Professor Steve Peers, University of Essex
A recent judgment of the European Court of Human Rights has raised again the question of whether there should be limits on free speech when someone might be offended by it – in this case, concerning the Muslim faith. It’s a good opportunity to explain the context of the case and assess what – if any – limits should be acceptable on free speech in such cases.
The saga of ES v Austria began at a public seminar on “Basic Information on Islam” organised by the institute of a right-wing Austrian political party. An undercover journalist complained to the police about some of the comments made at the seminar (in particular about Mohamed as inclined to pedophilia), and the speaker was prosecuted. She was ultimately convicted and ordered to pay a small fine as a penalty, for breach of Article 188 of the Austrian Criminal Code:
“Whoever, in circumstances where his or her behaviour is likely to arouse justified indignation, publicly disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community, shall be liable to up to six months’ imprisonment or a day-fine for a period of up to 360 days.”
The conviction was upheld on appeal throughout the national courts, and the applicant then complained to the European Court of Human Rights (ECtHR) that her right to freedom of expression under Article 10 of the European Court of Human Rights (ECHR) had been infringed. Since her free expression had obviously been penalised, the crucial issue in the case was whether the interference with that right was justified under Article 10(2) ECHR, which provides:
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, 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, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The restriction in this case was “prescribed by law” (as can be seen above), and so the issue is whether the restriction was “necessary in a democratic society”. The Court began its assessment by reiterating (from its prior case law) that freedom of speech is “one of the essential foundations of a democratic society” and applies not just to statements that are “regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”. Article 10(2) provides “little scope…for restrictions on political speech or on debate on questions of public interest”. In particular, believers in a religion, “irrespective of whether they do so as members of a religious majority or a minority, therefore cannot expect to be exempt from 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.”
Having said that, though, the “duties and responsibilities” referred to in Article 10 include (referring again to case law):
“the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 [freedom of religion] to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane….Where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures….In addition, expressions that seek to spread, incite or justify hatred based on intolerance, including religious intolerance, do not enjoy the protection afforded by Article 10 of the Convention.”
In this context, prior case law had concluded that ECHR Contracting States “enjoy a certain margin of appreciation” in this field – meaning that the ECtHR does not intensively review how they strike the balance between freedom of speech and the protection of religious sensibilities, in particular as there is no “uniform European conception” of how to strike this balance. Moreover, ECHR States also “have the positive obligation under Article 9 of the Convention of ensuring the peaceful co‑existence of all religions and those not belonging to a religious group by ensuring mutual tolerance”. (A “positive obligation” is a legal requirement for the State to take action to protect individual rights, not just to refrain from action such as banning speech or prosecuting people for their comments). A State “may therefore legitimately consider it necessary” to limit the free speech of some which is “judged incompatible with respect for the freedom of thought, conscience and religion of others”, although ultimately the ECtHR exercises some review over how a State strikes that balance in each particular case.
Prior case law has turned on whether a value judgment has sufficient factual proof to support it, and the ECtHR’s role is not “to take the place of the national authorities”, but to review if their decisions are based “on an acceptable assessment of the relevant facts…and whether the interference corresponded to a “pressing social need” and was “proportionate to the legitimate aim pursued””, in light of the “content of the statements” and “the context in which they were made”. Also, “the nature and severity of the penalty imposed are also factors to be taken into account”. If the national authorities have already applied such a balancing exercise in line with these criteria, “the Court would require strong reasons to substitute its view for that of the domestic courts”.
Applying those principles to this case, the subject matter was “particularly sensitive”, and so “the domestic authorities had a wide margin of appreciation” because “they were in a better position to evaluate which statements were likely to disturb the religious peace in their country”. The seminars in question were public, and Austrian law did not simply “incriminate all behaviour that is likely to hurt religious feelings or amounts to blasphemy, but additionally requires that the circumstances of such behaviour were able to arouse justified indignation, therefore aiming at the protection of religious peace and tolerance.” The national courts “extensively explained why they considered that the applicant’s statements had been capable of arousing justified indignation”, and the ECtHR agreed with the lower court “that presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society”.
