45 The court, strikingly, did not refer to the blasphemy aspect of the BOSR section – the one mentioning God explicitly – but argued instead that the defendant had defamed that which is considered sacred by Finnish Christians, the Holy Trinity.46 There are a few examples of offline actions as well, which have led to religious insult convictions. In 2006, a person spattered animal blood on a mosque located in Kajaani, Eastern Finland. The perpetrator had antiIslamic and anti-immigrant motives. They were initially found guilty of breaching the sanctity of religion and criminal damage by the district court.47 However, an appellate court later overruled the religious insult verdict,48 on the grounds that the community in question was not a ‘registered religious community’ (in line with the principle of legality).49 This case is interesting in at least two ways. Normally, attacks (graffiti, attempted or successful arson and so on) on buildings considered religious – attacks that are not uncommon in Finland – are handled not as religion crimes but as damage or mischief crimes. In other words, the district court passed an exceptional verdict by interpreting the case as a religious insult. It appears that the presence of blood, a substance considered highly symbolic in several (often religious) contexts, steered the District Court to interpret the actions in the light of religion crimes.50 On the other hand, the final verdict of the appellate court in the case highlights the importance of the legal category of registered religious community, which was described generally earlier. The case solidifies the 44 45 46

47 48 49 50

District Court of Pirkanmaa (R 13/6335). District Court of Tampere (R 05/3096). Note that the defendant was also convicted of interference with communications, pursuant chapter 38, section 5 of the Criminal Code. District Court of Kajaani (R 06/926). Eastern Finland Court of Appeal (R 07/200). Pursuant chapter 3, section 1 of the Criminal Code. See Tuomas Äystö, ‘Blood on a mosque: Religion and the sacred and the Finnish criminal court process’, (2017) (forthcoming) Journal of Religion in Europe.

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interpretation that the Finnish crime of breaching the sanctity of religion does, indeed, apply only to the groups with the proper legal personality – registered religious communities – even if the community in question (in this case, Islamic community) could be and self-evidently was by the officials taken to be ‘religious’. In another offline example, a Finnish translator of Robert Wilton’s The Last Days of the Romanovs (1920) included a foreword in the translated version of the book, published in 2000, and this foreword was considered anti-Semitic by the district court. The defendant was eventually convicted by the appellate court of ethnic agitation and breaching the sanctity of religion.51 The ethnic agitation conviction was due to referring to Jews as Khazars,52 and due to the defendant’s claims that Jews are, as a group, dangerous to Christians in particular and that they seek to subjugate other groups. For example, the defendant considered the 1999 NATO bombings of Yugoslavia to be organized by the Jews. The BOSR conviction was, on the other hand, due to the defendant’s verbal defamation of the Talmud. In the foreword to the translated book it is claimed, for example, that the Talmud considers only Jews as humans and orders Jews to kill Christians and other non-Jews. Accordingly, the guilty verdict on the count of religious insult was handed down since the defendant had defamed the Talmud, a book considered sacred in Judaism.

11.5

The Conviction of Jussi Halla-aho

The case of the politician, blogger and linguist Jussi Halla-aho is the most famous and influential BOSR conviction under current Finnish criminal law in the legal sense as well as in terms of public discourse. It is also the only instance wherein the current religious insult section was considered by the Supreme Court of Finland;53 hence the case will here be examined at length. The case remained within the national sphere; it has not been submitted to the European Court of Human Rights (ECtHR). MEP Jussi Halla-aho is a member of the Perussuomalaiset party and the nationalist association Suomen Sisu. He is known for his writings critical of multiculturalism, humanitarian immigration and Muslim immigration in particular through statements on his online blog, by which he 51 52

53

District Court of Vantaa (R 03/1129); Helsinki Court of Appeal (R 04/2483). A reference to Arthur Koestler’s theory from the 1970s, according to which European Ashkenazi Jews are not descended from the historical Israelites but from Turcic Khazars. Supreme Court (KKO 2012:58).

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has also achieved a solid following and voter base. In 2008, starting his career as a politician, he was elected to the Helsinki City Council. During the same year, he posted a text on his blog in which he linked the prophet Muhammad with paedophilia and called Islam a ‘paedophile religion’ and a ‘religion that sanctifies paedophilia’. He was referring to the prophet’s marriage with the supposedly young Aisha and the Islamic principle of sunna – the doctrinal principle that places Muhammad as a model for his followers. Due to this part of his writing, he was convicted of breaching the sanctity of religion by all courts from the District Court of Helsinki to the appellate court and eventually by the Supreme Court in 2012.54 In addition, the Supreme Court found him guilty of the offense of ethnic agitation as well, as he had stated in the same text that ‘[t]he robbing of people on the street and living from tax funds is a national, perhaps genetic feature of the Somalis’, one of the largest ethnic minority groups in Finland.55 This section, however, focuses on his BOSR conviction. As an additional detail, Halla-aho had directed his text as a comment to Mika Illman, who was the Prosecutor General at the time and known for his specialization in freedom-of-speech questions. Halla-aho claimed he was defending the freedom of speech and that he aimed to demonstrate an inequality between the legal treatment of offenses towards Christianity and offenses targeting Islam, referring to a certain earlier conviction and actions of the said Prosecutor General. Apparently, Halla-aho meant his text as a protest towards what he perceived as special protection granted for Islam and Muslims and the allegedly excessive restrictions of the freedom of speech. He also responded in court that his intention was not to offend but to criticise the legal practice via example. However, the writing was also clearly an expression of his anti-Islam position and a political action. The courts found it unquestionable that the text had been public, since it was published on Halla-aho’s blog. It was also clear, according to the courts, that Islam is a religion as defined in the BOSR section, as well as that Muhammad is a figure considered sacred in Islam. The linking of paedophilia with Muhammad and Islam was seen as defamation of the sacred. Concerning the intentionality of offense, the Supreme Court

54

55

District Court of Helsinki (R 09/2080), Helsinki Court of Appeal (R 09/2786); Supreme Court (KKO 2012:58). Päivi Tiilikka, ‘KKO 2012:58. Uskonrauhan rikkominen ja kiihottaminen kansanryhmää vastaan’, in Pekka Timonen (ed.), KKO: n ratkaisut kommentein 2012:I (Helsinki: Talentum, 2012), pp. 443–459.

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argued that the defendant had undoubtedly been aware of the insulting nature of his writing, and due to the fact that he had explicitly intended the text as a ‘bait for Mika Illman’, his intention to offend was demonstrated.56 The most challenging legal question was to consider the foundation for the freedom-of-speech restriction. Especially in the case of a politician, the basis for such restriction must be well demonstrated. The Supreme Court stated that Article 10 of the European Convention on Human Rights does not leave many possibilities for restricting political speech or public discussion on societal questions and that the freedom of political discussion could be restricted only due to compelling reasons. On the other hand, the court notes that ‘ECtHR has argued that even the political discussion is not completely free of restrictions, and that the democratic and pluralistic society is based on tolerance and equality’.57 The Supreme Court stated that in the case of hate speech based on religious intolerance, for example, restrictions can be legitimized, as the ECtHR case law demonstrates.58 However, the Supreme Court continued, the ECtHR had ruled that religious people need to tolerate and accept a rejection of their views and even hostile notions about their religion, but unnecessarily hostile speech that infringes on the target’s rights and that does not advance the public debate on human rights should be avoided. Therefore, freedomof-speech restrictions may be justifiable in cases of verbal attacks on religious targets, but such restriction must be proportionate.59 Furthermore, the Supreme Court took into account a 2006 Parliamentary Assembly of the Council of Europe Resolution entitled ‘Freedom of expression and respect for religious beliefs’, as well as a 2007 Recommendation by the same organ entitled ‘Blasphemy, religious insults and hate speech against persons on grounds of their religion.60 In these documents, the Council of Europe has emphasized the importance of the freedom of expression and

56 57 58

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KKO 2012:58. KKO 2012:58. ECtHR cases referred to by the Supreme Court here are:  Gündüz v. Turkey, Application no. 35071/97, judgment of 4 December 2003; Erbakan v. Turkey, Application no. 59405/ 00, judgement of 6 July 2006; Karatepe v. Turkey, Application no. 41551/98, judgement of 31 July 2007; Féret v. Belgium, Application no. 15615/07, judgement of 16 July 2009. Otto-Preminger-Institut v. Austria, Application no. 13470/87, judgement of 20 September 1994; I.A. v. Turkey, Application no. 42571/98, judgement of 13 September 2005. Parliamentary Assembly of the Council of Europe, Resolution 1510 ‘Freedom of expression and respect for religious beliefs’ (2006); and Recommendation 1805 ‘Blasphemy, religious insults and hate speech against persons on grounds of their religion’ (2007).

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recommended that religious insult should be criminalised mainly in cases where the insult is comparable hate crimes such as incitement to ethnic hatred or where the public order is significantly threatened. The Supreme Court concluded that Halla-aho’s claims about Islam, Muhammad and paedophilia were defaming and desecrating both in content and in style. The claims were of a nature, the court argued, that Muslims could justifiably feel that they were targeted by an unjust and insulting attack.61 According to the court, the insulting nature of Hallaaho’s text was strengthened by his attempt to defend his view by citing the Koran. Halla-aho’s stated aim of criticizing officials and legal practice did not justify his insults towards things considered sacred in Islam. Instead, his texts could potentially increase religious intolerance and prejudice. Due to these reasons, and due to the need to preserve the public order, the Supreme Court accepted the freedom-of-speech restriction and convicted Halla-aho of BOSR.62

11.6 Finnish Religious Insult and Blasphemy Criminalization: Discussion Generally speaking, the Finnish religious insult and blasphemy offenses have been subject of controversy for more than 100  years. Concerning the contemporary legislation, there had been a steady stream of quarrels related to freedom of expression and religious insult since 2006, when the Jyllands-Posten controversy reached Finland. Jussi Halla-aho’s highly publicized court case also sparked major debate for the entire period of the proceedings, lasting from 2009 to 2012. After the Charlie Hebdo attack, there was again a slight spike in the public discussion concerning the BOSR. While no major or concrete parliamentary action followed this event, the chairperson and MP of the Green League Ville Niinistö suggested in January 2015 that the BOSR section should be re-examined and stated that the direct mentioning of ‘God’ is particularly problematic. Niinistö argued that the criminalization of BOSR excessively restricts the freedom of speech and that such criminalisation is dated. Anna-Maja Henriksson, from the Swedish People’s Party (and Minister of Justice from 2011 to 2015), replied to Ville Niinistö by stating that freedom of speech and the need to protect the sanctity

61 62

I.A. v. Turkey, Application no. 42571/98, judgement of 13 September 2005. KKO 2012:58.

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of religion are not contradictory in the light of the Constitution or the international law. She considered Niinistö to overstate the problems of the current legislation. Jussi Halla-aho himself made a motion as an MP as early as 2013, in which he called for the abolition of the BOSR offense.63 However, he also proposed a modification of chapter 17, section 11 of the Criminal Code (the offense of ‘prevention of worship’) in a way that it would include disturbances of religious proceedings as described in the BOSR section. That is to say, he wanted to abolish section 10 but move subsection 2 to section 11. Halla-aho argued that the other parts of the BOSR section restrict valid criticism of religion and of Islam in particular, which is dangerous. He claimed that Muslims are more easily offended by criticism, and the principle of equality is therefore not fulfilled in the case of the BOSR offense. Furthermore, he held that the Finnish BOSR criminalization was, in a paradoxical manner, essentially similar to the proposal of the Organization of Islamic Cooperation concerning the combating of ‘defamation of religion’, which Finland had opposed within the international arena, notably the United Nations. Halla-aho’s legislative proposal did not progress, however. Legal scholar Kimmo Nuotio has argued that the target of protection in the case of BOSR (‘sanctity of religion’ or ‘peace pertaining to religion’ in a societal context) is nonspecific and therefore problematic.64 According to him, the Finnish society is becoming increasingly secular, and religion does not uphold the order and peace in society anymore. The BOSR offense is also too heavy a freedom-of-expression restriction, as it jeopardizes the dialogue both between religions and within them. While he admits that the notion of freedom of religion including the right to practice one’s religion without mockery is a viable one, he points out that content interpreted as insulting can lead to a BOSR conviction without a specific reference to the freedom of religion. Nuotio concludes that the BOSR section should be abolished. Instead, following the international example, religion crimes should be handled in the context of hate crimes, since religion is an element of identity, similar to for instance ethnicity, national background or sexuality. Legal scholar Anna Saarela has stated that it is difficult to argue why religious values are qualitatively different from other values in a way that 63 64

LA 39/2013. Kimmo Nuotio, ‘Jumalanpilkasta viharikoksiin’, (2009) 1 Haaste, available at www.haaste .om.fi/fi/index/lehtiarkisto/haaste12009/jumalanpilkastaviharikoksiin.html.

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would merit a special protection through criminal law.65 She argues that the BOSR section contains value-laden phrases and inaccuracy and is therefore problematic as a restriction on a fundamental right. Saarela is particularly critical towards the inclusion of ‘God’ into the blasphemy criminalisation in the Criminal Code, as this needlessly favours the majority church. She also points out how one could be found guilty of blasphemy without the specific intention to offend. She deems such criminalisation to be contradicting the principle of equality as well as the principle of proportionality applicable to restrictions on fundamental rights. Here Saarela agrees with Nuotio and states that the principle of freedom of religion does not require a separate protection of religious sentiments or religious practice, as religion-related discrimination and incitement to hatred are criminalised in other sections of the Criminal Code.66 Among the few in the legal community who have recently defended the criminalisation of religious insult and blasphemy is Kaj-Erik Tulkki,67 who argues that these offences are important in safeguarding the freedom of religion. When the rights to freedom of speech and freedom of religion are in conflict, Tulkki considers there to be cases in which this should be resolved in favour of the freedom of religion, since religion is closely connected to the forum internum, to deeply held values. According to him, offense against God can be more offensive to some than a personal offense, and since the non-religious personal defamation is criminalised as well, people cannot be expected to tolerate more severe defamation. Tulkki also does not agree with the common criticism according to which the concept of ‘God’ makes the criminalisation too Christianity specific and holds that the Finnish law as a whole protects all religious and other convictions equally. Legal trade magazine Juristikirje conducted a poll in 2012 in which it asked what legislation Finnish jurists would most willingly abolish. The most common answers were the unlawful use of narcotics and the offense of breaching the sanctity of religion. Moreover, several law professors, including Erkki Havansi and Matti Tolvanen, have voiced their critical attitude towards the BOSR offense in the media.

65 66 67

Saarela, ‘Uskonnollisten loukkausten kriminalisointi’. Chapter 11, sections 11 and 10, respectively. Kaj-Erik Tulkki, ‘Uskonnonvapauden ja sananvapauden keskinäisestä suhteesta rikosoikeuden kannalta arvioiden’ (2010) 28 Edilex, 1–9.

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In general it is, then, a widely held opinion among Finnish jurists that the criminalisation of religious insult is problematic. It should be noted that in the early 1990s the group of top legal experts who largely formulated the earlier-mentioned government’s bill on the matter at hand as part of a complete reform of the Finnish criminal law still supported the BOSR offense roughly as it is known today,68 albeit that the criminalization of the defamation of ‘God’ was, as discussed, added by the Parliament, not by these experts.69 It is difficult to conclusively assess why Finnish legal experts did not propose the complete abolition of religious insult criminalization in the 1990s, while its problems and its inactive status were flagged since the early 1970s.70 Religion scholar Ilkka Pyysiäinen has called the historical Finnish blasphemy prosecutions and verdicts arbitrary, arguing that you can easily find examples in the areas of art and public discussion in the 1960s and 1970s that are similar to the text of Hannu Salama that, however, did not lead to any legal repercussions.71 As a more current and specific criticism, legal scholar Jyrki Virolainen commented on his blog in 2009 that the Deputy Prosecutor General did not establish how Halla-aho’s comments about the prophet were different (in their offensive nature and in terms of intended offence) from the reproduction of the Jyllands-Posten Muhammad depictions by Suomen Sisu two years earlier – a case in which the same prosecutor decided not to press charges.72 The Danish prosecutor had not prosecuted the original publisher and artists, and, according to Virolainen, this might have affected the decision of the Finnish prosecutor. Public and expert debate on the BOSR offence and freedom of expression will undoubtedly continue in Finland. Big events involving these questions, like the Charlie Hebdo attack or a conviction of another well-known public figure, will potentially stir up similar debates in the future. How these will be reflected in future legislation is, however, another matter.

68

69 70 71 72

In the original draft of the criminal law reform project group of 1992, the proposed BOSR section was as follows:  ‘A person who, for the purpose of offending, publicly defames or desecrates what is otherwise held to be sacred by a religious community registered in Finland, or by making noise, acting threateningly or otherwise, disturbs worship, ecclesiastical proceedings, other similar religious proceedings or a funeral, shall be sentenced for a breach of the sanctity of religion to a fine or to imprisonment for at most three months’. See Äystö, ‘Sacred orders’. See HE 6/1997. Ilkka Pyysiäinen, Synti: ajatuksin, sanoin ja töin (Helsinki: WSOY, 2005). Blog available at http://jyrkivirolainen.blogspot.fi/2009/04/halla-ahon-syyte.html.

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11.7 Conclusion It is difficult to picture, at the moment, immediate major changes to the legislation. To start with, legislation enacted in the late 1990s is still relatively new, and as it is indeed enforced, it cannot easily be dismissed as dead letter. The fact that the legislation is relatively new and was not abolished during the criminal law reforms of the 1990s is also among the central reasons why Finland still enforces the religious insult offense, unlike most other European countries. Most Finnish legislation is drafted in the form of government proposals, and the current government (in office since May 2015) has not displayed any interest in the issue, and it is unlikely it will develop such an interest. A citizens’ initiative by OulaAntti Lintula,73 seeking to abolish the BOSR section, failed to acquire the required 50,000 signatures in early 2015 (the initiative garnered a mere 3,000 supporters), which reflects that the criminalisation of religious insult and blasphemy is not perceived as a major societal issue in Finland at the moment. All known Finnish religious insult or blasphemy cases from contemporary to the historical ones have concerned either Christianity, Judaism or Islam. While Christians and Muslims do indeed account for the biggest religious groups in today’s Finland, Jews do not (there are, for example, more Buddhists and Hindus than Jews in Finland). The fact that Christianity, Islam and Judaism are the most well-known and familiar religions to the general population and, in the case of the first two, the most visible ones as well, is certainly crucial. Presumably the members of less visible and less known religions, should they feel that they are targeted by punishable religious insults, are required in practice to take a more proactive role if they wish a legal proceeding. Following similar patterns, Finnish hate crimes proceedings in relation to religious target groups have mostly revolved around Christians, Muslims and Jews too. In assessing this, one should also take into account the history of Finnish racism, in which Jews and later Muslims have often been targeted.74

73

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Citizens’ initiatives were introduced in 2012. Citizens may propose legislative drafts to be submitted to the Parliament; 50,000 statements of support from people of voting age are required. The Ministry of Justice maintains an electronic platform for setting up the initiatives and collecting supporters. So far, one citizens’ initiative (calling for the legalization of same-sex marriage) has been successful. Jari Hanski, Juutalaisviha Suomessa 1918–1944 (Helsinki:  Ajatus Kirjat, 2006); Vesa Puuronen, Rasistinen Suomi (Helsinki: Gaudeamus, 2011).

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Historians of blasphemy in medieval Europe have pointed out that blasphemy was often considered a societal crime. By blaspheming God, the perpetrator also effectively attacked the legitimacy of the ruler and the moral order of society.75 To make a comparison: it would be misleading to interpret the contemporary Finnish legal practice on blasphemy and religious insult as a phenomenon exclusively related to personal religious sentiments, as if religion was about some isolated sphere of the human world (a notion the modern religion as a private matter discourse has solidified). In Finland, early twentieth-century blasphemy convictions often purported to restrict the anti-Church activism of socialists.76 This was connected, in turn, to the desire to oppose bolshevism and the Soviet Union. In the 1960s, leftist artists Hannu Salama and Harro Koskinen were convicted of blasphemy due to their works mocking Christian symbols with strong national connections. In the era of the current Criminal Code provisions on religious insult (1999 onwards), a socio-political link is arguably still present, but the Finnish society, its political configuration and the overall legislation have certainly changed. Contemporary Finland relies on human rights and fundamental rights discourses and aims to protect, for example, its minorities. Finland is also no longer so clearly defined by the Nordic Lutheran discourse on religion and morality, while these remain as influential. Unlike in the past, when leftists were commonly found guilty of religious insult, many of the convicted anti-religion actions now stem from the far right, and they are connected to political motives of opposing such phenomena as immigration, humanitarianism, multiculturalism or Islam. The Finnish BOSR section, along with the related ethnic agitation offense and certain other sections of the Criminal Code, is best understood as an attempt to maintain the desired societal order amid challenges posed by growing diversity.

75

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David Nash, Blasphemy in the Christian World. A History (New York:  Oxford University Press, 2007). See Neuvonen, Sananvapauden sääntely Suomessa, pp. 208–213; Eino Murtorinne, Taistelu uskonnonvapaudesta suurlakon jälkeisinä vuosina (Helsinki:  WSOY, 1967), pp. 237–254. There are also similarities between, for example, Finland and the Netherlands in the sense that in the Netherlands, the blasphemy offence was specifically created in 1930s in order to fight the communist propaganda. See Janssen’s chapter in this volume, ‘The Rise and Fall of the Offence of Blasphemy in the Netherlands’.

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12 The Blasphemy Offence in the Italian Legal System Cristiana Cianitto

12.1

Introduction

In Italian society, as in many other European countries, ethnic, racial or religious conflicts are on the rise owing to the rapid and considerable increase in migration flows. Although the number of immigrants in Italy is not as high as public opinion has been led to believe and is actually in line with the European average,1 the news increasingly reports episodes highlighting the difficulties in living together encountered by different ethnic, racial, national and religious groups. For a long time Italy was a religiously homogeneous nation where religious conflicts were very limited. Long a land of emigration, it was only when Italy turned into a destination for immigrants at the end of the economic boom that the various ethnic and religious communities began to require more solid protection of their diversity from the authorities. However, they came up against a backward legal system that only provided legal protective measures for the Roman Catholic religion, and for a considerable period these were not extended to other religious groups. Moreover, the legal protection of individual religious belief had many omissions, and it was only in the 1990s that the legislation repressing instigation to racial hatred was extended also to religious affiliation.

1

The National Institute for Statistics (ISTAT) indicates that on 1 January 2015 8.3 percent of the total population are foreign people legally resident in Italy. Following the last census of 1 January 2011, the number of foreign people legally resident in Italy at that moment was 7.5 percent of the total population, with a prevalence of people from East Europe (21.2 percent Romanians; 10.6 percent Albanians; 9.9 percent Moroccans). See www.tuttitalia .it/statistiche/cittadini-stranieri-2011/. Spain, Germany, Great Britain and Italy alone absorb more than half of the immigrants coming to Europe. For further information, see the Eurostat site, in particular http://ec.europa.eu/eurostat/statistics-explained/index.php/ Migration_and_migrant_population_statistics.

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In the last decade, the ‘religious factor’ has become important above all with regard to culturally motivated crimes.2 This may also be explained by the fact that many immigrants arrive in Italy not through their own free choice but because of severe socio-economic conditions in their regions of origin. In many cases for these immigrants integration into their destination society is not their first objective, and this becomes a realistic prospect only when they have achieved a certain degree of economic stability.3 Before reaching this threshold, maintenance without compromising their own cultural and religious identity is a widespread attitude that can lead to deep conflict even within the same family groups in which younger individuals, who have often been born in the land of immigration, feel more strongly the appeal of the society they live in compared to the older generations. In these contexts phenomena such as the old honour crimes – a manifestation of the wish to remain well integrated in the orthodoxy of the culture and religion of origin4 – or forms of membership of associations for subversive purposes – in which the common religious affiliation acts as an element of powerful encouragement to fight against a society which is necessary for material reasons but which at the same time is perceived as extraneous and dangerous5 – can easily arise. The Italian legal system is therefore faced with a series of new problems raised by a society that is becoming increasingly multicultural. It is necessary to find new points of balance between the legitimate requirements of the group, which claims secure criteria on which to base the concept of affiliation, and the fundamental rights of its individual members who no longer recognise themselves in the original group or in some of its principles and who call on the state to provide protection from this group.6 This is all the more true for the issue of fundamental rights, such as freedom of religion and freedom of expression, standards that may be explained 2

3 4

5

6

For a complete treatment of the phenomenon, see Fabio Basile, ‘Società multiculturali, immigrazione e reati culturalmente motivati’ (2007) 4 Rivista Italiana di Diritto e Procedura Penale, pp. 1296–1345. See Alessandra Facchi, I Diritti nell’Europa Multiculturale (Bari: Laterza, 2001), p. 11. The news section of the Italian newspapers report cases of serious crimes, in family contexts, in which women who are ‘too Westernised’ are killed to save the honour of the family. The cases of Hina and Sanaa have become well known, but there is no lack of other examples. See Giommaria Monti and Marco Ventura, Hina. Questa è la Mia Vita (Milano: Piemme, 2011). Cf. Giandomenico Salcuni, ‘Libertà di religione e limiti alla punibilità. Dalla “paura del diverso” al dialogo’ (2006) 2 L’indice Penale, p. 609. See Baldassarre Pastore, ‘Multiculturalismo e processo penale’ (2009) 9 Cassazione Penale, p. 3032.

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and understood differently across different cultures and religions. This is, then, precisely the reason why phenomena such as blasphemy become sensitive again, yet in new ways. Whereas once blasphemy discussions revolved around (atheist or other) verbal attacks on the Catholic doctrine, in contemporary discussions new religious sensitivities take centre stage. The legal regulation of the relationship between freedom of religion and freedom of expression and of the conflicts surrounding them depend on how each legal system interprets these two fundamental human rights. In some parts of the world, like in the Middle East, both the right to religious freedom and that of freedom of expression are subject to strict limitations. This solution is not only antithetic to the rules of living together in a democracy, but it is also incapable of generating cohesion and social peace if it is true that precisely in those parts of the world religiously motivated conflicts are stronger. Also in Europe, where the restrictions to the exercise of freedom of religion and expression are far less, the result is anything but satisfactory. Only in the last decade, just to cite the most prominent cases in the news, the conflict between freedom of expression and freedom of religion provided the setting for such incidents as the ones surrounding Submission, the film which cost the Dutch film director Theo van Gogh his life in 2004; the Danish cartoons published by JyllandsPosten in 2005 and the controversy that ensued; the online film Innocence of Muslims, which came out in 2012; and the assassination of the Parisian editorial staff of the satirical publication Charlie Hebdo in 2015. This last case is the one that most shook the Western world. To the cry of Je suis Charlie! Westerners reacted immediately in support of the centrality of the freedom of expression in Western democratic systems as the first of the fundamental freedoms. This was in sharp contrast to the killers, who had defended their religion from the attack by infidel Western cartoonists, albeit in a violent way outside the rules of democracy. Implicitly the killers have proposed a contrast between the freedom to exercise and therefore ‘defend’ their belief and the freedom to express ideas on religion also in contrast and in open criticism of a particular faith. The satirical weekly Charlie Hebdo was not new to the subject of the role of religions in the public space, as it had already tackled the question over the years in a very ‘democratic’ way. It had levelled often forthright criticism of all the monotheistic religions, with the magazine’s cartoonists targeting Judaism, Christianity and Islam to an equal degree. The difference was the reaction of the believers of each religion. For the Christians and Jews, the feeling of offence was probably equal to that of the Muslims, but the path of violence is surely not a practicable option for the former two communities,

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as in the past they had fought strenuously to establish freedom of expression and of religion in Europe. Instead, although obviously also many Muslims reject violence, for the most radical part of the Muslim community the offence to the Prophet and to Islam was an unpardonable affront that required a strong reaction. Islam is indeed highly sensitive to defamation of the Prophet: a good Muslim cannot in any way offend the person of the Prophet. If he did so it would be the equivalent of renouncing his or her own religion; in other words it would be like committing apostasy. In the case of Charlie Hebdo, however, it was an offence to the Muslim religion that was made by people who did not belong to Islam. The question is therefore to understand whether and in what way democratic societies have to intervene to protect religions in cases like those of the Danish cartoons and of Charlie Hebdo. Also in Italy the Charlie Hebdo affair brought the debate on blasphemy and protection of religions to the forefront. However, at the legal level this has not been translated into specific legislation, as the legal framework remains substantially unchanged since the most recent reform in 2006.

12.2

Brief History of the Protection of Religious Belief in the Italian Criminal Law System

In the Italian legal system, the protection of religious belief has traditionally meant the protection of the Roman Catholic religion, which is that of the majority of the population. Even before the 1860 Unification of Italy, in the Kingdom of Sardinia some court cases were recorded on blasphemy against intellectuals whose writings had raised doubts about the dogma of the Roman Catholic religion.7 With the Unification, the application of the Albertine Statute of 1848 was extended to the whole of Italy. Article 1 of the Statute affirmed the religious nature of the newly born Italian state and the Roman Catholic religion thus became the religion of Italy. Under the Albertine Statute and in line with the liberal concepts of the end of the nineteenth century, the 1889 Zanardelli Criminal Code viewed religion as a subjective public right whose satisfaction and protection required the state to stand at an equal distance between all conceptions, whether 7

Alessandro G. Cannevale and Chiara Lazzari, ‘La tutela delle religioni e il codice penale. Esegesi di alcuni delitti sopravvissuti al ripensamento normativo in tema di reati di opinione’, in David Brunelli (ed.), Diritto Penale della Libertà Religiosa (Torino:  Giappichelli, 2010), p. 61 (footnotes 3–4).

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religious, agnostic or atheist. Article 1 of the Albertine Statute, which affirmed the confessional principle for the Kingdom of Sardinia and then for the newly born Kingdom of Italy, was interpreted more as an homage for the religion of the monarch than as a strict rule of law. The direct consequence of this was that the fundamental principle that inspired the Zanardelli Code remained markedly liberal: this means that the state retains a neutral position towards all the religions allowed in the state, in other words all those legitimately professed in Italy. A consequence of that was, for example, that anyone defaming one of the religions allowed in the state could be taken to court by the person offended (Article 141 Zanardelli Criminal Code). With the advent of the Rocco Criminal Code in 1932, protection of the Roman Catholic religion was no longer only a question regarding the freedom rights of individual citizens (or at least of an important part of them) but an interest of a general nature. The Roman Catholic religion contributed to the definition of the moral structure of the nation, and its protection was necessary to keep social order. Contrary therefore to the Zanardelli Code,8 the Rocco Code was based on a strictly confessional organisation which interpreted Article 1 of the Albertine Statute in the light of Article 1 of the Lateran Treaty 1929, where it was stressed again that the Roman Catholic religion was the religion of the Italian state. A direct consequence of this was the introduction of Articles 402 and 724 into the Criminal Code, which considered it compulsory to indict instances of defamation of religion and blasphemy only if they were directed at damaging the dogmatic heritage of the Roman Catholic religion. The other religions present in Italy enjoyed a lesser degree of protection under Article 406 of the Criminal Code, according to which the penalty was reduced when the crimes against religious feelings were committed against a religion different from Catholicism. The Constitution of the Republic entered into force in 1948, and while it affirmed the equality of all religions before the law (Article 8) as well as freedom of religion and omitted the previous confessional principle structure,9 the Rocco Criminal Code was not immediately amended accordingly. Due to the total lack of equality of religions before the law in the latter law (now contrary to the new Constitution), the Criminal Code began to reveal its inadequacies. Three hypotheses were proposed about the interpretation of the rules of the Criminal Code in its original

8 9

See Cannevale and Lazzari, ‘La Tutela delle Religioni e il Codice Penale’, pp. 66 and 70. Constitution of the Republic of Italy, Art. 8.

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formulation and regarding their possible survival. The first one proposed the implicit abrogation of these norms, as the confessional principle was no longer valid; the second, a minority view, assumed that these norms protecting religion ought to be dismissed for being overly vague; the third confirmed their validity, interpreting the expression ‘state religion’ as univocally referring to the ‘Roman Catholic religion’ despite the abandoning of the confessional principle. The Constitutional Court followed the third option, with the backing of the Court of Cassation, for about twenty years: in many ways the Constitutional Court hung onto sociological motivations, stating that the survival of the privileged protection for the Roman Catholic religion was justified by the fact that this was the religion professed by the majority of the Italian population.10 After the Villa Madama Agreements of 1984, there was a clear-cut change in the jurisprudence of the Constitutional Court, because the new agreement modified the Concordat of 1929 and formally abandoned the confessional principle of Article 1 of the Lateran Treaty that was still in force up to that moment. From 1995 onwards, the Court applied the principle of secularity (laicità), also in relation to the protection of religion in criminal law.11 Of particular interest are the rulings that provided a definitive end to the survival in the legal system of the crimes of defamation of religion according to Article 402 of the Criminal Code12 and of blasphemy in protection only of the Roman Catholic religion according to Article 724 of the Criminal Code. Significant are also the court rulings that extended to all the religious denominations the protection provided by the Criminal Code,13 thus eliminating the most evident legal anomalies.

12.3

The Old Article 402 and the Crime of Blasphemy

The old Article 402 of the Criminal Code provided that ‘Anyone who publicly defames the state religion is to be punished with imprisonment for up 10

11 12 13

On the evolution of the jurisprudence of the Constitutional Court on the subject, see Alessandro Albisetti, Il Diritto Ecclesiastico nella Giurisprudenza della Corte Costituzionale (Milano: Giuffrè, 2014); and also Maria Cristina Ivaldi, ‘L’Evoluzione della Giurisprudenza Costituzionale sulla Tutela Penale in Materia Religiosa, Un Excursus (1957–2005)’ (2005) Stato, Chiese e Pluralismo Confessionale, Rivista Telematica. See especially Corte Costituzionale, n. 203/1989 and n. 259/1990. See Corte Costituzionale, n. 508/2000. See Corte Costituzionale, n. 329/1997 on Criminal Code, Art. 403; and n. 327/2000 on Criminal Code, Art. 405.

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to one year’. It is evident that this article provided for a form of direct protection of religion. However, it was held that the crime of blasphemy should be applied only for offences against the Roman Catholic religion as the state religion identified in Article 1 of the Albertine Statute and by Article 1 of the Lateran Treaty of 1929. As observed previously, the Constitution of the Republic posits instead equality amongst all religions before the law, a principle that is diametrically opposed to the formulation of Article 402. Indeed the Constitutional Court, requested to examine the question, dropped Article 402 on account of violation of Articles 3 (equality before the law) and 8 of the Constitution in its landmark sentence n. 508/2000.14 As the Italian state is secular according to the way established by the Constitution, the Court held, it must hold a position of equidistance and impartiality towards all religions and must guarantee the same degree of protection to anyone on Italian territory and following a religion regardless of their religious identity. After this ruling, any form of direct legal penalty in protection of religion in effect disappeared from the Italian legal system, and the protection became increasingly residual. Also of interest here is the affair regarding the change of the crime of blasphemy according to Article 724 of the Criminal Code. After various fruitless requests by the lower courts, the turning point arrived with sentence n. 440/1995 in which the Constitutional Court affirmed its incompatibility with the Constitution and extended the protection granted by the provision to all the religions practiced in Italy. Article 724 criminalized blasphemy if it was uttered against the ‘Divinity or Symbols or Persons venerated in the religion of the State’. Until 1995, the Court had always upheld the validity of the rule, interpreting the expression ‘religion of the State’ as referring to the Roman Catholic religion as the faith professed by the majority of the Italian population, which was deeply linked to the nation’s culture. With sentence n.  440, the Constitutional Court considered that the expression ‘Divinity or Symbols or Persons venerated in the religion of the State’ could be divided into two parts, stating that the rule was constitutionally illegitimate only in the part which refers to ‘Divinity or Symbols or Persons venerated in the religion of the State’ for violation of the principle of equality. In this way, the crime of blasphemy against the Divinity per se remained in force:  ‘Divinity’ was not further defined as, in the Court’s view, this term can refer to any religion. The

14

Corte Costituzionale, n. 508/2000.

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sentence therefore goes a step further than declaring this part of the law constitutionally illegitimate because it actually broadens its scope.15 Finally, in 1999 Legislative Decree n. 507 decriminalised blasphemy, as reshaped by the Constitutional Court, turning the crime into an administrative offence. This intervention by the legislator opened the way to the 2006 reform of ‘crimes of opinion’ in respect of freedom of expression. Here the criminal law on the subject of religious feelings became residual, with a substantial return to the principles of liberal neutrality that had inspired the Zanardelli Code.

12.4

Reform of the Crimes in Protection of Religious Feelings

The characteristic features of the 2006 criminal law reform consist in the passage from direct protection of religions, with the definitive abandonment of the crime of blasphemy, to protection against defamation of people or defilement. The penalty is also reduced, as the crime of defamation no longer carries a prison sentence but is subject only to a fine.16 This arrangement appears to indicate that rather than the protection of religious groups, the law now favours the protection of individuals with their right to religious freedom. In this way, the relationship between freedom of religion and freedom of expression is re-designed in the latter’s favour: in reality even harsh criticism of religion is allowed, as long as this does not become defamation of people or defilement. Legal protection therefore becomes the last resort used only when criticism of religion becomes defamation and incites towards religious hatred.17 However, the religious feelings of those who do not identify with any religious denomination remain without protection.18 For them there is only the general protection provided by Articles 594–595 of the Criminal Code on the generic crimes of insult and defamation – a profound discrepancy in the Italian legal system. In a sense, religious believers are protected, as they are the ‘means’ of protecting the religious group that no longer receives direct legal protection. This may also explain the different procedures used for each 15

16

17

18

See on this point Ivaldi, ‘L’Evoluzione della Giurisprudenza Costituzionale’, p.  20 and works cited there. Anna Gianfreda, Diritto Penale e Religione tra Modelli Nazionali e Giurisprudenza di Strasburgo (Italia, Regno Unito e Francia) (Milano: Giuffrè, 2012), p. 58 et seq. Cf. Fabio Basile, ‘Titolo IV. Dei delitti contro il sentimento religioso e contro la pietà dei defunti’, in Emilio Dolcini and Giovanni Marinucci (eds.), Codice Penale Commentato (Milano: IPSOA, 2011, 3rd ed.), p. 4094 et seq. See Basile, ‘Titolo IV’, p.  4095 and p.  4101; Nicola Colaianni, ‘Diritto di satira e libertà religiosa’, in Nicola Fiorita and Donatella Loprieno (eds.), La Libertà di Manifestazione

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crime: while private legal action may trigger Articles 594 and 595, compulsory indictments are facilitated by Article 403. At the same time, it should be stressed that individual religious feelings are protected by Article 403 only if the crime amounts to an insult to a religious denomination; otherwise the only protection available is the one offered by the general offences of insult and defamation.19 The new Articles 403, 404 and 405 of the Criminal Code establish a clear difference between contempt and defamation of religions and between defamation and offence to the sensibilities of individual believers. The underlying concept is, however, very subjective and not very practical to build a criminal case on. The legal good protected is the religious sentiment of the organized community of believers that constitute a religious denomination. It remains distinct from the dogmatic complex of a particular faith,20 as the legislator has decided not to reinsert the old formulation of defamation as a direct offence against a religion. The issue of determining what a religious denomination is hence remains open, albeit a question that has largely been tackled by the doctrine and jurisprudence in the past. Yet it means that contemporary jurisprudence still has to refer to these old judicial interpretations in the application of the new rules.21 In the Italian legal system a religious denomination is any group that defines itself as religious, with its own vision of the world and of the hereafter, and which satisfies one of the following criteria: (a) it has stipulated an agreement with the Italian state according to Article 8 of the Constitution; (b) it enjoys previous public recognition; (c) it has a statute that expresses the characteristics of the organization; (d) it enjoys general consideration, that is it is perceived by the general public as a religious organized group.22 No religious denomination may practice rites contrary to public decency or that violate criminal law or have a statute that is contrary to the fundamental principles of the Italian and European legal system as a whole.

19

20

21

22

del Pensiero e la Libertà Religiosa nelle Società Multiculturali (Firenze:  Firenze University Press, 2009), p. 34. See Vincenzo Pacillo, I Delitti Contro le Confessioni Religiose dopo la Legge 24 Febbraio 2006, n. 85. Problemi e Prospettive di Comparazione (Milano: Giuffrè, 2007), p. 46. Cf. Daniela Falcinelli, ‘Il valore penale del sentimento religioso, entro la nuova tipicità dei delitti contro le confessioni religiose’, in David Brunelli (ed.), Diritto Penale della Libertà Religiosa (Torino: Giappichelli, 2010), p. 37. On this point, see decision of the Constitutional Court n. 195/1993. See also Silvio Ferrari, ‘La nozione giuridica di confessione religiosa (come sopravvivere senza conoscerla)’, in Vicenzo Parlato and Giovanni Battista Varnier (eds.), Principio Pattizio e Realtà Religiose Minoritarie (Torino: Giappichelli, 1995), pp. 19–47. Cf. Corte Costituzionale, n. 195/1993.

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12.4.1 Article 403 Article 403 of the Criminal Code punishes with a fine public offence to a religious denomination through defamation of its adherents. If the offence is perpetrated against a minister of a religion the penalty is more severe. Article 403 establishes the material act of the crime (offence to a religious denomination) in a specific form: by means of defamation. No censorship may be imposed on forms of criticism, however harsh, of religious subjects if such criticism generates a constructive debate, but criticism may not amount to ‘mere derision, through rudeness and contempt’.23 Essential, therefore, is to establish the means of expression and the circumstances of time and place, as those factors point to the border between the exercise of the legitimate right to criticise and/or of satire and the criminal offence at hand.24 The material act has to be directed against specific people, not against an indistinct plurality of subjects who may be linked by a common belief.25 If this were not the case, there would be the possibility of a revival of old defamation offence interpretations whereby religions rather than actual believers were protected. While some of the recent jurisprudence does in fact seem to suggest that an unspecified community of believers may suffice under the present heading,26 legal scholarship still insists that for the establishment of the crime in question the offence must always be directed at a plurality of persons at least qualitatively determinable and on whom it is possible to test the effects of the allegedly defamatory behaviour.27 The defamatory act must have been made publicly according to subparagraph 1 of Article 403,28 while this requirement is not specified by subparagraph 2 (on defamation vis-à-vis ministers of religion). For this reason, it may be hypothesized that the latter crime is an autonomous offence; the 23

24 25 26 27 28

Cf. Tribunale di Latina decision of 24 October 2006 which refers to Cass. Pen. Sez. I decision of 17 October 1977. On this point, see the jurisprudence on Art. 402 previously in force, according to which criticism of religion is to be considered legitimate even though harsh and severe when the criticisms expressed do not exaggerate and become derision but remain within the context of a civil democratic debate, without expressing scorn, mockery and disapproval of the religion in question. Cf. also Tribunale di Roma decision of 24 March 1979; Cass. Pen. Sez. III decisions of 23 November 1967 and 20 June 1966. Cf. Basile, ‘Titolo IV’, p. 4096. See Falcinelli, ‘Il Valore Penale’, p. 54. Cass. Pen. Sez. III, n. 10535/2008. See Basile, ‘Titolo IV’, p. 4098. Art. 403: ‘Offese a una confessione religiosa mediante vilipendio di persone. Chiunque pubblicamente offende una confessione religiosa, mediante vilipendio di chi la professa, è punito con la multa da euro 1.000 a euro 5.000. Si applica la multa da euro 2.000 a euro 6.000 a chi offende una confessione religiosa, mediante vilipendio di un ministro del culto’.

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lack of a requirement for that particular act to have been public indicates a greater attention by the legislator to the figure of the religious minister because of his institutional connection with the religion he serves.29 The required degree of mens rea of the crime is ‘general malice’; the prevailing interpretation of this rule requires that the person committing it has to be aware of the meaning that his behaviour has for the recipient and of the way that it would be perceived not only by the passive victim of the offence but also by the group to which he belongs. In this way, it is possible to reconstruct the specific incident with greater attention to any concrete offensive impact. Also, this renders the person defaming fully responsible for the expressions uttered and takes account of variables like the size and type of group addressed by the defamer.30 The person speaking therefore has a sort of moral responsibility, even greater than the legal one, for the content of what he says. Hence, the speaker is responsible for the effectiveness of his communication, and he has to choose the appropriate communication code based on his audience. Since the outlined reforms, the courts have considered three cases regarding Article 403, which indicates that in Italy the legislation protecting religion has a highly symbolic value but little practical use. The first case regards three satirical cartoons lampooning Roman Catholic priests and the Pope in homosexual positions and attitudes published on a website.31 The case was decided by the Latina Court.32 The first cartoon, with the caption ‘Why are the clergy afraid of gay pride?’, portrays a high prelate being sodomised and who remains indifferent until complete penetration whereupon he displays his pleasure. The second one, captioned ‘The page for fans of the Pope and the boobs’, is an animated image of the Pope’s head emerging from between the breasts of a buxom blonde, while the third is called ‘The animated cursor of the Pope masturbating’. The Court’s decision was different for the first two cartoons compared to the third. The Court considered that although the first two cartoons were sacrilegious, they were part of a social debate on the Roman Catholic Church’s position on the subject of homosexuality and sexual customs. Instead, the third cartoon was considered offensive to the Pope’s

29 30 31 32

See Pacillo, I Delitti contro le Confessioni, p. 46. Cf. Colaianni, ‘Diritto di Satira’, pp. 42–43. Viz. www.eretico.com. Tribunale di Latina, decision of 24 October 2006. See Placido Siracusano, ‘Vilipendio religioso e satira:  “nuove” incriminazioni e “nuove” soluzioni giurisprudenziali’ (2007) Stato, Chiese e Pluralismo Confessionale, Rivista Telematica.

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person in itself, and therefore it was defamation of the Roman Catholic faith through defamation of the Pope. The second case has recently been decided by the Milan Court of Appeal in relation to a triptych on canvas exhibited in the city centre portraying Pope Benedict XVI, a penis with testicles and Monsignor Gaenswein, the Pope’s personal secretary.33 The caption to the triptych was ‘Let the person who is not a faggot cast the first stone’. The author of the triptych maintained that he had exercised his freedom of expression even if it was manifested in a crude and vulgar way. In this case, the jurisprudence confirmed, in line with the previous decisions, that defamation of the religious denomination through defamation of one of its ministers occurs when the speech act like the one at hand is insulting in and of itself. Thus, it is derisory and offensive without bringing in any element of constructive criticism. Moreover, in this specific case the Court found there had been injury beyond acceptable limits, taking into account the minimal respect due for other people’s religious beliefs. The last case was decided in January 2017 by the Court of Cassation,34 confirming the decision of the Lecce Court of Appeal (and of the local first instance tribunal), which condemned five persons to a € 4.000,00 fine for violation of Article 403. They displayed in front of a Catholic church a poster with the image of Pope Benedict XVI, a target sign and the following sentence: ‘1.000 points, sweets, condoms, wine and not consecrated bread if you can centre that bottom hole from which a river of shit comes out daily’; they also had tried to hit the target with a large number of darts. While the convicted persons argued they were only exercising their right to freedom of expression when criticizing the Pope, the Court ruled that they exceeded the limits of decency with their rude language and, in light of the circumstances (time, place and manner of their action), that is was clear their intent was to defame the Pope and, through him, to offend the religious sentiments of Catholic believers.

12.4.2 Article 404 Article 404 criminalizes with a fine defamation of a religious denomination perpetrated in a public place or a place open to the public that is destined for public worship or in a private place during religious services held by a minister of religion. Offensive behaviour must have taken place through abusive 33 34

Corte Appello Milano, sez. III, n. 41044/2015. Cass. Pen. Sez. III, n. 1952/2017.

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expressions that constitute defilement. In addition, anyone who intentionally and publicly destroys, damages, renders useless or dirties things that are religious objects or consecrated for religious purposes or necessarily destined for religious uses may be imprisoned for up to two years. Article 404 provides examples of typical behaviour of defilement, namely destruction, dispersion, damaging, dirtying or rendering the item at stake useless for the purpose for which it was intended. To these are added scorn, derision or other sacrilegious behaviour committed in words, writings, drawings or other forms of expression of thought that do not verge on violence or physical threats to people.35 This latter possibility is considered under article 405, sub-paragraph 2, and is sanctioned more severely. Accordingly, the law provides for two types of offence: sub-paragraph 1 takes into consideration defamation through offensive expressions directed at things that are religious objects, while sub-paragraph 2 considers the damage caused to those same objects. For sub-paragraph 1, even though the law does not specify this further, defamation is considered to take place either in a place of worship or in a public place or in a place open to the public; the defamation does not need to be verbal; it may also be committed through gestures, drawings, writings and sounds (however, if there is material damage, the issue falls under sub-paragraph 2). For sub-paragraph 2, the law lists a series of typical acts like to ‘destroy, break up, damage, dirty, render useless’ as qualifying alternatives. Not all ‘things’ can be protected by the law, but only those listed in Article 404, meaning: • religious objects, in other words things that are venerated (holy images, relics, and so on);36 • things consecrated by the religion, those used in religious services and consecrated by the minister of the religion who is authorised to do so; • items used for religious practices, without which such practices would not be possible, even though these may not be consecrated objects (such as books and attire). To identify these objects, religious context matters. In theory, this means that something could be considered an object of defamation even though 35 36

Cf. Falcinelli, ‘Il Valore Penale’, p. 50. The crucifix is another issue. The Italian Council of State has stated that the crucifix is a symbol whose significance varies according to the context of reference, adding that it constitutes a cultural symbol where it is not displayed in a place of worship. The law therefore applies only to the crucifix in a place of worship. Cf. Consiglio di Stato n. 566/2006 confirming the decision of Tar Veneto n. 1110/2005. See also Basile, ‘Titolo IV’, p. 4111.

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it is a common object, an item that assumes a different symbolic value only within its religious context. For all three categories of objects listed by the law, it is important to stress how the offence to the item is considered only a means for defaming a religious denomination: the protection is accorded to things as far as they are symbols of a particular religion. The sacredness of the objects is not taken in the absolute sense but in relation to the religion’s followers’ sense of what is sacred. The defamatory behaviour must have been committed during religious services or ceremonies, in a public place, in a place open to the public37 or on occasions of private ceremonies presided over by a minister of religion. In Italy, the offence can only be prosecuted if it took place in one of these specific places. As regards the mens rea of the crime, for Article 404, sub-paragraph 1, ‘general malice’ is required, while sub-paragraph 2 requires the behaviour to have been intentional.

12.4.3 Article 405 Article 405 penalizes the disruption or prevention of religious services, ceremonies or practices of a religion that are conducted by a religious minister in a place of worship or in a public place or in a place open to the public. The penalty provided is imprisonment for up to two years, which may be increased (by maximally three years) if the acts are accompanied by violence or threats to people. Article 405 therefore constitutes what in the past was called turbatio sacrorum, in other words the disruption of a religious service, and this crime has been conceived to protect the freedom of worship of the followers of a religion. The crime requires ‘malice’ and has to be committed in a public place or in a place open to the public or in a place of worship during the ceremonies, practices or services,38 which in all cases have to be conducted by a minister of religion for the clause to be applicable. The punishable act must involve the ‘prevention’ or, in the most serious cases, the ‘disruption’ of such activities, something that may also be caused by a single act.

37

38

For the purposes of Italian criminal law, the term ‘crime committed in a public place’ means a crime with characteristics listed in Article 266, final sub-paragraph of the Criminal Code. This implies that the crime cannot be contested if the disruption occurred during a ceremony, practice or service that took place in a completely private setting.

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Such disruption or prevention must be caused by concrete acts; it is not sufficient for the act to have merely compromised the spiritual serenity of the participants in their worship. For the definition of religious practice, ceremony or service legal scholarship considers it useful to refer to the notions drawn up within each religious denomination without an a priori definition of the three concepts.39 Article 405 may be associated with elements of crimes of hate speech and hate crime provided for in other legal systems. It enables the law to prosecute acts and expressions that cross the limit of civil coexistence and social peace, thus undermining public order. However, there is a significant difference compared to hate speech and hate crime provisions and the provision at hand: the latter can only be applied in the context of disruption of religious services and does, accordingly, not offer a general protection against hate-based crimes, even if this limited protection is granted to all the religious denominations.40

12.5 Charlie Hebdo and Muhammad: Defamation of Religion or Exercise of Freedom of Speech? The Answer According to the Italian Criminal Code Given this legal framework, it is interesting to see whether Charlie Hebdo’s cartoons of Muhammad could have given rise to criminal proceedings in Italy for defamation of religion through defamation of the individual believer according to Article 403 of the Criminal Code. The French weekly’s satirical cartoons in the vast majority of cases portray the Prophet in an insulting or derisory way. It is therefore necessary to understand whether Muhammad, a central figure in Islam, may be considered the object of punishable defamation in the same way as a Roman Catholic saint or a dead pope. 39

40

Cf. Sabrina Bonfiglio, ‘Art. 405 c.p.: il delitto di “turbatio sacrorum” nel nuovo scenario della tutela penale, come novellato dalla L. 85/2006’, in David Brunelli (ed.), Diritto Penale della Libertà Religiosa (Torino: Giappichelli, 2010), p. 118. Besides Article 405 (and in addition to relevant rulings pertaining to the latter), there is also Article 409 of the Criminal Code that provides for imprisonment for up to a year for anyone preventing or disrupting a funeral service. Before the 2006 reform, Article 409 was applied to disruption of the religious funeral services of the Roman Catholic religion regarding the transferring of the corpse to the burial place and of the funeral service as a whole for religions other than Roman Catholicism (because those were excluded from the protection granted by Article 405 in its old formulation). As the reform has extended the protection according to Article 405 to all religions, Article 409 now protects only civil funeral ceremonies.

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Granted that Islam can be considered a religious denomination for the purposes of the Italian Criminal Code as it satisfies the judicial and legal doctrine requirements as discussed earlier, the question is whether a dead person like Muhammad may be considered a person-object of defamation according to the law and, on the other hand, whether there has been any injury to the underlying legal good protected, namely the religious sentiments of the believers. In answer to the first question, legal scholarship considers that the object of defamatory behaviour has to be a living person, because the dead cannot possess any religious sentiment that is legally protected as per Article 403.41 Moreover, the law does not provide expressly that defamation of a religious denomination can be committed also through defamation of the memory of a dead person. In sum, dead people cannot be considered the object of punishable defamation under Article 403. As for injury to the religious sentiments of the believer, until 2009 the dominant position in the jurisprudence required the offence to have been directed at a specific community of believers. We have seen before that since 2009 the Court of Cassation has changed its orientation, considering it sufficient for the offence to be directed at an unspecified plurality of believers of a religious denomination. Such a radical broadening of the matter in question can be criticized, since it essentially reintroduces direct defamation of religion, something Italian law decided to abandon during the 2006 criminal law reforms. Hence, this judicial interpretation goes beyond what the law expressly provides. All in all, then, it seems legitimate to conclude that it is not possible to substantiate the hypothesis that the satirical Muhammad cartoons published in Charlie Hebdo would be punishable under Article 403 should a similar case arise in the Italian context. This has all to do with the specific way the Italian Criminal Code has materially defined defamation. Publication of the cartoons would be fully legitimate when considering Article 403. However, the cartoons might perhaps be considered a form of hate speech, even though they do not constitute blasphemy. The Italian legal framework of reference for incitement to religious hatred is composed of Law 654/1975,42 which implemented the Convention on the Elimination of all Forms of Racial Discrimination (ICERD).43 41

42

43

See Fabio Basile, ‘La pubblicazione delle dodici vignette satiriche sull’Islam costituisce reato (in Italia)?’ (2015) 119 Notizie di Politeia, pp. 75–76. Subsequently modified by Law Decree 122/1993 and converted with some changes into Law 2015 of 1993 and Law 85/2006. International Convention on the Elimination of All Forms of Racial Discrimination; see especially Article 4 on hate propaganda.

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Pursuant the ICERD, Article 3 of Law 654/1975, in its current formulation, criminalizes (in sub-paragraph 1) propaganda of ideas of superiority or racial or ethnic hatred and instigation to commit or direct commission of acts of instigation to discrimination founded on racial, ethnic, national or religious motives. The penalty for such acts is imprisonment for up to one year and six months or a fine of up to 6,000 euros. Sub-paragraph 2 provides for a prison sentence of maximally four years for those who, in any way, commit (or instigate others to commit) violence or acts of provocation to violence for racial, ethnic, national or religious motives. Before the changes introduced by Law 122/1993, a crime of incitement and discrimination for religious reasons was not punishable – as such, there was a gap in the legislation that was indicative of the scarce attention devoted by the Italian legislator to the rapid changes in the social composition of the country and to the possible conflicts that this transformation entails. Law 2015/1993, furthermore, provided an aggravating factor applicable to all crimes punishable if the behaviour was committed for the purposes of discrimination or ethnic, national, racial or religious hatred. In the light of this legal framework, it is necessary to start for the sake of argument with the assumption that the cartoons are not a clear-cut expression of artistic freedom’ otherwise there would be nothing to discuss, as the cartoons would doubtless be the object of a right that is constitutionally guaranteed. If we analyse the content of the Charlie Hebdo cartoons on Islam to understand whether they constitute hate speech – in other words, whether they are suitable for instigating hatred and discrimination against Muslims – it is no forgone conclusion that they contain inciteful content. The cartoons can certainly be considered disrespectful to the Prophet, but they do not incite to hatred towards Muslims. The message they provide is not inspired by political correctness, and this message is certainly deliberate: the authors intentionally sought to arouse strong reactions in the public, but the intention to instigate does not seem to me to be present here. This makes the Charlie Hebdo cartoons perhaps different from the famous Danish cartoon that shows Muhammad with a bomb on his head. Here the message that appears to be conveyed is that all Muslims are (potential) terrorists or that, in any case, Islam is a religion ‘of war’.44 That cartoon could arguably be understood as aimed at instigating discrimination if

44

It is necessary to use the term ‘appears’ here, since some debate as to the precise intentions of the author of the cartoon is possible (the author of the cartoon has repeatedly declared that his cartoon was a play on a Danish expression). This point goes back to the

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not hatred towards the Muslim community, and as such its author could in theory be prosecuted under the laws on hate speech (should a case like that occur in Italy). In any event, the Charlie Hebdo cartoons are certainly suited to hurt the religious sentiments of Muslims, but also in the light of the Italian laws on hate speech, these could not be censured, unless specific cartoons might be considered expressions of incitement to hatred.45 This means that in the light of today’s laws on the subject of freedom of religion the protection provided by the legal system cannot be extended also to protecting religious believers from the disruption of their enjoyment of religious freedom, so the cartoons would be perfectly legal. Interpreting the cartoons as hate speech would stretch the meaning of the law, making it an improper tool for the protection of religious feelings.

12.6 Concluding Remarks The analysis conducted here highlights how the Italian legislature has not wished to pursue the transition from protection of the religious group to protection of individual religious sentiment all the way to its final consequences. Rather, it has been a transformation from full and direct protection of religion to what could be called intermediate protection of religion, whereby defamatory behaviour is only prosecuted where it is expressed towards things or people who are structurally connected to a specific religion. From the jurisprudence review it transpires that the norms are, however, infrequently applied and hence mostly of a symbolic nature. The transition from prison sentences to fines, alongside the decriminalisation of the crime of blasphemy per se, further testifies to the Italian legislature’s choice to provide for protection of religious freedom in ways that also guarantee the freedom of thought and expression.

45

earlier debate on bearing in mind the possible interpretations on the part of the audience or recipient of the message. See Marie Levant, ‘Il mito dell’Islamofobia. Uno sguardo storico sulla caricatura religiosa in Charlie Hebdo’, in Alberto Melloni, Francesca Cadeddu and Federica Meloni (eds.), Blasfemia, Diritti e Libertà. Una Discussione dopo le Stragi di Parigi (Bologna: Il Mulino, 2015), p. 162. In this sense, see Ian Leigh, ‘Damned if they do, damned if they don’t: The European Court of Human Rights and the protection of religion from attack’ (2011) 17 Res Publica 67–68; and Jeroen Temperman, ‘Blasphemy, defamation of religions and human rights law’ (2008) 26:4 Netherland Quarterly of Human Rights Law 526.

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This line of legislative policy clearly differentiates Italy from Great Britain, for instance. There, once the crime of blasphemy had been abolished, the law opted for the widespread protection of the individual followers of the various religious groups if these were to become the object of acts of intolerance clearly inspired by religious hatred.46 Instead the reform carried out by Law 85/2006 has been limited to introducing the changes that the Constitutional Court had for years indicated as being indispensible for adapting the legal protection of religion to equality for all religions before the law provided by the Constitution. Yet in so doing, it failed to provide a coherent legal framework for the protection of religious minorities including those that are not established as organized bodies. In the Italian context, the Charlie Hebdo affair has had the indubitable merit of stimulating a public debate on the relationship between freedom of expression and freedom of religion, including renewed specialist interest in the subjects of blasphemy and legal protection of religion.47 However, it has not led to any change in the Italian legislative policy on the protection of religion, nor has it resulted in an increase in cases of presumed contrast between freedom of expression and freedom of religion.

46 47

See the chapter by Erica Howard in this volume. See Alberto Melloni, Francecsa Cadeddu and Federica Meloni (eds.), Blasfemia, Diritti e Libertà. Una Riflessione dopo le Stragi di Parigi (Bologna: Il Mulino, 2015); Cristiana Cianitto, Quando la Parola Ferisce. Blasfemia e incitamento all’odio religioso nella società contemporanea (Torino: Giappichelli, 2016).

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13 Legal Protection of Religion in Germany Matthias Cornils

13.1

Criticism of Religion as a Legal Problem

The debate concerning freedom of speech and satire in general and religion as the target of quite often fierce and offensive criticism in particular is in full swing around the world. Increased intercultural tensions between the Muslim world and ‘the West’ in particular feed off fundamentally different concepts of freedom of religion on the one hand and the protected interest of religious sentiments on the other. It was not only the horrendous attack on Charlie Hebdo on 7 January 2015 and the subsequent attacks on freedom of press and artistic freedom in Copenhagen and Dallas that elevated the issue in societal and legal debates in Germany. These debates concern once more – as they have occasionally in the past – the rationale (or lack thereof) of protections against statements that are deemed disrespectful and degrading by criminal law. Notwithstanding the recent attention given to the exotic offence of defaming foreign heads of state (§ 103 of the German Criminal Code) following the offensive and abusive poem by a TV satirist about Turkish president Erdoğan, the centre of both political and legal criticism has been what is non-technically called the ‘blasphemy paragraph’. It is defined in § 166 of the German Criminal Code and is in force in its current version since 1969. Certainly there is more behind all the agitation and the worsening of the social climate, for instance in the case of the so-called Muhammad cartoons, than just specifically religious offense. Rather, and especially on the Islamic side, the claimed violation of religious sentiments may also very well be a projection of an underlying socio-cultural frustration and resentment. However, it is obvious that the feeling of injury caused by blasphemous discourse persists not only for Muslims but also for Christian believers. Although a modern God (at least the God of a Christian culture shaped by

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the Enlightenment)1 cannot be hurt by human mockery or rejection since God is – in the words of Josef Isensee – ‘no subject of fundamental rights’ and ‘his honour not a legal interest’,2 the injury of religious feelings remains a common occurrence. It can be seen not only in the form of waves of indignation arising from major conflicts of intercultural significance and global scope, as for instance the ones concerning Salman Rushdie’s Satanic Verses in 1988,3 or the Muhammad cartoons published by Danish JyllandsPosten on 30 September 20054 but also in criminal complaints, petitions and protests directed against less publicized plays and media representations perceived as blasphemous or insulting. Representative examples include the obscene ‘rock-comical’ Maria Syndrome in 1994,5 a T-shirt displaying a pig nailed to a cross, which was advertised on the Internet (1997)6 and, more recently, Argentinean theatre producer Rodrigo Garcia’s piece Gólgota Picnic, performed by Hamburg’s Thalia Theater.7 There have been a number of spectacular controversies in recent years, such as the performance by Pussy Riot activists in Moscow’s Cathedral of Christ the Saviour (2012),8 the obscene portrayal of the pope on the front 1

2

3

4

5

6

7

8

Paul Johann Anselm von Feuerbach, Lehrbuch des gemeinen, in Deutschland gültigen Peinlichen Rechts, edited by K.J.A. Mittermaier (Gießen: Georg Friedrich Heyer, 1847), p. 488; Michael Pawlik, ‘Der strafrechtliche Schutz des Heiligen’, in Josef Isensee (ed.), Religionsbeschimpfung. Der rechtliche Schutz des Heiligen (Berlin: Duncker & Humblot, 2007), p. 31 et seq. Josef Isensee, ‘Blasphemie im Koordinatensystem des säkularen Staates’, in Isensee (ibid.), p. 105; Josef Isensee, Wege gelebter Verfassung in Recht und Politik: Festschrift für Rupert Scholz zum 70. Geburtstag (Berlin: Duncker & Humblot, 2007), p. 251. Hans G. Kippenberg, ‘Die Kontroverse um Salman Rushdies Satanische Verse’, in Astrid Reuter and Hans G. Kippenberg (eds.), Religionskonflikte im Verfassungsstaat (Göttingen: Vandenhoeck & Ruprecht, 2010), p. 259 et seq. Ian Cram, ‘The Danish cartoons, offensive expression, and democratic legitimacy’, in Ivan Hare and James Weinstein (eds.), Extreme Speech and Democracy (Oxford:  Oxford University Press, 2009), p.  311 et seq.; Hannes Langbein, ‘Vom Karikaturenstreit zur Idomeneo-Kontroverse. Chronik einer verbalen Aufrüstung zum “Kampf der Kulturen”’, in Reuter and Kippenberg (ibid.), p. 290 et seq.; see also the contributions by Ursula Baatz, Hans Belting, Isolde Charim, Navid Kermani and Andrea Saleh, in Ursula Baatz (ed.), Bilderstreit 2006: Pressefreiheit? Blasphemie? Globale Politik? (Wien: Picus-Verlag, 2007). Oberverwaltungsgericht (OVG) Koblenz, App. No. 11 A 11503/96, NJW 1997, 1174, judgment of 2 December 1996; Bundesverwaltungsgericht (BVerwG), App. No. 1 B 60.97, NJW 1999, 304, judgment of 11 December 1997. Oberlandesgericht (OLG) Nürnberg, App. No. Ws 1603/97, MMR 1998, 535, judgment of 23 June 1998. Verwaltungsgericht (VG) Hamburg, App. No. 15 E 211/12, NJW 2012, 2536, judgment of 23 January 2012. See Temperman’s chapter in this volume.

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page of the German satirical magazine Titanic (2012), the controversial anti-Islam movie Innocence of Muslims (2012) and of course the Charlie Hebdo cartoons. And yet attacks on God, faith and churches are by no means a new phenomenon. Prior prominent German examples include the case of George Grosz’s ‘Christus mit der Gasmaske’ (‘Christ with the gas mask’) tried in front of the German Reichsgericht (1927) or Herbert Achterbusch’s ‘The Ghost’ (1982). One might go back even further, to the century of the Reformation (sixteenth century), which was not exactly known for being prudish in terms of style when it came to religious propaganda.9 While Christian churches, their dignitaries and beliefs are frequent victims of radical attacks – not all of which are in good taste – and although there is occasional disgruntlement, indignation and the occasional demonstration of a handful of indignant believers in front of a fringe theatre performing a play considered blasphemous, there are only limited consequences on society. The Christian world carries on in passive acquiescence, even when it is directly targeted. This stands in contrast to the often shockingly violent reactions to critical statements – or statements perceived as such – concerning Islam. The chilling effect of fundamentalist terror on the freedom of unhindered art and communication is already apparent: the Charlie Hebdo parade float of the Cologne Carnival 2015 was cancelled, cartoon exhibitions are annulled and the Danish JyllandsPosten is placed under constant police protection after republishing the Muhammad cartoons in 2008 as a sign of defiance in the name of the freedom of the press. Every speaker at a pertinent public event today thinks carefully about how far to go with religious criticism. In the United States, self-censorship by the press and the cultural sector goes even further in the name of alleged tolerance and consideration – and conspicuously so in the context of a legal system that attaches enormous importance to the freedom of speech and imposes few limits on it. The initial cancellation of the theatre festival Planet Collections’ charity event on 14 June 2015 in New York by the host deeming the title of one of the pieces – ‘Mohammed gets a Boner’ by Neil LaBute – unacceptable provides a good example of this self-censorship. The New York Times, too, consistently refrains from reproducing the title, which is deemed unmentionable under its own peculiarly prudish house rules.

9

Martin Luther, Wider das Bapsttum zu Rom vom Teufel gestiftet (1545), included in Werke, Vol. 54 (Weimar: H. Bohlaus Nachfolger, 1888), p. 206 et seq.

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Turning to Germany specifically, in spite of all the upheaval and debates the conflict between the demands of religious accommodation and freedom of expression only very rarely reaches the courts. The conviction rates for the criminal offences termed ‘Defamation of religions, religious and ideological associations’ (Bekenntnis- und Kirchenbeschimpfung, § 166 of the German Criminal Code) and ‘Disturbing the exercise of religion’ (Störung der Religionsausübung, § 167)  remain consistently low. Statistical data for the year 2011 indicates only six convictions for both offences together.10 One of the more recent matches for the search term ‘§ 166 German Criminal Code’ in the key German legal database for jurisprudence is a judgment by the Higher Administrative Court of Berlin-Brandenburg of 2012 – concerning the Muhammad cartoons. The outcome of this case is just as telling: the display of the cartoons in question in the context of a rally in the district of Berlin-Neukölln – within sight of the mosques located there – was not within the meaning of the term ‘insult’ in § 166 German Criminal Code.11 Thus, even in scandalous cases with a high potential for agitation, legal consequences regularly fail to appear. When there is any consequence, it is the rare administrative order or an even more rare conviction involving a criminal fine or a suspended sentence. In the rare event that a German court or administrative body does pronounce a conviction or an administrative order enjoining the defamatory conduct, the justification often proves questionable and contestable. This does not come as a surprise in light of the highly disputed legal basis and protective purpose of the relevant criminal provision; rather, it seems to have structural causes to which we shall return later. In light of all this, frequent calls to abolish the provision can be heard in penology in particular,12 as well as from the progressive side of the 10

11

12

Statistisches Bundesamt, Tabelle Strafverfolgung, available at www.destatis.de/ DE/ ZahlenFakten/ GesellschaftStaat/ Rechtspflege/ Strafverfolgung/ Tabellen/ VerurteilteStrafart.html. OVG Berlin-Brandenburg, NJW 2012, 3116, judgment of 17 August 2012, para. 3; Armin Steinbach, ‘Die Beschimpfung von Religionsgesellschaften gem. § 166 StGB – eine Würdigung des Karikaturenstreits nach deutschem Strafrecht’ (2006) Juristische Rundschau 495 et seq. Thomas Fischer, ‘Die Eignung, den öffentlichen Frieden zu stören’ (1988) Neue Zeitschrift für Strafrecht 159; Thomas Fischer, ‘Das Verhältnis der Bekenntnisbeschimpfung (§ 166 StGB) zur Volksverhetzung (§ 130 StGB)’ (1989) Golddammer’s Archiv für Strafrecht 467; Winfried Hassemer, ‘Religionsdelikte in der säkularisierten Rechtsordnung’ in Lombardi Vallauri-Dilcher (ed.), Christentum, Säkularisation und modernes Recht (Mailand, BadenBaden: Nomos, 1981), p. 1310; Tatjana Hörnle, ‘Grob anstößiges Verhalten’ (Frankfurt am Main: Vittorio Klostermann, 2004), p. 356; Barbara Rox, ‘Schutz religiöser Gefühle im

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political spectrum.13 Underlying these calls is the understanding that the German Basic Law limits the scope of available state intervention and prohibitions of communication found to be critical of religion. The state, with its administrative bodies and judges and the power to prohibit or even punish expression, is unavailable as moderator and decision maker not only when it comes to insults which are thoughtless or in bad taste but also when it comes to vicious insults of that which others hold sacred. From this perspective, the penalty imposed by § 166 German Criminal Code is suspected of being an unjustifiable anachronism that can at best be acceptable if subjected to very restrictive interpretation, allowing punishment only in the case of exceptionally vulgar abuse. This view does seemingly correspond to widespread opinion in the legal debate, even if there is no consensus.14 The chasm between the advice of legal experts, given with a shrug, to a devout Christian or Muslim that ‘they just have to live with it’ and the widespread lay opinion that the state is the essential guarantor of social peace and order in the face of conflict appears large and is growing. However, there are dissenting voices: those advocating for legal protection of religious sentiments, though forced onto the defensive, continue to find supporters in politics and among legal specialists. In 2014, the criminal division of the German Law Association (Deutscher Juristentag) considered a possible abolition of § 166 of the Criminal Code in the framework of a discussion titled ‘Culture, religion, criminal law – new challenges in a pluralist society’. It rejected an initiative aimed at such an abolition by an overwhelming majority and instead recommended maintaining the provision ‘because like other provisions protecting social peace it plays a mostly symbolic but at the same time essential and morally decisive role in legal policy in the context of a society increasingly characterized by cultural and religious pluralism. It provides a feeling of existential security to religious minorities’.15

13 14

15

freiheitlichen Verfassungsstaat’(Tübingen: Mohr Siebeck, 2012), p. 250; Christoph Enders, ‘Zwischen Kritik und Beschimpfung – Das Verhältnis der Meinungs- und Kunstfreiheit zum Schutz von Glauben und religiöser Empfindung im Wandel der Zeiten und Gesetzgebung’ (2007) Kirche und Recht 40. Gesetzentwurf der Fraktion Bündnis90/Die Grünen, BT-Drucks. 13/2087, 26 July 1995. Karlhans Dippel, ‘Kommentar zu § 166 StGB’, in Burkhard Jähnke et al. (eds.), Leipziger Kommentar StGB (Berlin: De Gruyter, 2011), para. 34. See www.djt.de/fileadmin/downloads/70/140919_djt_70_beschluesse_web_rz.pdf.

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Conservatives even strive to (re-)tighten penalization, but such suggestions have never advanced beyond the stage of a draft law.16 Authors who not only oppose abolition but also advocate for a return to the old version of the blasphemy provision before its reform in 1969 can be found among constitutional law experts as well, even though they are rare. This position is prominently represented by Christian Hillgruber: ‘Those who disparage and wilfully degrade that which is holy to others, which constitutes the core of their deepest religious conviction and which is a religious truth that is experienced and lived, disrupt religious peace and thereby disrupt the public peace of society … The secular state cannot accept this without punishment for the sake of its own existence’.17 This also reveals the only argument that could possibly justify the criminalization of defamation of religions:  safeguarding public peace. That is to say that the framework for a successful coexistence between very different worldviews and lifestyles in a pluralistic society is arguably at stake. However, the central question is exactly how far the argument of safeguarding peace can be carried. Can an abrasive rejection of religion, its mockery and even open contempt for it in the form of speech, images or cartoons even be qualified as a disruption of public peace, and can a legal order in the context of civil rights and liberties guaranteed by the German Basic law and the European Convention on Human Rights (ECHR) punish it at all? What are the consequences for objective criticism or questioning of religious tenets or simple media presentations that do not comply with religious prohibitions such as the prohibition against depicting the prophet Muhammad, whose image for reasons of its prohibition alone seems intolerable to orthodox or fundamentalist followers of this religion? Does this alone constitute a punishable threat to or even a disruption of peace?

13.2

The Protection of Religious Beliefs in Legal Practice

Unlike the American concept of freedom of expression, which gives wide-ranging precedence to freedom of speech – and which only accepts

16

17

Staatsregierung Bayern, BR-Drucks 367/86; BR-Drucks 460/98; Gesetzentwurf der CDU/ CSU-Fraktion, BT-Drucks 14/4558. Christian Hillgruber, ‘Kommentar’, in Horst Dreier (ed.), Säkularisierung und Sakralität (Tübingen: Mohr Siebeck, 2013), p. 126.

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qualified versions of hate speech and defamation as potential limits18 – the German legal system draws the line earlier where permissible communication with religion-related content is concerned. However, the German approach, too, is characterized by a presumption in favour of the freedom of speech that shows a liberal tendency. Criminal provisions relating to statements are thus always to be read in the light of fundamental rights and of the significance of the freedom of expression and can only lead to punishment once the offending character of the content, that is its quality as a form of defamation, is unquestionable and a less hurtful, inoffensive interpretation – which is often possible – can definitely be ruled out. Prohibitions under criminal law are relevant both directly for the state’s right to inflict punishment and criminal prosecution and indirectly, as their violation can be grounds for ceaseand-desist orders and claims of damages under civil law (§ 1004 and § 823 (2)  of the German civil code (BGB)) or grounds for regulatory bans, especially concerning the freedom of assembly, by administrative authorities.

13.2.1

Protection of Personality in the Face of Religious Insults

Statements with reference to religion can fall under the criminal prohibition concerning the protection of honour and reputation, which according to German constitutional thinking is an integral part of the protection offered by the German concept of the ‘general right of personality’ and closely linked to the protection of human dignity (‘Allgemeines Persönlichkeitsrecht’, Article 2, paragraph 1 in conjunction with Article 1, paragraph 1 of the German Basic Law). Criminal provisions covering expressions and statements – prohibited insults, defamation and so forth – as laid down in §§ 185 et seq. of the German Criminal Code can have a religious element. A prohibited insult comprises – at least – the violation of the indispensable and intrinsic personal value of a human being (‘inner honour’). Depending on the circumstances, also social (‘earned’) esteem alone (or the ‘outer honour’, i.e. reputation) may come within the scope of the prohibition if the violation thereof is caused by either outright defamatory abusive criticism, pursuing no objective purpose whatsoever, or by simple disparagement that is held to be unreasonable considering 18

Winfried Brugger, ‘Verbot oder Schutz von Haßrede?’ (2003) 128 Archiv des öffentlichen Rechts 372 et seq.; Helen Keller and Luca Cirigliano, ‘Die Krux mit der Blasphemie – Analyse zweier richterlicher Lösungsansätze’ (2010) 70 ZaöRV 406.

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its falsehood and harmfulness. A criminal violation of personal honour is the complete or partial negation of the victim’s intrinsic value by the offender.19 However, a violation of the general right of personality always implies an attack directed individually at one person (or a group of persons), a disparagement of their own individual right to respect. This can be the case when a person is slurred or discredited by means of an accusation on grounds of their religion or religiosity. This is firstly conceivable in the version of a false factual claim, for instance that a person belongs to an obscure religious sect known for committing criminal acts.20 Secondly – and more commonly – an insult consists of a non-factual value judgement violating a person’s honour or reputation (‘What sort of idiot are you, believing this nonsense?’). Questioning, rejecting, or even insulting the content of a faith is not necessarily a criminal violation of the right of personality. These actions may lack the individual direction that is a condition for the violation of personal honour protected by the law. It may be difficult to demarcate criminal collective insults: if individuals assert a violation of honour by a statement directed against a group to which the asserting individuals belong, consistent case law demands a reasonably delimited group size, ‘in order for the defamation directed at the group not to lose itself in the quantity of the addressed persons’.21 A derogatory statement directed at ‘the Christians’ does not meet this requirement.22 According to this – disputed23 – case law, institutions and associations themselves are a subject of the protection of personal honour by criminal law, although they do not possess an honour in the sense of the general right to personality, as long as they fulfil functions recognized by law and can formulate a consistent (political) position. These requirements were for instance deemed met in the case of a Catholic archdiocese24 but can almost certainly be ruled out in the case of a religious community per se, at least where the scope of the attack surpasses the legally institutionalized form of this community. 19

20

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Klaus Rogall, ‘Kommentar zu § 185 StGB’, in Jürgen Wolter (ed.), Systematischer Kommentar des StGB (Köln: Carl Heymanns, 2014), para. 9 . Andreas Voßkuhle, ‘Religionsfreiheit und Religionskritik – Zur Verrechtlichung religiöser Konflikte’ (2010) 37 Europäische Grundrechte Zeitschrift 541 et seq. Karsten Gaede, ‘Kommentar vor §§ 185 StGB’ in Holger Matt and Joachim Renzikowski (eds.), Strafgesetzbuch, StGB (München: Franz Vahlen 2013), para. 14. Landgericht (LG) Köln, MDR 1982, 771, judgment of 29 April 1982. Gaede, ‘Kommentar vor §§ 185 StGB’, 20. Bundesgerichtshof (BGH), NJW 2006, 602, judgment of 22 November 2005.

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Even in the often cited cases in which the allegedly evident violation of personal honour results from the open confrontation of followers of a faith with the defamation of their faith which would thus constitute an attack addressing the victim individually, it is less than obvious whether that assessment is indeed correct. Examples include the throwing of a Quran into a toilet in the presence of a Muslim and the throwing of sacramental bread from a window in front of believers on the occasion of the pope’s visit to Cologne.25 Indisputably, the context of the overall communication process is important for the determination of the defamatory nature of a given act:  its objective meaning has to be identified in the light of its context as seen from the perspective of a ‘neutral, reasonable third person’.26 Consequently, the individualized injury of any given act can indeed be implied by the circumstances. It is however questionable whether the described types of intended ‘confrontations’ by themselves constitute a disparagement of the particular believer. When measured by the standards of collective insult, this sort of statement may often lack sufficiently individualized direction. The consensus regarding the assessment of these scenarios as personal insults is thus all the more surprising, particularly because it includes the same authors who are usually dismissive of the protection of religious integrity and the protection offered by the Basic Law with respect to undesirable communication of negative statements – even when directed against their own religion.27 At this point, it appears that there is a commonly felt need to include within the scope of criminal provisions and prohibitions the core of spiteful abuses of religion, which are perceived as plainly intolerable. The religious context of an abusive statement does not by itself increase the risk of the statement being classified as an insult to personal dignity. A  statement critical of religion can even alleviate the violation of the personal right to respect by virtue of its objectifying, generalizing content, with the result that it no longer qualifies as a criminal insult. This was notably the case in a judgement rendered by the Munich Higher Administrative Court on 3 March 2010. Contrary to the view held by the court of first instance,28 the judges annulled an administrative order 25

26

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Rox, ‘Schutz religiöser Gefühle im freiheitlichen Verfassungsstaat’, 182 et seq.; Isensee ‘Blasphemie im Koordinatensystem des säkularen Staates’ 123. Bundesverfassungsgericht (BVerfG), Entscheidungen des BVerfG 93, 266, judgment of 10 October 1995, pp. 295 et seq. Rox, ‘Schutz religiöser Gefühle im freiheitlichen Verfassungsstaat’, 134 et seq. VG München, App. No. M – 7 K 06.3459, judgment of 12 March 2008.

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which ordered the removal of a puppet representing the pope as well as the removal of posters depicting the pope with ‘homosexual attributes’ that had previously been on display on a wagon of a Christopher Street Day parade. The judges held that it followed from the context of the wagon’s decoration that the images of the pope did not infringe the personal honour of Joseph Ratzinger, Benedict XVI, but rather criticised the Catholic Church’s stance on homosexuality.29 Conversely, the personal direction of an attack can lead to a relativizing of its critical content – with the consequence that it does not fall under the scope of defamation of religion as laid down in § 166 of the German Criminal Code. This was the reasoning of the Munich Higher Regional Court in 2009 in the case of a photomontage depicting the former coach of Germany’s national soccer team Jürgen Klinsmann, at the time the unsuccessful coach for FC Bayern München, nailed to a cross in a Christlike position. The Court argued that the Crucifixion motif was clearly a symbolic and satirical framework for the actual statement concerning the dramatic loss of reputation by the coach. Every reasonable and unbiased observer ‘could clearly tell that the image of the crucified was in no way connected to criticism, mockery or scorn of the contents of Christian religion or that it was even remotely referring to it’.30 In summary, the general protection from insult by criminal law is already diminished in its effect by the influence of constitutional rights relating to communication.31 The same can be said for statements touching on the right to personal dignity that simultaneously contain an element critical of religion.

13.2.2

Defamation of Religions: § 166 of the German Criminal Code

13.2.2.1 Basic Principles In German criminal law, § 166 of the German Criminal Code provides protection to religions, albeit indirectly. The provision addresses insults to both religious and ideological beliefs (first paragraph of § 166) as well as insults to religious and ideological associations (second paragraph of

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Bayerischer Verwaltungsgerichtshof (VGH Bay), App. No. 10 B 09.1102, judgment of 8 March 2010. OLG München, App. No. 18 W 1391/09, judgment of 7 July 2009, para. 9. Klaus Stern, Das Staatsrecht der Bundesrepublik Deutschland: Vol. IV/1 (München:  C.  H. Beck, 2006), p. 1469 et seq.; BVerfG, App. Nos. 1 BvR 1476/91, 1 BvR 1980/91, 1 BvR 102/ 92, 1 BvR 221/92, judgments of 10 October 1995.

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§ 166) if they have the potential to disturb public peace. The provision states: § 166 Defamation of religions, religious and ideological associations (1) Whosoever publicly or through dissemination of written materials … defames the religion or ideology of others in a manner that is capable of disturbing the public peace, shall be liable to imprisonment not exceeding three years or a fine. (2) Whosoever publicly or through dissemination of written materials … defames a church or other religious or ideological association within Germany, or their institutions or customs in a manner that is capable of disturbing the public peace, shall incur the same penalty. It is complemented by further criminal offences penalizing the disturbance of the exercise of religion (religious services and degradation of a place dedicated to religious worship, § 167 of the German Criminal Code), the disturbance of a funeral (§ 167a of the German Criminal Code) or desecration of graves (§ 168 of the German Criminal Code). The provision was revised in 1969 when it replaced the prior penalisation of blasphemy. The subject (victim) of the criminal act of insult is no longer God himself (in one form or another but especially Christian or Jewish) but the religious or ideological confession.32 However, religion and confession are not the objects of protection of the provision as such. Rather, what is protected since 1969 is mere ‘public peace’. Therefore, not every act of insult falls within the scope of the offence, which is limited to acts capable of disturbing the peace and are thus actually dangerous to the protected object. An actual and concrete threat to public peace is not necessary, but the mere abstract possibility that a statement may lead to a disturbance of peace is not sufficient. Thinking in categories of criminal law, § 166 of the German Criminal Code constitutes a so-called ‘potential endangerment offence’, located between the ‘abstract endangerment offence’ and the ‘concrete endangerment offence’.33 This criminal offence can also become important for preventive bans (based on regulatory police powers), as, like every other criminal provision, it is part of the protective good of public safety in police law.34 Unlike 32

33 34

Deutscher Bundestag, ‘Erster Schriftlicher Bericht des Sonderausschusses für die Strafrechtsreform’, BT-Drucks V/4094, 23 April 1969, p. 28 et seq. Dippel, ‘Kommentar zu § 166 StGB’, 3; Klaus Rogall, ‘Kommentar zu § 166 StGB’, 2. OVG Rheinland-Pfalz, App. No. 11 A 11503/96, judgment of 2 December 1996; VGH Bay, App. No. 10 B 09.1102, judgment of 8 March 2010.

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the defamatory offences (§§ 185 et seq. of the German Criminal Code), § 166 has no role in civil actions (injunctive relief, revocations, compensation) because public peace is an objective and public good, not an individual good. Therefore, the provision does not constitute a protective law entitling individuals35 to civil tort law remedies (§ 823 paragraph 2 of the German Civil Code).36 § 166 of the German Criminal Code addresses public defamation of religious and ideological beliefs (paragraph 1) as well as the public defamation of a church or a religious or ideological community and their institutions or practices (paragraph 2). These types of defamation are punishable by up to three years imprisonment or a fine, provided that they have the potential to disturb public peace. Defamation is not just any harmful statement; it requires rather a grossly disrespectful statement. According to German jurisprudence, its punishable element can be either the crudeness of the manner of expression or the content to the extent that it reproaches certain religious conduct.37 The potential to disturb public peace as a requirement for prosecution is intended to have a restrictive effect.38 However, this criterion has not fulfilled its restrictive function in judicial practice: Although conviction rates have been decreasing for a long time, almost to the point of vanishing, this reduction to an almost merely symbolic significance is by no means the result of the newly added requirement of the potential to disturb public peace.39 Primarily, it is the result of raising the threshold for finding that an act is ‘insulting’, which is in turn a consequence of the influence of fundamental rights guaranteeing the freedom of expression and possibly also deeply rooted doubts as to the usefulness of the criminal prohibition and even its compliance with the German Basic Law.40 In light of these arguments, the few cases where a court does reach a conviction appear all the more unpredictable. 35 36

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VG Hamburg, App. No. 15 E 211/12, judgment of 23 January 2012, para. 9. LG München I, App. No. 9 O 8051/06, ‘Popetown’, judgment of 3 May 2006; Sven Heller and Nino Goldbeck, ‘Mohammed zu Gast in Popetown’ (2007) ZUM 635. OLG Karlsruhe, App. No. 2 Ss 58/85, judgment of 17 October 1985; Theodor Lenckner and Nikolaus Bosch, ‘Kommentar zu § 166 StGB’, in Schönke/Schröder Strafgesetzbuch – Kommentar (München: C. H. Beck, 2010), para. 9. Deutscher Bundestag, ‘Erster Schriftlicher Bericht des Sonderausschusses für die Strafrechtsreform’, BT-Drucks V/4094, 23 April 1969, p. 29. Tatjana Hörnle, ‘Strafbarkeit anti-islamischer Propaganda als Bekenntnisbeschimpfung’ (2012) NJW 3417. Fischer, ‘Die Eignung, den öffentlichen Frieden zu stören’ (1988) NStZ 164; OLG Karlsruhe, App. No. 2 Ss 58/85, judgment of 17 October 1985.

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13.2.2.2

The Issue of ‘Public Peace’ as a Protective Good and an Element of the Offence Convictions have occurred, for instance, in 1985 for the designation of the Roman Catholic and the Protestant Church in Germany as ‘one of the biggest criminal organisations of the world’41 and in 1998 when the Higher Regional Court of Nuremberg held that § 166 (1) of the German Criminal Code was fulfilled by the image of a crucified pig printed on a punk band’s T-shirts sold as merchandise which ‘clearly contains an intended, distasteful and malicious profanation of a symbol central to Christian faith’.42 The court gave the following reasons to justify the potential for the T-shirts to disturb public peace:  ‘a disturbance does not only start at the emergence of a climate of open or latent hostility, but rather at the point where people can no longer live in a society without having to fear discrimination on the grounds of their faith and abuses they are eventually unable to fend off ’.43 They argued that to disturb public peace, it sufficed to disrupt the ‘peaceful coexistence between different population groups, each of them connected by a shared faith, either by compromising the legitimate expectation of respect and tolerance for their convictions as protected by the legal order on the part of the persons concerned or by raising intolerance among third parties towards the believers of the insulted faith’.44 A judgment of the local district court (Amtsgericht) Lüdinghausen from 23 February 200645 referred to as the ‘toilet paper case’ received wider publicity: the offender had sent several toilet paper rolls stamped ‘Quran, the holy Quran’ and imprinted with a text in which he attributed Islamist terror to Muhammad, the founder of Islam, and to mosques and other Muslim organizations. The court sentenced the perpetrator to a prison term of one year (under probation), uncommon under § 166. According to the court, the ‘insult’ resulted from the fact that he had sent the toilet paper mainly to Muslim associations. The same court only recently pronounced another conviction on the basis of § 166, this time for defamation of churches or other religious associations under paragraph 2 of the provision. The accused had affixed slogans on the rear window of his car

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LG Göttingen, App. No. Ns 33 Ds 6 Js 7953/84–338/84, judgment of 27 December 1984; OLG Celle, App. No. 1 Ss 154/85, judgment of 8 October 1985. OLG Nürnberg, App. No. Ws 1603/97, judgment of 23 June 1998. Ibid., para. 27. Ibid.; OLG Köln, App. No. 3 Ss 704/81, judgment of 11 November 1981. Amtsgericht (AG) Lüdinghausen, App. No. 7 Ls 540 Js 1309/05 31/05, judgment of 23 February 2006.

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that ‘insulted the papacy and the worship of Christ as well as Christ’s suffering in a manner able to disturb public peace’.46 Conversely, in 2012, the local district court Berlin-Tiergarten determined that a description of the Catholic Church as a ‘cult of child fuckers’ did not disturb the peace. It stated that the statement in question would not cause further harm to the trust in the rule of law or to peaceful coexistence between different population groups due to the already leaked cases of child abuse by Catholic clergymen.47 This brief look at the courts’ analysis of the criterion of public peace should suffice to demonstrate the problematique behind it: if one were to understand the jeopardizing of public peace objectively as the contribution to a risk of disruption through criminal acts committed either by followers of the attacked belief or by third persons encouraged by the insult, criminal liability would depend on others’ propensity to violence.48 Even the most severe defamation of religion could go unpunished if directed at a peace-loving and indulgent, confidently relaxed or just plain exhausted and weary denomination. In contrast, even objectively phrased criticism can become a criminal disruption of peace if it involves denominations with unstable or sensitive followers prepared to use violence. This imposition of criminal liability for others’ propensity to use violence proves contrary to crucial principles on the attribution of conduct:  a critic of religion is rendered criminally liable for the actions of an actual aggressor or for the actions of an instigator inciting violence.49 This problem became especially apparent in an argument of the Nuremberg Higher Regional Court brought forward in the T-shirt case: the ‘protest of many thousand Catholics’ against the initial closing of the preliminary proceedings served as an indicator that a disruption of public and legal peace had indeed taken place.50 If public peace were subjectively determined according to the judgement of those concerned by the statement – which is the case when applying the formula of ‘compromising legitimate trust’ addressed earlier – the criterion would lose its independent meaning.51 This, eventually, would only lead back to the protection of subjective sentiments, as was the state 46 47

48 49 50 51

AG Lüdinghausen, App. No. 9 Ds-81 Js 3303/15–174/15, judgment of 25 February 2016. AG Tiergarten, App. No. (263b Ds) 224 Js 3745/11 (227/11), 263b Ds 228/11, judgment of 6 February 2012. Hörnle, ‘Strafbarkeit anti-islamischer Propaganda als Bekenntnisbeschimpfung’, 3417. Ibid. OLG Nürnberg, App. No. Ws 1603/97, judgment of 23 June 1998, para. 30. Hörnle, ‘Strafbarkeit anti-islamischer Propaganda als Bekenntnisbeschimpfung’, 3417.

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of the law before 1969, and to the case law of the Reichsgericht.52 The Nuremberg Higher Regional Court’s argument implies the importance of this subjective effect when it states that those protesting against the initial closing of preliminary proceedings ultimately feared ‘they would no longer be protected by the State against such malicious insults of their faith’.53 Criminal liability under that analysis depends on the sensitivity of the persons concerned with the religious criticism. Both the objective and the subjective determination of public peace lead to criminal liability based on the emotional state and the nature of the reactions of others and not on invariable characteristics of the criminal act itself. It even cannot be excluded that this dependence may lead to different standards of criminal liability – an alarming solution with respect to the principle of equality before the law. If taken seriously, the criterion of disturbing public peace in its subjective-objective ambiguity functions as a sort of gateway to the courts for the social explosiveness of critical statements. As a consequence, the judiciary is required to return verdicts based on an analysis of the societal and even geopolitical significance of statements critical of religion. This approach to criminal justice raises serious questions as to state neutrality with respect to religious or ideological doctrines. When the judiciary unceremoniously deduces the potential to disturb public peace from the level of reprehensibility of the act (that is to say, the intensity of the insult), it may be to avoid exactly this dilemma. However, this approach ignores the criterion of endangerment to public peace. Let us once more refer to the decision of the Lüdinghausen local District Court in the toilet paper case as an example. The court held that the existence of an ‘insult’ depends on ‘whether, according to the objective judgement of an observer mindful of religious tolerance, a statement contains such a severe disparagement of a faith held by others that it can be qualified as an endangerment of public peace’.54 However, this is a circular argument: public peace is disturbed if there is a severe disparagement (amounting to an insult). Conversely, there is severe disparagement (amounting to an insult) if the statement is apt to disturb public peace.55 To be sure, by classifying an insult as a disparagement with the 52 53 54

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Reichsgericht in Strafsachen (RGSt) 64, 126, judgment of 27 February 1930. OLG Nürnberg, App. No. Ws 1603/97, judgment of 23 June 1998, para. 30. AG Lüdinghausen, App. No. 7 Ls 540 Js 1309/05 31/05, judgment of 23 February 2006, para. 26. Ron Steinke, ‘“Gotteslästerung” im säkulären Staat. Ein Plädoyer für die Streichung des § 166 StGB’ (2008) 41:4 Kritische Justiz 453.

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potential to disturb public peace, without further ado, one avoids the aforementioned problem created by dependence on the reactions of others. However, this comes at the price of eliminating the distinct meaning of ‘insult’. In sum, it must be said that the legal handling of the defamation-ofreligion offence, especially by the Courts, reflects a deep-rooted insecurity concerning the value of its criminalisation:56 the transition from the previous protection of religious sentiments to a more contemporary and objective protection of (public) peace has not quite succeeded. If connected to the religious associations’ and believers’ legitimate expectations and trust, the protection of public peace once more descends to a dependence on the believers’ sentiments: a statement is apt to endanger public peace if it is apt to compromise the believers’ trust in legal protection of their religious sentiments. If, however, all that counts is the severity of the insult (and not the reaction of the persons concerned or third persons), the criterion of a potential to disturb public peace adds nothing to the determination of defamation:57 every insult can be a disturbance to public peace by way of its potential to compromise public trust. This criterion and the penal reasoning based on it are thus no more than a ‘feignedly rational façade’.58

13.2.2.3

Fundamental Rights and the Protection of Religion by Criminal Law The criminal jurisprudence of German courts does not adequately emphasise the relation between the criminal prohibition of the defamation of religion and the fundamental rights guaranteed by the German Basic Law. Certainly, the Courts briefly mention the fundamental right to the freedom of expression, but they just as quickly advance the argument that § 166 of the German Criminal Code has ‘its own safeguarding nature with relation to fundamental rights’.59 According to the Celle Higher Regional Court, for instance, its function is ‘to safeguard public peace in relation to the freedom of religion as laid down in Article 4 of the German 56 57

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OLG Celle, App. No. 1 Ss 154/85, judgment of 8 October 1985. Stephan Stübinger, ‘Kommentar zu § 166 StGB’, in Urs Kindhäuser, Ulfried Neumann and Hans-Ullrich Paeffgen (eds.), Strafgesetzbuch (StGB) (Baden-Baden:  Nomos 2013), para. 16. Tatjana Hörnle, ‘Der Schutz von Gefühlen im StGB’, in Roland Hefendehl et al. (eds.), Die Rechtsgutstheorie (Baden-Baden: Nomos, 2003), p. 271; Pawlik, ‘Der strafrechtliche Schutz des Heiligen’, p. 44. OLG Celle, App. No. 1 Ss 154/85, judgment of 8 October 1985.

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Basic Law’.60 Yet the exact safeguarding nature and constitutional values behind § 166 remain entirely unclear in the process. The German Federal Administrative Court provided only a very vague response to that question in its decision regarding the rock-comical Maria Syndrome – however offensive it might be – banned by an administrative prohibition:61 Unquestionably, the safeguarding purpose of § 166 (1) is closely associated with the safeguard of fundamental rights provided by Article 4 paragraph 1 of the Basic Law. The concerns of § 166 (1) are thus of constitutional significance and in a case such as the case at hand have to be put in relation to the weight they carry individually in each case and balanced with the particular importance attributed to the freedom of art in each individual case.62

This is precisely where the pivotal constitutional problem which was outlined is located: the exact constitutional basis of the protection of public peace by criminal law as embodied in § 166 Criminal Code is quite questionable. These doubts only increase in importance when one – like the Courts – does not view § 166 as a provision safeguarding individual protection. If § 166 does not protect individual persons but rather ‘public peace, a legally protected right exclusively conferred to the state community’,63 then fundamental rights as subjective rights can hardly support the protection of religion by criminal law since it does not protect distinct individual bearers of fundamental rights – at least not directly so – but only a general public interest.

13.3

The Problem of Constitutional Legitimacy

Today, the protection of religious beliefs by criminal, administrative and civil law (or is it protection of the believers’ sentiments or of a climate of religious tolerance in society? – looking at case law, it is hard to tell) is a peripheral issue in Germany: ‘A serious protection of religious beliefs no longer exists in Germany’.64 This virtual insignificance defuses the urgency of questions concerning the bases, structures and legitimacy of the protection, but it does not render them unnecessary. The odd convictions,

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Ibid. Christian Bamberger, ‘Vorbehaltslose Grundrechte unter staatlichem Vorbehalt?’ (2000) 39 Der Staat 355. BVerwG, App. No. 1 B 60.97, judgment of 11 December 1997. VG Hamburg, App. No. 15 E 211/12 ‘Gòlgota Picnic’, judgment of 23 January 2012, para. 6. Pawlik, ‘Der strafrechtliche Schutz des Heiligen’, p. 39.

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and the penalty imposed by law itself – the preliminary proceedings are after all still initiated on legal grounds – as well as the recurring political demand to re-tighten religious criminal law do not allow for the central question of constitutional legitimacy of this protection to be left in the dark. The constitutional crux (and equally the international human rights principles) leading to the limitation of the State’s regulatory options in the field of the protection of religion is easily identified. As a form of expression, in certain circumstances even as a form of art, criticism of religion enjoys strong constitutional protection because of fundamental rights relating to communication (discussed in Section 13.2.1). Although limitations by means of public bans on expression are not absolutely precluded, they require a viable justification which itself must be of constitutional rank, such as the protection of personal honour with its roots in human dignity. Religion as such is not, however, protected by fundamental rights, nor is the God of any religion. As a spiritual or intellectual belief, religion is not protected from the attacks of non-believers or believers of a different faith, sceptics or satirists. The strong constitutional guarantees of communicative freedom have no constitutional opponent that would effectively limit freedom of expression and speech. The intuitive antagonism between two protectable interests, as is revealed in the classic wording ‘protection of religious sentiments’ on the one hand and ‘presumption in favour of free speech’ on the other, does not have an equal amongst other conflicts of interests protected by fundamental rights that would have to be balanced according to conventional principles of proportionality. All attempts to find a constitutionally acceptable justification for the restriction of speech critical of religion, as long as it does not entail a call to threats or violence, are thus on shaky ground (discussed in Section 13.2.2).

13.3.1

On the One Hand: The Fundamental Right of Freedom to Criticise Religion

The freedom to communicate criticism of religion is comprehensively protected by the fundamental rights of the German Basic Law – although the protection is not absolute. The legislator can limit this freedom like any other and, under certain circumstances, it must do so. The prima facie protection guaranteed by fundamental rights includes all imaginable content and formats, including presentations by individuals or mass media of an artistic, scientific or even religious (for example, missionary) nature,

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whether in the form of an objective critique, a harsh rejection, a spiteful mockery, a degrading contempt or a crude instrumentalisation – the exception being obviously false statements of facts. Depending on type and content, the critical communication in question can fall within the scope of the protection of freedom of expression, freedom of the media, freedom of assembly,65 freedom of art66 (particularly in important cases concerning cartoons and satire),67 the freedom of science68 or, highly significantly,69 the freedom of religion and denomination, to the extent that a religiously motivated statement in an interreligious battle of opinion is at issue. Freedom of expression even protects extremist opinions, subject of course to limits.70 It also covers exaggerated and polemic criticism, because otherwise there would be too great a danger of paralysing or narrowing necessary public discourse.71 In 2011, this line of reasoning led the Higher Regional Court of Stuttgart to a remarkable result in the particular case of the freedom of religious expression. Even passages of a document calling for the killing of Muslims upon the violation of their basic religious duties may fall under the scope of the fundamental freedom and thus trigger a balancing with other constitutional values.72 This example stands for the preferable theoretical concept of an expansive understanding of the fundamental rights relating to communication.73 According to this view, even abusive criticism (Schmähkritik), that is to say defamation violating human dignity, is not a priori excluded from their scope.74 Abusive criticism is simply a German expression to describe those unambiguous cases of value judgements that – even though, as a form of expression, generally and prima facie still falling under the scope of fundamental rights –

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70 71 72 73

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BVerfG, App. No. 1 BvR 776/84, judgment of 26 June 1990; BVerfG, App. No. 1 BvQ 19/04, judgment of 23 June 2004. BVerfG, App. No. 1 BvR 313/85, judgment of 3 June 1987; RGSt 64, 121; Bernhard von Becker, ‘Gegen Grosz und Genossen – Der Gotteslästerungsprozess gegen George Grosz’ (2005) NJW 559 et seq. BVerfG, App. No. 1 BvR 313/85, judgment of 3 June 1987. Isensee, ‘Blasphemie im Koordinatensystem des säkularen Staates’, 127. VGH Bay., App. No. 7 CE 93.2403, judgment of 28 March 1994; BVerfG, App. No. 1 BvR 502/94, judgment of 9 June 1994; BVerfG, App. No. 1 BvR 1299/06, judgment of 25 July 2006; VGH Bay, App. No. 7 ZB 09.948, judgment of 19 November 2009; BVerfG, App. No. 1 BvR 369/04, judgment of 4 February 2010. BVerfG, App. No. 1 BvR 2272/04, judgment of 12 May 2009. OLG Stuttgart, App. No. 1 Ss 175/11, judgment of 19 May 2011. Martin Borowski, Grundrechte als Prinzipien (Baden-Baden:  Nomos, 2007); Matthias Cornils, Die Ausgestaltung der Grundrechte (Tübingen: Mohr Siebeck, 2005), p. 40 et seq. Rox, ‘Schutz religiöser Gefühle’, 50.

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definitely cannot be justified against the conflicting personal rights by way of their explicit attack on human dignity. Schmähkritik therefore has to be prohibited by the legislator.

13.3.2 On the Other Hand: Constitutionally Viable Reasons for Justifying Bans of Religiously Critical Communication? Freedom of expression as guaranteed by the Basic Law can be subject to restrictions (Article 5 (2) of the Basic Law), but – similar to the framework of EU fundamental rights or the ECHR – only if prescribed by law, in pursuance of legitimate and important aims and while maintaining the principles of necessity and proportionality. As demonstrated, § 166 Criminal Code jurisprudence assumes the existence of a constitutional conflict between the freedom of expression on the one hand and opposing constitutional values on the other hand, without, however, explaining or defining the latter.75 In fact, ordinary regulatory aims set by the legislator can hardly suffice to restrict the freedom to criticize religion in conformity with the Basic Law. Certainly, a democratic legislator is generally authorized to define objectives of public interest and to restrict freedoms according to prescribed limitations in the Basic Law. However, in the realm of communication bans, this possibility is already restricted because communication has particularly strong protection derived from fundamental rights, which are not subject to the prescribed limitations in the Basic Law (especially: Article 5 (3) on the freedom of art and science and Article 4 (1) and (2) on the freedom of religious statements). According to German constitutional thinking, these ‘unconditional’ fundamental rights can only be restricted with reference to other interests of constitutional status (i.e. the concept of inner-constitutional limits).76 Apart from that, the German Constitutional Court (as well as the European Court of Human Rights, ECtHR) attributes such a high significance to the ‘simple’ freedom of expression, namely as the cornerstone of a democratic society, that prohibitions on speech are only allowed for very good reasons originating from the Constitution (viz., protection of personality, protection of minors). Do these constitutional values exist as a counterpart to criticism of religion or at least to defamation of religion as defined by criminal law? 75

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Stefan Mückl, ‘Freiheit des Glaubens und der ungestörten Religionsausübung’, in Stefan Kadelbach and Parinas Parhisi (eds.), Die Freiheit der Religion im europäischen Verfassungsstaat (Baden-Baden: Nomos, 2007) p. 107 et seq. BVerfGE 30, 173 (193) – Mephisto; BVerfGE 119, 1 (23) – Esra.

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13.3.2.1

The Obligation to Protect the Practice of Religion Provided by Article 4 of the Basic Law The human rights notion of the ‘obligation to protect’ comes to mind, which can after all be invoked against the state when third parties – in this case, critics and disparagers of religion – violate the fundamental right in question. This obligation pledges the state to act against ‘disturbing’ third parties and, for this purpose, to restrict their freedom of action (‘protection through intervention’). That much is settled human rights doctrine in Germany77 (and Europe).78 In the Basic Law, positive obligations (‘Schutzpflichten’) are recognized with respect to the fundamental right of freedom of religion (Article 4 (1) and (2)); the state is obligated to safeguard the unhindered practice of religion against threats or attacks by citizens or social groups and to ensure ‘space for the active practice of religious convictions and the realization of an autonomous personality in an ideological-religious sphere’.79 However, a positive obligation, which leads to an indirect restriction of a third person’s fundamental rights, can never go further than the negative obligation prescribed by a fundamental right. Consequently, religious groups and their followers can only claim protection for specific freedomof-religion guarantees. Art. 4 (1) and (2) of the Basic Law protect both the inner freedom to form and have a faith or an ideological conviction (or not) and the outer freedom to profess and share that faith as well as to act in accordance with religious beliefs. Pursuant to the broad reading of the German Constitutional Court, this comprises the ‘right of each individual to align their whole conduct to the doctrines of their faith and to act according to their conviction’.80 77

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Josef Isensee, in Josef Isensee and Paul Kirchhof (eds.), Handbuch des Staatsrechts:  Vol. IX (Karlsruhe:  C. F.  Müller, 2011), section 191, para. 146 et seq.; BVerfGE 39, 1 – Schwangerschaftsabbruch I; BVerfGE 46, 160 – Schleyer; BVerfGE 49, 89 – Kalkar I; BVerfGE 56, 54 – Fluglärm; BVerfGE 77, 170 – C-Waffen; BVerfGE 88, 203 – Schwangerschaftsabbruch II. European Court of Human Rights, Manole v. Moldova, Application no. 13936/02, judgment of 17 September 2009, para. 99; Cordula Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (Berlin/Heidelberg:  Springer, 2003); European Court of Justice, Schmidberger v. Austria, Application no. C-112/00, judgment of 12 June 2003; Joachim Suerbaum, ‘Die Schutzpflichtdimension der Gemeinschaftsgrundrechte’ (2003) Europarecht 390. BVerfGE 41, 29 (49) – Gemeinschaftsschule; BVerfGE 93, 1 (16) – Kruzifix. BVerfGE 24, 236 – Aktion Rumpelkammer, para. 20 et seq.; BVerfGE 32, 98 – Gesundbeter, para. 21; BVerfGE 33, 23 – Eidesverweigerung, para. 13; BVerfGE 108, 282 – Kopftuch, para. 37; Martin Borowski, Die Glaubens- und Gewissensfreiheit des Grundgesetzes (Tübingen: Mohr Siebeck, 2006), p. 382.

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However, there is no general right to freedom from negative judgement of one’s own religion. Positive obligations concerning religion are only triggered by statements that have an intimidating effect on the freedom to have or profess a faith, such as threatening or inflammatory incitements exposing the person concerned to the risk of violent attacks or other discrimination.81 However, this threshold will generally only be attained by qualified hate speech, which is recognized by international law (Art. 20 (2) of the UN International Covenant on Civil and Political Rights) and included in German criminal law as ‘sedition’ (‘Volksverhetzung’, § 130 of the German Criminal Code). Disapproval or rejection, mockery or disparagement – within the intellectual realm – does not reach the threshold for hate speech. Specifically, factual objective criticism, even if harsh in style,82 or missionary enticement does not violate any prohibition. As the Constitutional Court held in a decision on crucifixes in classrooms, Article 4 (1) does ‘not give a right to escape professions, rituals or religious symbols of another faith’.83 Thus, criticism of religion or even insult and blasphemy do not generally affect the protective interest associated with freedom of religion and specifically the negative obligations associated with freedom of choice and action.84 The freedom to decide for or against a faith, to form a religious identity, to express this identity and to bring one’s life into line with it is not affected by statements concerning the content of that faith, however disparaging they may be. Quite to the contrary, identification with the attacked belief is often even strengthened.85 Therefore, a right derived from the fundamental freedom of religion, obligating the state to protect against unwanted confrontation and discussion with speakers perceived as hostile, seems almost inconceivable as long as it does not reach the threshold of personal defamation or incitement. The battle of opinions remains free and unhindered as long as it is being fought with intellectual means, even if its subject is the religion of others. The fundamental right simply protects the freedom of religion and not religion itself.86

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Andreas von Arnauld de la Perrière, ‘Grundrechtsfreiheit zur Gotteslästerung?’, in Josef Isensee (ed.), Religionsbeschimpfung (Berlin: Duncker & Humblot, 2007), p. 75. BVerfG, App. No. 1 BvR 1087/91, judgment of 16 May 1995. Ibid. Rox, ‘Schutz religiöser Gefühle’, 112 et seq.; Isensee, ‘Blasphemie im Koordinatensystem’, 119. Pawlik, ‘Der strafrechtliche Schutz des Heiligen’, p. 40. Asma Jahangir, ‘Religionsfreiheit und Meinungsfreiheit’, in Heiner Bielefeldt et al. (eds.), Religionsfreiheit – Jahrbuch Menschenrechte 2009 (Wien: Böhlau 2008), p. 121.

