Legal Interpretations of Freedom of Expression and Blasphemy
Summary and Keywords
One of the most difficult puzzles of contemporary international relations is how to balance the human rights of freedom of opinion, religion, and expression that are set forth in the Universal Declaration of Human Rights, with calls for criminalization of blasphemy (defamation of God, religion, religious dogmas, personalities, scriptures, and artifacts) on the part of the Organization of Islamic Cooperation (OIC), the League of Arab States, Iran, and other Muslim countries, in the wake of the Iranian Revolution, the terrorist attacks of September 11, 2001, in the United States, publication of Danish and French cartoons that satirized Prophet Mohammad and equated Islam with terrorism, and the Islamist terrorist attack against the French satirical newspaper, Charlie Hebdo, in January 2015.
The question is how to strike a balance between freedom of expression, which includes non-verbal symbolic speech and legal expressive conduct, with calls for respect for religion (in word and deed), as well as the installation of a global, anti-blasphemy regime under international law.
Calls for international criminalization of blasphemy and enactment of global anti-blasphemy laws that would globalize respect for religion under international law began in 1988, when Salman Rushdie, a British-Indian novelist, published the Satanic Verses, an unorthodox narrative of the life of Prophet Mohammad and of Islamic dogma. Iran’s Supreme Leader Ayatollah Khomeini promptly issued a fatwa (religious decree) pronouncing the death sentence on Rushdie. In 2001, Buddhists, art historians, and scholars around the world were horrified when the Taliban destroyed the 1,700-year-old Buddhas of Bamiyan statues in Afghanistan. From 2013–2017, the Islamic State of Iraq and Syria (the Islamic State) went on a rampage, destroying ancient, pre-Islamic, Greco-Roman, Christian, and other monuments in Iraq and Syria. The actions of the Ayatollah, the Taliban, and the Islamic State represent a deployment of the argument of force and coercion rather than the force of argument and dialogue to impose acceptance of religious dogmas, personalities, and narratives.
People of all religious faiths condemned the death sentence passed on Salman Rushdie, as well as the destructive actions of the Taliban and the Islamic State, drawing a distinction between modes of expression—books, cartoons, news reports, and the like—that criticize religion and illegal actions such as religiously motivated intimidation and violence. However, historically, the major religions—Christianity (specifically, the Roman Catholic Church and the Anglican Church), Islam, certain strands of Buddhism, Hinduism, and others—have not made a distinction between protected speech that is critical of religion and illegal actions directed at believers. They have not distinguished between their religion’s beliefs as philosophical worldviews and individual believers as human persons subject to criticism. In Islam, criticism or satirical cartoons of Prophet Mohammad or of Islam, as well as desecration of the Qur’an, are considered offensive actions that constitute insults against all Muslims. Most member countries of the Organization for Islamic Cooperation interpret national and international law as criminalizing all anti-Islamic expressions and call for a global anti-blasphemy regulatory regime. This would be tantamount to a universal, anti-humanist posture that places religious rites and sentiments over human rights. The question is whether putting religion and other metaphysical worldviews beyond the reach of critical examination and scholarly interrogation is consistent with the libertarian values of the Universal Declaration of Human Rights.
Legal interpretations of the human right of freedom of expression and of the politico-theological concept of blasphemy are grounded in specific national, religious, historical, and politico-cultural contexts. These different national and cultural postures toward freedom of expression and blasphemy can be explained by the concept of “establishmentality,” a neologism that describes different politico-cultural mentalities or logics with respect to the role and place of religion in the life of the state, the law, and the public sphere. In Muslim countries with constitutional or statutory state religions—Iran, Pakistan, Saudi Arabia, Egypt, the Maldives, and others—the penalty for blasphemy is death. Blasphemy is also criminalized in the rest of the Middle East. In Western countries with established (state) religions—the United Kingdom and Scandinavia—blasphemy laws have either been repealed or are not being enforced. By way of contrast, the United States has an anti-establishmentarian constitutional regime. The First Amendment is a charter of negative rights that forbids the establishment of religion (creation of a state religion). In the last few years, the Organization of Islamic Cooperation and the Arab League have put pressure on the United Nations to ban blasphemy and institute a regime that puts region and religious sentiments above criticism. The danger is that the establishment of a universal anti-blasphemy right grounded in the theological concept of respect for religion would be clearly at variance with the freedom of opinion, religion, and expression provisions of the Universal Declaration of Human Rights.
Keywords: comparative law, freedom of expression, freedom of opinion, freedom of religion, freedom of speech, law and religion, cross-cultural analysis of blasphemy, respect for religion, establishment of religion, establishmentality, human rights, Mohammad cartoons, Jyllands-Posten, Charlie Hebdo, the Universal Declaration of Human Rights
Diverse Legal Interpretations of Freedom of Expression and Blasphemy
On January 7, 2015, two Kalashnikov-wielding terrorists burst into the editorial offices of French satirical weekly newspaper Charlie Hebdo and opened fire, killing the editor, Stéphane Charbonnier, journalists, cartoonists, and two police officers guarding the premises. When the smoke had cleared, 12 people lay dead and 11 others were wounded. As the terrorists left the scene of the massacre, they shouted, “On a vengé le prophète Mohammad, on a tué Charlie Hebdo” (We have avenged Prophet Mohammad, we have killed Charlie Hebdo).” This statement was a clear reference to satirical cartoons of Prophet Mohammad that Charlie Hebdo had published in 2006 and 2011 over the strenuous, vehement, and emotional objection of French Muslim groups, the Organization of Islamic Cooperation (OIC), and Muslim countries around the world. Attempts to use the French courts to prevent the newspaper from publishing the Mohammad cartoons had been unsuccessful. The Charlie Hebdo terrorist attack and others before it reminded the world that one of the fundamental issues in contemporary international relations is the “problem of religion.” This problem can be summarized as the differential conceptualizations and interpretations of the role and place of religion in the life of the state, the life of the law, and the public/political sphere. Religion is problematized because criticism of religion is increasingly being classified as blasphemy, a sin, and a theological crime that carries severe penalties, including death. This development poses a serious challenge to the human right of freedom of expression whose genesis stretches back to the first forms of human communication.
Aim of This Entry
The aim of this entry is to survey, analyze, and explain the legal interpretations of freedom of expression and blasphemy that have come to the fore as both concepts have clashed in a number of high-profile international controversies in the last quarter century. In other words, the entry is concerned with the tension between the human right of freedom of expression and the politico-theological doctrine of expectation of respect for God, religion, holy personalities, holy scriptures, religious rituals, holy sites—in short, “the sacred.” Respect for the sacred is an expectation in many religions. This expectation is chiefly embodied in a wide array of anti-blasphemy, anti-defamation group laws. A study by the Pew Research Center found that one quarter of the countries of the world had anti-blasphemy laws. The bulk of these countries are Islamic countries in North Africa, the Middle East and Asia. This entry presents a number of blasphemy cases, describes how they were handled and resolved by courts or executive authorities in Iran, the United States, the United Kingdom, Denmark and France, within the context of their constitutional regimes. Thereafter, the article explains the diverse legal interpretations of freedom of expression and blasphemy within the framework of the concept of establishmentality, a neologism that stands for diverse national and regional conceptualizations and interpretation of the role and place of religion and the sacred in the life of the state, the life of the law, and the public place. This is necessary because globalization and the interconnection of nations, cultures, and peoples have made the world a “smaller” place. Furthermore, information and communication technologies have led to the convergence of once discrete media on the Internet. Internet content is global content that is sometimes received and consumed outside the original politico-cultural context in which it was produced. Flemming Rose, the former culture editor of Jyllands-Posten, the Danish newspaper involved in the Mohammad cartoons controversy of 2005–2006, notes: “For humor and satire in particular, the loss of context opens the door to myriad possible misunderstandings and sources of offense.” Establishmentalities explain are the “contextual matrices,” to use the expression of Legrand, that explain diverse conceptualizations of freedom of expression and blasphemy.
We will begin this entry with a discussion of establishmentality, the theoretical framework, within which we will define and explain freedom of expression and blasphemy. Thereafter, we will introduce the concept of freedom of expression and briefly survey its historical origins and place within international human rights and the Western and the Muslim worlds. We will next trace the origins of the politico-religious concept of blasphemy in the Judeo-Christian and Islamic religious traditions. Thereafter, we will analyze case studies that demonstrate how tensions between freedom of expression and blasphemy have been resolved in a number of jurisdictions.
Theoretical Framework: Blasphemy and Religious Establishmentalities
This study of the legal interpretation of blasphemy was carried out within the framework of the concept of establishmentality, a neologism formed from the words “establishment” and “mentality.” It refers to diverse politico-cultural worldviews, mindsets, or intellectual orientations regarding the role and place of religion in the life of the state and in the public sphere. Specifically, it refers to de facto or de jure regimes of establishment (official recognition) or non-establishment of specific religions or confessional creeds in given political systems. Establishmentalities are “contextual matrixes” that determine how question of freedom of expression and blasphemy are conceptualized and interpreted in everyday life (See Table 1). Differences in establishmentality have resulted in diverse national and transnational politico-cultural and legal postures on the relationship between religion, politics, and human rights. Pierre Legrand calls this phenomenon, “law-as-culture” because the law reflects the ideologies, religious and moral values, cultural norms, and community standards of specific jurisdictions.
Table 1. Typology of Establishmentality
* Separation of state from religious dogma, not from religious sites of cultural memory.
** Separation of the state from the mosque but not from the dogma and practice of Islam.
*** Diverse relationships between the church and the state in Norway, Sweden, Denmark, Finland, Iceland. In Denmark, blasphemy is criminalized “on paper” but tempered by European Convention on Human Rights.
Interestingly, Western secular establishmenalities are grounded in the Christian religion. French scholar, Fracchini, advances the idea that Christianity, which preached that sin is a personal rather than a collective affair, and that human beings can choose salvation or reject it, ultimately led to Western secular individualism: “The creation of a religion of individual salvation participated in the birth of the individual.” He suggests that through its emphasis on individual salvation, Christianity laid the foundation for secular individualism in the Western world: “The invention of the individual and the separation of the spiritual and secular” (the church and the state) is grounded in the teaching of Jesus Christ who told his disciples: “My kingdom is not of this world,” and instructed them to: “Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God's.” Subsequently, the emperors of the Christianized Roman Empire, specifically Emperor Justinian, set the impetus for secularization of the law by creating a distinction between the spiritual and the temporal (canon law and civil law). Furthermore, as the power of the Roman Catholic Church grew, popes distinguished their superior spiritual authority over Christians from the temporal political authority of government.
The Enlightenment and Western Establishmentalities
The Enlightenment, a philosophical and cultural movement that emphasized reason, individual autonomy, and critical thinking rather than conformity with religious orthodoxy further advanced reasoned freedom of thought and expression. The fundamental feature Enlightenment was the power of the human mind to subject human beings and the world in which they lived to systematic thinking and rational analysis. It represented freedom of conscience, belief, opinion, and public communication. The Enlightenment stood for, in the words of Kant, “freedom to make public use of one’s reason in all matters.” This included the freedom to publicly question religious authorities and institutions. From Kant’s perspective, lack of reflection, and freedom of expression within and about religious matters perpetrated absurdities “because religious immaturity is the most pernicious and dishonourable variety of all.” Kant stressed the fact that restricting the right to question religious orthodoxy would violate one of the “sacred rights of mankind.” The result was the emergence of a European “enlightenmentality,” a skeptical attitude toward revealed religion, to use the neologism of Thomas Osborne. Hans Reiss succinctly summarized the posture of the Enlightenment toward religion as follows: “Revealed religion was scrutinized; in fact, it was put on trial.”
Under the influence of the Enlightenment, this separation of the temporal and the spiritual culminated in Western anti-establishmentarian regimes that—with the exception of the United Kingdom and the Scandinavian countries—generally separate church and state. Nevertheless, even European countries that have established churches are strongly secular in orientation. They all maintain the ceremonial and cultural aspects of Christianity; however, all of them have divorced, in varying degrees, the doctrinal, moral rules, and “spiritual” aspects of Christianity. The most notable Western systems are the anti-establishmentarianism of the United States under the First Amendment, and the revolutionary secular republicanism and counter-establishmentarianism of France. The concept of establishmentality classifies countries according to the level of their “entanglement or non-entanglement” with religion, to use the metaphor of the Supreme Court of the United States. In this entry, the concept of establishmentality is deployed as a theoretical framework for the analysis of a number of legal and functional definitions and “distillations” freedom of expression and blasphemy in select countries of the Western and Muslim worlds, which have the most elaborate legal experience with blasphemy.