The Court went on to agree with the national courts that in this case, value judgments did not have “sufficient factual basis”, and rejected the argument that “a few individual statements had to be tolerated during a lively discussion”. In the judges’ view, “it is not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and deduce that this would render the statements exceeding the permissible limits of freedom of expression passable.” Finally, the Court took into account the very modest sanctions applied to the speaker.
As noted at the outset, it’s necessary to explain the context of this case – given that it seems to be widely misunderstood. First of all, the ECtHR is not an “EU court” applying EU law, but the court of 47 European countries applying the ECHR, an international treaty separate from EU law. EU law touches on religious issues when it comes to religious discrimination in employment (see the case law discussed here), animal welfare issues, or persecution of refugees on grounds of religion – but has nothing to do with the issue of prosecution for offending religious sensibilities.
Secondly, the ECtHR is in no sense applying “Sharia law” here. The complaint was not made by a Muslim organisation, but by an undercover journalist. The Austrian law was not enacted solely to protect the Islamic faith, but other faiths too; and it was not motivated by Islamic doctrine. The ECtHR distinguishes the Austrian law from a ban on “blasphemy”, considering that it requires an additional element. Nothing in the judges’ reasoning refers to “defaming” Mohamed (although the Austrian Supreme Court is quoted as using that term). Nor does the Court require other countries to follow Austria’s lead: although it refers to positive obligations to protect freedom of religion, it does not spell out what they are, for the obvious reason that the applicant was not arguing a failure by Austria of any positive obligations in this case.
Thirdly, as my summary of the judgment sets out, there’s nothing unusual or exceptional about the underlying legal reasoning in the Court’s approach here. It’s applying its long-standing doctrine related to the balance between freedom of expression and freedom of religion. This is indeed an area where the “margin of appreciation”, giving considerable deference to States’ choices, has long been applied widely, although States do not always win. (Have a look at the cases linked to in the judgment, or the summary in this fact sheet, for more details: note that there are judgments arguably deferential to Christianity, not just Islam).
Finally, on the same point, it should be noted that the Court, sometimes criticised for being activist, is in this case conversely criticised for being deferential to States. The judges leave the remedy for those who criticise the law in Austria (or similar laws elsewhere) as the political process in Austria, rather than the remote court in Strasbourg. But those who usually criticise foreign judges’ interference now seem disappointed that those foreign judges didn’t interfere to effectively endorse their own criticism of Islam.
Assessment of the judgment
Although some of the Court’s critics seem to have misunderstood the context of the judgment, I would agree that there is a lot in the judgment to criticise. What I would question here is both the Court’s application of its “margin of appreciation” doctrine to the facts of this case, and its failure to reconsider that doctrine in general. On the first point, while I agree that the small fine is relevant, it’s odd that the Court however fails to consider the absence of any complaint by a Muslim organisation as such, given that its reasoning turns on the importance of the objective of ensuring religious peace. Its distinction between marrying one child and a preference for children in general comes across as sophistry. And its concern that anyone could have attended the political seminar overlooks the broader context of an Internet full of critics of Islam: if the problem is a forest, does it make sense to prosecute an individual tree?
On the Court’s failure to reconsider its doctrine in general, there’s a procedural point here: the judgment was delivered by a small Chamber of few judges, not a Grand Chamber with many more; and only the Grand Chamber has the authority to reconsider long-standing jurisprudence. (The applicant can request the Grand Chamber to review this Chamber judgment). But I would hope that the Grand Chamber has the opportunity to do so, and uses it. Here’s why.
As a confirmed agnostic who attends Catholic mass, I can see the conflict of rights here in personal terms. Faith is at the core of many people’s personal identity. It inspires the spiritual, explains the inexplicable, and consoles the inconsolable; it provides a community to celebrate the breaking of fasts, the liberation from slavery or the miracle of resurrection. It celebrates birth, codifies life, and commemorates death – yet offers hope of immortality.
