Silenced: How Apostasy and Blasphemy Codes Are Choking Freedom Worldwide
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There is no clear definition of “religious hate speech” in either national or international law, leaving individual countries and courts to develop their own interpretations and regulations. To some extent, these interpretations depend on whether the laws are based on international treaties prohibiting speech targeting people on the basis of religion, race, and other groupings, or whether they ban speech that specifically offends religious beliefs. Over the last century, bans on religious hate speech have increased while enforcement of blasphemy laws has declined. In both politics and law, the distinction between blasphemy bans and hate-speech laws has become increasingly blurred. The result is a direct denial of individual freedoms, an indirect chilling of speech, legal confusion, rising sectarian expectations of further restrictions, the exacerbation of tensions among religious groups, and secular courts being put in the untenable position of pronouncing judgment on the doctrines of a multitude of religions.13
Sacred Crimes and Human Feelings: The Evolution of Blasphemy in the West
Europe’s history of blasphemy laws is a reminder that bans on religious criticism, dissent, and insult have not been the exclusive preserve of Islam. In Europe, blasphemy against Christianity has incurred penalties ranging from short prison terms, to physical mutilation for repeat offenders, to capital punishment. Through British colonial influence, blasphemy prohibitions spread to Australia and North America. In 1660, a Quaker woman was hanged on the Boston Commons for blasphemy, one of the last examples of execution for such crimes in what is now the United States.
By the close of the nineteenth century, most such Western laws were reformed to show leniency, fell into disuse, or were abolished. In the United States, there has never been a federal blasphemy law, and the six remaining state-level blasphemy laws are generally considered unconstitutional and are not enforced.14 France abolished its blasphemy law in 1791.15 England and Wales abolished theirs in 2008. A notable exception is Ireland, which, in early 2010, pleading constitutional necessity, introduced a blasphemy law that punishes speech “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”; following protest, a referendum to stop the law is to take place.16
Most Western governments began to emphasize the need to protect believers, rather than religions, from offensive speech.17 England’s common law on blasphemy, originally justified on the grounds that speech contesting Christian doctrine was a danger to the nation, was redefined in the late 1800s to cover only material unduly harmful to human feelings. “Mere denial of the truth of Christianity” would no longer be an offense if couched in decent language, but attention would be paid to whether expressions were “calculated and intended to insult the feelings and deepest religious convictions of the great majority of the persons amongst whom we live.”18 There has been a gradual progression from protection of “God Himself,” to “faith in God,” to “securing religious peace.”19 Western blasphemy laws have been increasingly understood to serve the earthly goals of preventing hurt feelings and social disorder rather than the theological goals of protecting the sacred.20
Today, most Western blasphemy laws carry fines or prison terms measured in months and are now invoked only in rare cases involving an insulting treatment of religious figures or symbols.21 The trickle of recent prosecutions of blasphemy against Christianity has generally resulted in dismissal, acquittal, or, more rarely, the suppression of “offensive material” without additional penalties for its creators. With rare humor, a Munich court even held that the show Popetown was “too dumb to be insulting.”22 More recently, Italian authorities have shut down websites featuring offensive depictions of the Virgin Mary and the pope. In 2005, they also brought charges against a comedian who joked crudely about the pope.23 Greece responded to a recent Council of Europe (CoE) survey by describing blasphemy trials there as “rather frequent,” though most end in acquittal.24 In 2005, a prosecution in Greece against the Austrian author of a religious satire entitled The Life of Jesus resulted in a lower court’s decision to order the first Greek book ban in twenty years, along with a six-month suspended sentence for the defendant. However, after international pressure, the conviction was overturned on appeal.25
Nevertheless, blasphemy bans in Europe have not been ruled out in principle. In the 1990s, the European Court of Human Rights—the court of last resort in such cases for the member states of the CoE—upheld national authorities in two major cases that restricted expression on grounds of blasphemy against Christianity.26 As recently as 2005, it upheld the conviction of a publisher based in France for violating an Islamic blasphemy law in Turkey. Although the court ruled against another Turkish blasphemy conviction the following year, it did so on factual grounds; the expression at issue was not “an abusive attack on Muslims or on sacred symbols of Muslim religion.”27 As the cases below show, there is a growing interest in Europe in applying blasphemy or quasi-blasphemy bans to protect Islam.
The European Court of Human Rights on Blasphemy
The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), binding on all CoE states, guarantees freedom of expression.28 It does not explicitly provide for a right of religions to be protected from blasphemy or persons to be protected from religious offense, but it does permit restrictions on expression in order to protect public safety, order, health, or morals, as well as the reputation or rights of others. It is these restrictions that the European Court relies on to uphold both blasphemy and hate-speech bans. European regional judges have cited the rationale of protecting the “religious feelings” of groups and individuals and a “right not to be offended,” rather than protecting the sanctity of religious teachings perse.
Using the same controversial tactic as the OIC at the UN, the European Court has attempted to carve out a new right not to have religious feelings offended from what was originally intended to be a narrow exception to a general right of free expression. European judiciaries now struggle to reconcile freedom of expression with this “right” of protected feelings, with cases often turning on whether the speech was a “gratuitous insult.” The European Court uses the criterion of “gratuitous” insult to allow a right not to be offended to trump freedom of expression, thus making an exception to free speech into the new rule.