A hallmark of the United States is its Constitutional anti-establishmentarian system that bars Congress from establishing an official religion akin to the Church of England. The United States thus instituted anti-establishmentarian creed that is set forth in what Frederick Schauer calls the “exceptional” First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and petition the Government for a redress of grievances.
The Supreme Court of the United States has interpreted the “establishment of religion” clause to mean that the government may not establish an official religion or restrict Americans from exercising the right of freedom of worship as they see fit. This policy is grounded in the idea of separation of church and state. The United States has its unique form of separation of church and state. Indeed, American anti-establishmentarianism is essentially a policy of benevolent neutrality toward religion. Under this regime, the government may neither promote, restrain, nor indulge in religion or religious exercises. Furthermore courts are not allowed to venture into the interpretation of religious procedures or doctrines. The U.S. Supreme Court has ruled that Americans are a “religious people whose institutions presuppose a Supreme Being”; therefore, the government is not supposed to favor those who do not believe in religion over those who do.
For its part, France has, since the Revolution of 1789, had a secular republican counter-establishmentality that is different from the American brand. During the Revolution, France, which had officially been a Roman Catholic monarchy since its founding in 496 ad, was de-Christianized and the state set itself up as a “counter-church” that deified reason and made secularism its official dogma. This secular establishmentality crystallized into a politico-cultural regime in which secular republicanism became established as the sacred, secular “religion” of the country. Under this secular republican establishmentality, the state is no respecter of sacred cows, religious icons, and dogmas. The state, as counter-church, is not neutral religion. It has worked actively to remove all semblance of religiosity or spirituality from the France, while maintaining the cultural aspect of Roman Catholicism: Historic cathedrals and churches. Indeed, the twin dogmas of French secular republicanism are French exceptionalism, and obeisance to the goddess of reason. A fundamental assumption of French secular republicanism is that all religions are philosophical worldviews open to examination, interrogation, and criticism. Therefore, in France, there is a sacred right to blaspheme religion. Nevertheless, French intellectuals are coming to terms with the realities of post-secularism. French philosopher, Edgar Morin has described France as a country with a rather contradictory “Catho-laique” (Catho-secular) politico-cultural system, which obscures its Roman Catholic culture and collective memory under the façade of secularism. France also has to deal with Islamic entitlementality and public religiosity that pose serious challenges to French secular republicanism. As we see below, French secular republican establishmentality clashed head-on with Islamic establishmentality in the context of the Jyllands-Posten, Mohammad cartoons and the Charlie Hebdo terrorist attack affairs.
Islamic political culture does not have the notion of establishmentarianism per se because under classical Islamic law, there is no separation of mosque and state. The model of Islamic governance is the Muslim mini-state set up by Prophet Mohammad in Medina. Under Prophet Mohammad, there was a fusion of the priestly and the kingly. Mohammad incarnated religious, political, and social leadership. Fracchini suggests that under the first Islamic state, Prophet Mohammad was the head of state because he was God’s civil and political leader: “The history of Islam is not only the story of a spiritual adventure; it is also that of a political and military adventure. The person of the Prophet, he to whom God speaks and he who leads war and governs, idealised the fusion of the religious and political rules.” As Lamin Sanneh put it, there was a turban under Mohammad’s crown. In classical Islamic establishmentality, and in most modern Islamic nation-states, the religious, the political and the social are intertwined in various degrees. Wael Hallaq suggests that under classical Islamic jurisprudence, the jurist provided a path to salvation through the community of believers. Under classical Islamic law, the Qur’an is the very literal word of God, the wellspring of Islamic legality. Therefore, as Hallaq suggests, “The Shari’a, God's law, which originated from, and is grounded in the divine texts, the Qur'an and the Hadith . . . [became] the law of the umma” (the global Islamic community of believers). The establishmentality of Muslim Caliphates—the politico-religious states and empires that emerged after the death of Prophet Mohammad, was their claim to universal political and sometimes spiritual leadership of the Muslim community (all Muslims) as well as subjugated peoples under their dominion. The last of these caliphates, the Ottoman Empire, was dissolved in 1922. The entwinement of the religious, the political, and the social, which was the norm under classical Islam, continued in different forms in the Muslim world even as Arab-Islamic nations went through a process of Westernization and creation of Muslim nation-states in the 19th and 20th centuries. However, contemporary governments in the “Muslim world” have diverse cultural interpretations of the Qur’an. Their establishmentalities or degrees of entanglement with, or separation from, Islam varies widely. They range from the God, Sharia, and priest-centered Islamic Republic of Iran, which has a supreme priestly leader, an Ayatollah, to the Islamo-secular regime of Turkey, which has a majority Muslim population, a secular constitution, and advisory Islamic institutions.
Legal Interpretations of Freedom of Expression
Communication is programmed in human genes. Human beings are thus communicative beings by nature. The Hebrew Scriptures, with their prophetic tradition, whose stock-in-trade was speaking truth to power, portray the earliest examples of freedom of opinion and expression. Translation of these Hebrew texts into Greek made them available to the Western world where classical Greco-Roman philosophical ideas on natural law, human existence, wisdom, knowledge, and ethics, were grounded on notions of the rights of free men. Natural rights have since included freedom of opinion and expression. In his work, Republic, a work that explores ethics and politics, Plato contributed to the foundation of the Hellenic, and subsequently, the Western focus on the individual person (soul), with respect to ethics (goodness and badness, rightness and wrongness of motives and actions), justice and its connection to happiness, limitations on people’s freedom, education, the role of art, the role of women in society, and so on. He also declared that law and reason are crucial in the state. In his work Rhetoric, Aristotle set forth a number of factors of persuasive discourse that underpin the democratic systems of government. His fundamental proposition was that coherent and persuasive proposals supported by well-tempered logical arguments and good character invariably led to success in democratic societies. His emphasis was on rhetoric (words), and the force of argument, rather than the argument of force. In his work, Politics: A Treatise on Government, he wrote that: “the law is reason, free from passion.” In Poetics, he gives us the very important psychological concept of catharsis or emotional purgation. This concept has been applied to activities ranging from the purgative or purifying effects of theatrical tragedies and open criminal trials to violent video games, grotesque caricatures, and horror movies. Carthasis or emotional purification is an individual phenomenon. Speech and expressions such as cartoons that have cathartic effects on some individuals can fall foul of blasphemy and defamation laws in certain societies.
A number of historical phenomena culminated in the Western worldview of human rights and freedoms. The Protestant Reformation of the 16th century was grounded on freedom of expression and ideas of freedom of conscience, self-determination and human responsibility before God. The European Renaissance witnessed the rebirth and flowering of human knowledge, artistic creativity, and freedom. The Enlightenment, which emphasized human autonomy, rationality, and empirical knowledge over superstition, was grounded on the human rights of freedom of opinion and expression. This long, historical march of human freedom culminated in the post–Second World War international human rights regime with its emphasis on freedom of opinion, religion, and expression. These human rights are set forth in the International Bill of Rights: Parts of the United Nations Charter, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), and the United Nations Convention on the Rights of the Child. Specifically, the international right of freedom of opinion and expression is set forth in Articles 18 and 19 of the Universal Declaration of Human Rights, which provides as follows:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
The major components of the communications provisions of the international human rights regime are: the right to freedom of religion, thought, opinion, expression, trans-border communication, and peaceful assembly. Unfortunately, the Universal Declaration of Human Rights is not a legally binding convention or “a statement of law or of legal obligation,” in most parts of the world. Its provisions are essentially hortatory statements encouraging member states of the UN to respect the human rights freedom of opinion, religion, and communication. The international human right to receive and convey information and to hold opinions is only recognized under the “soft” non-enforceable law of the United Nations. This is the case because there is no “globally shared core conception” of freedom of speech and expression, to borrow the expression of Buchanan and Golove. Indeed, freedom of expression and freedom of information are not well-established concepts in international law because nations have sharp politico-cultural differences over the significance and outcomes of these components of the international human rights regime. The interpretation of the human right of freedom of opinion and expression is therefore ensconced in specific national, historical, political and cultural frameworks that serve as the “contextual matrixes” that condition and often constrain its interpretation; that is to say, the actual level of freedom of expression that is granted citizens in any given regime. As a result, countries around the world impose severe limitations on the scope and application of the rights enumerated under the declaration, within the framework of their respective establishmentalities. Furthermore, though the international freedom of expression regime is concerned with, in the words of Michael Ignatieff, “authentic national expressions of universal values,” freedom of expression is a culture-bound phenomenon in which “context” is paramount. As James Gordley put it, “The difference in circumstances makes each law appropriate” to the specific jurisdiction where it is in force. Unfortunately, the contextual appropriateness of specific national communication law and regulatory regimes does not necessarily put them in sync with the Universal Declaration of Human Rights. Therein lies the dilemma of the clash of cultural and legal interpretations of freedom of expression and blasphemy.
Things are different in Europe, where the European Court of Human Rights, an institution set up by the Council of Europe to enforce the human rights provisions of the Universal Declaration of Human Rights, and the European Convention on Human Rights and Fundamental Freedoms of 1950, has a robust and growing body of freedom of expression law within its jurisdiction. The freedom of expression provision of the European Convention on Human Rights are set forth in Article 10, which provides as follows:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society.
Clearly, freedom of expression is not an absolute right. The European Court of Human Rights has held that under Article 10 of the European Convention on Human Rights, freedom of expression is a qualified right that may be balanced by other societal imperatives and limited in furtherance of legally defined government interests. Nevertheless, Article 10 is not intended to promote civility or eliminate emotional distress brought about by speech that some hearers may consider offensive: “Freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’” Additionally, under the jurisprudence of the European Court of Human Rights, freedom of expression is the foundation of democratic societies. Therefore, in cases of conflict between freedom of expression—specifically, freedom of the press—and other rights protected by the ECHR, freedom of the press takes precedence because the press is central in democratic societies.
Freedom of expression has become a salient issue in international communication. Globalization and the interlinking of nations and cultures on the Internet, and its associated social media have brought diverse establishmentalities face to face and revealed the tensions and frictions that exist between them on the issue of freedom of expression and respect for religion. Not all countries place the same importance on freedom of opinion and expression. In many countries, religious rites trump human rights. While most Western countries that are also members of the European Union and the Council of Europe grant their citizens these rights, subject to “reasonable restrictions” necessary in a democratic society, authoritarian regimes from other parts of the world balance freedom of expression against other governmental interests such as national security, law and order, stability, civility, social harmony, economic development, and respect for religion. The justification for this posture is that freedom from insecurity, chaos, and social conflicts is the first freedom. As such, constitutional instruments empower governments to set in place restrictions—judicial and extra-judicial, reasonable and unreasonable—on the right of freedom of expression to avoid context-based, perceived misuse and abuse of this right. The result has been a global patchwork quilt of infringement and lack of respect for freedom of conscience, opinion, information, communication, and expression. American legal scholar, Jonathan Turley, states that though freedom of expression is a “defining right” in the West—freedom of expression and Western democracies are inextricably linked—that right is being challenged by non-Western countries and worldviews: “The very right that laid the foundation for Western civilization is increasingly viewed as a nuisance, if not a threat. Whether speech is deemed inflammatory or hateful or discriminatory or simply false, society is denying speech rights in the name of tolerance, enforcing mutual respect through categorical censorship.”
Nevertheless, while most Western countries that are members of the European Union and the Council of Europe grant their citizens the right of freedom of speech and expression, subject to “reasonable restrictions” necessary in a democratic society, some segments of Western societies claim that Western-style freedom of expression to which the European Court of Human Rights has affixed its imprimatur is too expansive and does not take into consideration the rights and feelings of ethnic minorities and minority religions. These conflicting points of view have brought frictions between freedom of expression and respect for religion—an expression that covers a wide array of activities ranging from prohibitions against criticism of religious dogmas and personalities, tolerance of public displays of symbols of religion, accommodation of religious activities, to elimination of prohibitions against wearing Islamic veils in the workplace—to the fore in most European countries. The core of the conflict has been condemnation and calls for the elimination of cartoons, caricatures, and satirical expressions that are critical of religion from the media in real space and cyberspace, on the grounds that they disrespectful to God, specific religions, religious leaders, or religious doctrines. In other words, defenders of the concept of respect for religion view these forms of criticism of religion as sacrilegious, blasphemous, and culpable. In many Western and non-Western countries, critics of blasphemy describe it as “Islamophobic,” a widely used, but poorly defined censorious epithet. The crux of the matter is that cartoons, caricatures, satirical writings and other forms of expression that are critical of religion and other philosophical world views are indeed constitutionally protected in virtually all Western countries. In the United States and Europe, where religious rights do not trump human rights, courts at all levels are increasingly being called upon to strike a balance between the right of freedom of expression and the free exercise of religion; the right of the critic of religion, and the feelings of those whose religion is the subject of criticism or even derision.