Yet I can see why some wish to condemn one faith, or all faiths. There’s no shortage of abuse, discrimination, persecution, hatred or violence based on religion. And some generally believe that all religions are nonsense: that in a scientific age, with lots of suffering before death that we should be concerned about, it’s long past time to go cold turkey on the opiate of the masses.
My answer to the potential conflict of rights is to respect others’ right to believe what they want to believe (or not believe). But others have a different view. And freedom of speech is not just the freedom to calm people down: it’s also the freedom to wind people up, turn people on, or piss people off.
The flaw with the Court’s traditional case law is that it places too much priority on the right not to be offended, and not enough on the right to offend. Indeed, the Court quotes – but does not explicitly follow – a report from the Venice Commission, which recommends that States should abolish the offence of blasphemy or religious insult (the latter, with added elements, seems to be the basis of its recent judgment) and rely solely instead on incitement to hatred. I would go further still, and criminalise only incitement to hatred which advocates violence or other criminality.
So “Muslims are vile; let’s attack them” should be criminal; as should the attack itself, or the criminal damage entailed by a swastika drawn on a synagogue. I take the point that swastikas don’t draw themselves, and that if someone merely says “Muslims are vile”, his listeners may well add “let’s attack them” in their own minds and act on it. But there needs to be a line drawn somewhere; a whole range of statements could trigger a potentially violent listener, so we have to exercise some judgement as to which statements should reasonably be criminalised.
Moreover, incriminating many critics of Islam (or others considered intolerant) who don’t directly advocate violence doesn’t solve the problem of intolerance; it fuels it, allowing those critics to parade themselves as free speech advocates, or even martyrs. Prosecuting them for non-violent statements simply attracts more attention to their views. (This is also an answer to the valid “it’s easy to advocate freedom of speech when you’re not the target” arguments).
Two important qualifications, though. First of all, the freedom of expression is not a right to a platform: there’s no legal obligation for the mainstream media or social networks, for instance, to give any particular view uncritical attention, or any attention at all. Secondly, freedom of expression works both ways (that’s rather the point): it’s equally applicable to those who want to mock or react to Islamophobes or their ilk, and criticising someone’s views is not the same as “silencing” them. There’s nothing quite as pathetic as (for instance) the sight of the supporters of Trump’s crassness and intolerance crying crocodile tears in reaction to a comedian making a joke about his press secretary’s eye-shadow.
Ultimately, though, the problem with banning non-violent criticism of religion isn’t just about tactics; it’s about the paradox of intolerance. It’s logically impossible to preach tolerance while saying that dissenting views should be banned – even if those views are not very tolerant themselves. Fundamentally, a good idea – whether religious or secular – should speak for itself, not shut its critics up.
Barnard & Peers: chapter 9
Photo: Islamic Centre, Vienna; photo credit: Wien.info
I agree. The freedom of expression is a fundamental principle in a democratic society. Indeed, it has to be subject to restrictions when people might violate other rights through it... but the probelm is : "Where is the limit?". Democracy is always about limits. Limits are drawn by the context,the intentions and the consequences. Not in the freedom to speak about sensitive issues. The answer in always in the dialectic. If I say something about your religion, even if it is something difficult and uncomfortable to address, you can still answer. That is what we need to defend: the dialogue.ReplyDelete
An absolutely brilliant article: thanks very much for writing and publishing it!ReplyDelete
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I appreciate your thoughtful and nuanced analysis of this charged situation. I continue to believe the ruling went overboard to appease and submit to this ideology. Mohammed's pedophia is recorded and he is promoted for emulation, so raising this issue in an information session should not be attacked by a journalist. Nevertheless, your article helps me reconcile (somewhat) my objections to the ruling. Thanks.ReplyDelete
I often wonder in cases in which freedom of speech should be curtailed because someone might be offended, if one considers the value of the right to be offended as opposed to a society where can not be offended.ReplyDelete
