Drawing the line: Blasphemy, Hate Speech and Freedom of Expression

Recent violent attacks on US and other Western diplomatic missions in response to a video synopsis of a film titled “Innocence of Muslims” posted on YouTube depicting the Prophet of the Muslims in blasphemous terms have reminded me of the violent uproar caused by the cartoons first published in Denmark in 2006, one of them portraying the Muslim Prophet as a terrorist. Such events ignite the perennial discussion on whether hate speech and blasphemy should be regulated. In 2006, when I was Counsellor dealing with human rights at the OSCE mission of Turkey in Vienna, Ambassador Yusuf Buluç and I have written a paper outlining our views on the topic. The following is a revised version of those views drawing on the recent developments.

Before going any further, let’s be clear: violence and killing people in response to an offending, hateful and even blasphemous speech cannot be justified and must be condemned. But we have to analyze these unfortunate events and find a way to deal with them.

Considering that there are various definitions of hate speech depending on national experience, the context in which hate speech takes place as well as its consequences which could potentially – I underline “potential” as distinct from US notion of “clear and present” – harm groups or individuals, become very important in determining whether to regulate hate speech. Historical evidence indicates that when danger posed by hate speech is “clear and present”, it may have been too late to deal with its consequences.

Now let’s look at the developments and factors that result in an evolving context:

Firstly, with the advent of the information society and globalized media both in terms of corporate ownership and readership, hate speech has also become globalized. That introduces a new and much larger context, necessitating a sense of greater responsibility and application of a finite judgment, not confined to a national context or territory.

Secondly, since 9/11, race, gender and ethnicity have been largely replaced by religion and culture, as the most common basis for hate speech. Public discourse has been contaminated by the perceived religious threat not only against the physical safety of democratic societies but also against the values they cherish. Self-declared “cultural warriors” use thoughts to attack the perceived enemy to challenge the climate of intellectual submission and fear. They deliberately “shock, offend or disturb” the public opinion by portraying the enemy and its irreconcilable and hostile values. Unfortunately, the use of stereotypes and labelling that insult deep-rooted religious feelings do not contribute to the creation of an environment conducive to constructive and peaceful dialogue among different communities. Spirit of tolerance is also an important value, necessary in a democratic society, because it is directly related to the right to “manifest a religion or belief in observance or practice”, thus personal fulfilment of individuals. If we lose this spirit, proposing a constitutional amendment to ban the construction of minarets, as happened in Switzerland, becomes possible and even acceptable.

Thirdly, one should also think in terms of the possible consequences of allowing hate speech in a certain context particularly in times of heightened sensitivities and inter-communal polarization. Under these circumstances, the impact of ideas, acts or manifestations that are offensive, degrading or provocative against certain groups is qualitatively different simply because they feed into and reinforce already existing misperceptions, grievances and marginalization, thereby increasing rather than decreasing fear.

So the context and the possible consequences, which potentially harm social coherence and harmony, are extremely important. In a society where racist and xenophobic elements in public discourse have almost become mainstream, the line to be drawn between free speech and hate speech becomes even more important and consequently grey areas less affordable politically. Hate speech, if not checked can unleash violent conflict, and historically has proven its capacity to trigger genocides.

The case-law of the European Court of Human Rights (ECtHR) indicates that there are indeed limits to freedom of expression as reflected in several judgements (most prominently Otto Preminger vs. Austria and Wingrove vs. the UK), on incitement to hatred, incitement which could generate violence or blasphemous publications offending religious feelings. As agreed by the three dissenting judges in Otto Preminger case, “… It must be accepted that it may be “legitimate” for the purpose of Article 10 to protect the religious feelings of certain members of society against criticism and abuse to some extent; tolerance works both ways and the democratic character of a society will be affected if violent and abusive attacks on the reputation of a religious group are allowed. Consequently, it must also be accepted that it may be “necessary in a democratic society” to set limits to the public expression of such criticism or abuse. To this extent, but no further, we can agree with the majority.”

