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Loyola University Chicago International Review Volume 11 Article 2 Issue 2 Spring/Summer 2014

2014 The undF amentalism of Liberal : Decoding the of Expression Under the European Convention for the Protection of and Fundamental Moeen Cheema Lecturer, College of Law, Australian National University

Adeel Kamran Lecturer of U.K. Constitutional Law, Lahore,

Follow this and additional works at: http://lawecommons.luc.edu/lucilr Part of the Human Rights Law Commons, and the International Law Commons

Recommended Citation Moeen Cheema & Adeel Kamran The Fundamentalism of Liberal Rights: Decoding the Freedom of Expression Under the European Convention for the Protection of Human Rights and Fundamental Freedoms, 11 Loy. U. Chi. Int'l L. Rev. 79 (2014). Available at: http://lawecommons.luc.edu/lucilr/vol11/iss2/2

This Feature Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago International Law Review by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. 35138-lfi_11-2 Sheet No. 6 Side A 06/12/2014 13:38:49 R R R R R R R , , see also .... 92 , CNN, http:// UMAN : H Jyllands-Posten NDER THE IGHTS , http://www.guardian.com/ U R REEDOMS UARDIAN F G What the Cartoons Portray IBERAL ROTECTION OF HE , http://news.bbc.co.uk/1/hi/world/middle_ P , T L XPRESSION EWS E Martin Asser, , BBC N In Europe, however, the publication of the In Europe, however, the publication see see also Appeals for Calm Over Cartoon Row 2 UNDAMENTAL F REEDOM OF F Loyola University Chicago International Law Review 79 Moeen Cheema* & Adeel Kamran** Moeen Cheema* ...... 79 ...... 87 UNDAMENTALISM OF ONVENTION FOR THE ...... 100 IGHTS AND F C R ...... 97 These cartoons also appeared to conflate the categories of relig- These cartoons also appeared to conflate Danish Paper Rejected Jesus Cartoons HE 1 Europe T , http://news.bbc.co.uk/2/hi/middle_east/4693292.stm (last visited Feb. 9, 2006); ECODING THE Expression Under the European Convention of Human RightsExpression Under the European Convention . . . 87 A. Regulation of Hate and in B. in Eurpoe Freedom on Expression and Laws Rights of Expression and the Regulation of in the U.S.A.of Expression and the Regulation . 81 EWS D UROPEAN For a description of the cartoons, please See Arab Ministers Condemn Cartoons M K I. Introduction II. Right?: Freedom Is There Such a Thing as Absolute Fundamental V. Conclusion 1 2 * Lecturer, College of Law, Australian National University (ANU). LL.M., Harvard Law School, E III. of The “Eurpoean” Conception of Human Rights: Freedom On September 30th, 2005, ’s leading , On September 30th, 2005, Denmark’s IV.Race, Religion, and Liberal Fundamental A Clash of Categories?: C Y ** and Lecturer of U.K. Constitutional Law, law, and Institution world/2006/feb/03/religion.uk (last visited Feb. 6, 2006). (Earlier, in 2003, the same newspaper refused world/2006/feb/03/religion.uk (last visited Feb. 6, 2006). (Earlier, in 2003, the same newspaper to publish cartoons of Jesus Christ on the grounds that they would ‘provoke an outcry’). edition..com/2006/WORLD/asiapcf/02/07/cartoon.protests/ (last visited Feb. 8, 2006). east/4668068.stm (last visited Jan. 31, 2006); Gwladys Fouche, BBC N 1999; and LL.B. (Honours), University of London, 1998. Areas of academic interest include comparative 1999; and LL.B. (Honours), University of London, 1998. Areas of academic interest include constitutional theory and comparative Islamic and Western jurisprudence. Organiza- Reasoning at The Institute of Legal Studies (TILS), Lahore, Pakistan. LL.M. in International , Pun- tions, International Criminal Law and Crime Prevention, UNICRI, 2007; M.A. in Political jab University, 2003; and LL.B. (Honours), University of London, 2001. Volume 11, Issue 2 published twelve (12) caricatures of the prophet Muhammed of Islam published twelve (12) caricatures blatantly offensive to followers of the (“P.B.U.H.”) depicting him in a manner Islamic faith. I. Introduction \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 1 12-JUN-14 13:16 ion, race, and terrorism in a manner that implied causal connections between the ion, race, and terrorism in a manner former and the latter. a seemingly never- The publication of the cartoons sparked world, culminating in violent demonstrations ending cycle of around the in several Muslim-majority states. cartoons was staunchly defended on the grounds of freedom of expression, with cartoons was staunchly defended on principles several other them in a show of support for the 35138-lfi_11-2 Sheet No. 6 Side A 06/12/2014 13:38:49 06/12/2014 A Side 6 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 6 Side B 06/12/2014 13:38:49 M K C Y Paul Belien, See Volume 11, Issue 2 ) law and Muslim countries cade is clearly problem- , http://www.brusselsjournal.com/ shari’a OURNAL J RUSSELS B HE , T The refusal of European to pro- governments to of European The refusal 3 Decoding the Freedom of Expression Decoding The staunch defense of the Danish cartoons in Europe focuses primarily on the protection of the The staunch defense of the Danish cartoons in Europe focuses primarily on the protection 3 In this paper we will attempt to deconstruct the free speech defense of the In this paper we will attempt to deconstruct through a case study In order to deconstruct the nature of node/589 (last visited Mar. 11, 2014). Europe Criticises Copenhagen over Cartoons devalue such fundamental freedoms and hence the protests do not deserve serious consideration. For Minister of example, Anders Fogh Rasmussen, leader of the Liberal () Party, and the Prime their protests. Denmark refused to meet ambassadors from a number of Muslim countries and entertain courts. ‘As The Prime Minister suggested that those who were aggrieved should take the matter to the prime minister, I have no power whatsoever to limit the press - nor do I want such a power. It is a basic principle of our that a prime minister cannot control the press,’ he added. fundamental right to free speech guaranteed in all European countries. According to this point of view, . the freedoms of expression and the press are near-absolute values at the core of European very dearly This argument has two facets: firstly, that European countries hold the freedom of expression prohibit blas- as a primary political value and, secondly, that the European states have no legal basis to phemy against Islam - there is also a clear implication that Islamic ( 80 Loyola University Chicago International Law Review of free speech and democracy. of free speech \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 2 12-JUN-14 13:16 the publication of the cartoons led to recriminations that this was tanta- of the cartoons led to recriminations scribe the publication and was evidence of covert of ‘blasphemous’ materials mount to protection and overt ‘Islamophobia.’ in of the defense of the Danish cartoons The reduction fa¸ of expression to such a strategic the name of freedom atic because it ignores the troubled history and the complex and dynamic debates the troubled history and the complex atic because it ignores the role of the state in Europe and the United States over that have raged in discourse.regulating public how- clash of reductionisms does, The unleashed the characterizations deep philosophical tensions between ever, intuitively grasp and between the free- between free speech and hate speech, of religion and race, and of religion. doms of expression Danish caricatures in order to highlight the tensions enumerated above, focusing Danish caricatures in order to highlight under the European Convention on particularly on the regulation of expression (“ECHR”).Human Rights and Fundamental Freedoms A scrutiny of the juris- Human Rights (“ECtHR”) reveals the diffi- prudence of the European Court of limits on expression, particularly as it culties inherent in defining permissible of interests that are worthy of pro- involves the identification and prioritization tection under a state’s law. of certain The struggles over the characterization turn, raise questions over the ‘fundamental- interests as fundamental rights, in foundational social and political values that ness’ of rights and the valuation of the of rights presumes as incontrovertible. study seeks to advance This such as the freedom of expression, are the argument that fundamental rights, on the ends they are employed to serve legal constructs whose value is contingent in a given socio-political environment. of fundamental While the contingency definition and over what they include or rights is palpable in debates over their the clash of fundamental rights, in particular exclude, it is most clearly visible in the freedoms of expression and religion. under the ECHR, we first present a of the regulation of freedom of expression debates over the nature of rights.brief overview of the philosophical In Part I, on freedom of expression in the we also outline the constitutional jurisprudence is the kind United States as the prototype of free speech ‘absolutism,’ which proclaimed by some of the defenders of the cartoons. In Part II, we compare the 35138-lfi_11-2 Sheet No. 6 Side B 06/12/2014 13:38:49 06/12/2014 B Side 6 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 7 Side A 06/12/2014 13:38:49 , ENTHAM : B TILTS S PON U ., Methuen & Co., 1987). ed ONSENSE N in , 166-68 (Jeremy Waldon AN M IGHTS OF Nonsense Upon Stilts? - A Reply Loyola University Chicago International Law Review 81 Decoding the Freedom of Expression Decoding R This is problematic for as it is an ideology that 4 ARX ON THE M Jeremy Waldron, See M K 4 The position taken by many in Europe in the defense of the Danish cartoons The position taken by many in Europe implic- On one level, the traditional liberal conception has been criticized for C Y URKE AND B Volume 11, Issue 2 appears to rely on the notion of the freedom of expression being a near absolute appears to rely on the notion of the right. liberal conception of This position also appears to be rooted in a primarily are designed to primarily protect spheres of rights wherein fundamental freedoms interference.private autonomy from governmental liberal of rights, In the the citizens against is the evil of a repres- the evil that fundamental rights shield sive state. areas of private Thus, while fundamental rights protect the earmarked not structured to protect the citi- space from state intrusion, they are from the tyranny of fellow citizens. zen, or minority groups and communities, is by no means uncontroversial.This state-centric conception of rights Heated free- philosophical debates on the nature and content of rights and fundamental doms have taken place on at least three different planes. naturalness itly imbuing culturally and morally relative positions with an aura of and universality. American jurisprudence on freedom of expression, which avows its primacy over which avows freedom of expression, jurisprudence on American with the ‘European’ to equality and , other competing rights approach. and laws of many European states We demonstrate that the domestic of expression falling extensive limitations on the freedom the ECHR allows rubric of hate speech.under the broad of We discuss two specific categories constitutional laws of Eu- which are recognized by the limitations on expression, denial and blasphemy. as the ECHR, namely: Holocaust ropean states as well accede to demands to curb refusal of European governments to We argue that the on the grounds that the the Danish cartoons was not defensible the publication of on the freedom of expres- rights law forbade such a limitation applicable human sion. in a of the Danish cartoons is rooted We contend in Part III that the defense rights that is based upon distinctions be- liberal understanding of fundamental speech and blasphemy, and between the tween race and religion, between hate of religion that are riveted with contradic- freedom of expression and the freedom tions. critiques of The Danish case thus highlights the veracity of longstanding the liberal conception of rights. the defense of the Dan- Lastly, we conclude that of expression is inherently political and ish cartoons on the grounds of freedom and naturalness to a position that seeks to provide the cover of fundamental-ness is inherently contingent. II. Fundamental Right?: Freedom Is there such a thing as an Absolute of Hate Speech in the U.S.A. of Expression and the Regulation \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 3 12-JUN-14 13:16 essentially seeks to provide all humans with the opportunity to pursue their vision essentially seeks to provide all humans with the opportunity to pursue visions.of a good life, so long as that pursuit does not interfere with others’ In response, the advocates of liberal rights have advanced two strategies. First, a of distinction is made between the “’right’ and the ‘good’ - between a framework choose to basic rights and , and the conception of good that people may 35138-lfi_11-2 Sheet No. 7 Side A 06/12/2014 13:38:49 06/12/2014 A Side 7 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 7 Side B 06/12/2014 13:38:49 M K DEAL C Y : I AW L ULE OF Thus, for exam- R Volume 11, Issue 2 HE 10 T in , , 13 OJLS 18 (1993). 