It seems to me that the courts adapt to the times and in times of increasing Islamophobia the ECtHR feels that minorities need extra protection. By analogy the first law criminalizing the insults of the minorities in the Netherlands was adopted in the 1930's, when antisemitism was on the rise. The defenders of the law debated that: "The Netherlands has beautiful tradition of tolerance towards all religions and races, thus we would not have it destroyed by inciters." Thus the lawmakers felt instinctively that the rising antisemitism might lead to more than antisemitic words, and they were proven right. In the same way the European Court might feel a danger in the rising Islamophobia.ReplyDelete
Thanks for your comment. I see your argument, but a) this wasn't a general "Muslims are vile" expression of hatred, but a specific criticism of a religious figure, and so less apt to be considered hate speech; and b) as I suggest in the blog post, this approach is liable to backfire, as indeed it has in this case - with many thousands more people aware of and endorsing the original comment than the 30 people originally in the room, as a result of this legal action.Delete
Firstly, it was not a critique of some religious doctrine, it was a libelous assertion about a religious leader. Generally, those using the frame that Muhammad was a pedophile, don’t want to criticize Muhammad (he did NOT deliver a commandment like ‘thou shall have sex with children’). Their aim is to say: “look, Muslims adore a pedophile and are therefore pedophiles.” At best the so called Islam critics want to prove that Muslims are morally deficient because they follow a supposedly pedophile. Thus, calling Muhammad a pedophile, is not criticism, but an attack on a minority. For Muslims is this a libel, especially because the information about Aisha’s age and the question of having sex with her are notoriously unreliable:Delete
From the Court's description, this particular argument was more a criticism of the religion (or more precisely Mohamed) than its believers. Part of any argument for dissuading people from supporting a religion - an aspect of the proselytism which the Court's case law protects - may be an argument that the heroes of that religion have feet of clay. And as for "libel", the court doesn't use that phrase (or "defame", as I point out), presumably because you can't libel the dead. (Conversely, saying that specific *living* Muslims are pedophiles would quite rightly attract libel claims). People are entitled to contest the accuracy of these criticisms of Mohamed by means of the arguments you link to; that's what freedom of expression is all about.Delete
My hypothesis that Elisabeth Sabaditsch-Wolff wants to paint all Muslims as pedophiles is confirmed. She says that she fears for the safety of her daughter because she has Iraqi neighbors and there are 30 Afghans and Pakistani's across the street. https://youtu.be/wfpFUWyZocI?t=83ReplyDelete
She also says stuff like “Muslims rape children because of their religion” http://www.libertiesalliance.org/2009/12/05/interview-with-elisabeth-sabaditsch-wolff-i-am-against-dialogue/
Thus it is not criticism of a religion, but an attack on a minority.
The latter comment would fall within the Venice Commission's recommendation of defining hate crimes; which raises the question of whether it's better to fight these views by criminalising the people who make them and letting them play the "free speech" card, or by making counter-arguments.Delete
Firstly, psychological research proves that making counter arguments is counter-productive:Delete
“1. Arguing the facts doesn’t help—in fact, it makes the situation worse. In 1979, Charles Lord performed a seminal piece of research that revealed when you show someone factual, scientific evidence that they are wrong, they react badly. They will only accept the evidence that fits their pre-existing views. Lord called this effect “confirmation bias.” There have been hundreds of studies since, all finding the same results: when you argue using facts and evidence, people generally reject or discount your evidence. Instead of changing their minds, most will dig in their heels and cling even more firmly to their originally held views. Brendan Nyhan of Dartmouth and Jason Reifler of the University of Exeter have also documented an even more alarming tendency, which they call “the backfire effect.” In their study, correcting people actually increased their misperceptions.
2. Repeating the myth inadvertently popularizes it. When you repeat the myth while trying to debunk it, you do two things: first you introduce the myth to people who may never have heard it. As many as 40% then believe it. Second, by repeating the myth, you unintentionally convert ‘false claims into recommendations’ as one study shows. They found that after three days, older adults misremembered 28% of false statements as being true, but once the false statements were repeated three times, the number of people who confused them as being true jumped to 40%. So repeating wrong information, even to debunk it, backfires.”
