The 1948 UN Universal Declaration of Human Rights (UDHR) states in article 19:
Everyone has the right to freedom of opinion and expression, and to seek, receive and impart information through any media and regardless of frontiers.
In its formulation the UDHR drew on two earlier declarations, the US Constitution (1776-1789) and its first 10 amendments – collectively called the “Bill of Rights” (1791) and the French “Declaration of the Rights of Man and Citizen” (1793), both of which enact free speech clauses.
In article 19 the UDHR declared that free speech is a basic human right. Whilst it might be thought that this right is an absolute right, this is in fact not the case. Almost all countries restrict free speech to some degree. Most countries have libel/ slander and/ or defamation laws and most people would consent that a person should have legal protection from having lies told about them – particularly those that ‘lower their standing’ in the community.
While not a treaty itself, the Declaration was explicitly adopted for the purpose of defining the meaning of the words “fundamental freedoms” and “human rights” appearing in the United Nations Charter, which is binding on all member states. Thus there is the implicit understanding that the laws of all signatories should conform, or be brought to conform, to the declaration which is considered a
foundational document for international human rights. This in turn would mean that some restrictions on stating “opinion and expression” would be in contravention of the spirit, if not the letter, of international law.
FREE SPEECH IN GREAT BRITAIN
The UK does not have a written constitution, instead much of its constitution derives from ancient laws, common law and even tradition.
Whilst free speech in the UK is not protected in the way that it is in America, the legal assumption is that one may speak freely, provided such speech is honest.
This freedom is circumscribed by the laws of libel and slander, which are the two legally acknowledged versions of defamation. Neither extends to deceased persons, nor is being simply abusive defamatory.
Before going further, it is necessary to point out that a person is only defamed if the remarks (whether written or spoken) are likely to be damaging to his reputation. This is important because it means (for instance) that a career criminal would be unlikely to be able to successfully sue me if I ‘defamed’ him by saying “He stole my xxxxxx”. His reputation is already sufficiently low that saying such a thing will not lower it further. On the other hand, if I said it about the local vicar, he could sue successfully – unless I was telling the truth of course!
The basic position in UK law is that if someone feels they have been defamed, it is up to the person who wrote/ said the defamatory comments to prove that their remarks are true, though the claimant has to show that he is the victim of the defamation. (Thus a remark made about a “Mr Smith” would be unlikely to be defamatory, unless the Mr Smith in question could show he was the person concerned.)
In other words, you can’t tell damaging lies about people and expect to get away with it. Neither does it matter if you are merely repeating someone else’s defamatory remarks – you too can be sued.1
Thus when writing about a living person, it is wise to make absolutely certain that what is written is the truth.
The UK’s defamation laws are biased towards the claimant and expensive to defend, thus even if you write the truth and thus win a libel action you are likely to be very out of pocket. Hopefully, the recent 2013 bill will address these issues and re-balance the UK law, though the common law (case law) aspects will take time to develop.
Slander laws are more rigorous in that for “passing remarks” a very much higher standard of evidence of defamation is required. In practice, such cases are rarely brought today.
Blasphemy laws in Britain were repealed in 2008, thus there is no restriction on free speech when talking about a religion. (The laws only provided a modicum of protection and that only to some sects/ parts of Christianity.)
In 2005 the Association of Chief Police Officers (ACPO) published “Hate Crime: delivering a quality service”, colloquially known as the “2005 hate crime manual”.2
On page 9 it has this to say (emphases ours):
2.2.1 A Hate Incident is defined as: Any incident, which may or may not constitute a criminal offence, which is perceived by the victim or any other person, as being motivated by prejudice or hate.
2.2.2 A Hate Crime is defined as: Any hate incident, which constitutes a criminal offence, perceived by the victim or any other person, as being motivated by prejudice or hate.
2.2.3 It is vitally important to note that all hate crimes are hate incidents. However some hate incidents may not constitute a criminal offence and therefore will not be recorded as a hate crime …
2.2.6 The perception of the victim or any other person is the defining factor in determining a hate incident.
Sections 2.2.10-14 draw a distinction between a “hate incident” and a “hate crime.” Abuse (related to sex, race, disability, faith etc.) would be a “hate incident”, however a greater degree of malignancy would be needed for this to tip over into a “hate crime”.
