Human Rights Law Review, 2016, 16, 195–221
doi: 10.1093/hrlr/ngw002
Advance Access Publication Date: 11 April 2016
Article
The Freedom to Publish ‘Irreligious’
Cartoons
Neville Cox*
ABSTRACT
The attacks on Charlie Hebdo in January 2015 elicited an international reaction not
merely of outrage in the face of an act of violence, but of solidarity with the right of
journalists to publish irreligious cartoons—summed up in the ubiquitous use of the
phrase ‘Je Suis Charlie’. The implication was that the freedom to publish cartoons of
this nature should be cherished and protected. In this article, this proposition is critiqued. It is argued first, for various reasons, that it is impossible to conclude that the
freedom to publish such cartoons is inherent insofar as international human rights law
is concerned. Secondly, it is suggested that the arguments as to why there should be a
right to publish such cartoons are open to criticism. Finally, it is concluded that the
real explanation for the Je Suis Charlie reaction may derive from the broader ideological
conflict between the Islamic and western orthodoxies.
K E Y W O R D S : blasphemy, Islam, defamation of religion, freedom of expression
1. INTRODUCTION
On 7 January 2015, two Al Qaeda members attacked the offices of the Charlie Hebdo
magazine in Paris killing 12 people,1 in response, apparently, to its publication of
various cartoons depicting the Prophet Mohammad.2 The reaction throughout the
world to these brutal attacks was quite extraordinary. Millions of people, including
world leaders, marched together in France on 11 January in response to what had
happened.3 Millions more, outside France, showed their support in similar fashion
and pivotally, for the purposes of this article, many adopted the phrase Je Suis
* Associate Professor of Law, Trinity College Dublin ([email protected]).
1 See ‘Charlie Hebdo Attacks: Three Days of Terror’, 14 January 2015, available at: www.bbc.com/news/
world-europe-30708237 [last accessed 8 February 2016].
2 According to reports, on leaving the area, the gunmen shouted: ‘We have avenged the Prophet
Muhammad. We have killed Charlie Hebdo’: see ‘Terrorists Strike Charlie Hebdo Newspaper in Paris,
Leaving 12 Dead’, The New York Times, 7 January 2015.
3 See Fantz, ‘Array of World Leaders Joins 3.7 Million in France to Defy Terrorism’, 12 January 2015, available at: edition.cnn.com/2015/01/11/world/charlie-hebdo-paris-march/ [last accessed 8 February 2016].
C The Author [2016]. Published by Oxford University Press.
V
All rights reserved. For Permissions, please email: [email protected]
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Charlie4 as a summation of their response. The reaction outside of France was particularly striking, in that, in its nature, it was qualitatively different to the typical international reaction to acts of violence and terror occurring in the world—the reaction,
for example, which was expressed in relation to the even more destructive attacks
that had taken place in Peshawar, Pakistan5 and Baga, Nigeria6 in the weeks and days
before 7 January (and not merely because of the fairly obvious fact that, from the
western mindset, there was something shocking about the fact that the victims in
Paris were middle class, white, men in a western society). The typical international
reaction to events of this kind, after all, comprises condemnation, horror and, perhaps, sympathy, and undoubtedly all these elements were present in the international
response to the Charlie Hebdo attacks. Critically, however, there was an additional
and defining aspect of the international reaction to the latter which is not normally
found when acts of violence have occurred, namely a sense of solidarity; solidarity
with the journalists, with the magazine and with its work, summed up in the ubiquitous use of the phrase Je Suis Charlie.
Invariably, of course, the phrase Je Suis Charlie may have carried different meanings for different people. Some users thereof will have intended no message beyond
a vague sense of trying to provide support to victims of a violent attack and of condemnation of the attack itself. After all, the phrase was in common usage at the time,
and, especially on social media, it was the most readily identifiable way in which people could unite with those who had been injured or killed. For others, especially
those in France, there will have been a sense of shock that well-known and celebrated
journalists and cartoonists had been killed. On the other hand, it is impossible to ignore the loaded nature of the message of the three words and it is submitted that, for
many in the international community, the Je Suis Charlie campaign was as much
about showing solidarity with the magazine, as it was about identifying with or providing comfort to the victims.7 And this sense of solidarity with the work of Charlie
Hebdo was poignantly expressed when the ‘survivors’ edition’ of the magazine (the
first published after the attacks) which unapologetically (though in somewhat conciliatory fashion) carried a cartoon of the Prophet on its front cover, sold in excess of
100 times more copies than would a routine edition.8
There are, of course, two different focuses which such solidarity may have taken.
At the more obvious level, there was a sense that, whatever the material that was
being published (and quite apart from any question of whether such publication
4 In the wake of the attacks, #JeSuisCharlie trended at the top of hashtags globally: see Topping and
Willsher, ‘#JeSuisCharlie: Grief and Solidarity on Twitter after Brutal Paris Terror Attack’, The Guardian, 7
January 2015.
5 See Craig and Constable, ‘In Pakistan, Taliban Massacre of Schoolchildren Fuels broad Outrage’, The
Washington Post, 16 December 2014.
6 See Mark, ‘Boko Haram’s “Deadliest Massacre”: 2000 feared dead in Nigeria’, The Guardian, 10 January
2015.
7 See, for example, ‘The Guardian View on Charlie Hebdo: Those Guns were Trained on Free Speech –
EDITORIAL’, The Guardian, 7 January 2015; and ‘Charlie Hebdo and Free Expression – EDITORIAL’,
The New York Times, 18 January 2015.
8 See Melander and Heneghan, ‘Charlie Hebdo “survivors’ edition” sells out in minutes’, Reuters, 14 January
2015, available at: www.reuters.com/article/2015/01/14/us-france-shooting-idUSKBN0KN0RQ20150114
[last accessed 8 February 2016].
Freedom to Publish Irreligious Cartoons
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should be legally permitted) it was simply unacceptable that a magazine should be
targeted violently for publishing cartoons, however rude or offensive they may have
been. Indeed, no doubt, the hugely widespread and emotional nature of the response
to the attacks did derive in large measure from their shocking nature and from the
level of violence which was involved. I would suggest, however, that this does not
fully explain the enormity of the international reaction to the attacks and for two
reasons.
First, if the reaction was one of solidarity merely with the rights of people to go
about their daily business without being killed by terrorists, then a similar response
could surely, logically be expected whenever anyone—a Parisian journalist or a
Pakistani child—was killed. It is, after all, ultimately an expression of solidarity with
the rule of law and, whereas, no doubt millions of people in the world would have
such a sense of solidarity, one does not get a response of the kind following the 7
January attacks every time the rule of law is flouted—even in a spectacular and violent way. Secondly, even if the focus of this international solidarity manifested a
more specific outrage at the notion of people being killed for exercising their right to
freedom of expression it is doubtful whether this fully explains the nature and extent
of the international reaction to the attacks. After all, there are many types of publication—those which are, for example, anti-semitic or homophobic—where, if the publisher was attacked or even killed, there might be condemnation of the attack but
without any equivalent reaction of solidarity with the publisher. One could not, for
example, imagine a similar reaction of international solidarity with members of the
Westboro Baptist Church if and when they are brutally attacked for yelling homophobic comments at funerals9 presumably because of a view that, whether or not
they should be permitted to say what they say, it is still grotesque of them to do so
having regard to the interests of those whom they are offending.
For this reason, it is submitted that, for at least some people, the sense of solidarity implied in their use of the phrase ‘Je Suis Charlie’ was not merely with the self-evident principle that one should not be targeted by terrorists either at all or for
exercising one’s right to freedom of expression, but also, at some level, represented a
solidarity with the legitimacy of the particular acts of publication that were at issue in
this case. At its height, it represented an endorsement (at an international level) of
the view that the unfettered freedom to publish what, in this article, are termed ‘irreligious cartoons’ in relation to the Prophet Mohammad by a magazine like Charlie
Hebdo (which was, of course, known for being controversial and confrontational)
was something which should be cherished, protected and defended from attack, both
as a matter of international human rights law and as an unimpeachable normative
proposition. As Jodie Ginsberg, the chief executive of the Index on Censorship put it
in the wake of the January attacks,
9 This issue is discussed in detail in the US Supreme Court decision in Snyder v Phelps 562 U.S. (2011);
131 S. Ct. 1207 (2011), in which the US Supreme Court found that, because of the significance of the US
first amendment, the picketing by the defendants of the funeral of the son of the plaintiff could not render
them liable for the tort of intentional infliction of emotional distress. For analysis, see Cram, ‘Coercing
Communities or Promoting Civilized Discourse; Funeral Protests and Comparative Hate Speech
Jurisprudence’ (2012) 12 Human Rights Law Review 455.
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The ability to express ourselves freely is fundamental to a free society. This includes the freedom to publish, to satirise, to joke, to criticise, even when that
might cause offence to others. Those who wish to silence free speech must
never be allowed to prevail.10
Of course, there is a difference between saying that the freedom to publish irreligious cartoons should be protected from violent attack and saying that it should be
protected as a matter of right from legal interference. Furthermore, there will be
many users of the phrase Je Suis Charlie who would not endorse this latter position.
It is submitted, however, that at the very least the events in Paris in that awful week
(like the controversies following the publication of certain cartoons of the Prophet
Muhammad in Denmark’s Jyllands Posten newspaper in 2005) led to the conflation,
in the minds and arguments of some, of the two propositions.11 In other words, implicit in the use of the phrase Je Suis Charlie by at least some respondents was the
idea that the horror of the attacks reinforced the importance (internationally) of an
unrestrained freedom to publish material targeting religion—unrestrained by the actions of terrorists or censors.
A similar line of reasoning (albeit applied in a less dramatic and horrific context
than in response to a murderous attack on journalists) was and is adopted by many
commentators criticizing the existence of blasphemy laws or the passing by the
United Nations of resolutions condemning so-called ‘defamation of religion’.12
As we shall see, such commentators tend to argue that the mere existence of blasphemy laws (even without the draconian penalties and want of fair procedures associated with, for example, the law in Pakistan) is an affront to basic international
10 See Index on Censorship, ‘Freedom of Expression is Non-negotiable’, 7 January 2015, available at: www.
indexoncensorship.org/2015/01/freedom-expression-non-negotiable/ [last accessed 8 February 2016].
11 See, for example, Greenslade, ‘Free Speech Must Not be Silenced in the Wake of the Charlie Hebdo
Attacks’, The Guardian, 7 January 2015; ‘We are Charlie: “Freedom of Speech needs to be Strongly
Defended”’, The Guardian, 9 January 2015; Klausen, ‘Freedom of Speech Is of No Use Unless We
Exercise It’, Time, 7 January 2015; Turley, ‘The Biggest Threat to French Free Speech Isn’t Terrorism.
It’s the Government’, The Washington Post, 8 January 2015. For a more nuanced reaction, see HowardHassmann, ‘The Charlie Hebdo Murders and Freedom of Speech’ (2015) 2 Indonesian Journal of
International & Comparative Law 467.
