The European Court of Human Rights and Free-Speech Schizophrenia

The European Court of Human Rights (ECHR), a supranational tribunal based in Strasbourg, France, which was set up in the framework of the Council of Europe, is increasingly determining important speech cases involving Islam-related topics.  This Court's jurisdiction covers alleged violations of human rights, as enshrined in the European Convention of Human Rights, by the states-parties.  Unlike cases in a European nation's courts, a case before this court may be triggered either by individuals, provided that the latter have exhausted their domestic remedies, or by another state acting as a party.  Technically, the ECHR is empowered to grant individuals more protection than they are legally entitled to enjoy based on their own states' laws. 

In practice, however, the ECHR rarely provides additional speech protection.  This is especially so when it deals with the very sensitive issue of "religious sentiment" -- which is not a human right present in the Convention -- where the Court has often dismissed challenges to censorship codes and speech convictions, sometimes in a way very hard to justify from a legal point of view.

Although this idea may sound strange to Americans, in Europe, the concept that the right to free speech should be balanced against the possibility of the speech offending the religious sentiment or sensibilities of a person, which could in turn upset the social order, is far from new.  It stems from other Court decisions involving other creeds, such as Gay News Ltd. and Lemon v. UK and Otto-Preminger-Institute v. Austria.  The argument also consists of conflating a questionable and dubious right -- i.e., the "respect of the sensibility of the believer" -- with a paramount freedom such as the freedom of religion, as if a supposed offense to religious sensibilities, realized through outrage or satire, could actually prevent or interfere with a believer practicing his/her faith.  By the way, this is exactly the same censorial technique used by Islamists at any level -- with the OIC leading the battle under the magic formula of "Islamophobia."

This desire to protect religious sentiments is clearly visible in ÏA v. Turkey, a case concerning blasphemy against Islam in Turkey, which has accepted the jurisdiction of the ECHR.  The applicant -- i.e., the appellant -- was the director of a Turkish publishing house, responsible for the publication of a novel containing expressions of mockery and contempt for Islam and its prophet.  The blasphemy charges were prompted by references in the novel to Islam in terms of "desert mirage," "desert ecstasy," and "primitivism," and to religions in general as "performances," "pathological imaginary projections," and "fanciful stories."  God was described as a "sadist" and "murderous," while the Koran was depicted as a "triangle of fear, inequality and inconsistency."  Muhammad was portrayed as a kind of sexual maniac, who invented the words of the Koran while "inspired in a surge of exultation, in Aisha's arms," who "broke his fast through sexual intercourse" and "did not forbid sexual relations with a dead person or a live animal."

In its ruling, the ECHR began positively from a free speech point of view by mentioning the case Handyside v. UK, to recall that freedom of expression "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."  This is the very substance of free speech, both for the individual and the society's advancement.  However, the Court then totally contradicted the premise of Handyside and its defense of free speech by declaring that speech may be limited in order "to punish improper attacks on objects of religious veneration."  This ruling demonstrated this limitation, as the ECHR held that since "the present case concerns not only comments that offend or shock, or a 'provocative' opinion, but also an abusive attack on the Prophet of Islam," these comments were so severe that that the speech could be punished in response to "pressing social need" -- e.g., the need for social peace.

The Court's sacrifice of free speech on the altar of maintenance of "social peace" is, paradoxically, the same argument invoked by authoritarian Muslim rulers and thinkers themselves to justify restrictions of free speech -- lest otherwise society be destroyed.  Hence, in the absence of a clear and present danger, this decision was based not on legal arguments, related to the intrinsic content of the right of freedom of expression, but on political ones.

Three out of the seven judges strongly dissented, criticizing the ECHR majority for looking to (impossibly) square the circle by protecting the provocative, shocking, offensive long as it does not provoke, shock, or offend.  They stated that the Handyside doctrine must not "become an incantatory or ritual phrase but should be taken seriously."  They also observed that since only 2,000 copies of the book were printed, it could not have had much impact on the Turkish general public, so the risk of shocking or offending a mostly religious populace was not a sufficient reason in a democratic society to punish a book's editor; "otherwise, the above dictum from Handyside would be deprived of all effect."  The dissenters also stressed that no Turk was obliged to read the novel.  Further, they were particularly distressed that the censorship came from the public authorities in the name of God, a justification which the judges felt was more suitable for a theocratic society than for a democratic one.  They also wrote that the fact that the punishment was light was totally irrelevant, since it had nonetheless produced a chilling effect of self-censorship liable to discourage from any publication those materials not "politically (or religiously) correct."  This was particularly dangerous in that it could be read as an "implicit encouragement of blacklisting or 'fatwas.'"

In Tatlav v. Turkey, another Turkish case concerning the conviction of a journalist for criticism against Islam, the ECHR once again balanced free speech rights and religious sensitivities.  In this case, a Turkish journalist accused Islam of being a religion sustained only by crude repression of free thinking, and the mere product of an illiterate's invention of a God who is "meddling in everything, from the number of sticks to be inflicted to the adulterer, to the thief's body parts to be amputated."  He also portrayed Muhammad as a psychotic, incapable of distinguishing reality from dreams, who consequently spouted insane verses and made violence the trademark of his politics.  The journalist derided the Koran as nothing more than a conglomerate of "tedious repetitions, even more primitive than the most part of the more ancient books."  In this case, the Court came out in favor of protecting this free speech, because it reasoned that the ultimate goal of the applicant was to criticize the religion for its use as a justification for social injustice and because the criticism was absent an "insulting tone against believers" or an "abusive attack against the sacred symbols."  The ECHR held that if this speech were censored, the "chilling effect" of a criminal conviction would pose an unacceptable threat to pluralism.

However, the ECHR also muddied the waters in Tatlav, as it admitted that "Muslims might have been offended by such caustic comments on their religion."  It is thus impossible to understand where the border lies between legitimate "criticism" and illegitimate "abusive attack"; the Court merely assumed such a distinction but never really tried to demonstrate/explain it in the light of an univocal paradigm.  In fact, it is hard to distinguish the facts of this case from those in ÏA v. Turkey, as in both cases the Islamic religion, the Koran, and the Muslim prophet are all depicted in terms of insanity, primitivism, and violence.  The only difference is the final decision: in Tatlav v. Turkey, the Court recognizes what it denied in ÏA v. Turkey -- that there can be a legitimate expression of criticism of religion that cannot be censored.

This privileged protection of "religious sensitivity," invented by the ECHR to the detriment of free speech, opens to two different scenarios, neither of which is to be desired by a free society.  In the first scenario, the state is bestowed with the authoritative power of arbitrarily selecting which  sentiments are worthy of protection, thus privileging the religious ones while discriminating against the others, which are left exposed to the elements in the "marketplace of ideas."  In the second scenario, where all the creeds are equally protected, the government must set up a huge spider web of censorship capable of trapping and devouring anyone who offends any sensitivities whatever with his or her speech.

But regardless of the scenario, theorizing that a purely subjective negative feeling in a person is a sufficient cause to censor free speech in a democratic society means that the state assumes the paternalistic role of establishing what is too stinging for the delicate beholders' ears and that such offensive speech must be silenced in conformity.  And when the state tramples on pluralism by creating a "state orthodoxy" made of collective values and undeniable truths, thereby burning the heretics who refuse to conform, the boundary line between liberty and tyranny of the majority (or even of the minority) becomes inevitably blurred. 

Tommaso Virgili serves as law clerk at the Legal Project at the Middle East Forum.