A French court upheld a ban sought by the Catholic Church on a clothing advertisement based on Leonardo da Vinci’s painting Christ’s Last Supper. The display “insults the religious feeling of Catholics”, the Paris appeals court ruled on 8 April 2005. It has also been banned in the Italian city of Milan. (BBC) On 14 November 2006 the first civil section of the court of cassation delivered a judgment overturning the appeal judgment, on the grounds that “the purpose of parodying the form given to the representation of the Last Supper was not intended to offend Roman Catholics, nor to cast a slur on them because of their religious obedience”. (IRIS 2007-1:9/17 by Amélie Blocman)

Without laws that provide different groups with equal protection from hate speech or blasphemy against their religions, all the other measures would be of questionable effectiveness, and sense of justice and loyalty that is required for democratic legitimacy would be that much harder to achieve. In a nutshell, Martin Luther King said in 1965 what I had to say today: “Morality cannot be legislated, but behavior can be regulated. Laws may not change hearts, but they can restrain the heartless…”

Now the question is who should draw the line?

The ECtHR’s assessment is always made in regard to a State’s specific interference with the right to freedom of expression. Danish Director of Public Prosecutions stated in his decision on “Prophet Cartoons”, “it is not possible from the case-law of the Court to infer a certain state of law regarding how the Court would weigh the regard for freedom of expression in relation to expressions that can offend religious feelings.” This statement, I believe, constitutes a testimony to the fact that there is a gap in European case-law on how to deal with instances in which states do not interfere to resolve cases of conflict between freedom of expression and “rights of others”, in particular the right to respect for one’s religious feelings. The Court, in its judgement in Wingrove vs. the UK, established that “a wider margin of appreciation is generally available to the contracting States when regulating the freedom of expression in relation to matters liable to defend intimate, personal convictions within the sphere of morals or, especially religion”.

All in all, I find the case-law of the Court on blasphemy which leaves a wide margin of appreciation to the Member States as wise in the current state of our democracies. The State authorities and national judiciaries, as opposed to the ECtHR, are rightly assumed to be in a better position to decide, within the margins set forth by the Convention and other binding international law provisions, on the nature of the pressing social needs such as protecting the rights of others or preventing disorder.

So the question is what if a State is reluctant or unable to fulfil its positive obligation to holders of religious beliefs under law because of its political or legal traditions and circumstances?

In light of the foregoing, drawing the line requires fine judgements both by the lawmakers and the courts. When striking the right balance, careful consideration should be given to extending the same protection to all communities from incitement to hatred and blasphemy against their religion[1]. This is a crucial requirement for a just and inclusive society.  The victims of hate speech may interpret indifference of the authorities as tacit approval of their denigration. This in turn would seriously jeopardize their sense of justice, thereby weakening their allegiance to the society in which they live and undermine the grounds and urgency for their integration. Decontextualizing rights and their implementation leads to an unbridgeable gap between our perceptions on “what is necessary in a democratic society”. To be able to interact and build shared values, we need to rely on overlaps in our thinking and analysis.

Regardless of whether or not hate speech is regulated, acts and manifestations of hate should be countered by a timely and responsible public discourse that rejects hate and promotes mutual respect and understanding. Political leadership is particularly required to lead this kind of public discourse. On the other hand, public authorities have a special responsibility to refrain from statements, in particular in media, which may reasonably be understood as hate speech.

Hate speech is a complex phenomenon and it would be insufficient to address this problem with merely legal or political measures. Hate speech is only one type of manifestation of intolerance. Intolerance has deep roots in society. Therefore, human rights and tolerance education, which promotes respect for inherent dignity of all human beings as well as for cultural and religious diversity, is essential. Media professionalism and responsibility should also be promoted by the media itself.

