Limiting Free Speech (25): Does Freedom of Religion Require Limits on Freedom of Speech?

The UN Human Rights Council recently passed a Resolution on Religious Defamation. The main concern of the drafters of this resolution is islamophobia, defamation of Muslims, negative stereotyping of Muslims and Islam, and intolerance and discrimination against Muslims. The main targets are, obviously, western societies where, it is believed, “terrorism hysteria” has caused widespread anti-Muslim feelings.

Of course, no one should accept discrimination and intolerance, and even less islamophobic acts of violence. If there is discrimination and violence, then these human rights violations should be countered, wherever they occur, in the West and elsewhere. However, trying to outlaw defamation and stereotyping is a lot more controversial. While such acts are certainly not helpful in any circumstances, it’s not beyond doubt that they are harmful in themselves or that they are the single most important cause of more harmful acts, such as discrimination and violence.

For the proponents of the resolution, this is beyond doubt. Defamation, stereotyping, derogatory speech, blasphemy etc. are all believed to be harmful enough to justify limiting freedom of speech. The resolution clearly proposes such limits. It talks about

the need, in all societies, to show sensitivity and responsibility in treating issues of special significance for the adherents of any particular faith.

The “provocative or regrettable incidents” it mentions are clearly but not explicitly instances of speech rather than the very rare cases of actual violence and discrimination against western Muslims, namely the Danish Muhammad cartoons, the remarks by Pope Benedict, the Rushdie affair, the attempts of some to equate Islam with terrorism etc. The resolution urges

States to take actions to prohibit the dissemination of… material aimed at any religion or its followers that constitute incitement to racial and religious hatred, hostility or violence,

and says that

respect of religions and their protection from contempt is an essential element conducive for the exercise by all of the right to freedom of thought, conscience and religion.

So in these statements, there are two distinct attempts to justify limits on speech that defames and stereotypes Islam:

  1. The first justification is that such speech is hate speech and speech that incites violence and discrimination.
  2. The second is that it restricts the freedom of religion of its targets.

I dealt with the first one before, in this post (where I argued for a very limited possibility to restrict hate speech), so here I’ll focus on the second one. Of course, the second one can collapse into the first one, if the restriction of freedom of religion is supposed to follow from acts of violence that are caused by speech. Acts of violence can indeed restrict freedom of religion, but this argument isn’t valid in the case of Muslims in the West, who have only very rarely been subjected to islamophobic violence and who therefore cannot claim that hate speech and the resulting violence restrict their freedom of religion. If anything, Muslims have more religious freedom in the West than in many Muslim countries.

So something more is meant by the second justification of limits on freedom of speech. It’s not, however, clear what exactly is meant. I haven’t been able to find examples, given by proponents of the resolution, of ways in which speech can restrict an individual’s freedom of religion. These proponents don’t get any further than the general claim that freedom of religion requires laws against defamation, and most likely also blasphemy, and corresponding limitations of free speech.

The question here, of course, is whether freedom of speech can in any way restrict the freedom of religion. If that is the case, then a trade-off has to be made as in all cases in which different human rights come into conflict. But I don’t think that is the case. On the contrary. Freedom of speech is an essential safeguard for freedom of religion.

Now, let’s suppose that there exists, somewhere, a good argument linking defamatory speech and restrictions of freedom of religion, but that I’m just not aware of it (yet). The problem is that, even if defamatory speech can in some obscure way limit someone’s freedom of religion, it doesn’t necessarily follow that in such a case freedom of religion should automatically take precedence over freedom of speech. When two rights come into conflict, it’s often very difficult to decide which one has priority.

Another problem with this undiscovered argument is the vagueness of “defamatory”. Defamation, according to Wikipedia, means the following:

In law, defamation (also called calumny, libel (for written publications), slander (for spoken word), and vilification) is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image. It is usually, but not always, a requirement that this claim be false and that the publication is communicated to someone other than the person defamed (the claimant).

Defamation – also libel or slander – is the offense of bringing a person into undeserved disrepute by making false statements. (I already discussed the relationship between free speech and defamation or libel here).

