Silenced: How Apostasy and Blasphemy Codes Are Choking Freedom Worldwide (50 page)

The pastor’s alleged offenses ranged from direct criticism of Qur’anic teachings to warnings about Muslim immigrants. Among them were criticisms “that the Qur’an promotes violence, killing and looting”; that it promotes abuse of women and domestic violence; “that Allah is not merciful and a thief’s hand is cut off for stealing”; that terrorists are true Muslims based on the Qur’an; that Muslims are religiously obligated to fight Christians and Jews; and “that Muslims have a plan to overrun western democracy by the use of violence and terror, and to replace those democracies with oppressive regimes.”

Judge Michael Higgins of the Victorian Civil and Administrative Tribunal held Scot liable because his remarks were “essentially hostile, demeaning and derogatory of all Muslim people, their God, Allah, the prophet Mohammed and, in general, Muslim religious beliefs and practices.” The court reasoned that Scot’s lecture gave an “unbalanced” view of Islamic theology; in fact, the judge, who showed no sign of expertise in the subject, ventured deep into theological territory.
⁸
Scot was found at fault for interpreting the Qur’an in accordance with “Wahhabists,” which the judge opined “bear no relationship to mainstream Muslim beliefs and, in particular, Australian Muslims.” He also stated that Scot’s “credibility” was in doubt, in part because, during his defense, he had cited two Qur’anic verses that produced an unfavorable impression of Islam without citing a third that the Judge strangely described as “a pro-Islamic verse.”
⁹

Nalliah was found to have incited hatred of Muslims through a mix of political and theological assertions. In a newsletter article entitled “2002—Will Australia Be a Christian Country?” he had questioned why, in his view, Muslim immigrants receive visas to Australia more readily than Christian refugees. He also said that Christians are frequently killed in Muslim-majority countries, suggesting that Australian Christians could be killed and that other dangers could ensue from alleged Islamic infiltration of the West. In addition, Nalliah had posted on CTFM’s Web site a third party’s article that called Islam inherently violent, claimed that the Qur’an teaches hate, and “suggests that the prophet is a pedophile.” This article was judged to have made “no attempt … to distinguish between moderate and extremist Muslims.”
¹⁰

The pastors were found in violation of the law and ordered by the tribunal to publish, under their names, a prepared statement that would have barred them for life from repeating their statements about Islam—and, in effect, from teaching what they believed as Christians. The pastors appealed and also lodged a complaint against Judge Higgins on the grounds that during the case he had himself “ridiculed” Scot’s own religious beliefs. The Supreme Court of Victoria ordered a retrial on the basis that the lower court had paid insufficient attention
to “the distinction between hatred of the religious beliefs of Muslims and hatred of Muslims because of their religious beliefs.”

In June 2007, the Islamic Council dropped its suit.
¹¹
Despite this favorable outcome, Pastor Scot noted that his defense had cost him “hundreds of thousands of dollars in legal fees.” Not only had the ordeal lasted nearly three years, but it damaged his reputation, costing him speaking engagements. Anti-vilification laws, he argued, amounted to “blasphemy laws in disguise.”
¹²

Despite clear Western opposition to the efforts of the Organization of the Islamic Conference (OIC) to legislate an international prohibition on “defamation of religions,” the Western world equivocates between upholding the right to freedom of expression and calling for its curtailment in the name of religious sensitivity. Many Western countries, though not the United States, have laws prohibiting speech that insults religious groups or “incites to hatred and discrimination” and, to a lesser extent, laws on public order that are used to curb controversial statements on religion and bans on blasphemy.

Bans on hate speech had their origin in concerns about Nazism and have been justified as a necessary protection for minorities. More recently, the bans have come to prominence because of fear of religiously motivated violence against, and from, Muslim minorities. Demands to respect Islam are being answered, in part, by support for laws against hate speech. While in recent decades, Western blasphemy laws have been dying out, religious hate-speech laws, which focus on perceived injury to religious feelings, are serving as proxies for them.

There is no clear definition of “religious hate speech” in either national or international law, leaving individual countries and courts to develop their own interpretations and regulations. To some extent, these interpretations depend on whether the laws are based on international treaties prohibiting speech targeting people on the basis of religion, race, and other groupings, or whether they ban speech that specifically offends religious beliefs. Over the last century, bans on religious hate speech have increased while enforcement of blasphemy laws has declined. In both politics and law, the distinction between blasphemy bans and hate-speech laws has become increasingly blurred. The result is a direct denial of individual freedoms, an indirect chilling of speech, legal confusion, rising sectarian expectations of further restrictions, the exacerbation of tensions among religious groups, and secular courts being
put in the untenable position of pronouncing judgment on the doctrines of a multitude of religions.
¹³

Europe’s history of blasphemy laws is a reminder that bans on religious criticism, dissent, and insult have not been the exclusive preserve of Islam. In Europe, blasphemy against Christianity has incurred penalties ranging from short prison terms, to physical mutilation for repeat offenders, to capital punishment. Through British colonial influence, blasphemy prohibitions spread to Australia and North America. In 1660, a Quaker woman was hanged on the Boston Commons for blasphemy, one of the last examples of execution for such crimes in what is now the United States.