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13.3.2.2

No Protection of ‘Religious Sentiments’ by Fundamental Rights In light of the listed principles, it is clear that religious sentiments cannot find a constitutional safe haven in the fundamental freedom of religion. German constitutional discourse can no longer sustain the protection of individuals’ subjective offense as a component of the freedom of religion; nor can criminal law continue to conceal the ‘protection of sentiments’ behind a façade of public peace by referring to the legitimate expectations of the believers concerned. This criticism is not unique to Germany. The ECtHR has also been harshly criticised for openly accepting the protection of religious sentiments by state parties in the case of OttoPreminger-Institut v. Austria (1994),87 the Wingrove case (1996)88 and in I.A.  v.  Turkey89 (2005),90 especially for the statement that state prohibitions ‘provide protection against seriously offensive attacks on matters regarded as sacred by Christians’ or ‘by Muslims’.91 In general (and not just with regard to religious sentiments) the following applies: how worthy a certain condition or type of conduct is of protection cannot be determined from the point of view of the person concerned but only from a necessarily detached, objective legal position.92 The legal definition and protected scope of a fundamental right such as the freedom of religion cannot be determined by the holder of the right. These determinations are as much within the Constitutional Court’s control93 as is the question whether a certain condition or a type of conduct falls within the scope of protection of a fundamental right, for example, whether a religious belief will be recognized as such according to the pertinent standards. Accordingly, believers cannot in effect raise their emotional state in religious matters to the status of a protective good. The individual’s emotional state, dependant on psychological dispositions and

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European Court of Human Rights, Otto-Preminger-Institut v.  Austria, Application no. 13470/87, judgment of 20 September 1994. European Court of Human Rights, Wingrove v. United Kingdom, Application no. 17419/90, judgment of 25 November 1996. European Court of Human Rights, I.A. v. Turkey, Application no. 42571/98, judgment of 13 September 2005. See the chapter by Lewis in this volume, ‘At the Deep End of the Pool’. Rox, ‘Schutz religiöser Gefühle’, 298. Borowski, ‘Die Glaubens- und Gewissensfreiheit des Grundgesetzes’, 277. BVerfG, App. No. 1 BvR 1783/99, judgment of 15 January 2002; BverwG, App. No. 6 C 8/ 91, judgment of 25 August 1993.

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contingent social communication, cannot determine generally binding imperatives of a legal system.

13.3.2.3

No Protection from Insult through Criticism of Religion The proposition that the protection of identity against insults to personal beliefs can be constructed similarly to the criminal provision of insult is also doubtful.94 The main idea of this concept is a thought already expressed by Rousseau:95 he who insults my religion insults me. Accordingly, fundamental religious convictions essentially characterise a person’s personality; one cannot be separated from the other. From a constitutional point of view this argument is less embedded in the safeguard of freedom of religion than in the right to personality (Article 2 (1) in conjunction with Article 1 (1)). It claims a new facet of protection of religious personal identity96 going beyond the so-far-recognized cases of collective insult,97 themselves not always unquestionable. The main objection to this argument can be summarized as follows: it excessively enlarges the protection of personality by renouncing the direct personal relation in a freedomendangering manner:98 if legal protection was automatically extended to a person who is personally affected by attacks on their fundamental beliefs, the connection to directly personality-constituting features that is so characteristic and necessary for violations of the right to personality would be sacrificed. Verbal abuses of a concept (a theory, an ideology, a belief, a religious institution or protagonist) cannot simply be turned into insult of a person believing in the theory and the like. The coupling of faith with personal identity, such that the abuse of the first translates into an insult of the person, runs the risk of leading down a slippery slope. Once a violation of the right to personality is distilled from 94

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Martin Worms, Die Bekenntnisbeschimpfung im Sinne des § 166 Abs. 1 StGB und die Lehre vom Rechtsgut (Bern:  Peter Lang, 1984)132; Pawlik, ‘Der strafrechtliche Schutz des Heiligen’, 48 et seq. Jean-Jacques Rousseau, ‘Briefe vom Berge’, in Henning Ritter (ed.), Jean-Jacques Rousseau – Schriften (München/Wien: Hanser, 1978), Vol. 2, 135; Pawlik, ‘Der strafrechtliche Schutz des Heiligen’, p. 35. Rox, ‘Schutz religiöser Gefühle’, 165. BGH, App. No. 1 StR 641/88, judgment of 19 January 1989; BVerfG, App. No. 1 BvR 1476/ 91, 1 BvR 1980/91, 1 BvR 102/92, 1 BvR 221/92 – judgment of 10 October 1995; BVerfGE 93, 266 – Soldaten sind Mörder, para. 134 et seq. Rox, ‘Schutz religiöser Gefühle’, 185; Joachim Renzikowski, ‘Toleranz und die Grenzen des Strafrechts’, in Eva Graul and Gerhard Wolf (eds.), Gedächtnisschrift für Dieter Meurer (Berlin: De Gruyter, 2002), p. 187.

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the criticism of a religious concept, it is hardly acceptable in light of the principle of equality before the constitution that only an insult to a religion, and not also the disparagement of everything else people hold dear, should be prohibited (argument of a religion-specific privileged treatment).99 For a freedom-loving and communicative society, this would be a daunting prospect.100 What God or a prophet is to one person can be a world without nuclear energy or animal use, a passion for music or soccer to another person. A  major problem would thus arise for the freedom of society if free speech could be restricted only because people took criticism, mockery and malice personally, even though they are not the addressee of the disparagement concerned. A constitutionally prescribed or even only legitimised protection of religious sentiments according to the subjective perception of those that feel affected is not worth considering for the sake of everyone’s freedom. It would lead to a rule of the sensitive and would give the – imaginary – victims of intellectual abuse the power to determine what is permitted in the public discourse.

13.3.2.4 Protection of Tolerance Little persuasion but considerable danger for freedom follows from the idea that religious communication should be safeguarded in the spirit of tolerance or even respect, because an imperative of protecting tolerance cannot be read into the fundamental right of freedom of religion. However, references to tolerance – as a requirement to moderate statements critical of religion – are common: the explanatory memorandum for the draft of the amended § 166 Criminal Code closely associated the previously introduced concept of a protected interest in public peace with an ‘idea of tolerance’ without further defining their relationship.101 The question whether there was ‘defamation’ is to be answered according to the ‘objective judgement of an observer mindful of religious tolerance’.102 The ‘religious and ideological manifestation of public peace’ as protected by § 166 is meant to entail the ‘protection of the population’s trust in mutual respect and tolerance on matters of religion and ideology’.103 Here, 99 100

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Rox, ‘Schutz religiöser Gefühle’, 186. Timothy Ash in the Guardian, 2 March 2006 (cited by Andreas von Arnauld de la Perrière, ‘Grundrechtsfreiheit zur Gotteslästerung?’, 65). ‘Bericht des Sonderausschusses für die Strafrechtsreform’, BT-Drucks 5/40954, 29; OLG Nürnberg, App. No. Ws 1603/97, judgment of 23 June 1998, para. 27; AG Lüdinghausen, App. No. 7 Ls 540 Js 1309/05 31/05, judgment of 23 February 2006, para. 26. OLG Karlsruhe, NStZ 1986, 363 (364). OLG Köln, NJW 1982, 657; OLG Nürnberg, NStZ-RR 1999, 238 (240).

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the risk posed by tolerance transformed into obligatory conduct becomes particularly clear: a ‘tolerance requirement’ serves as a legal justification for the criminalization of intolerant conduct, in keeping with the spirit of the paradox ‘no tolerance for intolerance’.104 Tolerance becomes a vague and difficult-to-grasp argument of penal repression, as is demonstrated by a passage of the judgement of the Higher Administrative Court in the Maria Syndrome case:  ‘to inner peace belongs a tolerance in questions of religion and ideology without which a free and pluralistic society cannot exist, everyone has to be able to pursue their faith without having to fear public defamation or marginalisation’.105 From this point it is only a small step for the Court to the final verdict containing a conviction under § 166: ‘fairness and decency in the public discussion have not been observed’. The tolerance agenda thereby elevates rules of etiquette or moral decency to the level of authorisations of criminal law interventions without doing justice to the criterion of causing danger to public peace covered by the offence of sedition (§ 130 Criminal Code). As with the barely convincing handling of § 166 Criminal Code in practice, the attempt to legitimise an objective protection of tolerance on a constitutional level appears rather unpromising: in a horizontal relation between citizens, tolerance can only be expected in the form of respect for the other person, an esteem for the other person requiring acceptance of a differing opinion.106 But this claim relies on the right to personal and social respect, derived from the protection of personality, which triggers the protection of the state. The problem is that tolerance can never involve claiming consent or approval for the opinion or faith of another person – by definition tolerance presumes the rejection of a point of view. What has to be tolerated – by virtue of the constitutional third-party effect – is the human being, not their opinions. Tolerance can be demanded by someone for their person but not for their religious convictions. Constitutionally, the idea of tolerance thus adds nothing to the protection of honour107 and cannot justify state prohibitions of blasphemy or defamation of religion. The other arguments invoked in the context of a protection of tolerance are also questionable at best. The argument that suppression of statements 104

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Karl-Heinz Ladeur and Ino Augsberg, Toleranz – Religion – Recht (Tübingen:  Mohr Siebeck, 2007), p. 28 et seq. OVG Koblenz, NJW 1997, 1174 (1176). Stefan Huster, ‘Toleranz als politisches Problem in der pluralistischen Gesellschaft’ (2005) 91 Archiv für Rechts- und Sozialphilosophie 20. Christoph Enders, ‘Toleranz als Rechtsprinzip?’, in Christoph Enders and Michael Kahlo (eds.), Toleranz als Ordnungsprinzip? (Münster: Mentis, 2007), p. 253 et seq.

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hostile to religion is justified to avoid violent reactions by concerned third persons violates, as was mentioned earlier, fundamental principles of attribution. The communicating party, who is indirectly involved, is made liable for the potential or real aggressions of the actual perpetrator who breaches the peace. The same complication arises with respect to the arguments in support of safeguarding discourse through the protection of a tolerant climate in society in a way that allows those who express anger to silence others.108 When critics of religion are excluded from the discourse by criminal law or regulatory means in the hope of keeping sensitive participants on board, the costs of the state maintaining the public discourse are too high.109 The resulting incentive is inherently problematic: when faced with such a management of public discussions, no one is called on to find the courage to assert themselves in a difficult discussion and to defend their views any longer. Those are not good conditions for confident citizens of a democracy.110 In any event, the Constitution is misunderstood when used as a source of legitimacy to make someone respect or even appreciate someone else’s opinion, and thus their faith, which can, after all, be an absurd (mis)belief (tolerance as ‘appreciation’, not just coexistence).111 The constitution safeguards the possibility of rigorous rejection and disrespect of other opinions. In no way does it demand ‘respect’ for different religions or philosophies. To the contrary, the fundamental right to freedom of religion guarantees the freedom of firm demarcation in relation to other religions and ideologies. This is precisely the realm in which some inter- and sometimes intra-religious disputes have always been held with special irreconcilability and poignancy (criticism of the church, the pope, of cults, heresy and apostasy, of ‘relativism’, etc.). When religions claim absolute meanings, which by their reference to transcendence defy the limitations of social subsystems,112 respect for 108

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Friedrich Kübler, ‘Rassenhetze und Meinungsfreiheit’ (2005) 125 AöR 126; Renzikowski, ‘Toleranz und die Grenzen des Strafrechts’, 188. Rox, ‘Schutz religiöser Gefühle’, 240 et seq. Rox, ‘Schutz religiöser Gefühle’, 245; Barbara Rox, ‘Vom Wert der freien Rede – Zur Strafwürdigkeit der Blasphemie’ (2013) JuristenZeitung 30. Rainer Forst, ‘Toleranz, Gerechtigkeit und Vernunft’, in Rainer Forst (ed.), Toleranz (Frankfurt am Main:  Campus Verlag, 2000), p.  129; Renzikowski, ‘Toleranz und die Grenzen des Strafrechts’,182. Ino Augsberg, ‘Noli me tangere. Funktionale Aspekte der Religionsfreiheit’ (2009) 48:2 Der Staat 241; Matthias Mahlmann, ‘Free Speech and the Rights of Religion’, in András Sajó (ed.), Issues in Constitutional Law (Utrecht: Eleven International, 2007), p. 61.

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the ignorant cannot be demanded. More substantial concepts of tolerance going beyond multicultural coexistence should therefore at least be excluded from the realm of state intervention through punishment and prohibition,113 even if these concepts have an influence in educational mediums such as schools or public broadcasting. In the regions of this world where criticism of (mostly the dominant) religion is restricted, prohibited or even forbidden under penalty of death, there is almost never freedom of the other religion. The vocabulary of tolerance and protection of peace thus often proves to be no more than an instrument of power for the ruling class.114 With this in mind the Constitutional Court opposed such a protection of the social climate that is based on an idea of tolerance but is itself structurally intolerant: ‘ The protection from harm to a ‘general sense of peace’ or from a ‘poisoning of the intellectual climate’ are no more a reason for State intervention than the protection of the population from an affront to their sense of right and wrong by totalitarian ideologies or an evidently erroneous interpretation of history’.115

13.3.2.5 Religion-Specific Protection from Confrontation When viewed alongside the freedom of expression, the analysis of a putative protection from confrontation under a fundamental rights theory – that is to say, a fundamental subjective protection against unwanted information critical of religion – also struggles to make sense. However, in legal practice, this idea, too, is used by Courts to justify bans on speeches and performances.116 In a liberal society, it seems, there cannot be a right to state support for a refusal to communicate:  the freedom of religion as safeguarded by fundamental rights has to align itself with the basic assumption of the Basic Law, following from the freedom of expression, of an idea of man built on sociality and communication. Within this concept of communicative sociality there does not seem to be a place for an interest in hermitage and isolation from the outside world 113 114

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Renzikowski, ‘Toleranz und die Grenzen des Strafrechts’, 183. Stefan Mückl, ‘Meinungsäußerungsfreiheit vs. Religionsfreiheit:  Anforderungen aus menschenrechtlicher Sicht’, in Eckart Klein (ed.), Meinungsäußerungsfreiheit vs. Religionsund Glaubensfreiheit (Berlin: Berliner Wissenschaftsverlag, 2007) p. 81. BVerfGE 124, 300, para. 77. Wingrove v. United Kingdom, para. 63; Rox, ‘Schutz religiöser Gefühle’, 296; VG Hamburg, App. No. 15 E 211/12, ‘Gólgota-Picnic’, judgment of 23 January 2012, para. 10; BVerwG, App. No. 3 B 98.98, judgment of 28 October 1998; Rox, ‘Schutz religiöser Gefühle’, 149 et seq.

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and its intrusions, protected by fundamental rights. In the words of the Constitutional Court: An understanding of public peace aiming at citizens’ protection from subjective uneasiness owing to confrontation with provocative opinions or ideologies or aimed at the preservation of social and ethical views considered fundamental is not sufficient to justify limitations of the freedom of expression. Uneasiness brought about by confrontation in the battle of opinions and resulting from the content of ideas and their theoretical consequence alone is the necessary counterpart of freedom of expression and cannot be a legitimate aim for its restriction.117

So is a believer without protection against invectives of his God truly exposed? Is there no constitutionally justified protection at all from aggressive religion-hostile pestering by others? Well, the quest for a constitutional counterpart to freedom of expression and thus for a legitimising basis for protective interventions is not entirely futile, even if limited to specific situations. In this respect, too little attention is given to the scope of protection presented by negative freedom of information (Article 5 (1)118 or, specifically for religious communication, Article 4 (1)  and (2) of the Basic Law), which could offer a way out of the impasse through the concepts of honour and tolerance. Prima facie, the Basic Law comprehensively protects active freedom of expression, including the most peculiar and repulsive statements. At the same time, it must accord a right to refuse the communication attempts made by others – independently of the content – religious or otherwise. Everybody has a right to speak his or her mind. No one, however, has a right to be heard by others. An absolute supremacy of active freedom of expression over passive freedom to refuse information is constitutionally implausible; it would not accord with the basic premise of fundamental rights theory, which establishes a priori equal rank of different manifestations of freedom to be chosen by the individual in free self-determination. Although a willingness to communicate in principle may be a materially significant constitutional expectation for the success of democracy, it does not follow from this that it is a constitutional duty. To the extent that the decision to avoid unwanted communication by others is a religious duty, it can be the subject of the positive State obligation of Article 4 (1) of the Basic law. Inasmuch as it is not already a duty following from a religious confession, there is always

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BVerfGE 124, 300 – Wunsiedel, para. 77. Jörg Fenchel, Negative Informationsfreiheit (Berlin: Duncker und Humblot, 1997).

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the possibility of a – less thematically specific – positive obligation resulting from the guarantee of negative freedom of information. However, in a constitutional balancing, a right to protection from confrontation based on negative freedom of information can probably only prevail over the positive freedom of expression of the press, broadcasting and private individuals in situations involving captive audiences; not where there is a mere possibility or probability of accidental notice by the person ‘concerned’. A right to isolation with effect into public or virtual space would be incompatible with a liberal communication order. The only conceivable exceptions to this are cases of religious special use (open-air services, processions, etc.). An approach that accepts a protection from merely unannounced or other unforeseeable confrontation – for instance in the case of provocative content in broadcasting, movies or theatre coming down on the audience without prior warning – is not uncommon in some jurisprudence such as that of the ECtHR (e.g., Wingrove case119). But the analysis has been met with legitimate criticism: places of public communication must always remain exempt from the individual right to refuse communication; the costs for freedom as a result of transferring to the media, artists or bloggers the responsibility to avoid the risk that others will be surprised by confrontations with subjectively hurtful content would be unbearably high.

13.4 Conclusion So what can one expect from the German legal system and particularly the Basic Law as its source of orientation and legitimacy in regard to the prevention or repression of communication conflicts in the battle of religious opinions? The analysis shows: for constitutional reasons, not very much, apart from cases of evidently personal insults or sedition (‘spiritual arson’). Although criminal liability for defamation of religion is, however largely disputed, maintained in German criminal law to this day, the foundation for its legitimacy seems to be fragile, and its practical relevance is therefore low. Its underlying concept – that is the protection of public peace against mere disturbances short of a threshold of a real and concrete threat to individuals or defined groups – has never been able to reach consent by legal scholars; indeed, this concept of public peace has raised serious concerns as to its compatibility with the crucial democratic

119

See the chapter by Lewis in this volume, ‘At the Deep End of the Pool’.

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assumption and requirement of freedom of expression. No legally protected interest can be convincingly put forward against public criticism of religion, as offending as it may be, as long as it does not entail a tangible obstruction of the freedom of religion. Nearly every communication ban beyond those cases of personal defamation or incitement is thus placed on unstable ground. Other than the – rather marginal – exceptions in the form of a protection from confrontation outlined earlier, there is almost no room for a proportionate protective intervention with the freedom of critical expression. Where there is no compulsion to receive information such as in a classroom (‘learning under the cross’),120 that is to say where there is the possibility of evading the undesirable attack, such an evasion can be reasonably expected for the sake of the freedom of expression. In places of public communication – the media, the internet, in public streets, in theatres and cinemas – the freedom of expression, that is to say even forms of blasphemy, can claim constitutional priority. Criminal liability for the defamation of religion in Germany is thus only constitutionally acceptable when its interpretation is restricted to extreme cases of malicious agitation – and even then, it hardly seems necessary.

120

BVerfGE 93, 1 (16) – Kruzifix; HessStGH, ESVGH 58, 46, para. 85; BVerfGE 108, 282 (306); OVG Bremen, NVwZ-RR 2006, 402 (403); European Court of Human Rights, Lautsi v. Italy, Application no. 30814/06, judgment of 3 November 2009; Fabian Michl, ‘Cadit crux? Das Kruzifix-Urteil des Europäischen Gerichtshofs für Menschenrechte’ (2010) Jura 690.

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14 God’s Advocates The Multiple Fronts of the War on Blasphemy in Greece

Effie   Fokas

God does not need the support of the prosecutor to confirm His presence, nor can He be considered a legally protected interest for He is the beginning and the end of all legally protected interests.1

14.1

Introduction

The quoted observation is a seemingly straightforward statement against the need for blasphemy laws, delivered in a country context, however, where the notion is rather far from straightforward. Greece is amongst the few European countries with blasphemy laws in place and amongst a smaller number of countries where blasphemy is punishable by imprisonment. ‘God’s advocates’ are a broad range of actors who individually and together contribute to the establishment and maintenance of a support system for the existence and application of the blasphemy laws. Specifically, their aim is to purge from the Greek public square the offences against God, Christianity and the Greek Orthodox Church and against the religious sentiments of individuals. They are assisted in this by certain corners of the political and judicial class.

1

These are the words of a self-avowed Christian Orthodox legal scholar, Alexandros Kostaras. See his ‘Freedom of art and penal law’, in Democracy – Freedom – Security (Athens/Thessaloniki:  Sakkoulas, 2005), frequently cited by scholars campaigning against blasphemy laws.

I would like to acknowledge the support of the European Research Council, funder of the Grassrootsmobilize research programme (ERC grant agreement no 338463) under the auspices of which the research for this text was conducted. I would like to thank Alexia Mitsikosta and Gabriele Cusimano for their research assistance and Agis Petalas for his shared insights on the relevant Greek legislation.

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Two particular articles of the Greek Criminal Code form the main legal basis upon which individuals may be prosecuted for the crime of blasphemy, Articles 198 and 199, both of which fall under Section 7 of the Criminal Code on ‘Offenses against Religious Peace’. Article 198, on ‘malicious blasphemy’, indicates that: 1. Anyone who insults God in public and with malicious intent, in any way whatsoever, shall incur a prison sentence of up to two years. 2. Anyone who blasphemes in public in circumstances other than those specified in paragraph 1, thereby showing a lack of respect towards God, shall incur a prison sentence of up to six months or with a fine of up to 3,000 euro.

And Article 199, on ‘insulting a religion’, sets out that: Anyone who insults the Eastern Orthodox Church or any other religion recognised in Greece, in public and with injurious intent, in any way whatsoever, shall incur a prison sentence of up to two years.

Article 198 prosecutions can be initiated by the state on the basis of public interest, and without a complaint having been made; Article 199 requires a complainant. Blasphemy cases can be brought before civil and criminal courts, and civil courts may issue interim measures to prevent a work of art from being exhibited. These are the two main articles pertaining to blasphemy, though they sit within a broader legal framework which entails further limitations on the freedom of speech:  namely, Article 14 of the Greek Constitution, which, after setting out freedom of speech, freedom of the press and prohibition of censorship, indicates in paragraph 4 that: Seizure by order of the public prosecutor shall be allowed exceptionally after circulation and in case of: a. An offence against the Christian or any other known religion. b. An insult against the person of the President of the Republic. c. A publication which discloses information on the composition, equipment and set-up of the armed forces or the fortifications of the country, or which aims at the violent overthrow of the regime or is directed against the territorial integrity of the State. d. An obscene publication which is obviously offensive to public decency, in the cases stipulated by law.

But it is the articles of the Criminal Code (198 and 199)  exclusively which carry the potential punitive measure of imprisonment and which have attracted extensive national and international critique.

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These articles are very much alive in the Greek context. As one scholar notes, unlike other European countries where there has been a resurfacing of the criminal offense of blasphemy in the context of a rise of Islam in Europe, ‘in contrast, the criminal treatment of blasphemy in Greece . . . has not waited for the emancipation, or the sensitivities, of any minority: it has always been topical’.2 In reality, the issuing of prison sentences for the crime of blasphemy is rare. Instances of the issuance of interim measures, however, such as the temporary banning of films, plays, books or displays of works of art, are numerous and the centre of mobilisation efforts towards the revocation of the blasphemy laws, not least because of concerns regarding self-censorship, particularly in the world of art. The prosecution of blasphemy in Greece has a long history (Section 14.2). This history is coloured with many incidents of censorship and arrests and thus a rich case law; a selection of these incidents is examined in greater detail in the next section (Section 14.3). This selection is intimately linked to the mobilization efforts to abolish the blasphemy laws, described in Section 14.4. Section 14.5 presents perspectives on the blasphemy laws and, specifically, on the penalties these entail, of a range of scholars, artists and activists (many of whom are introduced already in Section 14.3 on mobilisations). The chapter closes with a consideration of the extent to which the blasphemy laws in contemporary Greece are discussed specifically in the shadow of the Charlie Hebdo attacks (Section 14.6).

14.2

Blasphemy in the Depths of Time: Of Bavarians and Colonels, Priests and Parliament

The Greek Criminal Code has its basis in the Greek Criminal Law of 1834, which, drafted during Bavarian rule of Greece was, in turn, significantly influenced by the 1813 Bavarian Code. As Michael Tsapogas notes, the Bavarian Code was heralded as the first European Criminal code that, in the spirit of the Enlightenment, no longer entertained offences against God as such. According to its drafter, Ludwig Feuerbach, ‘God is not liable to offence; and even if He were offended, He would not under any

2

Michael Tsapogas, ‘Blasphemy and justice in a Greek Orthodox context’, in Blasphemy, Insult and Hatred: Finding Answers in a Democratic Society, Venice Commission, Council of Europe Publishing, Science and Technique of Democracy, No. 47, March 2010, 113–119, at 113 (available at www.venice.coe.int/webforms/documents/?pdf=CDL-STD(2010)047-e).

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circumstances wish the punishment of His offenders’.3 Yet this Bavarian legislator diverged from this model when drafting the relevant Greek law on blasphemy, providing special protection for ‘religions tolerated by government’, ‘for the good of the Nation’. The intimate relationship between church and state that was formalized in the establishment of the modern Greek state has been explored thoroughly by a number of scholars.4 That relationship is reflected in the history of the blasphemy laws. Tsapogas locates the root of the codification of blasphemy as a criminal offence in the ‘irrational fusion of responsibilities’ which was enacted at the establishment of the modern Greek state and whereby, for instance, the church would excommunicate at the behest of the state, and the state would imprison at the behest of the church.5 This relationship and its impact on the criminalisation of blasphemy is differently inflected through time. In the 1920s, the church asked of the Minister of Justice for a ‘Morality Police Force’ to be formed, one of the responsibilities of which would be to act as a campaign against the ‘crime of blasphemy’. At the time the main expression of blasphemy provoking the church was that of the insulting of things or beings deemed holy.6 In an encyclical ‘Against blasphemy’ (May 1923), the archbishop asked specifically for strict measures to be introduced to end such blasphemy amongst men serving in the military. According to one journalist’s study, the state immediately instated relevant penalties and arrested hundreds of 3 4

5 6

Cited by Tsapogas, ‘Blasphemy and justice’, at 113. For references to a rich body of relevant literature, see Efterpe Fokas, The Role of Religion in National–EU Relations: The Cases of Greece and Turkey (unpublished PhD thesis, London School of Economics; available at http://ethos.bl.uk/OrderDetails.do?did=1&uin=uk .bl.ethos.409643). Tsapogas, ‘Blasphemy and justice in a Greek Orthodox context’, at 118. Based on his anthropological research in Greece, Michael Herzfeld describes this type of blasphemy as ‘a kind of verbal iconography which allows the speaker to impugn the Virgin Mary, the Christ, or a saint “of ” an opponent, whether individual, groups, or even inanimate object’. Noting the unreflexive nature of the blasphemous act, Herzfeld adds that ‘[a]lmost always a product of irritation, often at a trivial level, it is easily dismissed as merely a “bad custom”’. See Michael Herzfeld, ‘The significance of the insignificant: Blasphemy as ideology’ (1984) 19 Man 653–664, at 654. The ubiquity of this type of blasphemy in Greece stands in stark contrast to the severity of the regime criminalising blasphemy in general. Talal Asad’s ‘Reflections on blasphemy and secular criticism’ can also be usefully brought to bear on the discussions of the blasphemy laws and their applications in the Greek case, particularly his consideration of morality versus manners (where the blasphemy being managed in 1920s Greece can be considered ‘bad manners’). Talal Asad ‘Reflections on blasphemy and secular criticism’, in Hent de Vries (ed.), Religion:  Beyond a Concept (New York: Fordham University Press, 2008), available at http://townsendlab.berkeley.edu/ sites/default/files/wysiwyg/ASAD_0.pdf.

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offenders (a claim supported by a documented letter from the Holy Synod to the authorities, expressing its approval).7 The Metaxas dictatorship (1936–1941) introduced a new chapter in the history of persecution of blasphemy. Now in the aftermath of the entry into pop culture of the gramophone, music became a centre of concern: the Ministry of Press and Tourism had a censorship committee called the ‘committee for the selection of songs’, charged with identifying songs with blasphemous content. And on 16 April 1937, the Athens Police Force Chief published an order ‘On the prohibition of blasphemy and the use of gramophone records that satirize religion’. The order entailed two articles: Article 1 containing a ‘Prohibition of blaspheming what is holy’ and Article 2 containing a ‘Prohibition of insulting in public’ (where the latter offends public morality and decency).8 Meanwhile, the Church saw in the Metaxas regime an opportunity to press for more stringent measures against blasphemy: amongst twenty-eight proposals related to blasphemy were calls for civil servants to face the potential of immediate job loss if found guilty of blasphemy; for individuals found guilty of blasphemy to be barred from civil service; for the press to mandatorily publish the names of blasphemers; and for the display in public spaces signs with the phrases ‘Do not blaspheme what is holy’, ‘Blasphemy is indecent’ and ‘Blasphemy impoverishes the Greek language’.9 The legal regime governing blasphemy which is currently in effect was approved by Parliament in 1950 and enacted in 1951, except for one change introduced to Article 198, paragraph 2, in 2012. A revision approved by Parliament on 2 April 2012 increased the penalty for ‘malicious blasphemy which shows a lack of respect towards God’ from three months to six months’ imprisonment and a fine of up to 3000 euros.10 Arguably, the main point of continuity throughout this long history of criminalization of blasphemy is the notion that the good of the nation (‘social peace’) requires special protection of Orthodoxy and other ‘tolerated’ religions. Also a red thread throughout is the role played by the

7

8 9

10

Yiorgos Karagiannis, ‘“Morality Police Force” with priests’ robes in the Interwar Years (Part A)’, 16 December 2016 (available at www.imerodromos.gr/ekklisia-mesopolemos-1/). Karagiannis, ‘“Morality Police Force”’. ‘10 Commandments or Constitution?’, Eleytherotypia, 2 April 2000, see ‘O Ios tis Kyriakis’ section of this newspaper (available at www.iospress.gr/ios2000/ios20000402a.htm), containing the output of a team of journalists who researched the criminalization of blasphemy and, particularly, the role of the Orthodox Church in this. The Greek Criminal Code is available at www.c00.org/2013/01/greek-penal-code-article198.html. See also http://tvxs.gr/news/egrapsan-eipan/o-diakommatika-enisxymenosnomos-kata-tis-blasfimias-toy-panagiotidimi tra.

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Orthodox Church and/or its hierarchs in defending, promoting and seeking to preserve (if not strengthen) the blasphemy laws.11

14.3

An Array of Battlefields

The fronts of the battle against blasphemy have included, over time, protests, banning of books, plays and works of art, as well as the criminal pursuit of ‘enablers’ of the said acts of blasphemy, including artists, authors, curators, salespersons and the like. The acts of censorship hinging on the blasphemy laws have been particularly numerous in the realm of art, but the use of these laws has far transcended that realm. In what follows, some of the most flagrant incidents of enactment of the blasphemy laws are discussed, together with the subsequent court cases. The latter will shed light on the role of the courts in setting the path that the issue of blasphemy has taken in Greece. The selected incidents have become central to the Greek mobilization efforts to secure their abolishment, as detailed later; each in their own way, they have left a lasting impact on the community of artists, activists, lawyers and legal scholars working on this issue. First in this necessarily selective list is the case of the banning in 1988 of the film directed by Martin Scorsese, The Last Temptation of Christ, which was based on the novel by Nikos Kazantzakis. This case has had a lasting effect on the Greek discussions around blasphemy especially because of the strikingly central – to the state – role afforded to religion in the judgment. Specifically, in it the Athens Court of First Instance declared, Protection of religious sentiments … is imperative, because they entail ethical-social values, social and legal interests worthy of protection to the benefit of civilization and of the state. Religion is not purely an individual affair, a wholly internal relationship of the soul towards God, in relation to which the state can be indifferent, but is the foundation of the state, a factor of spiritual civilization, which affects not only the feelings and the thoughts but also the actions of Man.12

11

12

See Stavros Tsakirakis, Religion against Art (Athens:  Polis, 2005; 2016 edition); Dimitris Christopoulos (ed.), God Has No Need of a Public Prosecutor:  Church, Blasphemy and Golden Dawn (Athens:  Nefeli, 2013); Daphne Halikiopoulou and Sofia Vasilopoulou, ‘Political Instability and the Persistence of Religion in Greece:  The Policy Implications of the Cultural Defence Paradigm’, RECODE Online Working Paper No.18 (2013); and Elisabeth Diamantopoulou ‘The controversy on the depenalization of religious blasphemy in contemporary Greece: The interplay between (case) law, religious nationalism and politics’ (2016) 45 Studies in Religion, 166–182. Ruling 17115/1988.

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As one scholar argues, this wording, setting religion as the ‘foundation of the state’, is simply reflective of the leaning of the particular judge. Sarcastically he writes, ‘[s]ince in the perspective of the Court the Constitution does not exist, it is clear that the judge selects on the basis of his own worldview. The judge in question selects religion as the basis of the state, whilst another with the same ease and arbitrariness could violate the common good, public safety, the accepted principles of morality and other values’.13 Thus this aspect of the ruling, though striking, was not expected to leave lasting effects, and indeed it was not repeated in a similar case against the book M to the Power of N (see what follows). More problematic though was the court’s interpretation of religious feelings and faith as particular aspects of personality which are protected from offense. Legal scholar Stavros Tsakirakis argues that though of course the personality of an individual includes his feelings, his faith and his beliefs, this does not mean that every ‘offense’ of his ideas or feelings entails also an offense against his personality.14 The Last Temptation judgment, however, did equate religious feelings with personality. It is also worth considering the wording of the court’s conclusion, because it reflects the type of sensitivity around all things religious which underpins the Greek institutional approach towards blasphemy. The court concludes then that in this film Jesus Christ appears, in his divine but also human nature, as weak, afraid, a liar, a hypocrite, a magician, erratic, speaking at times about love, other times about fear, other times about axes and about fire, with doubts about his mission and with sexual fantasies, unspoken wishes and desires, he is mocked, scorned and publicly ridiculed, since the cinema is accessible to the public, [Jesus Christ appears thus] with the intent to express contempt, and is therefore maliciously blasphemed.15

In 2000, a Thessaloniki judge prohibited in the northern regions of Greece the circulation of M to the Power of N, a book by Mimis Androulakis in which Jesus is portrayed as having sexual desires. In this case, a claim was made that the book ‘leaves open to suggestion of sexual relations of Jesus Christ, the consequence of the violation of the claimant’s personality through his religious sentiments as an

13 14 15

Tsakirakis, Religion against Art, p. 32. Tsakirakis, Religion against Art, p. 33. Tsakirakis, Religion against Art, p. 37.

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Orthodox Christian’.16 At the same time, additional criminal charges for ‘blasphemy’ were filed by the Salonica prosecutor’s office against the book’s author and publisher. The suit was initiated by fundamentalist Orthodox and Byzantine history teacher Marios Pilavakis, who argued that Christ’s life cannot be open to fictional reinterpretation. Though the church and its leader at that time, Archbishop Christodoulos, refused to comment on the decision, Metropolitan bishop Kallinikos, speaking for the Holy Synod, said Androulakis had no right ‘to insult millions of our faithful with what he has said about the leader of our faith’.17 When considered by the Athens Court of First Instance,18 the judge overturned the Thessaloniki court decision, finding that a violation of personality cannot be found in an allegorical work of art which should not be taken literally.19 The judgment was thus considered an important revision of that in the Last Temptation case. The judge of the Athens court was praised by defenders of the freedom of expression in particular for including, for the first time in the case law, the public as holders of the right:  ‘ The freedom of art includes the right of creation and circulation of works of art, as well as access of the public to works of art … This freedom can thus be claimed not only by the artist but also by his audience’.20 Notable precedent was thus set in the case law, though the principle was violated soon thereafter, in the case of the Outlook exhibition. In the autumn of 2003 and in the context of the ‘Cultural Olympiad’, an art exhibit entitled Outlook was organized at the School of Fine Arts, wherein works of contemporary art were displayed, amongst which was that of Belgian artist Thierry de Cordier (‘Asperges me’), depicting a penis ejaculating on a cross. Following a media furore that was sparked by complaints about the piece publicized in the press, the exhibit’s curator Christos Ioakeimidis removed the painting from the exhibition. He also became the brunt of charges of blasphemy for allowing the painting to be exhibited in the first place.

16 17

18 19 20

Cited by Tsakirakis, Religion against Art, p. 51. See Greek Helsinki Monitor, ‘Greece Update’, 9 March 2000, available at www.hartfordhwp.com/archives/62/423.html. Case no. 5208/2000. See Tsakirakis, Religion against Art, at p. 54. Cited by Tsakirakis, Religion against Art, at pp. 58–9.

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The case has been discussed at length by many scholars.21 It is worth adding to this literature attention to certain details regarding the decision to remove the painting, the explanation offered to the public for this decision and the approach of the court to the matter. These events require citing lengthy statements, the careful consideration of which, however, offers critical insight into the mentalities and rationale underlying this drive against both the work of art and the curator. First, the ‘protests’ against de Cordier’s piece were mainly limited to the media and to political corridors (including those linking church and state, Archbishop and Minister of Culture). But specifically the publicity involved played a large role in the decision of the Organisation for the Promotion of Greek Culture to call for the painting’s removal from the exhibition. According to the minutes from the relevant meeting, the intensity with which the issue is presented in the media and the pursuant dialogue that developed, which is fed by statements by public figures, will obviously maintain the issue in the public discourse in a way completely disproportionate to the effort made [in this exhibit] and which is to inform citizens of today’s trends and of the achievements of art … Further, the type of publicity and the way in which the piece in question was presented and handled, establishes well-founded fears regarding the integrity of all the pieces of art participating in the exhibit, but also of the potential for incidents in the exhibition spaces…22

The organisation thus decided to remove the painting, placing in its stead a sign indicating The work of Thierry de Cordier ASPERGES ME was considered as an image insulting the Cross e.g. [sic] the symbol of Christian Religion. The intense discourse that was initiated because of that, tends to overshadow the essence of the exhibition and obstruct the contact of the public with contemporary art. However, the aim of OUTLOOK is to present to the public the full range of the artistic tendencies and create a genuine interest of the public for contemporary art. Considering all the above the Board of the Cultural Olympiad and the director of the exhibition decided to

21

22

See especially Ioannis Ziogas, ‘Acts of Greek censorship of art’, entry under ‘2003’, in Ziogas et  al. (eds.), Aspects of Censorship in Greece (Athens:  Nephele, 2008), pp. 187– 312 (in Greek); see also Tsakirakis, Religion against Art; Diamantopoulou, ‘Blasphemy in Contemporary Greece; and the chapters by Michael Tsapogas, Dimitris Sarafianos, Dimitris Christopoulos and Dimitri Dimoulis in Blasphemy, Insult and Hatred. ‘Minutes from the meeting of the Administrative Council of the Organisation for the Promotion of Greek Culture, during which the decision for the removal of the work of de Cordier’, in Aspects of Censorship in Greece, pp. 322–24, at 323.

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effie fokas withdraw this specific work and post the present announcement explaining the reasons for the withdrawal.23

According to the prosecutor in the case against the Outlook curator, the latter was guilty of presenting a painting which he used as a means to achieve greater publicity and in order to display an obscene work of art, which according to the common feeling offends the sense of shame while pretending to be a work of art, because, due to its content, it does not belong in the cultural creations of humanity and does not contribute to the promotion of human knowledge and decency. Furthermore, the aforementioned obscene painting is a creation of a perverted artistic mind which definitely offends the sense of human shame.24

This act was interpreted as a malicious will to scorn and ridicule the Eastern Orthodox Church and thus attracted the application of Article 198. The curator was acquitted on 10 May 2006. In 2005 a comic book by Austrian comic writer Gerhard Haderer entitled The Life of Jesus, which depicted Jesus as a party animal, was banned by a three-member lower criminal court of Athens, acquitting the book’s Greek publishers and four local booksellers of all charges regarding the book but withdrawing the book from circulation under the relevant constitutional provision (Article 114, paragraph 4) and sentencing the author to six months’ imprisonment under the blasphemy law, that is Article 199 of the Criminal Code.25 This was only the second time in history when Article 114, paragraph 4, of the Constitution was applied, and the first time it was applied in a case of blasphemy against religion, with the decision for the confiscation of the book being maintained in the judgment. According to the office of the prosecutor, the cartoons ‘constitute a gross and vulgar manifestation of contempt and affront against the person of Jesus Christ … with the ultimate goal to earn money’.26 Though the text in question was a comic book, the prosecutor complained that there was not in the text ‘even a trace of objective criticism and treatment of the

23

24 25

26

‘The text that was displayed by the organisers in the place of the piece of art’, in Aspects of Censorship in Greece, pp. 324–25, at 325. Cited in Tsakiris, Religion against Art, at 67. Tsakirakis, Religion against Art, pp. 69–75. See also Vivian Panayotou, ‘Jesus comic enrages Greeks’, DW, 8 February 2005, available at www.dw.com/en/jesus-comic-enrages-greeks/ a-1480744. For the full 2005 decision, see Ziogas et al. (eds.), Aspects of Censorship in Greece, pp. 343–51. Tsapogas, ‘Blasphemy and Justice’, 117.

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dogmas of the Christian faith’.27 According to Tsakirakis, the conviction of the author and acquittal of the publisher for the same work is a ‘universal first’, given that the judgement critiqued the ultimate goal to earn money. But the antinomy was resolved in the Athens Court of First Instance in 2005, which court acquitted Harderer, noting that the book is a comic and because of the humoristic nature of its contents, ‘it cannot be considered blasphemy towards the person and the life of Jesus Christ . . . thus the accused did not intend to directly blaspheme the Eastern Orthodox Church of Christ’.28 The court thus also recalled the confiscation of the books. Two highly significant cases of the operationalization of the blasphemy laws took place in 2012, both of which, as we shall see, became key to mobilisations calling for the abolition of those laws. First, in late September 2012, twenty-seven-year-old Phillipos Loizos was arrested in Evia, Greece, on charges of posting ‘malicious blasphemy and religious insult on the known social networking site, Facebook’.29 The accused had created a Facebook page for ‘Elder Pastitsios the Pastafarian’, playing on a combination of Elder Paisios, the late Greek Orthodox monk revered as a prophet by some (and who, eventually, was canonized a saint), the Greek baked pasta dish pastitsio and Pastafarianism. On that Facebook page, Loizos displayed an image of Paisios with his face covered in pastitsio. Loizos’ self-proclaimed intent was to satirize the trend of ‘Paiso-worship’ which, he indicated, was connected to anti-Westernism, complaints about ‘atheist’ politicians, derogatory statements about the role of women, calls for a return to the monarchy and extreme intolerance of all things modern and not Greek.30 On 11 September, a particular ‘ultraconservative’, according to Loizos, website brought his Facebook page to its readers’ attention and called on them to flag the page to Facebook so that it might be removed. Two days 27

28 29

30

Decision of the Lower Criminal Court of Athens, cited by Tsakirakis, Religion against Art, p. 71. Unpublished decision, cited by Tsakirakis, Religion against Art, p. 73. On this case, see Christopoulos (ed.), God Has No Need of a Public Prosecutor; see also Matthaios Tsimitakis, ‘A delicate blasphemy case in Greece’, Al Jazeera, 16 October 2012, available at www.aljazeera.com/indepth/opinion/2012/10/20121013154342907568.html? utm=from_old_mobile. Philipos Loizos, ‘How I  experienced the laws against blasphemy in Greece’, 25 October 2015, The Books’ Journal, available at http://booksjournal.gr/slideshow/item/1528-«πώςβίωσα-τους-νόμους-κατά-της-βλασφημίας-στην-ελλάδα». It should be noted that the following paragraphs describing the events that took place are drawn solely from Loizos’s own published account.

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later a judicial order was received by the Directorate for the Prosecution of Electronic Crime of the Ministry of the Interior, calling for the Directorate to seek from Facebook a ‘suspension of confidentiality’ in order to identify the owner of the Facebook page, and on 14 September the request was sent from the Directorate to Facebook, indicating that ‘This profile offends the Greek Orthodox Church and a monk who has been recognised as a saint. It causes hate at all levels against the Orthodox believers. We have been informed of social upheavals because of this fact’.31 Facebook fulfilled the request and shared Loizos’s personal details with the Directorate. On 17 September a question was tabled in Parliament by a Golden Dawn MP, calling for the government to immediately remove the Facebook page. Three days later Loizos was asked to delete the Facebook page, which he did, and he was then arrested on the charge of insulting a religion (Article 199 of the Criminal Code). According to Loizos, he was rather sure he would be cleared of all charges at the trial which took place on 16 January 2014, not least because ‘neither did I make insulting comments on nor did I engage with the topic of religion’ on that Facebook page. Yet the charge was upheld because of his failure to delete third-party comments made on his Facebook page, which did have such blasphemous content. He was sentenced to four months’ imprisonment with a three-year suspended sentence, a sentence annulled upon appeal in March 2017. In the following month from the start of the ‘Geron Pastitsios affair’, October of 2012, on-going protests blocked the staging of Terrence McNally’s Corpus Christi at the Hyterion Theatre in Athens. The play depicts Jesus and the Apostles as gay men living in modern-day Texas. As such it attracted the negative attention of the Orthodox Church early on in its staging, with the Holy Synod issuing, on 7 June 2012, a press release informing believers of the allegedly blasphemous play and urging ‘our People to censure this’.32 Amongst the protesters were clerics of the Orthodox Church of Greece and also Golden Dawn supporters and notably MPs who, beyond the peaceful protest, on 11 October also exercised violence and verbal abuse, issuing threats to the actors and their families.33 31 32

33

Loizos, ‘How I experienced the laws against blasphemy’. Press release available on the Orthodox Church of Greece website; cited by Alexandros Sakellariou in ‘About blasphemy and other demons: the stance of the Orthodox Church of Greece’, in Christopoulos (ed.), God Has No Need of a Public Prosecutor, at 43. The play also met with significant protests and was cancelled and reinstated at its original staging in New  York in 1998 but continued with special security measures. The Corpus Christi affair in the Greek context is covered broadly in the relevant literature. See

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This particular incident attracted increased media attention also because of the involvement of the ultra-nationalist far-right, racist and neo-Nazi political party Golden Dawn and the noted inaction of the police in the face of protests (the Greek police force having long been accused of openly supporting Golden Dawn in general). The actual lawsuit in this case began with a claim filed by Greek Orthodox Bishop Seraphim of Piraeus; he was accompanied by four Golden Dawn MPs, though according to the bishop, they joined him only for support. In November, the production of the play was cancelled, and the Athens public prosecutor charged the organizers, producers and cast of the play with blasphemy.34

14.4 Activists, Artists and Artist-Activists Mobilising for Change There have been significant mobilisations both internal and external to Greece in favour of abolishing the blasphemy laws. These efforts have been led mainly by activists and artists and by a hybrid of artist-activists, as we shall see. Conspicuous in their efforts are the footprints of the particular incidents of enforcement of the blasphemy laws explored in the previous section. One major internal impetus was born after the application of the laws in the 2003 Outlook exhibition, discussed at length earlier. The incident led to pointed self-critique amongst a collection of artists who had, earlier that same year, established a platform – entitled ‘Platformes’ – which would help facilitate an active dialogue, deemed necessary for the promotion of substantial artistic work.35 Lamenting the fact that in the Outlook case, as in many before it, both artists and curators have accepted for the censored exhibits to continue with ‘business as usual’, in the aftermath

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especially Christopoulos (ed.), God Has No Need of a Public Prosecutor; see also Daphne Halikiopoulou and Sofia Vasilopoulou, ‘Political instability and the persistence of religion in Greece’. For more information, see Tsakirakis, Religion against Art; and Christopoulos (ed.), God Has No Need of a Public Prosecutor; see also Stella Tsolakidou, ‘Greece prosecutes Corpus Christi for blasphemy’, Greek Reporter, 16 November 2012 (available at http://greece.greekreporter.com/2012/11/16/greece-prosecutes-corpuschristi-for-blasphemy/); and Karolina Tagaris, ‘Blasphemy charges filed over gay Jesus play in Greece’, Reuters, 16 November 2012 (available at www.reuters.com/article/ entertainment-us-greece-blasphemy-idUSBRE8AF0MU20121116). See Ioannis Ziogas, ‘The Platforms of … Censorship’, in Ziogas et  al. (eds.), Aspects of Censorship in Greece, pp. 23–34. All of the information presented in the following with regard to Platformes’s activities in the aftermath of the Outlook exhibition are drawn from this text.

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of the Outlook incident this group of artists sought to use the experience ‘productively’,36 by initiating a six-pronged mobilisation effort against the application of blasphemy law to censor art. The work of this body of artist-cum-activists began with the drafting of a text entitled ‘Acts of Cowardice’, detailing the failure of the artistic community to resist incidents of censorship. Second, the text was uploaded to a website (artlook.gr), established explicitly for the collection of signatures protesting the Outlook incidence of censorship. Third, Platformes set out to systematically react to and intervene in any acts of censorship that came to their attention; the result was the evolution of the group into an advocacy network for victims of censorship, as well as into a hub of information about censorship. Fourth, the group undertook to bring the Outlook case to the attention of the international community. As a result, ‘Acts of Cowardice’ was signed by such figures as Slavo Zizek, Ernesto Laclau and Chantal Mouffe, and Platformes came into contact and joined forces with the US–based National Coalition Against Censorship. Through the latter collaboration, the group’s fifth activity was to establish a systematic documentation of incidents of censorship in Greece. Finally, Platformes brought the Outlook case before the Office of the Ombudsman. The latter action led to the Ombudsman issuing a critical decision against the body which had carried out the act of censorship in the Outlook case, the Organization for the Promotion of Greek Culture, finding in this act a violation of the state’s constitutional commitment to the development and promotion of art and for the protection of the cultural environment.37 Another actor in the field mobilising around blasphemy laws is the Hellenic League for Human Rights (with some of its members also involved in the work of Platformes). The League (or HLHR) has acted especially in the aftermath of internal-to-Greece events: specifically, the Outlook case, the Loizos arrest and the protests outside Hyterion theatre leading to the cancellation of the Corpus Christi staging led, in turn, to the group’s heightened efforts opposing the blasphemy laws. Already around the time of those two developments (16 October 2012), the HLHR had organised a conference on the topic which yielded the book

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Ziogas, ‘The Platforms of . . . Censorship’, p. 24. Article 16, paragraph 1 of the Greek Constitution indicates: ‘Art and science, research and teaching shall be free and their development and promotion shall be an obligation of the State’.

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publication God Has No Need of a Public Attorney: Church, Blasphemy and Golden Dawn.38 Some of the most critical voices and key figures in the debates around the blasphemy laws are current or past members and leaders of the HLHR.39 Its former chair of the board (2003–2011), Dimitris Christopoulos, describes his own engagements with the mobilisation efforts in the aftermath of the Last Temptation case as well as that of the Androulakis (M to the Power of N) case in which he, representing HLHR, acted as a witness in the case. He was also the sole witness in the Loizos case. According to Christopoulos, amongst the most striking applications of the blasphemy laws are those in the Outlook exhibition: ‘It was outrageous, and that’s what mobilised a group of people including myself, in order to do something to resist such reactions. For us, that event was crucial, it marked the beginning of our active involvement of a campaign to end the blasphemy laws’ – a campaign waged mainly internally to Greece, through pressure on the Greek ruling class.40 A group whose work in this area has been more outward and internationally focused is that of the Atheist Union of Greece, a fairly new actor in the field (established 2010). In the aftermath of the Loizos case, the Atheist Union called on the Commissioner for Human Rights of the Council of Europe, Nils Muiznieks, to repeal Articles 198 and 199 of the Criminal Code.41 A further trend in mobilisation against the blasphemy laws combines internal Greek and external (international) developments:  namely, the 2012 enforcement of the blasphemy laws against Phillipos Loizos (detailed earlier), in conjunction with the Humanist Union of Greece (HUG) participation in the international ‘End Blasphemy Laws Now’ campaign, as well as its role in securing a UN Committee on the Elimination of Racial Discrimination (CERD) recommendation calling for the abolishing of the Greek blasphemy laws. In its Concluding Observations on Greece’s compliance with the International Convention on the Elimination of All Forms of Racial (ICERD), CERD held: The Committee is concerned about the continuing existence of blasphemy legal provisions and the risk that they may be used in a discriminatory manner that is prohibited under the provisions of the Convention 38 39

40 41

Personal interview by the author with Dimitris Christopoulos, 16 December 2016. Including Dimitris Christopoulos, Andreas Takis, Dimitris Sarafianos and Kostis Papaioannou. Personal interview by the author with Dimitris Christopoulos, 16 December 2016. See Alice Kirkland, ‘Atheist Union of Greece protests outdated blasphemy laws’, 22 January 2014, article posted at indexoncensorship.org.

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effie fokas (art. 5 (d) (vii)). The Committee recommends the State party to abolish articles 198 and 199 on blasphemy from its Criminal Code.42

Here agency and timing have been key. First, a link among the three developments is in the role of Panayote Dimitras, a spokesperson for HUG and for the Greek Helsinki Monitor (GHM), and in the latter context offering pro bono legal support to Philipos Loizos in his on-going case.43 Second, regarding timing, the ‘End Blasphemy Laws Now’ campaign was established by the European Humanist Federation (of which HUG is a member organisation) together with the International Humanist and Ethical Union, in early 2015, also around the time of the instatement of a new Minister of Justice, Transparency and Human Rights – Nikos Paraskeuopoulos – who was expected to be sympathetic to the campaign. HUG sent a letter to the Secretary General for Transparency and Human Rights at the Ministry of Justice, Mr Kostis Papaioannou, bringing the campaign to his attention and calling for the repeal of Articles 198 and 199 of the Criminal Code.44 The Loizos case helped bring the ‘End Blasphemy Laws Now’ campaign to life in the Greek context. The Loizos case also strengthened the GHM’s case before CERD, the UN anti-discrimination body, seeking a recommendation to Greece for the abolition of the blasphemy laws on the basis of the discriminatory way in which they are applied (namely, solely in protection of Christianity generally and the Orthodox Church and faith specifically).45 Finally, the timing of the UN Recommendation, which elicited the public statement by the then Minister of Justice indicating that the

42

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44

45

CERD, Concluding observations on the twentieth to twenty-second periodic reports of Greece (CERD/C/GRC/CO/20–22, August 2016), paras. 18–19 (paragraph numbers omitted). Similar attempts, including by the some of the civil society groups mentioned in the chapter, have been made before the UN Human Rights Committee to have that body condemn Greece’s blasphemy laws in the light of its commitments under the ICCPR. Note that the GHM has also worked on the basis of the Corpus Christi incident in its efforts to bring an end to the criminalisation of blasphemy: in the aftermath of this incident, together with the European Humanist Federation (EHF), GHM issued a statement and wrote an open letter to the Greek Minister of Justice calling upon the Greek Government to abolish blasphemy laws. See ‘Greece must abolish blasphemy laws’, Greek Helsinki Monitor, 23 July 2012, available at http://cm.greekhelsinki.gr/uploads/2012_files/ ghm1417_ehf_ghm_roupakiotis_blasphemy_laws.pdf. See http://end-blasphemy-laws.org/2016/06/greece-must-uphold-pledge-to-abolishblasphemy/. See also https://roides.wordpress.com/2016/06/22/22june16/; and www.lifo .gr/now/greece/108436. As GHM spokesperson/director Panayote Dimitras explains, ‘We convinced them that not only do we have the bloody law, but it is used exclusively against those perceived to blaspheme against Orthodoxy’. Personal interview, 9 December 2016

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blasphemy laws must indeed be rescinded and that his government would work toward that effect contributed to the expectation that Loizos would, in the end, be acquitted of all charges of blasphemy.46 Before the appeal decision which reversed the blasphemy sentence, Dimitras had already suggested that the Loizos case might be the straw that breaks the camel’s back: he finds in the Loizos case one of the most blatant problems around the application of the blasphemy laws, in that this case is, he argues, fully devoid of any actual act of blasphemy as set out in the relevant laws: this is the worst example of violation of freedom of expression executed under the blasphemy laws because there was actually no blasphemy involved; he was insulting individuals who are doing what they’re doing. Blasphemy is when you turn against a religion, or maybe against members of a religion together, but for religious beliefs. In Pastitsios there was no criticism of the fact that some people say he should become a saint. And it is indicative that the whole issue started, not because the church filed a complaint, or a bishop, but because Golden Dawn filed a complaint!47

At the time of writing the fate of the blasphemy laws may be sought between the lines of a series of letters on the topic: the aforementioned letter from GHM to the Secretary General for Transparency and Human Rights at the Ministry of Justice, Mr Kostis Papaioannou, calling for an end to the blasphemy laws, received a response (21 June 2016), indicating that indeed, the revoking of the blasphemy articles continues to be a particular aim of the Ministry of Justice.48 Ahead of the aforementioned CERD meeting which took place in August of 2016, the Ministry of Justice publicised the fact that the decriminalisation of blasphemy had been raised for consideration by the Law Drafting Committee. Finally, Metropolitan Bishop Seraphim expressed his disapproval of this plan in a letter addressed to the Minister of Justice in July of 2016 and again in September of 2016. In the latter, the bishop argues that the decriminalization of blasphemy ‘will have tragic results because it will give the message to unstable and foolish people that they have the right to maliciously blaspheme God, without any legal consequence’.49 It remains to be seen where the last word will come from in this ongoing battle over blasphemy. 46

47 48

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Which was indeed what happened subsequently during the appeal trial which took place on 2 March 2017. Personal interview, 9 December 2016. See ‘The Law on Blasphemy should be repealed immediately’, 22 June 2016, article available at https://roides.wordpress.com/2016/06/22/22june16/ See ‘New letter of the Metropolitan Bishop of Pireaus to the Minister of Justice, 16 June 2016, available at www.tanea.gr/news/greece/article/5390070/nea-epistolh-toy-mhtropolithpeiraiws-ston-ypoyrgo-dikaios ynhs-gia-na-mhn-apopoinikopoihthei-h-blasfhmia/

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14.5 Winning the Battles but Losing the War? The Public Debate on the Blasphemy Laws and the Punishments Entailed After listing a series of incidents of application of the blasphemy laws in Greece, Law Professor Nicos Alivizatos indicates, ‘[l]uckily, in none of the above cases were the restrictions imposed (against the artists, dealers and others) confirmed in the main proceedings that followed the interim measures’.50 Indeed, in most such cases the interim measures and suspended sentences yield to a dropping of the charges against the accused. But other scholars and activists suggest that there is little ‘luck’ to be found in this fact; rather, the damage has already been done. For example, Christopoulos cites from the legal proceedings in the case of the trial against the curator of Outlook: “Do you wish the defendant to be put in prison?” asked the defence counsel of the same minister who testified as prosecution witness. “For my part, I am satisfied that the painting was taken down”, answered the witness.51

The church-led faction driving the case was happy to concede freedom for the curator, as it had already won the greater victory, which was the removal of the work of art and the strong message sent to artists. Further, as Panayote Dimitras argues, ‘not being imprisoned doesn’t mean it’s nice to have a conviction on your back, to have to pay your lawyers … to deal with the harassment in the pre-court investigation procedure’.52 Regardless of the final outcome of the Loizos and Corpus Christi cases, the main defendants in question have suffered immeasurable discomfort extending also to their families, including explicit death threats. The art community in Greece expresses concern about selfcensorship. This is one focus of the debates around the blasphemy laws, as expressed in the edited volume emanating from the Outlook case (Aspects of Censorship in Greece), as well as that detailing the history of censorship in Greece (Censorship in Greece) and in the monograph by Andreas Takis entitled For the Freedom of Art.53 Michael Tsapogas54

50

51 52 53

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Nicos Alivizatos, ‘Art and religious beliefs: the limits of liberalism’, in Blasphemy, Insult and Hatred, pp. 73–6, at 75. Christopoulos and Dimoulis, ‘Art can legitimately offend’, p. 84. Personal interview, 16 December 2016. Ziogas et  al., Aspects of Blasphemy in Greece; Andreas Takis, For the Freedom of Art (Athens:  Savvalas, 2008); Penelope Petsini and Dimitris Christopoulos, Censorship in Greece (Athens: Roza Luxembourg Institute, Greek Branch, 2016). Senior Investigator on Human Rights at the Greek Ombudsman’s office.

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criticises the prevalent ideology of the judiciary, particularly that encountered in first- and second-instance courts, where a tendency to protect ‘God Himself ’ rather than just ‘religious peace’ seems to prevail. Though, as he points out, such tendencies are not to be found in the Supreme Court, still the artists have suffered effects of the blasphemy laws from the trial court decisions, suffering which ‘upsets the lives of people and indirectly leads them to self-censure, if not self-exile’.55 Another thread in the public discourse on the blasphemy laws concentrates on antinomies in the laws and their applications. For example, as noted earlier, the cited justification for the blasphemy laws is the preservation of social peace. One scholar hones his criticism on this fact, noting that if indeed this were the aim – as opposed to defending the offended religion – then the laws would be engaged only upon the claim to offence by some person. Yet in reality, this is not the case; rather, mere publicity is sufficient for an indictment: The provision as it stands seems to protect respect for the divine as a legal interest independent of the intermediation of an offended person as the subject of a civil right. The legislator is not content with ensuring a nonscandalised life for believing civilians and peace among them, but reveals himself a believer.56

The suggestion here is that, divorced of some impact of the said blasphemy, it ought not be prosecuted. On the other hand, Christopoulos warns of the dangers of prosecuting based on impact:  just because the religious can be violent does not mean we should bend to that behaviour. Christopoulos regrets the fact that the right to free expression retreats before the reasonable fear of uncontrollable reactions, whilst freedom of art prevails only where reactions can be controlled. ‘Why’, he asks, ‘should the religious sensibilities of some people command more respect than the political sensitivities of civil war victims in Spain or Greece?’57 Here a distinction can be drawn with the perspective of Alivizatos, who makes the argument that religion is ‘special’. When works of art ‘cease to pertain to the general public and instead aim (often deliberately) at a distinct group, with the (obvious) intention to strike at the group members’ religious beliefs . . . it is legitimate for restrictions to the freedom of art to be introduced’.58 Alivizatos argues that it is not the artist’s freedom to 55 56 57 58

Tsapogas, ‘Blasphemy and justice in a Greek Orthodox context’, at 116. Tsapogas, ‘Blasphemy and justice in a Greek Orthodox context’, at 114. Christopoulos and Dimoulis, ‘Art can legitimately offend’, at 86. Alivizatos, ‘Art and religious beliefs’, at 74.

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express him or herself through art that is restricted, but his or her discretion to choose how to present it to the public. This entails, he posits, ‘a mere and only marginal restriction on the work’s free presentation and dissemination’.59 Further criticised is the fact that the law is discriminatorily applied: Dimitris Sarafianos points out that no one from the Orthodox faith has been prosecuted for blasphemy, for instance, for comparing Muhammad or the pope to Satan, and what courts count as blasphemy is taken as selfevident – ‘that is, self-evident to the faithful of the majority, which usually includes the judge giving the judgement’.60 Certainly a red thread running through most discussion and debate on the blasphemy laws is attention to the role of the Orthodox Church both in their continued existence both in the continued existence of these laws in the Greek Criminal Code and in the continued application. In this regard, Michael Tsapogas likens the Orthodox Church to ‘a wolf seeking protection in the laws protecting sheep’: ‘it would not make sense for religions – par excellence power structures characterised by innate dogmatism and intolerance for the misled – to seek protection in laws designed for vulnerable minorities’.61 Likewise, a team of investigative journalists argues that, by way of being the competent experts on the definition of blasphemy, the Church ‘comes in from the back door’ in the adjudication of blasphemy. There cannot be fair treatment, they contend, as long as there is not a full distinction between the critique that any member of the hierarchy extends on the one hand and the judicial prosecution of artists on the other.62

14.6 Conclusion: The Blasphemy Debate in the Aftermath of Charlie Hebdo In Greece as in other European countries, the Charlie Hebdo attacks of 7 January 2015 shocked and provoked intense critique amongst political leaders, scholars, activists, and the general public, as well as public mourning of the victims of the attacks. ‘Je suis Charlie’ solidarity

59 60

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Alivizatos, ‘Art and religious beliefs’, at 74. Dimitris Sarafianos, ‘Blasphemy in the Greek Orthodox legal tradition’, in Blasphemy, Insult and Hatred, pp. 105–12, at 108. Tsapogas, ‘Blasphemy and justice in a Greek Orthodox context’, at 115. ‘10 Commandments or Constitution?’, at 4.

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gatherings and vigils were held on 8 January and 11 January in memory of those who died in the attack. Greeks also mourned the increasingly fragile freedom of expression in the aftermath of this and other affronts to this right. The tragedy provoked a great deal of analysis, by journalists and scholars alike, of the state of affairs in the protection of the freedom of speech and of the new threats to the latter globally, including the publication of an edited volume in 2015 entitled ‘Everything Can Be Said’, or Are There ‘Unspeakables’ ?,63 which gathers together leading scholars of human rights in Greece to address this question, as well as the 2015 publication of the monograph The Crisis of Rights.64 Whilst the Charlie Hebdo attacks generated greater attention to the topics of freedom of expression, hate speech and blasphemy laws, this attention was and continues to be of a general and theoretical nature and not particular to the Greek case. Put simply, Charlie Hebdo is not seen as relevant to the Greek context’s debates on the blasphemy laws ‘because in the first place we already have laws on blasphemy so we don’t need to do anything to change that’.65 In other words, the aftermath of Hebdo is seen to be bringing about a dangerous reintroduction of blasphemy laws in the form of hate speech provisions, whereas this development is irrelevant to Greece since there are already such laws in place. Furthermore, there is a pointed difference between a ‘problem’ around blasphemy laws/regulations protecting a minority (in Europe) faith from offense and a majority (in Greece) faith. Thus discussions and debates around blasphemy laws in Greece do not take place ‘in the shadow’ of the Charlie Hebdo attacks. Rather, the overarching frame is that of church–state relations in the Greek context, and the public discourse feeds into the perennial calls for a full separation of church and state:  ‘Whoever offends god can go to hell. It is to prison that he ought not go’.66 And international bodies (such as the UN and the International Humanist and Atheist Union) and international developments (such as the ‘End Blasphemy Laws Now’ campaign) are brought to bear on political leaders in efforts to dislodge the Church from its position of strength vis-à-vis the blasphemy laws. 63

64

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Dimitris Christopoulos (ed.) ‘Everything Can Be Said’, or Are There ‘Unspeakables’ (Athens: Vivliorama Press, 2015). An e-book by Dimitris Christopoulos, available at www.chronosmag.eu/files/chronosmag/ x-book/books/xbook01-christopoulos.pdf. Personal interview, Dimitris Christopoulos, 16 December 2016. Dimitris Christopoulos, ‘God has no need of a public prosecutor: Church, blasphemy and Golden Dawn’, in Christopoulos (ed.), God Has No Need of a Public Prosecutor, at p. 10.

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In lieu of a conclusion, it is fitting to close with what may be read as a battle cry on behalf of the church, voiced by the former Archbishop Christodoulos in the context of a discussion on freedom of expression through art. The sentiments expressed in the quotation that follows cannot be taken to represent those of the Orthodox Church as a whole, nor of course of Orthodox believers in general; and the former archbishop was extraordinarily outspoken on political issues. Still the overarching perspective articulated here, pitting freedom of expression against religion in a conflictual relationship, is one which undoubtedly permeates the life of the blasphemy laws in contemporary Greek society: The Church will come into many conflicts with the human rights movement. The Church is not only not against human rights but it surpasses them, since in the position of rights, which is a legal concept, it puts forward the concept of service. In the place of whatever the law allows, the Church places free service and devotion. But the Church cannot accept what the leader of this world promotes through the human rights movement:  the abolition of sin. What they want to present as a right is not respect for the human person but his obliteration; the interdiction for man to feel his weakness before God, his sinful nature. The impossibility of the human being to show repentance and be forgiven is pursued [by the human rights movement]. In other words, the abolition of moral consciousness and its replacement by legal rules is planned. In the world they will prepare, there will no longer be sins but only legal infringements.67

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Speech of the Archbishop entitled ‘Religions and Cultures in the 21st Century’, available at www.ecclesia.gr/greek/archbishop/default.asp?id=454&what_main=1&what_sub=7& lang=gr&archbishop_heading=Μηνύματα.

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15 Blasphemy Law in Poland Joanna Kulesza & Jan Kulesza

15.1

Regulating Blasphemy through Criminal Law

Blasphemy laws reflect the competing rationale of freedom of expression and states’ duty to protect the rights of others, in particular their right to freedom of conscience. Despite the continuing secularisation of Europe, many countries still prescribe criminal punishment for acts considered offensive to religious convictions or symbols. The broad notion of blasphemy is referred to as ‘religious insult’ and ‘vilification’ of religious feelings and dogmas in the criminal law of numerous European countries.1 These regulations are intended to ensure freedom of conscience, as recognized by international human rights law. The usual arguments raised against such laws centre round the potential violations of the human right to free expression, the dangers of restraining legitimate and necessary criticism of religious beliefs and practices, institutions or leaders and the threat of legitimizing ‘vigilantism, mob violence, and persecution of minorities’.2 Recognizing these arguments as valid, Iceland and Norway abolished their blasphemy laws in 2015,3 following the example set by the 1

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E.g., Germany penalizes ‘insulting of faith’ in a way that is disturbing to public order, Greece and Italy recognize criminal sanctions for ‘insulting religion’, Article 525 of the Spanish Penal Code punishes the ‘vilification’ of religious feelings, dogmas, beliefs or rituals as a crime, the UK punishes incitement of religious hatred in order to prosecute anti-religious speech, whereas Austria prosecutes the ‘vilification of religious teachings’. Finland penalizes ‘the breach of sanctity of religion’, while Switzerland punishes those who insult or mock religious convictions of others. For more details, see Venice Commission, ‘Blasphemy, insult and hatred: finding answers in a democratic society’, Science and Technique of Democracy, No. 47; Strasbourg 2010, www.venice.coe.int/webforms/documents/?pdf=CDLSTD%282010%29047-e. See also the chapters on Italy (by Cristiana Cianitto), the UK (by Erica Howard) and Finland (by Tuomas Äystö) in this volume. See, e.g., the End Blasphemy Laws campaign, run by the International Coalition Against Blasphemy Laws (ICABL). Their statement is available at http://end-blasphemy-laws.org/ whats-wrong-with-blasphemy-laws/. See Helge Årsheim’s chapter in this volume, ‘On the Decline and Fall of Norwegian AntiBlasphemy Legislation’.

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Netherlands in 2012,4 yet the debate on a well-balanced regulation of the conflicting interests behind freedom of expression and freedom of conscience remains unresolved at both international and national levels. While the governments of countries such as Poland defend their blasphemy laws, arguing that criminal sanctions are needed to ensure a civilized debate on emotional issues such as those related to religion, politicians in other European countries have argued that the respective criminal law systems of the European states give grounds for collective EU action aimed at abolishing national blasphemy provisions, identifying them as a significant threat to democratic societies and the rule of law.5 As in many other European countries, in Poland, the competing rationale of free expression on one hand and ensuring peaceful religious practices on the other has provoked an ongoing and heated debate. However, against the contemporary European trend of de-penalizing religious defamation, Polish blasphemy laws are frequently referred to in court practice and have recently been confirmed by the Constitutional Tribunal as being in line with fundamental human rights.6 While the Tribunal argued for

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See Esther Janssen’s chapter in this volume, ‘The Rise and Fall of the Offence of Blasphemy in the Netherlands’. In her 2016 address, the Spanish MEP, María Teresa Giménez Barbat, argued that given the potential repercussions of blasphemy laws for the EU’s external actions and policies concerning human rights, it is legitimate to abolish the offence of blasphemy or similar offences in Europe: ‘even if rarely enforced, religious insult laws in Europe are extremely dangerous, since they can lend legitimacy to more severe blasphemy laws in other countries: When countries lacking democracy and freedom of expression are criticized for punishing people for blasphemy, including with death sentences, their politicians correctly point out that similar laws are in force in “Western” democracies’. Article 83 of the TFEU states that ‘The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis … On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph’. See María Teresa Giménez Barbat, ‘Parliamentary questions’, 22 January 2016, question for written answer to the Commission Rule 130, available at http:// bit.ly/1RtfJ1q. According to statistics provided by the Polish police, the criminal law on blasphemy has resulted in pressing charges against a suspect in 879 cases since 1999, giving an average of 55 prosecutions per year. Data available at http://statystyka.policja.pl/st/kodeks-karny/ przestepstwa-przeciwko-5/63492,Obraza-uczuc-religijnych-art-196.html. In 2014 alone, there were fifty-five proceedings initiated against individuals alleged to have violated Article 196 of the PPC, which resulted in charges posed in thirty-eight cases (so statistically

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the need to resort to criminal sanctions to effectively deter those wishing to abuse the religious feelings of others, the arguments used in the public debate against the incrimination of freedom of speech even when it is harmful to the religious convictions of others are rooted in the Polish Constitution, which grants everyone the freedom to express their opinions as well as to hold and express religious or philosophical views. Criminal blasphemy has a long tradition in Polish criminal law and was present in the very first Polish Penal Code of 1932, yet similar arguments have been raised ever since the introduction of the 1997 Polish Penal Code (PPC), Article 196 of which deals with this area.7 The contemporary law on blasphemy prescribes a fine or up to two years of deprivation of liberty for persons who ‘offend the religious feelings of other persons by outraging in public an object of religious worship or a place dedicated to the public celebration of religious rites’. The article is aimed to protect the freedom of conscience against any unjustified infringement, one which may result in a psychological discomfort for those whose religious beliefs have been disrespected. This provision emanates from Article 53 of the Polish Constitution, which provides for the protection of freedom of conscience and religion.8 The latter is understood as allowing for the freedom to hold religious (but also anti-religious) views and beliefs. This freedom encompasses the liberty to express and cultivate beliefs, individually or collectively, privately or in public, as reiterated in numerous acts of international law, for example, Article 9 of the European Convention on Human Rights (ECHR) or Article 18 of the International Covenant on Civil and Political Rights

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speaking in 2014 almost 70 percent of all proceedings for blasphemy resulted in pressing charges). Polish Criminal Code, Polish Journal of Laws (Dziennik Ustaw) of 1997, No. 88, pos. 553 as amended. Article 53 of the Polish Constitution states that: ‘Freedom of conscience and religion shall be ensured to everyone. Freedom of religion shall include the freedom to profess or to accept a religion by personal choice as well as to manifest such religion, either individually or collectively, publicly or privately, by worshipping, praying, participating in ceremonies, performing of rites or teaching. Freedom of religion shall also include possession of sanctuaries and other places of worship for the satisfaction of the needs of believers as well as the right of individuals, wherever they may be, to benefit from religious service. … The freedom to publicly express religion may be limited only by means of statute and only where this is necessary for the defence of State security, public order, health, morals or the freedoms and rights of others. No one shall be compelled to participate or not participate in religious practices. No one may be compelled by organs of public authority to disclose his philosophy of life, religious convictions or belief ’.

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(ICCPR). Freedom of conscience is perceived as not only the freedom of religious beliefs but, more generally, as the protection of all moral convictions. The provisions of Article 196 of the PPC are directed at anyone who ‘offends the religious feelings of other persons’, that is, who acts in a manner that is perceived as demeaning or offensive to the object of religious worship or a place dedicated to the public celebration of religious rites. A particular type of behaviour is to be viewed as demeaning or offensive based on objective criteria, following the moral standards of a particular religious community. This interpretation relies on a theoretical standard of an ‘average’ believer, representing the typical level of tolerance as regards their religious beliefs, rather than someone who rises above the average level of religiousness, who may be characterised as a zealot. The provisions of Article 196 of the PPC do not refer to criticism of religion in itself, the views of its followers, or negative opinions on the object or subject of worship, as long as those are expressed in a form and through content that is not offensive or demeaning. The offensive character of an act is determined by assessing the words used to express it, the accompanying gesture, scripture, drawing or possibly the destruction of a particular object if those were used or performed to express contempt or ignorance. Article 196 of the PPC describes a crime of result, not one of conduct – there need to be at least two individuals (since it refers to ‘persons’) who felt offended by the act for it to be perceived as public.9 The most difficult questions arising from the wording of Article 196 of the PPC focus on the notion of the ‘object’ of religious worship, as this word is deeply ambiguous. While a minority of writers indicate that any ‘object’ needs to be represented in a material form (such as a cross, Holy Bible or altar), others argue that it also covers the object of worship itself, broadening the scope of its application to offensive expressions aimed at, for instance, the Christian God, the Holy Virgin (particularly significant in Polish religious circles), Buddha or Muhammad.10 They argue that even though the word ‘object’ is usually used to imply a physical item, the term 9

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A minority view, not shared by the courts and tribunals, holds that just one individual is sufficient. As Poland is predominantly a Roman Catholic country, current case law covers primarily blasphemy against the religious feelings of Roman Catholics. According the Public Office for Statistics (Główny Urząd Statystyczny) data for 2013, 87 percent of Poles declare that they were baptised as Roman Catholic, the highest ratio worldwide. See stat.gov.pl/ obszary-tematyczne/roczniki-statystyczne/roczniki-statystyczne/rocznik-statystycznyrzeczypospolitej-polskiej-2013,2,8.html.

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may also refer to non-material notions (as in ‘the object of debate’, which clearly does not need to be material). Since the criminal provision prohibits the expression of contempt for religious symbols, it should, by this argument, furthermore be interpreted as prohibiting expressing offensive contempt for the very values that those objects represent, like the faith itself or the god figure behind it. Yet even when the interpretation of the word ‘object’ is limited to physical items it remains ambiguous. The scope of religious ‘objects’ can be interpreted quite broadly to include not only physical items but also symbols such as the cross, crescent or the Star of David, images, words, rituals, names perceived as sacred, an image or sculpture, ritual objects, liturgical ornaments, rosaries, menorah, the Torah and, arguably, the Holy Bible. Strikingly, there seems to be a consensus that the protection of Article 196 does not cover clergymen. Yet the scope of the term is far from set. Religious practices of Polish Catholics provide new testing grounds for the legal provisions on blasphemy, for instance: new religious revelations could be potential ‘objects’ of religious worship.11 Protection is granted not just to objects but also to locations that are permanently or temporarily adopted for the purposes of religious worship. Those include temples, churches, prayer houses, altars on public display, cemeteries and arguably also open spaces in front of churches used for religious practices. A complimentary provision is provided in Article 195 of the PPC that penalizes ‘malicious interference’ with the ‘public performance of a religious ceremony of a church or another religious association with regulated legal status’, and also with a funeral, mourning ceremonies or rites.12 For blasphemy to be committed, the demeaning act needs to be performed publicly – in a location or under circumstances where it can be viewed or perceived by others, that is, potentially witnessed by at least two individuals.13 The Polish Supreme Court confirmed that the crime can be committed with either direct or indirect intent (the latter is premised on

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E.g., the revelation of the Holy Virgin in window glazing in Kończyce in 1997 and in the trunk of a tree in Ostrowy in 2012 (which revelations have become widely accepted in Polish religious practice). Such interference is prohibited and liable to a fine or prison sentence. In the case of Adam ‘Nergal’ Darski, the Polish Supreme Court found that the potentially blasphemous act of tearing up the Bible, performed on stage during a ticketed death metal concert, was not ‘public’ as the performance was available only to those who chose to participate in the concert by purchasing tickets. Supreme Court decision from 12 March 2015, III KK 274/14, available at http://sn.pl/aktualnosci/SitePages/Komunikaty_o_sprawach .aspx?ItemID=50&ListName=Komunikaty_o_sprawach&rok=2015.

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dolus eventualis, that is in a situation where based on objective criteria one should have realized that damage may be caused to others’ religious convictions). Because of the intrinsic interpretative challenges described here, as well as the general controversies provoked worldwide by criminal regulation of blasphemy in itself, as a disproportionate infringement of free expression, Article 196 often sparks public debate in Poland. While the majority of cases in which it is evoked lead to no conviction,14 the mere fact of criminal proceedings against potential blasphemers is perceived by some as unjustified harassment with a chilling effect on free speech, as individuals would rather refrain from expressing critical views on religion than risk criminal proceedings. In all blasphemy cases, the protection of religious convictions is set against the equally protected freedom of expression, in particular the freedom of artistic expression. Some of the most important cases in both these domains are discussed in the next sections.

15.2

Blasphemy versus Free Speech

The protection of free expression is granted in Article 54 of the Polish Constitution, stating that ‘the freedom to express opinions, and to acquire and to disseminate information shall be ensured to everyone’. This provision is in line with international human rights, notably Article 10 of the ECHR. The latter allows states to introduce laws limiting the scope of free expression, as per its Paragraph 2, for the purposes of protecting the rights and freedoms of others. The protection granted to religious convictions in Article 196 of the PPC has been introduced as such a legitimate ground for curtailing free speech, although its ambiguity discussed earlier has led it to be deemed inconsistent with the ECHR ‘rule of law’ test, which requires a legal provision to allow an individual to clearly identify those actions which may result in criminal punishment.15 The semantic ambiguities discussed already, rendering the provision imprecise, add to the traditional issues raised by the ‘margin of 14

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With the most recent exception of Dorota ‘Doda’ Rabczewska – her case has already been filed with the European Court of Human Rights, claiming an Article 10 ECHR violation. In the Huvig and Kruslin cases, the ECtHR defined the rule of law test with reference to a legal provision as follows: the restricting law needs to be ‘sufficiently precise to enable the citizen reasonably to foresee the consequences which a given action may entail’. See Kruslin v.  France, Application no.  11801/85, judgment of 24 April 1990; and Huvig v.  France, Application no. 11105/84, judgment of 24 April 1990.

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appreciation’ doctrine of the (European Court of Human Rights, ECtHR) that allows individual states much leeway in setting limits to expression exercised within their jurisdictions.16 The ECtHR’s reliance on individual state specifics when it comes to culture, morals and religion has thus far kept it from taking a clear stance on the overall legality of blasphemy laws. Effectively, the ECtHR has permitted blasphemy restrictions.17 This is so despite the fact that the CoE Parliamentary Assembly in its 2007 Recommendation 1805 on ‘Blasphemy, religious insults and hate speech against persons on grounds of their religion’ clearly indicated that ‘blasphemy, as an insult to a religion, should not be deemed a criminal offence’.18 With a predominantly Roman Catholic population, Poland is one of the few European states to distance itself from the CoE Parliamentary Assembly view and insists on the consistency of criminal blasphemy laws with international human rights standards. Polish lawmakers and the Supreme Court have confirmed the legality of Article 196 of the PPC, and recent case law provides a practical perspective on its application. In 2015, the Polish Constitutional Tribunal confirmed the consistency of Article 196 with the Polish Constitution, following a complaint from a Polish singer and celebrity, Dorota ‘Doda’ Rabczewska. The facts of the case refer to a 2009 interview the artist gave to an online edition of the daily newspaper Dziennik, in which she confessed to being more convinced by scientific evidence on dinosaurs than ‘something written by individuals high on alcohol and weed’, while referring to the Biblical prophets as ‘those who wrote those incredible stories’. In 2012, Rabczewska was sentenced by a Warsaw local court to a fine as a result of Article 196 charges,19 and her appeal was rejected later the same year.20 Both courts recognized her statement as offensive to Catholics and the reference to biblical prophets ‘as a public outraging of an object of religious worship’. Currently, the case

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For an extensive overview of the relevant ECtHR jurisprudence, see the chapter by Tom Lewis in this volume, ‘At the Deep End of the Pool’. For the leading case, see Otto-Preminger-Institut v.  Austria, Application no.  13470/87, judgment of 20 September 1994. Council of Europe, Recommendation 1805 (2007) on Blasphemy, religious insults and hate speech against persons on grounds of their religion, para 4. Warsaw-Mokotów Local Court (Sąd Rejonowy dla Warszawy-Mokotowa w Warszawie), Criminal Division, case III K 416/10, sentence of 16 January 2012. Warsaw District Court (Sąd Okręgowy w Warszawie), Appellate division, sentence of 18 June 2012 (case X Ka 496/12).

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of Rabczewska v. Poland is pending before the ECtHR, since the claimant alleged a violation of Article 10 in Strasbourg.21 The subsequent Constitutional Tribunal decision from 2015 dealt with the more principled question of the constitutionality of the blasphemy offence,22 something contested by the claimant. The claimant argued that the conflict between freedom of expression (Article 54 of the Polish Constitution) and freedom of conscience (as per its Article 53)  has been arbitrarily decided by Polish lawmakers to the benefit of the latter. Controversially, the claimant held that a criminal blasphemy provision is unnecessary, arguing that Article 256 of the PPC on hate speech is sufficient safeguard against any discrimination, including on religious grounds. According to her, the restrictions on free speech resulting from Article 196 PPC are not necessary in a democratic society. Moreover, the fact that particular protection is granted to religious convictions in Article 196 PPC and not to non-religious beliefs is discriminatory against atheists and those who hold philosophical rather than religious views.23 The claim also referred to the imprecise definition of the object of protection referred to earlier, rendering the criminal provision too vague to be applied.24 The upper chamber of the Polish Parliament, the Sejm, representing the state in the proceedings before the Constitutional Tribunal, took a strong stance claiming that under Article 196 the world-view of the blasphemer, in this case the claimant, is not relevant but rather what counts is whether someone’s particular behaviour may be regarded as offensive or demeaning. In that sense, Article 196 of the PPC does not violate the Constitution,25 does not breach freedom of expression per se, but rather prohibits certain exceptional forms of expression. The Sejm also emphasized that, while the very notion of ‘object of religious worship’ and the ‘offence against religious feelings’ are imprecise, jurisprudence and scholarly writings allow these concepts to be

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‘Pop star to appeal to Strasbourg in bible-mocking case’, Radio Poland, 2 June 2012, available at www.thenews.pl/1/9/Artykul/104538,Pop-star-to-appeal-to-Strasbourg-inbiblemocking-case. Constitutional Tribunal, case SK 54/13, sentence of 6 October 2015. The Constitutional Tribunal does not decide on the case itself but rather on the constitutionality of the applicable law (its compliance with the principles of the Constitution). As a result a constitutional complaint is not considered a national legal remedy as per the ECHR procedures. Constitutional Tribunal, case SK 54/13, para 1.2.2. Constitutional Tribunal, case SK 54/13, para. 1.2.4. Constitutional Tribunal, case SK 54/13, para. 2.4.

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interpreted quite uniformly. These ambiguous terms are to be interpreted as covering any act that objectively as well as in the perception of an individual or a group of individuals may be perceived as offensive or demeaning. The latter expression refers to the emotional reaction of an individual to an act demeaning or offending the object, sign, symbol or person ‘transmitting religious values’.26 The Sejm noted the ambiguity of the term yet emphasised that criminal law cannot avoid terminology that is subject to interpretation and thus flexible. Effectively, the Sejm argued for an interpretation reflecting the majority view in Polish legal doctrine that objects of religious worship, including saints and the Holy Bible, can indeed be identified within legal practice.27 With those arguments, the Sejm strongly supported the observance of Article 196 as an expression of the protection of freedom of conscience, as acknowledged in Article 53 of the Constitution. The Constitutional Tribunal acknowledged the position of the Sejm in arguing that the terminology used in criminal law must necessarily incorporate a degree of flexibility. It observed that not all ambiguity in a criminal provision justifies a constitutional claim and results in the unconstitutionality of the provision, but only a ‘qualified’ one, one that cannot be resolved by explanation.28 In its opinion, the wealth of scholarly writing and jurisprudence on the subject clarified the terminology and was hence not deemed overbroad (like the applicant had claimed). As such, the scope of protection granted within Article 196 was not found to be unclear.29 The Constitutional Tribunal observed that ‘the claimed ambiguity and lack of clarity of the terms “offence of religious feelings” and “object of religious worship” used in Article 196 of the PPC are in fact filled with clear and unambiguous content by jurisprudence and criminal law doctrine, or at least the majority of it’.30 The Tribunal discussed the necessity and proportionality of the restrictions flowing from Article 196 of the PPC on the freedom of expression in some yet perhaps not sufficient detail. It held that freedom of expression is not absolute and may be limited for the purposes of protecting the rights and freedoms of others, as is the case here with regard to the religious convictions of others. It rejected the claim that Article 196 of

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Constitutional Tribunal, case SK 54/13, para. 2.5. Constitutional Tribunal, case SK 54/13, para. 2.5. Constitutional Tribunal, case SK 54/13, para. 4.3.2. Constitutional Tribunal, case SK 54/13, paras. 4.3.1–4.3.3. Constitutional Tribunal, case SK 54/13, para. 6.3.1.

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the PPC violates the very substance of free expression, emphasising that only defamatory or offensive expression is prohibited, whereas any criticism of religion, its symbols, figures or objects is permitted as long as it does not take on an offensive or abusive form. Offensive speech directed at religious values is not covered by freedom of expression, it held, while the freedom of conscience needs to be actively protected for being closely linked to the concept of human dignity.31 The Tribunal observed that ‘in a democratic society, representing the common good of all its citizens, public debate allowing everyone to freely express their views including with regard to religion, should unfold in a civilized and polite manner, with due regard to individual rights and freedoms’.32 The Tribunal referred to the case law of the European Commission of Human Rights, emphasising the significance of the role of a state in ensuring the peaceful exercise of freedom of expression regarding religious views and values, as indicated in the 1997 case of Dubowska and Skup v. Poland.33 Also in OttoPreminger-Institut v. Austria, the ECtHR indicated that state parties are best positioned to decide on the measures necessary to eliminate acts that threaten the rights and freedoms of others, in particular those acts that do so by causing offence.34 A state may therefore decide whether it is necessary to introduce criminal measures aimed at particular forms of expression, which is particularly justified in cases of the intentional violation of the spirit of tolerance, while the measures taken must also be proportionate to the pursued aim.35 Accordingly, the Tribunal concluded that in a democratic state it is necessary to prohibit expression that is offensive or demeaning to the religious feelings of others. The Tribunal limited its discussion of the proportionality of the restrictions on free speech arising from Article 196 of the PPC to the sanction itself rather than more generally discussing the proportionality of a restriction on freedom of expression in relation to the aim of protecting freedom of conscience. Moreover, its key argument held that the sanction actually applied in this case (a fine) is not disproportionate without examining the proportionality of other possible sanctions provided for in Article 196. Never before did the Tribunal limit

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Constitutional Tribunal, case SK 54/13, para. 6.3.1. Constitutional Tribunal, case SK 54/13, para. 6.3.1. Constitutional Tribunal, case SK 54/13, para. 6.3.1. The decision of the European Commission of Human Rights is discussed further in this text. Constitutional Tribunal, case SK 54/13, para. 6.3.1 Constitutional Tribunal, case SK 54/13, para. 6.3.2.

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itself in assessing the severity of the actual sanction applied in a particular case rather than assessing the penalties prescribed by law in general when deciding upon proportionality.36 The older approach seems the preferable one: the severity of potential punishments has direct implications for the restrictive effect of any legal provision. The Court’s failure to properly discuss the proportionality of the sanctions in Article 196 of the PPC contributed an unconvincing judgment in this case. In sum, the Constitutional Tribunal effectively dismissed all the charges of the claimant and confirmed the legality of Article 196 of the PPC. The described shortcomings render the Constitutional Tribunal’s decision unsatisfactory.

15.3

Balancing the Two Liberties: Testing Necessity/Proportionality

This Constitutional Tribunal decision can, accordingly, be criticised for its lack of a proper necessity/proportionality assessment of the blasphemy limitation, a limitation imposed on free expression through a criminal law provision protecting freedom of conscience. While the Tribunal refers to the fundamental notion of human dignity as the origin of freedom of conscience, it seems to disregard that freedom of expression has exactly the same origin, placing both liberties on an equal footing within the human rights doctrine. Although the Tribunal refers to Article 31 of the Polish Constitution, that which introduced the test of proportionality, it fails to actually address its elements, despite naming them in the course of its argument.37 Based on its previous adjudication, assessing the necessity and proportionality of a limitation imposed upon a constitutional freedom requires 36

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Unlike with the European Commission of Human Rights (and the ECtHR), which failed a common legal framework for criminal sanctions and often relied upon the actual punishment as a measure of proportionality, the national Tribunal, acting within a potentially coherent national system, refers to the measures present therein while deciding upon their compatibility with other rules and principles of that very system. Constitutional Tribunal, case SK 54/13, para. 6.2, Article 31 of the Polish Constitution reads: ‘(1) Freedom of the person shall receive legal protection. (2) Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law. (3) Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights’.

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that three questions be answered:  (1)  whether the restrictive measure applied was necessary to protect the legally protected interest (the inevitability of the restriction); (2)  whether the applied restrictive measures were useful – that is did they lead to and serve the intended purpose? (the applicability of the restriction); and (3)  whether the results of the limitations were proportionate to the restrictions put on individuals (the proportionality per se of the individual restriction). The practice of the Tribunal thus far has been to expressly assess the necessity/proportionality of a limitation of a fundamental right whenever there was a claim made alleging that such necessity/proportionality was lacking, yet this did not happen this time. Only if the Tribunal had comprehensively assessed the ‘inevitability’, ‘applicability’ and ‘proportionality’ of both the overall restriction on free speech as well as the actual criminal sanctions, that is, by ascertaining the precise impact of the restriction made in the interest of freedom of conscience and at the expense of freedom of expression, it could have delivered a convincing judgment. Yet it failed to verify the very need for criminal sanctions on blasphemy, assuming beyond any doubt that only a criminal regulation could afford the requisite protection of religious freedom. It failed to consider the effectiveness of protection granted by civil law measures in this area, departing from its earlier line of adjudication which insisted on, wherever available, lesser interfering restrictions of fundamental constitutional liberties. The absence of criminal legislation on blasphemy is scarcely indicative of the absence of any legal protection for religious freedom. In any event, the court still needed to assess the proportionality of the restrictions prescribed in general and the alternative protection granted through civil law specifically. The implicit suggestion that the underlying value protected through the criminal blasphemy regulation goes beyond religious freedom per se, extending to for instance public order, is problematic, for all criminal regulation broadly serves that very purpose. While emphasizing the reasons for restricting free expression for the purposes of protecting religious beliefs, the court fails to address the interrelationship between the two competing values. It indicates that the protection of religious convictions is derived from the freedom of conscience or even directly from human dignity, yet it fails to address the value of free expression as one of the cornerstones of any democratic society. Even if one was to assume that the freedom of conscience trumps free expression, the very collision of the two values in any given case still begs

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the question of proportionality of the restriction, a question the Tribunal did not answer. Accordingly, the 2015 Constitutional Tribunal did not provide an extensive analysis of the interrelationship between free expression and religious freedom – a missed opportunity. The unjustified presumption of a need to protect religious feelings from blasphemers through a criminal regulation ended one legal dispute in Poland, yet it ignited parallel debates within the wider society. Something that will also keep on fuelling this debate is the issue of artistic forms of speech critiquing or mocking religion. For this reason the most predominant Polish cases regarding art offensive to religious feelings are briefly introduced next.

15.4 Blasphemy versus Art Artists alleged to have insulted religious feelings usually resort to the notion of ‘justified blasphemy’, that is the claim that the artistic character of their performance should render legal their offensive behaviour, even though it would be subject to criminal liability when expressed outside an artistic act. Despite the notion being referred to by artists and within the media, it must be observed that there exists no such artistic justification in Polish law.38 The ongoing debate on blasphemy ‘justified’ by art was first sparked in Poland in the early 2000s. Arguably the most notorious Polish case on artistic expression threatening the religious feelings of others was the case of Dorota Nieznalska, a sculptor and performance artist, whose 2000 installation Passion initiated more than 10 years of criminal proceedings, which eventually ended in acquittal. Her artistic installation was comprised of two elements:  a looped, forty-five-minutes-long, mute video projection of a man exercising in a gym and an iron Greek cross with a central, photographed image of male genitalia. According to the artist, the installation had nothing to do with faith or religion but was solely the 38

Article 26(1) of the PPC states only that ‘whoever acts with the purpose of averting an immediate danger threatening any interest protected by law, if the danger cannot otherwise be avoided but the interest sacrificed has a lower value than that of the interest rescued, he shall be deemed to have not committed an offence’. Article 26(2) deals with cases in which an individual ‘rescues any interest protected by law under the circumstances defined in §1, or sacrifices an interest which does not represent a value manifestly greater than the interest being rescued’ deeming them ‘to have not committed an offence’. Neither of these circumstances can be applied to a situation in which free expression offends the religious feelings of others.

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representation of the overly exposed passion, present in our society, for associating masculinity with muscles.39 In Polish, the word ‘passion’ can refer to both the agony of Christ and an eager devotion to a certain activity or theme. The artist was therefore ironically referring to the excessive attachment of men to their desired physical appearance and the agony they subject themselves to in order to achieve it. The exhibition provoked complaints from Polish conservative activists, which resulted in criminal prosecution. In 2003, a regional court in Gdańsk punished Nieznalska for offending religious feelings with six months’ community service and a restriction of liberty – a sentence more severe than the fine requested by the prosecutor. The court decision provoked much criticism, primarily from artists and academics but also from left-wing politicians. In 2009, Nieznalska was eventually acquitted, with the court of appeals failing to recognise her intent to offend religious feelings. Another infamous case referred to the Norwegian heavy metal group Gorgoroth, which performed in Kraków in 2004, accompanied by naked women tied to crosses, fake blood and animal remains as parts of the stage show. The concert was soon condemned as ‘Satanist’ by the media, and the reference to the Christian cross and Jesus gave ground to a public investigation on the grounds of Article 196 of the PPC (a prosecution made difficult by the fact that the band members had left Poland shortly after their allegedly blasphemous performance). The prosecutor was unsuccessful in pressing legal charges against band members, as the crime can only be committed intentionally, and the Norwegian nationals were likely unaware of the potential blasphemous effect the performance might hold. This was not the case, however, for the Polish media entrepreneur Tomasz D. of Metal Mind Productions, who had helped with organizing the concert. The prosecutor found he must have been aware of the potential blasphemous effect and failed to prevent it. The prosecutor claimed that Tomasz D.  agreed to help organize the concert while being aware that the stage set up included Satanist elements and offended the cross, a symbol of Catholic worship. Moreover, commissioning elements of the stage set up and having the concert recorded while not warning the band

39

The installation was introduced by the art gallery hosting it as a way of discussing the ‘attributes of masculinity’ and reflecting on the ‘symbols of suffering’ (including a video recording of extreme physical training exercise). The interrelation of these ‘tools of torture’ attributed to men and their choices represents their ‘supreme offering’ that is done out of free will. For the works of D. Nieznalska, see www.nieznalska.art.pl/foto.html#foto.

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members of the Polish law provisions, even though he was contractually obliged to abide by Polish law, Tomasz D. was attempting to publicly defame a symbol of Catholic religious worship. While the concert was ticketed and not publicly aired, the allegations of offending religious feelings were supported by three cameramen working on its recording (the recording was planned to be later made available for sale). The manager claimed he was not aware of the planned stage design for the performance and was informed of its details only directly before the show. Those arguments did not resonate with the court, which found him guilty of aiding the violation of Article 196 of the PPC.40 Apart from the blasphemy charge, Tomasz D. was fined 10,000 zlotys (roughly 3,000 dollars) in 2007 for ‘organizing an illegal concert, attended by 600 individuals’, as based on the act on organizing public events.41 Similar circumstances – a heavy metal performance and an alleged defamatory reference to Catholic symbols – led in 2015 to the acquittal of another artist. This was, however, not due to the lack of blasphemous intent but because the concert was not performed ‘publicly’ in the meaning of the law. That is, it was seen only by a ticketed, live audience; moreover, only one person present at the concert – a representative of the conservative League of Defence Against Sects – felt that his religious feelings had been offended. As such, the act failed to meet the prerequisites of Article 196, according to which the offensive act needs to be performed publicly and intended to harm the religious feelings of other ‘persons’ (plural). In 2008, Adam ‘Nergal’ Darski, the leader of a Polish heavy metal band called Behemoth, tore up the Holy Bible during a performance in Gdynia, referring to it as ‘the book of lies’ and calling Catholicism the ‘most murderous cult on Earth’. This case added to the Polish jurisprudence by confirming that any copy of the Holy Bible counts as a ‘religious object’ within the meaning of Article 196 of the PPC. More significantly, however, the Supreme Court essentially held that the crime described in Article 196 of the PPC is not committed when directed at individuals who have consented to witness or encounter content that may be considered

40

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PAP, ‘Organizator koncertu Gorgoroth skazany!’, Interia, 6 July 2006, available at http:// muzyka.interia.pl/ wiadomosci/ news- gorgoroth- organizator- koncertu- skazany,nId, 1629274#utm_source=paste&utm_medium=paste&utm_campaign=firefox. PAP, ‘Organizator koncertu Gorgoroth skazany!’, Interia, 6 July 2006, available at http:// muzyka.interia.pl/ wiadomosci/ news- gorgoroth- organizator- koncertu- skazany, nId,1629274#utm_source=paste&utm_medium=paste&utm_campaign=firefox.

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offensive to religious feelings.42 The criteria of the crime are not met when the defamatory act, occurring in front of such a consenting audience, is described in printed press or online media for a larger audience. It is likely that Darski will further contribute to the development of Polish criminal law doctrine and jurisprudence on blasphemy, as shortly after his acquittal he announced that the band are going to perform a ‘Satanist communion’ in front of live audiences.43 Other Polish cases that refer to the limits of artistic expression include the two 1997 admissibility decisions in Kubalska & Kubalska-Holuj v.  Poland44 and Dubowska & Skup v.  Poland,45 in which the applicants argued that their Article 9 right to freedom of religion had been infringed by the Polish courts who failed to punish the publishers of the periodical Wprost. The periodical had one of its covers represent the Holy Mother and baby Jesus in gas masks. Local courts found the depiction to be within the limits of protected public debate and lacking defamatory content. The European Commission of Human Rights agreed with Poland, finding the claim clearly unfounded.46 Similar newspaper covers, published later on, also failed to lead to a conviction based on Article 196, following the line of adjudicating set by the Commission. For example, the controversial cover of the rock-and-roll magazine Machina, representing an image of the Holy Virgin (the so-called Black Madonna, a painting of great religious significance to Polish Catholics) with the face of the pop singer Madonna (2005) also failed to justify a public prosecution.47 A case concerning the

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Supreme Court, III KK 274/14, decision of 12 March 2015, available at http://sn.pl/ aktualnosci/SitePages/Komunikaty_o_sprawach.aspx?ItemID=50&ListName=Komunik aty_o_sprawach&rok=2015. J. Gańko, ‘Behemoth udzieli Wam komunii’ Antyradio, 27 January 2016, available at www .antyradio.pl/Muzyka/Duperele/Behemoth-udzieli-Wam-komunii-6263. Kubalska & Kubalska-Holuj v Poland, Application no. 35579/97, decision of 22 October 1997, in which the plaintiffs were unsuccessful in convincing the European Commission on Human Rights that a violation of Article 9 of the ECHR occurred. Dubowska & Skup v. Poland, Application nos. 33490/96 and 34055/96, decision of 18 April 1997, regarding the same factual circumstances. In both cases (in fine) the Commission found that ‘the right of access to a court afforded by Article 6 para. 1 (Art. 6-1) of the Convention does not guarantee a right to have criminal proceedings instituted against a third person (No. 9777/82, Dec. 14.7.83, D.R. 34 p. 158). It follows that the remainder of the application is inadmissible as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention’. For details of the case, see A.  Stecko, ‘Madonna z Lourdes’, Media 2, 28 September 2012, available at https://media2.pl/reklama-pr/96473-Top10-kontrowersyjne-okladkipolskich-magazynow/2.html.

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exhibition of a Czech performance group entitled Shadows of Humour that included the figure of Jesus exercising with gymnastic rings in a pose resembling that of his crucifixion (2006) came to a similar end. The latter exhibition provoked public protests and calls for it to be taken down and the artists to be punished. Similar outraged reactions greeted Paweł Hajncel, a street performer from Łódź, known as the ‘butterfly-man’. He was questioned by police on the grounds of alleged Article 196 violations for his performances accompanying Corpus Christi processions, where he danced near the processing priests and believers while dressed in a butterfly costume (2011, 2014) or waved at the procession from behind a coffee table, dressed as Jesus (2015). The charges in all these cases were eventually dropped for lack of evidence of a violation. Interestingly, the most recent case that is being examined by the public prosecutors at the time of writing is that of two middle school students who allegedly spat out and stepped on the host during Holy Communion in front of a church in Jasło in April 2016. The youths might be facing a charge on the grounds of Article 196 and, independently, excommunication from the Catholic Church.

15.5

Summary

Two conclusions may be drawn from this brief review of the criminalisation and applicability of criminal blasphemy provisions in Poland: it is not possible to introduce an unambiguous blasphemy law, as the term in itself refers to moral and ethical values, which are per se indistinct and are subject to individual perception. It has also shown the great power of discretion that any blasphemy law grants to prosecutors and, eventually, to the courts. This power is not likely to be abused in a well-developed democratic society, yet its presence in a society going through any internal turmoil creates a significant threat of abuse. Moreover, as the recent decision of the Constitutional Tribunal proves, the question of the interrelationship between freedom of expression and freedom of conscience cannot be answered easily, and the court must take necessity and proportionality (of the restriction on free speech) criteria more seriously. More significantly, however, the numerous criminal proceedings initiated by Polish police and prosecutors on Article 196 grounds (even when the charge is eventually dropped, such proceedings still involve interrogations of the ‘suspect’) seem to augment the ‘chilling effect’ of the Polish blasphemy law. Whereas the law in itself is unavoidably indistinct and undetermined, it brings with it a grave uncertainty as to its interpretation

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and limits of application for all subjected thereto. While some activities of an offensive nature may be easy to identify as blasphemous to the majority of individuals under Polish jurisdiction (e.g., publicly destroying a Christian cross), ever more acts prove to be ‘blasphemous’ only after extensive – but occasionally flawed, as the critiques in this chapter showed – judicial analysis. Consequently, the necessary prerequisites of predictability and proportionality needed for any restriction of a fundamental human right to be legitimate are not met by the Polish criminal blasphemy clause.

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PA RT   V I Dormant Blasphemy Laws

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16 The Blasphemy Ban in Denmark Lars Grassm é Binderup & Eva Maria Lassen

16.1

Introduction

Danish law includes an article criminalising blasphemy. Thus, Article 140 in the Danish Penal Code states that Whoever, in public, mocks or scorns the religious doctrines or acts of worship of any lawfully existing religious community in this country, shall be liable to a fine or imprisonment for a term not exceeding 4 months.1

The continued inclusion of Article 140 in Danish law is controversial from a human rights perspective, but it is perhaps also rather surprising. The law is to all intents and purposes dormant. The last conviction occurred in 1946 and the last prosecution in 1971.2 Furthermore, it can seem odd why Denmark would not have followed the trend of most other European states, including those with which Denmark normally

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Danish Penal Code, Art. 140 (authors’ translation), available at www.retsinformation .dk/Forms/R0710.aspx?id=181992#id3e7e1c94-39d4-4858-a076-213b76980515. After completing the writing of the present chapter, however, the provision’s longstanding status as dormant was challenged: In February 2017, the Director of Public Prosecution decided to allow that charges on the basis of the blasphemy provision were raised against a man who in December 2015 released a video on Facebook in which he burned the Quran. The case was to be heard by a Danish District Court. www.anklagemyndigheden .dk/nyheder/Sider/tiltalt-for-afbraending-af-koranen.aspx. In response to this surprising development, the Red-Green Alliance – an opposition party – in March 2017 introduced a draft bill on the abolition of Article 140 to Parliament. In a parallel development, the coalition parties in government appeared to be ready to reconsider the latest decision from 2015 not to abolish the provision. The government had decided to set up a commission with the mandate to scrutinize freedom of expression in Denmark, including the ban on blasphemy. www.justitsministeriet.dk/ nyt- og- presse/ pressemeddelelser/ 2017/ kommission- skalvurdere-rammerne-ytringsfriheden-0. Finally, in a surprise development, the blasphemy ban (Article 140) was lifted by a majority of Parliament on 2 June 2017 (see www.ft.dk/ samling/20161/lovforslag/l170/index.htm). Subsequently, the previously mentioned charges on the basis of the blasphemy provision were also withdrawn (see www.anklagemyndigheden .dk/nyheder/Sider/statsadvokat-aflyser-straffesag-om-blasfemi.aspx).

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compares itself, to abolish the article. Denmark is a highly secularised society with generally a relaxed attitude towards religion. And finally, surveys indicate that the Danish population favour abolition.3 However, as we will argue, the main explanation of the Danish exceptionalism and the most recent political decision from 2015 to retain the article lie in the fear of violent reactions to religious insult, including terrorism. The Muhammad cartoon crisis in 2005–2006, the terrorist attack on a meeting on ‘Art, Blasphemy and Freedom of Speech’ in Krudttønden (a cultural centre) in Copenhagen in February 2015 and no doubt also the terrorist attack on Charlie Hebdo, occurring just a few weeks before the decision, loomed large in the reasoning of experts and lawmakers. A secondary explanation, we shall submit, lies in political concern for the possible effects of an abolition of Article 140 on the status and circumstances of religious minorities in Denmark. In this chapter, we will first look at the historical development of the blasphemy ban, leading to the current Article 140 of the Danish Penal Code. The content and scope of Article 140 will be sketched, followed by a discussion of the few cases brought to court since 1933, reaching a climax with the Muhammad cartoons in 2006. One legal particularity of the blasphemy ban will be given special attention, namely the reference to Article 140 in the Danish Aliens Act, which has the potential to bring the ban on blasphemy back to life by bringing it into play with penal systems of other countries with blasphemy laws. The chapter proceeds to outline the reactions of (international) human rights bodies to Article 140, focussing on the statement of the UN Special Rapporteur on freedom of religion or belief, as well as the assessment of Article 140 taken by Denmark’s National Human Rights Institution. The final part of the chapter will focus on the most recent developments in Denmark, having as a starting point a key report of the Danish Criminal Law Council on the consequences of abolishing the blasphemy law, published in February 2015. With basis in an analysis of the Council’s arguments, we proceed to analyse the views found in the political and religious landscape respectively, as well as the view of the Danish branch of PEN as an example of a national NGO. Finally, following a critical discussion of the main arguments raised in favour of retaining or abolishing the blasphemy ban, we will point to possible ways forward. 3

Survey from December 2013, available at www.b.dk/nationalt/flertal-vil-afskaffeforbud-mod-blasfemi.

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16.2 Article 140 – Historical Background and Content The Danish Code from 1683 included a classical blasphemy section outlawing mockery of ‘the name, words and sacraments’ of God. It protected the Christian God and church directly. The punishment was the cutting off of the tongue, head and/or the hand.4 The exclusive reference to Christianity was already removed in 1799 when also the focus was moved from protecting God to protecting the doctrines of religions in plural. The current Danish blasphemy law has its ancestry in Article 156 of the Penal Code of 1866 that outlawed both private and public blasphemy. In 1930, the requirement was added to Article 156 that the blasphemous act has to be public. The article then survived in unchanged form as Article 140 in the Penal Code of 1933 and until this day.5 The earlier law also imposed harsher sentences by decreeing a minimum sentence of one month imprisonment and by only allowing for fine-sentences in cases with ‘extraordinary extenuating circumstances’, whereas Article 140 merely allows for imprisonment up to four months or fines. The immediate object of protection of Article 140 is the religious feelings directed at both the inner life of a religious group – the doctrines of the religion – and the outer life understood as the various elements of practices of worship, including customs, institutions, persons, things and ritual actions. From the jurisprudence and scholarly debate about the article, it emerges that the overall purpose of both the earlier and the current article is to protect societal peace. This is also evident from the fact that the article figures in chapter 15 of the Penal Code dedicated to ‘crimes against public order and peace’ and from the fact that only blasphemy relative to ‘the doctrines and worship of religious societies lawfully existing in the country’ is outlawed. Thus, the blasphemous act is considered apt for punishment only if it could conceivably cause public disorder among religious groups actually represented in the population.6 The use of the words ‘mocking’ (Danish:  ‘spot’) or ‘scorning’ (Danish: ‘forhånelse’) marks an important distinction. ‘Spot’ signifies expressions of lack of or a very low level of respect for something. ‘Forhånelse’ means the positive expression of contempt for something. Regarding the scope

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Danish Code 1683, 6/1/7 and 6/1/8 (available at http://bjoerna.dk/DL-1683-internet.pdf ). Criminal Law Council, Straffelovrådets udtalelse om de juridiske konsekvenser af en ophævelse af straffelovens § 140 om blasfemi (Betænkning nr. 1548, 2014), p. 9 (in English: Report on the Legal Consequences of the Abolition of Article 140 on Blasphemy in the Penal Code). Ibid., p. 10.