167-172 (Univ. of Nebraska Press, 2d 9 OLITICS (Harvard Univ. Press, 1977). P ORLD The state is often the only player capable W ., Carswell, 1987). ERIOUSLY 11 eds S This becomes problematic where there is a This becomes problematic A fair framework of rights thus comes before of rights A fair framework 8 5 IGHTS IGHTS AND R R Often, it is possible to argue that these shared founda- Often, it is possible AKING UMAN 7 Decoding the Freedom of Expression Decoding A Rights-Based Critique of a Bill of Rights note 4, at 163-66. The Political Theory of the Procedural Republic supra ? 88 (Hutchinson & Monahan OR In adopting the former justification traditional liberals can claim a cer- justification traditional liberals In adopting the former Waldron, Ronald Dworkin, T Jeremy Waldron, David P. Forsyth, H . . at 169-71. 6 Michael J. Sandel, Id See See See See Id DEOLOGY 5 6 7 8 9 The second plane on which the liberal conception of rights is critiqued is on The second plane on which the liberal 10 11 I ed. 1989) for a brief overview of the philosophical foundations of the liberal conception of rights. ed. 1989) for a brief overview of the philosophical foundations of the liberal conception tain degree of value neutrality and universality for their position. neutrality and universality for tain degree of value Secondly, or the shared foundations of seek to rely on public , liberals increasingly the justification for and con- superficial disagreements over rights-claims beneath tent of specific rights. account of its negativity. imposes nega- It is alleged that while this conception not entail positive obligations upon the tive obligations or constraints, it does necessary for the fulfillment of the state to create the socio-political conditions as fundamental rights. interests and values that are classified 82 Loyola University Chicago International Law Review pursue within that framework.” pursue within \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 4 12-JUN-14 13:16 tions of are found in constitutional documents, judicial decisions, are found in constitutional documents, tions of public morality agreement. and/or majoritarian democracy and constitutionally entrenched threat of a clash between majoritarian mechanisms. debate on the nature and In such a scenario, the around the narrower and more spe- justification for rights appears to crystallize and institutional competence, which may cific issues of constitutional structure are better suited to safeguard the interests dictate whether courts or legislatures rights. and values characterized as fundamental the liberal pursuit of individual ends.the liberal pursuit for In regards to freedom of expression, so that people may be thing to defend the right to free speech example, “it is one ends, but something else to own opinions and choose their own free to form their is inherently wor- grounds that a life of political discussion support it on the thier.” of challenging the centers of socio-economic power and with the constraints im- of challenging the centers of socio-economic power and with the constraints net- posed upon it there is little guarantee that these private social and economic the state. works will not exercise the coercive powers that are being denied to ple, while the state may be barred from suppressing free speech, it cannot be ple, while the state may be barred or non-state groups from creating an envi- called upon to stop private effect on others’ expression.ronment which has an indirect chilling This nega- is motivated by a fear that if the state is tive conception of fundamental rights private action, it will that authority granted such a power to interfere with its coercive power.to serve its own ends and expand Further, even if the state one group’s freedom, it may be seen as uses that power benevolently to safeguard thereby sowing the seeds of social dis- discriminating at the expense of others, cord. is that the social terrain The problem for the liberal position, however, disparities in wealth, socio-political power everywhere is marked by enormous and opportunities for advancement. 35138-lfi_11-2 Sheet No. 7 Side B 06/12/2014 13:38:49 06/12/2014 B Side 7 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 8 Side A 06/12/2014 13:38:49 , 16 . 71 1993). ESPECT RITICAL OMM 92 (Clar- R : C . C ORNOGRAPHY 14 (The Free The prob- has been a IGHTS , P OUND ONST 12 15 R et al. eds., PEAKING W PEECH , 13 C ISCOURSE S INORITY D ATE M ORDS THAT ? H OLITICAL (Harv. Univ. Press, 1996). AZIS (Mari J. Matsuda P HEORY OF N T ORDS W EFEND IBERAL D NLY MENDMENT E A Mari J. Matsuda, W W : A L IRST See UST MPOVERISHMENT OF F I HE 14 In an influential advance in liberal thinking, In an influential advance in liberal ITIZENSHIP : T 13 C AND THE ALK , T (New York Univ. Press, 1997); Richard L. Abel, S PEECH Catherine MacKinnon, O IGHTS Loyola University Chicago International Law Review 83 Decoding the Freedom of Expression Decoding S see ULTICULTURAL Banning Hate Speech and the Sticks and Stones Defense MENDMENT A (Univ. of Chicago Press, 1998). example of discussion on hate speech For a leading SSAULTIVE IRST , A F PEECH S EW AND THE N . at 75-115. Richard Delgado & Jean Stefancic, M HEORY Id Larry Alexander, include Representative examples of work that discuss hate speech in the context of racist speech Mary Ann Glendon, R , M M K T These controversies are not entirely theoretical.These controversies are not entirely are the philosophi- Nowhere The third plane on which the liberal conception of rights is critiqued is on of rights is the liberal conception plane on which The third 14 15 16 12 13 C Y ACE ESPECTING (1996). endon Press, 1995). Press, 1991). See also R in terms of sexist speech, critical race theorists such as Mari J. Matsuda. cal tensions inherent in a strong form of liberal rights conception and its disso- cal tensions inherent in a strong form evident than on the issue of hate speech nance with minority interests more democracy in the world: the United States regulation in the leading constitutional of America. be defined as “epithets The regulation of hate speech, which may references to characteristics such as conventionally understood to be insulting religion, and sexual preference” race, gender, , ethnicity, account of its allegedly rampant .account of its allegedly repub- Communitarian and civic it is liberalism itself which, liberal notion of rights argue that lican critics of the cultivates a fragmented idea of humans as atomistic beings, by promoting the aims and ideals becomes in which discussion of collective social environment secondary: promotes unrealistic expectations, “[r]ights talk, in its absoluteness, might lead towards consen- and inhibits dialogue that heightens social conflict, ground.” or at least the discovery of common sus, accommodation, Volume 11, Issue 2 R through constitutional arguments advocating the primacy of the Fourteenth through constitutional arguments before the law over the First Amend- ’s guarantee of equal protection \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 5 12-JUN-14 13:16 Will Kymlicka argued that liberalism can accommodate the interests of minority Will Kymlicka argued that liberalism insights, but that would require groups while also taking on board communitarian set of group rights that impose both negative the recognition of an entirely new to facilitate the preservation of distinct ‘soci- and positive obligations on the state etal cultures’ of minority groups. hotly debated issue in the United States and much has been written on this topic. hotly debated issue in the United States regulation and curtailment of the First Arguments in support of hate speech the context of racist and sexist speech; Amendment rights usually arise in lem again for both the liberal and communitarian perspectives, however, is that the liberal and communitarian perspectives, lem again for both power and economic re- in the distribution of socio-political of the inequalities sources. is no from the role of an equalizer there If the state remains withdrawn that enjoy a dispropor- social groups, especially those guarantee that particular will voluntarily cede that advantage even if tionate share of influence and power, localized discourses.communitarian politics flourishes in This will particularly are constituted along distinct racial, ethnic, be the case where sub-national groups religious and/or cultural lines. 35138-lfi_11-2 Sheet No. 8 Side A 06/12/2014 13:38:49 06/12/2014 A Side 8 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 8 Side B 06/12/2014 13:38:49 , . 20 L. EV . L. M K . L.J. T C Y OMP AYNE L. R . S RIZ OWA . J. C . 193, 195-96 note 15, at 73; M , 48 W EV , 36 A , 82 I supra , 50 A . 103, 116-17 (1992); Hate Speech, Cultural . L. R Volume 11, Issue 2 EV A As one commentator 21 , 145 U. P as well as legitimate “time, 24 , 40 UCLA L. R 18 The New First Amendment Jurisprudence: A The Clear and Present Danger Test in Anglo-American . 449, 454-55 (1996); Alexander, Foundations of a Theory of Hate Speech EV Charles Fried, Such advocacy, however, faces a challenging however, Such advocacy, L.J. 263, 263-81 (2006). . L. R 17 see L . 225, 251-53 (1992); Calvin R. Massey, ’ ES and ‘;’ EV NT 23 I Nonetheless, it has been contended that a number of Nonetheless, it has been contended W. R Traces Of Violence: Gadamer, Habermas, And The Hate Speech Problem Traces Of Violence: Gadamer, Habermas, And IEGO . L. R Decoding the Freedom of Expression Decoding David G. Barnum, 22 Cross Burning, Hate Speech, and Free Speech in America Cross Burning, Hate Speech, and Free Speech ASE HI D Hate Speech and : Do We Have to Choose Between Freedom of AN 46 C Hate Speech in the Constitutional Law of the United States . 991, 994-95 (2000). see also EV , 7 S note 23, at 476-79. Equality and Free Speech: The Case Against Substantive Equality . amend. I. , 59 U. C The Case Against Postmodern Theory . L. R ONST supra 19 ENT Edward J. Eberle, U.S. 241, 256, 258 (1974). Miami Herald Publishing Co. v. Tornillo, 418 R. George Wright, .-K When men have realized that time has upset many fighting faiths, they may come to believe even When men have realized that time has upset many own conduct that the ultimate good desired more than they believe the very foundations of their is better reached by in – is the power of the thought to get that the best of and that truth is the only ground upon which itself accepted in the competition of the market, their wishes safely can be carried out. Amendment I - Freedom of Religion, Press, Expression: Congress shall of Religion, Press, Expression: Amendment I - Freedom or prohibiting the an establishment of religion, make no law respecting or of the press or abridging the , free exercise thereof; . . . J. Angelo Corlett & Robert Francescotti, For an analysis of the evolution of the to violence categories of permissible restrictions, Fisch, See U.S. C See To cite Justice Holmes’ famous oft-quoted : See HI . 1071, 1074 (2002). The weight of judicial opinion in the United States appears to favor a concep- opinion in the United States appears The weight of judicial 22 23 24 18 19 20 21 17 William B. Fisch, EV 645, 668-70 (1997). R 463, 471-76 (2002); 953, 959-70 (2004). (1996); Nadine Strossen, and European Law Steven G. Gey, Speech and Equality? Gary Goodpaster, 76 C Diversity, and the Foundational Paradigms of Free Expression see tion of the freedom of expression guaranteed by the First Amendment of the U.S. of expression guaranteed by the First tion of the freedom other competing values. near-absolute right, which trumps as a 84 Loyola University Chicago International Law Review Abrams v. United States, 250 U.S. 616, 630 (1919). Academic opinion on this count is also well-en- trenched. For representative examples, Threat to This view is rooted in the belief that words cannot harm and free expression can This view is rooted in the belief that democratic values. only be beneficial since it fortifies ment’s free speech protection. ment’s free \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 6 12-JUN-14 13:16 constitutional obstacle, as the text of the First Amendment of the U.S. Constitu- as the text of the First Amendment constitutional obstacle, absolute on its plain reading: tion is seemingly doctrines recognized by the U.S. Supreme Court allow exceptions to the freedom doctrines recognized by the U.S. Supreme of expression. for restrictions based on Notable amongst these are allowances such as for ‘clear and present danger’ or the threat or likelihood of violence ‘,’ notes, “[c]onstruing freedom of expression as an absolute right, the view held by notes, “[c]onstruing freedom of expression freedom of expression arise, is perhaps meant many U.S. citizens when issues of and stones may break my bones, but words to be captured by the adage: ‘Sticks will never hurt me.’” 35138-lfi_11-2 Sheet No. 8 Side B 06/12/2014 13:38:49 06/12/2014 B Side 8 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 9 Side A 06/12/2014 13:38:49 , 21 , 53 . 