Two Years on from the Hebdo Massacre, Freedom of Expression is More Imperiled Than Ever
January 9, 2017
by Paul Cliteur and Tom Herrenberg
Leiden University Press, 2016
Exactly two years ago today, two Islamist terrorists armed with assault rifles entered the offices of the French satirical newspaper Charlie Hebdo, murdered twelve people and left eleven others injured. Several days later, after an intensive manhunt, the two perpetrators were located, but took several hostages before a shootout with police left the two men dead. Several days later, in a display of solidarity with the two million demonstrators who converged on Paris, forty world leaders appeared to defend freedom of expression and to mourn the dead journalists. The assault on Charlie Hebdo ignited a worldwide discussion on the meaning and significance of free speech and made the question of whether this principle is adequately protected in European nation states more urgent than ever.
A new book edited by legal experts Paul Cliteur and Tom Herrenberg reveals just how precarious the right to free expression had already become by 2015, and charts exactly how it came to pass that our once robust right to satirise religion is now on the brink of collapse in Europe.
The Fall and Rise of Blasphemy Law (Leiden University Press, 2016) charts the West’s concessions to religious fundamentalism over the course of almost four decades. The ten contributing authors show why blasphemy laws have enjoyed an upsurge, not a decline. A close analysis of case studies reveals two trends: first, the West’s gradual dissolution of blasphemy laws and, over recent decades, the de facto revival of bans on blasphemy by extrajudicial executions, political pressure on Western states and the international community and the semantic re-branding of blasphemy laws under the auspices of “group defamation” or “inciting hatred”. Through a series of compromises, liberal legislators have been persuaded to release their grip on the once all-important distinction between protecting people and protecting ideas, and have sanctioned a casuistic conflation of the two.
The volume is as richly dense as it is relevant. Historian David Nash’s contribution examines the history of blasphemy in the West from the medieval period, and chronicles a tension within Western democracies between guaranteeing freedom of speech and protecting vulnerable minorities. The secular-inspired liberalism of the French and American revolutions saw the blasphemer primarily as an ideological dissident. With religion no longer holding sway as the Law of the land, authorities had to defend restrictions on other grounds. In England, the Foote Case of 1883-4 proved decisive. The presiding judge (Justice Coleridge), established a new test of blasphemy which was based not on the matter uttered, but instead foregrounded the wounding of the aggrieved individual’s feelings (i.e. the manner). This resulted in the conceptual transformation of the blasphemer from an ideological dissident, as he was in the age of reason wherein the perceived tension was between the individual and religio-state compulsion, into a different species of criminal: one who posed a threat to the ‘public order’ or a breach of the peace. Effectively this was the beginning of a shift in the law from treating the material as blasphemous to asking whether it could be proven to offend.
For most of the twentieth century the laws of blasphemy remained, but slumbered as a “dead letter” while the culture modernised and progressed. However, by the century’s end mass communication had brought multiple religions into proximity and supranational agencies came under increased pressure to address religious privileges that had been enshrined in law. In addition, the West’s prioritisation of individual liberties clashed with the Islamic emphasis on collectivism and community.
The maelstrom that followed the 1989 publication of Salman Rushdie’s The Satanic Verses highlighted the need to confront the underlying inequalities that existing blasphemy laws represented. Finding themselves unwilling to accept the timely demise of blasphemy law, which would have removed protection (and by definition privilege) from state religion, European states opted instead to offer wider protection to minority religions. The removal of blasphemy laws and their replacement with incitement to religious hatred would ostensibly equalise the status of all religious groups before the law, but in so doing it produced even worse new laws that conflated the concept of blasphemy with the concept of hate crime and gave a dangerous culture of viability to such laws that would have seemed incredible only fifteen years earlier. Consequently hate crime (initially conceived to protect minorities from discrimination based on involuntary or even biological differences) was amalgamated with protection of minorities on the grounds of ideological differences.
Ivan Hare’s chapter outlines the history of blasphemy under the English common law from its development by the courts in the seventeenth century. Chief amongst the puzzling elements of the English blasphemy law he examines is the resurrection of blasphemy law in the late twentieth century in the 1977 Whitehouse V Lemon decision, which reversed two of the most important progressive strides that had been made over the previous century, first, by requiring an intention to insult or cause offence and also by confining it to cases where a foot-stomping “breach of the peace” was likely to result.