Section 2.3.5 has this to say: Faith Related Incident. Any incident which is perceived to be based upon prejudice towards or hatred of the faith of the victim or so perceived by the victim or any other person.
Thus it is clear that it is the perception of the incident as “hateful” that is key to determining whether or not it is treated as a hate crime or hate incident.
Furthermore, it does not matter who perceives it as ‘hateful’. If anybody, even someone not present at the time, perceives the incident as hateful, it is either a hate incident or a hate crime.3
This is, frankly, an incredibly dangerous precedent to set, since it means that quite literally anything perceived as hateful’ by someone (no matter how ludicrously) must be recorded as a hate incident at least.
Thus in the UK we are in the risible position that those most easily offended and insulted will, inevitably, be the greatest ‘victims’ of hate incidents.
Whilst speaking about religion as such – and indeed attacking a given religion is not subject to either slander or libel laws, these laws only apply to living people – the ‘perception clause’ in hate crime documentation means that there is the potential for the restriction of free speech since such attacks will be deemed “hate incidents” if they are “perceived to be based on prejudice or hatred of [a] faith by … any … person”.
This clearly feeds the notion of ‘Islamophobia’ since any criticism of Islam can be deemed a hate incident, ergo the person critiquing Islam is guilty of ‘hatred’, ergo they are an Islamophobe.
Note also that truth is no defense! If the statement, even if demonstrably true, offends someone and they perceive it as being motivated by hatred of their religion, then de facto it is a hate incident.
In principle, we have no problem with hate speech legislation, but it is our belief that the legislation should be tightly drawn such that “hate speech” has to be defined as that likely to promote violence towards a given group in society and specifically rules out the idea that something may be hate speech because a group in society finds some speech upsetting or offensive and reacts with or threatens violence as a result.
In 2006 the UK enacted the “Racial and Religious Hatred Act 2006” which defined a (small) number of crimes if the actions, words or writings of people were intended to “stir up religious hatred” (29B). Thus it would be possible to fall foul of this act if published writings were deemed likely to stir up religious hatred.
The act also included a clause specifically permitting “discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents” (29J).
Thus the test must be whether or not a reasonable person would regard what is written as being “intend[ed] thereby to stir up religious hatred”. In legal terms this is a test of mens rea.
This seems perfectly satisfactory and reasonable and were the law applied even-handedly (or in the English law expression “indifferently”) to all, then its stated goals would be achieved.
The likelihood of action being taken against speech depends on how likely it is that someone will be offended or insulted by it. Rowan Atkinson made a speech on this issue in which he pointed out that the Act(s) support “the Outrage Industry: self-appointed arbiters of the public good, encouraging media-stoked outrage, to which the police feel under terrible pressure to react”, and that “Under the law’s current wording, anything could be interpreted subjectively as ‘insult’; criticism, ridicule, and sarcasm, any unfavorable comparison, or merely stating an alternative point of view to the orthodoxy can be interpreted as insult” and thus fall foul of the law.
As Peter Tatchell points out, in the UK “I was arrested for saying the homophobia and sexism of Islamist extremists is akin to the mentality of the Nazis. Separately, a youth was arrested for calling Scientology a dangerous cult. In both instances, it was deemed we had committed religious hate crimes.”
Clearly, Tatchell’s words were taken as likely to “stir up religious hatred” towards (or perhaps by) Muslims, yet Tatchell’s words would appear to fall under the terms of section 29J of the act rather than 29B.
Recently (June 27th, 2013), the UK Government banned Robert Spencer and Pamela Geller from entering the UK. Both stand accused in the Home Office letters they received of “making statements that may foster hatred which might lead to inter-community violence in the UK”. Note the conditionals in the letter (and law) and the ambiguity as to which community would author the violence.
Conversely, when a white boy is beaten and stabbed by Asians (‘Asians’ is the UK press code for ‘Muslims’), then even if the victim perceives the attack as racially motivated, it is not so recorded.
Muhammad al-Arifi, who has advocated Jew-hatred, wife-beating, and jihad violence, entered the UK recently with no difficulty.
Anjem Choudary is widely known as a ‘hate preacher’ in the UK. He has, most recently, called for both President Obama and Prime Minister Cameron to be killed. He will not be prosecuted, the Police stating that “The material fell below an evidential threshold to pursue a criminal case against him.”