Origins of the Concept of Blasphemy
Blasphemy is a politico-religious and legal concept that the Oxford English Dictionary defines as “the act or offense of speaking sacrilegiously about God or sacred things.” The French-language Le Petit Robert dictionary defines blasphemy as the act of insulting, outraging, or showing contempt or a lack of reverence for divinity, religion, or an individual or object held sacred. Blasphemy emerged from the establishmentalities of ancient civilizations, which crystallized—often in epic narratives—human conceptualizations of, and encounters with, deity. In many civilizations, blasphemy was first and foremost a religious offense, a sin against the gods and their earthly symbols, representations, and representatives. Questioning orthodoxy, expressing skepticism about the existence of deity, and interrogating the truth claims of religions, their founders, or prophets, often resulted in charges of blasphemy. Mankind’s earliest extant codification of law, the Code of Hammurabi, in ancient Babylon, reflects a polytheistic moral philosophical establishmentality or worldview. In that culture, there was no separation of the sacred and the profane, the temple and the state. Indeed, in Babylon, Assyria, and other ancient Near Eastern civilizations, there was a “fusion of royal and priestly power.” For example, the King of Assyria was also the high priest of the national god, Assur. Speaking against the king was blasphemy. The Code of Hammurabi, the earliest known codification of law in the ancient world, criminalizes a peculiar form of blasphemy—slandering temple prostitutes: “If any one ‘point the finger’ (of slander) at a sister of a god [temple prostitute] or the wife of any one, and can not prove it, this man shall be taken before the judges and his brow shall be marked” (p. 127).
Blasphemy in the Judeo-Christian (Western) Tradition
Blasphemy is a politico-religious offense that evolved over time as specific religions, nations, cultures, and civilizations identified themselves with specific deity, and developed interpretations of religious and sacred phenomena that crystallized into specific establishmentalities that set forth the role of religion in the life of the state. The earliest recorded legal definition of blasphemy in the Judaic tradition is found in what Ricœur called, the “legislative texts” of the Hebrew Scriptures—the Ten Commandments and other statutes that made up Jewish law. The seventh commandment (Exodus 20:7) states: “You shall not misuse the name of the Lord your God, for the Lord will not hold anyone guiltless who misuses his name.” The book of Leviticus (chapter 24), records the first conviction and execution for blasphemy. It states that God ordered the execution of a man who “blasphemed the Name [of God] with a curse.” Thereafter the Israelis were given this commandment:
If anyone curses his God, he will be held responsible; anyone who blasphemes the name of the LORD must be put to death. The entire assembly must stone him. Whether an alien or native-born, when he blasphemes the Name, he must be put to death.
The Old Testament law of blasphemy that was grounded in the theistic establishmentality of Judaism remained in force under Roman rule in Palestine (during the era of the New Testament). However, at the time of Christ, the Roman Empire did not permit Jews to execute anyone for blasphemy, or any other crime without the consent of the occupying Roman authorities. Jesus Christ, whose disciples became known as “Christians,” gave a theological definition of blasphemy that was virtually impossible to ascertain, let alone prosecute. He said the only sin that was beyond forgiveness was “blasphemy against the Holy Spirit,” part of the Christian Trinity: “Truly I tell you, people can be forgiven all their sins and every slander they utter, but whoever blasphemes against the Holy Spirit will never be forgiven; they are guilty of an eternal sin” (Mark 3:28–29). Jesus explained that blasphemy against the Holy Spirit was essentially the act of attributing the works of God to the devil. This is a more extreme act than mere moral philosophical confusion—calling good evil and evil good. Only God could punish this form of blasphemy, and that punishment was reserved for the hereafter. Jesus essentially put blasphemy and its punishment beyond the reach of mortals.
Jewish religious factions, especially the Pharisees, who believed in the bodily resurrection of the dead, and the Sadducees (who did not believe in the resurrection of the dead) accused each other of blasphemy. Furthermore, the Jewish religious authorities expanded the definition of blasphemy to criminalize the act of claiming to be God. The opponents of Jesus stoned him on the charge that he was a mortal man who claimed to be God: “We are not stoning you for any good work,” they replied, “but for blasphemy, because you, a mere man, claim to be God.” (John 10:33). Jesus was charged with blasphemy—assuming the rights, prerogatives, and qualities of God by claiming to be the Son of Man and the Son of God (Mark 14:62–64). When Jesus was arrested and brought before Caiaphas, the Jewish High Priest, Caiaphas concluded that Jesus Christ was guilty of blasphemy and deserved to die. However, since only the Roman overseers of Palestine had the power to impose the death penalty and carry it out, Jesus was sent to Pontius Pilate, the Roman Prefect (Governor) of the Roman Province of Judea. Governor Pilate examined him and found that he had not committed any political crime that called for the death penalty under Roman law. At that point, the Jewish leaders told Pilate that Jesus had committed blasphemy under Jewish religious law: “The Jewish leaders insisted: ‘We have a law, and according to that law he must die, because he claimed to be the Son of God’” (John 19:7). This was their elastic interpretation of the Mosaic law of blasphemy.
Though the Jewish leaders had arrested Jesus Christ on the religious charge of blasphemy, under pressure, Pilate ultimately dealt with the matter as a political issue. The Hellenic Jewish historians Philo of Alexandria and Flavius Josephus wrote that there was a contentious relationship between Pilate and the Jewish subjects of Roman Palestine due to the governor’s excessive brutality and reckless insensitivity toward Jewish religious sentiments. Pilate wanted to abolish Jewish religious law, and in total disregard of Hebrew scriptural prohibitions against deified graven images (idols), and over strenuous Jewish objections, he ordered Roman soldiers to bring effigies of a deified Roman emperor (Tiberius Caesar) to the holy city of Jerusalem. Pilate had also plundered the temple treasury to build an aqueduct in Jerusalem. In order to avoid another Jewish insurrection—he had quelled other uprisings—the politico-religious charge of blasphemy against Jesus took on the coloration of sedition and was dealt with as such. Jesus Christ was crucified under Roman law as the leader of an insurrection would have been crucified. The official charge for which Jesus was crucified was that he called himself the “King of the Jews,” a political crime, not the religious crime for which he had been arrested (John 19:19).
Guénoun asserts that translation of the Hebrew Bible into Greek, the original lingua franca, and language of learning and culture of the Greek Empire, deterritorialized the rather austere, Hebrew monotheistic religion and culture from its place of origin in Palestine to the polytheistic Greco-Roman “pagan” culture. That translation, the Greek Septuagint, and the Greek New Testament, transformed Ancient Greece into the transmission culture for Hebrew history, culture, religion, and law into the Western World. It can be argued that Christ’s “spiritual” definition of blasphemy as a crime against the Holy Spirit that is punishable in the hereafter, taken together with his declaration that his kingdom was “not of this world,” paved the way for Western secularism, separation of church and state, and the decriminalization of blasphemy against God.
A lot of modern Western law is grounded in the Ten Commandments. John Ecklund suggests that after the collapse of the Western Roman Empire in the 5th century, the Roman Catholic Church assumed the role of unifier of western Europe under law, and the pope assumed the “dual role of ecclesiastical and imperial lawgiver” of Western Christendom. This gave blasphemy a politico-religious coloration. As a result, questioning the supremacy and the infallibility of the Roman Catholic Church and of the pope, questioning papal inerrancy, the sacramental system, as well as devotion to Mary and the saints, amounted to blasphemy, a crime that went hand in hand with heresy, apostasy, and non-conformism. Persons accused of these crimes were excommunicated from the Church, and many were burned at the stake. The Protestant Reformation, and Martin Luther’s call for freedom of conscience, paved the way for the emergence of Western establishmentalities under which there is a right to be agnostic, to differ with religious orthodoxy, religious figures, and even reject religion altogether.
Blasphemy Under Classical Islamic Establishmentality
Virtually all the major international blasphemy controversies of the last quarter of the 20th century and the first decades of the 21st century have involved Muslim demands that religion be elevated to the status of a politico-cultural phenomenon that is exempt from critical examination. In other words, individual Muslim countries the Arab League, and the Organization of Islamic Cooperation have sought to globalize the Islamic law of religious defamation by advancing the notion that the Islamic religion is a category of human experience that should be legally, politically and socially placed beyond the reach of the right of freedom of expression. This establishmentarian posture equates even thoughtful and reasoned criticism of religion with Islamophobia, blasphemy or defamation of the Islamic Weltanschauung or philosophical worldview.
Since the Iranian Revolution of 1979, blasphemy has become one of the most salient issues in contemporary international politics. One of the first blasphemy controversies of that era pitted Indian-born British author, Salman Rushdie, and the late Iranian Supreme leader, Ayatollah Khomeini. When Rushdie published the Satanic Verses, a novel inspired in part by the life of Prophet Mohammad, the Iranian Supreme Leader, whose word was law, declared the novel blasphemous and issued a fatwa (religious decree) sentencing Rushdie to death for defaming Islam. The Ayatollah declared that any Muslim who murdered Rushdie would receive a bounty of $3.3 million. Rushdie’s Japanese translator, Hitoshi Igarashi, was murdered, and his publisher survived murder attempts. The Satanic Verses was banned around the world as country after country sought to appease Muslims’ anger directed against the book. The Rushdie affair instantly transformed blasphemy into a modern bone of contention at the international level and forced non-Muslim countries to reexamine how their judicial systems balanced the human right of freedom of expression set forth in the Universal Declaration of Human Rights and national legislation, with expectations of respect for religion. In Western countries, the controversy was framed as a clash between human rights and religious rites.
As the Rushdie blasphemy fatwa demonstrates, in the Muslim world (this expression refers to Muslim majority countries that are part of the 57-member Organization of Islamic Corporation, OIC), blasphemy is a serious politico-religious offense that is conceptualized differently from the way it is viewed in contemporary Western societies. The Islamic law of blasphemy against God, the Prophet Mohammad, his family, and his followers, the Qur’an, Islam, and Muslims, emerged from the Qur’an and the Hadith. In the Qur’an, Prophet Mohammad instructs Muslims not to insult the gods of the infidels (non-Muslims) in order to prevent these unbelievers from insulting Allah out of ignorance: “And do not insult those they invoke other than Allah, lest they insult Allah in enmity without knowledge.” Additionally, the following verses from the Qur’an have been historically read and interpreted as the sources of the criminalization of blasphemy and the punishment of blasphemers:
Indeed, the penalty for those who wage war against Allah and His Messenger and strive upon earth [to cause] corruption is none but that they be killed or crucified or that their hands and feet be cut off from opposite sides or that they be exiled from the land. That is for them a disgrace in this world; and for them in the Hereafter is a great punishment
(Sura Al-Maidah, 5:33)
Lo! Those who malign Allah and his messenger, Allah hath cursed them in the world and the Hereafter, and hath prepared for them the doom of the disdained.
(Surah al-Ahzab, 33:57)
The injunction against insulting the gods of unbelievers as a means of forestalling blasphemy against the God of Islam, together with pronouncements against blasphemy that are set forth in the Hadith, make up the Islamic law of blasphemy. The politico-religious crime of blasphemy can be committed by unrepentant Muslim apostates who leave the Dar al Islam (the House of Islam or the umma), as well as infidels (unbelievers), whose domain is the Dar Al Harb (House of War). Provisions against insulting Prophet Mohammad, his family, and his companions are the central component of the Islamic law of blasphemy. Qadi Iyad (b. 1083–d. 1149), a jurist of the Almoravid empire that stretched from Western North Africa to Spain, grounded the Islamic law of blasphemy in Mohammadan spirituality: a spirituality grounded on submission to Allah and reverence for the Prophet Mohammad, the Holy Messenger of Allah, who was the perfect human example of religiosity and submission to God. Qadi Iyad’s seminal Ash-Shifa, a handbook on Mohammad’s life, qualities, works, and miracles, sets forth one of the most authoritative pronouncements and elaborations of the Islamic law of blasphemy with regard to non-Muslims: “Once Islam was firmly established and Allah had given it victory over all other religions, any such detractor that the Muslims had power over and whose affair is well-known, was put to death.”
All Muslim schools of thought hold that insulting the Prophet and his companions or treating them irreverently is a capital offense punishable by death. However, these different schools have theological differences with respect to non-Muslims who violate this law. Mark Wagner suggests that “the law against insulting the Prophet, by Muslims and non-Muslims alike, supports multiple contradictory interpretations [regarding] the possibility of “repentance or the impossibility of repentance.” What is clear is that under the Ottoman Empire (1299–1922), the last Muslim empire, the norm was that non-Muslim insulters of the Prophet were killed. Some scholars claim that the death sentence that Iranian leader Ayatollah Khomeini passed on Salman Rushdie was based on a verse from the Hadith, the Surah al-Ahzab, 33:57 cited above.
