Silenced: How Apostasy and Blasphemy Codes Are Choking Freedom Worldwide (51 page)

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.
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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.
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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.

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.
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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.
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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.”
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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.”
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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.

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.”
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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.”
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)

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.
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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.
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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.
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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.
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The United States is exceptional in the strong protections it gives to freedom of expression under the First Amendment of the Constitution.
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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.
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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.
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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.
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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.
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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.
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In Sweden, Australia, and Canada, they have been employed against Christian clergy, including those who made unpopular moral or theological pronouncements concerning homosexuality.
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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.
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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.
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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.
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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.”
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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.
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Her published statements also made repeated allegations of a Muslim immigrant “invasion” that would harm France.