Mehdi Hasan is a political editor of The Huffington Post UK and appears on UK TV despite previously having said that all “kuffar” (a derogatory term in the Koran for non-Muslims) “live like cattle and have no intelligence“. Holding such a view has clearly not harmed his career at all, but a non-Muslim’s public career would be destroyed if a comparable statement was made about Muslims.
‘Sheikh’ Yasser al-Habib, who lives in Buckinghamshire, has a reputation for offending … other Muslims. Khalid Mahmood, a Labour MP, says of him: “This man deliberately sets out to offend, if it was the English Defence League or the British National Party using this sort of rhetoric the authorities would, quite rightly, come down on them like a ton of bricks. Yet this guy, because he is a Muslim, gets away with it. This could cause problems of the kind we have not had in the UK before.” In case you are wondering, Mahmood is meaning inter-community violence in the UK – now where have we heard this before?4
Thus we see that the implementation of this law is not even-handed. On the one hand the UK system takes action against Geller, Spencer, Tatchell (and several others) for remarks that are merely insulting to (e.g.) Islam; whereas al-Arafi, al-Habib and Choudary (to name but three) are permitted a much greater degree of free speech for words that directly incite violence and/ or religious/ racial hatred. If people do – or even say – anything that ‘offends’ Muslims, their actions are either hate incidents or hate crimes, whereas if the victim is non-Muslim and the perpetrators Muslim then, despite the wording of the law, the attack will not be classified as a hate matter, sometimes even in cases involving serious injury.
Another point worth mentioning is that a religiously based hate crime can, as far as we know, only be defined by the religion of the victim, not the perpetrator. Thus those Muslims who attackedGunner Lee Rigby whilst chanting “Allahu Akbar” are not guilty of a religious hate crime since Rigby’s religion (if any) was not a reason for his murder, even though the religion of the perpetrators clearly was.5 This omission in the law is obviously perverse.
FREE SPEECH IN AMERICA
Although both Britain and the United States are democracies with free elections – in the UK a House of Commons is elected and the political party with the majority of seats forms the Government; in the US political parties field candidates for the Senate and House of Representatives with a Presidential candidate being selected by the Electoral College after nationwide votes – the two countries are dramatically different in the application of free speech, especially when it comes to criminalisation of ‘hate speech’. Both countries however are virtually identical in the non-application of these laws to Muslims.
The American Declaration of Independence (1776) and the United States Bill of Rights (1791) are foundational documents in the history of the US:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
The first amendment, ratified 15 December 1791, states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
These are powerful, timeless words. They stand as a beacon for all humanity. These words are not only in the Constitution of the United States, they are a forerunner to the UN UDHR and theECHR (European Convention on Human Rights).
In the US, freedom of speech gives you the full right to demean, make fun of and even speak racial slurs against any person or group. But this does not mean that there are no consequences to such actions. Sportscasters have been fired for uttering racial slurs. Media/ political personalities have been condemned for degrading remarks – many losing endorsement fortunes as advertisers run from them.
Like the UK and other countries, the US legal system defines defamation of a living person as follows:
Defamation is an act of communication that causes someone to be shamed, ridiculed, held in contempt, lowered in the estimation of the community, or to lose employment status or earnings or otherwise suffer a damaged reputation. Such defamation is couched in ‘defamatory language.’ Libel and slander are subcategories of defamation. Defamation is primarily covered under state law, but is subject to First Amendment guarantees of free speech. The scope of constitutional protection extends to statements of opinion on matters of public concern that do not contain or imply a provable factual assertion.
Thanks to the First Amendment and a series of case law results a successful defamation claim can only be brought if it can be shown that the defamatory statement(s) is/ are a matter of fact not opinion and that they are not a matter of “fair comment and criticism”. What compounds these laws is the legal independence of the US states – thus a defamatory statement in one state may not be held to be so in another.
A relatively recent phenomenon in the US is that of ‘lawfare‘:
… lawfare is about more than just delegitimizing a state’s right to defend itself; it is about the abuse of the law and our judicial systems to undermine the very principles they stands for: the rule of law, the sanctity of innocent human life, and the right to free speech. Lawfare is not something in which persons engage in the pursuit of justice; it is a negative undertaking and must be defined as such to have any real meaning. Otherwise, we risk diluting the phenomenon and feeding the inability to distinguish between what is the correct application of the law, on the one hand, and what is lawfare, on the other.