In March 2008, only some three months after the Jerry Springer decision, and after a brief consultation, Baroness Andrews introduced clauses into the House of Lords (by way of an amendment to the Criminal Justice and Immigration Bill), which would abolish the offences of blasphemy and blasphemous libel, thus ending 350 years of legal history. But other authors in this book argue that the change was a semantic one, and had little effect in principle because the Racial and Religious Hatred Act that had come into force on 1 October, 2007 had already conflated persons and beliefs in its definition of “religious hatred”.
Volume editors Cliteur and Herrenberg offer a chapter on the life and times of the Dutch blasphemy law, which entered into force in 1932 and was finally repealed in 2014. They also examine events surrounding Theo Van Gogh’s murder in 2004. This section discusses the submissive attitude taken by the Dutch multiculturalist intelligentsia towards radical Islam, which is illustrated in the cases of Van Gogh, Ayaan Hirsi Ali and Pim Fortuyn – all of whom had been vocal advocates of Voltaire’s full-blooded definition of tolerance, which differs radically from the more anaemically conceived “multiculturalist tolerance” which prioritises polite silence over lively and sometimes vigorous debate, and in so doing has permitted ‘peace’ to triumph over free expression. (A trenchant analysis of the Utilitarian argument is provided in chapter 7, see below.) The irony is that the above mentioned artists and politicians have been willing to pay the ultimate price for their liberty, while the multiculturalist “left” have been unwilling even to pay the modest cost of discomfort that comes with the occasional verbal tussle. Fortuyn (himself a homosexual) had, before being murdered, reserved the right to say “Islam is a backward religion” but he also accepted that imams and other orthodox religious believers had the right to say “homosexuals are sick” (as they are wont to do without any verbal or physical backlash from LGBTI activists)
A scene featuring Ayaan Hirsi Ali (left) taken from Van Gogh’s ‘Submission’
In Dutch academia, as in the rest of Western Europe, the study of radicalised religion fell out of fashion and was dwarfed by Edward Said’s criticism of orientalism, as if what was happening in the real world were irrelevant. All critical commentary on the prophet if Islam was framed as though by a jihadist as an “attack on Islam” to which the true Muslim must respond with violence. This way of presenting the issue was in tension with the Dutch freethinking iconoclasm and scepticism about authority that had characterised the 1960’s. The open, critical cultural climate was eroded by the importation of Puritanism that came with a new wave of immigrants to the country. But this was also a violent form of Puritanism, as Van Gogh’s murder so graphically attested. Cliteur and Herrenberg explain that there are two general ways in which liberal multiculturalists can respond to this new phenomenon. Either they can adopt a welcoming posture towards the legal suppression of blasphemy, either as a gesture of “multicultural etiquette” or, pragmatically, to avoid terrorist attacks. One way of choosing this option without appearing to openly endorse blasphemy laws is to target blasphemous utterances by incorporating them into more extensive laws against “incitement to hatred on religious grounds” and “defamation of a group of people on the basis of their religion”. The latter of these accommodations to legal suppression of blasphemy might seem innocuous enough. But the authors caution that this type of legislation contains the potential to develop into a resurgence of blasphemy prohibitions. Thankfully, the Dutch state moved in the opposite direction and revoked provisions that protect religion and religious symbols as such. The Dutch chose to at last repeal their outdated blasphemy law in 2014.
Many of the debates on the role of religious fundamentalism that have become familiar to us in the post-9/11 geo-political landscape were foreshadowed in Death of a Princess (1980), a dramatised documentary about about the execution of a Saudi princess who was accused of adultery. Authors Cliteur, Laetitia Houben and Michelle Slimmen argue that this case set a precedent insofar as it represents the first large-scale attempt to stifle freedom of speech in European nation states on the ground that the film’s content would offend religious sensibilities. It provides a clear illustration of the way in which theocratic dictatorships have successfully exerted pressure on liberal democracies, through economic boycotts or other coercive measures. Although the execution of the princess amounted to an “honour killing”, the Anglo-American oil company Mobil Oil pressurised the United States to cease distributing the film after it had initially aired in June 1980. Even the non-commercial American Public Broadcasting Service (PBS) came under pressure from the U.S. Secretary of State, who attempted to persuade the channel to put economic interests above fundamental human rights.