335, 348 Eyes Wide note 23, at EV . 371 (2007); Your Revolu- EV Thoughts About 28 supra Chaplinsky v. L. R . L.J. 717 (2007). L. R How Much Freedom NT : An Outdated Fisch, OFSTRA & E A Helping Hand: Address- ubler, Brandenburg v. Ohio or on grounds of na- or on grounds of ARDOZO . 729, 732-39 (2000). RTS 26 , 27 H EV in A see also The New First Amendment Juris- , 29 C Morrison Torrey, 30 Similarly, in L. R see 31 ARDOZO LARA C , 25 C Charles Fried, . 21 (2005). For a critique that the restrictions of The United States Constitution’s First Amendment ANTA P violence. See . 225, 226, 231 (1992). 40 S J. O EV . L.J. 71, 72-73 (2004). Expression may also be legitimately sup- may also be Expression L. 241, 266 (1995); Friedrich K¨ . L.J. 191, 199-207 (2006); Cara L. Newman, . L.J. 191, 199-207 (2006); Cara L. Newman, What’s Left?: Hate Speech, Pornography, and the Problem What’s Left?: Hate Speech, Pornography, and L EXUS ’ ENT 25 NT . L. R imminent . L.J. 1101 (2003); Laura Barandes, NT . 1499 (1996); and Arnold H. Loewy, HI & L. 347, 349-51 (2005); Nasoan Sheftel-Gomes, ND EV , 10 N & E . J. I For example, although at one time the U.S. Supreme For example, although Racial Hatred: A Comparative Analysis of the Laws of the RTS ICK Justin A. Giordano, , 78 I ENDER 29 . 35, 68-69 (1997). . L. R , 26 N.C. C and the First Amendment: A Judicial Role in Maximiz- Amy Adler, A , 59 U. C see Sixth Annual Review Of Gender And Sexuality Law: I. Constitutional Law Sixth Annual Review Of Gender And Sexuality EV AL Loyola University Chicago International Law Review 85 The Empirical Shortcomings Of First Amendment Jurisprudence: A Histori- Decoding the Freedom of Expression Decoding Holocaust Denial and the First Amendment: The Quest for Truth in a Free The War On Speech In The : An Examination Of The Espio- , 13 D . J. G EO L. R , 84 C ARDOZO . 25 (1999). For a comparison of the U.S. and Canadian approaches towards the Therefore, one commentator concludes: “[i]t is unarguable that concludes: “[i]t is unarguable Therefore, one commentator , the Supreme Court laid down the doctrine of “fighting words,” , the Supreme Court laid down the EP Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); , 6 G 27 ASON see generally , 24 C . 121, 132-140 (2003). For a critique of restriction of speech on the charge of obscenity . M speech that may incite unlawful violence, . L. R EV EO Emily Posner, TS i.e. Kenneth Lasson, Alexander Tsesis, Charles Lewis Nier III, Matthew Silverman, Annalisa Siracusa, R S 6 G L. R ’ See See See See generally See However, “[i]f regulates the time, place or manner of speech, it must regulate in a way However, “[i]f government regulates the time, See M K see also AUL However, while there is no denying that some restrictions on speech are al- is no denying that some restrictions However, while there 28 29 30 31 27 25 26 C Y P OMEN E (1998). and nage Act Applied To Modern First Amendment Doctrine speech to counter the harms of pornography do not go far enough, speech to counter the harms of pornography do tion: The Federal Communications Commission, Obscenity And The Chilling Of Artistic Expression On tion: The Federal Communications Commission, Airwaves for Racist Speech?: Transnational Aspects of a Conflict of Human Rights Open, Wide Shut: Art, Obscenity, And The First Amendment In Contemporary America Open, Minds Wide Shut: Art, Obscenity, And D and pornography, cal Perspective On The Power Of Hate Speech, ing Public Access to Information Chapter: Obscenity ing New Implications Of The Espionage Act On Why the First Amendment Operates to Stifle the Freedom and Equality of a Subordinated Majority Why the First Amendment Operates to Stifle W Concept for the Twenty-First Century Society, United States and Germany that does not take sides between competing ideas.” prudence: A Threat to Liberty regulation of obscene speech, lowed as contended above, a judicious review of the jurisprudence of the U.S. above, a judicious review of the lowed as contended freedom of expression are that such limitations on the Supreme Court reveals very narrowly construed. Volume 11, Issue 2 for Artistic Expression place, and manner restrictions.” place, and \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 7 12-JUN-14 13:16 474-75. Court allowed limits on speech which presented a “clear and present danger” to on speech which presented a “clear Court allowed limits society, pressed when it is found to be obscene or pornographic, pressed when it is wants; it does not follow, freedom to think what one there should be absolute however – or philosophically either legally, logically, –may openly that one one desires.” one thinks, whenever and wherever express vs. The Canadian Charter Of Rights And Freedoms: A Comparative Analysis Of Obscenity And Pornog- vs. The Canadian Charter Of Rights And Freedoms: raphy As Forms Of Expression the court narrowly interpreted this standard, restricting its applicability to speech the court narrowly interpreted this that was likely to cause or incite New Hampshire offensive, derisive, or annoying word to any making it illegal to “address any or any public place . . . [or] make any noise person who is lawfully in any street hearing with intent to deride, offend or annoy or exclamation in his presence and tional security. 35138-lfi_11-2 Sheet No. 9 Side A 06/12/2014 13:38:49 06/12/2014 A Side 9 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 9 Side B 06/12/2014 13:38:49 . , EV Ten M K C Y . L. R note 21. LL Kathleen E. supra It is further 37 note 21, at 267-68. see also Volume 11, Issue 2 Dorsett, Most recently, in supra 34 This doctrine was fur- This doctrine was 33 Dorsett, , that the the Court required If He Hollers Let Him Go: Regulat- note 21, at 266-67. See generally . 361, 363 (1985); Richard Delgado & Jean Stefancic, . 33, 67-68 (2002). EV see also supra see ROBS ?, 23 N. Ky. L. Rev. 475, 479-80 (1996); Jean . L. R . P Dorsett, ARV This is a manifestation of the distrust of This is a manifestation of the distrust ONTEMP 36 , 99 H see also Cohen v. California L.J. 431, 438 (1990). hate speech It is also countered that Charles R. Lawrence III, & C UKE AW The Court ruled that the ordinance violated the prin- The Court ruled that Before we critique this liberal reconstruction of the Before we critique this liberal reconstruction see also 35 “Certain Fundamental ”: A Dialectic On Negative And Positive , the court declared hate speech to be uncon- , the court declared 39 A Shifting Balance: Freedom of Expression and Hate-Speech Restriction , 1990 D Slippery Slopes , 65:2 L Reformist Myopia and the Imperative of Progress: Lessons for the Post- . 865, 898 (1993). For rebuttal, Decoding the Freedom of Expression Decoding EV : Affirmation Or Contradiction Of Freedom Of Expression, U. I 1996 note 23, at 478-79; . L. R Cohen v. California, 403 U.S. 15 (1971); supra AND . 737, 742 (1993); A similar argument cautions against hate speech laws because of A similar argument cautions against EV 38 However, the court stated that it would hold speech to constitute fighting speech to constitute that it would hold the court stated However, , 46 V Chaplinsky v. New Hampshire, 315 U.S. 568, 569 (1942). Chaplinsky v. New Hampshire, 315 U.S. 568, Hate Speech Frederick Schauer, Donald E. Lively, Fisch, W. Bradley Wendel, L. R 32 Id. See See See See See generally R.A.V. v. City of St. Paul, 505 U.S. 377, 380 (1992). See OWA The First Amendment jurisprudence of the U.S. courts thus appears to be The First Amendment jurisprudence 37 38 39 32 33 34 35 36 789, 802 (1996). Mahoney, Stefancic & Richard Delgado, regulation detracts from the real task of countering racism itself. Brown Era Liberty In Hate-Speech Cases Arguments Against Hate-Speech Regulation: How Valid 78 I ing Racist Speech on Campus 86 Loyola University Chicago International Law Review him.” \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 8 12-JUN-14 13:16 freedom of expression in U.S. constitutional jurisprudence, it may be helpful to freedom of expression in U.S. constitutional Atlantic. see if this view is shared across the their on expression in general.their chilling effect on expression in of this position express Advocates hinders the establishment of an efficient concerns that hate speech legislation freedom of speech is in fact beneficial market for ideas and insist that absolute for minority viewpoints. words only if there were a reasonable risk of violence. words only if there government that is at the heart of American constitutional politics. government that is at the heart of American ciple of content neutrality as it targeted specific viewpoints only. as it targeted specific viewpoints ciple of content neutrality fundamental freedoms as negative liberties based on the liberal conception of outlined at the outset. upholds a dis- It focuses on state action, and consistently domains.tinction between public and private the state is barred from As such, may not restrict any expression (or at least interfering in the private domain and the content thereof) by individuals. R.A.V. v. City of St. Paul R.A.V. v. City of St. of “a symbol, the placing on public or private stitutional that proscribed but not limited to, a characterization or , including, object, appellation has reasonable grounds to Nazi , which one knows or burning cross or on the basis of race, color, alarm or resentment in others know arouses anger, gender.” creed, religion or effective in preventing harmful action, hate argued that while legislation may be and any benefits that may be availed speech legislation is generally ineffective by the risk of the state’s abuse of speech from banning hate speech are countered This is in essence a ‘slippery slope’ regulation to suppress critical expression. argument. ther restricted in practice when in ther restricted in practice fighting words must be directed at a specific individual. fighting words must 35138-lfi_11-2 Sheet No. 9 Side B 06/12/2014 13:38:49 06/12/2014 B Side 9 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 10 Side A 06/12/2014 13:38:49 40 Mold- http:// OURT OF Conven- C see , http://conven- available at UROPEAN UROPE E E Stephanie Farrior, see OUNCIL OF ETHODS OF THE M http://www.echr.coe.int/Documents/Con- ORKING W available at http://www.echr.coe.int/Documents/Convention_ENG.pdf. For a EVIEW OF THE The Convention was the brainchild of the Council of The Convention was the brainchild 41 L. 3, 63 -78 (1996). L Loyola University Chicago International Law Review 87 Decoding the Freedom of Expression Decoding ’ available at NT J. I Lord Woolfe, R , (Eur. Ct. H. R., 2005). petition is provided under Article 34 of The right of individual The Court’s judgments are binding on the member states. The Court’s judgments are binding The Con- ERKELEY It came into force in 1953 and presently has forty-six member states, It came into force in 1953 and presently 43 IGHTS 42 The Statute of the , art. 1, May 5, 1949, 87 U.N.T.S. 103, R , 14 B See See generally In 1998, the United Kingdom finally passed the Human Rights Act, thereby incorporating the In 1998, the United Kingdom finally passed of Human Rights and Fundamental Freedoms, Apr. Council of Europe, Convention For Protection M K The position adopted by the defenders of the Danish cartoons appears to be by the defenders of the Danish The position adopted 42 43 40 41 C Y UMAN tions.coe.int/Treaty/Commun/ChercheSig.asp?NT=005&CM=&DF=&CL=ENG (last visited Apr. 8, tions.coe.int/Treaty/Commun/ChercheSig.asp?NT=005&CM=&DF=&CL=ENG (last visited 2014). Convention on 13th April, 1953; ratified on 15th Specifically, Denmark ratified the ratified January, 1952; ratified on 3rd May, 1974; Germany ratified on 5th December, 1952; on 26th October 1955; and Spain ratified on 4th October, 1979. conventions.coe.int/treaty/en/treaties/html/001.htm. For an overview of the debates contextualizing the drafting of the Convention and its approach towards hate speech regulation, ing The Matrix: The Historical and Theoretical Foundations of International Law Concerning Hate ing The Matrix: The Historical and Theoretical Foundations of International Law Concerning Speech the Convention to “any person, non-governmental organisation or group of individuals claiming to be the the Convention to “any person, non-governmental organisation or group of individuals claiming Fundamental victim of a violation.” Council of Europe, Convention For Protection of Human Rights and Freedoms art. 34, Apr. 11, 1950, CETS No. 005, vention_ENG.pdf. tion for the Protection of Human Rights and Fundamental Freedoms, C European Convention directly into domestic law.European Convention directly into domestic This is the U.K.’s statutory Bill of Rights. Human Rights Act, 1998, c. 42 (U.K.). 11, 1950, CETS No. 005, list of member states of the Council of Europe that have signed and ratified the agreement, list of member states of the Council of Europe that have signed and ratified the agreement, Volume 11, Issue 2 H However, most European states, including those where the cartoons were pub- However, most European states, including Convention for the Protection of Human lished, are parties to the European (hereinafter the ‘European Convention’ or Rights and Fundamental Freedoms simply the ‘Convention’). very much in line with the status of freedom of expression as a near absolute with the status of freedom of expression very much in line constitutional law.right in American has not historically been the European This an over-arching European freedom of expression, to the extent standpoint on the exists. on the freedom of expression agreement or understanding states European legal integration - have sep- economic, political, cultural and - despite increasing that provide for the protection arate legal systems and have written exception of the United Kingdom. of fundamental rights, with the notable III.Rights: Freedom of Conception of Fundamental The ‘European’ Rights the European Convention on Human Expression under A.Laws in Europe Speech and Holocaust Denial Regulation of Hate \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 9 12-JUN-14 13:16 eight hundred million citizens of which have the right of individual petition to the eight hundred million citizens of which the adjudicatory body created under the Con- European Court of Human Rights, vention. representing the “minimum human rights vention may thus be described as states, or the “Basic Law of Europe;” standards” agreed upon by the European considered “the most successful human rights and the Convention system may be Europe, a transnational political organization created in the aftermath of the Sec- Europe, a transnational political organization aim of creating a common platform for the ond in 1949 with the law and fundamental human rights all over promotion of democracy, the rule of Europe. 35138-lfi_11-2 Sheet No. 10 Side A 06/12/2014 13:38:49 06/12/2014 A Side 10 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 10 Side B 06/12/2014 13:38:49 See M K C Y , http:// available at see also Eu- UROPE 4 (Blackstone, E IGHTS R Volume 11, Issue 2 47 45 OUNCIL OF C UMAN H OURT OF C UROPEAN E http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm. ASE TO THE . L.F. 1, 14 (2002). C IV The enforcement of the Convention has been further Convention has of the The enforcement available at . & C 44 Decoding the Freedom of Expression Decoding AKING A UR . E UL Ban On or Protection of Hate Speech? Some Observations Based on German and It is also notable that the text of Article 10 of the Convention does It is also notable that the text of Article , 17 T 48 Philip Leach, T Union art. 6, 2010 O.J.C 83/01, Consolidated Version of the Treaty on European A plain reading of the above provision indicates that, in sharp contrast to the above provision indicates that, A plain reading of . art. 10. Article 10 to freedom of expression.Everyone has the right This right shall include and ideas and to receive and impart information freedom to hold opinions and regardless of frontiers. . . without interference by public authority it carries with it duties and respon- The exercise of these freedoms, since conditions, restrictions or sibilities, may be subject to such formalities, are necessary in a democratic soci- penalties as are prescribed by law and territorial integrity or public ety, in the interests of national security, or crime, for the protection of health safety, for the prevention of disorder reputation or rights of others, for or morals, for the protection of the received in confidence, or for preventing the disclosure of information of the judiciary. maintaining the authority and impartiality Id has This difference in the European and American approaches towards the freedom of expression See See Council Convention For Protection of Human Rights and Fundamental Freedoms, Apr. 11, 1950, 46 In contrast to the United States, most European states have laws that forbid In contrast to the United States, most Given the expansive array of grounds on which free speech may be curtailed, Given the expansive array of grounds Article 10 of the Convention guarantees the freedom of expression to the citi- guarantees the freedom Article 10 of the Convention 47 48 44 45 46 hub.coe.int/what-we-do/human-rights/eu-accession-to-the-convention (last visited May 5, 2014). hub.coe.int/what-we-do/human-rights/eu-accession-to-the-convention (last visited May 5, 2001). been attributed to a number of factors, including a greater confidence in America on the outcomes of the been attributed to a number of factors, including a greater confidence in America on the outcomes to Europe battle of ideas, such as during the civil rights era and the War protests, as opposed whose history does not support such optimism. On the flip side, the American public generally does not as opposed trust the government and its officials enough to entrust them with such powers of censorship direction. to Europe where there is greater confidence in the government’s ability to provide social Winfried Brugger, American Law of Europe, 213 U.N.T.S. 221, (Since the Convention’s entry into force, thirteen (13) Protocols have been adopted some of which - (Since the Convention’s entry into force, thirteen (13) Protocols have been adopted some text. Protocol Protocols 1, 4, 6, 7, 12 and 13 - have added additional rights and freedoms to the original 11 restructured the enforcement machinery). http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:en:PDF; ropean Convention on Human Rights: Accession of the European Union, not see an inherent tension between such limitations on free speech and not see an inherent tension between democracy. hate speech.only Western state that In fact, the United States appears to be the it is not surprising that expression is subject to a number of legal limitations in it is not surprising that expression not be countenanced in American constitu- most European countries that would tional law. zens of all the European states that are a party to the Convention and its Proto- states that are a party to the zens of all the European cols. 88 Loyola University Chicago International Law Review system in the world.” system in \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 10 12-JUN-14 13:16 the First Amendment of the U.S. constitution, freedom of expression is subject to of the U.S. constitution, freedom the First Amendment of grounds: limitations on a number strengthened by its incorporation into European Union law. incorporation into European Union strengthened by its 35138-lfi_11-2 Sheet No. 10 Side B 06/12/2014 13:38:49 06/12/2014 B Side 10 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 11 Side A 06/12/2014 13:38:49 . L. ASIC E 130, L. 179, L ’ , 53 M 295, 308-20 AZETTE NT L.J. 422, 429- Y ] [GG] [B ’ L G Hate Speech: A ’ J. I OL In the U.K., a AW NT ALE . I L 53 IS Kathleen E. Mahoney, see . L. & P RUNDGESETZ , 26 Y 14 W EDERAL [G OMM of a different kind, on the free- A Very Clear and Present Danger: , 5 C albeit Bradley A. Appleman, For example, recent legislation For example, 49 UETSCHLAND D Keegstra And R.A.V.: A Comparative Analysis Of Keegstra And R.A.V.: A Comparative Analysis see also ], Nov. 13, 1998, F ] 2:1 (Swed.). Laura R. Palmer, ODE Canadian Criminal Code, R.S.C. 1985, c.C-46, § Canadian Criminal Code, R.S.C. 1985, c.C-46, 319. To give another example, while the free- To give another see C 55 See The law also creates lesser offenses of insult, The law also creates UNDESREPUBLIK ENAL Roy Leeper, 51 B ONSTITUTION IE D This legislation adds to the offence of insult against This legislation adds See also Hate Speech In Constitutional Jurisprudence: A Comparative Analysis, Hate Speech In Constitutional Jurisprudence: ¨ (parliament) may restrict free speech but such restric- (parliament) may restrict free speech UR 52 note 48, at 5-15; and [RF] [C F Hate Speech – The United States Versus the Rest of the World? [StGB] [P Loyola University Chicago International Law Review 89 Decoding the Freedom of Expression Decoding supra Riksdag . 1523, 1542-54 (2003). For an overview of the historical reasons for the differing enacted in response to a rise in neo-Nazi activities, criminalizes to a rise in neo-Nazi activities, enacted in response EV RUDGENSETZ 50 The Kevin Boyle, Michel Rosenfeld, L. R 56 TRAFGESETZBUCH EGERINGSFORMEN see the G S R see The Act substituted similar provisions in the Public Order Act of 1936, similar provisions in the Public The Act substituted for example, Arrowsmith v. United Kingdom, App. No. 7050/75, 3 Eur. H.R. Rep. 218, 219- for example, Arrowsmith v. United Kingdom, App. No. 7050/75, 3 Eur. H.R. Rep. 218, § year and fine). 185. (The offence carries a punishment of imprisonment of up to one . See 54 See Id Id. Public Order Act, (1986) §§ 18, 19, 23 (U.K.). See See The German Constitution expressly recognizes limitations, The German Constitution expressly recognizes For a comparison between the minimal intervention permissible under US Constitutional jurispru- For a comparison between the minimal intervention note 39, at 804-06 (1996). M K ARDOZO ], May 23, 1949, at Art. 5(1) - (3) (Ger.).jurispru- For an overview of the German constitutional . 487, 491-93 (2001). of It is interesting to note that allows much more stringent regulation 51 52 53 54 55 56 50 49 C Y EV AW (Ger.). (2000), wherein the author underscores the difference between the communitarian and libertarian tradi- (2000), wherein the author underscores the difference approaches, respectively. tions underpinning Canadian and American judicial R 200-06 (2001); Brugger, 34 (1996). Comparison Of The Approaches Taken By The United States And Germany, approaches, 24 C Hate Speech, Media Reform, and Post-Conflict Democratization in Kosovo dence on hate speech and relevant legislation, 20, 243 (1978), where a pacifist was arrested and prosecuted for incitement to disaffection after she 20, 243 (1978), where a pacifist was arrested and prosecuted for incitement to disaffection service. The distributed leaflets to members of the armed forces advocating the abandonment of military a reasonable European Commission declared her complaint inadmissible holding that the prosecution was limitation on her freedom of expression. dence and the differing approach in several other Western democratic states, including Canada, UK and dence and the differing approach in several other Germany, Volume 11, Issue 2 The Canadian And U.S. Approaches To Hate Speech Legislation The Canadian And U.S. Approaches To Hate L hate speech than is constitutionally permissible in the U.S.A., even though the Canadian Charter of hate speech than is constitutionally permissible free speech protection in language similar to the First Rights and Freedoms, 1 S.C. V (1982), accords Amendment. incite- Canada has a number of criminal provisions that proscribe advocacy of , and public and willful expression of ideas intended to ment of hatred threatening a breach of the peace, promote hatred against an identifiable group. allows such extended protection to hate speech. extended protection allows such \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 11 12-JUN-14 13:16 dom of expression. disseminate Art. 5(1) declares that “everybody has the right freely to express and and that “There shall be no censorship.”their opinions orally, in writing or visually” However, this “limitations embodied in the provisions of general legis- freedom is limited by two important provisions: of young persons and the citizens’ right to personal re- lation, statutory provisions for the protection spect.” attacks on human through incitement to hatred and dissemination of writ- dignity through incitement to hatred attacks on human hatred. ings aimed at instigating ridicule, and . to the surviving common Act of 1965, and is in addition and the Race Relations breach of peace. law relating to the personal honor, which has been on the statute since 1871. has been on the statute books personal honor, which For an overview of the international and Canadian positions on hate speech, For an overview of the international and Canadian supra doms of expression, press, and assembly are constitutionally guaranteed in Swe- press, and assembly are constitutionally doms of expression, also places explicit restrictions on these den, the Instrument of Government freedoms. in Germany, ideology, incitement to U.S. in terms of a shared political state closest to the of the Public Order Act, offence under various sections racial hatred is a specific 1986. 35138-lfi_11-2 Sheet No. 11 Side A 06/12/2014 13:38:49 06/12/2014 A Side 11 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 11 Side B 06/12/2014 13:38:49 M K Fur- C Y 57 The most 58 . 655, 657 (2005). For , Communication No. Volume 11, Issue 2 EV , Communication No. 34/ . 277, 285-87 (1986); Las- Such arguments have EV . L. R T 62 . L. R , 30 V ICH denial of Holocaust should be History Against Free Speech: The New http://www1.umn.edu/humanrts/country/ http://www.unhchr.ch/tbs/doc.nsf/0/6715d3 i.e. , 85 M Kamal Quereshi v. Denmark Eric Stein, available at ] 2:20(1) and 2:22 (Swed.). 2:22 ] 2:20(1) and , Communication No. 25/2002, U.N. Doc. CERD/C/62/ available at see ] 16:8 (Swed.). ] 16:8 Mohammed Hassan Gelle v. Denmark ONSTITUTION A British historian, , was recently con- A British historian, David Irving, was 63 note 28, at 70. http://www1.umn.edu/humanrts/country/decisions/25-2002.html. PENAL CODE [RF] [C Making Holocaust Denial a Crime: Reflections on European Anti-Nega- Making Holocaust Denial a Crime: Reflections Decoding the Freedom of Expression Decoding category of hate speech, The fact that the offence is in the nature of The fact that the note 61, at 657. supra B] [ R 59 (Strfl) § 266 b (1). [B supra per se available at . For example, in the landmark case of R. v. Zundel, [1992] R.C.S. 731, 732 (Can.), the Lasson, Ahmad Najaati Sadic v. Denmark See EGERINGSFORMEN per se Many commentators in the United States argued to make the denial of Many commentators in the United R note 28. In the U.K. the Labour Party proposed the creation of an offence punishable with Teachout, Peter R. Teachout, § of these provisions, see the opinions of The Committee on the 266 b (2). For elaboration 61 ROTTSBALKEN 60 Some academics have argued that Holocaust denial should be automatically recognized as a form Some academics have argued that Holocaust denial should be automatically recognized as See B See Straffeloven Id. See See supra Many European states also have laws which criminalize the denial of the Hol- Many European states also have laws 62 63 58 59 60 61 57 a review of Germany’s Holocaust denial laws, son, imprisonment for Holocaust denial before its 1997 victory. However, the Labour governments of imprisonment for Holocaust denial before its 1997 election victory. However, the Labour governments denial as the last decade have not followed through on this proposal. Canadian law also treats Holocaust hate speech ‘likely defendant, was charged with violating the Canadian criminal code by publishing false statements c. C-34, s. to cause injury or mischief to a public interest’ under Canadian Criminal Code R.S.C. 1970, 177 (Can.). German Law Against the ‘Auschwitz’ - and Other – ‘Lies’ bdbeff3c0dc125714d004f62e0?Opendocument; and the case of 2004, U.N. Doc. CERD/C/68/D/34/2004 (2004), 2004, U.N. Doc. CERD/C/68/D/34/2004 (2004), of hate speech since it results in immediate psychological and emotional harm to the Jews. It is contended of hate speech since it results in immediate psychological and emotional harm to the Jews. suffer from that the intended victims of Holocaust denial often fear the onslaught of violence and many of Holocaust post-traumatic stress disorders as a result. Therefore, some have advocated that the denial hurt’ by should be recognized as a distinct tort since the victims of such actions have been ‘grievously such speech. D/25/2002 (2003), Elimination of Racial Discrimination in the case of Elimination of Racial Discrimination in the tionist Laws from the Perspective of U.S. Constitutional Experience decisions/33-2003.html; and the case of ocaust. 90 Loyola University Chicago International Law Review tions “may be imposed only to satisfy a purpose acceptable in a democratic soci- acceptable in to satisfy a purpose be imposed only tions “may having regard to the may never exceed what is necessary ety. The restriction far as to constitute a threat it, nor may it be carried so purpose which occasioned of democracy.” of opinion as one of the foundations to the free formation \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 12 12-JUN-14 13:16 33/2003, U.N. Doc. CERD/C/66/D/33/2003 (2005) 33/2003, U.N. Doc. CERD/C/66/D/33/2003 (2005) victed and sentenced to a term of three years of imprisonment for the denial of victed and sentenced to a term of the Holocaust a prohibited whether or not such denial presents a clear and present danger of “im- prohibited whether or not such denial “fighting words.” minent lawless action” or constitutes activities shall be considered “an aggravating circumstance” at the sentencing considered “an aggravating circumstance” activities shall be . ther, the Swedish Penal Code specifically prohibits racist speech. Penal Code specifically prohibits ther, the Swedish however, is Denmark.pertinent example, a The Danish Criminal Code provides a fine, for the dissemination for up to two (2) years, and penalty of imprisonment “threaten[ed], insult[ed], or which a group of people are of a statement by or ethnic origin, religion, or of their race, colour, national degrad[ed] on account sexual inclination.” which is dominated by the primacy found little favor in American jurisprudence, in the previous section.of the First Amendment as discussed In contrast to the is a serious criminal offence in a num- United States, the denial of the Holocaust ber of European countries. 35138-lfi_11-2 Sheet No. 11 Side B 06/12/2014 13:38:49 06/12/2014 B Side 11 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 12 Side A 06/12/2014 13:38:49 ; } ; } In 101 . } 66 Hol- 70 71 note 28, at 70-71. http://hudoc.echr.coe.int/sites/ Another more universal http://hudoc.echr.coe.int/sites/eng/ 68 supra http://hudoc.echr.coe.int/sites/eng/pages/ The European Court of Human The European available at 64 Lasson, available at %22itemid%22:[%22003-788339-805233%22] { Holocaust denial and racist speech has Holocaust denial and racist speech see also available at 69 , BBC (Feb. 20, 2006, 20:19 GMT), http://news.bbc.co.uk/2/ note 64; supra However, this argument ought to apply to all However, this argument Anti-Semitism and Holocaust Denial in the Academy: A Tort Remedy, Anti-Semitism and Holocaust Denial in the Academy: Loyola University Chicago International Law Review 91 Decoding the Freedom of Expression Decoding 67 at 66. note 28, at 74-76. %22dmdocnumber%22:[%22666524%22],%22itemid%22:[%22001-2362%22] supra { See id. 65 %22fulltext%22:[%22marais%20v%20france%22],%22itemid%22:[%22001-88275%22] . 71, 74-76 (1996). at 78. at 70. at 54-55. { Geri J. Yonover, EV Lasson, , for example, Yonover, Garaudy v. France, 373 Eur. Ct. H.R. 7 (2003), See See See id. ques- For example, Bernard Lewis, a reputed historian, was prosecuted before a French court after See id. See id. See See Holocaust Denier Irving is Jailed See M K . L. R Some academics argue that even if racist speech does not present a ‘clear and Some academics argue that even if The criminalization of Holocaust denial has been justified on a number of of Holocaust denial has been The criminalization 66 67 68 69 70 71 64 65 C Y ICK D and Honsik v. , App. No. 31159/96, 184 (1995), hi/europe/4733820.stm. In 1994, the German constitutional court upheld the ban on a meeting at which hi/europe/4733820.stm. In 1994, the German that the so-called “Auschwitz lie” was not covered by the David Irving was scheduled to speak, ruling court in Berlin convicted a neo-Nazi leader for Holocaust freedom of speech. Similarly in 1995, a state denial may be contrasted from the legal position in the denial. The German approach towards Holocaust U.S.A. tioning the genocidal status of the massacre of 1.5 million Armenians by the Ottoman Empire. The tioning the genocidal status of the massacre of 1.5 million Armenians by the Ottoman apply only to criminal prosecution under France’s Holocaust denial law failed as that statute was held to resulting in the denial of the Nazi genocide of the Jews. A subsequent civil case, however, was successful a fine of $ 2000. eng-press/pages/search.aspx?i=003-788339-805233# present danger’ of immediate violence against a minority, allowing such speech present danger’ of immediate violence in the long run.will invariably lead to structural violence The purpose of Holo- Jews and inculcate attitudes in society which caust denial is to de-humanize the acceptable.makes violence against them more it is argued that there Therefore, and Holocaust denial: is a causal connection between anti-Semitism grounds. still War and Holocaust in Europe are Memories of the Second World consciousness.alive in European particu- states understandably have a European of those dark days. any actions which are reminiscent lar sensitivity towards Volume 11, Issue 2 the existence of gas chambers at Auschwitz. of gas chambers the existence \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 13 12-JUN-14 13:16 Marais v. France, App. No. 31159/96 (1996), search.aspx# whose enormity is recognized in European history. whose enormity is recognized in pages/search.aspx# Rights has repeatedly held that the existence of Holocaust denial laws is consis- held that the existence of Holocaust Rights has repeatedly Article 10, and falls within of expression protected under tent with the freedom well as Article 17 of the within that Article as the limitations provided Convention. a unique measure designed of Holocaust denial is this view, the criminalization to curb a unique evil. since it serves no conceivable po- been described as “pure-form discrimination” a specific religious or racial minority. litical function other than offending as group defamation. ocaust denial has also been described argument for barring Holocaust denial specifically and racist speech generally is argument for barring Holocaust denial to undermine the pluralistic nature of society that such speech deliberately seeks unwelcome, thereby discouraging them from by making a particular minority feel participating in the political process. 35138-lfi_11-2 Sheet No. 12 Side A 06/12/2014 13:38:49 06/12/2014 A Side 12 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 12 Side B 06/12/2014 13:38:49 , E- 73 R M K The C Y EW 75 , P see generally . 2769 (2004) EV Public Response to . L. R Volume 11, Issue 2 ARV , 117 H (the Media Case), Case No. ICTR- Mary J. Matsuda, . 2320, 2357 (1989). Group Defamation and the Holocaust EV See . 151 (1960). EV . L. R ICH . L. R 54 (Monroe H. Freedman & Eric M. Freedman eds., 54 (Monroe H. Freedman & Eric M. Freedman ] § 188 lays down the offence of disparaging religious OD However, in many of the states that have However, in many of the states that , 87 M ODE 76 PEECH C S , 23 M Germany, , , and Italy have Germany, Netherlands, Switzerland, ENAL 74 REEDOM OF GB] [P Decoding the Freedom of Expression Decoding T F [S note 64, at 78, referring to Michael Blain, ., 1937, art. 40.6.I.i. For a history of the blasphemy laws in Ireland Prosecutor v. Nahimana, Barayagwiza, and Ngeze Blasphemy in Irish Law supra ONST . C SEARCH 72 EFAMATION AND R I D TRAFGESETZBUCH , (Nov. 21, 2012), http://www.pewforum.org/2012/11/21/laws-penalizing-blasphemy-apostasy- Whoever, in circumstances where his behaviour is likely to arouse justified indignation, dispar- ages or insults a person who or an object which is being venerated by a church or religious community established within the country, or a dogma, a legally authorised custom or a legally authorised institution of such a church or religious community, shall be liable to a prison sen- tence of up to six months or a fine of up to 360 daily rates. See Laws Penalizing Blasphemy, Apostasy and Defamation of Religion are Widespread See Yonover, See International Law—Genocide—U.N. Consti- Tribunal Finds That Hate Speech S ROUP Rhetoric can often trigger action. Speech can turn into conduct. action. Speech can can often trigger Rhetoric Words can apply equally to racist as that all of the above arguments It is pertinent to note A broad survey of the laws of European states reveals that while there are a A broad survey of the laws of European 75 76 72 73 74 for a discussion of 1995). Racist Speech: Considering the Victim’s Story 99-52-T (Int’l Crim. Trib. for Rwanda Trial Chamber I Dec. 3, 2003). Mary J. Matsuda concludes that 99-52-T (Int’l Crim. Trib. for Rwanda Trial violence and racist hate speech is “so historically untenable, so dangerous, and so tied to perpetuation of “a mechanism degradation of the very classes of human beings who are least equipped to respond” and is of subordination, reinforcing a historical vertical relationship.” precepts. This provision was at issue Otto-Preminger Institut v. Austria, 19 Eur. Ct. H.R. 34, 41 (1994). precepts. This provision was at issue Otto-Preminger Institut v. Austria, 19 Eur. Ct. H.R. For the text of § 188, see paragraph 25. The section reads: in G Paul O’Higgins, and-defamation-of-religion-are-widespread/. tutes Genocide, , and tutes Genocide, Incitement to Genocide, and migrate into ‘sticks and stones’ which do, indeed, harm us. and stones’ which do, indeed, harm migrate into ‘sticks that It is no accident and justified the Nazi depicting Jews as evil preceded German narrative genocide. of a minority religion. speech involving the disparagement well as blasphemous 92 Loyola University Chicago International Law Review If the first argument does not apply to hate speech against a defined group, such does not apply to hate speech against If the first argument is because there has not yet African, and Arab minorities, it as the Muslim, North against these minorities in of discrimination and violence been a definite history Europe. that ‘group defamation’ against Muslims It is a weak argument to hold has reached a historical after discrimination against them will be barred only persecution, when a sufficient number have threshold of genocide, or at least demonstrably suffered. Muslims to and The alternative is for European create a ‘history’ of their own. resort to such violence as to thereby B. Laws in Europe Freedom of Expression and Blasphemy laws on the statute books, including number of states which have no blasphemy European states attach criminal sanctions to France, Spain, and , other blasphemous libel. Austria, \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 14 12-JUN-14 13:16 blasphemy and/or disparagement of religion laws on the statute books. blasphemy and/or disparagement of blasphemy laws, these laws have not been enforced in recent history.blasphemy laws, these laws have not For exam- prohibition on blasphemy has been explicitly recognized as a limitation on free prohibition on blasphemy has been the Republic of Ireland has enforced its speech in the Irish Constitution, and in the recent past. 35138-lfi_11-2 Sheet No. 12 Side B 06/12/2014 13:38:49 06/12/2014 B Side 12 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 13 Side A 06/12/2014 13:38:49 , 2003, H.L. EPORT The case was R 82 He was convicted IRST http://hudoc.echr.coe.int/ , F 78 ALES W 77 available at NGLAND AND E FFENCES IN , another case from the U.K., arose from the cen- , another case from the U.K., arose O The defendant filed an application before the Eu- The defendant filed an application 79 note 64, at 80-81, where the example of a Model Group Defamation ELIGIOUS , for example, the defendant was prosecuted for the com- , for example, the defendant was prosecuted The British Board of Classification rejected the The British Board of Film Classification supra R Loyola University Chicago International Law Review 93 Decoding the Freedom of Expression Decoding 81 80 http://www.parliament.the-stationery-office.co.uk/pa/ld200203/ldselect/ldrelof/95/ Yonover, OMMITTEE ON C Compare available at . at 618. .; ELECT “it is a reasonable speculation that as a consequence of that legislation speculation that as a consequence “it is a reasonable to fail or, if a blasphemy today . . . would be likely any prosecution for on appeal . . . on would probably be overturned conviction were secured, to freedom of ex- of denial of the right grounds either of discrimination, would, in effect, absence of certainty. Such an outcome pression, or of the of the law of blasphemy.” constitute the demise Whitehouse v. Lemon (1979) 1 A.C. 617 (H.L. 1978) (consolidated appeals). Id Gay News Ltd. v. United Kingdom, 5 Eur. Ct. H.R. 123 (1982). Wingrove v. United Kingdom, 24 Eur. Ct. H.R. 43 (1996), Id S M K Whitehouse v. Lemon Wingrove v. United Kingdom Notably, the Human Rights Act was designed to give effect to the ECHR in Rights Act was designed to give Notably, the Human laws in a number of European countries, The application of the blasphemy 78 79 80 81 82 77 C Y 9505.htm#a2. 79 ¶ 20, mon law offence of blasphemy in U.K. after he published an illustrated poem mon law offence of blasphemy in involving Jesus Christ. describing certain homosexual acts sites/eng/pages/search.aspx?i=001-58080. sorship of the film “Visions of Ecstasy,” which depicted the supposed erotic fan- sorship of the film “Visions of Ecstasy,” tasies of St. Teresa. U.K.’s domestic law. on the grounds that these violate the especially in U.K., have been challenged of religion protected under the European freedom of expression and the freedom opinion expressed in the Select Committee Convention. However, contrary to the Commission of Human Rights, defunct since Report noted above, the European Rights, adjudicatory institutions created 1998, and the European Court of Human ruled that the enforcement of blasphemy under the Convention, have consistently restriction of the freedom of expression. laws in European states is a legitimate In Volume 11, Issue 2 ple, while the U.K. has non-statutory common law blasphemous libel provisions, law blasphemous common the U.K. has non-statutory ple, while Act 1998: out that after the Human Rights it has been pointed \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 15 12-JUN-14 13:16 ropean Commission of Human Rights on the grounds that his freedom of expres- ropean Commission of Human Rights been violated by the prosecution.sion and freedom of religion had The as “manifestly ill-founded” and held that the Commission rejected the application for the protection of the religious sensi- prosecution was a proportionate measure bilities of others. application for a classification certificate on the grounds of blasphemy.application for a classification certificate The pro- ducers claimed that this violated their freedom of expression. of publishing a blasphemous libel and both the Court of Appeal and the House of of publishing a blasphemous libel and Lords upheld the conviction. Statute that won first prize in a contest at Hofstra University was considered. According to the Statute that won first prize in a student contest at Hofstra University was considered. According to review author, “. . .the Model Statute’s requirement is chilling. The statute requires a state agency by court order or movies before they can be shown and, if found to be defamatory, the movie shall, sought by the reviewing agency, not be shown.” 35138-lfi_11-2 Sheet No. 13 Side A 06/12/2014 13:38:49 06/12/2014 A Side 13 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 13 Side B 06/12/2014 13:38:49 M K C Y Volume 11, Issue 2 http://hudoc.echr.coe.int/ The case arose when 86 available at Choudhury, 1 All E.R. 306, 313 (Q.B. R v. Chief Metropolitan Magistrate ex parte In http://conventions.coe.int/Treaty/en/Treaties/Html/ 85 available at The Court of Appeal held the Magistrate’s deci- The Court of Appeal held the Magistrate’s 83 http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm: 87 Decoding the Freedom of Expression Decoding This fundamental freedom is also subject to limitation on This fundamental freedom is also available at , the petitioner claimed that the U.K. violated his freedom of , the petitioner claimed that the U.K. 84 http://echr.ketse.com/doc/17439.90-en-19910305/view/. Everyone has the right to , and religion; this right includes free- dom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. Strong arguments have been advanced in favour of the abolition of blas- have been advanced in favour of the Strong arguments against differ- that such laws may discriminate phemy laws, for example, applicant - or that - as put forward by the ent faiths or denominations of faith or individ- are inadequate to deal with matters legal mechanisms that there is as yet not sufficient ual belief . . . However, the fact remains orders of the member States of the common ground in the legal and social system whereby a State can impose Council of Europe to conclude that a on the basis that it is blasphe- restrictions on the propagation of material society and thus incompati- mous is, in itself, unnecessary in a democratic ble with the Convention.” Convention For Protection of Human Rights and Fundamental Freedoms art. 9(2), Apr. 11, 1950, Convention For Protection of Human Rights and Fundamental Freedoms art. 9(2), Apr. 11, R. v. Chief Metropolitan Stipendiary Magistrate, (1990), Choudhury v. United Kingdom, App. No. 17439/90, Eur. Comm’n H.R. Dec. & Rep. 12 Wingrove v. United Kingdom, 24 Eur. Ct. H.R. 43 (1996), Wingrove v. United Kingdom, 24 Eur. Ct. H.R. Apr. Council of Europe, Convention For Protection of Human Rights and Fundamental Freedoms, Article 9 of the European Convention guarantees the freedom of religion to the Article 9 of the European Convention 85 86 87 83 84 1991). 005.htm. Council of Europe, 213 U.N.T.S. 221, available at 11, 1950, CETS No. 005, sites/eng/pages/search.aspx?i=001-58080. citizens of Europe. 94 Loyola University Chicago International Law Review declared admissible by the Commission, but was rejected by the Court. was rejected by Commission, but admissible by the declared The aim serious offence to their the protection of Christians against of the interference, of Articles 9 and 10 of the to be fully consonant with the aims beliefs, was held Convention.force in are still in The Court noted that blasphemy applied, and ruled that the countries, although these are rarely various European supervision by the Court) to were best placed (subject to final national authorities were necessary and appropriate.decide what restrictions that: The Court stated \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 16 12-JUN-14 13:16 sion to be correct since the Common Law offence of blasphemy is limited to sion to be correct since the Common various grounds, including “the protection of the rights and freedoms of others,” various grounds, including “the protection of religion are enumerated as opposed although fewer limitations on the freedom to those on the freedom of expression. the U.K. Court of Appeal turned down a judicial review petition filed by a Mus- the U.K. Court of Appeal turned down the magistrate to issue a summons for blas- lim citizen against the refusal of Salman Rushdie, for insults to Islam in his phemy and against “The Satanic Verses.” ex parte Choudhury to blasphemy. religion by allowing him to be subjected 35138-lfi_11-2 Sheet No. 13 Side B 06/12/2014 13:38:49 06/12/2014 B Side 13 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 14 Side A 06/12/2014 13:38:49 The Court 93 The Commis- Otto-Preminger- 89 In the case of 92 , 9th edition (1950) Article 214: ”) for attempted violation of §188 of the ”) for attempted violation of §188 of The Crime of Blasphemy and the Protection of Fundamental The complainant’s subsequent application to the Euro- application to subsequent The complainant’s L. J. 162, 169-70 (1999). It has been argued that “if the believer asks to Das Liebeskonzil 88 Loyola University Chicago International Law Review 95 Decoding the Freedom of Expression Decoding FRICAN the European Court discussed the legality of the seizure and the European Court discussed the 90 91 Stephen’s Digest of the Criminal Law , 116 S. A , for example, Nicholas Smith, Every publication is said to be blasphemous which contains any contemptuous, reviling, scurri- lous or ludicrous matter relating to God, Jesus Christ or the , or the formularies of the Church of England as by law established. It is not blasphemous to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not to the substance of the doctrines themselves. See Otto-Preminger Institut v. Austria, 19 Eur. Ct. H.R. 34, 37 (1994). Id. Id. Id. of blas- In Whitehouse v. Lemon, Lord Scarman in the House of Lords adopted the definition M K Another traditional argument against recognizing a right to protection from Another traditional argument against The above jurisprudence of the European Commission of Human Rights and of the European Commission The above jurisprudence 92 93 88 89 90 91 C Y be spared the pain of vigorous disagreement of others, it amounts to asking for special treatment.” Human Rights phemy given in Austrian penal code, the offence of disparaging religious precept. Austrian penal code, the offence of blasphemy is that it would be tantamount to giving undue preference to the free- blasphemy is that it would be tantamount expression. dom of religion over the freedom of the European Court of Human Rights, binding upon all member states in Europe, of Human Rights, binding upon the European Court European Convention may that any member state of the compels the conclusion blasphemy laws.enact and enforce consid- enactment of blasphemy laws is The on the freedom of expres- and sometimes a desirable limitation ered a legitimate sion. guaranteed in Article 9 of Convention However, the freedom of religion upon the member states to enact blasphemy does not impose a positive obligation already in place.laws if they do not have such laws is so even if, as in the This laws do not provide equal treatment to all Salman Rushdie case, the blasphemy religions. is in consonance with The above approach of the European Court that it is not a fundamental right of those traditional rights theory, which holds they form a majority of the population, to be who believe in a religion, even if protected from blasphemy. those who do not be- This would be the case since have a belief which they have a right to lieve in the religion blasphemed also express. as the expression of This may indeed be true if blasphemy were defined religion, as was the case as recently as the an opinion contrary to an established countries in Europe.early part of the last century in most However, the modern such a definition is relevant, focuses on the legal definition of blasphemy, where content of the offending speech, as well the manner and form, rather than the a hostile environment for those espousing a likelihood of such speech to create certain belief. Volume 11, Issue 2 Whitehouse v. Lemon, (1979) 1 A.C. 617, 665 (H.L. 1978) (consolidated appeals). attacks on Christianity. attacks on \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 17 12-JUN-14 13:16 pean Commission of Human Rights was declared inadmissible. pean Commission forfeiture of a movie (“ Institut v. Austria, sion ruled that there was no violation of Article 9 in the lack of any criminal was no violation of Article 9 sion ruled that there the religious sensibilities those who publish material offending sanctions against of non-Christians. 35138-lfi_11-2 Sheet No. 14 Side A 06/12/2014 13:38:49 06/12/2014 A Side 14 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 14 Side B 06/12/2014 13:38:49 M K C Y at 41. Hence, the cen- See id. Volume 11, Issue 2 96 The Court, having stressed that The Court, having 94 Decoding the Freedom of Expression Decoding 95 . at 55. However, the manner in which religious beliefs and doctrines are opposed in which religious beliefs and doctrines However, the manner of the State, which may engage the responsibility or denied is a matter of the right to ensure the peaceful enjoyment notably its responsibility those beliefs and Article 9 (art. 9) to the holders of guaranteed under methods of in extreme cases the effect of particular doctrines. Indeed, inhibit those who religious beliefs can be such as to opposing or denying hold and express from exercising their freedom to hold such beliefs them. The freedom of religion is provided in Article 14 of the Austrian Constitution (Basic Law), The freedom of religion is provided in Article 14 of the Austrian Constitution (Basic Id Otto-Preminger Institut v. Austria, 19 Eur. Ct. H.R. 34, 43-44, 57 (1994). The Court found the film to be an artistic expression that was “gratuitously The Court found the film to be an It is evident that in the Court’s view the evil in blasphemy is not the expres- It is evident that in the Court’s view by the cartoons was that all Mus- The message that was clearly disseminated 94 95 96 whereas is protected under Article 17a. The leading precedent of the Austrian Supreme whereas artistic freedom is protected under Article 17a. The leading precedent of the Austrian a work of art Court pertained to the censorship of another film. The Supreme Court suggested ‘that if Law, that may impinges on the freedom of religious and worship guaranteed by Article 14 of the Basic (judgment constitute an abuse of the freedom of artistic expression and therefore be contrary to the law’ of 19 December 1985, Medien und Recht (Media and Law) 1986, no. 2, p. 15). offensive to others and thus an infringement of their rights.” offensive to others and thus an infringement 96 Loyola University Chicago International Law Review analysed the situation as one which presented a conflict between the freedom of the freedom a conflict between which presented the situation as one analysed of artistic expression. religion and the freedom \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 18 12-JUN-14 13:16 in democratic societies the followers of a particular religion, even if the majority the followers of a particular religion, in democratic societies proceeded to state: prepared to face opposing opinions, religion, must be sorship was justified. the manner and form of such expression sion of a contrary opinion but rather ability to practice their religion.which interferes with a religious group’s The be heightened when the target religion is the concerns with such speech ought to the majority.religion of a minority rather than allowance of blasphemy Legal as distinct from the state, denying the would then be tantamount to the majority, minority their freedom of religion. the freedom of religion The liberal view of as negative liberties and the stress upon and fundamental freedoms generally of following a particular religion preventing the state from limiting opportunities majority would be allowed to achieve extra- miss the mark in this context: the an indirect control of state power. legally what it cannot achieve through lims are terrorists. their shoulders at all If Muslims in Europe have to look over as terrorists, then such speech would have a times for the fear of being branded and observance of their religion.chilling effect on the worship, practice, This as per the European Court’s own analysis, would be a violation of Article 9 their which suggests that all states ought to have a positive obligation to protect citizens’ freedom of religion. Unfortunately, the Court has not yet taken the ar- protection gument to its logical conclusion by holding that citizens have a right to from such gratuitous blasphemy. Blasphemy against a minority’s religion is an abuse of even more sinister wrong and states should be obliged to prevent such the freedom of expression. 35138-lfi_11-2 Sheet No. 14 Side B 06/12/2014 13:38:49 06/12/2014 B Side 14 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 15 Side A 06/12/2014 13:38:49 http:// ) decided not IKIPEDIA Ben el Mahi v. , W See ) upheld the decision in Ironically, all of the Ironically, all of 97 Statsadvokaten i Viborg Rigsadvokaten http://echr.ketse.com/doc/5853.06-en- available at Muhammad Cartoons Controversy depicts a man failing to identify the prophet of depicts a man failing Loyola University Chicago International Law Review 97 Decoding the Freedom of Expression Decoding If the newspaper wished to publish cartoons depicting ‘Arab If the newspaper wished to publish Jyllands-Posten 98 of the caricatures. viewer is how to What the cartoons do not inform the For an archived image, see Jyllands-Posten, for Viborg ( In January 2006, the regional public prosecutor M K Another difficulty inherent in permitting blasphemy against a minority’s relig- inherent in permitting blasphemy Another difficulty The fine distinction between hate speech and blasphemy against a minority The fine distinction between hate 97 98 C Y upload.wikimedia.org/wikipedia/en/7/75/Jyllands-Posten-pg3-article-in-Sept-30-2005-edition-of-Kul- turWeekend-entitled-Muhammeds-ansigt.png. Denmark, App. No. 5853/06, Eur. Ct. H.R. (2006), 20061211/. Volume 11, Issue 2 ion is that such acts often conflate the categories of race and religion to such an often conflate the categories of ion is that such acts between hate speech and to make meaningful distinctions act that it is impossible the religion of the minority the race or ethnicity and blasphemy, and between of abuse. religious beliefs are the target communities whose Danish The phenomenon. quintessential example of such a cartoons provide a im- The main age published by presumably belonging to identity line-up as all the suspects, Islam in a criminal and creeds, are dressed up similarly. different religions IV. Fundamental Race, Religion, and Liberal A Clash of Categories?: Rights \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 19 12-JUN-14 13:16 to initiate criminal proceedings against the newspaper under Article 140 of the Danish Criminal Code. to initiate criminal proceedings against the newspaper under Article 140 of the Danish Criminal or acts of Article 140 provides that any person who publicly mocks or scorns the religious doctrines for a term of worship of any lawfully existing religious community may be punished with imprisonment up to four months. On appeal the Director of Public Prosecutions ( of March 2006. The DPP’s decision makes for interesting reading. First, in a disingenuous understanding a mockery of Islam the DPP held that ridiculing prophet Muhammad (P.B.U.H.) was not tantamount to “ encompass the “religious doctrines or acts of worship” in Islam. Article 140, it was held, did not Secondly, religious feelings which are not tied to a community’s religious doctrines or acts of worship.” as regards the DPP stretched logic to breaking point over the analysis of specific cartoons. Specifically, admitted it the caricature depicting prophet Muhammad (P.B.U.H.) with a bomb as his turban, the DPP or could also “be taken to depict the Prophet Muhammad as a violent person and as a rather intimidating insult to the frightening figure. . . . This depiction might with good reason be understood as an affront and an expression Prophet, who represents an ideal for believing Muslims. However, such a depiction is not of the Danish of mockery or ridicule, and almost certainly not of scorn within the meaning of Article 140 meaning Criminal Code. The concept of scorn covers contempt and debasement, which in their usual would not cover situations depicting a figure such as that shown in drawing. . .“ community’s religion, especially when that minority community also has distinct community’s religion, especially when enables the creation of an environ- racial or ethnic and cultural commonalities, persecution that cannot be achieved directly. ment of abuse, ridicule, and social of the inseparable facets of identity, does not The ridicule of religion, only one terrorists’ in exactly the same manner it would not have to change a thing except terrorists’ in exactly the same manner the title of the piece. would have been legiti- The publication of such cartoons mately suppressed as hate speech. other caricatures published on that page effectively advise on how to identify the other caricatures published on that in reality.Muslim-terrorist in such a line-up Arab, dressed in a He is a bearded and compels his women to be covered from distinctive garb, supports a turban culture of the Muslim-Arab-terrorist are the head to toe. The religion, race and leitmotif the Muslim pacifist, or an immigrant citizen distinguish the Muslim terrorist from religion-race-culture.of Europe with whom he shares his Is this blasphemy or is this hate speech? 35138-lfi_11-2 Sheet No. 15 Side A 06/12/2014 13:38:49 06/12/2014 A Side 15 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 15 Side B 06/12/2014 13:38:49 M K C Y In the con- 100 Volume 11, Issue 2 and the “conflation 99 101 Reports, Studies, and Other Documentation for the Preparatory Com- , ¶ U.N. Doc. A/CONF.189/PC.1/7 (Apr. 13, 2000). Decoding the Freedom of Expression Decoding U.N. Secretary-General, . at ¶ 57. Nothing in [the] Convention 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 set forth herein See Human Rights Council Res., Rep. of the Human Rights Council, 7th Sess., 20 Feb. 2008, A/HRC/ Id The emergent liberalism of the European conception of fundamental rights The emergent liberalism of the European the overarching value in European social The freedom of expression is not 99 100 101 mittee and the World Conference 7/19 at ¶ 54 (20 Feb. 2008). displayed an inability to deal with the complexities of discrimination against mi- displayed an inability to deal with overlapping identities of race, religion nority communities constituted through and culture. of the rights to free The primary defect in the liberal conception focus on the state’s interference in the minor- speech and religion is its exclusive ity communities’ fundamental rights. of the liberal con- The inherent negativity from discriminating against minority ception not only disables the state but also from preventing offensive speech by individuals on the basis of religion exercise of religion by the minority com- private individuals that stifles the free munity. defense of the Danish However this approach, constructed through the historically more communitarian ethos the cartoons, sits uncomfortably with the fundamental and rigid than recently pro- European conception of rights as less fessed. robust action against This communitarian ethos is reflected in the more that is permissible to states under the ECHR. hate speech and Holocaust denial basis for mediating the conflicting values Such an approach provides a sounder freedoms of expression and religion by ena- and political aims underlying the of a minority’s religion that amounts to aggra- bling the state to proscribe ridicule vated discrimination and hate speech. other responsibilities including the mandate construction and the state has certain by minority communities.of ensuring the free exercise of religion This may of hos- include the suppression of certain expression that creates an environment actors. tility towards distinct racial-ethnic-religious communities by non-state Furthermore, Article 17 of the ECHR stipulates that: 98 Loyola University Chicago International Law Review render such an attack on the social position of a minority community any less of a minority community the social position an attack on render such identity markers of that of bigotry which focuses on the racial grave than an act community.such an act of blasphemy is a particularly In fact, it is arguable that speech or “aggravated discrimination,” sinister