Secondly, I don’t see the difference with libel about an individual. Imagine that citizen X lies that his neighbor Y rapes children. Why punish X (or force him to shut up) instead of demanding that Y makes counter-arguments? It seems to me that the same is the case with minorities. The Dutch politician Geert Wilders demonstrated at the Romanian embassy with billboards that Romanians are criminals and charlatans. In that period (I am a Romanian migrant), my clients started to make jokes about criminal Romanians. Thus, when they decided between me and my Dutch competitors, they considered the possibility that I might con them. Statistics and research show that Moroccans, Wilders’ prime target, are discriminated during hiring. This is also the result of continuous public utterances that they are criminal, undisciplined, liars, cheaters and that they don’t keep promises. Therefore, public negative utterances about minorities has negative effects on their economic welfare.
Thirdly, minorities do not have the same access to public debates. I have sent four letters about the trial of Geert Wilders to one of the biggest newspapers (which is considered lefty) and they were not published. One of my letters was almost identical with the later decision of the court, thus I knew my stuff (I have master in international law and took courses in human rights). In the same period that newspaper published 28 opinion pieces, 89% by native Dutch, 20 (71%) outspoken against the trial. Only two where outspoken pro-trial. The two letters from minorities, one was begging the Prime Minister to protect the minorities and the second was the story of a woman that was discouraged by the police to make a complaint. Thus there was NOT ONE opinion piece by a minority member arguing why Wilders should be tried.
Thus it seems to me that our counter-arguments fight an uphill battle. It is much better when the state defends our human rights.
Let's ask the same question about criminalisation in this case: is it effective, or counter-productive? The result of the prosecution is that instead of 30 people hearing the argument, many thousands more have heard it, and identify their side as the defenders of free speech.Delete
A counter-argument is not just a debunk or fact check. How did public opinion in many countries come around to the case for same-sex marriage - an outcome which would have been seen as incredible in the 1980s or beforehand? Why has public opinion in the UK regarding migration become less critical in the last two years? I don't think we can just assume that public opinion will never be persuaded, so the only recourse is to shut people up.
This is very useful, thank you. I have one issue, with your statement:ReplyDelete
"Its distinction between marrying one child and a preference for children in general comes across as sophistry."
Perhaps I misunderstand your point here, but this seems to me to be a valid and important distinction. Correctly speaking, the term pedophile refers to someone who is sexually interested in pre-pubescent children. To assume that marrying a child in the 7th century demonstrates sexual interest in children relies on an ahistorical understanding of marriage, for a number of reasons.
First of all, it's a misunderstanding of how marriage worked. Marriage does not mean an immediate sexual relationship. In societies that practice child marriage, it's common for marriages to be contracted when one or both of the partners are children, but not to be consummated until they have both passed puberty. This, indeed, is the position in the pre-modern Islamic legal tradition. While believers accept that Muhammad married Ayisha when she was pre-pubescent, they believe that they did not consummate the marriage until she had passed puberty. There's little reason to doubt it as it would conform with the norm in most pre-modern societies.
Second, and more importantly, to think that any particular marriage demonstrates a particular sexual interest relies on the assumption that marriage choices are driven by sexual desire. A key function of marriage is to legitimize sexual relationships, but this doesn't mean that a man chooses to marry a woman because he feels a particularly strong sexual desire for her. In the modern concept of companionate marriage, the sexual and emotional relationship is understood as the key element. But historically, this is an unusual model of marriage. In past societies, the economic aspect of marriage was generally more important, and for leaders, it was primarily a political institution. In this case, Ayisha was the daughter of Abu Bakr, a key ally of Muhammad. The marriage cemented their mutual political allegiance, and then Muhammad and Ayisha's relationship was an important element in the politics of the early Muslim community, with Ayisha becoming a leader in her own right. Of course, Muhammad may also have felt sexual desire towards Ayisha, but it's hard to argue that this was his primary reason for marrying her. Muhammad also married other women who were not young - in fact his first wife Khadija was middle-aged, considerably older than him, twice married and had several children when Muhammad married her. Muhammad's marriages tell us little about his sexual preferences.