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of the article, it should be noted that, in an effort to limit the number of cases under the article, a decision to prosecute rests solely with the Director of Public Prosecution (henceforth DPP). From both preparatory work and jurisprudence, it is clear that the article should be applied only in very severe cases. To understand the particularities of the Danish debate about Article 140, it is important to mention that the Danish Penal Code also contains a hate speech article, Article 266b, commonly known as the ‘racism article’, stating that: (1) Whoever publicly or with the intention of wider dissemination makes a statement or other communication by which a group of people are threatened, humiliated or degraded on account of their race, colour, national or ethnic origin, religion, or sexual inclination shall be liable to a fine or imprisonment for a term not exceeding two years. (2) When handing down punishment, it is to be considered as an aggravating circumstance if the statement has the form of propaganda.7 As will be evident in our discussion that follows, it is a contentious issue whether or not Article 266b makes Article 140 redundant.

16.3 Status of the Offence – Is Article 140 Dormant? Since the article acquired its current form in 1930, only three cases have been prosecuted. Only in one case, from 1938, did prosecution under Article 140 result in convictions with prison terms. The case – in which four persons were convicted and given prison sentences ranging from twenty to eighty days – pertained to anti-Semitic attacks on sacred texts and objects of religious veneration such as the Jewish God and Abraham. In 1946, a rather trivial case – where the convicted persons enacted a baptism during a costume ball without any overt intention to offend the Christian church – resulted in a minor fine. Finally, in 1971, the Minister of Justice, against the advice of the DPP, intervened to secure prosecution of a case in which in a provocative satirical folk song from a family TV show, the song’s protagonist cannot free herself from the sexual inhibitions that had been installed in her through her religious upbringing. The defendants were acquitted since the court found that the satire was

7

Danish Penal Code, Article 266b (authors’ translation), available at www.retsinformation .dk/Forms/R0710.aspx?id=181992#id3e7e1c94-39d4-4858-a076-213b76980515.

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intended to be directed at the use – by some religious groups – of religious doctrines and beliefs in the sexual education of children and not at Christian religious doctrines as such. In addition to the prosecuted cases, there have been numerous failed attempts, including very recent ones, to make the DPP prosecute. We shall here focus on three prominent cases. The first case8 from 1976 concerned a film manuscript entitled The Love Affairs of Jesus Christ by the artist Jens Jørgen Thorsen. The manuscript portrayed the life of Christ as presented in the Gospels but with the addition of provocative pornographic scenes with Jesus, Martha and Maria having sexual intercourse, including homosexual intercourse. In addition, the general depiction of Jesus was as a drunken, false and hypocritical person.9 The DPP decided not to allow prosecution on the grounds that he could not exclude with certainty that the work could be evaluated more positively than the immediate impression would warrant, that is the impression of a vulgar and pornographic speculation in the use of personalities sanctified by the Christian church. In particular, it could not be ascertained with certainty that the work expressed mockery or scorn in relation to the Christian church. Furthermore, it could not be assumed that it could be proved in court that the artist had intended, in the words of the DPP, ‘to speculate’ in vulgarity or pornography. In 1984, the same artist was involved in two cases in which he painted provocative images of Jesus with an erect penis on two building facades, a restaurant and a rail station, with the permission of the owners of the buildings.10 The DPP rejected calls for prosecution in both cases with the same justification: though the actions could be characterized as mockery or scorn of the Christian tradition of worship and even though the case, if prosecuted, would possibly result in conviction, the DPP decided – perhaps surprisingly – to refuse prosecution, as this was the established practice in cases such as this. After an appeal to the Ministry of Justice, it emerged that the reason for the rejection ultimately was that in the established legal practice, cases of a similar nature had been deemed not grave enough to be prosecuted. The Ministry of Justice, in a rather curious move, expressed regret that the case had not been taken to court so that the scope of Article 140 could have been determined but ultimately did not want to go against the decision of the DPP due to undisclosed 8 9 10

Decision by the Director of Public Prosecutions in case 79/1976, 25 June 1976. Criminal Law Council, 2014 Report, p. 61. Decision by the Director of Public Prosecutions in cases 62/1985 and 133/1985.

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information from one involved chief of police and due to lack of photos of one of the paintings before it had been painted over. The two reviewed cases from the 1970s and 1980s mark the last cases relating to Christianity, the Danish majority religion. The most prominent among failed attempts to prosecute under Article 140 relate to the dominant minority religion in Denmark, Islam.11 This was the attempt to prosecute the Danish newspaper Jyllands-Posten for the publication of the article ‘The face of Muhammed’ containing the now infamous Muhammad cartoons. The case was rejected by the DPP in March 2006.12 The newspaper’s editor of culture, Flemming Rose, had asked a group of Danish cartoonists to depict the prophet Muhammad. The publication of the cartoons was – according to Rose in the essay accompanying the drawings – an attempt to create a debate about self-censorship in relation to Islam. He tried to make the case that there were several signs – including a recent case in which it had allegedly been impossible to find an illustrator for a children’s book about Muhammad – that the Danish public debate about Islam was subject to dangerous self-censorship deriving from fear of the possible reactions of Muslims to criticism or satire in relation to Islam. Several months after the publication and following a journey by Danish Imams to Middle Eastern countries, the international ‘cartoon crisis’ occurred – with among other events a diplomatic crisis, the burning of some Danish embassies in the Middle East, violence in many Muslim countries and a widespread Muslim consumer boycott of Danish products. The publication caused an uproar among some Danish Muslim groups and individuals (though there were no violent protests of any sort), and an attempt to take the paper to court followed. After thorough investigation, including consultations with three academic experts on Islam, the DPP rejected the call for prosecution with a complex justification: first of all, the very fact that Muhammad was depicted in violation of the, among Muslims, widely respected ban on such imagery was not in itself sufficient for conviction since the ban is not and has not historically been respected by all Muslims. This part of the verdict has – rightfully – been criticized since it is not clear why the fact that only a part (indeed a large part) of 11

12

In the lifetime of the current provision, the Office of the Director of Public Prosecutions estimates that there have been a total of 12 cases where the Director of Public Prosecutions has declined requests to raise charges on the basis of the article. www .anklagemyndigheden.dk/nyheder/Sider/tiltalt-for-afbraending-af-koranen.aspx Decision by the Director of Public Prosecutions, J.nr. RA-2006-41-0151, 15 March 2006.

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Muslims were likely to be offended was relevant to the ruling.13 The fact that the cartoons constituted caricatures, however, could according to the DPP amount to a violation. But eleven of the drawings were deemed to be either neutral, non-offensive or primarily critical of societal issues in Muslim society and communities rather than of Islam itself. The twelfth drawing – the caricature by Kurt Westergaard of an arguably mean-looking bearded man with a bomb in his turban – was given a more detailed analysis. It could be interpreted as merely criticizing those Islamists who use Islam to justify terrorism – which would render the drawing not relevant to Article 140. However, it could also be seen as a depiction of Muhammad as a violent and dangerous figure, in which case it would be insulting to Muslims who elevate him to be the supreme model for all humans. However, in a crucial move, the DPP states that the drawing interpreted in this way, though clearly an insult and an affront to Muhammad, is not ridiculing or mocking Muhammad, nor does it amount to scorn in the relevant sense since scorn must involve a demeaning attitude and a display of positive contempt. In other words, caricaturing someone as evil or dangerous is not necessarily – by the normal understanding – to poke fun at or to demean or show contempt for this person. For these reasons, and since the preparatory work and the jurisprudence under Article 140 required it to be subject to a very ‘narrow interpretation’, only allowing prosecution in the most severe cases, the DPP rejected the call to prosecute.14 Is Article 140, then, dormant? In an important sense, it is indeed fully dormant in that there have been no convictions for almost seventy years and no prosecutions for forty-five years. It is a weakness of the article that its scope – which must be seen as highly contextual and fluent over time – due to the lack of prosecutions has not been tested in court for decades. But even so, the high-profiled but failed attempts to secure prosecution described here go to show that the article still plays some role in Danish society. It has served as a focal point for important public debates, and it has been considered as a last resort by those who have sought to secure prosecution.

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Vagn Greve, Bånd på hånd og mund. Strafforfølgelse eller ytringsfrihed? (København: Djøf/ Jurist- og Økonomforbundet, 2008), p. 83. For a critical analysis of the decision of the DPP in the Muhammad cartoon crisis, see Tim Jensen, ‘Blasphemy in Denmark – The Muhammad cartoons, and recent discussions and developments’, in Miriam Diez Bosch and Jordi Sánchez Torrents (eds.), On Blasphemy (Barcelona: Blanquerna Observatory on Media, Religion and Culture, 2015), pp. 7–26.

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That said, attention should be drawn to one area in which Article 140 in an indirect fashion is not dormant, in the sense that recent legislation has meant that it now has the potential to interact with countries where blasphemy legislation is very much alive, for instance Pakistan and Iran. That is to say, Article 140 is mentioned in the form provided for religious promulgators (including preachers, missionaries, nuns and monks) applying for residence and work permits in Denmark. According to the form, the applicant must sign a sworn declaration, answering under oath, inter alia, the following question: Have you been sentenced in Denmark for offences comprised by any provision of Parts 12 and 13 of the Penal Code or article 136, 140, 266, 266 a or 266 b of the Criminal Code, or have you been sentenced abroad for similar offences?15

The persons most likely to be sentenced for or accused of violating blasphemy legislation in countries outside Denmark would be persons belonging to religious minorities, converts or atheists. In other words, the Danish provision may mean that people could be denied entry to Denmark because their right to express beliefs that are not in accordance with the majority religion of a country outside Denmark has been violated. This is clearly not in line with the Danish position on freedom of religion. This legal particularity came to the fore again in 2016 when a draft bill contained a proposal to revise the Aliens Act by means of introducing a ‘public sanction list’. Religious promulgators and others on this list will not be admitted to the country.16 According to the ministry’s comments to the draft bill made public in the summer of 2016, the foreigner shall not be admitted entrance and residence in the country in cases in which he or she has been sentenced according to, inter alia, Article 140 or a similar provision outside of Denmark. Also included on the sanction list can be persons who would have been sentenced according to Article 140 had they already been residing in Denmark but who have not been prosecuted in another country because a similar provision does not exist in that country. 15

16

See www.nyidanmark.dk/ NR/ rdonlyres/ CF2F03D2- ED93- 46BE- BA97- 64E81CC 4EC5D/0/rf1_da_en_ opholdstilladelse_religioese_ forkyndere.pdf. Forslag nr. L 48 – ‘Forslag til lov om ændring af udlændingeloven (Indførelse af en offentlig sanktionsliste over udenlandske religiøse forkyndere m.fl., som kan udelukkes fra at indrejse)’. This bill was introduced on 9 November 2016 and passed by Parliament on 20 December 2016, available at www.folketingstidende.dk/RIpdf/samling/20161/lovforslag/L48/20161_ L48_som_fremsat.pdf.

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The draft bill was sent to a large number of institutions for formal consultation in the summer of 2016, amongst them the Danish Institute for Human Rights (Denmark’s national human rights institution). In its comments, the Institute criticised the inclusion of Article 140 in the draft bill concerning the sanction list.17 The Institute first observed that countries which Denmark normally compares itself to do not have a criminalisation of blasphemy, notably Sweden and Norway.18 To this it was added that the provision is rarely used in practice. The Institute concluded that ‘it appears paradoxical that a foreigner who might have been sentenced after a similar provision to Article 140 should be included on the proposed ‘sanction list’.19 Furthermore, the Institute observed that blasphemy legislation in some countries has a very wide scope, and hence a ban on blasphemy can be used against, for instance, religious minorities and individuals in political opposition in a way that violates their human rights. ‘The draft, then’, the Institute continued, ‘risks to include persons who according to Danish legal tradition have expressed themselves about issues which in this country would be considered protected by freedom of expression’.20 The Institute therefore recommended that the ministry exclude Article 140 from the proposed legislative revision.21 Considering the Institute’s remarks, the ministry subsequently revised the comments to the proposal, indicating that it is those persons who have been sentenced abroad under similar circumstances (and not similar provisions) as those which could result in a conviction in Denmark who will be denied entrance to Denmark.22 The bill was passed in Parliament 20 December 2016.23

16.4

International Human Rights Bodies: The UN Special Rapporteur on Freedom of Religion or Belief

In March 2016, the UN Special Rapporteur on freedom of religion or belief, Professor Heiner Bielefeldt, undertook a country visit to Denmark. 17

18 19 20 21 22 23

Danish Institute for Human Rights, Høring over udkast til lovforslag om indførelse af en offentlig sanktionsliste over udenlandske forkyndere m.fl. som kan udelukkes fra at indrejse (1 November 2016), available at http://menneskeret.dk. Ibid., 6. Ibid., 7. Ibid., 7. Ibid., 7. See www.ft.dk/samling/20161/lovforslag/l48/bilag/1/1689043.pdf. See www.ft.dk/samling/20161/lovforslag/L48/BEH3-39/forhandling.htm#dok.

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It was the first time that a UN Special Rapporteur on freedom of religion or belief paid an official visit to the country. Heiner Bielefeldt in his preliminary findings pointed to the paradoxical approach of Danish legislation and practice towards freedom of expression: The Danish society has the reputation of highly valuing freedom of expression and preferring a rather straightforward way of communicating. It thus came as a surprise when the previous Government in 2015 announced that it would keep the existing blasphemy provision – Article 140 of the Penal Code – on the law books, even though it has not been used since many decades. Another surprising feature was that those pleading for maintaining the blasphemy provision mostly represented the left-leaning spectrum of the party system. The stereotypical assumption that it is usually the conservatives who wish to protect religious feelings by law, while liberals and leftists care more about free speech was thus somehow turned upside down.24

In some of the interviews conducted during his visit, the Special Rapporteur observed that a number of the interlocutors expressed concern that an abolition of the blasphemy ban would send a signal that might alienate the Muslim minorities. He responded to this concern by drawing attention to the fact that legally speaking other provisions of the Penal Code offer protection against hate speech and similar offences: Some interlocutors opined that abolishing the blasphemy provision could send a wrong signal, possibly alienating the Muslim population, who generally feel targeted by many ugly manifestations of hatred, above all in social media. However, one may wonder whether the hate-speech provision (Article 266b of the Penal Code), which inter alia covers threatening, humiliating and degrading speech acts targeting people on the ground of their religion would not suffice. Indeed, it seems that the Government cannot imagine any actual use of the blasphemy provision except in very narrow circumstances, for example, when a holy book or other highly symbolic item would be publicly burnt, destroyed or otherwise desecrated.25

In addition, the Special Rapporteur focused on the unfortunate effect that, in his opinion, the Danish blasphemy ban can have on the global scene: The intention underneath the decision to keep the blasphemy provision is certainly understandable. However, it sits uneasily with the general policy adopted by EU members States to call for repealing blasphemy law worldwide. During a conference held in Jeddah (Saudi Arabia) last year,

24

25

Preliminary findings of Country Visit to Denmark by Heiner Bielefeldt, Special Rapporteur on freedom of religion or belief, March 2016, at para. VII (available on www.ohchr.org/EN/ NewsEvents/Pages/DisplayNews.aspx?NewsID=18500&LangID=E). Ibid.

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the Danish blasphemy provision was cited by one presenter as an example allegedly indicating an emerging international customary law on ‘combating defamation of religions’. This is certainly not the position taken by Denmark in international forums – on the contrary. Just as abolishing the blasphemy provision could lead to misunderstanding domestically, maintaining the provision obviously can cause a different type of misunderstandings, not least in the international arena.26

In other words, by retaining the blasphemy ban, Denmark may seem to legitimize the use of blasphemy legislation in countries where freedom of religion is violated by means of such legislation.

16.5

National Human Rights Bodies

The Danish Institute for Human Rights generally speaking recommends that Denmark abolish the criminalisation of blasphemy and regularly advises the government to ‘take steps to abolish the criminalisation of blasphemy under Article 140 of the Criminal Code’.27 The institute’s view is summed up in an official report from 2015, taking into account a recent report of the Criminal Law Council: Since the cartoon crisis in 2005, there have been public and political debates about the extent to which Danish law should take account of freedom of expression. In this connection, the Criminal Law Council has reviewed the legal implications of a possible abolition of the Penal Code’s provisions prohibiting blasphemy and has stated that the prohibition does not preclude sharp criticism of religion and religious dogma. The government has therefore decided not to propose repealing the blasphemy ban. The Danish Institute for Human Rights, however, recommends a repeal of the ban on blasphemy, as human rights do not protect against blasphemy of religion. A prohibition of the burning of religious works and similar acts can also be enforced by other means.28

16.6 Recent Developments A few weeks after the terrorist attack on Charlie Hebdo, on 25 February 2015, the Danish government decided not to pursue the abolition of 26 27

28

Ibid. See, e.g., The Danish Institute for Human Rights, Human Rights in Denmark. Status 2015–16. A summary (2016), p. 69 (available at www.humanrights.dk/sites/humanrights.dk/files/ media/dokumenter/udgivelser/status/status_2016_uk_summary.pdf ). Danish Institute for Human Rights, Ytringsfrihed. Status 2014–15 (2015), p. 16 (available at http://menneskeret.dk/sites/menneskeret.dk/files/media/dokumenter/udgivelser/status/ 2014–15/delrapporter/ytrings frihed.pdf (authors’ translation).

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Article 140.29 The decision, we shall submit, was centrally influenced by the Danish Criminal Law Council’s Report on the Legal Consequences of the Abolition of section 140 on Blasphemy in the Criminal Law. Most of the political parties with the exception of Danish People’s Party and Liberal Alliance had waited for the report before making a final decision on abolition, and it is clear from the remarks of key politicians that the report had a deciding influence on the decision not to abolish Article 140. In the following analysis, we first look at the central considerations and arguments of the report and then at the views expressed by the political parties as well as Danish PEN in 2015, following the publication of the report. We will then proceed to present some of the responses to the report by religious communities.

16.6.1 The Report of the Criminal Law Council The Council gives an account of what it expects would be the positive and negative effects of abolition, leaving it to the politicians to weigh the pros and cons in a concluding political deliberation. Six pro-abolition arguments were presented. The first argument observes that Article 140 is outdated, since the views on what should be the proper limits to free speech today have moved too far away from what they were when the law was originally framed. The types of speech acts that were intended to be criminalised by the section are no longer considered apt for punishment, as the very fact that the law has been dormant for decades also goes to show. And in these circumstances, the fact that Article 140 is still formally in force despite being de facto obsolete can be an affront to and cause anger in those who – taking the article’s words at face value – lodge a complaint and expect a prosecution in vain.30 A second point in favour of abolition is that, given the positive value of free debate and its role in democracy, any limitation on free speech is, other things being equal, something to be avoided. Assuming further that in today’s secular society there are no special reasons for protecting religious feelings in distinction from feelings arising from, for example, ethical, political or social beliefs, it seems unwarranted to exclude religious matters from the general principle that it is better to counter problematic

29 30

See www.ft.dk/samling/20141/almdel/reu/bilag/194/1501104.pdf. Criminal Law Council, 2014 Report, pp. 25–27.

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exercises of the right to free speech such as blasphemous acts by reasoned counterargument than by prohibition and punishment. Legal sanctions may even allow the blasphemer to portray himself as the victim of persecution for his views.31 A third argument notes that Denmark by abolishing Article 140 will bring itself in line with other Western countries – including especially the neighbouring countries Sweden and Norway – as well as with the recommendations of international bodies like the Council of Europe, the Venice Commission and UN regarding the criminalization of public disrespect for religion. After abolition, Denmark would also stand stronger when criticising countries in other parts of the world for banning criticism against religion, though even today such criticism can be made against countries with, for example, much more restricting bans or a bias in favour of the majority religion or disproportionate sentencing.32 Fourthly, the article limits the possible blasphemous acts to acts committed against a ‘lawfully existing religious community in this country’. There are, however, today more than 270 approved such communities in Denmark and, accordingly, determining whether the doctrines or acts of worship have been blasphemed against can in some cases require that the court gets involved in complex theological investigations. This, in turn, would draw courts into matters where they have no competency and, furthermore, the requirement of predictability under the rule of law would not be fulfilled since it will be difficult to know in advance of these theological investigations when one is breaking the law.33 A fifth reason to abolish according to the Council is that the fact that Danish society has become more multi-religious should not reverse the trend towards a growing tolerance of criticism of religion – as for instance displayed in the jurisprudence of Article 140 – merely out of fear for the violent reactions by adherents of the religion mocked or scorned. Thus, the principle should be that ‘it is not the critic (the person scorning) that ought to have to tolerate a limitation in his or her freedom of expression, but the state which in the relevant cases has to use the necessary resources to protect this person’s freedom of speech and safety against violent reactions from adherents to the criticized (scorned) religion’.34

31 32 33

34

Ibid., p. 29. Ibid., pp. 27–28. Ibid., pp. 28–29. The point is supported by the Danish Institute for Human Rights in its comments to the hearing of the Council’s report (Jr.nr. 510.10/31819/CBA/MAF). Ibid., p. 30 (authors’ translation).

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A final reason, formulated by the council, in favour of abolition is that prosecutions under Article 140 may in fact be counterproductive in that the court case itself can be used as a means to spread the message and effect of the original blasphemous act much more effectively than the original act – as arguably happened in the 1938 case.35 In opposition to these arguments for abolition, the Council points to a set of considerations that can be summed up in the following manner: Article 140 is necessary as a means to protect public safety in certain extreme cases in which no other law – Article 266b on hate speech in particular – will suffice. All the arguments against abolition are premised on the notion that – in jurisprudence and preparatory works – Article 140 has been given a very narrow interpretation so that only the most severe degrading treatment of the doctrines or practice of worship of a religion is within the scope of the provision. The recurring examples in the Council’s report of acts that could be breaches of Article 140 depending on circumstances are, in accordance with this, actions like the burning of or public urination on the Bible or Quran. The first argument against abolition states that the kind of act that violates Article 140 in its current narrow interpretation – such as the public burning of a holy book – can be seen as in and of itself constituting such a severe violation of the feelings of others that it ought to be punishable. Furthermore, since criticism of religion – even very ‘strongly formulated’ criticism – is possible without causing such strong offence, it is ‘difficult to find reasons worth recognizing for allowing that such a deliberate degrading treatment of holy scriptures should go unpunished by the Penal Code’.36 The limitation on freedom of speech imposed by a narrowly interpreted Article 140 is – according to this point of view – very small relative to the gains achieved by the avoidance of such severe violations of feelings. The second argument worries about the effects of the very act of abolishing Article 140 in the current situation. Arguably, even if the intention behind an abolition would be to communicate that religious feelings are not seen as so important that they need special protection, it could also send the signal that it is now morally acceptable to mock and scorn religious doctrines or practices of worship intentionally. According to this line of argument, it is important how an abolition would be interpreted – inside

35 36

Ibid., p. 30. Ibid., p. 31.

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but especially outside Denmark where the signal might be simplified or even deliberately distorted. In particular, it could be seen as a hostile signal not just to religions as such but ‘especially to particular religions’37. There is little doubt that this passage hints at the possible repercussions of an abolition to the relations to Muslim citizens and Muslim states. The Council’s final proposed argument against abolition probably carried most weight in the subsequent political decision. Article 140 may be indispensable since – without it – there is no way to take legitimate action against certain types of public disorder. The public disorder in question is not the one caused by those who offend the religious feelings. Rather, the concern is more that those persons who have experienced offense to their religious belief or practices ‘in a form of vigilante reaction commits malicious damage or violence or make threats’.38 Certain actions apt to severely hurt religious feelings – the only examples mentioned are the burning of or urination on the Quran or Bible – are not punishable by other laws or regulations since they may be performed in such a way that they do not break laws or by-laws on public order, on malicious damage, on causing danger by lighting fire in public places or on public indecency (or at least would only incur minor fines), and they may not involve a threat to or a humiliation or degradation of individuals on account of their religion which would enable the use of Article 266b. Thus, without Article 140, the police would lack the possibility to take preventive action against actions that would likely cause others to react violently. Even if the police are obliged to protect the offending citizens against the possible violent attack from those who have been offended, it is – according to this perspective – a legitimate interest to instead seek to prevent the violence by taking legal sanction against those who offend.

16.6.2

Political Reactions following the Report of the Criminal Law Council

The report of the Criminal Law Council did not result in a draft bill on the abolition of the ban on blasphemy, but it did trigger political and public debates. The majority of the political parties formulated their views on the possibility of abolishing Article 140. The view of the Social Democrats, leading the government coalition, was expressed in a statement by the

37 38

Ibid., p. 33. Ibid., p. 34.

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Minister of Justice, Mette Frederiksen, who in an official response to the publication of the Council’s report announced the Government’s decision not to introduce a bill to Parliament proposing an abolition of Article 140: The Criminal Law Council’s review shows that the article on blasphemy is not a hindrance to criticism of religion. . . . At the same time, the Council points out that if the article is abolished there could occur public burnings of holy books like the Bible or the Koran that the authorities could not act against. I find it difficult to see how we achieve a stronger society, or how it could enrich the public debate, if it was made legal to burn holy books.39

Interestingly, the aforementioned point of the Criminal Law Council led the Danish Social-Liberal Party (Radikale Venstre) to draw a different conclusion, namely that an abolition of Article 140 would have very little actual effect and, thus, that the law is redundant.40 The Conservative People’s Party (Konservativ Folkeparti) saw reason in keeping Article 140 because of the symbolic value of the law. The law ‘signals that in this country we wish to respect people for whom faith is important regardless of the nature of the faith’. The centre-right party (Venstre) expressed that there were different opinions within the party; the party therefore held that it did not have an official viewpoint at this stage. On the far left, The Red-Green Alliance (Enhedslisten) saw the ban as an unnecessary limitation of freedom of expression. ‘Legislation should protect people but not gods’. Also on the left side of the political spectrum, the Socialist People’s Party (Socialistisk Folkeparti) was open to discussing the issue of abolishing Article 140. However, they underlined that an abolition must not result in scorn of religious minorities. At the other side of the political spectrum, we find two parties who agree with the Red-Green Alliance that Article 140 should be abolished. The liberal party (Liberal Alliance) had previously introduced a draft bill on the abolition of the ban41 and retained its support for an abolition. Their view was, first, that it is important to highlight that Denmark embraces extensive freedom of expression and that no one can be prosecuted for blasphemy. Second, the party observes that some individuals might restrain their expression because of the current law. Third, the party 39

40

41

Author’s translation; original available at www.justitsministeriet.dk/nyt-og-presse/ pressemeddelelser/2015/straffelovraadets-udtalelse-om-de-juridiske-konsekvenser-af-en. This and the following viewpoints of the political parties were collected by the Danish national newspaper Kristeligt Dagblad, available at www.kristeligt-dagblad.dk/ folketingsvalg-2015/skal-blasfemiparagraffen-afskaffes. See www.retsinformation.dk/forms/R0710.aspx?id=141246.

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supports an abolition because of Denmark’s international relations:  ‘For without the paragraph we can actively do something to improve the situation for persons in other countries, without anyone pointing out that Denmark has a blasphemy law’. Finally, the Danish People’s Party (Dansk Folkeparti) finds no reason whatsoever to retain Article 140 and believes that freedom of expression should be as extensive as possible. The party had introduced a draft bill to Parliament in 201342 and again in 2015 following the decision of the government not to introduce a draft bill on the abolition of Article 140.43 Accordingly, we see that Danish political opinion is divided on the issue. The determining factor is not whether the party is on the left or right side of the political spectrum. Similarly, those defending the ban do it for different reasons, namely out of concern for either public safety or the situation of religious minorities in particular.

16.6.3 Danish PEN The Danish PEN in its reaction to the report of the Criminal Law Council acknowledges that the Council more or less discourages an abolition due to the unrest potentially resulting from such an abolition. For that reason, and in particular in light of the recent terror attack in Copenhagen, the Danish PEN expresses understanding of the government’s hesitation to abolish Article 140. Instead, the Danish PEN recommends that the government prepare an abolition of the ban on blasphemy in the longer term, notably by means of initiatives in the educational system (from kindergarten to high school), aiming at establishing an understanding of freedom of religion and freedom of expression (including the right to criticism and satire) as two rights that are not in opposition to one another. On the contrary, both rights are preconditions for a free, democratic and open society. The president of the organisation stated: ‘The aim must still be to liberate criticism of religion and satire, also in Denmark. If today there is indeed reason to be scared, we must urgently create an understanding for an abolition of the ban on blasphemy tomorrow’.44

42 43

44

See www.retsinformation.dk/eli/ft/201312L00086. The draft was never put through parliamentary debates due to an up-coming election. See www.ft.dk/samling/20141/lovforslag/L206/som_fremsat.htm#dok. ‘Dansk PEN:  ‘Drop loven om blasfemi’, 2 March 2015, available at http://danskpen.dk/ dansk-pen-drop-loven-om-blasfemi/ (author’s translation).

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16.6.4 Voices of Danish Religious Communities Until the 1970s, the religious landscape of Denmark was homogenous, with almost all citizens belonging to the Danish People’s Church, Folkekirke. Today, the picture is more diverse with approximately 78.2 percent belonging to the Folkekirke. A large number of Christian religious communities exists outside of the Folkekirke. Approximately 4 to 5 percent of the population is Muslim, whereas the Jewish community in Denmark, the country’s oldest non-Christian community, recognised by Royal Decree in 1682, has approximately 7,000 members. On 27 February 2015, the Report of the Criminal Law Council was sent for consultation to, inter alia, religious communities. A number of these took part in the consultation process, submitting comments to the Ministry of Justice.45 The bishops of the Danish Folkekirke submitted a shared response with one dissident voice. It is not an argument for abolition, the bishops claim, that the law has been dormant since the 1970s, as the regulation may have the effect of ‘regulating behaviour’. In addition, it can be a useful instrument in particularly difficult situations in the future. The bishops added that an abolition [of the law] may be perceived not only as a signal that religious feelings today are considered less important, but also as a signal that it is outright morally acceptable intentionally to violate such religious feelings by means of scorn and mockery.46

In conclusion, and also including other reflections of the Criminal Law Council on the effect abroad and in Denmark of an abolition, the bishops state that concern for freedom of expression does not at present amount to a reason for abolishing the ban on blasphemy. One bishop from the Folkekirke (the bishop of the diocese of Elsinore) submitted a dissenting opinion, arguing that ‘a conservation of the ban can be seen as a signal that religion or religious individuals exist within a “zone of untouchability”, above criticism’. This is not, according to the bishop, consistent with Danish tradition that has allowed, for instance, 45

46

The comments to the report of the Criminal Law Council of religious communities can be found in ‘Comments regarding the Report of the Criminal Law Council concerning the legal consequences of an abolition of the Penal Code’s Article 140 on blasphemy. Report no. 1548/2014’ (author’s translation; original available at www.ft.dk/samling/20141/ almdel/reu/bilag/299/1527819.pdf ). Ibid.

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the Danish State Church to be exposed to ridicule. The bishop also argues that an abolition of the ban on blasphemy will send a signal that freedom of religion has priority over the ban on blasphemy and that it is legitimate freely to practise one’s religion and to convert without this coming into conflict with a ban on blasphemy.47 Another response was submitted by the bishop of the Roman Catholic Church in Denmark. The bishop emphasised the fear that an abolition of the ban can lead to civil unrest, for instance in response to the burning of the Quran. ‘In our view, the significance of the ban on blasphemy is therefore that it provides an important contribution to the protection of citizens against violent acts or other damage’.48 Retaining Article 140 will also protect Danish citizens when travelling abroad, as its abolition might result in global unrest: ‘The burning of the Quran is an expression which in the present globalised world with great certainty will lead to attacks on the public order and peace’. He adds that although the objective of the blasphemy law ‘is not to protect the feelings of religious persons but to secure public order and peace, the consideration of such feelings is not without significance’. The government is, in his view, therefore, right in not proposing a draft bill on the abolition of the ban. Yet another response was submitted by the Jewish community in Denmark. The Jewish community approached the report of the Criminal Law Council from two angles. Firstly, they addressed the issue of ‘free opinion making’. Supporting the view that the debate must be as free as possible, it is the view of the Jewish community that the ban on blasphemy does not hinder free opinion making. Second, they looked at the blasphemy ban in context of societal tendencies. Thus they observe with concern a tendency to limit the rights and the legal space for the practices of religious minorities, recently most clearly expressed in the prohibition of ritual slaughter and in the debate about a possible prohibition of male circumcision. In this context, it is the conviction of the Jewish community that one of the aims of Article 140 is to safeguard citizens belonging to a minority religion against verbal persecution. They conclude: We consider it highly doubtful that an abolition of Article 140 will have any positive significance or effect in relation to the framework for society’s debate on religion. On the contrary, we fear that the tendencies which have become particularly apparent over the last couple of years would be

47 48

Ibid. Ibid.

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On this basis, the Jewish community recommends that Article 140 shall not be repealed. Finally, Dansk Muslimsk Forening, a Shia-Muslim community, submitted a response which in fact called for a more extensive blasphemy law. The community believes that an abolition of the ban will lead to misinterpretations and misunderstanding vis-à-vis the religious communities both in Denmark and abroad. This can lead to severe safety risks and even increase the risk of terror attacks in Denmark. Based on recent experiences in the country, the community recommends that the scope of Article 140 shall be extended by being formulated in such a way as to protect religious individuals’ right to venerate whatever religious symbols they please without being exposed to violations in the name of freedom of expression or anything else.50 To sum up, there is a feeling among most of the religious communities referred to here that the blasphemy ban should be retained. The majority of the bishops of the Folkekirke, for instance, express the view that the ban can have a certain regulating effect on the population’s behaviour. In addition, the defence of the blasphemy ban is by some respondents linked to the perception that freedom of religion is under pressure, especially for minorities. This perception should be seen in context of a broader societal tendency:  in recent years, individuals belonging to religious minorities increasingly fear that present and future legal interventions in religious practices will limit their individual and collective freedom of religion. In addition, a sometimes heated debate in the media and among politicians about such intervention may result in a sense of ‘us–them’ dichotomy between religious minorities and the majority population. To take a notable example, the Jewish community is worried that a future prohibition of circumcision of boys – a prohibition often supported in the public debate – will threaten the existence of Jewish life in Denmark because of the centrality of this ritual for Jewish identity.51 The perception that religious minorities are under pressure in Denmark was further intensified in 2016 when new legislative initiatives were

49 50 51

Ibid. Ibid. Eva Maria Lassen, ‘The EU and religious minorities under pressure’ (2016) European Yearbook on Human Rights 159–172, p. 162.

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launched. In the spring of 2016, a television documentary gave insight into alleged threats from religious extremists, endeavouring to encourage a parallel legal system within Danish Muslim communities and depriving members of their legal rights. This resulted in a political agreement among the government, the Social Democrats, the Danish People’s Party and the Conservative People’s Party about initiatives ‘targeting religious promulgators who seek to undermine Danish law and values and to support parallel legal systems’.52 The agreement resulted in a number of legislative proposals, most of which are widely opposed by both the majority church and the minority religious communities because they are perceived as throwing suspicion on all religious groups and seen as a limitation of freedom of expression or expression by religious promulgators.

16.7 Concluding Remarks Should section 140 remain part of Danish law? And what is the likelihood that it will be abolished in the coming years? In recognition of the force of the arguments advanced in favour of abolition by the Criminal Law Council as described earlier, we aim here mainly to give a critical discussion of the reasons against abolition as presented by the Council53 – the very reasons that appear to have swayed the politicians in power in 2015 – and some of the other arguments against abolition featuring in the previously discussed survey. First of all, it must be recognised both that a dormant law can still have a regulatory effect on behaviour despite the lack of prosecutions or convictions and that, in principle, it can still be a ‘useful instrument in a possible future grave situation’.54 So the dormant status alone does not justify abolition. This fact – that laws can have an effect even without leading to prosecutions or convictions for a very long period – has two sides of course. On the one hand, defenders of the dormant law will say that it can still have pre-empted severe violations of the feelings of religious persons and the violence that they might ignite. Conversely, critics of the law can point out that, even if dormant, a law can have had a chilling effect on public criticism and debate about religion amounting to a threat to freedom of speech. It is not our view that the law has had this effect in 52

53 54

Ministry of Ecclesiastical Affairs, 31 May 2016, available at www.km.dk/fileadmin/share/ kursus/Aftalepapir.pdf. Criminal Law Council, 2014 Report, pp. 31–36. Criminal Law Council, 2014 Report, p. 32.

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the Danish context in recent decades. Since the cases from the 1970s and 1980s described earlier, we submit, there has in effect been no legal limit to criticism of religion in Denmark. It is important to remember that the Muhammad cartoons – that of course constituted a rather severe provocation of the religious feelings of Muslims – were not met by prosecution under Article 140. If something has a chilling effect on free speech in Denmark today, it is much more relevant – such as the editor of JyllandsPosten, Flemming Rose, in his justification for publishing the Muhammad cartoons55 – to point to the self-censorship caused by the threat of violence by those who might be offended. Turning now to our evaluation of the Council’s arguments against abolition, the argument based on the premise that certain very severe types of hurt to religious feelings – simply because of their nature of being very severe – ought to be criminally punishable appears very weak. First of all, it begs the question of why religious feelings are more worthy of protection than feelings directed at other types of beliefs – political, moral, existential or social. Secondly, the related judgment that Article 140 (in its current narrow interpretation) is just a ‘minor limitation’ of the right to free expression appears to be based on the idea that a political majority can decide what types of symbolic acts directed at beliefs and practices are so problematic that they become apt for criminal punishment. This can be seen as highly problematic, since exercises of free speech – be it in the form of symbolic acts or otherwise – that attack beliefs or practices arguably as a matter of principle should be countered by criticism in public debate as opposed to legal restrictions. That is, at least if they do not constitute veiled attacks on the rights of groups of citizens of the kind that is rightly punishable by hate speech laws such as Article 266b of the Danish Criminal Code. The fundamental principled flaw of Article 140, thus, is that it formally defends beliefs and practices as opposed to (the rights of) individuals. The second argument against abolition appears to be not so much a principled defence of the article but instead an argument that relies heavily on the particular historical context at the time of the proposed abolition. It worries about how the signals expressed by the very act of abolition in the current situation would affect Danish society and especially Danish relations to foreign (Islamic) powers. There is no doubt that the worry 55

Flemming Rose, ‘Why I published those cartoons’, Washington Post, 19 February 2006, available at www.washingtonpost.com/wp-dyn/content/article/2006/02/17/AR2006021702499_ pf.html.

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here is that abolition might reignite the crisis following the publication of the Muhammad cartoons in 2005–2006. We shall comment on this in our final remarks. However, there is also the more principled worry – not particularly emphasised in the report but featuring strongly in the hearings of the religious communities – that the signal sent by an abolition would negatively affect the status of minority religions. This fear was expressed by, amongst others, the Jewish community in Denmark and accentuated by the fact that a number of religious (especially Jewish and Muslim) minorities see themselves as being under increasing pressure in Denmark. The question is, however, whether such a negative effect of abolition could not be countered by other, primarily non-legal, means. The UN Special Rapporteur on freedom of religion or belief addressed this question in his preliminary report on Denmark, calling for, inter alia, educational and communicative efforts to combat intolerance towards religious minorities: I would therefore like to refer to an action plan elaborated under the auspices of the UN Office of the High Commissioner for Human Rights, in October 2012 in Rabat. Without denying the need for restrictive measure in extreme cases the ‘Rabat Plan of Action’ calls upon States to repeal any remaining blasphemy laws. At the same time, the Rabat Plan emphasizes the primacy of non-restrictive measures to counter incitement to acts of hatred, for instance, through cross-boundary communication, educational efforts, community outreach, fair representation of minorities in public media, as well as solidarity actions in support of targeted individuals or communities.56

As we have seen, the same approach has been advocated by the president of PEN, Denmark. We believe that legal measures for the extreme cases (i.e. Article 266b) coupled with non-legal measures which directly attack the issues of intolerance towards religious minorities would be far more appropriate and sustainable tools than Article 140 to address these concerns about the situation of religious minorities in Danish society. The final anti-abolition argument – that appears to have swayed many politicians57 – is based on concerns for public order and safety, thus fearing future victims of violent reactions by those offended. Again, the weight of the argument is enhanced by the contextually based fear that a public burning of the Quran might reignite an international crisis with the Muslim world or could give rise to a worsening of the relations between 56 57

Special Rapporteur, Preliminary findings of Country Visit to Denmark, at para. VII. See the earlier quote from Mette Frederiksen.

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religious and other groups internally in Denmark or, more seriously, that radicalised religious extremists might use the occasion as a pretext for terrorism. This fear appears to loom large in both the advice of the Council and the minds of the politicians and some religious leaders. The argument has, however, two fundamental weaknesses in our view. First of all, it is not clear that Article 140 is an indispensable tool to secure order in these extreme scenarios as argued by the Council. Legal experts in Denmark disagree about whether there are ‘realistic examples, that would fall under Article 140, but not also under Article 266b’.58 The council appears to envision a case in which a public burning of the Koran or Bible is done in such a way that no threat, insult or degradation to a religious group occurs. Henning Koch reminds us – in an attempt to show the indispensability of Article 140 – that during the height of the Muhammad cartoon crisis, the rumour that someone was going to burn the Quran in the Copenhagen City Hall Square was met by an announcement by the Copenhagen Police that the perpetrators in the event would be arrested and prosecuted under Article 140. The Danish Foreign Minister Per Stig Møller relayed this announcement on live Arabic television in an effort to calm tempers after the rumour had spread to the Arab world.59 However, it is not realistic to think that such a book burning would not also have been a violation of Article 266b, since the very groups that could have perpetrated it would undoubtedly also have been strongly anti-Muslim. A related worry, also expressed by Henning Koch, is that what on the face of it appears to be reasoned attacks on religious doctrines may in fact be indirect or veiled discriminatory attacks on minority groups. Without Article 140, the possibility for taking legal action against such indirect attacks would wither. But, again, it is not evident that such attacks could not always also be convicted under Article 266b. Vagn Greve points to a recent conviction in which members of the youth branch of the Danish People’s Party had been convicted under Article 266b after having linked, on a political poster, belief in the Quran with things like mass rape and honour killings. In other words, the jurisprudence of Article 266b shows it to be fully adequate as a means to counter indirect hate speech. The second flaw in the council’s case against abolition is already expressed in the pro-abolition argument in the report. Punishing persons 58

59

Statement made by legal scholar Vagn Greve in an expert hearing in the Danish Parliament in 2008, as cited by the Criminal Law Council, 2014 Report, p. 91. Henning Koch, ‘Ytringsfrihed og tro’, in Lisbeth Christoffersen (ed.), Gudebilleder (Denmark: Tiderne Skifter, 2006), pp. 77–79.

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offending religious feelings rather than protecting them and punishing instead the offended who are willing to turn to vigilante violence as a matter of principle gets things the wrong way around. It can even amount to appeasing or allowing oneself to be intimidated by those who threaten to turn to violence – and in the extreme case even to giving in to terrorism. And it is perhaps symptomatic of a deeper problem with the underlying approach, namely that the strong emphasis on securing public order rather than protecting everyone’s right to free speech fails to recognise that free society sometimes results in deep rifts and conflicts over basic values and beliefs and that unlawful violence resulting from these differences in opinion must be addressed as unlawful violence rather than be attempted to pre-empt by legally restricting freedom. It is, after all, ultimately those who turn to violence or threats of violence that are a danger to peace and safety. That said, it must be recognised that concern for public order and safety can in certain extreme situations outweigh rights to free speech. The most recent Danish decision to retain Article 140 was made by politicians strongly impressed by not just the Muhammad cartoon crisis but also the Charlie Hebdo and Krudttønden terrorist attacks occurring just weeks earlier. It is understandable that politicians did not want inadvertently to trigger violence and possible threats to innocent life by timing the abolition badly. It seems that Denmark is caught up in the genuine dilemma that there is on the one hand a widespread popular and political agreement that Article 140 in principle must be given up, but also a sense that the timing of an abolition now would be bad and will probably, and sadly, remain so for a while.

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17 A Draft Obituary for the Offence of Blasphemy in Ireland Tarlach McGonagle

17.1

Introduction

For quite some time, the offence of blasphemy in Ireland has been widely regarded as ‘anachronistic and anomalous’.1 It is a throwback to an earlier age when Irish society was very homogeneous and dominated by religion. It is thus strikingly out of place in the modern, secularised and pluralistic society that Ireland has become since. From a legal perspective, it is out of synch with contemporary interpretations of European and international human rights standards, in particular, the right to freedom of expression. Moreover, the harms that the offence purports to prevent or redress, for example, religious insult, are covered by various laws, which means that the offence has become largely redundant. Although prosecutions for blasphemy in Ireland are rare, the continued existence of the offence on the statute books is problematic for at least two reasons. First, the possibility of prosecution creates a chilling effect on free expression. Second, it unwittingly facilitates finger-pointing by other states which have to fend off criticism of their own criminal blasphemy laws. Those states do not necessarily have the same (generally) high standards of human rights protection as Ireland. It can then be politically expedient for such states to point to states like Ireland which have criminal provisions for blasphemy, yet still maintain good levels of human rights protection. Given the anachronistic and anomalous character of the offence, it should be no surprise that over the years, there have been regular, 1

Law Reform Commission, Report on the Crime of Libel, LRC 41–91, 20 December 1991, p. 522.

The author is very grateful to Marie McGonagle for sharing very helpful insights, references and some textual input. He is also very grateful to the editors for their insightful comments.

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persuasive calls for its abolition from a wide range of national and international sources. What may perhaps be surprising to readers unfamiliar with the Irish legal tradition is the recalcitrant nature of the offence in the face of prevailing criticism and calls for its abolition. This can be explained in part by the enshrinement of blasphemy in the Irish Constitution, which gives the offence enhanced legal status. While the legislative provision criminalising blasphemy (section 36 of the Defamation Act, 2009) can be replaced or repealed by new legislation, a constitutional referendum would be required in order to amend the constitutional provision that affirms the existence of the offence (Article 40.6.1(i)). As its title suggests, this chapter provides a draft obituary for the offence of blasphemy in Ireland or a ‘chronicle of a death foretold’, to repurpose the title of Gabriel García Márquez’s novella.2 Its central argument is that blasphemy’s days on the Irish statute books are numbered. Due to the prevalence and persistence of criticism of the offence of blasphemy from legal, political and academic sources, it is only a matter of time until a constitutional referendum addressing the relevant constitutional provision will be held. Indeed, as of this writing, the present coalition government had formally committed to hold a referendum on the ‘question of amending Article 40.6.1(i) of the Constitution to remove the offence of blasphemy’.3 Moreover, in July 2017, two Teachtaí Dála (Members of the Lower House of Parliament) introduced Private Member Bills aiming to remove the offence of blasphemy from the Constitution and the statute books.4 The chapter will begin by introducing, in turn, the main constitutional and legislative provisions that set out the offence of blasphemy in Irish law.5 The overview and analysis will include historical perspectives tracing the evolution of the offence. The focus will then shift to the sustained criticism of the offence, within Ireland and in international fora. The chapter’s conclusion will draw together the various strands of the analysis to reinforce the argument that the constitutional and legislative provisions for the offence are untenable from the perspectives of human rights and pluralistic democracy. 2 3 4

5

Gabriel García Márquez, Chronicle of a Death Foretold (London: Penguin Books, 1982). A Programme for a Partnership Government, May 2016, p. 153. Defamation (Amendment) Bill 2017 [PMB] (Number 102 of 2017) and Thirty-fifth Amendment of the Constitution (Blasphemy) Bill 2017 [PMB] (Number 103 of 2017), 12 July 2017. The Bills were introduced by Deputies Catherine Murphy and Róisín Shortall, both of the Social Democrats party. For a more extensive discussion, see Neville Cox, Blasphemy and the Law in Ireland (United Kingdom:  Edwin Mellen Press, 2000). See also, for a succinct recent overview: Sarahrose

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17.2 Constitutional Enshrinement Promulgated in 1937, Bunreacht na hÉireann (the Constitution of Ireland) is antecedent to the current canon of international and regional human rights instruments. The Chapter of the Constitution entitled ‘Fundamental Rights’ (Articles 40–44 inclusive) is therefore not entirely co-extensive with the rights and freedoms elaborated by those international instruments. Nevertheless, there does exist ‘substantial congruity’6 or ‘a striking degree of overlap between the respective guarantees (as judicially interpreted) contained in the Constitution and in the Convention’.7 Not all of the personal rights deemed to be constitutionally guaranteed are specifically set out in the ‘Fundamental Rights’ Chapter, though. Some personal rights (such as the right to privacy, the right to found a family and the right to earn a livelihood) owe their existence to the so-called ‘doctrine of unenumerated rights’ elaborated by the courts.8 This doctrine has been built on the understanding that ‘the statement of rights in the Constitution was not intended to be exhaustive and that the Constitution protected other latent, unspecified rights’.9 The freedom to express one’s opinions and convictions does, however, feature among the specified constitutional rights. This right is provided for in explicit terms in Article 40.6.1 of the Constitution, but it may be limited by the exigencies of public order and morality. Article 40.6.1 reads: The State guarantees liberty for the exercise of the following rights subject to public order and morality: (i) The right of the citizens to express freely their convictions and opinions. The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public

6

7

8

9

Murphy, ‘Blasphemy Law in Ireland:  an overview of its historical development and current proposals for reform’, Report presented at the 14th meeting of the Joint Council on Constitutional Justice Mini-Conference on ‘Blasphemy and other limitations to the freedom of expression’, Doc. No. CDL-JU(2015)016-e, 12 June 2015. Joseph Jaconelli, ‘The European Convention on Human Rights as Irish municipal law’ (1987) The Irish Jurist 23. Gerard Hogan, ‘The Belfast Agreement and the future incorporation of the European Convention of Human Rights in the Republic of Ireland’ (1999) 4 The Bar Review 205–211, at 208. A complete list of the unenumerated rights protected by Art. 40.3.1 (as identified by the Courts to date) can be found in the Report of the Constitution Review Group (hereafter, ‘CRG Report’), Pn. 2632, Dublin, May 1996, p. 246. See also Donncha O’Connell, ‘Ireland’, in Robert Blackburn and Jörg Polakiewicz (eds.), Fundamental Rights in Europe – The European Convention on Human Rights and Its Member States, 1950–2000 (Oxford: Oxford University Press, 2001). CRG Report, p. 245.

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opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State. The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.

The vague, unsatisfactory wording of this provision is often underlined. The Constitution Review Group has recommended that the provision be reformulated along the lines of Article 10 of the European Convention on Human Rights (ECHR), the language of which is ‘more succinct and lucid than that of Article 40.6.1(i) and more completely protects the substance of the combined rights of free expression, speech and information’.10 In the same vein, one commentator has opined that ‘the Constitution is open to a retrogressive interpretation which would discard the progress which has been made in the legal toleration of sincere religious dissent and rational disbelief ’.11 That observation was made nearly sixty years ago: the passage of time since has only reinforced its veracity. The tailpiece of this provision is of most direct relevance for present purposes. Some commentators have stressed the importance of the ‘mandatory language’ used in the clause that refers to blasphemy, reasoning: It does not permit a blasphemy law to be enacted, should the legislature deem one to be valuable. Rather, it provides that such an offence does exist. In other words, as things stand, Ireland is not constitutionally permitted to be without a blasphemy law.12

Case law and other academic commentary support the view that the English common-law offence of blasphemy predated the 1922 Constitution of the Irish Free State and the 1937 Constitution. This gives further credence to the view that the Constitution merely acknowledges or reiterates the existence of the offence of blasphemy, making it a rare example of a so-called ‘constitutional crime’.13 The legislature is tasked with working out the details, but little guidance for the task can be gleaned from the actual text of the Constitution. While the Constitution affirms the existence of the offence of blasphemy, it does not define it. Blasphemy has traditionally been an offence 10 11

12

13

Ibid., p. 302. The CRG Report will be discussed in more detail in Section 4.1. Paul O’Higgins, ‘Blasphemy in Irish law’ (1960) 23 The Modern Law Review 151–166, at 166. Neville Cox and Eoin McCullough, Defamation Law and Practice (Dublin:  Clarus Press, 2014), p. 13 (emphasis per original). See the chapter by Neville Cox in this volume.

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of uncertain metes and bounds, and statutory law enacted pursuant to the constitutional provision has failed to dispel the ‘confusion and obscurity’ bedevilling the concept.14 The lack of clarity about the purpose, content and scope of the offence of blasphemy is compounded by the dearth of relevant case law. Neville Cox has posited that the raison d’être of blasphemy laws has become modified over time, evolving from the preservation of public order to the protection of religious sensibilities.15 But not even this evolution can be said to be clearcut, as these two rationales can often be inextricably linked to one another.16 The right to profess, practise and manifest one’s beliefs without interference in private and in public, individually and in communion with others, is the subject of extensive legal protection on the international plane.17 At the national level, equality of religious treatment is guaranteed by Article 44 of the Constitution.18 This provision necessarily dominates the backdrop to any consideration of the scope of blasphemy on the Irish stage. The pronouncement by Walsh J. in Quinn’s Supermarket v. Attorney General19 that the Deity alluded to in Article 44 is not exclusively Christian is very much in keeping with the non-partisanship which inheres in that Article. It is, however, seemingly at odds with the common-law position, as articulated in the English case, R. v. Chief Magistrate, ex parte Choudhury.20 In that case – an unsuccessful action which sought to have Salman Rushdie’s novel The Satanic Verses declared blasphemous to Muslims – it was held that the offence of blasphemy was restricted to the Christian faith. An application to the (former) European Commission of Human Rights also proved

14 15

16

17

18

19 20

Paul O’Higgins, ‘Blasphemy in Irish Law’, at 166. Neville Cox, ‘Sacrilege and sensibility: The value of Irish blasphemy law’ (1997) 19 Dublin University Law Journal 87–112, at 99. See, for instance, Otto-Preminger-Institut v. Austria, Application no. 13470/87, judgment of 20 September 1994. E.g., Universal Declaration of Human Rights, Article 18; International Covenant on Civil and Political Rights, Article 18 (and the Human Rights Committee’s General Comment No. 22 on the same provision), ECHR, Article 9. Article 44 reads:  ‘1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion. 2.1. Freedom of conscience and the free profession and practice of religion are subject to public order and morality, guaranteed to every citizen. … 2.3. The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status’. [1972] IR 1. [1991] QB 429.

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unsuccessful.21 The Commission declared the application inadmissible, inter alia because it found no link between freedom from interference with the religious freedoms guaranteed by Article 9 of the Convention. The later case of Wingrove v. United Kingdom concerned the rejection by the British Board of Film Classification of an application for a classification certificate for the applicant’s film, Visions of Ecstasy.22 The film, a short experimental video work, portrayed Saint Teresa engaging in acts of an overtly sexual nature, including with the body of the crucified Christ. The law of blasphemy was therefore a central feature of the case. This provided the European Court of Human Rights with the opportunity to comment on the restricted applicability of the English law of blasphemy to the Christian faith. The Court found it anomalous that such a state of affairs could persist in a modern, multi-denominational society but went on to seemingly accept this anomaly. It stated:  ‘The uncontested fact that the law of blasphemy does not treat on an equal footing the different religions practised in the United Kingdom does not detract from the legitimacy of the aim pursued in the present context’.23 As will be discussed in more detail in Section 17.4, the Law Reform Commission, the Constitution Review Group and the Constitutional Convention have all recommended that the Constitution be amended in order to abolish the provision on blasphemy. According to the Constitution Review Group, ‘the retention of the present constitutional offence of blasphemy is not appropriate’.24

17.3 Legislative Developments The Constitutional reference to the offence of blasphemy is supplemented by a number of legislative references. The main ones have traditionally been found in Irish defamation legislation, and they will be discussed in some detail presently, but others also merit brief mention. The Censorship of Films Act, 1923, for instance, provides that the Director of Film Classification (formerly known as the ‘Official Censor’) may withhold certification for a film if s/he is of the opinion that it (or part of it) is ‘indecent, obscene or blasphemous’.25 The concern here is primarily with public morality. 21

22 23 24 25

European Commission of Human Rights, Choudhury v. the United Kingdom, Application no. 17439/90, decision of inadmissibility of 5 March 1991. For more detail on this and the following cases, see also the chapter by Lewis in this volume. Wingrove v. the UK, Application no. 17419/90, judgment of 25 November 1996. Ibid., para. 50. CRG Report, p. 274. See further Section 4.1. Censorship of Films Act, 1923 (as amended), s. 7(2)(a)(ii).

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Another piece of legislation, the Prohibition of Incitement to Hatred Act, 1989, is also relevant, even though it does not explicitly mention blasphemy or blasphemous material. Its relevance stems from its definition of the types of hatred that it prohibits. It defines ‘hatred’ for the purposes of the act as ‘hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation’.26 As has already been noted, the offence of blasphemy is sometimes (mis)used to prohibit or punish religious insults or hatred. Insofar as the Prohibition of Incitement to Hatred Act explicitly includes religious hatred, the argument that an offence of blasphemy is needed to counter the same or similar harms rings hollow.

17.3.1 Defamation Act 1961 Prosecutions for blasphemous libel are now virtually unknown in Ireland, although occasionally attempts are made or threats issued. A case in point was the controversial police investigation in May 2017 into a complaint of blasphemy regarding comments made by actor Stephen Fry during a televised interview in 2015. The police halted its investigation when it could not find enough people who were outraged at the comments – only one formal complaint had been received.27 The Defamation Act, 1961 (which has since been replaced by a 2009 Act with the same title) formed the legislative backdrop to the rare cases that have emerged. The Act contained a number of provisions viewed with opprobrium by the Law Reform Commission, including section 13, which dealt with blasphemous or obscene libel. Section 8 allowed for private persons to apply to the High Court for leave to initiate prosecutions. This possibility was not explicitly retained in the 2009 Act. In one case,28 the High Court was informed that a series of posters carrying messages like ‘Kill God’, which had been displayed on billboards around Dublin, had been removed, so no injunctive relief was granted. The applicant had complained that display of the posters constituted the offence of blasphemy, as well as blasphemous libel.29 26 27

28 29

Prohibition of Incitement to Hatred Act, 1989, s. 1(1). See: Pádraig Collins, ‘Stephen Fry investigated by Irish police for alleged blasphemy’, The Guardian, 7 May 2017 and Henry McDonald, ‘Irish police halt investigation of Stephen Fry for blasphemy’, The Guardian, 9 May 2017. High Court, O’Mahony v. Levine, unreported, 17 October 1994. A small percentage of complaints to newspapers from time to time allege blasphemy, but the term is used in a very broad sense by complainants to cover anything critical of the Church or religious beliefs or devotions. See generally on newspaper complaints, Kevin

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The whole issue of blasphemy in Irish law was considered by the Supreme Court in 1999 in Corway v. Independent Newspapers,30 the first case of blasphemy in Ireland since 1855. Leave to prosecute for blasphemous libel had been sought in the High Court pursuant to section 8 of the Defamation Act 1961 and had been refused.31 The complaint concerned a cartoon published in the Sunday Independent in November 1995, depicting a priest and three prominent politicians, under the caption ‘Hello progress – bye bye Father’. The caption was a play on the slogan, ‘Hello divorce – bye bye Daddy’, used during the November 1995 divorce referendum by some anti-divorce campaigners. The priest was holding a host in one hand and a chalice in the other.32 The applicant complained that the cartoon and caption were calculated to insult the feelings and religious convictions of readers generally by treating the sacrament of the Eucharist and its administration as objects of scorn. Geoghegan J., in the High Court, expressed his approval for the minority viewpoint in R. v. Lemon33 and that of the Law Reform Commission in its Consultation Paper on the Crime of Libel, 1991. He said that even if the cartoon did constitute on a prima facie basis the crime of blasphemy, he would still not grant leave to institute criminal proceedings against its publishers on the ground that such a course of action was not required by the public interest. An appeal to the Supreme Court followed. The Supreme Court, having traced the evolution of the crime of blasphemy in England and Ireland, reviewed it in light of the 1922 Constitution. The Court concluded that the guarantees of freedom of conscience, religion and expression in Articles 8 and 9 of the 1922 Constitution were wide enough to cover all religions and none: The tenets of any one religion do not enjoy greater protection in law than those of any other. There can be no question therefore of the mere publication of an opinion on a religious matter constituting a criminal offence unless the publication is such as to undermine public order or morality. Article 73 [of the 1922 Constitution] carried forward the laws of the previous regime: “Subject to this Constitution and to the extent to which they are not inconsistent therewith”.

30 31 32

33

Boyle and Marie McGonagle, Media Accountability:  The Readers’ Representative in Irish Newspapers (Dublin: National Newspapers of Ireland, 1995). Corway v. Independent Newspapers [1999] 4 I.R. 484. [1997] 1 ILRM 432. The impugned cartoon can be viewed in Eoin O’Dell, ‘Hello blasphemy… Bye bye debate?’, blog-post, Cearta, 24 September 2009, available at www.cearta.ie/2009/09/3849/. [1979] 1 All ER 898.

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tarlach mcgonagle It is debatable to what extent, if at all, it carried forward the common law in relation to blasphemy.34

Furthermore, it was difficult to see how, related as it was to an established church (the Church of Ireland was disestablished in 1869), it could survive in the framework of the 1937 Constitution. The effect of Articles 44 (religion) and 40.1 (equality) of the 1937 Constitution was to guarantee: Freedom of conscience, the free profession and practice of religion and equality before the law to all citizens, be they Roman Catholics, Protestants, Jews, Muslims, agnostics or atheists. But Article 44 goes further and places the duty on the State to respect and honour religion as such. At the same time the State is not placed in the position of an arbiter of religious truth. Its only function is to protect public order and morality. … [I]t is difficult to see how the view of the majority in the House of Lords in R v. Lemon that the mere act of publication of blasphemous matter without proof of any intention to blaspheme is sufficient to support a conviction of blasphemy would be reconciled with a Constitution guaranteeing freedom of conscience and the free profession and practice of religion’.35

In the absence of legislation and in the present uncertain state of the law, the Court could not see its way to authorising the institution of a criminal prosecution for blasphemy. The cartoon may indeed have been in bad taste, but the Court concluded that no insult was intended and dismissed the appeal. Thus, despite the reference in the Constitution to the publication or utterance of blasphemous matter, it is unlikely, in the absence of legislation, that future applications for prosecutions for blasphemous libel will be entertained in the Irish courts.

17.3.2 Defamation Act 2009 The 1961 Act had been widely criticised for many reasons, and it was eventually repealed by the Defamation Act 2009. The new Act modernises and reforms the law of defamation in Ireland. It was drafted with the benefit of legal insights gleaned from the Law Reform Commission (see 34

35

Ibid., at 499–500, Barrington J. The Court went on to say that if the Church of England had been disestablished and if England had introduced a secular Constitution it was highly probable that the debate in the House of Lords in R. v. Lemon (the Gay News case) would have taken a different course. As a result, the Gay News case did not appear to be a safe guide for the Court to follow in the present case. For a commentary on the Corway case, see Stephen Ranalow, ‘Bearing a constitutional cross: Examining blasphemy and the judicial role in Corway v. Independent Newspapers’ (2000) 3 Trinity College Law Review 95. Ibid., at 501.

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below) and the Corway judgment (discussed earlier). The Act is concerned with civil defamation, apart from Part 5 , which focuses on ‘Criminal Liability ’ and comprises three articles. Section 35 abolishes the common-law offences of defamatory libel, seditious libel and obscene libel. Section 36 sets out the offence of publishing or uttering blasphemous matter. Section 37 provides for the seizure of copies of blasphemous statements. The latter two provisions read as follows: 36.—(1) A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding €25,000. (2) For the purposes of this section, a person publishes or utters blasphemous matter if— (a) he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and (b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage. (3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates. (4) In this section ‘religion’ does not include an organisation or cult— (a) the principal object of which is the making of profit, or (b) that employs oppressive psychological manipulation— (i) of its followers, or (ii) for the purpose of gaining new followers. 37.—(1) Where a person is convicted of an offence under section 36, the court may issue a warrant— (a) authorising any member of the Garda Síochána36 to enter (if necessary by the use of reasonable force) at all reasonable times any premises (including a dwelling) at which he or she has reasonable grounds for believing that copies of the statement to which the offence related are to be found, and to search those premises and seize and remove all copies of the statement found therein,

36

The Garda Síochána is the official Irish-language name for the national police force (author’s footnote).

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tarlach mcgonagle (b) directing the seizure and removal by any member of the Garda Síochána of all copies of the statement to which the offence related that are in the possession of any person, (c) specifying the manner in which copies so seized and removed shall be detained and stored by the Garda Síochána. (2) A member of the Garda Síochána may— (a) enter and search any premises, (b) seize, remove and detain any copy of a statement to which an offence under section 36 relates found therein or in the possession of any person, in accordance with a warrant under subsection (1). (3) Upon final judgment being given in proceedings for an offence under section 36, anything seized and removed under subsection (2) shall be disposed of in accordance with such directions as the court may give upon an application by a member of the Garda Síochána in that behalf.

The recasting of the offence in section 36(2) as the publication or utterance of ‘matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion’,37 coupled with the mens rea of actual intent to cause such outrage, sets a high threshold for the offence to be committed. Furthermore, the defence of proving that ‘a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates’38 would also appear to make it difficult to successfully prosecute someone for the offence. It is at least plausible that these considerations explain in part why there have not been any prosecutions under the Act. When defending the Defamation Bill in Parliament prior to its adoption, the then Minister for Justice, Equality and Law Reform, Mr Dermot Ahern, described the duty to legislate in order to operationalise the offence of blasphemy as a ‘constitutional obligation’.39 He explained, ‘Until the Constitution is amended, it is necessary that blasphemy remain a crime and that the relevant legislation must make provision for punishment of

37 38 39

Emphasis added. Emphasis added. ‘Amending the Law on Blasphemous Libel Speech by the Mr. Dermot Ahern T.D., Minister for Justice, Equality and Law Reform at the Dail Committee on Justice, Equality Defence and Women’s Rights’, 20 May 2009.

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this crime. There is no alternative to this position’.40 He also clarified that his legislative proposal, which became Sections 36 and 37 of the 2009 Act, had been ‘drawn up in close consultation with the Attorney General and Parliamentary Counsel’.41 As of this writing, a public consultation on the review of the Defamation Act was ongoing. The review is being carried out by the Department of Justice and Equality. Sections 36 and 37 of the Act have explicitly been excluded from the scope of the review because ‘the relevant Constitutional and statutory provisions have already been considered by the Sixth Report of the Constitutional Convention and will be the subject of a constitutional referendum, as provided in the Programme for a Partnership Government’.42 The inclusion of a commitment to hold such a constitutional referendum in the current programme for government was prompted by wide-ranging criticism of the current state of affairs, as will be explained in the next section.

17.4

Sustained Criticism of the Offence of Blasphemy 17.4.1

National Criticism

Over the years, various bodies and initiatives have recommended that the constitutional and legislative provisions that constitute the offence of blasphemy under Irish law be amended or abolished. The most notable initiatives have been those of the Law Reform Commission (1991), the Constitution Review Group (1996) and the Constitutional Convention (2014).

17.4.1.1 Law Reform Commission The Law Reform Commission (LRC) is an independent body established by the Law Reform Commission Act, 1975, to ‘keep the law under review and in accordance with the provisions of this Act shall undertake examinations and conduct research with a view to reforming the law and formulate proposals for law reform’.43 The LRC issued a Consultation Paper on the Crime of Libel in August 1991,44 followed by a Report on the Crime 40 41 42

43 44

Ibid. Ibid. ‘Review of the Defamation Act 2009 – Public consultation: invitation for submissions’, 1 November 2016. Law Reform Commission Act, 1975, section 4. Law Reform Commission (LRC), Consultation Paper on the Crime of Libel (Dublin, August 1991).

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of Libel in December of the same year. The consultation paper and report were part of a wider-ranging engagement by the LRC with the law of (civil and criminal) defamation and contempt of court. The LRC was critical of the lack of certainty as to the ‘precise scope and essential ingredients’ of the offence of blasphemy.45 It considered that ‘in the absence of any modern Irish authority it was impossible to say what the actus reus of the offence consisted in’.46 As noted, the Supreme Court subsequently took the same view in its Corway judgment. The LRC went on to weigh up the pros and cons of retaining the offence before concluding that there is ‘no place for an offence of blasphemous libel in a society which respects freedom of speech’.47 It continued: The argument in its favour that the publication of blasphemy causes injury to feelings appeared to us to be a tenuous basis on which to restrict freedom of speech. The argument that freedom to insult religion would threaten the stability of society by impairing the harmony between groups seemed highly questionable in the absence of any prosecutions.48

The LRC also concluded that some of the harms that the blasphemy offence purportedly addresses, such as stirring up religious-based hatred, are ‘adequately covered’ by other legislation, such as the Prohibition of Incitement to Hatred Act, 1989.49 Notwithstanding these conclusions, the LRC proceeded to countenance a scenario in which a constitutional referendum focusing on the blasphemy offence would not be held. It seemed to fear that there would be little political traction for investing time and money in organising a constitutional referendum dealing solely with a provision that is widely perceived as having little practical relevance. It seemed to think that it would be best – for reasons of organisational efficiency – to combine this proposal for constitutional amendment with other proposals while acknowledging that such an approach could delay matters. The option B that it put forward was a (re-)definition of the actus reus of the offence that would be subject to the provisions of the European Convention on Human Rights, as interpreted in the case law of the European Court of Human Rights.50 45 46 47 48 49 50

LRC Report on the Crime of Libel, p. 11 (para. 4). Ibid. Ibid., para. 17. Ibid. Ibid. Ibid., para. 19. For a brief discussion of relevant case-law from the European Court of Human Rights, see section V below, and for a more extensive analysis, see Tarlach McGonagle, Minority Rights, Freedom of Expression and of the Media:  Dynamics and Dilemmas (Cambridge: Intersentia, 2011), Chapter 7.

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The redefinition of the actus reus should entail the publication of ‘blasphemous matter’, that is, ‘matter the sole effect of which is likely to cause outrage to a substantial number of the adherents of any religion by virtue of its insulting content concerning matters held sacred by that religion’.51 Religion, in this sense, should embrace Christian and non-Christian religions. The mens rea for the offence would require the prosecution to show that the defendant (i) knew that the matter was likely to outrage and (ii) intended to outrage, the feelings of the adherents of any religion.52 To sum up, the LRC issued a number of ranked recommendations in its 1991 Report. Its preference was to delete, in any revision of the Constitution following a referendum, the clause in Article 40.6.1 that renders the publication or utterance of blasphemous matter an offence.53 However, in the event of its preferred recommendation not being accepted, it favoured the abolition of the offence of blasphemous libel and its replacement by a new offence of ‘publication of blasphemous matter’.54 Given the status of the LRC in Irish public life and the fact that its engagement with the offence of blasphemy in 1991 was the first thorough examination of its kind, it has framed much of the public debate on the reform of blasphemy in Ireland since. Its recommendations have proved influential in other review exercises, in legislative and judicial circles and in academia.

17.4.1.2 Constitution Review Group The Constitution Review Group (CRG) was set up by the government of Ireland in 1995 ‘to review the Constitution, and in the light of this review, to establish those areas where constitutional change might be desirable or necessary’.55 The final Report of the CRG was published in May 1996.56 The CRG formally recommended that ‘the retention of the constitutional offence of blasphemy is not appropriate’.57 In reaching this position, it placed great store by the reasoning and conclusions of the Law Reform Commission. The CRG explained its recommendation as follows: The contents of the offence are totally unclear and are potentially at variance with guarantees of free speech and freedom of conscience in a pluralistic society. Moreover, there has been no prosecution for blasphemy in 51 52 53 54 55 56 57

Ibid., paras. 20 and 22. Ibid., para. 20. Ibid., Summary of recommendations, pp. 14–16, para. 20. Ibid., para. 21. CRG Report, p. x. Ibid. Ibid., p. 274.

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tarlach mcgonagle the history of the State.58 In so far as the protection of religious beliefs and sensibilities is necessary, this is best achieved by carefully defined legislation along the lines of the Prohibition of Incitement to Hatred Act 1989 which applies equally to all religious groups, but which at the same time took care to respect fundamental values of free speech and freedom of conscience.59

17.4.1.3 Constitutional Convention The Convention on the Constitution was set up by a Resolution of both Houses of the Oireachtas (the Irish bi-cameral legislature) in 2012 to consider and, as appropriate, make recommendations for constitutional amendments in respect of various topics. One of those topics was ‘removal of the offence of blasphemy from the Constitution’. The Convention was a forum of 100 people, who were broadly representative of Irish society. The Convention’s Recommendations on the removal of the offence of blasphemy from the Constitution were determined by a ballot of its members, following in-depth discussion of relevant issues that was informed by, inter alia, expert presentations. Sixty-one percent of members were of the opinion that the offence of blasphemy in the Constitution should not be kept as it is.60 Members found that ‘in the event that the Convention favours change to the Constitution’, the offence of blasphemy should be ‘removed altogether’ (38 percent) or ‘replaced with a new general provision to include incitement to religious hatred’ (53 percent). Half of the members took the view that there should not be a legislative provision for the offence of blasphemy, as opposed to 49  percent who favoured such a provision, with one member remaining undecided/ without an opinion. Finally, members found that ‘in the event that the Convention favours a legislative provision, it should be’:  ‘the existing legislative provision’ (11 percent) or ‘a new set of detailed legislative provisions to include incitement to religious hatred’ (82 percent). Seven percent of members were undecided/had no opinion. 17.4.1.4 Synopsis In synopsis, at the national level, there is a clear and coherent body of criticism directed at the offence of blasphemy, as enshrined in the Constitution and developed in legislation. The criticism consistently advocates holding a constitutional referendum that would propose the deletion of the clause 58 59 60

The publication of the CRG’s Report preceded the Corway case (author’s footnote). Ibid. Thirty-eight percent of members thought it should be kept as it is and 1  percent were undecided/had no opinion.

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in Article 40.6.1 that renders the publication or utterance of blasphemous matter an offence. Such an amendment would remove the constitutional criminalisation of blasphemy and pave the way for the abolition of the offence in the Defamation Act.

17.4.2 International Criticism The offence of blasphemy in Ireland has also drawn critical scrutiny from abroad and from international organisations, in particular the United Nations. The Human Rights Committee – the oversight body for the International Covenant on Civil and Political Rights (ICCPR), has for instance called on the Irish authorities to ‘consider removing the prohibition of blasphemy from the Constitution’.61 In doing so, it noted the recommendation to that effect issued by the Constitutional Convention. It welcomed the repeal of the Defamation Act, 1961, but stated that it ‘remains concerned that blasphemy continues to be an offence under article 40.6.1 (i)  of the Constitution and section 36 of the Defamation Act 2009’.62 The Committee made the call in 2014 in its concluding observations on Ireland’s fourth report under the Covenant. The Committee had not highlighted the offence of blasphemy in its concluding observations on earlier state reports by Ireland.63 However, between the Committee’s consideration of Ireland’s third and fourth reports, an important development had taken place in the Committee’s work. In September 2011, the Committee adopted its General Comment No. 34 on Article 19 (freedom of opinion and expression) of the ICCPR.64 General Comment No. 34 provides a comprehensive, coherent and modern interpretation of the scope and content of the rights to freedom of opinion and expression.65 The Committee clarifies its position on 61

62 63

64

65

Human Rights Committee, Concluding observations on the fourth periodic report of Ireland, UN Doc. CCPR/C/IRL/CO/4, 19 August 2014, para. 22. Ibid. Indeed, the Committee’s concluding observations on Ireland’s first three state reports in 1993, 2000 and 2008, pay scant – if any – attention to freedom-of-expression issues. The concluding observations on the 1993 state report contain a general reference, but the others do not. Human Rights Committee, General Comment 34:  Article 19 (Freedoms of Opinion and Expression), UN Doc. CCPR/C/GC/34, 12 September 2011. For commentary by the Rapporteur on the General Comment, see Michael O’Flaherty, ‘International Covenant on Civil and Political Rights: Interpreting freedom of expression and information standards for the present and the future’, in Tarlach McGonagle and Yvonne Donders (eds.), The United Nations and Freedom of Expression and Information: Critical

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blasphemy laws in paragraph 48 of the General Comment. It states explicitly and emphatically:  ‘Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant’.66 This statement furnished the Committee with firm grounding for its call on the Irish authorities to consider removing the offence of blasphemy from the Constitution. The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has also been critical of the offence of blasphemy in Irish law. The Special Rapporteur’s last country report on Ireland dates from 2000. The then Special Rapporteur, Abid Hussain, expressed his concerns about Irish defamation law and the chilling effect its design and implementation could have on the exercise of the right to freedom of expression. He welcomed ‘the fact that the Supreme Court ha[d] recently declared blasphemous libel unconstitutional’.67 This was a reference to, but also a misinterpretation of, the Supreme Court’s Corway judgment. Despite its inaccuracy, the comment nevertheless clearly revealed the Special Rapporteur’s underlying concern at the existence of the offence of blasphemy. More recently, criticism of the offence of blasphemy in Ireland has been voiced in the context of the UN Universal Periodic Review (UPR) process. The UPR is a process in which all UN member states’ human rights records are reviewed by other states. It was initiated in 2006 and, while state driven, it is carried out under the auspices of the UN Human Rights Council.68 During Ireland’s first appearance at the UPR, France recommended that the Irish authorities withdraw the offence of blasphemy, lest this would constitute an excessive limitation on the right to freedom

66

67

68

Perspectives (Cambridge: Cambridge University Press, 2015), pp. 55–88. For further commentary, see: Alfred de Zayas and Áurea Roldán Martín, ‘Freedom of opinion and freedom of expression: Some reflections on General Comment No. 34 of the UN Human Rights Committee’ (2012) 59 Netherlands International Law Review 425–54. HRC, General Comment 34, para. 48. For details of the drafting process relating specifically to the topic of blasphemy, see M. O’Flaherty, ‘ICCPR: Interpreting freedom of expression and information standards’, 74 and 81–82. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mr. Abid Hussain, submitted in accordance with Commission resolution 1999/36, Addendum, Report on the mission to Ireland, UN Doc. E/CN.4/2000/ 63/Add.2, 10 January 2000, para. 44. UN General Assembly Resolution, ‘Human Rights Council’, UN Doc. A/RES/60/251, 15 March 2006, para. 5(e).

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of expression.69 France reiterated this recommendation during Ireland’s second innings at the UPR in 2016,70 when Sweden also made a similar recommendation based on, inter alia, the Human Rights Committee’s General Comment 34.71 In synopsis, there have been various instances of criticism of the Irish offence of blasphemy in international fora. As is the case at the national level, the gist of all this criticism is consistent and persuasive. It is further strengthened by its grounding in European and international human rights standards.

17.5

General Guidance from European and International Standards

Besides the specific, tailored recommendations to Ireland from the international community, discussed in the previous section, guidance of a general nature is provided by European and international human rights standards, which include scattered references to the offence of blasphemy. At the European level, the most pertinent guidance is provided by the European Court of Human Rights and various bodies of the Council of Europe, that is the Committee of Ministers, the Parliamentary Assembly and the Commission for Democracy through Law (the ‘Venice Commission’). At the international level, the key reference points are the Human Rights Committee’s General Comment 34 and the Rabat Plan of Action. Each of these European and international reference points will now be briefly introduced.

17.5.1 European Court of Human Rights The instruction offered by European and international jurisprudence dealing with blasphemy is limited. The European Court of Human Rights has traditionally allowed states a wide berth in which to regulate this area of law, and recent case law offers no evidence of this broad margin of appreciation being whittled away.72 The discretion conferred on 69

70

71 72

UN Human Rights Council, Report of the Working Group on the Universal Periodic Review: Ireland, UN Doc. A/HRC/19/9, 21 December 2011, para. 107 (17). UN Human Rights Council, Report of the Working Group on the Universal Periodic Review: Ireland, UN Doc. A/HRC/33/17, 18 July 2016, para. 136 (53). Ibid., para. 136 (54). For a detailed overview of the blasphemy jurisprudence of the European Court of Human Rights, see the chapter by Lewis in this volume, ‘At the Deep End of the Pool’.

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national authorities for the assessment of what amounts to the offence of blasphemy stems partly from the Court’s acknowledgement that the offence ‘cannot by its very nature lend itself to precise legal definition’.73 The source of this interpretative discretion is rather to be found in the Court’s consistent finding that there is – as yet – no discernible European conception of morals.74 The cardinal importance of freedom of religion to the identity and dignity of an individual is firmly rooted in the case law of the European Court of Human Rights.75 It was set out by the Court in Klass & Others v. Germany,76 and elsewhere, that the provisions of the Convention must be read harmoniously. Continuing in this vein, Article 9 can be breached by non-adherence to the duties and responsibilities referred to in Article 10(2). Such an argument derives its validity from previous observations of the Court: Amongst them [the duties and responsibilities contemplated by Article 10(2)] – in the context of religious opinions and beliefs – may legitimately be included an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs.77

Article 10(2) also includes the ‘duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profanatory’.78 One pertinent caveat must, however, be entered. In Wingrove, it was held that ‘the high degree of profanation that must be attained constitutes, in itself, a safeguard against arbitrariness’.79 This threshold, typically, will vary from country to country, thus the confounding circle of subjectivity and uncertainty begins to turn once more. The Court, however, has ruled that although legal precision can sometimes prove elusive,80 this should not prove an insurmountable obstacle

73

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75

76 77 78 79 80

Handyside v. the UK, Application no. 5493/72, judgment of 7 December 1976, para. 48. See also, for example, Otto-Preminger-Institut v. Austria, paras. 46 and 49; Wingrove v. United Kingdom, paras. 42, 57 and 58. Handyside, para. 48; Müller v. Switzerland, Application no. 10737/84, judgment of 24 May 1988, paras. 30 and 35; Otto-Preminger-Institut, para. 50; Wingrove, para. 57. E.g., Kokkinakis v. Greece, Application no. 14307/88, judgment of 25 May 1993, para. 31; Otto-Preminger-Institut, para. 47. Klass & Others v. Germany, Application no. 5029/71, judgment of 6 September 1978. Otto-Preminger-Institut, para. 49 (see also paras. 46 and 47). Wingrove, para. 52. Wingrove, para. 60. Sunday Times v. the UK, Application no. 6538/74, judgment of 26 April 1979, para. 49.

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to achieving legal clarity and foreseeability. The margin of appreciation enjoyed by states is not unlimited, and the European Court has affirmed its own ultimate jurisdiction to rule on the compatibility of restrictive measures with the ECHR.81

17.5.2 Other Council of Europe Bodies The Council of Europe’s Committee of Ministers recommends that governments of the organisation’s forty-seven member states ‘review relevant domestic laws and practice and revise them, as necessary, to ensure their conformity with States’ obligations under the European Convention on Human Rights’.82 The envisaged reviews should focus on laws and their implementation. They should cover ‘existing and draft legislation, including that which concerns terrorism, extremism and national security, and any other legislation that affects the right to freedom of expression of journalists and other media actors, and any other rights that are crucial for ensuring that their right to freedom of expression can be exercised in an effective manner’83. Blasphemy laws fall squarely within the scope of these reviews. As noted in the set of principles appended to the Recommendation, ‘[a]ctual misuse, abuse or threatened use of different types of legislation to prevent contributions to public debate, including defamation, anti-terrorism, national security, public order, hate speech, blasphemy and memory laws can prove effective as means of intimidating and silencing journalists and other media actors reporting on matters of public interest’.84 The Parliamentary Assembly of the Council of Europe (PACE) has traditionally taken a hard line against blasphemy laws. Its Resolution 1510 (2006) entitled ‘Freedom of expression and respect for religious beliefs’ states that freedom of thought and of expression in a democratic society must include ‘open debate on matters relating to religion and beliefs’.85 It continues, ‘Attacks on individuals on grounds of their religion or race cannot be permitted but blasphemy laws should not be used to curtail

81 82

83 84 85

Handyside, paras. 48–49. Recommendation CM/Rec(2016)4 of the Committee of Ministers to member States on the protection of journalism and safety of journalists and other media actors, 13 April 2016, para. 7(ii). Ibid., ‘Guidelines’, para. 3. Ibid., ‘Principles’, para. 36. PACE, Resolution 1510 (2006), para. 3.

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freedom of expression and thought’.86 It refers to the historical tendency of laws punishing blasphemy and criticism of religious practices and dogma to hinder scientific and social progress,87 while also noting that ‘critical dispute’ and artistic freedom have traditionally helped to stimulate individual and social progress.88 ‘Critical dispute, satire, humour and artistic expression should, therefore, enjoy a wider degree of freedom of expression and recourse to exaggeration should not be seen as provocation’, it states.89 The Resolution’s central message is that freedom of expression, as guaranteed by Article 10, ECHR, ‘should not be further restricted to meet increasing sensitivities of certain religious groups’, but ‘hate speech against any religious group is not compatible with the fundamental rights and freedoms guaranteed by the Convention and the case law of the Court’.90 In June 2007, the PACE adopted more texts which re-engage with those topics, including Recommendation 1804 (2007), ‘State, religion, secularity and human rights’, and Recommendation 1805 (2007), ‘Blasphemy, religious insults and hate speech against persons on grounds of their religion’. Recommendation 1804 reaffirms a key pronouncement made by the PACE in its Resolution 1510 (2006), namely that freedom of expression, as guaranteed by Article 10 of the ECHR, ‘should not be further restricted to meet increasing sensitivities of certain religious groups’. It builds on that pronouncement, stating, ‘While we have an acknowledged duty to respect others and must discourage gratuitous insults, freedom of expression cannot, needless to say, be restricted out of deference to certain dogmas or the beliefs of a particular religious community’.91 Recommendation 1805 also draws explicitly on Resolution 1510 (2006), as well as on recent relevant work by the Venice Commission of the Council of Europe (see what follows). It endorses the view that: in a democratic society, religious groups must tolerate, as must other groups, critical public statements and debate about their activities, teachings and beliefs, provided that such criticism does not amount to intentional and gratuitous insult or hate speech and does not constitute incitement to disturb the public peace or to violence and discrimination against adherents of a particular religion. Public debate, dialogue and 86 87 88 89 90 91

Ibid. Ibid., para. 7. Ibid., para. 9. Ibid. Ibid., para. 12. PACE, Recommendation 1804, para. 19.

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improved communication skills of religious groups and the media should be used in order to lower sensitivity when it exceeds reasonable levels.92

Its key recommendations to the Council of Europe’s Committee of Ministers include ensuring that national law and practice ‘are reviewed in order to decriminalise blasphemy as an insult to a religion’.93 The Venice Commission, which is the Council of Europe’s advisory body on constitutional matters, has found that ‘the offence of blasphemy should be abolished (which is already the case in most European States) and should not be reintroduced’.94 It reached this finding in an extensive exploration of the relationship between freedom of expression and religion, with a particular focus on blasphemy, religious insult and incitement to religious hatred.

17.5.3 United Nations Bodies At the international level, the general legal framework of the ICCPR – in particular Articles 19 and 20 – is key. The Human Rights Committee’s General Comment 34 provides a detailed, contemporary interpretation of the scope and content of Article 19 (including a brief focus on its relationship with Article 20). According to General Comment 34, blasphemy laws are ordinarily to be regarded as incompatible with Article 19 ICCPR – unless an additional element of hatred is at issue, which would render Article 20 applicable.95 Another attempt to elucidate the meaning and tease out the implications of Article 20 ICCPR came in the context of the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, which was adopted in 2012.96 The Rabat Plan of Action comprises the conclusions

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PACE, Recommendation 1805, para. 5. Ibid., para. 17.2. European Commission for Democracy through Law, Report on the relationship between freedom of expression and freedom of religion: The issue of regulation and prosecution of blasphemy, religious insult and incitement to religious hatred, Study no. 406/2006, Doc. CDLAD(2008)026, 23 October 2008, para. 89(c). For a detailed discussion of the interface between Articles 19 and 20 ICCPR, specifically from the perspective of religious expression, see Jeroen Temperman, Religious Hatred and International Law: The Prohibition of Incitement to Violence or Discrimination (Cambridge: Cambridge University Press, 2015). Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, 5 October 2012. For

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and recommendations of four regional expert workshops on the same topics, which were organised by the Office of the High Commissioner for Human Rights in 2011. Building on – and subscribing to – relevant sections of General Comment 34, it goes on to consider the nature and impact of blasphemy laws at the national level in detail: At the national level, blasphemy laws are counter-productive, since they may result in the de facto censure of all inter-religious/belief and intrareligious/belief dialogue, debate, and also criticism, most of which could be constructive, healthy and needed. In addition, many of these blasphemy laws afford different levels of protection to different religions and have often proved to be applied in a discriminatory manner. There are numerous examples of persecution of religious minorities or dissenters, but also of atheists and non-theists, as a result of legislation on religious offences or overzealous application of various laws that use a neutral language. Moreover, the right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or a belief that is free from criticism or ridicule.97

This excerpt highlights the potential of blasphemy and other laws prohibiting or punishing religious insult for misuse or abuse. As we have already seen, this concern is shared by various bodies of the Council of Europe. The Rabat Plan of Action also makes a concrete recommendation in this regard: ‘States that have blasphemy laws should repeal these as such laws have a stifling impact on the enjoyment of freedom of religion or belief and healthy dialogue and debate about religion’.98

17.6 Conclusions The title of this chapter sets the tone for the entire piece. The offence of blasphemy in Ireland is living on borrowed time, and it is widely expected that a constitutional referendum with the aim of amending the relevant provision in the Constitution will be held soon. There is a groundswell of criticism of the offence, both nationally and internationally, in its current form. In Ireland, there have been repeated calls from official constitutional and law-reform bodies/initiatives, as well as from a wider community of experts and commentators, to remove the offence from

97 98

commentary, see Sejal Parmar, ‘The Rabat Plan of Action: A global blueprint for combating “hate speech”’ (2014) 1 European Human Rights Law Review 21–31. Ibid., para. 19. Ibid., p. 5.

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the Constitution. At the European and international levels, contemporary interpretations of the rights to freedom of expression and freedom of religion favour the abolition of national blasphemy laws. Over the years, the offence of blasphemy in Ireland has been subjected to critical scrutiny in various European and international fora. All of this mutually complementary criticism has galvanized political opinion, with the result that the current coalition government in Ireland has uncontroversially included a commitment to hold a constitutional referendum in its Programme for Government. The criticism that has been driving calls for constitutional amendment tends to focus on the lack of clarity about the purpose, content and scope of the offence and its anachronistic character in contemporary Irish society, as well as its redundancy in light of other statutes that counter some of the purported aims of the offence. The case for constitutional amendment is compelling. Whenever the envisaged constitutional referendum is held, the obituary for the offence of blasphemy will be ready.

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18 Religion and Hate Speech in Canada The Difficulty in Separating Attacks on Beliefs from Attacks on Believers

Richard   Moon

18.1

Introduction: Blasphemy and Hate Speech Laws in Canada 18.1.1 Blasphemy Law

The Criminal Code of Canada prohibits the publication of ‘blasphemous libel’.1 The ban was included in the first version of the Code enacted by the government of Canada in 1892, shortly after Canadian Confederation. However, no cases have been brought under this provision for almost eighty years, and it is generally assumed that if the ban were to be invoked today, it would not survive constitutional review.2 The Criminal Code prohibition on blasphemy does not extend to expression of ‘an opinion on a religious subject’ that is made ‘in good faith and in decent language’.3 This reflects the changes made to the English common law of blasphemy in the nineteenth century, when the protection of religious feelings and sensibilities became the focus of the ban. While blasphemy law in the West had previously banned insults directed at God, as well as the public criticism of Christianity or the repudiation of its principal tenets, the law came to be interpreted more narrowly as a ban on intemperate attacks on the Christian faith. The purpose of the ban was no longer to defend the Christian foundations of the legal/social order but was instead to protect the religious sensibilities of community

1

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Criminal Code, R.S. 1985, c.C-46, s. 296. An individual found to have breached the ban is ‘liable to imprisonment for a term not exceeding two years’. Jeremy Patrick, ‘Not dead, just sleeping: Canada’s prohibition on blasphemous libel as a case in obsolete legislation’ (2008) 41 UBC Law Rev. 193 at para. 1. Criminal Code, R.S. 1985, c.C-46, s. 296.

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members and to prevent public disorder. An individual would not be prevented from criticising the established religion as long as her criticism was civil or respectful in tone.4 Between 1901 and 1936 there were only five reported prosecutions under the Criminal Code ban, with ‘[n]one before and none since’.5 Four of these cases resulted in conviction. In each of these cases the attack was directed at the doctrine and clergy of the Roman Catholic church or one of the Protestant churches. It might be thought then that the Canadian courts viewed the purpose of the blasphemy ban differently than did the English courts – that its purpose was not simply to protect the ‘established’ or dominant faith but rather to protect all religious groups from insult or offence. More likely though, the protection of both the Protestant and Catholic belief systems reflected the reality that Protestantism and Catholicism were once the dominant or de facto ‘established’ religions in different parts of Canada – Catholicism in Quebec and Protestantism in English Canada.6 The law then may have been used, as it was in England, to protect the dominant religion in a particular province or region from attack in order to preserve public order or to defend public morality. Jeremy Patrick, however, argues that ‘unlike the English common law, the Canadian statute on its face is not explicitly limited to protecting Christianity: Jews, Muslims, and others who feel aggrieved by a publication have at least a plausible argument for invoking the statute in their defence’.7 Certainly, any principled reading of the ban would require its extension to intemperate attacks on non-Christian religious belief systems. But this, of course, assumes that the law might survive constitutional scrutiny and have some form of contemporary life.

18.1.2 Hate Speech Law Hate speech in Canada is currently restricted by both federal and provincial laws. The Criminal Code of Canada prohibits the advocacy or promotion of genocide, the incitement of hatred against an identifiable group ‘where such incitement is likely to lead to a breach of the peace’ and the 4

5 6 7

Lord Chief Justice Coleridge held that ‘if the decencies of controversy are observed, even the fundamentals of religion may be attacked without the writer being guilty of blasphemy’: R. v. Ramsay & Foote (1883) 15 Cox Crim. Cases 231 (QB) at 238. This view of the law was affirmed by the House of Lords in Bowman v. Secular Society, [1917] AC 406 (HL). Patrick, ‘Canada’s prohibition on blasphemous libel’, at para. 55. Richard Moon, Freedom of Conscience and Religion (Toronto: Irwin Law, 2014), at p. 4. Patrick, ‘Canada’s prohibition on blasphemous libel’, at para. 34.

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‘wilful promotion of hatred’ against such a group.8 Under the Criminal Code an ‘identifiable group’ means ‘any section of the public identified by colour, race, religion, ethnic origin or sexual orientation’. Anyone who is found by a court to have wilfully promoted hatred may be imprisoned for up to two years. Hate speech is also restricted by human rights laws. Until its repeal in 2014, Section 13 of the Canada Human Rights Act (CHRA) prohibited Internet communication that is ‘likely to expose the members of an identifiable group to hatred or contempt’.9 The human rights codes of British Columbia, Alberta, Saskatchewan and the Northwest Territories include a provision similar to section 13 of the CHRA that prohibits hate speech on signs or in publications.10 In contrast to the criminal ban on hate speech, an individual may be found to have breached the human rights code ban even though she did not intend to expose others to hatred or realize that her communication might have this effect. The ban focuses on the effect of the act and not the intention behind it. The ordinary remedy against an individual who is found to have breached the ban is an order that he cease his discriminatory practice.

18.1.3

Religion as the Target of Hate Speech

The leading Canadian hate speech cases involve anti-Semitic speech. In R v.  Keegstra, for example, a high school teacher in the small town of Eckville, Alberta, taught his students about an all-encompassing conspiracy by Jews to undermine Christianity and control the world.11 Keegstra told his students over a ten-year period that Jews were ‘treacherous’, ‘subversive’, ‘sadistic’, ‘power-hungry’ and ‘child killers’. He was charged and ultimately convicted under section 319(2) of the Criminal Code with ‘wilfully promoting hatred’ against the members of an identifiable group. In 8

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Criminal Code, R.S. 1985, c.C-46, s.  318–319. An individual will not be found to have promoted hatred ‘if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject’. Canadian Human Rights Act, R.S., 1985, c.H-6. 3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted. Saskatchewan Human Rights Code, R.S.S., 1979, c.  S-24.1, s.14; Human Rights, Citizenship and Multiculturalism Act, R.S.A., 2000, c. H-14, s.2 (Alberta); Human Rights Code, R.S.B.C., 1996, c. 210, s.7 (British Columbia); Consolidation of Human Rights Act, R.S.N.W.T., 2002, c. 18, s.13 (Northwest Territories). R. v. Keegstra, [1990] 3 SCR 697.

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R. v. Keegstra the Court held that section 319(2) restricted the freedomof-expression right (section 2(b) under the Canadian Charter of Rights and Freedoms (the Charter) but that the restriction was justified under section 1, the Charter’s limitation provision, because its purpose – to prevent the spread of hatred in the community – was ‘substantial and compelling’ and because it limited only a narrow category of extreme speech that ‘strays some distance from the spirit of section 2(b)’. In Canada v.  Taylor, the Western Guard Party and its leader, John Ross Taylor, operated a telephone hate line.12 Members of the public who dialled a telephone number that had been publicised by Taylor and his party would hear a short pre-recorded hate message that made a variety of false claims about Jews. Taylor and his party were found by the Canadian Human Rights Tribunal to have engaged in telephonic communication ‘that is likely to expose a person or persons to hatred or contempt’ because of their membership in an identifiable group contrary to section 13 of the Canadian Human Rights Act (which was repealed in 2014). The Supreme Court of Canada in Canada v. Taylor held that the hate speech ban in the CHRA did not breach the Charter of Rights. In the more recent decision of Whatcott v.  Saskatchewan Human Rights Commission, the Supreme Court similarly found that the hate speech ban in the Saskatchewan Human Rights Code was compatible with the Charter.13 In R. v. Zundel the author and publisher of numerous Holocaust denial tracts was charged under section 181 of the Criminal Code – which prohibited the publication of news the publisher knew to be false and which was likely to cause injury or mischief to the public interest.14 Zundel was convicted at trial. However, the Supreme Court of Canada, on appeal, held that the law under which he had been charged, section 181, was too vague to satisfy constitutional standards. His conviction was then set aside. Zundel, however, was later found to have breached section 13 of the CHRA. The Human Rights Tribunal found that a Holocaust denial website, which was operated under Zundel’s direction, was likely to expose Jews to hatred and contempt.15 In Ross v.  New Brunswick School District No. 15 (1996) the Supreme Court of Canada held that a public school teacher, who expressed racist and anti-Semitic views in public settings away from the classroom and 12 13 14 15

Canada v. Taylor, [1990] 3 SCR 892. Whatcott v. Saskatchewan Human Rights Commission, [2013] 1 SCR 467. R v Zundel, [1992] 2 S.C.R. 731. Citron v. Zundel, TD 1/02 (2002).

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school, may be disqualified from serving as a classroom teacher.16 The Court upheld the decision of an adjudicator, appointed under the New Brunswick Human Rights Code, who ordered the school board to remove Mr Ross from his teaching position. Mr. Ross’s expression of racist views at public meetings, in the local media and in published pamphlets had ‘poisoned’ the learning environment in the school. While Christians in Canada have sometimes been subjected to harsh criticism, there are no significant modern cases in Canada dealing with attacks on Christians or Christianity. In the last several years, though, there have been a number of high-profile cases in Canada involving antiMuslim speech or speech that attacks or ridicules Islam. The best-known of these cases is the Human Rights Code complaint against Maclean’s magazine and Mark Steyn. Maclean’s published an excerpt from Steyn’s book, America Alone, in which he argues that Muslims will soon become the majority community in many European countries (through higher birth rates and immigration), that their goal is to impose Shari’a law, and that many Muslims are prepared to use violence to achieve this goal.17 A number of European authors have also sought to raise alarm about what is sometimes referred to as the ‘Muslim Tide’ or the rise of ‘Eurabia’.18 Complaints about Steyn’s piece in Maclean’s were made under the British Columbia Human Rights Code and the Canada Human Rights Act. The complaint against Maclean’s was dismissed by the Canadian Human Rights Commission and did not go to the Canadian Human Rights Tribunal for adjudication. In British Columbia the Human Rights Tribunal dismissed the complaint following a hearing (in Section 18.2 the background to the case and the tribunal’s ruling will be discussed in more detail).19 Another well-publicized Canadian case was the complaint made to the Alberta Human Rights Commission against a right-wing publication, the Western Standard, following its publication of the ‘Danish cartoons’. This complaint was also dismissed prior to adjudication. The Commission investigated the complaint, as required by the Code, but decided that the complaint was unlikely to succeed at adjudication. 16 17

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Ross v. New Brunswick School District No. 15, [1996] 1 SCR 285. Mark Steyn, ‘The future belongs to Islam’, Maclean’s Magazine, 23 October 2006; Mark Steyn, America Alone:  The End of the World as We Know It (Washington, DC:  Regnery Publishing, 2006). See, for example, Bruce Bawer, While Europe Slept (New  York:  Anchor, 2007) and Christopher Caldwell, Reflections on the Revolution in Europe: Immigration, Islam and the West (New York: Anchor, 2009). Elmasry and Habib v. Rogers’ Publishing and MacQueen (No. 4), 2008 BCHRT 378.

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While neither of these complaints concerning anti-Muslim speech were successful, in R.  v.  Harding a more vitriolic attack on Muslims resulted in conviction under the Criminal Code hate speech provision. Mr Harding, a Christian pastor, had distributed several flyers in which he asserted that Muslims are violent and hateful towards Christians, Jews, and other ‘non-believers’, are conspiring to take over Canada and are ‘wolves in sheep’s clothing’ who must be stopped.20 A court found that this amounted to the wilful promotion of hatred contrary to section 319(2) of the Criminal Code.

18.1.4

The Challenge of Religious Hate Speech Cases

The ‘religious’ hate speech cases are difficult or contentious for the same reason that all hate speech cases are difficult. There is significant disagreement in the community about whether or to what extent the restriction of hate speech can be reconciled with the public commitment to freedom of expression. There is, however, another reason hate speech cases involving religion are so difficult, which has to do with our conception of religious adherence or membership. Religion is viewed by the courts through two lenses. While religious commitment or membership is sometimes viewed as an individual choice or judgment that is open to critique and subject to revision, it is also, or sometimes instead, viewed as a cultural identity that involves rooted values and shared practices.21 Religious belief lies at the core of the individual’s worldview. It orients the individual in the social world, shapes her perception of the natural order and provides a moral framework for her actions. Moreover, religious belief ties the individual to a community of believers and is often the central or defining association in her life. The individual believer participates in a shared system of practices and values that may in some cases be described as ‘a way of life’. The idea of religion as a cultural identity lies behind the requirement that the state remain neutral in religious matters – a requirement that receives formal support in most liberal democracies and is understood to flow from the commitment to religious freedom.22 If religion is an aspect

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R. v. Harding (1998) O.J. No. 2603, affirmed in Ontario Court of Appeal, 160 CCC (3d) 225; 48 C.R. (5th) 1. Moon, Freedom of Conscience and Religion; and Richard Moon, ‘Freedom of religion under the Charter of Rights: The limits of state neutrality’ (2012) UBC Law Rev. 497. See, for example, Mouvement laique v. Saguenay (City), 2015 SCC 16.

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of the individual’s identity, then when the state treats his religious practices or beliefs as less important or less true than the practices or beliefs of others, or when it marginalizes his religious community in some way, it is not simply rejecting the individual’s views and values, it is denying his equal worth and that of each member of the group.23 In hate speech regulation a distinction is generally made between attacks on a religious group, which if sufficiently hateful or extreme may amount to hate speech, and attacks on the group’s beliefs or practices, which must be permitted, even when they are harsh and intemperate.24 The criticism of an individual’s or group’s views and opinions is understood to fall within the core of the protection granted by freedom of expression. A  ban on hate speech then should apply only to assertions that the members of the group are less worthy or less human than others or that they necessarily share certain undesirable traits – that they are dangerous or dishonest or violent and should be treated accordingly. The traits or characteristics falsely attributed to the members of the group may be presented as biological or cultural – as fixed or virtually so. Attacks on belief, though, are a different matter. Religious beliefs, including beliefs about God or about human dignity and welfare, are viewed as judgments about truth and right that must be open to debate and criticism, even that which is harsh and mocking. As Iain Leigh observes, religion, as a belief system, ‘do[es] not have rights because ideas do not have rights’.25 Individuals and groups are free to advance their religious views in the public sphere – to engage in proselytization activities – but they must also be prepared to receive criticism of those views. There are, however, two difficulties with this distinction between attacks on belief and attacks on believers that stem from our complex conception of religious adherence as both personal judgment and cultural identity. The first has to do with the relationship between the individual and the religious tradition with which she identifies or associates. Hate speech,

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In Mouvement laique v. Saguenay (City), the Supreme Court of Canada said that the state should remain neutral in matters of religion and should not support or favour the practices of one religion over those of another – or religious views over non-religious views and vice versa. European Commission for Democracy through Law (Venice Commission), Report:  On the Relationship between Freedom of Expression and Freedom of Religion: The Issue of the Regulation and Prosecution of Blasphemy, Religious Insult and Incitement to Religious Hatred, 23 October 2008, para. 49. Ian Leigh, ‘Damned if they do, damned if they don’t:  The European Court of Human Rights and the protection of religion from attack’ (2011) 17 Res Publica 55, at 68.

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when directed at a religious group, often attributes a dangerous or undesirable belief to the members of the group, presenting the belief as an essential part of the religious tradition. The implication is that the members of a group that holds such a belief must themselves be dangerous or undesirable. In attributing a belief that may be held (if at all) by only a fringe element of the group to all members of the group – to all those who identify with the belief system or tradition – the speech elides the space for judgment and disagreement within the tradition and ignores the diversity of opinion and attachment within the religious community. In effect it ‘racialises’ the group (or essentializes its belief system), treating the belief as an aspect of the identity or character of each of the group’s members. An attack on a particular (attributed) belief becomes an attack on the members of the religious group – and may amount to hate speech if the falsely attributed belief is sufficiently extreme. The second difficulty with this distinction between attacks on belief and attacks on the believer is that, because religious beliefs are deeply held, an attack on the individual’s beliefs (on the beliefs she actually holds) may be experienced by the believer profoundly and personally. Recognition of the deep connection between believer and belief (or between adherent and practice) has led some to argue that religious practices or sacred objects should be insulated from harsh forms of criticism or ‘gratuitous’ insult.26

18.2 18.2.1

Hate Speech and Religious Membership Hate Speech and the Attribution of Belief

In its most familiar form, hate speech makes the claim that the members of a racial or other identifiable group are less human or less worthy than others or that they share a dangerous or undesirable trait. Hate speech directed against a religious group often takes this standard form, falsely attributing traits such as dishonesty or cruelty to the group’s members – traits that are presented as genetically based or culturally determined, particularly when group membership is regarded as a matter of inheritance. Anti-Semitism, at least in the modern era, has generally taken this form, involving claims about the undesirable racial characteristics of Jews. 26

European Court of Human Rights, Otto-Preminger-Institut v.  Austria, Application no. 13470/87, judgment of 20 September 1994.

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However, the attribution of undesirable traits to the members of a religious group is often less direct than this. The speaker may associate the members of a group not with an undesirable biological trait but instead with a dangerous belief – a belief that may (or may not) have some grounding in the group’s scripture or may (or may not) be held by a fringe element of the religious tradition. Hate speech, when directed at a group, such as Muslims, attributes an undesirable or dangerous belief to the group as a whole and treats the belief as an aspect of each believer’s worldview. A belief (e.g., that violence is justified to advance the faith), which may be held by a fringe element of the group, is attributed to all the group’s members – to anyone who identifies as a member of the group or associates himself with the tradition. While the focus of criticism or attack is on a particular ‘belief ’, the clear implication is that the members of a religious tradition that includes such a belief are dangerous or undesirable and deserving of contempt or hatred. The objectionable belief is presented as an essential and rooted part of group membership. In this way, the belief serves the same role as a falsely attributed racial characteristic.27 To be a member of the group is to hold such a belief. It is to think and act in a particular way. If an individual is committed, along with others, to objectionable views, she may be criticised for these views. It might also be said that an individual (or group of individuals) who holds such views is morally or rationally deficient. The beliefs we hold reveal something about us, either because we have chosen them or because they define us in some way. But it is also true that within any religious community or tradition there is an enormous diversity of belief and practice. Disagreement within a religious community about the correct reading of scripture or the proper form of worship will often be deep and may sometimes be severe. An individual may understand herself as a religious group member or may identify with a religious tradition without sharing exactly or even approximately the same beliefs as other members – and indeed it may be difficult to identify a shared core of community belief except in very abstract terms. The followers of a religious tradition may interpret scripture or apply the practices of the tradition in different ways and yet still understand themselves to be members of that tradition – as Christians or Jews or Buddhists. They may identify with a religious tradition or belief system in different ways, with different levels of commitment and degrees of involvement. This is a reminder of the way in 27

Alana Lentin and Gavan Titley, The Crisis of Multiculturalism: Racism in a Neoliberal Age (Zed Books, 2011), at p.  5:  ‘culture can be reified and essentialized to the point where it becomes the fundamental equivalent of race’.

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which religion is a matter of both cultural identity and personal commitment – that it is a system or tradition that the individual member identifies with and understands in a particular or personal way. Elision of the space between the individual adherent and the larger religious tradition or community may occur in one of two ways, each of which is illustrated in recent anti-Muslim/Islam writing. The first involves a simple and direct claim about what Muslims believe and how they behave. A common claim is that ‘they’ (Muslims) support (or are sympathetic to) the use of violence to advance their faith. Even when it is acknowledged that perhaps not all those who describe themselves as Muslim are committed to the use of violence, the suggestion is that non-violent or ‘moderate’ Muslims are prepared to acquiesce in the use of violence by others in the community or that ‘moderate’ Muslims, who are opposed to violence, are exceptional. The second way in which the distinction between adherent and tradition is erased involves a claim about the core tenets of Islam. The claim is that a simple and true reading of the Quran reveals that violence is a central component of Islam. It follows then that a real Muslim, a true believer, must be committed to the use of violence to advance the faith. Those who call themselves Muslims but do not support the use of violence are, by associating themselves with the Islamic tradition, giving legitimacy to the tradition’s promotion of violence. From either of these perspectives – Muslims as violent or Islam as a violent religion – the members of the group (those who identify as Muslim or as adherents of Islam) are seen as holding or supporting dangerous beliefs and practices.

18.2.2 The Muslim Tide In the last few decades, a growing body of writing – books, articles and blogs – has contributed to the spread in Europe and elsewhere in the West of fear and anger towards Muslims.28 Much of this writing has sought to raise the alarm about what it sees as the Muslim take-over of Europe, which is said to be occurring through high levels of immigration from Muslim countries and higher birth rates in Muslim families that have settled in the West.29 Muslims, it is claimed, wish to impose Shari’a law 28

29

See, for example, Bawer, While Europe Slept and Caldwell, Reflections on the Revolution in Europe. Others have shown the flaws in these claims. See, for example, Doug Saunders, The Myth of the Muslim Tide (Knopf, 2012).

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on the countries in which they reside, including European countries, and that they are prepared to use a variety of means to achieve this end, including violence. Islamic or Muslim values are presented as fundamentally incompatible with the values of the West, leading to a ‘clash of civilizations’. Because Muslim culture is rooted, static and homogeneous, it will not be transformed or moderated by exposure to Western values. Hardwon rights and freedoms are said to be under threat from a group that adheres blindly to a regressive religious belief system.30 It is claimed that Muslims are opposed to gender equality, sexual orientation equality, free speech, religious liberty and, more generally, secular democracy. Just as Muslims are viewed as a more or less homogenous group that is opposed to liberal democratic values, ‘native’ Europeans (and ‘old-stock’ Canadians perhaps) are presented as uniformly committed to these values. The process of distinguishing Muslims from Europeans or Muslim values from the values of the West (establishing a clash of civilizations) also requires the elision of difference within mainstream culture, which is described as committed to gender equality, freedom of expression and secularism, with no mention of the significant variation in opinion on these issues. Anxiety about European identity, based on demographic changes, globalisation, consumerism and loss of faith, is expressed then in both the creation of the Muslim ‘other’ and the invention of the European as liberal, democratic, and egalitarian. The Muslim Tide writers accuse the ‘elites’ of European society of complicity in the Muslim takeover of Europe.31 They argue that the elite’s support for multiculturalism and open immigration has exposed Europe to the threat of Muslim dominance. Some of these writers have a grudging admiration for the moral clarity and resolve of the Muslim community and a contempt for the weakness of ‘native’ Europeans who have been coddled for too long by the welfare state. The anti-Muslim position then is often tied to a neo-Conservative view about the collapse of the West under the weight of the welfare state and/or because it has been enfeebled by a culture that lacks moral foundations. Claims about the Muslim Tide or the rise of Eurabia are often expressed in a visceral way – in a form we associate with hate speech. However,

30

31

Steyn, America Alone, at p. xxv:  ‘In seeking to stifle the arguments of America Alone, the Canadian Islamic Congress is making my point more eloquently than I ever could – that a significant strain of Islam is incompatible with the rough and tumble of a free society’. Steyn, America Alone, at p. xxv, referring to ‘their dopey enablers’ and ‘western appeasers’ (p. xvi).