Because that is the essence of the issue here, how do we distinguish between that which constitutes a constructive, legitimate legal battle (even if the legal battle is against us and inconvenient) from that which is a counterproductive perversion of the law, which should be allocated no precedent? The delineation is not as simple as some may like to make it; that is, that lawsuits against terrorists are good, and legal actions against the US and Israel are bad. Now, the question is not ‘who is the target’ but ‘what is the intention’ behind the legal action: is it to pursue justice, to apply the law in the interests of freedom and democracy, or is the intent to undermine the system of laws being manipulated?
To this we might add the intent of silencing the person(s) with whom the plaintiff disagrees – either through fear of the threat of lawfare (in which case they do not speak out at all) or as a result of the financial costs resulting. Fighting such a suit often proves very expensive and time-consuming for the defendant(s) who can be financially ruined by legal bills in the $100K region as a result – even if the suit is withdrawn before trial (which means a person is unlikely to risk further lawfare attacks in the future).
This has the corollary that people can be intimidated into silence by the mere threat of lawfare even if they know they would win any case were it to reach trial.
The US legal system defines hate speech as follows:
Hate speech is defined as a communication that carries no meaning other than the expression of hatred for some group, especially in circumstances in which the communication is likely to provoke violence. It is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, national origin, gender, religion, sexual orientation, and the like. Hate speech can be any form of expression regarded as offensive to racial, ethnic and religious groups and other discrete minorities or to women.
Hatred is demeaning to human dignity – for both the hater and the hated. Yet, abhorrent as hate speech is, it is not necessarily a criminal act, but hate speech that calls for violence, murdering, terrorising, enslaving or torturing of any individual or groups is criminal.
Only speech that poses an imminent danger of unlawful action, where the speaker has the intention to incite such action and there is the likelihood that this will be the consequence of his or her speech, may be restricted and punished by that law.
There were a number of very important legal cases that have defined what constitutes hate speech in the United States.
In 1969, the Supreme Court ruled that: “The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.” And in 1992 R.A.V. v. City of St. Paul, the Supreme Court categorically stated that “hate speech was legal unless it will lead to imminent hate violence“.
In 1993, the National Telecommunications and Information Administration (NTIA) released a report titled “The Role of Telecommunications in Hate Crimes“. This report gave one of the first definitions by government on hate speech. According to NTIA hate speech is:
– Speech that advocates or encourages violent acts or crimes of hate.
– Speech that creates a climate of hate or prejudice, which may in turn foster the commission of hate crimes.
In order to undercut the First Amendment the FBI in alliance with the Department of Justice endorsed the very clever and novel legal strategy of utilising the Civil Rights Act of 1964 declaring that criticism of Islam was a violation of Muslims’ civil rights and therefore a crime that could be prosecuted under the Civil Rights Act.
Quoting from POLITICO:
Bill Killian, U.S. attorney for the Eastern District of Tennessee, was quoted by the Tullahoma News suggesting that some inflammatory material on Islam might run afoul of federal civil rights laws.
‘We need to educate people about Muslims and their civil rights, and as long as we’re here, they’re going to be protected,’ Killian told the newspaper. …
’This is an educational effort with civil rights laws as they play into freedom of religion and exercising freedom of religion,’ Killian said about the meeting. ‘This is also to inform the public what federal laws are in effect and what the consequences are.’ …
The Department of Justice did not respond Friday to a question about what guidelines it draws concerning offensive speech and Islam, or whether the department believes that civil rights statutes could be used to stifle criticism of Islam.
While threats directed at individuals or small groups can lead to punishment, First Amendment experts expressed doubt that the government has any power to stop offensive material about Islam from circulating.
‘He’s just wrong,’ said Floyd Abrams, one of the country’s most respected First Amendment attorneys. ‘The government may, indeed, play a useful and entirely constitutional role in urging people not to engage in speech that amounts to religious discrimination. But it may not, under the First Amendment, prevent or punish speech even if it may be viewed as hostile to a religion.’
‘And what it most clearly may not do is to stifle political or social debate, however rambunctious or offensive some may think it is,’ Abrams said.
A conservative watchdog group, Judicial Watch, accused the Obama administration of using federal law to specifically protect Muslims from criticism.