Blasphemy Under Contemporary Islamic Establishmentalities
The entwinement of the religious, the political, and the social, which was the norm under classical Islam, has continued in different forms in the Muslim world, even as Arab-Islamic world has gone through a process of Westernization, and the creation of Muslim nation-states that began in the 19th century. In contemporary iterations of Islamic law, the term “blasphemy” includes the following: impious, skeptical, insulting, abusive, and defamatory anti-Muslim statements, as well as poetry, writings, visual imagery, parodies, and satirical graphics that denigrate Islam, Prophet Mohammad, his family and his companions, the Qur’an, and any Islamic rite, ritual, belief, or narrative, holy sites, artifacts, or venerated prophets. Furthermore, blasphemy covers a wide variety of sins and criminal offenses that include sacrilegious, anti-religious, atheistic, agnostic, anti-Muslim, and anti-Mohammad utterances, cartoons, graphics, symbols, and speech acts. Nevertheless, as a result of cultural diversity within and between Muslim countries, the word “blasphemy” is malleable, elastic, and punished differentially. The crime ranges from criticism or denigration of God, Prophet Mohammad, his family, his companions, and descendants), the Qur’an, Islam and its sacred geography (Mecca, Medina, and their hallowed places), different Muslim sects, their leaders, and their creeds, and Muslims in general.
Case Study: The Law of Blasphemy in Pakistan
We have noted that there are different establishmentalities in Muslim countries and in most Western countries. In classical Islam, and in most modern Islamic nation-states, the religious, the political and the social are intertwined in various degrees. However, Muslim countries have a common belief in respect for the sanctity and reputation of religious values, scriptures (the Qur’an and Hadith), and personalities (the Prophet Mohammad, his family, his companions, and his successors) as the foundation of the state and of universal human rights. Nevertheless, enforcement of the law of blasphemy differs from jurisdiction to jurisdiction because the law in each jurisdiction reflects the establishmentality of the school of Islamic thought that is dominant in that jurisdiction. This section explores the Islamic legal interpretation of the law of blasphemy, using Pakistan as a case study. Pakistan is officially known as “The Islamic Republic of Pakistan.” That means Islam is the official religion of the state, the guiding creed of all state institutions. This Pakistani establishmentality of entwinement of Islam and the state determines the country’s interpretation of freedom of expression and blasphemy. Pakistani establishmentality has, on paper, an interesting cohabitation of freedom of expression and expectation of respect for the Islamic religion and reverence for Prophet Mohammad. The first two clauses of Article 19 of the Constitution of Pakistan guarantee freedom of speech and expression. However, those expressive rights are balanced away by “reasonable restrictions” dictated by the higher interests of “the glory of Islam” and the “integrity, security, or defense of Pakistan.” Clearly the glory of Islam and national interest, as determined by specific governments and courts, outweigh freedom of expression. Additionally, in the Islamic Republic of Pakistan, the focus of the law of blasphemy in the penal code is on blasphemy against the name and person of Prophet Muhammad:
Whoever by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.
This article of the penal code gives every Pakistani citizen the right to enforce the country’s draconian anti-blasphemy laws. The Pakistan Penal Code also has a battery of other provisions that criminalize: “Deliberate and malicious acts intended to outrage [the] religious feelings of any class by insulting its religion or religious beliefs” (section 295-A), “Defiling, etc, of the Holy Qur’an,” (Section 295-B); “Use of derogatory remarks, etc., in respect of the Holy Prophet” (section 295-C), “Uttering words, etc, with deliberate intent to wound religious feelings” (section 298), and “Use of derogatory remarks, etc, in respect of holy personages,” (section 298-A). The result is that in Pakistan, the law of blasphemy is more important than the right of freedom of expression. That law also circumscribes the freedom of religion and expression of minorities. This has resulted in what the Daily Times of Lahore, Pakistan, calls “a climate of fear” among minority Muslim sects, as well as Christians and Hindus. Human rights groups claim that Pakistan’s draconian blasphemy laws are used both judicially and extra-judicially to intimidate politicians, judges and law enforcement officials, as well as to extort, settle scores, carry out mob “justice,” and murder innocent people with impunity.
Transnational Islamic Communitarianism and Blasphemy
Islam is a communitarian religion in which individuals carry out their ritualistic obligations and attain salvation—the injunction is to “do and live”—as members of the ummah or universal Islamic community. Therefore “every person is individually responsible—and the Ummah collectively responsible,” to use the expression of the Organization of Islamic Cooperation, for safeguarding God’s commandments contained in the revealed texts of Islam, the Qur’an and the Hadith. In the universal Muslim community, criticism or denigration of God, Prophet Mohammad (including his family and his companions), the Qur’an, Islam, sacred geographies (the Kabaa in Mecca and Medina), sacred symbols (calligraphic forms of the 99 names of God, and the Islamic faith creed) Muslims, Muslim sects, and all they hold sacred is considered group defamation. In other words, in Islam, criticism or denigration of the religion and its symbolic representations is a denigration of all Muslims.
The establishmentality of Muslim Caliphates, which were the politico-religious states and empires that emerged after the death of Prophet Mohammad, was their claim to universal political and sometimes spiritual leadership of the Muslim community—all Muslims—as well as subjugated peoples under their dominion. The last of these caliphates, the Ottoman Empire, was dissolved in 1922. During the second part of the 20th century, independent Muslim countries attempted to recreate a symbolic or imagined universal Muslim community, a politico-religious ummah, reminiscent of the “golden days” of Islam. The Arab League, an organization of 16 independent Arab states was formed in 1945. In 1969, the 57-member Organization for Islamic Cooperation (OIC), was created to serve as the “collective voice of the Muslim World.” In the preamble of its charter, the Organization of Islamic Cooperation reiterated its foundational Islamic, identitarian, and communitarian mission: protecting the common belief, religious identity and dignity of the Ummah. As a result, blasphemy against Prophet Mohammad, Islam, Muslims, the Qur’an or anything sacred is tantamount to group defamation. Both the Arab League and the OIC have countered critical, and negative Western media portrayals of Prophet Mohammad, the Islamic religion, and Muslims by asserting that a global entitlementality of respect for the Prophet, Islam, and its adherents, is a cornerstone of the Islamic communitarian ideology.
The post–Second World War international human rights regime set up under the auspices of the United Nations Charter, the Universal Declaration of Human Rights, the European Convention on Human Rights and Fundamental Freedoms, has a pronounced Western imprint. As a result, many of its provisions, notably, freedom of religion and freedom of expression, have not been respected in the Muslim world. In 1990 the OIC issued the Cairo Declaration of Human Rights in Islam, which sets forth the Muslim world’s human rights framework that is consonant with Islamic law (Sharia) and establishmentalities. The preamble of the Cairo Declaration of Human Rights in Islam presents anew, the inseparability of religious and secular law: “Reaffirming the civilizing and historical role of the Islamic Ummah which God made the best community that has given mankind a universal and well-balanced civilization.” In as much as the Islamic faith is the guarantor of human rights and dignity, there can be no human rights outside the Islamic faith. Furthermore, Article 22 of the Cairo Declaration on Human Rights in Islam subjects freedom expression to the entitlementality of respect for all things sacred in Islam. The charter explicitly outlaws blasphemy:
(a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari’ah.
(b) Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical values or disintegrate, corrupt or harm society or weaken its faith.
The Cairo Declaration of Human Rights in Islam was advanced as a counter-declaration, an alternative to the Universal Declaration of Human Rights, and its provisions protecting freedom of conscience, opinion, religion, conversion, expression, and assembly. The Universal Declaration of Human Rights was viewed as too Western (read Christian) and too secular in its conception of human beings and their rights. The Cairo Declaration of Human Rights in Islam essentially announced the advent of a post-secular era in international relations.
Arab League Satellite Broadcasting Charter
In the wake of the revolutionary changes that took place in international satellite broadcasting in the Middle East, in the 1990s the Arab League sought to control what it considered the excesses of international broadcasters such as Al-Jazeera, a station that is owned and funded by the government of Qatar, as well as “liberal” broadcasters in Lebanon. The Arab League therefore enacted the Arab League Satellite Broadcasting Charter of 2008. This charter contains a provision against blasphemy that, inter alia, calls on Arab broadcasters “to refrain from insulting God, revealed religions, prophets mazhabs (religious sects), and religious symbols.” Qatar viewed this charter as censorious and refused to sign it.
The Clash of Interpretations of Freedom of Expression and Blasphemy
As the preceding discussions demonstrate, there are fundamental differences between Western and Islamic interpretations of freedom of expression and blasphemy. These differences are grounded in the respective establishmentalities that obtain in both cultures. Western countries conceptualize freedom of expression as a fundamental human right that supersedes religious worldviews, personalities, and sensibilities. In contrast, under Islamic establishmentalities, Islam is entitled to, and demands respect and deference. As a result, respect for religious beliefs, personalities, and sentiments almost always take precedence over freedom of expression. Furthermore, while Western countries emphasize the principle of individual rights and private religious belief, Islamic establishmentality emphasizes universal communitarian religiosity and identity within the House of Islam (the Dar al Islam or the ummah). As a result blasphemy against God and his word, the Qur’an, Prophet Mohammad, and Islam, is perceived as group defamation against all Muslims. The outcome is that in matters of blasphemy, Western countries outline general principles of law and policy that are open to judicial interpretation within the framework of constitutional principles of freedom of expression. By way of contrast, the Islamic law of blasphemy emerged from explicit rules set forth in the Qur’an and the hadith, as interpreted by Islamic jurists and ordinary Muslims alike. These rules are as valid today as they were in classical Islam. The cases below demonstrate the clash of Western and Islamic establishmentalities in the context of much-publicized international controversies.
The Danish Mohammad Cartoons Affair and Blasphemy
The first Mohammad cartoons affair was a clash between the establishmentality of Denmark, a constitutional monarchy with an established church, and the universal Islamic entitlementality of respect for Prophet Mohammad, Islam, and Muslims. In 2005, Jyllands-Posten, a Danish newspaper, published 12 cartoons of Prophet Mohammad, the founder of Islam (see Figure 1). The editor of the newspaper, Flemming Rose, stated that the publication was an attempt to counter censorship and to inform Muslim immigrants in Denmark that freedom of expression meant that they had to be willing to put up with criticism of their religion. What actually precipitated the Jyllands-Posten Mohammad cartoons was a children’s book. In effect, Danish author, Kåre Bluitgen, wrote a children’s book entitled Koran and the Prophet’s Life in an attempt to foster an understanding of Islam and multiculturalism among Danish children. No illustrators were willing to work with Mr. Bluitgen on the book for fear of offending Muslims who are generally aniconistic.1Jyllands-Posten stated that in order to do something about what it considered a deplorable climate of self-censorship, it had invited members of the Danish Newspaper Illustrators’ Union to draw Mohammad as they imagined him. This was a bid to start a debate on whether, in a secular society such as Denmark, special regard should be paid to the religious feelings of Muslims. Twelve illustrators responded, and their cartoons were published in the newspaper. Thanks to the Internet and social media, the Mohammad cartoons became a transnational news event. They triggered a dramatic avalanche of emotional outbursts from Muslims around the world. Two days later, ambassadors from ten Arab-Islamic countries (the Arab League and the Organization of Islamic Cooperation) requested a meeting with Danish Prime Minister Anders Fogh Rasmussen to discuss the cartoons (which they called “provocative”) and to officially request the Danish government to punish Jyllands-Posten and its editors, as well as other Danish media outlets that had allegedly published statements that were derogatory to Islam. Mr. Rasmussen declined to meet the ambassadors, stating that to discuss the content of a Danish newspaper with foreign ambassadors, who were upset with the newspaper’s content, would be tantamount to trampling on the freedom of the Danish press, over which, as Prime Minister, he had no control. That stance inflamed the situation further.
Enraged mobs demonstrated violently against Jyllands-Posten, claiming that the cartoons defamed Mohammad, Islam, and all one-billion-plus Muslims around the world. The mobs directed their religious ire against “Western interests” and embassies. Many people lost their lives, and property worth millions of dollars was destroyed in a number of countries. The 57-member Organization for Islamic Corporation (OIC) played a crucial role in transforming the Mohammad cartoons controversy into a global crisis. The 2005 Third Extraordinary Session of the Islamic Summit Conference of the Organization of Islamic Cooperation (OIC) took place in in Mecca, Saudi Arabia, just after the Danish cartoons had been published. The OIC expressed the official Muslim view of the controversy in a Final Communiqué that denounced the Mohammad cartoons as a “desecration of the image of the Holy Prophet Mohammad.” The Extraordinary Islamic Summit further “stressed the responsibility of all governments to ensure full respect of all religions and religious symbols and the inapplicability of using the freedom of expression as a pretext to defame religions.” The OIC subsequently submitted a draft resolution to the United Nations that declared “the defamation of religions and prophets incompatible with the right of free expression.” One interesting fact is that during this summit, the OIC introduced the term “Islamophobia” into the vocabulary of international diplomacy. In the light of the pronouncements of the OIC and the Arab League, Muslim countries around the world interpreted Islamic law to mean that blasphemy is a politico-religious and criminal offense that forecloses the right of freedom of expression. Furthermore, the OIC stated that blasphemy against Prophet Mohammad is a crime that had the collateral effect of fueling discrimination and hatred against Muslims. Therefore, just as speech that is integral to the commission of a crime is not protected, speech that embodies, communicates, or furthers the crime of blasphemy is illegal in all Islamic jurisdictions. The consequence is that speech that is declared blasphemous—and this declaration can be made by any one at any time or place—is not protected speech because it is tantamount to an abuse of the right of freedom of expression.