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much of the Muslim Tide writing is more dispassionate and at least superficially rational in its presentation. It sometimes even takes the form of journalistic reporting or academic argument.

18.2.3

Mark Steyn and Muslim Violence

Mark Steyn, a Canadian contributor to this literature, asserts that we are at ‘the dawn of a new Dark Ages’ in which much of Europe will be ‘reprimitivized’.32 The goal of the ‘Islamists’, according to Steyn, is ‘the reestablishment of a Muslim caliphate, living under sharia, that extends to Europe’.33 The Western world, he tells us, ‘will not survive this century’; it may not even endure ‘beyond our lifetimes’.34 He sees an unbridgeable divide between Muslim culture and the culture of the West. Muslims simply cannot be assimilated into liberal-democratic society. Steyn regards Islam as a ‘political project’, an ‘ideology’, and as different in that respect from other religions.35 His critique, though, focuses on Muslims, on what they say and do in the civic sphere, rather than on the religious tenets or spiritual practices of Islam. He rejects any suggestion that Muslims are a racial group whose members share certain biological traits. He complains about what he describes as ‘the fetishization of reductive notions of race which makes us so ill-equipped to understand what is really going on’.36 If Muslims are not a race, then in Steyn’s mind, a critique of their beliefs and actions – of their ‘culture’ – cannot be described as racist: ‘To claim [Islam] is a “race” is so breathtakingly stupid as to give the game way – and to confirm that “Racist!” is now no more than the cry of a western liberal who can’t stand his illusions being disturbed’.37 But even if Islamic belief or Muslim culture is not an inherited or biological trait, it is, for Steyn, something almost as deep and rooted in the life of a Muslim. Islam, he observes, ‘forms the primal, core identity of most of its adherents in the Middle East, South Asia, and elsewhere’.38 It is ‘a powerful identity that leaps frontiers and continents’.39 Steyn tells us

32 33 34 35 36 37 38 39

Steyn, America Alone, p. xxiv. Steyn, America Alone, p. 38. Steyn, America Alone, p. xxiv. Steyn, America Alone, at p. 62. Steyn, America Alone, at p. xx. Steyn, America Alone, at p. xxi. Steyn, America Alone, at p. xxxv. Steyn, America Alone, at p. xxxviii.

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that Islam is ‘not something you leave behind in the old country’.40 He seeks to avoid the charge of racism by distinguishing between race, which is immutable, and culture, which is changeable, and insisting that has critique is focused on the latter; but he then proceeds to describe Muslim culture as deeply rooted, static and generic. In Steyn’s account, then, culture becomes the equivalent of race. As George M. Frederickson observes, ‘If we think of culture as historically constructed, fluid, variable in time and space, and adaptable to changing circumstances, it is a concept antithetical to that of race. But culture can be reified and essentialized to the point where it becomes the functional equivalent of race’.41 When complaining about the European media’s unwillingness to identify Muslims as the perpetrators of violence, Steyn tells the following story: In June 2006, a 54-year-old Flemish train conductor called Guido Demoor got on the Number 23 bus in Antwerp to go to work. Six – what’s that word again? – ‘youths’ boarded the bus and commenced intimidating the other riders. . . . Mr. Demoor asked the lads to cut it out and so they turned on him, thumping and kicking him. [N]one [of the other passengers] intervened to help the man under attack . . . leaving Mr. Demoor to be beaten to death. Three ‘youths’ were arrested, and proved to be – quelle surprise! – of Moroccan origin.42

It seems unlikely that the young men involved in this incident were devout Muslims and even less likely that their assault on the bus driver was intended to advance the cause of Islam in Europe. They may have been raised in Muslim households, or their parents or grandparents may have been adherents of Islam, although almost certainly followers of a culturally particular form of Islam. This, it appears, was another tragic instance of the violent behaviour in which alienated young men too often engage. Religion appears to have played no role in their actions. Indeed, Steyn describes the men as Moroccan rather than Muslim, but his story is linked to a set of claims about Muslims and violence. In this way, he

40

41

42

Steyn, America Alone, at p. xxxviii. He continues, claiming that for many Muslims in the West, Islam has become ‘their principal expression’ leading to ‘a pan-Islamic identity that transcends borders’. George M. Frederickson, Racism:  A  Short History (Princeton, NJ:  Princeton University Press, 2002), at p.  7. This is sometimes referred to as ‘cultural racism’ or the ‘new racism’. Lentin and Titley, The Crisis of Multiculturalism, at p. 5: ‘by effecting an ahistorical divide between ideas of (biological) “race” and “culture”, it has become unacceptable to essentialize and scapegoat people on the basis of pseudo-science, but a refreshing and necessary form of truth-telling to do so on the basis of equally spurious understandings of culture’. Steyn, America Alone, at pp. 34–5.

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encourages the reader to make the short leap and equate Moroccan with Muslim – and to see the violent act of these young men as a manifestation of the violence of the larger Muslim culture. Steyn seems to attach the label ‘Muslim’ to anyone who comes from (or more often whose parents or grandparents come from) a country in which the dominant religion is Islam. At important points in his attack on Muslim immigration, Steyn seeks to avoid the charge of racism or hate speech by acknowledging that not all Muslims may be committed to the use of violence. He offers what he calls ‘the obligatory “of courses”’, seeming to acknowledge (with a nudge and a wink to those who know what is expected in our ‘politically correct’ society) the diversity of opinion within the religious community. Not all Muslims are inclined to violence, Steyn concedes; but then in baroque style he immediately inserts a counter-point – qualifying the caveat or generalising again about Muslims and the place of violence in their culture: Time for the obligatory ‘of courses’:  Of course, not all Muslims are terrorists – though enough are hot for jihad to provide an impressive support network of mosques from Vienna to Stockholm to Toronto to Seattle. Of course, not all Muslims support terrorists – though enough of them share their basic objectives (the wish to live under Islamic law in Europe and North America) to function wittingly or otherwise as the ‘good cop’ end of the Islamic good cop/bad cop routine. But, at the very minimum, this fast moving demographic transformation provides a huge comfort zone for the jihad to move around in.43

This caveat allows him to say that he is not making a claim about all Muslims – but only about those members of the group who support violence. Yet framed in this way, as a compulsory acknowledgement, Steyn’s caveat is about as comforting as the statement that ‘not every Jew is dishonest’ or ‘some gay men are not paedophiles’. It is offered as the exception that supports the general rule about the group. He formally concedes that not everyone who identifies with the group holds such a belief while suggesting that it is the prevailing or established view in the group. This is a familiar strategy. When the speaker – in this case Steyn – is pressed (possibly even accused of engaging in hate speech), he pulls back and insists that he is only making a claim about those members of the group who hold this belief while insisting or suggesting that their number 43

Steyn, America Alone, at p. 33.

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is considerable. Even if the number of violent ‘jihadists’ remains unspecified in Steyn’s account, the association of Muslims with violence is made, and it becomes easy to present Muslim moderates as exceptional. When the issue is how many Muslims support violence, then all are suspect and appropriately subject to scrutiny and perhaps even exclusion – since ‘we just can’t be sure’.44 If the Islamic faith or Muslim culture is the common thread that ties these violent actors, then there must be something about the culture or religion that accounts for the prevalence of violence among Muslims – even if not every Muslim is violent. At other times when Steyn discusses Muslim support for violence and the growth of the Muslim population in the West, Muslims (despite the group’s remarkable diversity) are presented, if not as a homogeneous group, then at least as united in their openness to violence. Steyn suggests that the diversity among Muslims is simply in the degree of their commitment to or sympathy towards violence as an instrument to achieve the ‘Islamification’ of the West. He attaches the label of violence to Muslims or to Islam not simply because he thinks that ‘moderate’ (non-violent) Muslims are exceptional but because in his view these ‘moderates’ are complicit in the violent actions of their co-religionists. He rejects what he refers to as the ‘black’ and ‘white’ account that draws a clear distinction between ‘the bomber’ and everyone else: [T]he terrorist bent on devastation and destruction prowls the street, while around him are a significant number of people urging him on, and around them a larger group of cock-sure young male co-religionists gleefully celebrating mass murder, and around them a much larger group of ‘moderates’ who stand silent at the acts committed in their name, and around them a mesh of religious and community leaders openly inciting treason against the state, and around them another mesh of religious and community leaders who serve as apologists for the inciters, and around them a network of professional identity-group grievance-mongers adamant that they’re the real victims.45

A ‘moderate Muslim’, says Steyn, may be ‘a Muslim who wants stoning for adultery to be introduced in Liverpool, but he’s “moderate” because he can’t be bothered flying a plane into a skyscraper to get it’.46 In other 44

45 46

Donald Trump, quoted in ‘If Donald Trump were campaigning in Canada could he be charged with hate speech?’, National Post, 9 December 2015. Steyn, America Alone, at p. 196. Steyn, America Alone, at p. 77. He continues (at p. 77): ‘Huge numbers of Muslims – many of them British subjects born and bred – see their fellow Britons blown apart on trains and buses and are willing to rationalize the actions of mass murderers’.

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words, he is moderate, according to Steyn, not because he is opposed to terrorism but simply because he is unwilling to engage in it himself. Steyn shows some skill at moving between, on the one hand, an assumption that Islam is a cultural identity, fixed and rooted, and, on the other hand, a recognition that religion is a personal commitment or judgment and that those who describe themselves as Muslims may have different views about what their faith requires or what is spiritually true and right. In this way, he is able to blur the line between criticism of a particular belief (that may be held by some members of a religious tradition) and an attack on the entire religious group. The complex character of religious adherence as cultural identity and personal judgment allows him to associate all Muslims with violence – as almost a character trait – while superficially acknowledging that some Muslim’s may choose to reject violence.

18.2.4

The Dismissal of the Complaint against Steyn

A complaint was made against Steyn and Maclean’s magazine under section 7(1)(b) of the British Columbia Human Rights Code, which prohibits the publication or display of any notice, sign, statement or other representation that ‘is likely to expose a person or a group or class of persons to hatred or contempt’. Following a hearing before the British Columbia Human Rights Tribunal, the complaint against Steyn was dismissed. Steyn was able to respond that he was making a claim not about all Muslims but only about a ‘core’ group of Muslims who are committed to the use of violence to advance their religion. He could acknowledge formally the distinction between the individual and the religious tradition or community with which they identify (and the space for disagreement or contest within the religious tradition) at important moments in his argument while effectively communicating the idea that to be a Muslim is to be committed to (or supportive of) the use of violence. The hate speech complaint against Steyn was also dismissed because the tone of his article did not appear to be hateful or vitriolic.47 The British Columbia Human Rights Tribunal found that the article did not rise ‘to the level of detestation, calumny and vilification necessary to breach . . . the Code’.48 It may have generated fear, but, said the Tribunal, ‘fear is not synonymous with hatred and contempt’.49 47 48 49

Rogers, para. 151. Rogers, para. 156. Rogers, para. 154.

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While the angry or vitriolic tone of speech may discourage careful or critical judgment of its message by an audience (and so is a relevant consideration in determining whether the speech may contribute to the spread of hatred), too great an emphasis on tone or style may encourage the mistaken impression that hate speech laws are intended to protect individuals from offence or hurt feelings rather than to prevent the spread of dangerous misinformation about marginalised groups in the larger community. The central question in these cases should be whether the false claims made about Muslims are so extreme that they are likely to generate hateful views and encourage extreme action. Despite his glib and sometimes humorous style, Steyn’s purpose seems to be to alert his ‘Western’ audience to the threat of Islam or Muslims. The complaint against Steyn was also dismissed because, according to the British Columbia Human Rights Tribunal, his claims contributed to public debate: ‘[R]ead in its context, the Article is essentially an expression of opinion on political issues which, in light of recent historical events involving extremist Muslims and the problems facing the vast majority of the Muslim community that does not support extremism, are legitimate subjects for public discussion’.50 While he may have engaged in ‘exaggeration’, said the tribunal, this was intended to rally public opinion.51 Yet in his writing Steyn does not specifically call for political action; indeed he seems to say that political action is futile, at least in the current climate. Because the view that Muslims are willing to use violence to advance the faith is no longer a fringe view, Steyn’s claims cannot easily be censored out of public discourse. One of the ironies of hate speech law is that it may only be effective in dealing with speech that occurs at the margins of public discourse – that lies outside the scope of mainstream opinion. The purpose of a ban on hate speech cannot be to eradicate bigotry and discrimination in the community but must instead be more narrowly defined – to prevent the encouragement of ‘isolated’ acts of violence against the members of a targeted group and perhaps also to stop the extreme from becoming mainstream. It may be then that hate speech laws will be unable to address anti-Muslim speech as it becomes more commonplace. When Islamophobic speech is more widely expressed not only will it be seen as directed towards political action rather than the incitement of private violence, it will be less recognizable as extreme, as calling for radical or 50

51

Rogers, para. 150. As noted earlier, the ‘article’ was an excerpt from Steyn’s book, America Alone. Rogers, para. 156.

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violent action. Even if the writings of Steyn can be read as justifying violence (state or private), his claims are made in public view, rather than at the margins of discourse, and so are open to debate and refutation. As a practical matter there may be no alternative but to address such claims. The claim against Steyn may also have been dismissed because there was no clear link between his expression and the spread of hatred or the occurrence of violence against Muslims. Because the view that Muslims (or at least many of them) are dangerous is widely held and expressed, we are less likely to link violent action against Muslims to a particular instance or form of speech. Most of those who read the words of Steyn will not engage in violence against Muslims. And so when an individual, a so-called ‘lone wolf ’ such as Anders Breivik, commits an act of violence after absorbing the Muslim Tide message, his action will be attributed simply to his moral deficiency or mental illness. In contrast, the Canadian public seems less inclined to view an act of violence as ‘isolated’ or as the manifestation of mental illness when it is committed by an individual who has absorbed the message of terrorist propaganda. The two men, who in separate incidents a few years ago murdered Canadian soldiers (in a shopping mall parking lot in a small Quebec town and at the cenotaph in Ottawa), were described not as ‘lone wolves’ but as violent terrorists, agents of radical Islam acting on the direction of extremists from abroad or adhering to a violent ideology.52 They were viewed this way despite their limited knowledge of Islam and lack of connection to any radical organization and their personal history of petty crime, drug abuse and mental illness. Speech that attributes dangerous or undesirable traits to a group that has been the target of a campaign of violence is more likely to be seen as hate speech – as causing or creating a risk of significant harm. We are more likely to discern a link between a particular instance of hateful speech and the spread of hatred or the occurrence of violence when there is a pattern or history of hatred and violence against the group. Moreover, because phrases such as ‘the solution to the Jewish problem’ or symbols, such as the swastika, evoke the Holocaust, it is easy to attribute a violent purpose to an individual who uses them. Because the act of burning a cross evokes the violent oppression of blacks in North America, it is easy to understand it as a call to violence (or as a threat of violence) and to connect its use to violent action. Yet in the case of harsh, vitriolic statements

52

‘Attack on Ottawa: PM Harper cites terrorist motive’, Globe and Mail, 22 October 2014.

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made about other identifiable groups that do not have the same recent history of organized violent persecution, it may be harder to discern a violent purpose or effect. We are less likely to see speech as a call or prelude to violent action when violence seems remote or infrequent. The question now is whether recent acts of violence against Muslims, including fire bombings of mosques, street assaults and notably the mass murder in Norway committed by Anders Breivik, will make it more likely that the claims of Steyn and others will be viewed as hate speech – as encouraging the violent oppression of Muslims. Steyn was embarrassed by the references to his work in Anders Breivik’s manifesto.53 Initially he responded by pointing out that Breivik’s attack was directed against ‘native’ Norwegians and not Muslims. Breivik’s action, said Steyn, was not an ‘“Islamphobic” mass murder [because a]s far as we know not a single Muslim was among the victims’.54 In his quick and defensive response, Steyn omitted to mention that a central theme in his writing is that the ‘liberal elites’, who support immigration and multiculturalism, are complicit in the Muslim takeover of Europe. Breivik’s attack was directed at the people (and their children) Steyn claimed were appeasing radical Muslims. Breivik intended his attack to be a wake-up call to his fellow ‘Europeans’. Steyn’s other attempt to distance himself from Breivik’s violence was to note that Breivik’s manifesto referred to a wide range of authors, including major figures in European political theory, such as John Locke and Edmund Burke:  ‘But when a Norwegian man is citing Locke and Burke as a prelude to gunning down dozens of Norwegian teenagers, he is lost in his own psychosis’.55 Yet it was the writing of Steyn and other ‘Muslim Tide’ authors that persuaded Breivik of the urgent need to respond to the threat to European civilization posed by Muslims. ‘Of course’, Steyn cannot be blamed for eccentric readings of his words. But how should Breivik have read Steyn? If Steyn meant what he said, and Breivik was persuaded by his claim, what should Breivik have concluded? Steyn claimed that the European nations are about to succumb to the single-minded determination of their Muslim inhabitants, who are an ‘enemy within’, prepared to employ coercive and violent means to impose their faith on others. Political action is futile, said Steyn. The political elites of Europe are unable 53

54 55

For an examination of the Breivik case and its impact in Norway, see Sindre Bangstad, Anders Breivik and the Rise of Islamophobia (London: Zed Books, 2014). Mark Steyn, ‘Islamophobia and Mass Murder’, National Review, 25 July 2011. Steyn, ‘Islamophobia’.

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or unwilling to address the problem. Breivik appears to have drawn the logical conclusion from Steyn’s claims. His ‘psychotic’ actions may be seen as a ‘rational’ response to Steyn’s assertions. Perhaps Steyn never intended anyone to act on the views he expressed. Perhaps his claims were mostly hyperbole and meant simply to catch attention, generate controversy and put him in the public eye. Yet Steyn’s claims were presented as serious analysis and were understood by many readers as such. He should not be surprised then when some readers decide to act on his claims. His concluding words in America Alone were these:  ‘We have been shirking too long, and that’s unworthy of a great civilization. To see off the new Dark Ages will be tough and demanding. The alternative will be worse’.56

18.3

The Personal Experience of Religious Attacks 18.3.1 The Objection to Religious Insult

The second difficulty with the distinction between attacks on a belief or belief system and attacks on the believer or the community of believers is that religious beliefs or commitments are sometimes so deeply held that an attack on the individual’s beliefs (on the beliefs she actually holds), and more particularly on the objects, persons or symbols that she regards as sacred or worthy of veneration, affects the believer very personally and powerfully. There are different ways to understand the objections made to the ‘Danish cartoons’ or to Salman Rushdie’s book, The Satanic Verses.57 One objection to the cartoons was that they breached a religious prohibition against creating an image of the Prophet Muhammad – a ‘graven image’. But even if Muslims agreed that there was such a ban and that it applied to non-Muslims,58 it is a religious rule and as such cannot be the basis for state action. The Danish cartoons and The Satanic Verses were also regarded by many Muslims as blasphemous, in the original sense of the term – as an insult to God that might lead to divine punishment against the community that tolerates these works. But again, state law must be based on ‘secular’ or at least ‘civic’ concerns. 56 57

58

Steyn, America Alone, at p. 214. Salman Rushdie, The Satanic Verses (London: Viking, 1988). For an account of the ‘Danish cartoons’ controversy, see Jytte Klausen, The Cartoons that Shook the World (New Haven, CT: Yale University Press, 2009). For a discussion of this, see Anver Emon, ‘On the Pope, cartoons, and apostates’ (2006–7) 22 Journal of Law & Religion 303.

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Another argument, which is at least cognizable within a secular moral/political framework, is that the cartoons reinforced stereotypes of Muslims – that they represented Muslims as violent and backward to a predominantly non-Muslim audience. Strong objection was taken in particular to the cartoon which depicted the Prophet Muhammad’s turban as a bomb. The image was seen by many as linking Muslims to violence. Yet the creator of the cartoon has said that it was meant to be a comment on the violent fringe of the Muslim community and was not intended to say that Islam is a violent religion.59 The debate that has arisen around these cartoons, as well as the Charlie Hebdo cartoons, is a reminder of the openness and contestability of the meaning of such images. The principal complaint about the cartoons and Rushdie’s book seemed to be that matters sacred to a religious community were subjected to ridicule, causing hurt or offence to the members of that community. Or at least this is how the complaint was understood by members of the mainstream community – some of whom were sympathetic to the complaint and others who were not. The experience of offence or hurt may generate alienation and social tension, resulting in the additional and more tangible harm of public disturbance or communal violence. Of course, the impact of ridicule and insult may be greater when it is directed at an already marginalised group and is seen by the group’s members as reinforcing their subordinate position in the general community. Indeed, in these cases it may be difficult to distinguish – to disentangle – the personal offence that individuals feel when sacred symbols or venerated persons are ridiculed and disparaged from the concern that their religious community is being represented as backward or barbaric. Most of those who objected to The Satanic Verses had not actually read the book. They had heard from others about its most objectionable passages, although they knew little about the narrative context from which these passages were taken.60 The offence or injury the critics experienced arose then not from the shock of reading a work that disparaged sacred persons or objects but instead from the simple knowledge that someone had produced and someone else had read or might read such a work. And so, despite the ‘secular’ description of the injury as personal offence, the critics’ objection was either to the misrepresentation of their religion to 59

60

Kurt Westergaard, ‘Why I  drew the cartoon:  The “Muhammad Affair” in retrospect’, Princetonian, 1 October 2009. Leonard W. Levy, Blasphemy (Chapel Hill:  University of North Carolina Press, 1995), at p. 561.

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others or to the ridicule of a sacred or venerated person (based on a more traditional understanding of blasphemy) wrongs that did not depend on the direct experience of the objectionable speech. Whether in the form of an updated blasphemy law, a broadly interpreted hate speech law or a law directly aimed at preventing insult to religious beliefs or communities, there appears to be at least some support for a ban on ridicule or intemperate criticism of religion in order to protect religious believers from insult to their deepest convictions. A ban on such criticism may be seen as a middle position that recognises that religious adherence is both a personal commitment to certain truths that must be open to debate and criticism but also a cultural identity that should be treated with respect. Criticism must be permitted but not when it ‘gratuitously’ injures or offends the deep commitments of others or threatens to disrupt public order. This middle ground, however, is unworkable for several related reasons. First, it is difficult to define enforceable standards of civility in public discourse, and nearly impossible to do so when religion is the subject of debate (Section 18.3.2). Second, if a restriction on intemperate criticism of religious belief rests on the idea that religion is deeply rooted then it seems unlikely that temperate or reasoned critique of religion will have much of an impact on religious adherents. We might instead see a greater role for ridicule and harsh criticism in disrupting entrenched religious views (Section 18.3.3). Third, religious beliefs often have public implications and so must be open to criticism that is deeply felt and sometimes very harsh (Section 18.3.4).

18.3.2 Civility Standards Expression or communication is a relationship between speaker and audience that may be compromised or undermined by manipulation, deceit and incivility – including insult and ridicule. Restrictions on speech that incites violence against others or that intimidates or harasses others have been upheld by the courts as justified limits on freedom of expression. However, more general requirements of civility or respect in discourse turn out to be difficult to define and to reconcile with the public commitment to freedom of expression. Civility standards are conventional or cultural and therefore difficult to establish in a multicultural, multi-faith society. Different individuals or groups within the larger community will have very different views about what is civil or respectful. Moreover, freedom of expression must

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to some extent protect challenges not only to conventional opinion but also to the conventions of communicative engagement and social respect.61 A degree of tension or conflict in communicative relationships is unavoidable and not always undesirable. While the audience may not always want to hear a message that it regards as harsh and even hostile, freedom of expression is understood to protect the expression of deeply felt views, even those that are unpleasant or confrontational in character. The courts have accepted that an important dimension of expression is its emotional force – the manifestation of anger, outrage and other strong emotions.62 Hate speech laws are sometimes presented as a form of civility regulation – a modern version of the blasphemy prohibition, which proscribes speech that is offensive or hurtful to others. It is a mistake, though, to see the ‘harm’ of hate speech as simply personal offence, resulting from the emotional force or uncivil tone of the expression. Even when hate speech laws are applied to speech that threatens or insults the members of a target group, the harm the law aims to prevent is not offence or hurt feelings but instead the harassment and intimidation of the audience. More often hate speech laws are applied to speech that seeks to ‘persuade’ members of the general community about the dangerousness or undesirability of a particular racial, religious or other group. In such cases, the purpose of the hate speech ban is to prevent the spread of falsehoods that may undermine the standing or security of some community members and encourage radical or violent action against them. The anger with which these false claims are often communicated may discourage critical reflection by the audience, facilitating their spread, but is not the gravamen of the wrong. Hate speech, either explicitly or implicitly, claims that the members of an identifiable group should not be regarded as full members of the community and/or that they share dangerous or undesirable traits – that they are by nature violent or corrupt. Whether the speech takes the form of an insult directed at the members of a particular group or a claim 61

62

Robert Post, Constitutional Domains (Cambridge, MA: Harvard University Press, 1995), at p. 147. As Robert Post observes, public discourse aspires to be reasoned and non-coercive, in other words to adhere to norms of civility, and yet at the same time to ‘be free from the constraints of existing community norms’. See, for example European Court of Human Rights, Handyside v.  United Kingdom, Application no. 5493/72, judgment of 7 December 1976, in which the ECtHR said that freedom of expression protects speech that may ‘offend, shock or disturb the State or any sector of the population’. See also Cohen v. California, 403 U.S. 15 (1971).

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about the group that is made to the members of the general community, its message is that the target group’s members are inferior or dangerous and should be treated accordingly. Such claims of natural or inherent inferiority run contrary to the commitment to human equality that underpins civil society. Equality norms must remain open to challenge in public discussion; however, when the challenge to these norms takes the form of a threat against the members of a target group or the encouragement of others to take action against the group, it may be subject to restriction. The regulation of harsh or mocking criticism of a religion is very different from the regulation of hate speech. The state, it is widely accepted, should take no position on the truth of a particular religious belief system. It should remain ‘neutral’ on the question of whether a particular faith is true or false. The restriction of religious criticism or ridicule then must be based entirely on the impact it has on the feelings or selfesteem of the adherent, either because it is wrong to insult or offend an individual or because those who have been offended might disrupt public order. The state cannot make judgments about religious truth or the correct forms of worship but must instead try to grasp the significance of the belief to the believer and the injury she experiences when the ‘sacred’ is ridiculed or the ‘truth’, as she understands it, is treated with contempt. There are several difficulties raised by a subjective test of this sort. First, the believer’s experience of injury is tied to her belief in the truth of what is being ridiculed. The believer does not object to the ridicule of her faith because she feels hurt by it. She is hurt by it and objects to it because it mocks or disparages that which should be venerated or treated as sacred. While the wrong is framed in subjective terms, as offence or insult to dignity, the believer’s subjective experience is based on her commitment to the truth of a particular religious system. The protection of religious sensibilities is in effect then the protection by the state of what the individual regards as religious truth. Secondly, and more practically, it is unclear how the state is to determine when the experience of offence is sufficiently great that the speech ought to be restricted. To describe something as ‘sacred’ is to say that it should be treated with respect; or to describe religious commitment as an identity is to say that it lies outside the scope of ordinary debate and challenge. But if religion is an identity, then even the most temperate criticism of a group’s religious beliefs, including a simple denial of their truth, might be viewed by some of the group’s members as disrespectful

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and unacceptable.63 Different religious traditions (and groups within each tradition) have different understandings of the obligations of those inside and outside the religious community to respect the sacred.64 And of course, religious believers will relate to their religious traditions/belief systems in different ways and so will not experience religious criticism or ridicule of the sacred in the same way. Finally, some in the religious community may read a particular representation or statement as ridiculing a sacred object or symbol, even though that may not be the intent of the speaker/creator and may not be how others understand the speech. The standard for the restriction of criticism then cannot be based simply on the reactions or feelings of adherents or their report of their feelings. It must rest instead on a view about what is the reasonable or ordinary subjective reaction to religious criticism. But there can be no agreement on this. There is simply no vantage point outside the faith tradition or the individual’s experience of it from which a ‘secular’ judge or other public decision maker can decide what is intolerable or unacceptable criticism. It has been suggested that religious criticism may be restricted when it has no other purpose than to offend or injure the audience. Temperate or reasoned critique of religion is intended to engage others, to encourage believers to rethink or justify their views and to generate debate. Intemperate criticism, on the other hand, may be intended only to offend and so makes no contribution to public discussion. In the OttoPreminger-Institut case, for example, the European Court of Human Rights suggested that ridicule or mockery of religion could properly be restricted by the state because it was ‘gratuitous’.65 I  will return to this claim shortly, but for now it may be enough to say that to the critic, who sees a particular religion or all religions as absurd and perhaps even socially harmful, there is nothing gratuitous or excessive about mocking religion. Indeed, it may seem to the critic that this is the only sensible reaction to religious belief.

63

64

65

Rex Adhar and Ian Leigh, Religious Freedom in the Liberal State (Oxford: Oxford University Press, 2005), at p. 373: ‘One reason not to expand the ambit of the offence is the significant risk of blasphemy law becoming the locus of religious controversy, with opposing groups claiming a right to be protected against offence caused to them by the mere expression of other’s beliefs’. Jeremy Waldron, ‘Rushdie and religion’, in Liberal Rights: Collected Papers 1981–1991 (Cambridge: Cambridge University Press, 1993), at pp. 138–39: ‘What is serious and what is offensive, what is sober and what is mockery – these are not neutral ideas. … [D]ifferent religions define them in different ways’. Otto-Preminger-Institut v. Austria, at para. 49.

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505

The Effectiveness of Rational Criticism

The reinterpretation of English blasphemy law in the nineteenth century, so that it caught only intemperate attacks on the Christian faith, rested on the view that religious beliefs should be subject to reasoned evaluation – that the ‘truth’ does not need to be protected from thoughtful criticism.66 Milton (and later Mill) argued that man was endowed with the capacity for reason and that in a ‘free an open encounter’ between Truth and falsehood, we should not doubt the strength of the former.67 Debate about issues of common interest, including religion, should take place on the ground of reason. Milton thought that intemperate attacks on belief (religious or otherwise) had no claim to protection because they might distort the search for truth, displacing reason with emotion. If the principal justification for freedom of expression is its contribution to the realisation of truth, then its protection should extend only to expression that is temperate and that appeals to reason rather than emotion. However, in the contemporary context, the protection of free expression is no longer limited to speech that is dispassionate and respectful. The freedom now protects harsh and intemperate criticism of belief and opinion. As already noted, the emotional dimension of expression (including anger, outrage, disgust) is considered to be important and deserving of protection. The restriction of ridicule or intemperate criticism of religious beliefs and practices then can no longer be justified as part of a general exclusion of intemperate speech from the scope of freedom of expression. The contemporary claim that religious beliefs should be protected from such criticism must instead be based on the view that these beliefs are different from other beliefs. The argument now is that religious beliefs are deeply held and faith based, a matter of identity rather than judgment, and so should be specially protected from ridicule or intemperate criticism. Even if political, moral and other beliefs must remain open to harsh criticism or mockery, religious beliefs should be insulated from ‘attacks’ of this kind. The conception of religious belief that underlies the contemporary argument for the restriction of intemperate criticism then is entirely different from that which lay behind the revision of blasphemy law in 66

67

See earlier discussion of the evolution of blasphemy law in England, notably the judgments of Ramsay & Foote, and R. v. Gott (1922) 16 CR App R 87. John Milton, Areopagitica and Other Prose Works (New York: JM Dent, 1927 [1644]).

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the nineteenth century. Religious believers are thought to experience attacks on their beliefs in a profound and personal way – in a way that is different from attacks on their political or moral beliefs (on beliefs that relate to social and civic issues). Intemperate attacks on religion should be proscribed not because they might interfere with reasoned public deliberation but because religious commitment is an aspect of individual or group identity that should be treated with respect and that lies outside the scope of ordinary political debate. Yet this argument for the insulation of religion from harsh and intemperate criticism may be difficult to contain and could just as easily justify the restriction of any criticism of religion. If religion is viewed as an identity, then any criticism, no matter how politely expressed, might be hurtful or upsetting to individual adherents. As Jeremy Waldron observes, ‘there are some who hold their beliefs so devoutly that even the most sober and respectful criticism would count as mortal insult to their personality’.68 Even if it is accepted that only intemperate criticism is sufficiently injurious to require restriction, it is not clear what role temperate criticism can or should play in the public discussion of religion. If religion is a matter of identity or is deeply rooted (which is the basis for a restriction on intemperate criticism), why would we imagine that an individual’s beliefs might be altered or affected by calm, rational criticism? In the words of Jonathan Swift, ‘[i]t is useless to attempt to reason a man out of a thing he was never reasoned into’.69 Could we not turn the argument (concerning the restriction of intemperate criticism) on its head? If rational critique is unlikely to be effective (if religion lies outside the scope of reasonable debate or at least lies at its edge, as some believe), then perhaps protection should be given to the ridicule or intemperate criticism of religious belief. It may be that only these forms of criticism will have any impact. Critics of a particular religion may seek to confront or shock – to shake the believers from their unreflective (faith-based) acceptance of certain views or values – or they may simply wish to express to the holders of such views or to the larger world their outrage and frustration at what they see as an irrational and regressive belief system. 68 69

Waldron, Liberal Rights, at p. 139. Attributed to Swift in Maturin Murray Ballou, Treasury of Thought: Forming an Encyclopædia of Quotations from Ancient and Modern Authors (Cambridge:  Houghton Mifflin, 1872), at 433.

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18.3.4 The Public Significance of Religion The third difficulty with a restriction on intemperate criticism is that religions often say something about the way we should treat others and about the kind of society we should work to create. While religion is sometimes regarded as a cultural identity that should be treated with equal respect, when it addresses or touches upon civic matters (the rights and interests of others) it must be viewed as a political or moral judgment by the individual or group that is subject to public criticism, even that which is harsh and intemperate. Some members of the general community may have a strong negative reaction to religious beliefs that address their interests or rights. For example, gays and lesbians may feel anger about the anti-gay teachings of some churches and the impact of these teachings on their ability to live lives that are full or even safe. A particular religion – or religion in general – may be viewed by some as a negative social or moral influence. ‘New atheists’ such as Christopher Hitchens and Richard Dawkins believe not just that there is no God but that belief in God (and religion more generally) is damaging and dangerous – that it inhibits the moral growth of individuals and encourages them to behave irrationally and sometimes even violently.70 Critics seeking to show the absurd or regressive character of religion may think that ridicule is the most effective way to do this. From their perspective there is nothing gratuitous about harsh criticism and ridicule. To this we might add that some of the harshest, and most intemperate, criticism of a particular religious community or belief system comes from individuals who have a personal connection with the particular community or tradition, whose identity has been shaped by it and who may be struggling to separate themselves from it – the ex-Mormon or the ex-Catholic, for example. An individual may have a powerful reaction to a religious tradition or community that is part of who she is. Furthermore, because the boundaries of a religious group are always contested, it may be difficult to distinguish internal from external religious critique. Some ‘members’ may describe others as bad Muslims or as not true to Islam, or they may say that others are mistaken in their interpretation of Christian doctrine or are not proper Christians. The 70

Christopher Hitchens, God Is Not Great: How Religion Poisons Everything (Toronto: Random House/Emblem, 2008); Richard Dawkins, The God Delusion (New York: Houghton Mifflin Harcourt, 2008).

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state is not supposed to involve itself in internal religious disputes; but a restriction on (intemperate) criticism of a religious practice or doctrine may sometimes draw the state into debates ‘within’ the religious community about church doctrine or about the boundaries of the religious community or tradition and involve it in the suppression of dissent and the reinforcement of orthodoxy. Perhaps we can go farther than this and say that in any religious tradition that claims universality – that believes there is a truth that can be known by all and seeks to spread that truth across nations – there can be no meaningful distinction between external and internal debate and criticism. To take religion seriously, as something that matters, is to see its claims about truth and right as important and worthy of consideration. But it also means that these claims, whether they relate to spiritual or to civic questions, must be open to criticism. Because religion addresses large and important issues, it will sometimes generate debate that is intense and uncomfortable. As Jeremy Waldron reminds us, ‘the great themes of religion matter too much to be closeted by the sensitivity of those who are counted as pious’.71

18.4 Conclusion Hate speech laws ordinarily distinguish between attacks on the group or group members, which may in extreme cases be subject to restriction, and attacks on the group’s beliefs, which ought not to be restricted. However, our complex conception of religious adherence or membership – as both personal judgment and cultural identity – complicates this distinction in two ways. The first has to do with the attribution of belief to the members of a religious group. Hate speech directed at a religious group often attributes an undesirable belief to the group (perhaps the belief of a fringe element of the group or a belief drawn from a literal reading of the group’s scripture) and represents that belief as an essential part of the religious tradition – and in effect an attribute shared by the group’s members. This speech elides the space for judgment and disagreement in the religious tradition and with it the line between the individual (belief) and the religious belief system or tradition with which the individual identifies. An attack on a particular (attributed) belief becomes an attack on all the members of the religious group. 71

Waldron, Liberal Rights, at p. 142.

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The second difficulty with the distinction between attacks on belief and attacks on the believer is that, because religious beliefs are deeply held and concern that which is sacred, an attack on the individual’s beliefs (on the beliefs she/he actually holds) may be experienced by the believer very deeply and personally and may lead to significant social conflict. This recognition has led some to argue that religious beliefs should be protected from ridicule or intemperate criticism. There are, however, significant reasons why such expression should not be restricted. Civility requirements in public discourse are difficult to define, particularly when religion is the subject of debate. More significantly, because religion involves truth claims, many of which have public implications, it must be open to the fullest challenge.

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19 Blasphemy in Australia The Rags and Remnants of Persecution?

Helen Pringle

19.1

Introduction

Various forms and expressions of blasphemy remain legally wrongful in Australia. The legal provisions that address blasphemy are, however, little known and seldom invoked. The last formal action brought in regard to blasphemous libel in Australia, for example, was in October 1997, when the then Archbishop of Melbourne George Pell sought an injunction in the Supreme Court of Victoria to restrain the National Gallery of Victoria (NGV) from exhibiting an artwork by the American artist Andres Serrano entitled Piss Christ, a photograph of a plastic crucifix immersed in the artist’s urine.1 The injunction was sought on the grounds that the display of the work would constitute, inter alia, the common-law misdemeanour of publishing a blasphemous libel.2 The NGV argued in response that blasphemous libel was not an offence in that jurisdiction and that at any rate recourse to injunctive remedies in such a case was inappropriate. Justice Harper for the Court conceded that the offence of blasphemous libel might well have survived its transportation in the nineteenth century to the Australian colonies, notwithstanding the absence of an established church as in England. However, he refused to grant the injunction on the grounds that a constituent element of the offence was posing ‘the risk of a breach of the peace, perhaps general civil unrest’, for which no evidence had been offered by the plaintiff Archbishop Pell.

1 2

See Lucy R. Lippard, ‘The spirit and the letter’ (1990) 78:4 Art in America 238–45. Pell v.  The Council of the Trustees of the National Gallery of Victoria [1998] 2VR 391, Harper J.

The subtitle is a quotation from John Stuart Mill, On Liberty, in Collected Works vol. xviii ed. John Robson (Toronto: University of Toronto Press, 1977), p. 240.

510

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It is noteworthy that Justice Harper stated that the ‘ancient misdemeanour . . . may have survived transportation to the colonies’ and that there ‘may . . . be a place in a multicultural society for the offence of blasphemous libel of any recognized faith’.3 Such cautiousness in regard to blasphemy is reflected in Australian legal and cultural understandings more broadly. A striking feature of the Piss Christ case was how muted was the expression of public opposition to Archbishop Pell’s action, and even more striking was that there was no media or public call for the abolition of the offence in the wake of the case. Days after the failed action, a man ripped Serrano’s work from the NGV wall and kicked it, and this incident was followed by a hammer attack on the work, after which the exhibition was closed by the NGV director.4 It is of course possible that the legacy of this event in public controversy might have been different if the injunction had been granted. One thinks of the continuing unease with the survival of blasphemy and blasphemous libel offences in England after the Gay News case of 1979 (although even there it was several decades before the Criminal Justice and Immigration Act 2008 abolished common-law and statutory notices of blasphemy and blasphemous libel in England and Wales).5 There is little public agitation in Australia for clarification of the legal position around blasphemy and, indeed, little interest in the general topic among legal and political scholars.6 The head of the NGV noted in 1997 that the law on blasphemy was an anachronism, and commentary on the issue tends to assume that related legal provisions belong in lists of ‘peculiar laws from around the world that still actually exist’. Where questions

3

4

5 6

Justice Harper cited Lord Scarman’s comments on the possible extension of the common law to protect ‘religious beliefs and feelings of non-Christians’:  Whitehouse v. Gay News, Whitehouse v. Lemon [1979] AC 617 [Gay News] at 658 (emphases added). Elissa Hunt, ‘Andres Serrano “Piss Christ” triggers religious fury and court battle in 1990s trials’, Herald Sun (Melbourne), 6 March 2013. See the chapters by Howard and Hare in this volume. See discussion of the Piss Christ case in Bede Harris, ‘Pell v. Council of Trustees of the National Gallery of Victoria: Should blasphemy be a crime? The “Piss Christ” case and freedom of expression’ (1998) 22:1 Melbourne University Law Review 217–29; Damien Casey, ‘Sacrifice, Piss Christ, and liberal excess’ (2000) 5:1 Law Text Culture 19–34; Michael Casey, Anthony Fisher OP and Hayden Ramsay, ‘After Serrano: Ethics, theology and the law of blasphemy’ (2000) 5:1 Law Text Culture 35–54; Damien Casey, ‘After Serrano: Sacrifice and church politics’ (2000) 5:1 Law Text Culture 55–61; Anthony Fisher and Hayden Ramsay, ‘The bishop, the artist, the curator and the crucifix’ (December 1997) Quadrant 48–53; and Anthony Fisher and Hayden Ramsay, ‘Of art and blasphemy’ (2000) 3 Ethical Theory and Moral Practice 137–67.

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about the regulation of blasphemy are raised seriously today, they have been in reference to laws against religious vilification implemented in some jurisdictions in Australia, which have been argued by some to act or have the potential to act as a de facto regulation of blasphemy. In examining the landscape of blasphemy regulation in Australia in this chapter, I first set out the various provisions that remain in statute or common law in regard to blasphemy. In the second section of the chapter, I briefly note attempts that have been made to abolish the offence, for the most part in the wake of specific prosecutions or proceedings. It is widely claimed that such attempts in Australia date from 1871, following William Lorando Jones’s conviction at the Parramatta Quarter Sessions in New South Wales (NSW). The leading source on the history of blasphemy in Australia, by Peter Coleman, claims that Jones’s conviction was ‘the first (and only) case of its kind in Australian history’.7 However, this widely quoted claim overlooks the regular enforcement of blasphemy offences through summary and police offences laws before and after 1871 and other proceedings since that time. Jones’s prosecution was certainly a high-profile case, provoking the introduction into the NSW Legislative Assembly of the ‘Religious Opinions Bill, or Bill to amend the law relating to blasphemy’, with the object of precluding any further prosecutions for blasphemy. The bill did not pass, and attempted reform efforts since that time have mostly come to the same end. Indeed, most suggestions for reform in the modern era have not even reached the stage of parliamentary scrutiny or deliberation. I conclude by considering whether laws that address religious vilification in Australia represent an ‘end run’ around the general disapprobation of blasphemy regulation in modern human rights understandings. I understand this as a potential danger in anti-vilification laws unless they are tightly linked to considerations of discrimination and disadvantage.

19.2 Provisions against Blasphemy in Australia Australia is widely believed to be a society that does not stipulate or police an offence of blasphemy. The Pew Research Center reported that in 2012 nearly a quarter of the world’s countries had ‘a blasphemy law, rule or policy at some level of government’.8 The sources on which the

7

8

Peter Coleman, Obscenity, Blasphemy, Sedition: The Rise and Fall of Literary Censorship in Australia (Sydney : Duffy & Snellgrove, 2000), p. 66. Angelina E. Theodorou (Pew Research Center), ‘Which Countries Still Outlaw Apostasy and Blasphemy?’, 28 May 2014, available at www.pewresearch.org/fact-tank/2014/05/28/ which-countries-still-outlaw-apostasy-and-blasphemy/.

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Center relied comprised ‘18 widely cited, publicly available sources from groups such as the US State Department, the United Nations, Human Rights Watch, Amnesty International and the International Crisis Group’.9 The map accompanying the Pew Report did not include Australia. However, Australia belongs on that map, and moreover, the disparity between the existence of legal provisions and general ignorance of their existence is crucial to understanding blasphemy in Australia. Statutory and common-law notices of the offence of blasphemy or blasphemous libel have not been explicitly abolished throughout Australia, as was accomplished in England and Wales in 2008. Blasphemy continues to be a criminal offence in common and statutory law in parts of Australia, and provisions also address blasphemy in the publication of literary works and dramatic performances and in cultural censure. The English law on blasphemy was ‘received’ in the Australian colonies as part of the common law,10 although as noted by Justice Harper (cited earlier), there is doubt as to the extent of its reception in the absence of an established church as in England.11 The first statutory regulation of blasphemy in the colonies included the Blasphemous and Seditious Libels Act 1827 (8 Geo IV No 2) (NSW), repealed in 1898,12 and legislation enacted in 1827 by Governor Arthur in Van Diemen’s Land (now Tasmania) to regulate printing and publishing and to prevent ‘blasphemous and seditious libels’, formulated within a framework of public order.13 The criminal law in Australia is now largely but not entirely a matter for the states in the

9 10

11

12 13

Ibid. For a survey of the reception of English law generally, see Alex C. Castles, ‘The reception and status of English law in Australia’ (1963) 2 Adelaide Law Review 1–31; and Bruce Kercher, ‘Alex Castles on the reception of English law’ (2003) 7 Australian Journal of Legal History 37–45. See Reid Mortensen, ‘Blasphemy in a secular state: A pardonable sin?’ (1994) 17 UNSW Law Journal 409–31, at 416–17; and New South Wales Law Reform Commission, Discussion Paper 24 – Blasphemy (1992), 10–15. See Mortensen, ‘Blasphemy in a secular state’, at 417. Hobart Town Gazette, 22 September 1827, 1–4, available at trove.nla.gov.au/newspaper/ article/8791150/. It is beyond the scope of this chapter to give a detailed history of blasphemy in Australia, but a useful if now slightly dated summary of the Australian context is given by the NSW Law Reform Commission, Discussion Paper 24, chapters 2 and 3. See also Luke Macnamara, ‘Blasphemy’, in ed. Peter Radan et al. (eds.), Law and Religion: God, the State and the Common Law (London:  Routledge, 2005), pp. 197–99; Garth Blake, ‘Promoting religious tolerance in a multifaith society: Religious vilification legislation in Australia and the UK’ (2007) 81 Australian Law Journal 386–405, at 389–91; and Helen Pringle, ‘“Whether or not man was capable of offending Ens entrum”: Taking blasphemy

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federal system. At the commonwealth level, where legislation exhaustively defines criminal offences, blasphemy is not named in the Criminal Code Act 1995 (Commonwealth [Cth]).14 Statutory references in the states of NSW, Victoria and South Australia (SA), however, imply that blasphemy continues to be a criminal offence at common law in those states. In New South Wales, for example, Section 574 of the Crimes Act 1900 (NSW) limits the grounds of prosecutions for blasphemy along these lines:  ‘No person shall be liable to prosecution in respect of any publication by him or her orally, or otherwise, of words or matter charged as blasphemous, where the same is by way of argument, or statement, and not for the purpose of scoffing or reviling, nor of violating public decency, nor in any manner tending to a breach of the peace’.15 Again, the Imperial Acts Application Act 1969 (NSW), repealing imperial enactments not expressly saved by the Act, deals with the question of the seizure of materials in cases of ‘composing, printing, or publishing any blasphemous libel’.16 In NSW in 1974, the common-law misdemeanour of criminal libel was abolished by section 49 of the Defamation Act 1974 (NSW), but with the express reservation that ‘[t]his section does not affect the law relating to blasphemous, seditious or obscene libel’.17 Schedule 1 of the Act also inserted section 574A into the NSW Crimes Act, regarding the manner in which the material at issue in actions for obscene or blasphemous libel might be cited, but this section has since been repealed. Common law and the NSW Crimes Act also determined criminal offences on Norfolk Island until 2007, when the Criminal Code 2007 repeal of the Crimes Act (with some exceptions) included repeal of the sections that limited the grounds of prosecutions for blasphemy.18 This might mean that the (common) law on blasphemy on Norfolk Island has the most unlimited scope of any Australian jurisdiction, in the unlikely event of its being tested at some point.

14

15 16 17 18

seriously’, in Elizabeth Coleman and Kevin White (eds.), Negotiating the Sacred: Blasphemy and Sacrilege in a Multicultural Society (Canberra: ANU Press, 2006). Criminal Code Act 1995 (Cth). Most Australian legal materials to which I refer are most easily accessible through Austlii, www.austlii.edu.au/, or the Federal Register of Legislation, www.legislation.gov.au/. Crimes Act 1900 (NSW), s. 574. Imperial Acts Application Act 1969 (NSW), s. 35. Defamation Act 1974 (NSW), s. 49 (now s. 529 of the Crimes Act 1900 (NSW). Criminal Code 2007 (Norfolk Island).

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In the state of Victoria, provisions of the Crimes Act 1958 (Vic) dealing with the seizure and destruction of documents containing libel include reference to blasphemous libel, in the following terms: (1) Upon the conviction of any person for— (a) publishing a blasphemous libel; or (b) publishing a seditious libel— the Court by which such conviction is recorded may order the seizure and destruction of any documents proved to exist and to contain any such libel or to have been written, printed or published in breach of the said section. (2) Any such order shall be carried into execution not earlier than thirty days from the making thereof or at such time as a court of competent jurisdiction may order. (3) If the conviction is set aside on appeal, the order for seizure and destruction shall be ipso facto vacated.19 These legislative references to blasphemy in NSW and Victoria concern what seem to be rather minor details in regard to the offence. They provide no definition of blasphemy, and there is very little case law that clarifies the character and breadth of the offence. However, the chief importance of such references lies in that they highlight that the offence of blasphemous libel and/or blasphemy continues to survive in the common law in those states (and that it was not the intent of Parliament to imply otherwise). The most explicit legislative stipulation in Australia of blasphemy as a crime is found in the Tasmanian Criminal Code Act 1924. The Act repealed the (UK) Blasphemy Act 1697 and provided: (1) Any person who, by words spoken or intended to be read, wilfully publishes a blasphemous libel is guilty of a crime. Charge: Blasphemy. (2) The question whether any matter so published is or is not blasphemous is a question of fact. (3) It is not an offence under this section to express in good faith and in decent language, or to attempt to establish by arguments used in good faith and conveyed in decent language, any opinion whatever upon any religious subject. (4) No person shall be prosecuted under this section without the consent in writing of the Attorney-General.20 19 20

Crimes Act 1958 (Vic), s. 469AA. Criminal Code Act 1924 (Tas), s.  119 (under Part IV:  Acts Injurious to the Public in General, Chapter XIII Crimes Relating to Religion).

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There have been no reported prosecutions in Tasmania testing the reach and limitation of these provisions of the Code. In Tasmania, the offence of blasphemous language is also explicitly named in Section 12 of the Police Offences Act 1935 (Tas) under the rubric of ‘Prohibited language and behaviour’: (1) A person shall not, in any public place, or within the hearing of any person in that place – (a) curse or swear; (b) sing any profane or obscene song; (c) use any profane, indecent, obscene, offensive, or blasphemous language; or (d) use any threatening, abusive, or insulting words or behaviour calculated to provoke a breach of the peace or whereby a breach of the peace may be occasioned . . .21 There are newspaper reports of prosecutions for blasphemous language under this Act in the 1930s, but the last recorded conviction for such language appears to have been at the Queenstown Police Court in April 1940, where Albert Edward Michel was fined with costs for having ‘used blasphemous language within the hearing of the public’.22 In the formulation of the Criminal Codes of Queensland and Western Australia, the failure to incorporate provisions against blasphemy is taken to have abolished the common-law offence in those states. In Queensland, Sir Samuel Griffith’s draft criminal code of 1897 assumed that the English law of blasphemy was ‘manifestly obsolete or inapplicable’ where there was no established church as in Australia (as Griffith explained in a letter to the Attorney-General).23 In a ‘foreshadowing’ of religious vilification laws, Griffith’s draft code did however propose a section (Section 213), inspired by Zanardelli’s Italian Penal Code of 1889,24 by which ‘[a]ny person who, with intent to excite ill-will amongst Her Majesty’s subjects, by words publicly spoken, or by any writing, sign or visible representation 21 22

23

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Police Offences Act 1935 (Tas), s. 12. As reported in a brief notice in the Advocate (Burnie), 20 April 1940, 8, available at trove. nla.gov.au/newspaper/article/68297409. R. S. O’Regan, ‘Two curiosities of Sir Samuel Griffith’s criminal code’ (1992) 16 Criminal Law Journal 209–15, at 212–213. For a discussion of this penal code, see Cianitto’s chapter in this volume, ‘The Blasphemy Offence in the Italian Legal System’. See also Alberto Cadoppi, ‘The Zanardelli Code and codification in the countries of the common law’, trans. K. A. Cullinane (2000) 7 James Cook University Law Review 116–90, at 160–162.

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publicly exhibited, holds up the doctrines of any religious faith to public derision or contempt, is guilty of a misdemeanour, and is liable to imprisonment for one year’.25 In a footnote to his draft code, Griffith argued that the law of blasphemy represented ‘the sentiments of two hundred years ago’, with his proposed section ‘represent[ing] modern sentiment with regard to the extent to which professors of religious faiths should be protected by the Criminal Law from public attacks upon their religious creeds’ and the ensuing risk of civil disorder.26 This proposed section was however not included in the final version of the Code approved by the Queensland parliament, which came into law on 1 January 1901.27 Griffith was confident that his code would serve as the model for codification of the criminal law throughout the Australian states, but only Western Australia followed suit in exhaustively defining the criminal law in statute while omitting the unlawfulness of blasphemy from its Code.28 South Australia (SA) and the Northern Territory (NT) are also ‘Code’ jurisdictions, but codification was not intended to extinguish the reach of the common law in criminal matters as was the case in Queensland and Western Australia (WA), and uncertainty remains as to the survival of the offence of blasphemy in the former jurisdictions.29 In South Australia, for example, Section 19 of the Classification of Theatrical Performances Act 1978 (SA) relates to proceedings against blasphemy including in regard to theatrical performances.30 This provision is again more important for its implication that the offence of blasphemy survives in the common law than for any use of it in regard to regulating theatre performances in South Australia. In the Australian Capital Territory (ACT), the offence of blasphemous libel was abolished in 1996 by statutory reform. The ACT had formerly drawn on the NSW Crimes Act, retaining the limitation of Section 574 noted earlier (‘No person shall be liable to prosecution in respect of any publication by him or her, orally or otherwise, of words or matter charged as blasphemous, if the publication is by way of argument, or statement, 25 26 27 28

29

30

O’Regan, ‘Two curiosities’, at 212. Ibid., at 212–213. Ibid., at 214. R.  S. O’Regan, ‘Sir Samuel Griffith’s criminal code’ (1991) 14:8 Royal Historical Society of Queensland Journal 305–17, at 311. See also Greg Taylor, ‘The Victorian criminal code’ (2004) 23 University of Queensland Law Journal 170–204. See respectively Criminal Law Consolidation Act 1935 (SA) and Criminal Code Act [1983] (NT). Classification of Theatrical Performances Act 1978 (SA), s. 19.

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and not for the purpose of scoffing or reviling, nor of violating public decency, nor in any way tending to a breach of the peace’).31 Section 4 of the Law Reform (Abolitions & Repeals) Act 1996 (ACT) provided that ‘[the] common law misdemeanours of criminal libel, blasphemous libel, seditious libel and obscene libel are abolished’.32 However, the reform did not address the related offence of blasphemy, which might still survive in the ACT. In the history of blasphemy in Australia, a strict distinction between blasphemous libel and blasphemy has not always been maintained in the administration of the law. Even in Code jurisdictions where crimes are defined exclusively in statute, it is the case that references to blasphemy are made in other (noncriminal) legislation, thus again making it difficult to say with certainty or precision that blasphemy has been abolished in that jurisdiction. For example, in Queensland, the Objectionable Literature Act of 1954 (Qld), repealed in 1991, allowed the state to prevent the distribution of ‘objectionable’ literature, a category that included material determined by the Literature Board of Review to be, inter alia, ‘blasphemous, indecent, obscene, or likely to be injurious to morality’.33 In Western Australia, a reference to blasphemous words remains in Section 45(b) of the Jetties Regulations 1940 (WA), in the following terms:  ‘No person shall behave in a violent or offensive manner to the annoyance of others, or write or use any insulting, indecent, obscene, blasphemous, or abusive words, or wilfully interfere with the comfort of any person in or upon any jetty, shed, vehicle, or premises of the Department’.34 Current commonwealth shipping registration regulations also make reference to blasphemy in regard to proscribed names of vessels, noting, ‘For the purposes of subsection 27(3) of the Act [the Shipping Registration Act 1981], the following classes of names are prescribed classes of names: . . . (d) names that are blasphemous or likely to be offensive to members of the public’.35

31 32 33

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Crimes Act 1900 (ACT), s. 440. Law Reform (Abolitions & Repeals) Act 1996 (ACT), s. 4. Objectionable Literature Acts, 1954 to 1957 (Qld), available at https://digitalcollections .qut.edu.au/3045/1/qsr_objectionable_literature_acts_1954–1967_1jul85.pdf. The Act primarily targeted comic books: see Kevin Patrick, ‘The cultural economy of the Australian comic book industry, 1950–1985’, in Toni Johnson-Woods and Amit Sarwal (eds.), Sold by the Millions: Australia’s Bestsellers (Newcastle upon Tyne: Cambridge Scholars, 2012), pp. 162–81, at pp. 171–75. Jetties Regulations 1940 (WA), s. 45(b). Shipping Registration Regulations 1981 (Cth), s. 21(2)(d).

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Finally, it should be noted that Australian courts have not provided an authoritatively consistent definition of blasphemy within and across jurisdictions. The modern definition set out by Lord Scarman in Gay News characterized blasphemy as ‘any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible, or the formularies of the Church of England as by law established’.36 A number of non-criminal cases have provided some guidance as to the definition in modern Australia. In the 1987 case of Ogle v.  Strickland, concerning the importation of the film Je vous salue, Marie (Hail Mary), Judge Lockhart in the Federal Court argued that the meaning of the term in customs regulations (at that time) was the same as in other law, that is: ‘ The essence of the crime of blasphemy is to publish words concerning the Christian religion which are so scurrilous and offensive as to pass the limits of decent controversy and to be calculated to outrage the feelings of any sympathiser with or believer in Christianity’.37 In North Coast Environmental Council Inc v. Minister for Resources (1994), Judge Sackville rendered the definition as ‘publication of offensive words about the Christian religion calculated to outrage the feelings of a believer in Christianity’.38 In 1995, in Right to Life Association (NSW) Inc v. Secretary, Department of Human Services and Health, Judge Gummow cited the English case of Choudhury as authority for the common-law definition (with its restriction to Christianity) set out by Lord Scarman in Gay News.39 The Piss Christ case noted earlier indicates that it might also be necessary, at least in some cases, to show a connection of the offence to a breach of the peace or civil disorder, as also suggested by Section 574 of the NSW Crimes Act. However, the blasphemy law in Tasmania makes no reference to a breach of the peace as being necessary to proving the offence. To summarise this survey of provisions addressing blasphemy: some forms of ‘blasphemous’ utterances and actions remain unlawful

36

37 38

39

Whitehouse v. Gay News, Whitehouse v. Lemon [1979] AC 617 [Gay News] at 665, Lord Scarman. Ogle v. Strickland (1987) 13 FCR 306 at 317, Lockhart J. North Coast Environmental Council Inc v. Minister for Resources (1994) 55 FCR 492 at 509, Sackville J. Right to Life Association (NSW) Inc v. Secretary, Department of Human Services and Health (1995) 128 ALR 238 at 271, Gummow J, considering Right to Life Association (NSW) Inc v. Secretary, Department of Human Services and Health [1994] FCA 1362, and citing R v.  Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury (1990) 1 QB 429 (concerning The Satanic Verses).

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throughout Australia.40 However, it is unlikely that any criminal action would now be taken with regard to the provisions I have outlined. One reason for this unlikelihood is that most Australians seem to be simply unaware, precisely because of their long disuse, that such provisions exist or have not been abolished.41 This general lack of knowledge can be illustrated by summary prosecutions under the category of ‘offensive’ of what would have once have been prosecuted as clearly blasphemous.42 The landscape of blasphemy regulation in Australia presents a ‘patchwork’ of rarely invoked or contested provisions. In the 1990s, a project was initiated to formulate a Model Criminal Code to bring some consistency to criminal law generally across state and territory jurisdictions in Australia, but blasphemy does not seem to have been considered by the Model Criminal Code Officers’ Committee, and moreover the practical promise of the project has not been realised.43 As David Nash has noted of the Australian landscape, then, ‘[o]verall this patchwork looked like a legal relic and pictured a society largely untroubled by the problem of blasphemy’.44 Where ostensibly blasphemous acts45 continue to be the subject of prosecution in Australia, they are charged not as blasphemy but instead as offensive conduct or language, under summary or police offense acts.46

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I should briefly note that the historical regulation of blasphemy in Australia was closely related to that of sacrilege, particularly as many cases of blasphemy were directed in the vicinity of places of worship. This subject is beyond my present scope, but a useful survey of sacrilege is provided by Australian Law Reform Commission, Multiculturalism and the Law, Report 57 (1992), para. 7.54, available at www.alrc.gov.au/report-57. Cf. in regard to Canada, Jeremy Patrick, ‘Not dead, just sleeping:  Canada’s prohibition on blasphemous libel as a case study in obsolete legislation’ (2008) 41:2 UBC Law Review 193–248. See examples cited in Helen Pringle, ‘Regulating offence to the godly: Blasphemy and the future of religious vilification laws’ (2011) 34:1 University of New South Wales Law Journal 316–32, at 317–19. See Model Criminal Code (1st edition, 28 May 2009), available at www.pcc.gov.au/ uniform/crime%20(composite-2007)-website.pdf. For background on the project and on the work of the Committee, see Matthew R. Goode, ‘The Model Criminal Code Project’ (1997) 5:4 Australian Law Librarian 265–76; Matthew R. Goode, ‘Constructing criminal law reform and the Model Criminal Code’ (2002) 26:3 Criminal Law Journal 152–66; and Matthew R. Goode, ‘Codification of the criminal law?’ (2004) 28 Criminal Law Journal 226–36. David Nash, Blasphemy in the Christian World:  A  History (Oxford:  Oxford University Press, 2007), p. 22. I use the term ‘blasphemous acts’ in a non-stipulative sense here and as including speech acts and expression as well as behaviour generally. See Helen Pringle, ‘Blaspheming in the Suburbs: The Offence of Blasphemy in a Free Speech Regime’, paper presented at Australian Political Studies Association Conference 2011.

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That is, a generic category of offensive, obscene, indecent and/or abusive language now catches utterances that might be experienced by some as blasphemous of God’s name or attributes and that formerly might have been charged as blasphemy, thereby ‘neutralising’ the utterance as simply offensive and as putatively offensive to any hearer. A similar example of how this process works is the evolution of broadcasting and communication law in Australia. For example, Section 118 of the Broadcasting Act 1942 (Cth) formerly explicitly prohibited the broadcasting of ‘blasphemous, indecent or obscene’ matter.47 In contrast, the current legislation recommends the adoption by broadcasters of codes of practice that relate to ‘the portrayal in programs of matter that is likely to incite or perpetuate hatred against, or vilifies, any person or group on the basis of ethnicity, nationality, race, gender, sexual preference, age, religion or physical or mental disability [emphasis added]’.48 Religion is thereby caught in the broadcasting legislation as one ground alongside others on which people might be vilified, say. Again, the offence of sending blasphemous material through the postal service was abolished in 1989, replaced by the offence of using postal or telecommunications services to menace or harass a person or in a manner that would be regarded by reasonable persons as ‘offensive’ in the circumstances.

19.3 Attempts to Reform the Regulation of Blasphemy in Australia Proposals to reform or abolish the law against blasphemy in the nineteenth and early twentieth centuries tended to follow in the wake of high-profile prosecutions. Perhaps the most high-profile case in regard to blasphemy was the prosecution of William Lorando Jones for blasphemous libel in New South Wales in 1871, on the basis that he had said that the Old Testament was immoral and unsuitable for women readers. The charge against Jones read, . . . being a wicked and evil disposed person, and disregarding the laws and religion of the said colony, wickedly, profanely, devisedly, and intending to bring the Holy Scriptures and the Christian religion into disrepute and contempt among the people of the said colony, and to blaspheme God unlawfully and wickedly, and blasphemously in the presence and hearing

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As noted in Australian Law Reform Commission, Multiculturalism and the Law, Report 57 (1992), para. 7.8. Broadcasting Services Act 1992 (Cth), s. 123(2)(e).

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helen pringle of divers subjects of our lady the Queen, [he] spoke and pronounced, and with a loud voice published . . . profane and blasphemous words . . . to the high displeasure of Almighty God, to the great scandal and reproach of the Christian religion, to the evil example of all others in the like case offending, and against the peace of Our Lady the Queen, her Crown and Dignity.49

Jones was fined £100 and sentenced to two years in gaol, although he was released four weeks later. On 9 March 1871, following large public protest meetings,50 William Forster introduced a bill into the NSW parliamentary assembly to amend the law relating to blasphemy. The proposed Religious Opinions Act of 1871 provided that ‘no person shall be liable to be prosecuted, either at Common Law or under any Statute, for the offence of blasphemy, or for printing or publishing a blasphemous libel’, while framing as a misdemeanour to ‘wantonly, maliciously, and with intent to provoke a breach of the peace, defame, attack or hold up to ridicule in any public place the religious opinions of any person, or of any religious sect’.51 The bill was defeated decisively, as was a further bill introduced by Mr Forster in 1873, which was limited to the abolition of the offence of blasphemous libel. The prosecution of Jones in 1871 by no means marked the end of high-profile blasphemy prosecutions in Australia. Two prominent cases, in 1919 and 1932, respectively, concerned blasphemous libel, with the charges being made out against people associated with radical socialist and secular politics. In 1919, Robert Samuel Ross, publisher of the magazine Ross’s Monthly, was prosecuted for publishing a satire entitled ‘Bolshevism has broken out in heaven:  God abdicates’. The charge was dropped, and Ross was then prosecuted and found guilty of sending blasphemous material through the post that sought to ‘vilify Almighty God and bring the Holy Scriptures and Christian religion in contempt among the people’.52 Ross was sentenced to six months’ hard labour, although his sentence was reduced to a fine on appeal.53 A petition was presented to 49

50

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R.  v.  William Lorando Jones, unreported, Parramatta Quarter Sessions, Simpson J, 18 February 1871. The charge and pleadings are reported in ‘Parramatta Quarter Sessions 18 February’, Sydney Morning Herald, 20 February 1871, at 3, available at trove.nla.gov.au/ newspaper/article/13215715/. ‘The blasphemy case’, Sydney Morning Herald, 23 February 1871, at 5, available at trove.nla. gov.au/newspaper/article/13222978/. ‘Blasphemy’, Sydney Morning Herald, 15 March 1871, at 5, available at trove.nla.gov.au/ newspaper/article/13222324/. Coleman, Obscenity, Blasphemy, Sedition, pp. 72–3. Ross had previously been brought up on charges in terms of blasphemy provisions of the Postal Act during the war. Ibid., pp. 73–4.

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bring about the abolition of blasphemy provisions after Ross’s conviction, but again the protest came to nothing in terms of a change to the law.54 The second case of note was the conviction of Ann (or Annie) Lennon in 1932. A prominent member of the Rationalist Society who also held various spiritualist tendencies,55 Lennon was arrested for giving a speech to several hundred people in the Domain in Sydney on 23 October 1932. The exact substance of her speech was disputed, but Acting Judge Nield in the Quarter Sessions Appeal Court dismissed an appeal against her conviction on 14 February 1933, finding that the language used was ‘a blasphemous libel and unseemly in the highest degree’.56 The section of her speech that was particularly offensive was quoted as saying that ‘this great he-man, your God, likes bloodshed and the smell of burning flesh, and all this stands for barbarism’.57 Lennon took her appeal to the High Court, where she was represented by Clive Evatt and Albert Piddington, a former appointee to the Court. Lennon’s case concerned the validity of the by-law under which she had been convicted rather than being a challenge to blasphemy provisions, and she was refused leave to appeal.58 In regard to this case, there is no record of public agitation to change the laws on blasphemy. It should be noted that alongside this handful of high-profile cases, attracting public controversy, the regulation of blasphemous speech through police offences law was an almost daily occurrence throughout the nineteenth century and well into the 1940s in most Australian jurisdictions. These cases were explicitly charged as blasphemy or blasphemous words under summary offences laws until the late 1940s, before the category was absorbed into ‘offensive language’ or ‘offensive behaviour’ provisions. Such routine prosecutions and convictions did not always come to trial or to legal reporting. Detailed research in metropolitan and regional newspaper reports, made feasible by digital collections, now

54 55

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58

Ibid., p. 74. Osred, Odinism: Present, Past and Future (Melbourne: Renewal Publications, 2010), 196–202, provides one of the very few accounts of Lennon and her conviction, although it is valuable for information about Lennon rather than a scholarly perspective on questions of blasphemy. ‘Domain Speaker Fined for Unseemly Language: Magistrate’s Comment’, Sydney Morning Herald, 21 December 1932, at 8, available at trove.nla.gov.au/newspaper/article/16939889/. ‘In Bible: Early Jews and Divinity – Court Views’, Sun (Sydney), 7 February 1933, at 11, available at trove.nla.gov.au/newspaper/article/228901252/. Lennon v. Collings, 24 April 1933, transcript of appeal application, NSW Local Government Reports 11, 89–96.

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makes it possible to present a fuller picture of the way in which blasphemy was policed in Australia on the level of the ‘street’.59 The discipline of blasphemous tongues was by no means as sporadic as portrayed in such histories as that by Peter Coleman.60 Such research also displaces to some extent a picture of a gradual progressive movement away from reliance on blasphemy laws by the state. As late as 1994, for example, the Victorian government formulated new regulations, since repealed, that made it an offence, inter alia, to ‘use any blasphemous, indecent, insulting, offensive, profane, violent or threatening language or gesture to the annoyance or hindrance of any other person’ in a public passenger vehicle.61 Given such close policing of blasphemy as summary offences, the apparent indifference of ‘a society largely untroubled’ either by blasphemy or by the continued existence of laws against it seems odd. This indifference is even more peculiar in the context of a modern cultural and political environment inflected towards human rights. Judicial consideration of or even commentary on the consistency of blasphemy laws with human rights obligations is absent. Australia has ratified the full range of international human rights instruments, but the compatibility of blasphemy provisions in Australia with its international human rights commitments has not been tested in Australian courts.62 For example, although Australia signed the International Covenant on Civil and Political Rights (ICCPR) in 1972, scant governmental attention has been given to important clarifications in regard to blasphemy laws such as General Comment 34 (2011), which deems ‘[p]rohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws’ as incompatible with the ICCPR (although with certain limited exceptions).63 Although it is often noted that Australia does not have a Bill or Charter of Rights in the manner of, say, the United States or Canada, there is some ‘wriggle room’ in the Constitution for appeal to human 59

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See on the use of such materials in legal research Kim Stevenson, ‘Unearthing the realities of rape: Utilising Victorian newspaper reportage to fill in the contextual gaps’ (2007) 28 Liverpool Law Review 405–23, and particularly Jeremy Patrick, ‘Beyond case reporters: Using newspapers to supplement the legal-historical record (a case study of blasphemous libel)’ (2011) 3 Drexel Law Review 539–60. Coleman, Obscenity, Blasphemy, Sedition. Transport (Passenger Vehicles) Regulations 1994 (Vic) s. 33.2(a). As noted by Peter MacFarlane and Simon Fisher, Churches, Clergy and the Law (Sydney : Federation Press, 1996), pp. 191–92. UN Human Rights Committee (HRC), General Comment no. 34, Article 19, Freedoms of opinion and expression, 12 September 2011, CCPR/C/GC/34, para. 48, available at www2 .ohchr.org/english/bodies/hrc/docs/GC34.pdf.

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rights considerations. For example, it is striking that Section 116 of the Constitution sets out similar wording on securities and immunities in regard to religion and religious practices as does the First Amendment to the US Constitution. Section 116 reads: ‘ The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth’.64 There is, however, only an extremely small body of jurisprudence around Section 116, and the section does not lie at the heart of Australian constitutional history. Even its placement in the Constitution, the constitutional historian John A. LaNauze has argued, was almost an afterthought.65 There is also room for appeal in terms of human rights through constitutional interpretation. In a series of cases from the early 1990s, the Australian High Court has found an implied guarantee of freedom of political communication in the Constitution, which has been affirmed and arguably widened since that time.66 A handful of governmental and semi-governmental reports since the 1970s have noted the survival of blasphemy laws and made recommendations for their removal, latterly in terms of human rights considerations of the freedom of speech in particular. However, it seems that none of these recommendations has been the subject of parliamentary debate as to their merits. In 1977 the South Australian Criminal Law and Penal Methods Reform Committee commented that the offence of blasphemous libel was ‘obsolete’ and recommended its abolition.67 In 1992, a report of the Australian Law Reform Commission (ALRC) on Multiculturalism and the Law recommended that ‘all references to blasphemy in federal legislation should be removed … [and] Offences that protect personal and

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Commonwealth of Australia Constitution, s. 116, www.aph.gov.au/About_Parliament/ Senate/Powers_practice_n_procedures/Constitution. The First Amendment to the US Constitution begins, ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …’ See also Weaver’s chapter to this volume, ‘Blasphemy Prohibitions and Prosecutions: A U.S. Perspective’. See John A. La Nauze, The Making of the Australian Constitution (Melbourne: Melbourne University Press, 1972), p. 228. A useful survey is Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (London: Ashgate, 2000). South Australian Criminal Law and Penal Methods Reform Committee, The Substantive Criminal Law (4th Report, 1977), 248.

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religious sensibilities should be recast in terms of “offensive material”’.68 The commonwealth government had referred various questions to the ALRC for consideration in the context of ‘whether the principles underlying the relevant law, and the mechanisms available for resolving disputes arising under or concerning the law, take adequate account of the cultural diversity present in the Australian community’.69 The Terms of Reference made note of Australia’s multiculturalism, as well as provisions of the International Covenant on Civil and Political Rights and of the International Convention on the Elimination of All Forms of Racial Discrimination.70 Section 7 in the final report, ‘Maintaining harmony and peaceful coexistence’, concluded with the question ‘Should references to blasphemy in federal law be removed?’ As an example of its preferred approach in terms of ‘offensive material’, the Commission recommended amending broadcasting legislation to include ‘a provision prohibiting the broadcast of material that is likely to incite hatred or hostility against, or gratuitously vilify, any person or group on the basis of, at least, colour, race, religion or national or ethnic origin’.71 The NSW Law Reform Commission also recommended the abolition of the offence in 1994, arguing that ‘modern anti-discrimination legislation is a superior vehicle to promote religious freedom and social tolerance, and to remedy conflict based on social difference’.72 Both the ALRC and the NSWLRC had received submissions arguing for the retention of blasphemy law and its extension to the protection of non-Christian tenets.73 In 1998, the Human Rights and Equal Opportunity Commission (HREOC, now AHRC) published its report Article 18: Freedom of Religion and Belief, making a series of recommendations about freedom and

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Australian Law Reform Commission (ALRC), Multiculturalism and the Law, Report 57 (1992), paras. 7.51–7.59, available at www.alrc.gov.au/report-57. Submissions in regard to blasphemy were also made to the ALRC in regard to its inquiry on censorship, Censorship Procedure, Report 55 (1991), para. 6.7, available at www.alrc.gov.au/report-55. At that time, the Customs (Prohibited Imports) Regulations 1956 and the Customs (Cinematograph Films) Regulations to the Customs Act 1901 prohibited import and import of blasphemous material, and the Broadcasting and Television Act 1942 (Cth), para. 118, prohibited the broadcasting of ‘blasphemous, indecent or obscene’ matter (see discussion of the case of Strickland v. Ogle above). ALRC, Report 57. Ibid. Ibid., paras. 7.11–7.16. New South Wales Law Reform Commission (NSWLRC), Blasphemy, Report 74 (1994), para. 4.23. ALRC, Report 57, para. 7.57, referring to NSWLRC, Discussion Paper 24.

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discrimination in relation to religion in the form of a proposed Religious Freedom Act, consistent with Article 18 of the ICCPR, the Covenant’s freedom-of-religion or belief provision. It also recommended the abolition of laws against blasphemy in states and territories. In 2008, the AHRC began a follow-up project to its 1998 paper, at the same time as the Labor government launched a National Human Rights Consultation to consider the protection and promotion of human rights in Australia. This series of inquiries and reports has not led to the removal of blasphemy provisions but has set the principles for the controversial introduction in Australia of laws against religious vilification, which are often claimed to do the work of blasphemy laws, under cover of anti-discrimination values.

19.4

The Challenge of Laws against Religious Vilification: The Afterlife of Blasphemy Law?

It is often considered desirable in liberal democracies to address religious insult or outrage generally in terms of such neighbouring categories as offensiveness and obscenity, by absorbing remnants of the injury of blasphemy, although not blasphemy itself, as part of a ‘facially neutral’ category of offensive language or behaviour.74 This attempt to refashion injury to persons on the basis of their religion through anti-vilification laws, in a similar fashion to injury on the basis of their race or ethnicity, also accomplishes a broadening of the reach of such protections beyond Christians or Christian beliefs. Although not specifically tested at law in Australia, the limit of the offence of blasphemy to Christian beliefs is also assumed to apply in Australia, even in the absence of an Established Church as in England.75 In Australia, religion is not a universally accepted ground in jurisdictions with laws against vilification or hate speech. The Commonwealth, all states and the ACT (but not the Northern Territory) have enacted broadly similar laws against racial vilification,76 but only three states also expressly address religious vilification:  Queensland, Tasmania and Victoria. For example, Section 8(1) of the Victorian Racial and Religious Tolerance Act 74 75

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See Helen Pringle, ‘Regulating offence to the godly’. See Pell v. The Council of Trustees of the National Gallery of Victoria [1998] 2VR 391, discussed earlier. A comprehensive exploration of the development of these laws can be found in Luke McNamara, Regulating Racism: Racial Vilification Laws in Australia (Sydney :  Federation Press, 2002); see also Dan Meagher, ‘So far so good? A critical evaluation of racial vilification laws in Australia’ (2004) 32 Federal Law Review 225–53.

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2001 (RARTA) provides that ‘A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons’.77 The two most notable cases under this section of the Act are the Catch the Fire case, which was initiated in 2003 and reached a final resolution in mid-2007, and the case of Fletcher in 2005. The difficult history of the RARTA in the resolution of these two cases is widely cited as the background of a retreat by other Australian states from including religion as a ground of legislation against vilification. Plans to legislate in this way were shelved in South Australia in 2002–200378 and in Western Australia in 2004.79 In 2005, the then Premier Bob Carr noted in regard to the NSW Anti-Discrimination Amendment (Religious Tolerance) Bill (the ‘Breen bill’)80 that such laws ‘can be highly counterproductive’ and cited ‘the Victorian experience’ as the basis of his misgivings. Premier Carr pointed in particular to the case of Fletcher81 as exemplifying the danger and misuse of such legislation: Religious vilification laws are difficult because just about anyone can have resort to them and because determining what is or is not a religious belief is difficult. It can be defined as just about anything. It is subjective. It is a personal question. As they are used in practice religious vilification laws can undermine the very freedom they seek to protect – freedom of thought, conscience and belief. It has been suggested that the right to offend is far more important than any right not to be offended.82

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Other complaints under the Act are noted by Dermot Feenan, ‘Religious vilification laws: Quelling fires of hatred?’ (2006) 31:3 Alternative Law Journal 153–58, at fn 16. Following, for example, South Australia Attorney-General’s Department, Discussion Paper: Proposal for a New Law against Religious Discrimination and Vilification (2002). Following Western Australia Equal Opportunity Commission, Racial and Religious Vilification: Consultation Paper (2004), available at www.equalopportunity.wa.gov.au/pdf/ vilification.pdf. See Gareth Griffith, Sedition, Incitement and Vilification: Issues in the Current Debate, NSW Parliamentary Library Research Service Briefing Paper No. 01/2006 (2006), Appendix A  and 68–72, available at www.parliament.nsw.gov.au/researchpapers/Documents/ sedition-incitement-and-vilification-issues-in-t/Sedition%20FINAL.pdf. Fletcher v. Salvation Army Australia (Anti Discrimination) [2005] VCAT 1523 [Fletcher], and Fletcher v. The Salvation Army (Costs) (Anti Discrimination) [2006] VCAT 740. New South Wales Parliamentary Debates [NSWPD], Legislative Assembly, Religious Vilification Legislation, 21 June 2005.

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The problem of religious vilification laws to which Premier Carr points, phrased in more intellectually compelling terms, is that the RARTA restricts the free expression and discussion of specifically religious ideas, placing certain theological questions outside the ambit of permissible debate.83 In other words, the RARTA and other laws against religious vilification are characterised as doing the work of a law against blasphemy under a cloak of redressing discrimination, thereby becoming subject to many of the criticisms made against blasphemy law and, in particular, the inappropriate adjudication by a secular forum of matters and disputes around theological orthodoxy. Criticism of laws against religious vilification often takes a similar form to criticism of laws against blasphemy: that it is not the role of law in a modern secular state to adjudicate as to the truth or falsity of (religious) ideas. Such a role would involve the state in what Reid Mortensen has called ‘state sponsorship of religion’ through defining the boundaries of religiously permissible expression.84 Laws against religious vilification are of course not framed as attempts to uphold a theological truth, but the adjudication of disputes under such laws runs the risk of making judgments as to theological truth and falsity. Especially where the conceptualisation of the wrong of vilification is phrased in terms of disturbance of communal harmony, as in the RARTA,85 it is difficult to avoid consideration of the question of religious orthodoxy; an assertion of heterodoxy will be often, if not always, understood (by the relevant set of believers) 83

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The literature on such questions includes: Kay Goodall, ‘Incitement to religious hatred: All talk and no substance?’ (2007) 70:1 Modern Law Review 89–113; Garth Blake, ‘Promoting religious tolerance in a multifaith society’; Ivan Hare, ‘Crosses, crescents and sacred cows: Criminalising incitement to religious hatred’ (2006) Public Law 521–38; Ivan Hare and James Weinstein (eds.), Extreme Speech and Democracy (Oxford: Oxford University Press, 2009), esp. Part III; Rex Tauati Ahdar, ‘Religious vilification: Confused policy, unsound principle and unfortunate law’ (2007) 26 University of Queensland Law Journal 293–316; Peter Cumper, ‘Inciting religious hatred: Balancing free speech and religious sensibilities in a multi-faith society’, in Nazila Ghanea, Alan Stephens and Raphael Walden (eds.), Does God Believe in Human Rights? Essays in Religion and Human Rights (The Hague: Brill/ Nijhoff, 2007); Nicholas Aroney, ‘The constitutional (in)validity of religious vilification laws: Implications for their interpretation’ (2006) 34 Federal Law Review 287–318; Joel Harrison, ‘Truth, civility, and religious battlegrounds: The contest between religious vilification laws and freedom of expression’ (2006) 12 Auckland University Law Review 71–96, at 94–6. Reid Mortensen, ‘Blasphemy in a secular state’. The Act’s Preamble sets out the reasons for the desirability of the Parliament’s enacting a ‘law for the people of Victoria that supports racial and religious tolerance’. The purpose of the Act is set out in Section 1(a) as being ‘to promote racial and religious tolerance by prohibiting certain conduct involving the vilification or persons on the ground of race or

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as an attack on their identity, and not just on their beliefs – and hence as an incitement to hatred with subsequent effects on communal harmony.86 It should be noted here that racial vilification laws have been interpreted in Australia to also cover some forms of religious vilification, notably through the use of the category of ‘ethno-religious origin’. For example, the definition of ‘race’ in NSW discrimination law was amended in 1994 to include ‘colour, nationality, descent and ethnic, ethno-religious or national origin’.87 The then Attorney-General John Hannaford argued that the effect of the amendment was ‘to clarify that ethno-religious groups, such as Jews, Muslims and Sikhs, have access to the racial vilification and discrimination provisions of the Act’.88 Concerns have been expressed that the use of the category of ‘ethno-religious origin’ might import ‘religion’ per se as a ground of discrimination. This concern was raised, for example, in consideration of a complaint by a Jewish father that Christian rituals and celebrations at his children’s state school in NSW amounted to racial discrimination. The complaint was dismissed on the basis that specifically religious aspects of Judaism do not fall in the category of ‘race’ where defined in terms of ‘ethno-religious origin’.89 It was noted on appeal that ‘[i]t is not a legitimate construction of the [AntiDiscrimination] Act to import, by the back door, a prohibition on religious discrimination by including the practice of the religion generally associated with or observed by a particular ethno-religious group within the concept of “a characteristic that appertains generally to persons of that race”’.90 The limit placed on the significance and scope of ‘ethno-religious

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religious belief or activity’. In the commonwealth and in other states, in contrast, the provisions directed against vilification or racial hatred do not stand alone but find a place in anti-discrimination or equal-opportunity laws; the requirement of discrimination by less favourable treatment or disparate impact is thus implied in the vilification provisions even where not explicitly stated. The implied overall object of such provisions is the redress of discrimination, along the lines set out in the long titles of the framing acts. I have explored in greater detail the significance of this difference in framing in ‘Legislation against religious hatred: Addressing blasphemy or discrimination?’, in Darvesh Gopal and Alan Mayne (eds.), Re-Imagining Australia and India: Culture and Identity (Delhi: Pentagon Press, 2011). See Deepali Ann Fernandes, ‘Protection of religious communities by blasphemy and religious hatred laws: A comparison of English and Indian laws’ (2003) 45 Journal of Church & State 669–97, at 673–74. Anti-Discrimination Act 1977 (NSW), Section 4.  Section 3 of the Tasmanian AntiDiscrimination Act 1998 includes a similar understanding of ‘race’. NSWPD, Legislative Council, Anti-Discrimination (Amendment) Act, Second Reading, Hon. J. P. Hannaford, 12 May 1994. A obo V and A v. NSW Department of School Education [1999] NSWADT 120. A obo V and A v. NSW Department of School Education [2000] NSWADTAP 14, para. 20. The meaning of ‘ethno-religious’ has been considered in some detail in

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origin’ by discrimination tribunals reflects a reluctance to treat religion and race as comparable grounds of discrimination, particularly in regard to vilification. Since the RARTA became law in Victoria on 1 January 2002, very few complaints have reached the level of judicial or quasi-judicial determination91 by the Victorian Civil and Administrative Tribunal (VCAT), with most being conciliated or resolved in mediation by the Tribunal. The most high-profile case concerned a seminar on Islam held in Melbourne in 2002 by Pastor Daniel Nalliah of Catch the Fire Ministries (CFM), with Pastor Daniel Scot.92 The Islamic Council of Victoria filed a complaint with the Equal Opportunity Commission of Victoria, alleging unlawful acts in contravention of the RARTA, through the making of statements that incited scorn, fear and hatred of Muslims.93 A final resolution of the case was reached in 2006 after the appeal by Pastors Scot and Nalliah of unfavourable judgments was upheld in the Victorian Supreme Court.94

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Khan v. Commissioner, Department of Corrective Services [2002] NSWADT 131, in regard the provision of Halal food to Muslim prisoners. Specifically in regard to vilification, see also Trad v. Jones and Anor [2008] NSWADT 272 and Trad v. Jones and Anor (No 3) [2009] NSWADT 318; Ekermawi v. Harbour Radio Pty Ltd, Ekermawi v. Nine Network Television Pty Limited [2010] NSWADT 145, and Ekermawi v. Harbour Radio Pty Ltd, Ekermawi v. Nine Network Television Pty Ltd (No. 2) [2010] NSWADT 198. I hesitate in using the adjective ‘judicial’ to refer to what is perhaps more correctly characterised as an ‘adjudicative’ determination by the VCAT. As no point in contention in this article rests on the distinction, I simply note my cognisance of the discussion around related points in Brandy v. HREOC (1995) 183 CLR 245, esp. 257–259; Aboriginal Legal Aid Service Inc v. Bradley (2004) 218 CLR 146; and Commonwealth v. Wood (2006) 148 FCR 276. A transcript of the seminar, Daniel Scot Seminar 9th March 2002, is available at www .religionlaw.co.uk/interausae.pdf. See also Mark Durie, Witness Statement, Islamic Council of Victoria Inc v. Catch the Fire Ministries Inc, 2 October 2003, available at www.saltshakers .org.au/images/stories/attachments/284_313278_VCAT_-_DOCUMENTS_RELATIN .pdf; and Hanifa Deen, The Jihàd Seminar: A True Story of Religious Vilification and the Law (Perth: University of Western Australia Press, 2008). Islamic Council of Victoria Inc v. Catch the Fire Ministries Inc [2003] VCAT 1753. In brief, it was found that the initial VCAT decision by Judge Higgins had made two errors of law in the construction of the RARTA. First, the Tribunal had interpreted the words ‘on the grounds of religious belief ’ as pertaining to the ground on which the alleged inciter was actuated rather than the ground on which the audience was incited to hatred. Second, the Tribunal had considered the effect of the seminar on an ordinary reasonable person rather than on the actual audience. See Catch the Fire Ministries Inc Ors v. Islamic Council of Victoria Inc [2006] VSCA 284. The matter was successfully mediated after a request by the Islamic Council, with the Tribunal’s Annual Report for 2006–2007 heralding the settlement as bringing to bear ‘the intelligence, wisdom and generosity of the parties and their legal teams’: Victorian Civil and Administrative Tribunal, 2006–2007 Annual Report, at 42.

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The resolution of this case at its various stages is marked by attempts to distinguish the object of the Act as not concerned with the enforcement of theological orthodoxy. Such a concern was also expressed in the second major case under the RARTA, that of Fletcher. Robin Fletcher was gaoled for ten years in 1998 after pleading guilty to multiple counts of child sexual assault and prostitution and attempting to pervert the course of public justice. Fletcher’s complaint concerned a prison course conducted by the Salvation Army, which he asserted involved the making of inflammatory remarks and the causing of hatred towards Wiccans, astrologers and occultists. Fletcher professed to be a follower of Wicca and had committed his crimes in his capacity (he said) as a witch.95 The VCAT summarily dismissed Fletcher’s claim under the RARTA as ‘preposterous’. Justice Morris stressed that the Act ‘is reserved for extreme situations – such as where a person engages in conduct that inflames others to hate a person or persons because they adhere to an idea or practice or are of a particular race’.96 Justice Morris noted, for example, that Fletcher’s complaint that the Salvation Army course implied that witches are Satanists was not capable of raising an issue of ‘vilification’ under the Act, but rather the question was part of ‘an arid and irrelevant theological debate’.97 Underlying the dismissal of Fletcher’s complaint as ludicrous can be made out a concern for a necessary link between the complaint and a ground of discrimination.

19.5 Concluding Remarks I would argue that religious vilification laws are necessarily vulnerable to criticisms made of blasphemy laws. However, a case for laws against religious vilification in a modern plural society can have merit (or not) along the same lines as the case for laws against racial vilification. The interpretation of vilification provisions could usefully be undertaken in more explicit accordance with the framework of discrimination that regulates forms of conduct included in the acts within which such provisions are almost always placed. My point here is that the test of unlawful vilification should not be offence but rather discrimination. If we think of the problem of vilification in terms of the harm of discrimination, it also enables us to understand that the demise of blasphemy is to be 95 96 97

Fletcher v. Salvation Army Australia (Anti Discrimination) [2005] VCAT 1523 [Fletcher]. Ibid., para. 1. Ibid., para. 12.

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welcomed not only in ending involvement of the state in theological orthodoxy but in enabling a rethinking of the proper grounds on which to regulate offence and insult to the godly. If the vilification provisions are to do the work of the anti-discrimination laws in which they are usually placed, their formulation should explicitly take cognizance of offence only where it is related to or is a form of discrimination that erodes or undermines civil standing.

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20 Blasphemy Prohibitions and Prosecutions A US Perspective

Russell L.   Weaver

20.1

Introduction

The crime of blasphemy, which developed in Europe during the Middle Ages,1 has a long history in the Americas. During the seventeenth century, blasphemy prosecutions were commonplace in the British colonies in America,2 and the penalties for blasphemous speech could be severe, involving fines,3 the searing of an offender’s tongue with a hot iron4 or even capital punishment.5 Although there were blasphemy prosecutions after the seventeenth century, prosecution rates declined significantly.6 In the modern-day United States, blasphemy prosecutions have essentially become a historical relic. If either the federal government or the states tried to undertake a blasphemy prosecution, the prosecution is likely to face serious constitutional challenges, and the prohibition is likely to be invalidated under two separate clauses of the First Amendment to the US Constitution: the Establishment Clause and the Free Speech Clause.

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See Justin Kirk Houser, ‘Is hate speech becoming the new blasphemy? Lessons from an American constitutional dialectic’, 114 Pennsylvania State Law Review 571 (2009). See Stuart Banner, ‘When Christianity was part of the common law’, 16 Law & History Review 27 (1998) 33. A Pennsylvania law enacted in 1700 created the following crime: ‘whosoever shall wilfully, premeditatedly and despitefully blaspheme, and speak loosely and profanely of Almighty God, Christ Jesus, the Holy Spirit, or the Scripture of Truth, and is legally convicted thereof, shall forfeit and pay the sum of ten pounds’. See Updegraph v. Commonwealth, 11 Serg. & Rawle 394, 398 (Penn. 1824). Banner, ‘When Christianity was part of the common law’, at 33. Ibid. See also Furman v.  Georgia, 408 U.S. 238, 335 (1972) (noting that the laws of the Massachusetts Bay Colony made it a capital offense to engage in, among other things, idolatry, witchcraft or blasphemy.) Banner, ‘When Christianity was part of the common law’, at 33.

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This chapter does two things. First, it provides a short history of blasphemy statutes and prosecutions following establishment of the United States as a separate nation. Second, it discusses why blasphemy prosecutions are impermissible today under the First Amendment.

20.2 Blasphemy Prosecutions following the American Revolution Not only were there numerous blasphemy prosecutions during the colonial period, there were some prosecutions following establishment of the United States as a separate and independent nation. As the Court noted in Paris Adult Theater I v. Slaton,7 most of the states that ratified the US Constitution enacted statutes prohibiting blasphemy.8 These prohibitions were noted in various US Supreme Court decisions, including New York v. Ferber9 and Roth v. United States.10 Illustrative is a Massachusetts statute which prohibited the ‘Composing, Writing, Printing or Publishing, of any Filthy, Obscene or Prophane Song, Pamphlet, Libel or Mock-Sermon, in Imitation or in Mimicking of Preaching, or any other part of Divine Worship’.11 7 8 9 10

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413 U.S. 49 (1973). Ibid., at 104. 458 U.S. 747, 755 (1982). 354 U.S. 476, 484–485 (1957). In that case, the Court noted that the following anti-blasphemy laws: Act for the Punishment of Divers Capital and Other Felonies, Acts and Laws of Conn. 66, 67 (1784); Act Against Drunkenness, Blasphemy, ss. 4, 5 (1737), 1 Laws of Del. 173, 174 (1797); Act to Regulate Taverns (1786), Digest of the Laws of Ga. 512, 513 (Prince 1822); Act of 1723, c. 16, s. 1, Digest of the Laws of Md. 92 (Herty 1799); General Laws and Liberties of Mass. Bay, c. XVIII, s. 3 (1646), Mass. Bay Colony Charters & Laws 58 (1814); Act of 1782, c. 8, Rev. Stat. of Mass. 741, s. 15 (1836); Act of 1798, c. 33, ss. 1, 3, Rev. Stat. of Mass. 741, s. 16 (1836); Act for the Punishment of Certain Crimes Not Capital (1791), Laws of N.II. 252, 256 (1792); Act for the Punishment of Profane Cursing and Swearing (1791), Laws of N.II. 258 (1792); Act for Suppressing Vice and Immorality, ss. VIII, IX (1798), N.J. Rev. Laws 329, 331 (1800); Act for Suppressing Immorality, s. IV (1788), 2 Laws of N.Y. 257, 258 (Jones & Varick 1777–1789); People v. Ruggles, 1811, 8 Johns., N.Y., 290; Act for the More Effectual Suppression of Vice and Immorality, s. III (1741), Act to Prevent the Grievous Sins of Cursing and Swearing (1700), II Statutes at Large of Pa. 49 (1700–1712); Act for the Prevention of Vice and Immorality, s. II (1794), 3 Laws of Pa. 177, 178 (1791–1802); Act to Reform the Penal Laws, ss. 33, 34 (1798), Laws of R.I. 584, 595 (1798); Act for the More Effectual Suppressing of Blasphemy and Prophaneness (1703), Laws of S.C. 4 (Grimke 1790); Act, for the Punishment of Certain Capital, and Other High Crimes and Misdemeanors, s. 20 (1797), 1 Laws of Vt. 332, 339 (Tolman 1808); Act, for the Punishment of Certain Inferior Crimes and Misdemeanors, s. 20 (1797), 1 Laws of Vt. 352, 361 (Tolman 1808); Act for the Effectual Suppression of Vice, s. 1 (1792), Acts of General Assembly of Va. 286 (1794). Ibid. (quoting Acts and Laws of Massachusetts Bay Colony [1726], Acts of 1711–1712, c. 1, p. 218.).

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Following the adoption of the First Amendment to the United States Constitution, although the US Supreme Court did not directly address the issue, it suggested that prohibitions against blasphemy were constitutional under the First Amendment. For example, in Robertson v. Baldwin,12 a habeas corpus case, the Court stated in dicta that ‘freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation’.13 The Court made similar statements in Ferber14 and Roth.15 State court decisions were in accord. For example, in Knapp v. Post Printing & Pub. Co.,16 the Supreme Court of Colorado stated: ‘[Liberty of the press] implies a right to freely publish whatever the citizen may please, and to be protected against responsibility therefor, unless such publication is a public offense because of blasphemy, obscenity or scandalous character, or, because of falsehood and malice, it injuriously affects the standing, reputation or pecuniary interests of individuals’.17 During the early years of the nation, there were several blasphemy prosecutions in the individual states.18 In, for example, People v. Ruggles,19 the defendant was convicted of blasphemy for alleging that ‘Jesus Christ was a bastard, and his mother must be a whore’. In upholding the conviction, the court defined blasphemy as the action of ‘maliciously reviling God, or religion’, or Christianity,20 and noting that, ‘wicked and malicious words, writings and actions which go to vilify those gospels, continue, as at common law, to be an offence against the public peace and safety’.21 The court emphasized that Ruggles did not offer his comments as part of a serious discussion regarding the merits of religion but did so with a ‘wicked’ and ‘malicious’ intent.22 While the court recognized that the ‘free, equal, and undisturbed, enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted 12 13 14 15 16 17 18 19 20 21 22

165 U.S. 275 (1897). Ibid., at 281. Ferber, supra, 458 U.S. at 755. Roth, supra, 354 U.S. at 484–85. 144 P.2d 981 (Colo. 1943). Ibid., at 985. Ibid., at 33–39. 8 Johns 290 (S. Ct. N.Y. 1811). Ibid., at 293. Ibid., at 297. Ibid., at 293 (‘After conviction, we must intend that these words were uttered in a wanton manner, and, as they evidently import, with a wicked and malicious disposition, and not in a serious discussion upon any controverted point in religion’).

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and secured’, it concluded that ‘to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right’.23 Likewise, in Updegraph v.  Commonwealth,24 a man was indicted for blasphemy for stating ‘that the Holy Scriptures were a mere fable, that they were a contradiction, and that although they contained a number of good things, yet they contained a great many lies’.25 The prosecution was based on a law, enacted in 1700, which provided ‘that whosoever shall wilfully, premeditatedly and despitefully blaspheme, and speak loosely and profanely of Almighty God, Christ Jesus, the Holy Spirit, or the Scripture of Truth, and is legally convicted thereof, shall forfeit and pay the sum of ten pounds’.26 The indictment focused specifically on his statements regarding religion which the Court viewed as being violative of the statute.27 Updegraph was convicted and ordered to pay court costs and a fine.28 In upholding the conviction, the court stated in Updegraph that the government has the right to punish attacks on Christianity:  ‘It has long been firmly settled, that blasphemy against the Deity generally, or an attack on the Christian religion indirectly, for the purpose of exposing its doctrines to ridicule and contempt, is indictable and punishable as a temporal offence’.29 As in Ruggles, the court found ‘a malicious intention to vilify the Christian religion and the scriptures’, and ignored the fact ‘that the words were uttered by the defendant, a member of a debating association, which convened weekly for discussion and mutual information, and that the expressions were used in the course of argument on a religious question’.30 Indeed, the court expressed regret that ‘there is an association in which so serious a subject is treated with so much levity, indecency and 23 24 25 26 27

28 29 30

Ibid., at 295. 11 Serg. & Rawle 394, 398 (Penn. 1824). Ibid., at 398. Ibid. Ibid. (‘It charges the defendant with contriving and intending to scandalize and bring into disrepute, and vilify the Christian religion, and the scriptures of truth; and that he, in the presence and hearing of several persons, unlawfully, wickedly, and premeditatedly, despitefully and blasphemously, did say, among other things, in substance, as follows: “that the Holy Scriptures were a mere fable, that they were a contradiction, and that although they contained a number of good things, yet they contained a great many lies”: and the indictment concludes, to the great dishonor of Almighty God, to the great scandal of the profession of the Christian religion, to the evil example of all others in like case offending, and against the form of the act of assembly in such case made and provided’). Ibid., at 394–5. Ibid., at 405. Ibid., at 399.

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scurrility’,31 because it regarded such an association as ‘a nursery of vice’ that would ‘prepare young men for the gallows, and young women for the brothel, and there is not a skeptic of decent manners and good morals, who would not consider such debating clubs as a common nuisance and disgrace to the city’.32 The court concluded by noting that the defendant’s words could not have been spoken ‘seriously and conscientiously’ because they involved an ‘out-pouring of an invective, so vulgarly shocking and insulting, that the lowest grade of civil authority ought not to be subject to it’.33 Despite its holding, the court emphasized in Updegraph that a distinction must be made between a serious discussion of religious ideas and blasphemy: The principles and actual decisions are, that the publication, whether written or oral, must be malicious, and designed for that end and purpose; both the language of indictments, and the guarded expressions of judges show, that it never was a crime at the common-law, seriously and conscientiously to discuss theological and religious topics, though in the course of such discussions doubts may have been created and expressed, on doctrinal points, and the force of a particular proof of Scripture evidence casually weakened, or the authority of particular important texts disputed; and persons of a different religion, as Jews, though they must necessarily deny the authenticity of other religions, have never been punished as blasphemers or libelers, at common law for so doing. All men of conscientious religious feeling ought to concede outward respect to every mode of religious worship.34

Nevertheless, the court concluded that defendants could be prosecuted because no ‘society can tolerate a wilful and despiteful attempt to subvert its religion, no more than it would to break down its laws – a general, malicious and deliberate intent to overthrow Christianity, general Christianity. This is the line of indication, where crime commences, and the offence becomes the subject of penal visitation’.35 A similar decision was rendered in State v. Chandler36 in which the defendant was charged with proclaiming ‘publicly and maliciously, with intent to vilify the Christian religion and to blaspheme God’, that ‘the 31 32 33 34 35 36

Ibid. Ibid. Ibid. Ibid., at 405. Ibid., at 406. 2 Harr. 553, 2 Del. 553 (1837).

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virgin Mary was a whore, and Jesus Christ was a bastard’.37 In Chandler, the court openly declared that the ‘Christian religion is part of the common law’,38 and that blasphemy against the Deity in general, or a malicious and wanton attack against the Christian religion generally, ‘for the purpose of exposing its doctrines to contempt and ridicule, is indictable and punishable as a temporal offence’.39 As in Updegraph, the court emphasized that individuals could not be prosecuted for ‘mere opinions’ regarding religion.40 However, the court held that the people of Delaware have ‘the right to prefer any religion they think proper, and the corresponding and correlative right to protection in the exercise of this and all other their [sic] religious principles’.41 The court found that Delaware had chosen Christianity as its protected religion.42 While concluding that individuals could not be prosecuted merely because they are non-conformists or dissenters from Christianity,43 the court emphasized that the crime of blasphemy involves a ‘flagrant violation of decorum’ and an ‘outrage’ on society44 and tends to promote a breach of the peace.45 Conviction requires proof that the statements were made with malice.46 The defendant was convicted even though he fervently averred at trial that the words that he had uttered were true.47 The defendant was fined ten dollars, given ten days’ solitary confinement, and was required to provide sureties for one year after his discharge from imprisonment.48

37 38 39 40 41 42 43 44 45

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Ibid., at 553. Ibid. Ibid., at 555. Ibid., at 556. Ibid., at 567. Ibid. Ibid., at 568. Ibid., at 572. Ibid., at 578 (‘The intent to blaspheme God and the savior of man are laid to show the malice of the offender, and in the first case both are found by the jury. But the gist of the misdemeanor is contained in the charge, that the words were published unlawfully and blasphemously against the peace’). Ibid. (‘Whether expressly laid in such an indictment as this (which counts upon a statute and may follow its words,) or not, the malice or intent of the offender is always traversable as an essential part of the unlawful blasphemy. Thus, if another man was indicted for uttering these words, and the proof should be that he only uttered them in reply to a question what this charge was, without any intent to revile, but merely to satisfy the inquiry, it could not be pretended that the proof sustained the indictment for unlawful blasphemy’). Ibid., at 579. Ibid.

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20.3 Blasphemy Today Decisions like those rendered in Ruggles, Updegraph and Chandler can be regarded as historical anachronisms today. Indeed, in the modern era, it is extremely unlikely that anyone could successfully be prosecuted for blasphemy in the United States. Such prosecutions would be subject to challenge under both the religion clauses and the Free Speech Clause of the First Amendment to the US Constitution.49

20.3.1 The Religion Clauses The religion clauses were enacted as a direct response to conditions that existed during the colonial period and after the American Revolution. Indeed, many who emigrated to the American colonies prior to the Revolution did so seeking to escape religious persecution in Europe.50 In the countries from which they came, there were ‘established’ religions, and individuals who lived in those countries were required to support the established religion and could be aggressively persecuted for practicing other religions. As the US Supreme Court has recognized, A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government favored churches. Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, nonattendance at those churches, expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them.51

Even though the colonists were fleeing persecution, they did not necessarily embrace freedom of religion. Indeed, in some areas, the colonists sought

49 50 51

US Constitution, First Amendment. See Everson v. Board of Education, 330 U.S. 1, 8–9 (1947). Ibid.

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to establish their own religions and to persecute those who disagreed with them.52 Despite the history of persecution, the Framers of the US Constitution did not deem it necessary to include a bill of rights in the Constitution itself,53 and therefore the religion clauses were left out of the original Constitution. The Framers did embrace the ideas of Baron de Montesquieu, who is credited with articulating the doctrine of separation of powers, and incorporated his ideas into the structure of the Constitution.54 The Framers believed that separation-of-powers principles,55 plus the fact that they had created a federal government of limited and enumerated powers,56 obviated the need for a bill of rights. However, the people disagreed and demanded explicit protections.57 When it 52 53

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Ibid. See Wallace v. Jaffree, 472 U.S. 78, 92 (1985) (White, J., dissenting) (‘During the debates in the Thirteen Colonies over ratification of the Constitution, one of the arguments frequently used by opponents of ratification was that without a Bill of Rights guaranteeing individual liberty the new general Government carried with it a potential for tyranny’). Baron de Montesquieu, The Spirit of Laws (New York: Cosimo, 2011), pp. 151–52. He states the theory as follows: ‘[There] is no liberty [if] the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals’ (ibid.). For example, even though Congress was given the power to enact legislation, the Constitution required the president’s signature as a prerequisite to enactment (unless Congress overrides the president’s veto or the president allows the act to become law without his signature). U.S. Constitution, Art. I, Sec. 7 (3). Likewise, although Congress and the president jointly enact legislation, the judiciary is frequently charged with interpreting that legislation and sometimes in striking it down. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Moreover, many powers, such as the foreign affairs power, are shared between the president and Congress. See United States v. Curtiss Wright Export Corp., 299 U.S. 304 (1936). For example, the Senate is charged with ratifying treaties, which the Constitution charges the president with the power to negotiate and make, U.S. Constitution, Art. II, Sec. 2 (2), but only the entire Congress can declare war, U.S. Constitution, Art. I, Sec. 8 (11), and the president is integrally involved in other foreign affairs issues as well. See United States v. Curtiss Wright Export Corp., 299 U.S. 304 (1936). In addition, the Framers created different terms of office for different officials so that a single election could not dramatically shift the course and direction of government. U.S. Constitution, Art. I, Sec. 2 (1). See also Ralph Ketcham, The Anti-Federalist Papers and the Constitutional Convention Debates: The Clashes and Compromises That Birth to our Government (New York: Signet, 1986), p. xv. See U.S. Constitution, Art. I (8). See Wallace v. Jaffree, 472 U.S. 78, 92–93 (1985) (White, J., dissenting) (‘During the debates in the Thirteen Colonies over ratification of the Constitution, one of the arguments

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became clear that the Constitution might not have enough support to gain ratification without the addition of a declaration of rights,58 proponents urged ratification of the Constitution ‘as is’ but promised that the first Congress would create what became the Bill of Rights.59 Only then was ratification possible,60 and the result was the addition of the first ten amendments to the Constitution, which came to be known as the Bill of Rights.61 The Bill of Rights contains two separate provisions dealing with religious issues. The first, the Establishment Clause, prohibits the government from establishing a religion. The second, the Free Exercise Clause, guarantees individuals the right to freely exercise their religions.62 The Establishment Clause of the First Amendment was premised upon fears that the federal government might attempt to establish a national religion and impose it on the nation. Since the Establishment Clause initially applied only to the federal government and not to the states,63 following the American Revolution, many states enacted laws favouring religion. For example, the State of New York enacted statutes on ‘immorality’,64 which provided that the first day of the week should be designated as ‘holy time’ and prohibited ‘profanation of the Lord’s day’ as ‘the great scandal of the Christian faith’.65 New York also enacted a law concerning ‘oaths’ which provided that the common-law mode of administering oaths involved ‘laying the hand on and kissing the gospels’.66

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frequently used by opponents of ratification was that without a Bill of Rights guaranteeing individual liberty the new general Government carried with it a potential for tyranny’). See McDonald v. City of Chicago, 561 U.S. 742 (2010); Marsh v. Chambers, 463 U.S. 783, 816 (1983) (Brennan, J., dissenting) (‘The first 10 Amendments were not enacted because the members of the First Congress came up with a bright idea one morning; rather, their enactment was forced upon Congress by a number of the States as a condition for their ratification of the original Constitution’). Marsh v.  Chambers, 463 U.S. 783, 816 (1983) (Brennan, J., dissenting) (‘The first 10 Amendments were not enacted because the members of the First Congress came up with a bright idea one morning; rather, their enactment was forced upon Congress by a number of the States as a condition for their ratification of the original Constitution’). See McDonald v. City of Chicago, 561 U.S. 742 (2010). U.S. Constitution, Amendments 1–10. U.S. Constitution, First Amendment. See Everson v. Board of Education, 330 U.S. 1 (1947); Cantwell v. Connecticut, 283 U.S. 359 (1940); Stromberg v. California, 283 U.S. 359 (1931). Ibid. Ibid. N.Y. Laws, vol. 1. p. 405. 2 R. S. 407, s. 82.

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Over time, both the Establishment Clause and the Free Exercise Clause were incorporated into the Fourteenth Amendment’s due process clause and applied to the states.67 In other words, those clauses came to be viewed as also prohibiting the states from establishing religions, as well as protecting individuals in the free exercise of their religions.68 Moreover, most state constitutions also contained provisions prohibiting their governments from establishing religions. Although some early judicial decisions held that establishments of religion were prohibited, they upheld state blasphemy laws. For example, in Ruggles, the court stated that ‘though the constitution has discarded religious establishments, it does not forbid judicial cognisance of those offences against religion and morality which have no reference to any such establishment, or to any particular form of government, but are punishable because they strike at the root of moral obligation, and weaken the security of the social ties’.69 It viewed the state constitution as guarding ‘against spiritual oppression and intolerance’ and as declaring that ‘the free exercise and enjoyment of religious profession and worship, without discrimination or preference, should forever thereafter be allowed within this state, to all mankind’.70 However, the court concluded that this declaration never meant to withdraw religion in general, and with it the best sanctions of moral and social obligation from all consideration and notice of the law. It will be fully satisfied by a free and universal toleration, without any of the tests, disabilities, or discriminations, incident to a religious establishment. To construe it as breaking down the common law barriers against licentious, wanton, and impious attacks upon Christianity itself, would be an enormous perversion of its meaning.71

Updegraph similarly rejected an Establishment Clause challenge. In doing so, the court recognized that ‘Christianity, general Christianity, is and always has been a part of the common law of Pennsylvania’72 and that ‘the laws and institutions of this state are built on the foundation of reverence for Christianity’.73 But it rejected an Establishment Clause challenge on the basis that application of that clause might sweep away

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See Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947). Ibid. Ibid., at 296. Ibid. Ibid. Ibid., at 400. Ibid., at 403.