‘In its latest effort to protect followers of Islam in the U.S. the Obama Justice Department warns against using social media to spread information considered inflammatory against Muslims, threatening that it could constitute a violation of civil rights,’ the group wrote in a blog post.
In recent years, the federal government has faced difficult questions about how to respond to material posted about Islam and the ‘Prophet’ Muhammad — especially when the content causes riots or attacks abroad.
The rapid Islamisation of the FBI, Department of Justice and the US Army is a direct threat to freedom and democracy because it places these agencies with their virtually unregulated police powers against those fighting Islam. These agencies create an atmosphere of fear that can stifle free speech and make a farce of the First Amendment. Snowden revealed the uncontrolled police state apparatus that was arrayed not in monitoring mosques but tracking the entire population.
PJ Media’s Patrick Poole noted in May, 2012 that the FBI training manual’s counter-terrorism lexicon made no mention of terrorism in regards to al Qaeda, Hamas, jihad, Islam, or the Muslim Brotherhood.
“The fact is religion has been expunged from counter-terrorism training”, said counter-terrorism specialist with the Foundation for Defense of Democracies Sebastian Gorka to The Washington Times. He added, “The FBI can’t talk about Islam and they can’t talk about jihad.”
In October of 2011, an organisation called Muslim Advocates, a group composed of fifty-seven Muslim advocacy groups from across the country, signed and sent a letter to high-level Obama administration officials. They urged the administration to enact a widespread purge within law enforcement departments and agencies of any materials that could be deemed biased or discriminatory against Muslims.
Brennan shared with the 57 Muslim advocacy organisations the plan the White House had going forward, stating, “Departments and Agencies are taking aggressive steps to create broader review processes and build rigorous CVE curriculum standards.” These included:
“Collecting all training materials that contain cultural or religious content, including information related to Islam or Muslims; (2) establishing a process, in construction with subject matter experts, to ensure that such materials comply with core American values, professional standards, and the United States Constitution; and (3) writing guidance for CVE training which will be shared with components, field offices, and external partners. Moreover, we are committed to engaging in a sustained dialogue with all relevant stakeholders on these issues as we move forward.“
In short, whitewashing Islam.
We in America believe in free speech, but also censure hate speech, and even ban speech that incites violence and terrorism. This obviously creates a certain tension between ideals that are, in some respects, pulling in opposite directions and, more importantly, opens up the possibility of these tensions being used to manipulate free speech/ hate speech/ criminal hate speech boundaries to protect or criminalise speech that various groups deem ‘hateful’.
FREE SPEECH IN ISLAM
I am sure that to some the title of this section sounds like an oxymoron, but I would remind the reader of two points: firstly, all countries (and even the US which sees itself as a great champion of freedom) actually limit free speech to some degree, and secondly many Muslims assert that they believe in free speech and indeed criticise the West for hypocrisy in that western countries ban defamation of a person yet allow ‘defamation’ of Allah and his Prophet, which to them is a vastly more important matter.
On the face of it, extending defamation laws to dead personages is not irrational. Why should it be possible, without any risk of legal sanction, to tarnish the name of a dead person by uttering defamatory remarks against them?
However, there are two (or three – depending on how you wish to think about it) other factors that must be considered.
The first is the honour/ shame culture of Islam.6 For our purposes it will be sufficient to say that ‘honour’ forbids saying anything bad about a fellow Muslim and that, therefore, so doing is shameful and shaming. What is significant is that the issue is not whether what is said is true or not, merely whether what is said/ written would be shaming or not.
The second is the doctrine of Sitr.7 In essence this means that any haram (unlawful) doing by a (Muslim) person should be covered up (more literally ‘veiled’) and not spoken about – unless they are repeat offenders in which case sharia law should take its course.
Taken together, these two (three) things mean that anything ‘bad’ or ‘shameful’ done by a (Muslim) person should be overlooked and not spoken/ written about.
The consequence of this is that anything, even if it is the truth, that reflects negatively on a (Muslim) person should not be spoken/ written about. The corollary of this is that many Muslims instinctively define ‘defamation’ in terms of honour/ shame rather than truth/ lie.
To put this more clearly: In the eyes of Islam a truthful statement can be ‘defamatory’ if it brings shame on its subject. What ‘adds insult to injury’ is that such a thing should be covered up anyway. Thus the person who exposes such a matter of ‘shame’ has not only ‘shamed’ another, they have also broken the Islamic ‘honour code’.”8
Such a definition of defamation is entirely foreign to western thought.
