Dr. Jeroen Temperman, Erasmus University Rotterdam Freedom of Expression & Religious Sensitivities in Pluralist Societies: A Human Rights-Based Rejection

Dr. Jeroen Temperman, Erasmus University Rotterdam

Freedom of Expression & Freedom of Expression & Religious Sensitivities in Religious Sensitivities in

Pluralist Societies:Pluralist Societies:

A Human Rights-Based Rejection of Combating A Human Rights-Based Rejection of Combating Religious Defamation & A Conceptualization of Religious Defamation & A Conceptualization of

the Prohibition of Religious Hate Speechthe Prohibition of Religious Hate Speech


Freedom of Expression & Religious Freedom of Expression & Religious Sensitivities in Pluralist SocietiesSensitivities in Pluralist Societies

Outline:Historical background to problematiqueState practice: defamation & hate

speechApproach UN Political Bodies vs.

Approach UN Expert Bodies European Convention SystemConceptualization of the prohibition of

religious hate speech

Religious SourcesReligious Sources

Monotheistic world religions & Blasphemy:

Tanakh Christian Bible Qur’an


Leviticus 24:10–23

“Now an Israelite woman’s son, whose father was an Egyptian, went out among the people of Israel. And the Israelite woman’s son and a man of Israel fought in the camp, and the Israelite woman’s son blasphemed the Name, and cursed. Then they brought him to Moses. His mother’s name was Shelomith, the daughter of Dibri, of the tribe of Dan. And they put him in custody, till the will of the LORD should be clear to them. Then the LORD spoke to Moses, saying, "Bring out of the camp the one who cursed, and let all who heard him lay their hands on his head, and let all the congregation stone him. And speak to the people of Israel, saying, Whoever curses his God shall bear his sin. Whoever blasphemes the name of the LORD shall surely be put to death. All the congregation shall stone him. The sojourner as well as the native, when he blasphemes the Name, shall be put to death…" So Moses spoke to the people of Israel, and they brought out of the camp the one who had cursed and stoned him with stones. Thus the people of Israel did as the LORD commanded Moses” (English Standard Version, emphasis added).


Matthew 12:30–32

“Whoever is not with me is against me, and whoever does not gather with me scatters. Therefore I tell you, every sin and blasphemy will be forgiven people, but the blasphemy against the Spirit will not be forgiven. And whoever speaks a word against the Son of Man will be forgiven, but whoever speaks against the Holy Spirit will not be forgiven, either in this age or in the age to come” (ESV, emphasis added).


The Holy Qur’an: 9:74

“They swear by Allah that they said nothing (evil), but indeed they uttered blasphemy, and they did it after accepting Islam; and they meditated a plot which they were unable to carry out: this revenge of theirs was (their) only return for the bounty with which Allah and His Messenger had enriched them! If they repent, it will be best for them; but if they turn back (to their evil ways), Allah will punish them with a grievous penalty in this life and in the Hereafter: They shall have none on earth to protect or help them” (tranl. Abdullah Yusuf Ali, emphasis added).


State Practice – General Observations

Blasphemy/defamation bans initially designed to protect official/predominant religion specifically

‘Christian’ blasphemy prohibitions (cannon or common law) criminalized intentionally shocking or harming the religious feelings of the community

‘Islamic’ blasphemy ban: tighter nexus with prohibition of apostasy/conversion (away from Islam)


Exceptions: e.g. sec. 36 of Ch. 272 of the Criminal Code of Massachusetts

“Whoever wilfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior” (emphasis added).


State Practice – Predominantly Christian States

E.g. UK: blasphemy ban intended to solely

protect (Anglican) Church of England UK’s (abrogated) ban ‘exported’ to

Commonwealth nations Ireland Scandinavia Greece


State Practice – Predominantly State Practice – Predominantly Islamic StatesIslamic States

o Fairly ubiquitouso No ‘dead letter’o Tight nexus between blasphemy and

apostasyo Blasphemy laws occasionally

(ab)used to crackdown on:• political dissidents (e.g. Iran) • ‘heretic’ religious minorities (e.g.

Pakistan)Dr. Jeroen Temperman, Erasmus University Rotterdam

Pakistani ExamplePakistani Example

“Offences Relating to Religion”-Chapter of Penal Code: defiling of the Qur’an, Muhammad or other Islamic holy personages is punishable with life imprisonment, death or temporary imprisonment respectively.

Anti-Ahmadi laws (1974/1984)Dr. Jeroen Temperman, Erasmus University Rotterdam

Anti-Ahmadi lawsAnti-Ahmadi laws

“Any person …calling himself “Ahmadi” or by any other name who by words, either spoken or written, or by visible representation:

a) refers to or addresses, any person, other than a Caliph or companion of the Holy Prophet Muhammad (peace be upon him), as “Ameer-ul-Mumineen”, “Khalifatul-Mumineen”, “Khalifa-tul-Muslimeen”, “Sahaabi” or “Razi Allah Anho”;

b) refers to, or addresses, any person, other than a wife of the Holy Prophet Muhammad (peace be upon him), as “Ummul-Mumineen”;

c) refers to, or addresses, any person, other than a member of the family “Ahle-bait” of the Holy Prophet Muhammad (peace be upon him), as “Ahle-baft”; …shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine ...

An Ahmadi who “in any manner whatsoever outrages the religious feelings of Muslims” shall be punished with imprisonment or a fine.”


Religious Hate Speech Legislation

(Religious) Hate Speech Bills, e.g. UK, Australia, Switzerland Generic Penal Code provisions on incitement, e.g. Brazil,

Canada, Croatia, Denmark, Finland, Germany, India, Netherlands, New Zealand, Serbia, Sweden

‘Denial laws’; e.g. Austria, Belgium, France De facto application of defamation laws to counter religious

hate speech (e.g. Iceland, Norway): important role judge Purely a matter of jurisprudence: liberal democracies with no

hate speech legislation (e.g. USA): ‘clear and present danger’, ‘imminent action’ doctrine

Regulations tackling specific forms of religious hate speech

International Approach to the Interplay Between FoR &

FoE

Distinction:

UN Political Bodies

UN Expert Bodies


UN Political Approach: Counter All Religious Defamation

Combating-Defamation Resolutions:

“…everyone has the right to hold opinions without interference and the right to freedom of expression, and that the exercise of these rights carries with it special duties and responsibilities and may therefore be subject to limitations as are provided for by law and are necessary for respect of the rights or reputations of others, protection of national security or of public order, public health or morals and respect for religions and beliefs…”

E.g. GA Resolution 62/154 of 18 December 2007, para. 10 (emphasis added). Similarly, e.g.: GA Resolution 61/164 of 19 December 2006, para. 9; and Human Rights Council Resolution 4/9 of 30 March 2007, para. 10.


Conclusion Counter-Defamation Approach

(i) seeks to shift the emphasis from protection of the

rights of individuals to protection of religions per se;

(ii) introduces grounds for limitation of human rights, particularly of the right to freedom of expression, that are not recognized by international human rights law (e.g. respect for religions, respect for people’s religious feelings);

(iii) seeks to reformulate the right to freedom of religion or belief so as to include a right to have one’s religious feelings respected.


International Legal Approach: UN Expert Bodies

o No right to have one’s religion or belief at all times exempted from criticism, ridicule or insult or a right to respect for one’s religious feelings

o The ‘right of others to freedom of religion or belief’ is a legitimate ground for limitation but high threshold criteria must be met

E.g. Human Rights Committee, Malcolm Ross v. Canada; Human Rights Committee, draft-General Comment 34 on Article 19; Joint Report A/HRC/2/3 by UN Special Rapporteurs on Freedom of Expression and on Freedom of Religion


Rights of others to freedom of religion or belief as ground for

limitation of FoE

This ground for limitation:

(i) should not be equated with a right to respect for one’s religious feelings; and

(ii) forms of criticism, ridicule or insult of religion do not necessarily constitute a limit or threat to other people’s freedom of religion or belief: onus is on state to prove concrete risk of third parties’ rights being undermined by public expression.


Conclusion UN Expert Approach

Crucial distinction between:legal (albeit perhaps morally deplorable)

forms of religious defamation; vs.illegal forms of religious hate speech.

Advantages: mechanism is already in place; fosters both FoR & FoE; hate speech can be objectified; whilst insult is too

subjective a criterion to limit free speech; less scope for governmental abuse.


European Court HR & Religious Defamation

3 objectionable trends:

i. Development of abstract notion of a ‘right not to be insulted in one’s religious feelings’

ii. ECtHR fails to realize that there is no conflict between FoE & FoRB in abstracto:

• actual (rare) clashes need to be substantiated;• proper, critical balance must be struck

iii. ECtHR sanctions discriminatory laws


(i) A ‘right not to be insulted (i) A ‘right not to be insulted in one’s religious feelings’?in one’s religious feelings’?

