The CoE—Europe’s most authoritative proponent of religious hate-speech laws—has set aside some basic principles of Western jurisprudence and set forth in their place vague and subjective criteria to guide the adjudication of this new offense. The CoE’s inability to adopt a coherent definition of a crime of religious hate speech is the best testament to its inherent subversiveness, not only to individual freedoms, but also to fundamental principles of judicial fairness, due process, and rule of law. The selective and uneven enforcement of these crimes, and the attendant problems of rising sectarian resentments and frustrations that we have seen over the past twenty years, can only be expected to continue.
Closing
The view that ideologically troubling speech should be repressed to prevent social disorder or to protect members of certain groups from “hurt feelings” has converged with pressure to enforce Muslim blasphemy strictures. Viewed by the West as the institutionalization of altruistic ideals, or perhaps of political correctness, hate-speech and related laws are seen differently by the OIC. In the UN, the OIC has interpreted hate-speech and public-order restrictions on expression as bans against religious defamation; and in the West, such laws are increasingly used to enforce restrictions akin to OIC-style blasphemy rules.
Religious hate-speech bans, public-order laws, and the like are well suited as proxies for anti-Islamic blasphemy bans since, like blasphemy rules themselves, they defy definition and can be adapted to suppress negative commentary about virtually anything claiming Islamic legitimacy. According to the CoE and its experts, the crime of religious hate speech can only be identified on a case-by-case basis by the content, manner, and context of the expression at issue. However, unlike pornography, which, with its know-it-when-I see-it standard, also defies legal definition, religious views are far-reaching and include descriptive claims about the nature of the universe, human beings, and society, as well as normative claims about how we should live, what goals we ought to serve, and how we should organize families, communities, and states. The West has traditionally accepted open debate on religious teachings pertaining to philosophical matters such as the nature of right and wrong, social matters such as the place of women, political matters such as the definition of just war and the death penalty, and even the place of religion in society. Any or all of these issues could be placed beyond debate or critique by religious hate-speech laws.
Western hate-speech laws have already been applied in a variety of Islam-related cases. Defendants in trials have been Christian clergy, for theological arguments made in religious seminars; a mainstream conservative commentator, for an article published in a prominent Canadian news magazine; and a French novelist who expressed critical opinions about all monotheistic religions. Others have been targeted by accusations of Islamophobia or “inciting hostility” against Islam and have been put through the ordeal of a formal legal investigation, including a liberal Somali-born Dutch legislator, Danish editors who hoped to open a discussion on the state of freedom of expression in their society, and even British public television broadcasters reporting on radical Muslim preachers. So far, most of these cases have ended in dismissal or acquittal or have been followed by successful appeals. However, even when prosecutions fail, the tremendous costs to defendants of time, money, and reputation, together with rare successful convictions, mean that others have cause to think twice before voicing anything that could be accused of being a criticism of Islam or any other religion.
Feelings of offense—which often is the central standard of this class of speech bans—can be expected to rise and spread to wider areas of speech as political forces strive to create, manipulate, and inflame feelings of outrage. As scholars have documented, Muslim outrage has already been manufactured over irreverent cartoons depicting Islam’s Prophet; tomorrow, it could be over women’s rights, criminalizing homosexuality, the age of consent for marriage, the comingling in society of men and women, Western toleration of Ahmadis, Baha’is, Jews, converts, and Muslim reformers, or any of the issues discussed in the preceding Muslim countries chapters.