For twenty years, the European Commission of Human Rights and European Court, in cases involving pornographic or mocking representations of sacred Christian figures, repeatedly held that authorities may legitimately ban publications, seize films, and punish their authors in order to protect the “rights of others”—namely, “the right of citizens not to be offended in their religious feelings.”29 While, with a restructuring, the commission became largely obsolete in 1998, the European Court has continued to maintain that freedom of expression includes “a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profanatory.”30 For much of Europe, religious freedom is coming to mean that people have a right to be protected from offense to their religious feelings that can override freedom of expression.
These rulings focus on whether the expression is “extreme,” “provocative,” or an “insult.” While maintaining that religious persons “must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith,” the European Court nonetheless asserts a state interest in regulating “the manner in which religious beliefs and doctrines are opposed or denied.”31 It has also asserted that there can be more state regulation of expression regarding religion than of politics, even though the two are often intertwined. It has also defended the ambiguity and unpredictability of blasphemy and religious hate-speech prohibitions by declaring that blasphemy “cannot by its very nature lend itself to precise legal definition” and that what might produce offense would “vary significantly from time to time and from place to place,
especially in an era characterized by an ever growing array of faiths and denominations.” These relativizing complications were simply deemed reasons to allow national authorities greater “flexibility” in adjudicating blasphemy cases.32
In 2005, for the first time, the European Court followed these precedents in upholding an Islamic blasphemy ruling. It supported Turkey, a member of the CoE, in I.A. v. Turkey, in which a publisher in France claimed that his freedom of expression had been violated by a Turkish court ruling that he had insulted “God, the Religion, the Prophet and the Holy Book.” The director of the France-based Berfin publishing house, which had published a novel depicting fictional sexual excesses by the Islamic Prophet, had been sentenced to two years’ imprisonment, later commuted to a fine. The European Court found it decisive that there had been “ ‘provocative’ opinions and abusive attacks on one’s religion” and ruled valid the Turkish law’s aim of “provid(ing) protection against offensive attacks on matters regarded as sacred by Muslims.”33
Notwithstanding such cases, by the end of the twentieth century, the application of blasphemy laws in most Western countries was so sporadic that few authors of religiously provocative material faced a risk of prosecution. The censorship that does occur is selective and uneven. For instance, in the case of Wingrove v. the United Kingdom, a film was banned for blasphemy. Shortly before that, Martin Scorsese’s Last Temptation of Christ received a classification certificate, permitting it to be shown, while Monty Python’s Life of Brian was banned in some jurisdictions and permitted in others. In Italy, complaints over Last Temptation were dismissed for reasons of intent, though allegedly blasphemous websites have been closed.34 Despite weak enforcement in recent decades, the criminalization of blasphemy survives as a valid legal principle at the European regional level, leaving open the possibility of a revival of national blasphemy bans.35 Some Muslim groups now argue that fairness demands the application of these statutes to punish insults against Islam. The controversy over Salman Rushdie’s Satanic Verses stimulated this debate.
Blasphemy Laws and The Satanic Verses
In the United Kingdom, Abdul Hussain Choudhury of the British Muslim Action Front, a group formed in response to Khomeini’s fatwa against Salman Rushdie, sought to have the writer charged with blasphemous libel.36 Choudhury also accused Rushdie of seditious libel, claiming that his novel caused “discontent” and mutual hostility among British subjects and harmed Britain’s diplomatic relations with Iran and other Muslim governments, while instilling anger toward the United Kingdom among foreign Muslim populations. Both efforts failed.
The magistrate declined to prosecute Rushdie on the grounds that British blasphemy laws protected only religious beliefs that were part of Anglican doctrine, a decision later upheld despite the complaint of discrimination.37 Among other issues, the court reasoned that expanding the scope of blasphemy restrictions would foster not social peace but “intolerance, divisiveness and unreasonable interference with freedom of expression.” The panel added, “there are fundamental differences which would be capable of setting one religion against another under an extended law of blasphemy.”38 In July 1989, a minister at the Home Department wrote to British Muslim leaders, explaining that “an alteration in the law could lead to a rush of litigation which would damage relations between faiths.”39 Until its final abolition in 2008, Britain’s blasphemy law remained applicable only to Anglican doctrine.
Despite this ruling, the Rushdie decision did not end debate over prosecuting offenses against Islam. Throughout most of the West, newer laws, expressly designed to protect religious minorities, are increasingly being adopted and applied to restrict speech thought to be religiously offensive. These laws have led to lawsuits aimed at settling sectarian differences of opinion, which was the very outcome against which the British panel had warned. Together with remaining blasphemy, public order, and related laws, they have created a complicated legal patchwork that threatens the right to speak freely about and within Islam.