Judicial Interpretation of Blasphemy and Freedom of Expression in Denmark
As the Mohammad cartoons controversy gained global salience, several Danish Arab-Islamic groups lodged a criminal complaint with a Regional Public Prosecutor, claiming that the Jyllands-Posten cartoons violated a little-known and rarely used Danish legal provision against blasphemy. The newspaper, its editor-in-chief, and its culture editor were named as co-defendants in the suit. The Danish Muslim groups charged that the Mohammad cartoons violated sections 140 and 266b of the Danish Criminal Code, which prohibited blasphemy and racist hate speech respectively. The anti-blasphemy provision states: “Anybody who publicly mocks or insults the tenets of faith or worship of any lawfully existing religious community, will be punished by fine or imprisonment not exceeding four months.” Furthermore, discrimination and hate speech laws and criminal defamation laws are set forth in sections 266b of the Danish Criminal Code:
Whoever publicly, or with intention to disseminating in a larger circle makes statements or other pronouncement, by which a group of persons is threatened, derided or degraded because of their race, colour of skin, national or ethnic background, faith or sexual orientation, will be punished by fine or imprisonment for up to 2 years.
The issue was whether the Jyllands-Posten Mohammad cartoons represented mockery or scorn of Islamic religious doctrines or acts of worship. The director of public prosecutions concluded that they did not. The director of public prosecutions relied on Article 10 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), which protects formal (the act) as well as substantive (the content of) freedom of expression. He said that the European Court of Human Rights had held that since freedom of expression is the foundation of a democratic society, in cases of conflict between freedom of expression—specifically, freedom of the press—and other rights protected by the ECHR, freedom of the press took precedence since the press is central in democratic societies. The director concluded that under the jurisprudence of the European Court of Human Rights “persons who exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.” The director concluded that the Jyllands-Posten cartoons did not “contain expressions about Islamic religious doctrines or acts of worship and were consequently not punishable offences under section 140 of the Danish Criminal Code.”
The Muslim groups then sued Carsten Juste and Flemming Rose, the editor-in-chief and cultural editor respectively, of Jyllands-Posten at the City Court of Åarhus. Their civil suit alleged that the Mohammad cartoons constituted defamation against Prophet Mohammad, Islam, and Muslims in general, in violation of sections 267 and 268 of the Danish Criminal Code. The issue before the court was whether the “Face of Mohammad” article and the 12 published cartoons accompanying the article defamed the thousands of members of the seven Muslim groups and disparaged them in the eyes of their fellow Danish citizens such that Jyllands-Posten and its editors should be held liable and punished. The court answered in the negative. It held that the cartoons contained protected social criticism and that although the cartoons may have offended the honor of some Muslims, there was no evidence that the cartoons contained express, affirmative declarations that could disparage Danish Muslims in the eyes of their fellow citizens under section 267 of the Danish Criminal Code. As such, the defendants were not liable for defamation or blasphemy.
On appeal, the Vestre Landsret (Western High Court) affirmed, stating that the cartoons were about Muhammad, a historic figure, not about individual members of the Danish Muslim groups or Muslims in general. Therefore, opinions about Muhammad expressed in the cartoons could not be considered defamatory falsehoods directed at members of the Danish Muslim associations since these members could not legally equate themselves with Muhammad. The court also rejected claims that the cartoons contained imputations of criminality and terrorism directed at the Muslim associations or their members. The court essentially questioned the standing of the Muslim groups to sue on behalf of Prophet Mohammad. This ruling meant that Denmark did not recognize the communitarian claims of the Muslim groups. It is noteworthy that the Director of Public Prosecutions and the City Court of Århus scolded Jyllands-Posten for erroneously claiming that the Danish media had absolute freedom to blaspheme and criticize religion. They reiterated that “there is therefore no free and unrestricted right to express opinions about religious subjects” In the clash between freedom of expression and expectations of respect for religion, the Danish courts ruled in favor of the media defendants and their right of freedom of expression. The group defamation complaints of the Muslim groups were also dismissed.
One of the defendants in the Danish Mohammad cartoons case, former Jyllands-Posten culture editor Flemming Rose, wrote a book entitled Tyranny of Silence in which he suggested that the controversy demonstrated that there are “real incompatibilities and disparities of culture between the Islamic world and Europe” on freedom of expression and blasphemy. However, he criticized Western intellectuals who insist that the differences are cultural, and therefore any criticism of Muslim countries for human rights violations is tantamount to Western imperialism. According to him, the Arab Spring, the uprisings in the Arab world in 2011, demonstrated that the Muslim world is not monolithic: “Freethinking forces exist in the Islamic world, insisting on free religious exercise and freedom of speech.”
Judicial Interpretation of Blasphemy and Freedom of Expression in France: Charlie Hebdo and The Mohammad Cartoons Affair of 2005–2006.
We saw at the beginning of this entry that Islamist terrorists attacked the offices of Charlie Hebdo in January 2015 and murdered 12 persons. That terrorist attack is linked to the Jyllands-Posten Mohammad cartoons controversy of 2005–2006. When Jyllands-Posten published the 12 Mohammad cartoons, the major newspapers in France republished the Jyllands-Posten Mohammad cartoons in solidarity with the embattled Danish daily and added their own cartoons of Mohammad to the mix. In France, the country whose philosophes were at the forefront of the Enlightenment and that has a secular republican ideology the controversy touched a raw political nerve. It laid bare the historic tensions that have always lurked beneath the surface of French society: the enlightenment postures of rationality, skepticism, and cynical hostility toward religion, on the one hand, and expectations of respect for religious belief and believers on the other hand. Charlie Hebdo, which had made a name for itself as a leftist, disrespectful, anti-religious, anti-clerical, anti-establishment, satirical publication, demonstrated French secular impatience with attempts to re-criminalize blasphemy. It published a special edition on the Mohammad cartoons affair in order to protest what it claimed was a serious threat to freedom of expression in Europe. The day before the special Mohammad cartoons edition of Charlie Hebdo was to be published in 2006, a number of Muslim groups filed a motion with the Tribunal de Grande Instance de Paris (High Court of Paris) requesting the court to issue a permanent injunction against distribution of the proposed special edition of Charlie Hebdo, on the grounds that the proposed publication would be blasphemous and defamatory towards Muslims. The court declined to issue the injunction, stating that the requested injunction would amount to a censorious action that would violate article 53 of the Law of 29 July 1881 on Freedom of the Press. Charlie Hebdo reproduced the twelve Jyllands-Posten Mohammad cartoons and added a few of its own cartoons to the collection, including a front-page cartoon captioned, “Mahomet débordé par les intergristes” (Mohammad overwhelmed by fundamentalists). The cartoon depicted the image of a weeping, bearded man [Mohammad] holding his head in his hands and saying, “It is tough to be loved by fools” (see Figure 2). The special edition of Charlie Hebdo on the Mohammad cartoons affair sold like hotcakes. Muslims from several countries denounced the newspaper and its editors. Three Muslim groups, namely, la Société des Habous et des Lieux Saints de l’Islam (the Society for Islamic Properties and Holy Places), l’Union des Organisations Islamiques de France (Union of Islamic Organizations of France), and the Saudi-based, Ligue Islamique Mondiale (World Islamic League), lodged a complaint with the French public prosecutor, demanding that he prosecute Philippe Val, then editor-in-chief of Charlie Hebdo, and Éditions Rotative, the parent company of the satirical newspaper, for criminal and civil libel, defamation of Mohammad, Islam, and Muslims. After investigating the matter, the French public prosecutor concluded that the cartoons were not “reprehensible” and declined to prosecute the newspaper and its editor-in-chief.
The French Muslim groups took matters into their own hands and sued Val and Charlie Hebdo for group defamation against all Muslims, claiming that the cartoons violated French group defamation laws. The Muslim groups also claimed that the republished Danish cartoons and Charlie Hebdo’s own cartoons constituted “Islamophobic “public insults that targeted all Muslims, in violation of articles 29 (2) of the Law of July 29, 1881, on Freedom of the Press, which states in part:
Any allegation or imputation of an act that brings the honor and consideration of a person or a group of persons into disrepute is defamation. The direct publication or reproduction of this allegation or this imputation is punishable, even if it is dubitative [vague or doubtful] or if it is directed at a person or group that is not explicitly identified, but whose identity is discernable through figures of speech, shouts, threats, writings or incriminating printed matter, posters, or placards.
When the case came to trial, the Muslim groups advanced a claim of religious group defamation, stating that Charlie Hebdo’s front-page cartoon of a weeping Prophet Mohammad with the caption, “Mohammad Overwhelmed by Fundamentalists,” and the statement, “It is tough to be loved by fools” (Figure 2), libeled the more than one billion Muslims in the world, as did the republished Jyllands-Posten cartoons. In its defense, Charlie Hebdo stated that under French law, there was “an artist’s right to caricature religious terrorism.” The issue before the court was whether the Danish Mohammad cartoons republished by Charlie Hebdo and Charlie Hebdo’s own Mohammad cartoons violated French group defamation laws. The court answered in the negative. Noting that the fundamental issue in the case was constitutional protection of freedom of expression, the court stated that criticizing religion and publishing religious cartoons were not crimes in France. The court ruled that France is a secular and pluralistic country where it is well established that “respect for all faiths goes hand in hand with the freedom to criticize all religions and [freedom] to represent subjects and objects of religious veneration; and that blasphemy, which outrages divinity and religion, is not punishable” The Muslim groups wanted to use the French defamation laws to punish blasphemy, but the court essentially ruled that blasphemy was protected expression under the French constitution. In 2011 Charlie Hebdo published an issue entitled, Charia Hebdo (Sharia Hebdo) to lampoon what it saw as the establishment of Sharia law in Tunisia and Libya, countries that had recently overthrown their authoritarian leaders. This publication led to the firebombing of the newspaper’s offices. Though no one was hurt in the firebombing, the newspaper’s archives and equipment were destroyed. Charlie Hebdo moved to new Parisian premises shortly after the 2011 attack.
On January 7, 2015, two terrorists burst into Charlie Hebdo’s new office in Paris and opened fire. By the time the carnage was over, 12 persons lay dead, including editor-in-chief Stéphane Charbonnier, cartoonists, journalists, and police officers. That the terrorist attacks took place even though French Arab-Islamic groups had had their day in court—the French courts had entertained their complaints against Charlie Hebdo—and declared that Charlie Hebdo had a fundamental human right to publish the Mohammad cartoons, was the most disturbing aspect of the attacks. The terrorists had effectively opted to use the argument of force after they had failed to use the force of argument to persuade French courts to censor Charlie Hebdo or ban it outright. By murdering Charbonnier and the other Charlie Hebdo cartoonists and reporters, the terrorists, who were later killed by French law enforcement officials during a shoot out, had used the ultimate extra-judicial means—murder—to impose their interpretation of blasphemy on French society.
The Charlie Hebdo terrorist attack of January 7, 2015 was thus an attack on the human right of freedom of expression and the rule of law, version française. It shocked France and democratic countries around the world. Days after the attack, the surviving staff of the defiant Charlie Hebdo published a special edition with a tearful Mohammad in the cover holding a sign that read, Je Suis Charlie, Tout Est Pardonné (I am Charlie, All is Forgiven) (See Figure 3).
