Silenced: How Apostasy and Blasphemy Codes Are Choking Freedom Worldwide
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Reaction against “Hate-Speech” Laws
In both Australia and Canada, high-profile hate-speech cases have produced a political and, in the latter case, judicial backlash. The Catch the Fire Ministries case spurred calls to weaken Australia’s religious vilification laws. The backlash was further exacerbated by frivolous complaints, including one by a convicted child sex offender, calling himself a witch, who claimed he had been vilified by a Salvation Army Bible class taught to prisoners.129 Some Anglican, Catholic, Jewish, and Quaker representatives, as well as Muslim ones, lauded Victoria’s Racial and Religious Tolerance Act for “exposing” the work of “religious extremist and race hate groups.”130 But the Anglican bishop of South Sydney, Robert Forsyth, argued that such laws could criminalize merely the “strong” expression of genuine convictions. Cardinal George Pell, Catholic archbishop of Sydney, warned that they would “end up curtailing free speech as well as deepening the rifts between different religious groups.” He added, “Being part of Australian life means you can criticize and will be criticized, sometimes unfairly. That is one reason why we manage to live together in peace.”131
The Catch the Fire Ministries case disillusioned one of the Religious Tolerance Act’s main Muslim supporters about the wisdom of such laws. Amir Butler of the Australian Muslim Public Affairs Committee reported: “At every major Islamic lecture I have attended since litigation began against Catch the Fire Ministries, there have been small groups of evangelical Christians—armed with notepads and pens—jotting down any comment that might later be used as evidence in the present case or presumably future cases.” As he wrote in The Age newspaper: “If we believe our religion is true, then it requires us to believe others are false.” Vilification laws thus became “a legalistic weapon by which religious groups can silence their ideological opponents, rather than engaging in debate and discussion.”132
In Canada, too, some Muslims have concluded that hate speech and blasphemy prosecutions are bad for Islam. The moderate Muslim Canadian Congress (MCC), which had warned that the CIC’s allegations against Steyn and Maclean’s would “serve no purpose other than to reinforce the stereotype that Muslims have little empathy for vigorous debate and democracy,” lauded the case’s dismissal. It also argued that the CIC’s “editorializing,” by gratuitously declaring the defendants’ writings “Islamophobic,” sent “a very dangerous message to moderate Muslims who reject Sharia and do not take inspiration from overseas Islamic countries or groups.”133 In effect, according to the MCC, Canada’s human rights commission had “taken sides in the bitter struggle within Canada’s Muslim community where sharia-supporting Islamists are pitted against liberal and secular Muslims.”134
Alan Borovoy, one of the architects of Canada’s human rights legislation and the general counsel of the Canadian Civil Liberties Association, has had second thoughts about the usefulness of hate-speech hearings. He lamented that Section 13.1 of the Canadian Human Rights Act, banning “hate messages,” has been used or threatened to be used against a film sympathetic to South Africa’s Nelson Mandela, a pro-Zionist book, a Jewish community leader, and Salman Rushdie’s Satanic Verses—none of which bore the slightest resemblance to the kind of hate material or hate mongers that he thought were the law’s original targets.135
Critics of the legislation argue that, as Ezra Levant has stated, “the process is the punishment,” since those charged with human rights offenses must foot their own legal costs while the plaintiff pays nothing.136 Borovoy added that “during the years when my colleagues and I were laboring to create such commissions, we never imagined that they might ultimately be used against freedom of speech … No ideology—political, religious or philosophical—can be immune … A free culture cannot protect people against material that hurts.”137 Concerns about the Canadian human rights process increased when, in mid-2008, reports became public that, in what appeared to be entrapment undertaken to elicit an incriminating response, serial complainant and former commission investigator, Richard Warman, had posted offensive messages on extremist websites under pseudonyms and using an unsuspecting neighbor’s Internet connection.138
Amid growing controversy, in September 2009, Athanasios Hadjis of the Canadian Human Rights Tribunal found that Section 13 violated the Canadian Charter of Rights’ guarantee of free expression, since its use was not “remedial”—an important criterion for the lawfulness of human rights commissions set forth in a previous Supreme Court decision—and instead had become punitive.139 Hadjis chose not to enforce the statute in the case at hand, brought by Richard Warman—the man behind the majority of Canadian hate-speech cases—against far rightist Marc Lemire. As Hadjis lacks authority to officially invalidate the law, his pronouncements are not decisive and, in any event, leave intact a Canadian criminal provision against hate speech, which is prosecuted in Canada’s regular judiciary. However, there is increasing doubt in Canada about the justice and efficacy of such laws.140
Hate-Speech Bill Draws Fire in Britain
When the U.K. parliament sought to transform its blasphemy laws into hate-speech bans, it led to one of the most thorough critiques of such laws within any Western nation.141 However, the result was still confused: the bill was eventually adopted, but in a drastically neutered form. Meanwhile, the United Kingdom continues to prosecute hate speech under public order laws.
