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…”.