12 For analysis of the work of the United Nations in this regard, see Langer, Religious Offence and Human
Rights: The Implications of Defamation of Religions (2014); Blitt, ‘Should New Bills of Rights Address
Emerging International Human Rights Norms? The Challenge of “Defamation of Religion”’ (2010–11) 9
North Western University Journal of International Human Rights 1 at 13ff; Foster, ‘Prophets, Cartoons and
Legal Norms: Rethinking the United Nations Defamation of Religion Provisions’ (2009) 48 Journal of
Catholic Legal Studies 19 at 30ff; Temperman, ‘Blasphemy, Defamation of Religions and Human Rights
Law’ (2008) 26 Netherlands Quarterly of Human Rights 517 at 530; Rehman and Berry, ‘Is “Defamation of
Religions” Passe? The United Nations, Organization of Islamic Co-Operation and Islamic State Practices:
Lessons from Pakistan’ (2012) 44 George Washington International Law Review 431 at 434; Dobras, ‘Is the
United Nations Endorsing Human Rights Violations? An Analysis of the United Nations’ Combating
Defamation of Religions Resolutions and Pakistan’s Blasphemy Laws’ (2009) 37 Georgia Journal of
International and Comparative Law 339 at 350; Bennett Graham, ‘Defamation of Religions: The End of
Pluralism’ (2009) 23 Emory International Law Review 69 at 69; Grinberg, ‘Defamation of Religions v
Freedom of Expression: Finding the Balance in a Democratic Society’ (2006) 18 Sri Lanka Journal of
International Law 197 at 200; Holzaeffel, ‘Can I Say That? How an International Blasphemy Law Pits the
Freedom of Religion against the Freedom of Speech’ (2014) 28 Emory International Law Review 597 at
616.
Freedom to Publish Irreligious Cartoons
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standards of free speech and that, in passing resolutions condemning so-called ‘defamation of religion’, the United Nations, at the behest of the Organization of Islamic
Co-Operation was violating basic international norms governing the interplay between free speech and religion.
The primary question addressed in this article is whether the freedom to publish
such ‘irreligious cartoons’ is as fundamental and precious as was and is suggested by
some users of the Je Suis Charlie slogan, and by many critics of blasphemy and defamation of religion laws. The issue is complicated by the fact that, where Charlie
Hebdo was concerned, two conceptually different types of cartoon involving the
Prophet Muhammad were involved. Some simply lampooned the Prophet or sacred
figures, but others (like all of the cartoons controversially published in Jyllands
Posten) also implied that there was a link between the Prophet (and thus, inherently,
Islam) and terrorism. Thus, some were merely blasphemous (in that they treated sacred things irreverently and offensively) but others were defamatory of Islam—as
the concept is given meaning in the UN resolutions (in that they negatively stereotyped an entire social grouping by reference to the illegal actions of a few members).
The question, therefore, is whether the freedom to be profoundly offensive in relation to sacred matters and also to negatively stereotype a religion in this way is genuinely fundamental to global or even western society.
The article is divided into four sections. First, and briefly, in order to understand
the difference between the two types of cartoon, we consider the difference between
blasphemy and defamation of religion (within the meaning of the UN resolutions).
Secondly, it is suggested that, for a number of reasons, the proposition that the international right to free speech must always protect publication of such cartoons is unsustainable. Thirdly, it is argued that many western societies accept (albeit
controversially) the legitimacy, in principle, of laws which are directly analogous (in
terms of their raison d’^etre and in terms of what they do) to laws against blasphemy
and defamation of religion. Fourthly, we consider the counter-argument that, for
various reasons, religion can be regarded as essentially sui generis such that the analogies referenced above do not work. The article concludes (albeit tentatively) that,
whereas, of course, any shooting in which there are multiple casualties will attract
international condemnation, the explanation for the unique nature of at least some of
the international reaction to the Charlie Hebdo attacks (like the reaction of many to
the concept of Islamic blasphemy laws or to the UN Defamation of Religion resolutions) may lie deep within the fractured relationship between western orthodoxy
and the Islamic world and, in particular, within the western suspicion of the alien nature of the ideology presented by Islam.
Two final, albeit obvious, introductory points should be made. First, the attacks
on Charlie Hebdo—whether or not they can properly be defined as terrorist attacks13—were, of course, appalling, as were the related and deadly attacks on patrons
of a Kosher supermarket, in Porte de Vincennes in the same week,14 as is any violent,
13 See, generally, Schwartz, ‘International Terrorism and Islamic Law’ (1991) 29 Columbia Journal of
Transnational Law 629; Hoffman, Inside Terrorism, revised edn (2013) at 41.
14 See Witte, ‘In a Kosher Grocery Store in Paris, Terror Takes a Deadly Toll’, The Washington Post, 9
January 2015.
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hateful, murderous attack. This article is not, in other words, any sort of a justification for any act of violence. It is merely an assessment of why these attacks elicited
the specific reaction of solidarity that they did. Secondly, there are, no doubt, specific
explanations for the reaction in France to the attacks15—and not merely because
many people in France, knowing Charlie Hebdo’s reputation for publishing material
which was provocative and confrontational, would have seen the cartoons as being
characteristically puerile and rude, but would not have regarded them as carrying any
genuinely offensive or xenophobic message. My concern, however, is with the nature
of that part of the reaction in the wider international community, which implied that
the freedom to publish irreligious cartoons was fundamental not merely having regard to the French view of the proper relationship between speech and religion, but
also as an international proposition which could claim some kind of universal
legitimacy.
2 . C A T E G O R I Z I N G T HE ‘I R R E L I G I O U S ’ C A R T O ON S
In order to understand the nature of the international reaction of solidarity following
the Charlie Hebdo attacks, and the argument that the freedom to publish the kind of
cartoons featured in the magazine was fundamental, it is necessary to understand the
nature of the cartoons themselves. In doing so, I seek to discern their objective
meaning (albeit that, inevitably, my focus is on the reaction of Muslim readers to
such cartoons). Naturally, however, the argument can be made that, given the nature
and history of publications in Charlie Hebdo, the cartoonists themselves may not
have intended either of these meanings to flow from the cartoons.
As was discussed above, all of the relevant cartoons were irreverent, in the sense
that they lampooned the most sacred figure in Islam.16 Some, however, also insinuated that the Prophet was linked to terrorism and, thereby, implicitly stigmatized
the religion that he founded (and its members) on this basis. In legal terms, therefore, all the cartoons were blasphemous, but the latter kind were also ‘defamatory
of religion’ as the term is given meaning in the various UN resolutions on this subject. In order to understand the significance of this distinction, it is necessary,
briefly, to explain the nature of and differences between these two separate legal
constructs.
Whereas undoubtedly blasphemy laws have existed in different places and at different times for a variety of reasons,17 nevertheless all such laws were (and are) concerned with protecting the sacred from inappropriate treatment (whatever that may
15 See Shani, ‘La Haine; La€ıcite, Charlie Hebdo and the Republican War on Religion’, E-International
Relations, 29 January 2015, available at: www.e-ir.info/2015/01/29/la-haine-laicite-charlie-hebdo-and-therepublican-war-on-religion/ [last accessed 8 February 2016].
16 As Professor Kamali points out, blasphemy within Islam involves an attack (sabb) either on God (Sabb
Allah) or on the Prophet (Sabb al-Rasul): see Kamali, Freedom of Expression in Islam (Cambridge Islamic
Texts Society, 1997) at 212. Generally for analysis of the differences in the nature of the two cartoons,
see Cox, ‘Pourquoi Suis-Je Charlie? Blasphemy, Defamation of Religion, and the Nature of “Offensive”
Cartoons’ (2015) 4 Oxford Journal of Law and Religion 343.
17 See, generally, Webster, A Brief History of Blasphemy (1990); Simpson, Blasphemy and the Law in a Plural
Society, Grove Ethical Studies No 90 (1993); Blom-Cooper, Blasphemy and Ancient Wrong or a Modern
Right, Essex Hall Lectures (1981); Cox, Blasphemy and the Law in Ireland (2000).
Freedom to Publish Irreligious Cartoons
201
be).18 Blasphemy, in other words, entails the irreverent or outrageous treatment not
of a religion, but of those matters that a religion holds sacred. Necessarily, therefore,
any ‘harm’ which blasphemy causes to religious devotees must be in the form of hurt
to religious sensitivities and consequent anger and upset.19 This is what Joel
Feinberg termed ‘profound offense’, that is, offence suffered not because one is personally targeted but because one hears or sees the inappropriate treatment of something held sacred.20 Thus, by treating the Prophet in an irreverent and lampooning
way, all of the cartoons were blasphemous. In this regard it is important to be clear
that, whereas, as is well known, any visual depiction of the prophet is not permitted
within Islam, such depiction is not per se blasphemous—and certainly it is not the explanation for the reaction of many Muslims against such cartoons. Rather their blasphemous quality and the reaction against them stems from the fact that sacred
themes were being treated with contempt and irreverence.
The focus of the UN Defamation of Religion resolutions, on the other hand, was
not on protecting the sacred, but rather on speech,21 which defamed or vilified a religion through the mechanism of negative stereotyping.22 In particular, they were concerned with the emerging Islamophobia in western society23 which finds expression
in the popular proposition that, at some level, Islam is inherently linked with modernday terrorism.24 The resolutions appeared to regard such speech as inherently unacceptable, but also referenced two consequential problems which might result from
it. First, they asserted that social and global harmony would be compromised as a
18 Cox, ‘Blasphemy, Holocaust Denial and the Control of Profoundly Unacceptable Speech’ (2014) 62
American Journal of Comparative Law 739 at 746ff. As Simpson, ibid. at 7, puts it: ‘They carry the sense of
scorning, showing utter contempt for or despising someone’. See, for example, Holzaeffel, supra n 12 at
609ff; Bohlander ‘There is No Compulsion in Religion’ (2012) 8 Journal of Islamic State Practices in
International Law 36 at 40ff; Kamali, supra n 16 at 212.
19 See Bowman v Secular Society [1917] AC 406; R v Bradlaugh (1883) 15 Cox CC 217; R v Ramsay &
Foote (1883) 15 Cox CC 23. See, generally, Calder-Marshall, Lewd Blasphemous and Obscene (1972) at
169.
20 See Feinberg, Offense to Others (1985) at 50–97.
21 For a general condemnation of xenophobia, see Human Rights Council Resolution A/HRC/RES 10/22,
26 March 2009; General Assembly Resolutions 63/171, 18 December 2008, A/Res/63/171 and 65/224,
21 December 2010, A/Res/65/224.
22 See Human Rights Commission Resolutions 2003/4, 14 April 2003; 2004/6, 13 April 2004; 2005/3, 12
April 2005; Human Rights Council Resolutions A/HRC/RES 4/9, 30 March 2007; A/HRC/Res7/19, 27
March 2008 and A/HRC/Res 10/22, 26 March 2009; General Assembly Resolutions 60/150, 16
December 2005, A/Res/60/150; 61/164, 19 December 2006, A/Res/61/164; 62/154, 18 December
2007, A/Res/62/154; 63/171, 18 December 2008, A/Res/63/171; 64/156, 18 December 2009, A/Res/
64/156 and 65/224, 21 December 2010 A/Res/65/224.
23 Human Rights Council Resolution A/HRC/Res 7/19, 27 March 2008, is arguably the most explicitly
‘Islamic’ in its approach. Thus, for example, it references various publications of the Organization of
Islamic Co-Operation and it specifically speaks of Islamophobia, whereas the final UNGA resolution on
this topic (65/224, 21 December 2010, A/Res/65/224) also speaks of Judaeophobia and Christophobia
and Human Rights and Council Resolution A/HRC/Res 13/16, 25 March 2010, speaks of anti-Semitism
and Christophobia.
24 Human Rights Commission Resolutions 2002/9, 15 April 2002; 2003/4, 14 April 2003; 2004/6, 13 April
2004; 2005/3, 12 April 2005; Human Rights Council Resolutions A/HRC/Res 4/9, 30 March 2007; A/
HRC/Res 7/19, 27 March 2008; A/HRC/Res 10/22, 26 March 2009; and General Assembly
Resolutions 60/150, 16 December 2005, A/Res/60/150; 61/164, 19 December 2006, A/Res/61/164;
62/154, 18 December 2007, A/Res/62/154; 63/171, 18 December 2008, A/Res/63/171; 64/156, 18
December 2009, A/Res/64/156; and 65/224, 21 December 2010, A/Res/65/224.
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result of its publication.25 Secondly, and more importantly, they were concerned that
any culture of xenophobia compounded by such speech could and did lead to abuse
of the rights of individual religious devotees in areas including discrimination per se,
racial profiling, denial of access to education, destruction of property, and, especially,
incitement to violence.26 Indeed every context in which the resolutions actually called
for states to pass laws, was one involving a perceived need to protect individual
rights. Pivotally, however, the resolutions never referred to rights in relation to religious sensitivities—implying clearly that their focus was not on sacred things being
undermined, but rather on the religious group as a whole being unjustly demonized.
Defamation of religion and blasphemy, therefore, whereas they both involve
speech which is ‘irreligious’, are distinct in terms both of what they protect and what
they prohibit. As was mentioned above, the various cartoons of Muhammad published in Charlie Hebdo fall into two categories on the basis of these differences. The
question to be assessed for the remainder of the article is whether there should be an
unfettered right to publish both kinds of cartoon. In other words, is it inherently inappropriate to restrict speech which is blasphemous or which ‘defames’ a religion
through the mechanism of negative stereotyping, both as a matter of international
human rights law and also generally as a matter of principle which finds fundamental
application in orthodox western society?
3 . B L A S P HE M Y , D E F A M A T I O N O F R EL I G I O N A N D T H E
IN T E R N A T I O N A L R I G H T T O F R E E S P E EC H
The first proposition to consider—one which appeared to be implicit in some of the
reaction outside France to the Charlie Hebdo attacks and a great deal of international
reaction to the existence of blasphemy and defamation of religion laws—is that
which suggests that, whereas freedom of speech is manifestly not absolute, equally it
is a fundamental international principle that the freedom to publish ‘irreligious’ cartoons should not be legally restricted.27
It is suggested below that, whereas blasphemy and defamation of religion laws, respectively, target speech which is irreverent or which demonizes religions, equally, in
doing so, they are not seeking to protect religion per se (though no doubt this may
be their effect) but rather to control speech which, for various reasons, and in various
25 Human Rights Commission Resolutions 2002/9, 15 April 2002; 2003/4, 14 April 2003; 2004/6, 13 April
2004; 2005/3, 12 April 2005; Human Rights Council Resolutions A/HRC/Res 4/9 30 March 2007; A/
HRC/Res 7/19, 27 March 2008; A/HRC/Res 10/22, 26 March 2009; and General Assembly
Resolutions 60/150, 16 December 2005, A/Res/60/150; 61/164, 19 December 2006, A/Res/61/164;
62/154, 18 December 2007, A/Res/62/154; 63/171, 18 December 2008, A/Res/63/171; 64/156, 18
December 2009, A/Res/64/156 and 65/224, 21 December 2010, A/Res/65/224.
26 Human Rights Commission Resolutions 2002/9, 15 April 2002; 2003/4, 14 April 2003; 2004/6, 13 April
2004; 2005/3, 12 April 2005; Human Rights Council Resolutions A/HRC/Res 4/9, 30 March 2007; A/
HRC/Res 7/19, 27 March 2008; A/HRC/Res 10/22, 26 March 2009; and General Assembly
Resolutions 60/150, 16 December 2005, A/Res/60/150; 61/164, 19 December 2006, A/Res/61/164;
62/154, 18 December 2007, A/Res/62/154; 63/171, 18 December 2008, A/Res/63/171; 64/156, 18
December 2009, A/Res/64/156 and 65/224, 21 December 2010, A/Res/65/224.
27 See Dobras, supra n 12 at 344, for the view that the UN defamation of religion resolutions require that
‘several goals of international human rights organizations such as promoting religious freedom and tolerance, protecting freedom of speech and eradicating strict blasphemy laws [be] set aside in order to stop
the defamation of Islam’.
Freedom to Publish Irreligious Cartoons
203
jurisdictions, is regarded as grossly morally unacceptable. Even if the former was the
case, however, there are two counterarguments (considered in turn below) to the
proposition that such an approach is inherently repugnant to international free
speech law. First, the fact that a large number of states in the world reject this proposition means that the suggestion that it is a genuinely international one is difficult to
sustain. Secondly, textually, documents such as the International Covenant on Civil
and Political Rights (ICCPR)28 and the European Convention on Human Rights
(ECHR)29 quite clearly do allow for the possibility of speech being restricted in the
name of public morality, and if and when a religion is inextricably linked with a nation’s public morality, then it is difficult to see why this justification for restricting
speech could not apply, at least in theory, to ‘irreligious’ speech.
A. International Rights, Western Imperialism and the Exclusion
of the Islamic Viewpoint
The UN Defamation of Religion resolutions, sponsored, in the main, by the
Organization of Islamic Co-Operation (formerly the Organization of Islamic
Conference (OIC)),30 like the blasphemy laws which are enforced in various Islamic
states,31 were and are criticized as a violation of international human rights law by an
aberrant ideology.32 As is discussed below, however, the text of, for example, the
ICCPR specifically permits freedom of expression to be restricted in the name of
public morality—which, at least on the face of it, would seem to justify laws restricting speech in the name of religion. Hence, the essence of these criticisms would
seem to be that blasphemy and defamation of religion laws represent a violation of
the right to freedom of expression as it is or as it should be interpreted. The counterargument, however, is that such an approach to interpretation is not endorsed by
the Islamic world, and that world is simply too large for its viewpoints to be discounted in the development of international norms. This is not to ignore the undoubted reality that rights exist inter alia to protect minorities and thus that the
existence or otherwise of a right cannot necessarily be measured by the popular support that it commands. It is simply to say that a genuinely international consensus on
an issue as controversial as the relationship between free speech and religious sensitivity must, by definition, be one that accommodates (or at least seriously considers),
28 1976, 999 UNTS 14668. See General Assembly Resolution 2200A(XXI) of 16 December 1966.
29 Convention for the Protection of Fundamental Rights and Freedoms 1950, ETS 5.
30 The OIC is the second largest body in the world after the United Nations and the umbrella body for the
57 Islamic states in the world: see generally: www.oic-oci.org/oicv2/home/?lan¼en [last accessed 8
February 2016].
31 See David, ‘After Paris and Copenhagen Can Free Speech Learn to Live with Religion?’, CNBC, 21
February 2015, available at: www.cnbc.com/id/102439946# [last accessed 8 February 2016].
32 See Belnap, ‘Defamation of Religions: A Vague and Overbroad Theory that Threatens Basic Human
Rights’ (2010) 2 Brigham University Law Review 635; Kahn, ‘Fleming Rose, The Danish Cartoon
Controversy and the New European Freedom of Speech’ (2009–10) 40 Young California Western
International Law Journal 253; Bennett Graham, supra n 12; Leo, Gaer and Cassidy ‘Protecting Religions
from “Defamation”: A Threat to Universal Human Rights Standards’ (2011) 34 Harvard Journal of Law
and Public Policy 769; Danchin, ‘Defaming Muhammad: Dignity, Harm and Incitement to Religious
Hatred’ (2010) 2 Duke Forum for Law and Social Change 5; Kapai and Cheung, ‘Hanging in a Balance:
Freedom of Expression and Religion’ (2009) 15 Buffalo Human Rights Law Review 41 at 53; Temperman,
supra n 12; Foster, supra n 12; Dobras, supra n 12 at 342.
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rather than excludes, the viewpoint of nearly a quarter of the world’s population and
well over a quarter of the number of states that are members of the United Nations.
Before developing this argument, one initial caveat must be made. It is clearly not
the case that every Muslim in the world endorses the OIC approach to the relationship between free speech and religion,33 just as it is also not the case that all nonMuslims, or even all citizens of states whose governments opposed the defamation of
religion resolutions, (or even all those who supported the Je Suis Charlie campaign)
would support the proposition that blasphemy or defamation of religion laws necessarily represent violations of international human rights law.34 In other words, the
analysis which follows proceeds at a simplistic (though necessary) level of generalization, whereby, for the sake of argument, it is assumed that there is a western and an
Islamic view on this issue. At this simplistic level of generalization, it may reasonably
be contended that, whereas western liberal orthodoxy appears to believe that nearly
all religions (with the possible exception of the Jewish faith) should be a fair target
for virtually unbridled free speech, the Islamic world rejects this proposition.
This latter viewpoint is expressed in a number of ways. First, it was the OIC
which promoted the UN defamation of religion resolutions, and it continues to endorse a basic normative principle that the right to free speech is subject to the need
to protect religion.35 Secondly, the reality is that many Islamic states do have effective
working blasphemy laws.36 Finally, it is notable that the Cairo Declaration on
Human Rights in Islam37—the Islamic response to the Universal Declaration on
Human Rights (UDHR)38—appears, expressly, to require that the right to free
speech be subject to, rather than above, religion.39 This being the case, the question
which must be asked is whether this Islamic view of the relationship between speech
33 See, for example, Cox, ‘The Clash of Unprovable Universalisms: International Human Rights and Islamic
Law’ (2013) 2 Oxford Journal of Law and Religion 307 at 317. Indeed, more generally, because there is
such diversity of thought within the Islamic world, it is frankly impossible to speak of ‘the Islamic viewpoint on any issue. See generally Haqq, ‘Islamic Law: An Overview of its Origins and Elements’ (2002) 7
Journal of Islamic Law & Culture 27.
34 See Martinez, ‘I Used to Be a Free Speech Absolutist. Charlie Hebdo Changed That’, The Washington
Post, 26 January 2015.