Of course, although Ayisha had passed puberty when she consummated her marriage to Muhammad, she was still underage by our standards - around 9 or 10. But this is not pedophilia in a psychiatric sense. And it makes little sense to apply our age of consent to 7th-century Arabia. Marriage and child-bearing by post-pubescent women under 16 was common in most past societies, including Christian Europe and the Muslim world. Our concept of childhood extending far beyond puberty is very recent.
I think the court was right to highlight this distinction, because it explains why there is no defense of reasonable critique here. It's accurate to say that Muhammad married a child, and it's legitimate and necessary to discuss why this is problematic and why it shouldn't be replicated today. But it is neither accurate nor analytically helpful to call him a pedophile: this term serves only to insult Muslims and encourage islamophobia. Of course, this doesn't mean that it's a good idea to ban saying it.
But it's not unusual to discuss past events in light of modern standards - for instance slavery or colonialism. Why apply modern standards in those cases but exempt this one? Or conversely (and I suppose the court is getting at this), why focus on this one and ignore any evidence that hundreds of years ago, child marriage was more common than it is today?Delete
It's not about whether we discuss it in light of modern standards. The point is that pedophile means a person sexually attracted to pre-pubescent children and so applying it to Muhammad is inaccurate.Delete
This is a very informative post for everyone, Thank you for sharing this post. Keep giving updates so that it will be very helpful for everyone.ReplyDelete
Firstly, I simply fail to understand why are legal commentators harping continuously on the absence of a complaint from a Muslim organisation. Even in South Asia where the law of civil procedure recognises the concept of representative suits (i.e. one litigant representing an entire community), major constitutional and criminal judgements involving sensitive matters of religion are delivered irrespective of the religious identity of the complainant.Also, there may be various reasons why no Muslim filed a complaint. Fear (which has increased among minorities after the rise of the far right in Europe) maybe one of them. It must also be kept in mind that non Muslims who heard her speech may feel compelled to take direct action on being convinced that Muslims have a dangerously imperfect moral code. Thus the much feared breach of peace could have been caused by either of the two parties.ReplyDelete
Secondly, the author seems to have misunderstood the concept of paedophilia. Even those who sexually abuse children are not paedophiles. Only those who demonstrate a primary or exclusive interest in children are paedophiles. While curbing free speech merely because of the speaker's poor terminology would be incorrect, the Court emphasised on the distortion of facts because a serious value judgement that could have major implications for religious peace was passed without a sufficient factual basis. It was the gross misrepresentation of facts which revealed that the comment did not constitute critical engagement. Rather, it was thrown around as an epithet. The convict also failed to reveal that the same traditions tell us that the marriage had been solemnised when the bride was six. But the parties involved did not even cohabit till the bride turned nine.This showed that the Prophet(pbuh)did respect norms regarding the age of the bride. At that time, nine to year old persons were not regarded as unmarrigeable children. There are also other narrations which suggest that the bride was older. It was this sheer lack of nuance which showed that the convict intended to abuse and insult.
Thirdly, the author's distinction between the convict's statement and the example he has cited is a false one. I fact, some of the worst pogroms of the world were carried out not by those who listened to speeches that called for immediate unlawful action. Rather, systematic demonisation through mass media has always enabled genocide. Saying community x is vile and hence should be attacked does not carry the same dialectic force as "Community x follows a faith that reveres, idealises and glorifies a pervert."
Also, the author's comparisons with colonialism are incorrect. Colonialism was practised by the powerful and the strong only. Marriages with nine year olds on the other hand were the norm of the day. Even today, only modern colonialism is criticised. Ancient and medieval conquerors are hardly viewed as colonisers.
I think the ECtHR did the right thing.