The slogan, Je Suis Charlie, quickly became a global phenomenon. Then-President François Hollande organized an anti-terror marche républicaine (march for the republic) rally that was attended by four million people, including the leaders or representatives of 50 different countries. For one day, Paris became the symbolic global capital of freedom of expression. The terrorist attack once more brought to the fore the cultural clash between the human right of freedom of expression and the Islamic entitlementality of respect for the sacred. In the aftermath of the attack, Stéphane Charbonnier, the murdered editor of Charlie Hebdo spoke, as it were, from the grave. In an “open letter,” a cartoonist’s manifesto of sorts that Charbonnier had completed just two days before his death in the Charlie Hebdo terrorist attack, the editor wrote to, among others, those who think “criticizing religion is an expression of racism . . . that Islam is the name of a people . . . that sending blasphemers to jail will get you into heaven . . .[and that] the Koran forbids drawing the Prophet Muhammad.” The defiant Charbonnier vilified what he considered a paternalistic, intellectually lazy Western liberal elite that campaigned against “Islamophobia”: “Being afraid is a right . . . Being afraid of Islam is no doubt moronic, absurd, and plenty of other things as well, but it’s not a crime.” He concluded that “all currents of thought may be criticized . . . “sacred” texts are sacred only to those who believe in them.” This was blasphemy and freedom of expression à la française, an uncompromising re-presentation of French judicial, political, and cultural interpretation of freedom of expression and blasphemy, which is a tenet of l’exception francaise (the French exception).
Judicial Interpretation of Blasphemy and Freedom of Expression in the United States: The Innocence of Muslims Movie Trailer Affair
The United States has a system of “negative” freedoms set forth in the First Amendment and the Bill of Rights (the first 10 amendments to the Constitution). Under this system, the government is perceived as the greatest danger to freedom in general and freedom of free speech in particular. The First Amendment expressly forbids Congress—and by extension federal, state, and local governments, as well as state colleges and universities and local school boards—from infringing on the right of freedom of religion, speech, and press. Furthermore, America’s First Amendment anti-establishmentarian ideology presupposes the non-entanglement of church and state. Thomas Jefferson, author of the American Declaration of Independence and Third President of the United States, was an ardent campaigner for the separation of church and state, and against the criminalization of blasphemy, which he considered a harmless activity:
The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.
Frederick Schauer has advanced the following explanation for America’s unique philosophical posture of skepticism toward the government, and neutrality toward religion:
The Constitution of the United States is a strongly negative constitution, and viewing a constitution as the vehicle for ensuring social rights, community rights, or positive citizen entitlements of any kind is, for better or for worse, highly disfavored . . . there remains a pervasive American suspicion of official valuation of ideas and enterprises . . . skepticism about the ability of any governmental institution reliably to distinguish the good from the bad, the true from the false, and the sound from the unsound finds its most comfortable home in the First Amendment.”
The Supreme Court of the United States applied these principles to films in 1952. In Joseph Burstyn v. Wilson the Court struck down a New York Law that banned the projection of films that the Catholic Church considered “sacrilegious” or “treated Christian subjects with contempt, mockery, scorn or ridicule.” The Court concluded that under the First Amendment the state is required to be neutral toward religion. Therefore the government had no legitimate interest in protecting any or all religions from views that members of those religions considered blasphemous:
It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.
The principles set forth in Joseph Burstyn v. Wilson in 1952 were challenged by a clash between the Islamic entitlementality of respect for the sacred, and the American culture of freedom of expression in cyberspace.
The Innocence of Muslims Movie Trailer and Blasphemy under American Anti-Establishmentality
The specter of movie censorship on grounds of blasphemy reared its head again in the United States in 2012. This time, clamor for censorious action over blasphemy came from Muslims. A movie trailer entitled Innocence of Muslims was the spark that set off global calls for censorship of YouTube, the social networking site that has become the world’s greatest repository of videos of all kinds. In effect, Innocence of Muslims was an amateurish video trailer for a proposed film that purported to be a narrative of the life of Prophet Mohammad. When the video trailer was uploaded on YouTube, millions of people around the world viewed it. Muslims were not amused by what they considered a defamation portrayal of Prophet Mohammad. Demonstrations erupted in several Muslim countries, leading to attacks against U.S. embassies and consulates. The Lebanese Foreign Minister, Adnan Mansour, accused the “film” of being an “aggression on the belief of more than 1.5 billion Muslims in the world.”
The Obama administration blamed the video for provoking a terrorist attack on the U.S. Consulate in Benghazi, Libya, that left several Americans, including the U.S. ambassador, Christopher Stevens, dead. The White House officially asked Google to remove the controversial video from the website of its subsidiary, YouTube. Google CEO, Eric Schmidt, declined to do so, and proceeded to lecture Obama on American First Amendment free speech values. He said Google believes that “the answer to offensive speech is more speech.” He did, however, state that Google had blocked the video in Egypt, Pakistan, and other Muslim countries that had requested it to be blocked from their national territories. In a speech to the United Nations General Assembly on September 25, 2012, then-President Barack Obama condemned Islamic extremist attacks on U.S. embassies in the Middle East and North Africa, including the attack that resulted in the death of Ambassador Christopher Stevens in Benghazi, Libya. The president then proceeded to equate blasphemy with religious violence:
The future must not belong to those who slander the Prophet of Islam. But to be credible, those who condemn that slander must also condemn the hate we see in the images of Jesus Christ that are desecrated, or churches that are destroyed, or the Holocaust that is denied.
Obama’s statement seemed to side with Islamic countries that criminalize blasphemy and in true diplomatic fashion acknowledged that the sacred symbols of Christianity are desecrated in some Muslim countries. An Egyptian court subsequently sentenced the producer of the Innocence of Muslims, Egyptian-American Mark Baseley Youssef and six other Americans associated with the production or distribution of the video to death in absentia—for blasphemy. Egyptian Judge Saif al-Nasr Soliman ruled that the “seven accused persons were convicted of insulting the Islamic religion through participating in producing and offering a movie that insults Islam and its prophet.” That was Egypt’s eloquent and unmistakable legal interpretation of blasphemy and freedom of expression. Those convicted included Reverend Terry Jones, a pastor from Gainesville, Florida, who had “tried,” convicted, and burned a Qur’an, an act that led to the murder of UN personnel in Afghanistan.
After receiving numerous death threats and hearing of the Egyptian court’s death sentence against her, one of the actresses in the trailer, Cindy Lee Garcia, who had been tricked into acting in the movie, asked Google to take down the video from YouTube. When Google declined to do so, she filed suit in the United States District Court for the Central District of California against Google and Youssef, claiming that she had the copyright over the five-second segment in which she appeared, and on that basis, asked Google to remove the movie trailer from YouTube and all other Google platforms. Garcia alleged copyright infringement by both defendants and filed claims against Youssef for fraud, unfair business practices, libel, and intentional infliction of emotional distress under California law. She sought a court order to bar Google from hosting Innocence of Muslims on YouTube or any other Google-run website. On November 30, 2012, the district court denied Garcia’s motion for a preliminary injunction. While the court was sympathetic to Garcia’s plight, it ruled that Garcia sought to misuse copyright law to suppress freedom of expression. In order to have standing to sue for copyright violation, Garcia applied to the United States Copyright Office, seeking to copyright her five-second performance in Innocence of Muslims. The U.S. Copyright Office found that Garcia’s performance was not a copyrightable work and rejected her application. The U.S. Copyright Office explained that its “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture.” The federal district court ultimately ruled that the relief Garcia sought from the fatwa and death threats were not available under copyright law.
On appeal, a divided panel of the Ninth Circuit Court of Appeals reversed. More than a year and a half after the film trailer was first uploaded on YouTube, the court issued a secret takedown order, giving Google 24 hours to remove all copies of Innocence of Muslims from YouTube and other Google-controlled platforms. The panel of judges embargoed disclosure of the order until after it had been executed so as to prevent the public from downloading the banned video. The panel later amended the order to allow YouTube to post versions of the trailer that did not include Garcia’s five-second performance. Google appealed and the Ninth Circuit granted a rehearing en banc. The central question before the bench of judges was whether Garcia could use copyright law to cure emotional and privacy issues that had been triggered by her five-second acting performance in Innocence of Muslims. The court ruled in the negative, holding that: “a weak copyright claim cannot justify censorship in the guise of authorship . . . Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from—and incompatible with—copyright and copyright’s function as the engine of expression.” The court then denounced the censorious injunction of the panel of judges that had compelled Google to remove the Innocence of Muslims video from YouTube.
The takedown order was unwarranted and incorrect as a matter of law . . . It also gave short shrift to the First Amendment values at stake. The mandatory injunction censored and suppressed a politically significant film—based upon a dubious and unprecedented theory of copyright. In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.
The full court dissolved the censorious order with immediate effect. That effectively brought back the original Innocence of Muslims trailer to YouTube and other social media sites. Garcia had essentially been intimidated into implementing blasphemy in the United States through the backdoor. She attempted to use copyright law, the instrument for creativity per excellence, to censor objectionable content on YouTube and other social media sites. The Egyptian court’s fatwa had achieved its censorious aims—it terrified Garcia into taking legal action to further Islamic entitlementality in the United States. Unfortunately, the United States Court of Appeals for the Ninth Circuit played along for more than a year by fabricating a censorious theory of copyright.
Striking a Balance Freedom of Expression and Blasphemy Under International Law
Having failed to persuade the courts in Denmark and France to tilt the scales of justice in favor of religion by making respect for Islamic and other religious dogmas the law of the land, the global Muslim community, led by the 57-member Organization for Islamic Cooperation (OIC) and the League of Arab States, sought to use their numerical and “structural power” in the United Nations General Assembly, where they could jointly muster a majority of like-minded nations to decree a new international entitlement of respect for religion and criminalization of blasphemy. We have seen that at the height of the 2005–2006 Mohammad cartoons affair, the OIC submitted a draft resolution to the United Nations General Assembly asking the organization to resolve that “the defamation of religions and prophets is incompatible with the right of free expression.” This was tantamount to passing a global anti-blasphemy resolution that would have put religion beyond the reach of criticism, parody, and satire around the world. The practical effect was that the OIC and its allies wanted respect for religion to take precedence over freedom of opinion, expression, and above all, freedom of the press. This call was clearly at variance with articles 18 and 19 of the Universal Declaration of Human Rights.
In effect, the Mohammad cartoons controversy had given a breath of fresh air to the “respect for religion movement” that had taken root at the United Nations since the Islamist terrorist attacks of September 11, 2001, in New York and Washington, DC. In effect, Arab-Islamic member countries of the United Nations took advantage of the structural power of the institution to gain control of the UN Commission on Human Rights and use it to pass a series of resolutions conflating race and religion, denouncing disrespect for religion, and calling on the international community to “examine the situation of Muslim and Arab peoples in various parts of the world, with special reference to physical assaults and attacks against their places of worship, cultural centres, businesses and properties in the aftermath of the events of 11 September 2001.” The Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance concluded that “defamation of religions and incitement to racial and religious hatred are manifestations of contemporary forms of racism, racial discrimination, xenophobia, and related intolerance.” The UN Commission on Human Rights, which was dominated by countries that were notorious violators of human rights—notably Libya and Sudan—essentially equated religion, a philosophic posture and worldview on human experience in this life and in the hereafter, with genetic traits like race and ethnicity, and put it beyond the scope of reasoned criticism.
In 2006, while the Mohammad cartoons affair was still raging, the United Nations General Assembly passed a resolution replacing the much-maligned UN Commission on Human Rights, which was dominated by authoritarian regimes, with the UN Human Rights Council. In the preambular recital to the resolution, the General Assembly essentially made respect for religion an international moral obligation, a new human right. The resolution establishing the UN Human Rights Council said in part:
Affirming the need for all States to continue international efforts to enhance dialogue and broaden understanding among civilizations, cultures and religions, and emphasizing that States, regional organizations, non-governmental organizations, religious bodies and the media have an important role to play in promoting tolerance, respect for and freedom of religion and belief.
The language of this section of the preamble made a slight but profound change in the historic posture of the United Nations toward religion. This statement essentially tinkered with the historic posture of the United Nations with regard to freedom of religion. Respect for religion, a code expression for anti-blasphemy, was now put on a higher plane than freedom of expression, and the role of the media was conceptualized as that of uncritical facilitators of a dialogue of religions and cultures.
Raising “respect for religion,” (an international obligation not to blaspheme) to the level of a “human right” under international law is philosophically troubling because it clouds the concept of human rights, which Buchanan and Golove describe as: “those moral entitlements that accrue to all persons, regardless of whether they are members of this or that particular polity, race ethnicity, religion or other social grouping. Human rights are understood as claim rights: they entail obligations to others . . . those rights and duties . . . which ought to be recognized by international law as being universal, that is, applicable to all states.” By singling out religion, an array of philosophical worldviews, for heightened protection, the UN Human Rights Council undermined the minimalist freedom of expression aspects of international law. After the establishment, definition, and scope of the nebulous and malleable right of respect for religion, the United Nations moved forward with its implementation through a national self-reporting process.