35 For analysis, see Rehman and Berry, supra n 12 at 441; Holzaeffel, supra n 12 at 625; Blitt, ‘Tunisia:
Springtime for Defamation of Religion’ (2012) 10 International Journal of Civil Society Law 1; and Blitt,
‘Defamation of Religion: Rumors of Its Death are Greatly Exaggerated’ (2012–13) 62 Case Western
Reserve Law Review 347.
36 For a summary of the extent of incidences of blasphemy and defamation of religion laws on national statute books, see the Pew Research Forum 2012 Report on Religion and Public Life, available at: www.pewfo
rum.org/2012/11/21/laws-penalizing-blasphemy-apostasy-and-defamation-of-religion-are-widespread/
[last accessed 14 February 2015], the findings of which are analysed in Grim, ‘Restrictions on Religion: A
Global Overview’ (2012) 3 Brigham Young University Law Review 835.
37 Annex to Res 49/19 of the Organisation of Islamic Co-Operation, available at: www.oic-oci.org/english/
article/human.htm [last accessed 8 February 2016].
38 GA Res 217A (III), A/810 at 71 (1948).
39 See Mayer, ‘Universal Versus Islamic Human Rights: A Clash of Cultures or a Clash with a Construct?’
(1993–94) 15 Michigan Journal of International Law 307. Thus Article 22 provides as follows:
(a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari’ah. (b) Everyone shall have the right to advocate what is right, and
propagate what is good, and warn against what is wrong and evil according to the norms of Islamic
Shari’ah. (c) Information is a vital necessity to society. It may not be exploited or misused in such a way
as may violate sanctities and the dignity of Prophets, undermine moral and ethical values or disintegrate,
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205
and religion is a perversion of international norms, or whether, instead, it must be
accommodated by and within such norms, in order for them to be genuinely
international.
Let us consider the facts in relation to the place of Islam and Muslims within the
twenty-first century world order. The OIC represents 57 states—well over a quarter
of the 193 states which are members of the United Nations. There are Muslims living in every country in the world,40 with the vast majority of Muslims not living in
the Middle East or that part of the world which is regarded as a traditional Islamic
homeland. It is impossible accurately to estimate the number of Muslims in the
world, but it is reckoned to be roughly 1.6 billion, such that Muslims represent approximately 23 per cent of the world’s population.41 How then is it possible sincerely
to speak of an international norm, which excludes and ignores the views of such a
huge percentage of the states and people in the world?42 The answer, it is submitted,
is that it is not possible so to do.
It may, of course, be argued that international human rights norms do not depend, for their status, on the extent to which they command global support, but rather that they are pre-existing values deriving from some universal source. In other
words, if there genuinely is an international and universal norm which condemns
blasphemy laws, then the fact that, for example, Islamic states retain such laws simply
means that they are in violation of this norm, nor can their opposition to it affect its
status as a universal norm (and not least because, as has been noted above, rights
may exist for the precise purpose of protecting a vulnerable minority from the tyranny of an unsupportive majority). The difficulty with this logic, in so far as a ‘freedom to publish irreligious cartoons’ is concerned is, however, twofold.
First, at the time of the construction of the International Bill of Rights, many
states (including, for example, the United Kingdom) had working blasphemy laws
on their statute books, nor does there appear to have been any suggestion, at the
time, that the existence of such laws was inherently problematic. The point is that the
purportedly universal norm contained in the ICCPR is a basic, non-absolutist guarantee of freedom of expression which, on its face says nothing about the legitimacy
of a blasphemy law, and the view that blasphemy and defamation of religion laws run
contrary to international human rights law derives merely from contemporary interpretation of that norm. Here, however, the reality that a large percentage of the
world’s population opposes this view becomes relevant. After all, there is a strong argument that it does no more than represent the current approach to the balance between free speech and religious sensitivities in secularized western society and that
there is no reason why this viewpoint, which is opposed by other cultures, should
corrupt or harm society or weaken its faith. (d) It is not permitted to arouse nationalistic or doctrinal
hatred or to do anything that may be an incitement to any form or racial discrimination.
40 See, for example, Brown, A New Introduction to Islam, 2nd edn (2009) at 5; Esposito, Islam The Straight
Path, 4th edn (2011) at 250ff.
41 See Desilver, ‘World’s Muslim Population More Widespread Than You Might Think’, Pew Research
Centre, 7 June 2013, available at: www.pewresearch.org/fact-tank/2013/06/07/worlds-muslim-popula
tion-more-widespread-than-you-might-think/ [last accessed 8 February 2016].
42 No doubt it is not the case that every individual dissident voice must be incorporated in order that a
norm can validly be seen as ‘international’, nor is any mechanism here suggested for determining when
there are a sufficient number of dissenting voices that what is said must be accommodated.
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attract the status of an international or universal norm simply because of the western
tendency to believe that what it thinks is right in a particular time must be empirically or universally correct.43
This links to the second and broader difficulty with the notion that blasphemy
and defamation of religion laws run contrary to international free speech norms irrespective of the fact that a quarter of the world’s population (nominally) would support such laws, namely that, historically, the Islamic view of things has been
systematically excluded from the process by which such allegedly international
human rights norms are constructed and developed.44 It should not be forgotten
that, at the time of the promulgation of the UDHR, the vast majority of Islamic states
were colonized and hence had no independent voice to be heard in the construction
of the declaration.45 Thereafter, to the extent that Islamic views (or other views)
genuinely dissented (or dissent) from the normative vision in the Declaration, the
tendency was (and is) to regard them as unacceptable though occasionally tolerated
aberrations from established norms rather than to allow such views actually to be factored into the construction of such norms.46 Furthermore, it is strongly arguable
that, until the changes in 2006 which saw the Human Rights Commission replaced
by the Human Rights Council, the nations of the Islamic world were simply underrepresented within the UN decision making machinery.47 In other words, the major
UN decisions on constructing human rights norms were made by entities in which
the ‘Islamic world’ was either not, or not sufficiently represented. This is truly remarkable when one considers that there is, undeniably, an Islamic ‘voice’ in the world
and indeed that this voice is a very strong one. After all, it is worth remembering,
once again, that the largest organization in the world, other than that United
Nations, (the OIC) unites its members on the basis not of race nor of ethnicity, but
by reason of their affiliation to Islam.
For all these reasons, it is submitted that the fact that the supposedly ‘international’ free speech norm to which western liberal commentators refer does not accommodate the views of OIC states leaves these commentators open to the very
serious criticism that it is not international at all, but is, instead, an encapsulation of
post-enlightenment, liberal, secular, western philosophical values that have been elevated to international (and possibly universal) status on the basis of nothing more
concrete than a western sense of moral superiority and historical western control of
43 See Baderin, ‘A Macroscopic Analysis of the Practice of Muslim State Parties to International Human
Rights Treaties: Conflict or Congruence?’ (2001) 1 Human Rights Law Review 265 at 266 fn 5; Cox, supra
n 33 at 316–17.
44 Glendon, ‘The Forgotten Crucible: The Latin American Influence on the Universal Human Rights Idea’
(2003) 16 Harvard Human Rights Journal 27; Waltz, ‘Universal Human Rights; The Contribution of
Muslim States’ (2004) 26 Human Rights Quarterly 799.
45 See, generally, Cox, supra n 33 at 315.
46 See, for example, Afshari, ‘An Essay on Islamic Cultural Relativism in the Discourse of Human Rights’
(1994) 16 Human Rights Quarterly 235.
47 See generally Waltz, ‘Universal Human Rights; The Contribution of Muslim States’ (2004) 26 Human
Rights Quarterly 799. The changeover to the Human Rights Council (from the old Human Rights
Commission) with its new, more globally representative, framework was effected by General Assembly
Resolution 60/251, 15 March 2006, A/Res/60/251. See, generally, Boyle, ‘The United Nations Human
Rights Council: Politics, Power and Human Rights’ (2009) 60 Northern Ireland Legal Quarterly 121.
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207
the United Nations machinery. On this basis, it can be strongly argued that laws
against blasphemy or defamation of religion do not represent a violation of international human rights law (either as it is or as it should be interpreted), but are merely
unsettling for western states which had assumed that their views of such matters
were empirically correct and that their approaches warranted international status.
None of this, of course, is an argument that blasphemy or defamation of religion
laws are, of themselves, ‘good things’, nor yet that the United Nations should endorse
them—nor indeed is such a suggestion made at any point in this article. It is simply
an argument that no contemporary international norm which is genuinely international in nature can systematically exclude and ignore the views of nearly a quarter of
the world’s population.
B. Freedom of Expression, Public Morality and Irreligious Speech
What is particularly remarkable about the argument that restrictions on free speech
aimed at ‘protecting religion’ subvert international free speech norms, is that, not
alone does this proposition have no textual basis, but, in fact, it runs contrary to the
text of most human rights treaties which permit speech to be restricted in the interests of public morality.48
In order to understand the significance of this fact, it is necessary first of all to accept that, in many modern Islamic countries, principles of Shari’a link deeply and directly with the public morality and the law of the state. Issues pertaining to the
emergence of Islamism in the Middle East or the role of statehood within the entire
Islamic mindset are well beyond the limited scope of this article, but the constitutions of a number of OIC states49 (as well as the Cairo Declaration on Human
Rights50) firmly assert that state laws are subject to, or otherwise connected with
Islamic Shari’a. In other words, it is not merely the case that, for historical reasons,
the public morality of these states reflects Islamic teaching (in the way that the public
moralities of many western states, for historical reasons, reflect principles of JudaeoChristian teaching51). Rather Shari’a principles are part of the public morality of the
state because they are Shari’a principles and hence are believed to constitute eternal
and universal truth.
The significance of this, for present purposes, is obvious. Under Article 19(3) of
the ICCPR and, more concretely, Article 10(2) of the ECHR, provision is made for
the right to free speech to be restricted in the interests of public morals. The public
morality of most modern, secularized western states is distinct from the teachings of
a particular religion (and indeed, because of historical factors, the notion of individual rights being restricted in order to protect religion may actually run directly
48 General Assembly Resolutions 61/164, 19 December 2006, A/Res/61/164 and 62/154, 18 December
2007, A/Res/62/154, appeared to imply that securing respect for religion was in fact a textually enshrined
justification for restricting freedom of speech. This is, quite clearly, not the case.
49 For an excellent analysis, see Ahmed and Ginsburg, ‘Constitutional Islamization and Human Rights: The
Surprising Origin and Spread of Islamic Supremacy in Constitutions’ (2014) 54 Virginia Journal of
International Law 617.
50 Thus, in its preamble, the Cairo Declaration states that it is ‘[k]eenly aware of the place of mankind in
Islam as vicegerent of Allah on Earth’ and regularly throughout references the ultimate authority of Islam.
51 Mitchell, Law Morality and Religion in a Secular Society (1968) at 109.
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contrary to the public morality of particular states52). As has been noted, however,
this is not the position in many Islamic states where the religion of the state is indistinguishable from its public morality. In these states, it is speech which is offensive to
the Islamic religion which will, inevitably, be outrageous in so far as public morality
is concerned. Hence, in such an Islamic country, it is ‘irreligious speech’ which might,
in principle, be restricted under the public morality exceptions.
