Silenced: How Apostasy and Blasphemy Codes Are Choking Freedom Worldwide (55 page)

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.”
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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.
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In early February 2005, the MCB sent letters to politicians, warning that their stance against the bill could cost them Muslim votes.
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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.”
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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.
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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.”
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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.
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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
).
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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.
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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.
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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.”
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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.”
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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.”
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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.
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It insisted that religious groups must tolerate critical public statements 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.
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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.”

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.

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.”
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