"To Ban or Not to Ban Blasphemous Videos"

Evelyn M. Aswad, To Ban or Not to Ban Blasphemous Videos, 44 Georgetown Journal of International Law 1313 (2013).

This article discusses the worldwide outcry over the Innocence of Muslims video and the calls by many outside (and some inside) the United States to ban it.  Aswad's goal, specifically, is to examine the International Covenant on Civil and Political Rights (to which the U.S. is a signatory) to determine whether that document requires members to suppress material like the video.  The key provision at issue is Article 20(2) of the ICCPR, which states that "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."  The U.S. filed a reservation to this section when it signed the ICCPR, stating that it would not suppress material protected by the First Amendment.

To my mind, this answers the question of any legal obligation the U.S. might have at international law, but Aswad takes the analysis a step further and argues that, even without a reservation, the Convention does not require suppression.  Through a textual analysis of the provision, she argues that Article 20(2) is focussed on advocacy of religious hatred that constitutes incitement, and that "[i]t would not constitute 'advocacy' for a speaker adhering to religion X to simply criticize, question, mischaracterize or ridicule religion Y without the intent to promote hatred against members of religion Y." (p. 1319)  Thus, in order for Article 20(2) to require the suppression of the Innocence of Muslims video, Aswad concludes that evidence would have to be adduced that its maker had
the intent of promoting hatred towards Muslims.  Further, she argues that the use of the word "incitement" in Article 20(2) is rather vague, as it does not disclose the degree of proximity needed between the act in question and the result which the section hopes to prevent (p. 1319-20).

Another interesting aspect of this short paper is a summary of the drafting history of Article 20.  Aswad concludes that "the point of Article 20(2) was to prohibit expression where the speaker intended for his or her speech to cause hate in listeners who would agree with the hateful message and therefore engage in harmful acts toward the targeted group.  There is no indication in the negotiating history that Article 20 was intended to prohibit speech about a targeted group that would offend the feelings of members of that group." (p. 1322).

"The Curious Persistence of Blasphemy" Now Published

My article "The Curious Persistence of Blasphemy" has now been published by the Florida Journal of International Law.

"Prophets, Cartoons, and Legal Norms: Rethinking the United Nations Defamation of Religion Provisions"

Joshua Foster, Prophets, Cartoons, and Legal Norms: Rethinking the United Nations Defamation of Religion Provisions, 48 J. Cath. Leg. Stud. 19 (2009)

Foster's article offers an analysis the several U.N. resolutions condemning the "defamation of religions" as well a nice background of the events leading up to and following the Danish Cartoon Controversy. The article argues that the defamation of religion resolutions fail to protect freedom of speech and are "an overly paternalistic response" to the problem of religiously offensive communications. (p. 24) After an over-long summary of the U.N.'s general approach to human rights, the article discusses domestic American constitutional law around the First Amendment and concludes that it provides a far better model for the international community to adopt as it "is far more receptive to free speech than Europe and other countries around the world" (p. 47) and is more consonant with notions of human dignity.

General Assembly Approves "Defamation of Religions" Resolution

The UN General Assembly has once again passed a resolution condemning the "defamation of religions." This year the vote was 76-64, the slimmest margin to date. According to Howard Friedman's Religion Clause Blog, the resolution includes "Judeophobia" and "Christianophobia" for the first time (in addition to the traditional reference to "Islamophobia").

"The Curious Persistence of Blasphemy"

A draft of my new article The Curious Persistence of Blasphemy is available for free download on SSRN here.

Abstract:

Despite expectations to the contrary, blasphemy laws and their modern-day counterparts persist in a surprising number of jurisdictions around the globe. This article discusses four examples: the "defamation of religion" movement at the United Nations, the surprising resurrection of blasphemy law in Ireland, the Australian trend toward enacting "religious vilification" laws, and the problem of formal illegality and private violence for blasphemous speech in Pakistan. Next, blasphemy is considered from three conceptual angles: the religious, the legal, and the secular/cultural. Last, the curious persistence of blasphemy is examined through an inquiry into why people blaspheme to begin with, and what harms (real or perceived) are caused by blasphemy. The conclusion here is that as long as societies hold something sacred--religiously or culturally--blasphemy will remain an operative concept and legal or social pressure to suppress blasphemous statements will continue to persist.

"Is the United Nations Endorsing Human Rights Violations?"

Rebecca J. Dobras, Note, Is the United Nations Endorsing Human Rights Violations? An Analysis of the United Nations' Combating Defamation of Religions Resolutions and Pakistan's Blasphemy Laws, 37 Ga. J. Int'l & Comp. L. 339 (2009)

Several law review articles have been published in the last few years about the United Nations' "defamation of religion" resolution, but this student note by Rebecca Dobras is the best at explaining how the resolutions are linked to Pakistan. The article makes clear that Pakistan is not only a prime mover behind the resolutions on the international scene, but that the country's frequently- and severely- used domestic blasphemy laws would benefit from an international norm consistent with the resolutions. According to the piece, the number of blasphemy prosecutions has skyrocketed in Pakistan in the past decade, and even attempts by Musharraf to mitigate their effect have failed because the prosecutions are so popular. This is a long, but carefully written article that is one of the best I've seen on the subject of the U.N. resolutions and their underlying cause.

"Defamation of Religions v. Freedom of Expression: Finding the Balance in a Democratic Society"

Maxim Grinberg, Defamation of Religions v. Freedom of Expression: Finding the Balance in a Democratic Society, 18 Sri Lanka J. Int'l L. 197 (2006).

