The European Court of Human Rights in the recent judgment of E.S. v. Austria, ECHR 360 (2018) held that the conviction of woman in Austria for denigrating a person who is an object of veneration under the Austrian Criminal Code did not breach Article 10 (freedom of expression) of the European Convention on Human Rights. The woman had called the Prophet Mohammad a paedophile because he had married a girl (Aisha) who was 6 years old and had consummated the marriage when she was 9 or 10. The Court accepted that this comment “went beyond the limits of critical denial” and was “likely to incite religious intolerance”. According to the Court, the speaker’s comments “could only be understood as having been aimed at demonstrating that Muhammad was not worthy of worship”. She had “subjectively labelled Muhammad with paedophilia as his general sexual preference” and had “failed to inform the audience of the historical background”.
In hate speech law a distinction is generally made between an attack on a (religious) group, which if sufficiently hateful or extreme may amount to hate speech, and an attack on the group’s beliefs, which must be permitted, even when it is harsh and intemperate. A ban on hate speech should apply only to assertions that the members of the group are less worthy or less human than others or that they necessarily share certain undesirable traits – that they are by nature dangerous, or dishonest, or violent, and should be treated accordingly. Attacks on belief are a different matter. The criticism of an individual’s or group’s beliefs is understood to fall within the core of the protection granted by freedom of expression.
However, recognition of the deep connection between believer and belief has led some to argue that religious beliefs or sacred objects or persons should be insulated from harsh criticism or ‘gratuitous’ insult. When religion is understood as a cultural identity that involves shared and rooted beliefs and practices, an attack on a group’s beliefs or practices may be seen as a failure to respect the basic dignity of its members.
Whether in the form of a broadly interpreted hate speech law, or a law directly aimed at preventing insult to religious beliefs or practices, there appears still to be some support for a ban on the ridicule or harsh criticism of religion, in order to protect religious believers from insult to their deepest convictions. A ban on such criticism may be seen as a middle position that recognizes that religious adherence is both a personal commitment to certain truths that must be open to debate and criticism, but also a cultural identity that should be treated with respect.
This middle ground, however, is unworkable for several related reasons. First, it is difficult to define enforceable standards of civility in public discourse, and nearly impossible to do so when religion is the subject of debate. Second, if a restriction on intemperate criticism of religious belief rests on the idea that religion is deeply rooted then it seems unlikely that temperate or reasoned criticism of religion will have much of an impact on religious adherents. We might instead see a greater role for ridicule and harsh criticism in disrupting entrenched religious views. Third, religious beliefs often have public implications and so must be open to criticism that is deeply felt and sometimes very harsh.
Civility standards are conventional or cultural and therefore not easy to establish in a multicultural, multi-faith society. Different individuals or groups within the larger community will have very different views about what is civil or respectful. Moreover, freedom of expression must to some extent protect challenges not only to conventional opinion but also to the conventions of communicative engagement and social respect.
A degree of tension or conflict in communicative relationships is unavoidable and not always undesirable. While the audience may not always want to hear a message that it regards as harsh and even hostile, freedom of expression is understood to protect the communication of deeply felt views, even those that are unpleasant or confrontational in character.
Hate speech laws are sometimes presented as a form of civility regulation – a modern version of the blasphemy prohibition, which proscribes speech that is offensive or hurtful to others. It is a mistake, though, to see the ‘harm’ of hate speech as personal offence, resulting from the emotional force or uncivil tone of the expression. The purpose of the hate speech ban is to prevent the spread of falsehoods that may undermine the standing or security of some community members and encourage radical or violent action against them. Hate speech, either explicitly or implicitly, claims that the members of an identifiable group should not be regarded as full members of the community and/or that they share dangerous or undesirable traits -- that they are by nature violent or corrupt, for example.
The regulation of harsh or mocking criticism of a religion is very different from the regulation of hate speech. The state, it is generally said, should take no position on the truth of a particular religious belief system. It should remain ‘neutral’ on the question of whether a particular faith is true or false. The restriction of religious criticism or ridicule then must be based entirely on the impact it has on the feelings or self-esteem of the adherent, either because it is wrong to insult or offend an individual or because those who have been offended might disrupt public order.
Yet it is unclear how the state is to determine when the experience of offence is sufficiently great that the speech ought to be restricted? Different religious traditions (and groups within each tradition) have different understandings of the obligations of those inside and outside the religious community to respect the sacred. And, of course, because individual believers relate to their religious traditions/belief systems in various ways, they will not experience religious criticism or ridicule of the sacred in exactly the same way. The standard for the restriction of criticism cannot be based simply on the reactions or feelings of adherents or their report of their feelings. It must rest instead on a view about what is the reasonable or ordinary subjective reaction to religious criticism. But there can be no agreement on this. There is simply no vantage point outside the faith tradition from which a ‘secular’ public decision-maker, such as a judge, can decide what is intolerable offence.
The other difficulty with a restriction on intemperate criticism is that religions often say something about the way we should treat others and about the kind of society we should work to create.
Some members of the general community may have a strong reaction to religious beliefs that address their interests or status. For example, gays and lesbians may feel anger about the anti-gay teachings of some churches, and the impact of these teachings on their ability to live lives that are full or even safe.
‘New atheists’ such as Christopher Hitchens and Richard Dawkins believe not just that there is no God, but that belief in God is damaging and dangerous – that it inhibits the moral growth of individuals and encourages them to behave irrationally and sometimes even violently. Critics seeking to show the absurdity or regressive character of religion may think that ridicule is the most effective way to do this. From their perspective there is nothing gratuitous about the harsh criticism or ridicule of religion.
The adherents of one religious tradition must be free to criticize the beliefs of another tradition. Given what is at stake in these disagreements – the most profound questions about the salvation of the soul, the will of God, etc. – this criticism may sometimes be deeply felt and harsh in tone. To this we might add that some of the harshest, and most intemperate, criticism of a particular religious community, or belief system, comes from individuals who have a personal connection with the particular community or tradition, whose identity has been shaped by it, and who may bestruggling to separate themselves from it – the ex-Mormon or the ex-Catholic, for example.They may have a powerful reaction to a religious tradition or community that is part of who they are.
Furthermore, because the boundaries of a religious group are always contested, it may be difficult to distinguish internal from external religious critique. Some ‘members’ may describe others as bad Muslims or as not true to Islam, or they may say that others are mistaken in their interpretation of Christian doctrine or are not proper Christians. The state is not supposed to involve itself in internal religious disputes; but a restriction on (intemperate) criticism of a religious practice or doctrine may sometimes draw the state into debates ‘within’ the religious community about church doctrine or about the boundaries of the community or tradition, and involve it in the suppression of dissent and the reinforcement of orthodoxy.
To take religion seriously, as something that matters, is to see its claims about truth and right as important and worthy of consideration. But it also means that these claims, whether they relate to spiritual or civic questions, must be open to criticism. Because religion is important, because it is a serious matter, its discussion may be intense and uncomfortable.