In this regard, it is worth noting that, on several occasions,53 and most notably
in Otto Preminger Institut v Austria,54 the European Court of Human Rights has
upheld the legitimacy of national limitations, in effect, on blasphemy on the basis
of the public morality exception in Article 10(2) of the European Convention. It
did so, of course, by relying heavily on its margin of appreciation doctrine—and, in
this respect, it is arguable that the Court is occasionally excessively deferential to
the arguments of states that particular aspects of ‘religious’ public morality are so
deeply held within their society that this doctrine should apply.55 In particular and
despite the significance which had been attributed to the question of reasonable
(un)avoidability of offence in its earlier decision in Muller & Others v
Switzerland56—a case where there was little or no warning given about the potentially offensive nature of certain paintings hanging in a public gallery—the Court in
Otto Preminger v Austria upheld the ban on the potentially blasphemous film in the
face of the compelling argument from the applicants that, to the extent that the
precise nature of the film was known, no one could reasonably claim that they had
unknowingly suffered offence thereby. In other words, a principle which emerges
from these decisions is that the Court appears to believe that it is neither possible
nor desirable to homogenize the public moralities of all European states and that,
even within the Council of Europe (where national public moralities are relatively
ideologically similar), different states may legitimately take different views on the
questions of if and when it is acceptable to restrict speech in the interests of religion (as an element of public morality).57
The fact that western commentators are prepared to argue that there should be
an unbridled freedom to publish ‘irreligious’ cartoons and, thus, that laws restricting
free speech in order to protect religion are inherently invalid even in the face of the
‘public morality’ exception for restricting freedom of expression, is explainable in one
of two ways. First, some commentators appear simply to overlook or misread the
52 See on this Cox, supra n 18 at 757.
53 Otto-Preminger-Institut v Austria Application No 13470/87, Merits and Just Satisfaction, 20 September
1994; Wingrove v United Kingdom Application No 17419/90, Merits and Just Satisfaction, 25 November
1996.
54 Application No 13470/87, Merits and Just Satisfaction, 20 September 1994.
55 This was, I would suggest, clearly the case in Murphy v Ireland Application No 44179/98, Merits and Just
Satisfaction, 10 July 2003.
56 Application No 10737/84, Merits and Just Satisfaction, 24 May 1988.
57 On the other hand, in Olmedo Bustos et al v Chile IACtHR Series C 73 (2001), the Inter-American Court
of Human Rights found that Article 13 of the American Convention on Human Rights (ACHR) had
been violated by the Chilean ban on the film The Last Temptation of Christ. This judgment is explained,
however, by the fact that the American Convention (unlike the ICCPR or ECHR) in Article 13(4) specifically provides that public entertainments may only be subject to prior censorship in the interests of the
moral protection of childhood and adolescence.
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‘public morality’ exception in the various human rights documents.58 Secondly, and
more relevantly, other commentators simply claim that the teachings of a religion
should not form part of the public morality of a state.59 As we have seen, however,
this approach involves a denial of the reality in many Islamic societies. Furthermore,
to the extent that secularized western society has no empirical basis for proving the
universal and exclusive legitimacy of its secular public morality (a morality which, in
various contexts, is demonstrably relativist anyway) or of disproving the moral vision
of a religion like Islam both per se and as a suitable public morality for a state, it has
no empirical basis for demonstrating that the Islamic view of religion as public morality is anything other than different to its own, and certainly not that it is, in some
sense, wrong.
This is not, of course, an argument for the enactment of blasphemy laws or defamation of religion laws anywhere—let alone in western secularized states like
France where such laws would be of dubious legitimacy precisely because religion is
not part of the public morality. Similarly, this analysis does not, of course, mean that
all blasphemy laws or defamation of religion laws must, inevitably, be legitimate
insofar as international human rights law is concerned. The principles in Article
19(3) of the ICCPR (or indeed Article 10(2) of the ECHR and Article 13 of the
ACHR) do not provide a state with an unfettered justification for restricting ‘immoral speech’ and, certainly in the case of Article 10(2), the approach of the
European Court, which consistently stresses that freedom of speech includes the
freedom to shock, offend and disturb60 has been to accept that it is the right which is
the starting point of any analysis, and that any limitations on that right should be
tightly drawn.61 In particular, there should be a proportionate link between the degree of interference with the right and the legitimate purpose which the restriction is
intended to fulfill, and the law should respect other rights, including rights of due
process.62 So, for example, no ‘public morality’ justification for restricting speech
58 See, for example, Blitt, supra n 12; Foster, supra n 12 at 35; Rehman and Berry, supra n 12 at 446;
Grinberg, supra n 12 at 203. Bennett Graham, supra n 12 at 77, goes so far as to suggest that Article
19(3) protects the ‘morals of others’, which is clearly not the case in that its focus is not on individuals
but rather the morality of the state.
59 See Temperman, supra n 12 at 527. The UN Human Rights Committee in General Comment No 22:
The right to freedom of thought, conscience and religion (Article 18), CCPR/C/21/Rev/Add.4, 1993 at
para 8, in dealing with freedom of conscience, observed that ‘the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion
or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a
single tradition’. Apart from the fact that different considerations may arise where Article 19 is at stake, it
is submitted that this conclusion simply does not consider the concept of a society where the public morality derives from and is inextricably linked to one religion.
60 See, for example, Castells v Spain Application No 11798/85, Merits and Just Satisfaction, 23 April, 1992
at para 42; Oberschlick v Austria (No 2) Application No 20834/92, Merits and Just Satisfaction, 1 July
1997 at para 29; Handyside v United Kingdom Application No 5493/72, Merits, 7 December 1976; Bladet
Tromso v Norway Application No 21980/93, Merits and Just Satisfaction, 20 May 1999 at para 62;
Sokolowski v Poland Application No 75955/01, Merits and Just Satisfaction, 29 March 2005 at para 41;
Savitchi v Moldova Application No 11039/02, Merits and Just Satisfaction, 11 October 2005 at para 45.
61 See, for example, Feldek v Slovakia Application No 29032/95, Merits and Just Satisfaction, 12 July 2001 at
para 72.
62 Barthold v Germany Application No 8734/79, Merits, 25 March 1985 at para 55; Lingens v Austria (No 2)
Application No 9815/82, Merits and Just Satisfaction, 8 July 1986 at para 39; Sunday Times v United
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could justify Pakistan’s blasphemy law which, in part is strict liability in nature, which
provides for highly draconian penalties and, especially, which operates with scant respect for rights of due process.63 Equally, for present purposes, the objective is not
to justify the existence of any particular law, but simply to make the point that, even
as a matter of the existing text of the ICCPR or ECHR, the proposition that the
international right to freedom of expression can only be restricted in order to protect
the rights of others and never in the interests of religion, far from being self-evident,
appears to be, simply, inaccurate.
For both these reasons, it can be suggested that it cannot be concluded that, as a
matter of the ‘right’ interpretation of international human rights law, there must be a
freedom to publish cartoons which are blasphemous or defamatory of religion (let
alone that this represents a customary principle of international law) unless one is
prepared, in making such an interpretation (or developing such a customary principle) to ignore the views of up to a quarter of the world’s population as to the
proper balance between speech and religion, and as to the role of religion as a foundational element of the public morality of a state.
4 . W E S T E R N OR T H O D O X Y A N D TH E R I G H T TO PU B L I S H
‘ I R R EL I G I O US ’ CA R T O O NS ?
We now turn to the question of why so many people with western ideological leanings (including some of those who endorsed the Je Suis Charlie campaign) believe
that there should be an unfettered right to publish irreligious cartoons and equivalent
material, and claim that this viewpoint reflects the correct (if not a genuinely international) approach to the interplay between speech and religion. In doing so we assess
(i) whether the justifications for blasphemy and defamation of religion laws are genuinely objectionable in principle even in so far as western orthodoxy is concerned, (ii)
if not, whether even if such rationales may legitimately underpin other restrictions on
speech, they should not be used to restrict speech targeting religion or religious
things, and (iii) whether, in fact, there is something specific about the relationship
between the west and Islam which explains the ‘Je Suis Charlie’ reaction on the part
Kingdom (No 1) Application No 6538/74, Merits, 26 April 1979; Cumhuriyet Vakfi & Others v Turkey
Application No 28255/07, Merits and Just Satisfaction, 8 October 2013 at para 58; Bladet Tromso v
Norway Application No 21980/93, Merits and Just Satisfaction, 20 May 1999 at para 58; Dalban v
Romania Application No 28114/95, Merits and Just Satisfaction, 28 September 1999 at para 47; Fressoz
and Roire v France Application No 29183/95 Merits and Just Satisfaction, 21 January 1999 at para 45;
Cumpana & Mazare v Romania Aplication No 33348/96 Merits and Just Satisfaction, 17 December 2004
at para 88; Novaya Gazeta Voronezhe v Russia Application No 27570/03, Merits and Just Satisfaction, 21
December 2010.
63 Generally, see Hayee, ‘Blasphemy Laws and Pakistan’s Human Rights Obligations’ (2012) 14 University
of Notre Dame Australia Law Review 25; Hoffmann ‘Modern Blasphemy Laws in Pakistan and the Rimsha
Masih Casse: What Effect- if any-the Case Will Have On Their Future Reform’ (2014) 13 Washington
University Global Studies Law Review 371; Bohlander, supra n 18 at 49. It had previously been the case
that Article 295-C of the Pakistani Criminal Code had prescribed life imprisonment or death for the offence of defaming the Prophet Muhammad but in 1990 the Federal Shariat Court ruled that it was repugnant to Islam for such an offence not to carry a mandatory death penalty. This order was reaffirmed by
the Federal Shariat Court in December 2013 and would now appear to be the law: see ‘Death Penalty
Order Deepens Hard-Line Islamist Trend in Pakistan, Critics Say’, Morning Star News, 30 December
2013.
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of many within the international community more effectively than either of the previous two broad propositions. The purpose is not to critique western liberal views on
the question of the relationship between speech and religion generally, but simply to
evaluate the basis for the popular international reaction of solidarity with the freedom
of Charlie Hebdo to publish the cartoons that it published.
A. Blasphemy Law and the Control of Profoundly Morally
Unacceptable Speech
Whatever the specific parameters of a particular blasphemy law, the purpose underpinning any such law is to prohibit speech on the basis that it is profoundly and
deeply offensive from the standpoint of the state. Yet, a number of relatively uncontroversial laws even in western countries (with the notable exception of the United
States64) also exist for precisely this purpose.65
Perhaps, the most useful example of such a law is that which prohibits holocaust
denial66 in Germany.67 It is difficult, after all, to ground this law on the basis of any
genuine need to protect individuals, given that the approach of the Federal
Constitutional Court and the language of the Grundgesetz or constitution68 is vehemently opposed to the national socialist era and to the policies of Nazism, and given
that there are many public efforts to uphold the memory of the holocaust and to reinforce the official view of what happened. Furthermore, meetings (such as those at
which David Irving proposed to speak and which formed the centre of the famous
Holcaust Denial decision from the Federal Constitutional Court69) or books which
espouse holocaust denial theory are inevitably reasonably avoidable,70 in that they
are hosted or authored by persons whose views on these issues will be predictable. In
other words, if someone wished not to be offended they could simply ignore the
meetings or books in question.