This is a short student Note written just as the Danish Cartoon Controversy was erupting. It addresses, and provides a brief background, of the U.N.'s "defamation of religion" resolutions. After a short overview of international freedom of expression guarantees and some domestic infringements of those guarantees under the guise of blasphemy or religious hatred legislation, the Note argues that prohibiting "defamation of religion" is inconsistent with international law unless the resolutions are revised. The revisions suggested, however, are very general and rather vague ("the Resolution should require States to comply with international law", "the Resolution should make it clear that the judgment of whether a particular expression constitutes defamation of religion should be objective", etc.). As a student Note, it's a okay piece of writing, but contains nothing that can't be found in more recent and substantive articles elsewhere.

"Living With Our Deepest Differences: Freedom of Expression in a Religiously Diverse World"

Charles C. Haynes, Living With Our Deepest Differences: Freedom of Expression in a Religiously Diverse World, 2008-2009 Fides et Libertas 56.

Haynes looks at several recent world developments--successful "defamation of religion" resolutions at the U.N., the U.K.'s new "incitement to religious hatred" law, the new Irish blasphemy statute, etc.--and concludes that "freedom of speech is losing ground in nations across the globe, most disturbingly in the democracies of Europe." (p. 58) He argues, quite rightly in my opinion, that religious groups who support censorship laws are being short-sighted, because times change and there's a fair chance those very same laws will be used against them someday. Haynes is strongly against blasphemy laws and their modern counterparts, but also makes an insightful point:

"That does not mean, of course, that we should sit back and do nothing to address concerns about speech that deeply offend people of faith. If speech codes or other government regulations are not the answer, what is? . . . It is simply not enough for one side to proclaim 'free speech' or 'free press' and for the other to cry 'blasphemy' or 'hate speech.'" (p. 61, 63)

He argues that education is better than censorship when it comes to reduce hateful speech, but this point needs further analysis.

Still, the question is worth pondering: beyond condemning blasphemy laws, what do civil liberties advocates have to say to religious minorities who are fearful of the rise of hate-groups?

"Defamation of Religions versus Freedom of Expression: Finding the Balance" (Blasphemy Literature Review)

Vaughn E. James, Defamation of Religions versus Freedom of Expression: Finding the Balance, 2008-2009 Fides et Libertas 43.

This article is noteworthy insofar as it's the first substantive article I've seen that supports the idea of prohibiting the "defamation of religion" using international law. To be precise, the author would substitute the phrase "The Protection of Religious Sensibilities" for the phrase "defamation of religion" because "defamation" already has a precise legal meaning. He is also careful to note that freedom of expression is a value worth protecting. However, James states that:

"[W]hat I envisage is a system whereby men, women and children would separate the discussion of theological issues and disagreements over these issues from the making of negative statements about the people who subscribe to one theological viewpoint or another. The former type of discussion is an exercise of freedom of expression; the latter is unacceptable. Whether we term the latter 'defamation of religions' . . . or something else, it is something we as a people must aspire to eradicate." (p. 55)

The difficulty with James' position, in my opinion, is that it is often impossible to distinguish criticism of a religion from criticism of those who adhere to that religion. To say "Christianity is evil" is different than saying "Christians are evil", but the distinction is a fine one in the tumult of everyday life and the popular press. Nor is the distinction likely to satisfy those whose "religious sensibilities" are fragile and easily offended. Further, history is full of new or fledging religious movements phrasing their beliefs in terms of attacks on religious leaders and their adherents: Martin Luther, for example, was scorching in his attacks on the Pope and Catholic priests, as were Jehovah's Witnesses in the first part of the twentieth century. Although I understand James' desire to suppress the sort of speech that can lead to hatred and the incitement of violence, the distinction he is attempting to draw here is simply not sustainable nor sufficiently protective of freedom of expression and religion.

The article also provides a brief history of the various U.N. resolutions, an extract from the text of the 2005 Commission for Human Rights resolution, and a short but helpful overview of the five major international law documents that protection freedom of expression.

"Defamation of Religions: The End of Pluralism?" (Blasphemy Literature Review)

L. Bennett Graham, Defamation of Religions: The End of Pluralism?, 23 Emory Int'l L. Rev. 69 (2009).

This article, written by a staff member of the Becket Fund for Religious Liberty, offers a nice summary of the history of the "defamation of religion" resolutions that have appeared in the United Nations over the past decade.

According to the article, the idea started in 1999 when Pakistan introduced a resolution against "defamation of Islam." The resolution was broadened to include all religions, and passed without difficulty in the U.N. Commission on Human Rights. Later attempts to pass the resolution, in both the Commission and the General Assembly, were successful but with diminishing support. In the past few years, the number of "no" and "abstain" votes have outnumbered the "yes" votes.

The author clearly opposes the "defamation of religion" resolution, arguing primarily that the legal concept of "defamation" is unworkable if applied to abstract concepts like ideas or religions, because truth is a defense to a charge of defamation, and what democracy-minded judge wants the burden of deciding if religious ideas are true or false? There's also an argument that the U.N. has illogically conflated racial discrimination and religious discrimination, but this point isn't sufficiently fleshed out.

On the whole, the article isn't a deep analysis of the problems with "defamation of religion", but it does provide a nice overview of how the resolutions evolved at the U.N.