In 2001, British prime minister Tony Blair’s government began efforts to ban “incitement to religious hatred” with a draconian penalty of up to seven years’ imprisonment. Home Secretary David Blunkett contended it was necessary to “close a loophole” insofar as British law banned incitement on racial but not religious grounds. The Home Office emphasized the theoretical distinction between blasphemy and hate speech, and that the measure was for “protecting the believer, not the belief,” or “people not ideologies.”142
The bill was explicitly designed to replace the ancient blasphemy ban protecting Anglican Christianity and was widely regarded as a measure designed to protect Muslims. The Muslim Council of Britain (MCB) had long called for such legislation, and, in November 2004, a Guardian/ICM poll found that 81 percent of British Muslims wanted new legislation against incitement to religious hatred, while 58 percent agreed that “despite the right to free speech, in Britain people who insult or criticize Islam should face criminal prosecution.”143 Left-wing London mayor Ken Livingstone claimed that the legislation was needed to end affronts to multicultural decency, such as the insulting reception given his recent guest, Sheikh Yusuf al-Qaradawi, who drew angry criticism after reports that he supported suicide bombing, wife-beating, and the murdering of Jews.144
During the British parliamentary debates and in the ensuing media coverage between 2004 and 2006, skeptics, including academics, writers, comedians, and artists, led by comedian Rowan Atkinson, as well as MPs, members of the National Secular Society, and Christian groups, pilloried the proposed law.145 Atkinson warned that it could ban Monty Python’s Life of Brian and maintained “there should be no subject about which you cannot make jokes,” stating, “In my view, the right to offend is far more important than any right not to be offended.”146
Conservative David Davis, who also argued that “religion, unlike race, is a matter of personal choice and therefore appropriate for open debate,” noted that the ban would “technically prevent what many people may regard as reasonable criticism of devil worshippers and religious cults.”147 Indeed, the self-proclaimed “high priest of British white witches” said that witches and satanists were likely to invoke the new laws against their critics.148 Over 1,000 churches contended in a petition that it would not dampen religious hatred but might well have “the opposite effect” and would even criminalize “the mere quoting of texts from both the Koran and the Bible.”149 The bishop of Liverpool noted that even if the charges never made it to trial, “just the headline ‘Bishop’s sermon on ritual slaughter is referred to the Attorney General’ would create an atmosphere of fear.”150 The Christian-identified
Barnabas Fund feared the law could “silence organizations like ourselves from highlighting the persecution of Christians and other human rights abuses which occur within some religious communities.”151 Secularist ex-Muslim Maryam Namazie warned of dire repercussions for those who, like her, already faced violent threats and social ostracism for criticizing Islamic extremism: “Even in the heart of secular Europe and the West, women who have resisted political Islam no longer feel fully safe.… We are already called racists and Islamophobes whenever we speak for women and against Islam and its movement.”152 Salman Rushdie urged that the proposal be dropped and noted that enduring offense was “part of everyday life” in countries such as Britain and the United States.153 He warned of attempts by right-wingers or racists to claim Muslims were engaging in hate speech, and by Muslims to prosecute writers like him.154
Conservative MP Boris Johnson, soon to replace Livingstone as Lord Mayor of London, after reading several Qur’anic passages on Jews, Christians, and unbelievers, called for the prime minister to clarify “why and how he thinks the repetition of those words in a public or private place does not amount to incitement to religious hatred of exactly the kind that the Bill is supposed to ban … If it does not … [the bill] is nonsensical and should be scrapped.”155 When the prime minister’s spokesman declined to answer, this raised sufficient concern for a Muslim delegation to visit Home Office Minister Paul Goggins, who reassured them that the bill would not affect their right to preach or recite from Islam’s sacred books.156
