Sticking up for God? The Case for freedom of expression encompassing religious criticism

Religious defamation as a legal concept was first proposed in 2009 by the UN Human Rights Council on the submission of Pakistan. It broadened the individualistic nature of human rights protection to cover very large groups. The adopted text of the 2009 Resolution stated that:

“Defamation of religious is a serious affront to human dignity leading to a restriction on the freedom of their adherents and incitement to religious violence,”

This move was widely criticised at the time as serving the interests of Islamic and African Nations, which comprised the majority of the 23 votes in favour (10 against, 13 abstentions). The resolution itself was very unclear on what religious defamation actually means, ranging from phrases such as: “Islam is frequently and wrongly associated with human rights violations and terrorism” Which seem to deal with generally offensive statements, to the more familiar territory of incitement to racial and religious violence. Whilst the latter is well known and dealt with under a variety of municipal legal systems through criminal law, the former suggests an extension of forbidden speech into the territory of ‘defamation proper’, that is to say, of private law.

Following the recent decision by the United Nations Human Rights Council to drop its policy on condemning religious defamation the question of whether rights to freedom of expression include rights to criticise particular religions has become all the more relevant. Indeed, the concept of religious defamation is a strange one in itself. When lawyers talk of defamation it is tied to the reputation of an individual. As put by Shakespeare’s Iago:

“Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash; ’tis something, nothing;
‘Twas mine, ’tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.”

(Othello Act 3, scene 3, 155–161)

By contrast, what analogous harm is done by attempting to steal the good name of a religion? True, it is always possible to claim that by ‘defaming’ a religious tradition, you attack the reputation of all those who follow it. But should we be so quick to jump from the general to the specific? To be sure there is an intuitive appeal to the proposition. However, Plato would have argued that the statement that when I criticise a group I criticise every member of that group is not logically valid; Plato wrote in his Republic, just because a band of thieves are individually strong does not mean that the group is strong and just because a band of thieves are weak does not mean that the individual thieves are weak. Similarly, claiming the stupidity or incorrectness of a religious belief, does not imply a claim that all followers of that religion are idiots or dreamers.

It pays to consider what else could justify a claim of religious defamation. The first point discuss is whether religious defamation can rest on the basis that certain beliefs should not be questioned because they are too dearly held? If one criticises creationist beliefs on the basis that they fail to comply with scientific method, what possible harm am I doing to the reputation of individual creationists? If exposing their beliefs makes them look silly, then we can hardly look to defamation law to avoid them the embarrassment. For a start it is true that they hold them. Secondly, no one has a right not to have their views challenged, no matter how dearly they are held. Should a theoretical physicist be sued in defamation if his new paper proves an old theory wrong? Religion and science are, broadly speaking, both cosmological belief systems. Why should protection be extended to religion and not to science when people can feel as strongly about both?

Can a religion truly be the subject of defamation?  Firstly, like all private law, defamation is the domain of rights and duties. I have a duty not to defame. But in the case of religion, who holds the right? Ideas cannot hold rights, just as fictional characters hold no rights. Lady Macbeth has never successfully pursued a claim in defamation against actors portraying her as sexually manipulating men other than her husband. Even if we hold the belief that God is the victim of defamation, it seems odd to imagine that such a being falls under the jurisdiction of any court. Certainly it would put equality of arms well out of the running. In the final analysis then, the common parlance of ‘insulting my beliefs’ must be understood as merely code for ‘I find it offensive that you question them and by extension me’.  If everyone has the right to question, then surely no one holds the right not to be questioned.

The real meat of the claim for religious defamation seems to be in questions of discrimination. This is of course a particularly serious matter and on which has coloured the darkest periods of our shared history. It is generally understood that statements about the evil of a particular group can and do exact expressive harm against those that are subsequently stereotyped into the derogatory ambit created for that group. Let us break this down into understandable stages:

  1. Person A makes an insulting statement 1 about group Ω.
  2. Person B hears statement 1 and is convinced.
  3. Person B encounters person C, a member of group Ω, and judges them accordingly.
  4. Person C suffers an affront to their reputation as a result.

 The first thing to note is that it is not only person A who is at fault but also person B. Expressive harm, like tango, requires two. The nexus of the problem, as I see it, is in the way that person B reacts. The problem with religious defamation is that it treats the wrong dealt to C as entirely the fault of person A, which clearly misrepresents the necessary context of an expressive harm scenario. As Germany submitted on behalf of the European Union when the Human Rights Council first considered the proposal:

“The European Union believes that a broader, more balanced and thoroughly rights-based text would be best suited to address the issues underlying this draft resolution.”

If we think that expressive harm is really that damaging then we need to address the problem of person B and his ilk. When there are no more person B’s, then person A will be treated like the pariah he should. The difficulty of addressing the problem posed by all those person B’s out there does not justify cutting corners. Indeed, this might be a job more suited to educational and social policy than private law.

Before finishing this blog entry I want to consider a case that came before the European Court of Human Rights some time ago, that of Otto Preminger Institute v Austia [1994] (Application no. 13470/87). In this famous case a screening of a film based on the play ‘Council in Heaven’ was shown in a private film studio. The film was highly satirical of the Christian religion, with parts of it being plainly offensive. The film was seized following a complaint and the Institute appealed, unsuccessfully as it transpired, and eventually brought a claim to the regional body. The ECtHR held that there was no violation of Article 10 (freedom of expression) in this case, on the basis that the state had struck a balance with Article 9 (freedom of thought, conscience and religion), which was within their margin of appreciation. They referenced the fact that the overwhelming majority of the local population were Roman Catholic.

Two things are worth pointing out here. If we are truly concerned about unfair discrimination then the numbers of people affected are entirely irrelevant. In my opinion the Court’s inclusion of this in their judgement was unprincipled and antithetical to a rights-based analysis. Secondly, the learned judges Palm, Pekkanen and Makarczyk in joint dissent pointed out that religious offense was no basis for a claim. They also suggested that Article 9 protects freedom of thought and conscience as well as religious belief, arguably covering the very same satyr that the majority argued that it forbade. In my opinion this has to be correct.

Firstly, as this discussion has highlighted, an influential  argument for religious defamation is that of discrimination. Discrimination is about the treatment of individuals within a social context, one may argue not the sensibilities of any particular group. One does not discriminate when one argues against the wearing of the burka on the basis of one’s feminist beliefs. One does however discriminate when one refuses to employ a person who wears a burka on that basis alone. The dissenting opinion, in my view, draws entirely the correct conceptual line between offense and discrimination.

Secondly, it must be the case that our freedom to practise our own religion comes not from the protected status of that belief system itself, but rather from the protected status of our ethical autonomy. It is up to me to decide what I believe and what I consider important in life. If that is so then I cannot claim any wrong has been suffered by me when another vocally and even offensively disagrees with me. I find many of the priorities of others deeply misguided and even offensive. That doesn’t mean that I am wronged by their holding of them.

The international human rights community has praised the Human Rights Council to drop religious defamation, not only have we preserved the focus of defamation law as an element of private law but we can also re-assess many of our past decisions in light of this new move. Iago might have been wrong: the immediate jewel of the soul is our freedom to think, discuss and above all, question.

ALEXANDER GREEN

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