Freedom of Expression and Religious Sensitivities in Pluralist Societies: Facing the Challenge of Extreme Speech

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I. INTRODUCTION

Recently, with respect to religion, the meaning and scope of the freedom of expression has been tested. Specifically, concerns about religious sensitivities within religiously pluralist societies have made a profound impact on the workings of the political bodies of the United Nations, with respect to which special mention must be made of the "Combating Defamation of Religions" resolutions adopted in recent years by the General Assembly and the Human Rights Council.1

In response to these resolutions, legal scholars have expressed sincere concern that the emerging counter-defamation discourse appears to overstep the mark and may very well foster illegitimate interferences with the fundamental right to freedom of expression and the religious rights of minorities.2 The emerging counterdefamation discourse introduces new grounds for limiting human rights, notably with respect to the right to freedom of expression - limitations that are not recognized by international law. It is largely intrinsic to religious belief to deem all contradicting, unorthodox, or otherwise deviant religious doctrine and religious manifestations as, if not "heretical," then at least erroneous, misguided, or misdirected. Accordingly, in any pluralist society where more than one religion is practiced, an intensified focus on protecting religions against defamation may very well be counterproductive as far as the right to freedom of religion or belief itself is concerned. The examples of the persecution of numerous "deviant" or "break-away" sects, or of individual "heretics," in different parts of the world, done in the interest of safeguarding "pure" religious orthodoxy, are striking.

In sum, the counter-defamation discourse is not the appropriate way of dealing with contemporary issues of religious intolerance. Specifically, the counter-defamation approach is unacceptable because it seeks to shift the emphasis from the protection of the rights of individuals to the protection of religions per se. In so doing, new grounds for limiting human rights are introduced that are not and should not be recognized by international human rights law (e.g., respect for religions or respect for people's religious feelings) because such restrictions are open to governmental abuse.

The question that we must then answer is how we can solve the challenges posed by religious sensitivities in religiously pluralist societies. The answer, which is seen in international monitoring bodies, the consensus of independent human rights experts, and legal doctrine, boils down to recognizing that adequate legal standards are already in place to deal with free speech and with the possible limitations thereto in the event of extreme speech.3 Specifically, there is no need for additional bans in addition to the ones presently recognized by international law. In short, we need to work with the existing standards and existing limitation clauses and further gear these instruments towards newly emerging challenges, such as the interplay between freedom of expression and religious sensitivities in pluralist societies. This Article asks to what extent international monitoring bodies succeed in using the existing structures to deal with emerging challenges, and inquires into what states may learn from these international benchmarks, expert opinions, and relevant case law.

II. EUROPEAN COURT OF HUMAN RIGHTS: MAKING DO WITHOUT A HATE SPEECH PROHIBITION

The European Court of Human Rights has taken a somewhat unconvincing and rather incoherent approach to cases revolving around freedom of expression and religious sensitivities in pluralist societies. Specifically, the Court often - although a few notable exceptions can be identified4 - fails to distinguish between forms of criticism or insult that do and those that do not actually jeopardize public order and/or the rights and freedoms of others, notably their religious rights.5 This distinction would be helpful since it can be argued that only verbal attacks that actually do jeopardize public order and/or the rights and freedoms of others may legitimately be restricted. …