In early February 2005, the MCB sent letters to politicians, warning that their stance against the bill could cost them Muslim votes.157 The Director of Public Prosecutions found it necessary to advise some Muslim groups, whose members were under the impression that the law “will protect them from people being rude or offensive about Islam,” that it would not prevent rudeness about Islam, but only “the grossest form of conduct.”158
The bill received a strikingly hostile reception in the House of Lords, where Lord Peston called it “the most illiberal measure” he had seen during eighteen years in Parliament. Speakers warned of complaints that could arise: Lord Mackay cited criticism of radical imams, of the sort in which government officials themselves had engaged; Baroness Turner cited condemnations of religious teachings on the position of women; and Lord Chan expressed concern that even a moderate Muslim’s criticism of capital punishment for apostasy could trigger a complaint.
Lord Carey, former archbishop of Canterbury, suggested that the bill could be invoked against a speech he himself had made criticizing repressive Muslim governments, which had drawn complaints from Muslim leaders. And Lord Lester noted that the likely refusal of the attorney general to take up frivolous cases would “be used by extremists as evidence of the discriminatory operation of the law and will leave embittered those whose expectations were not fulfilled.” Numerous speakers noted the law’s potential chilling effect, which Baroness Miller suggested would create an incentive for booksellers to simply avoid shelving controversial works rather than risk prosecution.159 Lord Carey later explained that when Muslim groups asked him to support their campaign against The Satanic Verses, he told them they were “living in a country and civilization where we are quite used to this.”160
Ultimately, a group of Conservative and Liberal Democratic lords proposed an amendment that would confirm the right to ridicule, criticize, and insult religion, as well as the right to proselytize, while clarifying that only those intentionally inciting religious hate (rather than those whose speech or behavior was merely likely to do so) would be violating the law. The amendment also declared that behavior or speech must be threatening, rather than merely abusive or insulting, to pass the threshold for prosecution. This weakened version of the bill became law as the Racial and Religious Hatred Act of 2006.161 Its passage still did not end the British prosecution of religious hate speech, since such cases continue to be brought under public order laws, as was seen in the 2009 Vogelenzang case. In 2008, England and Wales abolished the common law ban on blasphemy, spurred by outrage over Sudan’s “teddy bear” blasphemy charges against a British teacher (see chapter 8).162 The country’s last successful blasphemy libel prosecution—and its first in over half a century—had been in the 1977 Gay News case, concerning a lewd poem involving Christian symbols.163
The Council of Europe Defends Hate-Speech Bans but Reveals Their Problems
There is widespread debate on whether to prosecute specific accusations of blasphemy and religious hate speech, and, as our brief review of some cases reveals, there is a bewildering array of laws applied and interpreted inconsistently and selectively across, and even within, countries.164 Against this background, the Danish cartoon fracas prompted the CoE to develop a rationale and set of criteria for such laws in an attempt to promote greater consistency across the continent. However, the CoE’s effort fails to square the circle. It attempts to embrace both free expression and also its curtailment through vague and arbitrary definitions and standards. In this process, the thinking developed to support the West’s religious hate-speech bans is indecisive, self-contradictory, and sometimes intellectually dishonest. The CoE’s best defense of such bans inadvertently supports the argument for their unworkability and undesirability.