Bearing this in mind, let us now move on to consider the ramifications for free speech in Islam.
ISLAMIC FREE SPEECH AND NON-MUSLIMS
The Pact of Umar, despite existing in several forms, is the archetypal document defining relations between Muslims and dhimmis (subjugated people). In the pact a number of conditions are imposed on the dhimmi population.
There are several key clauses in the pact. The first to consider is:
“If we break any of these promises that we set for your benefit against ourselves, then our Dhimmah [promise of protection] is broken and you are allowed to do with us what you are allowed of people of defiance and rebellion.”
This clause (the last in the main body of the pact) makes it clear that the pact is to the benefit of the Muslims (and by implication to the detriment of the dhimmis); but more importantly, if the dhimmis break the pact, the Muslims “are allowed to do with us [dhimmis] what you are allowed of people of defiance and rebellion”. What this means is that a dhimmi who breaks the pact has lost his/ her ‘protection’ and he/ she can be lawfully (i.e. permitted by sharia law) killed, enslaved or despoiled. In fact such a pact-breaking-dhimmi is regarded in exactly the same light as an actively hostile Harbi.9 Worse is that this is a ‘hostage’ clause: if any one dhimmi broke his pact, all the dhimmi community could be held to be in breach – at least in theory.
This then begs the question as to what sort of things might breach the pact.
For the consideration of free speech the key clause of the pact is: “We will respect Muslims and move from the places we sit in if they choose to sit in them.” This might seem relatively innocuous, but the ‘respect’ clause is widely understood to mean much more than giving up seats to Muslims.
Hanbal and Malik hold that four things put the dhimmi outside the law: blasphemy (‘disrespect’) of Allah, of His book, of His religion, and of His Prophet.
Abu Hanifa taught that they must not be too severe with dhimmis who insulted the Prophet. Shafe’i said that one who repented of having insulted the Prophet might be pardoned and restored to his privileges. (Often proof of repentance would mean conversion to Islam.)
(Malik, Shafe’i, Hanbal and Hanifa are the originators of the four main (and eponymously named) schools of Islamic Jurisprudence in Sunni Islam.)
What we see here is that the dhimmi must not speak ‘blasphemy’ against Islam in any way; not against Allah, or Mohammed, or the Koran, or Islam (this latter, practically speaking, shariah law). These rules, derived from the requirement of the pact for dhimmis to respect Muslims and coupled with the honour/ shame culture and Sitr, silence any criticism of Islam whatsoever. Salman Rushdie, the UK author, fell afoul of this attitude.
Thus inherent in Islam is a limitation to free speech that says non-Muslims cannot criticise Islam in any way, as Muhammad al-A’zamī once wrote: “Certainly anyone can write on Islam, but only a devout [not learned!] Muslim has the legitimate prerogative to write on Islam and its related subjects.” Thus at best all non-Muslims writing on Islam are ‘illegitimate’ and at worst they are blasphemous.10
That it is unlawful for non-Muslims to criticise Islam can be seen from the blasphemy laws found in countries (such as Pakistan) where even the allegation of a blasphemous statement is sufficient to put a non-Muslim’s (and their community’s) life in great danger.
ISLAMIC FREE SPEECH AND MUSLIMS
Muslims in the West most definitely criticise Islam, but that is not the point – they, after all, are protected by free speech legislation and legal systems that would regard their killing (for instance) by their co-religionists as murder, rather than a lawful response to their ‘blasphemy’.
In early medieval Islamic history, criticism was permitted – within certain bounds. It was acceptable to criticise the state and the religious authorities, and Al-Ma’arri (973-1058 A.D.) went as far as to criticise the traditions (i.e. hadith) and their interpretation as well as Islamic religious dogma and religion in general, though he seems to have picked his words so as to not criticise ‘faith’ (Iman in Arabic) which would have been construed as a direct attack on Islam.
However, from the late 10th century A.D. on, Sunni Islam “closed the door to ijtahid”11 and as a result increasingly de-legitimised such criticism for about 90% of the world’s Muslims. Thus for the last millennium or thereabouts, Islam per se has been held as being above criticism by (almost) all Muslims.
Also, in Islam Mohammed is considered as being the “perfect human being”.12 As such he too must be held above criticism.