The problem with the decision of the United Nations to raise “respect for religion” (an international obligation not to blaspheme against specific faiths) to the level of a human right and encouraging implementation of that right under international law is that the term “respect for religion” is subjective, malleable, and does not have a universally agreed-upon meaning. Indeed, the meaning of words such as “religion” and “sacred,” have been stretched to the point that they have become clichés not only in popular culture, politics, and academia but also in the visual arts in many parts of the world. As Elizabeth Hopkins puts it, in art, the sacred is “probably all in the eye of the beholder.”
Inasmuch as it led to the creation of a new, nebulous international human right—respect for religion—that clashes with freedom of speech, the Mohammad cartoons controversy in Denmark and France was detrimental to freedom of expression. This is because for the first time in its history, the United Nations equated criticism of religion with racism and raised “respect” for a philosophical system—religion, in this case—to the level of “soft law” (a hortatory encouragement) under international law. For over a decade, the Organization of Islamic Cooperation (OIC) has sponsored UN Commission on Human Rights, UN Human Rights Council, and United Nations General Assembly resolutions against the “defamation of religion.” Interestingly, these resolutions targeted alleged defamatory speech, not discriminatory actions taken against people—usually religious minorities, including religious minorities in the Muslim world—on the basis of their religious beliefs.
Many human rights activists were surprised that in 2009, the newly elected Obama administration, led by Secretary of State Hillary Clinton, put its imprimatur on United Nations policies against defamation of religion. In effect, the United States and the Arab Republic of Egypt co-sponsored a weighty United Nations Human Rights Council Resolution that called on member states of the United Nations to “take effective measures, consistent with their international human rights obligations” to combat “racial and religious intolerance, discrimination and related violence, as well as negative stereotyping of religions and racial groups . . . any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” The commission therefore urged states to fully implement the steps identified in the Human Rights Council resolution 16/18 and United Nations General Assembly resolution 66/167.
The Obama administration’s co-sponsorship of a UN resolution on “freedom of expression” with the authoritarian regime of former President Hosni Mubarak of Egypt was unprecedented. The administration’s endorsement of viewpoint-based restrictions on “advocacy of religious hatred that constitutes incitement to hostility,” represented a fundamental change in American foreign policy with regard to human rights issues and freedom of expression. The United States had never before—and this was on strict First Amendment grounds—associated itself with the multitude of content-based United Nations resolutions that suggested criminalization and punishment of defamation of religion or “negative stereotyping of religious or racial groups.” As Frederick Schauer suggests, the First Amendment is a libertarian charter under which freedom of speech trumps dignity, decency, equality, civility, and other social or communitarian values. Therefore, under the First Amendment, in public forums the rights of speakers—no matter how offensive or stereotypical their views may be—take precedence over the feelings (religious or otherwise) of their listeners. Criminalizing blasphemy would overturn the religious neutrality posture of American First Amendment jurisprudence, under which the government is required to be neutral toward religion—neither promoting nor retarding religion and religious dogmas.
Furthermore, criminalizing blasphemy would eviscerate individual rights and the crucial social benefits of freedom of expression: advancement of public debate and the search for truth, providing a check on governmental abuse of power, providing minorities and dissenters an avenue for expression, increasing the diversity of ideas in the public sphere, and providing a safety valve for social discontent. As Frederic Schauer put it,
The American understanding is that principles of freedom of speech do not permit government to distinguish protected from unprotected speech on the basis of the point of view espoused . . . There remains a pervasive American suspicion of official valuation of ideas and enterprises . . . This skepticism about the ability of any governmental institution reliably to distinguish the good from the bad, the true from the false, and the sound from the unsound finds its most comfortable home in the First Amendment.
The premise of the American free speech regime is that the emotional distress and psychic harms caused by tolerating blasphemy have far less nefarious consequences on the First Amendment free speech system, the American body politic, individual rights, and freedoms than the grave harms on liberty caused by suppressing criticism of religion or its political manifestations.
The UN Draft Resolution on Combating Religious Hatred and Vilification of Religions
The international effort to outlaw blasphemy continued in 2010 when a committee of the United Nations General Assembly adopted the ominous-sounding: “Draft Resolution On Combating Religious Hatred and Vilification of Religions,” which again equated philosophical systems (religions) with race. The underlying message was that religion is a genetically inherited trait. In an ironic act of diplomatic compromise—and the irony was lost on the dead-serious diplomats—the draft resolution, which was adopted by a committee of the United Nations General Assembly, denounced vilification motivated by new diplomatic neologisms that express the spirit of the age: “Islamophobia, Judeophobia, and Christianophobia.” Interestingly, the controversial UN resolutions on “defamation of religion” are grounded in the International Bill of Rights: The International Convention on the Elimination of All Forms of Racial Discrimination, and the International Covenant on Civil and Political Rights. The fact that the United Nations does not have a formal mechanism to enforce these controversial resolutions does not mean they are mere public relations exercises designed for consumption by the constituents of their sponsors. As our case study of Pakistan demonstrates, these resolutions are consistent with the legal realities of most countries in the Muslim world.
The European Court of Human Rights and Blasphemy
In Europe, the freedom of expression components of international human rights law—specifically freedom of opinion, religion, expression, and by extension blasphemy—are enforced by the European Court of Human Rights, which was set up by the 47-member pan-European organization, the Council of Europe. The work of the European Court of Human Rights has transformed Europe into one of the few jurisdictions in the world where the expressive rights of private individuals are protected from unreasonable governmental infringement. Even France and the United Kingdom, which jealously guard their cultural specificity and national legal traditions, have largely relinquished their sovereignties on matters of freedom of religion, speech, and expression to the European Court of Human Rights. In fact, the Court itself issued what some would consider a “blasphemous” decision when it ruled in the 2003 case, Refah Partisi (The Welfare Party) and Others v. Turkey that Islamic Sharia law was at variance with the values of democracy and the European Convention on Human Rights.
As we saw above, Danish Courts based their decisions not to prosecute Jyllands-Posten and its editors for publishing the Mohammad cartoons in 2005 on precedents of the European Court of Human Rights. In effect, ECtHR jurisprudence on blasphemy shows that the Court generally defers to member-states, which are more conversant with national realities than European judges sitting in Strasbourg, if these nations satisfy the threshold questions set forth in Article 10(2) of the European Convention of Human Rights and Fundamental Freedoms of 1950:
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others.
In order to determine how the European Court of Human Rights interpreted the clashing concepts of freedom of expression and respect for religion (blasphemy), and resolved judicial disputes and tensions between both concepts in the transnational European context, this section analyzes a few European cases that exemplify the court’s jurisprudential orientation.
Wingrove v. the United Kingdom
In Wingrove v. the United Kingdom, the Court was faced with a case in which the British Board of Film Classification (formerly the British Board of Film Censorship) refused to classify a video (essentially banning it) for violating the British common law of blasphemous libel. In effect, Nigel Wingrove wrote and directed a video production entitled Visions of Ecstasy based on the life and writings of St. Teresa of Avila, the 16th-century Carmelite nun and founder of many convents, who wrote that she experienced powerful ecstatic visions of Jesus Christ. The video sexualized and transformed these “sacred” visions into a mélange of eroticism and religion that contained nudity, blood, lesbian love scenes, as well as other graphic scenes of a sexual nature. Under provisions of the Video Recording Act 1984, all non-exempt recordings (generally works of fiction) are classified by the British Board of Film Classification (BBFC), the organization designated by the Secretary of State for Culture, Media and Sport for that purpose. All films and videos carry a classification or ratings certificate that specifies which age group they are intended for. Since a certificate classifies films according to age groups above which audiences may watch them, films or videos that are not granted classification or ratings certificates are illegal and may not be shown in the United Kingdom. Classification and certification are legally binding and contravention carries criminal penalties.
The BBFC rejected the application of Visions of Ecstasy and refused to classify the video on the grounds that it violated common law blasphemous libel laws, thereby making it illegal and non-distributable in the United Kingdom. In a letter to Wingrove, the BBFC stated:
The video work submitted by you depicts the mingling of religious ecstasy and sexual passion, a matter which may be of legitimate concern to the artist. It becomes subject to the law of blasphemy, however, if the manner of its presentation is bound to give rise to outrage at the unacceptable treatment of a sacred subject . . . it is the Board’s view, and that of its legal advisers, that a reasonable jury properly directed would find that the work infringes the criminal law of blasphemy.
Wingrove’s appeal to the Video Appeals Committee was not successful. He was advised that his case was not suitable for judicial review since BBFC and the VAC had ruled correctly in accordance with the law of blasphemy in force. Wingrove appealed to the European Court of Human Rights claiming that the British government’s refusal to grant his film a classification certificate under the Video Recording Act 1984, to enable him to distribute the video amounted to a violation of his freedom of expression under Article 10 of the European Convention on Human Rights. The issue before the court was whether the alleged violation of freedom of expression did indeed take place, and if so, whether it was justified in a democratic society.
In accordance with its traditional proportionality procedure, the Court ruled that since the offence of blasphemy does not by its very nature lend itself to precise legal definition, national authorities must be granted a high degree of flexibility in assessing whether the facts of a particular case fall within their accepted definition of the offence. The Court therefore concluded that the restriction of Mr. Wingrove’s right to freedom of expression was “prescribed by law” and that it was justified in a democratic society since the restriction was “intended to suppress behaviour directed against objects of religious veneration that is likely to cause justified indignation amongst believing Christians. It follows that the application of this law in the present case was intended to protect the right of citizens not to be insulted in their religious feelings . . . The decisions by the national authorities cannot be said to be arbitrary or excessive.” In this case, the court ruled that it was not its place to provide a pan-European legal definition or interpretation of blasphemy, a phenomenon about which the European Convention of Human Rights is silent. The court preferred to allow each state to define and interpret the concept in accordance with its establishmentality and its specific politico-religious realities.
Otto-Preminger-Institut v. Austria
The decision of the European Court of Human Rights in this blasphemy case was consistent with previous rulings of the Court with respect to blasphemy. In effect, despite the much-vaunted European ideologies of secularism, separation of church and state, and freedom of expression, from time to time courts are confronted with prosecutorial attempts to enforce “dormant” laws of blasphemy that had been enacted in earlier times but had never been amended or expunged from the books. Austria happened to have a blasphemy law in its books. In Otto-Preminger-Institut v. Austria, the Court upheld a decision by Austrian courts to seize a satirical film that mocked the Catholic faith. Austrian courts had ruled that a provocative film was an “attack on Christian religions” and therefore fell within the ambit of “the criminal offence of disparaging religious precepts as laid down in section 188 of the [Austrian] Penal Code.” After exhausting national legal remedies, the defendant appealed to the European Court of Human Rights, which applied its traditional proportionality analysis to the dispute. The issues before the court were: (1) whether seizure and forfeiture of the satirical film interfered with the freedom of expression of its producers and promoters, (2) whether the interference was prescribed by law, (3) whether the government had a legitimate aim in seizing and forfeiting the film, and (4) whether the seizure and forfeiture were necessary in a democratic society. The court ruled that the seizure and forfeiture interfered with the freedom of expression of Otto-Preminger-Institut and that the interference was prescribed by the Penal Code. Furthermore, the government had a legitimate interest in seizing and forfeiting the film, namely “to protect the right of citizens not to be insulted in their religious feelings by the public expression of views of other persons.” The court further held that the seizure and forfeiture of the film were necessary in a democratic society. In upholding the Austrian court rulings, the European Court of Human Rights ruled that: “respect for the religious feelings of believers could move a state to legitimately restrict the publication of provocative portrayals of objects of religious veneration.” The court then ruled in favor of Austria.
Given the diversity of religious experience in contemporary Europe, the European Court of Human Rights has been loath to prescribe a uniform hermeneutical matrix to resolve the tension between freedom of expression and respect for religion. The Court again reiterated the fact that it was primarily up to the national authorities, notably the courts, to interpret and apply national law on the subject of blasphemy: “It is in the first place for the national authorities, who are better placed than the international judge, to assess the need for such a measure in the light of the situation obtaining locally at a given time. In all the circumstances of the present case, the Court does not consider that the Austrian authorities can be regarded as having overstepped their margin of appreciation in this respect.”
Nevertheless, the Court did not ignore the dangers of blanket bans on blasphemy. One of the outcomes of this case is the Court’s ruling that while it is legal to ban blasphemy under specific national establishmentalities and their legal specificities, members of religious groups must learn to tolerate criticism of their religions and religious views: “Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.” As we see below, it is an open question whether it is realistic to allow countries to ban blasphemy against a religion, and yet allow criticism of that same religion. Clearly that is not possible, given the inseparability between religion as a philosophical worldview and mindset, and the symbolic representations thereof: Prophets and venerated personalities, sacred texts, and sites of religious memory, sacred objects, symbols, and so on.