As has been suggested elsewhere,71 however, the true explanation for Germany’s
law does not lie in the interests of individuals—even those with direct connections
to the holocaust. Rather it lies in the fact that a key element of German public
64 Thus, in Texas v Johnson 491 U.S. 397 (1989) the US Supreme Court held that, under the first amendment to the constitution, speech could never be restricted simply because it is offensive.
65 See on this Cox, supra n 18; and Cox, ‘The Ethical Case for a Blasphemy Law’ in Fortner and Fackler
(eds), The Handbook of Global Communication and Media Ethics (2011) at 263.
66 Holocaust Denial is prohibited in nine European states as well as in Israel and Canada. The German criminal prohibition of holocaust denial is contained in Article 130(3) of the German Criminal Code.
67 See, for example, Lidsky, ‘Where’s the Harm? Free Speech and the Regulation of Lies’ (2008) 65
Washington & Lee Law Review 1091; Loewy, ‘Free Speech for Holocaust Deniers—It Is the American
Way’ (2009) 47 University of Louisville Law Review 721; Lasson, ‘Holocaust Denial and the First
Amendment: The Quest for Truth in a Free Society’ (1997) 6 George Mason Law Review 35.
68 Thus under Article 5(2) of the Basic Law, Nazi propaganda is deemed to be anti-constitutional and thus
dangerous to the state such that it can legitimately be censored. On this basis, Article 86 of the German
Criminal Code in essence prohibits the dissemination of, inter alia, Nazi Propaganda and use of Nazi
symbols.
69 Auschwitz Lie Case (‘Holocaust Denial Case’) Bundesverfassungsgericht [BVerfGE] [Federal
Constitutional Court] 90 BVerfGE 241.
70 See Feinberg, supra n 20 at 32, for the view that ‘[t]he easier it is to avoid a particular offence or to terminate it once it occurs, without inconvenience to oneself, the less serious it is’.
71 Cox, supra n 18 at 752ff.
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morality—that Germany must bear the shame of its past and ensure that it is not
repeated—is compromised by such speech. In other words, it is as if the ‘soul of the
nation’72 is wounded by holocaust denial and it is for this reason that at a national,
and not merely an individual, level its mere existence is regarded as so profoundly
unacceptable that the state should reassert its public moral vision and prohibit such
speech—whatever the cost to the holocaust denier’s rights and interests. It is, in
other words, a case of immoral speech being restricted because it is immoral.
Moreover, the relatively uncontroversial nature of the German law (and the absence
of mainstream opinion proclaiming that Ich bin David Irving following his conviction
for holocaust denial in Austria) suggests that there is no clear and unequivocal normative principle—even within western orthodoxy—condemning a law which restricts speech which is morally unacceptable in this way.
The relevance of this fact for the legitimacy of Islamic blasphemy laws is obvious.
The ‘mob’ style reaction to blasphemy in Pakistan, while deeply troubling73 is indicative of the extent to which blasphemy in Islamic states strikes at a most fundamental
element of their public morality. Reverence for God (as being above mockery, or
ridicule or irreverent treatment) is at the apex of the whole Islamic philosophy. God
is the source of all morality, and therefore undermining God is immoral at a unique
level, and speech which has this effect must, by definition, be profoundly (and
uniquely) unacceptable from a societal standpoint. In other words, the principle
underpinning the German holocaust denial law is the same as that underpinning an
Islamic blasphemy law with the only difference being the content of the respective
public moralities of the two jurisdictions.
That being the case, the western argument that there should be an unfettered freedom to publish ‘blasphemous’ cartoons, does not derive from a broader view that the
rationale underpinning a blasphemy law (that society may control speech which it regards as profoundly morally unacceptable) is inherently unacceptable. There is, after
all, no equivalent global call for an unabridged freedom to publish cartoons mocking
severely physically disabled children or victims of the holocaust. Instead, it must relate more specifically to the interplay between speech and religion and encompass either the proposition that, for whatever reason, religious sensitivities (again at either
an individual or communal level) should not attract the same level of protection as
other sensitivities (and not merely because in most western secular societies irreligious speech is not regarded as profoundly morally unacceptable), or, possibly, a
more nuanced and particular reaction against the ideological vision of Islam itself.
For reasons considered shortly, it may well be the latter of these explanations which
is closest to the truth.
A final point is worth making about the (exclusively) blasphemous Charlie Hebdo
cartoons. It is quite clear that, irrespective of the context in which Charlie Hebdo operates or the intentions of the cartoonists, irreverent and lampooning depictions of
the Prophet are painfully and profoundly offensive to millions of Muslims—
72 See, generally, ibid.; and Cox, supra n 65.
73 See, generally, Gubo, Blasphemy and Defamation of Religion in a Polarized World: How Religious
Fundamentalism is Challenging Fundamental Human Rights (2014).
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including those living in minority cultures in western societies74 and also that the
vast, vast majority of Muslims who were offended by the cartoons either internalized
this ‘hit’ to their religious sensitivities or expressed it peacefully. Even if there could
be no chance of French law restricting such speech, and even if there should be
some ‘right’ to publish offensive cartoons, nonetheless it is curious that so many people asserted solidarity with a freedom to cause serious and intentional offence—for
example, by celebrating the publication of a cartoon of Muhammad on the front
page of the ‘survivors’ edition of Charlie Hebdo.75 As was mentioned above, there is
not, after all, a similar reaction of solidarity with the revolting and hurtful yelling by
members of the Westboro Baptist church at the funerals of gay people and soldiers,
precisely because of a concern with the sensitivities of those who are affected by their
vile message. The fact that there was no equivalent concern for the sensitivities of
Muslim devotees begs many questions in respect of the attitude of many in western
society towards religious sensitivities generally and Islam specifically.
Finally, and to return to the point made earlier, there were two distinct kinds of
cartoon published. Some were merely blasphemous and others, by linking Islam to
terrorism, were also defamatory of the Islamic religion. It is to the question of
whether there should be an unfettered right to publish this latter kind of cartoon that
we now turn. Once again, however, this article is not, in any sense, a call for (or a
support for) the enactment of defamation of religion laws. It is simply an assessment
of whether, as is regularly suggested, a defamation of religion law necessarily and inevitably runs contrary to settled normative principles of western ideology.
B. Defamation of Religion, Xenophobic Cartoons and the Link
to Hate Speech
In this regard, it is strongly arguable that, at their heart, defamation of religion laws
(of the kind envisaged by the UN Defamation of Religion resolutions considered earlier) are directly analogous to western style hate speech laws and are focused far
more on protecting individuals than on protecting religion.76 The resolutions, after
all, condemn what they term ‘defamation of religion’ (that is, xenophobic speech
which unfairly, negatively stereotypes an entire religion), both because of the moral
quality of such speech, and because, so it is argued, it threatens global and social harmony and, especially individual rights. In other words, the rationale behind a defamation of religion law (protection of a group and its members from demonizing
speech) is the same as that which underpins hate speech laws generally and, of
course, whereas such laws are controversial, there is no widespread popular clamour
for an international right to engage in hate speech (whether the ultimate target of
74 See Kuruvilla, ‘Muslims Around The World React To Charlie Hebdo’s New Cover’, The Huffington Post,
14 January 2015, available at: www.huffingtonpost.com/2015/01/14/muslim-charlie-hebdo-cover_n_
6473050.html [last accessed 8 February 2016].
75 See Penketh and Weaver, ‘Muslim Leaders Appeal for Calm as Charlie Hebdo Special Hits the Streets’,
The Guardian, 14 January 2015; Melander and Henghan, ‘Charlie Hebdo “survivors’ edition” Sells Out in
Minutes’, Reuters, 14 January 2015, available at: www.reuters.com/article/2015/01/14/us-france-shoot
ing-idUSKBN0KN0RQ20150114 [last accessed 8 February 2016].
76 For this criticism, see Blitt, supra n 12 at 17; Foster, supra n 12 at 35; Rehman and Berry, supra n 12 at
435–6; Temperman, supra n 12 at 525; Bennett Graham, supra n 12 at 69.
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such speech is an entire group or community or its members) nor would the international community rally in solidarity behind persons who had been targeted—even
violently—for publishing such hate speech.77
This being the case, a significant question arises for critics of defamation of religion laws and for those who assert a fundamental international right to publish cartoons which are, allegedly, defamatory of Islam. If it is legitimate to restrict hate
speech which targets, for example, black people, on the basis that such speech,
through its use of negative stereotyping, constitutes unacceptable and xenophobic
hate speech which has the potential to cause harm to a group or to individuals, then
why can the same logic not apply where Islam as a religion and individual Muslims
are being targeted by a clear, well publicized and highly popular message that because
a few Muslims are terrorists, therefore Islam must, inherently, have links to
terrorism?
It is submitted that there are three possible responses to this question. First, it
may be suggested that the cartoons linking Islam with terrorism are not genuinely
xenophobic in that is factually legitimate to draw such a link. Secondly, it might be
argued that, with religion, what is at stake is a set of ideological beliefs or principles,
and freedom of expression demands that these should always be open to criticism,
mockery and other forms of ‘attack’.78 Finally, it might be argued that there is a difference between racism and other forms of hate speech on the one hand, and the
negative stereotyping of religion on the other, in that, unlike race or gender or (arguably) sexual orientation, one’s religious beliefs are not an immutable characteristic,
but a matter of voluntary choice.79 These three propositions will be considered
in turn.
(i) The legitimacy of the message of the cartoons
It scarcely needs to be said that the suggestion that Islam has some kind of inherent
link to terrorism is endemic in western society. This is evidenced by a number of factors, three of which are worthy of mention. First, and most obviously, individual
Muslims do feel that they are subject to a disproportionate level of suspicion and tangibly excessive levels of profiling in situations where security is at issue.80 Secondly,
various neutral terms connected with Islam including fatwah (literally an ‘opinion’),
77 As was mentioned above, there is no equivalent reaction when members of the Westboro Baptist Church
are attacked for their offensive comments uttered at the funerals of homosexuals and servicemen and
women: see Palosaari, ‘Mississippi County Gets Rough with Westboro Church’ The Pitch Blogs, 27 April
2011, available at: www.pitch.com/FastPitch/archives/2011/04/27/mississippi-county-gets-rough-withwestboro-baptist-church [last accessed 8 February 2016].
78 Keane, ‘Cartoon Violence and Freedom of Expression’ (2008) 30 Human Rights Quarterly 845.
79 See, for example, Leo, Gaer and Cassidy, supra n 32 at 782; Pringle, ‘Regulating Offence to the Godly:
Blasphemy and the Future of Religious Vilification Laws’ (2011) 34 University of New South Wales Law
Journal 316 at 327; Bennett Graham, supra n 12 at 78.
