Another Terrible Court Decision In Europe: Insulting A Religion Is Not Free Speech

from the wait,-what? dept

Let's start off with the basics, because if I don't, I know we'll be flooded with these comments: no, the European concept of "free speech" differs quite a bit from the American one. The American 1st Amendment creates extremely strong protections for all sorts of expression -- including insulting or offending expression. Europe has always been a bit more willing to shove various exceptions into the right of freedom of expression, while mostly paying lip service to the concept. Article 10 of the Human Rights Act says that you have the right to your own opinions and the freedom to share them without government interference but, in practice, Europe has always been much quicker in brushing that aside in order to engage in all sorts of censorship from prior restraint to rewriting history.

And, according to a new ruling from the European Court of Human Rights, another exception to free expression is that you can't disparage religions because it might hurt the feelings of religious practitioners. No, really.

The case, which was originally brought in Austria, involved a woman who hosted an event where she made a bunch of silly and misleading claims about Muslims and the Prophet Muhammad, in particular, claiming that because one of his marriages was to a very young girl, there was an implication that he was a pedophile (and further, strongly implying that other Muslims sought to emulate Muhammad). I'm not entirely clear as to why anyone cares what someone did over a thousand years ago (nor could anyone know with any real certainly what actually happened), but either way, some were offended by these comments -- and that's fine. If someone says offensive things, it's reasonable for some to take offense.

But to claim its a human rights violation?

Multiple lower courts found that such comments could not be permitted, and it finally went up to the European Court of Human Rights, where much of the discussion centered around what the court believed was a clash, of sorts, between freedom to express opinions and freedom to manifest religion. And, the court comes down in this with an argument that would be laughed out of any US court, in that it sets up a "balancing" test. As Ken White has explained multiple times, the Supreme Court in the US doesn't recognize any "balancing" test when it comes to free speech. In US v. Stevens, the Supreme Court explicitly rejected any sort of balancing test:

The Government's proposed test would broadly balance the value of the speech against its societal costs to determine whether the First Amendment even applies. But the First Amendment's free speech guarantee does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.

With this ruling, the ECHR has clearly stated that it's going in the exact opposite direction. It directly argues that one’s free speech can be limited by law if it somehow interferes with someone else's "religious feelings."

While the applicant stressed that her statements had never been aimed at disparaging Muhammad, she did not dispute the legitimate purpose of criminal convictions under Article 188 of the Criminal Code, namely to protect religious peace. The Court endorses the Government’s assessment that the impugned interference pursued the aim of preventing disorder by safeguarding religious peace, as well as protecting religious feelings, which corresponds to protecting the rights of others...

And, while Europeans may argue, this is madness. It is exceptionally dangerous to free speech. I'm not advocating that anyone should be running around spewing ignorant arguments about religious figures that people adore, but saying that you can block free speech if it will "prevent disorder" or "protect religious feelings," means that you've created a massive heckler's veto. All you need to do is claim that hearing the speech will make you and your friends riot, or say it's truly insulted your religious "feelings", and suddenly it means the speech is not allowed. That's crazy and will lead to lots of abuse and questionable situations where people censor themselves to avoid any liability at all.

There's also some truly bizarre and incomprehensible language about how, because free expression includes "duties and responsibilities", that also means you must "ensure the peaceful enjoyment" of others’ religious beliefs. And the court states this right after noting that freedom of expression should allow for offensive, shocking and disturbing comments from non-believers about a religion:

The Court reiterates the fundamental principles underlying its judgments relating to Article 10 .... Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. The Court further notes that there is little scope... for restrictions on political speech or on debate on questions of public interest.... Those who choose to exercise the freedom to manifest their religion under Article 9 of the Convention, irrespective of whether they do so as members of a religious majority or a minority, therefore cannot expect to be exempt from criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith

So, while that sounds reasonable, in the very next paragraph the court pulls out a "however..." and then proceeds to basically rip to shreds everything in the paragraph above.

... however, the exercise of the freedom of expression carries with it duties and responsibilities. Amongst them, in the context of religious beliefs, is the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane

And then it's right back to the old balancing game:

The issue before the Court therefore involves weighing up the conflicting interests of the exercise of two fundamental freedoms, namely the right of the applicant to impart to the public her views on religious doctrine on the one hand, and the right of others to respect for their freedom of thought, conscience and religion on the other

The Court, towards the end, tries to argue that it's really only the truly egregious insults that will matter, but gives little guidance at all on that:

The Court reiterates that a religious group must tolerate the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith, as long as the statements at issue do not incite hatred or religious intolerance. Article 188 of the Criminal Code (see paragraph 24 above) in fact does not incriminate all behaviour that is likely to hurt religious feelings or amounts to blasphemy, but additionally requires that the circumstances of such behaviour were able to arouse justified indignation, therefore aiming at the protection of religious peace and tolerance. The Court notes that the domestic courts extensively explained why they considered that the applicant’s statements had been capable of arousing justified indignation, namely that they had not been made in an objective manner aiming at contributing to a debate of public interest, but could only be understood as having been aimed at demonstrating that Muhammad was not a worthy subject of worship... The Court endorses this assessment.

And what if I were to join a religion focused on worshiping free speech -- and declared that this ridiculous ruling harmed my religious feelings by suggesting such worship was not only misplaced, but illegal? Would I then be able to claim the Court itself had violated my apparent rights to not have my religious feelings offended?

Again, no matter what you think of the nameless plaintiff's statements, which were silly, the idea that (1) that should be balanced against how upset it might make people and (2) that the balance should weigh against her, seems crazy and outright offensive to freedom of expression.

Filed Under: article 10, echr, europe, european court of human rights, free speech, human rights, religion, religious feelings


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  1. identicon
    Anonymous Coward, 26 Oct 2018 @ 3:01pm

    Re: Finally

    It is still ok to say "Bong Hits For Jesus" in the good ol US of A ...

    unless you are a high school senior in the city of Juneau, Alaska.

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