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all of the laws ‘which have Christianity for their object’, including ‘the act against cursing and swearing, and breach of the Lord’s day; the act forbidding incestuous marriages, perjury by taking a false oath upon the book, fornication and adultery, et peccatum illud horribile non nominandum inter Christianos’.74 The court went on to note that these restrictions were ‘founded on Christianity’ and ‘are restraints upon civil liberty’.75 Under modern precedent, which is now applied to the states, the analysis has changed. The US Supreme Court has made it clear that the states may not ‘endorse’ any particular religion.76 In some of the earlier state court blasphemy decisions, such as Ruggles and Updegraph, the courts emphasized that the United States is a ‘Christian’ nation and that the states had the power to prohibit individuals from committing blasphemy against Christianity. Since these laws could be regarded as favouring Christianity over other religions, then they could be regarded as ‘endorsing’ Christianity and therefore might run afoul of the Establishment Clause. Of course, legislators could try to avoid this result by prohibiting blasphemy of all religions. That approach would avoid the risk of discriminating between religions. However, in protecting all religions, the states might run afoul of the Establishment Clause anyway. The Court has held that states may not discriminate between religious believers and nonbelievers.77 Thus, if the states chose to protect all religions, they might run afoul of this precedent. If blasphemy laws are viewed as insulating all religions against criticism, there is a very real risk that they will be regarded as having both a religious purpose and a religious effect and therefore would run afoul of the Establishment Clause.78 In the Court’s only discussion of the topic, rendered in Joseph Burstyn, Inc. v. Wilson,79 the Court suggested that a ban on ‘sacrilegious’ speech might be unconstitutional:  ‘Application of the “sacrilegious” test, in

74 75 76

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Updegraph, 11 Serg. & Rawle at 399.  Id. See, e.g., County of Allegheny v.  American Civil Liberties Union, 492 U.S. 573, 593–594 (1989). See Engel v.  Vitale, 370 U.S. 421, 434 (1962) (rejecting the argument that school prayer was permissible because ‘New York’s establishment of its Regents’ prayer as an officially approved religious doctrine of that State does not amount to a total establishment of one particular religious sect to the exclusion of all others’). See Lemon v. Kurtzman, 403 U.S. 602 (1971). 343 U.S. 496 (1952).

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these or other respects, might raise substantial questions under the First Amendment’s guaranty of separate church and state with freedom of worship for all’.80

20.3.2

The Implications of Free Speech Principles

Even if a prohibition on blasphemy could survive an Establishment Clause challenge, it is highly unlikely that it could survive scrutiny under the Free Speech Clause of the First Amendment. While courts and commentators have offered various justifications for providing special protection for freedom of expression,81 the Court has been particularly reluctant to sustain governmental restrictions on speech except for certain limited categories of speech (e.g., obscenity and child pornography).82 In applying free speech principles, the US Supreme Court has rendered very few decisions dealing with the subject of blasphemy but has generally suggested that blasphemy prohibitions would be unconstitutional. As noted, in Joseph Burstyn, Inc. v. Wilson,83 a New York statute gave governmental officials the authority to ban ‘sacrilegious’ films.84 When a distributor of motion pictures wanted to exhibit a film entitled The Miracle, governmental officials reacted negatively after they received ‘hundreds of letters, telegrams, post cards, affidavits and other communications’ which were ‘both protesting against and defending the public exhibition’.85 After viewing the film, New York’s Board of Regents rescinded the plaintiff ’s

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85

Ibid., at 505. See C. Edwin Baker, ‘Scope of the First Amendment freedom of speech’ (1978) 25 U.C.L.A. L.  Rev. 964; Robert H. Bork, ‘Neutral principles and some First Amendment problems’ (1971) 47 Ind. L.J. 1; Thomas I. Emerson, ‘Toward a general theory of the First Amendment’, (1963) 72 Yale L.J. 877; Alexander Meiklejohn, ‘The First Amendment as an absolute’, (1961) S. Ct. Rev. 245; Russell L.  Weaver, Understanding the First Amendment (2014, 5th ed.), 2–13. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). 343 U.S. 496 (1952). Ibid. (emphasis added) (The statute provided in full that ‘[t]he director of the (motion picture) division (of the education department) or, when authorized by the regents, the officers of a local office or bureau shall cause to be promptly examined every motion picture film submitted to them as herein required, and unless such film or a part thereof is obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime, shall issue a license therefor. If such director or, when so authorized, such officer shall not license any film submitted, he shall furnish to the applicant therefor a written report of the reasons for his refusal and a description of each rejected part of a film not rejected in toto’). Ibid., at 498.

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license to exhibit the film on the basis that it was sacrilegious.86 Although the plaintiff alleged that the law violated both the Establishment Clause and the Free Speech Clause of the First Amendment, the Court decided the case on free speech grounds.87 After noting that motion pictures constitute protected speech,88 the Court emphasized that New York’s highest court had upheld the denial of the license on the basis that ‘no religion, as that word is understood by the ordinary, reasonable person, shall be treated with contempt, mockery, scorn and ridicule’.89 The Court held that from the standpoint of freedom of speech and the press, it is enough to point out that the state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.90

In Chaplinsky v. New Hampshire,91 the Court did suggest that the states may prohibit so-called fighting words. That case involved a New York law which provided that ‘[n]o person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation’.92 After Chaplinsky refused an order to stop giving a speech (the police issued the order because those who were listening to him were becoming increasingly agitated and hostile), Chaplinsky was led away to the police station. On the way, Chaplinsky encountered the city marshall and denounced him, stating that ‘“You are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists,” the same being offensive, derisive and annoying words and names’.93 In upholding Chaplinsky’s conviction, the Court noted that the ‘right of free speech is not absolute at all times and under all circumstances’94 86

Ibid., at 499. Ibid. 88 Ibid., at 502. 89 Ibid., at 504. 90 Ibid., at 505. 91 315 U.S. 568 (1942). 92 Ibid., at 569. 93 Ibid. 94 Ibid., at 571. 87

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and emphasized that there ‘are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem’.95 The Court noted that these classes of speech involve ‘the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace’.96 In the Court’s view, ‘such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality’.97 Moreover, according to the court, ‘resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument’.98 However, in order to sustain a conviction, the Court held that the prosecution must show only that the defendant stated ‘face-toface words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitute a breach of the peace by the speaker – including “classical fighting words”, words in current use less “classical” but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats’.99 The Court concluded that Chaplinsky’s statements to the marshall constituted ‘fighting words’, and therefore he could be convicted for making the statements.100 In theory, blasphemous speech could be uttered in a context in which it could be regarded as ‘fighting words’ and therefore could be subject to prosecution as fighting words (but not, necessarily, because of the blasphemous nature of the speech). However, the Court has generally been reluctant to apply the fighting words doctrine to blasphemous speech. For example, in Cantwell v. Connecticut,101 Cantwell and his sons were charged with inciting a breach of the peace for attempting to persuade others to

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101

Ibid. Ibid., at 572. Ibid. Ibid. Ibid., at 573. Ibid., at 574 (‘Nor can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate that the appellations “damn racketeer” and “damn Fascist” are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace’). 310 U.S. 296 (1940).

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their beliefs. They did so by playing a phonograph record which involved ‘a general attack on all organized religious systems as instruments of Satan and injurious to man’ and which singled out ‘the Roman Catholic Church for strictures couched in terms which naturally would offend not only persons of that persuasion’, but also ‘all others who respect the honestly held religious faith of their fellows’.102 Indeed, some of those who Cantwell approached were highly offended,103 and one ‘of them said that he felt like hitting Cantwell and the other that he was tempted to throw Cantwell off the street’.104 One individual ‘told Cantwell that he had better get off the street before something happened to him and that was the end of the matter as Cantwell picked up his books and walked up the street’.105 Even though the Court recognized that ‘resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument’,106 the Court overturned the convictions.107 The Court emphasized that in ‘the realm of religious faith, and in that of political belief, sharp differences arise’.108 In an attempt to persuade others, ‘the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement’.109 However, the Court held that such statements could not be prosecuted because ‘the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties [freedom of expression] are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy’.110 Nevertheless, the Court recognized that there ‘are limits’ to freedom of expression in the sense that individuals cannot ‘incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties’.111 However, the Court concluded that ‘petitioner’s communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in 102 103 104 105 106 107 108 109 110 111

Ibid., at 309. Ibid. Ibid. Ibid. Ibid., at 309–10. Ibid. Ibid., at 310. Ibid. Ibid. Ibid.

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question’.112 The Court emphasized that Cantwell and his sons did not act in a ‘noisy, truculent, overbearing or offensive’ manner.113 There is an additional reason why free speech principles would preclude blasphemy prosecutions.114 In R.A.V. v. City of St. Paul,115 the Court made clear that ‘the First Amendment generally prohibits government from proscribing speech’,116 noting that except for certain limited categories of speech, content-based restrictions on speech are presumptively invalid.117 The Court also held that the First Amendment prohibits governments from imposing viewpoint-based restrictions on speech.118 Although R.A.V. involved a hate speech ordinance, the decision would presumably doom prohibitions against blasphemy as well because they necessarily involve viewpoint-based restrictions on speech. Indeed, in striking down the St Paul ordinance at issue in R.A.V., the Court noted that the ordinance permitted some perspectives on religion but not others: ‘One could hold up a sign saying, for example, that all “anti-Catholic bigots” are misbegotten; but not that all “papists” are, for that would insult and provoke violence “on the basis of religion”’.119 The Court concluded that this viewpoint-based restriction would be invalid, noting that ‘St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules’.120 Presumably, similar principles would doom prohibitions against blasphemy which would involve viewpoint discrimination by permitting individuals to praise religion but prohibit them from blaspheming it. As a result, under the Free Speech Clause of the First Amendment, it is unlikely that blasphemy prohibitions would survive constitutional scrutiny today.

20.4 Conclusion Blasphemy prohibitions and prosecutions were common during the British colonial period. Following the American Revolution, most states had laws that prohibited blasphemy. Moreover, in the few cases in which 112 113 114 115 116 117 118 119 120

Ibid., at 311. Ibid., at 308. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). 505 U.S. 377 (1992). Ibid., at 382. Ibid., at 382–3. Ibid., at 391–2. Ibid. Ibid., at 392.

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blasphemy prosecutions were challenged, such as Ruggles, Updegraph and Chandler, the courts upheld criminal convictions for blasphemy. Some of these prosecutions suggested that the United States is a Christian nation and that the state had an interest in protecting religion. Today, it is virtually inconceivable that a blasphemy prosecution would be upheld by the US Supreme Court. It is likely that the prohibition would be struck down on Establishment Clause grounds if (as is likely) it is viewed as endorsing one religion over another or endorsing religion over non-religion. Even if the prohibition could survive scrutiny under the Establishment Clause, it is unlikely to survive a free speech challenge. In theory, at least, a blasphemy prohibition could be upheld under the Free Speech Clause if the words in question could be regarded as ‘fighting words’ and could be regarded as having been uttered under circumstances that might have led to imminent violence. However, as in Cantwell, the Court has often struck down fighting-words convictions on various grounds. Moreover, it is likely that a blasphemy prohibition would be struck down on the basis that it involves both a content-based and viewpoint-based restriction on speech.

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PA RT   V I I Recently Abrogated Blasphemy Laws

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21 Giving Up the Ghost On the Decline and Fall of Norwegian Anti-Blasphemy Legislation

Helge Å rsheim

21.1

Introduction

The problem with blasphemy, according to the sixteenth-century canonist Prosper Farinacius, was that if blasphemous offenses were punished as they should have been, ‘too few men would be left’.1 This striking combination of rigorous dogmatism and common-sense pragmatism has underpinned the legal prohibition of blasphemy in Norway from the High Middle Ages and up to the early modern period. Although the act of blasphemy was technically prohibited from the very first adoption of Canonical law in Norway in 1024 and up to the final abolition of section 142 of the 1902 Penal Code in 2015,2 convictions under these prohibitions have been few and far between. Even during the most aggressively conformist rule during the period of absolutism in Denmark-Norway (1660–1814), only a single conviction – described in more detail in the next section – to the full extent of the ban has been recorded. Despite its scant application to actual cases, the historical trajectory of the nature and scope of the Norwegian blasphemy ban offers an instructive overview of the interconnected nature of law and religion in the development of the modern Norwegian state and its interaction with imported legal systems. In this chapter, I will examine how the offense,

1

2

Richard H. Helmholz, ‘The Bible in the service of the Canon Law’ (1995) 70:4 Chicago-Kent Law Review 1557–81 at 1570. The full name of the law is the General Civil Penal Code. Though the term ‘blasphemy’ never featured in the 1902 Penal Code, the section was colloquially known as the ‘blasphemy section’, and the travaux préparatoires are awash with the term. In this text, I will use it interchangeably with and as a shorthand for the more correct ‘offense against religious beliefs and sentiments’.

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prohibition and punishment of blasphemy have been construed and gradually adjusted in close interaction with surrounding domestic and international legal regulations of religion and in response to the changing religious demography of Norway. Starting with an overview of how blasphemy has been framed in Norwegian legislation from the earliest times and up to the present, the chapter moves on to assess the role of the ban in the twentieth century and an overview of the reform processes in the 1990s and 2000s that led to its final demise. Following a brief mapping of the treatment of the topic in legal literature and international law, the chapter examines the influence of surrounding legislation before offering a brief reflection on the influence of the Charlie Hebdo attacks of January 2015 on the Norwegian blasphemy debate.

21.2

Origins of the Ban on Blasphemy in Norwegian Law

The first known legal codification relating to religious institutions and their practice in Norway is commonly dated to the church and parliamentary assembly at Moster in 1024, where Olav Haraldsson, the King of Norway that was canonized as St Olav in 1164, and his bishop, Grimkjell, announced a canonical amendment to the regional code of laws in effect in Western Norway since approximately 900, the Gulatingslov.3 The amendment spelled out the basic necessities for the introduction and maintenance of Christianity in Norway, prohibiting idol worship, fornication and sorcery, while obliging the populace to keep holidays and build and maintain churches. A key distinction was drawn between offenses for which penance could be obtained, like the worship of heathen gods and mounds, and unredeemable offenses (ubotamål) like sorcery, for which the punishment was banishment, which was the substantive equivalent of the death penalty.4 While this early version of the canonical chapter had no explicit prohibition of blasphemy or religious offense, such acts would likely be somewhere in between these extremes. With the establishment of Nidaros as a separate ecclesiastical province and archbishopric in 1152/1153, the introduction of a continental Canonical code of laws in Norway and its dependencies was accelerated 3

4

Bergen University Library, Kristenretten i norsk middelalder – en oversikt ved Dag Roald Fosnes, available at www.ub.uib.no/fag/rettsvit/kristenretten.htm. Jan Schumacher, ‘Kristendommen i tidlig middelalder’, in Arne Bugge Amundsen (ed.), Norges religionshistorie (Oslo: Universitetsforlaget, 2005), pp. 63–104, at p. 81.

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considerably.5 Under this incipient code of laws, the punishment for blasphemy represented a thorny definitional challenge, as the available scriptural passages commenting upon the concept ranged from the declaration of St Paul regarding his own acts of ‘blasphemy’ during his time as persecutor of Christians to passages on blasphemy from the Old Testament referring in general to all insults or wrongs against God and to the declaration of Jesus that all sins were forgivable except blasphemy against the Holy Spirit.6 Searching for a common denominator across these fairly dispersed examples, canonical jurists settled for a determination of blasphemy that encompassed ‘either as ascribing to God properties he did not possess, or as denying to God properties that he did possess’.7 No historical sources documenting the practical implementation of this concept of blasphemy in Norway have been preserved. Following the introduction of the Protestant Reformation to DenmarkNorway in 1537, the Canon law, whose influence had grown steadily during the High Middle Ages, was abolished, and a new Church Ordinance was introduced throughout the realm, signalling a clearly defined division of labour between churchly and worldly powers, as dictated and upheld by the state.8 Under the new arrangements, Chapter 2, Section 14 of the Ordinance established the joint jurisdiction of worldly and churchly powers against religious offenses. Faced by ‘blasphemers, fornicators, violators of virgins, church robbers and the ungodly assailants of war’, in the words of the Ordinance, the church was obliged to prohibit their access to the sacraments, while ‘the sword’, or the worldly powers, was called upon to secure the ‘peace’ of the church, that is by enforcing a statutory code of laws preventing blasphemous and other contemptuous acts. The code of laws promulgated by the worldly powers, unlike preReformation canonical and penal law, was derived from Mosaic principles of lex talionis (literally: the law of retribution), significantly sharpening the punishment for religious and moral transgressions, which were viewed as direct challenges to the Godly powers of the state, and in particular the King.9 The adoption of Christian Vs Norske Lov (‘Christian V’s Norwegian 5

6 7 8

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Per Otto Gullaksen, Stat og kirke i Norge: Kirkerett mellom teologi og politikk (Oslo: Verbum, 2000), p. 19. Helmholz, ‘The Bible in the service of the Canon Law’, p. 1570. Ibid. Terje Ellingsen, Kirkeordinansen av 1537:  Reformasjonens kirkelov (Oslo:  Verbum, 1990), p. 15. Arne Bugge Amundsen and Henning Laugerud, Norsk fritenkerhistorie 1500–1800 (Oslo: Humanist forlag, 2001), pp. 29–34.

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Law’, or: CVNL) in 1687, a unitary legal framework introduced by King Christian V of Denmark-Norway, following the establishment of absolutism in 1660, represented the fullest realization of this principle. Under this Act, the legislative framework of the church was entirely subordinated to state power, in a separate section entitled ‘On religion and the clergy’. In addition to this ecclesiastical section, which was mostly dedicated to the activities of the church and its employees, the CVNL dedicated two entire chapters in the penal section to combat ‘Erroneous teachings, defamation of God and sorcery’ and ‘Sacrilege’. These chapters were mostly concerned with the protection of the Evangelical-Lutheran faith from the influence of ‘papists’ and ‘sorcerers’ and the meticulous regulation of religious practice on holy days. The introduction of chapters on erroneous teachings, defamation, sorcery and sacrilege under the civil code of laws indicates the complete transferral of authority in cases of blasphemy and religious offense to the civil courts, albeit still under the joint supervision of civil and churchly expertise. The penalty for the denigration of ‘God, his name, words and sacraments’ was that transgressors would have their tongue cut out and their head cut off, later to be displayed together on a pole. If anyone used their hands to complete the Act, those would also be chopped off and added to the display.10 There is only one known conviction to the full extent of this prohibition: In 1739, eighteen-year-old Anders Suhm from Kristiansand was convicted of blasphemy and arson and sentenced to be beheaded. The charges were based on his attempt to ‘sell his soul to the Devil’ in order to reimburse creditors following excessive gambling and on his attempt to get the Devil’s attention by unsuccessfully setting the local church on fire. Suhm was unanimously found guilty but managed to escape with no trace after deceiving the prison guards.11 Following the adoption of the distinctly liberal Constitution in 1814, sanctions against blasphemous offenses were dramatically reduced. Although Section 100 of the Constitution secured that ‘disrespect to the religion’ could be penalized, the 1842 Criminal Code contained only a brief chapter on ‘Crimes against Religion and Morality’ that departed significantly from the draconian measures of the CVNL. According to the 1842 law, ridicule or defamation of the sacred word of God or the sacraments, or any other defamation of the public religion of the state,

10 11

7.Chr. Vs Norske Lov: Siette Bog. 1 Cap. 7.-8. Art. Ronnie Johanson, Blasfemi: En antologi (Oslo: Lanser, 1989), pp. 212–13.

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could be punished with imprisonment or fines. Printed defamations could also be punished additionally, by forced labour.12 Although the law protected followers of ‘other religions’ from ‘wilful enragement’, this protection was largely symbolic, as no other religions apart from EvangelicalLutheranism were officially recognized at the time.13 Convictions handed down under the 1842 law span from ten days’ imprisonment to two years’ forced labour. The prosecutions under the law mirror some of the major tensions of Norwegian society in the 1800s, as Marcus Thrane, a leader in the incipient labour movement,14 several members of the indigenous Sami community that later instigated the 1852 Kautokeino revolt15 and Hans Jæger, one of the main characters of the bohemian art scene,16 all were charged with various acts of blasphemy, intimating a strong correlation between blasphemous offenses and the protection of state authority. When the 1902 Penal Code was adopted, the offense of blasphemy was further watered down, as the nature of the offense was changed from the denigration of the ‘holy word of God or Sacraments’, with a particular protection for the official religion, to the ‘declaration of faith’ of any ‘recognized’ religion. Admittedly, this expansion was limited in nature, as the only explicitly recognized religions at the time were Evangelical Lutheranism, Judaism and a limited number of Christian ‘dissenters’, following the adoption of the Christian Dissenter’s Act in 1845 and the revision removing the constitutional prohibition against Jews in the realm in 1851.17 Throughout its existence, from the adoption of the 1902 Penal Code and to its demise in 2015, the maximum penalty available under Section 142 was six months’ imprisonment. The one and only conviction under

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University of Bergen, Faksimileutgåve av Den norske Straffelov – Lov angaaende Forbrydelser af 20de August 1842 og Lov indeholdende Forandringer i samme af 3die Juni 1874 (Kristiania: University of Bergen, 1874), available at www.hist.uib.no/krim/1874/. The first law recognizing the rights of any other religious communities was adopted in 1845 as the Law on Christian Dissenters, following petitions from Norwegian converts to Quakerism. The law, amended twice, remained in force until the adoption of the 1969 Law on Faith Communities. Jan Fridthjof Bernt, ‘Ytringsfrihet og kunstnerisk uttrykk’ (2015) 41:2 Kritisk Juss, pp. 105– 13, at pp. 105–6. Johanson, Blasfemi, pp. 215–6. Johs Andenæs, ‘Litteratur og ytringsfrihet’ (1997) 2 Lov og Rett, pp. 83–100, at pp. 88–9. For an overview of the origin and demise of the Norwegian constitutional prohibition against the entrance of Jews, see Samuel Abrahamsen, ‘The exclusion clause of Jews in the Norwegian constitution of May 17, 1814’ 1968 30:2 Jewish Social Studies 67–88. See also Haakon Harket, Paragrafen (Oslo: Dreyer, 2014).

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the ban was handed down in 1912, when Jens Arnfred Olesen, editor of the magazine The Free Thinker (Fritænkeren), was convicted for publishing an article entitled ‘The Great Scam. The Christmas Holiday of the Christians’.18 At the time of Olesen’s conviction, the offense had to be ‘defamatory’, indicating a certain level of intent from the perpetrator.19 Olesen was fined 10 Norwegian kroner.20 Later on, two adjustments were made to the original text. First, in 1934, the scope of the prohibition was expanded from ‘recognized’ religious faiths to cover all ‘legally extant’ faiths and their manifestations; simultaneously, the scope of the offense was expanded from ‘defamation and ridicule’ to cover also ‘contempt’, thereby covering offenses that may not have been intended as blasphemous but whose content was ‘hurtful’ or ‘abusive’. Then, in 1973, an additional clause was inserted, limiting the application of the prohibition to cases in the public interest.21 Due to its lack of use, the scope of the prohibition was never entirely clear. The by far most famous case was the trial of author Arnulf Øverland in 1933, for his statements on Christianity during his lecture ‘Christianity: the tenth plague’ at the Norwegian Student Society.22 The explicit purpose of the lecture, which caused much consternation among conservative Christians, was to test the applicability of the blasphemy section.23 His acquittal was by the narrowest possible margin, and the trial judge later observed in a letter to the Ministry of Justice and Police that he considered both the objective and subjective requirements of Section 142 to be fulfilled by Øverland’s speech, claiming outright that the jury had come to the wrong conclusion.24 From the 1950s and onwards, scattered attempts to apply the prohibition were exclusively intended to protect the Christian faith. The most well known and ridiculed example of these attempts was the decision by the Film Board of Norway in 1980 to prohibit the release of the satirical 18

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‘Den store humbug. De kristnes julehelg’. See Bernt, ‘Ytringsfrihet og kunstnerisk uttrykk’, at p. 106. The full text of the section was:  ‘Hvo som offentlig driver spot med eller forhaaner nogen trosbekjendelse, hvis udøvelse her i riget er tilstedet, eller som medvirker hertil, straffes med bøder eller med hefte eller fængsel indtil 6 maaneder’. According to its present valuation, 10 Norwegian krones is worth approximately 1 EUR. This clause read: ‘Påtale finner bare sted når allmenne hensyn krever det’. ‘Kristendommen – den tiende landeplage’. See Virksomme Ord, Arnulf Øverland Kristendommen – den tiende landeplage, available at http://virksommeord.uib.no/ taler?id=387. Arnulf Øverland, En kjetters bekjennelser (Oslo: Aschehoug, 1988), p. 41. Ot.prp. nr. 5 (1934) Om forandring i straffelovens § 142, p. 4.

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British movie Life of Brian, portraying a hapless man born next door to Jesus Christ, finding himself frequently mistaken for the Messiah. According to the Film Board, the crucifixion scene towards the end, in which numerous actors are portrayed as singing the song ‘Always look on the bright side of life’ while nailed to their crosses, was particularly suited to cause offense to religious sentiments.25 The film was only allowed cinematic release several years later, featuring a textual introduction specifically clarifying that Brian was ‘not Jesus’ and leaving potentially offensive sections of dialogue without the usual Norwegian subtitles.26 Eight years later, Martin Scorsese’s The Last Temptation of Christ, whose censorship in Chile was tried all the way to the Inter-American Court of Human Rights,27 provoked demonstrations, demands of boycott and angry letters to the press but no legal complaints, signalling that the debate on blasphemy targeting the Christian faith was moving out of the courtroom. The longevity of the blasphemy section represents one of the most visible and concrete examples of the move from a range of specific legal protections of the majority religion to a system of religious equality in the regulation of religion in Norway, a shift that has happened only recently for most aspects of legislation, despite swift and considerable changes in religious demography throughout the last three decades.28 Throughout the twentieth century, legislation on religion in Norway distinguished clearly between Evangelical Lutheranism, which remained the state religion until constitutional amendments in 2012, and other religions, until the 1960s only explicitly recognized as ‘Christian Dissenters’.29 The role 25 26 27

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Kjartan Leer Salvesen, Fra glansbilde til antihelt: Jesus på film (Oslo: Verbum, 2005). Bernt, ‘Ytringsfrihet og kunstnerisk uttrykk’, p. 112. Inter-American Court of Human Rights, Case of The Last Temptation of Christ (OlmedoBustos et al.) v. Chile, Judgment of 5 February 2001. The Court found (para. 97) that Chile ‘must modify its legal system in order to eliminate prior censorship and allow the cinematographic exhibition and publicity of the film The Last Temptation of Christ, because it is obliged to respect the right to freedom of expression and to guarantee its free and full exercise to all persons subject to its jurisdiction’. A survey conducted regularly since 1985 by the polling agency Ipsos MMI found the belief in God to be in constant decline, from 52% in 1985 to 38% in 2015, the latter equalled by the proportion of nonbelievers, with 24% indicating uncertainty in the matter. See Dagen: Like mange som tror og ikke tror på Gud, available at www.dagen.no/Nyheter/nyheter/Likemange-som-tror-og-ikke-tror-p%C3%A5-Gud-184971. From 1971 to 2008, the number of members in faith communities outside the Church of Norway almost quadrupled, from 111,000 to 412,000; see Statistics Norway, Medlemmer i tros- og livssynssamfunn 1971–2008, available at http://ssb.no/a/samfunnsspeilet/utg/200903/03/tab-2009-06-15-01.html. Although constitutional amendments in 1851 and 1956 lifted the bans on the entry of Jews and Jesuits, their erstwhile status in Norwegian law remained undetermined until

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of Evangelical Lutheranism as the official religion of the state was,30 and to some extent still is,31 embedded throughout the legal framework.32 Following constitutional amendments introducing the freedom of religion in 1964 and the adoption of the 1969 Law on Faith Communities, both explicitly required by the international obligations of Norway, the scope of recognized religions was expanded considerably.33 Strictly speaking, the changes to the blasphemy section actually preceded, by several decades, the gradual changes from an overall legal framework specifically tailored to protect the state religion to a system of religious legal equality. While the overall legislative framework on religion only became generalised with the introduction of the Law on Faith Communities, the blasphemy section was effectively expanded to cover contemptuous expressions towards all ‘legally extant’ faith communities already in 1934. Hence, unlike other statutory laws on religion, the section – at least in theory – became an available remedy for anyone residing in Norway of whatever legally tolerated religious persuasion, which would only exclude Jesuits, whose access to the realm was banned until 1956. This very enlargement, which represented a final departure from the absolutist ideal of protecting the state from criticism, was most likely a major influence on the later inapplicability of the prohibition, whose scope had become generalised to the extent that its precise determination had become virtually impossible.

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the reforms of the 1960s. The rights of Christian dissenters, on the other hand, had been recognized since the adoption of the Law on Christian Dissenters in 1845. Provisions securing the intimate relations between the state and its official religion ranged from constitutional requirements that government members should be members of the Church of Norway and that the King was in charge of all ‘public religion’ to the statutory ‘value clauses’ of the laws on kindergartens and education, securing that children should be provided with a Christian, moral upbringing. While the state no longer has a constitutionally mandated public religion, sections 2, 4, 5 and 16 of the Constitution secure the ‘Christian and humanist heritage’ as the value basis of Norway, mandate that the king should always confess to Evangelical Lutheranism, that his person is holy, that the Church of Norway ‘remains’ the ‘Established Church’ and that it is to be financially supported by the state. With the dissolution of the constitutional moorings of the state church system in 2012, the express intention of the present (2016) government is the creation of a unitary legal framework for all faith communities, including the Church of Norway. See Prop. 55 L 2015–2016 Endringer i kirkeloven (omdanning av Den norske kirke til eget rettssubjekt m.m.), p. 14. Under the 1969 law, other religious communities became eligible for the same per-capita economic allowance as the Church of Norway and were granted the authority to establish legal personality, perform marriages and conduct burials and other key rituals. Inherently compensatory in nature, the Law on Faith Communities was modelled to provide the same rights to other faith communities as that offered to the Church of Norway.

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21.3 Reform Efforts 1989–2015 The first traces of a broad, public debate on the blasphemy ban appeared in February 1989, with the religious ruling (fatwa) issued by Iranian ‘Supreme Leader’ Ayatollah Ruhollah Khomeini against the author Salman Rushdie following the publication of his 1988 book The Satanic Verses. Four days after the publication of the fatwa, Norwegian Muslim leaders established the Islamic Defence Council (Det Islamske Forsvarsrådet), with the explicit purpose of using the Norwegian prohibition on blasphemy to prevent the import and distribution of the English original and any attempts at its translation into Norwegian.34 The Council sought the imprisonment of publisher William Nygaard of the publishing house Aschehoug for violating the blasphemy section if he published the book, fines for the publishing house, and 2 million Norwegian kroner in damages/compensation.35 Shortly after the charges were made public, leader of the populist Progress Party and MEP Carl I.  Hagen presented Parliament with a proposal to remove the blasphemy section. The main rationale in the proposal was that the section, having remained unapplied despite numerous contemptuous attacks on Christianity, risked offering better protections for ‘other religions’ than the Christian faith, in what amounted to a thinly veiled reference to the charges launched by the Islamic Defence Council.36 Several MEPs declared their support for the removal of the section, but the matter was postponed with a majority of 60 against 16, pending a broad-based assessment of the proposal and surrounding penal legislation.37 Following the failed and still unresolved assassination attempt on Rushdie’s Norwegian publisher William Nygaard in October 1993, two successive government commissions (1994–1996 and 1996–1999) were appointed to examine the status of the freedom of expression in Norwegian law, both of which recommended the removal of Section 142 of the 1902 Penal Code and the prohibition against defamation of religion in Section 100 of the Constitution.38 In transmitting the proposal 34

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Sindre Bangstad, ‘The weight of words: The freedom of expression debate in Norway’ 2014 55:4 Race & Class 8–28, at 16. ‘Muslimer krever to millioner’, Aftenposten Morgen (21 April 1989). In 1991, the charges were dropped, following protracted negotiations on a potential settlement between the parties. See ‘Trekker Rushdiesaken’, Aftenposten Morgen (27 August 1991), p. 3. Dokument nr. 8:29 (1988–1989) Forslag fra stortingsrepresentant Carl I. Hagen om opphevelse av straffelovens § 142 (blasfemiparagrafen). Stortingsforhandlinger 9.  mai 1989:  Forslag fra rep. Hagen om opphevelse av strl. § 142 (blasfemiparagrafen). Bangstad, ‘The weight of words’, 18.

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of the 1999 commission to Parliament, the government recommended the constitutional amendment but argued against the removal of the blasphemy ban, pointing out that the symbolic nature of the section and its protection of ‘religious feelings’ could become revitalized by the growth of new religious groups in multicultural Norway.39 While the constitutional amendment gave rise to considerable public debate culminating in the removal of the ban on religious offenses, the proposal to remove Section 142 of the 1902 Penal Code was not approved, either by the preparatory committee or by the parliamentary assembly.40 In January 2006, several Norwegian newspapers published facsimiles of the caricatures of the Islamic prophet Muhammad originally published in the Danish daily Jyllands-Posten on 30 September 2005. The publications and the response from the local and global Muslim community led to a flurry of legal charges of blasphemy throughout the year, both lodged by and targeting Muslim faith societies.41 Following the public outcry, Progress Party Leader and MEP Carl I. Hagen and MEP Siv Jensen again proposed the removal of the blasphemy section, arguing that its removal would ‘send a strong message’ that the freedom of expression is more important than the prophet Muhammad and other religious authorities.42 During the parliamentary debate, the proposal was dismissed once more, primarily because of the pending revision of the entire 1902 Penal Code, a long and protracted reform effort started in the 1980s.43 Three years later, in 2009, the government supported the proposal of the commission in charge of reforms of the 1902 Penal Code and recommended the removal of the blasphemy section. Simultaneously, however, the government proposed a considerable expansion of the ban on hate speech in Section 135a (see next sections), which at the time of the proposal already protected individuals targeted for their religious identity.44 39 40

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St.meld. nr. 26 (2003–2004) Om endring av Grunnloven § 100, p. 64–65. Innst. S. nr. 270 (2003–2004) Innstilling til Stortinget fra kontroll- og konstitusjonskomiteen, p. 20, Stortingsforhandlinger 30. september 2004: Endr. av Grunnloven § 100, forsl. fra repr. Skaug, Hagen, Steensnæs, Petersen, Kristin Halvorsen og Sponheim om endr. av Grunnloven § 100 (ytringsfrihet) og forsl. frå repr. Kvassheim og Sponheim om ny § 100a i Grunnloven (offentlighetsprinsippet). ‘Håper dom kan dempe konflikten’, Aftenposten Morgen (10 February 2006), p. 8. Dokument nr. 8:25 (2006–2007):  Representantlovforslag fra stortingsrepresentantene Carl I. Hagen og Siv Jensen om opphevelse av straffeloven § 142 (blasfemiparagrafen). See also ‘Blasfemi-paragrafen blir fjernet’, Dagbladet (17 February 2006), p. 9. Forhandlinger i Odelstinget nr. 31 25. mai (2006–2007) Forslag fra repr. Hagen og Jensen om opphevelse av blasfemiparagrafen, p. 430–434. The original wording of Section 135a protected ‘declarations of faith’, but as part of harmonization efforts following the introduction of the ‘Act on prohibition of discrimination

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The white paper put out by the government argued that religious faith and convictions merited particular mention in the section, because ‘they are lodged deep within one’s personality’, evoking ‘strong feelings’ that should be protected.45 As such, attacks against faiths and worldviews could both influence the individuals in question but also poison the climate for debate in the public sphere. Referring to increased religious pluralism and the precarious position of religious minorities, the government recommended a ban on hate speech constituting ‘qualified attacks on declarations of faith and life stances’, thereby effectively resurrecting the blasphemy ban.46 The proposal was met with wide protests, both from the media, from intellectuals, from the opposition and from within the ranks of the government coalition.47 The proposal, which was quickly shelved by the government following the criticism,48 dovetailed other thorny issues on the regulation of religion in Norway at the time, including controversial questions about allowing the Islamic veil as part of the police uniform and questions about the criteria for financial support to religious youth organizations.49 On 28 May 2009, parliament decided to adopt the new proposal for the 2005 Penal Code, in which both the ban on blasphemy and the proposed prohibition of hate speech targeting faith and worldviews was excluded, thereby starting the final part of the drawn out process of removing the blasphemy ban that was – as discussed in what follows – finally concluded in May 2015.

21.4

Legal Literature and International Law

As a direct consequence of the limited case law on the prohibition against blasphemy, there has been little mention of the topic in domestic legal

45

46

47

48 49

based on ethnicity, religion, etc.’ in 2005, the term was substituted with ‘religion’. The report of the 1999 Freedom of Expression Commission recommended the exclusion of declaration of faith altogether: NOU, Ytringsfrihed bør finde Sted (1999), p. 207, but the proposal was dismissed. Ot.prp. nr. 22 (2008–2009):  Om lov om endringer i straffeloven 20. mai 2005 nr. 28 (siste delproposisjon – sluttføring av spesiell del og tilpasning av annen lovgivning), p. 385. Ot.prp. nr. 22 (2008–2009):  Om lov om endringer i straffeloven 20. mai 2005 nr. 28 (siste delproposisjon – sluttføring av spesiell del og tilpasning av annen lovgivning), pp. 385–386. ‘Ingen omkamp om blasfemi’, Aftenposten (1 February 2009), available at www .aftenposten.no/nyheter/iriks/Ingen-omkamp-om-blasfemi-5563102.html. Innst. O. nr. 73 (2008–2009) Innstilling til Odelstinget fra justiskomiteen, p. 68. ‘Religionspolitiske retrettar’, Dagbladet (28 February 2009), available at www.dagbladet .no/kultur/2009/02/28/567260.html.

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literature. To the extent that blasphemy has become subject to legal scholarship in the modern era, it is in the form of duty-bound summaries of how the blasphemy section has developed over time and why it has become redundant.50 Social anthropologist Sindre Bangstad has claimed that the Rushdie affair created socio-cultural conditions in Norway that rendered legal protections against racist and discriminatory speech ‘all but symbolic’ in the name of stronger protection for the freedom of expression,51 a claim that finds – as discussed in what follows – at least some support in the jurisprudence of the Supreme Court of Norway on hate speech. International human rights law has indirectly influenced the prohibition against blasphemy in Norwegian law by requiring the creation of a legal framework for the equal treatment of religions. International monitoring bodies, on the other hand, have tended to ignore the Norwegian ban on blasphemy. Over the course of seven consecutive periodic reviews of the obligations of Norway to uphold the freedom of religion or belief and the freedom of expression as enshrined in the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee has not commented upon the blasphemy section on a single occasion. The Committee has, however, expressed considerable disapproval of constitutional provisions securing the special status of Evangelical Lutheranism in Norway. During the meeting with the committee upon the review of the second periodic report of Norway in 1981, the prohibition against ‘contempt against religion’ in Section 100 of the Constitution was raised by several members of the Committee: As regards the use of the term ‘contempt of religion or morality’ in … the Constitution, questions were raised as to whether ‘religion’ meant the State religion, or included other religions, particularly those which were registered; whether if a person advocated revolution or advocated abortion, that would constitute contempt of religion; whether, if a person advocated living together of couples outside of marriage, that would amount to contempt of morality.52

The exchange did not become subject to a particular mention in the annual report of the Committee, nor was it addressed in the consecutive 50

51 52

Kyrre Eggen, Ytringsfrihet: Vernet om ytringsfriheten i norsk rett (Oslo: Cappelen Akademisk Forlag, 2002), pp. 512–16. Bangstad, ‘The weight of words’, 22. United Nations General Assembly, Report of the Human Rights Committee (A/36/40, 1981), para. 366.

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review of Norway. Although Norwegian authorities have heeded the call by the Committee in its General Comment no. 22 on the scope of freedom of religion or belief that states should include in their reports ‘information relating to practices considered by their laws and jurisprudence to be punishable as blasphemous’,53 the committee has taken no further interest in the matter. Somewhat ironically, during the Universal Periodic Review of Norway by the UN Human Rights Council in 2014, the delegate from Saudi Arabia proposed that Norway should ‘criminalize contemplation of prophets and religions through all kinds of media (visual, audio and printed)’,54 apparently unaware that legislation in that vein was still technically in effect in Norway. The only Norwegian case to be brought before the European Court of Human Rights (ECtHR) concerning the interrelationship between religion or belief and the freedom of expression in article 10 of the European Convention of Human Rights (ECHR) is TV Vest AS & Rogaland Pensjonistparti v. Norway.55 In the case, the Court found the Norwegian ban on televised political or religious commercials in Section 3-1 of the Broadcast Act to be in violation of the right to freedom of expression in article 10 of the ECHR.56 Although the facts of the case concerned political content and did not involve religion or belief, the Norwegian Supreme Court reasoned that the ban was legitimate because it was based on considerations similar to the ban on religious broadcasting in Ireland, which the ECtHR had approved in its decision in Murphy in 2003.57 The European Court found the analogy unconvincing, pointing out that the reasoning in Murphy was intended to narrow the margin of appreciation 53

54

55

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Human Rights Committee, General Comment no.  22 – Article 18 (Freedom of Thought, Conscience or Religion) (CCPR/C/21/Rev.1/Add.4), para. 9. Periodic reports submitted by Norway have raised the issue three times, in 1979, 2004 and 2009. See Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant. Initial Reports of States Parties Due in 1977:  Norway. (CCPR/C/l/Add 52), 5 December, 1979, p. 20; Human Rights Committee, Consideration of Reports Submitted by States Parties under the Covenant:  Fifth periodic report – Norway (CCPR/C/NOR/2004/ 5), 18 November 2004, para. 185; and Human Rights Committee, Consideration of reports submitted by States parties under the Covenant: Sixth periodic report – Norway (CCPR/C/ NOR/6), 25 November 2009, para. 203. Human Rights Council. Report of the Working Group on the Universal Periodic Review: Norway (A/HRC/27/3, 2014), para. 131(41). European Court of Human Rights, TV Vest AS & Rogaland Pensjonistparti v.  Norway, Application no. 21132/05, judgment of 11 December 2008. The term in the legal text is ‘livssyn’, lit. ‘lifestance’. European Court of Human Rights, Murphy v. Ireland, Application no. 44179/98, judgment of 10 July 2003.

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for limitations on political expressions while expanding the margin for states to limit religiously offensive expressions, allowing states significant leeway to censor what they might consider to be blasphemous expressions. This is also in line with the Court’s earlier acceptance of limitations to religiously offensive expressions and its overall tendency to allow states a considerable margin of appreciation in cases involving religion.58 The ban on religious commercials has never been tried by Norwegian courts, but to the extent that jurisprudence from the ECtHR would have any bearing on this topic, it could most likely be relied on to legitimize restrictions.

21.5

The Impact of Surrounding Legislation

The historical development and eventual demise of the blasphemy section can only properly be assessed if the ban is considered within its wider legal context, which has been instrumental to the gradually increasing irrelevance of the ban. In particular, the adoption of legislation prohibiting religiously motivated hate speech has been decisive to a re-conceptualisation of the limits between religion and freedom of expression. Following the amendment of Section 135 of the 1902 Penal Code in 1961, which expanded the ban on hate speech from offenses targeting public authorities to also offer protection for sections of the population recognized by a particular ‘declaration of faith’ or ‘descent’,59 it became uncertain where hate speech targeting individuals identified by religious adherence ends and offense against religious sentiments begins. Developed in close 58

59

Paul M. Taylor, Freedom of Religion – UN and European Human Rights Law and Practice (Cambridge: Cambridge University Press, 2005), pp. 84–102 and 343–6. For the rationale behind the amendment, see Ot.prp. nr. 45 (1960–1961) Om endring av § 135 i den alminnelige borgerlige straffelov av 22. mai 1902. Norwegian legislative efforts in this area were sparked by the onset of a wave of anti-Semitism sweeping over Europe in the late 1950s and early 1960s, mirroring similar efforts inspired by the same events at the United Nations. The UN initiative, which started as an attempt to adopt a convention prohibiting both racial and religious discrimination, quickly fell apart: while the question of racial discrimination was fast-tracked through the drafting committees and resulted in the adoption of the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the question of religious discrimination languished in the drafting committees for decades and has so far only become the subject of the non-binding Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981). For an overview of the drafting process, see John Claydon, ‘The treaty protection of religious rights: U.N. draft convention on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief ’ 1972 12:2 Santa Clara Lawyer 403–23.

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interaction with provisions negotiated at the international level, the protection of individuals in hate speech legislation represents a more updated and relevant restriction on the freedom of expression than the vague protections offered for declarations of faith in the blasphemy section. Unlike the blasphemy section, the prohibition on hate speech has been subject to widespread litigation, with several high-profile court cases from the 1970s and up to the present. Like the prohibition of blasphemy, the ban on hate speech has been amended several times. Following the Norwegian ratification of the International Convention on the Elimination of Racial Discrimination (ICERD) in 1970, the protection offered by Section 135 of the 1902 Penal Code was found to be insufficient, and a separate clause was added as Section 135a, colloquially known as the ‘racism paragraph’. The section, like ICERD, offered protection against publicly disseminated hate speech targeting anyone for their racial, ethnic or national characteristics. Unlike ICERD, however, the section also offered protection for hate speech targeting people for their ‘declaration of faith’. In 1981, the scope of protection was expanded to cover homosexual orientation, less than ten years after the decriminalisation of homosexual acts. The amendment was adopted with a slim margin in Parliament and sparked a vigorous debate on the potential limits it would impose on the religious freedom of expression.60 In 2005, the notion of ‘public’ was expanded considerably to also cover expressions made in private but reaching a wider public, and ‘declaration of faith’ was replaced with ‘religion and view of life’ as part of a larger restructuring of Norwegian anti-discrimination law.61 With the implementation of the 2005 Penal Code, the racism paragraph was kept largely intact as Section 185. Following the Norwegian ratification of the Convention on the Rights of Persons with Disabilities in 2013, the scope of protection was expanded to cover hate speech targeting people for their disabilities. Throughout its existence, the ban on hate speech for private persons has been dovetailed by a similar-sounding prohibition against denial of service.62 60

61

62

For an assessment of the 1981 debate on religious freedom of expression, see Helge Årsheim, ‘Om nokre religiøse unntaksreglar i norsk rett’ 2015 3 Kirke og kultur 284–98. Sindre Bangstad, ‘Failing to protect minorities against racist and/or discriminatory speech? The case of Norway and §135(a) of the Norwegian General Penal Code’ 2012 30:4 Nordic Journal of Human Rights 483–514, at pp. 486, 504. The denial of service was categorized as a ‘minor offense’ in Section 349a of the 1902 Penal Code. In the 2005 Penal Code, the prohibition is listed in Section 186.

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The maximum penalty for hate speech in the 2005 Penal Code is three years’ imprisonment for public hate speech and one year’s imprisonment for hate speech with more limited distribution. The latter penalty was added to cover ‘semi-public’ and private acts of discrimination.63 Mirroring the UN debate on hate speech in the 1960s,64 Norwegian jurisprudence on hate speech has been marked by the inexact borders between different grounds of hate speech, in particular between religious intolerance and racial discrimination, the entanglement of which has featured in several decisions. In the Leaflet case, decided by the Supreme Court in 1981,65 a woman was charged with targeting Muslim immigrants in a series of inflammatory leaflets that were widely distributed in the Oslo area. In one of the eight leaflets reviewed by the court, the message was that: The biddings and laws of Islam are in violation of Norwegian law in all the most important and decisive areas. Therefore, it is absurd, illogical and unreasonable to bring Islam into Norway by allowing the construction of mosques. This is tantamount to introducing crime. Building mosques means honouring barbarism, and one of the world’s worst, totalitarian systems.66

In its reasoning, the Court distinguished between accusations directed against the religion of Islam, the state of affairs in Muslim countries and general immigration policy, which it found to be outside the ambit of the law, and accusations levelled directly at immigrants as individuals and a social group, which it found to be ‘at the centre’ of the protection against hate speech.67 To the extent that the general criticism of Islam in the leaflets could be prosecuted, the Court observed, it would have to be under the blasphemy section. However, following the 1973 amendment of Section 142, prosecution could only be raised if it was required by the ‘public interest’, which the prosecutor in the Leaflet case did not find to be the case. In its overall assessment of the leaflets, the court reasoned that the scope and gravity of the general accusations against Islam as a religion and the state of affairs in Muslim countries, while conceptually distinct from the accusations 63

64 65 66 67

Ot.prp. nr. 22 (2008–2009) Om lov om endringer i straffeloven 20. mai 2005 nr. 28 (siste delproposisjon – sluttføring av spesiell del og tilpasning av annen lovgivning), p. 399. Bangstad, ‘Failing to protect minorities against racist and/or discriminatory speech?’ Rt. 1981-1305. Ibid. (author’s translation). Ibid.

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targeting Muslim immigrants more specifically, served to exacerbate the overall message. Consequently, the woman was found guilty of the offense and sentenced to sixty days’ conditional imprisonment. With this judgment, the court inaugurated a phase in its jurisprudence in hate speech cases under which wider assessment of context would be considered than in its earlier judgments, which had opted for more strictly textual interpretations.68 In the Pastor decision, another high-profile hate speech decision handed down by the Supreme Court in 1984, a pastor at a local church in Oslo was charged with hate speech targeting homosexuals during a live, nightly radio show answering phone calls from listeners.69 The statements about homosexuals were made following a sexually explicit message from one of the listeners, the nature of which the court of first instance somewhat surprisingly found to be ‘undoubtedly within the boundaries of the blasphemy section’, although no claims were being made in that direction by either party. Assessing the nature of the offense, the Supreme Court observed the emphasis in the preparatory works on the protection of ‘religious freedom of expression’ preceding the 1981 inclusion of homosexual orientation to Section 135a. As in the Leaflet case, the court distinguished clearly between the ‘purely religious’ part of the message, which it found to be well within the boundaries of the acceptable, and the more specific calls for listeners to pray for the ‘removal’ of homosexuals from leading positions in society, which it found offensive to a marginalized social group. Taken together, the court opined that the religious message, while clearly protected by the freedom of expression, served to amplify the specific targeting of members from a social group and overturned the acquittal by the lower court. This contextual method of interpretation held sway until 2002, when the Supreme Court considered the so-called Boot Boys case,70 in which a neo-Nazi leader stood trial for his remarks about Jews during a commemorative march celebrating the birthday of Rudolf Hess in 2000. The case was narrowly decided by a plenary session of the Supreme Court, indicating the complexity attached to determining the scope of hate speech prohibitions vis-à-vis the freedom of expression. As in the Pastor decision, the subject matter in Boot Boys was orally transmitted, and the Court 68

69 70

Bjørnar Borvik, ‘Grunnlova § 100 og vernet mot rasistiske ytringar’ 2005 23:2 Nordisk Tidsskrift for Menneskerettigheter 159–73, at 163. Rt-1984-1359. Rt. 2002-1618.

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reasoned that ‘the immediate context for the demonstration, with uniform dark attire, that most participants were masked, that “Sieg Heil” was shouted and so on, cannot have significant bearing on the consideration of the utterances’.71 Turning to the more specific content of the speech, the court found that it constituted little more than a ‘general subscription to Nazi ideology’ despite fairly concrete accusations levelled against immigrants and Jews specifically, including this passage: Every day, immigrants rob, rape and kill Norwegians, every day, our people and country is pillaged and destroyed by the Jews, who suck our country dry for riches, replacing it with immorality and un-Norwegian thoughts.72

This strongly ‘textual’ reasoning, under which the surroundings of the specifically offensive speech were not considered relevant to the overall offense, generated considerable public debate in Norway. Later adjustments to the section, including symbols as aspects of speech (2003) and expanding the scope of the offense to cover non-public acts (2005), make future rulings along these lines unlikely. In 2003, the Boot Boys ruling became the subject of a formal complaint submitted by the Jewish communities in Oslo and Trondheim and the Norwegian Anti-Racist Centre to the United Nations Committee on the Elimination of Racial Discrimination. The complaint alleged that the ruling violated articles 4 (obligation to prohibit hate speech) and 6 (available remedies) of ICERD. In its opinion, handed down in 2005, the Committee found the reasoning in the Supreme Court decision to be in violation of both articles, having failed to properly address the ‘exceptionally/manifestly offensive character’ of speech in the case.73 The state was advised to take measures that would ensure that similar statements could not find protection under the freedom of expression in the future. In 2007, the Supreme Court handed down its decision in the Vigrid case, where the leader of a fringe right-wing organization was charged with hate speech targeting Jews in a newspaper interview from 2003. In its assessment of the scope of hate speech legislation, the court cited a proposition issued by the parliamentary constitutional committee following the Boot Boys decision, observing that the threshold for conviction

71 72 73

Ibid. Ibid. (author’s translation). Committee on the Elimination of Racial Discrimination, Opinion – Communication No. 30/2003 (CERD/C/67/D/30/2003), p. 16.

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appeared to be ‘somewhat high’. Additionally, the court observed that the statements in question specifically intimated concrete measures against Jews, delivered in a format that left little room for interpretation in any other direction, confirming the conviction of the court of first instance of forty-five days’ unconditional imprisonment.74 Although the conviction may indicate a minor course correction from Boot Boys in the direction of a lowered bar for racist hate speech, the Court took great care to differentiate between the subject matter in the two cases, finding the hate speech in Vigrid to be more explicit and unequivocal than the speech in Boot Boys. The Court has not heard any cases on religious hate speech since its finding in Vigrid.75 Throughout its hate speech jurisprudence, the Norwegian Supreme Court has distinguished between utterances targeting or derived from religions, ideologies and political opinions, which it has unequivocally considered to be protected by the freedom of expression, and expressions targeting specific individuals and social groups, which it has found, with notable exceptions, to be in violation of the prohibition against hate speech. Several hate speech cases feature offensive depictions of different religions that the court has identified as relevant to the scope of the blasphemy section, but none have met the public interest requirement, added to the section in 1973. Notably, the public interest clause was introduced explicitly to provide prosecutorial authorities with a legal basis to dismiss claims of blasphemy,76 an intention that appears to have been successful. Another limitation to the freedom of expression influencing the function and role of the blasphemy section is the ban on defamation, to which the 1902 Penal Code dedicated an entire chapter (Sections 246–254), but which under the restructuring of the legal framework following the introduction of the 2005 Penal Code has been moved to the civil ‘Act relating to compensation in certain circumstances’, thereby purging the last remnants of one of the core principles of ancient Norwegian penal law from the books. While litigation under the sections criminalizing defamation in the modern era has mostly concerned the veracity of media reports, 74 75

76

Rt-2007-1807. In Rt-2012-536, the only other hate speech decision to reach the Supreme Court since Vigrid, the Court considered a purely racist hate speech incident. The case ended in a conviction, and the Court interpreted the preparatory works to the 2005 alterations to Section 135a to indicate a lower bar for racist speech than the one applied in the Boot Boys case. Ot.prp. nr. 40 (1971–1972) Om lov om endringer i straffeloven og straffelovens ikrafttredelseslov m. fl, p. 22.

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the 2009 Bookseller of Kabul decision touched upon the nexus between defamation and religion.77 In the case, the Supreme Court considered whether claims of defamation by an Afghan bookseller against a Norwegian author should be tried under Afghan or Norwegian legislation. Although the claimant explicitly specified that the alleged violations concerned privacy and not religion, the Court observed that violations of privacy, which targeted the ‘emotional and mental plane’, were largely conditioned by culture, morals and religion.78 Although this analysis played no decisive role in the decision, which concluded that the information about Afghan law by the claimant was insufficient to be applicable to the case, it intimates the continued existence of the by now mostly watered down and abandoned correlation between defamation and religion, with the latter constituting an important condition for the interpretation of the former. In 2014, the correlation between religion and defamation was explored from another direction, as the Kristiansand City Court handed down its decision in a suit for defamation under Section 247 of the 1902 Penal Code brought by Arne Tumyr, the former leader of the organization Stop the Islamization of Norway (SIAN) against a local imam.79 According to Tumyr, the imam made defamatory statements about him during an interview with the Norwegian public broadcaster NRK, in which the Imam observed that Tumyr ‘bases his work on racism, hate, propaganda and lies. He is never willing to listen to others, and therefore, we cannot have a dialogue or debate with him’.80 The crux of the issue was whether various statements made by Tumyr in the public sphere about Islam could be considered racist, hateful, propaganda or untruthful, or if they, as Tumyr maintained, painted an accurate portrait of the religion of Islam, in which case the statements of the imam would be manifestly untrue and therefore liable to prosecution for defamation. The Court found the Imam’s characterisation of Tumyr to be ‘mostly true’ and therefore well outside the scope of prohibited defamations.81 The court found Tumyr’s statements about Islam to represent a ‘manifestly unbalanced and stereotypical attitude towards all Muslims’ and acquitted the imam, observing the paradox that Tumyr retorted to

77 78 79 80 81

Rt-2009-1537. Ibid. TKISA-2014-158854. Ibid. (author’s translation). Ibid.

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defamatory metaphors of Islam as a ‘cancerous tumour’ during a trial in which he accused the imam of defamation.82 Taken together, the gradual decline of legislation on defamation and the concurrent increase in sanctions against hateful speech represent the broader socio-legal trends that gradually made the blasphemy ban untenable. Increasing religious pluralism, including a significant rise in non-religion, has led to a greater acceptance of criticism against powerful religious doctrines while also sparking heightened social tensions that have given rise to increased hate crimes.

21.6

Charlie Hebdo

Directly following the terrorist attacks against the French satirical magazine Charlie Hebdo in Paris on 7 January 2015, the Norwegian debate on blasphemy was reinvigorated. The day after the attacks, an op-ed in the largest Norwegian daily, Verdens Gang, pointed to the poor handling of the 2006 cartoon controversy by the Norwegian government and the controversial 2009 proposal to ban ‘qualified attacks on religions’ as evidence of the victimisation of Islam opening up a space for destructive and violent reactions to criticism.83 In the following days and months, the public reaction oscillated between calls for the final abolition of the Norwegian ban, which was still technically in effect, and comparisons between the important role of the freedom of expression in the West vis-à-vis the many bans on blasphemous expressions in Muslim-majority countries around the world. On 10 February 2015, these two perspectives came together, as a draft amendment was presented to Parliament to remove the section ahead of schedule as a direct response to the attacks: The attack on the French satirical magazine Charlie Hebdo in January 2015 was a direct attack on both the freedom of the press and the freedom of expression. Although the blasphemy section does not legitimize violence, the continued existence of the ban on blasphemy in the views of the sponsors of this amendment, underpins the idea that religious expressions and symbols should be granted special protection against expressions . . . Historically, religion has been a considerable source of power, and in many

82 83

Ibid. ‘Kronikk:  Vi er i samme båt’, Verdens Gang (8 January 2015), available at www.vg.no/ nyheter/ meninger/ terrorangrepet- mot- charlie- hebdo/ kronikk- vi- er- i- samme- baat/ a/ 23370238/.

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helge årsheim societies and cultures, religion is still very influential. Therefore, religion could and should be open for criticism, in the same ways as other powerful sectors of society.84

On 29 May 2015, Parliament unanimously decided to finally discontinue Section 142 of the Norwegian 1902 Penal Code, thereby ending a nearly 1,000-year-old tradition of protecting religious sentiments from ridicule and defamation.

21.7 Concluding Remarks The long arc of legal history of the Norwegian ban on blasphemous offenses offers a striking imagery, with the ban moving from the periphery in the first, fleeting references to penal sanctions against religious violations in the canonical chapter of the earliest written laws of Norway to the centre of attention via the violent upheavals during the Reformation and the increasingly draconian measures introduced by the absolutist state and back to the periphery again with its gradual dissolution in the wake of social secularisation and religious pluralism in the modern era. The prime mover in this back and forth has been the gradual rise of the modern nation state, whose earliest iterations in Norway developed in close interaction with canon law imported from continental Europe, inheriting many of its principles and punishments. With the shattering of European Christian unity during the reformations of the sixteenth century, the state became ever more watchful of the orthodoxy underpinning its divine claim to power, turning blasphemous offenses into the highest, most egregious forms of treason. As punishments meted out for blasphemous offenses were dramatically reduced with the growth of the liberal state in the nineteenth century, the ban was gradually transformed from a powerful protective measure to uphold state power to one among a host of general rights held by all individuals. In the twentieth century, the ban was primarily symbolic in nature, as the expansion of its protection to all religions effectively inaugurated the gradual decline in its applicability. Within a legislative framework based on the equality of all religions, bans on blasphemy quickly became untenable, as attested to by its turbulent final years of existence, where reform efforts where launched mere weeks

84

Dokument 8:59 L (2014–2015), Representantforslag 59 L (2014–2015) fra stortingsrepresentantene Anders B. Werp og Jan Arild Ellingsen om umiddelbar opphevelse av straffeloven § 142 (blasfemiparagrafen). Author’s translation.

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after the first indications that other religions than the majority might call on the protection for their own beliefs. As Yvonne Sherwood has observed, blasphemy – like comedy – is all about timing and direction.85 When acts of blasphemy carried the sentence of beheading in the seventeenth century, it was because they were perceived as attacks directed at the very foundations of the political order, reminiscent of the motivations behind contemporary prohibitions against blasphemy in countries like Pakistan and Afghanistan. As the nature of that political order and its relation to divine sanction changed dramatically over the following centuries, blasphemous expressions were robbed of their primary sense of direction and purpose and became unhinged, as their determination and recognition became radically context dependent. In a Norway increasingly marked by religious pluralism, regulations of hate speech targeting people for their religious identities or beliefs represents a considerably more relevant and contextually sensitive tool to negotiate potential limitations of the freedom of expression than the ban on blasphemy.

85

Yvonne Sherwood, ‘Blasphemous cartoons:  The old threat of secularism and the new threat of Islam’, 2015 The Immanent Frame, available at http://blogs.ssrc.org/tif/2015/04/ 06/blasphemous-cartoons-the-old-threat-of-secularism-and-the-new-threat-of-islam/.

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22 The Theory and Practice of Blasphemy in the Common Law Slaying the Seven-Headed Beast

Ivan   Hare

And I stood upon the sand of the sea, and saw a beast rising up out of the sea, having seven heads and ten horns, and upon his horns ten crowns, and upon his heads the name of blasphemy.1

22.1

Introduction

Blasphemy was a criminal offence in England (punishable by the ordinary courts) for well over three hundred years and carried the risk of brutal penalties for much of that time.2 It was finally abolished by Parliament in 2008. However, it is of much more than purely historical interest for a number of reasons. First, an understanding of the historical rationale for the punishment of blasphemy by the ordinary, secular courts is fundamental to the development of the theoretical justifications for restrictions on free speech more generally in England. This chapter is mostly concerned with that history and theory. Secondly, there remain calls for the re-introduction of laws against blasphemy which would cover all

1 2

Book of Revelation, 13:1. James Nayler was sentenced in 1656 ‘to be whipped from Westminster to the Old Exchange, to be pilloried, to have his tongue bored with a hot iron, to be branded in the forehead, and afterwards kept in prison at hard labour indefinitely’ (Hypatia Bradlaugh Bonner, Penalties Upon Opinion (London: Watts & Co, 1934), p. 19). Nayler’s crime was to have made an entry into Bristol in imitation of the entry of Christ into Jerusalem. Nayler’s case pre-dated the assumption of jurisdiction over blasphemy by the common-law courts. See n. 8 for the similar penalties under the Massachusetts blasphemy statute of 1697. This chapter does not address the law of Scotland and Northern Ireland, which is different in some respects.

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religions.3 As such, the arguments of principle against such laws need to be kept fresh in our minds.4 Thirdly, a number of commentators regard the existing crimes of intentionally stirring up religious hatred and the religiously aggravated public-order offences as the modern and ecumenical equivalents of blasphemy.5 As such, the normative arguments relied on to support blasphemy laws remain relevant to current criminal prohibitions and the debate about the proper limits of freedom of expression more generally. The most authoritative definition of the English law of blasphemy in its modern form is contained in Stephen’s Digest of the Criminal Law:6 Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, or the Bible, or the formularies of the Church of England as by law established. It is not blasphemous to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not as to the substance of the doctrines themselves.

A number of matters emerge from that definition. First, blasphemy is concerned with the expression of ideas: it is about speech and writing and not freedom of opinion. From an early stage, the common law acknowledged that the law could not sensibly prohibit the holding of opinions 3

4

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‘Muslims call for blasphemy law in UK and UN to prevent repeat of anti-Mohammed YouTube film’, The Huffington Post, 25 September 2012, available at www.huffingtonpost .co.uk/ 2012/ 09/ 25/ muslims- blasphemy- law- uk- un- mohammed- youtube_ n_ 1912004. html. This must be read in the context of a much wider movement between 1999 and 2010 in which the Organisation of the Islamic Conference sponsored motions before the United Nations condemning ‘defamation of religion’ (see Mirjam van Schaik, ‘Religious freedom and blasphemy law in a global context: The concept of religious defamation’ in Paul Cliteur and Tom Herrenberg (eds.), The Fall and Rise of Blasphemy Law (Leiden: Leiden University Press, 2016)). This is perhaps a version of John Stuart Mill’s argument in On Liberty (Harmondsworth: Penguin Classics, 1985), p. 97, that unless truth is ‘fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth’. Neil Addison, Religious Discrimination and Hatred Law (London:  Routledge Cavendish, 2007), p.  133; Russell Sandberg, Law and Religion (Cambridge:  Cambridge University Press, 2011), p. 140; and the chapter by Cox in this volume, ‘Blasphemy and defamation of religion following Charlie Hebdo’. Stephen’s Digest of the Criminal Law, 9th edn (London: Sweet and Maxwell, 1950), art. 214, quoted with approval in Whitehouse v.  Lemon [1979] A.C. 617, 665, per Lord Scarman. Since my concern is with the normative basis of the law, I shall not distinguish between blasphemy and blasphemous libel.

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about matters of religion.7 From this, it is clear that freedom of expression is at the heart of the debate about blasphemy. Secondly, the offence only applied to the established religion and not to other (even other Christian) denominations or faiths and was not confined to speech by adherents. Thirdly, there is no requirement of any intention to express contempt or to ridicule sacred matters: the offence is constituted by the mere publication of such matter. To that extent, it is a crime of strict liability and more like a form of civility code than a regular criminal prohibition. Finally, there is no requirement that the conduct should produce or be likely to produce any impact on its audience: whether by stirring up hatred of others or being likely to lead to a breach of the public peace or otherwise undermining the authority of the state. Although this chapter is principally about English law, the issues raised are not parochial. The English common law has, of course, had an immense and direct influence on the development of the legal systems and substantive law of all common law countries from Anguilla to Zambia (and including the major jurisdictions of India, the United States of America,8 Canada, Australia and New Zealand). Moreover, the theoretical justification advanced by English common-law judges in the seventeenth century

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In Sir Thomas Harrison v. Allen Evans (1767) 3 Bro. P. C. 465; 1 E.R. 1437, Lord Mansfield stated: ‘There never was a single instance, from the Saxon times down to our own, in which a man was ever punished for erroneous opinions concerning rites and modes of worship, but upon some positive law. The common law of England, which is only common reason or usage, knows of no prosecution for mere opinions’. Sir John Laws gives the example of the prohibition on the adoration of the Host as if it were (rather than represented) Christ’s flesh and blood contained in the Rubric to the Book of Common Prayer as the only provision ‘remaining in the [canon] law of England which prohibits free thought’; see John Laws, The Common Law Constitution (Cambridge:  Cambridge University Press, 2014), p.  44. The distinction between the right to freedom of thought, conscience and religion (which is absolute) and the qualified right to manifest one’s religion and belief is common to Article 9 of the European Convention on Human Rights, 1950 (ECHR) and Article 19 of the International Covenant on Civil and Political Rights, 1966 (ICCPR). See, for example, Commonwealth v. Kneeland, 20 Pick. 206 (Mass. 1838) and the Massachusetts Bay Colony’s Act against Atheism and Blasphemy of 1697: ‘That if any person shall presume willfully to blaspheme the holy Name of God, Father, Son, or Holy Ghost; either by denying, cursing or reproaching the true God; his Creation or Government of the World: or by denying, cursing, or reproaching the holy Word of God; that is the canonical Scriptures contained in the Books of the Old and New Testaments; namely … [then setting out a list of relevant Books]: Every one so offending shall be punished by Imprisonment, not exceeding six Months, and until they find Sureties for the good Behaviors; by sitting in Pillory; by Whipping; boaring thorow the Tongue, with a red hot Iron; or sitting upon the gallows with a Rope about their Neck; at the Discretion of the Court of Assize, and General Goal Delivery, before which the Trial shall be…’

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also had an important effect on the development of blasphemy laws on the continent of Europe.9 The purpose of this chapter is to analyse the theoretical justifications which have been advanced in the common law for the punishment of blasphemy. My thesis is that there has never been a persuasive principled basis for the punishment of blasphemy by the secular courts and that there is no place for such an offence in any society which values freedom of expression. Throughout the discussion, I shall assume that speech on matters of religious belief and practice made as part of public discourse is entitled to the highest level of legal protection. The structure of my contribution is as follows. In the next section, I say something about the relationship between church and state in general. I then provide an account of Taylor’s case, decided in the last quarter of the seventeenth century, which furnished both the source and the justification for the offence of blasphemy at common law for three hundred years. Next, I analyse each of the principal justifications advanced for punishing blasphemy: preventing the dissolution of government; filling the void left by the abolition or decline of other courts; reinforcing the reliability of oaths; and protecting religious sensibilities from offence.

22.2 Church and State It is unsurprising that worldly rulers should seek to bolster their authority by arguing that they are anointed by God. In the Roman Empire before the adoption of Christianity, the association between ruler and divinity could be even closer. The most obvious example is the Imperial Roman habit of declaring a deceased emperor to be a god – as the Senate did in relation to Julius Caesar in 42 BCE.10 After the adoption of Christianity, emperors were keen to avoid schism and enforce religious unity throughout the empire. Hence, it was Constantine, the first Christian Emperor of Rome, who took the crucial step of inviting Church leaders to Rome in

9

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‘The work of England’s common lawyers eventually produced probably the most cogent statement that outlined the principle behind church and state in partnership’. David Nash, Blasphemy in the Christian World (Oxford: Oxford University Press, 2007), p. 60. Mary Beard, SPQR: A History of Ancient Rome (London: Profile Books, 2015), pp. 428–34. Professor Beard also quotes Seutonius’ joke that the Emperor Vespasian on his death-bed, and sensing his own demise, was said to have stated: ‘Oh dear, I think I’m becoming a god’. It was not just Emperors, of course, and the Emperor Hadrian famously deified his former lover, Antinous, on the latter’s death.

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313 to resolve the Donatist schism of the North African Church.11 The scholars of the early Church were also much concerned with the duty of the Christian state to punish heresy and schism.12 Church leaders employed the religious tools at their disposal to achieve the same ends. Such attempts culminated in the Bull of Pope Lucius III Ad abolendam diversam haeresium pravitatem (to abolish diverse malignant heresies) of 1184, which announced the excommunication of a range of heretical sects and,13 in due course, the Inquisition. Returning to England, the closeness of the relationship between the authority of the medieval state and the Church can be illustrated by the response of Pope Innocent III to Magna Carta. When King John complained about the conduct of the twenty-five barons elected to enforce the so-called security clause (Article 61)  of Magna Carta,14 the Pope 11

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Diarmaid MacCulloch, A History of Christianity (London:  Penguin Books, 2009), pp. 211–22. For example, in St Augustine’s fifth-century City of God, translated by Henry Bettenson (London: Penguin Classics, 1984), as described in MacCulloch, History, p. 304. Such work continued during the medieval period. In the Summa Theologica, Aquinas distinguished between those who had never embraced the faith (such as Jews and Gentiles) who should not be constrained to do so and ‘heretics and all apostates’ who ‘should be constrained, even physically, to fulfil what they have promised and to observe what once they accepted for ever’ (Question X, Article 8). Since the Church is merciful, it is only in relation to the heretic who ‘remains pertinacious, [that] the Church, despairing of his conversion makes provision for the safety of others; and separating him, by the sentence of excommunication, from the Church, passes him to secular judgement to be exterminated from the world by death’ (Question XI, Article 3) in Alessandro P. d’Entrèves, Aquinas, Selected Political Writings (Oxford: Basil Blackwell, 1948), pp. 153, 157. This division of labour between divine and secular authority is illustrated by the fate of Bartholomew Legate in 1611, who, among other things, rejected the Nicene and Athanasian Creeds. He was summoned before the Bishop of London and other clerics and lawyers who declared him to be an ‘obdurate, contumacious, and incorrigible heretic’. King James I then directed the writ of de haeretico comburendo to the Sheriff of London, and Legate was brought to Smithfield and there burned (as recounted in Bonner, Penalties, pp. 14–16). These included the Cathars, Humiliati, Waldensians, Arnoldists and Josephines. The elimination of the Cathars was the object of the thirteenth-century Albigensian Crusade. See Jonathan Sumption, The Albigensian Crusade (London: Faber and Faber, 2000). Article 61 is an astonishing provision given the times. It provided for ‘twenty-five barons of the kingdom … who must with all their might observe, hold and cause to be observed, the peace and liberties which we have granted and confirmed to them by this present charter of ours’. Under the Article, four of those barons could petition the King to have any transgression of the Charter ‘corrected without delay’. If the King failed to do so within forty days, ‘those twenty-five barons together with the community of the whole land shall distrain and distress us [the Crown] in every way they can, namely, by seizing castles, lands, possessions, and in such other ways as they can, saving our person and the persons of our queen and our children, until, in their opinion, amends have been made; and when

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responded on 24 August 1215, describing the agreement as ‘illegal, unjust, harmful to royal rights and shameful to the English people’ and declaring it ‘null, and void of all validity for ever’.15

22.3

Taylor’s Case

For centuries, jurisdiction over heretics and blasphemers was exercised exclusively by the ecclesiastical courts in England. They adopted a broad definition of blasphemy which extended to any ‘attribution to God of a property inconsistent with his divinity’.16 The courts of common law operated a self-denying ordinance which would not permit cases concerning purely spiritual matters to proceed before them.17 Taylor’s case in 1676 was the first occasion on which the Court of King’s Bench addressed itself to purely religious expression.18 Taylor has been described as a ‘blasphemer of unusual thoroughness’.19 His statements included that ‘Christ is a whoremaster, and religion is a Cheat … I am Christ’s younger brother and that Christ is a bastard’. Chief Justice Hale justified the jurisdiction of the Court of King’s Bench over such matters in the following terms: These words, though of ecclesiastical cognisance, yet that religion is a cheat, tends to the dissolution of all government, and therefore punishable here, and so of contumelious reproaches to God, or the religion established. An indictment lay for saying the Protestant religion was a fiction for taking away religion, all obligations to government by oaths etc ceaseth, and Christian religion is a part of the law itself, therefore injuries to God are punishable as to the King, or any common person.20

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amends have been made, they shall obey us as they did before’. There was no equivalent to this provision in subsequent versions of the Charter. David Starkey, Magna Carta:  The True Story Behind the Charter (London:  Hodder and Staughton, 2015), pp. 37–8, and David Carpenter, Magna Carta (London:  Penguin Classics, 2015), Chapter 12. Richard H. Helmholz, The Oxford History of the Laws of England, Volume I: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford: Oxford University Press, 2004), pp. 636–7. John Baker, The Oxford History of the Laws of England, Volume VI:  1483–1558 (Oxford: Oxford University Press, 2003), pp. 791–2. Atwood’s case (1618) 1 Vent. 293 provides a good example. (1676) 3 Keb 607, 84 ER 906. Alan Cromartie, Sir Matthew Hale 1609–1676:  Law, Religion and Natural Philosophy (Cambridge: Cambridge University Press, 1995), p. 74. The other report of Taylor’s case (1 Vent 293)  states, ‘Christianity is parcel of the laws of England; and therefore to reproach the Christian religion is to speak in subversion of the law’. Cromartie, Sir Matthew Hale, p. 177, quotes Hale from the Fairhurst Papers in

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There are several strands to Chief Justice Hale’s reasoning, united only perhaps by how unconvincing they are either individually or in combination.

22.4

The Dissolution of all Government

The first justification is that blasphemy tended towards the dissolution of government by removing the obligation to obey the state and/or the law. Chief Justice Hale could draw on no historical evidence for the assertion that even harsh criticism of God or of the established Church led (or even tended) towards the ‘dissolution of all government’. In this respect, it is important to distinguish between the undoubted importance of religion to civil society and concepts of authority in this period (as described earlier) and the unorthodox utterances of frequently isolated individuals which led to prosecutions for blasphemy. Although confused in some of the early cases and writings,21 blasphemy was not the same as heresy and certainly not the same as the mass heretical movements which had so exercised the Catholic Church in the medieval era. Blasphemous utterances were certainly not a cause of the English Civil War of the seventeenth century.22 Even the change in the established religion under Henry VIII’s Reformation and the ebb and flow of Protestant and Catholic ascendancy in the reigns that followed had not brought about the end of civil government.23 Indeed, it is simply absurd to suggest that the speech of an

21

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Lambeth Palace Library on the power to suppress religious dissent:  ‘the reasonableness and indeed necessity of this coercion in matter of religion is apparent for the concerns of religion and the civil state are so twisted one with another that confusion and disorder an[d] anarchy in the former must of necessity introduce confusion and dissolution of the latter’. See Ivan Hare, ‘The English law of blasphemy: The ‘melancholy, long, withdrawing roar’, in Cliteur and Herrenberg, Fall and Rise, pp. 51–2. See generally Conrad Russell, The Causes of the English Civil War (Oxford: Oxford University Press, 1990); and Ann Hughes, The Causes of the English Civil War (London:  Palgrave MacMillan, 1998). In fact, the most serious public disorder to affect London in the past several hundred years was the so-called Gordon riots, which were in protest at attempts to remove some of the disabilities which had previously affected Roman Catholics (Ian Haywood and John Seed (eds.), The Gordon Riots:  Politics, Culture and Insurrection in Late Eighteenth-Century Britain (Cambridge:  Cambridge University Press, 2014); and Christopher Hibbert, King Mob: The Story of Lord George Gordon and the Riots of 1780 (Stroud: The History Press, 2004). The reception of the Henrician (and later) religious reforms by the English people is described in Diarmaid MacCulloch, The Later Reformation in England 1547–1603 (London:  MacMillan Education, 1990), pp. 125–62; Eamon Duffy, The Stripping of the Altars: Traditional Religion in England c.1400–c.1580, 2nd edn (New Haven: Yale University Press, 2005); and (on a more local scale) Eamon Duffy, The Voices of Morebath: Reformation

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individual such as Taylor could have any significant impact on respect for the government or for law more generally. Blasphemers in the early modern period were frequently isolated and pathetic figures, many no doubt touched with undiagnosed mental illness.24 Such figures were often deeply unpopular, and that part of their sentence spent in the pillory provided an opportunity for the public more generally to punish them further. Moreover, it was not accurate (then or now) to describe the Christian religion as ‘part of the law itself ’. As Lord Sumner commented (a mere 240 years later) in Bowman v. Secular Society Ltd: My Lords, with all respect for the great names of the lawyers who have used it, the phrase ‘Christianity is part of the law of England’ is really not law; it is rhetoric . . .25

Despite these obvious flaws in Chief Justice Hale’s reasoning, Taylor’s case and its rationale were loyally followed for more than 150 years.26

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and Rebellion in an English Village (New Haven:  Yale University Press, 2003). On the Lincolnshire Rising and the Pilgrimage of Faith, see Anthony Fletcher and Diarmaid MacCulloch, Tudor Rebellions (Harlow :  Pearson Education, 2008), pp. 28–53. As a matter of orthodox doctrine, the excommunication of Henry VIII by Pope Paul III in 1538 (renewing the Bull of 1533) should have led to the king’s loss of power. As Aquinas stated in the Summa Theologica (Question XII, Article 2), ‘And therefore, as soon as a ruler falls under sentence of excommunication for apostasy from the faith, his subjects are ipso facto absolved from his rule, and from the oath of fealty which bound them to him’. d’Entrèves, Aquinas, p. 159. In fact, Henry VIII remained king until his death in 1547, and the Tudor dynasty (of which he was part) endured until the death of his childless daughter Elizabeth in 1603. The most famous account of the Divine Right of Kings, Robert Filmer’s Patriarcha (Oxford:  Basil Blackwell, 1949), was published in 1680 (after Hale’s death), but much of this work was published in other forms during his lifetime. Professor Cromartie concludes that there was no evidence that Hale read Filmer; see Cromartie, Sir Matthew Hale, p. 116, fn. 105. The case of the pitiful Thomas Pooley provides a vivid illustration. Pooley had to be transferred to the local asylum within weeks of his sentence for blasphemy in 1857 (Bonner, Penalties, pp. 80–2). His case was taken up by John Stuart Mill in On Liberty, 2nd edn (London: John W. Parker and Son, 1859), p. 54 (p. 91 in 1985 version), who used it as an example of the ‘stain … of legal persecution’ arising from blasphemy prosecutions. Leonard W. Levy stated that blasphemy prosecutions ‘also tend to violate the equal-protection clause, because they tend to reflect class discrimination. … What sold for a pound was acceptable satire; what sold for penny was blasphemous reviling’, in Leonard W. Levy, Blasphemy: Verbal Offense against the Sacred, from Moses to Salman Rushdie (Chapel Hill: University of North Carolina Press, 1993), p. 573. [1917] A.C. 406, 464. See further, Hare, ‘Blasphemy’, in Cliteur and Herrenberg, Fall and Rise, pp. 58–60. Such cases include Dominus Rex v. Woolston (1728) Fitz. 64; 94 ER 655 (for suggesting that Christ’s miracles should be read allegorically and not literally); R v. Williams (1797) 26 St. Tr. 653 and R v. Carlisle (Richard) (1819) 3 B. & Ald. 161, and R v. Carlise (Mary) (1821) 1

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22.5

The Abolition of the Star Chamber and Decline of the Ecclesiastical Courts

The implicit and institutional motivations for the common law’s assumption of jurisdiction over blasphemy are no more persuasive than those expressed by Chief Justice Hale. It has been argued that the common law courts (like nature) abhor a vacuum and may have been encouraged to assert jurisdiction over blasphemy by the demise of the Court of Star Chamber or by the generally moribund condition of the ecclesiastical courts at the time.27 There were very good reasons for the abolition of the Star Chamber and for the decline in the ecclesiastical courts.28 However, this institutional explanation does not provide any principled reason for the secular courts to fill the gap created by the disappearance of other judicial fora: the common-law courts could just as easily have maintained the historical limits of their own powers and left it to the legislature to create a replacement for the lost tribunals if there was a compelling need for them.29 Indeed, this was, at least fleetingly, what happened in relation to obscenity.

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Str. Tr. N.S. 1033 (for publishing Thomas Paine’s The Age of Reason (1794)). The reasoning in Taylor’s case is further criticized in Hare, ‘Blasphemy’, in Cliteur and Herrenberg, Fall and Rise, pp. 56–7. Courtney S. Kenny, ‘The evolution of the law of blasphemy’ (1922) 1 Cambridge Law Journal 127, 129, and Whitehouse v. Lemon [1979] A.C. 617, 647, per Lord EdmundDavies. Even if the Court of King’s Bench did inherit the Star Chamber’s criminal jurisdiction, this did not extend to the punishment of blasphemy per se as opposed to sanctioning those who attempted to form seditious groups on religious grounds (Traske’s case (1617) Hob. 236; 80 ER 382). On the Star Chamber, see William S. Holdsworth, History of English Law (London: Methuen, 1903–1926), Vol. V, pp. 155–214, Vol. VIII, pp. 361–67; Harold Potter, An Historical Introduction to English Law and Its Institutions, 3rd edn (London: Sweet and Maxwell, 1948), pp. 40–1 and 148. While accepting some of its excesses under the Stuart monarchs, Sir Stephen Sedley has pointed out that the Star Chamber had at times functioned as a control on the exercise of public power (Stephen Sedley, Lions under the Throne: Essays on the History of English Public Law (Cambridge: Cambridge University Press, 2015), pp. 186–7). As regards the ecclesiastical courts, see R. B. Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500–1860 (Cambridge: Cambridge University Press, 2006), pp. 78–103; Holdsworth, History, Vol. III, pp. 556–95, Vol. V, pp. 429–32, and, more generally, Helmholz, The Canon Law. Sedley, Lions under the Throne, pp. 250–7. It is true that Parliament did pass the Blasphemy Act 1697, which made it an offence for any person educated in, or who had made profession of, the Christian religion to ‘deny any One of the Persons in the Holy Trinity to be God, or . . . assert or maintain there are more Gods than One, or . . . deny the Christian Religion to be true, or the Holy Scriptures of the Old and New Testament to be of Divine Authority’. However, no prosecutions were ever brought under this Act.

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When James Read was prosecuted for publishing The Fifteen Plagues of a Maidenhead, his conviction was quashed by the Court of King’s Bench in 1707. The judgment is an admirable example of judges declining to augment their own power at the expense of the freedom of others. In R. v. Read, Mr Justice Powell clearly found the publication to be extremely distasteful and yet held: This is for printing bawdy stuff, that reflects on no person, and a libel must be against some particular person or persons, or against the Government. It is not stuff fit to be mentioned publicly. If there is no remedy in the spiritual court, it does not follow that there must be a remedy here. There is no law to punish it: I wish there were: but we cannot make law. It indeed tends to the corruption of good manners, but that is not sufficient for us to punish. As to the case of Sir Charles Sedley, there was something more in that case than shewing his naked body in the balcony.30

The learned Judge was correct to distinguish the case of Sir Charles Sedley which had been decided by the Court some forty-five years previously. In addition to ‘shewing his naked body in the balcony’ in Covent Garden, Sedley had defecated on the crowd which had formed below, acted ‘all the postures of lust and buggery that could be imagined’, effected to preach a sermon (‘abusing of the scripture’), then having ‘washed his prick’ in a glass of wine and drunk it, he re-filled his glass and toasted the king. Perhaps unsurprisingly, the Court of King’s Bench could not resist punishing such profane conduct as ‘custodian of the morals of all the King’s subjects’.31 However, the fact that Sedley insulted the king, that the crowd was severely agitated by his conduct, that windows were smashed and a riot almost broke out plainly places the case in a different category from Read’s publication. It is regrettable that a later Court overturned Read’s case and affirmed its jurisdiction to punish publications which tend to ‘weaken the bonds of civil society, virtue and morality’ in relation to the book, Venus in the

30 31

R. v. Read (1708) 11 Mod. Rep. 142. Sir Charles Sydley’s case (1662) 1 Keb. 620; 83 ER 1146. The quotations come from The Diary of Samuel Pepys, edited by Robert Latham and William Matthews (London: Bell & Hyman, 1990), Vol. IV, p. 269, entry for 1 July 1663. Sedley’s case is discussed in David Lawton, Blasphemy (Hemel Hempstead: Harvester Wheatsheaf, 1993), pp. 23–26. This judicial power to act as custodian of public morals was relied upon for centuries to fill in the interstices of penal prohibitions on conduct considered immoral (see, for example, Shaw v. Director of Public Prosecutions [1962] A.C. 220 in which the House of Lords upheld the creation of a new criminal offence of conspiracy to corrupt public morals).

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Cloister, or The Nun in her Smock.32 However, even in Curl, Mr Justice Fortescue (dissenting) considered that ‘[t]o make it indictable, there should be a breach of the peace, or something tending to it, of which there is nothing in this case’.33 As such, the abolition of the Star Chamber and the decline of the ecclesiastical courts provided no normative basis for the common-law courts to assume jurisdiction over blasphemy.

22.6

The Importance of Oaths

Chief Justice Hale mentions ‘obligations to government by oaths’ in Taylor’s case. Oaths of loyalty to the state certainly have a long tradition in Europe and include the medieval lord’s oath of fealty to the king and the vassals’ oath to his lord which underwrote feudal structures of power. Oaths of allegiance continued to provoke public controversy as late as the 1880s in England, when the atheist Member of Parliament, Charles Bradlaugh, was prevented from taking his seat in the House of Commons because he was judged to be unable to swear the oath of allegiance.34 However, oaths had a much greater significance in early modern Europe than oaths of allegiance to the state.35 It is true that oaths were and remain important in legal documents and proceedings as well. However, I wish to focus on their importance to commerce. Scholars have suggested that, as trade expanded beyond those who were part of the merchant’s immediate community, a mechanism was required to ensure that promises for the delivery of goods or for payment could be relied upon by both

32

33 34

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R v.  Curl (1727) 2 Str. 788, 791 (per Probyn, J.); 1 Barn K.B. 29; 93 ER 849. The subject matter of the book is not difficult to imagine. See further Geoffrey Robertson, Obscenity: An Account of the Censorship Laws and Their Enforcement in England and Wales (London: Weidenfeld and Nicolson, 1979), pp. 21–3. Curl (n. 32), p. 791. Bradlaugh was a tireless campaigner for secularism. His perseverance eventually led to the Oaths Act 1888, which permitted affirmation in Parliament and in courts of law as an alternative to swearing a religious oath. As a youth, Bradlaugh was taken in by Eliza Sharples when he was accused of atheism by his pastor. Eliza Sharples had been the ‘common law wife’ of Richard Carlisle (another victim of blasphemy prosecutions; see n. 26). Bradlaugh’s daughter was Hypatia Bradlaugh Bonner, the author of Penalties. Consistently with her father’s beliefs, she was named after a Greek philosopher who had been murdered by a Christian mob. More surprisingly, for a child labelled with such an unusual name, Hypatia continued her father’s work. The significance of oaths in Europe stretches back to antiquity, and the oath of Tyndareus is frequently given as one of the principal causes of the Trojan War in literary sources.

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sides.36 One such mechanism was the use of oaths. The value of a religious oath is much diminished if the swearer does not fear eternal damnation for its breach. Even John Locke, in his celebrated essay on the topic, felt the limits of tolerance were reached in relation to atheists, partly because ‘[p]romises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist’.37 Across Europe, municipal ordinances against blasphemy appeared from the thirteenth century onwards in order to punish the misuse of oaths which would undermine the growth of commerce.38 However, in the course of the succeeding centuries as trade extended beyond Christian Europe to the New World and other civilisations, such exclusivity became an impediment to further commercial expansion. In Calvin’s case in 1609 which concerned the citizenship of a child born in Scotland after the union of the Crowns of England and Scotland, Lord Coke took the opportunity to describe the position of the ‘perpetui inimici’ (or perpetual enemies) of the Crown. In contrast to the conquest of a Christian nation in which the king is required to respect existing laws unless and until overturned: [I]f a Christian King should conquer a kingdom of an infidel, and bring them under his subjection, there ipso facto the Laws of the infidel are abrogated, for that they be not only against Christianity, but against the law of God and of Nature.39

This aspect of Calvin’s case could not survive the internationalisation of trade as English commercial entities expanded overseas and laid the foundations for the British Empire. One of the most famous cases of the late seventeenth century was the case of the Monopolies or East India Co v.  Sandys.40 The East India Company had been granted a Royal Patent 36

37

38

39 40

See, for example, Richard Goddard, Credit and Trade in Later Medieval England, 1353– 1532 (London:  Palgrave MacMillan, 2016), Chapter  1, who emphasises the significance of the Statute Staple: ‘a royally sanctioned debt registration system which provided for the recovery of defaulted debts’ (at p. 3). John Locke, The Second Treatise of Civil Government and a Letter Concerning Toleration (Oxford:  Basil Blackwell, [1689] 1946), p.  156, and John Marshall, John Locke, Toleration and Early Enlightenment Culture (Cambridge:  Cambridge University Press, 2006), pp. 231–2. Carol Lansing, Power and Purity:  Cathar Heresy in Medieval Italy (Oxford, Oxford University Press, 1998), pp. 1667, and Nash, Blasphemy, p. 47, and David Nash, ‘Analysing the history of religious crime: Models of “passive” and “active” blasphemy since the medieval period’ (2007) 41 Journal of Social History 5. Calvin’s case (1609) Co. Rep. 1a, 18a. (1684) 10 S.T. 371.

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for the sole trade in what was then called the East Indies. The Company sought to sue Mr Sandys for trading there without a licence. In his defence, Sandys disputed the validity of the patent in part on the authority of Calvin’s case. Sir George Treby, counsel for the Company (and later a Chief Justice), argued,41 By the like reason that there should be no trading with infidels, there ought to be no foreign trade at all, for there is no country where the religion does not differ in somewhat or other from the religion established in the church of England. . . . [I]f this perpetual hostility be taken in a political and proper sense and the law be so, it destroys the licence and privileges of the Company . . . I must take leave to say that this notion of Christians not to have commerce with infidels is a conceit absurd, monkish, fantastical, and fanatical. . . . The Indians have a right to trade here, and we there, and this is a right natural and human, which the Christian faith doth not alter.

The court held the patent to be valid and the company entitled to pursue its action against Sandys.42 As Holdsworth put it, Calvin’s case proved to be ‘[o]bviously contrary to the commercial interests of a country which was beginning to conduct a prosperous trade with infidels’.43 As the history of this additional protection for the Christian religion demonstrates, there can be no valid basis for insisting upon Christian oaths as the sole guarantor of truthfulness when a secular affirmation functions just as well. Still less therefore can this provide any (even indirect) justification for maintaining the law of blasphemy.

22.7

The Protection of Religious Feelings from Vilification

By prohibiting the questioning of Christian faith, Lord Hale’s judgment in Taylor’s case was plainly inconsistent with the pursuit of rational thought associated with the Enlightenment. However, for some time, religious interests continued to be privileged over intellectual enquiry. Eventually, it became clear that the definition of blasphemy would need to be narrowed if it was not to be invoked against celebrated nineteenth century

41 42

43

Ibid., pp. 391–2. Treby’s argument received the express approval of Willes C.J.  in Omichund v.  Barker (1744) Willes 538, 542, who said that he would not repeat Sir George’s criticisms of Lord Coke’s decision in Calvin’s case, but ‘I think it very well deserves every epithet that he has bestowed on it’. Lord Mansfield (the great reformer of English mercantile law) formally overturned this aspect of Calvin’s case in Campbell v. Hall (1774) 20 S.T. 294, 323. William S. Holdsworth, History of English Law, Vol. VIII, p. 409.

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intellectuals such as Charles Darwin or Thomas Huxley.44 The opportunity for the courts to narrow the law of blasphemy in order to keep Darwin out of gaol arose in R. v. Ramsey and Foote.45 Ramsey and Foote were the publisher and founding editor, respectively, of the Freethinker, a secular humanist magazine. Lord Coleridge C.J.’s definition of blasphemy in his direction to the jury marked a watershed:46 A wilful intention to pervert, insult, and mislead others, by means of licentious and contumelious abuse applied to sacred subjects, or by wilful misrepresentations or wilful sophistry, calculated to mislead the ignorant and the unwary, is the criterion and test of guilt. … [I]f the decencies of controversy are observed, even the fundamentals of religion may be attacked without the writer being found guilty of blasphemy.

This view was affirmed in Bowman v. Secular Society in 1917, in which Lord Parker stated, ‘To constitute blasphemy at common law there must be such an element of vilification, ridicule or irreverence as would be likely to exasperate the feelings of others and so lead to a breach of the peace’.47 These decisions were thought to have narrowed the law of blasphemy sufficiently that it was rendered obsolete, and it is true that there was no prosecution for sixty years after Bowman.48 This narrowing (which gave concomitantly greater scope for freedom of expression) was welcome as well as overdue. Ramsey and especially Bowman also appeared to mark a decisive shift away from Chief Justice Hale’s justification for the law of blasphemy towards a rationale based on public order. Reports of the death 44

45

46 47

48

The case of R. v. Woolston (1728) 2 Str. 834; 93 ER 881 provides an early illustration of this narrowing. Woolston was convicted ‘for his blasphemous discourses on the miracles of our Saviour’, but the court was keen to emphasise that they ‘did not intend to include [within the offence] disputes between learned men’. See Robert Post, ‘Hate speech’, in Ivan Hare and James Weinstein (eds.), Extreme Speech and Democracy (Oxford:  Oxford University Press, 2009), p. 131. (1883) Cab. & El. 126; 15 Cox C.C. 231. See also the summing up of Lord Denman C.J. in Reg v. Hetherington 4 St Tr.N.S. 563, 590–1. Ibid., 236. Bowman v. Secular Society Ltd [1917] AC 406, 446. Lord Sumner, ibid., 466–7, stated that the limits of lawful expression were exceeded where criticism of Christianity or the Church of England tended to ‘endanger the peace then and there, to deprave public morality generally, to shake the fabric of society, and to be a cause of civil strife’. Bowman was not a criminal prosecution for blasphemy but addressed the question of whether a bequest to the Secular Society was valid. The exception was the case of R. v. Gott (1922) 16 Cr App R 87, but this case was based on the likelihood that Gott’s description of Christ entering Jerusalem ‘like a circus clown on the back of two donkeys’ would provoke a breach of the peace.

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of blasphemy, however, proved to be an exaggeration in the next criminal case to reach the House of Lords.49 Whitehouse v. Lemon50 concerned the publication in the magazine Gay News of a poem called ‘The Love that Dares to Speak its Name’ which described Jesus Christ engaging in homosexual practices with the Apostles and further homosexual acts on Christ’s body after death. A private prosecution was brought by the moral campaigner, Mary Whitehouse. The editor and publishers of Gay News appealed their conviction on the ground that the prosecution had not demonstrated an intention to blaspheme. The issue before the House was therefore narrow and was resolved against the appellants by a majority.51 The real interest of the Gay News case for our purposes lies in what three of their Lordships said about the essence of the offence of blasphemous libel:  ‘material which . . . is likely to shock and arouse resentment among believing Christians’ or to ‘shock and outrage the feelings of ordinary Christians’ or ‘words . . . calculated to outrage and insult the Christian’s religious feelings’ or to ‘cause grave offence to the religious feelings of some of their fellow citizens’.52 Lord Scarman went further: I do not subscribe to the view that the common law offence of blasphemous libel serves no useful purpose in the modern law. On the contrary, I think that there is a case for legislation extending it to protect the religious beliefs and feelings of non-Christians. The offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the kingdom. In an increasingly plural society such as that of modern Britain it is necessary not only to respect the differing religious beliefs, feelings and practices of all but also to protect them from scurrility, vilification, ridicule and contempt.53

49

50 51

52

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Lord Denning described the offence as ‘moribund’ in Freedom under the Law (London: Stevens & Co., 1949), p. 46, and Sir James Fitzjames Stephen in A History of the Criminal Law of England (London: MacMillan and Co., 1883), Vol. II, p. 396, said that the offences against religion were ‘all but entirely obsolete’. [1977] AC 617. Ibid., Viscount Dilhorne, 645F–656C; Lord Russell of Killowen, 657G–658A, and Lord Scarman, 665F–G. The other members of the House held that an intention to shock or cause resentment was required (Lord Diplock, 635H–636B, and Lord Edmund-Davies, 656B–E). As a matter of authority (but not principle), the majority was correct; see John Spencer, ‘Blasphemous libel resurrected: Gay News and grim tidings’ (1979) 38 Cambridge Law Journal 245. See further David Nash, Blasphemy in Modern Britain: 1789 to the Present (Aldershot: Ashgate, 1999), pp. 239–56. Ibid., 632D–E, per Lord Diplock; 567, per Viscount Russell, and 663D & 665A, per Lord Scarman. Ibid., 658B–C. See Robert C. Post, Constitutional Domains:  Democracy, Community, Management (Cambridge, MA: Harvard University Press, 1995), pp. 97–100.

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As Lord Scarman acknowledged, this was not a change which the court could introduce: it would require legislation.54 In fact, when Parliament did intervene (some thirty years later), it was to abolish the offence of blasphemy altogether by Section 79 of the Criminal Justice and Immigration Act 2008.55 Abolition (without replacement) was in line with the clear trend in other major common law jurisdictions.56 Lord Scarman’s suggestion would, of course, have removed one of the most objectionable aspects of the common law of blasphemy: its partiality. Disappointingly, this was not regarded as fatal to the law’s compatibility with the ECHR when Mr Choudhury complained to Strasbourg about the failure of English law to provide a remedy against the author and publishers of The Satanic Verses.57 This is in large part owing to the ‘wider margin of appreciation . . . generally available to the contracting 54

55

56

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The Divisional Court reached the same view in R v.  Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] 1 QB 429 in rejecting a challenge to the decision not to prosecute Salman Rushdie and the publishers of The Satanic Verses on the ground that blasphemy did not extend to religions other than the Church of England (R. v. Gathercole (1838) 2 Lew 237, 254; 168 ER 1140, 1145). See Jeremy Waldron, ‘Rushdie and religion’, in Liberal Rights-Collected Papers 1981–1991 (Cambridge:  Cambridge University Press, 1993), and Colin Munro, ‘Prophets, presbyters and profanity’ (1989) Public Law 369. The abolition took effect from 8 July 2008. The impetus for Parliament was the decision of the Divisional Court in R. (on the application of Stephen Green) v. The City of Westminster Magistrates Court & Others [2007] EWHC 2785 (Admin); [2008] E.M.L.R. 15 to the effect that Jerry Springer:  The Opera could not be regarded as blasphemous. See Ivan Hare, ‘Blasphemy and incitement to religious hatred: Free speech dogma and doctrine’, in Hare and Weinstein, Extreme Speech and Democracy, pp. 296–7. Although not formally struck down, the US Supreme Court has made clear that convictions for blasphemy would be inconsistent with the First Amendment to the Federal Constitution’s guarantee of free speech (Joseph Burstyn, Inc. v. Wilson, 343 US 495 [1952]). Unanswerable cases for abolition have been made in the other common-law jurisdictions where the offence remains on the books. See, for example, the New South Wales Law Reform Commission, ‘Report (74) (1994) – Blasphemy’, and Rex Ahdar, ‘The right to protection of religious feelings’ (2008) 11 Otago Law Review 629. Common law states which privilege religion through blasphemy laws continue to experience great sectarian problems which appear to be exacerbated by reliance on those laws. See, for example, Osama Siddique and Zahra Hayat, ‘Unholy speech and holy laws: Blasphemy laws in Pakistan. Controversial origins, design defects and free speech implications’ 17 Minnesota Journal of International Law 303 (2008). The Republic of Ireland remains an outlier in this respect having introduced an offence of blasphemy in the Defamation Act 2009. Choudhury v. the United Kingdom, Application no. 17439/90, judgment of 5 March. See generally Paul M. Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge:  Cambridge University Press, 2005), and Carolyn Evans, Freedom of Religion under the European Convention on Human Rights (Oxford:  Oxford University Press, 2001). On blasphemy cases before the ECtHR, see also the chapters by Lewis and Temperman in this volume.

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states when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion’.58 Given this starting point, it is unsurprising that the Strasbourg organs have rejected challenges to blasphemy laws: finding that they serve the legitimate purpose of ‘the protection of the rights of citizens not to be offended in their religious feelings’59 and that ‘restrictions on the propagation of material on the basis that it is blasphemous’ may be necessary in a democratic society and hence compatible with the ECHR.60 It is correct to point out that these decisions are of some age and that there appears to be both a growing scepticism in Strasbourg about the special claims of religious feelings to protection and a greater emphasis on the importance of protecting free speech.61 However, the failure of the ECtHR to provide a satisfactory response to the common law of blasphemy does not affect the normative analysis and the partiality of the common law in this respect was obviously unjustifiable. That leads to the question of whether the protection of all religious feelings and practices from offence is a sufficiently compelling interest to justify prohibitions on speech which is, by definition, on a matter of public interest and controversy.62 This would, of course, be an argument 58

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Wingrove v.  the United Kingdom, Application no.  17419/90, judgment of 25 November 1996, para. 58. It is nevertheless very surprising that the Strasbourg Court accepted that the discriminatory nature of the law ‘did not detract from the legitimacy of the aim pursued’ (Wingrove, para. 50), despite the fact that the ECHR expressly prohibits discrimination in the enjoyment of Convention rights on the grounds, inter alia, of religion. Ivan Hare, ‘Extreme speech under international and regional human rights standards’, in Hare and Weinstein, Extreme Speech, pp. 73–4. Gay News and Lemon v.  the United Kingdom, Application no.  8710/797, judgment of 7 May 1982, para. 11. However, Article 10 of the ECHR does not necessarily envisage that an individual is to be protected from exposure to religious views which differ from his or her own (Murphy v. Ireland, Application no. 44179/98, judgment of 10 July 2003, para. 72). See further, Otto-Preminger-Institut v. Austria, Application no. 13470/87, judgment of 20 September 1994. Wingrove, para. 57. İ.A. v. Turkey, Application no. 42571/98, judgment of 13 September 2005. Sandy Ghandhi and Jennifer James, ‘The English law of blasphemy and the European Convention on Human Rights’ (1998) E.H.R.L.R. 430; Hare, ‘Blasphemy and Incitement’ in Hare and Weinstein, Extreme Speech, pp. 304–5; Ronan McCrea, ‘Secularism before the Strasbourg Court: Abstract constitutional principles as a basis for limiting rights’ (2016) 79 Modern Law Review 691. This is effectively the route taken in the famous provision of the Indian Penal Code (s. 295A) which prohibits ‘outraging the religious feelings of any class of citizens of India, by . . . insults or attempts to insult the religion or the religious beliefs of that class’.

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in favour of introducing a new law of blasphemy which applied to all religions. The better view is that religious sensibilities cannot be entitled to any greater protection than those experienced by individuals on other matters of equal importance.63 This is one area where the common law and the ECtHR appear to have reach the same conclusion. As Laws L.J. has stated, ‘the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled’.64 This is sufficient to dispose of the rationale that blasphemy laws are justified by the need to protect religious practices or beliefs from offence. There remains the question whether there are other ideas or symbols (whether religious or secular) whose value is sufficient to be protected against offence. This gives rise to what seems to me to be an insoluble paradox: if beliefs are considered sufficiently important to merit equivalence with religious faith, they are almost certain to constitute matters of public controversy. Discussion of matters of public controversy is, of course, entitled to the highest level of legal protection in any system which values free speech. As such, I consider that the protection of religious or other beliefs from criticism or vilification as part of public discourse can never be justified.65 For reasons I have set out in detail elsewhere,66 provisions such as the current English law on stirring up hatred on religious grounds cannot be regarded in any meaningful way as serving the same purpose

63

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Pithily expressed in Robert Post, ‘Religion and freedom of speech: Portraits of Muhammad’ (2007) 14 Constellations 72, and Ronald Dworkin, ‘The right to ridicule’ (23 March 2006) 53:5 New York Review of Books. McFarlane v.  Relate Avon Ltd [2010] EWCA Civ 880; [2010] I.R.L.R. 872, [23]. In Kokkinakis v. Greece, Application no. 14307/88, judgment of 25 May 1993, para. 31, the European Court of Human Rights has accepted that an individual’s view on matters other than religion may be of equal importance under Article 9 of the ECHR to ‘atheists, agnostics, sceptics and the unconcerned’. See Stefan Collini, That’s Offensive: Criticism, Identity, Respect (London: Seagull Books, 2010), pp. 30–53. Ivan Hare, ‘Crosses, crescents and sacred cows:  Criminalising incitement to religious hatred’ [2006] Public Law 521, and Ivan Hare, ‘Free Speech and incitement to hatred on grounds of disability and transgender identity: The Law Commission’s proposals’ (2015) Public Law 385. In Percy v.  Director of Public Prosecutions [2001] EWHC Admin 1125; [2002] Crim. L.R. 835, para. 30, Hallett, J., accepted that it is a legitimate aim ‘in a multicultural society to prevent the denigration of objects of veneration and symbolic importance for one cultural group’, although a prosecution for desecrating the US flag as part of the protest about weapons programmes in England was disproportionate. Hare, ‘Blasphemy’ in Cliteur and Herrenberg, Fall and Rise, pp.  65–8. Compare Cox’s chapter in this collection.

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as legal provisions on blasphemy, principally because the legislation is structured to ensure that it is the individual rather than the belief which is protected.

22.8 Conclusion At first glance, such a lengthy discussion of the foundations of a nowabolished law in a relatively small jurisdiction such as England may seem excessive. However, even if one accepts that the arc of the moral universe bends towards justice,67 what justice means in this context remains a hotly contested matter. For many, providing equal protection for all religious or other feelings from offence more than justifies the introduction of criminal or other penalties on the expression of opinion. The long history of partial protection for the religious views of adherents of the Church of England provides a historical precedent for such advocates. My modest aim in this chapter has been to demonstrate that such protection was never justified as a matter of principle and that advocates of the re-introduction of blasphemy in whatever form cannot place any persuasive reliance upon it.

67

Often attributed to the Rev. Martin Luther King Jr. in ‘Out of the long night’ in The Gospel Messenger (8 February 1958), but probably originating from a mid-nineteenth-century sermon by Theodore Parker.

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23 Freedom of Expression, Blasphemy and Religious Hatred A View from the United Kingdom

Erica   Howard

23.1

Introduction: Current Situation

In the UK, blasphemy and blasphemous libel were common-law offences,1 which meant that they were not laid down in statute but were grounded in case law. The offences were officially abolished for England and Wales in May 2008, by Section 79 of the Criminal Justice and Immigration Act 2008. In Scotland and Northern Ireland, the offences still exist, although the last prosecution for blasphemy in Scotland was in 1843, and there have never been any prosecutions in Northern Ireland. In 2006, the Racial and Religious Hatred Act 2006 was adopted, and this act added a new Part  3A to the Public Order Act 1986, entitled ‘Hatred against persons on religious grounds’, adding Sections 29A to 29N to the 1986 act. The first section, Section 29A, defines ‘religious hatred’ as meaning ‘hatred against a group of persons defined by reference to religious belief or lack of religious belief ’. The Public Order Act 1986 already contained provisions against racial hatred, which are different from those against religious hatred. There are also provisions on racially and religiously aggravated offences. The former were laid down in Section 28 of the Crime and Disorder Act 1998, which was amended in December 2001, after the events on 11 September 2001, to include offence committed on religious grounds. Section 28(5) determines that ‘in this section “religious group” means a

1

Blasphemous libel is the written form of blasphemy. See Law Commission, Offences against Religion and Public Worship (LAW COM. No 145), 18 June 1985, available at www.gov.uk/ government/uploads/system/uploads/attachment_data/file/235882/0442.pdf, para. 2.1.

595

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group of persons defined by reference to religious belief or lack of religious belief ’. This means that if there is religious hostility, the courts can impose a penalty above the ordinary maximum for the offence. In this chapter, these provisions and the history that led to the abolition of blasphemy and blasphemous libel and to the enactment of the Racial and Religious Hatred Act 2006 will be examined. But what is the difference between blasphemy and religious hatred? Leigh writes that ‘the essence of blasphemy is showing contempt or insult to God or anything considered sacred’.2 He distinguishes this from religious insult, which focuses on insulting those who belong to a specific religion or their religious feelings, and from religious hatred, which ‘is a stronger form of conduct that may or may not be accompanied by intention to promote discrimination or violence against members of a religion’.3 So, as Leigh sums up, ‘in principle blasphemy protects religious ideas per se whereas religious insults and religious hatred protect the persons holding religious beliefs’.4 With this in mind, the different provisions in the UK are analysed.

23.2 Blasphemy: Status of the Offence before Abolition Blasphemy (and blasphemous libel) was a common-law offence going back many centuries.5 In 2002, a House of Lords Select Committee was asked to consider and report on the law relating to religious offences. This committee examined whether the existing religious offences (notably blasphemy) should be amended or abolished and whether a new offence of incitement to religious hatred should be created and, if so, how such an offence should be defined.6 The report discussed the offence of blasphemy and stated that this offence was based on the idea that faith influenced society’s political and moral behaviour and thus that challenges to that faith were serious threats to the fabric of society and had to be punished severely.7 In other words, blasphemy was seen as ‘akin to treason’.8 2

3 4 5

6

7 8

Ian Leigh, ‘Damned if they do, damned if they don’t: the European Court of Human Rights and the protection of religion from attack’ (2011) 17:1 Res Publica 57. Ibid. Ibid. For the history of the offence, see the chapter by Mark Hill and Russell Sandberg in this volume, ‘The Right to Blaspheme’. See the report Select Committee on Religious Offences in England and Wales, Session 2002– 03, HL Paper 95-I, 5. Ibid., 46. See also R. v. Taylor (1676) 1 Vent 293. Russell Sandberg and Norman Doe, ‘The strange death of blasphemy’ (2008) 71:6 Modern Law Review 972.

