JURIST Guest Columnist Faisal Kutty of the Valparaiso University Law School says that the global community must engage in a serious debate over the limits of free expression as it applies to the defamation of cultures and religions, and that in order to do so the extremists on both sides must face their own hypocrisy…

“Derogatory, disrespectful and inflammatory,” were the words used to describe this exercise of free expression.

These words were not used to describe the Innocence of Muslims movie, but were uttered by Judge Jane Goodwin in criminally convicting British teen Azhar Ahmed two months ago for a Facebook status update celebrating the deaths of six British soldiers in Afghanistan. As distasteful as the status update was, it did not constitute a “threat.” As blogger Robert Sharpe rhetorically asks regarding this case: is the sacredness attached to soldiers who give their lives in the West any more worthy of protection than those attached to icons of Islam?

The Innocence of Muslims, a vile anti-Muslim movie, has brought to the fore a clash of extremes and re-ignited global interest in an issue once thought shelved. Rather than using this unfortunate turn of events to debate the issue meaningfully, extremists on both sides continue to douse fuel on the fire. Now that the smoke has cleared somewhat, it is time to reflect on this subject in a more sober fashion to try to find a middle ground between the two extremes.

Liberal Democratic Conceptions of Free Speech and the Hypocrisy of Limits:

The statement from the British court is just one example of the trite, but easily glossed over, idea that free expression is not only limited in the supposedly uncivilized Muslim world. Every society places limits on free speech. These limitations may be legally imposed or may be effected through social disapprobation, or both.

It is generally acknowledged that the free speech doctrine enjoys its widest berth in the US thanks to First Amendment jurisprudence. The doctrine evolved from a unique experience shaped by conflicting political, social and legal worldviews and compromises in the US. It was not until 1969 when the US Supreme Court, in striking down the conviction of a Ku Klux Klan member, established the Brandenberg v. Ohio standard, whereby speech can only be suppressed if it is intended and likely to produce “imminent lawless action.” But before we get too smug that we do not easily ban free speech, it would serve us to remember the conviction in the US earlier this year of Tarek Mehanna, a 29-year-old pharmacist born in Pittsburgh, of material support for terrorism. He was convicted for what he said, wrote and translated. The prosecution was based on the troubling standard of having the intent to support a foreign terrorist organization and not the Brandenburg standard of incitement.

Throughout Europe, there is legislation specifically limiting speech when it comes to denying the Holocaust and anti-Semitism. It is a punishable offense in at least 17 countries. Many armchair critics of the Muslim world would be shocked to learn that some of these laws forbid any expression that “minimizes,” “trivializes,” “belittles,” “plays down,” “contests” or “puts in doubt” Nazi crimes. In Hungary, Poland and the Czech Republic, laws extend this prohibition to communist atrocities. Some of these offenses carry jail sentences of up to five years.

Earlier this year France enacted a law making it a criminal offense to deny the Armenian Genocide. The Constitutional Council of the French Republic ruled that it was unconstitutional and President Nicolas Sarkozy promptly ordered a new draft of the law.

Moreover, the European Union’s Framework Decision on Racism and Xenophobia states that denying or grossly trivializing “crimes of genocide” should be made “punishable in all EU Member States.” Twenty-seven EU members have incorporated this into domestic legislation.

Motivation and incitement to hate are often deemed outright illegal in many western nations, including Canada. Even in jurisdictions with very liberal speech laws, incitement to hatred against certain identifiable groups is illegal. Anti-religious hate speech, in particular, is also illegal in many European nations. In fact, blasphemy is still on the books in about a dozen European states. The most recent legislation was only enacted by the Irish parliament in 2009. Interestingly, even the European Court of Human Rights (ECtHR) is on the record approving regulation of anti-religious speech, based on offensiveness. In 1994, in Otto Preminger v. Austria, the ECtHR upheld Austria’s banning, under its blasphemy laws, of a satirical film that mocked Christian religious beliefs. Given the high percentage of Catholics in Tyrol — a town where the film was to be aired — the ECtHR deferred to the national authorities “to ensure religious peace in that region” so that people shouldn’t “feel the object of attacks on their religious beliefs in an unwarranted and offensive manner.” More generally, the European Convention on Human Rights (ECHR), while protecting the right to “freedom of expression,” recognizes that its exercise is limited by justifications “necessary in a democratic society.”

