Silenced: How Apostasy and Blasphemy Codes Are Choking Freedom Worldwide

by Paul Marshall

  78. Frank LaRue, UN Special Rapporteur on freedom of opinion and expression, Miklos Haraszti, OSCE Representative on Freedom of the Media, Catalina Botero, OAS Special Rapporteur on freedom of expression, and Faith Pansy Tlakula, ACHPR Special Rapporteur on freedom of expression and access to information, “Joint Declaration on Defamation of Religions, and Anti-Terrorism and Anti-Extremism Legislation,” December 10, 2008, http://www.osce.org/documents/rfm/2008/12/35705_en.pdf. The statement also attempted to set boundaries for laws restricting speech advocating terrorism and regulating media coverage of terrorism.

  79. As noted in Graham, “Defamation of Religions: The End of Pluralism?” 72. See official records of the 70th plenary meeting of the 63rd session of the UN General Assembly, December 18, 2008, A/63/PV.70. The Western block convinced about twenty mainly African and Latin American countries, along with some island states, to end their support; most switched to abstention.

  80. Summary record of the 46th meeting (November 24, 2008) of the Third Committee of the UN General Assembly, 63rd session, distributed January 22, 2009, A/C.3/63/SR.46, pp. 5–7. See also Robert Evans, “Don’t Link Islam to Terror, Islamic Chief Urges,” Reuters, December 19, 2008.

  81. See Racism, Racial Discrimination, Xenophobia and Related Forms of Intolerance, Follow-Up to and Implementation of the Durban Declaration and Programme of Action, UN Human Rights Council Resolution, March 26, 2009, A/HRC/10/L.2/Rev.1; and Resolution 10/22, Combating Defamation of Religions, adopted March 26, 2009, in Draft report of the Human Rights Council on its tenth session, released May 12, 2009, A/HRC/10/L.11, pp. 78–83. Voting was “YES”: Bahrain, Bangladesh, Bolivia, Burkina Faso, China, Cuba, Djibouti, Egypt, Indonesia, Jordan, Kyrgyzstan, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal, South Africa; “NO”: Argentina, Belgium, Chile, France, Hungary, Italy, Mexico, Netherlands, Norway, Republic of Korea, Slovakia, Slovenia, Ukraine, United Kingdom, United States of America, Uruguay, Bosnia and Herzegovina; “ABSTAIN”: Brazil, Cameroon, Ghana, India, Japan, Madagascar, Mauritius; “ABSENT”: Angola, Gabon. TOTAL: YES: 20, No: 17, Abstentions: 8. This drop in support parallels the General Assembly vote in December 2009, 80 votes for to 61 against, 42 abstaining. This result was the worst ever for the OIC member states and their supporters.

  82. Statement by Mr. Zamir Akram of Pakistan for the OIC at the 5th plenary meeting of the 10th session of the UN Human Rights Council, March 26, 2009, http://www.un.org/webcast/unhrc/archive.asp?go=090326.

  83. International Covenant on Civil and Political Rights, available via the Office of the UN High Commissioner for Human Rights at http://www2.ohchr.org/english/law/ccpr.htm. Both sections of article 20 were held, without further explanation, to be “fully compatible with the right of freedom of expression as contained in article 19, the exercise of which carries with it special duties and responsibilities,” in Office of the High Commissioner for Human Rights, “General Comment No. 11,” July 29, 1983, paragraph 2, http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/60dcfa23f32d3feac12563ed00491355?Opendocument.

  84. International Convention on the Elimination of All Forms of Racial Discrimination, available via the Office of the UN High Commissioner for Human Rights at http://www2.ohchr.org/english/law/cerd.htm.

  85. The first U.S. reservation to the covenant states: “That article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.” The sixth U.K. reservation declares: “The Government of the United Kingdom interpret Article 20 consistently with the rights conferred by Articles 19 and 21 of the Covenant and having legislated in matters of practical concern in the interests of public order (ordre public) reserve the right not to introduce any further legislations”; Australia’s reservation follows the same lines. Belgium declares: “Article 20 as a whole shall be applied taking into account the rights to freedom of thought and religion, freedom of opinion and freedom of assembly and association.” Other European states have entered reservations regarding article 20 (1), which concerns propaganda for war, on free expression grounds, but professes no similar concern over 20 (2). See Status of Treaties: International Covenant on Civil and Political Rights, UN Treaty Collection, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en; http://www.bayefsky.com/pdf/usa_t2_ccpr.pdf; http://www1.umn.edu/humanrts/usdocs/civilres.html.

