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.

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Can we please distinguish between speech and actions?

The distinction between speech and action matters. Shouting fire in a crowded theatre endangers people’s safety and so is not just speech but also an “action” that can rightfully be outlawed. In contrast, showing contempt by burning the US flag or a copy of the Quran is “speech” and so should not be outlawed. The act of burning an item of your own property is lawful, and the added contemptuous attitude amounts to speech. This is highlighted by the fact that the method of disposal of old flags recommended by the US military is … burning them, though respectfully. Likewise some Islamic authorities recommend burning as the method of disposal of old copies of the Quran that are no longer fit for reading.

Those in favour of free speech generally hold that any speech that stops short of incitement to violence, or otherwise putting people in direct physical danger, should be lawful and accepted. Those against free speech think otherwise. But they don’t want to admit to being against free speech; few people do. So they label those in favour of free speech as “free speech absolutists”, and begin their arguments with: “I am fully in favour of free speech, but …”. From there they muddy the water by trying to negate the distinction between speech and action.

What the Muslim Council of Britain unfortunately did not say about Louis Smith

Statement (unfortunately not) by the Muslim Council of Britain regarding the Louis Smith video and the resulting ban by British Gymnastics. (Link to BBC account)

As Muslims we greatly appreciate the freedom to practice and voice our religion in a country that has not traditionally been Islamic. Such freedoms can only exist in a country where people can dissent from, and indeed criticise, other people’s beliefs, political views and religions. We recognise that, from Swift’s A Modest Proposal to Monty Python’s Life of Brian, Britain has a long tradition of satire and mockery that examines and holds to account both political and religious beliefs.

We maintain that truth has nothing to fear from examination, and that only falsehood and error seek the protection of censorship. Holding our religion to be the highest truth, we declare that it is far beyond being damaged by satire or mockery. We declare our truths to the world, openly inviting people to examine them for error. Critics please speak up, since we are confident that we can more than meet any challenge. If you want to mock us, go ahead!

The Southern Poverty Law Center brands Maajid Nawaz an “extremist”

So the Southern Poverty Law Center have now declared that everyone must submit to Islamic rules about blasphemy, and that if one does not then one is an “anti-Muslim extremist”. How have we come to this? How can it be that those who think that participation in a religion should be a free choice, and that we should not be obliged to submit to the rules and diktats of someone else’s religion, are now regarded as “extremists”?

It used to be the case that “free speech” included the right to speak in ways that upset people. The point was often made that speech that upsets no-one does not need protection; it is only speech that someone else does not want you to say that needs support from the fundamental principle that in a free society we need to be able to speak our mind and criticize others.

But no, “free speech” now has clear limits. If someone else is at all upset by anything you say, then you are making them “feel unsafe”, and making them feel unsafe is an act of violence. And if you want to pursue your speech down that road, then you are an extremist, the sort of person whom the Southern Poverty Law Center was set up to oppose.

Nigel Biggar is wrong on Charlie Hebdo and free speech

The conflict between Free Speech and Islam is surely going to be a defining battle of the 21st Century. Worryingly, many in the West consider that the best way to defuse the battle is to make concessions to Islam. For example, take the article just published in The Times by Nigel Biggar, the Regius Professor of Moral and Pastoral Theology at the University of Oxford (non-paywall article version).

Biggar writes:

Why are we allowing student unions to veto speech?

The principle of free expression is increasingly under threat across the Western world. Speech that might upset or annoy someone is being categorised as “hate speech” and thus placed beyond the pale in acceptable society. According to a recent Pew poll, 38% of British people now agree that the government should be able to prevent people saying things that are offensive to minority groups. Worryingly, even fewer support free speech in the rest of Europe.

And of course it would be entirely up to those minority groups to tell us what they deem offensive, which would allow them a veto over all public discourse. Nor are such concerns merely theoretical. Currently we have a preacher being prosecuted for describing Islam as “Satanic”. Whatever happened to the very bedrock of Western liberties, Voltaire’s: “I disagree with everything you say, but will defend to the death your right to say it”?

No “reasonable accommodation” for religion!

Baroness O’Neill, chair of the UK’s Equality and Human Rights Commission, has recently given a speech, hosted by the Theos think tank, on freedom of expression and religion of religion. There is much that is good in the speech. In particular I agree wholeheartedly with her view that:

There is no way of securing freedom of expression if we also maintain that there is a right not to be offended. Speech acts that incite hatred, or that intimidate, or that defraud, or that abuse, can be regulated without putting freedom of expression at the mercy of others. But if there were a right not to be offended, this would put everyone’s freedom of expression at the mercy of others.

Baroness O’Neill counsels:

What then should one do if one hears, reads or sees something that one considers offensive, perhaps deeply offensive? The basic thing is to remember is that unless the offending speech act was wrong in some further way (e.g. it was defamatory, or incited hatred, or was fraudulent), no right has been violated, and no remedy of the sort that respect for rights requires is needed.

But, there is one major area where I want to argue that Baroness O’Neil is misguided. And this is the fundamental matter of what we mean by “freedom of religion”. The Baroness says that: