The return of blasphemy bans
Jacob Mchangama and Sarah McLaughlin at Foreign Policy also argue that Europe is going backward on free speech and free thought.
But despite the unanimous rhetorical support for free speech after Charlie Hebdo, blasphemy bans have become more firmly anchored in some parts of the continent in recent years. In a recent case, the European Court of Human Rights even reaffirmed that European human rights law recognizes a right not to have one’s religious feelings hurt. The court based its decision on the deeply flawed assumption that religious peace and tolerance may require the policing rather than the protection of “gratuitously offensive” speech. Accordingly, it found that Austria had not violated freedom of expression by convicting a woman for having called the Prophet Mohammed a “pedophile.”
And yet, of course, talking about Mohammed and pedophilia is not necessarily gratuitous. It may be done in the spirit and style of Trump, but it may be done in the spirit and style of Salman Rushdie or Maryam Namazie or Taslima Nasreen or many many other secular critics of Islam.
Moreover, laws against blasphemy and religious insult frequently protect the majority against minorities and dissenters. In Spain, the actor and activist Willy Toledo was arrested and now faces prosecution for “offending religious feelings” after being reported to the police by an association of Catholic lawyers. Toledo had written a particularly salty Facebook post: “I shit on God and have enough shit left over to shit on the dogma of the holiness and virginity of the Virgin Mary.” Toledo’s Facebook rant was provoked by the criminal investigation of three Spanish women’s rights activists who paraded a giant effigy of a vagina through the streets of Seville, imitating popular Catholic processions.
It’s not as if Spain needs to protect the feelings of Catholics, is it, when Catholic reactionaries ran the place until all too recently.
These cases stand in stark contrast to how European democracies have approached the question of blasphemy and free speech at the United Nations. For more than a decade, the Organization of Islamic Cooperation (OIC) attempted to introduce a global blasphemy ban by passing annual resolutions against “defamation of religions.” But in 2012, the OIC’s then-secretary-general, Ekmeleddin Ihsanoglu, had to admit defeat under pressure from democracies, human rights organizations, and activists, with the United States and European democracies taking the lead. “We could not convince them,” Ihsanoglu said. “The European countries don’t vote with us, the United States doesn’t vote with us.” This crucial victory for free speech was followed by statements from U.N., European Union, Organization for Security and Cooperation in Europe, and Council of Europe bodies and experts, all stressing the incompatibility of blasphemy bans with free speech under international human rights law.
By breaking with this consensus and failing to crystalize the protection of blasphemy and religious insult into legally binding human rights norms, the court has failed to offer an expansive protection of free speech for Europeans affected by such laws. But the court’s reasoning and the continuous enforcement of blasphemy bans in European democracies also help lend legitimacy to laws punishing blasphemy and religious offense in states where blasphemy is a matter of life and death.
If it’s good enough for the UN, why isn’t it good enough for Europe?
“Me cago en Dios*” (I shit on God) and “Me cago en la virgen” (I shit on the virgin) are pretty common curses in Spain (at least among the sorts I associate with). And “Es la hostia” (it’s the host, as in the wafer Catholics eat on Sunday) or just “Hostia” is a common, very strong, expression of disgust or anger. Point being, blasphemy is the source of much swearing in Spain, and Spaniards (at least in the north) swear a shitload.
*Sometimes softened to “Me cago en diez” (I shit on ten), similar to “gosh darn it” in English.
“I shit on ten”; so elegant!
“And yet, of course, talking about Mohammed and pedophilia is not necessarily gratuitous. It may be done in the spirit and style of Trump, but it may be done in the spirit and style of Salman Rushdie or Maryam Namazie or Taslima Nasreen or many many other secular critics of Islam.”
This. The distinction is obvious and yet how, as a *legal* matter do you make it?
The distinction is based on intent, and intent is a factor in law all the time, and yet people fall over on this point when it comes to free speech, also all the time.
Making the distinction requires people who know which way is up. That becomes a bigger and bigger stumbling block.
As a legal matter in the US, at least, you seldom have occasion to make the distinction, because legal bans on blasphemy fall foul of the First Amendment. Trump’s first attempt at a Muslim ban was seen as violating the free exercise clause. Unfortunately that’s also how Hobby Lobby won.
One way lawyers do it when it does arise, I think, is by showing a pattern. Is there a pattern of discrimination, can you document it, can it be interpreted in other ways, etc.