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Freedom of Expression, Blasphemy & Religious Hatred 597

From 1838, the law of blasphemy only protected the beliefs of the Church of England.9 Other Christian denominations appeared to be protected insofar as their beliefs overlapped with those of the Church of England.10 Moreover, the law only prohibited material which was couched in indecent or offensive terms, which was clear from Bowman, in which the House of Lords confirmed that blasphemy required intemperate or scurrilous language.11 Therefore, reasonable criticism was not considered blasphemous12 and ‘if the decencies of controversy are observed, even the fundamentals of religion might be attacked’.13 The offence of blasphemy was a so-called strict liability offence: it did not require proof of intent to blaspheme, only proof of intent to publish. So it was sufficient for the prosecution to prove that the publication had been intentional and that the matter published was blasphemous. This was confirmed by the House of Lords in R. v. Lemon, R. v. Gay News,14 a case which will be discussed in more detail in what follows (see this section). There were only four reported judgments in the twentieth century, and no blasphemy case was prosecuted in England and Wales following the passage of the Human Rights Act 1998.15 This act incorporated the European Convention on Human Rights and Fundamental Freedoms (ECHR) into domestic law. Since the coming into force of this act in October 2000, the rights laid down in the ECHR can be invoked directly in the domestic courts. The first of these four cases, Bowman, confirmed, as already mentioned, previous case law, while, in 1922, R. v. Gott was the last case that led to a person being imprisoned for blasphemy.16 Between 1922 and 1977, there were no prosecutions, although the offence was ‘policed extra-legally; it

9 10

11 12

13

14 15 16

Gathercole’s Case (1838) 2 Lewin 237. Williams (1797) 26 St Tr 654. See also Mark Hill and Russell Sandberg, ‘Blasphemy and human rights: An English experience in a European court’ (2009) IV Derecho y Religion 145–60, 148 and the chapter by the same authors in this volume, in which the authors mention that judicial pronouncements on this were becoming increasingly contradictory. Bowman v. Secular Society Ltd [1917] AC 406. Sandberg and Doe, ‘The strange death of blasphemy’, 972. See also House of Lords Select Committee, 47, para. 6. R. v. Ramsay and Foote (1883) 15 Cox CC 231, as cited in Sandberg and Doe, ‘The strange death of blasphemy’, 973. R. v. Lemon, R. v. Gay News Ltd [1979] AC 617. House of Lords Select Committee, 46, para. 3. R. v. Gott (1922) 16 CR App R 87.

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was curtailed by the fears, anxieties and sensitivities of individuals rather than by law’.17 In 1977, a private prosecution was brought against both the editor and the publishers of the journal Gay News concerning a publication of a poem entitled ‘The love that dares to speak its name’, which described sexual acts between Christ and his disciples and other persons and with Christ’s body immediately after his death.18 Both editor and publishers were convicted of blasphemous libel. The House of Lords confirmed, as mentioned, that intent to publish is necessary for the offence but that it is not necessary to prove intent to blaspheme. In relation to human rights as guaranteed by the ECHR, Lord Scarman considered that Article 9 ECHR (guaranteeing the freedom of religion as well as the freedom to manifests one’s religion) by necessary implication ‘imposes a duty on all of us to refrain from insulting or outraging the religious feelings of others’. In relation to Article 10 (guaranteeing freedom of expression) he mentioned that the exercise of this freedom carries with it duties and responsibilities and may be subject to restrictions. His conclusion was that ‘it would be intolerable if by allowing an author or publisher to plead the excellence of his motives and the right of free speech he could evade the penalties of the law even though his words were blasphemous in the sense of constituting an outrage upon the religious feelings of his fellow citizens’.19 This suggests that the law of blasphemy was held to be compatible with the ECHR. This was confirmed when the case went to Strasbourg. In Gay News v.  the United Kingdom,20 the European Commission of Human Rights held that the application was manifestly ill founded and declared the application inadmissible. The Commission held that the restriction on the freedom of expression in order to protect religious feelings was justified under Article 10(2) ECHR.21 The complaint of a violation of Article 9 ECHR was rejected on the same grounds, while the claim under Article 14 (guaranteeing non-discrimination in the enjoyment of the rights and freedoms in the ECHR) was dismissed because ‘there is no evidence that the applicants were discriminated against on account of their homosexual views or of beliefs not shared by confessing Christians’.22 The Commission 17

18 19 20 21 22

Sandberg and Doe, ‘The strange death of blasphemy’, 974. See also the chapter by Hill and Sandberg in this volume. R. v. Lemon, R. v. Gay News Ltd [1979] AC 617. Ibid., 664. Gay News v. the United Kingdom, Application no. 8710/797, judgment of 7 May 1982. Ibid., paras 2 and 12. Ibid., para. 4.

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Freedom of Expression, Blasphemy & Religious Hatred 599

also held that ‘the applicants cannot complain of discrimination because the law of blasphemy protects only the Christian but no other religion. This distinction in fact relates to the object of legal protection, but not to the personal status of the offender’.23 Since the Gay News case, there have not been any successful prosecutions for blasphemy or blasphemous libel. In 1989, Salman Rushdie’s book The Satanic Verses was published, and the publication led to protests by British Muslims, who tried to bring a private prosecution against the author for blasphemy. But this was refused on the grounds that the offence only protects the Christian religion and there was no justification for a court to extend this, as this was a question for Parliament to decide. It was also mentioned that the fact that blasphemy did not apply to Islam did not mean that the UK was in breach of its responsibilities under the ECHR.24 An application to the European Court of Human Rights for a violation of Article 9 and 14 was declared inadmissible because ‘no State authority, or any body for which the United Kingdom Government may be responsible under the Convention, directly interfered in the applicant’s freedom to manifest his religion or belief ’.25 Although, in the Gay News case, the prosecution for blasphemy was successful, when the poem was recited publicly in 2002 to celebrate the twenty-fifth anniversary of its first appearance there was no action taken by the authorities.26 Garcia Oliva writes that this made the fragility of the blasphemy offence obvious.27 Wingrove v. the United Kingdom was another challenge to the law of blasphemy before the European Court of Human Rights,28 although this case did not concern a prosecution for blasphemy but rather a refusal by the British Board of Film Classification to issue a classification certificate for the video film Visions of Ecstasy because it might well be regarded as blasphemous. The film was based on the writings of Saint Teresa de Avila, who had experienced powerful ecstatic visions of Jesus Christ. The maker of the film complained of a violation of his right to freedom of 23 24 25

26 27

28

Ibid., para. 14. R. v. Chief Stipendiary Magistrate, ex parte Choudhury [1991] 1QB 429. Choudhury v. the United Kingdom, Application no. 17439/90, decision of inadmissibility of 5 March 1991. For an extensive overview and analysis of the relevant ECtHR jurisprudence, see the chapter by Lewis in this volume, ‘At the Deep End of the Pool’. See also: Hill and Sandberg, in this volume. Javier Garcia Oliva, ‘The legal protection of believers and beliefs in the United Kingdom’ (2007) 9:1 Ecclesiastical Law Journal 72. Wingrove v. the United Kingdom, Application no. 17419/90, judgment of 25 November 1996.

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expression, but the European Court of Human Rights concluded that Article 10 was not violated. The refusal was intended to protect the right of citizens not to be insulted in their religious feelings, and it was proportionate to that aim. So the blasphemy law was compliant with the ECHR.29 In 2005, the BBC transmission of Jerry Springer:  The Opera led to a large number of complaints, both before and after transmission. An attempt was made to bring a private prosecution for blasphemous libel against both the producer and the BBC.30 The Magistrate’s Court refused to issue a summons, and the claimant applied to the High Court for judicial review of this decision. The High Court considered that ‘it is apparent from the Claimant’s own description of this work, confirmed by our own brief viewing of a recording of it, that its target is the tasteless “confessional” chat show, rather than the Christian religion’.31 The Court then mentioned that the offence of blasphemy still existed and that the elements of the offence were, first, it must concern material that was contemptuous, reviling, scurrilous and/or ludicrous; second, the publication must endanger society or cause civil strife.32 The Court held that the second requirement is ‘consistent with the requirement in modern times that any such crime be compatible with Article 10(2) and considered (referring to Wingrove) that ‘whilst the law of blasphemy may well be “consonant” with the right to freedom of thought and to manifest one’s religion enshrined in Article 9 … the Article 10(2) basis for the crime of blasphemous libel is best found, as it seems to us, in the risk of disorder amongst, and damage to, the community generally’.33 So although there have been very few prosecutions in the twentieth century, Green suggested that the offence still existed. But had it become a dead letter? That is what Lord Denning stated in 1949.34 The House of Lords Select Committee considered that ‘any prosecution for blasphemy today … is likely to fail on grounds either of discrimination or denial of the right to freedom of expression’,35 which also suggests that it was 29 30

31 32 33 34

35

See also Hill and Sandberg in this volume. See R. (on the application of Stephen Green) v. the City of Westminster Magistrate’s Court [2007] EWHC 2785. See on this case also Hill and Sandberg in this volume. Ibid., para. 8. Ibid., paras 10 and 11. Ibid., para. 17. Lord Alfred Denning, Freedom under Law – Hamlyn Lecture (London:  Stevens & Co, 1949), 46. House of Lords Select Committee, 48, para. 10.

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601

Freedom of Expression, Blasphemy & Religious Hatred 601

a dead letter. On the other hand, Sandberg and Doe write that ‘the Gay News case showed that the blasphemy laws remained very much alive’36 and that Green suggests that the offence ‘lay dormant rather than dead’.37 Garcia Oliva, in a case comment on Green, writes that ‘the requirements of the offence are so unlikely to be met that its abolition seems to be the most reasonable way forward’.38 So what led to the abolition of the offence in 2008?

23.3

Background to Abolition

Section 79 of the Criminal Justice and Immigration Act 2008 abolished the offences of blasphemy and blasphemous libel for England and Wales. In Scotland and Northern Ireland, the offences still exist. In a report in 1985, the majority of the Law Commission recommended that the offence of blasphemy should be abolished without replacement,39 while the minority favoured abolition but with replacement by a new, statutory offence.40 The reasons given for abolishment were that the common law on blasphemy was uncertain to an unacceptable degree because of the lack of clear definition of the offence; that it was undesirable to have a criminal offence of strict liability, where intent to publish but no intent to blaspheme was needed; and, ‘in the circumstances prevailing now in England and Wales, the limitation of the offence to the protection of Christianity and, it would seem, the tenets of the Church of England, cannot be justified’.41 In 1995, a Blasphemy Abolition Bill, proposed by Lord Avebury, was debated in the House of Lords, but this bill never became law.42 In 2001, the then Home Secretary, David Blunkett, told the House of Commons, during the debates on the Anti-Terrorism, Crime and Security Bill, that the government’s position was that ‘there is a good case for revising and,

36

37 38

39 40 41 42

Sandberg and Doe, ‘The strange death of blasphemy’, 974. See also Hill and Sandberg in this volume. Sandberg and Doe, ‘The strange death of blasphemy’, 983. Javier Garcia Oliva, ‘Blasphemy and “Jerry Springer: The Opera” – R. (on the application of Green) v. City of Westminster Magistrates’ Court [2007] EWHC 2785 (Admin)’ (2008) 13:2 Communications Law 57. Law Commission, Offences against religion and public worship, para. 4.1. Ibid., note of dissent, para. 1.1. Ibid., para. 2.18. See http://hansard.millbanksystems.com/lords/1995/jan/10/blasphemy-abolition-bill-hl and http://hansard.millbanksystems.com/lords/1995/feb/22/blasphemy-abolition-bill-hl.

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indeed, removing existing blasphemy law’ and that ‘there is no question of extending the blasphemy law to all other denominations and faiths’.43 The fact that blasphemy laws only covered the Church of England and Christian denominations was criticised severely at the time, and the proposed Anti-terrorism, Crime and Security Bill created an offence of religious hatred, but that part of the act was not adopted. In 2002, the Religious Offences Bill aimed to ‘abolish the common law offence of blasphemy and certain other offences; and to create an offence of religious hatred’, as the bill set out, but again, this bill was not adopted.44 The earlier-mentioned report of the House of Lords Select Committee on Religious Offences did not make any concrete recommendations about abolition and/or replacement, but the debates about this report in the House of Lords show that opinions as to whether the offence should be abolished were divided.45 Finally, during the passage of the Racial and Religious Hatred Bill, abolition was again debated, but this was voted down by the House of Lords.46 So abolition of the offence of blasphemy has been debated on a number of occasions, but this did not lead to actual abolition until 2008.

23.4

Developments Contributing to Abolition

Sandberg and Doe distinguish five important developments that influenced the eventual abolition of the offences by the Criminal Justice and Immigration Act 2008:  the decision of the Supreme Court of Ireland that a prosecution for blasphemy could not succeed there; the work of the House of Lords Select Committee on Religious Offences in England and Wales; the enactment of the Racial and Religious Hatred Act 2006; the Green case; and the Parliamentary history leading to abolition of the offence.47 As these five developments clearly illustrate the forces behind abolition, they will be discussed here.

43

44

45 46

47

David Blunkett, HC Deb Column 707–708, 26 November 2001, available at www .publications.parliament.uk/ pa/ cm200102/ cmhansrd/ vo011126/ debtext/ 1112617.htm#11126-17_spnew5. For the bill, see: www.publications.parliament.uk/pa/ cm200102/cmbills/049/2002049.pdf. Bill available at www.parliament.the-stationery-office.co.uk/pa/ld200102/ldbills/039/ 2002039.pdf. See http://hansard.millbanksystems.com/lords/2004/apr/22/religious-offences. HL Deb Column 523, 528, 532–533, 535, 8 November 2005, available at www.publications .parliament.uk/pa/ld200506/ldhansrd/vo051108/text/51108-08.htm. Sandberg and Doe, ‘The strange death of blasphemy’, 976.

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Freedom of Expression, Blasphemy & Religious Hatred 603

23.4.1

Corway v. Independent Newspapers (Ireland) Ltd.

The first development was a decision of the Irish Supreme Court about the publication in a national newspaper of a cartoon concerning the influence of the Catholic Church in Ireland. According to the applicant, this cartoon treated the sacrament of the Eucharist and its administration as objects of scorn and derision.48 The Supreme Court held that a prosecution for blasphemy could not succeed in Ireland because, firstly, it was questionable whether Article 40 of the Irish Constitution, which determines that ‘the publication or utterance of blasphemous … matter is an offence which shall be punishable in accordance with law’, was compatible with the freedom of religion also guaranteed by the Constitution.49 Secondly, in English law the offence of blasphemy only protected the established Church, the Church of England, but the Church of Ireland had been disestablished in 1869, and thus the common-law offence could not survive in such a different constitutional framework.50 The third reason was legal uncertainty: there was no definition of the offence.51 Sandberg and Doe question all three arguments.52 According to them, the first and third arguments contradict the case law of the European Court of Human Rights that blasphemy laws do not breach Article 9 ECHR or the legal certainty requirements of Article 7 ECHR. However, this ignores the fact that the Irish Supreme Court found that the offence was not compatible with the Irish Constitutional guarantee of freedom of religion. This guarantee might be interpreted differently from Article 9 ECHR. The second reason seems to Sandberg and Doe to be incorrect in law, because blasphemy protects not only the Church of England but also other Christian religions, and the disestablishment of the Church of Ireland is thus as irrelevant as the disestablishment of the Church of Wales (in 1914).53 However, it was already mentioned that Hill and Sandberg write that the case law was not clear as to whether the offence of blasphemy protected other Christian denominations.54 Opinions about the compatibility of the laws of blasphemy with the ECHR are divided. Hare, for example, writes that the uncertainty and 48 49 50 51 52 53 54

Corway v. Independent Newspapers (Ireland) Ltd [1999] 4 IR 485. Ibid., para. 35. Ibid. Ibid., para. 38. Sandberg and Doe, ‘The strange death of blasphemy’, 977–78. Ibid. See chapter by Hill and Sandberg in this volume.

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the breadth of the offence pose a serious threat to free speech.55 Goodall writes that, although the matter is not settled, the English law on blasphemy seems to be incompatible with the ECHR.56 And Lester also appears to have understood the decision of the Irish Supreme Court in a very different way, as he writes, ‘I believe that, if a suitable case were now to come before the courts, the UK Law Lords would overrule previous case law upholding the offence of blasphemy [referring to the Gay News case] and would find persuasive the Irish Supreme Court’s decision holding that blasphemous libel is so lacking in legal certainty that it is no longer an enforceable criminal offence’.57 So opinions are divided as to the compatibility of the English law of blasphemy with the ECHR, and such laws certainly raise issues about freedom of religion and freedom of expression. We will come back to this in the next sections (see all sections that follow).

23.4.2

House of Lords Select Committee on Religious Offences in England and Wales

As mentioned, the 2003 report of the House of Lords Select Committee considered that ‘any prosecution for blasphemy today . . . is likely to fail on grounds either of discrimination or denial of the right to freedom of expression’.58 The Select Committee argued that the decision of the European Court of Human Rights in Wingrove v. the United Kingdom ‘that there was not yet “sufficient common accord” to mean that the English law of blasphemy was in breach of the European Convention does not mean that it will not rule otherwise in the future’.59 Sandberg and Doe point out that this contention would, if taken to its logical conclusion, call into question every decision by the European Court of Human Rights, although they do admit that the Convention is a living instrument and that its interpretation can change over time.60 55

56

57

58 59 60

Ivan Hare, ‘Blasphemy and incitement to religious hatred: Free speech dogma and doctrine’, in Ivan Hare and James Weinstein (eds.), Extreme Speech and Democracy (Oxford: Oxford University Press, 2009), 302. Kay Goodall, ‘Incitement to religious hatred:  All talk and no substance?’ (2007) 70:1 Modern Law Review (2007) 105 and 107. Anthony Lester, Free Speech and Religion – the Eternal Conflict in the Age of Selective Modernization, 12 May 2006, available at www.odysseustrust.org/lectures/274_ Hungarytalk.pdf, 14–15. House of Lords Select Committee, 48, para. 10. Ibid., para. 12. Sandberg and Doe, ‘The strange death of blasphemy’, 979.

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Freedom of Expression, Blasphemy & Religious Hatred 605

However, authors ignore the fact that the Wingrove v. the United Kingdom decision of the European Court of Human Rights was taken in 1997, now twenty years ago, and that the decision that the law of blasphemy is compatible with the ECHR does not mean that signatory states must have such laws nor that such laws are always compatible with the ECHR. Both the right to freedom of religion and the right to freedom of expression can be restricted when this is justified. To establish this, a balancing exercise takes place taking into account all the interests involved. This exercise is case specific, so the European Court of Human Rights might come to a different conclusion in future cases. Moreover, the Parliamentary Assembly of the Council of Europe has stated that ‘blasphemy laws should not be used to curtail freedom of expression and thought’ and that ‘freedom of expression as protected under Article 10 of the European Convention on Human Rights should not be further restricted to meet increasing sensitivities of certain religious groups’.61 The Assembly has also considered that blasphemy should not be a criminal offence;62 that blasphemy laws should be reviewed ‘in view of the greater diversity of religious beliefs in Europe and the democratic principle of the separation of state and religion’;63 and that ‘national law should only penalise expressions about religious matters which intentionally and severely disturb public order and call for public violence’.64 All this suggests that, even within the Council of Europe, blasphemy laws are seen as raising serious issues in relation to freedom of religion and freedom of expression. The House of Lords Select Committee also stated that there are other problems with the common-law offences:  the disproportionality of an unlimited penalty, discrimination in favour of Christianity alone and the fact that there is no mechanism to take account of the proper balance to be struck under Article 10 ECHR.65 Sandberg and Doe again criticise this as being contrary to case law from the European Court of Human Rights and from the English domestic courts.66 However, the Select Committee itself points out that there is a difference between the domestic courts 61

62

63 64 65 66

Parliamentary Assembly, Council of Europe, Resolution 1510 (2006) Freedom of expression and respect for religious beliefs, paras 3 and 12. Parliamentary Assembly, Council of Europe, Recommendation 1805 (2007) Blasphemy, religious insults and hate speech against persons on grounds of their religion, para. 4. Ibid., para. 10. Ibid., para. 15. House of Lords Select Committee, 49, para. 15. Sandberg and Doe, ‘The strange death of blasphemy’, 979.

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and the European Court of Human Rights in applying the ECHR because the domestic court cannot rely on the margin of appreciation.67 And, as pointed out earlier, opinions are divided about whether blasphemy offences are compatible with the ECHR.

23.4.3

Racial and Religious Hatred Act 2006

The third development which played a role on the road to the abolition of the blasphemy offence was the enactment of the Racial and Religious Hatred Act 2006. This is discussed in the part on alternative offences (see Section 23.5).

23.4.4 Jerry Springer: The Opera The fourth development on the road to abolition of the offence of blasphemy is the High Court decision in Green concerning Jerry Springer: The Opera, discussed before, which made clear that the offence still existed and did not breach the ECHR.68 Sandberg and Doe argue that this undermines the reasoning of the Irish Supreme Court, the House of Lords Select Committee and the debates in the House of Lords that blasphemy laws would not be compatible with the ECHR.69 However, as mentioned, there are also writers who do not agree that the blasphemy laws are compatible with the ECHR. Moreover, the fact that the compatibility with the rights to freedom of religion and freedom of expression was discussed by the Irish Supreme Court and in the debates in the House of Lords also shows that there were a number of people who questioned this compatibility and that opinions were very much divided on this issue. A more cogent rationale for abolishing the offence was, according to Sandberg and Doe, provided in the Green case:  Section 2(4) of the Theatres Act 1968 prevented prosecution. This section determines that no person shall be proceeded against in respect of a performance of a play or anything said or done in the course of such a performance (a) for an offence at common law where it is of the essence of the offence that the

67 68

69

House of Lords Select Committee, 49, para. 15. R. (on the application of Stephen Green) v. the City of Westminster Magistrate’s Court [2007] EWHC 2785. Sandberg and Doe, ‘The strange death of blasphemy’, 981. Leigh makes the same point, see: Leigh, ‘Damned if they do, damned if they don’t’, 58–9.

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607

Freedom of Expression, Blasphemy & Religious Hatred 607 performance or, as the case may be, what was said or done was obscene, indecent, offensive, disgusting or injurious to morality. . . .

The High Court held that this section was applicable to the offence of blasphemy. And, although the Theatres Act 1968 does not apply to broadcasts, there are identical provisions in the Broadcasting Act 1990, as Sandberg and Doe point out.70 These authors express their surprise that the impact of the Theatres Act 1968 was previously ignored in the debate.71 In contrast to this, Hare writes that the outcome of the Green case ‘is even more surprising when the provisions of the Theatres Act and the Broadcasting Act are examined in context’.72 He argues that both acts prohibit the performance of obscene plays and incorporate the test of a tendency to ‘deprave and corrupt’ from the Obscene Publications Act 1959 and that, looking at the legislative history, no mention was made of blasphemy. The provisions, on which the Court in Green relied, thus relate to the common law of obscenity and were not meant to have an impact on the law of blasphemy.73 Hare also finds it disappointing that the Court did not address the compatibility of the offence of blasphemy with the protection of free speech.74 So here, again, an author expresses that the blasphemy laws could very well be incompatible with the ECHR. Hare also writes that ‘the decision in Green is even more striking when one considers that the result of the decision cannot sensibly be confined to theatre and television’.75 He argues that, under both domestic and European Court of Human Rights case law, the state can subject broadcasting to more rigorous restrictions than printed matter and, thus, if the state has found that restrictions on blasphemy are not necessary for broadcasting, it will be even more difficult to argue that they are necessary for the printed word. And, as Hare concludes, the Green case is ‘likely to have swept away the law of blasphemy in all areas except for face-toface utterances between individuals. The Divisional Court [High Court] had thus almost fully achieved what the House of Lords said in Lemon [Gay News] was not possible by judicial decision’.76

70 71 72 73 74 75 76

Sandberg and Doe, ‘The strange death of blasphemy’, 982. Ibid. Hare, ‘Blasphemy and incitement to religious hatred: free speech dogma and doctrine’, 298. Ibid., 298–9. Ibid., 299. Ibid. Ibid.

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23.4.5 Abolition of Blasphemy The response to Green was legislative action. The Parliamentary history of Article 79(1) of the Criminal Justice and Immigration Act 2008 is the fifth development which influenced the abolition of blasphemy. In January 2008, Dr Evan Harris moved a new clause to the Criminal Justice and Immigration Bill to abolish ‘the ancient discriminatory, unnecessary, illiberal and non-human rights compliant offences of blasphemy and blasphemous libel’.77 The offences were unnecessary, firstly, because there were enough laws dealing with public decency and public-order offences to ensure that the abolition of the offences would not lead to widespread outrageous behaviour in public; and, secondly, ‘the Almighty does not need the protection of these ridiculous laws, which is why many people with a religious perspective share the view that these offences should be abolished’.78 Harris explained that the offence is illiberal because of its uncertain scope and because it is a strict liability offence, so it is no defence that one did not intend to blaspheme. Because of this, one cannot know when one is committing the offence.79 Furthermore, the penalty for the offence is unlimited and the offence is discriminatory because it only protects the Christian religion and the tenets of the Church of England. Because of this, the offence is incompatible with the ECHR and with British law, now it incorporates the Convention, according to Harris.80 Later on in the debate, Harris pointed out that the offence is also divisive in terms of social cohesion, partly because it is discriminatory. The corollary of that is that it raises a sense of unfairness among other religions, particularly those whose adherents are more sensitive than adherents to the Christian faith – a sense that they are being singled out because they are not protected. It raises the expectation, which previous Governments may have sought to keep going, that they will be entitled to their own – Islamic, say – version of a blasphemy law. The best way in which to make clear to the communities and people of this nation that we do not expect there to be protection of beliefs, or indeed of people’s sensibilities about their beliefs, is to abolish the existing blasphemy offences, and that is one of the strongest arguments for so doing.81

77

78 79 80 81

HC Deb Column 442, 8 January 2008, available at www.publications.parliament.uk/pa/ cm200708/cmhansrd/cm080109/debtext/80109-0026.htm. Ibid., Column 443. Ibid. Ibid. Ibid., Column 444.

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Harris mentioned two more reasons for abolishing the offences: that the law on blasphemy has a ‘chilling effect’ because it could mean that people might avoid showing, publishing or printing material that might be blasphemous because they might be subject to criminal sanctions.82 The final reason for proposing abolition was ‘its impact on our ability to conduct our affairs in terms of international human rights and international relations, and to criticise other countries’ uses of their blasphemy laws’.83 The government agreed that it was time for Parliament to act because the offences had largely fallen into desuetude and appeared to be moribund.84 However, they found it necessary to consult the Anglican Church and assured that this would be done quickly and that then the government would bring forward proposals to abolish the blasphemy offences. Harris then withdrew his proposal.85 On 5 March 2008, an amendment to the Criminal Justice and Immigration Bill abolishing blasphemy was moved by the government in the House of Lords. A number of reasons were given: ‘first, the law has fallen into disuse and therefore runs the risk of bringing the law as a whole into disrepute. Secondly, we now have new legislation to protect individuals on the grounds of religion and belief ’.86 Third, ‘it is crystal clear that the offences of blasphemy and blasphemous libel are unworkable in today’s society because they do not protect the individual or groups of people, they do not protect our fundamental rights – indeed, they may conflict with them – and they do not protect the sacred’.87 And the fourth reason echoed what was said by Harris, that the UK could not challenge oppressive blasphemy laws in other countries as long as the law remained on the statute book.88 The Joint Committee on Human Rights reported on the bill and came to the conclusion that continuing to have offences of blasphemy and blasphemous libel could no longer be justified. The Committee also said that it was confident that the English Courts under the Human Rights Act and the European Court of Human Rights under the ECHR would come to the same conclusion.89 The amendment was passed by 148 votes 82 83 84 85 86

87 88 89

Ibid., Column 445. Ibid., Column 448. Ibid., Column 453. Ibid., Column 454. HL Deb Column 1118, 5 March 2008, available at www.publications.parliament.uk/pa/ ld200708/ldhansrd/text/80305-0005.htm. Ibid., Column 1119. Ibid., Column 1121. Ibid., Column 1120.

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to 87 in the House of Lords90 and then by 378 votes to 57 in the House of Commons.91 The act came into force on 8 July 2008.

23.5 Alternative Offences As mentioned, one of the reasons given by the government to abolish the blasphemy offences was that there was new legislation to protect individuals on the grounds of religion and belief. They were referring to the protection against discrimination and harassment on the ground of religion or belief under the Employment Equality (Religion and Belief) Regulations 200392 and to the Racial and Religious Hatred Act 2006, which, as its Section 1 says, ‘creates offences involving stirring up hatred against persons on religious grounds’. The regulations did not create any criminal offences. The Racial and Religious Hatred Act 2006 added a new part 3A to the Public Order Act 1986. This part has the title ‘Hatred against persons on religious grounds’ and contains Sections 29A to 29N. The definition of ‘religious hatred’ can be found in Section 29A:  ‘hatred against a group of persons defined by reference to religious belief or lack of religious belief ’. In the House of Lords debates on the proposal for abolition of the blasphemy offences, it was pointed out that, contrary to the offences of blasphemy and blasphemous libel, which do not protect individuals or groups from harm, the offence of incitement to religious hatred does provide this protection.93 Moreover, whereas blasphemy only protects Christianity and the Church of England, those of other faiths and those of no faith are both protected by the new incitement provisions, and ‘this legislation recognises a more complex and diverse society, which respects those of faith and those of none’.94 Part 3 of the Public Order Act 1986 already contained offences against stirring up racial hatred. Two previous bills, the Anti-Terrorism, Crime and Security Bill in 200195 and the Serious Organised Crime and Police 90 91 92

93

94 95

Ibid., Column 1147. See Sandberg and Doe, ‘The strange death of blasphemy’, 984. HL Deb Column 1147, 5 March 2008, available at www.publications.parliament.uk/pa/ ld200708/ldhansrd/text/80305-0009.htm. HL Deb Column 1120, 5 March 2008, available at www.publications.parliament.uk/pa/ ld200708/ldhansrd/text/80305-0005.htm. Ibid. For the bill, see www.publications.parliament.uk/pa/cm200102/cmbills/049/2002049.pdf. The proposed changes can be found in Part 5.

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Bill in 2004–2005,96 had attempted to extend the existing offence of racial hatred to include religious hatred, but neither of these attempts became law. According to paragraph 5 of the Explanatory Notes to the Racial and Religious Hatred Act 2006, ‘this Act takes a different approach in that it creates a new part to the 1986 Act rather than extending the existing offence in Part 4 of the Act’. Paragraph 4 of the Explanatory Notes to the act explains that: The new offences apply to the use of words or behaviour or display of written material (new section 29B), publishing or distributing written material (new section 29C), the public performance of a play (new section 29D), distributing, showing or playing a recording (new section 29E), broadcasting or including a programme in a programme service (new section 29F) and the possession of written materials or recordings with a view to display, publication, distribution or inclusion in a programme service (new section 29G). For each offence the words, behaviour, written material, recordings or programmes must be threatening and intended to stir up religious hatred.

This shows the three requirements for the offence:  an act directed at a group; words, behaviour, material or images which are threatening; and an intention to stir up religious hatred.97 The final version of the act was substantially different to the one that was originally proposed, mainly through a number of changes made in the House of Lords. The original proposal would have just added the offence of stirring up religious hatred to the existing offence of stirring up racial hatred.98 One of the main arguments brought forward by supporters of the introduction of religious hatred provisions was that Jews and Sikhs were covered by the prohibition of racial hatred, but Muslims, Hindus, Christians or those without a religion were not.99 The first change made by the House of Lords to the proposal was that the new offence of incitement to religious hatred got its own legislative provision rather than just being added to the existing offence of

96 97

98 99

Ibid. The proposed changes can be found in Section 119. Anthony Jeremy, ‘Practical implications of the enactment of the Racial and Religious Hatred Act 2006’ (2007) 9:2 Ecclesiastical Law Journal 188. Lester, Free Speech and Religion, 9. This was based on the fact that Jews and Sikhs had been held to be ethnic groups which qualified for the protection of the Race Relations Act 1976. See Memorandum to the Home Affairs Committee, Post-legislative scrutiny of the Racial and Religious Hatred Act 2006, CM 8164, 2011, para. 12. See also Garcia Oliva, ‘The legal protection of believers and beliefs in the United Kingdom’, 78.

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incitement to racial hatred. The reason given was that opponents of the bill in both Houses of Parliament disagreed with giving religious groups the same level of protection as racial groups because ‘a person’s religion is a matter of personal choice and could therefore be subject to criticism’.100 The wording of the offence of incitement to religious hatred was also changed. In the original proposal, the offence included words which were ‘abusive, insulting or threatening’, but ‘abusive’ and ‘insulting’ were dropped during the bill’s passage through the House of Lords, and now the wording needs to be ‘threatening’.101 This means that ‘the Act now focuses more narrowly on words, behaviour or material that import threats of violence or the fear of violence’.102 Another change between the original proposal and the final enacted statute is that, in the final version, evidence of intention to stir up religious hatred is required and that it is not enough to show that the publication was likely to stir up such hatred. For the racial hatred offence, the publication must intent to stir up hatred or, alternatively, must be likely to do so.103 The Post-legislative Scrutiny of the Act reports that the Crown Prosecution Service is of the view ‘that it is very difficult to prove a specific intent where the action(s) or speech may be ambiguous, or an isolated incident’.104 But perhaps the most far-reaching change made by the House of Lords was the addition of a so-called free speech clause. As Goodall writes, ‘the most vociferous attacks on the bill concerned freedom of expression’,105 and the addition of this clause was a response to that criticism. Article 29J of the Racial and Religious Hatred Act 2006, under the heading ‘Protection of freedom of expression’, reads,

100

101

102

103

104

105

Memorandum to the Home Affairs Committee, 2011, para. 15. See on this distinction also Goodall, ‘Incitement to religious hatred: All talk and no substance?’ 97; Ivan Hare, ‘Crosses, crescents and sacred cows: Criminalising incitement to religious hatred’ (2006) Public Law 534; and Lester, Free Speech and Religion, 11. See Hare, ‘Blasphemy and incitement to religious hatred: Free speech dogma and doctrine’, 296; and, Barendt, ‘Religious hatred laws: protecting groups or belief?’ (2011) 17:1 Res Publica 42. Jeremy, ‘Practical implications of the enactment of the Racial and Religious Hatred Act 2006’, 189. Barendt, ‘Religious hatred laws: protecting groups or belief?’ 42. See also Memorandum to the Home Affairs Committee, 2011, para. 17. Memorandum to the Home Affairs Committee, 2011, para. 18. See on the problems with proving intention also Goodall, ‘Incitement to religious hatred: All talk and no substance?’ 111–113. Goodall, ‘Incitement to religious hatred: all talk and no substance?’ 105.

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Freedom of Expression, Blasphemy & Religious Hatred 613 Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

Jeremy writes that Section 29J ‘expressly permits antipathy, dislike, ridicule, insult or abuse of a particular religion or belief system (or lack of religion or belief) and of practices of those who hold such beliefs’.106 In the debates in the House of Lords on the Racial and Religious Hatred Bill, the question was asked: what are the guarantees against the encroachment not only of religious thought police but also of self-censorship, which is perhaps the greatest expression of free expression in a liberal democracy? We have to face the fact that if we make it a criminal offence to stir up hatred against a group of people, then we create a climate within which people will think twice about even criticising it. In turn, people will surely run shy of saying anything that might stir up hatred of the ideology or religion itself and also develop a fear of being critical of it, satirising it or even poking the slightest fun at it.107

In the same debates, Lord Lester, who drafted the freedom of expression clause, recalled that Rowan Atkinson108 had pointed out that the bill ‘promotes the idea that there should be a right not to be offended when the right to offend is far more important’.109 Lord Lester pointed out that the bill, because of its overbreadth and vagueness, threatened to chill free expression and that the proposed changes introduced safeguards ‘to prevent the new offences from sweeping too broadly and to deal with the chilling of free expression’.110 Lord Lester came back to this later on when he mentioned ‘the chilling effects that such broad and vague offences would have on freedom of speech, discussion, debate and the free flow of opinions and information in whatever form’.111 So the chilling effect of

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108

109 110 111

Jeremy, ‘Practical implications of the enactment of the Racial and Religious Hatred Act 2006’, 191. HL Deb, Column 1072–1073, 25 October 2005, available at www.publications.parliament .uk/pa/ld200506/ldhansrd/vo051025/text/51025-04.htm#51025-04_head2. A comedian and actor who was one of the most vociferous opponents of the bill because it stifled freedom of expression. HL Deb, Column 1074, 25 October 2005. Ibid., Column 1075. Ibid., Column 1077.

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the bill on free speech was stressed again and again during the debates in the House of Lords. The amendments were approved by the House of Commons by a majority of one and thus became part of the act. Lord Lester states that because of the amendments he drafted, ‘the Act strikes a sound balance between the interests of free speech and the need to protect religious groups from hatred and persecution’.112 Many authors have pointed out that the four amendments to the original bill have made it very difficult to prove the requirements for the offence and thus to secure a conviction under the act. Both Barendt and Hare, for example, point out that, in practice, it may be impossible to bring prosecutions and that the act might have only political effect.113 Barendt calls the act ‘an attempt by the Labour Government to placate the Muslim community, which, unlike Jews and Sikhs, is not protected by the racial hatred offence and which as a result felt itself treated less favourably than adherents of other religious faiths’,114 while Hare calls the new law ‘a cynical sop to a vocal minority population who felt themselves to have been disproportionately the victim of recent Government initiatives on terrorism’.115 Sandberg also calls the law ‘little more than political posturing; a simple statement that religious hatred is wrong’.116 Finally, Jeremy puts this in a more positive way as he writes that the difficulties in proving the offence may suggest that the act is essentially symbolic but that the legislation serves an important purpose in supporting groups in society who are afraid for their safety, and by condemning bias, prejudice and hatred, the act sends a signal to potential offenders that such conduct will be punished severely.117 So it is the declaratory or symbolic value of the act, the fact that the act makes a statement that religious hatred is wrong, which appears to be its most important value. That the offence is indeed difficult to prosecute is confirmed by the Post-legislative Scrutiny which states that, if the success of the Racial and

112 113

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115 116 117

Lester, Free Speech and Religion, 8. Barendt, ‘Religious hatred laws: protecting groups or belief?’ 43; and Hare, ‘Blasphemy and incitement to religious hatred: Free speech dogma and doctrine’, 310. Barendt, ‘Religious hatred laws:  Protecting groups or belief?’ 43. He points out that at the time of enactment of the Racial and Religious Hatred Act 2006, Christians, or at least members of the Church of England, were protected against intemperate attacks on their faiths through the offence of blasphemy. Hare, ‘Blasphemy and incitement to religious hatred: Free speech dogma and doctrine’, 310. Russell Sandberg, Law and Religion (Cambridge: Cambridge University Press, 2011) 144. Jeremy, ‘Practical implications of the enactment of the Racial and Religious Hatred Act 2006’, 200.

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Religious Hatred Act 2006 was to be judged by the number of convictions it secured, then the act ‘has not been a successful piece of legislation’. It reports that There has been one successful conviction under the legislation, with a person convicted of an offence in relation to stirring up hatred against persons on religious grounds under Section 1 of the Act. Two other people have been arrested and charged with offences under the legislation, a prosecution was brought against the person in one case and they were acquitted of all charges at trial, and the charges were dropped against the person in the second case due to a technicality – however the investigation on this case remains ongoing.118

So there are difficulties in proving the new offence of incitement to religious hatred, and there have been very few (successful) prosecutions to date. But how does this offence differ from the offence of blasphemy?

23.6 Blasphemy and Incitement to Religious Hatred Offences Compared We have mentioned a number of issues that have been raised in relation to the offence of blasphemy. The first issue was that the offence was seen as discriminatory, as it only covered the Church of England and other Christian religions. This was seen especially as a problem for Muslims. Sikhs and Jews were considered to be ethnic groups and thus covered by the protection against racial hatred, but Muslims were not. The offence of religious hatred has dealt with this problem, as it covers all religions and also those without a religion. As was said in the debates in the House of Lords, ‘this legislation recognises a more complex and diverse society, which respects those of faith and those of none’.119

118

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Memorandum to the Home Affairs Committee, 2011, para. 13. More information on this is given in paras 23 and 24, but the cases are not mentioned. For some cases after this memorandum, see www.cps.gov.uk/publications/prosecution/cases_of_inciting_racial_ and_religious_hatred_and_hatred_based_upon_sexual_orientation.html. Here two cases are mentioned: Bilal Ahmad (R v. Ahmad(Bilal Zaheer) [2012] EWCA Crim 959) and the case of Satinderbir Singh, Harjinder Singh Athwal, Damanpreet Singh, Parwinder Banning and Mehul Lodia, who were convicted at Leicester Crown Court on 6 February 2015; see on this latter case www.itv.com/news/central/update/2015-02-06/six-menjailed-for-part-in-hate-campaign/. HL Deb Column 1120, 5 March 2008, available at www.publications.parliament.uk/pa/ ld200708/ldhansrd/text/80305-0005.htm.

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The second issue raised against the offence of blasphemy was that it was not clearly defined (as it was an offence established through case law rather than defined by statute) and that it was too broad and vague. It was also a strict liability offence in that it only required intent to publish not intent to blaspheme. Both were said to violate Article 7 of the ECHR. This has changed, as the offence of incitement to religious hatred has been defined in law and requires proof of intent to stir up religious hatred. The third major contention against the offence of blasphemy was that it was a violation of the rights to freedom of religion and expression. And although the European Court of Human Rights has held that the English blasphemy laws were compatible with the Convention, this was an issue that came back again and again in the debates and in the literature and even featured in the Parliamentary Assembly of the Council of Europe. The new law on incitement to religious hatred now contains a freedomof-speech clause to deal with this issue of compatibility. The clause protects ‘freedom of expressions on religious matters, including vigorous criticism or abuse of particular religions, their dogma, and practices’.120 All this suggests that the offence of incitement to religious hatred would stand the test of compatibility with the ECHR better and that it would not be held to violate the ECHR by the European Court of Human Rights.

23.7 Concluding Remarks This chapter has described the law and case law on blasphemy as it existed until 2008. The developments leading to the abolition of blasphemy in 2008 and the debates in both Houses of Parliament have been analysed. Apart from the fact that it had become a ‘dead letter’ or dormant law because it was seldom used in the twentieth century, the major objections against the law on blasphemy were that it only protected the Christian religion; that the definition of the offence was unclear and that there was no requirement of intent to blaspheme, both of which made it difficult for people to know when they would break the law, and this created legal uncertainty about a criminal law offence; and that it was questionable whether the law was compatible with international human rights law, especially with Articles 7, 9, 10 and 14 of the ECHR. All of these issues appear to have been addressed and remedied by the Racial and Religious Hatred Act 2006, which created the offence of incitement to

120

Barendt, ‘Religious hatred laws: Protecting groups or belief?’ 43.

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religious hatred. This act and the important changes made to the original bill by the House of Lords have been analysed, and the conclusion was that the offence, although it deals with the issues raised against the laws on blasphemy and would most likely not be held to be incompatible with international human rights law, has created an offence which is extremely difficult to prosecute and might only have symbolic and political significance. As in other countries, the Charlie Hebdo attack in Paris in January 2015 sparked a lot of discussions about freedom of speech in the UK,121 but this does not appear to have led to calls for reintroducing the law of blasphemy. However, just days after the attack, the former Archbishop of Canterbury, Lord Carey, warned that Britain’s fear of criticising Islam has led to a self-imposed blasphemy law. He said that ‘a de facto blasphemy law is operating in Britain today. The fact is that publishers and newspapers live in fear of criticising Islam’.122 He added that the press should be encouraged to print controversial material, even if Muslims find it offensive. He also said that blasphemy laws were ‘unjust and outdated’.123 In November 2015, Labour MP Keith Vaz, speaking at a Muslim Council of Britain event on responses to terrorism and extremism, said that he had no problem with blasphemy laws being reintroduced in Britain, as long as they would apply equally to everyone. He actually stopped short of saying that such a law would be a good idea.124 It is submitted that the abolition of the blasphemy laws was a positive step and that the Racial and Religious Hatred Act 2006 has dealt with some of the issues raised about those laws. However, Lord Carey does

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123 124

See, for example, www.theguardian.com/commentisfree/2015/jan/10/charlie-hebdo-attackfree- speech- surveillance; and www.telegraph.co.uk/ news/ worldnews/ europe/ france/ 11331572/A-terrible-price-for-freedom-of-speech.html. See ‘Fear of Islam has given Britain self-imposed blasphemy laws, warns former archbishop Carey’, Mail Online, 11 January 2015, available at www.dailymail.co.uk/news/ article- 2905283/ Fear- criticising- Islam- given- Britain- self- imposed- blasphemy- lawwarns-former-archbishop-Carey.html. Ibid. See National Secular Society, Labour MP Keith Vaz would have ‘no problem’ with reintroduction of UK blasphemy laws, available at www.secularism.org.uk/news/2015/11/ labour-mp-keith-vaz-would-have-no-problem-with-reintroduction-uk-blasphemy-laws; Bring back blasphemy laws, apply them equally to all faiths – Labour MP, available at www .rt.com/uk/322319-blasphemy-laws-freedom-expression/; and Audio: What Keith Vaz Actually said about UK blasphemy law, available at http://english.alarabiya.net/en/blog/ 2015/11/18/Audio-What-Keith-Vaz-actually-said-about-UK-blasphemy-law.html.

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raise an important point about the fear of criticising Islam. This echoes the fears during the debates about both blasphemy and the Racial and Religious Hatred Act 2006 about the chilling effect of such laws and about stifling criticism. Sandberg and Doe mention that during the period in the twentieth century when there were no prosecutions for blasphemy, it was ‘policed extra-legally; it was curtailed by the fears, anxieties and sensitivities of individuals rather than by law’.125 Goodall points to the fact that the Racial and Religious Hatred Act 2006 aims to deter.126 The Postlegislative Scrutiny points out that the lack of prosecutions could be due to the preventative aspect of the law, which means that it is conceivable that the number of offences is limited because people moderate their language and behaviour to avoid prosecution.127 But there is a fine line between convincing people to moderate their language and behaviour and restricting or stifling discussion and criticism of religions, their dogma and the practices of their adherents. Opinion will always be divided as to where this line should be drawn. Therefore, it is submitted that restrictions on the freedom of expression, be it through blasphemy or incitementto-religious-hatred laws, should always be rigorously scrutinised by the domestic courts and by the European Court of Human Rights.

125

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Sandberg and Doe, ‘The strange death of blasphemy’, 974. See also the chapter by Hill and Sandberg in this volume. Goodall, ‘Incitement to religious hatred: All talk and no substance?’ 108. Memorandum to the Home Affairs Committee, para. 25.

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24 The Rise and Fall of the Offence of Blasphemy in the Netherlands Esther Janssen

24.1

Introduction

On 1 March 2014, after existing more than eighty years, the offence of blasphemy was abolished in the Netherlands. Preserved due to the continued support of the confessional political parties, the offence – often the subject of political controversy – ceased to meet the present-day standards of freedom of expression and religion, equality and state neutrality. This chapter recounts the rise and fall of this former ‘sacred cow’ in Dutch law and evaluates it. The offence of blasphemy was created in the early 1930s in order to counter an upswing of anti-religious propaganda from the Communist side (Section 24.2). Given the problems involved in the legal protection of God, the legislator chose a particular wording for the offence. In the famous Donkey trial of 1968 the Dutch Supreme Court, however, set such a high standard for its application that the offence led a dormant existence ever since (Section 24.3). After the murder of filmmaker Theo van Gogh in 2004, several plans were made to amend the provision, as well as the law on hate speech, and to use them in order to channel the excesses of the public debate concerning Islam so as to prevent further Muslim radicalisation (Section 24.4). These plans were soon obstructed by the Defamation of Islam decision of the Dutch Supreme Court in 2009 (Section 24.5) that has also been of considerable influence on the acquittal of politician Geert Wilders for his anti-Islam statements in 2011 (Section 24.6). It was feared that the subsequent abolition of the offence of blasphemy would amount to an inadequate protection of religious minorities against attacks on their religion (Section 24.7), but criminalising ‘defamation of religion’ as a form of hate speech was considered This article is partly based on the author’s dissertation: Esther Janssen, Faith in Public Debate. On Freedom of Expression, Hate Speech and Religion (Cambridge: Intersentia 2015).

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to be incompatible with international law. Statements about a religion are thus nowadays not easily punishable under Dutch law, but guidelines can be developed to demarcate free religious criticism from prohibited hate speech (Section 24.8).

24.2 History In Europe throughout the Middle Ages and during the Reformation, blasphemy formed a topic of inter-confessional and intra-confessional conflicts. In practice, blasphemy was severely punished by means of the piercing or cutting of the tongue, chopping off the hand, branding, the death penalty or expulsion. As far as the Netherlands is concerned, the early modern discourse of religious tolerance in the seventeenth century did not foresee that the offence of blasphemy would exist for a long time.1 In 1811, during the French occupation, the French Criminal Code was introduced, which lacked an offence of blasphemy. From then onwards, the offence of blasphemy did no longer form part of Dutch law. The Dutch Criminal Code of 1881,2 which entered into force in 1886, originally equally did not comprise an offence of blasphemy. According to the Minister of Justice, the Dutch legislator had to protect the rights of society, not the rights of God, who would be indefinitely better at this job Himself.3 Articles 145 and 146 of the Criminal Code (CC) did prohibit the impediment or disturbance of religious gatherings, and Article 147 CC criminalised the ridiculing of a clergyman during the lawful observation of his service and the scoffing of objects devoted to a service during the lawful practice of a service. The aim of these provisions was, however, not to prevent offence to a religion4 but to protect the right of citizens not to be disturbed in their religious exercise.5 The idea of criminalising blasphemy was hardly ever brought to the fore. But in the early thirties of the twentieth century, an upswing of antireligious propaganda by the Communists provoked the desire to create such an offence among part of the population, the parliament and the 1

2 3 4 5

Bas van Stokkum, Henny Sackers and Jean-Pierre Wils, Godslastering, discriminerende uitingen wegens godsdienst en haatuitingen: Een inventariserende studie (Den Haag:  WODC/ BJU 2006), pp. 35–48, 82–90. Act of 3 March 1881, Dutch law gazette 35. Handelingen II, 1880–1881, p. 102. Handelingen II, 1880–1881, pp. 99–102. Piet Hein van Kempen, ‘Religie in het Wetboek van Strafrecht’, in Hans Broeksteeg and Ashley Terlouw (eds.), Overheid, Recht en Religie (Deventer: Kluwer 2011), pp. 161–94.

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government.6 Several publications in the Communist newspaper The Tribune had caused much indignation, such as the headline ‘Eliminate Christmas’; the song ‘Christ to the dung heap! The Holy Virgin in the stable! The Holy Fathers to Hell! Long live the voice of the canon – the canon of the proletarian revolution!’ and a cartoon depicting God as the inventor of a new poisonous gas for the destruction of the entire population of the Soviet Union. The controversial publications caused the Minister of Education to remove the newspaper from the publicly funded reading rooms and to discontinue their funding if they continued to provide it. The National Railway Company decided not to sell the newspaper any longer in its bookshops. Communist representatives accused the minister of censorship, but their objection was rejected in Parliament.7 Anti-religious expression had become a persistent problem. The Dutch government feared that the anti-religious propaganda from the Communist side would provoke strong reactions and reprisals on the religious side, mainly from the orthodox Christian youth, which would cause problems with public order. On 25 April 1931, the government therefore introduced a bill that proposed to criminalise blasphemy in a new Article 147(1) CC.8 The bill was discussed in great detail in Parliament9 and the Senate.10 Many representatives, both proponents and opponents of the bill, objected to the ambivalent wording of the offence: what was the exact rationale and scope of the offence? According to the explanatory memorandum to the bill, the Minister of Justice had decided to merely criminalise the scornful form of blasphemous expression that injured religious feelings in order not to interfere excessively with the free expression of opinion. The criminalisation of all expression hurtful to religious feelings would be disproportionate. Cursing or swearing, thoughtless remarks or scientific expression of honest convictions fell outside the scope of the offence.11 Moreover, the offence did not affect the contestation of a religion as such, as long as the form of the expression did not exceed a certain limit. Freedom of religion 6

7 8

9

10 11

Ben Koolen, ‘Het smalle pad van Jan Donner, De ontstaansgeschiedenis van de Lex Donner 1932’ (2011) 2 Tijdschrift voor Religie, Recht en Beleid 72–84. Handelingen II, 1930–1931, p. 2796. Kamerstukken II, 1930–1931, 348, nos. 1–2. A  new Article 429bis CC criminalised ‘the display of blasphemous expression visible from the public road’. Handelingen II, 1931–1932, 26, 27, 31 May and 1 June 1932; Handelingen II, 1932–1933, 3 November 1932. Handelingen I, 1932–1933, 2, 3 November 1932. Kamerstukken II, 1930–1931, 348, no. 3, p. 2; Kamerstukken II, 1931–1932, 34, no. 1, p. 3.

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was considered as the fruit of historic development. What was to be prevented was, however, the abuse of freedom of conscience that leads to lawlessness.12 According to the Minister, the State openly acknowledged the existence of God and public authority was even exercised by the grace of God. Despite the broadest recognition of freedom of religion, the Netherlands was not an atheist state (État athée). Hence, the state had to clear from the public sphere expression that directly defamed God.13 The construction of God as part of the legal order was considered by some to be a somewhat artificial attempt to justify the criminalisation of the sin of blasphemy. The minister, however, strongly opposed such an offence for the protection of God or a religion, which belonged to God’s domain and not to the domain of the state.14 A more practical argument was that such an offence would require an awareness of the true existence of God with the offender, while he who blasphemes as a general rule does not believe in God’s existence. As the offence of blasphemy used an objective conception of God – a Supreme Being – that could be determined by the state or the judge independently from personal convictions,15 it did not constitute a discriminatory protection of freedom of religion of a religious majority; other religions or beliefs just did not have a comparable conception that was left unprotected.16 The minister also disputed that the offence violated freedom of expression guaranteed in Article 7 of the Dutch Constitution, because the latter article reserved the possibility to secure the public order. The offence merely required that expression in its form respects what is considered sacred in a religion.17 The offence could thus apply to the phrase ‘God is evil’, but certainly not to phrases such as ‘Religion is opium to the people’ or ‘Disbelief is a plague’. Several arguments were put forward against the introduction of the offence.18 Firstly, anti-religious propaganda was not a new phenomenon, and previous blasphemous publications had not resulted in immediate legislative action. The bill specifically aimed at Communist publications in The Tribune that surely did not have a very large impact. It therefore constituted ad hoc legislation – which, especially in the field of criminal 12 13 14 15 16 17 18

Kamerstukken II, 1930–1931, 348, no. 3, p. 2. Kamerstukken II, 1930–1931, 348, no. 3, p. 2. Kamerstukken II, 1931–1932, 34, no. 1, pp. 1–4. Kamerstukken II, 1931–1932, 34, no. 3. Kamerstukken II, 1931–1932, 34, no. 1, p. 1. Handelingen I, 1932–1933, pp. 42–5. Kamerstukken II, 1930–1931, 348, no. 4.

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law, was to be rejected. Secondly, the recognition of God by the state was not to lead to the unequal protection of religious and other philosophical convictions. Anti-religious propaganda was to be countered by word rather than criminal law, which would be counter-effective. In any case, religious adherents had brought the anti-religious propaganda upon themselves due to the fact that many war atrocities had been defended in the name of religion, and scornful expression against socialistic principles was often made from the religious side. Opinions on the criminalisation of blasphemy diverged not only between the confessional and non-confessional parties but also between the different confessional parties, notably on the dilemma whether God or a religion could truly be protected by the law or whether the offence should rather be seen as protecting religious adherents.19 The bill was eventually adopted on 1 June 1932 by the Parliament with forty-nine against forty-four votes,20 by the Senate with twenty-eight against eighteen votes,21 and subsequently published in the law gazette as the Act of 4 November 1932.22 The offence was included in Book II, Section V of the Dutch Criminal Code concerning ‘crimes against the public order’, which according to its explanatory memorandum are acts that constitute a danger to social life and the order of society.23 In 1934, the Dutch Criminal Code was supplemented with Article 147 that criminalised the distribution of blasphemous expression.

24.3

The Offence of Blasphemy and Its Application: The Donkey Trial

Since its introduction in the 1930s, the statutory wording of the offence of blasphemy in Article 147(1) CC remained unchanged and stated that ‘any person who publicly, orally, in writing or by means of portrayal, expresses himself in a manner insulting for religious feelings by means of scornful blasphemy’ was liable to an imprisonment up to three months or a fine up to €3,800. The term ‘scornful’ limited the scope of the offence to expression that has the intention to deeply scoff, ridicule or disparage 19

20 21 22 23

Willemien Kort-van Welzen, Christelijke kamerleden en de vrijheid van meningsuiting, een parlementair-historisch onderzoek (Zwolle: W.E.J. Tjeenk Willink 1994), p. 197 et seq. Handelingen II, 1931–1932, p. 2654. Handelingen I, 1932–1933, p. 49. Dutch law gazette 1932, 524. Tineke Cleiren and Hans Nijboer, Strafrecht, Tekst en Commentaar (Deventer:  Kluwer 2008), p. 745.

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God’s Person.24 The element ‘in a manner insulting for religious feelings’ enabled to bring under its scope an offender who does not believe in God himself but abuses the representations of God as held by others in society. Any proof of the fact that other people had actually been offended in their religious feelings was, however, not required.25 In line with the legislative history of the offence, ‘blasphemy’ signified the insult of God’s Person or the Supreme Being.26 Although the offence originated in the outburst of anti-Christian propaganda, its wording thus did not limit its application to the Christian religion. The offence was, however, tailored to religions with one Supreme Being, such as the Christian, Jewish and Islamic faith (God/JHWH/Allah), and was therefore difficult to apply to polytheistic religions, such as Hinduism or Taoism. Monotheistic religions other than the Christian religion were nevertheless offered a smaller scope of protection, because they lack the concept of the Holy Trinity. The offence protected all persons of the Holy Trinity, that is God, Jesus Christ and even the Holy Spirit. Other Christian figures, such as Holy Mary, were excluded.27 By contrast, the offence would protect the Islamic God Allah but, for example, not his prophet Muhammad. In practice, the offence of blasphemy has only been used in respect of the Christian religion. On certain occasions the courts have given a rather extensive interpretation of ‘scornful blasphemy’; convictions comprised not only the exclamation ‘A God, who has invented the bacillus of tuberculosis, is not a God, but a criminal’ by a radical socialist28 but also a publication that questioned the virtue of Mary29 and the light ridiculing of Christ for being a ‘demagogue, faith healer, Saviour/gynaecologist, Champion-surf-rider and amateur-ombudsman’.30 But the offence has been very limited in its application. Between its creation in 1932 and 1968 there have only been nine convictions and three dismissals on the basis of Article 147(1) CC.31 In 1968, the Dutch Supreme Court set such a high

24 25 26

27 28 29 30

31

Kamerstukken II, 1930–1931, 348, no. 3, p. 2; Kamerstukken II, 1931–1932, 34, no. 1, p. 3. Ibid. Alfred Janssens and Aernout Nieuwenhuis, Uitingsdelicten, third edition (Deventer: Kluwer 2011), p. 200. Kamerstukken II, 1931–1932, 34, no. 1, p. 4. Dordrecht District Court, criminal chamber, 15 January 1934 (unpublished). Haarlem District Court, criminal chamber, 19 May 1938 (unpublished). Amsterdam District Court, criminal chamber, 23 June 1965, Netherlands Jurisprudence 1965, 282. Conclusion Solicitor General Remmelink at:  Dutch Supreme Court, criminal chamber, 2 April 1968, Netherlands Jurisprudence 1968, 373. The cases are documented in Robert

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standard for a suspect’s intent to blaspheme that the offence led a dormant existence ever since. The last blasphemy case thus formed the famous Donkey trial of 1968.32 The case concerned two publications by the Dutch author Gerard Kornelis van het Reve in 1965; a letter of his writing published in Dialogue, a magazine for homosexuality and society, and his book Nearer to Thee. Both publications comprised passages that described how the author has sexual intercourse with God, who has taken the form of a donkey. After representatives of the Reformed Protestant Party (SGP) had raised questions about the blasphemous nature of the publications in Parliament, the Minister of Justice instructed the public prosecution to institute criminal proceedings. The case revolved around the question as to whether ‘scornful’ blasphemy required that an offender must have had a ‘subjective’ intention to deeply offend God’s Person, or an intention to do so according to ‘objective’ standards. The question resulted from Reve’s defence that – being a faithful Catholic – he had merely intended to express his religious beliefs and not to offend God. The author was baptised just before the trial, which had been exhaustively reported in the media. According to Reve, the case therefore concerned ‘a religious dispute that he had not intended to start, in which one conception of God was placed above the other’.33 The offence was modelled in such a manner that it was directed against propaganda from the non-religious side; religious propaganda was not foreseen. In literature, Reve’s defence is considered to have played a weighty role in the decision by the Court of Appeal to acquit him. The Supreme Court endorsed the decision and considered that ‘the term scornful comprises the subjective element, the intention of he who disparages the highest Supreme Being, presented as real; the term scornful thus does not merely have the function to describe a certain form of expression that is considered to be offensive to religious feelings’.34 The

32

33

34

Baelde, Studiën over godsdienstdelicten (Den Haag:  Nijhoff 1935); Koos Plooy, Strafbare godslastering (Amsterdam: Buijten en Schipperheijn 1986), pp. 68–82. The case is documented in Jan Abspoel, Studenten, moordenaars en ander volk: kritische kanttekeningen van een officier van justitie (Ede:  Veen 1979); Jan Fekkes, De God van je tante:  ofwel Het Ezel-proces van Gerard Kornelis van het Reve:  een documentaire (Amsterdam: De Arbeiderspers 1968). Egon De Roo, Godslastering: rechtsvergelijkende studie over blasfemie en andere religiedelicten (Deventer: Kluwer 1970), p. 121. Dutch Supreme Court, criminal chamber, 2 April 1968, Netherlands Jurisprudence 1968, 373, annotation Brinkhorst.

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Supreme Court thus set a very high standard of proof and threshold for criminal liability, which is in keeping with the aim of the legislator to limit the scope of the offence. The decision of the Supreme Court was, however, severely criticised for making the offence of blasphemy inapplicable.35 This criticism has proved to be justified. After the Donkey trial, the public prosecution has structurally dismissed complaints against blasphemous expression, and courts of appeal have structurally affirmed these decisions on the ground that the author’s intent could not be proven.36 Complaints were notably filed by the Dutch Association against Cursing against satirical programs of the socialist broadcasting company (VARA), albeit in vain.37 The rejection of the complaint against the screening of the film Monty Python’s Life of Brian even raised questions in Parliament in 1979–1980.38 The Christian parties argued that the structural dismissals and rejections of appeals signified the erosion of the offence of blasphemy and demanded the Minister of Justice to undertake action. The minister has, however, consistently held that interference is outside of his competence. Notwithstanding the political pressure, the Minister refused to take measures in 1996 with regard to the display on the public road of the advertisement poster (the poster featured actor Woody Harrelson as Hustler publisher Harry Flynt, wearing only an American flag around his midsection and posing as if he were being crucified on the gigantic pelvis of a scantily clad woman) of the film The people versus Larry Flint,39 and in 2008 with regard to the crucifixion act of Madonna during her Confessions Tour in the Netherlands.40

24.4

Political Developments

Since the Supreme Court decision in the Donkey trial had rendered the offence of blasphemy practicably inapplicable, the question of legitimacy

35

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37

38 39 40

Annotation Bronkhorst at:  Dutch Supreme Court, criminal chamber, 2 April 1968, Netherlands Jurisprudence 1968, 373; Jaap De Hullu, Strafrecht en literatuur (Nijmegen: Ars Aequi 1984), p. 560. WODC, Godslastering, discriminerende uitingen wegens godsdienst en haatuitingen, pp. 98–108. Documented in Harmen van der Wilt, Smalende Godslastering verboden? (Veenendaal: Stichting Onderzoek- en Publicatiefonds Bond tegen het vloeken 2009), pp. 19–29. Aanhangsel II, 1979–1980, 1108. Aanhangsel II, 1996–1997, 929. Aanhangsel II, 2005–2006, 2019.

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of the offence increasingly came to the fore. At the same time, the question arose how the offence of blasphemy related to the growing critical and harsh debate in politics and the media on religious tenets, figures and practices of Islam. In 1989, a Dutch translation of the novel Satanic Verses by Salman Rushdie appeared in the Netherlands. This time the Minister of Justice took the initiative to examine whether criminal proceedings could be instituted against the publication on the basis of the offence of blasphemy following the many complaints filed by Muslim citizens and organisations. In a heated debate in Parliament, the minister was criticised for giving in to the violent threat posed by Islamic fundamentalists and was accused of censorship. The minister objected that he had merely examined whether the offence afforded equal protection to adherents of Islam;41 no further action was undertaken. In the beginning of the 1990s Samuel Huntington published The Clash of Civilisations, which formulated his famous thesis, according to which future global conflicts would run along civilisational fault lines: Western European highly developed Christian civilisations versus eastern less developed Islamic civilisations.42 A decennium later Huntington’s prediction seemed to become true. The attacks of 9/11, London, Madrid, Bali – all committed by Islamic fundamentalists – provided a new media matrix in which Islam was discussed. Through its virtualisation by the media the object of Islam became a gigantic projection screen for fears, expectations and frustrations of both Muslims and non-Muslims. Hence, Islam also became a pressing issue on the (inter)national political agenda: Western values were not only threatened by global Islamic terrorism but also by the local multicultural society.43 In the Netherlands, for a long time openly pointing out existing problems related to the multicultural society, the immigration and the integration of minorities and questioning the public policy on such matters was considered to be ‘politically incorrect’ or even racist. The absence of debate on matters of public concern has been attributed to the specific Dutch political ‘pillar system’, in which a fragmented media only covered news considered to be relevant to the political pillar’s members and in which the dissemination of dissenting opinions would only disturb the

41 42

43

Kamerstukken II, 21 February 1989, pp. 5099–5109. Samuel Huntington, The Clash of Civilisations and the Remaking of World Order (New York: Simon & Schuster, 1996). Erwin Jans, ‘Hoeveel Islam verdraagt links?’, Streven (July–August 2009), available at www .streventijdschrift.be/artikels/09/jansislam.htm.

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‘pacification politics’ of the elites.44 In 1991, politician and at that time leader of the Liberal Party (VVD) Frits Bolkestein triggered a national debate with his statement in a national newspaper that the integration of minority groups had to be tackled with guts.45 In the media discussion arose as to the desirability of Islamic schools, segregation in education and crime rates among young immigrants. In 2000, the historian and member of the Labour Party (PvdA) Paul Scheffer published the article The Multicultural Tragedy in a national newspaper in which he argued that Dutch multiculturalism had failed.46 Subsequently, a series of events flamed an anti-immigrant and antiMuslim discourse and paved the way for the so-called new politics.47 After the terrorist attacks of 9/11, the populist politician Pim Fortuyn voiced the general dissatisfaction of the electorate with the ‘left-right’ coalition, accusing it of having refused to face the socio-economic problems caused by Muslim-immigration and the threat of Islam to western liberal values.48 After the political assassination of Fortuyn in 2002 by an animalrights activist, populist politician Geert Wilders, leader of the Freedom Party (PVV) further radicalised the public and political debate about multiculturalism.49 When politician Ayaan Hirsi Ali called the prophet Muhammad ‘a pervert and a tyrant’ and Islam ‘backwards’ in an interview in a national newspaper in 2003, the public prosecution decided – despite hundreds of complaints – not to prosecute her; the statements did not fall under the scope of the offence of blasphemy. Tensions in society reached a climax in 2004, when Dutch filmmaker Theo van Gogh, known for his film Submission that strongly criticised the treatment of women in Islam, was brutally slaughtered by Muslim fundamentalist Mohammed Bouyeri. The killing of van Gogh triggered

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46 47

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Marloes van Noorloos, Hate Speech Revisited, A Comparative and Historical Perspective on Hate Speech Law in the Netherlands and England & Wales (Antwerpen: Intersentia 2011), pp. 200–201. Frits Bolkestein, ‘Integratie van minderheden moet met lef worden aangepakt’, De Volkskrant, 12 September 1991. Paul Scheffer, ‘Het multiculturele drama’, NRC Handelsblad, 29 January 2000. Baukje Prins, ‘Het lef om taboes te doorbreken. Nieuw realisme in het Nederlandse discours over multiculturalisme’ (2002) 18:4 Migrantenstudies 241–54. ‘Pim Fortuyn op herhaling:  “De islam is een achterlijke cultuur”’, Interview with Pim Fortuyn, De Volkskrant, 9 February 2002. Egbert Dommering, ‘De Teddybeer Mohammed, gesluierde homo’s en het lawaai van Wilders: Over de stand van de vrijheid van meningsuiting anno 2008’ (2008) 7 Nederlands Juristenblad 376–82; Esther Janssen, Wilders, waardigheid en de grenzen van het publiek debat (2014) 27 Nederlands Juristenblad 1814–20.

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a countrywide series of assaults against Muslim institutions as well as a national debate about the scope of freedom of expression.50 In response to the murder, the Minister of Justice announced the examination of whether the offence of blasphemy was to be revived and used to channel the public debate concerning Islam in order to prevent Muslim radicalisation51 and the intentional harm and offence of people in their religion or beliefs.52 In protest against this plan, representatives of the Democratic Party (D66) proposed to abolish the offence of blasphemy.53 But their motion was considered to be inconvenient in light of the political tensions at the time and was therefore rejected. The minister announced the initiation of an investigation into the criminalisation of blasphemy.54 In 2007, the Scientific Research and Documentation Centre of the Ministry of Justice (WODC) published the report ‘Blasphemy, discriminatory expression on the basis of religion and hate speech’.55 One of the main findings of the report was that the offence of blasphemy could not be considered a dead letter but merely that it has led a dormant existence; it still had an independent function and value next to the other speech offences in the Criminal Code. However, the wording of the offence did create an inequality before the law between adherents of monotheistic religions and adherents of other beliefs. In literature it has been suggested to model the offence after Article 166 of the German Criminal Code that criminalises ‘defamation of the religion or ideology of others in a manner that is capable of disturbing the public peace’.56 The government decided to preserve the offence of blasphemy on the basis of its standard-setting character,57 and the minister announced the initiation of an investigation into the possibility to broaden the scope of the offence in order to afford equal protection to all religious and philosophical beliefs.58

50

51 52 53 54 55 56

57 58

‘Thema: Omtrent Van Gogh’ (2004) 45–6 Nederlands Juristenblad; ‘Thema: Uitingsdelicten en discriminatie’ (2007) 5 Strafblad 363–409; ‘Thema: Het publiek debat’ (2009) 3 Strafblad. Kamerstukken II, 2004–2005, 29854, no. 3. Handelingen II, 2004–2005, no. 23, pp. 1335–42. Kamerstukken II, 2004–2005, 29800 VI, no. 52. Kamerstukken II, 2004–2005, 29800 VI, no. 41. Kamerstukken II, 2006–2007, 30800 VI, no. 38. Ton Meijers, ‘Het verbod op smalende krenkende godslastering: een legitieme strafbepaling?’ (2007) 1 Nederlands Tijdschrift voor Kerk en Recht 1–15. Kamerstukken II, 2007–2008, 31200 VI, no. 8. Kamerstukken II, 2007–2008, 31200 VI, no. 130.

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24.5 Indirect Insult on the Basis of Religion: The Defamation of Islam Case The minister’s plan was soon obstructed by a decision of the Dutch Supreme Court in the so-called Defamation of Islam case in March 2009. In that case, the court made a fundamental distinction between (protected) statements about a religion and (prohibited) statements about a group of people on the basis of their religion. The case concerned a poster placed behind a window of a house facing the public road with the text:  ‘Stop the cancer called Islam, Theo died for us, who will be next? Resist NOW! National Alliance, we do not bow to Allah. Join us!’ The poster depicted no Muslims at all. Nevertheless, both the District Court and the Court of Appeal considered the poster to be insulting to adherents of Islam, ‘considering the connection between Islam and its adherents’, and convicted the suspect on the basis of the offence of group defamation in Article 137c CC.59 However, the Dutch Supreme Court acquitted the suspect because ‘the mere fact that offensive expression concerning a religion equally offends its adherents formed an insufficient ground to equate it to expression about the adherents, thus about a group of people on the basis of their religion’.60 According to the legislative history, ‘criticism of religious convictions or practices’ did not fall under the offence of group defamation; the legislator thus had foreseen a limited scope of Article 137c CC. The court therefore considered that in order to be punishable under this article an expression must unmistakably concern a group of people that is characterised by their religion.61 This criterion cannot in so many words be traced back in the drafting history. In fact, during the parliamentary debates, it was acknowledged that hybrid expressions existed for which it was necessary to determine whether the author aimed to target and draw conclusions about a religion or its adherents; the key criterion was whether expression concerns ‘points that are beyond discussion’.62

59

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61 62

‘s-Hertogenbosch District Court, criminal chamber, 19 July 2005, National Jurisprudence Number AT9494; ‘s-Hertogenbosch Court of Appeal, criminal chamber, 10 November 2006, National Jurisprudence Number BH3383. Dutch Supreme Court, criminal chamber, 10 March 2009, National Jurisprudence Number BF0655, Netherlands Jurisprudence 2010, 19, annotation Mevis, paras. 2.5.1–2.5.2. Ibid. Kamerstukken II, 1969–70, 9724, no. 6, p. 4.

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Several scholars have criticised the decision of the Court. Mevis holds that by treating the ‘unmistakability’ requirement as a preliminary question, the focus shifts from the core question of whether the expression is insulting to the question of whether it concerns a group. Then a clever man can escape liability simply by formulating his words in such a manner that they do not manifestly concern a group on the basis of its religion at first sight.63 In a similar vein, Veraart argues that this reasoning can result in a very abstract test on the basis of the literal wording of the impugned expression, whereby the text is not placed in its specific social context; the fact that the expression was uttered by an extreme right-wing movement in a time of increasing acts of discrimination and violence against Muslims in Dutch society was not taken into account.64 Vermeulen points out that the distinction between a religion and its adherents made by the Supreme Court presupposes a secularised vision of mankind, according to which people’s religion forms a very limited part of their identity; criticism of a religion would therefore say little about their appreciation as a person. This vision (secularisation) would do insufficient justice to people who deeply believe and often concern vulnerable orthodox religious minorities.65 But in essence, the Supreme Court only confirmed the vision of the Dutch legislator that criticism of religious convictions or practices that offends religious feelings does not fall under the scope of the offence of group defamation. That ratio merely applies to the offence of blasphemy and is limited to the category of expressions that deeply disparage God’s Person. Hence, the Dutch Supreme Court had notably demarcated the offence of group defamation from the offence of blasphemy. It must be borne in mind that, while the so-called ‘hate speech bans’ of Articles 137c–e CC and the offence of blasphemy were both designed to protect the public order, the ratio for countering anti-religious speech under the offences differs on a fundamental point. In fact, in the 1930s, the minister had rejected the suggestion to model the offence of blasphemy after Article 156 of the Criminal Code of the (former) Dutch East Indies that prohibited scornful or offensive expression of feelings of hostility, 63

64

65

Annotation Mevis:  Dutch Supreme Court, criminal chamber, 10 March 2009, National Jurisprudence Number BF0655, Netherlands Jurisprudence 2010, 19. Wouter Veraart, ‘Beledigen kan alleen in context, Kanttekeningen bij het “belediging islam”-arrest van 10 maart 2009’ (2010) 12 Nederlands Juristenblad 724–730. Ben Vermeulen, ‘Strafbare belediging van God, godsdienst, godsdienstigen’, in Piet Hein van Kempen et al. (eds.), Levend strafrecht, strafrechtelijke vernieuwingen in een maatschappelijke context, Liber amicorum Ybo Buruma (Deventer: Kluwer, 2011), pp. 662–3.

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hatred or disdain against one or more religious groups of the population. According to the minister, the situation in the Netherlands could not be compared with the large religious diversity in the Dutch East Indies.66 The offence of blasphemy was introduced in order to prevent the direct effect that the defamation of God would have on the feelings of Christians, as it was feared that they would take the law into their own hands. The hate speech bans of Articles 137c–e, on the other hand, were introduced in the seventies in order to protect the dignity of racial and religious groups in the eyes of others and to prevent that their negative imaging would cause their hatred and discrimination by third parties. This requires a ‘triangular relationship between the speaker, the target group and the public’ that, in practice, is more likely to be activated by expressions targeted at religious adherents than expressions targeted at their gods, symbols or doctrines. After the Court’s decision, the Minister of Justice renounced his plan to abolish the much-criticised offence of blasphemy that since the Donkey trial merely had a symbolic function and renounced his plan to ‘clarify’ the scope of the offence of group defamation by inserting the words ‘direct and indirect’ insult.67 The plan apparently aimed to create the possibility to criminalise offensive expression about a religion under the offence of group defamation and thus to ‘transfer’ the function of Article 147 CC to 137c CC. However, the restrictive interpretation of the latter article given by the Supreme Court in 2009 left no room for this transfer.68 After having changed position several times, the minister simply left things as they were.69

24.6

Extreme Speech about Religion under the Hate Speech Bans: The Wilders Case

The decision of the Supreme Court in the Defamation of Islam case in March 2009 has been of considerable influence on the acquittal of Geert Wilders by the Amsterdam District Court in June 2011.70 Initially, the public prosecution had decided not to prosecute Wilders with regard to 66 67 68 69 70

Kamerstukken II, 1930–1931, 348, no. 4, p. 7; Kamerstukken II, 1931–1932, 34, no. 1, p. 4. Kamerstukken II, 2008–2009, 31700 VI, no. 33. Kamerstukken II, 2008–2009, 31700 VI, no. 128. Kamerstukken II, 2008–2009, 31700 VI, no. 128. Amsterdam District Court, 23 June 2011, National Jurisprudence Number BQ9001, Mediaforum 2011, pp. 280–2, annotation Van Noorloos; Ars Aequi 2012, pp. 288–89, annotation Rozemond; pp. 290–4, annotation Schutgens; Netherlands Jurisprudence 2012, 370, annotation Mevis.

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his statements concerning Islam, Islamisation and Muslims made in the media and his film Fitna, which was posted on the internet. It considered that the case would evidently result in an acquittal, as Wilders’ statements targeted Islam as a religion and not Muslims as a group. What is more, his statements formed part of public debate. Several Islamic and anti-racism organisations successfully filed complaints with the Amsterdam Court of Appeal that ordered the prosecution of Wilders for incitement to hatred and discrimination (137d CC), and group defamation in so far as he had made comparisons between Islam and Nazism and between the Quran and Mein Kampf (137c CC).71 The Court of Appeal considered the linguistic distinction between direct insults about a group on the basis of its religion and indirect insults to a group via defamatory statements about religious figures and symbols rather artificial. But the Court of Appeal’s order to prosecute Wilders of January 2009 predated the Defamation of Islam decision, in which the Supreme Court rejected this latter view. Subsequently, the Amsterdam District Court strictly applied the Supreme Court’s unmistakability requirement and found that Wilders’ statements did not amount to group defamation, as they did not manifestly refer to Muslims but to Islam and the Koran. This even applied to a statement about the behaviour of Muslims (‘You find out that all the evil which the sons of Allah commit against us and themselves comes from that book’) and a statement about Islamisation in Fitna that did show images of Muslims (‘Islam wants to rule, to subjugate, and aims to destroy our civilisation. In 1945 Nazism was defeated in Europe. In 1989 Communism was defeated in Europe. Now Islamic ideology needs to be defeated. Stop Islamisation. Defend our freedom’.) Although the Supreme Court had emphasised that the Defamation of Islam case did not concern incitement to hatred or discrimination, in the Wilders case, the District Court applied its unmistakability requirement analogously to this offence in Article 137d and, just like for the offence of group defamation, it strictly distinguished criticism of Islam from criticism of Muslims. In principle, a distinction can indeed be made between statements that present certain religious convictions and practices as totally reprehensible and hateful on the one hand and statements about persons on the other. But in the opinion of the District 71

Esther Janssen and Aernout Nieuwenhuis, ‘De verhouding tussen vrijheid van meningsuiting en discriminatie in het Wilders-proces: Een analyse van “het proces van de eeuw”’ (2012) 2 NTM/NJCM-Bulletin 177–207.

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Court, Article 137d CC did not even cover Wilders’s imputation that one in five Moroccan youngsters are registered with the police as suspects and that this is caused by their religion and culture, because Islam is a violent religion and the problems therefore lie in the community itself. This imputation clearly refers to the group of Moroccans in connection with their religion. In a number of previous court cases convictions had been handed down in connection with statements depicting Moroccans, Antilleans and Muslims as criminals.72 There is a distinction between criticism of ritual slaughtering or religious circumcision as an Islamic practice and the attribution of an inherent criminal nature to Muslims. In other words, the Wilders case illustrates that the view of the legislators and the Supreme Court that criticism of ‘religious practices’ is not a criminal offence is in need of clarification. Does this effectively refer to facts of common knowledge? Does it refer to establishing a – potential – connection between religion and antisocial behaviour? Must all the members of the group display particular behaviour, or is it sufficient for there to be a statistical relationship? Is it merely about gauging particular risks? A workable method could be to determine whether behaviour and practices can reasonably be connected to a religion. Eventually, of overriding importance is the nature of expression; does it concern a free value judgment, with a sufficient factual basis, or is it gratuitously offensive, or does it constitute a false imputation? With regard to incitement to hatred the District Court required that expression must include a seditious, ‘reinforcing element’ and thereby brought Article 137d CC close to Article 131 CC that criminalises the incitement to criminal offences. With regard to incitement to discrimination, the court required that expression more or less directly and explicitly incite to concrete forms of discrimination. Most of Wilders’s expressions did not meet these requirements. Expressions that did qualify as incitement to discrimination were placed in the broader context of the free public debate on Islam, immigration and the multicultural society. Examples included ‘The borders will be closed that same day to all non-Western immigrants’ and ‘Everyone will adapt to our dominant culture. Anyone who doesn’t won’t be here in twenty years’ time, they will be deported’ and ‘We want to achieve a lot. Close the borders, no more Islamites to enter the Netherlands, a lot of Muslims out of the Netherlands, denaturalisation of Islamic criminals. . . .’ 72

The Hague District Court, 12 May 2011, National Jurisprudence Number BQ4301; Amsterdam Court of Appeal, 11 September 2003, National Jurisprudence Number AK8302.

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The Court considered Wilders’s expression as criticism of government policy or as political proposals that he hopes to realise after he has gained political power in a democratic manner. Concrete political measures that – if effectuated – could violate a statutory prohibition of discrimination were thus not punishable per se. On this point, the decision of the court is difficult to reconcile with the drafting history of the offence. The article was explicitly meant to limit the scope for politicians to propagate political change that would lead to discriminatory measures. Hence, in the eighties and nineties, such expression had led to convictions. The District Court did consider that discriminatory proposals could be punishable under 137d CC, if they are ‘excessive’, but it did not clarify why Wilders’s expressions were finally not ‘excessive’, nor did it provide any further explanation of the term. In 2014, the Dutch Supreme Court would further delineate political debate in the Delano Felter case concerning homophobic speech by ruling that a politician has a responsibility in public debate not to express views that are contrary to the law and the principles of the democratic state; the court considered that this also includes expression that incites intolerance and thereby implicitly referred to the case law of the European Court of Human Rights.73 But the strict interpretation of ‘group defamation’ and ‘incitement to hatred and discrimination’ by the District Court in the Wilders case resulted in a more limited scope of Articles 137c–d CC.74 Wilders’s acquittal has without any doubt been of influence to the course of a legislative initiative to abolish the offence of blasphemy that paralleled the case: would its abolition not amount to an insufficient protection of religious minorities against defamation of their religion? What was the exact relationship between the offence and the law on hate speech?

24.7

Final Abolition of the Offence of Blasphemy

Although the Minister had decided in 2008 to preserve the offence of blasphemy, social developments and the case law had rendered the offence untenable. A motion of the Democratic Party (D66) that proposed to abolish the offence was widely supported and adopted.75 This time, the wish of the Reformed Protestant Party (SGP) to preserve the 73

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Dutch Supreme Court, criminal chamber, 16 December 2014 (2015) Netherlands Jurisprudence 108, annotation Rozemond. Janssen, Faith in Public Debate, pp. 478–86. Kamerstukken II, 2008–2009, 31700 VI, no. 94.

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offence based on its standard-setting function was rejected.76 The bill of abolition strongly emphasised the interest of freedom of expression and the importance of a profound public debate on philosophical questions. It had previously been established that the offence of blasphemy constituted unequal treatment of religious and non-religious convictions. What is more, as freedom of religion formed a classically negative fundamental right, the offence to religious feelings did not constitute an interference with this freedom. Finally, the offence had primarily been motivated by the protection of public order, but its preservation was both unnecessary and undesirable, because other existing speech offences sufficed for this purpose.77 In its advice on the bill in 2010, the Council of State concluded that the question of the preservation of the offence could not be answered according to strict Constitutional boundaries concerning the right to freedom of expression, freedom of religion and the principle of equality; this applied both to the Constitution and the case law of the European Court of Human Rights. Other aspects were determinant for the issue: criminal policy, public considerations and factors and the views of other member states of the Council of Europe. The council therefore advised the placing of the abolition of the offence in a broader context and emphasised a number of possible negative consequences; the abolition of the offence might lead to tensions in society and the loss of its preventive and normative function, and the remaining speech offences might not be sufficient for an adequate protection of religious minorities against defamation of their religion.78 These reservations could not convince the initiators of the bill, who in essence attached more importance to the right to freedom of expression and placed the bill in the context of international developments; only eight of the forty-seven member states of the Council of Europe still had an offence of blasphemy, and several institutions of the Council of Europe had expressed their opposition to blasphemy laws. On 16 April 2013, the proposal to abolish the offence of blasphemy was adopted by the Parliament.79 All parties except the three political parties with Christian foundations (SGP, Christian Union and Christian Democrats) voted in favour of the proposal. According to the initiators of the proposal, the 76 77 78 79

Kamerstukken II, 2008–2009, 31700 VI, no. 99. Kamerstukken II, 2009–2010, 32203, nos. 2–3. Kamerstukken II, 2009–2010, 32203, no. 4. Handelingen II, 2012–2013, no. 75, item 18.

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offence of blasphemy had an independent value (the protection of religious feelings) but no added value to the so-called hate speech bans in Articles 137c-e CC. These offences were sufficient to protect people against verbal attacks on the basis of their religion.80 On 3 December 2013, the proposal was adopted in the Senate with forty-nine against twenty-one votes. And so, after existing more than eighty years, the offence of blasphemy was abolished in the Netherlands by the Act of 23 January 2014, published on 1 March 2014.81 Preserved due to the continued support of the confessional parties, the offence finally ceased to meet the present-day standards of freedom of expression and religion, equality and state neutrality.82 But in the Senate, more emphasis was placed on the protection of freedom of religion. In line with the reservations put forward by the Council of State, the senators questioned whether the offence of blasphemy could have any residual value and whether its abolition would not amount to an insufficient protection of religious minorities against defamation of their religion. In fact, the debates in Parliament and the Senate had insufficiently clarified the exact relationship between the offence of blasphemy and the law on hate speech.83 The Senate therefore adopted a motion that requested the government to examine ‘whether a possible amendment of the hate speech bans of Article 137 CC can be useful to accomplish that these provisions provide adequate protection against defamation of citizens – that is experienced as very serious – by defaming their belief, without unduly restricting freedom of expression’.84 In the literature, the motion has been criticised for introducing a worse ‘wild card’ to protect religions as such than the former offence of blasphemy and for disregarding the criteria set by the Dutch Supreme Court that expressions must ‘unmistakably’ concern a religious group.85 The report ‘Criminalising defamation of religion or belief ’ of 2014 made by WODC on the government’s request also answered this question in the

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Kamerstukken II, 2010–2011, 32203, no.  5; Kamerstukken II, 2011–2012, 32203, no.  7; Handelingen II, 2012–2013, no. 64, item 9. Act of 23 January 2014, Dutch law gazette 2014, 39, article III. Cf. Marloes van Noorloos, ‘Het einde van een tijdperk. Over godslastering, vrijheid van meningsuiting en het vernielen van heilige huisjes’ (2013) 6 Strafblad 450–459. Kamerstukken I, 2012–2013, 32203, A; Kamerstukken I, 2013–2014, 32203, C; Handelingen I, 2013–2014, no. 10, item 2, 12. Ibid. Johan Vrielink, ‘Godslastering:  van de (nimmer vallende) regen in de (doorwerkende) drup’ (2014) 3 Nederlands Juristenblad 185–8.

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negative.86 The report considered that in order to accomplish protection against ‘defamation of citizens – that is experienced as very serious – by defaming their belief ’ it is indeed necessary to amend the law. Given the development of the case law, such expressions are currently not covered by the hate speech bans of Article 137 CC. If the words ‘defamation experienced as very serious’ are interpreted subjectively it is necessary to adopt a new criminal offence, because such a subjective offence that protects people’s feelings (religious offence) would clash with the objective nature of Article 137 CC, which protects people’s dignity in the eyes of others (negative imaging). The report concluded that such a new offence could conflict with the principle of legality and would not fit with the premise that criminal law is an ultimum remedium. Moreover, it would be contrary to international law.

24.8

Demarcating Free Criticism of a Religion from Prohibited Hate Speech

Since the offence of blasphemy has been abolished and the hate speech bans have not been amended to include ‘defamation of religion’, the question remains when exactly expressions about a religion become punishable under Dutch law.87 As international law sets very general contours, the obligations to prevent religious hatred can be located somewhere in between the ‘light’ cases of religious offence and the ‘severe’ case of religious violence. Within these broad frameworks states have the option to set a variety of restrictions to expressions about a religion. The criterion set by the Dutch Supreme Court in the Defamation of Islam case that expression must unmistakably concern a group of people characterised by a religion leaves very little room for criminalising expressions about a religion. Satirical cartoons about Allah and Muhammad or criticism about convictions and practices are in any event not (easily) punishable in the Netherlands. The recent Charlie Hebdo killings caused little legal controversy; they generated a virtually unanimous support of free speech and a rejection of violent acts of terrorism in the media, politics and 86

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Marloes van Noorloos, Strafbaarstelling ‘belediging van geloof ’ (Den Haag:  Boom Lemma Uitgevers, 2014). English summary at:  Marloes van Noorloos, ‘Criminalising defamation of religion and belief ’ (2014) 22:4 European Journal of Crime, Criminal Law and Criminal Justice 351–75. Jasper Doomen and Mirjam van Schaik, ‘De toekomst van de godslastering’ (2014) 30 Nederlands Juristenblad 1576–7; Jasper Doomen and Mirjam van Schaik, ‘Blasfemie in de huidige context’ (2015) 44:1 Netherlands Journal of Legal Philosophy 47–61.

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academia.88 The debate lacked a reflection on responsibilities in the use of free speech to prevent the stigmatisation of Muslims.89 In the aftermath of the Danish cartoons affair, debate arose about alleged double standards in the application of the hate speech bans to sensitive issues in the secular Western society such as Holocaust denial and their non-application to sensitive religious issues such as the Muhammad cartoons.90 In fact, the Netherlands has no separate Holocaust-denial laws, but in certain situations Holocaust denial can be punishable under the Dutch hate speech bans. In certain situations, a confrontation with the Holocaust can constitute an actual threat to Jews. Similarly, however, statements about a religion could also be threatening to Muslims and indeed be punishable as forms of hate speech: for example, a poster campaign with the texts ‘F*ck off, Islam’ and ‘Death to Islam’ in a neighbourhood where a Muslim family has just moved in.91 This shows that determining criminal liability for expression about a religion is a highly contextual matter. The question arises how much guidance the legislator must give and how much room should be left for judicial interpretation. Dutch (criminal) law is characterised by ‘open norms’ that can be further ‘coloured’ by the judge in concrete cases. It is not likely in such a system to create a new offence criminalising ‘defamation of religion if it constitutes incitement to hatred, discrimination or violence’ or further specify the existing hate speech offences by inserting a free speech clause exempting ‘criticism of religious convictions and practices’. An important question for the judge in establishing liability for religious criticism thus remains when religious adherents are to be protected. The WODC report discerns five categories of expression (expressions about gods; symbols; doctrines; religion or belief as an institution and social phenomenon; the practices emanating from religion or belief) that in theory, in very extreme cases, could all amount to advocacy to

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Paul Cliteur, ‘Vrijheid van expressie na Charlie’ (2015) 5 Nederlands Juristenblad 306–311; Marcel Storme, Hendrik Kaptein and Paul Cliteur, ‘Reacties op het essay van Paul Cliteur’ (2015) 12 Nederlands Juristenblad 761–763. Esther Janssen, ‘Charlie Hebdo, freedom of expression and religious offence’ (2015) 19:1 Newsletter School of Human Rights Research Network 1. Egbert Dommering, ‘De dubbele moraal van het groepsbeledigen in cartoons: Een fictieve redevoering ter gelegenheid van het niet op 30 september gevierde vijfjarige jubileum van de Deense cartoonrellen’ (2010) 35 Nederlands Juristenblad 2264–68. Aernout Nieuwenhuis and Esther Janssen, ‘De onduidelijke verhouding tussen vrijheid van meningsuiting en discriminatie:  een analyse van de groepsbelediging en het haatzaaien’ (2011) 4 Mediaforum 100.

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religious hatred.92 After all, expressions at first sight targeted at aspects of a religion may, given their particular context, nevertheless ‘unmistakably concern a group of people’. In practice, this appears to be most conceivable for expressions about the behaviour of religious adherents, for example, when a religion is linked with criminality. Key questions then are whether behaviour and practices can reasonably be connected to a religion and what the exact nature of a statement is. Finally, one may set high requirements to the elements of the hate speech bans and balance their application with the interest of a free public debate comparable to the Amsterdam District Court in the Wilders case. But it also needs to be determined when political proposals to counter (aspects of) a religion overstep the outer boundaries of the constitutional state.

24.9 Conclusion And so we reach our conclusion that the fairly recent abolition of the offence of blasphemy in the Netherlands can be considered a welcome development. Historically, the prohibition can be explained by the entanglement of religion and the state, but the processes of secularism and secularisation make the offence difficult to legitimise. Moreover, in the modern Dutch multi-cultural society the offence is anti-egalitarian in effect. The prohibition of blasphemy used to protect the official religion of the Christian majority in the country and to preserve public morality. The offence prohibited the gross defamation of God in order to protect religious adherents against the intended insult of their sensitivities and feelings. But religious feelings and sensibilities are very subjective. If the state protects people with personal convictions, representations and ideas that they hold to be sacred, it loses its neutrality towards competing claims about religious truths; it takes a certain side in a religious debate. The issue of blasphemy is generally regarded as a direct conflict between the right to freedom of expression and the right to freedom of religion. This is, however, difficult to imagine. Even though blasphemous speech might indirectly cause some negative effects such as offence to religious feelings, it does not evidently prevent believers from holding religious beliefs or exercising their religious freedom by wearing a headscarf, going to church or enjoying religious education. It could influence their beliefs, but here we see benefits from freedom of religion:  the outcome of the

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WODC, Strafbaarstelling, pp. 110–113, 124.

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‘free marketplace of religions’ is that religious adherents either hold their thoughts more actively and strongly or they change their beliefs, which would be more difficult when beliefs are not exposed to opposite beliefs or criticism. The right of ‘respect of religious feelings’ as an integral part of religious freedom is thus controversial. It seems to be inspired by the concept of religious toleration that can, however, be considered as underpinning both freedom of religion and freedom of expression. In fact, freedom of religion and freedom of expression have a common origin: the inter- and intra-religious wars of the sixteenth and seventeenth centuries and the power struggle between the church and the state. The freedoms could be imagined as ‘twins separated at birth’ and subsequently brought up in the religious domain, respectively the secular, political domain. It can be argued that religious toleration relates to the peaceful coexistence of different religious thoughts and practices but not to the peaceful coexistence of opinions on religious matters; these must clash in an open and free debate, provided that participants are respected as equal persons. The Dutch government has considered the preservation of the offence of blasphemy as a religious relic, or the ‘transfer’ of its function to the hate speech bans, useful to at some point control the vehement public debate on religious topics (often related to Islam) to maintain public order. This would, however, set false expectations to religious groups about their rights: the right to criticise the convictions, the dogmas, religious figures and practices of a particular religion forms an integral part of freedom of expression. Such criticism cannot be prohibited merely because it would upset the feelings of religious adherents. Religious criticism can concern existing religion–state relationships and the place of religion in the public domain. A person’s conduct may in fact be inspired by his religion and may be criticised on that basis too. But when religious criticism amounts to ‘hate speech’ against religious adherents, it must be prohibited. This chapter provided certain guidelines to determine when extreme expressions about a religion in fact ‘unmistakably concern a group of people characterised by its religion’ and overstep the protected boundaries of public debate. In the end, this remains a highly contextual matter.

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PA RT   V I I I The Future of Blasphemy Laws?

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25 Freedom of Expression and Religions, the United Nations and the ‘16/18 Process’ Marc Limon , Nazila Ghanea & Hilary   Power

25.1

Introduction

The UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, said during his inaugural address to the UN Human Rights Council (‘the Council’) in September 2014, ISIL’s1 actions ‘reveal only what a Takfiri state would look like, should this movement actually try to govern in the future. It would be a harsh, mean-spirited, house of blood, where no shade would be offered, nor shelter given, to any non-Takfiri in their midst … only annihilation to those Muslims, Christians, Jews and others (altogether the rest of humanity) who believe differently to them’.2 The human rights violations committed by ISIL are, of course, an extreme manifestation of religious hatred and intolerance. Yet the march of its extremist ideology comes against a background of heightened religious hostility and discrimination in virtually every part of the world, including the subsequent Charlie Hebdo attacks of January 2015 in Paris and subsequent Saint-Denis attacks of November 2015. A recent study found that social hostilities involving religion, such as attacks on minority faiths or pressure to conform to certain norms, were strong in one-third of the 198 countries and territories surveyed. Across 1 2

Also known as IS or Daesh. Opening Statement by Zeid Ra’ad Al Hussein, United Nations High Commissioner for Human Rights, at the Human Rights Council 27th Session, Geneva, 8 September 2014. Takfir is the act of declaring someone else a kafir or non-believer. A Takfiri state is therefore the accusation that a state is home to non-Muslim or apostates, as having abandoned Islam and not enjoying Islamic legitimacy, therefore that it should not enjoy the support of Muslims.

This chapter is adapted from the Universal Rights Group report Combatting Global Religious Intolerance: The Implementation of Human Rights Council Resolution 16/18 (2015), available at www.universal-rights.org/wp-content/uploads/2015/02/URG_report-1618-Dec2014-page_ by_p age.pdf.

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the Middle East, North Africa, Europe and Asia, levels of religious hostilities have roughly doubled since 2007.3 Religion-related terrorism and sectarian violence occurred in one-fifth of countries in 2012, while states imposed legal limits on worship, preaching or religious wear in almost 30 percent of them. The main UN global policy framework for combating religious intolerance, stigmatisation, discrimination, incitement to violence and violence against persons based on religion or belief is set down in Human Rights Council Resolution 16/18, adopted in March 2011.4 Some six years on, UN consensus around the ‘16/18 framework’ remains fragile. Previous divisions have re-emerged, in large part, because of conceptual confusion among policymakers about what implementation of Resolution 16/ 18 means and what it entails. Linked to (and indeed flowing from) this conceptual opacity, states – especially states from the Western Group (WEOG) and the Organisation of Islamic Cooperation5 (OIC) – argue over whether Resolution 16/18 is being effectively implemented or not and, if not, why this is so. The present chapter draws from an appraisal of all relevant UN documents going back to 1947, interviews with around forty government officials, UN experts and religious leaders, a policy dialogue with key UN stakeholders, an independent appraisal of state policy since 2011 and a quantitative analysis of available data on religious hostility. Thus it offers an impartial assessment of levels of implementation as well as recommendations for strengthened compliance in the future.

25.2 The UN’s Struggle against Racial and Religious Discrimination From the very beginnings of the UN human rights system, states identified the fight against racial and religious discrimination as a key policy priority. In February 1946, the Economic and Social Council (ECOSOC) laid down the terms of reference of the Commission on Human Rights (‘the Commission’) and identified the ‘prevention of discrimination on grounds

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Pew Research Center, Religious Hostilities Reach Six-Year High (report, January 2014), available at www.pewforum.org/2014/01/14/religious-hostilities-reach-six-year-high/. Human Rights Council Resolution 16/18, ‘Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief ’, 24 March 2011. Named the ‘Organisation of the Islamic Conference’ prior to June 2011.

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of race, sex, language or religion’ and ‘the protection of minorities’ as two of its four areas of focus (the others being preparation of an international bill of rights, and ‘international declarations or conventions on civil liberties, the status of women, freedom of information and similar matters’).6 It was not until 1962, however, that the UN would take significant action in this regard. On 7 December 1962, the GA adopted two resolutions: Resolution 1780 (XVII) on ‘the preparation of a draft declaration and a draft convention on the elimination of all forms of racial discrimination’ and Resolution 1781 (XVII) on ‘the preparation of a draft declaration and a draft convention on the elimination of all forms of religious intolerance’.7 While the former process was able to culminate rapidly into the adoption of a UN convention in 1965 – the UN’s first core human rights convention – the latter was the subject of increasingly politicised and divisive debate, with opponents now able to ‘delay, if not prevent, the adoption of special instruments on religious intolerance’.8 It was not until 25 November 1981, that the GA was able to proclaim, with Resolution 36/55 (adopted by consensus), the ‘Declaration on the elimination of all forms of intolerance and of discrimination based on religion or belief ’. For the first time, the UN had established an international human rights instrument, albeit a soft-law one, on religious intolerance and discrimination.9 By this point, the idea of a Convention had been abandoned altogether.10

25.2.1

UN Declaration on Religious Intolerance and Discrimination

It is important to note that the 1981 Declaration is a soft-law rather than a hard-law instrument, meaning it offers normative guidance rather than providing a set of binding obligations for states. A majority of state delegates to the Human Rights Council today are regrettably completely unaware of the Declaration’s existence and content. As its title suggests, the 6

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ECOSOC Resolution 1/5, ‘Commission on Human Rights and Sub-Commission on the Status of Women’, 16 February 1946. This resolution, inter alia, took note that the Commission was ‘preparing draft principles on freedom and non-discrimination in the matter of religious rights and practices’. Bahiyyih G. Tahzib, Freedom of Religion or Belief:  Ensuring Effective International Legal Protection (The Hague: Martinus Nijhoff Publishers, 1996), p. 142. UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, adopted by GA Resolution A/RES/36/55 on 25 November 1981. For more on this, see Marc Limon, Nazila Ghanea and Hilary Power, ‘Fighting religious intolerance and discrimination:  The UN account’ (2016) 11 Religion & Human Rights 21–65.

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Declaration focuses on religious intolerance and discrimination. Like its long-separated sibling, the Convention on the ‘elimination of all forms of racial discrimination’, the emphasis of states was to create an instrument that responded, from a victim’s perspective, to a clear global problem of religious intolerance and discrimination rather than one that called for states to uphold the enjoyment of certain rights (freedom of religion or belief). As a Treaty Body member explains, the process that led to the adoption of the 1981 Declaration originated in a desire to respond to the plight of the victims of religious intolerance and discrimination, rather than a wish to fulfil Article 18 of the Universal Declaration. To say otherwise would be akin to arguing that the Convention against Torture should have been called the Convention on the right to life, liberty and security of person [Article 3 of the Universal Declaration].11

These distinctions – that the primary objective of the international community at the time was to address violations of human rights by combating religious intolerance and discrimination and that respect for freedom of religion or belief was just one, albeit important, part of the ‘policy mix’ prescribed to achieve that objective – are key to understanding the future evolution of efforts by the international human rights system to address matters of religion, as well as the political divisions that continue to beset the international community to this day. It did not take long for the UN to realise that member states were largely ignoring the 1981 Declaration. Between 1981 and 1986, the GA repeatedly called on the Commission ‘to continue its consideration of measures to implement the Declaration’12 and expressed deep concern about ‘reports of incidents as well as governmental actions in all parts of the world which are inconsistent with the provisions of the Declaration’.13 In March 1986, therefore, the Commission decided to establish a new mechanism:  a Special Rapporteur to oversee ‘the implementation of the Declaration on the elimination of all forms of intolerance and of discrimination based on religion or belief ’.14 The Special Rapporteur was mandated to examine ‘incidents and governmental actions in all parts of the world’ which were ‘inconsistent with the provisions of the Declaration’ and to ‘recommend 11 12

13 14

Interview with a Treaty Body member. Commission Resolution 1986/20, ‘Implementation of the Declaration of All Forms of intolerance and of Discrimination Based on Religion or Belief ’, 10 March 1986 (adopted by a roll-call vote of 26 to 5, with 12 abstentions), preambular para. 2. Ibid., operative para. 1. Ibid., operative para. 2.

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remedial measures’.15 The UK delegate hailed the Commission’s decision to appoint a Special Rapporteur as ‘responsible, objective and timely’,16 saying the time had come ‘for the Commission to go beyond the study of causes’ and to proceed to ‘consider questions of implementation’.17 The resolution was finally adopted by 26 votes in favour, 5 against and 12 abstentions. Those voting in favour included all Western countries, plus Muslim-majority states such as Bangladesh, Mauritania and Senegal. A year later, in 1987, the mandate was renewed by consensus,18 and it has continued its work since.

25.2.2 2000–2001: A Fork in the Road Between 1960, when the Commission adopted Resolution 6 (XVI), and the turn of the century, the UN’s approach to securing the elimination of all forms of religious intolerance and discrimination fell short of the challenge, but at least they had followed a single approach. That changed at the turn of the century, when two ostensibly unrelated events – the renaming of the Special Procedure mandate and growing concern among OIC member states over ‘Islamophobia’ combined to create a deep schism. In 2000, at the suggestion of the Special Rapporteur at the time, Abdelfattah Amor, the delegation of Ireland presented a resolution altering the title of the mandate from ‘Special Rapporteur on religious intolerance’ to its current title:  ‘Special Rapporteur on freedom of religion or belief ’. Echoing the rationale put forward by Mr Amor, Ireland suggested the change was intended ‘to reflect the more positive side of (the) mandate’.19 From this time, the Special Rapporteur began to implement his renamed mandate in a way that gave greater emphasis to ‘the promotion of the freedom of religion and on prevention activities’ rather than the traditional task of ‘combating all forms of religious intolerance’.20 15 16

17 18

19

20

Ibid. Commission on Human Rights (42nd Session), Summary Record of the 29th Meeting, UN Doc. E/CN.4/1986/SR.29, 24 February 1986, p. 16. Ibid., para. 76. Commission Resolution 1987/15, ‘Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief ’, 4 March 1987. Commission on Human Rights (56th session), Summary Record of the 60th Meeting, UN Doc. E/CN.4/2000/SR.60, 20 April 2000, para. 34. Michael Wiener, ‘The mandate of the Special Rapporteur on freedom of religion or belief – institutional, procedural and substantive legal issues’ (2007) 2 Religion & Human Rights (2007), at 3, 4 and 11.

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A year earlier (1999), Pakistan, on behalf of the OIC, had presented a draft resolution to the Commission on the ‘defamation of Islam’. According to Pakistan’s ambassador in Geneva, Munir Akram, the new resolution was needed in response to growing concerns over ‘new manifestations of intolerance and misunderstanding, not to say hatred, of Islam and Muslims in various parts of the world’.21 The draft was initially opposed by Western states, which said it was ‘not balanced since it referred exclusively to the negative stereotyping of Islam’.22 After Pakistan agreed to change the scope to cover the ‘defamation of [all] religions’, the text was adopted by consensus, though with a warning from the EU that it ‘did not attach any legal meaning to the term “defamation” as used in the title’.23 A further resolution, tabled in 2000, was likewise adopted by consensus.24 However, when, in 2001, the OIC tabled a text encouraging states to ‘provide adequate protection against all human rights violations resulting from defamation of religions’,25 the West called a vote.26 From that point on, all ‘defamation of religions’ resolutions were adopted through increasingly acrimonious votes.27 On 11 September 2001, al-Qaeda terrorists flew planes into the World Trade Centre in New York and the Pentagon in Washington, DC. In the aftermath of the attacks, OIC concerns about rising Islamophobia were amplified. As a result, the draft ‘defamation of religions’ text tabled in 2002 (re-)introduced a much sharper and more explicit focus on Islamophobia. 21

22

23

24 25

26

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Commission on Human Rights, Summary record of the 61st meeting (29 April 1999), UN Doc E/CN.4/1999/SR.61, 3 May 1999, para. 1. Amendments to draft Resolution E/CN.4/1999/L.40 (by Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden, UK), UN Doc. E/CN.4/1999/L.90, 22 April 1999. Commission on Human Rights, Summary record of the 62nd meeting (30 April 1999), UN Doc E/CN.4/1999/SR.62, 18 June 1999, para. 9. Commission Resolution 2000/84, ‘Defamation of religions’, 26th April 2000. Commission Resolution 2001/4, ‘Combating defamation of religions as a means to promote human rights, social harmony and religious and cultural diversity’, 18 April 2001, para. 3. Commission Resolution 2001/4 was eventually adopted by 28 votes in favour, 15 against and 9 abstentions. Commission Resolution: 2002/9 of 15 April 2002 was adopted 30-15-8; 2003/4 of 14 April 2003 was adopted 32-14-7; 2004/6 of 13 April 2004 was adopted 29-16-7; 2005/3 of 12 April 2005 was adopted 31-16-5. Human Rights Council Resolution 4/9 of 30 March 2007 was adopted 24-14-9; 7/19 of 27 March 2008 was adopted 21-10-14; 10/22 of 26 March 2009 was adopted 23-11-13 and Resolution 13/16 of 25 March 2010 was adopted 20-17-8. The General Assembly Resolutions, however, were adopted by consensus, namely: 60/150 of 16 December 2005; 61/164 of 19 December 2006; 62/154 of 18 December 2007; 63/171 of 18 December 2008; 64/156 of 18 December 2009 and 65/224 of 21 December 2010.

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The final resolution (2002/9) mentioned the words ‘Islam’ or ‘Muslims’ ten times in the context of negative stereotyping, media incitement and attacks on places of worship, compared to just one reference in 2001.28

25.2.3

Freedom of Religion versus Defamation of Religions

The stage was now set for two competing visions of how to confront and eliminate religious intolerance and discrimination. Over time, these visions coalesced into two different political ‘streams’ at the UN. One, led by the EU and supported by Western states, promoted a more ‘positive’, ‘liberal’ agenda focused on strengthening the enjoyment of individual rights and freedoms, especially freedom of religion and freedom of expression. The basic worldview of this ‘Western stream’ is that the best way to reduce and eventually eliminate religious intolerance and discrimination is by strengthening the universal enjoyment of these core rights by individuals rather than by protecting religions or belief systems. In 2007, ‘the West’ took further steps in this direction when the mandate of the Special Rapporteur was substantively amended to match the earlier changed title. The Rapporteur was now called upon to focus on ‘the adoption of measures at the national, regional and international levels to ensure the promotion and protection of the right to freedom of religion or belief ’.29 Tellingly, the paragraphs setting down the new ‘more positive’ focus of the mandate were placed before the retained paragraphs on the implementation of the 1981 Declaration.30 The second competing vision, led by the OIC, sought to maintain international attention on symptoms:  religious intolerance, stereotyping and incitement – specifically in the context of Islamophobia – and to make the case that in order to confront and eliminate these phenomena, states would need to take steps beyond merely respecting core freedoms. It called for permissible restrictions to those rights, especially to freedom of expression. For the OIC, in a post–9/11 ‘war on terror’ environment, the political imperative was, and indeed remains, the fight against Islamophobia and related ‘hate speech’, especially in the West.

28

29

30

Commission Resolution 2001/4, ‘Combating defamation of religions as a means to promote human rights, social harmony and religious and cultural diversity’, 18 April 2001, para. 2. Council Resolution 6/37, ‘Elimination of all forms of intolerance and of discrimination based on religion or belief ’, 14 December 2007, para. 18(a). Ibid., para. 18(c).

