JURIST Guest Columnist Bernard Freamon of Seton Hall University Law School says that Danish prosecutors should revisit their decision not to charge the Danish newspaper editors responsible for the initial printing of the satirical Muhammad cartoons before the worldwide violence over their publication and republication gets even more out of hand…

People demand freedom of speech as a compensation for the freedom of thought which they seldom use

— Soren Kierkegaard

It is my duty as a Muslim African-American law professor to offer a brief comment on the Danish newspaper Jyllands-Posten‘s publication of cartoons satirizing the Prophet Muhammad and the subsequent republication of those cartoons by other newspapers around the world.

The incident and the furor it has created, including the violence and needless loss of life, raise profound questions about the continued viability of a liberal and universalist approach to free expression in our rapidly changing and increasingly pluralist world. Constitutional lawyers who want to blindly defend the action of the newspaper forget that the idea of freedom of expression evolves and deepens as history progresses; the issues surrounding free expression today are considerably different from the issues that confronted Justice Holmes when he penned his famous dissent in Abrams v. United States in 1919.

By the same token, Muslims should also be deeply concerned because, by their reaction to the events, Islam-bashers (and even some so-called Muslim governments) now see that much of the Islamic world suffers from a huge complex about its role in history; they are craftily using this sensitivity to provoke Muslims to commit senseless acts of violence that do not uphold or further the banner of Islam and the values that the Prophet Muhammad sought to inculcate in all of us. It is indeed frightening that in many ways both sides are acting unthinkingly.

Islam teaches that vilification of any religion, not just the Islamic religion, is reprehensible and must be condemned in the strongest terms. Those who want to scrub our public places clean with some sort of secular soap don’t seem to understand this or they don’t want to accept it. Muslim scholars assert that there are five primary purposes of the Shari'a. The second most important purpose, after preservation of life, is the maintenance and protection of religion in people's lives. Many Muslims, particularly Muslims in the Arab world, also don't understand this principle, as we frequently find all kinds of statements in the Arab press vilifying the Jewish religion and Jewish people. That must stop also. Two wrongs certainly don't make a right however. The Shari’a demands that we must condemn any statement that vilifies someone's religion, where the statement is made for no other purpose other than to vilify, ridicule, or foment hatred.

Muslims are therefore very right to vigorously condemn the publication of the cartoons and to seek to punish the editors through the criminal law process. There is no room in the public square, it seems to me, for the race-baiter or religion-baiter who acts with the intention to injure or harm others. If these cartoons are in fact a Trojan Horse for such behavior the editors must be exposed and punished. We should remember that the Rwanda genocide was preceded by radio broadcasts that described Tutsis as “cockroaches” and supposedly innocently listed the names and addresses of people who were later murdered by Hutu mobs, simply because of their ethnic origin or association with the Tutsis. The International Criminal Tribunal for Rwanda rightfully rejected the free expression defense offered by the radio broadcasters at their trial for genocide and crimes against humanity.

There seems to be some support for my position in Danish law governing the original publication of the cartoons in Jyllands-Posten. Denmark ensures freedom of expression through application of Article 10 of the European Convention on Human Rights. The European Court of Human Rights, which interprets and enforces the Convention, has recognized that freedom of speech is “one of the essential foundations of a democratic society,” and that the right “is applicable not only to ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.” This right of expression is particularly important for the media, which must “impart information and ideas on matters of public interest.”

Freedom of expression under the convention is not, however, an absolute right. While section 1 of Article 10 of the convention broadly grants freedom of expression, section 2 imposes a number of important restrictions. For example, it allows restriction of freedom of expression when necessary “for the protection of the reputation or the rights of others.” This would permit legal actions for libel and slander but it would also allow governments to criminalize hate speech. In fact, Denmark has such a criminal law, section 266b of the Danish Penal Code. That section authorizes criminal prosecution and conviction of any person “who publicly or with the intention of dissemination to a wide circle of people makes a statement or imparts other information threatening, insulting or degrading a group of persons on account of their race, color, national or ethnic origin, belief or sexual orientation…”.

A Danish district court in Herning has interpreted the phrase “dissemination to wide circle of people” to include an e-mail listserv of 47 people and convicted a member of the Danish People’s Party for distributing an e-mail that contained degrading and insulting statements about Muslims. In addition, Danish courts have held that the statute covers both oral and written expressions, pictures, caricatures and also symbolic acts or objects. As a result, they have interpreted Code 266b to prohibit cross burning. In the area of hate speech or speech implicating racial or group discrimination, Denmark further restricts freedom of expression by its ratification of the International Convention on the Elimination of All Forms of Racial Discrimination (1965) (“ICEAFRD”). ICEAFRD obliges Denmark to “condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races.” Under this convention, Denmark may restrict hate speech when the circumstances, taken as a whole, show that such speech or expression promoted racial discrimination or hatred.

Under both these standards it appears to me that the Jyllands-Posten publication of cartoons satirizing the Prophet Muhammad with depictions and caricatures may very well be a violation of Danish Penal Code section 266b, if it can be shown that the editor knew that the religious sensibilities of Muslims would be deeply offended by the caricatures and that he intended to stir hatred and ridicule with their publication.

In September, Danish prosecutors, acting on a complaint by Danish Muslim clerics, nonetheless refused to authorize a criminal prosecution of the newspaper editor under section 266b. In my view, this was a patent abuse of their discretion and a blatantly political decision. They ought to revisit it. The issue should be decided by a Danish court. Danish prosecutors certainly must know Denmark is becoming a hotbed of skinheadism and anti-Muslim and anti-immigrant violence. Do they
want their newspapers to fan these flames? They should not wait until they have a situation like that in Rwanda before they act.

Bernard K. Freamon is a professor of law at Seton Hall University, where he writes on Islamic jurisprudence and Islamic legal history
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