by Sam Ballantyne
The recent film The Innocence of Muslims incited a series of mob attacks on US embassies across the Muslim world; on this continent and on our campus, the movie sparked numerous lectures and academic talks. Many in the West drew a connection between those various European laws which restrict denial of the Holocaust or display of swastikas to those Muslim blasphemy laws, which prohibit movies like The Innocence of Muslims. Our own Dean Peter Awn, in an eloquent lecture reflecting on the events of those weeks, cited the French Gayssot law and noted that state restrictions on speech were hardly ‘a Muslim thing.’
This essay thus began as an exploration of relation between the Muslim prohibition of blasphemy and those European laws that ban denial of the holocaust – but, finding no useful equivalence, set out to define the principle which separates them.
A few notes. First, the comparison of the protests to laws is unfair. Though blasphemy is banned in every Muslim-majority country, the violent protests and attacks were illegal – and unpopular, as crowds made clear the next day. Laws can only be fairly compared to other laws, so a more accurate comparison would have been between the French Gayssot law and Egyptian blasphemy law: I’ll return to this later.
In the course of this, I’ll look at some of the relevant laws in Europe and the Muslim world. I’ll look at the International Covenant on Civil and Political Rights and the two tests that it sets up to determine when freedom of speech can be restricted. I’ll argue that only one of these two tests is sound, and that the other restricts some of the most necessary and reasoned speech. Fleshing out applications of that sound test, I’ll argue that European hate speech laws pass the test and Muslim blasphemy laws don’t.
Let us begin with the French. The Gayssot law, passed in 1990, criminalizes Holocaust denial in a round-about way: it makes it an offense to question the existence or size of the category of crimes against humanity as defined by the London Charter of 1945. In essence, it protects the findings of the Nuremberg tribunal from challenge. At the time, anti-racism legislation was proving insufficient to combat the rising tide of anti-semitism (manifested mostly in pamphlets, journal articles and interviews wherein louts voiced their skepticism over the ‘official’ account of the holocaust).
The most significant legal challenge came from Robert Faurisson, a professor of literature at the University of Lyon, who was removed from his post as a result of his public writings on the Holocaust: exemplified by “The Diary of Anne Frank: Is It Authentic?” His trials with this law have been such that he was awarded a medal of courage by noted human-rights advocate and Iranian President Mahmoud Ahmadinejad.
Faurisson brought his case to the United Nations Human Rights Committee, which reviewed it under the International Covenant on Civil and Political Rights. He went armed with a single, strong argument: the French law elevated the Nuremberg findings to ‘dogma,’ when in fact it was demonstrably flawed. True enough, certain Nuremberg conclusions have turned out to be flawed. Russia, to cite one example, had in the aftermath of the war effectively pinned the Katyn massacre on Germany.
This defense is telling. Faurisson was not prosecuted for scholarship relating to the Katyn massacre: he was not defending his right to blame the Russians, but rather something else. For in fact, France does not prosecute academics for examining the record on Katyn – nor for that matter, nearly any of the seemingly bottomless quantity of Holocaust scholarship that goes on year after year.
The French government’s case was equally simple. Every time racism was allowed to express itself publicly, the public order was immediately and severely threatened. The argument runs something like this:
The holocaust was a massive, state-lead genocide, in which the elected French government was massively collusive: majority rule, rather than minority right, had been absolute. In the wake of this, a check needed to be put in place against anti-semites winning democratic elections again. For what if they were to win again? Would they be allowed to take power? Would the Republic fall? Or would we wait to see how it played out? It is easy to see how public order was threatened by public anti-semitism: it exposed the government’s tenuous respect for individual rights.
This argument is grounded in history, and it casts hate-speech laws as a restriction on the state. Yet this set-up of Faurisson as a dangerous radical whose ideas threaten France is ridiculous. The French government actually had and has very little skin in the game. Faurisson is no Zola. Freedom of speech laws were designed to restrain government against its critics: Faurisson is not in any useful sense a dissident. (Had the French government allowed him to blabber on in his bilious way, his ire would have remained focused exclusively on the Jews and their defenders).
The Faurisson case at the UNRHC makes for a frustrating read. If the establishment of internationally recognized human rights – how to articulate them – was the challenge and triumph of the mid-20th century, the question of our time is no doubt to articulate with equal clarity the limits of those rights. Not because the rights themselves are truly dangerous, but because without a clear limiting rule, states will limit rights when they see fit.
Thus, 1996 saw a missed opportunity to settle this question once and for all. Rather than argue their cases directly, both sides argued sideways to their true positions: Faurisson argued for the right to some speech – namely, historical investigation of the war crimes committed in WWII – was limited by the same law which persecuted him, and that the law should be abolished. (This notwithstanding the fact that he himself was clearly uninterested in real historical scholarship.) France had to argue that this sad shadow of a man, reviled where not ignored, posed a serious threat to public order. Both arguments are transparently daft.
In the end France won her argument. The commission, noting that it was not in a position to criticize French law in the abstract, rejected Faurisson’s argument. His fine was 21,000 francs (€3,200).