My experience as a diplomat who has long been engaged in the intergovernmental human rights network leads me to conclude that there is neither sufficient collective political will nor much prospect for a consensus to reconcile freedom of speech with other attributes of a democratic society, in particular respect for cultural and religious diversity, and thus ensure their enduring complementarity. Therefore, while a healthy debate may continue to flourish in the academia, but alas in the intergovernmental human rights network, existing body of international standards and principles regarding freedom of expression are seen to be sufficient and regulating hate speech remains to be a quasi taboo. There is the vain, almost arrogant expectation that the problem will disappear with the frequency of sermonizing about freedom of expression, like the number of injections of preventive medicine.

Nevertheless, international standards and principles just like national laws are subject to scrutiny and review by their parties and adherents with a view to identifying and filling the gaps, where they exist, particularly in light of new developments as a function of societal and political dynamics.

[1] Although hate speech and blasphemy are two different concepts, there are overlaps between them in practice. Vilification of religious beliefs may sometimes be related to incitement to hatred. A hate speech may denounce particular beliefs and give this as a reason for hatred. Therefore, protection against blasphemy is equally needed for all faith communities coexisting in increasingly plural societies. The European Court of Human Rights, reasoning along the same lines in Otto Preminger Institut v. Austria, considered that “… respect for religious feelings of believers … can legitimately be thought to have been violated by provocative portrayals of objects of religious veneration and such portrayals … can be regarded as malicious violation of the spirit of tolerance which must also be a feature of a democratic society…”.

3 thoughts on “Drawing the line: Blasphemy, Hate Speech and Freedom of Expression

  1. Thank you for taking the time to write and publish this interesting paper, which leaves out an important distinction in my view, i.e. perceived hate vs. humour. These are not always easy to tell apart, and will be largely influenced by ones culture and upbringing. While jokes on religion in Western Europe were almost taboo a century ago, they are mostly accepted today. Here the best acceptance criteria seems to be talent. For example, Monthy Pythons’ Life of Brian, triggered quite a stir with it came out nearly 40 years ago, but it has actually contributed to increase tolerance. The video clip which is the subject of much anger currently, distinctly lack any form of talent.
    What is certain, is that those who choose to be offended and are vocal about it, risk weakening their cause by sending signals which can be interpreted as a form of immaturity, or insecurity. This appalling video clip has already received far too much publicity, from the people who oppose it. Imagine the powerful image a muslim community which would just shrug their shoulders, look down in disdain and move on. As you say, respect cannot be dictated, but it can be earned, and seeking protection from the courts will not achieve this. On the other hand, the majority of the people who could be faced with yet another restriction on their cherished freedom of speech would in all likelyhood resent this further erosion of their freedom, with potentially counterproductive results.

  2. Thierry, many thanks for your constructive and thoughtful comment. Let me respond to some of your points, many of which I agree by the way. To me, seeking protection from the courts means seeking justice, nothing more. For a member of the majority communities in the West, it may be difficult to fully grasp the vulnerability of the individuals who are constantly targeted with hate speech in the public and private discourse because of their religion. Of course, I would also love to see the Muslims around the world to show maturity and self-confidence by ignoring such acts and manifestations of intolerance and discrimination. Unfortunately, we are not there yet… but let’s not forget, the legal mechanisms for protecting the deeply held religious values of majority communities in Europe are still widely in place and used if necessary today – not 40 years ago -, as illustrated in the second box of my revised entry above.

    I have also written the post in full recognition of the values of the Enlightenment and the hard-worn freedoms in the West. The question however remains as to how people with different religious, ethnic and cultural backgrounds could live together without condescending one another and could build a common language to communicate; hence the importance of the new context today, which is rather different than the times of Voltaire. I am not saying what he advocated in the 18th century is not valid anymore. Quite the contrary, we need to go beyond what he proposed without sacrificing the essence of it. For example, I agree with you that blasphemy should belong to our past rather than to our future. But as long as it is in legal texts, the law of a democratic country based on the principle of non-discrimination should treat believers of different faiths, and non-believers alike, equally. This is the only way to respond to perceptions among many people in the world that the freedom of expression is being used and abused by the West to cover up or even propagate anti-Islamic prejudice.