  86. Gordon Duguid, “U.S. to Run for Election to the UN Human Rights Council,” U.S. State Department press release, March 31, 2009, http://www.state.gov/r/pa/prs/ps/2009/03/121049.htm, and Patrick Worsnip, “U.S. Elected to U.N. Rights Council for First Time,” The Washington Post, May 12, 2009.

  87. In Brandenburg v. Ohio, the U.S. Supreme Court established the incitement test under which advocacy of use of force or law violation cannot be prohibited except where such “advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444 (1969).

  88. Under federal law, hate crimes are not distinct offenses. They amplify the penalty for traditional crimes in which the perpetrator was motivated by biases considered particularly detrimental to society. See William J. Krouse, Hate Crime Legislation in the 109th Congress, Congressional Research Service Report RL 33403 (2009), p. 2. By contrast, European-style hate speech codes can punish hateful utterances standing alone. See, further discussion in chapter on Western law.

  89. “Remarks on the Release of the 2009 Annual Report on International Religious Freedom, Remarks of Hillary Rodham Clinton, Secretary of State,” Washington, DC, October 26, 2009, http://www.state.gov/secretary/rm/2009a/10/130937.htm.

  90. “Briefing on the Release of the 2009 Annual Report on International Religious Freedom, Special Briefing of Michael H. Posner, Assistant Secretary, Bureau of Democracy, Human Rights, and Labor,” Washington, DC, October 26, 2009, http://www.state.gov/g/drl/rls/rm/2009/130948.htm.

  91. “International Law as Part of Our Law,” 98 Am. J. Int’l L. 43, 52–54 (2004) and “The Globalization of Freedom,” 26 Yale L.J. 305 (2001). In his speech before the American Society of International Law on March 25, 2010, Koh described as an important success: “the adoption by consensus of a freedom of expression resolution, which we co-sponsored with Egypt, that brought warring regional groups together and preserved the resolution as a vehicle to express firm support for freedom of speech and expression. This resolution was a way of implementing some of the themes in President Obama’s historic speech in Cairo, bridging geographic and cultural divides and dealing with global issues of discrimination and intolerance.”

  92. Durban Review Conference 2009, http://www.un.org/durbanreview2009/index.shtml; “Iran Becomes a Member of the Inner Circle of the Drafting Committee of UN ‘Anti-racism’ Conference,” Eye on the UN, July 31, 2008, http://www.eyeontheun.org/durban.asp?p=622; Statement of the Permanent Mission of the Islamic Republic of Iran to the United Nations, No. 330-11/4312, March 14, 2008, http://www.un.org/durbanreview2009/pdf/replies/Iran.pdf; Statement of the representative of Iran before the first plenary meeting of the first substantive session of the Preparatory Committee of the Durban Review Conference, April 21, 2008, UN Human Rights Council archived video, http://www.un.org/webcast/unhrc/archive.asp?go=031.

  93. Note verbale dated October 8, 2008 from the Permanent Mission of Sri Lanka to the United Nations Office at Geneva addressed to the Office of the United Nations High Commissioner for Human Rights, UN General Assembly, October 10, 2008, A/CONF.211/PC.3/5.

  94. See Note verbale dated September 13, 2008 from the Permanent Mission of Pakistan to the United Nations Office at Geneva addressed to the Office of the High Commissioner for Human Rights, UN General Assembly, October 3, 2008, A/CONF.211/PC.3/10; Revised version of the technically reviewed text (A/CONF.211/PC/WG.2/CRP.2), January 23, 2009, http://www.un.org/durbanreview2009/pdf/intersession_open_ended19109.pdf; “Dur
ban II – The Human Rights Fraud,” Eye on the UN, January 28, 2009, http://www.eyeontheun.org/durban.asp?p=718.

  95. Hillel Neuer, “The Defamation of Human Rights,” Radio Free Europe/Radio Liberty, December 22, 2008, http://www.rferl.org/Content/The_Defamation_Of_Human_Rights/1362296.html.

  96. Betsy Pisik, “U.S. to Skip Racism Summit,” Washington Times, February 28, 2009; Robert Wood, “U.S. Posture Toward the Durban Review Conference and Participation in the UN Human Rights Council,” State Department press release, February 27, 2009, http://www.state.gov/r/pa/prs/ps/2009/02/119892.htm; “A U.N. Education,” Wall Street Journal, March 2, 2009, http://online.wsj.com/article/SB123595311981705283.html.