Religious Hate Speech and a Right Not to Be Offended
While blasphemy laws are in decline, newer laws that perform many of the same social, if not theological, functions are becoming entrenched in many Western legal systems. In comparison to blasphemy laws, prohibitions against hate speech are of relatively recent vintage. While some countries, including Germany, passed such laws in the 1930s as a (futile) measure against Nazism, their major growth came after the Second World War.40 Together with more narrowly targeted measures, including laws against Holocaust denial and prohibitions on the organization of fascist parties and use of their symbols, they reflect the traumatic memory of Hitler’s genocide.41
As discussed in chapter 11, two principal international human right treaties—the ICCPR, protecting individual civil and political rights, and the CERD, protecting against racism—contain provisions banning hate speech, with the former containing a provision specifically compelling states to prohibit incitement to religious hatred, a provision that had been proposed by the Soviet bloc without Western group support. Several regional agreements also call for restrictions on hate speech. A 1997 recommendation by the CoE Committee of Ministers urged its member states to adopt “civil, criminal and administrative law provisions on hate speech.”42 A 2003 additional protocol to the CoE’s convention on cybercrime calls for the criminalization of “distributing, or otherwise making available, racist and xenophobic material to the public through a computer system,” as well as “publicly insulting via computer” groups “distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors,” or persons because of their membership in such a group.43 (The American Convention on Human Rights also bans advocacy of national, racial, or religious hatred but, at U.S. insistence, only when this constitutes “incitement to lawless violence or to any other similar action,” rather than the broader formulation, when there is incitement to “hostility and discrimination.”44)
To ensure a common criminal law approach to the issue, in 2008, the European Union adopted a binding “Framework Decision” to criminalize certain expressions of racism and xenophobia. In so doing, all twenty-seven EU countries agreed to punish with at least one to three years’ imprisonment, inter alia, intentional acts of incitement to religious “hatred”: the new crimes could include the “distribution of tracts, pictures or other material.” Formulated with neo-Nazi extremism as its target, the agreement also mandates the criminalization of genocide denial.45 As a result of an intervention by the United Kingdom—which regulates religious hate speech less strictly than its racial equivalent—the EU formally compels prosecution only when religious hate speech functions as a cover for racism or xenophobia.46 While reaffirming freedom of expression, it provides little clear guidance on how to reconcile tensions between this right and the obligation to prohibit hate speech.47 National compliance by member states was required by November 28, 2010.
Many states have copied the ICCPR’s “incitement to hatred” formula, though some have foregone adopting its particularly vague “incitement to hostility” language and only ban incitement when it is likely to result in violence or discrimination.48 Other countries also, or instead, ban related offenses, such as defamation or insult of a protected group or its members. In England, hate-speech crimes are prosecuted as racially or religiously aggravated public order offenses.49 Many such laws do not require proof of intent for conviction, while even fewer require that the speech in question lead to imminent lawlessness. As a result, as one legal scholar remarked concerning an Australian religious vilification statute, “one can ‘incite’ hatred without either the intention to do so or the effect of so doing.”50
A 2008 study by the CoE’s independent consultative body, the Commission for Democracy through Law (the “Venice Commission”), clearly shows the trend: of the forty-seven council-member states, all but Andorra and San Marino have adopted some type of hate-speech bans, with most covering religious
hate speech, while blasphemy laws remain on the books in only eight states.51
The United States is exceptional in the strong protections it gives to freedom of expression under the First Amendment of the Constitution.52 As the Supreme Court held in the 1969 case Brandenburg v. Ohio, under this amendment, freedoms of speech and press bar the government from forbidding “mere advocacy” of violence or of other criminal behavior save where such advocacy is directed to inciting or producing imminent and likely lawless action.53 Generally, hate speech or speech that gives offense is, like blasphemy, constitutionally protected speech in the United States.54 Offenses that are called “hate crimes,” which some American states do have, simply amplify the penalty for traditional crimes in which the perpetrator was motivated by biases considered particularly detrimental to society but are not intended to penalize speech per se.55 By contrast, European-style hate-speech codes punish hateful expression standing alone.56
American free-speech principles were questioned by at least some leading figures in September 2010, when a tiny Florida church threatened to burn a Qur’an, and again in April 2011 when the same church went through with the deed. These events in Gainesville received ample publicity and were exploited in Afghanistan by Taliban militants and other extremists to stage riots that resulted in the murder of a dozen people, including UN humanitarian workers and American military trainers. The American president, senior members of his administration, and American military commanders spoke out in a coordinated effort first to try to prevent, and then to condemn the Qur’an burning. More troubling, powerful American voices expressed doubts about American freedoms of speech and religion. Senate Majority Leader Harry Reid debated holding hearings on Qur’an desecration. Senator Lindsey Graham, a chief sponsor of a bill against flag burning, expressed his wish to “hold people accountable” for Qur’an burnings, since, while “free speech is a great idea,” America is “in a war.” Supreme Court Justice Stephen Breyer told an interviewer of his desire for a First Amendment exception that would allow punishing those who immolate the Qur’an. (He later retracted this.) These senior American leaders were, in effect, contemplating a law to protect Islam from negative expression—the first such U.S. federal law for any religion. In Snyder v. Phelps (2011), the Supreme Court reaffirmed the principle that speech cannot be banned because it is hurtful. Nevertheless, America’s resolve to uphold its First Amendment rights will continue to be tested.57