This definition, however, doesn’t help a lot because it doesn’t make clear what is or is not supposed to be considered as defamatory. What is defamatory differs from one person to another. And this vagueness of the concept may have far-reaching consequences. Suppose we agree that there are good reasons to restrict defamatory speech for the sake of freedom of religion. Is it not likely that those who have to enforce these legal restrictions will be tempted to use them to stifle legitimate criticism of religion instead of real defamation? Where is the border between defamation and criticism? Or between defamation and alternative, non-official interpretations of a religion? I guess that there will be a rapid transition from concerns about religious freedom to their exact opposite, namely policies to punish heresy, blasphemy and apostasy, and to criminalize dissent in general. It’s not defamation of religion that harms but the measures taken to defend religions from defamation – or, better, the measures that are claimed to be taken in defense or religion, but more often than not are taken in defense of power.

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9 thoughts on “Limiting Free Speech (25): Does Freedom of Religion Require Limits on Freedom of Speech?

    1. and indeed it is we all have rights to live and believe in what every we want to believe in. if love is a common language, why r we not talking about love and stop with this hate talks. you are what you are because of what you believe in and should not be afriad to be what God has made you to be. this is wrong with a captial W

  1. Analysis of specific cases shows a border exists. Street attacks on Muslim women for going about veiled, whether spoken or physical, are clearly attacks on their freedom of religion, not “criticism”. The borderline exists as surely as it does in a square painted with a smooth gradation from black on the left to white on the right. Moreover, since some merely verbal attacks can be so disturbing, the fuzziness of the border doesn’t excuse us from drawing a line.

    Restricting the argument to freedom of speech alone, if you send your thugs to my rally to break it up, you have interfered with my freedom of speech. If my (US) Congress passes a law that enables or allows this conduct, it is in violation of the First Amendment.

    Continuing the analogy. If you know that making “fun” of my rallies in your newspaper by printing editorial cartoons which shame my wife and family, and you obtain legislation that allows you to do this, Congress has passed a law limiting MY free speech in favor of YOUR free speech in a manner inimical to free speech as such.

    It is of course different if I wish to shout “fire” in a crowded theater, or I myself am holding rallies in order to harm you in some definite way. Freedom of speech (or religion) cannot be self-canceling, therefore we’ve always recognized limits as well as the existence of “grey areas” and hard, borderline cases.

    In the case of the Danish cartoon, the printing of the cartoon was very different from writing (as have Hans Kung and Bernard Lewis) critical histories of Islam which in Kung’s case interrogate its darker chapters (chapters which thoughtful Sunni and Shi’ite Muslims need of necessity to admit, the origins of their sectarianism lying in Muslim-on-Muslim unfairness) and in Lewis’ case asks questions about the relationship of Islam to progress.

    The cartoon, from a judicious and therefore judicial point of view, was thoughtless and immature, since it cartoonized all of Islam as “a bomb throwing Muslim”.

    As a practical mattter, judges and legislators world wide need guidance in drawing lines and the UN resolution provided this. It would never, not in a gazillion years, prohibit a Hans Kung or Bernard Lewis from writing books critical of Islam for the very good reason that different expectations apply to texts accessed by thoughtful people as opposed to images which are by nature more inflammatory and more accessible to thugs.

    Yelling “freedom of speech” in a crowded theater in which children are already dying ain’t gonna help.

  2. Freedom of speech in fact originates in decorum. Read Habermas: it takes place in a coffee house of condign recognition, not in some tavern. As such, it existed in parts of the Islamic world long before it emerged in Prussian coffee-houses under Frederick II, or French *salons* under Louis XIV where the ladies kept a lid on things.

    I am not interested in the “freedom of speech” of cartoonists whose cartoons limit the freedom of religion of others. As it stands, journalists throughout the West are in actuality far too careful about speaking up for the working class and far too ready to use caricature thoughtlessly.

  3. there is no diiference between relgion there is only 1 god, muslims, sikhs , hindus ,christians, all the same so why the discrimination

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