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For five years after the establishment of the Human Rights Council (2006), ‘the West’ through the EU, and the OIC, continued to press ahead according to these parallel and mutually incompatible ‘streams’. The EU tabled resolutions reflecting an increasingly clear departure from the UN’s traditional emphasis on the implementation of the 1981 declaration and towards a greater emphasis on the promotion and protection of freedom of religion or belief. The OIC, meanwhile, continued to table annual resolutions on ‘defamation of religions’. Both ‘sides’ settled into a pattern of trading rhetorical blows and ‘playing the two sets of Resolutions off against each other’.31 It was, however, becoming clear that this uneasy status quo could not last. Though the ‘defamation of religions’ resolutions were voted on from 2001 onwards, the OIC had been able to maintain a healthy level of support for its texts in both the Commission and the Council. However, after the United States became a member of the Council in 2009, the OIC’s political influence began to wane, as did support for its defamation resolutions. In 2010, the OIC’s text was adopted by a margin of only three votes. It was clear that the following year it could well be defeated. During the same period (2006–2010), theoretical and legal attacks against the OIC’s approach also increased. For example, in a 2006 joint report with the Special Rapporteur on contemporary forms of racism, the Special Rapporteur on freedom of religion or belief, Asma Jahangir, expressed concern over the criminalisation of defamation of religions, which she said could be ‘counterproductive’, given that such an approach ‘may create an atmosphere of intolerance and can give rise to fear and may even provoke the chances of a backlash’.32 Echoing these concerns, in 2008 a joint statement issued by various international and regional Special Rapporteurs on freedom of expression stated that the concept of ‘defamation of religions’ does not ‘accord with international standards regarding defamation, which refer to the protection of reputation of individuals’.33

31 32

33

Interview with an OIC diplomat. Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir, and the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Doudou Diène, further to Human Rights Council decision 1/107 on incitement to racial and religious hatred and the promotion of tolerance, UN Doc. A/ HRC/2/3, 20 September 2006, para. 42. The UN Special Rapporteur on freedom of opinion and expression, the OSCE Representative on freedom of the media, the OAS Special Rapporteur on freedom of expression and the ACHPR (African Commission on Human and Peoples’ Rights) Special Rapporteur on freedom of expression and access to information.

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Restrictions on freedom of expression, they continued, ‘should never be used to protect particular institutions, or abstract notions, concepts or beliefs, including religious ones’.34

25.3 Resolution 16/18: Paths Re-Converge By the start of 2011, it had become clear to key actors in the OIC that its initiative on ‘defamation of religions’ was no longer sustainable. Effective US diplomacy made it highly likely that further resolutions would be defeated, while expert criticism had undermined the theoretical and legal underpinnings of the OIC’s approach.35 At the same time, the murder of Salman Taseer, the governor of Punjab, for his opposition to Pakistan’s blasphemy laws (January 2011), followed, soon afterwards, by the killing of the country’s Minorities Minister, Shahbaz Bhatti, created a sense among some OIC states that it was time to set aside ‘abstract arguments over, for example, whether or not religions have rights’36 in favour of a consensual approach premised not on international politics but on identifying a practical framework for combating intolerance. The contours of such a framework had already been proposed a few months earlier by the then Secretary-General of the OIC, Professor Ekmeleddin İhsanoğlu. Speaking during the 15th session of the Council (September 2010),37 he laid the ground for a rapprochement between the OIC and the West by presenting an eight-point vision for a new, consensual approach to combating religious intolerance. The fact that those eight points reflected key Western concerns suggests behind-the-scenes negotiations had already been underway during the second half of 2010. During the Council’s 16th session (March 2011), Pakistan, Turkey, the UK and the United States launched a carefully choreographed diplomatic offensive to secure support for a new resolution on ‘combatting intolerance, negative stereotyping, stigmatization, discrimination, incitement to violence and violence against persons, based on religion or belief ’. The precisely drafted text sought to reconcile the positions of the OIC and 34

35 36 37

International Mechanisms for Promoting Freedom of Expression, Joint Declaration on Defamation of Religions, and anti-terrorism and anti-extremism legislation, available at www.osce.org/fom/35639?download=true. See, e.g., UN Doc. A/HRC/2/3. Interview with former OIC diplomat. Statement of the OIC Secretary General, His Excellency Professor Ekmeleddin İhsanoğlu before the 15th Session of the Human Rights Council (16 September 2010, Palais des Nations, Geneva).

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the West and set down a clear action plan, based on the OIC SecretaryGeneral’s eight points. Negotiations on the draft did not proceed without difficulty; some Western states, especially from the EU, were unhappy that they had been excluded from the process. The text agreed upon by the quartet was considered so finely balanced that it was not opened for wider consultations. Within the OIC, a group of countries led by Egypt fought a rear-guard action to block the new approach.38 Notwithstanding these intrigues, a draft text was eventually presented to the Council by Pakistan on behalf of the OIC under agenda item 9 (racism, racial discrimination, xenophobia and related forms of intolerance, follow-up and implementation of the Durban Declaration and Programme of Action).39 On 24 March 2011 the Council adopted the draft by consensus. It was a moment the OIC Secretary-General later called a ‘triumph of multilateralism’.40 The diplomats involved in this achievement deserve credit. Their willingness to reach across the political divide and join hands in the fight against religious intolerance was as inspiring as it was significant. The resolution at last afforded the international community a chance – its best chance since the UN began considering the issue in the 1940s – to strike a decisive blow against discrimination, intolerance and hatred based on religion or belief. Would the international community be able to seize that chance?

25.4

Resolution 16/18: Expectation and Implementation

Resolution 16/18 was presented by its main backers as a balanced, focused and implementable response to one of the world’s most significant contemporary human rights challenges. This created a sense of expectation among governments, religious groups and NGOs that it would deliver real changes and improvements on the ground – a sense made even more acute by the decision of key states to establish an inter-governmental implementation mechanism, the Istanbul Process. The key questions then 38

39

40

The impasse in the OIC was only overcome when Pakistan, as coordinator, put the issue to a roll-call vote. This was the first and only time this has happened in the OIC to date. Tabling the resolution under the agenda item specifically concerned with racism and racial discrimination was a clear throwback to the days when the UN considered the issues of racial and religious discrimination jointly. The OIC’s previous resolutions on defamation had also been tabled under this agenda item, while EU’s resolutions on freedom of religion or belief had been tabled under item 3, which deals with more general thematic issues. Opening remarks by His Excellency the Secretary General during the High Level meeting on intolerance, 22 January 2013.

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are:  Have Resolution 16/18 and the Istanbul Process delivered on this expectation? Have states implemented the eight-point action plan, and have the steps they have taken made a difference on the ground? Research was carried out under the auspices of the Universal Rights Group,41 a Geneva-based think tank focused on international human rights policy, conducting an in-depth quantitative and qualitative analysis of what states have done to implement the ‘16/18 action plan’ and thus to combat intolerance, discrimination, incitement to violence and violence against persons based on religion or belief. That analysis resulted in two main conclusions. Firstly, expectations of the degree to which Resolution 16/18 can result in policy shifts in UN member states is tempered by an understanding that the primary political impetus behind Resolution 16/18 was international rather than domestic. In other words, when drafting and negotiating the resolution, states were responding, principally, to an international relations imperative rather than to on-the-ground human rights dynamics. Nevertheless and secondly, Resolution 16/18, with its in-built action plan and associated implementation mechanism, does provide a useful and, in theory, workable framework for combating religious intolerance. While it is difficult to identify a direct causal relationship between Resolution 16/18 and any concrete policy shifts at the national level, it is possible to identify some domestic improvements in line with parts of the Resolution 16/18 action plan. Whether those improvements were caused by Resolution 16/18 or whether Resolution 16/18 represents a reflection at the international level of changes that were anyway taking place at the national level in response to domestic political imperatives is a difficult question to answer (and is, in any case, perhaps irrelevant). The following two sections will explore these two conclusions in more detail.

25.5

The ‘Geneva Game’ and the Politics of Implementation

The problems of religious intolerance and incitement to religious hatred did not suddenly emerge in 2011. Part of the problem has been the highly charged and politically emotive nature of the subject, but equally important have been the very different perspectives of states as to how best to address the problem and what role the UN should play in that regard.

41

For the full report, see Combatting Global Religious Intolerance.

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As a consequence of these inter-linked dynamics, the issue of religious discrimination and intolerance has come to be as much about international politics and ideological debate as it is about finding better ways to promote and protect the rights of individual people. Indeed, in a post–Cold War, post-9/11 world in which the pre-eminence of political-ideological conflict has largely been replaced by religious-ideological conflict, the UN has become a key theatre for polemics, especially between the West and the Islamic world, about the nature of the relationship between religion and human rights. As one Western diplomat has noted, ‘16/18 is, at heart, about international – and especially Geneva – politics’.42 What changed in early 2011, as the seeds of what would become Resolution 16/18 germinated in the minds of a handful of Western and OIC diplomats, was not the gravity of the global problem of religious intolerance but rather a realisation or acceptance, on the part of those diplomats, that the politics of the ‘Geneva game’ had become all-consuming and a barrier to real-world progress. What was needed, instead, was a new, consensus-based approach in which ideological differences could be reconciled within an action-orientated policy framework. According to one diplomat involved, Resolution 16/18 ‘represented a de-escalation of international rhetoric on the issues of freedom of religion and defamation of religions’ and was ‘a signalling mechanism between the Western Group and the OIC that they were ready to work together’.43 In other words, it was a compromise. The problem, of course, is that the compromise was always an uneasy one. The different perspectives and positions of the two sides were not so much reconciled as thrown together and balanced within a ‘catch-all’ text. The broad contours of those different positions and perspectives were clearly discernible in two speeches delivered in the run-up to the adoption of Resolution 16/18. The first, delivered by the Secretary-General of the OIC at the 15th session of the Council (September 2010),44 is well known as the moment he presented his eight-point vision. However, at the same time as offering this ‘olive branch’ to the West, Professor İhsanoğlu made clear that, for the OIC, the key concern remained ‘deliberate acts meant to defame religions . . . in particular Islam’. The international community

42 43 44

Interview with a Western diplomat. Interview with a Western diplomat. Statement of the OIC Secretary General, His Excellency Professor Ekmeleddin İhsanoğlu before the 15th Session of the Human Rights Council (16 September 2010, Palais des Nations, Geneva).

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must, he continued, take concrete steps to confront ‘advocacy of … religious hatred that constitutes incitement to discrimination, hostility or violence’, such as ‘the Burn a Koran Day’. In other words, for the OIC, the key issue was still Islamophobia in the West. Moreover, in terms of the steps the international community should take, the Secretary-General highlighted, above all else, the importance of criminalising incitement. On the other hand, the ‘Western’ position was neatly summed up in a February 2011 speech by US Secretary of State Hillary Clinton, in which she rejected the more ‘conservative’ policy diagnosis and prescription offered by the OIC in favour of a more ‘liberal’ analytic focused on protecting and strengthening key freedoms such as freedom of religion and freedom of expression: ‘We believe efforts to curb the content of speech rarely succeed and often become an excuse to violate freedom of expression. Instead, as it has historically been proven time and time again, the better answer to offensive speech is more speech. People can and should speak out against intolerance and hatred’.45 Consequently, the diplomats who sat down ahead of the 16th session of the Council to agree on a new consensual approach to combating religious intolerance came to the table with markedly different negotiating briefs. The accomplishment of Resolution 16/18 lies in the fact these delegates succeeded in incorporating those positions and balancing them within a workable international policy framework. Paragraph 5 of Resolution 16/ 18, which lays down a series of actions to be taken by states ‘to foster a domestic environment of religious tolerance’, is taken almost verbatim from the OIC Secretary-General’s statement at the Council’s 15th session. For the OIC (specifically, at the time, Pakistan and Turkey), the key provisions in this ‘action plan’ are contained in paragraph 5(f), which calls on states to adopt ‘measures to criminalize incitement to imminent violence based on religion or belief ’, and paragraph 5(e), which underscores the importance of political and religious leaders ‘speaking out against intolerance, including advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence’. These key points are supported by operative paragraph 3, through which the Council ‘condemns any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence, whether it involves the use of print, audiovisual or electronic media or any other means’. 45

‘Internet Rights and Wrongs: Choices & Challenges in a Networked World’, remarks by Hillary Rodham Clinton, US Secretary of State, George Washington University (Washington, DC), 15 February 2011.

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For its part, the West (specifically, at the time, the UK and the US), could accept 5(f) because it placed a high threshold on permissible legal limitations of freedom of expression (only speech inciting imminent violence should be criminalised – in line with US constitutional law, including case law related thereto) – and 5(e) because they agreed on the importance of encouraging political and religious leaders to speak out against intolerance. But they also required the overall text to be ‘balanced’ through the inclusion of an explicit reference to the positive role of freedom of expression in combating intolerance. This became paragraph 5(h), in which the UN recognises that an ‘open, constructive and respectful debate of ideas, as well as interfaith and intercultural dialogue at the local, national and international levels, can play a positive role in combatting religious hatred, incitement and violence’. This view was repeated in operative paragraph 4 and further supplemented by preambular paragraphs 2, 3 and 4, and operative paragraph 6, which all reaffirm the importance of related freedoms.

25.5.1 From Geneva to Istanbul Recognising the importance of the achievement inherent in Resolution 16/18, on 15 July 2011, the OIC hosted a ministerial meeting in Istanbul on implementation. In the words of the US Ambassador to the Council, Eileen Donahoe, ‘this wasn’t just going to be a landmark resolution, there is also going to be concrete follow-up, and the Istanbul ministerial was a symbolic and substantive manifestation of that’.46 The meeting was co-chaired by the OIC Secretary-General and the US Secretary of State, and included foreign ministers and high-ranking officials from twenty-eight countries. At the conclusion of the meeting, the co-chairs issued a joint statement in which they called upon ‘all relevant stakeholders throughout the world to take seriously the call for action set forth in Resolution 16/18’ and ‘go beyond mere rhetoric’.47 Delegates left Istanbul’s Yıldız Palace with a clear sense that a corner had been turned. There was a workable framework for addressing religious intolerance and an established process to promote and oversee compliance with

46

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US Ambassador Eileen Donahoe, quoted in ‘A roadmap for implementing UNHRC Resolution on combating religious intolerance’ (2011) 18 OIC Journal 5. Joint Statement by the Co-Chairs of the Ministerial on Implementation of UN Human Rights Council Resolution 16/18 on Combating Intolerance, Discrimination, and Violence Based on Religion or Belief (Washington, DC), 15 July 2011.

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that framework. Unfortunately, the euphoria surrounding Resolution 16/18 and the launch of the Istanbul Process masked persistent divergences of view about the nature of the problem and how best to confront it. Resolution 16/18 had not so much reconciled those differences as accommodated them within a single UN text. As Russia later observed, Resolution 16/18 represented ‘an agreement to disagree’.48

25.5.2 The Geneva Game It is important to note that when it comes to Resolution 16/18, there are indeed only two sides: the OIC and ‘the West’. This may seem unusual when one considers that the UN is a multilateral institution. However, Resolution 16/18 has always been the jealous preserve of the OIC and the West. ‘Resolution 16/18 is’, according to one Latin American diplomat, ‘a fight between the West and the OIC. It’s about each side trying to impose their views on how to deal with intolerance onto the other’.49 This ‘Geneva game’ has been played out within the various mechanisms and processes, set down in Istanbul and elaborated thereafter, ostensibly designed to promote domestic implementation of the Resolution 16/18 action plan. As agreed by the co-chairs in Istanbul, these mechanisms or processes would be two-fold. First, there would be a ‘process of sustained and structured engagement’50 on implementation:  the Istanbul Process. To date, there have been six meetings of the Istanbul Process, one convened by the United States in Washington, DC, in December 2011, one convened by the UK and Canada in London in December 2012, one convened by the OIC secretariat at the UN in Geneva in June 2013, one convened by Qatar during the Doha International Interfaith Dialogue in March 2014, another by the OIC in Jeddah in June 2015 and the latest one hosted by Singapore in July 2016. Although during the 3rd meeting in Geneva, Chile announced its intention to host an Istanbul Process meeting in Santiago during 2014, in the end this meeting did not take place. In the run-up to the sixth meeting in Singapore in 2016, Argentina publicly expressed its interest in hosting the Process’s seventh meeting in 2017.

48

49 50

Remarks by the Russian delegation during the second working session of the 3rd Istanbul Process Meeting, Geneva, 20 June 2013. Interview with a Latin American diplomat. Statement of HE Prof. Ekmeleddin İhsanoğlu, the OIC Secretary General, at the Ministerial Meeting, held on 15 July 2011 at the IRCICA in Istanbul, Turkey.

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Second, progress on implementation would be ‘underwritten and monitored by the Human Rights Council through the available reporting mechanisms’.51 To fulfil this need, since 2011 the UN has adopted a number of resolutions requesting the Secretary-General (on two occasions)52 and the High Commissioner for Human Rights (on one occasion)53 to present reports ‘on steps taken by States to combat intolerance’ in line with 16/18.54 Thus far, the effectiveness of this reporting mechanism has been questionable. Less than 15 percent of UN member states have submitted information on implementation, while the reports themselves tend to be a superficial summary of national positions and pre-existing (i.e. irrespective of Resolution 16/18) policies. Partly in response to these weaknesses, in March 2014 the Council commissioned a further report requesting the High Commissioner to prepare, on this occasion, a ‘comprehensive follow-up report with elaborated conclusions’ on state implementation.55 The High Commissioner was also requested to collate the views of states on ‘potential follow-up measures for further improvement of the implementation of [the action] plan’.56 A further key characteristic of the ‘Geneva game’ is that, flowing from their very different starting points as to how to conceive of and deal with religious discrimination and intolerance as reflected in their different priority subparagraphs in Resolution 16/18, the OIC and the West also 51 52

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Ibid. GA Resolution 66/167, ‘Combating intolerance, negative stereotyping, stigmatization, discrimination, incitement to violence and violence against persons, based on religion or belief ’, 19 December 2011; GA Resolution 67/178, ‘Combating intolerance, negative stereotyping, stigmatization, discrimination, incitement to violence and violence against persons, based on religion or belief ’, 20 December 2012. Council Resolution 22/31, ‘Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief ’, 22 March 2013. Council Resolution 25/34, ‘Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief ’, 15 April 2014; Council Resolution 28/29, ‘Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief ’, 30 April 2015. GA Resolution 66/167, ‘Combating intolerance, negative stereotyping, stigmatization, discrimination, incitement to violence and violence against persons, based on religion or belief ’, 19 December 2011. Council Resolution 25/35, ‘Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against persons based on religion or belief ’, 28 March 2014 (emphasis added). Ibid.

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retained corresponding differences of opinion on the objectives of the ‘16/ 18 process’.57 For the OIC, while they may have, at least, set aside their resolutions on ‘defamation of religion’, their ultimate objective remains the same: to draw attention to and address Islamophobia in the West. The OIC’s decision to shelve ‘defamation of religions’ was not an abandonment of this objective but rather an acceptance that the means of achieving it was not working. As an OIC diplomat has acknowledged: ‘we do not see 16/ 18 as an abandonment of defamation. It is just that by 2010, defamation had become so divisive that to have a genuine discussion about Islamophobia, without Western diplomats saying “religions don’t have rights”, a new more consensual approach was needed’.58 For the OIC, the goal was now to promote ‘cultural understanding and sensitivities based on mutual respect’.59 In particular, the OIC wanted to have a visible space or platform to highlight, discuss and find solutions to the issue of Islamophobia in the West, in particular through strengthening legal protections against religious incitement:  ‘for us, the key is religious incitement and paragraph 5(f)’.60 For the West, however, Resolution 16/18 was never about Islamophobia alone, and it certainly was not purely about Islamophobia in the West. Indeed, to a large extent, Resolution 16/18 was about ‘putting to bed’ the entire concept of ‘defamation of religions’.61 Nor was there ever a willingness to reconsider or even debate Western liberal views on the mutually reinforcing (and sacrosanct) nature of freedom of expression and freedom of religion. For those Western states involved in the negotiation of Resolution 16/18, the agreed text was an exercise in setting down universal parameters and common actions for tackling religious intolerance at the domestic level. As one Western diplomat has noted, ‘we accepted and voted in favour of Resolution 16/18 because we were confident we were already fulfilling all the steps envisaged in the action plan’.62 The objective was not to have regular international-level debates with the OIC over each of the eight action points contained in paragraph 5. It was to have a process of dialogue involving, principally, national-level stakeholders to

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This is how it is often referred to by Pakistan. Interview with an OIC diplomat. Maha M. Akeel, ‘Free speech vs. incitement’ (2011) 18 OIC Journal 2. Interview with an OIC diplomat. Interview with a Western diplomat. Interview with a Western diplomat.

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share experience and best practice on the domestic implementation of the eight-point plan. This Western emphasis on domestic implementation was immediately in evidence at the 1st expert-level meeting of the Istanbul Process in Washington, DC. The United States chose to focus the meeting on the ‘training of government officials on religious and cultural awareness’ and effective outreach strategies, and ‘enforcing laws that prohibit discrimination on the basis of religion or belief ’.63 These themes, as well as the composition of participants in the meeting (‘practitioners from foreign government agencies’),64 were chosen to emphasise the importance of onthe-ground implementation and the enforcement of laws on freedom of religion. To OIC observers it appeared that the United States was deliberately avoiding inter-governmental discussion on religious incitement. This led the OIC Secretary-General to emphasise during the meeting that the ‘16/18 approach’ must address ‘the vital concerns of all parties’, in particular clarifying legal ‘grey areas’ such as the ‘exact nature and scope of the complementarities between freedom of opinion and expression and the prohibition of incitement . . . as stipulated in articles 19 and 20 of the [ICCPR]’.65 By the time of the one-year anniversary of Resolution 16/18 in March 2012, there was a ‘growing sense’, according to one OIC diplomat, ‘fed by U.S. rhetoric and the agenda of the Washington meeting, that the West was intent on avoiding any discussions on paragraph 5(f)’.66 To mark the anniversary, the OIC Secretary-General’s speech at the 19th session of the Council reminded the West that the OIC had made sacrifices to ‘build consensus on [this] most sensitive of international issues’ and expressed concern about a perceived lack of progress in effectively combating the ‘constitutionalization and institutionalization of Islamophobia’.67 63

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‘The Istanbul Process for Combating Intolerance and Discrimination Based on Religion or Belief ’, Implementing Human Rights Council (HRC) Resolution 16/18, December Expert Level Meeting; background note US Department of State, ‘Diplomacy in Action’, available at www.humanrights.gov. US State Department, The ‘Istanbul Process for Combating Intolerance and Discrimination Based on Religion or Belief ’, Implementing Human Rights Council (HRC) Resolution 16/ 18 December Expert Level Meeting, p. 2. H.E.  the OIC Secretary General’s Message to the Washington Meeting on the Istanbul Process, 14th December 2011. Interview with an OIC diplomat. Statement by H.E. Prof. Dr.  Ekmeleddin İhsanoğlu, Secretary General Organization of Islamic Cooperation at the High Level Segment of the 19th Session of the UN Human Rights Council, 28th February 2012.

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If Western states recognised these OIC ‘warning shots’ as such, they failed to heed them. In January 2013, the UK and Canada convened a second expert-level meeting of the Istanbul Process in London. The meeting addressed three parts of the 16/18 action plan: ‘overcoming obstacles to the equal participation of all groups in society’; ‘combatting intolerance through education’; and ‘developing collaborative networks between government and civil society’.68 To OIC participants, including the OIC Secretary-General, Egypt, Pakistan and Turkey, paragraphs 5(e) and 5(f) were again conspicuous by their absence. The Secretary-General, speaking at a UK high-level meeting on religious intolerance held shortly afterwards, warned participants of ‘an alarming increase in intolerance and discrimination against Muslims’.69 He underlined the importance of effective implementation of Resolution 16/18, without which ‘consensus would . . . be fragile’.70 He ended by highlighting the ‘mounting pressure on OIC Member States to take concrete action’, including, for example, by giving consideration to ‘an entirely new instrument’.71 If tensions between the OIC and the West were now simmering, by the time representatives met again for the 3rd meeting of the Istanbul Process (convened by the OIC secretariat in June 2013 in Geneva), they exploded into the open. As if in response to the omission of any discussion on hate speech in Washington and London, the OIC organised three panel debates, covering: speaking out against intolerance (paragraph 5(e)), adopting measures to criminalize incitement (paragraph 5(f)) and the positive role that an open, constructive and respectful debate of ideas can play in combating intolerance (paragraph 5(h)). What is more, by holding the meeting at the UN and by only sending out invitations a few days beforehand, the OIC ensured that the debate would be at inter-state level (i.e. between Genevabased diplomats rather than involving ‘on-the-ground practitioners’). During the meeting, the OIC Secretary-General and a handful of senior OIC ambassadors – many of the same people who had been involved in the crafting of Resolution 16/1872 – repeatedly made clear that the aim 68

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Announcement: Conference on freedom of religion or belief, Foreign and Commonwealth Office, available at www.gov.uk/government/news/conference-on-freedom-of-religionor-belief. Opening remarks by His Excellency the Secretary General during the High Level meeting on intolerance, 22 January 2013. Ibid. Ibid. The Panel discussion on religious incitement (paragraph 5(f)) was chaired by H.E. Mr Zamir Akram of Pakistan and one of the three panellists was Ambassador Idriss Jazairi of

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of the meeting and the Istanbul Process more broadly was to respond to the ‘alarming increase in intolerance and discrimination against Muslims’,73 in particular by identifying the threshold for the criminalisation of incitement. Muslims were repeatedly presented as the sole victims of global religious intolerance. Ambassador Idriss Jazairi, the former Permanent Representative of Algeria, stated that ‘the current victims of incitement today are indeed Muslims’,74 while the Chair of the opening session, OIC Ambassador Slimane Chikh, went further: ‘the victim is Islam’.75 The OIC also placed the blame for this rising intolerance squarely at the door of the West. Ambassador Ömür Orhun, OIC Special Envoy, identified the source of Islamophobia as being ‘a profound identity crisis, especially in Western Europe, shaped through redesigning the enemy against which the identity is built’.76 The Ambassador of Pakistan, Zamir Akram, a key architect of Resolution 16/18 and the Istanbul Process, made clear that the Istanbul Process had, to date, failed to address incitement against Muslims, and consensus was now at breaking point. He argued that freedom of expression has clear limitations and must not be abused, pointing out that ‘even the main proponents of this right [i.e. Western states] apply limitations when it’s in their interests [e.g., European laws on Holocaust denial]’.77 OIC speakers therefore called for the establishment of new soft-law instruments (e.g., a further UN declaration)78 and/or mechanisms (e.g., an observatory, an open-ended working group of experts to discuss ICCPR

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Algeria. The latter expressed regret that only three OIC members participated – Algeria, Pakistan and Indonesia. Remarks by the OIC Secretary General during the opening session of the 3rd Istanbul Process Meeting, Geneva, 19 June 2013. Remarks by Ambassador Idriss Jazairi (Former Permanent Representative of Algeria to the UN in Geneva) during the third working session of the 3rd Istanbul Process Meeting, Geneva, 20 June 2013. Remarks by OIC Ambassador Slimane Chikh during the opening session of the 3rd Istanbul Process Meeting, Geneva, 19 June 2013. Remarks by Ambassador Ömür Orhun (OIC Special envoy on combating intolerance and discrimination against Muslims) during the first working session of the 3rd Istanbul Process Meeting, Geneva, 19 June 2013. Remarks during the opening session of the 3rd Istanbul Process Meeting, Geneva, 19 June 2013. Proposed by the OIC Secretary-General, supported by Egypt, during the 3rd Istanbul Process Meeting, Geneva, 19 to 21 June 2013.

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Article 20, a 16/18 support unit in OHCHR, or a new Special Rapporteur on hate speech) to strengthen implementation and address incitement. Unsurprisingly, the meeting was characterised by ill-tempered exchanges between the OIC and key Western delegations. Sweden expressed concern that the meeting was ignoring the universality of human rights and focusing solely on Islamophobia or, as the Russian delegation saw it, ‘creating a hierarchy of phobias’.79 The US delegation, led by Ambassador Michael G. Kozak, expressed its disappointment that the discussion had returned to ‘essentially the same debate we have witnessed for years prior to 16/ 18’, with the same states and individuals ‘saying the same things’, a narrative ‘reminiscent of the Cold War: the West against the Rest, and accusations that the West is failing to adequately limit freedom of expression’. It is assumed, he noted, that getting the ‘so-called West’ to adopt stricter implementation of Article 20 of the ICCPR would ‘somehow be a magic bullet to fix religious intolerance’.80 Istanbul Process meetings since 2013 have continued in a similar pattern. Meetings hosted by OIC states or by the OIC itself (i.e. the fifth and sixth meetings in Doha and Jeddah) have tended to emphasise the issue of incitement and been used as a platform to criticise the West’s refusal to consider any limitations upon freedom of expression in the context of religious intolerance. The sixth meeting in Jeddah was particularly interesting in this regard. Although the meeting addressed different parts of the 16/18 action plan, one key session, towards the end of the meeting, was set aside to discuss paragraph 5f (incitement). During the panel, a succession of OIC-orientated panellists used their platform to criticise the West’s failure to address religious incitement and, in two cases, to rail against the alleged ‘hypocrisy’ of the Westerns states which, in many cases (e.g., Ireland, Denmark, Germany) maintain blasphemy laws on their statute books81 yet which take a very different stance at international level. One speaker even went so far as to argue that the existence of such laws in Western and OIC states, together with relevant UN resolutions 79

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Remarks by Swedish and Russian representatives during the second working session of the 3rd Istanbul Process Meeting, Geneva, 20 June 2013. In this regard, see Nazila Ghanea, ‘Phobias and “isms”: Recognition of difference or the slippery slope of particularisms?’, in Nazila Ghanea, Alan Stephens and Raphael Walden (eds.), Does God Believe in Human Rights? (The Hague: Martinus Nijhoff Publishers, 2007). Remarks by US representative during the closing session of the 3rd Istanbul Process Meeting, Geneva, 21 June 2013. See the chapters in this volume by Binderup & Lassen, Cornils and McGonagle on blasphemy laws in Denmark, Germany and Ireland, respectively.

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(e.g., on defamation of religions), suggested the existence of customary international legal norms in this area. The most recent Istanbul Process meeting, hosted by Singapore, represented a concerted attempt to bring the process back to the original ‘Western’ vision of meetings focused on ‘good-practice’ exchanges between domestic-level practitioners (e.g., government officials, religious leaders). These differences in emphasis and expectation go back to the two sides’ markedly different expectations of Resolution 16/18 and the Istanbul Process. For the West, in the words of Ambassador Kozak at the Geneva meeting, ‘the goal of the Istanbul Process is to bring together and mobilise national expertise, discuss challenges, and develop best practice . . . we need to return to having meetings focused on domestic contexts, as the purpose is domestic implementation’.82 For Western countries, there is little desire to continue discussions on Articles 19 and 20 of the ICCPR (which, in their view, should in any case be dealt with elsewhere, namely as part of the Rabat Plan of Action), and there is frustration with the OIC’s continued insistence that Islamophobia in the West is somehow of greater concern than intolerance towards religious minorities in OIC states. This view was neatly summed up by President Barack Obama in a speech to the General Assembly in September 2012:  ‘the future must not belong to those who slander the prophet of Islam. But to be credible, those who condemn that slander must also condemn the hate we see in the images of Jesus Christ that are desecrated, or the churches that are destroyed, or the Holocaust that is denied’.83 For OIC states on the other hand, the goal is to have a ‘space’ for a ‘candid and frank exchange of views’84 on ‘points of disagreement’,85 while moreover ‘it is important not to side step difficult issues but to make an effort to address them’.86 For these states, the Istanbul Process is a vital space in which international partners (they insist that any discussion should be ‘between states’87 at a political level, and not ‘a local interfaith thing’88) 82 83

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Remarks by Ambassador Michael G. Kozak (US). Remarks by the President to the UN General Assembly, United Nations Headquarters, New York, 25 September 2012. Opening remarks by His Excellency the Secretary General [of the OIC] during the High Level meeting on intolerance, London, 22 January 2013. Interview with an OIC diplomat. Ibid. Ibid. Ibid.

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can come together, away from the formalities and politics of the UN, and discuss difficult and sensitive questions – questions which, in their opinion, have never been satisfactorily answered by the international community. At their heart, those questions relate to the precise nature of the interface and interaction between religion and belief on the one hand and freedom of expression on the other. Such questions were again brought into sharp relief by the 2015 attack on the Paris offices of the satirical newspaper Charlie Hebdo. After the attack, while all governments condemned the extremist attack, this unity quickly gave way to renewed questions about the nature of freedom of expression (and the limits thereto) and its relationship with religious discrimination, incitement and intolerance. In essence, those questions boiled down to the following: is it acceptable for an individual or group to publish material that they know will be deeply hurtful and/ or provocative to adherents of a certain religion and that would serve to stigmatise and/or incite hatred against that group? Seen through a ‘16/18 lens’, the Western (especially US) position is that it is legally (if not necessarily morally) acceptable, as placing statutory limits on freedom of expression is dangerous for democracy and tends to be counterproductive (e.g., blasphemy laws are easily used to violate human rights rather than protect them), while the OIC position is that such expression is not acceptable where it is designed to denigrate a certain group and incite hatred against them. Going forward, it seems likely that the OIC will continue to push for the 16/18 process to address, as a matter of urgency, these important normative questions. It also appears likely that, following the increasing use of anti-Muslim (and in some cases anti-Semitic) rhetoric used by Western politicians, for example in the context of the ‘Brexit’ referendum and Donald Trump’s successful presidential campaign, the OIC position will win greater support at the Council and the General Assembly. Indeed, in the current context, it must be argued that effective implementation of Resolution 16/18 necessitates further work, at international and regional levels, to deepen states’ understanding of the international human rights standards that underpin it and particularly to the scope of protection that should be afforded to the right to freedom of expression and the scope of Article 20(2) of the ICCPR. The Rabat Plan of Action, drawing on the work of the Treaty Bodies and a series of expert seminars convened by the Office of the High Commissioner for Human Rights (OHCHR), provides a useful framework for understanding the

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obligation to prohibit incitement and a blueprint for its implementation in line with international human rights standards. Its significance in this regard has been recognised in recent iterations of Resolution 16/18,89 but far more work will be needed if the 16/18 framework is to remain a credible and durable policy for addressing global religious intolerance.

25.6

Domestic Implementation

While Resolution 16/18 must be understood in the context of international politics, and expectations calibrated accordingly, it is equally clear that religious intolerance remains an enormously important human rights concern, and the ‘16/18 action plan’ is the international community’s best and only90 framework explicitly designed to confront it. It is also worth recalling that Resolution 16/18 and its follow-up resolutions explicitly call on states ‘to take the following actions to foster a domestic environment of religious tolerance’ (para. 5). So have they? To answer this question, the Universal Rights Group analysed the policy steps taken by twenty-two ‘focus countries’91 to implement key parts of the 16/18 action plan, namely paragraphs 5(b), 5(e), 5(f) and 5(h).

25.6.1

Domestic Implementation: General Patterns

Before assessing the degree to which the twenty-two focus states have implemented these parts of the 16/18 action plan, it is useful to take note of four points. First, Resolution 16/18 is a resolution and therefore soft law. Expectations of what a single human rights resolution can achieve should not be taken too far. ‘It’s just a resolution’, according to one

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Council Resolution 25/34, ‘Combating intolerance, negative stereotyping and stigmatization of, and discrimination against, persons based on religion or belief ’, 28 March 2014 (adopted without a vote), operative paragraph 5. With the 1981 Declaration now largely forgotten, and the Special Procedures mandate increasingly focused on freedom of religion or belief. The twenty-two countries were selected based on two considerations. First, the level of their involvement and engagement with Resolution 16/18 and the Istanbul Process, and second, the need for a somewhat balanced regional cross-section of states, representative of different religious traditions (notwithstanding the fact that most countries with an interest in Resolution 16/18 and the issues it addresses are from just two regional/political groups: the Western Group and the Organisation of Islamic Cooperation (OIC)). The countries chosen are:  Argentina, Algeria, Canada, Chile, Egypt, Israel, Kenya, Mexico, Morocco, Nigeria, Denmark, India, Indonesia, Malaysia, France, Norway, Pakistan, Qatar, Saudi Arabia, Turkey, UK, and U.S.

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Geneva diplomat; ‘like many UN Resolutions, it has hardly any impact at all on the ground’.92 Second, no country surveyed by the authors has established, or even co-opted, a dedicated domestic process to oversee or coordinate domestic implementation of Resolution 16/18. Indeed, of the countries interviewed, only Indonesia appears to have taken domestic steps beyond the norm for a UN human rights resolution, by translating the resolution into all local languages and sending it to more than 400 different committees at national, provincial and local levels.93 Notwithstanding, a number of states did organise inter-ministry consultations to assess their compliance with Resolution 16/18 in the context of preparing for the first and second meetings of the Istanbul Process. Third, as Resolution 16/18 is, to a significant extent, a ‘diplomatic game, largely played out in Geneva’, knowledge and awareness of the resolution among domestic policy makers is extremely limited, particularly outside foreign ministries. Even among the resolution’s main sponsors, there is an admission that ‘16/18 is a foreign policy issue, led by the Foreign Ministry – other ministries don’t know about it’.94 Fourth, again mirroring the ‘Geneva game’, states have tended to ‘externalise’ the implementation of Resolution 16/18 to fit their different pre-conceptions of what the resolution is and what it is designed to achieve. For OIC states, the resolution is about combating Islamophobia in the West, and thus implementation is something to be done by Western governments and other stakeholders (e.g., the Western media). For Western states, religious intolerance occurs where governments fail to respect freedom of religion and freedom of expression, with key OIC states featuring prominently on both counts. During the negotiation of 16/18, and at the time of the launch of the Istanbul Process, there was perhaps a greater understanding that ‘implementation’ was something to be undertaken by all states on all sides. For example, during the Istanbul ministerial, Ambassador Zamir Akram of Pakistan acknowledged that ‘at the same time we are asking for protection for Muslims living in the West, we must also be prepared to give the same treatment to minorities living in Muslim countries’.95 Yet by the time of the Geneva meeting of the Istanbul Process, such introspection was

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Interview with a Western diplomat. Interview with an Asian diplomat. Interview with an OIC diplomat. ‘A Roadmap for Implementing UNHRC Resolution on Combatting Religious Intolerance’ (2011) 18 OIC Journal 5.

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conspicuous by its absence:  ‘not one country said anything about implementation at home’.96 This externalisation of the fight against religious intolerance is illustrated by an analysis of statements mentioning religious intolerance delivered by sixteen OIC and Western states97 during the second cycle of the Council’s Universal Periodic Review (UPR). Of twenty-seven comments by Western states on the issue of religious intolerance, only seven focused on the situation in fellow WEOG members, while of twenty comments by OIC states, nineteen were directed at the West. Western diplomats, in particular, appear to be losing patience with this, as they see it, ‘hypocritical situation’.98 ‘The OIC attacks the West and yet refuses any semblance of self-reflection or self-criticism’, says one. ‘Sure, we can talk about profiling and harassment at European airports. But then we must also talk about the targeting of religious minorities in Pakistan. Unfortunately, OIC countries don’t seem to see this mismatch’.99 In some of the twenty-two ‘focus countries’ assessed by the authors, there is a discernible trend to change domestic policy in line with parts of Resolution 16/18. However, it is difficult to draw, with any degree of certainty, a direct causal link between the resolution and those domestic policy shifts. Rather, Resolution 16/18 appears to be part of a complex feedback loop driven principally by developments on the ground and domestic political pressures. Those imperatives drive national policy responses, and both are then reflected in international deliberations and the international community’s consensus position on the matter (encapsulated in Resolution 16/18). This consensus position may then influence and guide further domestic change (though it is difficult to pinpoint evidence to this effect). ‘Resolution 16/18’, according to a Western civil servant, ‘was reflective of policy-making, not determinative’.100 Denmark offers a good example of this non-linear causal relationship. Over the past six years, the country has taken a number of important steps consistent with paragraph 5 of Resolution 16/18. However, as a Danish observer concedes, ‘the motivation for acting on this wasn’t 16/ 18, it was domestic politics: the former government had already launched the anti-radicalisation plan before 16/18 was adopted, but, of course, the

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Interview with a Western diplomat. The OIC and Western ‘focus countries’ selected for this policy report. Interview with a Western diplomat. Ibid. Interview with a Western civil servant.

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plan was in response to the same issues covered by – and which gave rise to – 16/18, especially the fall-out from the Mohammed cartoons’.101 Other examples include ‘16/18-consistent’ policy steps taken by Pakistan following the murders of Salman Taseer and Shahbaz Bhatti; steps taken by Norway after the mass murders committed by Anders Behring Breivik; and actions by the UK in response to the murder of Lee Rigby.102 And finally, where some level of ‘16/18-consistent’ policy change is discernible, it is generally at the level of strengthening the enforcement of existing laws rather than introducing new ones. The report of the first meeting of the Istanbul Process in Washington, DC, recognised that ‘participating countries already have in place legal prohibitions of discrimination and violence based on religion or belief . . . Given the prevalence of these legal provisions, their effective enforcement was seen as more pressing than the need to adjust extant legal frameworks’.103

25.6.2

Implementation of Paragraph 5(b): Appropriate Mechanisms

No state surveyed by the authors has established a dedicated mechanism within their government explicitly in response to the adoption of Resolution 16/18 in line with paragraph 5(b), which calls for ‘appropriate mechanisms within Governments to, inter alia, identify and address potential areas of tension between members of different religious communities, and assisting with conflict prevention and mediation’. Nevertheless, many have established national mechanisms to address religious intolerance or – giving the issue a more positive spin – to promote religious harmony. In some cases these mechanisms have been established or strengthened in reaction to the same events and concerns that gave rise to Resolution 16/18. Indonesia, for example, has an elaborate institutional architecture to deal with religious intolerance. The Ministry of Religious Affairs has a dedicated section responsible for promoting religious harmony, and the government has also created an ‘Inter-religious Communication Forum’ that brings together leaders of local government and local religious leaders

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Interview with a Danish NGO. ‘Woolwich attack: David Cameron’s full statement’, The Guardian, 23 May 2013, available at www.theguardian.com/uk/2013/may/23/woolwich-attack-david-cameron statement. Report of the United States on the First Meeting of Experts to Promote Implementation of United Nations Human Rights Council Resolution 16/18, December 2011.

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‘to identify potential conflict among different religious followers and provide conflict prevention and mediation’.104 In the United States, the challenge of identifying and addressing potential areas of tension between members of different religious communities was particularly acute in the aftermath of 9/11. The government launched a number of initiatives to combat intolerance, especially against ‘members of Muslim, Arab-American and South Asian communities’, including the formation of a ‘9/11 Backlash Taskforce’ in the Department of Justice.105 Denmark has also taken steps to establish a dedicated national mechanism to identify and address potential areas of tension in reaction to a traumatic domestic experience. In the context of the backlash against the Muhammad cartoons, the government established a task force charged with monitoring incidences of intolerance and incitement and engaging in outreach and mediations with religious leaders and communities.106 In Latin America, Argentina’s National Institute Against Discrimination, Xenophobia and Racism (INADI), the board of which includes representatives of all major religious groups, investigates cases of religious discrimination, supports victims and assists with conflict-prevention measures.107 Chile’s Oficina Nacional de Asuntos Religiosos (ONAR);108 and Mexico’s General Directorate for Religious Associations (DGAR) and National Council to Prevent Discrimination (CONAPRED) play similar roles.109 The benefit of establishing efficient national mechanisms to identify and respond to potential inter-religious flashpoints was made clear by the UK government’s handling of the murder of Lee Rigby in Woolwich in 2013, with national political leaders and religious communities effectively coordinating their efforts to promote calm and ‘change the narrative from division to tolerance’.110 104

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Report of the High Commissioner for Human Rights, Combating intolerance, negative stereotyping, stigmatization, discrimination, incitement to violence and violence against persons, based on religion or belief, UN Doc. A/HRC/25/34, 6 March 2014, para. 53. National Report Submitted in Accordance with Paragraph 15 (A) of the Annex to Human Rights Council Resolution 5/1 [Universal Periodic Review]; United States of America, UN Doc. A/HRC/WG.6/9/USA/1, 23 August 2010, para. 35. Interview with Western capital-based expert; UK presentation at 3rd meeting of the Istanbul Process. US Department of State, International Religious Freedom Report (2012). Ibid. Ibid. Interview with Western capital-based expert.

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25.6.3

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Implementation of Paragraph 5(f): Measures to Criminalise Incitement

Taken at face value, paragraph 5(f) (on adopting measures ‘to criminalise incitement to imminent violence based on religion or belief ’) is already widely implemented by states, with the High Commissioner for Human Rights reporting that ‘advocacy of incitement to hatred is for the most part criminalized and often prohibited on several grounds, including on the grounds of religion or belief ’.111 It should again be pointed out that the introduction of measures to criminalise incitement was not necessarily caused by Resolution 16/18. States already criminalised religious incitement before the adoption of Resolution 16/18, either through constitutional provisions, the penal code (e.g., Canada, Malaysia, Turkey) or through specific legislation (e.g., UK Racial and Religious Hatred Act, 2006).112 This includes the United States, which ‘contrary to what some states suggest . . . does criminalise incitement to imminent violence under the constitutional free speech standard as set down in Brandenburg vs. Ohio’.113 Notwithstanding this apparently positive picture, it is important to underscore (following the Rabat Plan of Action) that when looking at ICCPR Articles 19 and 20 in relation to the prohibition of incitement to hatred, one should address both ‘incidents which reach the threshold of Article 20’ but which ‘are not prosecuted and punished’, as well as incidents in which members of minority groups ‘are de facto persecuted, with a chilling effect on others, through the abuse of vague . . . domestic legislation, jurisprudence and policies’ (i.e. blasphemy laws).114 In other words, for many (especially Western) stakeholders the effective implementation of Resolution 16/18 also requires the repeal of domestic blasphemy laws. As this chapter has shown, a key part of the UN debate over how best to combat religious intolerance is the relationship between freedom of expression and freedom of religion or belief. At the epicentre of this debate lie the world’s ‘blasphemy laws’, which prohibit forms of expression insulting or disrespecting to a religion, the religious feelings 111

112 113 114

Report of the High Commissioner for Human Rights, UN Doc. A/HRC/25/34, para. 127. On the latter act, see Howard’s chapter in this volume. Interview with a Western capital-based expert. Rabat Plan of Action, para. 11.

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of individuals, forms of religious representation and/or religious figures or leaders. An analysis of national blasphemy laws by Human Rights First has shown that fifty-one countries (more than a quarter of all states) maintain them on their statute books.115 Thirty-seven of these countries are members of either the UN’s ‘Asia Pacific Group’ (twenty) or ‘Western European and Others Group’ (seventeen). The implementation of blasphemy laws varies wildly, however. In some countries, such laws are in place but are rarely – if ever – applied. In Europe, for example, while eleven states maintain blasphemy laws,116 prison sentences for blasphemy are very rare indeed.117 In Ireland, there has been just one prosecution for blasphemy since 1855,118 despite recent controversy over the 2009 Defamation Act.119 In other states, however, blasphemy laws are frequently (and increasingly) implemented. Pakistan, for example, is reported to have charged an estimated 1,274 individuals with blasphemy between 1986 (when the constitution was amended to criminalise blasphemy) and 2010.120 This marks a considerable increase on previous levels of prosecution, with just fourteen blasphemy cases recorded between 1860 and 1986.121 There is also considerable variation in the maximum penalties for blasphemy offences, ranging from a fine in 5 percent of cases, to imprisonment in 54 percent of cases (with sentences ranging from one month to seven years), to the death penalty in 7 percent of cases.

115

116 117

118 119

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Estimates vary, due to the varying definitions of the laws, but this analysis is based on the Human Rights First, ‘Compendium of blasphemy laws’, available at www.humanrightsfirst .org/resource/compendium-blasphemy-laws. Pew Forum data suggests the figure for 2012 was 22 percent. According to Human Rights First analysis, ibid. Brett G. Scharffs, ‘International law and the defamation of religion conundrum’ (2013) 11 The Review of Faith & International Affairs 67, indicating that the last prison sentence for blasphemy in Europe dates back to 1922. However, very recently a prison sentence was issued in the Greek Loizos case. See the chapter on Greece’s blasphemy laws by Fokas in this volume. Also, a number of times prison sentences have been imposed by courts in Europe in first instance yet have subsequently been commuted to fines by higher courts. The applicant in İ.A. v. Turkey, Application no. 42571/98, judgment of 13 September 2005, for instance, was initially sentenced to two years’ imprisonment by a Turkish lower court. US Department of State, International Religious Freedom Report (2012). What is more, the 2009 legislation was merely a legal clarification of the prohibition of blasphemy contained within the Irish constitution, which could only be removed by referendum. US Department of State, International Religious Freedom Report (2013). Ibid.

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Implementation of Paragraph 5(e): Speaking Out against Intolerance

One area in which things have undoubtedly changed in-line with Resolution 16/18 relates to the willingness of political and religious leaders to speak out against intolerance122 – largely because, unlike other parts of the action plan, states agree both on the provision’s importance and on how it should be implemented. As the United States and Pakistan delegations noted during the Geneva meeting of the Istanbul Process (2013), ‘leaders have a duty to speak out against intolerance’123 in order to set a ‘baseline from which society should operate’.124 While it is yet again unclear to what extent 16/18 has been determinative or reflective of events on the ground, since the publication of the Muhammad cartoons in Denmark in 2005, the speed and sophistication with which leaders speak out against intolerance has improved markedly. During the 3rd meeting of the Istanbul Process in Geneva (2013), the Secretary-General of the OIC acknowledged this improvement, noting ‘a tremendous change in the position of the two sides [on matters covered by paragraph 5(f)] since 16/18 was adopted’.125 To illustrate this, he compared the muted reaction to the ‘uncivilised [Jyllands-Posten] cartoons – a weak joint [EU-UN-OIC] declaration which satisfied no one’ with the ‘more robust response to the 2011 Innocence of Muslims film’ – a response that had, equally importantly, been initiated ‘in Brussels, not Jeddah’.126 The February 2006 EU-UN-OIC statement had merely said the international community shared ‘the anguish’ of the Muslim world ‘at the publication of these offensive caricatures’ and noted that ‘freedom of the press entails responsibility and discretion’.127 Faced with a similar situation six years later (and a year and a half after the adoption of Resolution 16/18), a joint statement by the EU, OIC, Arab League and African Union took a much stronger line:

122

123 124 125

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On the promotion of this type of counter-speech, see also the chapter by Scharffs in this volume. Statement by US delegation during 3rd meeting of the Istanbul Process, Geneva 2014. Statement by Pakistan delegation during 3rd meeting of the Istanbul Process, Geneva. Statement by Secretary-General of the OIC during 3rd meeting of the Istanbul Process, Geneva 2014. Ibid. Press Release:  ‘Joint UN, European Union, Islamic Conference Statement shares “anguish” of Muslim World at Mohammed Caricatures, but condemns violent response’, 7 February 2006.

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marc limon, nazila ghanea & hilary power We are united in our belief in the fundamental importance of religious freedom and tolerance. We condemn any advocacy of religious hatred that constitutes incitement to hostility and violence. While fully recognizing freedom of expression, we believe in the importance of respecting all prophets, regardless of which religion they belong to…We condemn any message of hatred and intolerance … We reiterate our strong commitment to take further measures and to work for an international consensus on tolerance and full respect of religion, including on the basis of UN Human Rights Council Resolution 16/18.128

25.6.5

Implementation of Paragraph 5(h): Promoting Debate

Paragraph 5(h), on the promotion of an ‘open, constructive, and respectful debate of ideas, as well as interfaith and intercultural dialogue at the local, national and international levels’, should be read at two levels. First, it should be read as an encouragement to states to promote interfaith and intercultural dialogue. Here, reference to the High Commissioner’s report on the implementation of Resolution 16/18 and debates during the five Istanbul Process meetings held to date show that states have taken a wide range of steps. The US Office of Faith-Based Community Initiatives,129 the UK Inter-Faith Network,130 Denmark’s ‘Your Faith – My Faith’ campaign, the Inter-faith Bridging programme in British Columbia (Canada),131 Argentina’s monthly religious freedom forum,132 Mexico’s network of Interfaith Councils,133 Indonesia’s domestic and bilateral interfaith dialogues, Pakistan’s National Conference on Interfaith Harmony and the Islamabad Declaration,134 the King Abdullah Bin Abdulaziz International Centre for Inter-religious and Inter-cultural Dialogue in Vienna (established in 2011) and the annual Doha Conference for Interfaith Dialogue in Qatar135 are all indicative of ‘more numerous, more robust and more confident’136 interfaith dialogues taking place across many of the focus countries analysed for this study. 128

129 130 131 132 133 134 135 136

Joint statement on Peace and Tolerance by EU High Representative, OIC Secretary General, Arab League Secretary General, and AU Commissioner for Peace and Security, 20 September 2012. Report of the High Commissioner for Human Rights, UN Doc. A/HRC/25/34, para. 125. See www.interfaith.org.uk. See www.embracebc.ca/embracebc/funding/bridging/index.page. US Department of State, International Religious Freedom Report (2012). Ibid. Report of the High Commissioner for Human Rights, UN Doc. A/HRC/25/34, para. 71. See www.dicid.org/english/10th_conference.php. Interview with a Western diplomat.

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Secondly, paragraph 5(h) – in conjunction with operative paragraphs 4 and 6 – is also a call for states to promote and protect freedom of religion and freedom of expression. In the absence of the effective enjoyment of these rights, it is clear that ‘interfaith and intercultural dialogues’ risk being nothing more than public relations exercises that paper over deeper issues within and across societies.

25.7 Conclusions The fight against religious discrimination and intolerance has been a top-level priority for the international community since the very foundation of the UN. When ECOSOC set down the terms of reference for the Commission on Human Rights in early 1946, it identified the ‘prevention of discrimination on grounds of race, sex, language or religion’ and ‘the protection of minorities’ as two of its four areas of focus. Taking up this mandate, one year later the Commission created the Sub-Commission on the ‘Prevention of Discrimination and Protection of Minorities’ as a focal point for driving international progress. Since that time, relevant organs of the UN have repeatedly reasserted the fundamental importance of effectively combating religious discrimination and intolerance. Unfortunately, as observers have regularly noted, the importance of the issue is matched by the ‘difficulties [inherent in] the subject-matter’.137 The consequences of these difficulties and associated political and religious sensitivities are evident in the slow – even stunted – evolution of UN action on religious intolerance when compared to the organisation’s relatively robust response to racial discrimination. To offer but one example of this dichotomy, after the GA decided to create instruments on racism and religious discrimination in 1962, states needed only three years to negotiate and adopt a (soft-law) declaration and a (hard-law) convention on the former, while it took nineteen years of often arduous negotiation to adopt even a Declaration on the latter – a Declaration which, today, is largely forgotten. The difficulties inherent in codifying matters of religion or belief have been amplified by deep and persistent political differences among and between states. Prior to 1990, the epicentre of political friction sat at the junction of the Western and Communist blocs. Since then,

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Commission on Human Rights, Report of the Eighteenth Session (19 March to 14 April 1962), UN Doc. E/CN.4/832/Rev.1, para. 108.

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politico-ideological tension has been increasingly replaced by politicoreligious divergence – especially in the post-9/11 world. Against this unpromising background, the scale of the achievement inherent in Resolution 16/18 becomes clear. The resolution’s in-built action plan, together with the Istanbul Process, offers a balanced and – in theory – workable normative framework for a more effective international response to religious discrimination and intolerance. The long and difficult history of the issue of human rights and religion at the UN should act as a warning to states to avoid further intergovernmental negotiation over the broad contours of that normative framework and instead focus on cooperating to promote compliance at a national level. That, after all, was the goal of the authors of Resolution 16/18: to set aside old normative disputes in favour of practical action and progress. Yet today, as the international community looks ahead to the seventh anniversary of the resolution’s adoption, it is with a sense of déjà vu – the return of old arguments and grievances – and a related feeling that Resolution 16/18 and the Istanbul Process may have reached the end of the line. The core cause of these difficulties is a deep divergence of views on the question of implementation and, related to this point, about the objectives and nature of the Istanbul Process. The six meetings of the process held to date have revealed, in stark terms, the stark differences between the two sides – differences that the compromises contained in Resolution 16/18 have not been able to cover over. The fact is, no state is totally committed to all aspects of the resolution, and each ‘side’ has externalised the concept of ‘implementation’ to be something that must be done by the other. Secondly, within the OIC, states want to limit freedom of expression for different reasons and thus have very different views on the relative merits of retaining the 16/18 approach or, conversely, of returning to the earlier initiative on ‘defamation of religions’. Such intra-group differences are also present across the West, with some European states publicly uneasy about the very high threshold used by the United States to judge incitement. In short, the West and the OIC may agree that the 16/18 framework is not being implemented, but they disagree between each other and amongst themselves over why that is and who is to blame. This difference of perspective mainly goes back to the two sides’ markedly different expectations of Resolution 16/18 and the Istanbul Process. For the West, the goal is to take the normative base provided by Resolution 16/18 – especially the call for states to improve respect for freedom of religion and freedom of expression – and implement it at national level: to ‘mobilise national expertise, discuss challenges, and develop best practice … as

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the purpose is domestic implementation’.138 For OIC states, however, the agreement encapsulated in Resolution 16/18 was the starting point for what they believed would be an on-going process of intergovernmental dialogue, especially on the issue of incitement. Flowing from this point, the goal of the Istanbul Process is to have a ‘space’ for a ‘candid and frank exchange of views’139 on ‘points of disagreement’.140 If the 16/18 process is to survive, states – led by the original quartet of Council delegations – will need to come together to understand and acknowledge these differences and find ways to accommodate them. A useful starting point would be to dismantle the false divide that pits a Western-led initiative on freedom of religion against an OIC–led initiative on religious intolerance. Steps can also be taken to strengthen the Istanbul Process so that it retains its emphasis on domestic implementation but also offers a ‘space’ for OIC countries to express and discuss their concerns about incitement. And government representatives must reverse the trend of ‘externalising’ the implementation of the 16/18 action plan, focusing instead on strengthening compliance at home. If states choose to take these and related steps, then the 16/18 process can deliver real change. Section 25.6 of this chapter identified a widerange of domestic best practices and policy reforms taken in line with (though not necessarily as a direct result of) Resolution 16/18. To offer but one example, there has been a clear and measurable improvement in both the willingness of political leaders to speak out against acts of intolerance and the speed and sophistication with which they do so. The human rights case for states to renew and re-energise the 16/18 process and build on these, albeit modest, on-the-ground successes is overwhelming. Effective UN action to arrest and reverse patterns of increasing discrimination and intolerance against people on grounds of their religion or belief – through the effective implementation of Resolution 16/ 18 and through the complementary work of relevant human rights mechanisms – is urgently needed, especially in the globalised and interconnected world in which we live. If the 16/18 process is to be re-energised and to continue to hold, it is important for states to agree on a series of future Istanbul Process

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Remarks by Ambassador Michael G. Kozak (US) at the Third Istanbul Process meeting (Geneva, June 2014). Opening remarks by His Excellency the Secretary General [of the OIC] during the High Level meeting on intolerance, London, 22 January 2013. Interview with an OIC diplomat.

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meetings – a series that would allow all parts of the 16/18 action plan to be addressed. The meetings should remain expert-level, attended by ‘real-world experts’,141 including ‘capital-based experts from different ministries’,142 religious leaders, NGOs, national human rights institutions (NHRIs), journalists and academics. They should be focused on domestic implementation, though that does not mean that they should shy away from political debate on the more sensitive or contentious parts of the action plan (for example, through high-level opening plenaries). The format of Istanbul Process meetings should also be reformed so that for each meeting a geographically balanced group of states and civil society leaders are invited to present information about their national experiences, challenges faced and future plans.143 These case studies would form the basis of subsequent discussion and recommendation. As an OIC diplomat suggests, ‘Istanbul Process meetings should be more UPR-like, with states coming to present what they have done to implement 16/18 and then entering into a dialogue with other states’.144 Finally, states should continue to consider whether, in parallel with Resolution 16/18 and the Istanbul Process, thought should not once again be given (in line with the arguments of some OIC States such as Pakistan) to considering the merits of an international convention on combatting religious intolerance – the UN’s ‘forgotten discrimination’.

141

142 143

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Remarks by Professor Evelyn Aswad during the second working session of the 3rd Istanbul Process Meeting, Geneva, 20 June 2013. Interview with an OIC diplomat. An approach advocated, at the 2013 Geneva meeting, by the OIC Secretary General, the EU delegation and Professor Evelyn Aswad. Interview with an OIC diplomat.

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26 Blasphemy, Religious Rights and Harassment A Workplace Study

Andrew Hambler

26.1

Introduction

In Muir v.  Penisarwaun Care Home Ltd,1 a manager at a care home ‘regularly’ used what the tribunal referred to, with some understatement, as ‘religiously oriented swear words’ in the course of staff meetings. Such swear words included the terminology ‘Oh my f-ing God’ and ‘Jesus f-ing Christ’ and were, in the language of harassment law, ‘offensive’ at the very least to the claimant, a registered nurse working at the care home and a practising Christian. The issue which this chapter examines is the extent to which being subjected to conduct, inter alia, of the kind described here, invoking or mocking what is considered to be sacred (which some would term ‘blasphemy’ or, in this case, perhaps ‘blasphemous profanity’),2 can cause grave offence to the religious actor in the workplace, even to the point of undermining his or her freedom of religion. It also considers how such conduct is regulated by law, using the United Kingdom (and specifically the legal jurisdiction of England and Wales) as an example, and some limitations are noted. The issues of offence and religious freedom and the interaction between them are first examined briefly in general terms (Section 26.2) before being applied to the workplace (Section 26.3). The workplace context is

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(2014) ET Case No. 1600651/13. As Nash notes, ‘blasphemy’, at least as an offence, has been historically difficult to conceptualise: David Nash, Blasphemy in Modern Britain: 1789 to the Present (Aldershot: Ashgate, 1999), p.  1. However, for the purposes of this discussion, a broad definition is arguably most helpful, such as that provided by Feinberg:  ‘in its widest sense, any irreverence shown toward anything that is sacred’. See Joel Feinberg, The Moral Limits of the Criminal Law: Volume 2: Offense to Others (Oxford: Oxford University Press, 1985), p. 192.

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important because it represents a particular forum or ‘specific situation’ in which the freedom of employees to avoid offensive conduct is often severely curtailed by the very nature of working with co-workers and customers and of the design of the workplace itself.3 To avoid some of the ill effects of this on the well-being and dignity of individuals in the workplace, legal prohibitions on ‘harassment’ at work have been enacted in a number of legal jurisdictions, usually as a sub-species of more general discrimination law. Using the United Kingdom workplace as an example, the extent to which legislation designed to combat harassment might act to regulate blasphemy or profanity is explored. Blasphemy is potentially a very broad concept: it is not the intention of this chapter to explore all of its potential dimensions nor all their possible manifestation at work; rather, the focus will be on some specific types of conduct by other actors in the workplace which are likely to cause gross offence to some religious employees due to the way in which that which they hold sacred is profaned or held up to ridicule. The discussion will consider three types of such conduct, drawn either from directly relevant claims brought to employment tribunals or analogous claims brought for different reasons but with a clear potential application to the subject at hand. They are: (i) profane language invoking the sacred (Section 26.4), (ii) offensive imagery or slogans (Section 26.5) and (iii) blasphemy and the written word (Section 26.6). In relation to each of these three categories, an analysis will be presented, drawing on any relevant case law where applicable, and some overall conclusions drawn.

26.2 Blasphemy and Offence Various arguments have been advanced over the centuries as a basis for suppressing (and punishing) blasphemy.4 In modern liberal societies, it may be suggested the only such argument to continue to hold real force is the desirability of avoiding the gross offence which many religious 3

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The term ‘specific situation’ was employed in European Court of Human Rights, Kalac v. Turkey, Application no. 44774/98, judgment of 29 June 2004, para. 27; see also the discussion in Mark Hill, Russell Sandberg and Norman Doe, Religion and Law in the United Kingdom (The Hague: Wolters Kluwer, 2011). A significant example being the perceived damage to the fabric of (a religiously homogenous society) which would result from the ridicule of the state religion; see, for example, in its historic form and with reference to England, Taylor’s case (1676) 1 Vent 293. This rationale for a blasphemy law also resurfaced much more recently in the UK in Green v. The City of Westminster Magistrates’ Court [2007] EWHC (Admin) 2785.

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adherents may feel when exposed to blasphemy and also the possible consequences to other people if that offence translates into undesirable behaviours (such as violent reactions or threats). However, offence per se is not necessarily the most robust basis for imposing limitations on freedom of expression. For example, under the European Convention of Human Rights (ECHR), there is no actual Convention right not to be offended in the sense that there is no immunity from criticism or hostility on the matter of religion.5 There are of course other rights and freedoms in play, including free speech (or, in Convention terms, ‘freedom of expression’).6 Lawmakers clearly need to balance rights (or freedoms) in order to determine the extent to which blasphemy is an offence (criminal or otherwise).7 That blasphemy can cause grave offence is both self-evident and unsurprising. The extent of the offence is likely to vary both in terms of the nature of the blasphemy or other act of profanity and the sensibilities of the religious adherent who experiences it. In its most extreme form, it is possible that blasphemy may even undermine religious freedom itself. Drawing again on the example of the ECHR, this can be seen with reference to its interpretation by the European Court of Human Rights (ECtHR).8 Under the ECHR, freedom of religion is guaranteed under Article 9, the first part of which reads: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in worship, teaching, practice or observance.

In Otto-Preminger-Institut v. Austria, an unsuccessful application under Article 10 (freedom of expression) by a film company prevented under Austrian law from distributing a film considered blasphemous, the Court identified that freedom of religion might be fundamentally undermined by blasphemy. It noted that ‘respect for the religious feelings of believers 5

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European Court of Human Rights, Otto-Preminger-Institut v.  Austria, Application no. 13470/87, judgment of 20 September 1994, para. 47. Article 10. The European Court of Human Rights has repeatedly affirmed that such a decision lies within the ‘margin of appreciation’ of member states; see, for example, European Court of Human Rights, Gay News Ltd and Lemon v. United Kingdom, Application no. 8710/79, judgment of 7 May 1982; and European Court of Human Rights, Wingrove v. the United Kingdom, Application no. 17419/90, judgment of 25 November 1996. For an overview and critical assessment the blasphemy cases before the ECtHR, see the chapters by Lewis and Temperman in this volume.

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as guaranteed in Article 9 can legitimately be thought to have been violated by provocative portrayals of objects of religious veneration’.9 In other words, blasphemy may undermine religious ‘feelings’ which the court considered to be part and parcel of rights under Article 9.  However, it also went somewhat further: the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines. Indeed, in extreme cases the effect of particular methods of opposing or denying religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them.10

Whilst this is a bold statement identifying that blasphemy may infringe religious rights beyond injury to feelings, precisely how this might be is not clearly articulated as, in day-to-day practical terms, freedom of religion is not obviously curtailed (no one is restricted from espousing a belief or going to church, for example). Indeed the Court, when confronted by applications under Article 9 itself, has not necessarily found such rights to be infringed. This is clear, inter alia, from its ruling in Choudhury v. United Kingdom,11 in which it found no interference in the religious freedom of the applicant who challenged the United Kingdom government’s refusal to prosecute Salman Rushdie for blasphemy following the publication of The Satanic Verses.12 However, it may be suggested that there are perhaps two levels on which the infringement of religious rights (beyond injury to feelings), by exposure to blasphemy, might occur. The first would be that the mockery or ridicule of a religious belief might have the effect on the religious actor of presenting a barrier to him or her articulating religious convictions for fear that the same ridicule would be directed at him or her personally. In this sense such blasphemy might be said to create a chilling effect on the manifestation of religious expression. The second level is perhaps more fundamental. It is where exposure to blasphemy unsettles the religious individual in a fundamental way such that he or she is unable to be at ease, thoughts dominated by the ridicule, mockery or gratuitous insult to 9 10 11 12

Otto-Preminger-Institut v. Austria, para. 47. Ibid. European Court of Human Rights, Application no. 17439/90, judgment of 5 March 1991. This would have required the domestic courts to significantly extend the definition of blasphemy under the common law, which applied only to Christianity in its established form.

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that which he or she holds most dear. One effect of this, amongst others, may be that his or her sense of self-worth, and thus individual dignity, is undermined in a significant way.13 In extreme cases, it might be suggested that his or her entire worldview, indeed mental equilibrium, has been set out of order. Such a mental state or something like it was described by the conservative Christian campaigner Mary Whitehouse when first reading the poem, ‘The Love That Dares to Speak Its Name’:14 [The poem] was almost overwhelming in its immediate impact. … I felt quite simply deeply ashamed that Christ could be treated in this way. It seemed to me like a kind of re-crucifixion but with twentieth century weapons. I experienced out of love for him a great longing to make some kind of reparation.15

Whitehouse went on to describe that this feeling did not leave her for the years which followed, up to and including the successful private prosecution for blasphemy under English common law which she launched.16 Whitehouse was a controversial figure and, although many people may not have agreed with her, few would doubt the authenticity of her religious convictions and the distressing effect which what she perceived to be blasphemy had upon her.17 By extension, this is likely to be true of others with deeply held religious convictions. Of course, the proposition that blasphemy either undermines religious freedom or offends religious feelings does not mean that this is the only imperative to consider. As may be observed from the Otto-Preminger case, there are other rights in play, most significantly the right to freedom of expression (Article 10), which includes the ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’. This is, however, a qualified 13

14

15

16

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His or her dignity as a member of a religious community might also be undermined at a ‘group’ level. For a nuanced discussion of dignity as a legal concept, see David Feldman, ‘Human dignity as a legal value: Parts I and II’ (1999) Winter Public Law 682–702 and (2000) Spring Public Law 61–71. The poem was written by James Kirkup, and describes, amongst other things, the performance of homosexual acts on the body of Jesus Christ immediately after his crucifixion. Mary Whitehouse, Quite Contrary:  An Autobiography (London:  Sidgwick and Jackson, 1993), p. 47. Whitehouse v. Gay News Ltd [1979] AC 617, HL. The laws of blasphemy and blasphemous libel were abolished under the Criminal Justice and Immigration Act 2008, s. 79(1); for an analysis and discussion, see the chapters by Hill/Sandberg (section 4.3.2), Howard (sections 23.3–23.4) and Hare (section 22.7) in this volume. See also Russell Sandberg and Norman Doe, ‘The strange death of blasphemy’ (2008) 71 Modern Law Review 971–86. See, for example, commentary in Nash, Blasphemy in Modern Britain, pp. 249–50, 256.

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right (like Article 9 itself) which is subject to restriction, inter alia, when the ‘reputation or rights of others’ or ‘the protection of health or morals’ is concerned.18 As the Court itself has noted, the exercise of this right therefore involves ‘a duty to avoid expressions that are gratuitously offensive to others and profane’.19 It is certainly arguable that where the sole purpose of blaspheming is to offend others, then this would be an irresponsible exercise of freedom of expression and more deserving of restriction.20 Equally, even when the motive of the blasphemer is not necessarily malicious, it may be argued that he or she is acting unreasonably if others are unnecessarily exposed to blasphemy in situations in which there were alternative avenues of expression available which would not have caused the same offence.21 This consideration clearly weighed heavily in the reasoning of the Court in Otto-Preminger, which noted that, as the film and its blasphemous content had been advertised publicly, it could not be suggested that the blasphemy was not in the public domain and offence unlikely to be caused.22 This point is also crucial to Joel Feinberg’s more general analysis of offence – when individuals have only ‘bare knowledge’ that something they find offensive may be taking place in private, then it is hard to justify any restrictions on the offensive activity.23 Presumably, had the distribution of the film been more discreet (and with private showings to interested parties only), then restrictions on freedom of expression would have been more difficult to justify. This is an important principle to consider in the context of the workplace, to which the discussion now turns.

26.3

The Workplace

The workplace is an important forum. Many people spend the majority of their waking hours at work, and it is generally accepted that their human rights follow them into their places of work. Thus, drawing on the United Kingdom as an example, employees would reasonably expect their rights to freedom of religion (Article 9) and freedom of expression (Article 10)

18 19

20 21 22 23

Article 10(2). European Court of Human Rights, İ.A. v. Turkey, Application no. 42571/98, 13 September 2005, para. 24. See Feinberg, Offense to Others, p. 44. Ibid. Otto-Preminger-Institut, para. 54. Feinberg, Offense to Others, p. 69.

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to be exercisable at work.24 Of course, if these rights are qualified in the public square, then it is to be expected that they would be considerably more qualified in the workplace itself. This is because it is much more difficult for ‘unwilling listeners’ (or indeed viewers or readers) to avoid the offensive conduct of those to whom they are required to be in close proximity and where this proximity is not out of choice; this is often referred to as ‘the captive audience problem’ and has emerged as a concept from US First Amendment jurisprudence.25 Thus, it is arguably necessary, or certainly desirable, for regulation to intervene to protect employees from the ill effects of being a captive audience, to cater for those (possibly rare) circumstances in which a voluntary code of civility amongst co-workers is an insufficient guarantee.26 This regulation is likely, inter alia, to restrict freedom of expression (including blasphemy) and, indeed, the (unreasonable) manifestation of religion itself.27 The captive audience problem is not solely bound up with the employment situation.28 The focus of this discussion, however, will be on the workplace, as it has unique features as

24

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Although, until the judgment of the ECtHR in European Court of Human Rights, Eweida and Others v.  United Kingdom, Application nos. 48420/10, 59842/10, 51671/10 and 36516/10, judgment of 15 January 2013, it was often argued that Article 9 rights were not exercisable in the workplace, as the religious employee had the right to resign instead to protect his or her rights in this area (see, for example, the decision in European Court of Human Rights, Ahmad v. United Kingdom, Application no. 8160/78, judgment of 12 March 1981). This problem was originally identified by the US Supreme Court in judgments concerning First Amendment rights and their limitations, such as Kovacs v. Cooper 366 US 77 (1949). For a useful discussion, see Marcy Strauss, ‘Redefining the captive audience doctrine’ (1991) 19 Hastings Constitutional Law Quarterly 85–121. Although there are dissenting voices on the extent to which the captive audience principle should be permitted to fetter freedom of expression; see, for example, Eugene Volokh, ‘Freedom of speech and workplace harassment’ (1992) 39 UCLA Law Review 1791–872. As, recently, in the UK workplace case of Wasteney v. East London NHS Foundation Trust (2016) UKEAT 0157/15/LA, an unsuccessful challenge by a Christian employee to a decision to discipline her for apparently unwelcome proselytism of a Muslim colleague – where to draw the line in such cases is of course controversial. Prisons are one amongst many examples; see an indirectly relevant case (for the purposes of this discussion) involving objections by a Hare Krishna prisoner to exposure to the offensive language of other prisoners whilst attempting to pray and meditate: European Court of Human Rights, Gatis Kovalkovs v. Latvia, Application no. 35021/05, judgment of 31 January 2012. See also Jeroen Temperman, ‘Freedom of religion or belief in prison: A critical analysis of the European Court of Human Rights’ jurisprudence’, Oxford Journal of Law and Religion (2017) 6 Oxford Journal of Law and Religion 48–92 for an analysis of this and other relevant prison cases.

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an environment which warrants a specific treatment, albeit that there may also be wider implications for other spheres, education in particular.29 In the UK workplace, Article 9 rights are primarily guaranteed, in qualified form, through discrimination law (which also serves in a sense as a mechanism for curtailing freedom of expression of the kind envisaged under Article 10).30 Discrimination law has a wide coverage, extending protection from various kinds of detriment (or ‘prohibited conduct’) to those who share particular ‘protected characteristics’.31 Protections for employees and other workers because of their religion and belief came into effect in 200332 and were consolidated into the Equality Act 2010.33 Of the various definitions of prohibited conduct (which, in broad terms, apply across the protected characteristics),34 the definition of harassment is likely to be most applicable to the regulation of blasphemy at work. Harassment is defined as follows: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.35

In Richmond Pharmacology v. Dhaliwal,36 an appeal following a racial harassment claim, the Employment Appeals Tribunal (EAT) provided a clear aid to the interpretation of the various legs of the definition of harassment: 29

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32 33 34

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In England and Wales, the protections of discrimination law extend to educational institutions (Equality Act 2010 Part 6), so the discussion in this section of the potential role of harassment to regulate blasphemy is highly relevant to that context also. The Human Rights Act 1998 states that ‘[s]o far as it is possible to do so, primary legislation [such as the Equality Act] and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’ (s. 3(1)). Of which there are officially eight (including religion and belief); see Equality Act 2010, s. 4 (nine if pregnancy and maternity are also considered, ss. 17–18). Employment Equality (Religion and Belief) Regulations 2003 SI no. 1660. Equality Act 2010, s. 10. There are a few exceptions and qualifications; for example, statutory protection from harassment does not extend directly to marriage or pregnancy. Equality Act 2010, s. 26(1). (2009) UKEAT 0458/08/1202, [2009] ICR 724, [2009] IRLR 336. Although the analysis in this judgment refers to the a slightly different wording of the definition predating the Equality Act 2010, both it and the analysis in Grant v. HM Land Registry [2011] EWCA Civ 769, [2011] IRLR 748 were endorsed and applied by Langstaff, J., in Betsi Cadwaladr University Health Board v. Hughes and others (2014) UKEAT 0179/13/JOJ.

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As a matter of formal analysis, it is not difficult to break down the necessary elements of liability under s. 3A. They can be expressed as threefold: (1) The unwanted conduct. Did the respondent engage in unwanted conduct? (2) The purpose or effect of that conduct. Did the conduct in question either: (a) have the purpose or (b) have the effect of either (i)  violating the claimant’s dignity or (ii) creating an adverse environment for her? (We will refer to (i) and (ii) as ‘the proscribed consequences’.) (3) The grounds for the conduct. Was that conduct on the grounds of the claimant’s race (or ethnic or national origins)?37

In other words, to establish harassment it is necessary to work through various stages of analysis. The first of these is to establish whether ‘unwanted conduct’ has taken place, which will be largely a question of fact for the tribunal to determine, and this may involve some early consideration of effect (i.e. there may be an overlap with the second stage).38 The second stage is to establish whether the unwanted conduct was either deliberately carried out (had ‘the purpose’) or, regardless of the possibly benign motive of the alleged harasser, nevertheless had ‘the effect’ of either violating an individual’s dignity or creating an adverse environment for him or her. Important considerations when determining the effect of the unwanted conduct are: (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.39

Although, subject to a basic threshold of reasonableness, individual perception is therefore crucial to this leg of the definition of harassment, nevertheless, tribunals have been wary of the potential effects of this on the number and type of claims and have sought to impose boundaries. For example, in a succession of judgments, both the Court of Appeal and the EAT have emphasised that the precise words used in the definition

37 38 39

Ibid., para. 10 (Underhill, J. [‘either’/‘or’ underlined in the original]). A point made by Underhill J., ibid., para. 11. Equality Act, s. 26(4).

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of harassment (‘violating dignity’ and ‘intimidating, hostile, degrading, humiliating, offensive’) are significant and are to be interpreted narrowly:  ‘[t]ribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment’.40 The third stage is to establish whether the putative harassment is connected to a protected characteristic. Under the pre-2010 definition of harassment (considered in Richmond Pharmacology), it was necessary to show that the harassment was on the grounds of the claimant’s own protected characteristic. This aspect is no longer necessary.41 Although harassment as defined in this section is not intended to provide a remedy for blasphemy at work per se, it is nevertheless the most obvious vehicle for an employee who wishes to find redress when exposed to blasphemy, given that blasphemy, prima facie, fulfils the different limbs of harassment as set out in Richmond Pharmacology: it is unwanted; it has the potential effect (and perhaps sometimes the purpose) possibly of violating an individual’s dignity and certainly of creating an adverse environment (if sustained); and, it may be assumed, this is based on the protected characteristic of religion and belief. However, it has also been noted that within the doctrine of harassment there remains the possibility that an individual’s perception of the effect of unwanted conduct may be unreasonable and also that the bar for demonstrating an adverse environment or the violation of dignity has been set high in recent judgments. It may sometimes be less problematic to demonstrate that an offensive or otherwise adverse environment has been created than that an individual’s dignity has been violated, and so, in harassment claims involving ‘blasphemy’, it is perhaps more likely that the focus may be on demonstrating the former. However, it should also be noted that an individual’s dignity might be violated by experiencing blasphemy, given its potential effect on individual feelings of worth and indeed mental well-being, and this also could be contended before an employment tribunal.42 40

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Grant v.  HM Land Registry, para. 47 (Elias, L.J.). See also:  Richmond Pharmacology v. Dhaliwal, para. 22; and Betsi Cadwaladr University Health Board v. Hughes and others, para. 12. See Equality Act 2010, s 26(1). The significance of this change will be further explored later in the discussion. See discussion at Section 26.2. In practice, the two effects (on environment and individual dignity) may significantly overlap; see Richmond Pharmacology v. Dhaliwal, para. 11 (Underhill J.).

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With these points in mind, the discussion will now turn to three possible examples of blasphemy at work and the extent to which the conduct in these examples might constitute actionable harassment under the Equality Act.

26.4 Profane Language Invoking the Sacred There have been two reported cases involving profane language being employed in the workplace in the context of religious harassment claims brought by Christian employees. In Heafield v.  Times Newspapers,43 a member of the editorial staff at the Times newspaper brought a claim for harassment on the grounds of religion and belief against an editor who had twice used the expression, ‘Can anyone tell me what’s happening to the f-ing pope?’ in reference to a newspaper story and in the hearing of the claimant, a Roman Catholic.44 His claim for harassment was in relation to the language to which he had been exposed and also the perceived failure by the employer to take seriously his initial complaint.45 An employment tribunal dismissed his claim, and his appeal to the EAT was rejected. The reasoning of the EAT is significant. The first instance tribunal found that the editor’s reference to the ‘fing pope’ did indeed amount to unwanted conduct for Heafield, and the EAT agreed.46 However, the tribunal found that hearing this had neither the purpose nor the effect of violating Heafield’s dignity or of creating an adverse environment for him. In terms of the purpose of what was said, it found that the editor was unaware that the claimant was a Roman Catholic and that he had used bad language only because he was irritated and under time pressure. As to effect, the tribunal found that Heafield did feel his dignity had been violated or that an adverse environment had been created but that this was not a reasonable reaction. It is significant that the EAT, supporting the employment tribunal, agreed with this. Indeed, it went on to construe the matter thus: What Mr Wilson said was not only not ill-intentioned or anti-Catholic or directed at the Pope or Catholics:  it was evidently not any of those things. No doubt in a perfect world he should not have used an expletive in the context of a sentence about the Pope, because it might be taken as

43 44 45 46

(2013) UKETPA 1305/12/BA. Ibid., para. 2. Ibid. Ibid., para. 6.

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andrew hambler disrespectful by a pious Catholic of tender sensibilities, but people are not perfect and sometimes people use bad language thoughtlessly: a reasonable person would have understood that and made allowance for it.47

This judgment in part illustrates the limitations of the legal doctrine of harassment as a proxy for a blasphemy law. There is no discussion as to quite why a Roman Catholic should be offended by a profane adjective juxtaposed to the name of the pope. Indeed, this does itself create theoretical difficulties, as the pope, albeit revered by Roman Catholics as ‘the Holy Father’, is not God, and so the blasphemous nature of the remark is slightly harder to identify. To reach for a possible comparison, there seems little doubt that the expletive ‘f-ing Muhammad’ would be described as a blasphemy by many Muslims – that which is revered is being treated with what to the religious mind amounts to a grave insult. The situation is perhaps analogous in respect of the pope. However, rather than enter into the religious mind-set to explore the possible reasons why the statement ‘the f-ing pope’ might be very offensive to Catholics, the EAT chose to construct the issue very differently; or, as Christopher McCrudden put it in relation to another religious discrimination case, the tribunal chose ‘quite clearly to adopt an external viewpoint rather than a cognitively internal viewpoint’.48 Nevertheless, it is likely that the analysis of purpose (or intention) was correct; similarly, because the remarks were isolated, it would be difficult (but not impossible) to demonstrate that this had the effect of creating an adverse environment for the claimant. However, the EAT chose to focus on the rather different point of reasonableness and in the process provided, it may be argued, a rather flawed analysis. The argument appears to be that the effect of the remark, shouted twice across a large room, was negligible to anyone except him or her with the thinnest of skins. Instead of the editor being at fault, therefore, rather it is the religious actor who is unreasonable, patronised as ‘a pious Catholic of tender sensibilities’, apparently temperamentally unsuited to a world which is not ‘perfect’, and unable to make ‘allowance’ for the occasional lapses of others.49 A similar problem can be observed in the reasoning in Muir v.  Penisarwaun Care Home Ltd, the basic facts of which were set out in the introduction and which differ from Heafield in two important 47 48

49

Ibid., para. 10 (Underhill, J.). Christopher McCrudden, ‘Religion, human rights, equality and the public sphere’ (2011) 13 Ecclesiastical Law Journal 26–38, 32. Heafield, para. 10 (Underhill, J.).

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respects: firstly, the subject of the profanity was Jesus Christ himself; and secondly, all staff were aware that the claimant was a practising Christian. With rather less legal analysis than that in Heafield (and no attempt to systematically apply the definition of harassment outlined in Richmond Pharmacology), the tribunal correctly reminded itself that harassment does not need to be intentional but can arise due to the effect on the claimant of the words employed and that this is a subjective test. However, the tribunal decided that ‘it was not reasonable for the remarks to be perceived by the claimant as creating an adverse environment for her’.50 It added ‘[w]e also did not consider that the remarks made related to the claimant’s religion, they were commonly-used albeit blasphemous, swearwords but were not in themselves abusive to any religion’.51 Whilst it is perhaps exaggerating the importance of a first instance judgment to expose this analysis to too much critique, the flaws in this reasoning (taken at face value) are obvious. Whether or not ‘Jesus f-ing Christ’ (as opposed to the phrase ‘Jesus Christ’) is a commonly used swearword is surely highly questionable, but perhaps not central to the analysis. More significantly, whilst at once recognising that the ‘swearwords’ employed were ‘blasphemous’, the tribunal at the same time concluded that they are not ‘abusive to any religion’. Yet surely this cannot be so. Given that Jesus Christ is at the heart of the Christian religion, then profaning his name would surely constitute abuse of the Christian religion. Under this analysis, it would appear that the phrase ‘f-ing Christianity’ would be abusive but ‘f-ing Christ’ would not be. Surely for the average Christian, the latter is by some degrees more offensive than the former. Unless what the tribunal meant was that the swearwords ‘Jesus f-ing Christ’ and others, although blasphemous in a technical, rather archaic sense, are so much in common use as to render them devoid of any but the most superficial religious connotation. This would be in line with Feinberg’s observation on contemporary Western society that ‘[o]ur profane words, having literally lost their supposed magic, survive as “mere explosive noises” that are used habitually, absentmindedly, and without passion’.52 This is in contrast to an earlier age when blasphemy had a power because what was represented was ‘so charged with terror that their very utterance for a light or unworthy purpose should evoke fear and trembling’.53 In other 50 51 52 53

Muir, para. 50. Ibid. Feinberg, Offense to Others, p. 198. Ibid.

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words, as society has lost its fear of God, so invoking his name alongside an offhand profanity invokes no great shock and nor presumably is the purpose or effect to shock or offend others. However, although this may be true for the majority, including some religious people, for the minority profane language invoking God does retain its power to shock and offend. It may be that judges (and for that matter employers) are less aware of this due to the perhaps limited number of occasions that religious actors actually bring complaints.54 However, to return to an earlier point, it does not take too much imaginative engagement with the religious mind-set to see that the words ‘Jesus f-ing Christ’ could be very offensive indeed to Christians and have the potential effect of creating a hostile environment for them when used at work in a sustained manner (as in this instance) and that it is surely wrong to characterise taking such offence as ‘unreasonable’. An interesting question which arises from these two unsuccessful claims is whether profane language in the workplace could ever amount to harassment, in the judgment of an employment tribunal, on the grounds of religion and belief. The outcome of Griffin v. City of Portland55 provides some guidance as to when this might arise. In brief, this claim was a hostile environment claim under Title VII of the Civil Rights Act 196456 and was brought by an employee who was a practising Christian because of the actions of a co-worker who frequently employed the names of God and of Jesus Christ as ‘curse words’. This situation continued even after the plaintiff, Mrs Griffin, asked the co-worker to refrain because of the offence it caused her. Thus, the judge took the view that although some of the blasphemous profanity was not actionable (on the basis of arguments analogous to those noted in respect of Heafield), once Mrs Griffin had complained then, from that point onwards, it might be assumed that the offensive language was knowingly being used in order to offend Mrs Griffin. At this point it was potentially actionable. Under the Equality Act, the equivalent reasoning would be that the unwanted contact here shifted from having simply the effect of creating a hostile environment (but below the reasonableness threshold) to having the purpose of creating such an

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Some guidance intended for Christians at work, whilst urging people to complain to their employers about blasphemy, makes this point:  see Mark Jones, Religious liberty in the workplace: A guide for Christian employees (Christian Institute, 2008), available at www .christian.org.uk/wp-content/uploads/religious-liberty-in-the-workplace.pdf. (2013) Case no. 3:12-cv-01591. 42 U. S. C. 2000e-2 (1994).

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environment. At this point, too, it would no longer be necessary to demonstrate the ‘reasonableness’ of taking offence – it can hardly be considered ‘unreasonable’ to be offended by conduct designed to offend.57 Mrs Griffin was successful in her action, although the issue was complicated because there had been additional examples of hostile conduct by the coworker and invoking Mrs Griffin’s beliefs. To summarise, from the very limited evidence, it is may be tentatively suggested that there may be a tendency for judges to view profane oaths invoking God as simply everyday strong language, in a sense shorn of its religious content or meaning, and the effect of hearing it could only be offensive to the unreasonably sensitive religious individual. This may change, however, if there is evidence that the offensive language is directed at a particular individual (e.g., it continues without apology once an objection has been raised). Where this analysis seems particularly weak is in respect of particularly offensive invocations of the sacred: ‘Jesus f-ing Christ’ is surely considerably more offensive than plain ‘Jesus Christ’ and nor might it be described as everyday strong language, as it surely goes beyond this. Quite how offensive the invocation of the sacred would need to be for it to be ‘reasonable’ to take offence is difficult to ascertain. Presumably the sharing of blasphemous jokes (unless very mild), the humour derived from the ridicule of the sacred, would be likely to step over the threshold on the basis of the legal reasoning in the cases considered here (in the same way that racist and sexist jokes might ‘reasonably’ be considered to be offensive). Perhaps unsurprisingly, in view of its heritage, commonly used profanities in the UK are drawn from the Christian tradition. Presumably, if individuals started employing profanities not in common use and derived from other religious traditions (e.g., invoking Allah), then this would be considered much more likely to have the effect of causing offence considered above the reasonableness threshold, given the jarring nature of the unusual oath. Moreover, such an oath, because it is not in common use, might be more likely to be considered to have the purpose of causing offence to those in the workplace, particularly Muslims, who are most likely to be offended by this. Inter alia, this might effectively lead to a greater level of ‘protection’ from blasphemy for adherents of minority religions than Christians might enjoy.58 57

58

Indeed, the Equality Act 2010 appears to limit the application of the ‘reasonableness test’ to effect (s. 26(4)(c)). Drawing on the decision by the BBC to screen Jerry Springer: The Opera, which was offensive to many Christians, Jones makes the point that blasphemy invoking what Christians consider

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26.5

Offensive Imagery or Slogans

There are no publicly available religious harassment claims concerning the display of blasphemous images or slogans in the workplace. Tribunals have, however, clearly recognised the potential for significant offence to others arising from images and slogans and have considered dismissals to be fair in circumstances in which employees have refused to remove them.59 However, for an employee to demonstrate harassment has historically been difficult unless the image or slogan is clearly directed at him or her. For many years a leading case in this area was Stewart v. Cleveland Guest (Engineering) Ltd,60 a sexual harassment claim brought by a female employee who was required to work in areas of a workplace where male employees displayed topless and nude images of women. She had earlier complained to the management, but that complaint had not been taken seriously. The EAT refused to overrule the finding of the employment tribunal that Stewart had not suffered harassment because the display of images was not aimed at women or a particular woman and indeed might have been offensive also to men. This decision, although restricted in scope to sex discrimination, set the bar high for harassment claims in which the display of images not specifically targeted at particular individuals yet potentially highly offensive to them is concerned. Although the characteristic of ‘religion and belief ’ was outside the reach of discrimination law at the time, if the same logic were to be applied, then it might be very difficult to demonstrate harassment due to the display of blasphemous images unless it could be demonstrated that the purpose was to create an offensive environment for a particular individual or group of individuals on the grounds of religion and belief. However, sex discrimination law was amended in order to allow for a more general offence on the grounds of sex (rather than the claimant’s own sex).61 As noted earlier, a revised formula now also applies to religion and belief

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sacred is more likely to be tolerated in contemporary UK society than blasphemy involving Islam; see Peter Jones, ‘Charlie Hebdo, religion and not causing offence’ (2016) The Critique, available at www.thecritique.com/articles/charlie-hebdo-religion-not-causing-offence. See Boychuck v. Symons [1977] IRLR 395, where an employee was unsuccessful in demonstrating that she was unfairly dismissed for refusing to remove a lapel badge bearing the slogan ‘Lesbians Ignite’. (1994) UKEAT 683/93/0405, [1994] IRLR 440. The Sex Discrimination Act 1975 (Amendment) Regulations 2008 no. 656, reg. 3, which substituted the wording (s. 4A(1)(a)(a) of the Sex Discrimination Act 1975) ‘he engages in

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as a protected characteristic.62 It is clear from the Explanatory Notes to the Equality Act that one of the reasons for the change in the law was to reverse decisions such as Stevens v. Guest:  ‘An employer who displays any material of a sexual nature, such as a topless calendar, may be harassing her employees where this makes the workplace an offensive place to work for any employee, female or male’.63 As a result, subject to the usual test of reasonableness, it can be inferred from this that if an employer displays or allows other employees to display material of a blasphemous nature, then the effect of this may be to harass his employees because of religion and belief. It is very difficult to see how there could be a justification (however weak) in this case that the blasphemous image is somehow devoid of its religious content. It is not a commonplace activity to display blasphemous images in the way it is said to be to invoke religion when using profane language. An allied issue is the extent to which cartoons which are offensive on religious grounds might also constitute harassment if circulated at work. Reported tribunal claims involving cartoons have been few. In a sexual harassment case which post-dated the change to the definition of harassment, Weeks v. Newham College of Further Education,64 the ‘one-off ’ display of a cartoon intended to be humorous, depicting a topless older woman having her breasts seized, was not in itself considered sufficient to have the effect of creating an offensive environment (on grounds related to sex) on the basis, inter alia, that such an ‘environment’ is created over time.65 However, it is clear that the EAT was troubled by the cartoon but was unwilling to overturn the employment tribunal’s finding. Whether the circulation of cartoons on the grounds of religion would be treated in the same way is an interesting question. There do not appear to have been any workplace harassment claims in the wake of the Charlie Hebdo affair,66 although some lawyers have considered the issue

62 63

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unwanted conduct that is related to her sex or that of another person’ for the original ‘on the ground of her sex, he engages in unwanted conduct’. Equality Act 2010, s. 26(1). Explanatory Notes to the Equality Act 2010, para. 99. It may be that this particular example was seeking to engage a second definition of harassment applying to unwanted sexual conduct only (Equality Act 2010, s. 26(2)), but in practical terms it could equally apply to the more inclusive definition at s. 26(1). (2012) UKEAT 0630/11/ZT. Ibid, para. 21. Albeit, as the EAT noted, in some cases the longer-term effects of a single incident could potentially create such an environment. The violent response to a series of irreverent cartoons of the Muslim Prophet Muhammad published in the French satirical magazine Charlie Hebdo in November 2011, September 2012 and January 2013.

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in print.67 If images such as those which appeared in Charlie Hebdo or in the satirical ‘Danish cartoons’ of Muhammad which were published in 200568 were circulated at work, how likely would this be to create an offensive environment for Muslims and potentially others? Applying the (amended) threefold test in Richmond Pharmacology, it may be assumed that the first limb (the presence of unwanted conduct) is satisfied, as is the third (there is a relevant protected characteristic – religion and belief). The second is more problematic. It is possible that the alleged ‘harasser’ might have circulated the cartoons because of their topicality or even as a statement of his or her commitment to free speech. In other words, there may be no ‘animus’ intended, and thus the purpose would not be to violate the claimant’s dignity or create an adverse environment for him or her. On the other hand, it may be that the circulation is deliberately done with the purpose of offending. If so, this is likely to be harassment. If not, the key question is whether the effect is such that a claimant’s dignity is violated through exposure to blasphemous cartoons or an adverse environment created for him or her, subject to the test of reasonableness. This will be a question of fact for the tribunal to determine.

26.6 Blasphemy and the Written Word A further question arises if the ‘blasphemy’ at work is due to the circulation of written materials. To suggest a theoretical example, if ‘The Love That Dares to Speak Its Name’ was circulated at work, then what would be the consequences? As noted earlier, such material might be very offensive to some Christians, but equally an individual may wish to share it with like-minded colleagues. It is hopefully not stretching a potential comparison too far to draw a parallel between this situation and the facts of

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See, for example, Nicholas Siddall, ‘The potential employment law implications of Charlie Hebdo’, Littleton Chambers, available at www.littletonchambers.com/the-potentialemployment-law-implications-of-%E2%80%9Ccharlie-hebdo%E2%80%9D-687. Siddall’s main concern is the possible harassment of (presumably retail) employees required by their employers to circulate copies of the offending magazine. The magazine Jyllands-Posten published twelve cartoons in its edition of 30 September 2005, the majority of which depicted Muhammad. This visual depiction of Muhammad provoked protests and riots across the Muslim world; for a discussion (from a Muslim perspective) of both the events and their aftermath and a legal analysis of why the cartoons can be considered blasphemous, see Rachel Saloom, ‘You dropped a bomb on me, Denmark: A legal examination of the cartoon controversy and response as it relates to the Prophet Muhammad and Islamic law’ (2006) 8 Rutgers Journal of Law and Religion 3–17.

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the employment tribunal case Apelogun Gabriels v.  London Borough of Lambeth.69 This case involved an employee of the London Borough of Lambeth who brought a claim for unfair dismissal and discrimination on the grounds of religion and belief against his employer following his dismissal for gross misconduct. Gabriels, a lay preacher, had organised a regular Christian prayer meeting, with permission, on Council premises. During one such prayer meeting, he presented a hand-out to participants on which was written Bible verses which he had chosen and which were condemnatory of homosexual activity. These hand-outs were also circulated to a small number of workers outside of the prayer group and were, in the process, also seen by other members of staff who considered them to be offensive on the grounds of sexual orientation and who brought a formal complaint to the employer. A disciplinary process ensued, and Gabriels was dismissed for gross misconduct. The employment tribunal rejected Gabriels’ claim for unfair dismissal. It can be inferred from this judgment that the behaviour which amounted to harassment worthy of dismissal (under the employer’s disciplinary rules) was the circulation of the Bible verses outside of the prayer group context. Similarly, if like-minded people wished to gather privately, albeit on work premises, to share blasphemous poems (perhaps as a symbol of their commitment to secularism),70 then this would not necessarily amount to statutory harassment (although it may be argued that a cautious employer, conscious of its potential vicarious liability, might wish to prevent it);71 however, the risk of this would increase if other employees were accidentally (or otherwise) exposed to the blasphemous materials whilst at work. It is also possible that employees likely to be offended by blasphemy might become aware that blasphemous poems were being read out or otherwise shared at work – it might still be possible in that case for religious employees to demonstrate that they were being subjected to an offensive or otherwise adverse environment, although this would be 69 70

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(2006) ET Case no. 2301976/05. The poem ‘The Love That Dares to Speak Its Name’ was publicly read by the actor Sir Ian McKellen at a public meeting of the National Secular Society as a political statement in celebration of the repeal of the blasphemy laws in the UK; see National Secular Society, ‘Sir Ian McKellen hammers the final nail in the coffin of blasphemy law’ (23 June 2008), available at www.secularism.org.uk/sirianmckellenhammersthefinalnai.html. When an act of harassment is carried out by one employee against another, it is the employer who is primarily liable because of the doctrine of vicarious liability, which applies under the Equality Act 2010, s. 109.

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much more burdensome, as their exposure to the blasphemy would be at a ‘bare knowledge’ level only.72

26.7 Conclusion That blasphemy can cause grave offence to religious feelings is undisputed; it is also possible to go further to identify how this offence could undermine religious rights at a deeper level. Whereas it may be possible for those likely to be offended to avoid the blasphemy of others in many contexts, it is much more difficult to do so in specific situations, such as the workplace, in which individuals are in a sense a ‘captive audience’ for the self-expression of others. Many would consider it reasonable for religious employees to be protected from exposure to blasphemy. In the workplaces of England and Wales, this is most likely to be achieved through the harassment provisions of the Equality Act 2010 which apply, inter alia, to the protected characteristic of religion and belief and, in theory, provide remedies from the violation of individual dignity or the creation of an offensive or otherwise adverse environment of the kind which might result from exposure to blasphemy.73 Some examples of how this might operate, relating to different media of blasphemy at work, have been considered. However, as the discussion in this chapter has also demonstrated, the doctrine of harassment, as applied by employment judges, may provide less protection than might initially be anticipated, at least in some areas. The reason for this is primarily that the religious individual is expected to show remarkable levels of tolerance, at least for unintentionally offensive blasphemy, and if they do not do so, their claims may be considered unreasonable. An additional and still more surprising principle may also be emerging – that profanities invoking Christ or God are in common usage, and so use of these profanities is emptied of their religious significance and therefore cannot be harassment because of religion and belief. As has been observed, this kind of reasoning demonstrates a fundamental lack of empathy with the situation of the religious actor. It also risks depriving Christians of protection from some forms of blasphemy which might be extended to other religions given that the ‘common usage’ principle does not apply to blasphemies invoking that which other religions find sacred. It may be concluded that these aspects of judicial reasoning should be revisited if and when more relevant claims are brought before employment tribunals. 72 73

See earlier discussion (Section 26.2). Much of this analysis has also the potential to be applied to students in educational institutions, also protected by the wide reach of the Equality Act 2010.

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27 Towards an Understanding of Accelerants and Decelerants A Non-Juriscentric Approach to Offensive or Hateful Speech Concerning Religion

Brett G. Scharffs

27.1

Introduction

Some situations involving offensive or ‘hate speech’1 involve a simple relationship between speaker and target, with the classic example being fighting words. As the work of Jeroen Temperman has shown, however, the usual situation is more complex, involving three parties: a speaker, an audience (someone or a group of people who might be motivated to respond with violence or hatred) as well as the target.2 This chapter focuses on the

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While many of the examples in this chapter deal with ‘hate speech’ and although some of those examples are not related to blasphemous speech per se, the proposed strategies for decelerating conflict also apply in the wider context of offensive speech simpliciter, i.e. forms of blasphemous speech that may not amount to hate speech. ‘Hate speech’ is not, moreover, limited to words alone. Rather, it ‘includes any form of expression, including images such as drawings or photographs, films, etc.’ Susan Benesch, ‘Dangerous Speech: A Proposal to Prevent Group Violence’ (2012), at p. 1 (fn 1), paper available at www.worldpolicy.org/sites/ default/files/Dangerous%20Speech%20Guidelines%20Benesch%20January%202012.pdf. This would, by extension, include even physical acts, such as the desecration of a flag or the burning of a cross, if used to incite violence. The offensive or hateful ‘speech’ may even escalate into criminal behaviour such as ‘hate crimes’. Here I will focus primarily upon initial provocations that take the form of speech, although the analysis could easily be extended to cover more symbolic types of speech and even hate-motivated criminal acts, which will also be mentioned. See Jeroen Temperman, Religious Hatred and International Law (Cambridge:  Cambridge University Press, 2016); see also Article 19, Prohibiting Incitement to Discrimination, Hostility or Violence (2012), available at www.article19.org/data/files/medialibrary/3548/ ARTICLE-19-policy-on-prohibition-to-incitement.pdf, at 34:  ‘an analysis of the speaker also necessarily requires a focus on the audience, considering issues such as the degree of vulnerability and fear of the various communities, including those targeted by the speaker;

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fact that in many offensive or hate speech situations of this type there is a gap in time between the initial inflammatory speech and the violent reaction that seems to be triggered by that speech. As Susan Benesch has reminded us, whether the Danish cartoons, the Charlie Hebdo massacres or even the violent protests in reaction to a Christian pastor burning the Quran, it is noteworthy that sometimes blasphemous speech in situations such as these results in violence, but often apparently similar speech does not trigger violent responses or even apparent discrimination.3 This chapter builds upon the speaker–audience–victim tripartite analysis in two ways. First, I note that the audience for offensive and hateful speech is actually multiple audiences, including speaker affinity groups (those likely to identify with the hateful speech) and victim affinity groups (those likely to identify with the victims or targets of the offensive or hate speech). A  violent response by the speaker affinity group is the more familiar phenomenon of incitement to violence. A violent response by the victim affinity group is a less familiar and less well understood form of reprisal or honour vindication. Second, the chapter also examines the phenomenon of accelerants and decelerants, the responses to offensive and hateful speech that make it more or less likely that such speech will result in actual violence or discrimination. Drawing upon the metaphor of fire fighting, the chapter explores the common accelerants that raise the temperature and combustibility of an instance of hate speech and decelerants, responses by the speaker, the audience, or even the would-be victim, that decrease the likelihood of hate speech escalating into a violent confrontation. The chapter concludes by exploring three time frames in which decelerants might exist and what they might look like, before, during and after the timing of the hateful speech.

27.2

Expanding Our Understanding of Audience

Hate speech is usually a complex phenomenon, so efforts to analyse and understand it are always susceptible to oversimplification. But inquiry and evaluation are facilitated by some simplification, at least as a gateway to analysis. Further complications can be added in due course, and nuance can be sought. But an initial simple picture is sometimes helpful

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and whether the audience is characterised by excessive respect for authority, as factors of this kind would make an audience more vulnerable to incitement’. See Benesch, ‘Dangerous Speech’.

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in understanding even complex and multifaceted phenomena. Situations involving offensive or hateful speech will often be complicated, but it is helpful to try to differentiate between different types of basic situations. Here I will differentiate three types of situation.

27.2.1 A First View: Fighting Words In its simplest form hate speech, like many other acts of provocation, involves two people, a speaker and a target. The speaker may issue an insult or verbal assault that is designed to intimidate, frighten, marginalize or simply cause emotional or psychic harm to the target. A classic example might be a racial epithet or an insult by one person targeting another person or their family. The target, or victim, of this speech may react in a variety of ways, including by retaliating, escalating, resisting or ignoring the speech. Each of these types of reaction may be understandable or even defensible depending upon the circumstances. In general, constitutional or other legal protections of freedom of speech will usually protect speakers, even when they insult others. But exceptions to this general rule exist. In the free-speech jurisprudence of the US, for example, speech that is so egregious that a violent reaction is likely to occur may be restricted by statute. The doctrine justifying this restriction of speech is known as ‘fighting words’.4 Chaplinsky v. New Hampshire is the only case in which the US Supreme Court permitted a restriction of speech based on the ‘fighting words’ doctrine.5 In Chaplinsky, a man insulted a police officer in public and was arrested.6 Chaplinsky was convicted of violating a New Hampshire statute that prohibited ‘any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place’.7 Chaplinsky appealed the conviction as a violation of his freespeech rights,8 but the Supreme Court upheld the conviction under the ‘fighting words’ doctrine.9 The Court justified the decision because ‘[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any 4

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See Chaplinsky v. N.H., 315 U.S. 568 (1942). See also Stephen W. Gard, ‘Fighting words as free speech’ (1980) 58 Wash. U. L. Q. 531. Gard, ‘Fighting words as free speech’, at 531. Chaplinsky v. N.H., 315 U.S. 568 at 569 (1942). Ibid. Ibid. Ibid. at 573–4.

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Constitutional problem’.10 Among these limited classes of restricted speech are ‘the insulting or “fighting” words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace’.11

27.2.2 A Second View: Incitement to Violence Sometimes a situation involving incitement to violence will involve more than two people. Here, we can begin by identifying three different groups: first the speaker, who might be trying to incite an audience to violence; second, the target or victim of the speech; and third, the audience or speaker affinity group that the speaker is trying to incite to violence against the target.12 This is a classic example of incitement to violence:  A  (the speaker) insults B (the target), and C (the audience) is provoked to do harm to B. If C punches B in the nose, then C might be liable for assault. But what about A? Is A liable for C’s assault of B? A will argue that she was just exercising her free-speech rights. B, or the state, might argue that A should be held liable for incitement to violence. Even speech that is offensive or inflammatory will often be protected. In the United States, for example, inflammatory speech will be protected unless it was intended to incite and likely to incite imminent lawless activity.13 Other countries have lower thresholds of what is protected speech. Sometimes, incitement to violence is interpreted more broadly, to prohibit also incitement to hatred or discrimination. This is the case with the International Covenant on Civil and Political Rights, which states that ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’ is required to 10 11 12

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Ibid. at 571–2. Ibid. at 572. Temperman, Religious Hatred and International Law, Chapter 7.3 (‘The triangle of incitement’); see also Susan Benesch, ‘Vile crime or inalienable right? Defining incitement to genocide’ (2008) 48 Virginia Journal of International Law, at p. 513. Incitement to violence is also ‘known as instigation, it functions like a command: a speaker addresses a particular crowd, knowing that he or she has strong influence or authority over the minds of the listeners and that the listeners are already primed to commit violence. Immediately or soon afterward, the crowd acts in response to the speech’. Ibid. Brandenburg v.  Ohio, 395 U.S. 444 at 447 (1969), holding that ‘the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’.

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be prohibited by law.14 While this provision is designed to prohibit any speech that incites discrimination, hostility or violence, it does not, by itself, prohibit hate speech. Rather, it requires its signatories to draft their own legislation.15 This is something that multiple signatories have been hesitant to do,16 even though the Human Rights Committee has made it clear that this provision is different from the regular grounds for limitation stipulated in Article 19(3) – ‘the Covenant indicates the specific response required from the State: their prohibition by law’.17 Irrespective of the particularities regarding the enactment of legislation prohibiting language that incites violence, the important point here is that the person who reacts violently is neither the speaker nor the victim but a member of the audience that identifies with the message being delivered by the speaker. In one typical situation, an older speaker with some claim of moral or community authority will provoke a younger audience who are members of that community to violence against a shared enemy that is relatively vulnerable, who becomes the victim of violence, hatred or discrimination. Although it is often difficult to establish a causal link between the speech and the ensuing violence or discrimination, incitement that has a reasonable chance to lead to violence can be penalized ‘because of the potential it has to influence a particular audience in a particular time and place’.18 This is sometimes true even when no violence or discrimination follows the incitement.19

27.2.3 A Third View: Affinity Group Reprisals A third view builds upon the second by noting that there are often many audiences of instances of offensive or hateful speech. As a simplification, 14

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International Covenant on Civil and Political Rights, 16 December 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171, Art. 20 (2). Jeroen Temperman, Religious Hatred and International Law, at p.  69:  ‘Article 20(2) ICCPR … directly addresses State parties to the effect that they “shall” prohibit incitement by law. Consequently, the text of the Covenant as such and when compared to other UN human rights treaties leads to the conclusion that Article 20(2) is a mandatory provision. The compulsory nature of Article 20(2) also follows from a comparison between its formulation and that found in Article 7 of the UDHR’. For a discussion on the reasons why states have been hesitant to read the provision in the Covenant as mandatory, see Temperman, ibid., at pp. 72–4. Ibid., at p.  75 (quoting Human Rights Committee, General Comment 34:  Article 19: Freedoms of Opinion and Expression, U.N. Doc. CCPR/C/GC/34 (2011), at para. 51). Benesch, ‘Vile crime or inalienable right?’, at p. 494. Ibid., ‘Incitement to genocide is an inchoate crime, so it need not be successful to have been committed’ (footnotes omitted).

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in addition to the speaker affinity group, discussed in Section 27.3.1.2, there may also be a completely different audience, the victim affinity group. Violent responses to offensive or hateful speech sometimes take the form of violence by people who identify with the victims rather than people who identify with the speaker. This may be the most interesting and important category of hate speech and violent reprisal. Many examples of speech that has provoked violence, from the Danish cartoons to the Innocence of Muslims film to the Charlie Hebdo terror attack, the violence was in some significant degree a reaction by the victim affinity group to speech that was offensive, hateful and insulting. Perhaps the speaker intends to insult or intimidate not a particular individual but an entire group, in which case the target victims and the victim or target affinity group may be the same people. In contrast with the speaker affinity group (C), who may be incited to violence due to agreeing with the speaker’s (A)  message, the victim affinity group (D) may be provoked to violence due to their anger at the speaker or his message or their desire to rise in defence of the target (B). Victim affinity group D may act out of solidarity with or to defend the honour of the victim group B, which may be a group with which they identify. Thus, for example, Speaker A may insult target B, and audience D may react violently to stand up for the honour of B. But our usual categories of thinking about incitement do not work well when dealing with victim affinity reprisals, because it puts into the hands of victims or their friends the capacity to decide what is or is not provocative enough to warrant a violent reaction. Thus, legal mechanisms are not well suited to respond to and prevent the kinds of escalation that can lead from insult and offense to violence and reprisal. Although violent reprisals can always be punished after the fact, the speaker that provoked the victim affinity group to action and the other groups that helped accelerate the conflict may go unpunished.