  97. Outcome document of the Durban Review Conference, United Nations, http://www.un.org/durbanreview2009/pdf/Durban_Review_outcome_document_En.pdf. “Islamophobia, antiSemitism, Christianophobia, and anti-Arabism” are discussed in paragraph 12; incitement to hatred in paragraphs 13, 68, 69, 134; freedom of expression is praised in paragraphs 54, 58.

  98. Full text of the ICCPR is http://www2.ohchr.org/english/law/ccpr.htm.

  99. “Freedom of Expression and Incitement to Racial or Religious Hatred,” Joint statement by Mr. Githu Muigai, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Ms. Asma Jahangir, Special Rapporteur on freedom of religion or belief, and Mr. Frank La Rue, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, at an OHCHR side event during the Durban Review Conference, Geneva, April 22, 2009, http://www2.ohchr.org/english/issues/racism/rapporteur/docs/Joint_Statement_SRs.pdf.

  100. L. Bennett Graham, “No to an International Blasphemy Law,” The Guardian, March 25, 2010, http://www.guardian.co.uk/commentisfree/belief/2010/mar/25/blasphemy-law-ad-hoc-committee.

  101. Oral statement submitted by the European Centre for Law and Justice (ECLJ), a nongovernmental organization in special consultative status, September 2007, http://www.eclj.org/PDF/070925_ECLJ_Oral_Statement_ENGLISH.pdf.

  102. On the difficulties with “defamation of religions” as a legal concept, see also Graham, “Defamation of Religions: The End of Pluralism?” 69–84.

  103. Report of the Special Rapporteur … Asma Jahangir, and the Special Rapporteur … Doudou Diène.

  104. In 2008, the UN High Commissioner for Human Rights found no common understanding among those countries that had laws on the issue and that the laws addressed “somewhat different phenomena,” UN Document A/HRC/9/7 (2008), para. 67; see also UN Document A/HRC/9/25 (2008). A 2006 study by the High Commissioner found that incitement norms have a “lack of clarity on key concepts,” UN Document A/HRC/2/6 (2006), para. 81.

  Chapter 12

  1. Mark Steyn, “The Future Belongs to Islam,” Maclean’s, October 20, 2006, http://www.macleans.ca/article.jsp?content=20061023_134898_134898&source.

  2. “Islam and Phobias,” The Economist, January 10, 2008, http://www.economist.com/world/americas/displaystory.cfm?story_id=10499144.

  3. British Columbia Human Rights Tribunal, Elmasry on behalf of Muslim residents of the Province of British Columbia and Habib v. Roger’s Publishing and MacQueen (No. 4), 2008 BCHRT 378, p. 37, October 10, 2008, http://www.bchrt.bc.ca/decisions/2008/pdf/oct/378_Elmasry_and_Habib_v_Rogers_Publishing_and_MacQueen_(No_4)_2008_BCHRT_378.pdf.

  4. Interview with Nina Shea, March 19, 2010.

  5. Unofficial translation of the Criminal Code of Finland, Ministry of Justice, http://www.finlex.fi/en/laki/kaannokset/1889/en18890039.pdf.

  6. Racial and Religious Tolerance Act 2001, No. 47 of 2001, Victorian Consolidated Legislation, http://www.austlii.edu.au/au/legis/vic/consol_act/rarta2001265/.

  7. David Palmer and Allan Harman, “Is This Religious Persecution?” On Line Opinion (Australia), January 21, 2005, http://www.onlineopinion.com.au/view.asp?article=2956.

  8. For analysis on this point see Patrick Parkinson, “Religious Vilification, Anti-Discrimination Laws and Religious Minorities in Australia: The Freedom to Be Different,” University of Sydney Law School Legal Studies Research Paper No. 08/59 (June 2008) (originally in Australian Law Journal 81 [2007]: 6–7).

  9. Mark Durie, “Catch the Fire and Daniel Scot’s (in)credible testimony,” February 18, 2005, http://www.onlineopinion.com.au/view.asp?article=3050.

  10. Islamic Council of Victoria v. Catch the Fire Ministries Inc (Final) [2004] VCAT 2510 (December 22, 2004), Victoria Civil and Administrative Tribunal, VCAT Reference No. A392/2002, http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2004/2510.html?query=^catch%20the%20fire, and Judge Higgins, Summary of Reasons for Decision, December 17, 2004, Victoria Civil and Administrative Tribunal, VCAT Reference No. A392/2002, http://www.religionlaw.co.uk/interausaf.pdf.

  11. “Muslim Council Agrees to Drop Hate-Speech Suit Against Aussie Pastors after BF Wins Appeal,” The Becket Fund, June 26, 2007, http://www.becketfund.org/index.php/article/676.html.

