In Europe, hate-speech prohibitions have often been wielded against neo-Nazis and are still used to prosecute anti-Semitic expressions. The prosecuted have included the authors of a vitriolic anti-Israeli article in Le Monde, a French comic who mocked Jews and accused them of “taking control of the media,” a U.K. Foreign Office aide charged with lapsing into an anti-Semitic rant in connection with the February 2009 Israeli military action in Gaza, and a Christian Dior fashion designer charged with religious-based public insult after an anti-Semitic tirade in a Paris bar.58 Over the years, these laws have been broadened to be used on behalf of a range of diverse causes and against a panoply of targets.59 In Sweden, Australia, and Canada, they have been employed against Christian clergy, including those who made unpopular moral or theological pronouncements concerning homosexuality.60 Although France has had no blasphemy law for centuries, there have been at least five group insult cases since the 1990s concerning material offensive to Christians and at least two convictions for making harsh remarks concerning Jehovah’s Witnesses.61 There are also examples in Europe of hate-speech laws being invoked to quell inflammatory and extreme speech uttered by Muslim hard-liners, but the major growth has been against critics or perceived critics of Islam.62
Legal Cases against Commentators on Islam
Since the 1990s, a growing number of people who have made negative remarks about Islamic matters, often in the context of opposing Muslim immigration to the West, have been prosecuted and even convicted under Western blasphemy and hate-speech laws, and the distinctions between the two prohibitions have proven far from clear. Even in those cases ending in acquittal, defendants have suffered major costs in time, money, and reputation in mounting their defense. Also, regardless of the outcome, the possibility of prosecution hangs over society, chilling public discussion of Muslim and Islamic beliefs and practices.63
Commentators on Islam and Immigration
Several hate-speech cases have centered on writings opposed to Muslim immigration to the West. In an early case, the application to Islam of what were originally intended as antiracism laws produced bizarre results. “Zola F,” a cabaret artist of Pakistani Muslim background, pseudonymously published a book entitled The Impending Ruin of the Netherlands, Country of Gullible Fools and was sentenced in 1992 to a hefty fine under Dutch hate-speech laws. His book criticized Dutch tolerance of Islamic institutions and immigration, which its author warned would end in civil war and partition. As observers noted, the trial produced “the remarkable spectacle of a dark-skinned immigrant shouted down by the press and sentenced to a heavy fine for racism by white judges, while his white collaborators—the publisher and translator … were acquitted.”64
Brigitte Bardot
In France, former screen star Brigitte Bardot was fined five times between 1997 and 2008 for inciting racial hatred. These charges centered on her condemnation of the ritual slaughter of animals during the Muslim holiday of Eid el-Kabir. Bardot, an animal-rights advocate, has urged that Eid killings be carried out in licensed slaughterhouses, where the animals would be stunned before being killed.65 Her published statements also made repeated allegations of a Muslim immigrant “invasion” that would harm France.
