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.

Advertisement

Book Burning and Gay Bashing: The continuing First Amendment struggles in the United States.

In the recent decision of Snyder v Phelps the Supreme Court of the United States of America, acting in an 8 – 1 majority has affirmed the right to free speech guaranteed under the First Amendment of the US Constitution.  The case centred on the ever controversial presence of the Westbro Baptist Church at the funerals of military personnel killed in active service or combat.   In March 2006 the funeral of Lance Corporal Matthew Snyder, a soldier killed while on service in Iraq became the focus of the Church’s protestations against the willingness of the United States acceptance of homosexuality.  The church displayed signs such as “God Hates Fags” and “Thank God for Dead soldiers” close to where the funeral service was taking place. 

Why More Speech Does Not Always Work

The boundary between legitimate expression and hate speech in the United Kingdom represents the battle between rights and responsibilities and it has been tested recently. By way of contrast, in the United States the war has, by and large, been won by the right. This stark divergence requires us to answer the following question: why does freedom of speech demand some responsibility and how does this inform the limitations on that right?

In the UK case of Munim Abdul, the claimants had shouted slogans such as ‘burn in hell’ and ‘rapists’ at a parade of British soldiers. Later, they were prosecuted under section 5 of the Public Order Act and the High Court subsequently decided that this did not violate their right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). Gross LJ argued that the claimants’ actions went beyond ‘legitimate protest’. Isabel McArdle has written an excellent summary of the case here at the UK Human Rights Blog.

Protection or Prosecution for Hate Speech?

This month saw the continuation of two high-profile cases exploring the outer limits of speech freedom in the United States and the Netherlands.

In the United States, the U.S. Supreme Court heard oral arguments in Snyder v. Phelps, the case centering on a lawsuit brought by the father of a marine against the Westboro Baptist Church, after the fundamentalist church used his son’s funeral to spread its message that fallen soldiers are punishment for tolerance of homosexuality in the United States.  The central question in the case is whether the First Amendment of the U.S. Constitution protects the right of church members, who stood outside the funeral holding signs declaring Thank God for Dead Soldiers and God Hates You, to protest at funerals. According to the church, it has held more than 44,000 such protests over the course of 20 years.

Where do the boundaries lie for Politicians and freedom of speech?

Dutch politician Geert Wilders has recently been accused of inciting hatred against Muslims. In fact, his statements compared the Koran with Hitler’s Mein Kampf. The Dutch Court stated that freedom of expression was the core issue on trial. He wrote on a Dutch newspaper ‘I had enough of Islam in the Netherlands, let not one more Muslim immigrate’. In 2008, he released a short film called Fitna which include images of suicide bombings juxtaposed with Koran’s verses.

The ‘Value’ of Hate Speech

Is ‘hate speech’ always so valueless as to warrant its prohibition by international law?  Article 20 of the International Covenant on Civil and Political Rights not only condemns hate speech constituting incitement of discrimination, hostility or violence, but requires laws to prohibit it.  Identifying the point where free speech becomes hate speech, and therefore justifies a limitation on freedom of expression, has historically been riddled with problems:  set the standard too low and the potential objects of hate speech are left unprotected; set it too high and it risks becoming a tool of persecution for governments against their opponents.  At the recent Timely National Conference on Freedom of Expression in Kenya, the legitimacy of measures criminalising hate speech were considered, but there was no questioning of the definition of hate speech as “valueless” and therefore outside the scope of protection of international law.