Beyond their chilling effect, these laws result in selective and arbitrary enforcement, turning as they do on subjective judgments by police, prosecutors, juries, and courts about whether the speech at issue concerns politics and “questions of public interest” or is a religious comment, whether it is “social commentary” or “gratuitous insult,” whether it is aimed at a religious doctrine or against “intimate personal convictions within the sphere of morals or, especially, religion.” We are urged to agree, as the European Court and CoE have repeatedly insisted, that freedom of expression includes the right to make statements that “offend, shock, or disturb” but also that, as the CoE’s Secretary General, Terry Davis, explained in 2007, it “should not be regarded as license to offend.”170
The question of whether someone is liable is now contingent on exceedingly fine and unworkable distinctions of legal and philosophical principle. Religious views are not merely arcane sets of terms, signs, and symbols of no legitimate interest to the nonbeliever. Contrary to the views of the European Court, socially relevant dimensions of religious discourse cannot simply be cordoned off from other elements that merely engage “intimate personal convictions,” when believers themselves often view the one as the necessary extension of the other. It is no coincidence that, when Ayaan Hirsi Ali, Lars Hedegaard, and others criticize the oppression of women by Muslim fundamentalists, they also criticize Qur’anic verses pertaining to women that have been cited by these same fundamentalists. If religions include integrated beliefs with potential ramifications in personal, social, and political life, then debating matters of social interest requires the freedom to criticize every aspect of religion. Far from being a fringe issue, the right to express oneself freely and critically on religious questions cuts to the heart of freedom of religion, freedom of speech, and many other freedoms in liberal democracies.
If the wide-reaching and interconnected nature of religious belief makes it difficult to debate the moral teachings of a religion in isolation from its sacred narrative, it also complicates efforts to discuss any religious doctrines without affecting one’s impression of that religion’s believers. For Mark Steyn, Oriana Fallaci, Brigitte Bardot, and Geert Wilders, their unease about Muslim immigration reflected their negative views of Islam itself. However, in contrast to racism, even a hyperbolic treatment of religion and society is often linked to real debate over beliefs and values. Because religions include practices and doctrines as well as adherents, any effort to restrict negative speech about religious groups involves a perilous effort to disentangle advocacy of hatred from philosophical debate and social commentary.
There is also the problem of raising and then dashing Muslim expectations, which British policy makers recognized and the Venice Commission warned against.171 Although Western diplomats and lawmakers have rejected bans on “defamation of religions” while still accepting the principle of suppressing hate speech against persons, in many domestic and international disputes, it is perceived defamation of Islam itself that has aroused most ire within Muslim communities. It is vital to note that the major global conflagrations over “insults to Islam,” including the Satanic Verses affair, the response to Newsweek’s Qur’an desecration story, Pope Benedict XVI’s Regensburg speech, the Danish cartoon controversy, and Wilders’s Fitna, were centered on perceived blasphemy against Islam as a religion, rather than on any strictly personal insult. Many committed Muslims, as well as members of other religions, are far more concerned about criticism of their religion and its sacred symbols than they are of any criticism of themselves personally. If we accept the distinction between allegations against religions and allegations against persons, it is the former that has led to most controversy and outcry.
Amid inflamed passions surrounding a prominent case such as the Jyllands-Posten cartoons, those offended are unlikely to be mollified by even the most sober and well-reasoned arguments stressing the cartoons’
function as social commentary or by the intention of the paper’s editors in publishing them or (least of all) by the fact that the publication targeted a “religious figure” rather than Muslims as a group.
The selective policing and prosecuting of such crimes, caused in part by their vagueness, also leads to the criticism that officials, and the laws themselves, are biased when they deal with particularly “sensitive” groups or questions. When the Arab European League published a Holocaust cartoon in response to the Danish cartoons, it was prosecuted, but the Danes were not. When Finnish politician Jussi Halla-aho made offensive statements about Somalis in deliberate and explicit mimicry of another writer’s offensive statements about Finns, he was the only one investigated.172 This policy of criminalizing religious hate speech does not, as policy makers hope, allay social tensions; rather, it simply lurches from a debate about issues to an even more fraught and convoluted debate about what issues can be debated. The judiciary becomes the new battleground for competing religious, social, and political views, and it cripples the freedom to express views honestly and without fear.