    Joaquín Tasso: Religious criticism, even blasphemous, and hate speech are two very different things. In a free society all values, beliefs, customs and opinions (cultural, political, economic, philosophical, religious…) should be subject to public questioning, criticism, and even mockery. Without this freedom of speech there cannot be any other freedom, including –quite ironically– freedom of religion.
    Of course, we also have the obligation to respect each other, but that does not mean that we have to respect everybody’s beliefs or opinions. I personally have little respect for racist, misogynist, homophobic or any other discourse aimed at vilifying, intimidating or inciting to violence or discrimination against any particular human group, including religious communities –this is hate speech. Yet, I may abhor, publicly criticise and even make fun of some of these groups’ beliefs, opinions, values and customs, including religious ones –this is not hate speech, even if someone may take offence or may consider it blasphemous.
    A Christian may find Life of Brian an extremely offensive, blasphemous film. Yet, in a free society he or she has to accept that other persons have the right to express their views as much as he or she can express his or her Christian beliefs. Tolerance does not mean refraining from saying your mind by fear of offending someone else’s beliefs, but accepting that someone else’s opinions may be offensive to us. As Voltaire put it “I do not agree with what you say, but I will defend to the death your right to say it” –actually Voltaire never said this literally, but the quote fairly reflects his views on freedom of speech.
    The only redline should be hate speech, not religious offences –the outdated persistence of “blasphemy” in the penal codes of certain European countries is an unfortunate remnant of our intolerant religious past.
    By the way, freedom of religion also means freedom not to have a religion. It is regrettable that Turkey still blocks Internet sites promoting freethinking such as Richard Dawkins Foundation for Reason and Science.
    17 September at 12:25

    Mustafa Osman Turan: Joaquín: Many thanks for this substantive and thoughtful comment and for clarifying the definitions of hate speech and blasphemy. I would like it very much if you could copy and paste your comment to the blog itself. I am hoping that it has been written after reading my post on the blog in its entiretiy. Because I have addressed the difference between hate speech and blasphemy and illustrated how the line between the two has sometimes been blurred in practice, by referring also Otto Preminger judgement of the European Court of Human Rights. I have also written the post in full recognition of the values of the Enlightenment and the liberal political thought. The question however remains as to how people with different religious, ethnic and cultural backgrounds could live together without condescending one another and could build a common language to communicate. Hence the importance of the new context, which is rather different than the times of Voltaire. I am not saying what he proposed in the 18th century is not valid anymore. Quite the contrary, we need to go beyond what he proposed without sacrificing the essence of it, which by the way containes also “A Treatise on Toleration”. I agree with you that blasphemy should belong to our past rather than to our future. But as long as it is in legal texts, the law of a democratic country based on the principle of non-discrimination should treat believers of different faiths, and non-believers alike equally. A final remark on the internet sites on Richard Dawkins Foundation being blocked in Turkey: I have asked my sister who lives in Turkey to see if this claim was substantiated. She could enter the following websites without any problems: http://richarddawkinsfoundation.org/; http://richarddawkins.net/; http://www.statedclearly.com/richard-dawkins-foundation-for-reason-and-science/ I am not writing the blog to defend Turkey’s official policies or practices. I am writing it as an academic and a world citizen who is intellectually disturbed by the growing polarization between Islam and the West. The blog aims to provide an avenue for civilized debate. Thank you again for contributing to it.
    17 September at 14:28