By the close of the nineteenth century, most such Western laws were reformed to show leniency, fell into disuse, or were abolished. In the United States, there has never been a federal blasphemy law, and the six remaining state-level blasphemy laws are generally considered unconstitutional and are not enforced.
¹⁴
France abolished its blasphemy law in 1791.
¹⁵
England and Wales abolished theirs in 2008. A notable exception is Ireland, which, in early 2010, pleading constitutional necessity, introduced a blasphemy law that punishes speech “grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion”; following protest, a referendum to stop the law is to take place.
¹⁶

Most Western governments began to emphasize the need to protect believers, rather than religions, from offensive speech.
¹⁷
England’s common law on blasphemy, originally justified on the grounds that speech contesting Christian doctrine was a danger to the nation, was redefined in the late 1800s to cover only material unduly harmful to human feelings. “Mere denial of the truth of Christianity” would no longer be an offense if couched in decent language, but attention would be paid to whether expressions were “calculated and intended to insult the feelings and deepest religious convictions of the great majority of the persons amongst whom we live.”
¹⁸
There has been a gradual progression from protection of “God Himself,” to “faith in God,” to “securing religious peace.”
¹⁹
Western blasphemy laws have been increasingly understood to serve the earthly goals of preventing hurt feelings and social disorder rather than the theological goals of protecting the sacred.
²⁰

Today, most Western blasphemy laws carry fines or prison terms measured in months and are now invoked only in rare cases involving an insulting treatment of religious figures or symbols.
²¹
The trickle of recent prosecutions of blasphemy against Christianity has generally resulted in dismissal, acquittal, or, more rarely,
the suppression of “offensive material” without additional penalties for its creators. With rare humor, a Munich court even held that the show
Popetown
was “too dumb to be insulting.”
²²
More recently, Italian authorities have shut down websites featuring offensive depictions of the Virgin Mary and the pope. In 2005, they also brought charges against a comedian who joked crudely about the pope.
²³
Greece responded to a recent Council of Europe (CoE) survey by describing blasphemy trials there as “rather frequent,” though most end in acquittal.
²⁴
In 2005, a prosecution in Greece against the Austrian author of a religious satire entitled
The Life of Jesus
resulted in a lower court’s decision to order the first Greek book ban in twenty years, along with a six-month suspended sentence for the defendant. However, after international pressure, the conviction was overturned on appeal.
²⁵

Nevertheless, blasphemy bans in Europe have not been ruled out in principle. In the 1990s, the European Court of Human Rights—the court of last resort in such cases for the member states of the CoE—upheld national authorities in two major cases that restricted expression on grounds of blasphemy against Christianity.
²⁶
As recently as 2005, it upheld the conviction of a publisher based in France for violating an Islamic blasphemy law in Turkey. Although the court ruled against another Turkish blasphemy conviction the following year, it did so on factual grounds; the expression at issue was not “an abusive attack on Muslims or on sacred symbols of Muslim religion.”
²⁷
As the cases below show, there is a growing interest in Europe in applying blasphemy or quasi-blasphemy bans to protect Islam.

The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), binding on all CoE states, guarantees freedom of expression.
²⁸
It does not explicitly provide for a right of religions to be protected from blasphemy or persons to be protected from religious offense, but it does permit restrictions on expression in order to protect public safety, order, health, or morals, as well as the reputation or rights of others. It is these restrictions that the European Court relies on to uphold both blasphemy and hate-speech bans. European regional judges have cited the rationale of protecting the “religious feelings” of groups and individuals and a “right not to be offended,” rather than protecting the sanctity of religious teachings perse.

Using the same controversial tactic as the OIC at the UN, the European Court has attempted to carve out a new right not to have religious feelings offended from what was originally intended to be a narrow exception to a general right of free expression. European judiciaries now struggle to reconcile freedom of expression with this “right” of protected feelings, with cases often turning on whether the speech was a “gratuitous insult.” The European Court
uses the criterion of “gratuitous” insult to allow a right not to be offended to trump freedom of expression, thus making an exception to free speech into the new rule.

For twenty years, the European Commission of Human Rights and European Court, in cases involving pornographic or mocking representations of sacred Christian figures, repeatedly held that authorities may legitimately ban publications, seize films, and punish their authors in order to protect the “rights of others”—namely, “the right of citizens not to be offended in their religious feelings.”
²⁹
While, with a restructuring, the commission became largely obsolete in 1998, the European Court has continued to maintain that freedom of expression includes “a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profanatory.”
³⁰
For much of Europe, religious freedom is coming to mean that people have a right to be protected from offense to their religious feelings that can override freedom of expression.

These rulings focus on whether the expression is “extreme,” “provocative,” or an “insult.” While maintaining that religious persons “must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith,” the European Court nonetheless asserts a state interest in regulating “the manner in which religious beliefs and doctrines are opposed or denied.”
³¹
It has also asserted that there can be more state regulation of expression regarding religion than of politics, even though the two are often intertwined. It has also defended the ambiguity and unpredictability of blasphemy and religious hate-speech prohibitions by declaring that blasphemy “cannot by its very nature lend itself to precise legal definition” and that what might produce offense would “vary significantly from time to time and from place to place, especially in an era characterized by an ever growing array of faiths and denominations.” These relativizing complications were simply deemed reasons to allow national authorities greater “flexibility” in adjudicating blasphemy cases.
³²

In 2005, for the first time, the European Court followed these precedents in upholding an Islamic blasphemy ruling. It supported Turkey, a member of the CoE, in
I.A. v. Turkey
, in which a publisher in France claimed that his freedom of expression had been violated by a Turkish court ruling that he had insulted “God, the Religion, the Prophet and the Holy Book.” The director of the France-based Berfin publishing house, which had published a novel depicting fictional sexual excesses by the Islamic Prophet, had been sentenced to two years’ imprisonment, later commuted to a fine. The European Court found it decisive that there had been “ ‘provocative’ opinions and abusive attacks on one’s religion” and ruled valid the Turkish law’s aim of “provid(ing) protection against offensive attacks on matters regarded as sacred by Muslims.”
³³