Your comment presumes the answer to the very point at issue: whether people should be criminalised for making criticisms of religion which adherents of that religion believe are incorrect. As such it fails to rebut the argument against it. And arguments against colonialism are hardly about 'modern' colonialism only - Irish people sometimes refer to 800 years of history, for instance. Anyway, it's one thing to *argue* that people shouldn't view Mohamed's marriage by today's standards; it's another thing to criminalise them for doing so. Finally, as a parent choosing a babysitter and applying today's standards, I have to say I would be unimpressed by pedantic arguments about the definition of 'pedophilia'.Delete
As a general rule, I think that hatred or negativity directed at a set of religions is not acceptable. Then you have exceptions, such as general anti-religion, criticism of institutions, etc. In politics, this could translate into a CDU being acceptable, whereas Pegida is illegitimate. It is deeply unfair to electorates that unconstitutional choices are allowed to be presented to them. Nevertheless, free speech control has big loopholes for religion, immigration, and culture: the result is the far right, with bona fide democratic credentials.ReplyDelete
Unfortunately, loopholes even exist for skin colour/ethnicity. For some reason, statements like "we must stop Asian gangs" or, indeed, "Christian fundamentalist's car mounts pavement", are thought to be an acceptable level of hatred. It is such 'peaceful' hatred that is most widespread and insidious.
Naturally, many religions are to be considered characteristics that we have received, and they will be either placeholders for or otherwise equivalent to ethnic origin.
But criminalisation has manifestly not worked on its own terms: the applicant's party now forms part of the government in Austria.Delete
And therein lies a point that nobody has brought in much. The initial purpose of this prosecution I believe was likely political. The original charges against ESW were of incitement to racial / religious hatred but they were a non runner so mid process the charge under this blasphemy law was introduced - so they could convict her on something. This law has not been used apparently on other occasions against those breaking it in regard to Catholicism even when Catholics have complained. It was an attempt to smear via EWS the party to which she belonged.Delete
Except your claim is simply untrue. The earlier case law which the Court refers back to includes a number of cases where laws like this one were used after Catholics complained.Delete
Sorry , I have perhaps expressed myself badly. I did not mean that it had never been used in cases where Catholics complained but that there were cases when Catholics had complained and no action was taken. I still maintain that this prosecution was politically motivated.Delete
In the first part of my comment, I responded to some of the more specific criticism you levelled at various aspects of the judgement. As far as the more fundamental problem of criminalization is concerned,I pointed out that saying that a community views the approves the sexual choices of a criminal minded pervert can play a bigger role in enabling violence than statements that call for immediate unlawful action. In Rwanda and Nazi Germany,those who perpetrated pogroms did not act on the basis of incendiary statements of the sort you referred to. They were products of toxic,hate-infested societies.ReplyDelete
Also, your description of scientific distinctions as pedantic is rather strange. If psychiatrists and sexologists do not know science and the venom spewing alt right does,then this is a really crazy world to live in.This distinction rests on scuentifsc consensus.
Also, communities have their own way of telling history.But I doubt any professional historian will equate a William the Conqueror or a Julius Caesar with a General Smuts or a David Ben Gurion. A community which dislikes the exploits of a powerful rival nation is not necessarily telling a story of colonialism.
As a parent you may make the choice you made. A straight woman may not feel comfortable marrying a person who has shown bisexual tendencies on a previous occasion. However sexologists and social scientists will not necessarily charactwrise that person as 'bisexual'.To ask a court of law to ignore nuance and throw scientific distinctions to the winds and lay down a parental anxiety test is incorrect and uncalled for. A parent makes a deeply personal choice that affects their own life the most.A court judges a dispute which is a matter of public interest. Not being entitles to the deference which those making intimate choices have, it must not overlook the smallest of distinctions to ensure that the parties get complete justice.