What also stands out with alarming resonance is that characters in the film who defend the Saudi regime’s barbarity do so on the same grounds as today’s multiculturalist defenders of Islamism. A character in the film named Samira deploys the ‘No True Scotsman’ fallacy (substituting ‘Islam’ for ‘Scotsman’), a tactic that has been used repeatedly against critics of Islamism by everyone from Barack Obama to David Cameron. Those who say that draconian punishments and intolerance for dissent have nothing to do with true Islam start from the unstated premise that religion, in its most basic nature, is good. Whenever something bad seems to be connected to religion, this is apparently not religious. On that basis, the character Samira can say without irony that Saudi Arabia “isn’t a Muslim country”. Then there is the character Elsa Gruber who argues from an incoherent combination of cultural relativism and universalism – another form of argument that has become ubiquitous nowadays. On the one hand, genuine liberals who object to Islamic barbarism on the basis of human rights are morally scolded (presumably because there is a universal moral value in … uh…., respecting everyone and every practice that is culturally entrenched, including practices that treat human rights as negligible). On the other hand, “they” (other cultures) are different from us and deserve ‘respect’, presumably because judging them is objectively morally wrong, not just distasteful from our culturally limited perspective. There is no such thing as a consistent relativist. Another character in Death of a Princess, Ms. Quataajy, is a mouthpiece for the brand of victim blaming that became typical of responses to the Charlie Hebdo massacre: the princess had “brought it on herself”. She “should have known” what would befall her. She is responsible for the consequences of her behaviour. Mobil Oil used the same twisted logic when trying to persuade the American Public Broadcasting Service to cancel Death of a Princess: We all know that our Constitution protects free speech but the press has an obligation to “be responsible”, and so on. Implicitly, ‘responsibility’ has nothing to do with calling out gross violations of human rights and infringements of the principles for which countless generations of political philosophers and social activists have fought. Accordingly, there was something ‘irresponsible’ about illuminating the cruel death of a young princess who did nothing other than choose to live her own life.
The authors return to the question of what any of this has to do with Islam and whether the princess’s execution was mandated by the religion. There are several possible responses. The first is to say that theo-terrorism has nothing to do with Islam. The other is to say that it has everything to do with Islam. Death of a Princess does not, in contrast to other controversial films about Islamic tenets, hold Islam responsible for the execution. It is mainly Arab culture, as interpreted by those in power, which is held accountable.
So we return to the question of how to establish what exactly belongs to a religion and what doesn’t. It appears that the answer is always “up to us”, as Samira seems to believe in the film when she proclaims, “This autocratic regime has nothing to do with Islamic thought, feeling or ideology.” The same mantra is today repeated by politicians like Obama who say that deplorable practices like terrorist attacks have nothing to do with Islam. The authors point out that it would be closer to the truth to say that while terrorist attacks do not have everything to do with Islam, it is equally unrealistic to claim that they have nothing to do with the religion. What kind of Islam may be the more fruitful question.
A scene from the British Documentary, ‘Death of a Princess’
Thirty-five years on from the cancelled screenings of the film, the position of women in Saudi Arabia has not significantly changed. After the American broadcaster PBS announced that it would air the film, Mobil Oil Company (a financier of some of PBS’s other programming) put the pressure on. On 9 May the Secretary of State sent a letter to the President of PBS complaining about the possible consequences of screening the film in which he acknowledged the objections of the Saudis. Ultimately PBS did not buckle. It broadcasted the film, although many of their stations delayed or cancelled it. Commercial interests also played an important part in the Dutch discussion about screening the film. Dutch MP’s stressed the negative political and economic consequences, and insinuated that “responsibility” for what they considered a bad idea lay with the broadcasters, who should not offend the religious feelings of the Saudi royal family. While the Dutch broadcasting corporation did not succumb to this pressure, the importance given to the religious feelings of the offended parties that had been introduced into the discussion would play a huge role in all of the controversies – the Rushdie Affair, the Danish Cartoon Affair, the Rudi Carrell Affair, and the Charlie Hebdo Affair — that were then still to come.
Since the 1988 publication of Salman Rushdie’s The Satanic Verses and Khomeini’s “fatwa”, clashes between a culture of civil liberties and theocratic extremism have expanded beyond novels to cartoons and video clips. Something that came up over and over again in the discussion of Rushdie’s book was the notion that, as someone who came from a Muslim cultural background, Rushdie should have known better. This idea was voiced – more or less explicitly – by Rushdie critics Hugh Trevor-Roper, John le Carré, Roald Dahl and John Berger. Critiques by the latter two shared common ground with Iran’s parliament speaker at the time, who said the solution to the crisis was to seize copies of Rushdie’s book and burn them.
Official government reactions to the fact that Khomeini had appropriated the right to exercise control over an individual not belonging to his jurisdiction were tame. Only novelist Anthony Burgess had the prescience to observe that the Ayatollah’s order to kill Rushdie on British soil was tantamount to a jihad. “It is”, he said, “a declaration of war on citizens of a free country and a such it is a political act.” Burgess’ reaction highlighted the really relevant issue of national sovereignty while British politicians Margaret Thatcher and Sir Geoffrey Howe deflected attention to the book’s contents instead, and in Rushdie’s view, began to play both sides in order to appear to defend free expression while keeping diplomatic relations with Iran on track. It took Ian Davidson to steer the discussion back on course. Writing in the Financial Times, he commented, “the only questions that are immediately relevant are whether Mr. Rushdie was legally entitled under British law to write and publish his book, and whether Ayatollah Khomeini is entitled to incite the murder of Mr. Rushdie.”
The Fall and Rise of Blasphemy Law provides trenchant analysis of Rushdie’s critics, which is all the more important because their basic arguments have been repeatedly used against the Danish cartoonists, Charlie Hebdo journalists and other critics or satirists of Islamic ideology ever since. While historical iconoclasts from Nietzsche to Holbach to Freud (all of whom characterised religion in ways that could easily offend believers) are lauded, their contemporary equivalents (Dawkins, Hitchens, Onfray) are despised. Jonathan Swift and Voltaire are not criticised for their “tone”, while Rushdie was raked over the coals for his. Other commentators seem to think that the size of the religion, or the length of its established status, is a legitimate criterion for placing its tenets beyond criticism. It would seem that the right to criticise a religion diminishes in proportion to the power it wields. The authors of The Fall and Rise of Blasphemy Law rightly ask why it should not be the reverse in light of Lord Action’s observation that power corrupts and absolute power corrupts absolutely. We might also analyse the disparity between our submissiveness to the demands of Islamists and our relative assertiveness in the face of secular dictators. Why should we not take “responsibility” and show deference towards the feelings of the Leader of the Democratic People’s Republic of Korea when we happily do so vis-à-vis the Supreme Leader of the Islamic Revolution in Iran?
What Rushdie’s early critics had in common was their presumption that their weak response to the Satanic Verses controversy was exceptional – it was his personal liberty that was at stake – and their compromises would not lead to the erosion of political liberty in general. Today we know better. Indeed, the Rushdie affair can be regarded as the locus classicus of a social phenomenon new to modern Western societies: censorship by terrorism and intimidation.
Salman Rushdie with a copy of his book ‘The Satanic Verses’
The quintessential architect of liberal political philosophy, John Stuart Mill, argued that mankind does not have the right to silence the individual – not even when this person’s ideas or opinions are shared by no one else. The 2010 planned burning of the Islamic holy book, the Quran, by the American pastor Terry Jones was so universally unpopular that it furnished the ideal case study against which Mill’s argument could be tested. The moral dilemma that the “mankind minus one” situation confronted us with was between the positive value of free speech and the negative effects of its violent consequences. The values to be weighed in the balance were peace and security on the one hand, and liberty and free expression on the other. A 2011 Guardian poll used wording which implied that, if you believe that Jones, in burning the Koran, should be held responsible for deaths of UN staff in Afghanistan, then this is because the act is “a provocative blasphemy against others’ beliefs.” This required respondents who answered ‘yes’ to accept the unstated premise that murder of innocents is an “understandable” response to provocative speech. The ethical perspective appeared to be that that the “crime” of burning a sacred book is equivalent to the crime of murder. Any basic ethical theory should take proportionality into account. But the question before us is not whether burning a Koran is comparable to murder. Rather, it is whether the utility of not burning the book will be greater (i.e. lead to the greatest happiness for the greatest number) than the possible benefits of Jones actually burning the book.