First charged in 1996, after complaints from “antiracist” groups concerning an article in Le Figaro, Bardot was initially acquitted on the grounds that her editorial “condemned those who practice the slaughter of sheep and not the entire Muslim community,” while her comments on immigration were statements of political opinion and thus enjoyed strong free-speech protections.66 An appeals court disagreed, however, and handed her a 10,000-franc fine in October 1997.67
In 1998, she was fined for an article in a National Front paper, in which she charged that the slaughter of sheep by Muslims “covered France with blood every year” and connected this to attacks on civilians in Algeria: “They cut the throats of women and children, our monks, our officials, they will cut our throats one day and it will serve us right.” She contended that this was a reference to Islamists, not all Muslims. The court ruled that while her criticism of slaughter practices was permissible, she was at fault for laying blame for killings in Algeria on “the Moslem community in general” and predicting that France would soon experience such crimes.68
Bardot was again fined in June 2000 for a passage, “Open Letter to my Lost France,” in her book Le Carre de Pluton, and again four years later over another book, A Scream in the Silence, a best seller that condemned “the Islamization of France.”69 She was also convicted in 2008 and fined 15,000 Euros for a published letter to President Sarkozy, which mainly criticized ritual slaughter but included a statement that she was “tired of being led by the nose by this population that is destroying us, destroying our country by imposing its acts.”70 She declared to the court, “I will not shut up until stunning is carried out” before ritual slaughter.71
Oriana Fallaci
The late Italian journalist Oriana Fallaci faced a series of legal cases in multiple countries over her hostility toward Muslim immigration. In France in June 2002, the Movement Against Racism and for Friendship Between People (MRAP) sought a judicial order to quash French distribution of her book The Rage and the Pride, which the group’s leader claimed “incites racial violence.” Fallaci, who noted that she had received death threats because of her writings, responded that she “reserve[d] the right to sue MRAP for the insult ‘racist.’ ” The Rage and the Pride, written as a reaction to the 9/11 terror attacks, was vitriolic in tone, criticizing the large size of Muslim families with the words “they multiply like rats” and Muslim prayer practices, claiming they “spend their time with their bottoms in the air, praying five times a day.”72 The case was dismissed on a legal technicality on November 20, 2002.73
In Switzerland, Geneva’s Islamic Centre also sought to have the book banned and initiated proceedings to charge Fallaci under antiracism laws. The center’s leader, Hani Ramadan, brother of Tariq Ramadan, complained that Fallaci was insulting the Muslim community as a whole with her words. (Hani Ramadan himself soon became a target of human rights proponents for writing an article in Le Monde expressing approval of stoning as a punishment for adultery).74 Swiss authorities requested her extradition but were turned down by Italy’s Minister of Justice.75
In Italy itself, Fallaci became embroiled in a running verbal and legal contest with Italian Muslim activist Adel Smith, who had responded to The Rage and the Pride with his own book, Islam Punishes Oriana Fallaci. Fallaci claimed that one passage in this book constituted incitement to murder her. She unsuccessfully attempted to bring charges against Smith, who then threatened Fallaci with a libel suit for claiming that he had made a death threat. Smith had already distinguished himself by campaigning to have a crucifix removed from his son’s classroom, endorsing 9/11 conspiracy theories, and sending the mayor of Naples a bottle of cleaning liquid and an invitation to “stay at home” after she criticized his run for provincial office.76
Smith had discovered the potential of religious hate-speech laws in 2004. At that time, he had tried, unsuccessfully, to sue Pope John Paul II, then-Cardinal Joseph Ratzinger, and Cardinal Giacomo Biffi, for having stated, respectively, that in Islam “the richness of God’s self-revelation” in the Christian Bible was set aside; that followers of religions other than Catholicism were in a “gravely deficient situation” with regard to salvation; and that Italy should resist “Islam’s ideological attack” by seeking Catholic immigrants rather than Muslims. Smith said that these remarks violated Italy’s constitution, which made all religions equal under the law, and that they amounted to “offense, injury and insult” of Muslims as well as “defamation and incitation to racial and religious hatred.” The Union of Islamic Communities in Italy distanced itself from Smith.77
In 2005, he brought a complaint against Fallaci over her new book, The Strength of Reason, charging that it contained eighteen blasphemous statements. Among other provocative elements, the book warned of a Muslim plot to turn Eur