80 For a concern within the resolutions at the increase in such profiling, see Human Rights Commission
Resolutions 2002/9, 15 April 2002; 2003/4, 14 April 2003; 2005/3, 12 April 2005; Human Rights
Council Resolutions A/HRC/Res 4/9, 30 March 2007; A/HRC/Res 7/19, 27 March 2008; A/HRC/Res
10/22, 26 March 2009) and General Assembly Resolutions 60/150, 16 December 2005, A/Res/60/150;
61/164, 19 December 2006, A/Res/61/164; 62/154, 18 December 2007, A/Res/62/154; 63/171, 18
December 2008, A/Res/63/171; 64/156, 18 December 2009, A/Res/64/156; 65/224, 21 December
2010, A/Res/65/224.
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Islamic fundamentalism (that is, belief that one should live by traditional and originalist rather than modernized interpretations of the Islamic faith) and jihad (literally
‘struggle’), have come to be interpreted in western society as having inherent connections to terrorism. Most importantly, all of the Danish Cartoons (and some of
those published in Charlie Hebdo) carried the message that the founder of Islam and,
by logical extension, Islam itself was connected with terrorism, yet their publication
was defended by many in the West, as making an important contribution to debate.81
It is surely true that this would not be the reaction to an equivalent type of negative
portrayal of a different community within western society (for example, one that suggested that all African Americans were cannibals or criminals or all homosexuals
were paedophiles). In other words, the message that Islam has inherent links to terrorism has been normalized and legitimized and is ubiquitous in western society.
Many people, however, will argue that there is a difference between the message
of the cartoons on the one hand and one that, for example, stigmatizes the African
American community by reference to cannibalism or criminality on the other, because the former, unlike the latter, has some justification to it. In other words (in
their view), the Islamic religion is a militant one and individual Muslims, in their zealous devotion to some sort of invisible force that transcends the state, do represent a
threat to western society. Much has been written on the question of the relationship
between Islam and terrorism82 and on the proper meaning to be afforded to the concept of jihad,83 and anyway it is not within the scope of this article to analyse this
issue in any detail. Nonetheless, three points should perhaps be made.
First, even if many acts of terrorism (to the extent that that term can be defined84)
are committed by Muslims and in the name of Islam,85 this does not, of course, mean
81 For general discussion, see Evans, ‘From Cartoons to Crucifixes: Current Controversies concerning the
Freedom of Religion and the Freedom of Expression before the European Court of Human Rights’
(2010) 26 Journal of Law and Religion 345, 346 fn 1. For a criticism of the moral quality of such republication, see Waldron, ‘Dignity and Defamation: The Visibility of Hate’ (2010) 123 Harvard Law Review
1596, 1653; Kahn, supra n 32 at 268.
82 See amongst many others, Orhun, ‘Intolerance and Discrimination against Muslims (Islamophobia)’
(2009) 20 Security and Human Rights 192; Rehman, ‘Islamophobia after 9/11: International Terrorism,
Shari’a and Muslim Minorities in Europe: The Case of the United Kingdom’ (2003–04) 3 European
Yearbook of Minority Issues 217; Porter, ‘Osama Bin Laden, Jihad, and the Sources of International
Terrorism’ (2002–03) 13 Indiana International and Comparative Law Review 871 at 883; Parvez, ‘Terror
in the Name of Islam: Unholy War, Not Jihad’ (2006–08) 39 Case Western Reserve Journal of International
Law 759 at 770.
83 See on this Whalen, ‘In Search of Jihad: Toward a Policy of Constructive Islamic Engagement’ (1998) 5
Brown Journal of World Affairs 279; Mahmood, ‘Whither Political Islam - Understanding the Modern
Jihad’ (2005) 84 Foreign Affairs 148; Hellyer, ‘Jihad Re-Examined - or Jihad Repaired: Bellum Iustum in a
World of International (Dis)-Order’ (2012) 10 Santa Clara Journal of International Law 35; Jamaal, ‘The
Concepts of Extremism and Terrorism’ (2003) 8 Journal of Islamic Law & Culture 49.
84 See on this An-Na’im. ‘Islamic Ambivalence to Political Violence: Islamic Law and International
Terrorism’ (1988) 31 German Yearbook of International Law 307; Zeidan, ‘Agreeing to Disagree: Cultural
Relativism and the Difficulty of Defining Terrorism in a Post-9/11 World’ 29 Hastings International and
Comparative Law Review (Winter 2006) 215; Laquer, The New Terrorism (1999); Schmid et al., Political
Terrorism: A New Guide to Actors, Authors, Concepts, Data Bases, Theories and Literature (1998); Schwartz,
supra n 13.
85 See National Counterterrorism Center, Report on Terrorism 2011, at 11, available at: fas.org/irp/threat/
nctc2011.pdf [last accessed 8 February 2016], but see also www.globalresearch.ca/non-muslims-carriedout-more-than-90-of-all-terrorist-attacks-in-america/5333619 [last accessed 16 March 2015]. In fact a
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that most Muslims are terrorists or that Islam demands that its followers engage in
acts of terrorism. Quite obviously, the vast majority of Muslims in the world have
never engaged in acts of terror, and groups like the OIC explicitly condemn such
acts86—a fact which should really be afforded more significance by those who would
draw an inherent link between Islam and terrorism. Secondly, and whereas the terms
of, for example, the Qur’an are sufficiently broad that they permit of a myriad of different interpretations,87 it is strongly arguable that terrorism is actually repugnant to various rules of Shari’a law,88 and that the interpretation used by Islamic terrorist groups
is decontextualized and politically motivated. Finally, and most importantly, the message in publications like the cartoons does not involve any fair or genuine analysis of
the terms of Islamic law. Rather it is made at the level of any other kind of racist
abuse—that is, by a completely unsubstantiated and speculative comment that because
some members of a group behave in a particular and negative way, therefore it is legitimate to assume that such behaviour is inherent to the entire group. In other words, it
is strongly arguable that the message conveyed by the cartoons is directly analogous to
the type of message which would fall foul of hate speech laws generally.
(ii) Stifling criticism to protect ideologies
Commentators will next argue that there is a clear difference between xenophobia
against religion and other forms of hate speech, in that laws targeting the former
(but not the latter) ring-fence a set of ideological principles and render them off limits in so far as criticism, satire and mockery are at stake. At the heart of the right to
free speech, so it is argued, is the proposition that ideological principles of this kind
are fair game in the face of such forces. Indeed, it is this, perhaps more than anything
else, that united the very many people in January 2015 who asserted that ‘Je Suis
Charlie’ and who, in doing so, expressed solidarity with the right to publish such cartoons without being targeted either by terrorists or legislators.
This argument, it may be suggested, is flawed because of its failure both to distinguish a religious organization from the underlying ideology on which it is based and
to accept that xenophobia is manifestly different to criticism, mockery or satire. It is
impossible, however, to make any sense of the UN defamation of religion resolutions
unless one sees their factual concern as being with xenophobic statements made
against a religious organization—something which is conceptually different to criticism or mockery of sacred things or ideologies. Of course, it is possible for a publication simultaneously to be blasphemous and to defame a religion (and all of the
tiny percentage of terrorist attacks carried out in Europe or America annually are carried out by Muslims
or in the name of Islam: see ‘Less that 2 Per cent of Terrorist Attacks in the E.U. are Religiously
Motivated’ Think Progress, 8 January 2015, available at: thinkprogress.org/world/2015/01/08/3609796/
islamist-terrorism-europe/ [last accessed 8 February 2016].
86 See, generally, Samuel, ‘The Legal Response to Terrorism of the Organization of Islamic Co-Operation’
in Saul (ed.), Research Handbook on International Law and Terrorism (2014) Chapter 41.
87 An-Na’im, ‘Islamic Ambivalence to Political Violence: Islamic Law and International Terrorism’ (1988)
31 German Yearbook of International Law 307.
88 Thus there is clear Qur’anic instruction (in the context of use of force) not to cheat, break-trust, mutilate
or kill minors and non-combatants including women, children and monks: see, generally, Schwartz, supra
n 13 at 644; Shah, ‘The Use of Force under Islamic Law’ (2013) 24 European Journal of International Law
343; Westbrook, ‘Bin Laden’s War’ (2006–07) 54 Buffalo Law Review 981.
Freedom to Publish Irreligious Cartoons
217
Danish cartoons and some of the Charlie Hebdo cartoons are cases in point) but defamation of religion laws (certainly of the kind envisaged by the UN resolutions), like
hate speech laws, exist exclusively to prevent negative stereotyping of a societal
group, and in order to protect the rights of its members.
(iii) Religion as a relevant characteristic for hate speech laws
This leads, however, to the final objection from commentators, namely that, for the
purposes of hate speech law, it is not legitimate to regard any organization or grouping to whose principles members voluntarily subscribe (such as a religion) in the
same way as one regards communities of self identification based on immutable characteristics, such as race, skin colour or gender.89 Put another way, the reason why racist speech is so repugnant to public morality in many western societies is because it
targets people in respect of an immutable characteristic, and speech which vilifies a
religion simply does not raise the same public morality concerns. There are, however,
two responses to this argument.90
The reality of the nature of religious belief First, it is something of a misnomer
(which reflects the fact that the complexities and realities of religious belief may simply be incomprehensible to those who are not believers) to suggest that, for the
serious devotee—and, to put things in context, let us say the serious Islamic devotee—religion is genuinely a matter of voluntary choice, other than in a hypermechanical sense. There are three reasons for this:
First, and least importantly, under one interpretation of Islamic law, the concept
of apostasy (Riddah) or moving from the true faith is a crime—one that has proved
highly controversial in recent times.91 In other words, even in this literal sense, for
some Muslims, religion is not a voluntary matter.
Secondly, and more importantly, the question of immutability must surely focus
not on the literal possibility of foregoing a characteristic, but the burdens which such
a step would impose on the relevant individual.92 So, for example, it is literally possible to change one’s gender, but for most people this would be such a burdensome
step that gender can properly be regarded as an immutable characteristic. In this regard, a religion like Islam throws up metaphysical questions which are of ultimate importance to the believer in that they go to issues of ultimate truth including the
believer’s eternal destiny. This, linked with the unprovable nature of religious belief
and the insecurities which this generates, means that even questioning one’s religious
beliefs, let alone renouncing them, may be beyond the emotional and intellectual
89 See, for example, Bennett Graham, supra n 12 at 78; Leo, Gaer and Cassidy, supra n 32 at 782.
90 Cox, supra n 18 at 760.
91 See Henn, ‘Saudi Court Sentences Man to Death Sentence for Denouncing his Muslim Faith and
Ripping up Koran’, Express, 25 February 2015; and Khan, ‘Death for Apostasy? Islam Needs to Reflect
the 21st Century’, The Globe and Mail, 25 June 2014, available at: www.theglobeandmail.com/globe-de
bate/death-for-apostasy-islam-needs-to-reflect-the-21st-century/article19316659/ [last accessed 8
February 23 March 2016].