In utilitarianism, intentions play no role, so persons can (also) be held accountable for unintended consequences that others connect to their actions. First, this contradicts our most fundamental intuitions about moral agency. It presupposes that everyone is responsible for everything, even undesired or unforeseen outcomes of their actions. This means that we are responsible for both our own actions and the actions of others. To morally attribute the actions of murderers on the other side of the world to Pastor Jones is to disregard the agency of the murderers and to render them innocent of their own choices. Utilitarianism un-persuasively suggests that a person bears the moral responsibility for the unwanted consequences others tie to their speech acts.
On the other hand, governments have stressed that while provocative speakers or artists have a legal right to express provocative ideas, they should not exercise this right due to the social disruption, fear and suffering that will likely result. This implies that the freedom to express controversial ideas is relatively less important than safety, security and public order. Rule utilitarians might look to the long-term consequences of such a position. They could ask whether the long-term impact of adopting such a posture as a general rule (rather than just in one instance) will lead to the greatest happiness for the greatest number. If governments were to respond to the violence enacted against offensive speakers by appeasement – placing legal limits on free expression to pander to the wishes of terrorists – then terrorists would only be vindicated in the use of violence and emboldened to continue its use. Thus, even the pragmatic, consequentialist focus of utilitarianism leaves serious doubts. Utilitarian reasoning places all of the cards in the hands of those who threaten to use violence. The short-term victories that make utilitarian responses to terrorism alluring are unwise both practically and principally.
In the global context, blasphemy law has fared even better. In recent decades polemics have become an incentive for subverting the content and universality of the fundamental human right of freedom of religion and belief. Religious freedom has been absorbed into policies protecting the reputation of religions against defamation, which has severe consequences for the normative framing of this right. Author Mirjam van Schaik provides a trenchant analysis of resolutions and international documents drafted by the Organisation of Islamic Cooperation (OIC), the self-proclaimed representative body of the Universal Ummah: a community of more than 1.5 billion Muslims. The OIC considers itself the “collective voice of the Muslim world” and is the second largest intergovernmental organisation after the United Nations. In 2011 the OIC created an advisory body, the Independent Permanent Human Rights Commission (IPHRC), which has the legal authority to oversee human rights in OIC member states. Since 2013 the OIC has had an official representative office for the European Union in Brussels. For several decades the OIC has disrupted the universality of the Universal Declaration of Human Rights and its framework. The core of the OIC’s view of human rights can be gleaned from its own Islamic human rights document, the Cairo Declaration on Human Rights in Islam (CDHRI), adopted in 1990, which declares that all human rights must be addressed from an Islamic perspective and all rights and freedoms are subject to Islamic law (Sharia). In 2005, the OIC prepared a ten-year action plan for the Muslim Ummah to achieve its renaissance, in order to (inter alia) project the true image and noble values of Islam. Section VIII of the action programme stated that the 2005 establishment of the IPHRC had to be consistent with the principles of the much older Cairo Declaration, which did not even recognise the fundamental right of freedom of religion, which casts doubts on how far it represented a substantial ‘renaissance’. The action programme made all human rights relative to Islamic law, and specified that they must comply with it. The Ten-Year Programme of Action on the topic of human rights has since been extended to the year 2025.
The OIC’s current charter was adopted in 2008, three years after the formation of the Ten-Year Programme of action. The current charter was adopted by the Eleventh Islamic Summit in March 2008 which aimed to revitalise Islam’s role in the world. It no longer refers to the Cairo Declaration and its notion of sharia law. Perhaps this is not an accident. The wording of the new charter requires careful analysis because it has the appearance of adhering to the United Nations charter. However, on closer inspection all of its commitments are explicitly constrained by the stipulation that such commitments need to be in accordance with the constitutional and legal systems of the particular member state. In general these legal systems are theocratic and Islam is constitutionally entrenched. This exercise in political casuistry has only createdreligious legitimacy for the OIC members to escape their UN human rights obligations.