Germany and Volksverhetzung
My colleague focuses most of his ire on German law. Having devoted so much time to French law, I will only note a few items in comparison, for I will later hold that both the French and German laws are reasonable by a very simple – and internationally recognized – test.
It almost goes without saying that if such a law is reasonable in France, it is reasonable in Germany. The latter, after all, had elected history’s most famous fanatic, which then perpetrated history’s most famous genocide. It was Germany who had twice brought the world to industrial war.
The most relevant German law, Volksverhetzung (hate crime law), is too long to quote in full. Section 130.1 is representative:
Whosoever, in a manner capable of disturbing the public peace:
1. incites hatred against segments of the population or calls for violent or arbitrary measures against them; or
2. assaults the human dignity of others by insulting, maliciously maligning, or defaming segments of the population
In a community that feels threatened by the majority, a relatively limited number of crimes can have an outsized effect, as members of that community feel scared to participate in the public marketplace of economy and ideas – something in which the state has a vital interest. One murder which takes place in a climate of fear can be stultifying. It took relatively little violence, for example, to suppress the American gay rights movement throughout the 1950’s, 60’s and 70’s.
Thus: the German law. Those Jews who returned to live in Germany after WWII faced an entirely rational fear of the society at large. Those masses who but years before had engineered their annihilation were now once again the builders, bakers, politicians, and teachers of the new Germany. It would not take much to make going outdoors feel dangerous and participation in the public forum out of the question.
We have seen that France and Germany both have typical examples of hate-speech laws on their books. But what of the redcoats and their benign, venerable theocracy?
Indeed, it is in Britain and her former colonies where we can find true Western blasphemy laws. Though Britain repealed hers in 2008, Canada, New Zealand and others still have laws on the books, which make it an offense to publish a blasphemous libel. This libel was understood to mean against the Christian God and prosecutions were uniquely in this vein.
These laws were largely forgotten in the course of the 20th century. But not entirely. And as multiculturalism took root in Britain in the second half of the 20th century, this lead to some ugly double standards. The government was petitioned to prosecute Salman Rushdie for blasphemy in 1989 – it declined, politely, arguing that the blasphemy laws were a historical relic, meant only to protect Anglican beliefs. Indeed, in 1977, the British government had prosecuted a travel writer who publicly read The Love that Dares to Speak its Name, a poem from the point of view of one of (apparently gay) Jesus’ persecutors. Critical lines include:
As they took him from the cross
I, the centurion, took him in my arms-
the tough lean body
of a man no longer young,
but well hung.
The original recitation, on the steps of St Martin-in-the-Fields in Trafalgar Square, led to the prosecution and near-imprisonment of the poet and publisher. Yet, the case was a controversial one, and it was clear that the public will to prosecute such harmless speech was waning. In 2002, the reading was repeated and the poem republished. Lo: there were no prosecutions.
Britain was, at least within her family of nations, the last to abandon such stupid laws. Canada last prosecuted a citizen under these laws in 1935; Australia in 1919; New Zealand in 1922; America in 1838. While the absence of political will to expunge them is of some interest, the unenforced blasphemy laws themselves cannot be considered a part of the states’ protections of religion.
Indeed, one may look at the ongoing despotism of the Anglican church and the rising atheism of Great Britain and conclude that Kipling had it right a century ago:
By all ye cry or whisper,
By all ye leave or do,
The silent, sullen peoples
Shall weigh your gods and you.
The International Covenant on Civil and Political Rights
So: why the British exception? In an era of European integration, is Britain an outlier, liberalizing its speech laws as Europeans restrict theirs? Not really.
It is high time I elucidated the principle which divides these two sets of laws. First, as you have no doubt caught on, we’ve been discussing two sorts of laws: Holocaust-denial laws (now understood as a category of hate-speech laws) and blasphemy laws.
As I mentioned earlier, there are two provisions in the Covenant on Civil and Political Rights which outline the legitimate restrictions on freedom of speech. Article 5.1, which is general to the entire covenant:
Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.
Thus, states may restrict rights and freedoms when they are aimed at the destruction of other rights and freedom. And article 19.3, which is directed specifically at speech:
The exercise of the rights… carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
The difference between these passages! The first is so clear, so simple, so sound. The second, so vague: speech must respect the reputations of other? I suspect most of my speech fails to meet this criteria: how often do I defame city transportation employees? How often Crack Del?
We can see now how article 5.1 of the Covenant, which allows the restriction of any right or freedom aimed at the destruction of any other right or freedom, clearly supports the European Holocaust-denial laws. In certain circumstances, where minorities communities feel threatened by the majority and are right to do so, hate speech limits the extent to which they can participate in public life. This is a fundamental freedom, and the destruction of it – which is the intent and effect of hate speech – is not protected. These hate speech laws are also very narrowly drawn – it isn’t enough for instance, to simply express hate: the statements must come out of a context of violence.
Furthermore, there is a condition, which has to be met for this definition to be relevant. The community in question must have reason to fear the society in which it lives – indeed, this should be established as a matter of judicial fact. This notion is thus fundamentally grounded in historical reality.