As recently as October 29, 2012, the Supreme Court of Poland ruled against Adam Darski, who tore up a copy of the Bible on stage in 2007, and now a lower court will decide whether he is, in fact, guilty of blasphemy. He faces two years in jail. This raises the question why these laws have been impotent in too many instances when Muslims have been targeted. For our immediate purposes, it also confirms that, contrary to conventional wisdom, it is not only Muslims who believe in placing restrictions on speech in some contexts.

Muslims, Limits on Freedom of Expression and Double Standards:

From much of the discussion around this issue, it appears that Islam advocates extensive restrictions on free speech and imposes excessive penalties for blasphemy, among other offenses. The reality is much more nuanced. Indeed, as with any system of laws subject to interpretation, there are differences of opinion. This explains the great tradition of diversity within Islamic thought. Indeed, many mainstream Islamic positions of today were once considered heretical by the majority at one time.

As Mohamed Hashim Kamali and others point out, the Quran — prophetic teachings and the thrust of classical Islamic jurisprudence — supports “the vindication of the truth and the protection of human dignity” by guaranteeing the right to freedom of expression. There is much to squabble over within this assertion, but suffice it to state that the depth of Islamic legal traditions provide a legal foundation that is consistent in a modern, globalized context with an evolving international legal framework. There is strong precedent in the Islamic tradition to suggest that blasphemous speech targeted at any religion should be restricted. Yet, at the same time there is a small but growing number of scholars pointing out that that there is no criminal or universal sanction mandated in the Quran or by the prophet related to blasphemy. The other point to note here is that much of what is today being treated as divine law is the product of human agency. This fact, combined with the evolutionary and dynamic nature of Islamic law, gives us much hope for future reform of fiqh, or Islamic jurisprudential rulings.

This brings us to some of the severe penalties imposed in cases of blasphemy in Muslim nations. In many of these nations such laws are the legacy of colonial rule. A case in point is Pakistan, where the existing blasphemy laws date back to 1860 British laws against insulting religion to keep the peace. These laws, inherited after the 1947 partition, were tightened and expanded under General Zia Ul Haq in his 1986 attempts to establish his piety and win support from orthodox political parties.

Echoing the hypocrisy and double standards in the West, Islamic scholars for the most part have been reticent to speak out in any resounding manner due to potential backlash, but it is high time that the issue was confronted head on. This lack of opposition, the abuse of such laws and the scapegoating of minorities and dissenters in a long list of Muslim nations appear to justify the alarm bells and concerns expressed by advocates of freedom of expression.

It is high time for the community of nations to engage with each other to formulate a new consensus on what is and is not acceptable in the global community. This discussion about setting the limits must be open to the community of nations and it must allow all stakeholders to have an equal say. Rather than hysterically dismissing all calls to reevaluate cultural tension as leading down the slippery slope of banning all critical discussion of religion, it would serve us well to engage with the Islamic world in addressing their valid complaints about “Islamophobia” and work towards developing a new international consensus. Such a rule of law should be truly international, apply equally and universally and credibly enable a new awareness that there are certain inviolable norms that evolve out of the core traditions of all peoples. Indeed, given the existence of similar tensions between religion, hate and free expression in much of the world, the two sides may not be as far apart as many believe.

Faisal Kutty teaches at Valparaiso University School of Law in Indiana and serves as an adjunct professor at Osgoode Hall Law School in Toronto. His areas of interest are legal writing & reasoning, comparative law, international law, human rights and Islamic law. His most recent work on the intersection of common law and the Shari’ah appears in Debating Sharia: Islam, Gender Politics, and Family Law Arbitration published by the University of Toronto Press this past summer.

Suggested citation: Faisal Kutty, Free Expression and An Elusive Middle Ground: Part One, JURIST – Forum, Dec. 21, 2012, http://jurist.org/forum/2012/12/faisal-kutty-expression-religion-part-one.php