The CoE Parliamentary Assembly (PACE) commissioned a report from its consultative commission specifically on “legislation relating to blasphemy, religious insults and hate speech against persons on grounds of their religion.”165 The consequent report, adopted in final form by the prestigious Venice Commission in October 2008, affirmed criminal penalties for “incitement to hatred, including religious hatred.” It rejected penalties for blasphemy or religious insult that did not incite others to hate but, for such cases, noted appropriate legal alternatives to criminal sanctions, such as “restraints” or censorship and fines.
It stressed the need to negotiate “the right balance between freedom of religion and freedom of expression.” By rejecting the traditional view, asserted by the UN Special Rapporteur on religion, that these two rights are parallel and complementary, it adopted the novel view advocated by the OIC that the right to religious freedom includes the right of religions not to be defamed and the right of religious believers not to feel insulted for their religious beliefs. (Some argue that four recent European Court hate-speech cases marked a turning point in its jurisprudence, establishing that “[a]n unconditional right not to be offended in one’s religious feelings does not exist.”166 However, these cases turn on a judicial test entailing the very subjective distinction between acceptable and unacceptable forms of religious criticism rather than a rejection of the test itself or any clear guarantees of free expression.)
The Venice Commission explicitly acknowledged the significance of Europe’s changing demographics in requiring attention to these issues, yet its response was markedly conflicted. In an oblique reference to the Danish cartoons and the van Gogh case, it endorsed the use of coercive governmental action to placate the “increasing sensitivities” of “certain individuals” who “have reacted violently to criticism of their religion.” It directly allowed that such “sensitivities” could be considered by governments “in the short term … when, in order to protect the right of others and to preserve social peace and public order,” they must limit freedom of expression. After thereby granting the right of a “heckler’s veto,” the Commission quickly followed with the hopeful thought that “democratic societies must not become hostage to these sensitivities and freedom of expression must not indiscriminately retreat when facing violent reactions.”167 On the societal level, it offered a prescription of self-censorship or “self-restraint,” provided that “it is not prompted by fear of violent reactions, but only by ethical behaviour.”
A follow-up resolution by PACE, which promulgated the Venice Commission’s views, offered a series of justifications for limiting freedom of expression in religious matters.168 It insisted that religious groups must tolerate critical public stat
ements and debate about their activities, teachings, and beliefs but added the critical qualification, only insofar as such criticism does not amount to “intentional and gratuitous insults.” It stressed that a distinction should be made between “matters which belong to the public domain, and those which belong to the private sphere.” It cited approvingly the European Court of Human Rights’ distinction between offensive “political speech,” which is given legal protection, and offensive speech regarding “intimate personal convictions within the sphere of morals, or, especially religion,” which is not. PACE rightly admonished that care should be taken in making such distinctions because prosecutions in this respect are “legion in other countries of the world.” Nonetheless, it gave no useful guidance about which matters are which and how its member countries could avoid the legion of dire results.
This distinction between the political and the personal or moral or religious is untenable since virtually every religion has teachings about politics or a substantial bearing on politics. The distinction also depends on specific judgments regarding the statement’s worthiness, its audience and range of distribution, and whether the speaker was fulfilling a public role; hence PACE gives an extremely wide opening to prosecutorial and judicial arbitrariness. As the Venice Commission itself was forced to acknowledge, “the boundaries … are easily blurred.” Far from clarifying matters, these criteria establish contradictory legal rules for different people and even for the same person in different times and places.169 This both directly and indirectly, through a chilling effect, undermines, among other rights, guarantees to individual freedom of expression, though, to be sure, PACE also acknowledges that freedom of expression is of “vitalimportance for any democratic society.”