Equally relevant is article 1 of the new charter which states the OIC’s objective “to protect and defend the true image of Islam” and to “combat defamation of Islam” – concepts that have been formally enshrined in their charter and lend them an air of legitimacy. Mirjam van Shaik contextualises her speculation about the OIC’s motivations by examining three key stages that led to the introduction of the concept of ‘defamation of Islam’ into the UN Human Rights Council. The first of these developments has to do with the defence of the image of Islam. The second involves consequences of the fatwa against Salman Rushdie, and the third consists in the reprimands several of the OIC member states received in various UN fora.
The OIC’s concerns over the image of Islam came into focus during the third Islamic Summit Conference in Mecca in 1981. During this Summit the members of the OIC agreed to
“develop … mass-media and information institutions, guided in this effort by the precepts and teachings of Islam, in order to ensure that these media and institutions will have an effective role in reforming society, in a manner that helps in the establishment of an international information order characterised by justice, impartiality and morality, so that our nation may be able to show to the world its true qualities, and refute the systematic media campaigns aimed at isolating, misleading, slandering and defaming our nation.”
(Mecca Declaration, 25-28 Jan, 1981, Final Communiqué, para. 6)
First, ‘nation’ has to be understood as Islam in general. Second, it is not the image of Islam for Muslims within OIC countries that is stressed so much as the perception of Islam by non-Muslims globally.
In response to Rushdie’s book, in 1989 the OIC called for all members of the international community to ban the book and “take necessary measures to protect the religious feelings of others.” (Eighth Islamic Conference of Foreign Ministers, March 1989). Two years later the OIC adopted a unified stand on the attack of Islamic sanctities and values and called for an international legal instrument to protect their religion. During the 1994 Summit the OIC reiterated their call to “project the correct image of Islam” and again at the Islamic Summit in 1997 they expressed their wish for a group of experts to take up this cause. Eventually this led to the launch of the “defamation of religion” resolution in 1999 in the UN.
Ironically, the calls for the protection of Islam’s “image” in the world that so occupied the energies of the OIC in the nineties coincided with critical reports on incidents and state actions in several OIC member states from the UN special rapporteurs on Religious Intolerance as well as from the rapporteurs on Freedom of Religion or Belief. Saudi Arabia’s response to the special rapporteurs was a fierce example of the ploy that has now become commonplace (I like to call it ‘the accused-victim flip’). Instead of responding to accusations of human rights violations levelled against them, Saudi Arabia went on the offensive, insinuating that they were the real victims: the “disturbing disinformation on Islam and the Islamic people” was “a sort of a new crusade”. Yet the “disturbing information” was about how they had violated the human rights of individuals within their states. One cannot help but wonder whether the aforementioned group of experts had played a role in this newfangled style of response to UN reports that conflicted with the “image” they wanted to project.
The OIC’s 1999 introduction of their draft resolution on “Defamation of Islam” contained the all-important conflation of religion and race. The resolution adopted liberal language redolent of Western critiques of racism (hatred, intolerance, discrimination, intolerance, intimidation) but applied it to the protection of Islam (an ideology and set of values). Instead of dismissing the OIC’s whole line of reasoning, the EU member states took an accommodating stance and decided to correct the exclusivity of protection of Islam by broadening the protection to all religions. This move gave the OIC room to introduce the religious defamation concept and in 2001 Pakistan, acting on behalf of the OIC, introduced a resolution titled: ‘Combating defamation of religion as a means to promote human rights, social harmony and religious and cultural diversity.’ Despite the fact that this resolution served to protect religions rather than the human rights of individual adherents of these religions, the resolution was adopted by 28 votes in favour with 15 against, and 9 abstentions. This set the stage for what would follow in subsequent years. References to the concept of defamation of religion increased considerably in the UN and the OIC stepped up efforts to criminalise religious defamation, despite the absence of any definition of ‘defamation’ in any of their resolutions. The emphasis in the OIC’s resolutions is on the protection of religions, but fails to explain how one religion can profess its own beliefs without defaming the central tenets of other religions. By their very nature religions are defamations of other religions. The rights of religious minorities are central to the mandate on freedom of religion, and the idea of protecting religions is at odds with the freedom of religion and with human rights in general, which place individual liberties above group belief systems. Religious defamation is an ambiguous concept that tends to allow the attenuation of human rights to be hidden within the vagueness of the concept.