  12. “Anti-Vilification Laws and Their Chilling Effect on Religious Expression,” Personal testimony by Pastor Daniel Scot, Geneva—Jubilee meeting, March 28, 2007.

  13. The matter of personal libel suits and “libel tourism” is an important subject but distinct from the issues we address in this book. See Testimony of Dr. Rachel Ehrenfeld, Hearing on Libel Tourism, Subcommittee on Commercial and Administrative Law, House Committee on Judiciary, U.S. Congress, February 12, 2009, http://judiciary.house.gov/hearings/pdf/Ehrenfeld090212.pdf; “Governor Paterson Signs Legislation Protecting New Yorkers Against Infringement of First Amendment Rights by Foreign Libel Judgments,” New York State press release, May 1, 2008, http://www.state.ny.us/governor/press/press_0501082.html; Arlen Specter and Joe Lieberman, “Foreign Courts Take Aim at Our Free Speech,” Wall Street Journal, July 14, 2008; Adam Cohen, “‘Libel Tourism’: When Free Speech Takes a Holiday,” New York Times, September 14, 2008, http://www.nytimes.com/2008/09/15/opinion/15mon4.html?_r=1.

  14. In the U.S. there is no federal ban on blasphemy. State-level blasphemy laws are believed to have been invalidated under First Amendment jurisprudence since at least the 1952 Supreme Court case Burstyn v. Wilson, in which the court struck down a New York State prohibition on Roberto Rossellini’s allegedly sacrilegious film The Miracle. The court held that a ban on “sacrilegious” material sets the censor “adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies.” The justices concluded: “It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine,” U.S. Supreme Court, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), http://laws.findlaw.com/us/343/495.html. See written comments submitted in Otto-Preminger v. Austria, October 14, 1993, http://www.article19.org/pdfs/cases/austria-case-of-otto-preminger-v.-austria.pdf. David Nash, Blasphemy in the Christian World: A History (New York: Oxford University Press, 2007), 177–78, and ARTICLE 19/INTERIGHTS (see written comments submitted in Otto-Preminger v. Austria, October 14, 1993, http://www.article19.org/pdfs/cases/austria-case-of-otto-preminger-v.-austria.pdf) both identify Burstyn v. Wilson as the death knell of blasphemy as a crime in the United States despite the fact that statutes against it remained on the books in a number of states in subsequent years. In July 2010, a federal judge struck down Pennsylvania’s 1977 statute that forbade the use of certain blasphemous and profane words in companies’ names; Shannon P. Duffy, “Filmmaker Can Go with ‘Hell’ When It Comes to Company Name,” Law.Com, July 2, 2010, http://lawyers-law.com/filmmaker-can-go-with-hell-when-it-comes-to-company-name/.

  15. Nash, Blasphemy in the Christian World, 150–61, 162–66. Heresy could similarly be a capital crime. See Robert Post, “Hate Speech,” in Extreme Speech and Democracy, ed. Ivan Hare and James Weinstein (Oxford: Oxford University Press, 2009), 131, and Nash, Blasphemy in the Christian World, 179. See also Kevin Seamus Hasson, The Right to Be Wrong: Ending the Culture War over Religion in America
(San Francisco: Encounter Books, 2005), 41; Esther Janssen, “Limits to Expression on Religion in France,” Agama & Religiusitas di Eropa, Journal of European Studies 5, no. 1 (2009): 22–45, http://www.ivir.nl/publications/janssen/Limits_to_expression_on_religion_in_France.pdf.

  16. Defamation Act 2009, July 23, 2009, Irish Statute Book, Office of the Attorney General, http://www.irishstatutebook.ie/2009/en/act/pub/0031/sec0036.html; Carol Coulter, “Crime of Blasphemous Libel Proposed for Defamation Bill,” Irish Times, April 29, 2009, http://www.irishtimes.com/newspaper/frontpage/2009/0429/1224245599892.html; http://www.irishtimes.com/newspaper/breaking/2009/0519/breaking53.html. “25 Blasphemous Quotations,” Atheist Ireland, January 2, 2010, http://www.atheist.ie/2010/01/25-blasphemous-quotations; Karla Adam, “Atheists Challenge Ireland’s New Blasphemy Law with Online Postings,” Washington Post, January 3, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/01/02/AR2010010201846.html; “Ireland to Hold Referendum on Blasphemy Law,” The Guardian, March 15, 2010, http://www.guardian.co.uk/world/2010/mar/15/ireland-referendum-blasphemy-law.

  17. Dieter Grimm, “Freedom of Speech in a Globalized World,” in Extreme Speech and Democracy, 18.