form of hate \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 20 12-JUN-14 13:16 text of increasing Islamophobia, the aggravated meeting points of racial and re- Islamophobia, the aggravated meeting text of increasing association of are often manifested in the “stereotypical ligious discrimination is bolstered by intellec- and terrorism - an association which Islam with violence by the media and which in political rhetoric and exaggerated tual constructs, used on the popular imagination.” has a profound impact of racial, cultural and religious factors” may be “highlighted as one of the central and religious factors” may be “highlighted of racial, cultural complexity.” of racism and its increasing causes of the resurgence 35138-lfi_11-2 Sheet No. 15 Side B 06/12/2014 13:38:49 06/12/2014 B Side 15 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 16 Side A 06/12/2014 13:38:49 . . } } . } http:// Although , the ECtHR 107 available at The only mean- http://www.echr.coe. 108 available at http://hudoc.echr.coe.int/sites/eng- http://hudoc.echr.coe.int/sites/eng- %22itemid%22:[%22001-67632%22] { available at available at , the ECtHR denied, by a narrow ma- http://conventions.coe.int/Treaty/en/Treaties/Html/ Norwood v. United Kingdom Norwood v. United %22itemid%22:[%22003-2800730-3069797%22] %22itemid%22:[%22003-2800730-3069797%22] { { The applicant produced leaflets carrying The applicant displayed a poster with a The applicant displayed a poster 106 103 available at The ECtHR held that “the words and images on The ECtHR held that “the words 104 eret v. Belgium F´ 105 Loyola University Chicago International Law Review 99 Decoding the Freedom of Expression Decoding 102 eret v. Belgium, 573 Eur. Ct. H.R. (2009), eret v. Belgium, 573 Eur. Ct. H.R. (2009), F´ F´ Norwood v. United Kingdom, App. No. 23131/03, Eur. Ct. H.R. (2004), Press Unit, Fact Sheet – Hate Speech, Eur. Ct. H.R. (2013), or at their limitation to a greater extent than is provided for in the is provided for greater extent than limitation to a or at their Convention. See Id. Id. See See See Convention For Protection of Human Rights and Fundamental Freedoms art. 17, Apr. 11, 1950, Convention For Protection of Human Rights and Fundamental Freedoms art. 17, Apr. 11, M K In a more recent case, The ECtHR frequently reads Article 17 in conjunction with other provisions as reads Article 17 in conjunction The ECtHR frequently C Y 103 104 105 106 107 108 102 hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-67632# press/pages/search.aspx?i=003-2800730-3069797# press/pages/search.aspx?i=003-2800730-3069797# int/Documents/FS_Hate_speech_ENG.pdf. 005.htm. Council of Europe, 213 U.N.T.S. 221, declined the protection of Article 10 to a member of the anti-immigration British of Article 10 to a member of declined the protection offence under section 5 had been charged with an aggravated National Party who hostility towards a racial or Act 1986 for “displaying, with of the Public Order other visible representation which is threat- religious group, any writing, sign or the sight of a person likely to be caused har- ening, abusive or insulting, within assment, alarm or distress by it.” the basis for the restriction of rights provided in the ECHR. of rights provided in the the basis for the restriction ECtHR While the a positive obligation on the that there that there is neither has held in the past religion nor a right to the from blasphemy against their state to protect citizens an obligation on the state to blasphemy laws, there is indeed equal protection of from hate speech.protect its citizens In Volume 11, Issue 2 ingful distinction between the cases mentioned above and that of the Danish ingful distinction between the cases of offending speech.cartoons was that in the classification All of these cases conflated religion with race as is evident from the offending statements. How- \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 21 12-JUN-14 13:16 anti-immigration and Islamophobic slogans such as “[s]tand up against the Is- anti-immigration and Islamophobic the sham integration policy.” lamification of Belgium” and “Stop jority of 4:3, the protection of Article 10 to a member of the Belgian parliament jority of 4:3, the protection of Article public office pursuant to a conviction for who had been disqualified from holding incitement to racial discrimination. picture of the Twin Towers in flame and the statement “Islam out of Britain picture of the Twin Towers in flame – Protect the British People.” of attack on all Muslims in the United the poster amounted to a public expression attack against a religious group, linking the Kingdom. Such a general, vehement of terrorism, is incompatible with the values group as a whole with a grave act Convention, notably tolerance, social peace proclaimed and guaranteed by the and non-discrimination.” the majority on the Court did not find a violation of Article 17, the judges found the majority on the Court did not find to discrimination and hatred on the basis sufficient basis for restricting incitement of Article 10 itself. of race and ethnic origin in the provisions 35138-lfi_11-2 Sheet No. 16 Side A 06/12/2014 13:38:49 06/12/2014 A Side 16 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 16 Side B 06/12/2014 13:38:49 M K Jyl- This C Y 110 Fundamental 109 Volume 11, Issue 2 the state parties classi- the state eret v. Belgium F´ and Decoding the Freedom of Expression Decoding note 12, at 12-17. and any discussion on political and social values must take and any discussion on political and supra note 5, at 89. for publishing the cartoons under its existing laws, or if the existing supra apriori Glendon, Norwood v. United Kingdom Norwood See Sandel, Another problem with the liberal conception of fundamental rights highlighted with the liberal conception of fundamental Another problem The free speech defense of the publication advanced by the Danish authorities 109 110 100International Law Review Loyola University Chicago ever, in \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 22 12-JUN-14 13:16 fied the offensive statements and actions as hate speech while the Danish statements and actions as hate fied the offensive of religion. as blasphemy and disparagement cartoons were classified To the religion effectively blasphemy and ridicule of a minority’s extent that gratuitous not be allowed to hide hate speech, the state should translates into aggravated as Denmark chose distinctions and a newfound liberalism behind such artificial the caricatures. to do in defense of the impoverishment of polit- defense of the Danish cartoons is by the free speech rights talk. may result from over-zealous ical discourse that is essentially problematic in pluralistic societies where distinct racial-religious- is essentially problematic in pluralistic for integration or assimilation that they cultural minorities are facing demands to adopt a ‘take it or leave it’ approach, or are wont to resist. It is self-defeating when it comes to discussion of over- ‘take it or leave’ as regards immigrants, arching political structures and values. and civil political dis- An open, inclusive understanding on social ordering is the need course, with a view to reach a shared reliance on fundamental rights. of the moment, rather than a restrictive V. Conclusion falters on a number of grounds. The laws of many European states, including as those of Denmark, allow substantial limitations on the freedom of expression regards the prohibition on incitement, hate speech and insult. In addition, it is in within the prerogative of European states to limit the freedom of expression of a mi- order to ban Holocaust denial, blasphemy and even the disparagement nority religion. Therefore, the Danish government could have prosecuted lands-Posten then in laws were held to be inadequate to cover the specific facts of this case, prohibit the least the Danish government could have enacted laws that would place within the framework of rights. of rights is that The primary justification goods but rather that they help con- not that they promote certain socio-political individuals can choose their own values and stitute fair processes within which aims. act as trumps to pre- As such, in liberal political and legal discourse rights that fall foul of rights as conceived by the empt any consideration of values defenders of liberal rights. fact that the advocates of This is regardless of the about what rights are fundamental, and about liberal rights “notoriously disagree of the neutral framework requires.” what political arrangements the ideal rights are all too frequently used in liberal discourse as trumps not only against frequently used in liberal discourse rights are all too against opposing viewpoints, essentially offending state action but also as trumps as debate-stoppers. discussion of conflict- The moment rights are brought up any right is a right.ing values becomes frivolous, for a the liberal understanding In rights are 35138-lfi_11-2 Sheet No. 16 Side B 06/12/2014 13:38:49 06/12/2014 B Side 16 No. Sheet 35138-lfi_11-2 35138-lfi_11-2 Sheet No. 17 Side A 06/12/2014 13:38:49 Decoding the Freedom of Expression Decoding Loyola University Chicago International Law Review 101 M K It is of note that major newspapers in the United States generally refused to It is of note that major newspapers of the Danish cartoons thus represents The success of the free speech defense C Y Volume 11, Issue 2 follow in the footsteps of European , even though the United States follow in the footsteps of European of speech similar to those claimed by the accords protections to the freedom defenders of the caricatures in Europe. in this paper, As has been demonstrated of some European leaders and news personal- contrary to the strenuous assertions absolute in its application and primary ities, such a freedom of expression, and freedoms, is not a European value.amongst other fundamental rights The of expression falls far short of absolutism European conception of the freedom of maintaining social harmony and dis- and allows for restrictions in the interest to the religious sentiment of the citizens. couraging racism, sexism and insult distinct segment in the European polity that There is no denying that there is a should be accorded a primary status believes that the freedom of expression this viewpoint is far from being the consen- amongst all fundamental values, but sus position in Europe.the goal of creating open, The European path towards has been, in the aftermath of the tragic democratic, and multicultural societies the path of ensuring that bigotry and hateful failures of the World War II era, speech is censored. of the bigotry are the Unfortunately, now that the targets the standards appear to be changing. immigrant Muslim minorities in Europe, European human rights discourse.an unwelcome development in the As Europe only be becomes ever more diverse and pluralistic the resulting challenges can engage- met by solutions devised through open, inclusive, civil, and meaningful ments. A robust political discourse that is mindful of histories of colonialism and cultural socio-economic deprivation that is at the heart of immigration, as well is the need and religious disagreements underlying social and economic conflicts, of the moment. A political strategy grounded in fundamentalist liberalism that in the new presents choices in ‘take it or leave it’ terms to minority viewpoints these Europe will not only fracture and polarize the debate but also exacerbate conflicts. If Europe has learned anything from its histories of violence against will be minority communities, the path of open and inclusionary discourse adopted in the hope that humans have the capacity to develop shared foundations of co-existence through such engagement. such publications in the future.such publications publi- against the subsequent The case is stronger nations. in Denmark and other European cation of the caricatures been Having serious insult and injury the publication of this material causes put on notice that the re-publication of the creates a risk of violence, to Muslims, and consequently and those newspapers who the dissemination of hate speech cartoons was clearly were clearly guilty of the willful propagation of this speech indulged in such sentiments of European instigation and insult to the religious offences of causing Muslims.publi- the initial nor the subsequent Even if it is accepted that neither of the legal case would in existing hate speech laws, the failure cation fell foul of against the publication of the strength of the moral argument no way detract from these cartoons. of state parties to prohibit the publication The failure on the part of the European Convention of the letter as well as the spirit is a gross violation of Human Rights. \\jciprod01\productn\L\LFI\11-2\LFI201.txt unknown Seq: 23 12-JUN-14 13:16 35138-lfi_11-2 Sheet No. 17 Side A 06/12/2014 13:38:49 06/12/2014 A Side 17 No. Sheet 35138-lfi_11-2