ope into “Eurabia” through immigration, with the collaboration of certain elements of European society. At one point Fallaci called Islam a “pond” with water that “never moves, never runs, never purifies itself … It poisons, it kills.”78 A judge in northern Italy insisted on bringing Fallaci to trial for her “hostile expressions against every manifestation of the Islamic religion and world.” He took particular issue with her contention that the distinction between “a good Islam and a bad Islam” was fallacious.79 Trial proceedings were halted by Fallaci’s death on September 15, 2006.80
With Fallaci’s case in mind, the Italian Senate amended a Mussolini-era statute that prohibits “offend[ing] the state’s religion, by defaming those who profess it” by expanding it to cover any “religion acknowledged by the state” and reducing the maximum punishment from two years’ jail time to a 5,000-Euro fine. Smith himself was put on trial in 2005 for “offending the Catholic religion, through the use of scorn” in a television appearance at which he had called the Catholic Church a “criminal association” and Pope John Paul a “double-crosser.” He was convicted and originally sentenced to six months in jail, which was later reduced to a fine of more than 6,000 Euros. Appearing suddenly solicitous of freedom of expression, he vowed to appeal.81
Seppo Lehto
In addition to the Halla-aho case, described above, Finland successfully convicted blogger Seppo Lehto, who received a prison term of two years and four months for defamation and incitement to ethnic and religious hatred for racially, religiously, and/or personally insulting statements on the Internet. Lehto had drawn heavy scrutiny after making public a video in which he drew Muhammad as a pig.82
Cartoons
Denmark
While verbal criticism or vitriol has regularly drawn the attention of Muslim activists and Western legal authorities, it is cartoons that have been at the center of most attention. The 2005–6 global crisis over Jyllands-Posten’s cartoons of Muhammad drew widespread Western legal attention, although cases against publishers in the West have generally failed. In Denmark itself, a complaint by Muslims against the paper was rejected by the Director of Public Prosecutions on March 15, 2006.
Officials considered charges concerning the cartoons under two statutes, one governing blasphemy and one on hate speech. Section 140 of the Danish criminal code states that “any person who, in public, mocks or scorns the religious doctrines or acts of worship of any lawfully existing religious community in this country” may face up to four months in prison. Section 266b provides for a fine or up to two years in jail for “any person who, publicly or with the intention of wider dissemination, makes a statement or imparts other information by which a group of people are threatened, scorned or degraded on account of their race, colour, national or ethnic origin, religion, or sexual inclination.”83
In the interest of protecting freedom of expression, the prosecutor held that both laws should be interpreted narrowly. He concluded that the cartoons were not merely “gratuitous” but had broader social significance that accorded them free speech protection. He also determined, “The drawings that must be assumed to be pictures of Muhammed depict a religious figure, and none of them can be considered to be meant to refer to Muslims in general.” The prosecutor argued that those that did depict Muslims did not do so in a “scornful or degrading” fashion and that a “depiction of a religious figure” was not sufficient to meet Danish standards for a blasphemy ban.
With regard to Section 140, the prosecutor ruled on each drawing individually, noting that all but four were neutral. Of those, he found that the drawing that chastised Islam’s Prophet for “keeping women under yoke” and the image of a sword-wielding Muhammad before two frightened figures in burkas were protected commentary and not an attack against “religious doctrines and acts of worship.” The drawing in which Muhammad tells two angry followers to “relax, it’s just a sketch made by an infidel Dane from South Denmark,” showed the Prophet rejecting violence and so was not scorn or mockery.
In their considerations, the prosecutors necessarily had to address what constitutes a correct portrayal of Islam and, in particular, to weigh evidence on the contentious issue of whether Islam is linked to violence. They noted, “The historical descriptions of the Prophet’s life show that while propagating their religion, he and his followers were involved in violent conflicts and armed clashes with persons and population groups that did not join Islam.” With relevance to the fourth caricature, the now well-known image of Muhammad wearing a turban bomb, they clarified that “a depiction of the Prophet Muhammed as a violent person must be considered an incorrect depiction if it is with a bomb as a weapon, which in the context of today may be understood to imply terrorism.” However, such depictions, while “incorrect” portrayals, did not qualify as “mockery,” “ridicule,” or “scorn.” Thus, the prosecutor indicated that the two statutes did limit the range of permissible statements on religious subjects and that the paper had been wrong to imply that religious groups could not demand “special consideration.”84 However, the prosecutor further held that such “consideration” did not apply in this particular instance. Despite this carefully articulated decision, the Danish cartoons still became emblematic of blasphemy against Islam in the West.