It’s long been understood that my faith, or lack thereof, is not threatened by yours, and vice-versa. Indeed, whether you think Mohamed a prophet or a fraud, Jesus a king or a queen, it has no bearing on my right to free exercise. Those benighted souls who take it upon themselves to remind subway-goers about the late Savior do not impede my atheism. Nor, apparently, does my atheism have any effect on them. Indeed, it is substantively inadequate to the task of destroying the rights and freedoms of others.
I’ve outlined a moment where it is appropriate to place restrictions on speech: when it is aimed at the destruction of others’ rights and freedoms. I’ve noted that denials of historically factual genocides, in a context of recent violence and widespread anti-semitism, constitute an obvious threat to the ability of Jews to take part in the public forum. It should go without saying that this principle is not similarly applicable to the protection of a majority community. This is overwhelmingly the case in the Islamic world, where countries like Pakistan, Iran, Egypt, Algeria and Morocco combine majority rule with majority right.
Islamic Blasphemy Laws: an overview
The states that make up the Muslim world are nearly all theocracies. Had I more patience for this sort of thing, I would refer to them throughout this paper by their full names: the Islamic Republic of Pakistan, the Islamic Republic of Afghanistan, the Islamic Republic of Iran. The Arab countries are different – People’s Democratic Republic of Algeria, or the Arab Republic of Egypt – but “Republic” only in name, as nearly all note early in their constitutions that Islam (not just Allah) is the source from which these law are derived. Turkey is a shining exception; and the former governments of Syria and Iraq were both Baathists who aspired to some sort of secular socialism, however terribly.
This combination of religious authority with state authority is obviously pestilent. A state founded on one religion cannot be truly tolerant of those who do not share its assumptions. Omar Khayyam, writing in Persia in the 12th century, felt as much:
And do you think that unto such as you;
A maggot-minded, starved, fanatic crew:
God gave the secret, and denied it me?–
Well, well, what matters it! Believe that, too.
Muslim states pursue blasphemy through either Sharia law – that heady blend of Quranic interpretation, scholastic consensus and medieval logic – or legislation. Nearly every Muslim majority country has laws on the books which make it a crime to criticize, ridicule, or defame Islam. Though there is too much relevant legislation to quote here, we have instead a plethora of actual cases – prosecutions based on these laws. It is to these which I will refer.
The extreme example is, as is so often the case, Pakistan, which punishes blasphemy by death, and which frequently celebrates those thugs, who take this brutish bit of nonsense to heart.
In 2005, Mohammad Younus Shaikh was fined and sentenced to life in prison for a book, which claimed that the Quran did not mention stoning as a punishment for adultery. As of writing, Asia Noreen Bibi, a Christian woman, awaits execution for blasphemy. Rimsha Masih, a Christian girl, awaits trial.
Nor are these laws or the prosecutions they engender unpopular. A cursory read of the Pakistani headlines following Malala Yousafzai indicated that the debate was not whether campaigning for women’s rights was acceptable, but rather whether it was so unacceptable that it justified her assault and murder. The Pakistani public polls routinely as the most thuggish in the Muslim world. According to a study by the Pew Research Forum, only 63% consider free elections important to a democracy. Uncensored media is considered important by a mere 28%. Witness also the celebrated murders of Salman Taseer and Shahbaz Bhatti, politicians who bravely challenged the blasphemy law.
Iran is no different. Ayatollah Hossein Kazemeyni Boroujerdi was arrested in 2006 for advocating separation of religion and state. In 2007, eight students were arrested for claiming that no humans, including Mohammed, are infallible. In 2009, a blogger convicted of criticism of religious leaders died in prison.
Egypt’s law actually protects all three monotheist faiths from ridicule, though the law is applied only in Islam’s defense. Coptics and Ahmadiyya – a reformist branch of Islam – are the most often targeted.
The most striking pattern to emerge here is the use of the blasphemy law to oppress minorities and dissidents. Reformists across the Muslim world are time and again accused of blasphemy against Islam – the exception being Malaysia, where opponents of the government are accused of sodomy. Where it is minorities being oppressed rather than dissidents, the charges are often taken up by politicians as an ethnic or religious wedge.
So we see here why section 5.1 of the ICCPR is so overwhelmingly superior to section 19.3 and the difference between Western and Islamic censorship. European states have the intention of protecting minorities, and the argument of preserving public order. Islamic states have the intention of preserving public order and the argument of protecting Islam.
The preservation of public order, when it is read to mean the legitimation of the present government, is an aim that has justified the repression of many of history’s most crucial thinkers. Socrates would not have passed muster. Nor, indeed, Mohammed. It should thus be cast aside as a test for speech.
Documents like the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights were triumphs of modern liberalism. It is always curious to see liberals – among whom I count myself, on Sundays and in the days leading up to American elections – back away from these towards relativism. They should have no illusions about the thuggery that lies behind these blasphemy laws. Not for nothing do Western secular countries speak of minority right and majority rule. Religious and ethnic majorities do not need protection from minorities, and governments do not need protection from critics.
The maintenance of public order and the reputations of others only require protection from the most extreme assaults: public incitement to violence, or libelous fraud. These protections all flow from the simplest principle, that we have certain rights and freedoms except when we aim them against the rights and freedoms of others. No further principle is required.