Legal Interpretations of Freedom of Expression and Blasphemy
This is an advance summary of a forthcoming article in the Oxford Research Encyclopedia of Communication. Please check back later for the full article.
One of the most difficult puzzles of contemporary international relations is how to balance the human rights of freedom of opinion, religion, and expression, which 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, and Iran in the wake of the Iranian Revolution, the terrorist attacks of September 11th, 2001 in the United States, as well as publication of Danish and French cartoons that satirized Prophet Mohammed and equated Islam with terrorism. These calls have to be reconciled with articles 18 and 19 of the United Nations Universal Declaration of Human Rights, which states:
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 question is how to strike a balance between freedom of expression, which includes non-verbal symbolic speech and legal expressive conduct, and calls for respect for religion (in word and deed), as well as the installation of a global, antiblasphemy regime under international law.
Calls for international criminalization of blasphemy and enactment of antiblasphemy laws that would globalize respect for religion under international law began in 1988, when Salman Rushdie, a British-Indian novelist, published the novel Satanic Verses, an unorthodox narrative of the life of Prophet Mohammed 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 1700-year-old statues known as the Buddhas of Bamiyan, in Afghanistan. Since 2013, the Islamic State of Iraq and Syria (ISIS) has gone 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 ISIS represent a deployment of the argument of force and coercion rather than the force of argument and co-operation 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 ISIS, drawing a distinction between expressions—books, cartoons, news reports, and the like—that criticize religion, and illegal actions. However, the major religions do not make a distinction between expressions and actions, words and deeds. They interpret national and international law as criminalizing all antireligious expressions and actions and call for a global antiblasphemy regulatory regime. This would be tantamount to a universal, antihumanist counter-declaration 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 “contextual matrixes” determine how these concepts are interpreted in everyday life. Pierre Legrand called this phenomenon “law-as-culture,” because the law reflects the religious and moral values, cultural norms, and community standards of specific jurisdictions.
The 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 the Scandinavian countries—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 OIC and the Arab League have put pressure on the United Nations to ban blasphemy and institute a regime that puts religion 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 clearly be at variance with the freedom of opinion, religion, and expression provisions of the Universal Declaration of Human Rights.