“the right of citizens not to be offended in their religious feelings by publications” (Gay News)

“the respect for the religious feelings of believers as guaranteed in Article 9 [of the European Convention on Human Rights]” (Otto Preminger)

“the right of citizens not to be insulted in their religious feelings” (Otto Preminger)

“the right of citizens not to be insulted in their religious feelings” (Wingrove)

“[need to] to ensure respect for the religious doctrines and beliefs of others” (Murphy)


(ii) conflict between FoE & (ii) conflict between FoE & FoRB FoRB in abstracto?in abstracto?

E.g.: İ.A. v. Turkey:

Freedom of expression (publisher) restricted on the basis of existing ground for limitation (“right of others to respect for their freedom of thought, conscience and religion”); however,

no inquiry whatsoever into the Q as to whether the two rights indeed conflict in this particular case

Balancing rights without a legal necessity to do so might actually lead to infringements


(iii) ECtHR sanctions ECtHR sanctions discriminatory lawsdiscriminatory laws

E.g. Wingrove & Gay News:

“It is true that the English law of blasphemy only extends to the Christian faith. … The uncontested fact that the law of blasphemy does not treat on an equal footing the different religions practised in the United Kingdom does not detract from the legitimacy of the aim pursued in the present context”


Way forward

Further conceptualization of the state duty (art. 20(2) ICCPR) to prohibit religious hate speech; more particularly:

To conceptualize the prohibition of ‘religious hate speech’ as a notion of international law;

To identify legal benchmarks and factors that help determine the phenomenon religious hate speech;

To identify state obligations emanating from the internationally codified religious hate speech prohibition;

To identify and overcome legal or political obstacles to full compliance with the prohibition of religious hate speech.


Article 20(2) International Article 20(2) International Covenant on Civil and Political Covenant on Civil and Political

RightsRights

“Any advocacy of…religious hatred that constitutes incitement to

discrimination, hostility or violence shall be prohibited by

law.”


Conceptualization of ‘Religion Hate Speech’

Prohibition

Scope:

Hate speech vis-à-vis a specific religious group;

Religion-inspired hate speech.


Art. 137d Dutch Penal Code

“Any person who publicly, orally or in writing or image, incites to hatred or discrimination against persons…on account of their religion or belief…may be punished with imprisonment of maximally one year or a third category fine.”

Draft-GC on Art. 19 & 20 ICCPR State obligations under 20(2):

Legislative action (prohibition of “extreme speech”) Ex post facto punishment: early warning system?

Definition of key terms: Advocacy: “By advocacy is meant public forms of expression that are

intended to elicit action or response” Hatred: “By hatred is meant intense emotions of opprobrium, enmity

and detestation towards a target group” Incitement: “Incitement refers to the need for the advocacy to be likely

to trigger imminent acts of discrimination, hostility or violence. It would be sufficient that the incitement relate to any one of the three outcomes: discrimination, hostility or violence”.

Relation to Art. 19: “The acts that are address in article 20 are of such an extreme nature

that they would all be subject to limitations of Article 19, paragraph 3. As such, a restriction that is justified on the basis of article 20 requires also to comply with article 19, paragraph 3, which lays down requirements for determining whether restrictions on expression are permissible.”

Art. 137d Dutch Penal Code

“Any person who publicly, orally or in writing or image, incites to hatred or discrimination against persons…on account of their religion or belief…may be punished with imprisonment of maximally one year or a third category fine.”

Geert Wilders

“In 1945, Nazism was defeated in Europe.

In 1989, Communism was defeated in Europe.

Now the Islamic ideology has to be defeated.

Stop Islamization.Defend our freedom.”

(p. 19 Subpoena 13/425046-09, Arrondissementsparket Amsterdam; quote from Fitna)

Conceptualization of ‘Religious Hate Speech’

Prohibition

Key questions:

Legal significance of the role/position of the person behind the speech?;

What is the legal significance of the type of medium used?; What the legal significance of demographical figures

(religious adherence) and the level of public peace within society?;

May or should the public denial of indisputable atrocities suffered by (vulnerable) religious minorities be qualified as hate speech?;

In the context of religion-inspired hate speech, what is the legal significance of the right to freedom of religion or belief?


Documents

Dr. Jeroen Temperman, Erasmus University Rotterdam Freedom of Expression & Religious Sensitivities in Pluralist Societies: A Human Rights-Based Rejection