On March 24, 2011 The United Nations Human Rights Commission adopted Resolution 16/18. It was a crucial moment in the dismantling of the liberal concept of freedom of religion. The OIC had introduced the resolution on “Combating intolerance, negative stereotyping and stigmatisation of, and discrimination, incitement to violence and violence against persons based on religion or belief.” This document has played a guiding function in the UN and received the backing of the United States, which stated that it was “pleased” and hoped the consensus would become a blueprint to “promote respect for religious differences” in the international community. The Algerian representative, in what can only be described as a piece of bald-faced propaganda, described the move as a contemporary translation of Martin Luther King’s “I Have a Dream” vision.
Only several months after the adoption of resolution 16/18, the OIC’s Council of Foreign Ministers adopted a new resolution on the topic of combating religious defamation and resolved to remain seized on the matter as a top priority at all OIC Summits and Council of Foreign Ministers. In her trenchant analysis of the 16/18 resolution, Mirjam van Shaik observes that while there is no longer explicit reference to the ‘defamation of religion’ concept, making it look as though the aim is to protect the individual rather than religions, there is still an implicit emphasis on one religion in particular and even more concepts are included which have more or less the same ambiguity as the defamation of religion concept (e.g. “derogatory stereotyping”, “negative profiling” and “stigmatisation”).
To facilitate implementation of Resolution 16/18, the Istanbul Process, a series of high-level meetings, was formed in July 2011. The first of these meetings was hosted by the OIC and chaired by Hillary Clinton. This was followed in December 2011 by another meeting (behind closed doors) in Washington, again co-chaired with the OIC. This time Clinton had a more prominent role, and stated “together [with the OIC] we have begun to overcome the false divide that pits religion sensitivities against freedom of expression.” Annual sessions took place in London, Geneva, Doha, Jeddah and Saudi Arabia in the following years. In 2013 the criminalisation of hate speech was put on the agenda, leading to more debates over the line between free criticism of religion and hate speech. Rhetoric and semantics had already been used to define free expression that could be interpreted as ‘denigrating’ sacred symbols and personalities as ‘incitement to religious hatred’, which was now being re-framed as a matter of identity: “It needs to be understood that people in some parts of the world tend to identify themselves more with a particular religion than elsewhere.”(1)
A year after the adoption of resolution 16/18, the Islamic Educational, Scientific, and Cultural Organisation (established by the OIC) announced that the International Federation of Journalists “should respect Islamic religious symbols and halt desecration of them.” Mirjam van Shaik’s chapter ultimately reveals the back-and-forth struggle between universal human rights and the supremacy of Islamic law over human rights. Her analysis reveals that while the OIC have managed their image carefully to give the impression that they are falling closer into step with international law and human rights, the substantial direction of change has been in the opposite direction, with the international community gradually marching to the tune of Islamic demands while compromising the universality of freedom of religion.
Rumy Hasan’s final chapter discusses the tension between blasphemy and freedom of expression in modern multicultural Britain. In the wake of the Rushdie Affair, Hasan observes how public figures in Britain accepted and even helped to promote a gradual conflation of race/ethnicity with culture and religion. The political climate encouraged respect for and recognition of culture and religion, which were subsumed within discourses of race and ethnicity. This became a central part of the multicultural doctrine. This reasoning, he argues, became the slippery road to the extension of blasphemy laws. In the clash between freedom of expression and ethnic minority sensibilities, the former gave way to the latter. The Satanic Verses affair had an extremely chilling effect on freedom of expression in a way that was specific to Islam and Muslims such that satirising Islam became the new taboo. Britain had acquired, through extra-judicial means, a de facto blasphemy law as self-censorship became the default position in the media, the arts and academia. The website Islam surveyed revealed that in January 2016 The Guardian decided to curb comments on certain pieces. Mary Hamilton, the executive editor of audience opinion, took the decision to close three topics to comments from the audience: race, immigration and Islam. This was blatant suppression of free speech, which is ironic because the Guardian describes its comment section as “Comment is Free” while in reality its censorial stance appears to be based on the offence of blasphemy.