Attempts by the state forcibly to regulate the content of speech involving Islam, under either blasphemy bans or, more likely given their rising popularity among Western policy makers, hate-speech laws, will prove futile in societies with growing social pluralism, in which people will inevitably be exposed to views that contradict and criticize their own. As comedian Rowan Atkinson warned, such laws merely produce “a veneer of tolerance concealing a snakepit of unaired and unchallenged views.”173 Even this veneer would be produced only at the expense of the two fundamental freedoms most critical to addressing the challenges confronting Western societies: freedom of expression and freedom of religion, “offensive” as their exercise so often is.
13
Enforcement by Violence and Intimidation
In 2004, Mimount Bousakla, a Belgian senator and the daughter of Moroccan immigrants, was forced into hiding after threats to “ritually slaughter her.” She moved to a secret location and was given around-the-clock police protection. A critic of both women’s roles in Muslim communities and fundamentalist influences in Belgian mosques, her book Couscous with Belgian Fries condemned forced marriages. Shortly before the threats, she had harshly criticized an official Belgian Muslim group, the Muslim Executive, for failing to denounce the murder of Theo van Gogh. On November 19, 2004, police arrested a Belgian convert to Islam who confessed to making threats against her.1
In late September 2006, French philosophy teacher Robert Redeker was forced into hiding after publishing an article, “In the Face of Islamist Intimidation, What Must the Free World Do?” The article, written in response to widespread Muslim anger at Pope Benedict XVI’s Regensburg address, argued that “[w]hereas Jewish and Christian rites forsake violence and remove its legitimacy, Islam is a religion that, in its very sacred texts, as much as in some of its everyday rites, exalts violence and hatred.” Several people responded to Redeker’s linking of Islam to violence by threatening to kill him and his family. An Al-Qaeda-linked Web site, Al Hesbah, published his cell phone number and home address, complete with directions for any enterprising assassin. Sheikh Yusuf al-Qaradawi, who enjoys one of the widest audiences of any Islamic preacher in the world, denounced Redeker on Al Jazeera. Egypt and Tunisia banned the Le Figaro issue containing his article. The French Interior Ministry treated the threats seriously and gave Redeker police protection.
Redeker noted that, since he was in hiding and couldn’t go to work, “the Islamists have succeeded in punishing me on the territory of the republic as if I were guilty of a crime of opinion.” The prime minister, Dominique de Villepin, denounced the threats, saying, “Everyone has the right to express his views freely,” but added, “of course while respecting others.” The mayor of Saint-Orens-de-Gameville, where Redeker worked, the head of his school, the two main French teachers’ unions, and human rights groups distanced themselves from him. The education minister expressed an amorphous “solidarity” but stressed that government employees should “show prudence and moderation in all circumstances.”2
French Muslim leader Dalil Boubakeur criticized the threats. Tariq Ramadan, with his customary equivocation, said that Redeker “is free to write what he likes in Le Figaro, but he must know what he wanted—he signed a stupidly provocative text.” In October, more than twenty French intellectuals called for more government assistance to Redeker since he was having financial difficulty due to having to live in hiding. In 2009, he remained in hiding under the protection of France’s domestic intelligence services.3
In April 2008, comedian Ben Elton said that he thought the BBC was “too scared to allow jokes about Islam” and that he was talked out of merely invoking the proverb, “If the mountain won’t come to Mohammed, Mohammed must go to the mountain.” He added, “The BBC will let vicar gags pass but they would not let imam gags pass. They might pretend that it’s, you know, something to do with their moral sensibilities, but it isn’t. It’s because they’re scared.” In his view, this was also bad for Muslims: “I’m quite certain that the average Muslim does not want everybody going around thinking, ‘We’ve just got to pretend you don’t exist because we’re scared that somebody who claims to represent you will threaten to kill us.” While the BBC denied the charges, several days later, BBC chief Mark Thompson warned of “a growing nervousness about discussion about Islam and its relationship to the traditions and values of British and Western society as a whole.”4
Introductory Remarks
In the West, bans on speech perceived as critical of Islam not only threaten legal consequences, but also may be enforced extrajudicially by vigilantes or terrorists. Muslims and non-Muslims alike are subject to intimidation and violence. Those who raise questions about immigration or leave Islam or promote tolerance, critical thought, and human rights within Muslim communities can face very real risks. Both the threat of violence and the fear it engenders in such cases are becoming widespread in the West.