A further point to consider is that in Islam sharia law is Allah’s law. As such it also has a divine status. This has the corollary that (from the Islamic perspective) nothing it permits can be wrong and nothing it forbids can be right and furthermore, since it is divine law, it cannot be changed by mere mankind.
United Nations’ War on Free Speech Continues
Unfortuntely UN is playing a negative role in suppressing real freedom of speech. An April 4, 2013, CERD decision had condemned the German refusal to prosecute former German central bank board member Thilo Sarrazin for hate speech against Arabs and Turks. CERD deemed the discontinuance of Sarrazin’s criminal investigation a violation of German commitments under the International Convention on the Elimination of All Forms of Racial Discrimination.
The German federal government responded that it “currently is examining German legislation for the punishment of racist statements in light of” CERD’s decision. This examination, though, would take account of the right to free expression. Federal authorities had requested of the relevant Berlin prosecutors “to review every possibility of reconsidering” Sarrazin’s case. Yet, the prosecutors reported, this review of the case’s “factual and legal aspects” meant that the “cessation of prosecution stands.”
The German government received encouragement in stiffening hate speech laws from the federally-funded nonprofit organization German Institute for Human Rights (Deutsches Institut für Menschenrechte or DIMR). DIMR’s Hendrik Cremer, in particular, criticized in an interview that an initial charge of Sarrazin under the German Criminal Code’s Section 185 against “Insult” fell through. Cremer found Sarrazin’s case “not untypical” as “current precedent” did not allow for “collective insults.” Even if statements are racist, “it is regularly assumed that they lack intensity” for an “insulting character” if directed “against a large number of persons.” Cremer criticized that racist speech convictions usually affected “only persons who clearly belonged to a rightwing extremist environment” while “racism from the middle of society” went overlooked.
These German developments make all the more worthy of review the lone dissenting opinion in the CERD judgment from the American representative, Georgetown University professor of law Carlos Manuel Vázquez. Vázquez determined that Sarrazin’s 2009 interview with a Berlin magazine resulting in prosecution “contains statements that are bigoted and offensive.” CERD precedent, however, “does not require the criminal prosecution of all bigoted and offensive statements.”
As “extensively explained in writing,” both the Berlin prosecutors and a reviewing General Procurator found no basis for insult or “incitement to racial hatred” (German Criminal CodeSection 130) charges. The procurator review, for example, found that “Sarrazin did not characterize members of the Turkish minority as ‘inferior beings’ or ‘bereave [sic] them of their right to life as an equally worthy person.'”
Yet CERD itself recognized that a convention violation demanded that a state “acted arbitrarily or denied justice,” a “deferential standard…particularly appropriate” with respect to speech. Here state authorities “have a far greater mastery” of the pertinent language than CERD members and a “far better position to gauge the likely impact of the statements in the social context prevailing.” Moreover, the convention allowed for prosecutorial “discretion” in preventing both racist speech and any “‘chilling’ effect” on free speech presented by marginal cases. Issues such as a statement’s public significance, danger to public peace, or ability to give notoriety to otherwise insignificant persons could also factor into prosecutorial decisions.
Sarrazin also argued with respect to Turks and Arabs that the “culture or belief system that prevails among a national or ethnic group inhibits their chances of achieving a particular goal.” This is “not outside the scope of reasoned discourse” and “not prohibited by the Convention.” Additionally, “Sarrazin’s main point” was that the “provision of social welfare leads to habits and ways of life that inhibit economic success and integration.” “It is true,” Vázquez noted, that “Sarrazin at times employed denigrating and offensive language.” Yet “freedom of expression extends even to statements framed in sharp and caustic terms.”
Vázquez’s views from the Land of Liberty are far more reasoned than those Germans anxious to do the bidding of CERD’s members, most hailing from countries not noted for equality under the law. Stiffer hate speech laws would penalize many controversial political statements and involve the law in all manner of insults unrelated to public peace. It is to be hoped that Germany will ultimately heed Vázquez’s restraint, despite successive attempts to overcome rational German rejections of Sarrazin’s prosecution. Observers outside of Germany, meanwhile, should take Sarrazin’s tale to heart as an example of foreign institutions infringing domestic freedom.
This altered situation shall make Patrick Henry cry out in pain, since his credo of “Give me liberty or give me death” is at last gasps.