FacebookTwitterGoogle+RedditEmail

Freedom of Expression and the Hypocrisy of Limits

by FAISAL KUTTY

“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 in October of last year  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 convictionin 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 Brandenburgstandard 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, a lawyer, is an assistant professor at Valparaiso University School of Law in Indiana and an adjunct professor at Osgoode Hall Law School in Toronto. Follow him on Twitter @FaisalKutty

Faisal Kutty, is an associate professor of law and director of the International LL.M. Program at Valparaiso University Law School and an adjunct professor, Osgoode Hall Law School, York University. He is also a co-founder of KSM Law for which he serves as counsel. He blogs at the Huffington Post and his academic articles are archived at SSRN.

More articles by:

CounterPunch Magazine

minimag-edit

Weekend Edition
August 26, 2016
Friday - Sunday
Louisa Willcox
The Unbearable Killing of Yellowstone’s Grizzlies: 2015 Shatters Records for Bear Deaths
Paul Buhle
In the Shadow of the CIA: Liberalism’s Big Embarrassing Moment
Rob Urie
Crisis and Opportunity
Charles Pierson
Wedding Crashers Who Kill
Richard Moser
What is the Inside/Outside Strategy?
Dirk Bezemer – Michael Hudson
Finance is Not the Economy
Jeffrey St. Clair
Roaming Charges: Bernie’s Used Cars
Margaret Kimberley
Hillary and Colin: the War Criminal Charade
Patrick Cockburn
Turkey’s Foray into Syria: a Gamble in a Very Dangerous Game
Ishmael Reed
Birther Tries to Flim Flam Blacks  
Brian Terrell
What Makes a Hate Group?
Andrew Levine
How Donald Trump Can Still be a Hero: Force the Guardians of the Duopoly to Open Up the Debates
Howard Lisnoff
Trouble in Political Paradise
Terry Tempest Williams
Will Our National Parks Survive the Next 100 Years?
Ben Debney
The Swimsuit that Overthrew the State
Ashley Smith
Anti-imperialism and the Syrian Revolution
Andrew Stewart
Did Gore Throw the 2000 Election?
Vincent Navarro
Is the Nation State and Its Welfare State Dead? a Critique of Varoufakis
John Wight
Syria’s Kurds and the Wages of Treachery
Lawrence Davidson
The New Anti-Semitism: the Case of Joy Karega
Mateo Pimentel
The Affordable Care Act: A Litmus Test for American Capitalism?
Roger Annis
In Northern Syria, Turkey Opens New Front in its War Against the Kurds
David Swanson
ABC Shifts Blame from US Wars to Doctors Without Borders
Norman Pollack
American Exceptionalism: A Pernicious Doctrine
Ralph Nader
Readers Think, Thinkers Read
Julia Morris
The Mythologies of the Nauruan Refugee Nation
George Wuerthner
Caving to Ranchers: the Misguided Decision to Kill the Profanity Wolf Pack
Ann Garrison
Unworthy Victims: Houthis and Hutus
Julian Vigo
Britain’s Slavery Legacy
John Stanton
Brzezinski Vision for a Power Sharing World Stymied by Ignorant Americans Leaders, Citizens
Philip Doe
Colorado: 300 Days of Sunshine Annually, Yet There’s No Sunny Side of the Street
Joseph White
Homage to EP Thompson
Dan Bacher
The Big Corporate Money Behind Jerry Brown
Kollibri terre Sonnenblume
DNC Playing Dirty Tricks on WikiLeaks
Ron Jacobs
Education for Liberation
Jim Smith
Socialism Revived: In Spite of Bernie, Donald and Hillary
David Macaray
Organized Labor’s Inferiority Complex
David Cortright
Alternatives to Military Intervention in Syria
Binoy Kampmark
The Terrors of Free Speech: Australia’s Racial Discrimination Act
Cesar Chelala
Guantánamo’s Quagmire
Nyla Ali Khan
Hoping Against Hope in Kashmir
William Hughes
From Sam Spade to the Red Scare: Dashiell Hammett’s War Against Rightwing Creeps
Raouf Halaby
Dear Barack Obama, Please Keep it at 3 for 3
Charles R. Larson
Review: Paulina Chiziane’s “The First Wife: a Tale of Polygamy”
David Yearsley
The Widow Bach: Anna Magdalena Rediscovered
FacebookTwitterGoogle+RedditEmail