Intimidation and violence in connection with art or films concerning Islam are on the rise. Among the most notorious instances was the November 2004 murder of filmmaker Theo van Gogh, which precipitated a wave of religious violence in the Netherlands as well as a round of soul-searching in Europe. But there are less publicized cases. Too often galleries, media outlets, artists, and performers seem to anticipate Islamist threats and preemptively censor themselves accordingly, often in a manner differing dramatically from their treatment of works that might offend other religious groups. In many cases, censorship takes place without any complaints by Muslims. Indeed, in some almost comical cases, Muslim groups have denied that the censored matter is even offensive to them.
Objects of intimidation and threats of violence range from members of far-right parties to clergymen to philosophers. They include those who made controversial remarks once to those who make a living by criticizing Islam. Ironically, Britain’s left-wing politician George Galloway, a radical opponent of the Iraq war and an advocate of British Islamists, was threatened with death by Islamist extremists for being a “false prophet” and for campaigning in British elections in 2005.5
While people of any religious affiliation face danger for purportedly insulting Islam, those born into Muslim families who do so, even in a mild way, are particularly at risk. Those who advocate a more open version of Islam, especially one including greater rights for women, are commonly targeted as blasphemers and may be accused of apostasy, even if they call themselves Muslims. Sometimes Muslim girls and women who don’t follow prescribed rules in dress and behavior have been victimized, even by honor killings.6 Those who actually leave Islam face particular peril. Former Muslims who identify themselves as atheists and agnostics have formed groups in an attempt to combat the violent enforcement of Islamist apostasy prohibitions. Meanwhile, converts from Islam to Christianity or other faiths face problems ranging from social pressure to deadly physical violence.
The Murder of T
heo Van Gogh
The brutal murder in 2004 of Dutch filmmaker Theo van Gogh in Amsterdam focused Western attention on the potential consequences of “insulting Islam” in a way unparalleled since the 1989 fatwa against Salman Rushdie. This time, however, the perpetrator was not a foreign government but a member of the Netherlands’ own immigrant population.
Van Gogh was a well-known provocateur who offended people of every political and religious stripe and who considered many Muslims immigrants a threat to “atheists, Jews, gays, women and nonbelievers.” One of his projects was collaborating with Ayaan Hirsi Ali on Submission, a graphic film depicting four women, who wore transparent garments and had Qur’anic verses about women written on their skin, speaking of the suffering inflicted on them by men.7
On November 2, 2004, while he was cycling near central Amsterdam, van Gogh was shot several times at close range and then nearly decapitated by a twenty-six-year-old Dutch-Moroccan. The killer, Mohammed Bouyeri, then used the knife to stab a note into van Gogh’s chest.8 One observer reportedly shouted at Bouyeri, “You can’t do that!” The killer responded, “Oh, yes I can … now you know what’s coming for you.” The note was titled “Open Letter to Hirsi Ali,” threatening her with death, signed in the name of an Islamic terrorist group, and quoting at length from the Qur’an. Its author claimed that Hirsi Ali “terrorizes Islam” and declared in capital letters, “Ayaan Hirsi Ali, you will smash yourself on Islam!”9 Bouyeri then started a shootout with the police in hopes of dying a martyr. He also left an article predicting the replacement of the Dutch parliament with a sharia court and stating, “It will not be long before the knights of Allah march into the Hague.” In a later recording, a man who had visited Bouyeri prior to the murder declared: “we slaughtered a lamb in the traditional Islamic fashion. From now on, this will be the punishment for anyone in this land who challenges and insults Allah and his messengers.”10
Silenced: How Apostasy and Blasphemy Codes Are Choking Freedom Worldwide Page 42