    Joaquín Tasso: Dear Mustafa, In reply to your main question (how people with different religious, ethnic and cultural backgrounds could live together without condescending one another and could build a common language to communicate), I believe the first step should be removing “blasphemy” and “offences to religious feelings” from legal codes as it curtails freedom of speech and religious freedom, including the rights of the non-religious. More importantly, it would be necessary to sensitise our societies, and in particular the religious, about the need to respect other persons’ right to believe differently and to express themselves freely, including criticism of religious beliefs, values and customs, however sacred or holy. Note that I am not here calling for tolerance (no body wants be “tolerated” by others), but about every person’s right to express him or herself freely. This obviously entails putting freedom of speech “above” any personal or group belief, including religious convictions –very much like what the First Amendment does in the United States. As I said before, the only redline in a free society should be hate speech, i.e., intentionally vilifying, intimidating or inciting to violence or discrimination against any particular human group. Criticising religious beliefs, values and customs, particularly in a humoristic manner, may hurt feelings, but it is not hate speech.
    By the way, happy to see that Richard Dawkins’ site is again accessible from Turkey. It was blocked in September 2008 and was not available at least until May 2010, when I tried to reach it from Istanbul:
    17 September at 16:41

    Mustafa Osman Turan: I see you favor the US First Amendment approach to free speech, not that of the European Convention on Human Rights. The case law of the European Court of Human Rights is also quite different than that of the US Supreme Court when it comes to speech that incites to religious hatred, not just violence. The gist of my argument which I have elaborated in the post (not here) is that I see the merit of an approach which does not establish hierarcy among different fundamental rights. It is the courts in each case which should be able to pronounce their judgment on which rights would trump others, taking into account the interdependence among them. I am glad you have been in Turkey recently and hopefully have withnessed some of the positive changes as well. Happy to exchange views with you…
    17 September at 17:22

    Joaquín Tasso: Indeed, when it comes to fundamental rights better to have them clearly enshrined in the law in a way that leaves as little room for interpretation as possible, rather than leaving it to the appreciation of the courts on a case by case basis, which would create legal insecurity. Besides, we may end up having different standards on fundamental freedoms in Europe depending on the country that interprets them, which would defeat the very purpose of the Convention. I would like Turkish atheists to enjoy the same rights and freedoms as they do in France, for instance.
    Religious criticism, even blasphemy, does not impinge on religious freedom. It is however not possible to restrict freedom of speech on religious grounds without curtailing the rights of the non religious. Freedom of speech is a conditio sine qua non for any other freedom to exist, including religious freedom. It may not be a superior right, but is certainly primus inter pares.
    The pleasure has been mine.
    17 September at 21:48

    Mustafa Osman Turan: Joaquín, you were indeed right in distrusting the courts setting different and sometimes conflicting standards. Today, I have come across this piece of news from 2005 and wanted to share it with you. http://news.bbc.co.uk/2/hi/europe/4337031.stm
    BBC NEWS | Europe | French court bans Christ advert news.bbc.co.uk
    The Catholic Church wins an injunction against an all-female ad inspired by Leonardo da Vinci’s Last Supper..
    28 September at 03:07

    Joaquín Tasso: Dear Mustafa, I could not agree more with you. I could not agree more with you. Blasphemy laws and other restrictions on freedom of speech on religious grounds in Europe are a remnant of our intolerant past, which unfortunately still emerge today from time to time. In the specific case you mention, which I recall vividly, the defendant appealed the ruling and the French “Cour de Cassation” eventually annulled it in 2006 ( http://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000007055276 ) –freedom of speech prevailed, but the harm was already done. In my own country this year a well-known singer and composer was put on trial for having made a short humoristic film about “how to cook a crucifix”. Luckily, he was acquitted, but the persistence of this kind of anachronic laws is an unnaceptable threat to freedom of expression. And there have been double standards too as you rightly point out. In the UK, only blasphemy against Christianity was punishable! Fortunately, the British Parliament abolished blasphemy law in 2008, setting the right example.
    28 September at 20:57

    Mustafa Osman Turan: Many thanks for this additional info which is very useful to better understand the complexity of the matter.
    28 September at 23:36

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