Importantly, in the multicultural discourse migrants were not expected to conform to the norms of their host society, but conversely the indigenous society was required to show positive esteem for the migrants’ cultures and religions. Exceptions to the norms of European culture became the new norm, and any attempt to hold on to the host culture’s values came to be regarded as a grievous harm akin to racism. The underlying assumption was that for ethnic minorities, religion is far more important to their identity than cultural values are to anyone else in British society. This resulted in one-way tolerance that blatantly breached universalism. Hasan identifies this as a crucial factor in the increasing alienation of indigenous whites.
Like Mirjam van Shaik, Rumy Hasan analyses the semantic shift that occurred in the 90’s and post 9/11, when Muslim groups began campaigning to extend blasphemy law to curb perceived “Islamophobia”. In 2004 the British National Party leader Nick Griffin was arrested for describing Islam as a “wicked, vicious faith” but was cleared of inciting racial hatred on the grounds that Islam is not a race or ethnicity. The Labour Party by then had come to rely on a de facto “Muslim bloc vote” to win key constituencies. Probably as a matter of political expediency, Labour introduced new amendments to existing legislation that would function as blasphemy provisions. In its 2005 general election manifesto, the Labour Party promised to introduce a Bill designed to outlaw “incitement to religious hatred”. Without any serious debate, the role of religion was given decisive importance in the national identity. Euphemistic language such as “protection” and “tolerance” was used and the promised Bill was duly passed by Parliament in the form of The Racial and Religious Hatred Act 2006, which went into force on 1 October, 2007. As with international legislation, the language is sufficiently vague to effectively outlaw virtually anything a believer finds offensive. The wording of sections 29B(1) and 29J are in conflict, and either could potentially cancel the other out – the question remains which one will be given precedence. The former stipulates that a person is guilty of the crime if he “displays any written material which is threatening” and “intends thereby to stir up religious hatred”. The latter states, “Nothing in this section shall be read or given effect in a way which prohibits or restricts … expressions of antipathy, dislike, insult or abuse of particular religions or the beliefs or practices of their adherents.” Hasan points out that the Act is, in effect, an extension of “race” to encompass “religion”, which is why it was named the Racial and Religious Hatred Act. Muslim leaders in Britain, organised under the Muslim Action Forum (MAF), have also attempted to formulate a legal strategy to prevent insulting and derogatory publications depicting their Holy Prophet Muhammad. They started a petition signed by over 100,000 Muslims promoting this kind of censorship under the banner of ‘Global Civility’. This euphemism adds another term to the ever-expanding lexicon deployed to curb free expression in a multifaith society in which the minimum requirement is not to give offence to religious adherents.
Hasan also examines the stifling climate at British universities, where students’ unions and supposedly vulnerable students enforce ‘safe spaces’ and ‘no-platform’ policies. In regard to religion, the NUS operates a policy of preventing what they regard as offensive and disturbing – in effect, blasphemous – to the religions of ethnic minority students. As in the wider society, this particularly applies to Islam. Whether forcing students of the LSE Atheist, Secularist and Humanist Society to remove “Jesus and Mo” T-shirts or attempting to silence ex-Muslim Maryam Namazie’s speeches to students at Warwick University or Goldsmiths College, a climate of intimidation prevails. Amnesty International has also maintained complicit silence in offering no public support to those satirising or critiquing Islam in the UK even though it did take a principled opposition to the banning of the play The Bible: The Complete Word of God (Abridged).
The Guardian’s topic-specific selective censorship (above) is consistent with the general approach of the UK media, as evidenced by the refusal of any mainstream media outlet to publish or show the Danish cartoons when the controversy exploded in 2005. Taking offense has become the first refuge of the censor and the media meekly complies. Hasan concludes his chapter with a poignant citation from On Liberty, in which Mill reflects on the inconsistency in wanting free discussion while objecting to it being ‘pushed to an extreme’. If the reasons for allowing extreme cases of free expression are not good then they are not good for any case at all, since free expression is intended a forteriori for those ideas which are up for debate, not for ones that are considered to be so certain as to need no further discussion. Hasan concludes that restoring the freedom of expression enjoyed four decades ago will require courage and determination, as well as the participation of the mainstream media and academia.
(1) In a statement by His Excellency the Secretary General at the 3rd Istanbul Process Meeting on the follow-up of Implementation of HRC Resolution 16/18, 20 June, 2010.