The European Court guts free-speech protections

Just as Ireland votes to repeal its blasphemy laws, the European Court of Human Rights has ruled in favour of Austrian blasphemy laws. They’ve upheld the conviction of a woman who was fined for calling Muhammed a “paedophile”, a reference to his marriage to Aisha, which according to mainstream Islamic tradition occured when she was six, and was consummated when she was nine.

I presume that the underlying logic goes like this. In keeping with trendy modern thought, they analyse everything in terms of power structures. Muslims in Austria are mostly a relatively recent immigrant community and are non-White, therefore they are “oppressed”. The convicted woman is a member of the Austrian “Freedom Party”, who are opposed to immigration, are regarded as “far right”, and are mostly White. Therefore they are the “oppressors”. And it’s the job of a Human Rights court to support the oppressed against the oppressors, so that’s how they ruled.

The convoluted excuse they came up with is that Muhammed continued to be married to Aisha when she was an adult, and indeed had sexual relations with other women, and therefore was not “primarily” attracted to under-age girls, and therefore the term “paedophile” is an unjustified insult. (Never mind that the vast majority of people who rightly get called “paedophiles” also have sex with adults.)

But it’s worth reading the Court’s analysis of Article 9 (freedom of religion) and Article 10 (freedom of expression) of the European Convention, because their interpretation totally guts Article 10 and means that Europeans now have little free-speech protection, at least when the topic is religion.

Article 9 declares:

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 worship, teaching, practice and observance.

In the ruling, the ECHR starts well:

Those who choose to exercise the freedom to manifest their religion under Article 9 of the Convention, 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.

But then proceeds:

As paragraph 2 of Article 10 recognises, however, the exercise of the freedom of expression carries with it duties and responsibilities. Amongst them, in the context of religious beliefs, is the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 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.

This is important. The ECHR has segued from respect for people’s right to hold and practise their religion, to respect for the religion itself. It is saying that people cannot be properly free to hold and practise their religion unless everyone else has a duty to “avoid as far as possible” saying anything “gratuitously offensive” about that religion.

That doctrine is not in Article 9 and it is not in Article 10. It appears to have been created by the ECHR through case law. To justify it they cite previous rulings, but do not point to where the “right” is enunciated in the European Convention itself.

Indeed, the main citation given is to Sekmadienis Ltd. v. Lithuania. But there the court rejected the limitation on free expression, saying that a clothing company was entitled to advertise clothing with slogans such as: “Jesus, what trousers!”, and “Dear Mary, what a dress!”. They declared that a prohibition on this was “not necessary in a democratic society”! That ruling does indeed refer to “the protection of public morals and the rights of religious people”, but it does not enunciate nor defend any right to have ones religion not be insulted.

And might one suspect that the real difference between the two rulings is that the Lithuanian one concerned the Christian religion?

The court continues:

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 …

But this is simply wrong. Respect for someone’s “freedom of thought, conscience and religion” is not the same as respect for that person’s opinions, it’s only respect for their right to hold and express them!

That difference is crucial, indeed it is the whole basis for modern democracy. Insulting someone’s views is not “intolerant”; trying to prevent them expressing those views would be intolerance, but publicly denigrating those opinions is not!

We can be as insulting as we like about government policies or about the policies of political parties that we are opposed to. That is not intolerance. And newspapers routinely run political cartoons that could be construed as insulting. Indeed, so long as we accept the right of a party to broadcast its views, campaign in an election, and the right of people to vote for that party, then we are not being intolerant. Tolerating something is not the same as respecting it!

Having — wrongly — interpreted Article 9 as including a right to have ones religion not be insulted, the ECHR then declares a tension between Article 9 and the free expression of Article 10.

The issue before the Court therefore involves weighing up the conflicting interests of the exercise of two fundamental freedoms, namely the right of the applicant to impart to the public her views on religious doctrine on the one hand, and the right of others to respect for their freedom of thought, conscience and religion on the other.

But, again, there is only tension here if ones right to “freedom of religion” includes the right to have ones religion respected, not just tolerated. It doesn’t.

Article 10 declares that freedom of expression:

… may be subject to such … restrictions or penalties as … are necessary in a democratic society … for the protection of the … rights of others …

And since, according to the ECHR, Article 9 entails a right to have ones religion not be insulted, it is then (they think) “necessary in a democratic society” to prevent people “gratuitously insulting” a religion. And such restrictions are then not a violation of Article 10.

The ECHR thus upholds the Austrian conviction because it:

… carefully balanced her right to freedom of expression with the rights of others to have their religious feelings protected …

This guts the free-speech provisions of Article 10. If people have a right to “have their religious feelings protected”, then all someone need do is declare that someone else’s speech hurts their religious feelings, and suddenly there is no right to say it. There is only the much weaker idea of a “careful balance” between “freedom of expression” and people’s “right to have their religious feelings protected”. In other words, we all have to be very careful what we say when we criticise religion.

And that’s not all, by the logic of the ruling, the “right to have ones religious feelings protected” has now been declared to be a part of Article 9 and restrictions on free expression in order to ensure that are now “necessary in a democratic society”. So this ruling extends out of Austria to the rest of Europe.