92 In Islam v Secretary of State for the Home Department, Regina v Immigration Appeal Tribunal and Another,
ex parte Shah [1999] UKHL 20; [1999] 2 AC 629, the House of Lords saw immutability as existing in relation to a ‘characteristic that either is beyond the power of an individual to change or is so fundamental
to individual identity or conscience that it ought not to be required to be changed’.
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capacity and courage of many (possibly most) believers who might see their eternal
souls as being on the line. Hence, the ‘choice’ of renouncing one’s religion or choosing another one may, for many believers, be an entirely unrealistic one.
Thirdly, and for the same reason (and again Islam is perhaps the paradigm case in
this regard), religious identity in many cases links to nationalistic, cultural and personal factors which may be of supreme importance to the believer. To choose to renounce one’s beliefs may, in other words, entail one renouncing, in addition, one’s
history, one’s social network and one’s family—and, again, this may be something of
which many believers are simply incapable.93
For these reasons, and whereas, no doubt, it is literally possible to choose one’s religion (just as one can, theoretically, choose to change one’s nationality or one’s gender), this may be entirely unrealistic and, in a real sense, so onerous as to be
impossible for many. Hence, it is probably too easy to assert that religious affiliation
is genuinely voluntary and such an approach may reflect merely the western experience of religious identity in a secularized society or, worse, may be the product of
analysis from someone who looks at the concept of religious adherence from the outside but without actually being a believer him or herself.
The relative insignificance of immutability The second response, however, is different, namely that there is no reason why the proposition that ‘religious affiliation is a
matter of voluntary choice’, even if it were accurate, should be determinative of the
question whether speech which is xenophobic of a religion should be regarded as
being equivalent to racist hate speech.94 In fact, (and whereas a detailed analysis of
the nature of individual hate speech laws is beyond the scope of this article) the reason why speech targeting people and communities on the basis of factors such as
race, colour, gender or sexual orientation is intuitively regarded as grossly morally
unacceptable, has, possibly, very little to do with the immutable nature of these
factors.
If one considers the nature of what western society regards as hate speech after
all, two interesting points emerge. First, there is a range of innate and immutable
characteristics—eye colour, baldness and even obesity, for example—which are not
generally protected by hate speech laws, when other characteristics, such as nationality, which are not genuinely immutable, that are. Secondly, even with the kind of
characteristics that do attract protection (gender, skin colour and sexual orientation,
for example) it seems clear that derogatory comments against heterosexuals, men or
Caucasians attracts nothing like the same level of moral censure in western society as
does equivalent speech against homosexuals, women or African Americans, despite
the fact that, obviously, the relative immutability of the characteristics in both cases
is the same. Indeed even where religions are concerned, it is notable that, in the aftermath of the Charlie Hebdo and Porte de Vincennes attacks, the French government,
while standing up for the right of Charlie Hebdo to insult, offend and demonize Islam
and Muslims, also stressed that it would be rigorously enforcing a law targeting anti-
93 See generally Cox, supra n 18 at 761.
94 Ibid. at 765. See also Lewis, The Crisis of Islam (2003).
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219
semitic hate speech,95 thereby implying that members of the Jewish faith receive a
protection which members of the Islamic religion (or, one might speculate, the
Christian religion) would not, despite the fact that the relative immutability of religious identity does not differ in relation to any of these three faiths.
What this implies is that the immutability of a characteristic should not, by itself,
represent the touchstone of legitimacy in terms of whether that characteristic can be
protected by a hate speech law.96 Instead, what should be determinative is the extent
to which the speech threatens or contributes to a threat against individual rights, and
this will be determined by (i) the extent to which the aspects of a person’s make up
that are under attack gives him or her a source of self-identification and are used generally as a means of identifying different groups within society, and (ii) the extent to
which, historically, people possessed of such characteristics have suffered disadvantage as a result. In other words, to take the examples mentioned above, eye or hair
colour or baldness may well be thought to be immutable characteristics, but they are
not known for being characteristics which are used either as points of self identification, or by which a person may be grouped socially, whereas religious identity or nationality, whether or not they are immutable, clearly are sources of self identification.
Furthermore, the reason why, in western society, speech targeting homosexuals,
women, African Americans or members of the Jewish faith will generally be seen as
worse than equivalent speech targeting heterosexuals, men, Caucasians or Christians,
is because the former groups have, historically, been disadvantaged by reason of their
sexual orientation, gender, colour and religion, and their rights are still threatened by
such speech, whereas the latter groups have been advantaged by these factors and
their rights are not so threatened. The confusion with immutability is understandable—in that most of the characteristics by which people self-identify and which
have led to them being historically disadvantaged are immutable. Equally the concept
of immutability is merely evidence of those factors which actually explain why
particular kinds of hate speech threaten rights, but is not of itself the determinative
factor in this regard.
This is of huge significance for the argument that xenophobia against religion
(and especially Islam) is conceptually different to other forms of hate speech. In the
first place, for many Muslims, their religion (that is, their membership of the Islamic
community or ummah) is a gigantically bigger claim than their nationality. In other
words, their primary point of self identification is not their race or gender or whatever, but rather their religion. As Bernard Lewis points out, after all, whereas western
societies regard the world as divided into states, and the state as subsuming various
religions, the Islamic world, in contrast, sees the primary point of demarcation as
being Dar al Islam (the house of Islam) as compared to Dar al Harb (the house of
war), with geographical countries being mere subdivisions of the broader Islamic
95 See Hinnant, ‘France Arrests 54 in Hate-speech, Anti-Semitism Crackdown’, The Globe and Mail, 14
January 2015, available at: www.theglobeandmail.com/news/world/france-arrests-54-in-hate-speech-antisemitism-crackdown/article22442506/ [last accessed 8 February 2016].
96 See the decision of the US Supreme Court in Bowen v Gilliard 483 U.S. 587 (1987) and generally Smith,
‘The Flaws of Rational Basis with Bite: Why the Supreme Court Should Acknowledge Its Application of
Heightened Scrutiny to Classifications Based on Sexual Orientation’ (2005) 73 Fordham Law Review
2774.
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world.97 Secondly, it can be suggested that it is on the basis of their religious identity
that Muslims (both those in Islamic and non-Islamic countries) are identified by
many non-Muslims. Finally, and whereas this is too broad a topic to deal with effectively in this article, it can also be strongly argued that, certainly within the
Judaeo-Christian world, Muslims and Islam generally have historically been targeted,
demonized and isolated.98 Furthermore, in contemporary terms, Muslim minorities
in western cultures see themselves as being the victims of all the different forms of
discrimination and rights violation which were referenced in the UN defamation of
religion resolutions99 (and regard the message transmitted by those cartoons that
link Islam with terrorism as one of the sources of their difficulties). In other words,
on the criteria suggested above, there is simply no valid reason for regarding speech
which is xenophobic against Islam as not being directly morally analogous to hate
speech which focuses on issues such as race, gender or sexual orientation.
This is not, of course, to say that defamation of religion laws are necessary or appropriate, and many would argue that the value of freedom of expression is such
that, however immoral hate speech is, it is something which should not be prohibited
by law.100 Indeed, it may certainly be argued that, in the current climate, any reasoned analysis of the potential for links to be drawn between orthodox Islamic law
and terrorism represents an important contribution to debate. The point being made
here, however, is simply that the proposition that what defamation of religion laws
do is inherently and universally unacceptable and thus that, as a matter of universal or
even western principle, there should be an unfettered right to publish cartoons linking Islam with terrorism, is a difficult one to sustain.
5. CONCLUSION
As was mentioned at the outset, the expression of international solidarity with the
right of magazines like Charlie Hebdo to publish the kind of cartoons that it published begs many questions. Without for a second suggesting either that the condemnation of the violence of the attacks was inappropriate or that everyone who
proclaimed that Je Suis Charlie supported the notion of an unfettered right to publish
what I have termed irreligious cartoons, one can still legitimately puzzle over a reaction of solidarity with the right of the magazine to publish material which was always
intentionally offensive and was, in some instances, xenophobic. As has been noted,
after all, no equivalent solidarity would be expressed for publishers of a cartoon that
was anti-semitic or homophobic, or which mocked holocaust victims or people with
disabilities, let alone one which implied that all black people were cannibals or all gay
people were paedophiles. So why be so supportive of the legitimacy of a publication
97 Lewis, supra n 94 at XX.
98 Among many others, see Esposito Islam the Straight Path, 4th edn (2011) especially at 63ff. See, generally, Esposito and Kalin, Islamophobia (2011); Lean, The Islamophobia Industry (2012); and Akyol, Islam
Without Extremes (2011).
99 See Dobson, ‘British Muslims Face Worst Job Discrimination of Any Minority Group’, Independent, 30
November 2014, available at: www.independent.co.uk/news/uk/home-news/british-muslims-faceworst-job-discrimination-of-any-minority-group-9893211.html [last accessed 8 February 2016]. See,
generally, Haddad and Smith, Muslim Minorities in the West: Visible and Invisible (2002).
100 See, generally, Bleich, The Freedom to Be Racist (2011).
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which knowingly offended the deepest sensitivities of members of a particular religion, or which implied that their religion—in which they found their innermost
point of self-identification—was one which inexorably committed them to acts of
violence and terror? More particularly, what norm of global society is offended by a
law restricting the freedom to publish material which has either of these effects, given
that equivalent publications—including those that targeted members of the Jewish
faith—would not receive similar support?
It is submitted that, whether or not this is something that people like to admit,
the answer to these questions may lie in the fact that the attackers in Paris, like the
proponents of the defamation of religion resolutions, were Islamic. To put this another way, the best explanation for the nature of at least some of the reaction to the
Charlie Hebdo attacks, may be that secular western orthodoxy is suspicious of and
threatened by Islam, and the attacks by Muslim terrorists on a media outlet in perhaps the most highly secularized state in Europe simply brought this suspicion into
the sharpest possible focus. In other words, and beyond any kind of war against ISIS
or against global terrorism generally, what is at stake in this debate, is an ideological
challenge presented by Islam to those liberal, secular values which are viewed by the
west as having international and universal validity—a challenge which exists in the
form of 1.7 billion people who are linked by an ideological call which transcends
what might be termed ‘earthly’ concerns, which has priorities which are very different
to the priorities of western society (not least the prioritization of duties over rights
and the community over the individual) and which may simply be incomprehensible
to secularized, liberal, western orthodoxy whose concerns for itself and for its citizens
are, naturally, limited to what happens this side of the grave.
Faced with an ideological opponent of this kind, it is unsurprising that many in the
west will gladly take the option of seeking either to belittle the tenets of Islam or to demonize the religion as a whole. This is of course what the cartoons in both Charlie
Hebdo and Jyllands Posten did and what blasphemy and defamation of religion laws
seek to prevent. In other words, in the competing reactions of many of those who asserted that ‘Je Suis Charlie’ and of those Muslims who were scandalized by the publication of the cartoons, it is possible to see much deeper battle lines being drawn.