Seven Muslim groups then brought a civil suit, which, in 2006, an Aarhus court ruled invalid after finding no intent to insult Muslims.85 In 2008, an appeals court upheld that decision and further noted that, since there have been terrorist attacks committed in the name of Islam, Danish law permitted satire on the subject.86 In October 2008, the Justice Ministry turned down an appeal to bring the case before Denmark’s Supreme Court.87
France
Complainants in France and Canada initiated legal proceedings against those who republished the cartoons but were ultimately unsuccessful. In France, the Grand Mosque of Paris, joined by other Muslim organizations, launched criminal proceedings against the journal Charlie-Hebdo, which had reprinted two Danish cartoons and its own original Muhammad cartoon, and its director, Philippe Val, for “publicly abusing a group of people because of their religion.”88 According to Val’s account, French authorities encouraged Islamic groups to push for legal action to block distribution of the relevant issue, but these attempts failed. Unfazed, President Jacques Chirac recommended the services of his personal lawyer to the groups, who subsequently filed racism charges and, together with the Union of Islamic Organizations of France, reportedly pressured a reluctant Paris Grand Mosque rector, Dalil Boubakeur, to commence a suit.89
Val declared that he published the cartoons to protest the sacking of another paper’s director who had done the same.90 One notable theme of his defense was that the cartoons he published did not constitute a hate-speech crime, because they had targeted “ideas, not men” or, as he explained in the Wall Street Journal, “not believers but religion when it is used as an alibi to perpetrate terrorist acts. When religion leaves the private sphere, it becomes an ideology like any other, and must accept to be criticized with the same virulence as any other ideology. That is the very essence of democracy.”91
He received support from then–presidential candidate Nicolas Sarkozy, who had often been lampooned by the magazine, and who declared he preferred “too many caricatures to an absence of caricature.”92 On March 22, 2007, Val was acquitted. The court found no sign of a “deliberate intention of directly and gratuitously offending the Muslim community.” The judgment emphasized such specific factors as the “context” of the drawings, that Charlie-Hebdo “is a satirical paper … that no one is obliged to buy or read,” and that caricatures are by definition intended to go “beyond good taste.”93 The courts also relied on the arguments that some or all of the drawings targeted only fundamentalists, not all Muslims, and that they contributed to an ongoing public debate.94
Canada
One widely publicized case took place in Canada, where, on February 15, 2006, the Canadian Islamic Congress (CIC) lodged human rights complaints against the W
estern Standard and the Jewish Free Press for republishing the cartoons. The CIC claimed that the drawings incited hatred that had led to e-mail threats against it. Furthermore, it claimed that the Western Standard publisher, Ezra Levant, had defamed the group’s representative personally since he was a follower and descendant of the Prophet Muhammad, as well as harmed the reputation of all Canadian Muslims.95 Levant and Jewish Free Press publisher Richard Bronstein were also criticized by the general in charge of Canadian forces in Afghanistan and by the Canadian prime minister, Stephen Harper.96
The Jewish Free Press case was settled in March 2007. However, Levant remained a defiant champion of free speech and refused to repent. He noted that the initial complaint took issue with his defense of his editorial decision in other media, just as Mark Steyn’s critics had denounced him for criticizing lawsuits of the very type they brought against him.97 Formal proceedings before the Alberta Human Rights and Citizenship Commission began in January 2008, and Levant, who was asked questions about his motives for publishing the cartoons, complained that such an inquiry made citizens’ private thoughts the business of the government, called the meeting an “interrogation,” videotaped his own hearing, and even republished the Muhammad cartoons on his website during the inquiry.98 He argued that it was a violation of basic Canadian law “for a government bureaucrat to call any publisher or anyone else to an interrogation to be quizzed about his political or religious expression.” Levant noted that the complainants would be funded by taxpayers while the Western Standard had to fund its own legal defense, a situation he suggested would deter other journalists from writing about controversial topics.99
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