You are still determined to frame this as a dispute over questions of fact; for me the core issue is whether people should be criminalised for getting facts (arguably) wrong. I am highly irritated by people getting facts wrong in my field - including those who misunderstood and misrepresented the context of this judgment - but I don't think the remedy for ignorance or dishonesty in such circumstances lies in the criminal law.Delete
I get the point. Punishing people for getting facts wrong is condemnable. However facts assume great significance in such cases because misrepresentation of historic truths about deeply revered personalities can have a much bigger impact on peace than speeches that call for imminent violence. The latter may lead to minor clashes and flare-ups. The former may trigger much bigger acts of violence. The Protocols of the Elders of Zion is an example of how distortion of facts fans hate.ReplyDelete
It is hard to isolate exactly what causes violence against religious groups - but then we move to the question of tactics. Did criminalising the speech in this case stop it from spreading further? No, it backfired on its own terms. Even libel law - which I agree should exist in principle, so that living persons have a remedy against false statements - seems to be of limited value if you look at the numbers who make false statements about Soros as an SS guard, etc.Delete
Undoubtedly, when Europe's top court decides a case like this one, the content of the speech will attract attention. Criminalizing speech means spreading the message of the speaker. But mere dissemination of hate may not have a big impact. It is the normalisation of hate which helps it become a part of the dominant barratnar. When top institutional actors put their foot down and take a stand against hate, they send a powerful message. Courts of law do shape popular perceptions. When powerful organs of the state fail to resist such attempts, citizens are may start viewing hate speech as just another form of socio-political expression. Normalisation is the first step towards popularity.ReplyDelete
Actually, I think the first step towards popularity is circulation, and this process has widely circulated these views. How has it stopped the views being normalised? That's more an issue about offering a platform - which, as I say, is not a human rights law issue unless the State is restricting speech (although the difficulty is that it will often be perceived as one, even if it's only the private sector removing a platform).Delete
Circulation is an unavoidable evil. Even "Community X is vile;let us attack them" will spread rapidly once the criminal legal process is triggered. The judgement has to record the statement in question before reaching a conclusion. Even in defamation and privacy cases, which involve claimants who are more interested in suppressing speech than punishing the speaker, the court does mention what the other party said. Witholding names often does not fulfill its purpose in the age of the Internet. So, preventing circulation is hardly an option in any case involving speech. What we can avoid is looking the other way as the preachers of hate rant.ReplyDelete
The decision to bring these proceedings hugely increased the circulation of these views.Delete
The only thing ESW was guilty of was sloppy and imprecise language. If she had stuck to saying that according to the Islamic scriptures Mohammed had sex with a nine year old girl and that this is highly problematic today because his veneration as a perfect model of conduct leads to Muslims condoning sexual relations with those whom modern societies consider children and such relations are forbidden by law, then she could not have been prosecute. However you would probably still make out that she was encouraging hatred against Muslims.Delete
Except that claim about what happens today is highly contentious, even libellous if levied at particular individuals.Delete
There are examples of Muslim majority countries that have wanted to outlaw underage marriage but have been forced to drop the proposals due to the vociferous outcry of their ulemas who argue that such proposals are unislamic as they go against the sunna of the prophet. They specifically cite Mohammed's marriage to Aisha. How is it contentious to point out that those Muslims who consider Islamic law as laid out by Koran and sunna should supercede the secular laws of the western countries they have chosen to live in are out of step with the mores of those countries? It is not hard to find examples of Islamists or conservative imams who claim that Islamic law comes first.ReplyDelete
Are there really large numbers of Muslim voters in non-Muslim majority countries arguing for an age of consent of nine? Was this what the politician was saying anyway?Delete
It's true that most commentators have misunderstood the role of the ECtHR especially in its giving of a margin of appreciation to states. I'd imagine most think it's similar to the US Supreme Court (or any other constitutional court) and that causes confusion. I've been highly critical of the margin of appreciation but I recognise that it's a political move more than anything. In other words, if it didn't exist we may see certain states leaving the Council of Europe.ReplyDelete
I did find one part of your article to be a little confusing. You say this
" But there needs to be a line drawn somewhere; a whole range of statements could trigger a potentially violent listener, so we have to exercise some judgement as to which statements should reasonably be criminalised."
Are you suggesting the line should be drawn at incitement to violence (as I inferred from your subsequent paragraph) or at hate speech? I am not in favour of hate speech laws for exactly the reasons you go on to give and, historically (especially in pre-Nazi Germany), hate speech laws have tended to help those promoting hatred than hinder them.
Thanks for your comments. I am suggesting that as far as the criminal law is concerned, the line should be drawn at incitement to violence. There might legitimately be a different place to draw the line in terms of employment, social media or other platforms etc.Delete