Blasphemy, Freedom of Expression and Published Satire: I. A. v. Turkey (2005)
The above cases showed how the European Court of Human Rights handled blasphemy cases involving moving images—video and a film—in two Western countries with identical Christian cultures but different establishmentalities. In these cases, the Court deferred to the governments to take the lead in formulating national, context-specific solutions to the tension between blasphemy and freedom of expression. We now explore how the Court decided a blasphemy case in Turkey, a majority Muslim “Islamo-secular” country where there is a high level of entanglement between Islam and the state. In I.A. v. Turkey, the proprietor and managing director of a publishing house was indicted by the Istanbul Public Prosecutor for violating Turkish Criminal Code provisions against blasphemy, and specifically, blasphemous utterances against “God, the Religion [Islam], the Prophet [Mohammad] and the Holy Book [the Qur’an].” In effect, in 1994, the publishing house had published a book by Abdullah Rıza Ergüven entitled “Yasak Tümceler” (“The Forbidden Phrases”). The book presented the author’s philosophical and theological ideas about a number of issues, particularly, Islam, in a satirical, novelistic style. The managing director of the publishing house was sentenced to two years’ imprisonment, a penalty that was later commuted to a fine.
He appealed the conviction and sentence to higher Turkish courts, which affirmed both the conviction and sentence. After all national remedies had been exhausted, the publisher appealed to the European Court of Human Rights, claiming that his right of freedom of expression had been violated. The Court ruled that the conviction amounted to an interference with his right of freedom of expression protected by Article 10 of the European Convention on Human Rights. It further ruled that the conviction for blasphemy was prescribed under the Turkish law of blasphemy that is set forth in the Penal Code, and that the government had a legitimate aim in convicting the applicants. The main issue before the Court was whether the conviction and sentencing of the publisher were necessary in a democratic society. To make this determination, the Court had to strike a balance between the publisher’s right of freedom of expression and the right of Muslims to respect for their religion. The Court first reminded the parties of its ruling in Otto-Preminger-Institut v. Austria (discussed above), where it had decided that tolerance and broadmindedness are hallmarks of democratic societies: “Therefore, those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.” Nevertheless, the Court followed its precedent on blasphemy that left a wide margin of appreciation to the member states of the Council of Europe in matters of blasphemy: “The fact that there is no uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions means that the Contracting States have a wider margin of appreciation when regulating freedom of expression in connection with matters liable to offend intimate personal convictions within the sphere of morals or religion.” The court therefore ruled that the Turkish authorities had not violated the freedom of expression of the publisher when he was convicted of blasphemy. The Court essentially continued to place its imprimatur on the criminalization of blasphemy by member countries of the Council of Europe who had blasphemy laws, without regard to the intent of the producers, authors or publishers of the criminalized blasphemous works. The Court has never demanded that states that criminalize blasphemy and enforce laws against it demonstrate the actual harms caused by the specific media content that is at issue in the legal disputes. There is an assumption of psychic or metaphysical harms. That is a major shortcoming of the European Court of Human Rights’ posture in the cases discussed.
These cases show that the Court respects the diversity of establishmentalities in Europe and therefore refrains from imposing a uniform interpretation of blasphemy on the 47 countries under its jurisdiction. In short, the court confined itself to reviewing whether government defendants did in fact abide by their own blasphemy laws. The Court thereby continued to treat blasphemy as a culturally situated phenomenon that is outside the ambit of supranational judicial review. The fact is that there are certain universal human rights—of which freedom of expression is the most important—that take precedence over feelings about specific cultural iterations of religion. Laws of blasphemy punish ideas, have direct and collateral coercive effects on freedom of expression, and are inextricably linked with regimes of suppression of freedom of expression. This was a lost opportunity for the European Court of Human Rights to define what blasphemy is, who can be blasphemed, what constitutes blasphemous speech or speech acts, and so forth.
In this era of the resurgence of religion, religiosity, and religion-inspired terrorism, the European Court of Human Rights needs to step up and eliminate the ambiguity in the law of blasphemy by establishing a Europe-wide definition and interpretation of blasphemy that is consistent with the freedom of religion, conscience, expression, assembly and association provisions of the Universal Declaration of Human Rights, Articles 9, 10, and 11 of the European Convention on Human Rights, as well as other European and international conventions. A comprehensive definition of blasphemy that is consistent with international human rights law will provide a modicum of certainty in this age of religiosity and religious entitlementality.
The European Union: Freedom of Religion versus Blasphemy
The European Union, a transnational organization that is different from the Council of Europe, under whose auspices the European Court of Human Rights operates, has also faced pressures to criminalize disrespect for religion. In the face of relentless calls for criminalization of blasphemy, and the muddled international response to these calls, in 2013, the European Union defined blasphemy implicitly and negatively in opposition to the positive human right of freedom of expression. The European Union policy document: “Guidelines on the Promotion and Protection of Freedom of Religion or Belief” (FoRB) declares that: “the right to freedom of religion or belief, as enshrined in relevant international standards, does not include the right to have a religion or a belief that is free from criticism or ridicule.” This implicit, backhanded, negative framing of blasphemy is a verbatim re-presentation of a 2012 policy recommendation of the Office of the United Nations High Commissioner for Human Rights (OHCHR). This UN recommendation is buried deep within the loaded, censorious sounding, “Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” This document emerged from a series of workshops held at the behest of Muslim countries, acting under the umbrellas of the Organization of Islamic Cooperation and the League of Arab States, in the wake of the September 2001 terrorist attacks.
Though the European Union’s “Guidelines on the Promotion and Protection of Freedom of Religion or Belief” do not explicitly define blasphemy, they clearly articulate the fact that criticism of religious moral philosophical ideas and worldviews—and that is the essence of blasphemy—is protected under international law. In this regard, the EU noted that when faced with restrictions on freedom of expression in the name of religion or belief, it will “recall that international human rights law protects individuals, not Religion or Belief per se. Protecting a religion or belief may not be used to justify or condone a restriction or violation of a human right exercised by individuals alone or in community with others.” These guidelines are essentially a restatement of the European belief that freedom of expression trumps both the “entitlementality” of respect for religion in general and blasphemy in particular. This EU repudiation of the anti-blasphemy logic sends a signal that it supports both freedom of expression and freedom of religion, not a coercive “respect for religion.” Though these guidelines are not legally binding, they are an influential part of the EU’s human rights regime because they were adopted at the EU ministerial level and are an expression of the political posture of the EU in matters of freedom of religion and human rights. The “Guidelines on the Promotion and Protection of Freedom of Religion or Belief” also imply protection of minority religions in regions of the world where blasphemy laws are used to suppress or persecute minorities.
Salman Rushdie’s Satanic Verses and British Law of Blasphemy
As was explained in a previous section, when Salman Rushdie published the Satanic Verses—a novel inspired in part by the life of Prophet Mohammad—the Iranian Supreme Leader (and his word was law) declared the novel blasphemous and issued a fatwa (religious decree) sentencing Rushdie to death for defaming Islam. The Ayatollah decreed that any Muslim who murdered Rushdie would receive a bounty of $3.3 million. We saw that Rushdie’s Japanese translator, Hitoshi Igarashi, was murdered and Rushdie’s publisher survived murder attempts. In 2014, the 25th anniversary of the issuance of the fatwa against Salman Rushdie, senior Iranian cleric, Ahmad Khatami, announced that the death sentence on Sir Rushdie was still valid. We have also seen that in the United Kingdom, up till the 1990s, the law of blasphemy protected only the Christian religion and, more specifically, the established Church of England. When Salman Rushdie published the Satanic Verses in 1988, Muslims in the United Kingdom sought to prosecute him under provisions of the British Common law of blasphemous libel. Abdal Choudhury, a Muslim, and others, applied to the chief metropolitan magistrate of London at Bow Street Magistrates Court for a summons for criminal prosecution of blasphemy against Salman Rushdie and his publisher, Viking Penguin, on the grounds that the Satanic Verses contained blasphemous libels against Almighty God (Allah), the Prophet Abraham and his son Ishmael, Mohammad the Holy Prophet of Islam, his wives and companions, and the religion of Islam. The application was dismissed on the grounds that the offense of blasphemous libel was applicable only to Christianity.
On appeal, a Divisional Court of the High Court ruled that as the law stood, non-Christian religions were not protected by the law of blasphemous libel. Speaking for the court, Lord Watkins stated:
We have no doubt that as the law now stands it does not extend to religions other than Christianity . . . We think it right to say that, were it open to us to extend the law to cover religions other than Christianity, we should refrain from doing so.
The applicant’s request to appeal to the House of Lords was denied. In 1990, Choudhury appealed to the European Commission of Human Rights, claiming the law of blasphemy in the United Kingdom was impermissibly under-inclusive because it had not extended protections against blasphemous libel to the Muslim community in the country. Choudhury claimed this lack of protection for Islam amounted to a violation of Article 9 of the European Convention on Human Rights, which guarantees freedom of thought, conscience, and religion, among other rights. The question before the commission was whether the freedoms guaranteed in Article 9 of the Convention may extend to guarantee a right to bring any specific form of proceedings against those who offend the sensitivities of an individual or of a group of individuals through their writings or publications. In other words, could Article 9 be construed as a weapon against blasphemy? The Commission answered in the negative and declared the complaint inadmissible because it was incompatible with the provisions of Article 9. By bringing this suit, Muslims in the United Kingdom were essentially putting Islam, Mohammad, and the Qur’an on the same footing as Christianity, Jesus Christ, and the Bible under the historic British common law of blasphemous libel. They were mistaken. In a number of European countries, established churches have protections against blasphemy that other religions do not technically have. Furthermore, Choudhury and his co-plaintiffs wanted to use the human right of freedom of thought, conscience, and religion (which was intended to promote freedom of religious belief and expression) to suppress Rushdie’s alternative narrative of Prophet Mohammad and Islam.
Abolition of the Law of Libel in the United Kingdom
With increasing secularism and multiculturalism, Islamic visibility, perceptions of blasphemy evolved over time in British society. Though blasphemy laws were in the books, they were rarely enforced. The Salman Rushdie fatwa of 1998 and the uproar over the Danish Jyllands-Posten Mohammad cartoons changed public perceptions. The British common law of blasphemy and blasphemous libel laws that had originally been enacted to protect the Church of England during centuries of religious schism, sectarianism, contestation, and war were being brandished by Muslim groups as weapons of censorship against what they considered objectionable, “Islamophobic” media content, as well as against editors and journalists who published objectionable content. This militant religiosity forced the hand of British legislators. In 2008 the Criminal Justice and Immigration Act 2008 abolished the common law offenses of blasphemy and blasphemous libel in England and Wales with effect from July 8, 2008. Furthermore, the Public Order Act 1986 (c. 64) (Hatred Against Persons on Religious Grounds) was amended to make provision about hatred against a group of persons defined by reference to sexual orientation a criminal offense. Sexual orientation essentially replaced religion as a protected secular dogma in England and Wales.
This entry has demonstrated that there are diverse establishmentalities—culture-specific logics underpinning the official recognition or non-recognition under the law of state religions or secular dogmas between and within politico-cultural regions of the world. Even though the European Court of Human Rights, as well as courts in Denmark, France the United States, and the United Kingdom ruled that freedom of expression trumps demands of respect for religion, the reasons for their decisions were diverse. Islamic establishmentalities are the polar opposite of the Western establishmentalities and anti-establishmentarian logics. Islam is either the de jure or de facto state religion in all Muslim majority countries. It is also the primary source and inspiration of the law in Muslim countries. The major clashes between freedom of expression and respect for Islam that we have seen since the Iranian Revolution of 1979 have arisen because of perceived blasphemy (disrespect for Islam), and demands by the Organization of Islamic Cooperation, the Arab League, and individual Muslim countries that Islamic law of blasphemy—dogmatic prescriptions of respect for Islam and its master narratives, Prophet Mohammad, the Qur’an, and Muslims—be made universal and applicable in all jurisdictions. The “crime” or sin of blasphemy or blasphemous libel is, by definition, a crime or sin of expression. Some of the biggest global news events of the last quarter century, in terms of magnitude and impact, have involved blasphemy. The French newspaper, Le Monde, painted a somber picture of blasphemy law in the Muslim world. It proclaimed: “Anti-blasphemy laws, a tool of repression that threatens the whole planet.” The main premise of this entry was that anti-blasphemy laws and regulations are in direct tension with the freedom of expression components of the post–Second World War international human rights regime set up under the auspices of the United Nations and the Council of Europe. The post–Second World War legacy of freedom of opinion and expression is being increasingly undermined by interpretations of freedom of expression and blasphemy that are highly emotional, supremacist, extrajudicial, transnational, and authoritarian. While respect for religions and religious rites is a noble ethical objective, it must not trump the human right of freedom of expression, without which freedom of religion cannot be fully realized.
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(1.) Mr. Bluitgen ultimately found an anonymous illustrator but most Danish schools refused to put the book in their libraries.