27.3

Accelerants and Decelerants

What I  am interested in thinking about is why some offensive or hateful speech results in violence from third parties, and in particular victim affinity groups, while in other cases it does not. Consider the case of the hateful Florida pastor Terry Jones, who advertised and then held a public burning of the Quran, the Islamic holy book. In the year 2010, this pastor, who was the leader of a small congregation, received massive media attention, and passions were inflamed on all sides, especially

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among some Muslims who took extreme offense. Eventually his provocation led to international demonstrations that turned violent, resulting in damage to property and even loss of life. A year or so later, he decided to reprise his stunt, only this time, the media ignored him, as did influential voices within the Muslim community, and he and his few hateful followers followed through on their threat to burn the Quran, but there were no demonstrations, and it did not incite a violent reaction.20 There are several features of this situation worth noting. For one, as is often the case, there was a considerable passage of time between the time of the provocation and the violent reaction. In most examples of fighting words, as well as other types of incitement to violence, there is usually 20

In 2009 Terry Jones posted a sign at his church that declared, ‘Islam is of the devil’. This was largely ignored. In July 2010, amidst the public debate going on about the Islamic Center near the Ground Zero site of the Twin Towers in New York City, he announced through his social media accounts ‘International Burn a Koran Day’ to be held on the anniversary of 9/11. He was interviewed by more than 150 media news outlets over the next few months. Damien Cave, ‘Far from Ground Zero, obscure pastor is ignored no longer’, New York Times, 25 August 2010, available at www.nytimes.com/2010/08/26/us/26gainesville .html). The story spread throughout the world, and his message elicited widespread international condemnation by religious and political leaders – from both speaker affinity groups and victim affinity groups. The condemnation ranged from simple condemnation to agitating the victim – calling for the arrest of Jones or the uprising of Muslims. Laurie Goodstein, ‘Concern is voiced over religious intolerance’, New York Times, 7 September 2010, available at www.nytimes.com/2010/09/08/us/08muslim.html; Damien Cave, ‘In Florida, many lay plans to counter a pastor’s message’, New York Times, 7 September 2010, available at www.nytimes.com/2010/09/08/us/08koran.html.) He later cancelled the event, allegedly because of a purported agreement with the imams planning the Islamic Center in New York to move to a location some distance away from the Twin Towers area. Damien Cave and Anne Barnhard, ‘Minister wavers on plan to burn Koran’, New York Times, 9 September 2010, available at www.nytimes.com/2010/09/10/us/10obama .html). Nevertheless, protests of his planned event took place in various places, including in Afghanistan and Kashmir, which resulted in injuries and deaths. Alissa J. Rubin, ‘2 Afghans die in protest over Koran burning’, New York Times, 12 September 2010, available at www.nytimes.com/2010/09/13/world/asia/13afghan.html; Jim Yardley and Hari Kumar, ‘U.S. Koran tensions erupt in Kashmir’, New York Times, 13 September 2010, available at www.nytimes.com/2010/09/14/world/asia/14kashmir.html; Robert F. Worth, ‘Ayatollah speaks of plot to abuse Koran’, New York Times, September 13, 2010, www.nytimes.com/ 2010/09/14/world/middleeast/14iran.html; Rod Nordland, ‘2 Afghans are killed in protests over Koran’, New York Times, 16 September 2010, available at www.nytimes.com/ 2010/09/17/world/asia/17koran.html). In March 2011, Jones held a ‘trial’ for the Quran which was filmed and put on the internet. While it received little media attention and only 1,500 views on the internet, it is streamed live in Arabic. After a week or so leaders in Pakistan and Afghanistan – particularly President Kharzai – spoke out in condemnation of the event and reignited the issue. Three mullahs in a remote area of Afghanistan called for their followers to avenge the Quran burning during Friday prayers, which lead to the attack on the UN compound in the area, which was viewed as the closest proxy for the

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very little time between provocation and violent response. Here something else is going on. For example, many months passed between the time the Danish cartoons depicting the Prophet Muhammad were published in September 2005 and when violent protests and demonstrations relating to them took place in early 2006. A second interesting feature of this situation is that the provocation was noted and protested by leaders in the victim affinity community, who called attention to and denounced the provocation. At times, we may even suspect that those taking offense are looking for ways to heighten their own influence by calling attention to and denouncing the offensive or hateful speech. Fire fighters are familiar with both accelerants, which speed up a reaction such as combustion, and decelerants, things that slow down a reaction. With fire, a classic accelerant is gasoline, a substance that ignites easily and burns hot; accelerants may also have explosive properties and be subject to hot spots or flash points. In the hate speech context, the analogy to accelerants include things that inflame passions and increase the likelihood of conflagration, such as emotional appeals to the masses, passionate denunciations of the hateful messenger or message and appeals to honour. Decelerants have the opposite effects. Fire fighters use decelerants both to fight fires and to decrease the likelihood of them. Strategies of deceleration include eliminating fuel by cutting out fire breaks or using coolants such as water or other fire retardants to reduce flammability of fuels or to delay their combustion. A decelerant is something that blocks combustion or initiates

U.S. in the area. Enayata Najafizada and Rod Nordland, ‘Afghans avenge Florida Koran burning, killing 12’, New York Times, 1 April 2011, available at www.nytimes.com/2011/ 04/02/world/asia/02afghanistan.html). After the attack and three more days of protest, dozens were killed and more than a hundred were injured. Jones continued to say he did not want to incite violence. Taimoor Shah and Rod Nordland, ‘Protests over Koran burning reach Kandahar’, New York Times, 2 April 2011, available at www.nytimes.com/2011/ 04/03/world/asia/03afghanistan.html; Taimoor Shah and Rod Nordland, ‘Afghans protest Koran burning for third day’, New York Times, 3 April 2011, available at www.nytimes.com/ 2011/04/04/world/asia/04afghanistan.html.) In 2012 he helped promote the Innocence of Muslims film, which lead to attacks on the US embassy in Cairo and Benghazi. David D. Kirkpatrick, ‘Anger over a film fuels anti-American attacks in Libya and Egypt’, New York Times, 11 September 2012, available at www.nytimes.com/2012/09/12/world/middleeast/ anger-over-film-fuels-anti-american-attacks-in-libya-and-egypt.html). He burned more Qurans in 2013 and 2014, but there was little coverage or reaction anywhere. Terry Jones, ‘9/11 burning of Korans and ISIS with Dr. Terry Jones’, YouTube, 12 September 2014, available at www.youtube.com/watch?v=D06mAy-RGOE).

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a chemical reaction that stops a fire. Fire fighters speak of ‘containing’ fires, creating conditions in which they can burn themselves out. In the hate speech context, strategies or people who cool tempers, lower the emotional temperature and lower the volume surrounding conflicts, both literally and metaphorically, can act as decelerants. Although incitement to violence does not take place within a vacuum, it is possible to point to specific speech that incites violence. It is also possible to point to subsequent events that act as either accelerants or decelerants. Every party in the hate speech relationship (i.e. the speaker, the speaker affinity group, the victim affinity group and the victim) can act to either accelerate or decelerate tension.

27.3.1 Accelerants For example, consider the shooting that took place in Emanuel American Methodist Episcopal Church (AME Church) in Charleston, South Carolina, on 17 June 2015. A young white supremacist, Dylann Roof, shot and killed nine African American Christians while they were worshipping within the church. A study of that tragedy illustrates how each party in the hate speech relationship was or could have been an accelerant.

27.3.1.1 Speaker The speaker himself may act as an accelerant by repeating, doubling down on or elaborating upon his insult. After all, the purpose of hate speech is often to offend and provoke others, and those with a desire to offend may enjoy the megaphone of publicity or attention and use it to increase the volume and frequency of offense. We might consider Roof as the speaker and his violent actions and hateful comments as an extreme form of hate speech supplemented with criminal violence.21 After his arrest, Roof could have acted as an accelerant by continuing to make hateful comments about African Americans. Although Roof was relatively quiet after being arrested, further evidence of Roof ’s motivation for the shooting emerged in the ensuing investigation. 21

After Roof shot the first victim, the other parishioners tried to talk Roof out of shooting the rest of the people in the church. Roof responded, ‘You’ve raped our women and you are taking over the country. I have to do what I have to do’. CNN WIRE, ‘New details emerge about how the Charleston shooting unfolded’, 20 June 2015, available at myfox8. com/2015/06/20/new-details-emerge-about-how-the-charleston-shooting-unfolded/.

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Reports of racist statements that Roof had made both to friends22 and via the internet23 acted as accelerants that served to further enrage the victims and victim affinity groups of the AME Church shooting.

27.3.1.2 Speaker Affinity Group Members of the speaker’s affinity group, one of the important target audiences of the speaker’s hateful speech, may also act as either accelerants or decelerants. Speakers may provoke other voices to amplify and elaborate upon their hateful message. Dylann Roof was a member of the speaker affinity group of white supremacists that Dylann Roof heard via online forum. Prior to the shooting, Roof was researching information about race relations on the internet. Roof said after reading online fora written by white supremacists, ‘I have never been the same since that day’. After finding hateful information about African Americans, Roof was convinced that he needed to start a ‘race war’ between whites and African Americans.24 Although his actions did not initiate a ‘race war’ as he had hoped, his actions acted as an accelerant to increase racial tensions in Charleston and around the nation. 27.3.1.3 Victim Affinity Group Similarly, members of the victim’s affinity group, which in some cases may be coextensive with the victim in situations in which hateful speech is targeted at entire groups, may also act as either accelerants or decelerants. Victim affinity actors such as clergy, members of the media or social media or politicians may rise to the defence of the aggrieved party and in so doing may actually further inflame a situation. The aftermath of the AME Church shooting provides an example of a victim affinity group acting as an accelerant. After Roof was arrested

22

23

24

Prior to the shooting, Roof told one of his friends that he planned ‘to do something crazy’ and that he wanted ‘to start a race war . . . He wanted it to be white with white, and black with black’. Ed Payne, ‘Charleston church shooting: Who is Dylann Roof?’, CNN, 23 June 2015, available at www.cnn.com/2015/06/19/us/charleston-church-shooting-suspect/. Just prior to the shooting, Roof wrote (see CNN, ibid.) on an online blog:  ‘I have no choice . . . I am not in the position to, alone, go into the ghetto and fight. I chose Charleston because it is most historic city in my state, and at one time had the highest ratio of blacks to Whites in the country. We have no skinheads, no real KKK, no one doing anything but talking on the internet. Well someone has to have the bravery to take it to the real world, and I guess that has to be me’. Ibid.

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and incarcerated, an African American inmate named Dwayne Stafford attacked Roof while in prison.25 It was unclear whether the attack was motivated by revenge for Roof ’s hate crimes, but reactions from social media lent support to that idea. Several people congratulated Stafford for his attack via social media; one person said, ‘Put some money in [Stafford’s] commissary for a job well done’.26 Although Stafford’s attack on Roof may have been unrelated to the AME Church shooting, Stafford was perceived as a victim affinity group member violently retaliating against Roof ’s hate speech. This is an example of how a victim affinity group member might act as an accelerant by responding to hate speech with anger and violence.

27.3.1.4 Victim or Target The victims or targets of hateful speech can also act as either accelerants or decelerants in determining whether the hate speech will result in violence, discrimination or deepening hatred. Victims may relish their aggrievement and use it as an opportunity to demand retaliation or to appeal to their honour or the honour of their group. It is not difficult to imagine how the victims and their families could have responded to the AME Church shooting by acting as accelerants. As TIME magazine pointed out, the shooting took place ‘[a]t a time when the violent deaths of African Americans were triggering protests and even rioting from Missouri to Maryland’.27 Yet ‘instead of war, Charleston erupted in grace, led by the survivors’ of the AME Church shooting. About 36 hours after the killings, family members of the victims stood before Roof ‘to speak the language of forgiveness’.28 The reaction of the AME Church shooting victims provides a moving example of how victims can ease rather than amplify tensions in a situation in which many victims might be tempted to act as accelerants by speaking out with anger or encouraging further violence to avenge the fallen victims. 25

26 27

28

Meg Wagner and Denis Slattery, ‘Dylann Roof assaulted by inmate in Charleston jail shower’, Daily News, 4 August 2016, available at www.nydailynews.com/news/national/ dylann-roof-assaulted-inmate-charleston-jail-article-1.2738424:  ‘Officials initially said Stafford would be charged with assault, but Cannon later said Roof and his lawyer will not press charges’. Ibid. David Von Drehle, Jay Newton-Small and Maya Rhodan, ‘How do you forgive a murder?’, TIME, 12 November 2015, available at time.com/time-magazine-charleston-shootingcover-story/. Ibid.

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27.3.2 Decelerants 27.3.2.1 Speaker Rather than act as an accelerant, a speaker may act as a decelerant by backing down, apologizing or even clarifying what he or she meant. Although Terry Jones, the Florida pastor, did not apologize, he did postpone his decision to burn the Quran after meeting with a local imam.29 Although he eventually continued his hateful speech by burning Qurans,30 and violence eventually broke out,31 there is no way of knowing how much worse the retaliation might have been if Pastor Jones had burned the Quran on the anniversary of 9/11 like he had originally planned and broadcast to the world.32 27.3.2.2 Speaker Affinity Group The speaker’s affinity group may also act as a decelerant by disavowing or distancing themselves from the speaker’s hateful speech, by rejecting the provocation or by apologizing on behalf of the speaker’s affinity group. For example, if one hateful pastor is talking about burning the Quran, other pastors can speak out against behaviour of this type. Those who might be expected to side with the speaker can diffuse or decelerate situations by criticising the speaker rather than amplifying his message. Members of the speaker’s expected affinity group may empathise and sympathise with the victim rather than the speaker, which may have the effect of isolating the speaker within their own community. Speaker affinity group members may make it clear that the speaker, in his hateful speech, does not speak for them. If the speaker affinity group in the case of Terry Jones is other Christians and Christian leaders, many in this group responded by condemning the hatred. For example, President Obama talked about his Christian faith and what it meant to him in his condemnation of Terry Jones. Richard Cizik, president of the New Evangelical Partnership for the Common Good, said, ‘To those who would exercise derision, bigotry, open rejection of our fellow Americans of a different faith, I say, shame on you. As an evangelical, I say to those who do this, you bring dishonor to those who love Jesus Christ’.33 29 30 31 32 33

Cave and Barnhard, ‘Minister wavers on plan to burn Koran’. Terry Jones, ‘9/11 burning of Korans and ISIS with Dr. Terry Jones’. Rubin, ‘2 Afghans die in protest over Koran burning’. Cave, ‘Far from Ground Zero, obscure pastor is ignored no longer’. Goodstein, ‘Concern is voiced over religious intolerance’.

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27.3.2.3 Victim Affinity Group The victim’s affinity group can also seek to calm rather than inflame a situation. Some people whose group is targeted by offensive or hateful speech or worse respond not by calling for retaliation but for forgiveness or compromise. Victim affinity group members may engage in and insist upon protests of the hateful speech that are peaceful or may seek to educate others about why what the speaker has done is so offensive and hurtful. For example, Imam Musri worked as an intermediary between the imams building the Islamic Center in New  York and Terry Jones in Florida. Terry Jones claims he stopped the 9/11 burnings because Imam Musri brokered a deal that the Islamic Center would be moved further away from the Twin Towers location. In the end, his efforts to broker a compromise did not hold, and Jones eventually went forward with his plan to burn the Quran a couple of months later. 27.3.2.4 Victim or Target The target of hate speech can also decelerate a situation by ignoring the provocation, being slow to take offense, by responding to hate with love or even accepting an apology. While there were mass riots in Afghanistan, Kashmir, Indonesia and Pakistan in response to Terry Jones’s provocations, other Muslim-majority countries, as well as Muslims in the West – including local American Muslims – largely ignored the provocation. The imam in New York wrote an op-ed in the paper saying the Islamic community would not give in to extremists from either side – Muslim or anti-Muslim.34 27.4

Tactics for Deceleration before, during and after Provocations

What this analysis of offensive and hateful speech suggests is that there are a variety of tactics that can be used to decelerate rather than accelerate violence in response to hate speech. As noted, different parties, including speakers, the speaker’s affinity group, the victim’s affinity group and even the victims themselves can act as decelerants. Here I will briefly discuss tactics for deceleration during different time frames – before a provocation takes place, during and in the immediate aftermath of a provocation and after a provocation.

34

Feisal Abdul Rauf, ‘Building on faith’, New York Times, 7 September 2010, available at www .nytimes.com/2010/09/08/opinion/08mosque.html?_r=1&scp=1&sq=feisal&st=cse.

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27.4.1 Before Provocation Before a provocation occurs, strategies for deceleration include being sensitive to early indicators of social hostility and intolerance and efforts to reduce such tensions. This might include responding to legitimate grievances and providing equal protection, due process of law and equal treatment of groups that may be the target of discrimination or hatred. If minority groups do not experience discrimination, they are less likely to lash out at unequal treatment, and if majority groups understand that minorities are to be treated with equal respect, this can create an environment in which hate speech is less likely to take place and in which hate speech is more likely to be met with decelerating responses by victim affinity group members as well as speaker affinity group members. One specific strategy that can be employed is to create a culture in which harmful speech is met with counter-speech rather than with demands to suppress speech.35

27.4.2

During Provocation and Its Immediate Aftermath

In the immediate aftermath of offensive or hateful speech, the situation can often be diffused if speaker affinity group members and victim affinity group members respond by denouncing and distancing themselves from the harmful speech. If victims feel solidarity with others, they are less likely to heed calls for retaliation to protect the honour of the group. Speaker affinity group members can respond with empathy for victims rather than solidarity with hateful speakers. Influential members of affinity groups can use their platforms of influence to calm rather than inflame passions. Media and social media can be used to diffuse conflict. Political leaders will play a major role in either accelerating or decelerating emotions at

35

The AME Church shooting almost had a different outcome due to the congregants’ instincts for inclusion and kindness. Just before the shooting, the church study group welcomed Roof, a stranger, into the church to pray and study with them. They did not know that he had any intention to harm them, but their kindness nearly neutralized his hostility. Roof reportedly confessed to the police:  ‘[I] almost didn’t go through with it because everyone was so nice to [me]’. Daniel Arkin and Erik Ortiz, ‘Dylann Roof “almost didn’t go through” with Charleston church shooting’, NBC News, 19 June 2015, available at www.nbcnews.com/storyline/charleston-church-shooting/dylann-roof-almost-didnt-gothrough-charleston-church-shooting-n378341. Unfortunately, Roof did go through with the shooting in spite of the parishioners’ kindness, but their kindness towards a stranger was almost effective enough a decelerant to prevent the violence.

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times of crisis. In addition, community and religious leaders can either inflame or calm passions. One strategy both American and international leaders used during the Terry Jones Quran-burning controversy was to speak out in condemnation of the actions he was taking. Heads of state and military leaders spoke out against the event through the media and official statements. Another strategy that can be employed is to decide to limit the platforms of the speaker and divert the attention to the opposing view. John L. Esposito commented on the widespread coverage of the Terry Jones Quran-burning controversy by suggesting that politicians, the news media and all of Gainesville, Florida, should stop pleading or arguing against the Quran burning and instead offer a counter-message: ‘What we have to start doing is delivering the positive side of our message of who we are, and then that will set an example for others in our society who are maybe on the fence’.36

27.4.3 After Provocation Additional strategies can be employed as the passions of an immediate crisis pass. Community responses can be inclusive rather than isolating. Groups that have histories of mistrust can take steps to rebuild trust. The reaction of two grieving communities, the Charleston community following the AME Church shooting and the Amish community in Pennsylvania following the West Nickel Mines School shooting, after devastating shootings provide positive examples of how victim groups can act as decelerants following hate speech and hate crimes. Victims and the family members of victims of the AME Church shooting responded to the tragedy with forgiveness rather than anger. One victim’s daughter said to Roof at a court hearing, ‘You hurt a lot of people but God forgives you, and I forgive you’.37 Chris Singleton, the nineteen-yearold son of one of the victims, ‘spoke for an entire city when he asked for peace and calm’.38 Singleton said, ‘Love the way my mom would . . . I just 36

37

38

Damien Cave, ‘City disavows pastor’s talk of burning Koran’, New York Times, 10 September 2010, available at www.nytimes.com/2010/09/11/us/11gainesville.html?rref=collection%2 Ftimestopic%2FJones%2C%20Terry%20 (Pastor). ‘New details emerge about how the Charleston shooting unfolded’, CNN WIRE, 20 June 2015, available at myfox8.com/2015/06/20/new-details-emerge-about-how-thecharleston-shooting-unfolded/. Daren Stoltzfus, ‘Looking forward, Chris Singleton set for baseball after Emanuel’, ABC 4 News, 16 February 2016, available at abcnews4.com/news/emanuel-ame-shooting/lookingforward-chris-singleton-set-for-baseball-after-emanuel.

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say love is always stronger than hate. If we just love the way my mom would the hate won’t be anywhere close to what love is’.39 The peaceful Amish community of Pennsylvania was stunned when a non-Amish man walked into an Amish schoolhouse and took eleven young girls hostage. After a brief standoff with the police, the man shot all eleven girls, killing five of them, before killing himself.40 Following the shooting, the Amish responded with an overwhelming message of forgiveness.41 One observer said, ‘I don’t think there’s anybody here that wants to do anything but forgive and not only reach out to those who have suffered a loss in that way but to reach out to the family of the man who committed these acts’.42 Both communities responded to hatred and violence with a message of forgiveness for the perpetrators. After all, there will always be hatred and violence in the world, but as Chris Singleton reminded those suffering from the pain of hate speech and hate crime, ‘love is always stronger than hate’.43 Responding to hateful rhetoric with love is a powerful way to counteract hateful messages and decrease the likelihood that victim affinity groups will retaliate violently to hate speech.

27.5 Conclusion Martin Luther King, Jr., memorably said, ‘Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that’.44 Nelson Mandela spent twenty-seven years in prison before emerging to lead to the unification and reconciliation of his nation. ‘As I  walked . . . towards the gate that would lead to my freedom’, he said, ‘I knew if I  did not leave my bitterness and hatred behind, I’d still be in prison’.45 Why forgive? He asked, ‘When a deep injury is done to us, 39 40

41

42 43 44

45

Ibid. David Kociniewski and Gary Gately, ‘Man shoots 11, killing 5 girls, in Amish school’, New York Times, 3 October 2006, available at www.nytimes.com/2006/10/03/us/03amish .html. See, e.g., Amish Grandfather: ‘We must not think evil of this man’, CNN, 5 October 2006, available at web.archive.org/web/20071210073251/http://www.cnn.com/2006/US/10/04/ amish.shooting/index.html. Ibid. Stoltzfus, ‘Looking forward, Chris Singleton set for baseball after Emanuel’. Martin Luther King, Jr., ‘Loving Your Enemies’, Sermon Delivered at the Dexter Avenue Baptist Church in Montgomery, Alabama, 25 December 1957, at p. 1, available at ielpclassesbarbarapijan.pbworks.com/f/W4_Loving+Your+Enemies_MLK_AWL_marked.pdf. Evelyn Mayanja, ‘Strengthening ethical political leadership for sustainable peace and social justice in Africa: Uganda as a case study’ (2013), African Journal on Conflict Resolution,

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we never heal until we forgive’.46 ‘Resentment’, he said, ‘is like drinking poison and then hoping it will kill your enemies’.47 He explained that ‘No one is born hating another person because of the color of his skin, or his background, or his religion’. And if people can learn to hate, they can also learn to love. ‘People must learn to hate, and if they can learn to hate, they can be taught to love, for love comes more naturally to the human heart than its opposite’.48 Both King and Mandela were in positions in which they could act as both accelerants and decelerants to violence and retribution, and in situations in which they could easily have inflamed their followers to violence, they almost always did the opposite. They also demonstrate that deceleration does not mean being a doormat. It does not mean standing silently in the face of injustice, although there may be great power in that tactic at times. As we try to understand and respond constructively to the phenomena of offensive and hateful speech, it is important to think beyond juriscentric solutions to the problem and to focus on ways that the passions elicited by such speech can be calmed and cooled through strategies and tactics of deceleration.

46

47

48

at p.  126 (quoting Nelson Mandela, ‘Nelson Mandela Quotes’ (2012), available at www .goodreads.com/author/quotes/367338.Nelson_Mandela>). Orit Mohamed, ‘17 influential quotes from Nelson Mandela to remember on #MandelaDay’, Blavity, August 2016, available at blavity.com/17-influential-quotesnelson-mandela-remember-mandeladay. Margery Leveen Sher, ‘Don’t drink poison’, The World Post, 7 February 2014, available at www.huffingtonpost.com/margery-leveen-sher/dont-drink-poison_b_4408347.html. Nelson Rolihlahla Mandela, Long Walk to Freedom: The Autobiography of Nelson Mandela (Boston: Little, Brown & Company, 1994), at p. 542.

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719

INDEX

Abbas, Shemeem Burney, 177, 177n39, 179n44 Abrogated blasphemy laws overview, 4, 18–19 Netherlands. (See Netherlands) Norway. (See Norway) United Kingdom. (See United Kingdom) Accelerants overview, 709 defined, 708 speaker affinity groups as, 710 speakers as, 709–10 victim affinity groups as, 710–11 victims as, 711 Accidental blasphemy, 168, 186 Achterbusch, Herbert, 360 Active blasphemy laws overview, 15–16 Finland. (See Finland) Germany. (See Germany) Greece. (See Greece) Italy. (See Italy) Poland. (See Poland) Actus reus of blasphemy, 122–23, 205, 468–69 Adams, John, 104 Affinity groups speaker affinity groups as accelerants, 710 as audience, 705–6 as decelerants, 712 victim affinity groups as accelerants, 710–11 as audience, 705–6 as decelerants, 713

Afghanistan, blasphemy laws in, 575 African Union, 675–76 Ahern, Dermot, 466–67 Ahmed, Asad Ali, 176–77, 177n38, 188 Aikenhead, Thomas, 141n30 Akram, Zamir, 664, 669 Alekhina, Mariya Vladimirovna, 295, 296n5 Ali, Ayaan Hirsi, 171, 628 Alivizatos, Nicos, 406, 407–8 al Qaeda, 1, 73–74, 650–51 America Alone (Steyn), 484, 490n30, 499 Amnesty International, 512–13 Amor, Abdelfattah, 649 Amos, Tori, 194 Andorra, blasphemy laws in, 155n105 Androulakis, Mimis, 395–96, 403 Antinous, 579n10 Anti-Semitism in Canada, 482–84 in Finland, 330 in France, 69 in Norway, 570–71 “Apocalypse” (art work), 284–85 Apostasy, 141–42 Aquinas, Thomas, 580n12, 582n23 Arab League, 675–76 Argentina National Institute Against Discrimination, Xenophobia and Racism, 672 16/18 process in, 659, 672, 676 Årsheim, Helge, 19 Arthur, George, 513

719

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, subject to the Cambridge Core

720

Index

Artistic expression generally, 263n16 in Charlie Hebdo, 355 in ECtHR, 269–72, 279–81 gratuitous offence and, 272–73 in Greece, 394–401 justified blasphemy and, 423–24 Otto-Preminger-Institut v. Austria, 269–72 in Poland, 423–27 political speech versus, 279–81 Asad, Talal, 392n6 Ashraf, Sana, 172n18 Atheist Union of Greece, 403 Atkinson, Rowan, 613 Audience overview, 702–3 captive audience problem, 687, 687n25, 687n28 fighting words and, 703–4 incitement to hatred laws and, 704–5 speaker affinity groups as, 705–6 (See also Speaker affinity groups) speaker-audience-victim analysis, 701–2 victim affinity groups as, 705–6 (See also Victim affinity groups) Augustine of Hippo (Saint), 171, 580n12 Australia Australian Capital Territory blasphemy laws in, 517–18 Law Reform (Abolition & Repeals) Act 1996, 517–18 blasphemy laws in generally, 4 overview, 18, 510–12, 532–33 challenges posed by, 527–32 historical background, 513–14 reform proposals, 521–27 Broadcasting Act 1942, 521 Commission on Human Rights, 526–27 Constitution, 524–25 Criminal Code Act 1995, 514 definition of blasphemy in, 519 hate speech laws in, 527–28, 530–31 Human Rights and Equal Opportunity Commission, 526–27

Human Rights Committee General Comment 34 and, 524 ICCPR and, 524, 526–27 insult and ridicule, protection against, 532–33 Law Reform Commission, 525–26 Model Criminal Code, 520 National Gallery of Victoria, 510–11 National Human Rights Consultation, 526–27 New South Wales Blasphemous and Seditious Libels Act 1827, 513 blasphemy laws in, 512, 514 Crimes Act 1900, 514, 519 Defamation Act 1974, 514 hate speech laws in, 530–31 Imperial Acts Application Act 1969, 514 insult and ridicule, protection against, 528 Law Reform Commission, 526 Religious Opinions Act 1871 (proposed), 522 Norfolk Island, blasphemy laws in, 514 Northern Territory, blasphemy laws in, 517 Queensland blasphemy laws in, 516–17 insult and ridicule, protection against, 527 Objectionable Literature Act 1954, 518 Rationalist Society, 523 sacrilege laws in, 520n40 South Australia blasphemy laws in, 514, 517 Classification of Theatrical Performances Act 1978, 517 Criminal Law and Penal Methods Reform Committee, 525 insult and ridicule, protection against, 528 Tasmania blasphemy laws in, 513, 519 Criminal Code Act 1924, 515–16 insult and ridicule, protection against, 527 Police Offences Act 1935, 516

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, subject to the Cambridge Core

721

Index Victoria blasphemy laws in, 514 Crimes Act 1958, 515 insult and ridicule, protection against, 527 Racial and Religious Tolerance Act 2001, 527–28, 529–30, 529n85, 531–32, 531n94 Western Australia blasphemy laws in, 517 insult and ridicule, protection against, 528 Jetties Regulations 1940, 518 Austria blasphemy laws in, 96–97, 118–19, 173–74, 181 Copyright Act, 285 in ECtHR, 97 Freedom Party, 284–85, 285n108 16/18 process in, 676 Avebury, Lord, 130, 601–2 Äystö, Tuomas, 15 Bakewell, Joan, 126n61 Bangstad, Sindre, 564 Ban Ki-Moon, 174–75 Barelwis sect, 176–77, 188 Barendt, Eric, 614 de la Barre, Chevalier, 29 Baudelaire, Charles, 35n30 Baumgartner, Christoph, 170 Bazian, Hatem, 160 Beard, Mary, 579n10 Behemoth (band), 425–26 Benedict XVI (Pope), 89, 350, 367 Benesch, Susan, 702 Berger, Peter, 170–71 Bhatti, Shahbaz, 653, 671 Bhutto, Benazir, 178 Bible Denmark, desecration in, 444, 445–46 Poland blasphemy in, 96–97 desecration in, 425–26 as religious object, 414–15 as source of blasphemy laws, 199–200 United Kingdom, blasphemy in, 204, 227–28, 519, 577 Bielefeldt, Heiner, 439–41

721

Binderup, Lars Grassmé, 16–17 Black, Hugo, 108 Blackstone, William, 201–2, 227 Blair, Tony, 129n81 Blasphemy. See specific topic Blasphemy: How the Religious Right is Hijacking Our Declaration of Independence (Dershowitz), 103–4 Blasphemy laws. See specific topic Blunkett, David, 128, 601–2 Boko Haram, 73–74 Bolkestein, Frits, 628 Bonner, Hypatia Bradlaugh, 586n34 Book of Common Prayer, 121 Bouyeri, Mohammed, 628–29 Bradlaugh, Charles, 586, 586n34 Brandeis, Louis, 296n8 Breivik, Anders, 497, 498–99, 671 British Broadcasting Corporation (BBC), 95, 123–24, 126, 126n61, 163n145, 600, 695n58 Burke, Edmund, 498 Bury, J.B., 190n91 Bush, George H.W., 107 Bush, George W., 107 de Cambacérès, Jean Jacques Regis, 33 Cameron, David, 92 Canada Alberta Human Rights Code, 482, 484 anti-Semitism in, 482–84 blasphemy laws in generally, 4 overview, 17–18, 480–81, 508–9 minority religions and, 481 British Columbia Human Rights Code, 482, 484, 495 Canada Human Rights Act, 482, 482n9, 483, 484 Charter of Rights and Freedoms, 482–83 Criminal Code blasphemy under, 480–81, 480n1 hate speech under, 481–82, 482n8, 483, 485 hate speech laws in overview, 481–82 challenges of, 485–87

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722

Index

Canada (cont.) Islam and, 484–85, 489–91 Mark Steyn case, 495–99 religion as target of hate speech laws, 482–85 Holocaust denial in, 483 Human Rights Tribunal, 483 incitement to hatred laws in, 481–82 insult and ridicule, protection against, 499–501 Inter-faith Bridging Programme, 676 New Brunswick Human Rights Code, 483–84 Northwest Territories Human Rights Code, 482 religious membership, attribution of belief and, 487–89 Saskatchewan Human Rights Code, 482, 483 16/18 process in, 659, 663, 673, 676 Western Guard Party, 483 Captive audience problem, 687, 687n25, 687n28 Carey, Lord, 162, 617–18 Carr, Bob, 528 CERD. See Committee on the Elimination of All Forms of Racial Discrimination (CERD) Chait, Jonathan, 252, 253 Charbonnier, Stéphane, 1 Charles I (England), 201 Charles VII (France), 27 Charleston shooting (2015), 709–11, 709n21, 710n22, 714n35, 715–16 Charlie Hebdo (French magazine) generally, 359–60 artistic expression in, 355 blasphemy case against, 46–48 British blasphemy laws and, 617 chilling effect on, 360 Danish Cartoon Controversy compared, 355–56 Dutch blasphemy laws and, 638–39 freedom of expression and, 251 Greek blasphemy laws and, 408–9 hate speech in, 248 immoral cartoons in, 55, 58–59

Islam versus Christianity and Judaism in, 341–42 Italy blasphemy laws and, 353–56 defamation of religion laws and, 354 Muhammad, depictions of generally, 56, 159n127 as artistic expression, 355 as blasphemy, 57–58, 341–42 ECtHR jurisprudence and, 286–87 Italian blasphemy laws and, 353–56 Norwegian blasphemy laws and, 573–74 refusal of other media to publish cartoons, 250 terrorism, linking Islam to, 58 terrorist attack against (See Charlie Hebdo attack (2015)) xenophobic cartoons in, 55, 58–59 Charlie Hebdo attack (2015) generally, 1–2, 53, 139, 432, 455, 645, 702 overview, 12 blasphemy as cause of, 147–49, 223 Committee of Ministers and, 225 freedom of expression and, 81–82 German blasphemy laws and, 358 insult and ridicule as cause of, 194 Norwegian blasphemy laws and, 19 Parliamentary Assembly and, 225 public order and, 249 16/18 process and, 20, 667 workplace, effect on, 697–98 Chassan, Joseph Pierre, 37 Chatelain, R.T., 37 Chikh, Slimane, 664 Chile blasphemy laws in, 559, 559n27 Oficina Nacional de Asuntos Religiosos, 672 16/18 process in, 659, 672 Chilling effect of blasphemy laws in Ireland, 456 in Pakistan, 175n28 in Poland, 427–28

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723

Index on Charlie Hebdo, 360 Danish Cartoon Controversy and, 452 freedom of expression, chilling effect of terrorism on, 360 China, censorship in, 221 Christian V (Norway), 555–56 Christianity Bible. (See Poland) blasphemy in, 140–41, 199–200 Charlie Hebdo, Islam versus Christianity and Judaism in, 341–42 discrimination against, 225, 226, 358–60 European Union, attempts to enshrine Judeo-Christian heritage in, 87–88 hostility toward, 162n141 secularism versus, 225–26 Christodoulos (Archbishop), 396, 410 Christopoulos, Dimitris, 403, 406, 407 Christus mit der Gasmaske (art work), 360 Church Café (Finnish Internet forum), 329 Church of England generally, 205, 609 British blasphemy laws limited to, 124–26, 131, 203, 597, 601–2, 603, 608, 614n114, 615 Church of Ireland, 603 Church of Norway, 560n30 Church of Scientology, 171, 301n33 Churches, protection against defamation as reason for restrictions on freedom of expression, 234–35 Cianitto, Cristiana, 16 City of God (Augustine), 580n12 Civility, 501–4 Cizik, Richard, 712 Clashing universalisms, 76–81 “Clash of civilisations” generally, 224 overview, 168 blasphemy laws and, 175–78 human rights and, 224–25 The Clash of Civilisations (Huntington), 627 Clémenceau, Georges, 38

723

Clinton, Hillary, 91, 174, 214–15, 657 Coke, Lord, 587, 588n42 Coleman, Peter, 512, 524 Coleridge, Lord, 203–4, 589 Commission on Human Rights (UNCHR) generally, 649 blasphemy laws and, 144–45 Declaration on Religious Intolerance and Discrimination and, 648–49 Defamation of Religion Resolutions, 2–3, 57, 67–69, 115, 208–9, 650–53 historical background, 646–47, 677 Otto-Preminger-Institut case, 144–45 Sub-Commission on the Prevention of Discrimination and Protection of Minorities, 677 Committee on the Elimination of All Forms of Racial Discrimination (CERD), 403–4, 405, 570 Committee of Ministers blasphemy laws and, 5 Charlie Hebdo attack and, 225 ECHR and, 475 Ireland and, 473, 475 Communitarianism versus individualism, blasphemy laws and, 212–15 Conscience, freedom of. See Freedom of conscience Constantine (Rome), 579–80 Context of blasphemy, 302 of blasphemy laws, 217–19 of expression, 305–6 Convention on the Rights of Persons with Disabilities, 567 Convention against Torture, 648 Conversion blasphemy, 187–88 Copenhagen attack (2015), 1, 358, 432, 447, 455 Copernicus, Nicolaus, 215–16 de Cordier, Thierry, 396–98 Cornils, Matthias, 15–16, 17 Corpus Christi (play), 400–1, 400n33, 402, 404n43, 406

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724

Index

Council of Europe Committee of Ministers blasphemy laws and, 5 Charlie Hebdo attack and, 225 Ireland and, 473, 475 ECtHR. (See European Court of Human Rights (ECtHR)) Parliamentary Assembly. (See Parliamentary Assembly) Venice Commission(See Venice Commission) Cox, Neville, 12, 170, 179, 226, 229, 243–44, 460 Cram, Ian, 13, 287n113 The Crisis of Rights (Christopoulos), 409 Criticism of religion, right of, 375–77 Croatia, blasphemy laws in, 96–97 Crucifixes, 351n36 Cruz, Ted, 91 “Cultural racism,” 492n41 Cumper, Peter, 13–14 Curtis Culwell Center attack (2015), 1, 358 Cyprus, blasphemy laws in, 96–97 Czech Republic, blasphemy laws in, 96–97 Dacey, Austin, 142 Dalloz (publisher), 37 Danish Cartoon Controversy generally, 139, 179n44, 194, 223, 250, 286–87, 341, 359, 432, 452–53, 455, 702 attempts to prosecute regarding, 436–37 Charlie Hebdo compared, 355–56 chilling effect and, 452 Copenhagen attack and, 1 differential treatment of Islam and Christianity, 162n144 ECtHR and, 146 in Finland, 327, 333, 336 freedom of expression and, 251 incitement to hatred laws and, 187 insult and ridicule, cartoons as, 499–500 lack of prosecution regarding, 173 in Netherlands, 639 in Norway, 562, 573

protests regarding, 707–8 refusal of other media to publish cartoons, 250 self-censorship and, 452 self-restraint model and, 161–62 16/18 process and, 672, 675 workplace, effect on, 697–98 Danish PEN (NGO), 432, 441–42, 447, 453 Danish People's Church (Folkekirke), 448–49, 450 Dansk Muslimsk Forening, 450 Darski, Adam “Nergal,” 415n13, 425–26 Darwin, Charles, 588–89 Das Liebeskonzil (film), 269, 273 Dawkins, Richard, 507 Death penalty for blasphemy, 182 Death to Prison, Freedom to Protest (Pussy Riot song), 310 Debate-speech, 287–93 Decelerants after provocation, 715–16 defined, 708–9 before provocation, 714 during provocation, 714–15 speaker affinity groups as, 712 speakers as, 712 victim affinity groups as, 713 victims as, 713 Declaration on Religious Intolerance and Discrimination, 646–49, 651, 677 Defamation of religion laws overview, 207–10 blasphemy laws compared, 150n74 changes in blasphemy laws and, 117–20 in Finland, 322–23, 324 freedom of conscience and, 207–8, 651–53 freedom of expression, protection of churches against as reason for restrictions on, 234–35 in Germany basic principles, 367–69 fundamental rights analysis, 373–74 public order as argument for prohibition of, 370–73 hate speech laws compared, 68–69

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725

Index Human Rights Council and, 115 incitement to hatred laws and, 208 in Italy overview, 346–47 Charlie Hebdo, depictions of Muhammad in, 354 individuals, 348–50 religious denominations, 350–52 mens rea in, 349, 352 in Norway, 571–73 public morality and, 80n59 Special Rapporteur and, 652–53 Defamation of Religion Resolutions, 2–3, 57, 67–69, 115, 208–9, 650–53 Deference by European Court of Human Rights, 143–47, 146n55, 264–66, 265n21, 271–72, 275–77, 288– 89, 290, 420 Defining characteristics, religion and, 71–72 Definitions blasphemy, 57, 140–42, 198–99, 203–4, 227–28, 459–60, 519, 577–78 religion, 207 Deliberative democracy, 213 Denmark abolition, 432 Alien's Act, 17, 432, 438–39 blasphemy laws in generally, 4, 97, 173–74, 181 overview, 16–17, 431–32, 451–55 arguments for abolishing, 442–44 arguments for retaining, 444–45 conformity with other countries, 443 dormant nature of, 434–39 freedom of expression versus, 442–43 historical background, 433 minority religions, effect on, 453, 454 narrow construction of, 444 as outdated, 442 prosecutions under, 434–37, 444 public order and, 433, 444, 445, 453–55 rarity of use, 173

725 religious community requirement, 443 religious promulgators and, 438– 39, 450–51 status of offence and, 434–39 Conservative People's Party, 446, 451 Copenhagen attack (2015), 1, 358, 432, 447, 455 Criminal Law Council report, 442–45 generally, 432, 441, 451 arguments for abolishing blasphemy laws, 442–44 arguments for retaining blasphemy laws, 444–45 Danish PEN and, 447 political parties, views of, 445–47 religious communities, views of, 448–51 Danish Cartoon Controversy. (See Danish Cartoon Controversy) Danish PEN (NGO), 432, 441–42, 447, 453 Danish People's Party, 441–42, 447, 451 freedom of expression in, 442–43 hate speech laws in, 434, 444, 452, 454 Institute for Human Rights, 432, 439, 441 insult and ridicule, protection against, 433–34, 444–45, 452 Jesus, depictions of, 435–36 Jews in, 449–50, 453 Liberal Alliance, 441–42, 446–47 Ministry of Justice, 435–36, 448 multiculturalism in, 443 Penal Code of 1866, 433 Penal Code of 1933 Article 140 generally, 431–32 Article 266b, 434, 444, 452, 454 Criminal Law Council report and, 442–45 dormant nature of, 434–39 historical background, 433 Institute for Human Rights and, 441 political parties, views of, 445–47

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726

Index

Denmark (cont.) recent developments, 441–42 religious communities, views of, 448–51 Special Rapporteur and, 440 Quran, desecration of, 453–54 Red-Green Alliance, 446 religious sensitivities, protection of, 433–34, 452 Roman Catholicism in, 449 16/18 process in, 670–71, 672, 676 Social Democratic Party, 445–46, 451 Socialist People's Party, 446 Social-Liberal Party, 446 Special Rapporteur and, 17, 432, 439–41, 453 Venice Commission and, 443 Venstre Party, 446 “Your Faith—My Faith,” 676 Denning, Lord, 166, 600 Dershowitz, Alan, 103–4 Dialogue (Dutch magazine), 625 Dignity freedom of expression and, 286n109 hate speech laws and, 246–47 religious sensitivities, protection of, 255 Dimitras, Panayote, 404–5, 404n45, 406 Discourses on Livy (Machiavelli), 109–12 Disruption of religious proceedings in Finland, 322–23 in Italy, 352–53 in Poland, 415–16 Doe, Norman, 117, 119, 601, 602, 603, 604, 605, 606–7 Donahoe, Eileen, 658 Donatist Schism, 579–80 Dormant blasphemy laws overview, 4, 16–18 Australia. (See Australia) Canada. (See Canada) Denmark. (See Denmark) Ireland. (See Ireland) United States. (See United States) Double standards regarding blasphemy laws, 2–4 Douglas, Lawrence, 243

Douglas, William O., 108 Douthat, Ross, 226 Dupin, André, 39 Dutch Association against Cursing, 626 Dworkin, Ronald, 152, 188, 246–47, 250 East India Company, 587–88 Ecclesiastical courts in England, 200–1, 584–86 ECHR. See European Convention on Human Rights (ECHR) ECtHR. See European Court of Human Rights (ECtHR) Edmund-Davies, Lord, 205 Edward VI (England), 121 Eliot, T.S., 210, 221–22 Elizabeth I (England), 582n23 Ellis, Anthony, 229 Emanuel American Methodist Episcopal Church (Charleston) shooting (2015), 709–11, 709n21, 710n22, 714n35, 715–16 Employment, religious rights and. (See Workplace, religious rights in) End Blasphemy Laws Now campaign, 403–5 England. See United Kingdom English Reformation, 121–22, 201, 582 Erdoğan, Recep Tayyip, 358 Ergüven, Abdullah Riza, 300–1 Esposito, John L., 715 European Commission on Human Rights generally, 421n36 Ireland and, 460–61 Otto-Preminger-Institut v. Austria, 270n40 Poland and, 420, 426 European Convention on Human Rights (ECHR) actus reus of blasphemy and, 468 ambivalence regarding blasphemy laws, 97 Article 7, 603, 616 Article 8, 286 Article 9 generally, 426, 578n7

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72

Index balancing with Article 10, 151–52, 235–36, 272, 286–87, 473–75, 598–99, 600 blasphemy under, 603 freedom of conscience and, 413–14, 460–61, 683–84, 685–86 gratuitous offence and, 273 insult and ridicule, protection against, 143–44, 271 political speech versus artistic expression, 279–81 private offence under, 146 public life, religion in, 234 Article 10 generally, 282, 283, 288, 416, 459, 605 balancing with Article 9, 151–52, 235–36, 272, 286–87, 473–75, 598–99, 600 France and, 42 freedom of expression under, 260–65, 267–68, 565–66, 683– 84, 685–86 gratuitous offence and, 274–75 Halla-aho case and, 332 insult and ridicule, protection against, 97, 143–44 Otto-Preminger-Institut v. Austria, 270–71 political speech versus artistic expression, 279–81 religious sensitivities, protection of, 476, 605 satire and, 284–86 shift in jurisprudence under, 145 blasphemy laws and, 603–4, 616 Committee of Ministers and, 475 freedom of conscience in, 235–36 freedom of expression in, 260–65, 267–68, 565–66, 683–84, 685–86 immoral speech and, 54–55, 60–61, 62–63, 77, 80 insult and ridicule under, 363, 683 jurisdiction, 146 Muslim clothing under, 292n132 negative obligations under, 288n115 positive obligations under, 288n115

727

public manifestation of religious belief under, 89n8 restrictions on speech under, 54–55, 60–61, 62–63, 77, 80 resurrection of blasphemy laws and, 151–52 right to blasphemy in, 114, 133 United Kingdom and, 609 incorporation in, 597 workplace, applicability to, 686–88, 687n24 European Court of Human Rights (ECtHR) generally, 4–6 overview, 15, 259–60, 293 actus reus of blasphemy and, 468 artistic expression in, 269–72, 279–81 assimilationism in, 112–13 Austria in, 97 blasphemy laws and generally, 416–17 overview, 143–47, 296–300, 591–93 divisions regarding, 300 flaws in reasoning regarding, 297 shift in jurisprudence of, 281, 286–87, 303–4 toleration of, 296–97, 298 Choudhury v. United Kingdom, 591, 684 Danish Cartoon Controversy and, 146 “deep end of pool” metaphor, 266n22, 269 deference by, 143–47, 146n55, 264– 66, 265n21, 271–72, 275–77, 288–89, 290, 420 France in, 42–43, 45–48, 49 freedom of conscience in, 235–36 freedom of expression in, 265–66 Gay News v. United Kingdom, 598–99 Giniewski v. France, 281–82 gratuitous offence, 271, 272–75, 312–13, 504 Handyside v. United Kingdom, 262–65 hate speech laws in, 68–69, 245 Holocaust denial in, 243n44 Human Rights Committee compared, 55n4 İ.A. v. Turkey, 276–77, 300–3

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728

Index

European Court of Human Rights (ECtHR) (cont.) immoral speech in, 62–63 insult and ridicule, protection against, 270–71, 683–84 Ireland in, 98, 473–75 Jersild v. Denmark, 267–68 Klein v. Slovakia, 283–84, 303 level of scrutiny in, 278–79 Lingens v. Austria, 266–67 margin of appreciation, 264–69, 265n21, 271–72, 275–77, 288– 89, 290, 420 Mouvement Raeliën Suisse v. Switzerland, 288–93 Muslim clothing in, 292n132 Netherlands in, 636 Norway in, 565–66 offensive speech in, 238 Otto-Preminger-Institut v. Austria, 42–43, 144, 173, 269–72, 312, 683–84 political speech artistic expression versus, 279–81 blasphemy versus, 304–11 “Pussy Riot” case. (See “Pussy Riot” case) reform models in, 165 religious sensitivities, protection of, 270–71, 380 right to blasphemy in, 114 “rule of law” test, 416, 416n15 “shallow end of pool” metaphor, 265–69, 266n22 TV Vest AS & Rogaland Pensjonistparti v. Norway, 565–66 United Kingdom in, 19, 97–98, 126–27, 461, 591–93, 598–99, 604–6, 609, 616 Vereinigung Bildener Künstler v. Austria, 284–86 Wingrove v. United Kingdom, 275–76, 599–600, 604–5 European Humanist Federation, 404, 404n43 European UnionSee also specific country blasphemy laws in, 3, 96–99 Charter of Fundamental Rights, 88

Judeo-Christian heritage, attempts to enshrine in, 87–88 16/18 process and, 675–76 Evangelical Lutheran Church of Finland, 320–21, 324 Evatt, Clive, 523 Expression, freedom of. (See Freedom of expression) Facebook Greece, blasphemous posts in, 399–400 Muhammad, offensive statements regarding on, 328–29 Family Guy (television program), 186 Farinacius, Prosper, 553 Feinberg, Joel, 59n15, 60, 278n77, 686 Fenwick, Helen, 280n83 Feuerbach, Ludwig, 391–92 Fielding, Henry, 124–25 Field of Dreams (film), 189 The Fifteen Plagues of Maidenhead (Read), 585 Fighting words, 185n70, 546–49, 703–4 Finland anti-Semitism in, 330 blasphemy laws in generally, 4, 97, 411n1 overview, 15, 317–18, 337–38 attempts to abolish, 337, 337n73 convictions under, 326–30 discussion of, 333–36 historical background, 318–22 legal analysis of, 322–26 Netherlands compared, 338n76 religious community requirement, 324–26 secularism and, 334 societal context, 318–22 uniqueness of religion and, 334–35 Constitution, 319, 321 Constitutional Law Committee, 323 Criminal Code, 317, 318, 318n3, 319, 334–35, 338 Danish Cartoon Controversy in, 327, 333, 336 defamation of religion laws in, 322–23, 324

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729

Index disruption of religious proceedings in, 322–23, 324 Freedom of Religion Act, 319, 321– 22, 324–26 “immigration criticism,” 322 incitement to hatred laws in, 326 independence of, 319 insult and ridicule, protection against, 323 Jesus, depictions of, 327–28 Legal Affairs Committee, 323 mosques, vandalism of, 329–30 Muhammad, depictions of, 327, 328 multiculturalism in, 321 Muslims in, 320–21 Parliamentary Assembly and, 332–33 Patent and Registration Office, 325 Perussoumalaiset Party, 322, 322n18, 330 Suomen Sisu (political organisation), 322, 330 Suomen Vastarintaliike (political organisation), 322 Vapaa-Ajattelijatry (association), 327–28 Finnish Orthodox Church, 324 Fitna (film), 632–33 Flaubert, Gustave, 35n30 Fletcher, Robin, 532 Fokas, Effie, 16 Forman, Miloš, 303 For the Freedom of Art (Takis), 406 Fortser, William, 522 Fortuyn, Pim, 628 Forum externum, 305, 312 Forum internum, 305, 312, 335 Fox, Jonathan, 99 Fragmentation of international law, 4–9 France Act of 22 July 1791, 30–31 Act of 17 May 1819, 34–36, 35n30 Act of 25 March 1822, 36–37 Act of 29 July 1881, 38–40, 41–42, 46, 51–52 Act of 9 December 1905, 40, 50, 51 anti-Semitism in, 69 blasphemy laws in overview, 12, 25, 52

729

in Alsace-Moselle, 50–52 general principles of contemporary law, 41–49 Pietists and, 35–36 pre-Revolution, 26–29 Revolution to Third Republic, 30–38 Third Republic, 38–40 Charlie Hebdo. (See Charlie Hebdo (French magazine)) Civil Code, 41 Civil Constitution of the Clergy (1790), 30 Constitution, 39, 50–51 Constitutional Charter of 1814, 34 Criminal Code of 1791, 30 Criminal Code of 1810, 31–34 Déclaration des droits de l’homme (1789), 25, 41 in ECtHR, 42–43, 45–48, 49 German Criminal Code, applicability in Alsace-Moselle, 50–52 Marchandeau decree, 40 Paris attacks (2015), 68, 645 Pleven Act, 40 Francis (Pope), 11, 194–95 Frankfurt, Harry, 170 Frankfurter, Felix, 107–8 Frederickson, George M., 492 Frederiksen, Mette, 445–46 Freedom of conscience blasphemy laws versus, 616 defamation of religion laws and, 207–8, 651–53 in ECHR, 235–36 Article 9, 413–14, 460–61, 683–84, 685–86 in ECtHR, 235–36 freedom of expression, protection as reason for restrictions on, 235–37 Human Rights Committee and, 77–78 ICCPR and, 208, 413–14 intellectual liberty and, 215–17 in Ireland, 464 in Poland, 413–14, 413n8 public morality and, 77–79 religious sensitivities, protection of, 151n86

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730

Index

Freedom of expression artistic expression(See Artistic expression) blasphemy laws versus, 168, 616 Charlie Hebdo attack and, 81–82 chilling effect of terrorism on, 360 criminalisation of speech, 207–8, 209 criticism of religion, right of, 375–77 Danish Cartoon Controversy and, 251 debate-speech, 287–93 democracy and, 262–63, 263n13, 265–69 in Denmark, 442–43 dignity and, 286n109 in ECHR, 260–65, 267–68, 565–66, 683–84, 685–86 in ECtHR, 265–69 fighting words, 185n70, 546–49 in Germany criticism of religion, right of, 375–77 insult and ridicule, protection against as reason for restrictions on, 381–82 justification for restrictions on, 377 practice of religion, protection as reason for restrictions on, 378–79 religion-specific protection, 385–87 religious sensitivities, protection as reason for restrictions on, 380–81 tolerance, protection as reason for restrictions on, 382–85 gratuitous offence and, 271, 272–75, 312–13 hate speech laws versus, 497 ICCPR and, 78, 164n150, 197, 206, 209 individual and, 263, 287–93 in Ireland, 458–59, 468 Islam and, 147–48 “marketplace of ideas,” 296n8 in Poland, 416–21 political speech artistic expression versus, 279–81 blasphemy versus, 304–11 public debate and, 312–13 public morality and, 76–77 restrictions on

churches, protection against defamation as reason for, 234–35 freedom of conscience, protection as reason for, 235–37 hate speech laws, 245–48, 255 Holocaust denial, 63–64, 242–45 offensive speech, 237–42 public order, protection as reason for, 248–49, 255 religious sensitivities, protection as reason for, 237–45 rights versus responsibilities, 249–53 satire, 284–86 self-restraint model and, 161–62 societal progress and, 263 in United Kingdom, 612–15 in United States, 545–49 viewpoint-based restrictions on, 549 weight of expression, 262–65 Freethinker (British magazine), 589 The Free Thinker (Norwegian magazine), 557–58 Future of blasphemy laws, 19–21 Gaenswein, Monsignor, 350 Galileo Galilei, 215–16 Garcia, Rodrigo, 359 Garcia Oliva, Javier, 599, 601 Gasparri, Alberto, 194 Gates, Robert M., 214–15 Gatti, Mauro, 96–97 Gay News (British magazine), 126n61, 589–90, 598–99 Gearty, Conor, 265, 266n22 Geller, Pamela, 1 German Law Association, 362 Germany Basic Law generally, 387 criticism of religion, right of, 375 fundamental rights analysis, 373–74 Holocaust denial under, 63 insult and ridicule, protection against, 362, 366, 369 practice of religion, protection as reason for restrictions on freedom of expression, 378

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731

Index public order and, 363 religion-specific protection, 385, 386–87 restrictions on freedom of expression, 377 blasphemy laws in generally, 4, 15–16, 97, 173–74, 181, 192–93 overview, 387–88 attempts to abolish, 361–62 changes in, 117, 118, 119 Charlie Hebdo attack and, 358 constitutional legitimacy of, 374–75 convictions under, 361 Holocaust denial compared, 63–64 public order as argument for, 363 support for, 363 Criminal Code generally, 629 blasphemy in, 117, 358, 361, 362 defamation of religion laws in, 367–69, 370, 373–74 insult and ridicule, protection against, 364, 367 religious sensitivities, protection of, 364, 367 restrictions on freedom of expression under, 377 tolerance, protection of, 382–83 defamation of religion laws in basic principles, 367–69 fundamental rights analysis, 373–74 public order as argument for prohibition of, 370–73 freedom of expression in criticism of religion, right of, 375–77 insult and ridicule, protection against as reason for restrictions on, 381–82 justification for restrictions on, 377 practice of religion, protection as reason for restrictions on, 378–79 religion-specific protection, 385–87 religious sensitivities, protection as reason for restrictions on, 380–81

731

tolerance, protection as reason for restrictions on, 382–85 German Law Association, 362 hate speech laws in, 379 insult and ridicule, protection against, 364–67, 381–82, 411n1 Muhammad, depictions of, 361 Quran, desecration of, 370–71 religion-specific protection, 385–87 religious sensitivities, protection of, 364–67, 380–81 tolerance, protection of, 382–85 Ghanea, Nazila, 20 The Ghost (film), 360 Gil, Guilhem, 12 Giménez Barbat, María Teresa, 412n5 Godard, J.P., 43–44 God has no need of a public attorney: Church, Blasphemy, and Golden Dawn (HLHR book), 402–3 Golgota Picnic (art work), 359 Goodall, Kay, 604, 618 Gorgoroth (Norwegian band), 424–25 Gratuitous offence, 271, 272–75, 312– 13, 504 Greece artistic expression in, 394–401 Bavarian Code of 1813, 391–92 blasphemy laws in generally, 4, 97 overview, 16, 389–91, 408–10 attempts to abolish, 401–5 Charlie Hebdo and, 408–9 debate regarding, 406–8 discriminatory application of, 408 historical background, 391–94 prosecutions under, 394–401 resurfacing of, 391 uniqueness of religion and, 407–8 Constitution, 390, 398, 402n37 Criminal Code Article 198, 390, 403–4 Article 199, 390, 398, 403–4 Criminal Law of 1834, 391 Facebook, blasphemous posts on, 399–400 “God's Advocates,” 389 Golden Dawn Party, 400–1

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732

Index

Greece (cont.) Hellenic League for Human Rights (HLHR), 402–3 Human Rights Committee and, 404n42 insult and ridicule, protection against, 390, 411n1 Jesus, depictions of, 394–401 Ministry of Justice, 405 Ministry of Press and Tourism, 393 “Morality Police Force,” 392 Office of the Ombudsman, 402 Organization for the Promotion of Greek Culture, 402 self-censorship in, 406–7 Greece (Ancient), blasphemy laws in, 199 Greek Helsinki Monitor, 404–5, 404n43 Greek Orthodox Church, 408 Greve, Vagn, 454 Griffith, Samuel, 516–17 Grosz, George, 360 Habermas, Jürgen, 213 Haderer, Gerhard, 398–99 Hadrian (Rome), 579n10 Hagen, Carl I., 561, 562 Hail Mary (film), 43–44 Hajncel, Paweł, 427 Hale, Lord, 202–3, 581–82, 581n20, 583, 584, 586, 588, 589 Halla-aho, Jussi, 322, 330–33, 334, 336 Hambler, Andrew, 20 Handyside, Richard, 264 Hannaford, John, 530 Harassment in workplace, 688–91 Hare, Ivan, 19, 603–4, 607, 614 Harries, Richard, 160 Harris, Evan, 608–10 Hate speech laws. (See also Incitement to hatred laws) generally, 14 overview, 20–21, 210–12 attribution of belief and, 487–89 in Australia, 527–28, 530–31 beliefs versus groups as targets of speech, 486–87 in Canada overview, 481–82

challenges of, 485–87 Islam and, 484–85, 489–91 Mark Steyn case, 495–99 religion as target of hate speech laws, 482–85 civility versus, 502–3 conduct as speech, 701n1 defamation of religion laws compared, 68–69 in Denmark, 434, 444, 452, 454 dignity and, 246–47 in ECtHR, 68–69, 245 freedom of expression versus, 497 in Germany, 379 gratuitous offence and, 504 history of violence and, 497–98 ICCPR and, 68–69, 379 incitement to hatred laws versus, 247–48 misinformation and, 496 in Netherlands blasphemy versus hate speech, 636–37, 638 criticism of religion versus, 638–40 homosexuality and, 635 in Norway overview, 566–71 anti-Semitism and, 570–71 blasphemy versus hate speech, 571 disability and, 567 homosexuality and, 567, 569 Nazis and, 569–70 in Poland, 418 public debate and, 496–97 religious hate speech, 210–12 restrictions on speech, 245–48, 255 16/18 process and, 211 in United States, 549 violence, prevention of, 211–12 Havansi, Erkki, 335 Hayat, Farooq, 181n53 Hayat, Zahra, 177, 181n52, 182, 185n68, 192–93 Hellenic League for Human Rights (HLHR), 402–3 Henriksson, Anna-Maja, 333–34 Henry, Patrick, 105 Henry VIII (England), 121, 582, 582n23

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73

Index Herrenberg, Tom, 174–75, 175n28 Herzfeld, Michael, 392n6 Hess, Rudolf, 569 Hill, Mark, 13, 19, 603 Hillgruber, Christian, 363 Historical background of blasphemy laws overview, 199–200 in Australia, 513–14 in Denmark, 433 in Finland, 318–22 in Greece, 391–94 in Italy, 342–44 in Netherlands, 620–23 in Norway, 554–60 in Poland, 413 in United Kingdom, 94–96, 121–27, 199, 200–6, 596–601 in United States, 535–39 Hitchens, Christopher, 507 Hochmann, Thomas, 183 Holder, Cindy, 160 Holdsworth, William S., 588 Holmes, Oliver Wendell, 217, 250–51, 296n8 Holocaust denial generally, 14 blasphemy compared, 242–45 in Canada, 483 in ECtHR, 243n44 in Germany, 63 in Netherlands, 639 restrictions on, 63–64, 242–45 Honour killings, 340n4 Howard, Erica, 19 Humanist Union of Greece, 403–4 Human Rights Committee overview, 6–7 blasphemy laws and, 76–77, 116, 132, 206, 298–99 ECtHR compared, 55n4 freedom of conscience and, 77–78 General Comment 34 Australia and, 524 blasphemy laws and, 76–77, 116, 132, 167, 206, 298–99 Ireland and, 471–72, 473, 477 Greece and, 404n42

733

incitement to hatred laws and, 705 Norway and, 564–65 public morality and, 79, 80 Human Rights Council Declaration on Religious Intolerance and Discrimination and, 647 defamation of religion laws and, 115 Defamation of Religion Resolutions and, 209 incitement to hatred laws and, 115 Norway and, 565 16/18 process. (See 16/18 process) Human Rights First, 674 Human Rights Watch, 512–13 Hungary, blasphemy laws in, 120 Huntington, Samuel, 164n149, 175n29, 627 Hussain, Abid, 472 Al Hussein, Zeid Ra’ad, 645 Huxley, Thomas, 588–89 ICCPR. See International Covenant on Civil and Political Rights (ICCPR) Iceland, blasphemy laws in, 153, 411–12 ICERD. See International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) İhsanoğlu, Ekmeleddin, 653, 656–57 Illman, Mika, 331–32 Immoral speech. (See also Public morality) in Charlie Hebdo cartoons, 55, 58–59 community, offensiveness to, 62–67 ECHR and, 54–55, 60–61, 62–63, 77, 80 ICCPR and, 54–55, 60–61, 77, 79–80 individuals, offensiveness to, 59–62 “N” word, 60, 61 political correctness and, 60n16 restrictions on, 55–56, 59–67 Immutability religion and, 69–71 religious sensitivities, as argument for protection of, 230–32 Inadvertent blasphemy, 168, 186

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734

Index

Incitement to hatred laws. (See also Hate speech laws) overview, 115, 704n12 arguments against model, 156–57 arguments for model, 155–56 audience and, 704–5 blasphemy versus incitement, 615–16 in Canada, 481–82 Danish Cartoon Controversy and, 187 defamation of religion laws and, 208 in Finland, 326 hate speech laws versus, 247–48 Human Rights Committee and, 705 Human Rights Council and, 115 ICCPR and, 197, 208, 704–5, 705n15 in Ireland, 462, 468 in Italy, 346, 356 in Netherlands, 632–35 “Pussy Riot” case and, 305, 313–14 Rabat Plan of Action and, 115–17, 115n6, 155, 171n13 as reform model, 154–58 religious sensitivities and, 167n3, 172 16/18 process, under, 155, 657–58, 673–74 in United Kingdom, 128–31, 610–12, 615–16 Venice Commission and, 155, 155n105 India Penal Code, 172, 175–76, 182, 184– 85, 189, 190, 592n62 religious conflict in, 172, 187–88 Individualism versus communitarianism, blasphemy laws and, 212–15 Indonesia Ministry of Religious Affairs, 671–72 16/18 process in, 671–72, 676 Inequal power. See Powerlessness The Innocence of Muslims (film), 174, 194, 341, 359–60, 675, 707n20 Innocent III (Pope), 580–81 Inquisition, 215–16, 580

Insult and ridicule, protection against overview, 137–40 argument for, 99–103 in Australia, 532–33 as basis of blasphemy laws, 682–86 blasphemy distinguished, 596 in Canada, 499–501 Charlie Hebdo attack and, 194 civility and, 501–4 Danish Cartoon Controversy and, 499–500 in Denmark, 433–34, 444–45, 452 in ECHR, 363, 683 Article 9, 143–44, 271 Article 10, 97, 143–44 in ECtHR, 270–71, 683–84 in Finland, 323 in Germany, 364–67, 381–82, 411n1 in Greece, 390, 411n1 indirect insult, 630–32 in Ireland, 464–66 in Italy, 346–47, 354, 411n1 in Netherlands, 630–32 in Poland, 413–14, 417–21 public significance of religion and, 507–8 “Pussy Riot” case and, 305, 312 rational criticism versus, 505–6 in United Kingdom, 588–94, 596 in United States, 545–46 Venice Commission and, 6 Intellectual liberty, blasphemy laws and, 215–17 Intent to cause harm, blasphemy laws and, 182–83 Inter-American Court of Human Rights, 559, 559n27 Inter-faith disputes, 141 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 19, 354–55, 403–4, 526, 567, 570 International Covenant on Civil and Political Rights (ICCPR) generally, 184, 578n7 overview, 6–8 abrogated blasphemy laws and, 19

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735

Index Australia and, 524, 526–27 blasphemy laws and, 116, 206 freedom of conscience and, 208, 413–14 freedom of expression and, 78, 164n150, 197, 206, 209 hate speech laws and, 68–69, 379 immoral speech and, 54–55, 60–61, 77, 79–80 incitement to hatred laws and, 197, 208, 704–5, 705n15 Ireland and, 477–78 Norway and, 564 restrictions on speech under, 54–55, 60–61, 77, 79–80 16/18 process and, 664–65, 666, 667–68, 673 United States and, 197–98 International Crisis Group, 512–13 International Humanist and Ethical Union, 404 Internet, blasphemy laws and, 220–21 Intra-faith disputes, 141 Ioakeimidis, Christos, 396 Iran blasphemy laws in, 173–74, 438 censorship in, 221 Ireland bill to abolish blasphemy ban, 457 blasphemy laws in generally, 4, 97, 192–93, 674 overview, 17, 456–57, 478–79 attempts to abolish, 456–57 chilling effect of, 456 Constitutional Convention, criticism by, 470 Constitution and, 458–61 Constitution Review Group, criticism by, 469–70 dearth of case law regarding, 460 freedom of expression versus, 468 Law Reform Commission, criticism by, 467–69 Pakistan compared, 64, 173 Censorship of Films Act 1923, 461 Committee of Ministers and, 475, 476–77

735 Constitutional Convention, 65n30, 461, 467, 470 Constitution of 1922, 459, 463–64 Constitution of 1937 Article 40.1, 464 Article 40.6.1, 458–59, 469, 470–71 Article 44, 460–61, 460n18, 464 blasphemy under, 64–65, 456–57, 458–61, 603 fundamental rights under, 458 promulgation of, 458 unenumerated rights under, 458 Constitution Review Group, 459, 461, 469–70 Corway v. Independent Newspapers (Ireland) Ltd., 603–4 Defamation Act 1961, 462–64, 471 Defamation Act 2009 generally, 65n29, 89–90, 90n14, 298, 456–57, 470–71, 674 overview, 64–66, 464–67 insult and ridicule, protection against, 17, 228, 464–66 Pakistan compared, 173 as reform model, 149–54 Section 36, 464–66 Section 37, 464–66 Department of Justice and Equality, 467 Director of Film Classification, 461 in ECtHR, 98, 473–75 equal treatment of religion in, 460–61, 460n18 European Commission on Human Rights and, 460–61 freedom of conscience in, 464 freedom of expression in, 458–59, 468 Human Rights Committee General Comment 34 and, 471–72, 473, 477 ICCPR and, 477–78 incitement to hatred laws in, 462, 468 insult and ridicule, protection against, 464–66 Law Reform Commission, 461, 462, 463, 464–65, 467–69 Law Reform Commission Act 1975, 467

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736

Index

Ireland (cont.) Parliamentary Assembly and, 473, 475–77 Prohibition of Incitement to Hatred Act 1989, 462, 468 Rabat Plan of Action and, 473, 477–78 religious sensitivities, protection of, 475–77 Special Rapporteur and, 472 Stephen Fry incident, 462 Universal Periodic Review and, 472–73 Venice Commission and, 473, 476–77 Irish Faith Centre, 98 Irving, David, 63 ISIL. See Islamic State of Iraq and the Levant (ISIL) Islam Barelwis sect, 176–77, 188 blasphemy in, 80–81, 140–41, 164n151 blasphemy laws and, 197 Canada, hate speech laws in, 484–85, 489–91 Charlie Hebdo, Islam versus Christianity and Judaism in, 341–42 defining characteristics and, 71–72 in Denmark, 450 freedom of expression and, 147–48 Halla-aho case and, 330–32, 333 immutability and, 69–71 jihad, 74–75 Muslim clothing, 292n132 “Muslim Tide” and, 484, 489–91, 497, 498 as political ideology, 491 public morality and, 81, 82–83 Quran(See Quran) race versus culture, 491–92 secularism versus, 225–26 sensitivity to blasphemy, 150–52, 334 shari'a law, 73–74, 75 terrorism, linking to, 58–59, 73–75, 491–95 Islamabad Declaration, 676 Islamic Council of Victoria, 531 Islamic Defence Council, 561 Islamic State of Iraq and the Levant (ISIL), 1, 68, 73–74, 645

“Islamophobia” OIC and, 649, 650–51 self-restraint model and, 160–61, 160n135 16/18 process in, 660–62, 664, 665, 666 Italy Albertine Statute of 1848, 342–43, 345 blasphemy laws in generally, 4, 97 overview, 16, 339–42, 356–57 Charlie Hebdo, depictions of Muhammad in, 353–56 confessional principle, 343–44 crucifixes and, 351n36 decriminalisation of, 346 historical background, 342–44 in Kingdom of Sardinia, 342 reform of, 346–47 religious denomination requirement, 347 secularity principle, 344 Constitution, 343–44, 345, 347, 357 Criminal Code Article 402, 343, 344–46, 348n23 Article 403, 347, 348–50, 353, 354 Article 404, 347, 350–52 Article 405, 347, 352–53 Article 406, 343 Article 409, 353n40 Article 594, 346–47 Article 595, 346–47 Article 724, 343, 344, 345–46 defamation of religion laws in overview, 346–47 Charlie Hebdo, depictions of Muhammad in, 354 individuals, 348–50 religious denominations, 350–52 disruption of religious proceedings in, 352–53 funerals, disruption of, 353n40 honour killings in, 340n4 incitement to hatred laws in, 346, 356

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73

Index insult and ridicule, protection against, 346–47, 354, 411n1 Lateran Treaty of 1929, 343, 344, 345 multiculturalism in, 339, 340–41 National Institute for Statistics, 339n1 religious factor in culturally motivated crimes, 340 religious sensitivities, protection of, 346–47, 354 Rocco Criminal Code of 1932, 343–44 unification of, 342 Villa Madama Agreements of 1984, 344 Zanardelli Criminal Code of 1889, 342–43, 346, 516–17 Jackson, Robert H., 108 Jaeger, Hans, 557 Jahangir, Asma, 154, 208, 652–53 James I (England), 580n12 James II (England), 201 Janssen, Esther, 19 Jazairi, Idriss, 664 Jefferson, Thomas, 104, 107 Jensen, Siv, 562 Jeremy, Anthony, 614 Jerry Springer: the Opera (play), 95, 123–24, 163n145, 591n55, 600, 606–7, 695n58 “Je Suis Charlie,” 1, 53, 83, 148, 341, 408–9 Jesus generally, 111 Denmark, depictions in, 435–36 Finland, depictions in, 327–28 Greece, depictions in, 394–401 hate speech regarding, 245 offensive depictions of, 162n144, 237, 252 workplace, blasphemy in, 692–94 Je vous salue, Marie (film), 519 Jihad, 74–75 John (England), 580–81 John Paul II (Pope), 281 Jones, Terry, 214–15, 706–7, 707n20, 712–13, 715 Jones, William Lorando, 512, 521–22 Judaism anti-Semitism in Canada, 482–84

737

in Finland, 330 in France, 69 blasphemy in, 140–41, 199–200 Charlie Hebdo, Islam versus Christianity and Judaism in, 341–42 in Denmark, 449–50, 453 European Union, attempts to enshrine Judeo-Christian heritage in, 87–88 Julius Caesar (Rome), 579–80 Juristikirje (Finnish magazine), 335 Justified blasphemy, 423–24 Jyllands-Posten (Danish newspaper), 58, 162n144, 286–87, 359, 360, 698n68. (See also Danish Cartoon Controversy) Kahn, Robert, 14, 152n88, 225, 250 Kallinikos (Metropolitan), 396 Kamali, Mohammad Hashim, 150–51, 157 Kant, Immanuel, 191n94 Karzai, Hamid, 707n20 Kazantzakis, Nikos, 394 Keane, David, 159n127 Kearns, Paul, 142n38 Kekkonen, Urho, 320 Keller, Helen, 216 Khan, Muhammad Asif, 181n53, 182, 185n68 Khomeini, Ruhollah, 561 King, Martin Luther Jr., 594n67, 716–17 King Abdullah Bin Abdulaziz International Centre for Inter-religious and Inter-cultural Dialogues, 676 Kirill (Patriarch), 308, 312 Kirkup, James, 685n14 Klinsmann, Jürgen, 367 Knechtle, John C., 14 Koch, Henning, 454 Koestler, Arthur, 330n52 Koltay, András, 14–15 Koskinen, Harro, 319, 320, 327, 338 Kostaras, Alexandros, 389 Kozak, Michael G., 665, 666 Kropotkin Vodka (Pussy Riot song), 309

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738

Index

Kulesza, Jan, 16 Kulesza, Joanna, 16 LaBute, Neil, 360 Laclau, Ernesto, 402 Lady Gaga, 194 LaNauze, John A., 525 Langer, Lorenz, 152n91 Lassen, Eva Maria, 16–17 The Last Days of the Romanovs (Wilton), 330 The Last Temptation of Christ (film), 44, 394–96, 403, 559 Laws, John, 578n7, 593 League of Defence Against Sects, 425 Legate, Bartholomew, 580n12 Leigh, Ian, 596 Lennon, Ann (Annie), 523 Lester, Anthony, 604 Lester, Lord, 613–14 Levy, Leonard, 143 Lewis, Tom, 15, 312–13 “Liberalism of fear,” 168, 179–85 “The Liberalism of Fear” (Shklar), 168 The Life of Jesus (Haderer), 398–99 Likelihood of harm from blasphemy, 302, 305 Limon, Marc, 20 Lintula, Oula-Antti, 337 Lisbon Treaty, 87 Lithuania, blasphemy laws in, 96–97 Little Red School Book, 264 Locke, John, 498, 587 Loizos, Phillipos, 399–400, 402–5, 406 Louis IX (France), 26 Louis XII (France), 27 Louis XIV (France), 28 “The Love Affairs of Jesus Christ” (film manuscript), 435 “The Love That Dares to Speak its Name” (Kirkup), 126, 126n62, 589–90, 598–99, 685, 685n14, 699n70 Lucius III (Pope), 580 Luther, Martin, 218 Macaulay, Lord, 175–76, 189, 190 Machiavelli, Niccolò, 13, 109–12 Machina (Polish magazine), 426

Maclean's (Canadian magazine), 484 Madison, James, 98, 105, 107 Madonna, 194, 426, 626 Mahmood, Saba, 148n70 Malaysia, 16/18 process in, 673 Malta, blasphemy laws in, 96–97 Mandela, Nelson, 716–17 Mansfield, Lord, 578n7, 588n42 The Many Faces of Jesus (film), 126 Margin of appreciation in European Court of Human Rights, 143–47, 146n55, 264–66, 265n21, 271–72, 275–77, 288–89, 290, 420 Maria Syndrome (play), 359, 374 “Marketplace of ideas,” 296n8 Márquez, Gabriel García, 457 Massacre (Siné), 126 McConnell, James, 153–54 McCrea, Ronan, 87 McGonagle, Tarlach, 17 McKellen, Ian, 699n70 McNally, Terrence, 400–1 Meischberger, Walter, 284–85, 286 “The Memorial and Remonstrance against Religious Assessments” (Madison), 105 Mens rea of blasphemy, 125–26, 205, 206, 466 of defamation of religion, 349, 352 Metaxas, Ioannis, 393 Mexico General Directorate for Religious Associations, 672 Interfaith Councils, 676 National Council to Prevent Discrimination, 672 16/18 process in, 672, 676 Michel, Albert Edward, 516 Midsummer Night’s Dance (Salama), 319 Mill, John Stuart, 61, 61n18, 231–32, 263 Milton, John, 505 Models of reform overview, 163–66 incitement to hatred, 154–58 resurrection of blasphemy laws, 149–54 self-restraint, 158–63

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739

Index Mohammed Gets a Boner (play), 360 Møller, Per Stig, 454 de Montesquieu, Baron, 541, 541n54 Monty Python's Flying Circus (television program), 186, 186n73, 188 Monty Python's Life of Brian (film), 126, 186, 186n73, 558–59, 626 Moon, Richard, 17–18 Moral objections to blasphemy laws, 179–80 Mortensen, Reid, 529 Mouffe, Chantal, 402 M to the power of N (Androulakis), 395–96, 403 Muhammad (Prophet) Barelwis sect and, 176–77 blasphemy and, 150, 157, 178, 182, 183–84, 194 Charlie Hebdo, depictions in generally, 56, 159n127 as artistic expression, 355 as blasphemy, 57–58, 341–42 ECtHR jurisprudence and, 286–87 Italian blasphemy laws and, 353–56 Danish Cartoon Controversy. (See Danish Cartoon Controversy) Facebook, offensive statements regarding on, 328–29 Finland, depictions in, 327, 328 Germany, depictions in, 361 Halla-aho case and, 330–32, 333 hate speech regarding, 245 offensive depictions of, 237, 252 terrorism, cartoons linking to, 437 Yasak Tümceler, depiction in, 276– 77, 300–1 YouTube video controversy, 223, 251–52 Mühl, Otto, 284–85 Muiznekis, Nils, 403 Muslim clothing, 292n132 “Muslimophobia,” 160–61, 160n135 “Muslim Tide,” 484, 489–91, 497, 498 Musri (Imam), 713 Nalliah, Daniel, 531 Narrow scope of blasphemy laws, 183–84 Nash, David, 190, 520

739

National Coalition Against Censorship, 402 National Gallery of Victoria, 510–11 National Secular Society, 126n62, 699n70 Nayler, James, 576n2 Nearer to Thee (Reve), 625 Necessity test for blasphemy laws, 421–23 Netherlands blasphemy laws in generally, 3n5, 4 overview, 19, 619–20, 640–41 Charlie Hebdo and, 638–39 Communism, in response to, 620–23 Finland compared, 338n76 hate speech laws versus, 636–37, 638 historical background, 620–23 intent element, 623–24 repeal of, 153, 298, 411–12, 635–38 Constitution, 636 Criminal Code of 1881 overview, 620 Article 137c, 630, 631–32, 633 Article 147(1), 621, 623–25 blasphemy under, 629 Danish Cartoon Controversy in, 639 Defamation of Islam case, 619, 630–32, 638 Democratic Party, 629, 635 Donkey trial, 619, 623–26 in ECtHR, 636 Freedom Party, 628 French Criminal Code and, 620 group defamation in, 630, 631–32, 633–34 hate speech laws in blasphemy versus hate speech, 636–37, 638 criticism of religion versus, 638–40 homosexuality and, 635 Holocaust denial in, 639 incitement to hatred laws in, 632–35

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740

Index

Netherlands (cont.) insult and ridicule, protection against, 630–32 Labour Party, 628 Liberal Party, 628 Ministry of Justice, 629, 639–40 National Railway Company, 621 “new politics” in, 628 “pillar system” in, 627–28 Reformed Protestant Party, 625, 635–36 Scientific Research and Documentation Centre, 629, 639–40 VARA (broadcasting company), 626 Neuvonen, Riku, 318, 326 “New atheists,” 507 “New racism,” 492n41 New York Times, 224, 360 Nieznalska, Dorota, 423–24 Niinistö, Ville, 333–34 9/11 attacks, 650–51 Norway blasphemy laws in generally, 4, 439, 443 overview, 19, 553–54, 574–75 Charlie Hebdo and, 573–74 Charlie Hebdo attack and, 19 historical background, 554–60 reform proposals, 561–63 repeal of, 298, 411–12, 574 Boot Boys case, 569–70 Broadcast Act, 565–66 Christian Vs Norske Lov (Christian V’s Norwegian Law), 555–56 Church Ordinance, 555 Constitution, 556, 561, 564 Criminal Code of 1842, 556–57 Danish Cartoon Controversy in, 562, 573 defamation of religion laws in, 571–73 in ECtHR, 565–66 Film Board of Norway, 558–59 Freedom of Expression Commission, 562n44 Gulatingslov (canonical law), 554–55 hate speech laws in overview, 566–71

anti-Semitism and, 570–71 blasphemy versus hate speech, 571 disability and, 567 homosexuality and, 567, 569 Nazis and, 569–70 Human Rights Committee and, 564–65 Human Rights Council and, 565 ICCPR and, 564 Law on Christian Dissenters of 1845, 557, 557n13, 559n29 Law on Faith Communities of 1969, 560 Norwegian Anti-Racist Centre, 570 Penal Code of 1902 generally, 553, 553n2 blasphemy under, 557–58 declaration of faith under, 562n44 defamation of religion under, 571–72 hate speech under, 566–69 reform proposals, 561–63 Progress Party, 561, 562 16/18 process in, 671 Vigrid case, 570–71 Norwegian Anti-Racist Centre, 570 Nuotio, Kimmo, 334 “N” word, 60, 61 Nygaard, William, 561 Oaths, 586–88 Obama, Barack, 214–15, 666, 712 Offensive speech, 237–42 Office of the High Commissioner on Human Rights (OHCHR) generally, 8 Rabat Plan of Action, 115–17, 115n6 16/18 process and, 660, 667–68, 673 Olav Haraldsson (Norway), 554 Olesen, Jens Arnfred, 557–58 Organisation of Islamic Co-Operation (OIC) generally, 68, 83, 170, 174, 334 criticism of, 652–53 Defamation of Religion Resolutions and, 2–3, 152, 208, 577n3, 650–53 “Islamophobia” and, 649, 650–51 rapprochement with West, 653

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741

Index 16/18 process in, 209–10, 646, 653–54, 655–58, 659–68, 670, 675–76, 678–79 terrorism and, 74 Organisation of Islamic States, 97 Organization for the Promotion of Greek Culture, 402 Organization of the Islamic Conference. (See Organisation of Islamic Co-Operation (OIC)) Orhun, Ömür, 664 Otto-Preminger-Institut, 269–70 Outlook (art exhibition), 396–98, 401–2, 403, 406 Øverland, Arnulf, 558 Oxford English Dictionary, 207 Paisios, Elder, 399 Pakistan blasphemy laws in generally, 14, 66n32, 173–74, 179n44, 181, 189, 192–93, 438, 575, 674 overview, 175–77 chilling effect of, 175n28 death penalty, 182 draconian nature of, 173, 178 extra-judicial attacks and, 185n69 Ireland compared, 64, 173 overbreadth, 183–84 recommendations regarding, 184–85 religious identity and, 169–70 resistance to change, 191 standing, 182 vagueness, 183–84 Criminal Code, 182 Defamation of Religion Resolutions and, 115, 208, 650–51 National Conference on Interfaith Harmony, 676 Penal Code, 182 16/18 process in, 671, 675, 676 Pannick, David, 274 Pannizar, Oskar, 269 Papaioannou, Kostis, 404, 405 Paraskeoupoulos, Nikos, 404 Paris attacks (2015), 68, 645 Parker, Lord, 589 Parker, Thomas, 594n67

741

Parliamentary Assembly overview, 4–6 blasphemy laws and, 4–6, 332–33, 416–17, 605, 616 Charlie Hebdo attack and, 225 Christianity, on discrimination against, 225 Finland and, 332–33 Ireland and, 473, 475–77 Poland and, 416–17 Passion (art work), 423–24, 424n39 Passive blasphemy, 191n96 Patrick, Jeremy, 10–11, 481 Paul III (Pope), 582n23 Pell, George, 510–11 Penalties for blasphemy, 182 The People vs. Larry Flynt (film), 44, 283, 303, 626 Petraeus, David, 214–15 Pew Forum, 3n5 Pew Research Center, 195, 512–13 Philippe de Valois, 26 Philipson, Gavin, 280n83 Piddington, Albert, 523 Pietists, 35–36 Pig Coat of Arms (art work), 320 Pig Messiah (art work), 320 Pilavakis, Marios, 396 Piss Christ (art work), 194, 510–11, 519 Platformes (Greek activist platform), 401–2 Poland artistic expression in, 423–27 Bible blasphemy of, 96–97 desecration of, 425–26 blasphemy laws in generally, 4, 10, 97 overview, 16, 411–16, 427–28 chilling effect of, 427–28 freedom of expression versus, 416–21 frequency of use, 412–13, 412n6 historical background, 413 necessity test, 421–23 objects of religious worship, 414–15, 417–21 proportionality test, 421–23

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742

Index

Poland (cont.) public debate regarding, 416 Roman Catholicism and, 414n10 Constitution, 412–13, 413n8, 416, 418, 421, 421n37 Constitutional Tribunal, 418n22, 421n36 disruption of religious proceedings in, 415–16 European Commission on Human Rights and, 420, 426 freedom of conscience in, 413–14, 413n8 freedom of expression in, 416–21 hate speech laws in, 418 insult and ridicule, protection against, 413–14, 417–21 League of Defence Against Sects, 425 Parliamentary Assembly and, 416–17 Penal Code of 1932, 413 Penal Code of 1997 Article 26, 423n38 Article 195, 415–16 Article 196, 412n6, 413–15, 416– 21, 424–28 Article 256, 418 Public Office for Statistics, 414n10 religious sensitivities, protection of, 413–14, 417–21 Political correctness, 60n16 Political speech artistic expression versus, 279–81 blasphemy versus, 304–11 Pooley, Thomas, 583n24 Pope, blasphemy of in workplace, 691–92 Portalis, J.E., 30, 36 Portugal, blasphemy laws in, 96–97, 118 Post, Robert, 181–82, 191, 192, 235, 241–42 Power, Hilary, 20 Powerlessness as argument in favor of legal protection against blasphemy, 101 religious sensitivities, as argument for protection of, 232–33 self-restraint model and, 160–61, 162 Practical objections to blasphemy laws, 180–82

Pringle, Helen, 18 Proportionality test for blasphemy laws, 421–23 Protestant Reformation, 200, 360, 555 Public debate blasphemy versus in Poland, 416 in United States, 538 freedom of expression and, 312–13 hate speech laws and, 496–97 Public morality. (See also Immoral speech) blasphemy laws and, 56, 76–81 clashing universalisms and, 76–81 defamation of religion laws and, 80n59 freedom of conscience and, 77–79 freedom of expression and, 76–77 Human Rights Committee and, 79, 80 Islam and, 81, 82–83 secularism and, 82 Public order blasphemy laws and overview, 219–20 in Denmark, 433, 444, 445, 453–55 in Germany, 363 Charlie Hebdo attack and, 249 defamation of religion laws, as argument for, 370–73 freedom of expression, protection as reason for restrictions on, 248–49, 255 Punishment motive, blasphemy laws and, 168, 189–92 Punk Prayer: Virgin Mary, Drive Putin Away (Pussy Riot song), 15, 177–78, 294–95, 304 “Pussy Riot” case generally, 15, 175, 191–92, 359–60 overview, 177–78, 294–96 context of expression in, 305–6 extremism and, 304, 309 gratuitous offence and, 312–13 incitement to hatred laws and, 305, 313–14 insult and ridicule, protection against, 305, 312 political speech versus blasphemy in, 304–11

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743

Index religious sensitivities, protection of, 305, 312 sentences in, 310, 311–12 Putin, Vladimir, 15, 295, 305, 306–8, 309, 310, 311 Putin Wet Himself (Pussy Riot song), 308–9, 310 Pyysiäinen, Ilkka, 336 Qatar Doha Conference for Interfaith Dialogue, 676 16/18 process in, 659, 665, 676 Quran Denmark, desecration in, 453–54 Germany, desecration in, 370–71 group defamation and, 633 sensitivity to blasphemy and, 150 terrorism and, 74–75 United States, burnings in, 214–15, 706–7, 707n20, 712–13, 715 Rabat Plan of Action (RPA) generally, 8n24, 181, 184, 187, 193 overview, 8, 155n104, 299n24 blasphemy laws and, 132, 167, 173, 299–300 incitement to hatred laws and, 115– 17, 115n6, 155, 171n13 Ireland and, 473, 477–78 16/18 process and, 666, 667–68, 673 Rabczewska, Dorota “Doda,” 417–21 Racism “cultural racism,” 492n41 “new racism,” 492n41 race versus culture, 491–92 Ramadan, Tariq, 158 Rational criticism, 505–6 Rationalist Society, 523 Ratzinger, Joseph. See Benedict XVI (Pope) Rawls, John, 98, 111 Read, James, 585 Reagan, Ronald, 107 Reform models overview, 163–66 incitement to hatred, 154–58

743

resurrection of blasphemy laws, 149–54 self-restraint, 158–63 Release the Cobblestones (Pussy Riot song), 309, 310 Religion, freedom of. (See Freedom of conscience) Religious characteristics of blasphemy, 140–42 Religious identity, blasphemy laws and overview, 168 overly restrictive view of, 169–72 Religious organisations, protection against defamation as reason for restrictions on freedom of expression, 234–35 Religious sensitivities, protection of overview, 137–40, 254 argument for, 99–103 decline of religion in Europe and, 229–30 in Denmark, 433–34, 452 dignity and, 255 in ECHR, 476, 605 in ECtHR, 270–71, 380 free choice as argument against, 230–32 freedom of conscience and, 151n86 freedom of expression, as reason for restrictions on, 237–45 in Germany, 364–67, 380–81 immutability as argument for, 230–32 incitement to hatred laws and, 167n3, 172 in Ireland, 475–77 Islam, sensitivity to blasphemy in, 150–52 in Italy, 346–47, 354 offensive speech and, 237–42 in Poland, 413–14, 417–21 powerlessness as argument for, 232–33 public versus private nature of religion, 233–34 “Pussy Riot” case and, 305, 312 uniqueness of religion and, 229, 241 in United Kingdom, 588–94 Venice Commission and, 158–59

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744

Index

Republican theory, blasphemy laws and, 109–12 Resolution 16/18. See 16/18 process Resurrection of blasphemy laws, 149–54 van het Reve, Gerard Kornerlis, 320n11, 625 Ridicule, protection against. (See Insult and ridicule, protection against) Rigby, Lee, 671, 672 Right to blasphemy overview, 13, 114–17 blasphemy laws and, 132–33 in ECHR, 114, 133 in ECtHR, 114 evolution of, 117–20 in United Kingdom abolition of offence, 128–32 historical background, 121–27 Robinson, Phil, 189 Roman Catholicism in Denmark, 449 Poland, blasphemy laws in, 414n10 Rome (Ancient) blasphemy laws in, 190n91, 199 religion and state in, 579–80, 579n10 Romney, Mitt, 105n63 Roof, Dylan, 709–11, 709n21, 710n22, 714n35, 715–16 Rose, Flemming, 162n142, 251, 436, 452 Ross, Robert Samuel, 522–23 Ross’s Monthly (Australian magazine), 522–23 Rousseau, Jean Jacques, 111n93 RPA. See Rabat Plan of Action (RPA) Rubio, Marco, 91 Rumi, 163 Rushdie, Salman, 125, 139, 146, 184, 223, 359, 460–61, 499–501, 561, 564, 591n54, 599, 627, 684 Russia blasphemy laws in, 177–78, 191–92 extremism in, 304, 309 “Pussy Riot” case. (See “Pussy Riot” case) 16/18 process in, 665 Russian Orthodox Church, 15, 304–9, 311–12, 313–14

Saarela, Anna, 326, 334–35 Sacrilege laws, 520n40, 544–45 Sajó, Andras, 88n7 Salama, Hannu, 319–20, 320n11, 327, 336, 338 Salvation Army, 532 Samutsevich, Yekaterina Stanislavovna, 295 Sandberg, Russell, 13, 19, 601, 602, 603, 604, 605, 606–7, 614 Sanders, Bernie, 91n17 San Marino, blasphemy laws in, 155n105 Sarafinos, Dimitris, 408 The Satanic Verses (Rushdie), 223, 359, 460–61, 499–501, 561, 591, 591n54, 599, 627, 684 Satire, 284–86 Satirical blasphemy, 168, 186, 195 Saudi Arabia blasphemy laws in, 173–74 16/18 process in, 659, 665–66 Scarman, Lord, 204, 519, 590–91, 598 Scharffs, Brett, 20–21 Scheffer, Paul, 628 Schroeter, Werner, 269 Scorsese, Martin, 44, 394, 559 Scot, Daniel, 531 Secular-faith disputes, 141 Secularism Christianity versus, 225–26 in Finland, 334 Islam versus, 225–26 public morality and, 82 Sedley, Charles, 585 Sedley, Steven, 584n28 Self-censorship Danish Cartoon Controversy and, 452 in Greece, 406–7 in United States, 360 Self-restraint model, 158–63 de Sénancour, E., 37 Separation of powers, 541–42, 541n55 Seppo, Juha, 319 Seraphim (Bishop), 401, 405 Serrano, Andres, 510–11 Seutonius, 579n10 Sexual harassment, 696–98 Shadows of Humour (performance art group), 426–27

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745

Index Shari’a law, 73–74, 75 Sharples, Eliza, 586n34 Sherwood, Yvonne, 575 Shklar, Judith, 168, 168n4, 179 Siddall, Nicholas, 698n67 Siddique, Osama, 177, 181n52, 182, 192–93 Simojoki, Martti, 319 Siné, 126 Singapore, 16/18 process in, 659, 666 Singleton, Chris, 715–16 16/18 process. (See also specific country implementing) generally, 11, 115n8, 167 overview, 20, 209–10, 645–46, 677–80 African Union and, 675–76 appropriate mechanisms (paragraph 5(b)), 671–72 Arab League and, 675–76 blasphemy laws and, 673–74 Charlie Hebdo attack and, 20, 667 creation of, 653–54 Danish Cartoon Controversy and, 672, 675 debate, promotion of (paragraph 5(h)), 658, 676–77 domestic implementation of, 668–71 European Union and, 675–76 expectations for, 654–55 externalisation of, 669 “Geneva game,” 659–68, 669 hate speech laws and, 211 ICCPR and, 664–65, 666, 667–68, 673 implementation of, 654–55 incitement to hatred laws under (paragraph 5(f)), 155, 657–58, 673–74 intolerance, speaking out against (paragraph 5(e)), 657–58, 675–76 “Islamophobia” and, 660–62, 664, 665, 666 Istanbul Ministerial Meeting, 658–59 Istanbul Process, 659–68 objectives of, 660–62

745

Office of the High Commissioner on Human Rights and, 660, 667–68, 673 OIC and, 209–10, 646, 653–54, 655–58, 659–68, 670, 675–76, 678–79 oversight, lack of, 669 policy and, 670 politics of, 655–58 Rabat Plan of Action and, 666, 667–68, 673 recommendations regarding, 679–80 reporting process, 660 as soft law, 668–69 Universal Periodic Review and, 670 Western Group and, 646, 657, 659– 68, 670, 678–79 Skinner, Quentin, 111 Slovakia, blasphemy laws in, 96–97 Social characteristics of blasphemy, 140–42 The Social Contract (Rousseau), 111n93 South Park (television program), 186, 188 Spain blasphemy laws in, 96–97, 119, 411n1 Penal Code, 411n1 Speaker affinity groups as accelerants, 710 as audience, 705–6 as decelerants, 712 Speakers as accelerants, 709–10 as decelerants, 712 speaker-audience-victim analysis, 701–2 Special Rapporteur overview, 7–8 blasphemy laws and, 299 Declaration on Religious Intolerance and Discrimination and, 648– 49, 651 defamation of religion laws and, 652–53 Denmark and, 17, 432, 439–41, 453 Ireland and, 472 Specific scope of blasphemy laws, 183–84 Speech, freedom of. (See Freedom of expression) “The Splendour of Truth” (John Paul II), 281 Stability. See Public order

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746

Index

Stafford, Dwayne, 710–11 Standing in blasphemy laws, 182 Starry Messenger (Galileo), 215–16 Statistics on blasphemy laws, 195–97 Stephen’s Digest of the Criminal Law, 577 Steyn, Lord, 262–63 Steyn, Mark, 484, 490n30, 491–99, 492n40, 494n46 Stone, Harlan F., 108 Stop the Islamization of Norway, 572 Submission (film), 341, 628–29 Sue, Eugène, 35n30 Suhm, Anders, 556 Summa Theologica (Aquinas), 580n12, 582n23 Sumner, Lord, 219–20, 583 Sweden blasphemy laws in, 118, 439, 443 16/18 process in, 665 Swift, Jonathan, 506 Switzerland, blasphemy laws in, 411n1 Takis, Andreas, 406 Taseer, Salman, 653, 671 Taylor, John, 202–3, 581–83 Taylor, John Ross, 483 Temperman, Jeroen, 15, 236–37, 701, 705n15 Terrorism generally, 627 al Qaeda, 1, 73–74, 650–51 Boko Haram, 73–74 cartoons linking Islam to, 58 Charlie Hebdo attack (See Charlie Hebdo attack (2015)) chilling effect of, 360 Copenhagen attack (2015), 1, 358, 432, 447, 455 Curtis Culwell Center attack (2015), 1, 358 ISIL, 1, 68, 73–74, 645 Islam, linking to, 58–59, 73–75, 491–95 Muhammad, cartoons linking to, 437 9/11 attacks, 650–51 OIC and, 74 Paris attacks (2015), 68, 645 Thomas, Clarence, 183 Thorsen, Jens Jørgen, 435–36

Thrane, Marcus, 557 Thursby, Gene R., 189n87, 190n92 Tiberius (Rome), 190n91 Time (magazine), 251–52 Titanic (German magazine), 359–60 Tolerance, protection of, 382–85 Tolokonnikova, Nadezhda Andreyevna, 295 Tolvanen, Matti, 335 Tomasz D., 424–25 Tom Jones (Fielding), 124–25 Török, Bernát, 236, 237, 239, 248 Torture, 220 Treaty on the Functioning of the European Union, 412n5 Treby, George, 587–88, 588n42 Treilhard, Jean-Baptiste, 33 The Tribune (Dutch Communist newspaper), 621 Trump, Donald, 58, 68, 91 Tsakirakis, Stavros, 395 Tsapogas, Michael, 391, 392, 406–7, 408 Tulkki, Kaj-Erik, 335 Tumyr, Arne, 572–73 Turkey, 16/18 process in, 673 Tyndareus, 586n35 Uddin, Asma, 169–70, 172 UNCHR. See Commission on Human Rights (UNCHR) United Kingdom Act of the Six Articles 1539, 121 Acts of Uniformity 1549/1552, 121 Anti-Terrorism, Crime and Security Bill 2001 (proposed), 601–2, 610–11 Bible, blasphemy of, 204, 227–28, 519, 577 Bill of Rights (1689), 201 Blasphemy Abolition Bill 1995 (proposed), 601–2 Blasphemy Act 1697, 122n40, 584n29 blasphemy laws in generally, 4 overview, 19, 90, 576–79, 594, 595–96, 616–18 abolition of offence, 128–32, 153

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74

Index alternative offences, 610–15 case law regarding, 597–98 changes in, 117, 118, 119, 123–24, 298 Charlie Hebdo and, 617 Church of England, limitation to, 124–26, 131, 203, 597, 601–2, 603, 608, 614n114, 615 definition of blasphemy, 227–28 discriminatory nature of, 615 dissolution of government and, 582–83 extralegal prosecutions, 123–24, 126–27 freedom of conscience and, 616 freedom of expression and, 616 historical background, 94–96, 121–27, 199, 200–6, 596–601 incitement to hatred laws versus, 615–16 oaths and, 586–88 overbreadth, 616 repeal of, 96, 130n87, 131, 206, 276n64, 591, 591n55, 595, 601, 602, 608–10, 685n16 as strict liability offence, 597 vagueness, 616 Bowman v. Secular Society, 589, 589n47 British Board of Film Classification, 126–27, 461 British Broadcasting Corporation (BBC), 95, 123–24, 126, 126n61, 163n145, 600, 695n58 British Social Attitudes Surveys, 92n24 Broadcasting Act 1990, 606–7 Calvin's Case, 587, 588, 588n42 Communications Act 2003, 153–54 Coroners and Justice Act 2009, 130n87 Court of High Commission, 200–1 Crime and Disorder Act 1998, 595–96 Criminal Justice and Immigration Act 2008, 96, 130n87, 131, 206, 276n64, 591, 595, 601, 602, 608–10, 685n16 Criminal Law Act 1967, 122n40 definition of blasphemy in, 577–78 Denmark, desecration in, 444, 445–46

747 ecclesiastical courts in, 200–1, 584–86 ECHR, incorporation of, 597 in ECtHR, 19, 97–98, 126–27, 461, 591–93, 598–99, 604–6, 609, 616 Employment Equality (Religion and Belief) Regulations 2003, 610 Equality Act 2010, 93, 688, 688n29, 691, 694–95, 700, 700n73 Equality Commission for Northern Ireland, 93–94 freedom of expression in, 612–15 Gabriels v. Lambeth, 698–700 Green (R. on application of) v. Westminster Magistrates Court, 95, 123–24, 602, 606–7 Heafield v. Times Newspapers, 691–92 House of Lords Select Committee on Religious Offences in England and Wales, 596, 600–1, 602, 604–6 Human Rights Act 1998, 93, 265, 597, 609, 688n30 Human Rights and Equality legislation, 93 incitement to hatred laws in, 128–31, 610–12, 615–16 influence of English law, 578–79 insult and ridicule, protection against, 588–94, 596 Inter-Faith Network, 676 Law Commission, 601 libel in, 199, 297n12 Magna Carta, 580–81, 580n14 Monopolies of East India Co. v. Sandys, 587–88 Muir v. Penisarwaun Care Home Ltd., 692–94 National Secular Society, 126n62, 699n70 Oaths Act 1888, 586n34 Obscene Publications Act 1959, 607 Public Order Act 1986, 96n40, 129, 206, 595, 610 Race Relations Act 1976, 611n99 Racial and Religious Hatred Act 2006 generally, 602, 606, 610, 616–18

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748

Index

United Kingdom (cont.) overview, 128–32 freedom of expression under, 612–15 incitement to hatred under, 96, 610–12 inctment to hatred under, 155, 206, 276n64, 595 16/18 process and, 673 Ramsey and Foote, R. v., 589 Religious Offences Bill 2002 (proposed), 602 religious sensitivities, protection of, 588–94 renewed prominence of religion in public sphere, 92–94 Richmond Pharmacology v. Dhaliwal, 688–91 right to blasphemy in abolition of offence, 128–32 historical background, 121–27 Sacrament Act 1547, 121 secularism in, 89 See of Rome Act 1536, 122 Serious Organised Crime and Police Bill 2004-2005 (proposed), 610–11 Sex Discrimination Act 1975, 696n61 16/18 process in, 659, 663, 671, 673, 676 Star Chamber, 584–86 Stewart v. Cleveland Guest (Engineering) Ltd., 696–97 Taylor's Case, 202–3, 581–82, 581n20 Theatres Act 1968, 606–7 Weeks v. Newham College of Further Education, 697 Whitehouse and Lemon v. Gay News, 204–6, 589–90 United Nations generally, 512–13 Commission on Human Rights. (See Commission on Human Rights (UNCHR)) Declaration on Religious Intolerance and Discrimination, 646–49, 651, 677 Defamation of Religion Resolutions, 2–3, 57, 67–69, 115, 208–9

Economic and Social Council (ECOSOC), 646–47, 677 fragmentation within, 8–9 Human Rights Committee. (See Human Rights Committee) Human Rights Council. (See Human Rights Council) ICCPR. (See International Covenant on Civil and Political Rights (ICCPR)) OHCHR. (See Office of the High Commissioner on Human Rights (OHCHR)) Rabat Plan of Action(See Rabat Plan of Action) Special Rapporteur. (See Special Rapporteur) Universal Periodic Review, 472–73 United States assimilationism in, 107–9, 113 Bill of Rights, 541–42 blasphemy laws in generally, 4 overview, 18, 90, 534–35, 549–50 case law regarding, 543–44 Constitutional restrictions on, 197–98, 197n16 current status of, 540 First Amendment and, 536, 591n56 freedom of expression versus, 545–49 historical background, 535–39 prosecutions under, 535–39 public debate versus, 538 state statutes, 173–74, 173n23, 192 Civil Rights Act of 1964, 694 Colorado, blasphemy laws, 536 Curtis Culwell Center attack (2015), 1, 358 Declaration of Independence (1776), 104 Delaware, blasphemy laws in, 538–39 fighting words in, 185n70, 546–49, 703–4 First Amendment generally, 525n64

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749

Index overview, 103–9 Australia compared, 525 blasphemy laws and, 536, 591n56 captive audience problem, 687, 687n25 Establishment Clause, 91–92, 105, 542–43, 544, 546, 549–50 freedom of expression and, 171, 545–49 Free Exercise Clause, 105, 542, 543, 546 historical background, 540–41 jurisprudence regarding, 105–9 offensive speech and, 241–42 restrictions on blasphemy laws and, 197–98, 197n16 sacrilege laws and, 544–45 Fourteenth Amendment, 543 freedom of expression in, 545–49 Griffin v. City of Portland, 694–95 hate speech laws in, 549 ICCPR and, 197–98 immoral speech in, 62 incorporation to states, 543 insult and ridicule, protection against, 545–46 intent to cause harm in, 183n62 judicial review in, 192 Justice Department, 672 Massachusetts, blasphemy laws in, 173–74, 173n23, 192, 535, 578n8 National Coalition Against Censorship, 402 New York blasphemy laws in, 536–37, 543, 545–46 establishment of religion in, 542 9/11 Backlash Taskforce, 672 Office of Faith-Based Community Initiatives, 676 Oklahoma, blasphemy laws in, 173–74 Pennsylvania, blasphemy laws in, 173–74, 534n3, 537–38, 543–44 Quran, burnings of, 214–15, 706–7, 707n20, 712–13, 715 religious tests in, 92, 104–5 renewed prominence of religion in public sphere, 91–92

749

Republican Party, 107 sacrilege laws in, 544–45 self-censorship in, 360 separation of powers in, 541–42, 541n55 16/18 process in, 209–10, 659, 662, 665, 672, 673, 675, 676 South Carolina, blasphemy laws in, 173–74 State Department, 512–13 viewpoint-based restrictions on freedom of expression in, 549 Wyoming, blasphemy laws in, 173–74 Universal Declaration of Human Rights, 114–15, 207–8, 648, 705n15 Universal Periodic Review, 472–73, 565, 670 Universal Rights Group, 655 Unsworth, Clive, 143 Valls, Manuel, 25 Van Gogh, Theo, 139, 341, 619, 628–29 Vapaa-Ajattelijat ry (Finnish association), 327–28 VARA (Dutch broadcasting company), 626 Vaz, Keith, 617 Venice Commission blasphemy laws and, 153 Denmark and, 443 freedom of conscience versus freedom of expression, 165 incitement to hatred laws and, 155, 155n105 insult and ridicule, protection against, 6 Ireland and, 473, 476–77 religious sensitivities, protection of, 158–59 Veraart, Wouter, 631 Verdens Gang (Norwegian newspaper), 573 Vermeulen, Ben, 631 Vespasian (Rome), 579n10 Victim affinity groups as accelerants, 710–11 as audience, 705–6 as decelerants, 713

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750

Index

Victims as accelerants, 711 as decelerants, 713 speaker-audience-victim analysis, 701–2 Vilification laws. See Insult and ridicule, protection against Vilks, Lars, 1 Violence, hate speech laws and, 211–12 Virolainen, Jyrki, 336 Visconsi, Elliott, 203 Visions of Ecstasy (film), 97–98, 126–27, 127n66, 275–76, 461, 599–600 Voltaire, 29

Charlie Hebdo attack, effect of, 697–98 Danish Cartoon Controversy, effect of, 697–98 ECHR, applicability of, 686–88, 687n24 harassment and, 688–91 offensive imagery or slogans,  696–98 profane language involving sacred, 691–95 sexual harassment, 696–98 written materials, circulation of, 698–700 Wprost (Polish magazine), 426

Waldron, Jeremy, 246–47, 506 Wallin, Elisabeth Ohlson, 327 Warsi (Baroness), 93 Watson, Alan, 180 Weaver, Russell, 18 Weigel, George, 87–88 Westergaard, Kurt, 437 Western Group, 16/18 process in, 646, 658, 659–68, 670, 678–79 Western legal doctrine, 9–12, 13–15 Western Standard (Canadian magazine), 484 West Nickel Mines School shooting, 715, 716 Whitehouse, Mary, 126, 589–90, 685 Wilders, Geert, 1, 619, 628, 632–35 Wildhaber, Luzius, 281n87 Williams, Rowan, 13, 90, 99–103, 222 Wilton, Robert, 330 Wingrove, Nigel, 97–98, 126–27 Workplace, religious rights in overview, 20, 681–82, 700 captive audience problem, 687, 687n25

Xenophobic speech overview, 67–69, 76 in Charlie Hebdo cartoons, 55, 58–59 Defamation of Religion Resolutions and, 67–69 defining characteristics and, 71–72 immutability and, 69–71 religion, linking race to, 69–73 restrictions on, 55–56, 67–69 terrorism, linking Islam to, 58–59, 73–75 Yale University Press, 161–62 Yasak Tümceler (Ergüven), 276–77, 300–1 YouTube, Muhammad video controversy, 223, 251–52 Zero tolerance toward blasphemy laws overview, 168 limits of, 173–75 Zia-ul-Haq, Muhammad, 176, 178, 182, 189 Zizek, Slavo, 402

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